Fiqh Updated And Rationalised

 

 

FIQH (ISLAMIC JURISPRUDENCE)- UPDATED AND RATIONALISED

 

INTRODUCTION

 

Like Judaism and unlike Christianity Islam has a legalistic side inseparable from it. Aa such all regular life activities of individual muslims and societies of muslims are regulated by laws made by God first and explained and added on to by His Messenger second. But because Allah and His Messenger provided guidance within a limited volume of instructions and range of subjects the innumerable issues not clearly or not at all mentioned by either Allah or His Messenger were left to us believers to decide upon by looking for inspirations from the Divine (Qur’anic) and Prophetic (Sunni) source. This self-supplementing role of the Muslim community played through its able scholars was successful in building a vast volume of legal rulings on the foundations laid down by Allah in His Book and by His Messenger in his reported sayings and conduct which formed what is called Sunna or the Hadith.

 

The science which evolved from this effort of deriving and codifying newer and newer laws as times and circumstances required is called ‘fiqh’ and has been the most princely product of the Muslim mind.

 

Even a cursory study of fiqh and its history shows to the student that the better members of ‘fuqaha’ (plural of ‘faqih’ which means a jurist) were extremely intelligent and pious persons and by the needs and standards of their times they usually did an excellent job. Their rulings are still thankfully used to decide on all sorts of legal matters in all countries still retaining the Islamic Law (al Shariah) but as times and circumstances are changing in all muslim societies and the impact of the modern world as defined by the materially more advanced nations (mostly Western) is increasingly becoming more compelling there are coming times when we muslims find ourselves discomfited and inconvenienced both among ourselves and in the face of the materially (as well as institutionally) more advanced and better organised nations. Some of our laws are being seen anachronistic and sometimes also barbaric while on many issues we at times seem to have no laws at all or laws that fly in the face of scientific facts.

 

Do we need to remain anachronistic or look barbarians? Should we not do better to update by intelligent and realistic modifications of some of our laws while also demonstrating that most of our laws are much better than their modern secular alternatives?

 

Before we consider such questions we will do well to remember that this proposed rationalisation and updating of our Law is not a first in our history. For a few centuries following the Prophet’s times Islamic law and jurisprudence did not only evolve but occasionally rationalised and updated itself more.

 

As an example we may take the institution of government. Definitely the form of government adopted by the Companions (ashab) of the Prophet after his death was akin to the democratic presidential system like in modern America allowing for the sophistication differential between the two ages. What is more, this ‘democratic’ arrangement was not something new as far as Arabs were concerned. Like many other tribal societies before them, for example the early Greek and Roman, both Meccan and Medinese Arab societies were ruled by a senate made of their tribal elders and not by either hereditary or elected kings. This was the case with both the classical Athens and Rome when they were flourishing. Only the arrival of Muhammad as the Messenger of God modified this situation: he did though consult and frequently enough acted on the advice of the elders of now largely Muslim Medina and as a result the primitive democratic way of electing Abu Bakr RA to succeed him as the political leader of Muslims was quite normal.

 

Soon after the Prophet’s death the companions hurried to elect a leader to supplant the Prophet in his capacity of a political leader only since the institution of prophethood was no more. This new leadership form was called ‘al khilafa’ (succession to the Prophet) and the leader was accepted as the ‘khaliphah’ (caliph, successor) of the Prophet and addressed as “ameer al mu’minoon”, i.e., the ruler of the believers. The office did not imply let alone involve a juristic authority; the caliph was not seen as the highest jurist among the more scholarly companions but an equal member of a ‘college’ of more talented and better endowed companions who could find solutions to nee legal problems erupting from time to time in the matter of governance which included the dispensation of justice. Among these more talented and better-endowed group Ali RA especially shone and was the most consulted by the first two caliphs who came to be in his dept; after him his cousin ibn Abbas RA distinguished himself in the same capacity. Of course they were not the only ‘muftis’ among the early caliphal muslim society; many also served with distinction and included Abdullah ibn Mas’ud, Sa’d ibn Abi Waqqas, Huzaifa ibn Yaman etc, and the four first caliphs themselves. The second generation after the companions which included the younger sons and grandsons of the companions had even more muftis who ruled on many new subjects on top of passing down the rulings of the Prophet and his senior companions to their contemporaries.

 

That was because events moved too fast after the Demise of the Prophet; conquests simply exploded and within a mere twenty or thirty years all Palestine, Syria, half of north Africa, south and East Anatolia and even parts of Caucasia as well as all lands ruled by or under the influence of the Persian shahs fell permanently to Islam’s both arms and charms. As such the early Muslim conquests excelled any serial conquests in history be it Alexander’s in antiquity and Hitler’s blitzkriegs recently which was simply a barbaric and short-lived phenomenon.

 

Which meant the effect of fast-changing circumstances on fiqh and therefore the course of Islamic Law was seen as early as the later times of the companions themselves: both Ali and Muawiya introduced institution of dynastic transmission of political power, which was that of all surrounding polities. Ali began by nominating his son Hassan as his successor while after Hasan the partisans of Ali offered the position to Hussein the younger brother of Hassan. This was in clear difference with the Prophet’s practice: on his deathbed he had refused to nominate a successor to himself despite the pressures put on him by his clan, especially ignoring or avoiding Ali’s and his supporters suggestions that Ali is declared the successor. The Prophet maintained an ambiguous attitude to the last, neither clearly ruling Ali RA in or ruling him out, while giving some suggestive indication that Abu Bakr RA was whom he could be really happy with. In the event Abu Bakr was elected without asking for it.

 

The practice of at least quasi- or semi-democratic election of a leader continued in the case of the three more caliphs after Abu Bakr with Ali as the last. His self-appointed rival and contemporary Muawiya challenged his election and eventually imposed himself as the caliph in such style and spirit that he could more correctly be called a king. Then as befits kings he instituted dynastic succession nominating and obtaining consent for his unworthy son and later arch-villain Yazid.  Thus was the first breach of the Sunna of the Prophet and his early and pious companions realised; the then early scholars or jurists of Islam (if we may call them so at that stage) let it pass witout much protest and since then dynastic royal succession masqueraded as khilafa.

 

But one could not criticise either Muawiya or Ali for initiating the ‘royal’ succession system. Long diluted massively by new and less stable blood the ranks of Muslims all over the place were awash with ambitions and rankling with mutual jealousies. Under such circumstances democracy meant just anarchy and slaughter and therefore a collapse of Islam at least as a power; far-sighted rulers had to check such a collapse by introducing the time-honoured system of dynastic succession as was the case with all the neighbouring powers, whatever its certain drawbacks all the same.  This can only be seen a clear proof that survival is the single most important concern of any power and whatever religion prescribes or seems to prescribe according to some can simply be ignored. What is more and to disappoint the ‘democracy’ camp among the Muslim thinkers, the Prophet himself treated monarchy as acceptable within or without Islam; he sent to several monarchs letters not only inviting them to Islam but guaranteeing them their thrones. Some Arab kinglets like that of Bahrain embraced Islam and were allowed to rule as vassal kings of Islam while other Arab kinglets like the Ghassanid preferred to keep their Christianity but pay tribute to the Prophet’s power- which means, depending on local tradition both tribal democracy (rule by a semi-elected semi-hereditary senate) suited the Prophet so long it could work and deliver.  The conclusion seems to be that the later monarchical character of the political system of Muslims was not an impious innovation as some modern idealistic-romantic Muslims think but a necessity fully accommodated by the very pragmatic and realistic genius of Islam. So should be a suitable version of modern democracy provided it can work and deliver at least as well as in the West. Personally I doubt it at least in the shorter run, but Allah knows best, let’s wait and see.

 

What all the above amount to? It looks that the Islamicity of any move should be judged by the honourable gains it delivers to Muslims. The benefits include both salvation and enhancement of power- that is to say, if a move saves the lives and freedoms of a Muslim community which would otherwise perish or be enslaved it can be judged as conforming to Islam or even more emphatically, mandatory under Islam. Enhancement of power- if a move converts a Muslim community from a weak, vulnerable, underdog state to a strong, safe and dominant one, that also should be seen a move in line with Islam. We have an example of this in the very lifetime and practice of the Prophet: he initially treated the Jews of Medina with great respect and even affection; his compliments and goodwill were hardly returned. As a result the relations between him and the Jews cooled down and then degenerated into hostiliy. The Jews preferred to ally themselves with the Prophet’s pagan enemies on the one hand and the jealous hypocrites among the Medinese converts to Islam. Thrice the plots and treachery of the Jews brought Muslims to the brink of disaster and each successive time the Prophet had to hit back with more severity. Of the three Jewish tribes of Medina the first and the second he had to send into exile with permission to carry with them all their movables; in the third case the treachery had proved so dangerous to Muslims that the Prophet had to adopt the most desperate of deterrents: Through their own choice the Jews were allowed to adopt an arbiter from among the Muslims they believed was their friend; they chose Sa’d b. Muadh, then dying of a battle wound. Against their expectations Sa’d used against them the judgment of the Torah: their combat-age males were to be executed and the rest sent into exile. Thus self-destructed, the Jews bowed to the judgment without protest and instead wearing their usual composure and dignity which is their classical attitude under such oft-repeated circumstances. It was a very sad end to a good life at a good place for the Jews. What is more, some more sensible and nobler Jews took the blame for this tragic outcome and remonstrated with their fellow Jews to that effect. What the Prophet was doing was securing the survival of Islam and Muslims which the Medinese Jews had proven intent on destroying.

 

But was this what Islam (that is to say Allah and His Messenger) liked or preferred? Never! Islam is prepared to live in peace with everyone who does not resent its existence and will not take arms against it for just being Islam.  It conquered both Roman and Persian empires simply because they resented its emergence and spread as all ancient powers resented the emergency of a new power around them. It is like a smaller animal threatened by a larger one: if the smaller animal is brave it will try striking first in fast and surprise attacks which sometimes work. Islam tried and won. Attempting survival in the face of danger is the birthright of all organisms. Had Islam chosen an absolute pacific course it would at no time eaten up by its three local jealous rivals- the pagan, the Roman and the Persian. Islam had to rise to the challenge and in fact replace all three with itself as the better spirituality and law if it wanted to contribute to the betterment of humanity.

As Islam grew both in physical size and cultural wealth its laws accommodated the inevitable requirements of newer circumstances and in the process it had to draw upon not only the laws of its conquered subjects which laws had stood the test of time whether written (canon law) or unwritten (‘urf) but also evolved its own methodology of lawmaking drawing again on old methodologies around like the Roman. After all had not the Prophet said “Wisdom is the lost property of the Muslim. Wherever he finds it he adopts it”.

In this context we must draw the attention of our dear readers to the inevitable historical fact that all developing civilisations must draw on the achievements and even the soul of those more advanced around them. Today many muslims complain that there is a process of Westernisation among us muslims and that this is wrong if carried beyond science and technology transfer. They either forget or do not know to begin with that Muslims very early on began to both  ‘Persianize’ and ‘Hellenize’ with a view to gain information and methods from the two as well as some conformity with these two then dominant refined and advanced civilisations, each in its own way. We may read the term ‘Hellenize’ as ‘Westernize’ because the West became what it is by absorbing and assimilating the Hellenic civilization mostly through its pupil the Roman. Human civilization is a whole neighbourhood of interacting families and both competition and envy drive some families to steal any advantageous assets and habits of others. The Hellenic civilisation itself is almost entirely derived from the Middle Eastern where many centuries before Hellas (Greece) giant civilisations like  those of Egypt and Babylonia had been ruling supreme. Provided it is well managed, today’s trend among many Muslims to adopt not only some Western cultural but also all technical assets is basically healthy and conducive to survival in a fundamental way. We must remember that by the mid-Abbasid times (about third century AH) Muslim cultural scene was awash with Greek learning gained from translations of Greek classics and Arabic with Greek words like ‘Kimya’ for chemistry, ‘Qanun’ for canon law, ‘usturlab’ for the astronomical instrument astrolabe etc, ‘falsafa’ and ‘failasuf’ for philosophy and philosopher respectively. Even that cultural pride of Islam ‘Tasawwuf’ (Sufism) seems to have derived from the Greek word for an often itinerant sage ‘sophist’ (free-lance philosopher not always notorious for dubiousness), the root being ‘sophos’ meaning wise or clever.

 

In fact there is a striking similarity between the dress and habits of free-lancing Greek philosophers with a mystical bent of mind and our early Sufis. We must consider that many Christians were converting to Islam at the time and their bringing in of some of their old cultural baggage was inevitable as was some Muslims absorbing such cultural items by natural osmosis. Many mystically-oriented sophists or philosophers often practiced asceticism, lived frugally, preached chastity and even celibacy and in general tried to project an image of piety and at times a pantheistic worldview possibly derived from Indian models and almost identical with that followed by some Sufis of Suhrawardi or ibn Arabi type. This is what is usually known as the neo-Platonist philosophy or gnosis although its Muslim exponents modified and enriched it with borrowings and insights (rightly or wrongly) from the Qur’an and the Hadith. There is nothing wrong with such cross-cultural pollinations and grafts so long, as far as Islam is concerned, the boundaries imposed by the Qur’an and then genuine hadith are not exceeded. This cannot be said to be always fully the case but it is there for us to judge on the merits of each such Sufi’s contribution to Sufi gnosis and spirituality. No doubt some Sufis failed this test miserably and were accordingly condemned by their fellows but the fact remains that people learn from each other and whatever their creedal differences some cross-cultural transfers are beneficial and successful. After all we all are Allah’s servants and need each other in ways we cannot enumerate. As Allah instructs in His Qur’an “May Allah bring us together (in guidance)” (42: 15).

 

To return to the subject of law: The more one studies fiqh, especially in its historical development the more it becomes clear that in an effort to derive rules for every human action and transaction under the sun our pioneering fuqaha (jurists) had to force many limits of mental possibility and plausibility to derive the rules they derived given the fact that the clear legal provisions of the Qur’an are not to many while the Hadith, by far the bigger volume of legal dicta never attains the reliability of the Qur’an. Limited to the six most reliable books, namely Bukhari, Muslim, Ibn Maja, Nasa’i, Abu Dawud and Tirmizi and even when both al Muwatta and  al Musnad are added, not only enough material are there but there are also conflicting reports throughout.

 

This is what Allah provided for us in His wisdom and the wisdom behind it may be that (I dare say should be) He tests us for sincerity and effort on the one hand and gives us a rather free hand to create alternative judgments on matters of secondary importance so that we may have equally valid options when faced with difficult situations when one option will save our day when adopted instead of another. In my humble opinion the only mistake some over-zealous jurists did was declaring the development of fiqh as accomplished and therefore the gates of ‘ijtihad’ shut for good. This can only be as good as a papal  bull (in the case of our concurring jurists a joint self-appointed papacy- for claiming infallibility for ijma notwithstanding the implausibility of identifying and counting as well as ranking the jurists supposedly of the same opinion) since no man other than a true new prophetic messenger can rule on such momentous matters and no new messenger is forthcoming by the testimony of Allah in the Qur’an. What is more, since those ‘bull’ jurists produced millions of new rulings and are still doing so.

 

What the ‘bullists’ forgot and are still forgetting is that all legal rulings on the part of all muftis other than the Prophet himself are fallible and this is proven by the innumerable disagreements and differences between the even greatest muftis of each and same Sunni sect. Obviously each fatwa (ruling) is an OPINION (zann) and although to be respectfully received and often also acted upon IT MAY NOT BE THE LAST WORD on the matter.  Nobody can stop Allah to create other servants who will judge better. That whole body of juristic rulings ascribed to greatest imams cannot be seen as infallible (i.e. Divine, from Allah) can be seen from the verse:

 

“Had it (this Qur’an) been from (a source) other than the Side of Allah they would find in it many disagreements and contradictions” (4: 82).

 

We could hardly find a corpus of texts more filled with contradictions and disagreements among its contributors than our fiqh corpus. This criterion applies also to Sufi claims. Among Sufis disagreements are as numerous as boastings- as a Sufi, I am not sparing ourselves the same criticism and sarcasm. We are all weak and fallible and if we keep claiming and boasting woe to us. May Allah forgive and guide us.

 

This of course means that we ourselves cannot make infallible rulings and therefore are not in a position to belittle our faqih ancestors. In fact we owe them an incalculable debt and we have no alternative but rely on their rulings so long those rules, because of our changed circumstances and environment become grossly inconvenient and unhelpful for us. Under pressing circumstances we have to move on and research and issue new rulings and although we also will be fallible at least we will avoid too gross offences to our modern needs and be happier with our faith for its solving our problems.

 

Surprisingly for some not knowing better, this reformation of Islamic jurisprudence has been in progress even from the day when fiqh was declared as finally perfected and gates of ijtihad closed. Manufacture of new rulings sometimes countering the supposedly infallible old rulings went on quietly and with mutual complicity on the part of muftis concerned: it seems they interpreted the ‘bull’ as meant more intended to discourage the amateurs and inepts among muslims from trying their hand in fiqh.

 

Lastly we are neither the first nor shall be the last to want to supposedly open the supposedly closed gates of ijtihad. There have always been new ‘mujtahids’ (original thinking muftis) who tried their hands at ijtihad and also found acceptance. The ban is a sham, a scarecrow: human circumstances and needs change and so need do do opinions. Only opinions irreconcilable with the Qur’an can be definitely wrong, irreconcilable despite the glaring needs of a situation. For example, can we suspend the hand-chopping punishment for thieves which is prescribed by the Qur’an and replace it with another kind of punishment. I think we can. It is generally agreed that hudood (bodily punishments like for theft and sexual offences) may be waived on various pretexts and legal tricks all motivated either by mercy or expedience. For example, all three, namely the Prophet, Umar and Ali attempted to avoid hudood against thieves and sexual offenders and in fact the Qur’an itself has convincing clues to the effect that we should not rush to eagerly to implement such terrible punishments. In fact it is glaringly obvious that Allah, for example, is prepared to let far more sex offenders of the hook than He would allow others to be punished. He All-Gracious stipulated that four reliable witnesses had to witness explicitly and report a scene of adultery before a court could condemn the culprits, a condition hardly realisable under normal circumstances. With less than four the culprits will walk free as birds. If a husband is the witness wife’s denial under oath beats the husband’s accusation under oath. Some women and men are reported to have come to the Prophet and confessed to adultery. His first reaction was to advise them to conceal it, go away and repent in private. Was the Prophet being rebellious to Alllah? May Allah pardon us even for considering such a possibility. Obviously he was being merciful as befitted a true believer and lover of Most Merciful Allah Whose such terrible sanctions against serious offenders could be seen more as deterring threats than intended brutality.

 

It is on record that Ali tried to save some thieves from a hand-chopping by suggesting fictitious excuses like the thief making a mistake while Umar instituted stricter criteria for the same punishment with a view to avoiding filling the Muslim ranks with many invalids at a time when Islam need more hands to fight its wars. From the Prophet downward all such wise and merciful servants of Allah were just emulating their most merciful Lord Who for his part had taken care to avoid too many punishments but raising the criteria and driving forward the goalposts as briefly mentioned above. What some Muslims, jurist or not do not understand that the Qur’an is as much political text as legal; in there Allah speaks more like an accomplished diplomat or unknown to his clients more like a wise and compassionate disciplinarian with a view to reforming them with minimal if at all punishment if possible. While He is inspiring terrible fear He is inside melting with loving mercy. SO ARE HIS BEST AND WISEST SERVANTS AND THEIR TOP IS THE MESSENGER OF ALLAH!