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

Is Sharia’h Possible? (I): Definition and Scope

The Shari’a is all justice, kindness, common good and wisdom. Any rule that departs from justice to injustice [...] or departs from common good (maslaha) to harm (mafsada) [...] is not part of Sharia’h, even if it is arrived at by literal interpretation. [Ibn Qayyim]

“Just what is Shari’ah“, asks Zakintosh on his blog as he invites “unemotional” responses which are aimed towards understanding and clarifying things. In a series of posts, I would try to limn my understanding of the concept as well as sundry issues which do inform the current socio-religious and political discourse.

As far as it serves in drawing parallels, Iqbal’s famous enquiry: Is religion possible? (his lecture to fifty fourth session of Aristotelian Society, London in 1932) can be used as a starting point in examining the problematic of Sharia’h. Proposing three periods of religious life, i.e. faith, thought and discovery, Iqbal asserts that in the period of faith an individual or society must submit unconditionally without grasping completely the ultimate rationality behind religious demand. Similarly, before considering Sharia’h as a viable vocation, we should probably come in terms with the concept that Islam – during its present sojourn into modernity – can be seen beyond the duality of temporal and spiritual, i.e., as a unified dynamic experience which can enrich and facilitate all the modern aspects of life. It is only after grappling with the sociological possibility of Sharia’h that a modern muslim mind can overcome its proclivity for atomism and its incapability for generalization. In this sense, it is the only right premise that can mother the possibility for right conclusions.

Moving forward beyond the usual etymological distinctions, the concept Sharia’h has been traditionally used to refer to a wide range of philosophical and legal connotations. In an epistemological sense, the arabic terms aq’l (the reason) and hawa (desire) have been often used in contrast with Shara’a in traditional texts (for instance in Shatibi’s Al-Muwafiqaat or Ibn Qayyim’s Ailaam al-Muwaqaeen). At this level, Sharia’h has been essentially understood as a knowledge producing category emanating from the realm of Divine. From an ontological perspective, it has been understood as the expression of legislative aspects of Divine Will whose compliance is not immediate; rather, it is conditional to be exercised by the society itself. This is in clear distinction to His creative Will which is immediately complied for automatically achieving the intended end.

Probably for utilitarian reasons, Sharia’h has often been seen as synonymous to wahy (revelation), especially in the domain of law. True, that revelation is also a knowledge producing function; yet, the contention of equating Sharia’h with revelation historically gave birth to two major ambiguities. Foremost being that revelation is a process which brings the intent of the Divine to the creation, i.e., a medium for expression and not the intended meaning of the expression itself; hence, goes the famous adage by Ali that Quran is but ink and paper, it is the human being that interprets. Secondly, due to an additional understanding of the nature of revelation as a law producing function – albeit indirectly – the terms Sharia’h and Fiqh have been used interchangeably in much of the medieval religious discourse. Right up to the modern times, this usage has added considerable complexity to the discourse. No wonder, the most famous shibboleth of our times: whose Sharia’h? is a by product of same confused usage. What is generally understood as Sharia’h is actually its understanding or explanation, i.e., Fiqh.

But perhaps the most serious historical problem associated with this arguably confused equation was the question of immutability or adaptability of Sharia’h. The upholders of immutability-view claimed that rulings of Sharia’h are absolutely final and unalterable; the premise being that revelation is complete and final. Whereas, the proponents of adaptability-view upheld that the contents of Sharia’h are constantly expanding and undergoing change with varying sociological conditions. As we shall see later, both the views are historically significant because of their direct effect on respective choice and handling of sources of Sharia’h and therefore its ultimate scope.

A final point having great contemporary relevance is whether the Sharia’h can be termed as law in modern sense. The modern notion of law entails in itself the concept of an imposing authority. If Sharia’h or a particular set of its substantive interpretations (i.e. Fiqh) may understood to have the same import as modern law, the nature of ritual, worship and various other moral injunctions (included in the corpus of Sharia’h) will become questionable as far as their respective relationship with individual and society is concerned. This is why it is interesting to note that the practice of Islamic moral brigades forcing individuals to keep beards and imposing particular dress codes is intrinsically modern. The phenomenon will be explored further during the analysis of socio-moral dynamics of Sharia’h. At this point it is sufficient to mention that in Islamic legal tradition, the idea of formally separating legal obligation from theology and morality has its origins in 13th century Spain.

With this introduction, it now seems imperative to dwell into the purposes of Sharia’h, what constitutes it and the major disagreements regarding the nature of various sources.

Filed under: Islam & Modernity, Suspended Judgments, Traditional Islam , Fiqh, Islamic Law, Shariah

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

Stare Decisis in Islamic Law

Ali at eteraz.org takes on Ijma’a, one of the primary sources of Islamic Law, best defined as the consensus of legal opinion. He raises many probing questions and pragmatically observes that

…in a Muslim country, the ijma of scholars means nothing unless the GOVERNMENT OF THAT COUNTRY is willing to execute their consensus. If a government doesn’t manifest the consensus, it matters nothing what the scholars are consensing about.

I have few thoughts to share regarding this entry.

For that matter, which source of Islamic law matters if state is unwilling to apply the injuntions deduced from it? The injunctions explicitly derived from Quran and Sunnah do not matter equally in terms of their meaningfullness vis-à-vis socio-political philosophy if a Muslim state procrastinates in confusion or do not feel it pragmatic to execute. Therefore the problem Ali poses may as well be expanded to engage all the other sources of Islamic law.

Having said that, I would add that it would probably amount to oversimplification if we think it sufficient to assume that Ijma’a is just a ‘consensus of scholars’ in the paradigm of traditional Islamic law throughout history. In my humble opinion, most of the questions Ali asked would boil down to ‘definition’ of a particular source (in this case Ijma’a) rather than its ‘application’. Definitions, as a matter of fact, do not remain absolute and may evolve and undergo reform in terms of making sense of the law which constitutes them in a particular time. Albeit some of us may yawn when others look at history of institutions, It would not be entirely wasteful to argue that understanding history of the development of law is a pre-requisite for any meaningful reform.

Shafii’s famous comment (in Kitab al-Umm) to counter his opponents that

What you possess is not Ijma’a (agreement) but iftiraaq (disagreement)…

is enough to suggest that Ijma’a is probably the most disagreed upon source of Islamic law. The disagreement, most of the times, is so harsh that many jurists (for instance al-Nazzam al Basri, the famous teacher of al-Jahiz) have explicitly denied it as a binding source. Those who consider it binding define it in different ways, continue dividing it into various types (e.g. explicit and tacit Ijma’a) and sometimes consider its inter-dependence with other sources. Malik, for instance, refers to the agreed practice of Madinites as al-amr al mujtamaah alaiyh, calls it a binding consensus and includes it in primary sources of Sunnah. Ahmed ibn Hanbal, on the other hand, regards anyone who claims a complete consensus of legal opinion as a liar but considers the consensus of Companions of Prophet as binding for later generations. Almost similar opinions have been related by Ibn Hazm, Ibn Taymiah and Shaukani. Shafii limits Ijma’a to such basic injunctions as obligation of five prayers, number of raka’ahs and obligation to perform hajj etc.

Most of the questions about nature, sources and jurisdiction of Ijma’a have already been asked by the classical jurists and discussed adequately by many of the contemporary scholars. There are two important facts that come forth if we analyse the gist of all these classical positions on nature of Ijma’a and its various claims throughout history. 1) Majority of classical jurists agree that for any consensus to become binding, there must exists an evidence (Sanad) from other sources and 2) Most of them find it practically impossible to know the positions held by entirety of scholars as they are scattered all over the world (as evident by the famous debate between Layth and Malik). Both these facts serve as limiting factors towards any possibility of establishment and claim of consensus upon a legal opinion. While the former limits the possibility of personal or state sponsered opinions becoming binding on collectivity of Muslims, the latter substantially limits the jurisdiction of Ijma’a by reducing it to very basic injunctions already derived from either Quran or Sunnah. The example of former is Malik’s refusal to establish Muwatta as a binding code for Muslims of all lands and the latter led Ahmed bin Hanbal and Shafii to reach their respective positions.

These jurists, in their times, were no less reformists, desperately wanting consistency and methodology in application of Islamic law thereby striving to achieve congruence between Islamic methodology and socio-political philosophy of their times. Few contemporary scholars that I have studied in detail and who are well-versed with the development of Islamic law, have dealt with an ever-important issue of defining sources in Islamic Law. Javed Ahmed Ghamdi, for instance, having been fully aware of the history of development of Islamic law, does not consider Ijma’a as one of the sources of Sharia’h. “There is no way to know that a consensus has happened about a legal opinion”, one of his students argues; precisely the problem that Shafii and Ahmed bin Hanbal raised in their times.

The bottom line is: The only way to reform Islamic law, so that it is completely reconciled with the modern political and social philsophy, is to figure out how our predecessors did it in the past.

The objective is indeed difficult and obviously requires contemporary scholars to once again (re)define categories of Islamic legal archetypes. A quick solution to the problem may be to understand binding of Ijma’a as demanding subordination to a rule upheld collectively by the highest legal forum of the land. Islamic tradition, in early stages, had already seen such a forum being confined to jurist Companions and later to the theoretical collectivity of independant jurists. In terms of English common law, it is something close to the doctrine of stare decisis and may well be the adherence of lower courts to the precedents set by full bench of the highest court in a Muslim country. It is needless to say that such precedents should be based upon workable Islamic theories of legislation, adjudication and compliance.

Filed under: Criticism & Comments, Ilm al-Ikhtilaf, Traditional Islam

Tradition of Literature

If statisticians among you forgive this dotty averment, I would suggest that 80% of the pre-modern Islamic legal corpus is probably an exploration, preservation and explanation of the remaining 20% textual source. The hypothesis does not mean to undervalue the creativity or question the originality of classical legal texts but merely purports that what is chiefly believed to be a tradition of Islamic law may alternatively be understood as a tradition of literature, transmitting Islamic legal philosophy as a distinguishable part of the conversation.

The notion has more dynamism because contrary to an allegedly stagnant tradition of pre-modern law, a rich tradition of literature contains in itself the possibilities to explore various traditions of thoughts, actions and historical aspirations for social control. Most importantly, this kind of slant makes the writings of pre-modern Muslim jurists more accessible by making a contemporary reader intellectually accomodative towards seemingly extravagant explorations, complex variations, apparant absurdities and endless citations of authorities. That however, is a different point which I am not prepared to expand upon in the present entry.

My present contention is simple: covering breadth of traditional Islamic law may not seem an unsurmountable undertaking if one remains riveted to dig out legal value from a vast tradition of literature. This legal value is to be looked initially into a comparatively smaller portion of the corpus.

A quick examplary look at some of the classical Hanafi works would elucidate the point I am trying to bring across.

The proverbial 20% includes 4 to 6 juridic works of Muhammad bin Hasan al-Shaibani, the famous student of Abu Hanifa who recorded his teacher’s opinions, decisions and writings which are now extinct. These books are 1) Jama’a Kabeer 2) Jama’a Sagheer 3) Kitab al-Asl or Mabsut 4) Ziyaad’at 5) Sayr Kabeer and 6) Sayr Sagheer. The condensed version of all six works was first prepared by another Hanafi jurist Hakim Marwazi who titled it as al-Kafi fi Furu’u al-Hanafia’a. The complete three volumes of al-Kafi were expanded into a 30 volume commentary by Shams al-Din Sarakhasi. Burhanuddin Murghainaani carried out a comparative study of Quduri’s Mukhtasar (a precise text of Hanafi fiqh produced long after Shaibani’s works) and Shaibani’s Jama’a Sagheer producing another work by the name of Hidayaat al-Mubtadi. Murghainani than wrote a 60 volume exegesis of his own work which was titled as Kifayaat al-Muntahi. The famous Hidayaa which is still taught as a Hanafi text in most of the religious shools is a condensed readable version of this Kifaayah; also prepared by the same author for students. More than 100 years later, an exegesis of Hidayaah was carried out by Mhammad ibn Sadr generally famous as Waqayaah; condensed explanation of which is still included in the current curriculum.

It seems a tad too complex to discover and disentangle different layers of these texts as these are extended on overlapping periods of history. Just a cursory analysis of any school’s (Hanafi, for instance) textual history would reveal that we are dealing with piles of texts with innumerable commentaries, interpretations and elucidations. The more famous ones by Nasafi, Kassani, Mosali, Ibn Najm and Ibn Abideen can be analysed with some effort, but just to investigate the chains of origins.

The complexity, like the genre itself, is multidimensional and its theological character has to be explored in search of meaningfullness. A modern reader can easily loose interest and question the priorities of traditional writers. Syed Qutb’s remark is perhaps a good showcase for this kind of growing unease:

The Shariah has been revealed in order to be implemented, not to be known, studied and changed into culture in books and treatises.

In my view, the genre available to us as Fiqh may principally be experienced as a literary discourse rather than a legal one. A contemporary mind dwelling into it should understand that classical jurists might not have a sensible and workable corpus of law in their minds all the times. The aim varies according to a particular jurist’s inclination, keeping in view the end he wanted to achieve. The purpose is sometimes to produce a concise text for swift committal to memory, a commentary to explicate a condensed text or a super-commentary to elaborate an exisiting commentary. Rather than getting repulsed by the exhorbitant quantity of seemingly outdated written word, it is more objective and feasible for students of knowledge to classify the texts according to their degree of originality and concentrate first on the most original ones for exploration of traditional Islamic law.

Filed under: Traditional Islam

Motive is the Primary Prerequisite

The ever hyped question of evolution of Islamic law has recently been reiterated in one of the leading local newspapers. The writer, who is an old schoolmate, has indicated some finer points regarding the dynamics of movement in Islam while completely missing the principle issue of motive which might bring about this structural movement.

Quoting Iqbal from his Reconstruction of Religious Thought in Islam, author contends that:

The argument being made here is not the traditionally liberal one that Islamic law being the law of a dynamic eternal religion needs to be capable of addressing the needs and concerns of evolving society and thus capable of evolving itself through ijtihad, but that the Islamic tradition is being evolved but only through the ijtihad performed by radicals, thus making it more bigoted and retrogressive.

Unless clerisy in Islamic societies, for instance Pakistan, is not ready to reconsider and analyze why they need Islamic thought to evolve so badly, criticizing radicalist agenda would seem nothing more than a meandering prattle. The liberals and progressives among these societies are not yet ready to reassociate their religious percept as it relates to political and moral philosophy in recent times. Therefore all the arguments against religious exclusivity and extremist interpretations, though accurate and true, would ultimately resonate better with logical positivism rather than a true religious discourse.

It would be sheer naivety if one disagrees with the assertion that many popular religious opinions are insinuations of hate and revenge politics rather than outcome of serious and erudite contemplation. Moreover denouncements of fellow Muslims as infidels and apostates are just quasi-legal judgments played by escapists to terminate assailable arguments. On the other hand, it is too simplistic to contend that absence of religious reform and scholarship is a primary cause of this booming radicalism. What we often fail to see is that intelligentsia in Pakistan is not ready to accept position of religion at the kernel of political, economic and social philosophy and merely insisting upon using it as a liberal nationalist’s tool to counter radical interpretations.

As a matter of fact, revolutionary transformists [sic] like Muhammad Iqbal cautioned ceaselessly about a similar pitfall:

We heartily welcome the liberal movement in modern Islam, but it must also be admitted that the appearance of liberal ideas in Islam constitutes also the most critical moment in the history of Islam. Liberalism has a tendency to act as a force of disintegration, and the race-idea which appears to be working in modern Islam with greater force than ever may ultimately wipe off the broad human outlook which Muslim people have imbibed from their religion. Further, our religious and political reformers in their zeal for liberalism may overstep the proper limits of reform in the absence of check on their youthful fervor {…} A careful reading of history shows that the Reformation was essentially a political movement, and the net result of it in Europe was a gradual displacement of the universal ethics of Christianity by systems of national ethics. {….} and then to move forward with self-control and a clear insight into the ultimate aims of Islam as a social polity.

It is interesting that statements like above can be taken either way as radical brand of Islam is also claiming the right to reform and is one of the manifestations of modernity, at least in the west. Puritanical Islamic movements, both historical and contemporary, also point us toward a bitter fact that reform and (re) interpretation can be a dangerous notion if enough groundwork is not there at the level of social and political level.

We have come about a long way since Iqbal’s times and have had enough share of enlightened and retrogressive reformists. Religious scholarship, no matter how much rigorous and enlightened, would ultimately fail to deliver if religious thought does not get the central and governing place in society. Talking about extrapolation of moral principles in Quran, applying them to our lives in an idealized culture of proverbial tolerance and enabling people to criticize different brands of Islam is jumping to the method before achieving decisive consensus regarding the motive.

Filed under: Criticism & Comments, Islam & Modernity, Land of the 'Pure', Traditional Islam

Pope should not waste time reading all the people who wrote about Ibn Hazm; he should instead read Ibn Hazm.

If Pope’s evidence (the famous 14th century dialogue) to beef up his argument against Islam being a violent religion was fragile, flimsier was this allusion that Islamic teachings defy all the inherent reason in the universe. In fact, his remarks were pathetically blatant lacking sufficient concern for historical reality and an in-depth knowledge of Muslim philosophy. After reading the text of Ratzinger’s speech quite a few times, I am still perplexed regarding the line of his reasoning; namely that faith in an absolutely transcendent God whose acts and will cannot be grasped completely by human reason can possibly lead one to conceive His images which are capricious and may be against all truth and goodness. The argument becomes further ironic as Pope strangely chooses to abduce views of a multifarious Muslim writer who can equally be classified as a quasi-liberal writer/poet, a literal jurist, a controversial philosopher, an innovative grammarian or above all a compassionate ethicist.

Even scanty readings of Ibn Hazm would fail to portray him primarily as an absolute fatalist which Joseph Ratzinger was able to do inadvertently for his Christian audience with such an ease. The intuitive reason which Ratzinger calls creative and self communicating when combined with sound human perception and understanding of language is the first and foremost source of all human knowledge according to Ibn Hazm. It was one of his earliest projects to advocate a sound system of logic so that the revealed word of God can be defended without taking refuge in circular arguments. Times right before his were famous for determining value of logic as a means for attaining absolute truth. There were debates, for instance between Christian logician Abu Bishr Matta bin Yunus and the Muslim philologist Abu Said al Sirafi in early tenth century, resolving controversies whether logic is a form of universal expression or not. Ibn Hazm wrote extensively against the holders of extreme view of man tamantaqa tazandaqa (whoever practices logic practices heresy). In reposnse to his opponents, who objected with the counter-argument that early generations of Muslims did not resort to demonstrative argumentation and proofs rooted firmly in logic, he replied that they witnessed the revelation directly and were not exposed to contrastive beliefs.

An alternate undertaking in parallel was to refute the philosophers and theologians who elevated logic to a station where it can be used independantly as a means for attaining truth thereby superceding and replacing revelation. Many consider him as a pioneer in methodological rejection of hellenistic metaphysics of that time which was voiced by many Muslim philosophers with slight shifts in semantics. Here, the Pope is partially right as Ibn Hazm advocates an unbridgeable gap between the Creator and creation. However the underlying aim in Ibn Hazm’s discourse is not to establish that human beings are not responsible for their own actions by being submitted to Divine Will but to define a supreme station for God where there is no room left for speculations. Ibn Hazm achieves this with ease as he has the revealed word of God to fall back to, and which he uses as a touchstone to establish veracity of any claim regarding His ultimate nature.

Ratzinger however speculates erroneously when he hypothesize that Ibn Hazm’s God could have done everything against the truth and virtue. Ibn Hazm does not push his God away in order to grant him more divinity (as the Pope contends) but asserts that we cannot comprehend fully the particulars of God’s wisdom and will instead remain in need of His favours always. He pits these arguments against some of the Mutizilites who were presumably in favor of basing ethics on human reasoning, even at the cost of statements in the Quran. His often misunderstood contention that God can reward evil and punish good is completely subjective as he never claimed that God in fact does so. His contentions are rooted in a constantly recurring theme that humanity always needs objectively sustainable communication from the Creator as we cannot achieve salvation through reason alone. He and his God calls it the divine mercy and love, on which depends the destiny of all creation; and that is the only real analogy as far as Ibn Hazm is concerned.

Ibn Hazm can easily be misunderstood if his different positions are not disentangled carefully. Moreover his various intellectual stances can be put forth as an evidence for contradictory assertions. He tried all his life to bridge gaps between reason and revelation and describe the human condition and thought in relation to revealed word of God. His literature is depictive of human beauty and love of God. According to Ibn Hazm, we constantly need God to reveal us who He is, why He created us and what should we do and what we should not in order to attain His pleasure. It is one of His favors that He gave us the power to reason and contemplate both within our selves and with others. However all human contemplation, cogitation and criticism should take revelation as the starting point.

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On a different note, I completely agree with what thabet has said and do share his feelings. Pope’s speech may have been full of inaccurate assertions and misreadings of Muslim theology (kalam) yet he has asked some challenging question which should be responded satisfactorily by contemporary Muslim scholarship. His major contention is that Islamic weltanschauung incorporates violence as a valid methodology and this world view is theologically rooted in the understanding of God’s nature and character. Why should these questions invoke anger, hate and murder instead of inciting positive and objective confrontation on intellectual fronts.

Among 20+ people that I have asked in the past week, none cared to read what Pope has actually said though they were aware that he has said something very wrong. A Christian member of Pakistan’s parliament who proposed the house to ask clarification from Vatican before passing a unanimous resolution of condemnation was forced to sit in protest. No major or minor newspaper (of Pakistan) took pains to translate and publish the entire speech or even its controversial parts. However none of them failed to make a great news story out of it. Its sad that Muslims of the world seems to be a big rabble lead by the pirates of intellect. Even sadder is the realization that there is still no light at the end of the tunnel.

Filed under: Criticism & Comments, Debates & Disputes, Ilm al-Ikhtilaf, Philosophy, Scholars, Traditional Islam