Is Shariah Possible (II): Origins of a Cosmopolitan Venture

A moral philosophy characteristically presupposes a sociology. For every moral philosophy offers explicitly or implicitly at least a partial conceptual analysis of the relationship of an agent to his or her reasons, motives, intentions and actions, and in so doing generally presupposes some claim that these concepts are embodied or at least can be in the real social world. [Alasdair Macintyre]

Any study of Muslim civilization – with the purpose of exploring the roots of law – cannot remain unaffected by a certain kind of arbitrariness as far as specific time spans concerning various formative and post formative legal developments are concerned. However, it can be said with certainty that during the time of pious caliphate, there was no formal body of religious law that can be understood as binding on all Muslims. The community, being a direct recipient of revealed word of God, had no need to indulge in formal interpretation as the text (being characteristically a recitation-text as indicated by the word Quran itself and the first revelation Iqra’a) naturally exercised authority through immediate oral methods. A striking example of this spontaneous textual authority is Abu Bakr’s admonition to Umar at the time of Prophet’s demise which automatically brought the latter out from a state of denial.

This spontaneity, however, does not imply normative singularity (as we shall see later in the detailed examination of the Quran as a source of Sharia’h) and there were differences of opinions among companions regarding meaning of various verses.

Similarly, the concept Sunnah was not understood to be taken as a authoritative binding source in a proper and well defined framework. It was a kind of exemplary Prophetic practice – not yet formally situated in history – having a quasi-authoritative character; a disposition, which has to be necessarily distinguished from a relatively formal framework developed by later scholars especially Shafii.

It is difficult to identify the triggering point in history where Islamic tradition began to transform itself into a coherent, encompassing and self-assertive social order from a crudely authoritative moral philosophy . In this regard, one of the best studies of historical development of Islamic civilization has been carried out by Marshall Hodgson.

In his majestically detailed work, Hodgson goes on to explain the early  origins of a certain piously conscious class within Muslim societies supporting a faith-based egalitarianism in contrast to ruling absolutism of Marwani caliphate. A striking characteristic of this class – which was later specialized to be accepted as Ul’ema - was the pronouncement of this expectation that Islam has to have its own system of law, ethics, education and set of governing principles for public as well as private life.

With regards to Muslim civilization as a whole, the most profound cultural implication of this universalistic phenomenon was the emergence of a global social concern. In the words of Hodgson:

[...] the Muslims, unlike the Jews, did not regard their own community as a unique and (in principle) hereditary body selected out from a world left otherwise without direct divine guidance. The Muslim community was thought of as one among many divinely guided communities such as the Jewish or Christian, all (at their origin) equally blessed. Thus far, Islam took explicitly the form that various Christian and Jewish bodies had implicitly been assuming under the confessional empires [...]. The difference between Islam and the other communities was that Islam was first to rule over and then to supersede all others. Islam was to bring the true and uncorrupted divine guidance to all mankind, creating a world-wide society in which the true revelation would be the everyday norm of all the nations. It must not guide an autonomous community like the Jewish; it must guide the practical policies of a cosmopolitan world.

This indeed was the aspiration which can be termed as the cornerstone of that sacred socio-moral vision we call Sharia’h or Islamic Canon. It is important to note that this sacred vision was as much informed by a will to act in opposition to the political reality of pre-Abbasid period as it was by the resolve to bring the whole ambit of individual life in accordance with divine will; or more specifically, to act as ordained by the Quran and Sunnah.

Filed under: Series & Sequels, Sociology of Religion, Suspended Judgments, Traditional Islam , Fiqh, Islamic Law, Shariah

Talibanization: Nemesis of a Betrayed Idea

In order for Islamic idea to stand up to the efficacious ideas of twentieth century dynamic societies, it has to recover its original efficacy, that is to say, to resume its position among the ideas that make history -Malik Bennabi

This Sunday, as I was surfing through Malik Bennabi’s ‘Islam in History and Society‘ at my car mechanic’s workshop, a 15 year illiterate boy who was working there asked me about the ‘Sabaq‘ (lesson) I was reading. I told him that it was not a ‘Sabaq‘ in the classical sense; rather, a book about history, society and religion. Perhaps deceived by the beard on my face and the title of the book, the kid spontaneously shared with me his own one-second sociological percept. “The establishment of Islamic law is better than the current system“, the boy remarked as if he was insinuating agreement with my presumable stand, “we will have quick justice and everybody will be equal.” I engaged with him for some time and by the end of our brief conversation, I realized how the kid’s perception was shaped by the complex matrix of economic deprivation, sense of injustice and a belief in an almost superficial Islamic ideal. While driving back, I kept wondering whether the boy would have any qualms accepting Taliban’s brand of Islam in exchange of justice as a starting point; would he doubt the authenticity of their religious pronouncements – unmarried women as war booty, the Jizya, dhimmi status of non-muslims, black turbans, long beards and 15th century school syllabi – if they promise to get his illegally detained cousin released from jail.

The phenomenon of Talibanization has been increasingly symbolized to depict all kinds of religious extremism in Pakistani society – “a response to modernity“, a recent analyst calls it. Even beyond a cursory judicial institutionalization and entirely ahistorical in nature, Taliban’s version of Sharia is understood to be dangerously myopic and repressive in character. Coalesced with a tribal outlook, Taliban’s rudimentary religious and political philosophy is seen to radiate a certain savage medieval character; a disposition which can be attributed to its proclivity for anti-westernization and thus against all kinds of modernity and enlightenment. The intellectual deficit is visible as unlike bimodal Islamic reform movements of first half of last century – where they had separate militant and scholarly wings – these radical militant groups under the umbrella of Taliban are totally deprived of any strong ideological backbone. Yet, with its radical physiognomy and onionskin ideological structure, Taliban movement is successfully endangering a nation’s existence which was built on a so-called strong and modern Islamic ideal just 60 years ago. Therefore, on an intellectual front, we should engage more with the phenomenological principles that are at work since the creation of Pakistan in the realm of ideas rather than actual happenings in the realm of persons and objects.

As much as I contemplate about the ideological foundation of Pakistan, I am forced to believe that the underlying idea was the triggering of a new cultural universe which can grow on its own, thereby transforming, reforming and keep enriching itself according to Islamic ideals. Due to its arguable historical reawakening, it was idealized that a socio-political future of Islam is possible in the subcontinent due to a presumable shift of centre of ideological gravity from the Mediterranean. A separate state for Muslims – which may not be an Islamic state per se – was understood to present a direct opportunity for Islam; “…an opportunity to rid itself of the stamp that Arabian imperialism was forced to give it, to mobilize its laws, its education, its culture, and to bring them into closer contact with its own original spirit and with the spirit of modern times“, as articulated by Iqbal in his historical address of 1930.

In his philosophy of ideas, Malik Bennabi states that all the “ideas governing the moral and material order have their moment of grace“. “Archimedean moment“, he specifically terms it; but whether this moment successfully shapes the objective reality depends upon the sustenance of logical relationships between the idea and its archetypes. It still may be a genuine idea, even if it fails to do so, but it will not be an efficacious one, i.e., an impressed idea, it is; but not an expressed one.

When expressed ideas incessantly betray the impressed ideas – as it is happening in the land of pure for more than half a century – the latter eventually become dead, trigger a sociological metamorphosis and shape up new deadly ideas. Deadly ideas, which take vengeance and bring forth new crises which are never heard of hitherto. Modernity, justice, tolerance, religious harmony, revival and reformation – each great ideal falls one by one.

The mother of all crises, however, is the one related to identity. With all the statistical limitations of sample size, choice and demographics, figures reported by world value survey indicate few dimensions of this crisis: 83.5 percent of the subjects would like to identify themselves as Pakistanis first, in contrast to 14.2 percent who would like to be described as Muslims first. What is strange, however, is that 71.8 percent believe nationalism is incompatible with Islam in contrast to 2.2 percent who believe otherwise; 26 percent remain dithery. Large groups of people remain oblivious regarding most fundamental Islamic questions related to modernity; 50.8 percent do not know whether democracy is compatible with Islam; 63.4 percent remain clueless whether Islam permits killing of civilians if a country pursues laws harmful to Muslims and 74.2 percent cannot decide whether a true Islamic country should have a parliament with the right to pass laws. The only concrete deduction that can be successfully made out of these figures is the extent up to which an average Pakistani’s mind is plagued with atomism – a mind that is totally incapable of making systematic generalizations. Not surprisingly, therefore, 61.5 percent want implementations of Sharia law in contrast to 7.5 percent who disagree. The rest (30.9 percent), obviously, are still thinking.

With my mind drifting and meandering, I kept driving back home with a whole lot of ‘Sabaq’ in my mind – Bennabi, Iqbal, Jinnah and the philosophies they proposed and stood for in their own respective ways. But the strongest voice that kept tearing me apart was of Abul Kalam Azad. Almost prophetically with a pinch of well-placed acerbity, he wrote as he finished his own account of partition of India:

It is one of the greatest frauds on the people to suggest that religious affinity can unite areas which are geographically, economically, linguistically and culturally different. It is true that Islam sought to establish a society which transcends racial, linguistic, economic and political frontiers. History has however proved that after the first few decades or at the most after the first century, Islam was not able to unite all the Muslims countries on the basis of Islam alone.

Unlike Mukhtar Masood, the proverbial cat within me does not walk away hearing this; yet, my heart is unable to sync with the first part of the contention. I am not ready to believe that the whole idea was nothing more than a hoax. Believing that would mean suicidal self destruction. At the same time, however, I do believe that an idea is true as long as it brings success. There is no question defending it indefatigably without trying to restore its efficacy.

Filed under: Islam & Modernity, Land of the 'Pure', Reflections, Sociology of Religion

Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth

To effectively address the original Weberian objection i.e. normative pluralism is substantively irrational, it is mandatory to reformulate the problem in concise terms, starting point being that change in Islamic law takes place by means of some interpretive mechanism called Ijtihad. What exactly constitutes it: Is it the interpretation of the textual source ab initio; is it merely a pseudo-clandestine thought experiment to seek out verdicts on issues on which there is no past consensus among jurists; or is it merely a different solution to an old problem, but one which is in sync with contemporary social reality?

Irrespective of the particular theoretical inclination favored, there is no doubt that multiple norms will be generated in any interpretive undertaking; a fact which is amply observed by the term ta’addud al-ahkam in traditional Islamic literature. That this multiplicity of norms gives an irrational character to the law is the contention I am presently trying to analyze.

In my view, basis of this contention can be traced back to Islamic legal history and literature with some effort. After the post-recognition phase of Madhabs (the schools of Islamic Law), Muslims jurists increasingly found it hard to espouse the concept of Ijtihad “proper” through the medium of ifta’a, thereby limiting the response of an independent jurist to the ambit of his own juridical school. At times, some of these jurists resorted to quasi-artificial casuistic methods in order to achieve equity between presumed universality of complete legal paradigm, i.e. Sharia’h, and its practical manifestation when it comes to application of law to facilitate the functions of a society. Most of these casuistic developments – for instance Istihsan (Juristic Preference), Istishab (Presumption of Continuity), Urf (Custom) – in medieval times were arguably instigated by the desire to achieve a rational character of the law, thereby circumventing an almost subjective and probably mistakenly understood and emphasized universality of norms. And if all these developments and the enormous literary genre evolved from them achieved a kind of “practical wisdom” in line with social reality of times, it seemed rationally inconsistent to a modern critical mind.

But there is more to this discourse than casuistry acquiring a contemptuous nuance in Islamic law.

The Austrian-American jurist Hans Kelsen argued in his theories of legal positivism that all newly discovered norms must conform to the Grundnorm, a kind of hypothetical higher logical condition. The argument has been contextualized islamically in recent times, whereby many modern scholars** of Islamic law have argued that the Islamic moral expression “obedience to Allah” is an expression of the transcendental myth that fulfills the function of grundnorm in Islamic legal discourse.

There is no doubt that this remarkable proposition serves to make Sharia’h and natural law compatible; however, the real use of it lies in disentangling two confusingly snarled threads that modernity has brought to the fabric of Islamic law. On one hand, there is an increased proclivity for stringent applications of law in various spheres of public and private life. There are two contrasting shades of this tilt: 1) the literalist “text as norm” approach generally subscribed by the Islamists, liberals and revivalists alike (albeit not always erroneous intrinsically) and 2) a kind of “formal jurisprudence” employing all the tools of discursive logic, yet envisaging the use of universal principles and clearly pronounced norms. On the other hand, there is a resort to casuistry, most of the times employing specious argumentation that is clearly extended to achieve specific preconceived ends. In many cases, the latter can be observed in localized jurists muddled between knowledge and identity issues related to their respective communities.

Most of the modern readings of Islamic law generally fail to acknowledge these subtle distinctions but so is the modern jurist who remains strangled, on one side, between the pursuit of legal as well as ethical application of law in the society and the quest to achieve formalized rationality of jurisprudential method on the other.

To drive the point home, it can be concluded that social change and legal developments cannot be visualized to act in water-tight compartments rather the former triggers the latter in more than one ways. It is imperative to understand that norm-creating activity is a perpetual human-divine legislative process which is validated – without exceptions – by a Grundnorm revealed as a guiding authority for the independent jurist (mujtahid). At the same time, it is not necessary that the content of all the newly discovered norms must be implicitly found in revelation; rather, these are deduced through the science of Islamic legal epistemology, commonly termed as Usul al-Fiqh in traditional jargon.

In modern times Islamic legal developments are at a juncture where these cannot be technically characterized as formally rational (in the modern sense of the word); however, the characteristic modern reading of the law which imply that jurisprudential method of medieval times was substantively irrational is not correct either. In fact these developments – at that time – were meant to achieve a kind of normative pluralism which inadvertently harmonized the law with the social reality and worldview of those times. ____________________________

**For instance read Imran Ahsan Khan Nyazee, “Islamic Jurisprudence“; Ebrahim Moosa, “The Allegory of Rule (Hukm): Law as Simulacrum in Islam“

Related:

• Dynamics of Change in Islamic Law (I): Normative Pluralism
• Dynamics of Change in Islamic Law (II): Ifta’a, Ijtihad and Social Customs

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Series & Sequels, Sociology of Religion, Traditional Islam , Ijtihad, Islamic Law, Philosophy, Pluralism, Society, Sociology

Dynamics of Change in Islamic Law (II): Iftaa, Ijtihad and Social Customs

The “content” of any medium blinds us to the character of the medium.
[Marshall McLuhan]

In 1913, Mawlana Ashraf Ali Thanawi gave his famous juridical response to a British court in India. The seeker was a claimant who wanted to re-establish conjugal rights with his wife but his in-laws refused to let her join on the plea that she has apostatized and can no longer be his wife according to Islamic law. “Annulled”, wrote Thanawi while explaining that “unbelief causes annulment of the marriage contract and marriage of the claimant stands invalidated.“

During next seven years, the same fatwa was pronounced on ten different instances, albeit in marginally different contexts, by the same Mufti. However, in 1931, Mawlana Thanawi published an independent treatise dealing with the same issue at length and revised his previous opinion citing Maliki law as an authority instead of usual Hanafi law citations from al-Haskafi’s text or Ibn Abidin’s commentary.

Dr. Khalid Masud, in his paper on Apostasy and Judicial Separation in British India [included in this volume], analyzes the intricacies of these two fatwas (original and the revised one) at length and makes some interesting observations regarding social changes that took place between 1920 to 1930 in British India. He notes that the number of applications in the courts – seeking judicial separation from husbands – substantially increased in the span of these ten years. A large number of Muslim women were encouraged to declare themselves Christian and get their marriages dissolved by producing certificates of baptism.

According to Masud, situation became noticeable to an extent that some notable Muslim Scholars, for instance Dr. Iqbal in his famous lectures, questioned the validity of Hanafi law in this particular area and asked the Muslim jurists to exercise Ijtihad in order to reform the law. The debate triggered by these collective developments finally culminated into the revised fatwa of 1931, thus permitting the use of grounds in Maliki law – including husband’s impotence, cruelty or inability to maintain his wife – to dissolve a marriage instead of using apostasy as a legal device.

The normative shift in these fatwas, besides reflecting normative pluralism, also reflects another important dimension of legal change in Islamic Law: an almost inseparable construct of two mediums, i.e. Iftaa’ and Ijtihad.

Even though, many contemporary experts [1, 2, 3] of Islamic law argue that the terms ‘Mufti’ and ‘Mujtahid’ have been used interchangeably in pre-modern Islamic literature, it would not be entirely wrong to assert that fatwa still remains the primary medium of extending Ijtihad towards the society. For in actuality, it is only the Mufti (even today) who – inadvertently at times – creates and extends new legal norms to the level of positive law that works in a particular social construct.

It should not, therefore, sound surprisingly ‘liberal’ to a ‘traditionalist mind’ when a Maliki jurist from 14th century Spain, Abu Ishaq al-Shatibi, gives primary importance to social reality in his celebrated treatise on Islamic legal philosophy:

The rule is that you examine the given case in the light of Sharia. If it is correct according to the Sharia then consider its consequences in the conditions of its time and its people. If by its mention, your mind does not recall any evil then submit it to reason. If you feel that it will be accepted by reasonable people, then you may give your opinion in general terms if the case relates to a matter that is generally acceptable. If it cannot be generalized then give specific opinion. If the case in question does not accept this process, then it is better to keep silent; that would be more in conformity with the welfare of the people, legal as well as rational.

Having argued elsewhere, albeit not so eloquently, that Islamic law can be essentially experienced as a tradition of literature, I now use that observation to reassert that the available legal tradition – if hierarchically arranged and closely analyzed from primary texts (mutun) to commentaries / super commentaries (shuruh) to juridical responses (fatawaa) – can reveal a lot about normative pluralism in Islamic law and the inherent ability of law to perpetually adapt itself to the ever changing social conditions through well-knit and remarkably reasonable mediums.

concludes next…

Related:

• Dynamics of Change in Islamic Law (I): Normative Pluralism
• Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth
• Tradition of Literature

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Series & Sequels, Sociology of Religion, Traditional Islam , Ijtihad, Islamic Law, Philosophy, Pluralism, Society, Sociology

Dynamics of Change in Islamic Law (I): Normative Pluralism

In my view, the most important crisis that Muslim society miserably failed to handle during Islam’s sojourn into modernity is diversity. By diversity, I mean religious heterogeneity in any form, may it be the pronouncement of legal injunctions, opinions regarding societal norms or something as personal as individual religious practices.

Therefore, whether it is the abundance of contradictory fatwas on issues as diverse as women leading prayers to Muslims attending Christmas celebrations to Islamic prohibition of images to what constitutes death, Pakistani brothers arguing about the bare heels of a Chinese sister during Hajj or my grandma’s queasiness while watching me pray in a manner other than our family’s religious school, there is an invisible urge to see a kind of religious monism; a CONSENSUS based on an almost Utopian unity of intelligibility, opinion and action.

I would go as far as contending that pluralism, when it manifests itself in any of the above forms does not resonate well with the conventionally perceived absolute nature of religious discourse. And this perception, while breeding religious exclusivism and thus extremism, also undermines the true rationalistic nature of Islamic legal tradition.

One of the foremost reasons for this intellectual aversion to disagreement is the nature of Muslim law itself. While majority of traditional Muslim jurists – and I prefer to restrict my comment to Sub Continent as I am aware of some exceptions outside – seem perfectly at ease with it, western legal sociologists have always struggled with the antinomies of permission and prohibition that exist for a single issue. Max Weber, for instance, while attributing these “variety of norms” to the irrationality of the law, stated:

The priestly approach to the law aims at a material, rather than formal rationalization of the law. The legal teaching in such schools, which generally rests on either a sacred book or a sacred law fixed by a stable oral or literal tradition, possesses a rational character in a very special sense. Its rational character consists in its predilection for construction of purely theoretical casuistry oriented less to the practical needs of the groups concerned than to the needs of the uninhibited intellectualism of the scholars – its casuistry, inasmuch as it serves at all practical rather than intellectual needs, is formalistic in the special sense that it must maintain, through re-interpretation, the practical applicability of the traditional, unchangeable norms to changing needs. But it is not formalistic in the sense that it would create a rational system of law.

Needless to say that these comments by Weber in Economy and Society generally pertain to any religious law and do not specifically consider the dynamics of Muslim positive law. However, while Weber scarcely commented on Islam (except of course his formulation of Kadijustiz), above analysis while comprehensively illuminating the problem of “variety of norms” as construed by the post-Cartesian mind also highlights the kind of confusion that still prevails regarding contextual literacies of the pre-modern Islamic legal tradition.

While some attribute this characteristic of variety of verdicts in Islamic law to quasi-irrational nature of Islamic law, others argue that normative pluralism has a perfectly established pedigree in Islamic law and that new norms are perpetually created and recreated through a perfectly reasonable process that is an intrinsic part of the law itself.

The key question thus, in my view, can be formulated in this way: When a jurisconsult – a mufti, mujtahid or a faqih more specifically – adjudicate according to new circumstances thereby adding to the already existing variety of norms, is it a symptom of irrationality of law, per se or the change thus driven can be attributed to some rational interpretive method called Ijtihad.

to be continued…

Related:

• Dynamics of Change in Islamic Law (II) : Ifta’a, Ijtihad & Social Customs
• Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Series & Sequels, Sociology of Religion, Traditional Islam , Ijtihad, Islamic Law, Philosophy, Pluralism, Society, Sociology, Weber

Islamic Law & Social Change

Norman Calder, introducing Islamic law in one of his papers for Syed Hussein Nasr’s History of Islamic Philosophy, narrates a story of an anxious wealthy man trying to find a suitable wife for his son being fearful that he might divorce her and squander his wealth. He came to Abu Hanifah with his query.

“I could buy him a slave girl and provide him thus with the household but he might free her and so again squander my wealth. What shall I do?” “Take him to the slave-market,” said Abu Hanifah, “and when a particular girl catches his eye, buy her for yourself, and then marry her to him. If, then, he divorces her, she returns to your ownership; and if he frees her…well, he can’t, for she is yours.”

Calder rightly points out – after narrating this incident from Dhahabi – that no conclusion should be drawn from this story about the ‘marriage practices and family problems of ninth century Khurasan’ as this is basically a showcase for exploration of concepts. Concepts like acquisition and transfer of rights and legitimate sexual intercourse.

I remember arguing previously that corpus of classical legal tradition may principally be experienced as a tradition of literature in order to be able to appreciate the beautifully interlaced multiple traditions of education, thought, creativity and a desire for achieving some kind of social control. So does Norman Calder, when he asserts that without compromising its theological character, the genre of classical fiqh may be experienced primarily as a mechanism of self definition of classical Muslim scholarship. However, what Calder most certainly alludes to and I completely fail to acknowledge in my ramblings is the inadvertent and indirect denial of rational character of Islamic law.

For what else can be logically deduced from this argument except that traditional Islamic law does not in general cater for the needs of a real society but was only a means to explore the revealed word of God. Just for the sake and love of it.

I now come to believe that even in the presence of cunning contrivances, legal fictions and humor in the traditional books of law, one has to concede to the fact that Muslim jurists displayed an unflagging resolve of not compromising rational coherence of their arguments. Ignoring the historical authenticity and funny part of such incidents, one sees that Abu Hanifah takes a rational approach to the question posed to him; so does Malik when he replies to the Iraqi who after having sexual intercourse with a chicken wanted to eat it’s egg; so does the Egyptian scholar Ezzat Attiya who gave the famous ruling regarding adult men getting breastfed from female colleagues at work; and so does Sheikh Faraz Rabbani who remarkably considers every possibility while satisfying a questioner who is finding it difficult to differentiate between backbiting and literally biting his brother’s back.

It is obvious that juristic motivations in above mentioned examples are complexly interwoven. One can endlessly speculate but cannot tell with conviction whether traditional jurists do have an eye on social reality all the times or not. It is difficult because even though some of the egg-loving-weirdos do have sex with chickens, they seldom confuse backbiting with biting on someone’s back.

These casuistic extravagances usually marrying with rhetoric and endless citation of sources lead to a legal construct which is always pregnant with multiple and sometimes opposite rulings. To a modern mind, this construct, even though it theoretically conforms to the revealed norm, not only seems vulgarly fictitious but also disconnected from the ethical and moral normative base.

What then is the right way to proceed in order to synthesize the traditional Islamic law with ongoing social change? In my opinion, it is by asking right question about legal theory and social change. Not one, two, or few; rather, scores of them.

No amount of going-back-to-the-sources, ruling-by-what-Allah-has-revealed and how-to-pray-in-outer-space-manuals would achieve it for us. Unless we somehow deconstruct the fairly modern adaptability/immutability duality of Islamic law, we would not be able to move forward towards a workable corpus of Islamic law that fits meaningfully in the contemporary political realities. If somebody wants a single most comprehensive starting point, Shatibi asked most of these question in fourteenth century Spain.

Filed under: Sociology of Religion, Traditional Islam

Ramadan Reflections 2: Harnessing the desire to consume

From the translation of Amin Ahsan Islahi’s Tazkiya-e-Nafs:

[...] people tend to make Ramadan a month of festivities and fun time. They think that they are not answerable for the extravagance made in this month. They relish everything they eat. The result is that instead of trying to discipline themselves they end up pampering themselves. Throughout their fasts they keep dreaming about the delicious things they will eat once the fast is over. The result is that they end up learning nothing from their fasts.

To prevent such a thing from happening, it is necessary that a person should eat just enough to keep him working and not make eating the sole object of his life. Whatever is obtainable without too much of an effort should be eaten with thankfulness to the Almighty. Whatever is presented by the family should be consumed without fuss even if it is not tempting. The rich instead of overindulging themselves should give more to the needy and the poor. This is something which increases the blessings of fasting and has been commended by the Prophet (sws).

More about philosophy of fasting can be read here.

Sustained culture of consumption has brought about an unleashed spending boosterism which is one of the primary culprits responsible for recent price hike and hoarding of necessary commodities (like wheat and rice) in the month of Ramadan.

One truly wonders how religion miserably fails each year in the land of the ‘pure’.

Filed under: Land of the 'Pure', Reflections, Sociology of Religion , Fasting, Islahi, Pakistan, Ramadan, Reflections

Ramadhan 1427H: Culture of Consumption

I have pondered a lot and finally concluded the I belong to a culture of consumption.

Try asking a Muslim in Pakistan about the first thing that spontaneously comes to mind about the month of Ramadhan and in most of the cases the answer will somehow be related to consumption. The quantity reigns with significance throughout the holy month; may it be variety of food or recitations of Quran. Large hoardings all along the road are persuading people to consider their special Iftaar offers in order to consume maximum food with minimum disbursal of money. The most popular Imam in the vicinity is the one who recites fast and relieves the burden of standing too long in Qiyaam. My friends disagree with me; their contention being that what I am positing with a religious slant is merely a cultural thing.

So I stepped back, brooded over and realised that I too have an equal proclivity for consumption like my cultural siblings. As far as fasting is concerned religion has failed to transform this culture of consumption into one of abstinence. It may also mean that the culture has successfully deformed the kernel of revelation producing nothing beyond ritual.

The month of fasting does not bring along a climate conducive for sowing seeds of taqwa anymore; it has just become a celebrated festival in our part of the world.

Filed under: Land of the 'Pure', Reflections, Sociology of Religion

Whosoever changes his religion, kill him!

In a recently televised discussion, Javed Ahmed Ghamidi has clarified that his reliance on the principle of prescription of death penalty on only two occassions (al-Maidah 5:32) does not in anyway weakens any of the authentic ahadith ascribed to the Prophet(s). For instance this one narrated by Ikramah(r) and recorded by Bukhariy in his collection

Some Zanadiqa (atheists) were brought to ‘Ali and he burnt them. The news of this event, reached Ibn Abbas who said, “If I had been in his place, I would not have burnt them, as Allah’s Apostle forbade it, saying, ‘Do not punish anybody with Allah’s punishment (fire).’ I would have killed them according to the statement of Allah’s Apostle, ‘Whoever changed his (Islamic) religion, then kill him.’
(Sahih Bukhariy, Volume 9, Book 84, Number 57)

The above hadith and few others are generally understood by classical Muslim scholars as adding a third instance invoking capital punishment (i.e killing apostates). Ghamidi opines that all of these should be revisited in the light of principles established in Quran rather than adding something explicitly to the body of these principles.

He asserted that there’s no doubt in the authenticity of the ahadith in question, per se. However the application of these traditions or deductions from them are redundant in modern times even if there’s an ideal Islamic state. No one except Prophet(s) can claim the removal of all the excuse in relation to accepting the revealed truth of God Almighty, a concept which is called Itmaam al-Hujjah and therefore no one except him could implement death penalty for apostates. As he is no more amongst us, the ultimate decision would be revealed by God on the day of judgement and should be postponed as such. This right cannot be claimed by anybody after Prophet no matter how much effort is put in to present the true message of Islam.

Ghamidi’s reiteration of his position has a multidimensional importance in the overall framework of contemporary Islamic scholarship and its methodology which is currently experiencing its formative period. Firstly first it establishes that the school of Ghamidi/Islahi has dropped the sheer skepticism towards the science of hadith in general though its not among the primary sources of understanding Islam, in principle. Secondly it raises many questions regarding the pre-formative history of Muslims. For instance the concept of Itmam al-Hujjah (as understood by Ghamidi) seems anachronic in light of coarse presentation of Islam that earliest of the Muslims used to extend during their expansions.

Before I start meandering I give these bleary thoughts some time to transform into meaningful questions.

Filed under: Criticism & Comments, Hadith & Sunnah, Sociology of Religion, Traditional Islam

Addendum to ‘Cosmopolitan Fiqh’ Post

In 1980, the Council of Islamic Ideology of Pakistan initiated the first comprehensive report comprising proposals for making the economy Shariah compliant with special emphasis on elimination of riba’a from the banking system. The report is considered by many as the first consensus-driven approach towards a combined ‘intrusion’ of pseudo-modernist and traditionalist scholarship into the realm of classical fiqh and far ahead (atleast in Pakistan). Though it is never taken as such by the religious circles, it can easily be understood as a valid conceptual attempt at exercising ijtihad in modern times.

This and many such attempts later cannot be circumscribed within the bounds of any traditionalist methodology. The content (which is coming up lately in copious amounts and would continue to expand quickly in future as well) do not belong to hanafi, shafii, maliki, hanbali, zaidi or ja’afri literature but equally belongs to a genre of ‘Islamic jurisprudence literature’. If these attempts are analysed in detail keeping traditional jurisprudential methodologies in perspective, it is not difficult to realize that though many opinions of the classical scholars pose difficulties to solve complex contemporary problems (especially in the fields of modern economics), there are as many opinions from the past which may lead us to smooth solutions as well.

One of the valid illustration of this inevitable as well as methodological ‘pick and choose’ approach is a comparison of opinions between Imam Abu Hanifa and Imam Malik in identifying bare minimum rights of people in relation to public law when they make promises among themselves and fail to keep those due to various reasons. The question in consideration is that how to quantify liability if a person promises to buy all the products of my factory and refuses when the products are manufactured. In pre-modern times it was considered impossible to assess minimum identifiable liabilities in such deals. Abu Hanifa held that such promises though considered binding by Shariah cannot be represented in a court of law in case one refuses to keep them. The justice will be served on the day of judgement as Allah has promised. Malik on the other hand asserts opposite and considered subjecting such a person to court of law with the condition that he completely understands the implications of his promise for instance an incurred financial loss to other party in case of dishonoring the terms decided.

It is needless to say that Abu Hanifa’s opinion doesn’t hold good as far as modern commerce & trade mechanisms are concerned. The process that begins from memorandum of association, continues through details of various forms of capitals that a firm requires and other nitty-gritties of corporate liabilities is a simple promise between two persons if we try to analyse it from the lens of a hanafi jurist. On the other hand Malik’s opinion, if considered in detail, may give us leads to exercise ijtihad in modern times when a usual promise may be one between a hundred thousand persons and a ‘fictitious person‘.

Filed under: Ilm al-Ikhtilaf, Islam & Modernity, Sociology of Religion, Traditional Islam