Shari`ah: Unchanging in a Changing World

http://worldmuslimcongress.blogspot.com/2007/05/unchanging-in-changing-world.html

Reading this piece on Shari`ah is like driving the car in a zig zag fashion.

Shari`ah is a ritualized version of Islam for day to day living and is certainly inspired by Qur'aan and Sunnah. Calling it divine may not the be right choice of words but divinely inspired may find more acceptance.

The Shari`ah laws regarding most aspects of life are naturally followed by Muslims, however, there are a few areas that needs serious re-evaluation such as; Divorce, Inheritance, Apostasy, Witness inequities based on gender, Child custody, evolving role of woman in the family and interfaith dialogue to name a few.

Those of us who live in the western societies do follow the law of land on such issues, much of which is based on equity as Shari`ah was intended to be. The idea of Justice and equality are paramount values for peaceful societies. As Muslims, we need to honor the views of the new generation and measure it against the sustainability of it and then come to a consensus.

I urge every one to read the following article by Dr. Farooq called Shari`ah value at: http://www.theghouseteam.com/mg/WMC_Files/Shariah_value_Dr.Farooq.pdf

The wisdom of all laws is to create orderly and sustainable societies. When there is justice, there is order, and when there is order, conflicts fade and solutions emerge.
Mike Ghouse

The Unchanging in a Changing World
By Khurram Murad, April 19, 2005
http://www.islamonline.net/English/In_Depth/ShariahAndHumanity/Articles/2005-04/02.shtml

The Eternal and Unchanging

The Shari`ah is for all times to come, equally valid under all circumstances. The Muslim insistence on the immutability of the Shari`ah is highly puzzling to many people, but any other view would be inconsistent with its basic concept. If it is divinely ordained, it can be changed by a human being only if authorized by God or His Prophet. Those who advise bringing it into line with current thinking recognize this difficulty. Hence they recommend to Muslims that the “legal” provisions in the Qur’an and the concept of the Prophet as law giver and ruler should be “downgraded.”

But, as the manifestation of God’s infinite mercy, knowledge, and wisdom, the Shari`ah cannot be amended to conform to changing human values and standards. Rather, it is the absolute norm to which all human values and conduct must conform, it is the frame to which they must be referred, it is the scale on which they must be weighed.

Categorization of Precepts

As we have already seen, the claim that the Shari`ah is eternal and all-embracing does not in any way imply that every issue for all times to come has been decided. The mechanism through which the Shari`ah solves a problem posed by an unspecified, new, or changing situation can be best understood in the framework of the categorization of its norms and rules and the role it gives to human reason in the form of ijtihad.

The code of behavior and conduct laid down by the Shari`ah divides human acts of heart and body into the following five categories:

1. Expressly prohibited (haram)
2. Expressly enjoined (wajib or fard)
3. Disliked but not prohibited (makruh), hence permissible under certain circumstances
4. Recommended but not enjoined (mandub), hence no obligation to comply
5. Simply without any injunction or opinion, and hence permitted through silence (mubah).

It is not commonly realized what a great blessing has been imparted to the Shari`ah by this categorization: It enables the Shari`ah to accord a vast expanse and degree of latitude to individual choice, freedom, and initiative under varying human circumstances. Things which are prohibited or enjoined are few and a major part of man’s day-to-day life falls in the mubah category.

Still more important and revolutionary is the principle that in matters of worship, in a narrow sense, only what has been expressly enjoined or recommended, and nothing else, is obligatory or desirable; while in matters of day-to-day life, whatever is not prohibited is permissible. This closes the door for any religious vested interests to impose upon God’s servants additional burdens and duties in the name of God, as has so often been done in history; but at the same time, it keeps wide open the options for resolving new problems.
For example, even to make a sixth prayer obligatory every day is not permissible. Extra monies cannot be extracted or levied in the name of God or spent for personal ends, as both the amount and heads of expenditure have been specified. But in the matter of food, everything may be eaten with the exception of a few things which have been prohibited. Indeed, no human being has the authority to prohibit what God and His Prophet have not forbidden; to forbid anything permitted by God (halal) is as much of a sin as to do what is prohibited (haram).

A Muslim has the right, whenever it is claimed that something is obligatory or prohibited, to demand the basis for this assertion in the Qur’an or the Sunnah. On another level, while the Qur’an simply lays down the principle that “all affairs of Muslims must be settled by consultation,” how that consultation and the ensuing consensus is to be achieved has been left to be decided by Muslims in each age, according to their own circumstances.

Human Reason and Legislation

Total submission to God does not imply any lesser role for human reason. On the contrary, human reason has a very important and fundamental role to play in the Shari`ah (except that it will be unreasonable for it to overrule its own God). No doubt the Shari`ah is not rational in the sense that its authority does not rest in human reason, but it is rational in the sense that it cannot be meaningfully opposed to reason. This role consists of understanding and interpreting the divine guidance in new or changed situations; applying the divine guidance to actual situations in human life; framing rules, regulations, and byelaws for the implementation of the basic principles and injunctions; legislating in those vast areas where nothing has been laid down in the original sources.

The conduct of the Companions of the Prophet and those who came after them, and the differences in opinions which emerged in the time of the Prophet himself, in the period immediately after him, and among successive generations of Muslims in all spheres of the Shari`ah, bear ample testimony to the role of human reason in the Shari`ah.

Permanence and Change

The role of human reason in the Shari`ah, exercised through understanding and interpretation, ijtihad and consensus, provides it with a built-in mechanism to meet the demands of any changed human situation. The complexities of life and the novelty of the situations which the Muslims faced within 50 years of the Prophet’s death bore no comparison to the simple life in Madinah, yet the Shari`ah successfully coped with all the situations, not only in that period, but for more than a 1,000 years afterwards, indeed, till the Muslims fell under the political subjugation of the Western powers. This in itself is living testimony to its inner vitality and inherent capability to face any challenge.

What is important to understand is that none of what is stable and permanent in the Shari`ah is of a nature as to need change. Where changes are necessary due to newly emerging situations, the Shari`ah has laid down broad principles only, and left its adherents to work out the details. Where it has chosen to be specific, there is in reality no need for change. Again, it is only the changed human situations which the Shari`ah caters for and not for changes in primary and essential values and standards. The divinely-given values and standard are final.

Historical Development

The issues involved in reestablishing the Shari`ah in modern times can be better understood against the background of the history of its development.

The Shari`ah, as the code of life derived from the Qur’an and the Sunnah, in its present form, has developed over a long period of time. During the Prophet’s life, he was available as the supreme source of guidance, and all situations and issues could be referred to him. He either received a direct revelation or laid down the code by his own prophetic knowledge, wisdom, and authority. And, if a situation arose when he could not be approached, the Companions exercised their own judgments to find a solution in the light of the Qur’an and whatever they had learned from the Prophet. That he approved of this procedure is borne out by many instances.

For about 100 years after his death, as the Muslim society expanded and new situations arose, the Companions of the Prophet and the scholars trained by them used the same procedure of understanding, interpreting, and applying the Qur’an and the Sunnah, using their own reason and judgment. On the one hand, the Khilafate Rashida (Rightly Guided Caliphate) provided a central legislative and political machinery for this purpose. And, on the other, Muslims approached any Companion or trusted scholar of the Qur’an and the Sunnah who was near at hand to find out answers to the problems faced by them. They did not consider themselves bound to follow any one particular person and every Companion and scholar answered their questions to the best of his knowledge and wisdom without recourse to any organized body of jurisprudence.
After the period of the Khilafate Rashida, Islamic political authority separated from the legal authority and could not play such an effective role. During the next 150 years, however, many Muslim scholars arose to answer the growing needs of Muslims. They gave definite shape to the principles and concepts which were already being used in determining the Shari`ah, and also dealt with the ever more complex situations being faced by the Muslim society. It was during this period that great jurists like Ja`far As-Sadiq (d. AH 148/765 CE), Abu Hanifa (d. AH 150/767 CE), Malik (d. AH 179/795 CE), Ash-Shafi`i (d. AH 204/819 CE), and Ahmad ibn Hanbal (d. AH 273/886 CE) appeared. Each developed a circle of followers, although there were still no organized schools of law and jurisprudence, ordinary Muslims referring their problems to any scholar they could find. This is how a particular scholar came to be followed more in a particular region.

By AH 350, the principles laid down by these great scholars had developed into well defined schools of thought and had begun to command the exclusive allegiance of scholars. Over the next 300 years, ordinary Muslims also came to adhere to a particular school and owe exclusive allegiance to it. This happened, as explained, because they followed the school of law of the scholar or religious leader they found near and trusted belonged, or in some cases, to which the rulers and judges belonged. Interschool debates and arguments also developed leading to, as often happens in such situations, a hardening of positions.
The fall of Baghdad, in the middle of the seventh century AH, was a watershed. The instinct for preservation became the foremost consideration in an age of intellectual disintegration and political instability. Although there was merit in this caution, the consensus that had been achieved after such tremendous effort by giants could not be allowed to be undone by pygmies. The unwillingness to think dynamically contributed to the decay and intellectual ossification of the Ummah. The situation became worse after Muslims fell under the political subjugation of the European powers; they, however, continued to live by the Shari`ah as best they could. But they were no longer masters of their own affairs as an alien culture did its best to sever their links with their culture and traditions.

Ijtihad
Much ado has been made about the closure of the gate of ijtihad, the subsequent rigidity that set in, and the need for making it wide open today. We have already noted briefly how this happened. Ijtihad worked as a dynamic institution in the first five centuries of Islam. The giant intellectual upsurge generated by the study of the Shari`ah has few parallels. Later, due to circumstances like the Mongol invasion and Western domination, the Muslims had to fall back upon formal law to preserve the identity of the Ummah. But even when the door was presumably closed, whenever new situations arose, efforts were made to find solutions. Of course, those solutions did not involve repudiation of the Qur’an, the Sunnah, and ijma`, which is perhaps what irks so many.

Ijtihad can be done only by those who have the ability and competence, knowledge and understanding, and, above all, the character and piety to undertake the crucial and sacred task of determining the Shari`ah. Whatever may be said about the strictness and rigidity or otherwise of the qualifications imposed by the orthodox, the only criterion that will prevail in the final analysis is that any new ijtihad must find acceptance by the Muslim masses, for Islam has not left its revelations in the care of a “church.”

One thing is certain, Muslims will never accept the ijtihad of Harun Ar-Rashid or a Kemal Ataturk or a Nasser or a Sukarno. An Abu Hanifa, who died in prison and was lashed for his views, or an Ahmad ibn Hanbal, who was persecuted and whipped for his opinions, are more likely to find acceptance by the sheer depth of their faith, steadfastness, fidelity, piety, and knowledge. The ethics of the modernists are all too often based on expediency rather than on exemplary practice of faith; no wonder they can make no headway.

What is required today is a generation of Muslim scholars who know the Qur’an and the Sunnah, who fully understand the value of their heritage of 1,400 years, who are highly knowledgeable about Western thought and the strengths and weaknesses of modern times, who have the intellectual vigor and originality of thought to tackle problems afresh, and who, above all, possess the moral and spiritual qualities which bear testimony to their submission and fidelity to God and His Prophet. And such scholars must be supported by political rulers who will look to ijtihad not as an escape route, but as the true way to live by the Shari`ah.

Unfortunately, since they regained their political independence after the Second World War, many Muslim societies have been in a state of flux. The people who have inherited the political authority from the foreign rulers, by their training and education, are incapable of leading the Muslim masses on the road of the Shari`ah. Conversely, the masses themselves remain committed to following this path, even though they are spiritually and morally weak. The result has been serious inner conflict and tension.

The non-Muslim minorities within Muslim countries and the Western countries, as well as international observers, will do well not to hinder the sometimes painful process of regaining self-identity, but rather seek to understand it, if they can.

Sects and Schools of Law

Will not various schools of law and sects present formidable problems in the implementation of the Shari`ah? Yes, to some extent. As we know, countless scholars and hundreds of schools of thought blossomed during the first four centuries of Islam, its intellectual Golden Age, but only four have survived among Sunnis, and most Shi`as follow Ja`far As-Sadiq. The Hanafi school is predominant in Bangladesh, Pakistan, India, Afghanistan, West Asia, and lower Egypt; the Maliki in North and West Africa; the Shafi`i in Indonesia and Malaysia; the Hanbali in Arabia; and the Ja`fari in Iran and parts of Iraq.

Although there have been periods of dogmatism, sectarian violence, and rigid attitudes (none, however, comparable in intensity to the religious wars of Europe), the differences between the various schools pale into insignificance when compared with their similarities. Indeed, in essentials they hardly have any differences. Divergences occur in the way that two courts, attempting to interpret the same law, may arrive at different conclusions. The differences may present problems, but they are not insurmountable. Although it may be difficult to return to the traditions of the earliest times of Islam, a solution is possible by allowing Muslims in each region to implement the Shari`ah through a consensus of persons commanding the trust of the majority; while in personal law, each sect should be free to follow its own legal system.

Muslim Minorities

Large Muslim communities now live in non-Muslim countries. Many have even made the West their home. How can they live by the Shari`ah? Obviously they have every intention of continuing to live where they are now and of making their own distinctive contribution to the societies around them. This contribution will be based on the rich culture of Islam, at the heart of which is the Shari`ah. That a vast majority of them, under very difficult circumstances, still try to observe the Shari`ah as best they can is a further testimony to its powerful roots.

Unfortunately, Muslims living in non-Muslim countries, especially in the West, face very many difficulties and extreme hardships in their attempts to observe the Shari`ah. The difficulties extend to very small and simple day-to-day matters such as their worship rites and what they may eat, drink, and wear. Few real opportunities are available, for example, to offer Friday Prayers or to have appropriate diets in such institutions as schools, hospitals, and prisons. Indeed, in many cases, the majority communities and their governments simply fail to acknowledge the existence of Muslims in their midst.

Efforts to assimilate Muslims into the majority culture at the expense of their observance of Islam will be of no benefit to the culture itself. Muslims who contravene the Shari`ah live with a permanent sense of inner guilt deriving from the awareness that they have betrayed their own consciences. Such people are of little worth to any society.

*Based on the book Shari`ah: The Way to God, Published by The Islamic Foundation (1981), here excerpted with some modifications from:http://www.witness-pioneer.org/vil/Books/KM_shariah/index.htm