Various religious scholars, theologians, and mullahs want shari‘ah to cover commercial/economic, penal, real estate, contract, tort, inheritance, family, tax, government, and international law. However, none of these considerations – however important they may be under certain circumstances -- is the purpose of shari‘ah.
Naturally, to the extent that individuals realize the purpose of shari‘ah, then, the water drunk at the end of the road that is followed during the process of observing shari‘ah – both as a spiritual means and as a goal -- will have ramifications for all of the foregoing legal considerations. This is true with respect to the modes of equitability, as well as the quality of the character traits, through which people engage one another in their respective dealings. This also is true with respect to the manner in which a person who has responsibility for helping to arbitrate and mediate conflicts within a community is able to bring spiritual wisdom or insight to bear to assist people to come to harmonious solutions to such conflicts.
Nonetheless, shari‘ah is only for the individual. It is the individual’s path to truth, to reality, to the realization of fitra and essential identity, and, as such, shari‘ah is not a group path or legal journey … although, as indicated above, the realization of truth which, God willing, takes place, during the journey of shari‘ah does have ramifications for both group/social/community and juridical issues … but not in the sense which is usually believed to be the case.
Shari ‘ah cannot be forcibly imposed on anyone, nor can compulsory measures be used to impose such matters on others. Shari‘ah cannot be legislated, and when counsel is sought with respect to shari‘ah, one is not obligated to follow that counsel unless one’s heart resonates with what is being said or unless one’s heart resonates with the one who is offering the counsel, and, therefore, one has faith in the counsel being offered and provided that the counsel being offered does not induce one to impose that counsel on others or oppress others through such counsel.
Shari‘ah cannot be used as basis for institutional government of any kind. On the other hand, the fruits of pursuing and applying shari‘ah can benefit the manner through which public space is regulated.
The Prophet and the subsequent caliphs ruled in accordance with the truth to which shari‘ah opened them up. Nonetheless, their manner of regulating public space was not shari‘ah, per se.
During those early times, people who were not Muslim were not compelled to become Muslim or to act in accordance with Muslim spiritual traditions. Moreover, this absence of compulsion with respect to non-Muslims is the clearest indication possible that shari‘ah was neither compulsory, nor was it being imposed on communities, nor was it an integral part of the regulation of public space.
Rather, a public space or commons was being established through which people would have freedom of choice, as well as freedom from oppression, together with the promise of justice so that the opportunity to pursue shari‘ah in a peaceful manner would be available to everyone. Whatever laws were constructed with respect to commercial, penal, real estate, contract, tort, inheritance, family, and international issues were intended to serve no other purpose than to help establish a public space that was relatively peaceful, harmonious, and free from oppression of any kind and through which people would each, individually, have the opportunity to pursue [or not pursue] shari‘ah according to her or his individual choices.
Consequently, none of the foregoing sorts of laws concerning the regulation of public space carry any binding authority except to the extent that these arrangements give such substantial, demonstrable expression to principles of truth and justice that the people in the community are witnesses to the obvious benefit of those laws with respect to the manner in which they serve the public interest. Moreover, the public interest is served when an environment is created that is relatively free from oppression and injustice, as well as which gives people an array of degrees of freedom through which the members of that community may become committed to a rigorous seeking of truth and justice in all matters.
In the Qur’an, one finds the following guidance:
“No soul shall have imposed on it a duty but to the extent of its capacity.” [Qur’an, 2:233]
And again:
“We do not impose on any soul a duty except to the extent of its ability.” [Qur’an, 6:152]
And, again:
“And we do not lay on any soul a burden except to the extent of its ability. [Qur’an, 23:62]
And again:
“We do not impose on any soul a duty except to the extent of its ability.” [Qur’an, 7:42]
And, finally:
“Allah does not impose upon any soul a duty but to the extent of its ability; for it is (the benefit of) what it has earned and upon it (the evil of) what it has wrought: Our Lord! do not punish us if we forget or make a mistake; Our Lord! do not lay on us a burden as Thou did lay on those before us; Our Lord do not impose upon us that which we have not the strength to bear; and pardon us and grant us protection and have mercy on us; Thou art our Patron, so help us against the unbelieving people. [Qur’an, 2:286]
On five different occasions, the Qur’an confirms that Allah does not impose any burdens, duties, or obligations on an individual which are beyond the ability or capacity of a person. God knows what the capacity or ability of any given individual is, and Divinity does not exceed the limits inherent in those capacities.
As we, God willing, acquire more knowledge and come to gain a deeper understanding concerning our relationship with Allah, then, the nature of our spiritual status changes. As a result, there is more for which we can be held accountable as a function of such growth in understanding and knowledge, but this is a Divine accountability and not a human accountability as far as matters of Deen are concerned.
When human beings seek to impose shari‘ah – however construed – on others, such individuals are arrogating to themselves the status of Lordship. They are not only seeking to usurp God’s relationship with the individual, but they also are claiming – without any evidence -- that they know what the spiritual capacity of a given individual is.
In the process, limits are being transgressed. Allah sees the spiritual condition of human beings and knows what the limits of their capacities are, but theologians, jurists, imams, rulers, or legislators do not enjoy such a privileged position, and, therefore, they lack the knowledge and insight which would permit them to possess the wisdom to know what an individual’s God-determined limits are and act accordingly.
The Prophet was said to have spoken with people according to the level of understanding of the latter. Unfortunately, for the most part, the theologians and religious scholars of today tend to speak with people according to the level of understanding of the one who is doing the speaking – that is, the theologian or religious scholar – and, as such, lack all insight into the capacities, abilities, and levels of understanding of those being addressed.
The Prophet Muhammad is reported to have said: “What I have commanded you to do, perform it to the extent that you are able and refrain from what I have forbidden you to do.” [Bukhari, i‘tisam, 6; Muslim, fada’il, 130]
Here, again, there is an indication that shari‘ah is not a function of compulsion, nor is shari‘ah a matter of one size fitting all. The Prophet is alluding to the existence of differences in abilities and circumstances of various individuals, and those who are being addressed are being encouraged to comply with what has been said in accordance with what they are able to do rather than in accordance with what someone else – say a theologian, religious scholar, or the like -- expects such people to do.
“Each one does according to his rule of conduct, and thy Lord is best aware of the one whose way is right.” [Qur’an, 17: 84]
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There is a Hadith Qudsi which says:
“I am according to the impression that My worshipper has of Me [that is, God] so let the impression of Me be Good.” [Bukhari, tawhid, 15]
Theologians, imams, muftis, and jurists often rule in accordance with their own opinions about God. As a result, they tend to be inclined to impose on others that which is in accordance with their impression of God.
Apparently, the impression which all too many Muslim theologians, jurists, muftis, and religious scholars seem to have of God is that Allah is: petty, small-minded, vindictive, unforgiving, intolerant, cruel, punitive, arbitrary, mean-spirited, lacking in wisdom, oppressive, and in desperate need of obedience. Such a poor impression seems to be the case because these sorts of qualities often are reflected in their fatwas, pronouncements, rulings, and writings concerning the illicit attempts of these sorts of individuals to impose shari‘ah on others, and one presumes that they are acting in accordance with what their impression of God indicates is expected of them by God.
The word ‘qadi’ often is translated as ‘judge’. However, such a translation really doesn’t properly reflect the actual role that a qadi should have.
A qadi – in its original sense and usage -- refers to one who helps settle or decide an affair (‘qada’). Nevertheless, this process of settling an affair is not a matter of imposing a judgment on the various parties to the affair under consideration.
A qadi is not trying to impose a perspective which is external to either the particulars of the situation being explored or the individuals who are seeking a just resolution to that situation. Rather, the task of, and challenge facing, a qadi is one of trying to assist individuals to navigate among an array of spiritual possibilities and work their collective way toward a destination which will be a harmonious solution for everyone involved – without necessarily knowing, in any predetermined manner, what the nature of such a destination will be or what that destination might look like at the beginning of the journey.
As such, a qadi is more of a resource person, facilitator, and a communicator than she or he is a judge of matters. The parties to a given conflict are helped by a qadi to explore the nature of that conflict in terms of its history, perceptions concerning that history, the nature of community and/or family, different needs of the parties to the conflict or affair, various character traits, the abilities of the individuals involved, and ideas concerning the nature of justice.
A qadi encourages the participants to address and discuss issues in such a way that the participants are the ones who learn how to struggle their way toward arriving at an understanding concerning how their affair or situation might best be resolved. The qadi guides this exploratory discussion in accordance with a principle voiced by the Prophet Muhammad (peace be upon him) – namely, “la darar wa la dirar”, which in today’s parlance might be translated as ‘do no harm’.
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In the Qur’an one finds the following ayat:
“And it does not beseem the believers that they should go forth all together; why should not then a company from every party from among them go forth they may apply themselves to obtain understanding of deen, and that they may warn their people when they come back to them that they may be cautious. [Qur’an 9:122]
Fiqh is related to the word: tafaqquh which means understanding and, in the context of the foregoing Quranic ayat, the understanding which is being sought concerns the nature of Deen.
Furthermore, such understanding is not something which is to be imposed on people. Rather, the previous Quranic ayat says that those who seek such understanding are to use the knowledge which is obtained in order to “warn their people” so that those people “may be cautious” concerning matters of Deen.
In addition, the Qur’an indicates:
“We have revealed [anzallna] to you al-zikr [The Qur’an] so that you may explain to people what has been brought down [nuzila] to them; and that they may reflect.” [Qur’an, 16:44]
Sharia‘ah is not necessarily a matter of telling people what to do – although this may be so in some instances. Instead, the Qur’an indicates that people are having things explained to them concerning the nature of revelation or remembrance, and, then, those individuals are being asked to reflect on that which is being explicated so that they may take what is being said and have it inform their own shari‘ah or journey/struggle toward the truth.
The process of understanding Deen – tafaqquh fil-din – requires one to struggle toward becoming open or receptive to the hukm of Deen – that is, its governing principle, reality, or truth – in any given set of circumstances. Hakim is one of the Divine Names and refers to the One Who determines the property of a given aspect of reality, and, therefore, the individual is seeking to become open to the nature of the truth or reality which Allah, through the agency of being Hakim, establishes as the governing authority or principle or reality of something in a given set of circumstances.
In this context, one often hears the term Usul al-fiqh. Fiqh, as already indicated, refers to the process of struggling to reach an understanding concerning the nature of the hukm or governing reality of Deen within various circumstances, and the term usul refers to the sources or principles one needs to understand in order to be in a position to be able to counsel or warn others with respect to the nature of Deen.
The principles and sources which are to be understood are all contained in the Qur’an. After all, God has “neglected nothing in the Book.” [Qur’an, 6:38]
Fiqh is the process of engaging the Qur’an for purposes of struggling toward the truth with respect to revelation or guidance. Fiqh is a search for right understanding, right belief, right character, right action, and right balance in the pursuit of doing justice to the truth or hukm of individual lived circumstances.
Each novel situation presents the practitioner of fiqh with possibilities and choices in relation to selecting that which may be right, good, just, and/or appropriate behavior to pursue with respect to that which, God willing, might be of most spiritual benefit to an individual or individuals in a given context. Fiqh is the process of seeking to come to an appropriate understanding of the hukm – or reality and governing principle or authority -- for a given set of circumstances, and, then, using that understanding to establish what are appropriate ways for proceeding through or conducting oneself in such circumstances.
A qadi seeks to induce the parties to a conflict to engage in the process of fiqh concerning the affair or conflict or issue which brought the various parties. Collectively, those individuals seek to struggle, with the assistance of the qadi, toward arriving at an understanding of the hukm – that is, the governing principle or reality – which has authority in the matter at hand.
For many, there is a sense in which life takes on the appearance of a judicial proceeding. For example, Muslims believe there is to be a Day of Judgment. We are further informed that what we do, and do not do, will be used as evidence -- both in support of, as well as being counted against, us -- and that our hands, feet, and other bodily members will give testimony concerning various matters on the Day of Judgment. Muslims also believe that punishments and rewards are associated with the manner in which evidence and judgment intersect with one another. Muslims further believe that a record of everything one does in life is being maintained and that each of us will carry such a record in either our right hand in front of us or our left hand behind us on the Day of Judgment.
Given considerations like the foregoing, when shari‘ah and Sacred Law are mentioned together, many people are inclined to jump to the conclusion that Sacred Law and shari‘ah must be matters which give expression to legal injunctions. Nevertheless, one can stipulate to the truth of ideas involving: the Day of Judgment, evidence, testimony, a real-time record, punishment, or reward, and, yet, still maintain that the Sacred Law and shari‘ah are not, ultimately, about judicial proceedings but, rather, are about truth, knowledge, understanding, spiritual realization, essential identity, and the process of purification which is necessary to, God willing, put a person in the position of being receptive to whatever God may wish to disclose to that individual concerning the nature of Sacred Law and the process of shari‘ah.
Life consists of a series of opportunities through which to purify ourselves. For example, the Qur’an says:
That person prospers who purifies oneself, invokes the name of one’s Lord, and prays.”
[Qur’an, 87: 14].
And, again:
But those will prosper who purify (tazakka) themselves and glorify the Name of their Guardian Lord and lift their hearts in prayer. [Qur’an, 87: 14-15]
And, again:
“Those who spend their wealth for increase in self-purification and Have in their minds no favor from anyone for which a reward is expected in return, but only the desire to seek for the Countenance of their Lord Most High.” [Qur’an, 92:18-20].
This last ayat in particular indicates that the purpose of purification is linked only to a “desire to seek for the Countenace of their Lord Most high” – without any thought of reward. This theme is echoed in another verse of the Qur’an:
“Say: Surely, my prayer and my service of sacrifice, my life and death are all for Allah, the Lord of the worlds. [Qur’an, 6:162]
Or consider the following verses from Surah Shams [The Sun]:
In the Name of Allah, the Beneficent, the Merciful.
I swear by the sun and its brilliance,
And the moon when it follows the sun,
And the day when it shows it,
And the night when it draws a veil over it,
And the heaven and Him Who made it,
And the earth and Him Who extended it,
And the soul and Him Who made it perfect,
Then He inspired it to understand what is right and wrong for it;
He will indeed be successful who purifies it,
And he will indeed fail who corrupts it. [Qur’an, 91:1-10]
According to my shaykh, the rhetorical style of the Qur’an is such that whenever God wishes to draw attention to the importance of some given point, theme, or issue, oaths are used to introduce such a point, theme, or issue. The more oaths there are which occur prior the matter in question, the more important is the issue to which our attention is being directed.
Nowhere else in the Qur’an does one find as many oaths piled upon oaths as one does with respect to the opening verses of Surah Shams. To what is our attention being drawn and what is so important? – the process of purification.
What does purification lead to if God wishes? Purification leads to taqwa.
And, why is taqwa important? Because the one who is in a condition of taqwa is the one who, God willing, shall be taught knowledge and discernment by God.
“Be Godfearing [have taqwa], and God will teach you [Qur’an, 2:282]
In other words, be careful with respect to one’s relationship with Allah. Understand that such a relationship is rooted in the hallowed, sacred ground of Being and that one must seek to gain insight into that ground, and if one exercises due diligence in these respects, then, God willing, one will be taught knowledge by God.
“If you are godfearing (have taqwa), He will give you discernment [furqanan].” [Qur’an, 8:29]
The process of developing an appropriate awareness and respect for the sacredness of Divine presence is a work or ‘amal . This struggle is a form of remembrance or zikr.
With respect to what is one to be given discernment or about what is one to be taught? One is to be taught about, and given discrimination concerning, the nature of Sacred Law and the process of shari‘ah.
One of the prayers of the Qur’an is”
“O my Lord, increase me in knowledge.” [Qur’an, 20: 114]
One is seeking knowledge of the truth concerning the nature of the Sacred Laws governing the Created Universe and one’s place in it. One is seeking knowledge about the nature of shari‘ah and how that process both leads to, as well as is an expression of, the Sacred Law. One is striving toward an understanding of the hukm which governs, and has authority over, this or that aspect of being – including one’s own essential identity and spiritual capacity.
The five pillars and zikr [both in their role as basic, fundamental expressions of shari‘ah that are intended to be accessible to all, as well as in conjunction with their role as supererogatory extensions of those basic fundamentals] are ways, God willing, of striving toward taqwa. The five pillars and zikr are processes of purification which, God willing, helps rid one of everything which can serve as a source of distraction, distortion, bias, and corruption concerning our achieving a state of receptivity – that is, taqwa – with respect to the real teachings of spirituality involving the Sacred Laws of the Created Universe.
The five pillars are not the end of matters, but are, rather, the beginning of a process that is intended to lead one to the place of drinking the water or knowledge which, God willing, renders one receptive to the hukm of God’s Word or revelation. Nonetheless, there are many gradations of knowledge and understanding concerning such matters.
The five pillars and zikr which are practiced by a Muslim are engaged through a different understanding than are the five pillars and zikr which are observed by a Momin or Mohsin. The five pillars and zikr of the one who is a condition of taqwa is different from those who are not in such a spiritual condition. The five pillars and zikr of an ‘abd of Allah is different from the five pillars and zikr of someone who is not an ‘abd of Allah.
“Whoever submits one’s whole self to Allah and is a doer of good has indeed grasped the most trustworthy handhold.” [Qur’an, 31:22]
And, as well:
“O Humankind! Surely you are toiling towards the Lord, painfully toiling, but you shall meet Him … you shall surely travel from stage to stage.” [Qur’an, 84: 6, 9]
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Today, and for many centuries now, all too many Muslim religious scholars, theologians, imams, mullahs, and so on have sought to make the process of coming to a proper understanding of the nature of Sacred Law and shari‘ah an unnecessarily complex, convoluted, and a most difficult and contentious journey. According to such individuals, one must become familiar with some 1400 years worth of various people’s religious fatwas and theological meanderings, and/or one must become an apprentice with respect to some given madhhab or school of jurisprudence, and/or one must undertake to learn so many thousands of hadiths, and so on, before one can be said to be in a position to properly understand the nature of Sacred Law and shari‘ah.
However, the Qur’an says:
Allah does not desire to put on you any difficulty, but He wishes to purify you and that He may complete His favor on you, so that you may be grateful [Qur’an 5:6] -- ma yaridu Allahu li-ajala alaykum min haraj.
Shari‘ah is not a matter of intellectualized, rationalistic, or politicized engagements of the Qur’an. Shari‘ah is a process of purification entailing activities such as prayer, fasting, charitableness, pilgrimage, remembrance, service, worship, and the acquisition of character traits such as: gratitude, repentance, tolerance, perseverance, integrity, honesty, humility, nobility, forgiveness, patience, compassion, love, generosity, kindness, and so on – all of which will assist one to pursue shari’ah’s journey toward taqwa and, in turn -- if God wishes –to real, essential knowledge concerning both the nature of shari‘ah and the Sacred Law governing Created existence.
One pursues these activities as best one’s circumstances permit and according to one’s capacity to do so. To demand that more than this be done or to demand that people pursue this in accordance with someone’s theological interpretation of matters is to impose an oppressive difficulty on people, and, yet, this is precisely what all too many Muslim theologians, mullahs, and religious scholars would do when they claim that people must be made to act in accordance with those people’s arbitrary ideas concerning the nature of shari‘ah and the Sacred Law.
“And God wishes for you that which is easy, not what is difficult.” [Qur’an, 2:185]
That which is easy is not necessarily that which is without struggle. Rather, that which is easy is that which falls within one’s capacity to accomplish if one makes efforts in this regard and if God supports such efforts.
Through the process of purification, God is seeking to assist us to simplify our lives. In other words, God is wishing for us to have ease – at least as much as this is possible in this life – rather than difficulty.
When everything we do is distorted, filtered, framed, and corrupted by our biases, delusions, and false understandings, life becomes very difficult – much more difficult than it has to be. However, through the process of purification – that is, through the journey of shari‘ah -- one begins, God willing, to not only shed all the unnecessary conceptual and emotional baggage which we impose upon ourselves through our biases and false understanding concerning the nature of reality and ourselves, but, as well, one is brought to a station of taqwa where one is taught the kind of knowledge and discrimination by God which helps ease us through the ups and downs of lived existence.
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Showing posts with label qadi. Show all posts
Showing posts with label qadi. Show all posts
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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