He eloquently speaks about the present (and past) in conjunction with his people, and his words carry a resonance which alludes to a fast-approaching possible future for many other peoples. May God have mercy on all of us ... those who have awakened (at least to a degree), and those who are struggling to awaken, as well as those who are still asleep but have the potential to awaken. Whether we are struggling to awaken, or we continue to sleep or, if (to whatever degree) we have awakened and are seeking to constructively act in some way, these are all choices for which we have a duty of care and from which there is no escape. This is at the heart of what is entailed by having been given the gift of life.
Showing posts with label oppression. Show all posts
Showing posts with label oppression. Show all posts
Saturday, October 14, 2023
Monday, August 18, 2008
Shari'ah: A Muslim's Declaration of Independence - Part 9
The Issue of Ijtihad
Mu‘adh ibn Jabal was dispatched by the Prophet to govern Yemen. Before ibn Jabal left for Yemen, the Prophet asked him about the nature of the method through which ibn Jabal would govern. Ibn Jabal replied: ‘In accordance with God’s Book.’ Ibn Jabal was then asked by the Prophet that if the former could not find what he needed in God’s Book, how would ibn Jabal proceed. Ibn Jabal responded with: ‘Then, according to the sunna of God’s Prophet.’ The Prophet then asked what ibn Jabal would do if the latter could not find what he requires in the sunna of the Prophet. Ibn Jabal replied that he would exercise ijtihad.” The Messenger of God indicated that he was happy with the answers which ibn Jabal had given to each of the Prophet’s queries.
Some people have tried to construe the meaning of ijtihad as involving legal reasoning in some form. However, ijtihad – which comes from the same root as ‘jihad’ – refers to a process of personal striving or struggling to assert the truth of a matter.
The Qur’an says:
And strive hard in the way of Allah, such a striving as is due to Him;” [Qur’an, 22:78]
All of life requires one to exercise ijtihad. All of life requires one to strive for the truth.
Among other things, God has given each of us a capacity for seeking truth. To use such a capacity for anything other than striving for the truth is to strive in a manner which is less than what is due to God.
Reason might be one tool entailed by such an exercise. Nonetheless, there are other faculties and capabilities within the individual [e.g., heart, sirr, kafi, spirit] which also may be employed during the process of ijtihad.
Furthermore, whatever the nature of the faculties and methods which may be employed during the process of ijtihad, one is not necessarily seeking a legally enforceable solution to the question, issue, or problem at hand through such a process. This is especially so with respect to matters of shari‘ah -- which is an individual, spiritual task and not something which should be imposed collectively or through compulsion.
To govern is to oversee the regulation of public space so that that space is free of oppression, injustice, and tumult. Governance is not about the enforcement of shari‘ah, but, rather, governance is about the regulating of the ‘commons’, so to speak, so that individuals are free to pursue, or not, the issue of shari‘ah.
Presumably, if ibn Jabal was looking to the Qur’an, the sunna, and the exercise of ijtihad in order to find solutions to problems of governance, one should not necessarily assume that he was trying to discover various facets of shari‘ah which could be imposed on people. Rather, ibn Jabal may have been trying to discover those principles of justice, equitability, tolerance, truth, wisdom, and so on which will permit a community to exist in relative peace and harmony, free from oppression, so that the members of that community might individually tend to the responsibilities which revolve about and permeate the issue of free will in a manner which does not oppress others. As the Qur’an indicates:
“O ye who believe! Be upright for Allah, bearers of witness with justice, and let not hatred of a people incite or seduce you to not act equitably; act equitably, that is nearer to piety (taqwa) , and be careful with respect to Allah, surely Allah is aware of what you do.” [Qur’an, 5:8]
Ibn Jabal (may Allah be pleased with him) was seeking to be “upright for Allah”. He was seeking to be one of the “bearers of witness with justice”. He was seeking to “act equitably”. He was seeking to struggle toward a condition of taqwa. He was seeking to “be careful with respect to Allah”.
Notwithstanding the foregoing considerations, and without prejudice to either the Prophet Muhammad (peace be upon him) or ibn Jabal (may Allah be pleased with him), there is a great deal of ambiguity in the interchange between the two as related in the foregoing Hadith. For example, one might ask: What does it mean to find what one needs in the Qur’an? Or, what is meant by the idea of finding what one seeks in the sunna of the Prophet? What is actually entailed by the process of exercising ijtihad?
There is no one answer which can be given to any of the foregoing questions. Much depends on the spiritual capabilities and condition of the individual doing the needing, seeking, and striving in relation to, respectively, the Qur’an, the sunna, and ijtihad. Much also depends on the nature of the problem which one is attempting to resolve or the kind of question one is trying to answer.
The truth of the matter is that many people read about the account involving the Prophet Muhammad (peace be upon him) and ibn Jabal (may Allah be pleased with him), and such individuals tend to impose their own ideas onto the exchange. For example, because ibn Jabal was being sent off to Yeman to govern, there are those who suppose that the practice of ijtihad can only be performed by someone who has been given the authority to govern. Then, again, there are others who understand the interchange between the Prophet and ibn Jabal to mean that only someone who has been given the authority to make legal pronouncements is permitted to exercise ijtihad, and, then, such commentators often proceed to put forth a list of qualifications which such a person must have in order to be permitted to exercise ‘legitimate’ ijtihad.
There is an underlying logic inherent in the perspective of those who seek to restrict ijtihad to only certain kinds of individuals with certain kinds of qualifications. The nature of that logic goes somewhat along the following lines: The Prophet Muhammad (peace be upon him) was sending ibn Jabal (may Allah be pleased with him) to govern the people of Yemen; the Prophet was only showing approval concerning the exercise of ijtihad in the case of someone whom he had authorized to fulfill a specific task of governance; therefore, the Prophet would only approve ijtihad in someone whom he had authorized to accept such a responsibility.
The foregoing kind of logic is nothing more than presumptions which are being read into the conversation in question. In point of fact, there is nothing in the interchange between the Prophet Muhammad (peace be upon him) and ibn Jabal (may Allah be pleased with him) to which one can point that authoritatively and decisively demonstrates the necessity of concluding that only people who govern or only people who promulgate laws or only those with specific qualifications have the right to exercise ijtihad.
Above and beyond the foregoing sorts of difficulties, there are two other kinds of presumption inherent in the sort of logic which seeks to place limits on those who might exercise ijtihad. On the one hand, there is a presumption that those who exercise ijtihad today -- and, therefore, those who are referred to as mujtahids -- have been authorized by the Prophet to do so, and this is, at best, a very dubious presumption. On the other hand, there is another presumption present in the foregoing sort of logic which arrogates to itself the right to forcibly impose upon others the “fruits” from someone’s exercise of ijtihad which is, once again and at best, an extremely dubious presumption.
We are each governors of our own being. We each have been given the capacity to consult the Qur’an, the sunna, and, when appropriate, to exercise ijtihad as we strive to find our way to truth, justice, essential identity, and our primordial spiritual capacity.
In fact, one might argue that every engagement of the Qur’an and sunna is an exercise of ijtihad. Each individual strives and struggles to purify herself or himself in order that one may be led, God willing, to a spiritual condition which allows one to drink in what is necessary to have ears with which to hear and eyes with which to see the true nature of what God is disclosing to us through the Qur’an and the example of the Prophet.
Having said the foregoing, one should not suppose I believe there are no differences in the quality, depth, insight, wisdom, balance, or appropriateness as one moves from one exercise of ijtihad to the next exercise of ijtihad among different individuals. The Qur’an states:
“Are they equal – those who know and those who do not know? Only those of understanding are mindful.” [Qur’an, 39:9]
In this regard, there are some mujtahids who truly do know what they are talking about with respect to matters of shari‘ah, truth, and justice, just as there are all too many mujtahids who do not know what they are talking about when it comes to matters of shari‘ah, truth, and justice. Nevertheless, whether someone who engages in ijtihad knows what he or she is doing, or whether someone who engages in ijtihad does not know what she or he is doing, neither individual has the right nor authority to forcibly impose their understanding upon others when it comes to matters of shari‘ah.
If one wishes to think of shari‘ah as Divine Law, then, as previously indicated, one should understand the idea of law in such a context as being an expression of the way the universe spiritually operates rather than as being an expression of a legal system. No one has to impose the law of gravity on anyone since most of us become aware of the existence and nature of gravity through life experience, and, as a result, we begin to factor in our understanding of this law of nature with respect to our daily lives concerning what may be practical and what may be problematic when it comes to matters which are affected or influenced by the force of gravity.
When one runs afoul of the law of gravity, one is not being punished for a legal transgression. Rather, one is suffering the consequences of failing to exercise due diligence in one’s life with respect to the law of gravity.
Similarly, when one runs afoul of the principles inherent in shari‘ah, and, then, if things begin to become problematic in one’s life as a result of such transgressions, one is not being punished. Instead, as is the case in relation to the law of gravity, by failing to exercise due diligence with respect to shari‘ah, problematic ramifications may begin to become manifest in one’s life. This is just the way the universe is set up to operate unless God intervenes and interrupts the normal sequence of events.
The truth of the matter is – and as the Qur’an has indicated in a number of verses – difficulty, problems and trials come into the lives of everyone – whether they are believers or non-believers. Thus, the Qur’an notes:
“And we test you by evil and by good by way of trial.” [21:35]
Or, again:
“Do they not see that they are tried once or twice in every year, yet they do not turn nor do they take heed.” [9:126]
And, finally:
“And surely We shall test you with some fear and hunger and loss of wealth and lives and crops;” [Qur’an, 2:155]
Pursuing shari‘ah in a sincere fashion can assist one to cope with such problems, and when one turns away from that spiritual journey, one is actually placing oneself at a disadvantage when it comes to dealing with the rain which must fall into the life of everyone, and this is another natural law of the universe. Indeed, the following Quranic ayat alludes to those who properly understand this natural laws of the universe:
“But give glad tidings to the steadfast – who say when misfortune strikes them: Surely, to Allah we belong and to Allah is our returning.” [Qur’an, 2:156]
Furthermore, just as no one has to impose a penalty beyond what happens naturally when one transgresses the due limits of the force of gravity, so, too, with certain exceptions (to be noted shortly) no one has to impose a penalty beyond what happens naturally when one transgresses the due limits of shari‘ah. If one does not say one’s prayers, or if one does not fast during the month of Ramadan, or if one is financially and physically able to do so but does not go on Hajj, or if one fails to give zakat, or if one fails to act in accordance with the reality that God exists and that the Prophet Muhammad (peace be upon him) was given a Book of Divine revelation, or if one does not seek to acquire the noble character traits [such as forgiveness, tolerance, patience, gratitude, humility, steadfastness, love, generosity, and the like] which are part of what is sought by pursuing shari‘ah, then, one will have to deal with the problematic ramifications of such negligence in one’s day-to-day life.
Only when such ramifications spill over into the lives of others and, as a result, an individual’s negligence of shari‘ah leads to that individual pursuing courses of action that abuse, exploit, injure, or oppress others does the community have a right to step in and seek to restore harmony, peace, justice, and balance within the community. Such intercession is directed toward protecting the right of people in a community to be able to have the opportunity to make choices concerning shari‘ah – either toward it or away from it -- which are free from interference by others. These corrective efforts of the community are not directed at forcing some given transgressing individual to follow shari‘ah but, rather, is directed toward honoring the rights of individuals to have the opportunity to be free of oppression from others.
After such corrective measures are taken – and these measures need not be punitive and could involve attempts to mediate and reconcile individuals as a means of restoring balance and harmony in the community – if the individual who originally had introduced oppression into the lives of other people wishes to continue to choose to live life in opposition to the principles of shari‘ah, then, the person should be free to do so as long as such a life does not transgress further against the rights of others to be free of any tendencies toward oppression that may arise out of such choices. However, just as someone who does not wish to follow shari‘ah has no right to oppress others in the community, then the following is also true: those who wish to follow shari‘ah have no right to oppress others in the community in terms of the way the former wish to pursue shari‘ah.
Oppression is not about whether someone has transgressed this or that legal injunction. Oppression occurs when someone interferes with, or seeks to undermine and diminish, the sort of right with respect to which there is virtually universal consensus [and irrespective of whether someone believes in God or does not believe in God] – the right to be free to choose the course of one’s life. The responsibility which accompanies this right is a duty of care to others in the community – a responsibility which stipulates that however one exercises one’s basic right to choose, such choices cannot spill over and adversely affect the right of others to make similar free choices in their own lives.
Legal laws do not have to be transgressed in order to know that oppression exists in a family, community, or nation. All one needs to look at is whether there are imbalances and inequities among individuals in their respective abilities to effectively exercise the most basic of rights among human beings – that of free choice.
Freedom to choose is one of the most basic natural laws of the universe. When that natural principle is transgressed against, the result is oppression, irrespective of whether, or not, any legal rules have been broken.
In fact, in all too many societies, the legal laws which exist are intended to oppress people while simultaneously sanctioning the right of certain favored individuals under the law to oppress others with impunity. Indeed, in many Muslim nations and communities where certain laws are enforced which are referred to as shari‘ah -- but, in truth, are not shari‘ah – the legal structure of those communities and nations is set up in such a way so as to give government and religious authorities the right to impose what is called shari‘ah on people and thereby oppress them and, in the process, transgress against the freedom to choose which God has given to all human beings -- whether they believe, or they do not believe, in Divinity.
Just as air, water, and food are intended for all to use irrespective of whether, or not, they are believers in God, so, too, the right to choose is a basic entitlement of all human beings. In fact, at the very heart of shari‘ah is the right to freely choose among alternatives, and when legal injunctions which are referred to as shari‘ah are imposed on people, the very essence of shari‘ah is violated.
Those who are, by the Grace of God, good at exercising ijtihad – that is, those who are spiritually insightful, truly knowledgeable [as opposed to just being filled with information], as well as wise mujtahids [i.e., practitioners of ijtihad] perform an important service for those who are seeking counsel concerning the pursuit of shari‘ah. Nonetheless, that service is limited to offering counsel and nothing more, and, furthermore, no one has the right to take such counsel and use it to justify attempts to compel other human beings to live in accord with that counsel. To do so totally misses, if not distorts, the meaning and purpose of both being a mujtahid as well as pursuing shari‘ah.
The Prophet Muhammad (peace be upon him) is reported to have said: “When the qadi judges and does ijtihad and hits the mark, he has ten rewards; and when he does ijtihad and errs, he has one or two rewards.”
The Prophet is indicating in the foregoing that the exercising of an intention to seek truth and justice is rewarded in and of itself, even if it turns out that one who is exercising such an intention pursues a path which does not give expression to either truth or justice. Moreover, the foregoing also seems to indicate fairly clearly that ijtihad is the process of struggling for the truth of a matter, while being correct or in error concerning the results of that process is quite another matter altogether.
However, one should not assume that the Prophet was indicating in the previous Hadith that making errors concerning the exercise of ijtihad is okay and without consequences or that one has the right to impose such erroneous judgments on others. This latter point is especially relevant with respect to those individuals who have not been authorized by either God or the Prophet Muhammad (peace be upon him) to exercise ijtihad on behalf of a community – as opposed to exercising ijtihad in conjunction with respect to oneself … something which we all have been given the capacity and responsibility to do.
To make judgments as a mujtahid is not a matter of imposing shari‘ah on others. Rather, to make judgments as a mujtahid is to strive toward assisting members of a community to identify those tools of truth and principles of justice which might be useful resources to apply, like salve on a wound, to help alleviate the pain and difficulties which have ensued from some manner of disturbance in the peaceful fabric of a community so that harmony and balance may be restored through a peaceful reconciliation of differences and conflicts.
*****************
Mu‘adh ibn Jabal was dispatched by the Prophet to govern Yemen. Before ibn Jabal left for Yemen, the Prophet asked him about the nature of the method through which ibn Jabal would govern. Ibn Jabal replied: ‘In accordance with God’s Book.’ Ibn Jabal was then asked by the Prophet that if the former could not find what he needed in God’s Book, how would ibn Jabal proceed. Ibn Jabal responded with: ‘Then, according to the sunna of God’s Prophet.’ The Prophet then asked what ibn Jabal would do if the latter could not find what he requires in the sunna of the Prophet. Ibn Jabal replied that he would exercise ijtihad.” The Messenger of God indicated that he was happy with the answers which ibn Jabal had given to each of the Prophet’s queries.
Some people have tried to construe the meaning of ijtihad as involving legal reasoning in some form. However, ijtihad – which comes from the same root as ‘jihad’ – refers to a process of personal striving or struggling to assert the truth of a matter.
The Qur’an says:
And strive hard in the way of Allah, such a striving as is due to Him;” [Qur’an, 22:78]
All of life requires one to exercise ijtihad. All of life requires one to strive for the truth.
Among other things, God has given each of us a capacity for seeking truth. To use such a capacity for anything other than striving for the truth is to strive in a manner which is less than what is due to God.
Reason might be one tool entailed by such an exercise. Nonetheless, there are other faculties and capabilities within the individual [e.g., heart, sirr, kafi, spirit] which also may be employed during the process of ijtihad.
Furthermore, whatever the nature of the faculties and methods which may be employed during the process of ijtihad, one is not necessarily seeking a legally enforceable solution to the question, issue, or problem at hand through such a process. This is especially so with respect to matters of shari‘ah -- which is an individual, spiritual task and not something which should be imposed collectively or through compulsion.
To govern is to oversee the regulation of public space so that that space is free of oppression, injustice, and tumult. Governance is not about the enforcement of shari‘ah, but, rather, governance is about the regulating of the ‘commons’, so to speak, so that individuals are free to pursue, or not, the issue of shari‘ah.
Presumably, if ibn Jabal was looking to the Qur’an, the sunna, and the exercise of ijtihad in order to find solutions to problems of governance, one should not necessarily assume that he was trying to discover various facets of shari‘ah which could be imposed on people. Rather, ibn Jabal may have been trying to discover those principles of justice, equitability, tolerance, truth, wisdom, and so on which will permit a community to exist in relative peace and harmony, free from oppression, so that the members of that community might individually tend to the responsibilities which revolve about and permeate the issue of free will in a manner which does not oppress others. As the Qur’an indicates:
“O ye who believe! Be upright for Allah, bearers of witness with justice, and let not hatred of a people incite or seduce you to not act equitably; act equitably, that is nearer to piety (taqwa) , and be careful with respect to Allah, surely Allah is aware of what you do.” [Qur’an, 5:8]
Ibn Jabal (may Allah be pleased with him) was seeking to be “upright for Allah”. He was seeking to be one of the “bearers of witness with justice”. He was seeking to “act equitably”. He was seeking to struggle toward a condition of taqwa. He was seeking to “be careful with respect to Allah”.
Notwithstanding the foregoing considerations, and without prejudice to either the Prophet Muhammad (peace be upon him) or ibn Jabal (may Allah be pleased with him), there is a great deal of ambiguity in the interchange between the two as related in the foregoing Hadith. For example, one might ask: What does it mean to find what one needs in the Qur’an? Or, what is meant by the idea of finding what one seeks in the sunna of the Prophet? What is actually entailed by the process of exercising ijtihad?
There is no one answer which can be given to any of the foregoing questions. Much depends on the spiritual capabilities and condition of the individual doing the needing, seeking, and striving in relation to, respectively, the Qur’an, the sunna, and ijtihad. Much also depends on the nature of the problem which one is attempting to resolve or the kind of question one is trying to answer.
The truth of the matter is that many people read about the account involving the Prophet Muhammad (peace be upon him) and ibn Jabal (may Allah be pleased with him), and such individuals tend to impose their own ideas onto the exchange. For example, because ibn Jabal was being sent off to Yeman to govern, there are those who suppose that the practice of ijtihad can only be performed by someone who has been given the authority to govern. Then, again, there are others who understand the interchange between the Prophet and ibn Jabal to mean that only someone who has been given the authority to make legal pronouncements is permitted to exercise ijtihad, and, then, such commentators often proceed to put forth a list of qualifications which such a person must have in order to be permitted to exercise ‘legitimate’ ijtihad.
There is an underlying logic inherent in the perspective of those who seek to restrict ijtihad to only certain kinds of individuals with certain kinds of qualifications. The nature of that logic goes somewhat along the following lines: The Prophet Muhammad (peace be upon him) was sending ibn Jabal (may Allah be pleased with him) to govern the people of Yemen; the Prophet was only showing approval concerning the exercise of ijtihad in the case of someone whom he had authorized to fulfill a specific task of governance; therefore, the Prophet would only approve ijtihad in someone whom he had authorized to accept such a responsibility.
The foregoing kind of logic is nothing more than presumptions which are being read into the conversation in question. In point of fact, there is nothing in the interchange between the Prophet Muhammad (peace be upon him) and ibn Jabal (may Allah be pleased with him) to which one can point that authoritatively and decisively demonstrates the necessity of concluding that only people who govern or only people who promulgate laws or only those with specific qualifications have the right to exercise ijtihad.
Above and beyond the foregoing sorts of difficulties, there are two other kinds of presumption inherent in the sort of logic which seeks to place limits on those who might exercise ijtihad. On the one hand, there is a presumption that those who exercise ijtihad today -- and, therefore, those who are referred to as mujtahids -- have been authorized by the Prophet to do so, and this is, at best, a very dubious presumption. On the other hand, there is another presumption present in the foregoing sort of logic which arrogates to itself the right to forcibly impose upon others the “fruits” from someone’s exercise of ijtihad which is, once again and at best, an extremely dubious presumption.
We are each governors of our own being. We each have been given the capacity to consult the Qur’an, the sunna, and, when appropriate, to exercise ijtihad as we strive to find our way to truth, justice, essential identity, and our primordial spiritual capacity.
In fact, one might argue that every engagement of the Qur’an and sunna is an exercise of ijtihad. Each individual strives and struggles to purify herself or himself in order that one may be led, God willing, to a spiritual condition which allows one to drink in what is necessary to have ears with which to hear and eyes with which to see the true nature of what God is disclosing to us through the Qur’an and the example of the Prophet.
Having said the foregoing, one should not suppose I believe there are no differences in the quality, depth, insight, wisdom, balance, or appropriateness as one moves from one exercise of ijtihad to the next exercise of ijtihad among different individuals. The Qur’an states:
“Are they equal – those who know and those who do not know? Only those of understanding are mindful.” [Qur’an, 39:9]
In this regard, there are some mujtahids who truly do know what they are talking about with respect to matters of shari‘ah, truth, and justice, just as there are all too many mujtahids who do not know what they are talking about when it comes to matters of shari‘ah, truth, and justice. Nevertheless, whether someone who engages in ijtihad knows what he or she is doing, or whether someone who engages in ijtihad does not know what she or he is doing, neither individual has the right nor authority to forcibly impose their understanding upon others when it comes to matters of shari‘ah.
If one wishes to think of shari‘ah as Divine Law, then, as previously indicated, one should understand the idea of law in such a context as being an expression of the way the universe spiritually operates rather than as being an expression of a legal system. No one has to impose the law of gravity on anyone since most of us become aware of the existence and nature of gravity through life experience, and, as a result, we begin to factor in our understanding of this law of nature with respect to our daily lives concerning what may be practical and what may be problematic when it comes to matters which are affected or influenced by the force of gravity.
When one runs afoul of the law of gravity, one is not being punished for a legal transgression. Rather, one is suffering the consequences of failing to exercise due diligence in one’s life with respect to the law of gravity.
Similarly, when one runs afoul of the principles inherent in shari‘ah, and, then, if things begin to become problematic in one’s life as a result of such transgressions, one is not being punished. Instead, as is the case in relation to the law of gravity, by failing to exercise due diligence with respect to shari‘ah, problematic ramifications may begin to become manifest in one’s life. This is just the way the universe is set up to operate unless God intervenes and interrupts the normal sequence of events.
The truth of the matter is – and as the Qur’an has indicated in a number of verses – difficulty, problems and trials come into the lives of everyone – whether they are believers or non-believers. Thus, the Qur’an notes:
“And we test you by evil and by good by way of trial.” [21:35]
Or, again:
“Do they not see that they are tried once or twice in every year, yet they do not turn nor do they take heed.” [9:126]
And, finally:
“And surely We shall test you with some fear and hunger and loss of wealth and lives and crops;” [Qur’an, 2:155]
Pursuing shari‘ah in a sincere fashion can assist one to cope with such problems, and when one turns away from that spiritual journey, one is actually placing oneself at a disadvantage when it comes to dealing with the rain which must fall into the life of everyone, and this is another natural law of the universe. Indeed, the following Quranic ayat alludes to those who properly understand this natural laws of the universe:
“But give glad tidings to the steadfast – who say when misfortune strikes them: Surely, to Allah we belong and to Allah is our returning.” [Qur’an, 2:156]
Furthermore, just as no one has to impose a penalty beyond what happens naturally when one transgresses the due limits of the force of gravity, so, too, with certain exceptions (to be noted shortly) no one has to impose a penalty beyond what happens naturally when one transgresses the due limits of shari‘ah. If one does not say one’s prayers, or if one does not fast during the month of Ramadan, or if one is financially and physically able to do so but does not go on Hajj, or if one fails to give zakat, or if one fails to act in accordance with the reality that God exists and that the Prophet Muhammad (peace be upon him) was given a Book of Divine revelation, or if one does not seek to acquire the noble character traits [such as forgiveness, tolerance, patience, gratitude, humility, steadfastness, love, generosity, and the like] which are part of what is sought by pursuing shari‘ah, then, one will have to deal with the problematic ramifications of such negligence in one’s day-to-day life.
Only when such ramifications spill over into the lives of others and, as a result, an individual’s negligence of shari‘ah leads to that individual pursuing courses of action that abuse, exploit, injure, or oppress others does the community have a right to step in and seek to restore harmony, peace, justice, and balance within the community. Such intercession is directed toward protecting the right of people in a community to be able to have the opportunity to make choices concerning shari‘ah – either toward it or away from it -- which are free from interference by others. These corrective efforts of the community are not directed at forcing some given transgressing individual to follow shari‘ah but, rather, is directed toward honoring the rights of individuals to have the opportunity to be free of oppression from others.
After such corrective measures are taken – and these measures need not be punitive and could involve attempts to mediate and reconcile individuals as a means of restoring balance and harmony in the community – if the individual who originally had introduced oppression into the lives of other people wishes to continue to choose to live life in opposition to the principles of shari‘ah, then, the person should be free to do so as long as such a life does not transgress further against the rights of others to be free of any tendencies toward oppression that may arise out of such choices. However, just as someone who does not wish to follow shari‘ah has no right to oppress others in the community, then the following is also true: those who wish to follow shari‘ah have no right to oppress others in the community in terms of the way the former wish to pursue shari‘ah.
Oppression is not about whether someone has transgressed this or that legal injunction. Oppression occurs when someone interferes with, or seeks to undermine and diminish, the sort of right with respect to which there is virtually universal consensus [and irrespective of whether someone believes in God or does not believe in God] – the right to be free to choose the course of one’s life. The responsibility which accompanies this right is a duty of care to others in the community – a responsibility which stipulates that however one exercises one’s basic right to choose, such choices cannot spill over and adversely affect the right of others to make similar free choices in their own lives.
Legal laws do not have to be transgressed in order to know that oppression exists in a family, community, or nation. All one needs to look at is whether there are imbalances and inequities among individuals in their respective abilities to effectively exercise the most basic of rights among human beings – that of free choice.
Freedom to choose is one of the most basic natural laws of the universe. When that natural principle is transgressed against, the result is oppression, irrespective of whether, or not, any legal rules have been broken.
In fact, in all too many societies, the legal laws which exist are intended to oppress people while simultaneously sanctioning the right of certain favored individuals under the law to oppress others with impunity. Indeed, in many Muslim nations and communities where certain laws are enforced which are referred to as shari‘ah -- but, in truth, are not shari‘ah – the legal structure of those communities and nations is set up in such a way so as to give government and religious authorities the right to impose what is called shari‘ah on people and thereby oppress them and, in the process, transgress against the freedom to choose which God has given to all human beings -- whether they believe, or they do not believe, in Divinity.
Just as air, water, and food are intended for all to use irrespective of whether, or not, they are believers in God, so, too, the right to choose is a basic entitlement of all human beings. In fact, at the very heart of shari‘ah is the right to freely choose among alternatives, and when legal injunctions which are referred to as shari‘ah are imposed on people, the very essence of shari‘ah is violated.
Those who are, by the Grace of God, good at exercising ijtihad – that is, those who are spiritually insightful, truly knowledgeable [as opposed to just being filled with information], as well as wise mujtahids [i.e., practitioners of ijtihad] perform an important service for those who are seeking counsel concerning the pursuit of shari‘ah. Nonetheless, that service is limited to offering counsel and nothing more, and, furthermore, no one has the right to take such counsel and use it to justify attempts to compel other human beings to live in accord with that counsel. To do so totally misses, if not distorts, the meaning and purpose of both being a mujtahid as well as pursuing shari‘ah.
The Prophet Muhammad (peace be upon him) is reported to have said: “When the qadi judges and does ijtihad and hits the mark, he has ten rewards; and when he does ijtihad and errs, he has one or two rewards.”
The Prophet is indicating in the foregoing that the exercising of an intention to seek truth and justice is rewarded in and of itself, even if it turns out that one who is exercising such an intention pursues a path which does not give expression to either truth or justice. Moreover, the foregoing also seems to indicate fairly clearly that ijtihad is the process of struggling for the truth of a matter, while being correct or in error concerning the results of that process is quite another matter altogether.
However, one should not assume that the Prophet was indicating in the previous Hadith that making errors concerning the exercise of ijtihad is okay and without consequences or that one has the right to impose such erroneous judgments on others. This latter point is especially relevant with respect to those individuals who have not been authorized by either God or the Prophet Muhammad (peace be upon him) to exercise ijtihad on behalf of a community – as opposed to exercising ijtihad in conjunction with respect to oneself … something which we all have been given the capacity and responsibility to do.
To make judgments as a mujtahid is not a matter of imposing shari‘ah on others. Rather, to make judgments as a mujtahid is to strive toward assisting members of a community to identify those tools of truth and principles of justice which might be useful resources to apply, like salve on a wound, to help alleviate the pain and difficulties which have ensued from some manner of disturbance in the peaceful fabric of a community so that harmony and balance may be restored through a peaceful reconciliation of differences and conflicts.
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Shari'ah: A Muslim's Declaration of Independence - Part 12
A Few Comments Concerning The Issue of Regulating Public Space
There has been a great deal of confusion in the Muslim community swirling among questions about the possible relationship between, on the one hand, what may have been done in the lifetime of the Prophet -- as well as during the lifetimes of the Companions of the Prophet over the course of the reign of the first four caliphs -- in relation to the issue of regulating public space, and, on the other hand, what may be appropriate to do today in relation to the same issue involving the regulation of public space. The root of the term ‘hukumah’ [governance] refers to a process of seeking to assist an oppressor not to oppress, and such assistance includes helping those who would exercise this responsibility – that is, political and religious leaders … i.e., the government itself – to refrain from any inclination existing within such governance to oppress, exploit, or abuse those whom such governance is supposed to be protecting from these very problems.
The Qur’an says:
“And if there had not been Allah’s repelling of some people by others, certainly there would have been torn down cloisters, and churches, and synagogues, and mosques in which Allah’s name is much mentioned; and surely Allah will help the one who helps His cause; most surely Allah is Strong, Mighty. [Qur’an, 22:39-40]
Hukumah or governance is one of the means through which Allah repels the oppression of some people by others. Moreover, it is important to note that God alludes to the right of those who worship in cloisters, churches, synagogues, and mosques to all be free to remember, worship, and invoke the name of God in their own manner.
There is a Hadith which relates the story of Abu ‘l-Husayn, a companion of the Prophet, whose two sons had been converted to Christianity in Medina by two Syrian merchants and then accompanied those merchants back to Syria. When Abu ‘l-Husayn heard of this, he went to the Prophet and sought permission to go after his sons and bring them back – not only to Medina but to Islam. In answer, the Prophet recited the Qur’an: “There is no compulsion in Deen, truly the right way has become clearly distinct from error.”[Qur’an, 2:256] Upon hearing the foregoing, Abu ‘l-Husayn let his sons go their own way.
When Abu Bakr Sidiq (may Allah be pleased with him) was Caliph [died in the 13th year after hijrah and was Caliph from 632 A.D. to 634 A.D.] he sent the Muslim army into Syria. As he did so, he issued the following guidance:
“When you enter the land, kill neither old men, women, nor children. … Establish a covenant with every people and city who receive you peacefully, give them your assurances, and let them live according to their laws.”
The Prophet, as well as the first four caliphs, all made decisions concerning the regulation of the public space, but these decisions were not shari‘ah, per se. As has been pointed out repeatedly during this essay, shari‘ah is an expression of a person’s private spiritual journey in search of reality or the truth concerning human existence and the place of such existence in the scheme of things, whereas the decisions of the Prophet and the first four Caliphs were particularized applications of their understanding of, and insight into, the nature of Divine guidance which had been given to them and were intended to address the circumstances, history, conditions, problems, cultures, capabilities, and issues of those times.
As the Prophet was instructed to say:
“This is my way. I call to God– I and whoever follows me being certain.” [Qur’an, 12:108]
Just as the appropriate times for fasting, pilgrimage, and prayers are to be observed within a certain timeframe, so, too, there may be an appropriate timeframe or contingency-based set of considerations concerning the application of certain other facets of the Qur’an. However, in order to determine the truth of such matters, one needs to call upon Allah – not books of fiqh, jurisprudence, judicial precedent, or legislation.
In the Qur’an, the Jews are told that they should have judged matters in accordance with the guidance which had been given to them …
“And why do they make you – Muhammad – the judge when they have the Taurat wherein is Allah’s judgment?” [Qur’an, 5:43]
The Qur’an also indicates that Christians should be judging matters in accordance with the guidance [Injeel] which had been given to them …
“And the followers of the Injeel should have judged by what Allah revealed in it; and whoever did not judge by what Allah revealed, those are they who are transgressors.” [Qur’an, 5:47].
Moreover, the Prophet is also told in the Qur’an that if the Jews and Christians come to him for purposes of seeking judgment in a matter, then:
“… judge between them or turn aside from them, and if you turn aside from them, they will not harm you in any way; and if you should decide to serve as a judge, then judge between them with equity; surely God loves those who judge equitably.” [Qur’an, 5:42]
The choice of whether, or not, to decide issues which were brought to him by people from the Christian and/or Jewish community was up to the Prophet. He was made keeper over their affairs and, in fact, the Prophet was reminded – as noted in the foregoing commentary – that both the Christian and the Jewish peoples had been given their own means of deciding matters through the Torah of Moses and the Injeel of Jesus (peace be upon him).
The Prophet Muhammad (peace be upon him) is no longer with us in a physical form. The Companions are no longer with us in a physical form.
For the most part, we do not have access to the intentions through which the Prophet or the first four caliphs made their decisions and judgments concerning the regulation of public space. If the Prophet were with us now as a physical presence to which we had ready access, one cannot be sure that he necessarily would decide matters today concerning the regulation of public space exactly as he did more than 1400 years ago when circumstances, conditions, history, culture, and needs were very much different than they are today. Yet, there are people today who have arrogated to themselves the presumption that they know what the Prophet would do or how he would decide matters concerning the regulation of public space if he were here with us in the present set of circumstances.
It is reported that a person wanted to place a book written by Imam Malik in the Sacred Mosque. Apparently, the idea behind that individual’s desire was so that people coming to the Sacred Mosque might discover the book, read it, and, God willing, learn something from its contents. When Imam Malik heard about the person’s desire to place one of the Imam’s books in the Sacred Mosque, Imam Malik indicated that he was not in favor of such an action.
Imam Malik is reported to have said: “The companions of the Messenger of Allah disagreed about the branches and dispersed to different countries, and each one is correct.” He further commented: “The people have handed over to them positions, and they heard hadith and they examined reports, and each people takes what was handed over to them, and they yield to Allah with it. So, leave the people alone and what they choose for themselves in every country.”
The Qur’an reminds us that:
“… for every one of you did We appoint a law and a way, and if Allah had wished He would have made you a single people, but that He might try you in what He gave you, therefore strive with one another to hasten to virtuous deeds; to Allah is your return of all, so He will let you know that in which you differed;” [Qur’an, 5:48]
Prior to becoming Caliph, Hazrat Abu Bakr (may Allah be pleased with him) said:
"Listen to me, ye people. Those of you who worshipped Muhammad know that he is dead like any other mortal. But those of you who worship the God of Muhammad (peace and blessings be upon him) know that He is alive and would live forever."
Then he repeated a passage from the Qur’an:
"And Muhammad is no more than an apostle; apostles have already passed away before him; if then he dies or is killed will you turn back upon your heels? And whoever turns back upon his heels, he will by no means do harm to Allah in the least and Allah will reward the grateful.” [Qur’an, 3:144]
Public space should be governed in a way that prevents oppression, exploitation, or abuse of any kind to undermine or interfere with people’s basic right – which is granted by God – to decide the spiritual direction of their path in life. This is a right and a freedom which each human being has so long as whatever acts arise out of such choices do not spill over into the lives of other individuals and, in the process, adversely or problematically affect the latter’s ability to freely chose and act with respect to their own individual course in life.
The public space, or commons, should be governed through principles of justice, equitability, peace, tolerance, integrity, honesty, charitableness, freedom, compassion, balance, harmony, and the sort of mediated settlements which help limit, if not eliminate all together, all forms of oppression, persecution, abuse, and exploitation. A public space governed in accordance with the foregoing qualities will, if God wishes, generate the type of environment which may prove to be most conducive to the exercise of the basic right to choose between good and evil – a responsibility which belongs to each and every human being.
If one looks to the example of the Prophet, the public space of his community was regulated in accordance with all of the foregoing considerations. He did not force people to pursue shari‘ah but, rather, regulated public space in such a way as to provide people with the fullest opportunity to individually pursue shari‘ah as rigorously as the latter individuals were so inclined to do as long as that pursuit did not infringe upon the right of others to do as they were inclined to do with respect to their own individual journey of shari‘ah. Moreover, quite frequently, the Prophet made judgments concerning the regulation of public space which were in accordance with pre-Islamic, customary practices of the Arab or Jewish tribes.
The Qur’an instructed the Prophet to:
“Say: ‘This is the truth from your Lord’, then, whoever wills let him believe, and whoever wills let him disbelieve.” [Qur’an, 18:29]
At another juncture the Qur’an informs the Prophet:
“You shall remind; you are entrusted to remind. You are not a watcher over them.” [Qur’an, 88:21-22]
And, at another point, the Qur’an indicates:
“Say, ‘Obey Allah, and obey the Messenger.’ If they refuse, then, he is responsible for his obligations, and you are responsible for your obligations. If you obey him, you will be guided.” [24:54]
Moreover, the Qur’an states:
“The guiding of them is not thy duty (O Muhammad), but Allah guides whom He will.” [Qur’an 2: 272).
If, according to the Qur’an, the Prophet is not responsible for the guiding of people to God, and if the duty of the Prophet is not to watch over whether, or not, people pursue shari‘ah, and if God is making it clear that it is up to the individual as to whether he or she believes in the truth which has been sent through the Qur’an and that each person has her or his own responsibility with respect to God, then, why do Muslim religious scholars, imams, theologians, mullahs, leaders, and the like all believe they have duties and responsibilities which were not entrusted to the Prophet? And, in the light of the foregoing considerations from the Qur’an, what is the source of their authority for assuming such duties and responsibilities?
Some religious scholars, would-be leaders, and theologians point to the following Quranic ayat as a possible source for what they consider their ‘rightful’ authority over people:
“O believers! Obey Allah, obey the Rasool and those charged with authority among you. Should you have a dispute in anything, refer it to Allah and His Rasool, if you truly believe in Allah and the Last Day. This course of action will be better and more suitable.” (Qur’an 4:59)
When would-be leaders cite the foregoing verse and seek to use it as an authority for expecting, if not demanding, that others should be obedient to the former, those who approach things in this manner are not only making several questionable assumptions, but, as well, such individuals often tend to act contrary to the full text of the guidance. More specifically, an assumption is being made that the sort of ‘authority’ to which the previous Quranic verse alludes is referring to worldly authority as opposed to spiritual authority, and a further assumption is being made that such individuals have been “charged” or given responsibility by God – or the Prophet Muhammad (peace be upon him) -- to exercise authority over other individuals. Furthermore, when disputes arise in the community, then, contrary to the guidance of the Qur’an, such religious and political leaders often do not refer the matter to either Allah or the Prophet, but, instead, attempt to decide the matter according to their own theological likes and dislikes – with the assistance of imams, mullahs, and religious scholars who are loyal to those leaders -- and, then, seek to impose – forcibly, if necessary -- their decisions on others.
The Prophet had a unique position within the Muslim community. Under the Divinely-sanctioned circumstances surrounding such a standing, the public, for the most part, did not wish to place constraints on what the Prophet could and could not do. This would have been antithetical to the nature of his position and the Divine authority in which his position was rooted – something which, after all was said and done, most [but not all] people in the community acknowledged and accepted.
However, there were those who came after the Prophet [and I do not necessarily have the four ‘righteous Caliphs’ in mind here] who enjoyed something very similar to the status of the Prophet within the Muslim community. As a result, those individuals became rulers in a more or less absolute sense without necessarily having that status sanctioned by Divinity, even though, obviously, such rulers were permitted by God to do whatever they did.
The Prophet had appointed no one to succeed him with respect to the regulation of public – as opposed to spiritual – space. On the other hand, the individuals who followed the Prophet as leaders of the community often were supported through the general trust of the public with respect to the presumed character, morality, piety, and good intentions of whoever it was that became ruler.
Once someone was elected to lead the community – and this was usually by a small group of individuals rather than the community as a whole – or in those cases where a current caliph appointed a successor – and this tended to be the case quite frequently because fathers tended to appoint their sons as their successors -- the general public would be required, en masse, to take ba’yt, or an oath of allegiance, with respect to the individual who would be king or sultan. Unfortunately, such a process offered few, if any, avenues through which a person might opt out of that oath or agreement either before or after the oath of allegiance was to be given, nor did that system permit or encourage the general public to play much of a rigorous, active role in determining who would be ruler or whether, or not, there should only be a single leader for the community -- as opposed to some sort of system of self-governance in which shura or consultation was used as the means through which to address the problems which confront a given community in accordance with the Quranic guidance which says:
“And their rule is to take counsel among themselves …” [Qur’an, 42:38]
In addition, apparently, many people forgot what Hazrat Abu Bakr Siddiq (may Allah be pleased with him) said upon becoming Caliph:
“Obey me as long as I obey Allah and His Prophet. When I disobey Him and His Prophet, then obey me not.”
Hazrat Abu Bakr Siddiq (may Allah be pleased with him) was alluding to the right of people to opt out of their oath of allegiance to him – or to any leader. The determining factor was not the identity of the leader, but, rather, the determining factor was whether, or not, such a person was acting in accordance with the guidance of the Qur’an or the example of the Prophet Muhammad (peace be upon him).
The belief that there should be just one leader who was either given or assumed authority to do whatever he deemed to be appropriate became corrupted within a fairly short period of time following the passing away of the Prophet. When this sort of corruption was thoroughly entrenched and became institutionally calcified, many people apparently had considerable difficulty grasping the idea that the Qur’an actually served as, among other things, a Bill of Rights that was intended to protect people against oppression, exploitation, or abuse from their political or religious leaders. This sort of difficulty was maintained and perpetuated through the manner in which, on the one hand, the sultans and kings, and, on the other hand, various imams, qadis, muftis, and theological scholars would engage in reciprocal back-scratching among themselves with respect to mutually framing the historical situation in such a way that the majority of the community were induced to believe that both the leaders and their theological accomplices were the proper guardians and representatives of Sacred Law, despite the fact that many of these individuals might not have recognized the nature of Sacred Law or shari‘ah even if the former tripped over the latter.
The regulation of public space is one issue, and the pursuit of shari‘ah is quite another matter and completely independent of how public space is to be regulated. To seek to impose on others, through the public space, one’s own ideas about what the nature of the spiritual journey ought to involve is to engage in a form of spiritual abuse.
When anyone – imam, mufti, theologian, scholar, leader, qadi, mullah – seeks to control the spirituality of another human being, then, that the former individual has transgressed due limits and has entered into the realm of spiritual abuse or exploitation, and, therefore, oppression. As the Qur’an reminds us:
“Fight in the cause of Allah those who fight you, but do not transgress the limits, for God does not love the transgressors. [Qur’an, 2:190]
“… tumult and oppression are worse than slaughter.”[Qur’an, 2:191]
“And fight them till there is no more oppression, and Deen should only be for Allah, but if they desist, then there should be no hostility except against the oppressor.” [Qur’an, 2:193]
The foregoing is not sanctioning leaders to force Deen upon people, but, rather, the foregoing ayat is a reminder to everyone – especially leaders -- that Deen belongs to Allah and should not be interfered with or undermined by anyone. Moreover, when Deen – that is, the process of nurturing and enhancing the relationship of an individual with God, and, indeed, this is the cause of Allah -- is subject to oppression, then people have the right to resist such aggression so long as the form of that resistance does not transgress due limits of propriety, and one of the limits of propriety is that resistance should only be directed toward those who are being oppressive … no one else.
Indeed, as the Qur’an makes clear elsewhere:
“The blame is only against those who oppress human beings with wrong-doing and
insolently transgress beyond bounds through the land defying right and justice.” [Qur’an, 42:42]
The foregoing remains true even when the ones who are doing the oppressing are the very ones – in the form of religious or political leaders – who supposedly have assumed responsibility for protecting the people against such oppression.
Scholarly debates, rigorous research, discussions, informal conversations, symposia, conferences, round-table sessions, formal talks, books, articles, podcasts, television programs, documentaries, educational programs, and so on, are all legitimate venues through which to exchange views, ideas, and various considerations concerning problems, questions, and issues of spirituality. The foregoing are all legitimate venues through which people may consult with one another on such matters – provided there is no compulsion or oppression involved in these activities either with respect to the matter of attending these sort of exchanges or with respect to having to abide by what is said during those sessions.
In this respect, the Qur’an indicates:
“Call to the way of your Lord with wisdom and goodly exhortation, and have disputations with them in the best manner.” [Qur’an, 16:125]
Although the foregoing guidance was specifically addressed to the Prophet, and although the calling others to the way of God is not the responsibility of a non-Prophet, nonetheless, when one engages in discussions with others concerning various issues, problems, and questions affecting the quality of public space, one still can follow the sunna of the Prophet in such matters and, thereby, seek to do so “with wisdom and goodly exhortation, and have disputations with them in the best manner.”
“O ye who believe! Be upright for Allah, bearers of witness with justice, and let not hatred of a people incite or seduce you not to act equitably; act equitably, that is nearer to piety (taqwa) , and be careful with respect to Allah, surely Allah is aware of what you do.” ‘Qur’an, 5:8]
The public space or commons should not be operated in accordance with any philosophy or theology of public policy which imposes economic, legal, political, physical, moral, intellectual, educational, or cultural agendas on the members of the community who inhabit that public space. The sole task of governance is to guard against the emergence of any kind of oppression, exploitation, or abuse which may arise within the community or which threatens such a community from an external source.
Moreover, all members of the community have a duty of care toward themselves and others to contribute to helping those who are entrusted with governance to succeed in their sole task and responsibility concerning the struggle against oppression, along with the close cousins of oppression – namely, exploitation and abuse.
God:
“… made the balance, That you may not be inordinate [exceed limits, or transgress boundaries] in respect of the measure. And keep up the balance with equity and do not make the measure deficient. [Qur’an, 55:7-9]
The balance, the measure, equity, and taqwa are all expressions of truth and justice. They are all expressions of the Sacred Law. They are all expressions of a realized shari‘ah.
Determining the hukm or realities of such truths are challenges to which, God willing, individuals must aspire. They are not challenges which can be imposed on people or with respect to which compulsion is appropriate.
On the other hand, the ones who are entrusted to exercise governance have a duty of care to assist oppressors not to oppress others -- including themselves. Indeed, the Prophet is reported to have said that one should “Assist any person who is oppressed – whether Muslim or non-Muslim.”
The primary forms of oppression, exploitation and abuse come in the form of those actions which are likely to undermine or interfere with an individual’s God-given right to pursue, or not pursue, the realities and truths of Sacred Law and shari‘ah according to the nature of that person’s capacity, circumstances, level of understanding, inclinations, and God’s Grace … so long as the exercise of such choice does not interfere with, or undermine, the right of others to address such issues in their own manner. All other expressions of oppression, exploitation, and abuse are variations on the foregoing theme.
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There has been a great deal of confusion in the Muslim community swirling among questions about the possible relationship between, on the one hand, what may have been done in the lifetime of the Prophet -- as well as during the lifetimes of the Companions of the Prophet over the course of the reign of the first four caliphs -- in relation to the issue of regulating public space, and, on the other hand, what may be appropriate to do today in relation to the same issue involving the regulation of public space. The root of the term ‘hukumah’ [governance] refers to a process of seeking to assist an oppressor not to oppress, and such assistance includes helping those who would exercise this responsibility – that is, political and religious leaders … i.e., the government itself – to refrain from any inclination existing within such governance to oppress, exploit, or abuse those whom such governance is supposed to be protecting from these very problems.
The Qur’an says:
“And if there had not been Allah’s repelling of some people by others, certainly there would have been torn down cloisters, and churches, and synagogues, and mosques in which Allah’s name is much mentioned; and surely Allah will help the one who helps His cause; most surely Allah is Strong, Mighty. [Qur’an, 22:39-40]
Hukumah or governance is one of the means through which Allah repels the oppression of some people by others. Moreover, it is important to note that God alludes to the right of those who worship in cloisters, churches, synagogues, and mosques to all be free to remember, worship, and invoke the name of God in their own manner.
There is a Hadith which relates the story of Abu ‘l-Husayn, a companion of the Prophet, whose two sons had been converted to Christianity in Medina by two Syrian merchants and then accompanied those merchants back to Syria. When Abu ‘l-Husayn heard of this, he went to the Prophet and sought permission to go after his sons and bring them back – not only to Medina but to Islam. In answer, the Prophet recited the Qur’an: “There is no compulsion in Deen, truly the right way has become clearly distinct from error.”[Qur’an, 2:256] Upon hearing the foregoing, Abu ‘l-Husayn let his sons go their own way.
When Abu Bakr Sidiq (may Allah be pleased with him) was Caliph [died in the 13th year after hijrah and was Caliph from 632 A.D. to 634 A.D.] he sent the Muslim army into Syria. As he did so, he issued the following guidance:
“When you enter the land, kill neither old men, women, nor children. … Establish a covenant with every people and city who receive you peacefully, give them your assurances, and let them live according to their laws.”
The Prophet, as well as the first four caliphs, all made decisions concerning the regulation of the public space, but these decisions were not shari‘ah, per se. As has been pointed out repeatedly during this essay, shari‘ah is an expression of a person’s private spiritual journey in search of reality or the truth concerning human existence and the place of such existence in the scheme of things, whereas the decisions of the Prophet and the first four Caliphs were particularized applications of their understanding of, and insight into, the nature of Divine guidance which had been given to them and were intended to address the circumstances, history, conditions, problems, cultures, capabilities, and issues of those times.
As the Prophet was instructed to say:
“This is my way. I call to God– I and whoever follows me being certain.” [Qur’an, 12:108]
Just as the appropriate times for fasting, pilgrimage, and prayers are to be observed within a certain timeframe, so, too, there may be an appropriate timeframe or contingency-based set of considerations concerning the application of certain other facets of the Qur’an. However, in order to determine the truth of such matters, one needs to call upon Allah – not books of fiqh, jurisprudence, judicial precedent, or legislation.
In the Qur’an, the Jews are told that they should have judged matters in accordance with the guidance which had been given to them …
“And why do they make you – Muhammad – the judge when they have the Taurat wherein is Allah’s judgment?” [Qur’an, 5:43]
The Qur’an also indicates that Christians should be judging matters in accordance with the guidance [Injeel] which had been given to them …
“And the followers of the Injeel should have judged by what Allah revealed in it; and whoever did not judge by what Allah revealed, those are they who are transgressors.” [Qur’an, 5:47].
Moreover, the Prophet is also told in the Qur’an that if the Jews and Christians come to him for purposes of seeking judgment in a matter, then:
“… judge between them or turn aside from them, and if you turn aside from them, they will not harm you in any way; and if you should decide to serve as a judge, then judge between them with equity; surely God loves those who judge equitably.” [Qur’an, 5:42]
The choice of whether, or not, to decide issues which were brought to him by people from the Christian and/or Jewish community was up to the Prophet. He was made keeper over their affairs and, in fact, the Prophet was reminded – as noted in the foregoing commentary – that both the Christian and the Jewish peoples had been given their own means of deciding matters through the Torah of Moses and the Injeel of Jesus (peace be upon him).
The Prophet Muhammad (peace be upon him) is no longer with us in a physical form. The Companions are no longer with us in a physical form.
For the most part, we do not have access to the intentions through which the Prophet or the first four caliphs made their decisions and judgments concerning the regulation of public space. If the Prophet were with us now as a physical presence to which we had ready access, one cannot be sure that he necessarily would decide matters today concerning the regulation of public space exactly as he did more than 1400 years ago when circumstances, conditions, history, culture, and needs were very much different than they are today. Yet, there are people today who have arrogated to themselves the presumption that they know what the Prophet would do or how he would decide matters concerning the regulation of public space if he were here with us in the present set of circumstances.
It is reported that a person wanted to place a book written by Imam Malik in the Sacred Mosque. Apparently, the idea behind that individual’s desire was so that people coming to the Sacred Mosque might discover the book, read it, and, God willing, learn something from its contents. When Imam Malik heard about the person’s desire to place one of the Imam’s books in the Sacred Mosque, Imam Malik indicated that he was not in favor of such an action.
Imam Malik is reported to have said: “The companions of the Messenger of Allah disagreed about the branches and dispersed to different countries, and each one is correct.” He further commented: “The people have handed over to them positions, and they heard hadith and they examined reports, and each people takes what was handed over to them, and they yield to Allah with it. So, leave the people alone and what they choose for themselves in every country.”
The Qur’an reminds us that:
“… for every one of you did We appoint a law and a way, and if Allah had wished He would have made you a single people, but that He might try you in what He gave you, therefore strive with one another to hasten to virtuous deeds; to Allah is your return of all, so He will let you know that in which you differed;” [Qur’an, 5:48]
Prior to becoming Caliph, Hazrat Abu Bakr (may Allah be pleased with him) said:
"Listen to me, ye people. Those of you who worshipped Muhammad know that he is dead like any other mortal. But those of you who worship the God of Muhammad (peace and blessings be upon him) know that He is alive and would live forever."
Then he repeated a passage from the Qur’an:
"And Muhammad is no more than an apostle; apostles have already passed away before him; if then he dies or is killed will you turn back upon your heels? And whoever turns back upon his heels, he will by no means do harm to Allah in the least and Allah will reward the grateful.” [Qur’an, 3:144]
Public space should be governed in a way that prevents oppression, exploitation, or abuse of any kind to undermine or interfere with people’s basic right – which is granted by God – to decide the spiritual direction of their path in life. This is a right and a freedom which each human being has so long as whatever acts arise out of such choices do not spill over into the lives of other individuals and, in the process, adversely or problematically affect the latter’s ability to freely chose and act with respect to their own individual course in life.
The public space, or commons, should be governed through principles of justice, equitability, peace, tolerance, integrity, honesty, charitableness, freedom, compassion, balance, harmony, and the sort of mediated settlements which help limit, if not eliminate all together, all forms of oppression, persecution, abuse, and exploitation. A public space governed in accordance with the foregoing qualities will, if God wishes, generate the type of environment which may prove to be most conducive to the exercise of the basic right to choose between good and evil – a responsibility which belongs to each and every human being.
If one looks to the example of the Prophet, the public space of his community was regulated in accordance with all of the foregoing considerations. He did not force people to pursue shari‘ah but, rather, regulated public space in such a way as to provide people with the fullest opportunity to individually pursue shari‘ah as rigorously as the latter individuals were so inclined to do as long as that pursuit did not infringe upon the right of others to do as they were inclined to do with respect to their own individual journey of shari‘ah. Moreover, quite frequently, the Prophet made judgments concerning the regulation of public space which were in accordance with pre-Islamic, customary practices of the Arab or Jewish tribes.
The Qur’an instructed the Prophet to:
“Say: ‘This is the truth from your Lord’, then, whoever wills let him believe, and whoever wills let him disbelieve.” [Qur’an, 18:29]
At another juncture the Qur’an informs the Prophet:
“You shall remind; you are entrusted to remind. You are not a watcher over them.” [Qur’an, 88:21-22]
And, at another point, the Qur’an indicates:
“Say, ‘Obey Allah, and obey the Messenger.’ If they refuse, then, he is responsible for his obligations, and you are responsible for your obligations. If you obey him, you will be guided.” [24:54]
Moreover, the Qur’an states:
“The guiding of them is not thy duty (O Muhammad), but Allah guides whom He will.” [Qur’an 2: 272).
If, according to the Qur’an, the Prophet is not responsible for the guiding of people to God, and if the duty of the Prophet is not to watch over whether, or not, people pursue shari‘ah, and if God is making it clear that it is up to the individual as to whether he or she believes in the truth which has been sent through the Qur’an and that each person has her or his own responsibility with respect to God, then, why do Muslim religious scholars, imams, theologians, mullahs, leaders, and the like all believe they have duties and responsibilities which were not entrusted to the Prophet? And, in the light of the foregoing considerations from the Qur’an, what is the source of their authority for assuming such duties and responsibilities?
Some religious scholars, would-be leaders, and theologians point to the following Quranic ayat as a possible source for what they consider their ‘rightful’ authority over people:
“O believers! Obey Allah, obey the Rasool and those charged with authority among you. Should you have a dispute in anything, refer it to Allah and His Rasool, if you truly believe in Allah and the Last Day. This course of action will be better and more suitable.” (Qur’an 4:59)
When would-be leaders cite the foregoing verse and seek to use it as an authority for expecting, if not demanding, that others should be obedient to the former, those who approach things in this manner are not only making several questionable assumptions, but, as well, such individuals often tend to act contrary to the full text of the guidance. More specifically, an assumption is being made that the sort of ‘authority’ to which the previous Quranic verse alludes is referring to worldly authority as opposed to spiritual authority, and a further assumption is being made that such individuals have been “charged” or given responsibility by God – or the Prophet Muhammad (peace be upon him) -- to exercise authority over other individuals. Furthermore, when disputes arise in the community, then, contrary to the guidance of the Qur’an, such religious and political leaders often do not refer the matter to either Allah or the Prophet, but, instead, attempt to decide the matter according to their own theological likes and dislikes – with the assistance of imams, mullahs, and religious scholars who are loyal to those leaders -- and, then, seek to impose – forcibly, if necessary -- their decisions on others.
The Prophet had a unique position within the Muslim community. Under the Divinely-sanctioned circumstances surrounding such a standing, the public, for the most part, did not wish to place constraints on what the Prophet could and could not do. This would have been antithetical to the nature of his position and the Divine authority in which his position was rooted – something which, after all was said and done, most [but not all] people in the community acknowledged and accepted.
However, there were those who came after the Prophet [and I do not necessarily have the four ‘righteous Caliphs’ in mind here] who enjoyed something very similar to the status of the Prophet within the Muslim community. As a result, those individuals became rulers in a more or less absolute sense without necessarily having that status sanctioned by Divinity, even though, obviously, such rulers were permitted by God to do whatever they did.
The Prophet had appointed no one to succeed him with respect to the regulation of public – as opposed to spiritual – space. On the other hand, the individuals who followed the Prophet as leaders of the community often were supported through the general trust of the public with respect to the presumed character, morality, piety, and good intentions of whoever it was that became ruler.
Once someone was elected to lead the community – and this was usually by a small group of individuals rather than the community as a whole – or in those cases where a current caliph appointed a successor – and this tended to be the case quite frequently because fathers tended to appoint their sons as their successors -- the general public would be required, en masse, to take ba’yt, or an oath of allegiance, with respect to the individual who would be king or sultan. Unfortunately, such a process offered few, if any, avenues through which a person might opt out of that oath or agreement either before or after the oath of allegiance was to be given, nor did that system permit or encourage the general public to play much of a rigorous, active role in determining who would be ruler or whether, or not, there should only be a single leader for the community -- as opposed to some sort of system of self-governance in which shura or consultation was used as the means through which to address the problems which confront a given community in accordance with the Quranic guidance which says:
“And their rule is to take counsel among themselves …” [Qur’an, 42:38]
In addition, apparently, many people forgot what Hazrat Abu Bakr Siddiq (may Allah be pleased with him) said upon becoming Caliph:
“Obey me as long as I obey Allah and His Prophet. When I disobey Him and His Prophet, then obey me not.”
Hazrat Abu Bakr Siddiq (may Allah be pleased with him) was alluding to the right of people to opt out of their oath of allegiance to him – or to any leader. The determining factor was not the identity of the leader, but, rather, the determining factor was whether, or not, such a person was acting in accordance with the guidance of the Qur’an or the example of the Prophet Muhammad (peace be upon him).
The belief that there should be just one leader who was either given or assumed authority to do whatever he deemed to be appropriate became corrupted within a fairly short period of time following the passing away of the Prophet. When this sort of corruption was thoroughly entrenched and became institutionally calcified, many people apparently had considerable difficulty grasping the idea that the Qur’an actually served as, among other things, a Bill of Rights that was intended to protect people against oppression, exploitation, or abuse from their political or religious leaders. This sort of difficulty was maintained and perpetuated through the manner in which, on the one hand, the sultans and kings, and, on the other hand, various imams, qadis, muftis, and theological scholars would engage in reciprocal back-scratching among themselves with respect to mutually framing the historical situation in such a way that the majority of the community were induced to believe that both the leaders and their theological accomplices were the proper guardians and representatives of Sacred Law, despite the fact that many of these individuals might not have recognized the nature of Sacred Law or shari‘ah even if the former tripped over the latter.
The regulation of public space is one issue, and the pursuit of shari‘ah is quite another matter and completely independent of how public space is to be regulated. To seek to impose on others, through the public space, one’s own ideas about what the nature of the spiritual journey ought to involve is to engage in a form of spiritual abuse.
When anyone – imam, mufti, theologian, scholar, leader, qadi, mullah – seeks to control the spirituality of another human being, then, that the former individual has transgressed due limits and has entered into the realm of spiritual abuse or exploitation, and, therefore, oppression. As the Qur’an reminds us:
“Fight in the cause of Allah those who fight you, but do not transgress the limits, for God does not love the transgressors. [Qur’an, 2:190]
“… tumult and oppression are worse than slaughter.”[Qur’an, 2:191]
“And fight them till there is no more oppression, and Deen should only be for Allah, but if they desist, then there should be no hostility except against the oppressor.” [Qur’an, 2:193]
The foregoing is not sanctioning leaders to force Deen upon people, but, rather, the foregoing ayat is a reminder to everyone – especially leaders -- that Deen belongs to Allah and should not be interfered with or undermined by anyone. Moreover, when Deen – that is, the process of nurturing and enhancing the relationship of an individual with God, and, indeed, this is the cause of Allah -- is subject to oppression, then people have the right to resist such aggression so long as the form of that resistance does not transgress due limits of propriety, and one of the limits of propriety is that resistance should only be directed toward those who are being oppressive … no one else.
Indeed, as the Qur’an makes clear elsewhere:
“The blame is only against those who oppress human beings with wrong-doing and
insolently transgress beyond bounds through the land defying right and justice.” [Qur’an, 42:42]
The foregoing remains true even when the ones who are doing the oppressing are the very ones – in the form of religious or political leaders – who supposedly have assumed responsibility for protecting the people against such oppression.
Scholarly debates, rigorous research, discussions, informal conversations, symposia, conferences, round-table sessions, formal talks, books, articles, podcasts, television programs, documentaries, educational programs, and so on, are all legitimate venues through which to exchange views, ideas, and various considerations concerning problems, questions, and issues of spirituality. The foregoing are all legitimate venues through which people may consult with one another on such matters – provided there is no compulsion or oppression involved in these activities either with respect to the matter of attending these sort of exchanges or with respect to having to abide by what is said during those sessions.
In this respect, the Qur’an indicates:
“Call to the way of your Lord with wisdom and goodly exhortation, and have disputations with them in the best manner.” [Qur’an, 16:125]
Although the foregoing guidance was specifically addressed to the Prophet, and although the calling others to the way of God is not the responsibility of a non-Prophet, nonetheless, when one engages in discussions with others concerning various issues, problems, and questions affecting the quality of public space, one still can follow the sunna of the Prophet in such matters and, thereby, seek to do so “with wisdom and goodly exhortation, and have disputations with them in the best manner.”
“O ye who believe! Be upright for Allah, bearers of witness with justice, and let not hatred of a people incite or seduce you not to act equitably; act equitably, that is nearer to piety (taqwa) , and be careful with respect to Allah, surely Allah is aware of what you do.” ‘Qur’an, 5:8]
The public space or commons should not be operated in accordance with any philosophy or theology of public policy which imposes economic, legal, political, physical, moral, intellectual, educational, or cultural agendas on the members of the community who inhabit that public space. The sole task of governance is to guard against the emergence of any kind of oppression, exploitation, or abuse which may arise within the community or which threatens such a community from an external source.
Moreover, all members of the community have a duty of care toward themselves and others to contribute to helping those who are entrusted with governance to succeed in their sole task and responsibility concerning the struggle against oppression, along with the close cousins of oppression – namely, exploitation and abuse.
God:
“… made the balance, That you may not be inordinate [exceed limits, or transgress boundaries] in respect of the measure. And keep up the balance with equity and do not make the measure deficient. [Qur’an, 55:7-9]
The balance, the measure, equity, and taqwa are all expressions of truth and justice. They are all expressions of the Sacred Law. They are all expressions of a realized shari‘ah.
Determining the hukm or realities of such truths are challenges to which, God willing, individuals must aspire. They are not challenges which can be imposed on people or with respect to which compulsion is appropriate.
On the other hand, the ones who are entrusted to exercise governance have a duty of care to assist oppressors not to oppress others -- including themselves. Indeed, the Prophet is reported to have said that one should “Assist any person who is oppressed – whether Muslim or non-Muslim.”
The primary forms of oppression, exploitation and abuse come in the form of those actions which are likely to undermine or interfere with an individual’s God-given right to pursue, or not pursue, the realities and truths of Sacred Law and shari‘ah according to the nature of that person’s capacity, circumstances, level of understanding, inclinations, and God’s Grace … so long as the exercise of such choice does not interfere with, or undermine, the right of others to address such issues in their own manner. All other expressions of oppression, exploitation, and abuse are variations on the foregoing theme.
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