Shari'ah: A Muslim's Declaration of Independence - Part 1

Introduction

In order to pre-empt, to some extent, some of the concerns which might arise in conjunction with the main focus of this essay concerning Sacred Law and shari‘ah, a few things need to be said in order to try to place things in an appropriate perspective before proceeding with the commentary proper. I am a Muslim, I love Islam, and I strive -- although God knows best with what degree of success -- to wholly submit myself to God because I accept as true that God: "created humankind and jinn only to worship" [Qur'an, 51:56] God.

I bear witness that God is one and that Muhammad is the Messenger of God. I make efforts to observe my prayers on a daily basis. I participate in the fast of Ramazan. I give zakat in accordance with my circumstances. I have, by the Grace of Allah, performed the rites of Hajj. In addition, I have faith that God is one and that Muhammad is the Messenger of God. I also have faith in the reality of angels, and I have faith in all the Books of revelation which have been sent to various messengers of Allah, and I have faith in the lineage of prophets who came prior to the appearance of the Seal of the Prophets, Muhammad (peace be upon him). I also have faith that there is a Day of Judgment during which most of us will be held accountable for our deeds and misdeeds, and, as well, I have faith that God is the sole determiner of good and evil.

I believe in Sacred Law and shari‘ah, but I do not approach these issues in a manner that is consonant with many traditional modes of engaging such matters. The fact that I do not share the belief of certain others concerning the nature of Sacred Law and shari‘ah does not make me – or those with whom I have differences on this subject -- an unbeliever, but rather this merely means that I have an alternative method for engaging the themes which are entailed by Sacred Law and shari‘ah.

For approximately 35 years, by the Grace of God, I have sought to serve the Muslim community in my own way and according to whatever abilities and opportunities God has given me. What I am seeking to do in the present essay, God willing, is to continue to serve the Muslim community, although I am sure that there will be those who will choose not to see things in this light.

I am not asking others to necessarily accept the perspective which is about to be put forth. Rather, I only ask people to reflect on what is being said and to strive for the truth of whatever issues may be raised through the following considerations.

*********************

A Brief Overview

I will begin by providing a set of brief overview statements concerning the themes that are to be explored in this essay. These are summary statements of the perspective which will be delineated, God willing, during the course of the essay which follows, but the order of appearance of these statements does not necessarily reflect the sequence in which issues will be engaged through the main body of the essay.

(1) The ways in which Sacred Law and shari‘ah are understood by many Muslims, in general, as well as by a variety of Muslim religious scholars, in particular, are often problematic, if not incorrect, in a number of respects;

(2) Sacred Law gives expression to the principles, realities, and truths [physical, spiritual, psychological, etc.] through which the Created Universe operates;

(3) Shari‘ah refers to the individual’s realization of that portion of Sacred Law which enables an individual to grasp truths, as God wishes, concerning one’s essential identity and spiritual capacity that, God willing, lead to the fulfillment of an array of rights concerning all manner of being – including those rights which are inherent in the individual himself or herself … and this is what is meant by the idea of being God’s vicegerent or khalifa on Earth;

(4) To the degree that shari‘ah is correctly understood and applied, it becomes a manifestation of Sacred Law;

(5) The journey toward shari‘ah is an individual pursuit, not a collective one – although the degree to which shari‘ah is properly realized may have ramifications for the social collective, and, as well, the manner in which the social collective is organized may have ramifications for the way in which shari‘ah is understood and/or pursued;

(6) While the Qur’an and the sunna of the Prophet Muhammad (peace be upon him) constitute the two most essential primary resources through which to engage and understand the nature of Islam, many of the customary ways of describing just what is entailed by this process are problematic, if not incorrect;

(7) Qiyas [analogical and rationalistic reasoning processes] tends to have a distorting and therefore, misleading way of construing the teachings of the Qur’an;

(8) The issue of ijma – consensus – is generally misunderstood and misapplied with respect to the issue of shari‘ah;

(9) Using naksh or abrogation as a methodology for engaging the meaning of the Qur’an is – in relation to the manner in which this concept is generally understood by many Muslim religious scholars – untenable;

(10) The idea of ijtihad – that is, striving to secure a spiritual determination or judgment in a given set of circumstances – is improperly understood as well as improperly used by many Muslim religious scholars;

(11) The five major madhhabs or schools of jurisprudence do not exhaust the ways through which one may legitimately engage Islam, and, moreover, none of these schools – or any other such school – may be used to compel people to behave in particular ways when it comes to matters of shari‘ah; moreover, no one is under any obligation to align herself or himself with any given school of jurisprudence, or, stated in another way, the various schools of Muslim jurisprudence do not necessarily have the requisite spiritual authority to impose judgments on others that are binding;

(12) One of the primary purposes underlying governance is not to enforce shari‘ah but, rather, one of the essential purposes of governance is to ensure that a community – or, more specifically, the public space or commons of that community -- is free from oppression of any kind [including religious] so that people will have an unhindered opportunity to engage the gift of choice which God has bequeathed to them -- providing such an exercise of free will does not interfere with a like gift which also has been bequeathed to others;

(13) Two of the other primary tasks of government are to establish principles of equitability and justice to help prevent the injury, exploitation, and abuse of the members of a community by forces from within or from without that community – and this includes a responsibility to ensure that spiritual abuse will not be permitted to be perpetrated through the political imposition of religious theories of jurisprudence;

(14) The specific guidance given expression in the Qur’an concerning issues like punishment, fighting, and even such matters as inheritance, are subsumable under, and capable of being modulated by, other principles of general guidance given in the Qur’an, and, in addition, such specific injunctions may not have been intended as a form of universal guidance – that is, for all peoples, all times, and all circumstances – but, instead may have been intended to guide a specific group of people during, and shortly after, the period during which the Prophet lived;

(15) None of the foregoing fourteen statements undermines, removes, or alters the basic duties of care one has to oneself, others, creation, or God that are being taught through the Qur’an and for which sharia‘ah is intended as a spiritual journey of striving to understand and apply the truth of such issues during the course of one’s life.

*********************

Shari'ah: A Muslim's Declaration of Independence - Part 4

Sunna and Hadith

The Prophet is reported to have said: “I have bequeathed to you two things; if you hold fast to them, you will never go astray. They are the Qur’an and my sunna.”

There is a general confusion in many parts of the Muslim community concerning the issues of sunna and hadith. Unfortunately, this confusion tends to perplex all too many religious scholars.

Hadiths have to do with the sayings of the Prophet. sunna has to do with the conduct of the Prophet.

The Qur’an encourages believers to follow the example of the Prophet not necessarily his hadiths. The Qur’an states: “Say: If you love Allah, then, follow me, Allah will love you and forgive you your faults, and Allah is Forgiving and Merciful.” [Qur’an, 3:31] The Qur’an also says: “You indeed have in the Messenger of Allah a beautiful pattern of conduct [us‘wat hasanah] for anyone whose hope is Allah and the hereafter and who engages much in the praise of Allah.” [Qur’an, 33:21]

Other than those instances in which the Prophet Muhammad (peace be upon him) gives someone a direct instruction or directive [for example, through a dream or some other form of spiritual unveiling] which the individual in question knows is specifically intended for him or her, then, the Divine guidance to follow the Prophet is a reference to the Prophet’s general pattern of conduct through which his beautiful character is being manifested. In other words, one is being encouraged by God to follow the example of the Prophet with respect to: repentance, humility, compassion, friendship, tolerance, forgiveness, courage, patience, gratitude, balance, equitability, charitableness, nobility, integrity, honesty, sincerity, spiritual excellence, dependence on God, steadfastness, seeking for knowledge, adab, purifying oneself, and justice. Follow this multifaceted example of the Prophet – which, truly, is a beautiful pattern -- according to one’s capacity to do so, then, God willing, Allah will love one and forgive one one’s faults.

The Prophet Muhammad (peace be upon him) placed a ban on all written documentation of, or collections involving, his sayings. Naturally, such a ban could not erase people’s memories concerning what they had heard, or believed they had heard, in relation to what the Prophet may have said on this or that occasion, and, consequently, those who had a memory of what had been said to them by the Prophet were reminded by the Qur’an – as noted earlier -- that those who obey the Prophet are obeying God and, therefore, such individuals should try to act in accordance with what was being said to them by the Prophet.

Notwithstanding the foregoing considerations, whatever else the Prophet may have meant with respect to his banning of making compilations of hadiths, the ban effectively placed constraints on people of a later time being able to try to use people’s memories as a definitive and authoritative guide to what the Prophet said, did, and, most importantly, understood and intended with respect to any given set of circumstances. In other words, the Prophet’s ban on compiling hadiths tended to create a degree, or more, of separation between, on the one hand, what the Prophet actually said, did, understood, or intended, and, on the other hand, what people remembered or understood concerning what the Prophet is reported to have said, did, understood, or intended.

The foregoing degree of separation introduces an important cautionary principle into this issue which would not have been present if the ‘hard evidence’ of documented words were to have been permitted by the Prophet to continue. People can say that I heard so and so say that he or she heard so and so say that such a person heard so and so say that the Prophet is reported to have said “X” – but this is not at all the same thing as saying that the Prophet did, in fact, say and intend X in such and such a way.

Consequently, one should be extremely careful about putting words and intentions into the mouth of the Prophet that could have ramifications for people’s understanding of the nature of Sacred Law or which might lead to attempts by some people to seek to impose [forcibly or otherwise] such an understanding on others. Indeed, this sort of cautionary principle is likely to have been among the sorts of considerations which may have induced Abu Bakr Sidiq (may Allah be pleased with him) to destroy his own collection of hadiths out of fear concerning the possible consequences for misleading others with respect to what the Prophet may actually have meant, understood, or intended whenever he said something.

Some have argued that the reason why the Prophet placed a prohibition on the writing down of hadiths is because he wanted to ensure that there would be no confusion in the minds and hearts of people concerning the difference between, on the one hand, the Word of God and, on the other hand, the words of the Prophet. Oftentimes there is an implication in such an argument that while the people who lived during the time of the Prophet were, apparently, incapable of differentiating between the two categories of words – and, thus, the prohibition -- yet, somehow, later generations were fully capable of making correct distinctions between the two, and, therefore, the ban may be lifted.

One has difficulty understanding the nature of the authority on which the foregoing sort of judgment rests – i.e., to lift the ban on compiling hadiths. One has even greater difficulty trying to understand why people believe that such an arbitrary judgment should, in turn, be able to justify the kinds of uses to which various hadiths have been put such that in all too many places people are forced – under penalty of punishment - to live in accordance with this or that interpretation of those hadiths.

There are those who may wish to argue that a Hadith merely constitutes one of the modes of conduct of the Prophet and, as such, should be considered as part of the sunna or example of the Prophet which the Qur’an has counseled people to follow. I would maintain, however, that the ban which the Prophet placed on all attempts to collect and document his own sayings indicates that such a perspective is untenable – especially, since, as far as can be ascertained -- this is a ban which the Prophet did not subsequently revoke.

Furthermore, one encounters something of a puzzle here. On the one hand, one is encouraged to take note of all the other sayings of the Prophet. Yet, on the other hand, apparently, one does not need to take note of the saying of the Prophet which concerns the voicing of a ban with respect to any compiling of such sayings in a written form. How is one to reconcile the two?

The Prophet is reported to have said: “May Allah bless a person who listens to what I say, memorizes it, understands it, and applies it.”

In one sense, I have never listened to what the Prophet said during his lifetime on earth because I was not physically present at the time during which he lived. In another sense, I have always striven to listen to the spirit of the Prophet – a spirit which has not passed away – as the Qur’an indicates: “Think not of those who are slain in the way of Allah as dead. Nay, they are living.” [Qur’an, 6:97]

In this latter sense, I have striven to listen to the spirit of what the Prophet has said about not maintaining collections of hadiths. I have memorized what he is reported to have said in this regard, and I believe – although Allah knows best if this is so -- that I understand it to mean, at the very least, that one should not be using hadith as a means of trying to impose on others either the sunna or hadith of the Prophet.

Without the presence of the Prophet, without explicit indications as to whom is being addressed by a saying of the Prophet, without knowing what the intention of the Prophet was within a particular set of circumstances, and without knowing whether, or not, the Prophet would have provided a different counsel in relation to current circumstances which may share some similarities with the circumstances in which he was heard to say something, then, one really is not in a position to do anything but oppress people if one tries to impose one’s interpretation of Prophetic traditions on others.

I do try to sincerely listen to the spirit of the one to whom various hadiths are attributed. According to what resonates with, and according to what may be verified by, my heart during this process of listening, I strive to develop a feeling or sense of empathy for a variety of issues through which to inform my own personal, individual spiritual understanding of, and approach to, life.

However, there is no expectation on my part that whatever facets of this process of sincere attending to the sayings of the Prophet which may inform my individual perspective should, therefore, also inform the perspective of other individuals. In this sense, my perusal of hadiths is intended to assist my individual struggles and striving toward understanding the nature of the Sacred Law as part of my own, personal, spiritual journey, and none of this is, or should be, intended to seek to compel others to go in any particular spiritual direction.

If it is a mistake for me to, say, even read the hadiths because of the ban which has been placed on compiling them, or if I make mistakes in conjunction with the way in which I may come to understand such sayings of the Prophet, then, these are mistakes for which I personally may, or may not, be held accountable by God. However, the mistakes which I may, or may not, make with respect to hadithic literature will never, God willing, spill over into activities which induce me to try to compel others with respect to how, or whether, they should engage the sayings or the sunna of the Prophet.

I believe such a position is consonant with what the Qur’an teaches. I also believe such a perspective is consonant with the spirit of what the Prophet was seeking to place constraints upon when he banned the compilation of hadiths – namely, that what he said should not be subsequently used as a way of trying to lend the authority of the Prophet to any attempt to compel people to act in one way rather than another with respect to matters involving the seeking of Sacred Law.

I believe the example of the Prophet gives expression to the sort of sunna to which the Prophet wanted Muslims to adhere. The character of the Prophet is what is truly breath-taking – how he consistently interacted with people through courtesy, patience, honesty, integrity, compassion, love, friendship, humility, generosity, kindness, mercy, forgiveness, gratitude, equitability, sincerity, self-sacrifice, and dependence on God in all things.

Surely, if a person held fast to the Qur’an and to the extraordinary example of the Prophet– his real sunna – one will never go astray. At best, one peruses the hadith literature in order to glean some understanding of the quality of character through which the Prophet engaged life and not in order to try to determine what he said on this or that occasion which was in response to specific circumstances existing then and not now.

*********************

Shari'ah: A Muslim's Declaration of Independence - Part 5

The Issue of Qiyas

Previously, I briefly explored the idea of hadith and ijma as two of the major resources which usually are cited in many discussions concerning Sacred Law and shari‘ah. Earlier, I also outlined some important problems revolving about such ideas. Such problems are especially important to keep in mind when people – as, unfortunately, all too many theologians and religious scholars seem inclined to want to do – seek to use either Hadith and/or ijma as a basis for trying to impose on others some given approach to Sacred Law and shari‘ah and claim that the religious determinations that emerge through one’s use of such resources are obligatory or a duty or a Divine ordinance or compulsory and with which, therefore people must comply or to which people must submit.

Qiyas is another methodological source cited by some religious scholars as having authoritative weight when it comes to trying to determine the nature of Sacred Law and shari‘ah. While not all of the four schools of jurisprudence noted earlier accept or use the methodology of qiyas to help reach their determinations concerning the nature of Sacred Law in any given situation, most of the aforementioned schools do, under certain circumstances, employ qiyas as a basic tool.

Qiyas is a word which, in literal terms, means measurement. In effect, when a qiyas is used in discussions concerning religious legalisms, the word is meant to give reference to a standard, metric, or method of establishing a similarity, analogical relationship, or a logical connection between two situations, objects, or issues.

The idea of qiyas gives expression to a form of reasoning or logic which seeks to link two situations or sets of circumstances and focus on the similarities and/or logical relationships between the two. In other words, qiyas is a measuring device, of sorts, which has been constructed in accordance with a mode of logic or discursive thinking which is to be used as a means for comparing the results generated by such a measuring device, standard, or metric that is being used to assess or analyze the structural character of whatever situation, problem, issue, or question that is being considered and to which the qiyas mode of measurement or logic is being applied.

Inherent in the nature of this sort of logic is the idea that if one constructs such a ruler, standard, or measure and lays that measure against one object [or case, issue, question] of interest and, thereby, obtains a measure or assessment of some kind, then, one may be able to take that same mode of measurement or assessment and lay it against other objects [cases, issues, or questions]. Furthermore, if such a mode of measurement generates, with respect to the new object or case, a similar kind of result in relation to the new object/case as was obtained during the first application of the standard, then, the principles inherent in the mode of measurement or logical relationship are considered to be reflected by both objects or cases which are being compared, and, on the basis of such a measurement or application of a standard, one proceeds to argue that the two cases or objects are similar in a certain way or that the two cases/objects share a logical link which is tied to the mode of measurement or assessment – that is, qiyas -- being used.

Thus, suppose one is seeking to measure a cat with a ruler, and, then, one places this same ruler against another object. Suppose further that there are similarities detected by one’s mode of measurement in the new object which are reminiscent of what one found in the case of the cat. According to the logic of qiyas inherent in such a situation, one has grounds for arguing that the new ‘object’ is a cat – even if that new object is not a cat but, instead, turns out to be a rabbit, mouse, dog, or some other life-form.

Obviously, one needs to understand what one is trying to measure, and one needs to understand whether the units of measurement of the ruler or metric being used are appropriate to that which one is seeking to measure. One also needs to know whether one’s mode of measurement actually reveals anything of significance concerning the issue of similarity or logical relationship between two objects or cases – beyond, that is, the manner in which one’s ruler or standard of measurement is constructed and has been used in both instances of measurement or analysis.

The logic of any measuring device is that such a device will find, or not find, only that for which it is looking. Furthermore, if a measuring device captures what it has the capacity to establish in the way of a measurement, this finding, in and of itself, does not necessarily say anything about the nature of that which is being analyzed through such a process of measurement except that one’s method of measurement or assessment is capable of reflecting certain facets of the situation to which it is being applied.

If, for example, one understands that a measuring device can only tell one about the length, width, or height of a given object, then, one knows that when one finds two, or more, objects which exhibit common properties that can be measured by the metric or ruler being used, then, all one has found is a reflection of one’s own method of measurement concerning length, width and height. One has not necessarily discovered anything about the actual nature of that to which such a measuring device has been applied other than that, within certain limits, one’s measuring device can generate a quantitative description concerning the height, breadth, or width of that something.

To say that a cat is ten inches long or three inches wide or six inches tall says nothing about what it is to be a cat other than the fact that some cats come in such a size. If one wishes to know what cats actually are, one has to find a method for assessing the structural character of ‘cat-ness’ that is far more complex than a simple ruler which measures inches and feet.

Quantitative measurements constitute one kind of similarity or logical relationship among certain objects and situations. However, qualitative measurements constitute a very different way of trying to compare two situations, objects, or the like.

To say that two objects share similar physical properties as determined by the measuring or logical process which links the two objects or cases, is one thing. Such quantitative measurements and subsequent comparisons often tend to be fairly straightforward – although using a foot ruler to measure light years could become a little unruly.

However, trying to measure the qualitative properties of two objects or cases tends to be much more problematic. This is especially so when one is trying to say that two objects or cases are similar in some way and that such similarity is sufficient to justify treating the two objects or cases in similar ways or that such similarity is sufficient to justify drawing conclusions concerning how to treat the two objects or cases.

For example, even if one were to come up with a complex measuring metric with respect to cat-ness, nonetheless, determining the nature of a cat will not necessarily tell one very much about the nature of a bird or dog or human being. Furthermore, even if one could construct a measuring device which would permit one to instantaneously calculate similarities and logical relationships among, say, mammals, birds, reptiles, marsupials, and bacteria, none of this might be very helpful in understanding what significance any of these species carried with respect to God’s understanding of Creation.

There are a variety of assumptions inherent in the use of qiyas which tend to suggest that if one believes one knows how God wishes one to engage one situation, case, or object, then, as long as one can demonstrate that a relevant similarity exists between a new case and the already established case, then, whatever behavior, prohibitions, permissions and the like which apply to the former set of circumstances also are said to apply to the latter set of circumstances. Yet, the basis of the alleged similarity or logical relationship which has been put forth through the use of qiyas and which, allegedly, ties together two situations, cases, or objects in question is claimed by the proponents of this method to be a valid way of arguing or justifying what is being claimed.

One assumption permeating the foregoing mode of thinking is the contention that one knows how God wishes one to engage the original set of circumstances at issue. If one misunderstands the nature of the original exemplar, then whatever similarities, analogical relationships, or logical features one points to as being held in common by the two cases will not have much value.

Another assumption inherent in the foregoing way of approaching things is that one is claiming one knows what constitutes a ‘relevant’ similarity or logical relationship when seeking to link two different sets of circumstances. Two objects, cases, or situations are likely to have many things in common, but such commonality does not necessarily justify treating the two objects or cases in the same way or interacting with the two objects or cases in the same way.

In short, the method of qiyas presumes to know what constitutes the most appropriate way of linking things in terms of logical relationship and similarity. Moreover, the use of this qiyas presumes to know which properties and qualities among various objects or cases are the ones which God wants human beings to focus on, or to be measured, or to be shown to be similar, or to be linked through some logical relationship.

Qiyas is a proposal or hypothesis. This proposal or hypothesis claims, in effect, that the manner of arguing through the use of such a method is something which gives expression to the truth of things in a given set of circumstances. Yet, there is nothing independent of such a claim which is necessarily capable of demonstrating the truth of what is being alleged through the use of the tool of qiyas.

Qiyas is nothing more than a rational argument claiming that a given similarity or logical relationship which is established through the use of such a tool is a possible way of thinking about a given issue, problem, or question. That argument may make sense in its own terms, but having an internal consistency with respect to its own mode of logic doesn’t necessarily mean that this form of reasoning has captured the truth of things or that it will lead to a correct understanding of the truth of things in terms of how God understands the situation. As such, the use of qiyas gives expression to a theory of things which stands in need of independent proof that the theory underlying such a use of qiyas reflects the truth of matters in relation to the Sacred Law or shari‘ah.

Consequently, at the very least, an individual needs to exercise caution concerning the use of qiyas. This caution should be exercised not only when one is concerned with one’s own spiritual journey, but, as well, such caution should be exercised even more rigorously when it comes to offering advice to others about how one believes they should lead their lives in relation to matters of the Sacred Law and shari‘ah.

One needs to engage the Sacred Law in a way which provides one with the best opportunity of becoming open to God’s communication and being able, God willing, to discover a condition which will permit one to be led back to the hukm – that is, the authoritative and governing principle with respect to the reality of something -- inherent in some given aspect of a Divine communication as that hukm relates to the problems and questions with which one is grappling. However, if one relies on qiyas, then, one may be trusting in something involving human theoretical constructions rather than Divine disclosure.

To give some intimation of the dangers which may be inherent in using the method of qiyas, I will put forth an example which, although ridiculous in nature, nonetheless, fits into the logical form of a qiyas. More specifically, through the use of qiyas, I am going to demonstrate that I am a Prophet of God.

The Prophet Muhammad (peace be upon him) is a man, and I am a man. The Prophet lived to at least the age of 63, and I have lived to at least the age of 63. The Prophet had a beard, and I have a beard. The Prophet spent time in Mecca, Medina, and Taif, and I have spent time in Mecca, Medina, and Taif. The Prophet traveled across the desert between Mecca and Medina, and I have traveled across the desert between Mecca and Medina. The Prophet prayed, fasted, and went on Hajj, and I have prayed, fasted, and went on Hajj. The Prophet spent time in seclusion, and I have spent time in seclusion. The Prophet spoke to people about Islam, and I have spoken to people about Islam. The Prophet had no male children who survived him, and I have no male children who survived me. The Prophet had a sense of humor, and I have a sense of humor. The Prophet sought to live in accordance with the Sacred Law, and I seek to live in accordance with the Sacred Law. The Prophet passed away, and I will pass away.

I could continue on along the foregoing lines, pointing out other similarities between the two of us. Therefore, if similarity is the fulcrum through which such logic is leveraged, then, based on such similarities, I must be a prophet … which, as we all know, is not the case.

The Qur’an says: “…he (Muhammad) is the Messenger of Allah and the Seal of the Prophets;” [Qur’an, 33:40]. In this case, the Qur’an serves as an independent source to demonstrate that the foregoing exercise in qiyas is not tenable. Moreover, the hukm – that is, the authoritative and governing principle with respect to the reality of something – which is operative here is that the status of being a prophet is rooted in Divine appointment and not the presence of similarities.

One can point out as many similarities between two situations as one likes, but if those similarities do not go to the heart of the matter, and if those similarities do not touch upon the appropriate hukm or authoritative principle which governs such situations, then, despite the existence of similarities or logical links between two cases, one cannot necessarily use the presence of such similarities as a basis for drawing conclusions concerning how to think about the two cases in question.

Being able to point to similarities or logical relationships between two cases does not necessarily mean that one understands a situation in the way that God understands that situation. In short, similarities or logical relationships, in and of themselves, are not necessarily sufficient to be able to discover what may be most resonant with the Sacred Law and/or shari‘ah in any given case.

Consequently, in the light of the foregoing indications, the use of qiyas is a potentially problematic tool. This is especially the case when one takes into consideration that qiyas is usually only resorted to when people are not able to find the guidance which they are seeking in either the Qur’an, the sunna of the Prophet, or consensus of opinion concerning some question or issue.

Under such circumstances, the individuals who have not found what they are looking for in the Qur’an, the sunna, or through consensus are not likely to possess some independent source – such as the Qur’an or sunna -- which is capable of showing that the similarities or logical relationships being noted through a given use of qiyas are either viable or untenable … a case which stands in contrast to the previous thought experiment in which I sought to demonstrate that I am a prophet through applying the tool of qiyas. Fortunately, however, I did know of an ayat of the Qur’an to which I could point to demonstrate the fallacy of the thinking inherent in the qiyas which had been constructed by me.

To be sure, God encourages human beings to think about, and reflect on, the communications which are being expressed through the Qur’an.

“Did they not consider [yanzuru] the Kingdom of the Heavens and Earth … ?” [Qur’an 7:185)

Do they not reflect [yatafakkaru] that their companion has not unsoundness of mind [Qur’an, 7:184}

“Do they not reflect within themselves …” [Qur’an, 30:8]

“… thus do We make clear the communications for a people who reflect. [Qur’an, 10:24]

“Had We sent down this Qur’an on a mountain, you would certainly have seen it falling down, splitting asunder because of the fear of Allah, and We set forth these parables to humankind that they may reflect.” [Qur’an. 59:21]

If one considers, thinks, and reflects, then, God willing, one may arrive at certain general realizations concerning the nature of truth and one’s relationship with that truth.

However, these truths which may come to be realized through thinking and reflecting have a resonance with the nature of such Divine disclosures that is not a matter of establishing similarities or analogies concerning such truth. Rather, the nature of such realizations has to do with the truth of certain limited aspects of the nature of reality itself being made manifest to one – to be understood according to one’s capacity to do so and according to the Grace which is conferred on such understanding.

One is, for example, asked in the Qur’an to think and reflect upon the experiences of past peoples and nations. Think and reflect upon how all peoples, empires, and nations have eventually crumbled and lost all that they had acquired in life … is there not a lesson here – a lesson which does not involve similarities or analogies but a certain stark expression of the truth of things that is relevant to one’s life?

So it is with all of the things about which God asks the individual to think and reflect upon. Open oneself, God willing, to what is being communicated and, as a beginning, permit thinking and reflective faculties to operate in an undistorted and unbiased manner so that one can understand, according to the capacity or limits of thinking and reflecting to do so, what is being communicated to one.

In the Qur’an God may use analogies and likenesses in order to communicate with human beings. For instance, consider the following examples:

“The likeness of the two parties is as the blind and the deaf and the seeing and the hearing: are they equal in condition? Will you not then mind?” [Qur’an, 11:24]

Or:

“The likeness of this world's life is only as water which We send down from the cloud, then the herbage of the earth of which men and cattle eat grows luxuriantly thereby, until when the earth puts on its golden raiment and it becomes garnished, and its people think that they have power over it, Our command comes to it, by night or by day, so We render it as reaped seed; produce, as though it had not been in existence yesterday; thus do We make clear the communications for a people who reflect. “ [Qur’an, 10:24]

And, an analogy or simile with which many Muslims are familiar, God also says in the Qur’an:

“Allah is the light of the heavens and the earth; a likeness of His light is as a niche in which is a lamp, the lamp is in a glass, (and) the glass is as it were a brightly shining star, lit from a blessed olive-tree, neither eastern nor western, the oil whereof almost gives light though fire touch it not -- light upon light -- Allah guides to His light whom He pleases, and Allah sets forth parables for men, and Allah is Cognizant of all things.” [Qur’an, 24:35]

Reasoning by analogy may be used by an individual, but one has to be aware of the potential for error which is present in that practice. More specifically, while God does employ similes, metaphors, parables, and analogies in the Qur’an, an important consideration to keep in mind is that God knows the precise meaning of such similes, metaphors, parables, and analogies, whereas human beings do not understand their meanings unless God chooses to disclose such understanding, insight, and knowledge to a given individual.

Therefore, when humans use analogies of their own construction as a basis for trying to establish the nature of the deen, then, there is a potential for considerable error. Only when one understands the structural character of God’s use of simile, metaphor, parables, and analogy, can one hope to tread a straight path, God willing, with respect to understanding and being able to gain access to the hukm – that is, the authoritative and governing principle with respect to the reality of something -- of whatever is under consideration.

One might approach the issue of qiyas in another, perhaps, more direct manner than the foregoing. Consider the following verses from the Qur’an:

“This, then, is Allah your God, the Lord, the Truth [your true Lord].” [Qur’an, 10:32]

“That is because Allah is the Truth.” [Qur’an, 22:62]

And God speaks the truth and leads [guides] to the way. [Quran, 33:4]

“Do you not see that God created the heavens and earth through [with] Truth.” [Qur’an, 14:19]

“He did not create the heavens and earth and what is between them except through [with] Truth.” [Qur’an, 30:8]

If God is truth, and if the Word of God is the truth, and if everything which has been created in the heavens and earth, as well as between them, is the truth, then what is one trying to accomplish when one seeks to construct a qiyas which attempts to establish a certain dimension of similarity between two things or which attempts to show the logical relationship of one thing to another? Presumably, one is trying to use qiyas as a means of elucidating, or giving expression to, the nature of a truth governing such situations.

However, if a given use of qiyas is incorrect, then, surely, as the Qur’an indicates: “What is there after truth but falsehood [error]?” [10:32] Moreover, according to the Qur’an: “Allah’s is the conclusive argument,” [Qur’an, 6:149] so, one must look to God in order to gain access, God willing, to the nature of such a conclusive argument with respect to any given application of qiyas.

As such, a qiyas is something which, itself, stands in need of further proof – from God – concerning the extent, if any, to which a particular use of qiyas gives expression to truth. A qiyas, in and of itself, is nothing more than a proposal concerning a possible truth about, say, Sacred Law or the shari‘ah, and one needs to have such a proposal confirmed by God rather than by human beings.

One may be able to follow the logical mapping entailed by some analogical relationship between two situations which is being proposed by this or that religious jurist, but this is not enough. One must know whether, or not, what is being proposed in the form of such a qiyas is acceptable to God as an appropriate manner of linking two situations with respect to helping one to better understand the nature of Sacred Law or the nature of shari‘ah.

The use of qiyas in any given set of circumstances often operates with a hidden presumption. The presumption is that the analogical relationship or logical relationship which is being set forth through such use of the methodology of qiyas carries a Divine sanction, but this sanction is not demonstrated merely by putting forth a qiyas – one needs a further conclusive argument from God concerning the matter which only can come through spiritual disclosure and not rational argument.

In the Qur’an, one finds:

“Indeed there have come to you clear proofs from your Lord; whoever will therefore see, it is for his own soul and whoever will be blind it shall be against him, and I am not a keeper over you.” [Qur’an 6:104]

Proof is a matter of understanding and seeing … of having wisdom … of being taught by Allah. Furthermore, this understanding is for each individual soul and is not something which is to be imposed on others.

The proof is in the understanding which comes to one’s heart. Moreover, when one comes to understand the nature of the Divine proof, it becomes incumbent upon one – as a requirement of the way things are -- to act in accordance with that truth.

Unfortunately, some individuals are blind to this understanding even as they suppose that they see the truth. When one comes to understand how gravity operates, it behooves one to take into consideration the nature of gravity when dealing with physical reality. Similarly, when one comes to understand the nature of some spiritual principle, then, it behooves one to take into consideration the nature of that spiritual principle when dealing with Being.

Such an understanding reflects part of the order of things. Once one knows something of that order, then, one departs from that order at one’s own risk.

Notwithstanding the foregoing considerations, none of what has been said so far necessarily rules out, or automatically invalidates, using the methodology of qiyas as a possible aid in relation to someone’s spiritual deliberations concerning the nature of the Sacred Law. On the other hand, while the use of qiyas in any given situation may appear to be persuasive to an individual when it comes to the making of judgments and choices in his or her own spiritual journey, the method carries little authoritative, spiritual weight, in and of itself, unless one can demonstrate – in the sense of the sort of conclusive proof which belongs to God – that the qiyas in question reveals an important truth concerning the nature of the Sacred Law and/or shari‘ah. More importantly, there is nothing about the logical force of any attempted use of qiyas, considered in and of itself, which has the capacity to justify trying to compel anyone to comply with the logic of such a qiyas, and this would be true even if the Qur’an had not already indicated that there can be no compulsion in matters of Deen.

In legalistic approaches to: the Qur’an, Sacred Law, and shari‘ah, one is taught that the nature of the authoritative, governing principle of something’s reality – that is, determining its hukm -- tends to be a function of deductive, inductive, and analogical modes of reasoning. However, one cannot use such rational methods to arrive at the hukm of a verse of the Qur’an – one must be taught this directly through spiritual means … the depth and character of understanding being determined by: (1) the faculty through which one is taught or through which one comes to understand; (2) the extent of the Grace of disclosure which is manifested through that faculty, and (3) the character of one’s spiritual capacity in such matters.

The surface meaning of a Quranic ayat is related to the hukm of that ayat. Nonetheless, the latter cannot be reduced to the former.

Whatever is plainly communicated in the Qur’an is the surface meaning of that verse, and God has given every human being the freedom to accept or reject what is being communicated through such surface meanings. At the same time, in order to understand the full guidance of the Qur’an, one must be led to the nuances of how the collective meanings of the Qur’an may be most harmoniously and efficaciously brought together and be applied as one moves from one circumstance in life to the next, and this involves being brought back to the roots of things by God. One needs to be shown the hukm or reality or spiritual authority of something, and only God can do this … only God can teach this.

“If you are godfearing (have taqwa), He will give you discrimination.” [Qur’an, 8:29]

“Be Godfearing [have taqwa], and God will teach you [Qur’an, 2:282]

One cannot use the capacity of reason to penetrate through all levels of meanings inherent in God’s communications. Beyond the capacity of reason are the capacities of heart, sirr, kafi, and spirit, and these additional faculties have capacities for knowing and understanding which transcend the capabilities of rational modes of knowing and understanding.

At best, rational methods may only grasp -- according to their capacity and only if God wishes -- something of the surface features of revelation. However, as indicated earlier, the surface meaning of an ayat is but one mode of resonance or wave length or frequency arising out of the hukm of the Qur’an taken as a whole.

Just as light consists of an array of frequencies that give expression to the phenomenon of light, so, too, the Qur’an gives expression to an array of meanings which give expression to the hukm of any given Quranic ayat in a given instance of applied guidance. Furthermore, each of these meanings has a reality which is resonant with the overall reality of the Qur’an.

In the Qur’an one finds: “So learn a lesson, O ye who have eyes.” [Qur’an, 59:2]

The term for “learning a lesson” here is: i‘tabiru. The imperative form of i‘tabiru comes from a verbal noun ‘ubur which conveys a sense of “crossing over” as in from one bank of a river to the other, or as in making passage from one place to another.

Literally speaking, the term ‘itibar’ gives expression to a metaphor of sorts which involves a process of seeking to engage a mode of transport which takes one beyond the original or actual context of a given issue. In the context of the Qur’an, when one is trying to ‘learn a lesson’ one is seeking to cross over from the particulars that are being expressed through a given aspect of the external form of revelation to the underlying hukm or governing principle which is inherent in that external form.

Thus, to learn a lesson in the foregoing sense is to begin one’s journey with the structural character of a given situation in terms of its facts, particularities, and contingent circumstances, and, then, use such a starting point to struggle or strive to gain insight into the nature of such a situation. To learn a lesson is to cross over from the surface features of a situation to its hukm – its governing principle, reality, or truth.

Virtually anyone may be able to see the external, surface features of a given set of circumstances, but not everyone may be able to grasp the spiritual meaning, significance of, or principle inherent in such a situation. Those who, by the Grace of God, successfully have made such a transition are those who have learned a lesson concerning that to which God is directing one’s attention through this or that facet of revelation … these are the ones who have eyes … these are the ones who can accomplish the process of crossing over from worldly facts to a spiritual understanding concerning those facts.

The use of rational faculties – such as in the use of qiyas -- is one mode of crossing over. However, it is not the only mode of doing so, and, in fact, spiritually speaking, rational methods are the most limited, constrained, and problematic forms of crossing over because such methods tend to introduce a variety of distortions and biases into the crossing-over process – problems and distortions which reflect the form of logic inherent in the rational methodology which is being imposed on reality and which filters or frames what we experience by means of the logic of that methodology.

The crossing over process of learning a lesson from a given set of Quranic circumstances is more deeply and thoroughly understood when the faculties which are used to make passage from the external realm to the internal realm is done through, for example, the heart (especially the dimension of the heart known as fo’ad), sirr, kafi, and the spirit. All of the foregoing faculties are mentioned in the Qur’an – for example in conjunction with sirr and kafi, one finds: “God knows the secret (sirr) and that which is more hidden (kafi)” [Qur’an, 20:7] -- but, unfortunately, many theologians, religious scholars and jurists tend to restrict themselves to purely rationalistic methods when engaging the Qur’an, and, as a result, run a very real risk of developing skewed understandings concerning various Quranic passages.

*********************

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.

*****************

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.

*****************