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The
Principle of Movement in the Structure of Islam (continued)
Turning now to the groundwork
of legal principles in the Qur’«n, it is perfectly clear that far from
leaving no scope for human thought and legislative activity the intensive breadth
of these principles virtually acts as an awakener of human thought. Our early
doctors of law taking their clue mainly from this groundwork evolved a number
of legal systems; and the student of Muhammadan history knows very well that
nearly half the triumphs of Islam as a social and political power were due to
the legal acuteness of these doctors. ‘Next to the Romans’, says von
Kremer, ‘there is no other nation besides the Arabs which could call its
own a system of law so carefully worked out.’ But with all their comprehensiveness
these systems are after all individual interpretations, and as such cannot claim
any finality. I know the ‘Ulem« of Islam claim finality for the
popular schools of Muhammadan Law, though they never found it possible to deny
the theoretical possibility of a complete Ijtih«d. I have tried to explain
the causes which, in my opinion, determined this attitude of the ‘Ulem«;
but since things have changed and the world of Islam is confronted and affected
today by new forces set free by the extraordinary development of human thought
in all its directions, I see no reason why this attitude should be maintained
any longer. Did the founders of our schools ever claim finality for their reasonings
and interpretations? Never. The claim of the present generation of Muslim liberals
to reinterpret the foundational legal principles, in the light of their own
experience and the altered conditions of modern life is, in my opinion, perfectly
justified. The teaching of the Qur’«n that life is a process of progressive
creation necessitates that each generation, guided but unhampered by the work
of its predecessors, should be permitted to solve its own problems.
You will, I think, remind
me here of the Turkish poet Êiy« whom I quoted a moment ago, and ask whether
the equality of man and woman demanded by him, equality, that is to say, in
point of divorce, separation, and inheritance, is possible according to Muhammadan
Law. I do not know whether the awakening of women in Turkey has created demands
which cannot be met with without a fresh interpretation of foundational principles.
In the Punjab, as everybody knows, there have been cases in which Muslim women
wishing to get rid of undesirable husbands have been driven to apostasy.39
Nothing could be more distant from the aims of a missionary religion. The Law
of Islam, says the great Spanish jurist Im«m Sh«tibâin his al-Muwafiq«t, aims
at protecting five things - Dân, Nafs, ‘Aql, M«l, and Nasl.40
Applying this test I venture to ask: ‘Does the working of the rule relating
to apostasy, as laid down in the Hed«yah tend to protect the interests
of the Faith in this country?’41 In view of the intense conservatism
of the Muslims of India, Indian judges cannot but stick to what are called standard
works. The result is that while the peoples are moving the law remains stationary.
With regard to the Turkish
poet’s demand, I am afraid he does not seem to know much about the family
law of Islam. Nor does he seem to understand the economic significance of the
Quranic rule of inheritance.42 Marriage, according to Muhammadan
Law, is a civil contract.43 The wife at the time of marriage is at
liberty to get the husband’s power of divorce delegated to her on stated
conditions, and thus secure equality of divorce with her husband. The reform
suggested by the poet relating to the rule of inheritance is based on a misunderstanding.
From the inequality of their legal shares it must not be supposed that the rule
assumes the superiority of males over females. Such an assumption would be contrary
to the spirit of Islam. The Qur’«n says:
And for women are rights
over men similar to those for men over women’ (2:228).
The share of the daughter
is determined not by any inferiority inherent in her, but in view of her economic
opportunities, and the place she occupies in the social structure of which she
is a part and parcel. Further, according to the poet’s own theory of society,
the rule of inheritance must be regarded not as an isolated factor in the distribution
of wealth, but as one factor among others working together for the same end.
While the daughter, according to Muhammadan Law, is held to be full owner of
the property given to her by both the father and the husband at the time of
her marriage; while, further, she absolutely owns her dower-money which may
be prompt or deferred according to her own choice, and in lieu of which she
can hold possession of the whole of her husband’s property till payment,
the responsibility of maintaining her throughout her life is wholly thrown on
the husband. If you judge the working of the rule of inheritance from this point
of view, you will find that there is no material difference between the economic
position of sons and daughters, and it is really by this apparent inequality
of their legal shares that the law secures the equality demanded by the Turkish
poet. The truth is that the principles underlying the Quranic law of inheritance
- this supremely original branch of Muhammadan Law as von Kremer describes it
- have not yet received from Muslim lawyers the attention they deserve.44
Modern society with its bitter class-struggles ought to set us thinking; and
if we study our laws in reference to the impending revolution in modern economic
life, we are likely to discover, in the foundational principles, hitherto unrevealed
aspects which we can work out with a renewed faith in the wisdom of these principles.
(b) The Àadâth. The second
great source of Muhammadan Law is the traditions of the Holy Prophet. These
have been the subject of great discussion both in ancient and modern times.
Among their modern critics Professor Goldziher has subjected them to a searching
examination in the light of modern canons of historical criticism, and arrives
at the conclusion that they are, on the whole, untrustworthy.45 Another
European writer, after examining the Muslim methods of determining the genuineness
of a tradition, and pointing out the theoretical possibilities of error, arrives
at the following conclusion:
‘It must be said in
conclusion that the preceding considerations represent only theoretical possibilities
and that the question whether and how far these possibilities have become actualities
is largely a matter of how far the actual circumstances offered inducements
for making use of the possibilities. Doubtless, the latter, relatively speaking,
were few and affected only a small proportion of the entire Sunnah. It may therefore
be said that . . . for the most part the collections of Sunnah considered by
the Moslems as canonical are genuine records of the rise and early growth of
Islam’ (Mohammedan Theories of Finance).46
For our present purposes,
however, we must distinguish traditions of a purely legal import from those
which are of a non-legal character. With regard to the former, there arises
a very important question as to how far they embody the pre-Islamic usages of
Arabia which were in some cases left intact, and in others modified by the Prophet.
It is difficult to make this discovery, for our early writers do not always
refer to pre-Islamic usages. Nor is it possible to discover that usages, left
intact by express or tacit approval of the Prophet, were intended to be universal
in their application. Sh«h WalâAll«h has a very illuminating discussion on the
point. I reproduce here the substance of his view. The prophetic method of teaching,
according to Sh«h WalâAll«h, is that, generally speaking, the law revealed by
a prophet takes especial notice of the habits, ways, and peculiarities of the
people to whom he is specifically sent. The prophet who aims at all-embracing
principles, however, can neither reveal different principles for different peoples,
nor leaves them to work out their own rules of conduct. His method is to train
one particular people, and to use them as a nucleus for the building up of a
universal Sharâ‘ah. In doing so he accentuates the principles underlying
the social life of all mankind, and applies them to concrete cases in the light
of the specific habits of the people immediately before him. The Sharâ‘ah
values (AÁk«m) resulting from this application (e.g. rules relating to penalties
for crimes) are in a sense specific to that people; and since their observance
is not an end in itself they cannot be strictly enforced in the case of future
generations.47 It was perhaps in view of this that Abë Àanâfah, who
had, a keen insight into the universal character of Islam, made practically
no use of these traditions. The fact that he introduced the principle of IstiÁs«n,
i.e. juristic preference, which necessitates a careful study of actual conditions
in legal thinking, throws further light on the motives which determined his
attitude towards this source of Muhammadan Law. It is said that Abë Àanâfah
made no use of traditions because there were no regular collections in his day.
In the first place, it is not true to say that there were no collections in
his day, as the collections of ‘Abd al-M«lik and Zuhrâ were made not less
than thirty years before the death of Abë Àanâfah. But even if we suppose that
these collections never reached him, or that they did not contain traditions
of a legal import, Abë Àanâfah, like M«lik and AÁmad Ibn Àanbal after him, could
have easily made his own collection if he had deemed such a thing necessary.
On the whole, then, the attitude of Abë Àanâfah towards the traditions of a
purely legal import is to my mind perfectly sound; and if modern Liberalism
considers it safer not to make any indiscriminate use of them as a source of
law, it will be only following one of the greatest exponents of Muhammadan Law
in Sunni Islam. It is, however, impossible to deny the fact that the traditionists,
by insisting on the value of the concrete case as against the tendency to abstract
thinking in law, have done the greatest service to the Law of Islam. And a further
intelligent study of the literature of traditions, if used as indicative of
the spirit in which the Prophet himself interpreted his Revelation, may still
be of great help in understanding the life-value of the legal principles enunciated
in the Qur’«n. A complete grasp of their life-value alone can equip us
in our endeavour to reinterpret the foundational principles.
(c) The Ijm«`’.
The third source of Muhammadan Law is Ijm«’ which is, in my opinion,
perhaps the most important legal notion in Islam. It is, however, strange that
this important notion, while invoking great academic discussions in early Islam,
remained practically a mere idea, and rarely assumed the form of a permanent
institution in any Muhammadan country. Possibly its transformation into a permanent
legislative institution was contrary to the political interests of the kind
of absolute monarchy that grew up in Islam immediately after the fourth Caliph.
It was, I think, favourable to the interest of the Umayyad and the Abbasid Caliphs
to leave the power of Ijtih«d to individual Mujtahids rather than
encourage the formation of a permanent assembly which might become too powerful
for them. It is, however, extremely satisfactory to note that the pressure of
new world-forces and the political experience of European nations are impressing
on the mind of modern Islam the value and possibilities of the idea of Ijm«’.
The growth of republican spirit and the gradual formation of legislative assemblies
in Muslim lands constitute a great step in advance. The transfer of the power
of Ijtih«d from individual representatives of schools to a Muslim legislative
assembly which, in view of the growth of opposing sects, is the only possible
form Ijm«’ can take in modern times, will secure contributions to
legal discussion from laymen who happen to possess a keen insight into affairs.
In this way alone can we stir into activity the dormant spirit of life in our
legal system, and give it an evolutionary outlook. In India, however, difficulties
are likely to arise for it is doubtful whether a non-Muslim legislative assembly
can exercise the power of Ijtih«d.
But there are one or two
questions which must be raised and answered in regard to the Ijm«’.
Can the Ijm«’ repeal the Qur’«n? It is unnecessary to raise
this question before a Muslim audience, but I consider it necessary to do so
in view of a very misleading statement by a European critic in a book called
Mohammedan Theories of Finance - published by the Columbia University.
The author of this book says, without citing any authority, that according to
some Hanafâ and Mu‘tazilah writers the Ijm«’ can repeal the
Qur’«n.48 There is not the slightest justification for such
a statement in the legal literature of Islam. Not even a tradition of the Prophet
can have any such effect. It seems to me that the author is misled by the word
Naskh in the writings of our early doctors to whom, as Im«m Sh«Çibâë points
out in al-Muwaffiq«t, vol. iii, p. 65, this word, when used in discussions relating
to the Ijm«’ of the companions, meant only the power to extend or
limit the application of a Quranic rule of law, and not the power to repeal
or supersede it by another rule of law. And even in the exercise of this power
the legal theory, as ‘Amâdâ- a Sh«fi‘â doctor of law who died about
the middle of the seventh century, and whose work is recently published in Egypt
- tells us, is that the companions must have been in possession of a Sharâ‘ah
value (Àukm) entitling them to such a limitation or extension.49
But supposing the companions
have unanimously decided a certain point, the further question is whether later
generations are bound by their decision. Shauk«nâ has fully discussed this point,
and cited the views held by writers belonging to different schools.50
I think it is necessary in this connexion to discriminate between a decision
relating to a question of fact and the one relating to a question of law. In
the former case, as for instance, when the question arose whether the two small
Sërahs known as Mu‘awwidhat«n 51 formed part of
the Qur’«n or not, and the companions unanimously decided that they did,
we are bound by their decision, obviously because the companions alone were
in a position to know the fact. In the latter case the question is one of interpretation
only, and I venture to think, on the authority of Karkhâ, that later generations
are not bound by the decision of the companions. Says Karkhâ: ‘The Sunnah
of the companions is binding in matters which cannot be cleared up by Qiy«s,
but it is not so in matters which can be established by Qiy«s.’52
One more question may be
asked as to the legislative activity of a modern Muslim assembly which must
consist, at least for the present, mostly of men possessing no knowledge of
the subtleties of Muhammadan Law. Such an assembly may make grave mistakes in
their interpretation of law. How can we exclude or at least reduce the possibilities
of erroneous interpretation? The Persian constitution of 1906 provided a separate
ecclesiastical committee of ‘Ulem« - ‘conversant with the affairs
of the world’ - having power to supervise the legislative activity of the
Mejlis. This, in my opinion, dangerous arrangement is probably necessary
in view of the Persian constitutional theory. According to that theory, I believe,
the king is a mere custodian of the realm which really belongs to the Absent
Im«m. The ‘Ulem«, as representatives of the Im«m,
consider themselves entitled to supervise the whole life of the community, though
I fail to understand how, in the absence of an apostolic succession, they establish
their claim to represent the Im«m. But whatever may be the Persian constitutional
theory, the arrangement is not free from danger, and may be tried, if at all,
only as a temporary measure in Sunnâ countries.53 The ‘Ulem«
should form a vital part of a Muslim legislative assembly helping and guiding
free discussion on questions relating to law. The only effective remedy for
the possibilities of erroneous interpretations is to reform the present system
of legal education in Muhammadan countries, to extend its sphere, and to combine
it with an intelligent study of modern jurisprudence.54
(d) The Qiy«s. The
fourth basis of Fiqh is Qiy«s, i.e. the use of analogical reasoning
in legislation. In view of different social and agricultural conditions prevailing
in the countries conquered by Islam, the school of Abë Àanâfah seem to have
found, on the whole, little or no guidance from the precedents recorded in the
literature of traditions. The only alternative open to them was to resort to
speculative reason in their interpretations. The application of Aristotelian
logic, however, though suggested by the discovery of new conditions in Iraq,
was likely to prove exceedingly harmful in the preliminary stages of legal development.
The intricate behaviour of life cannot be subjected to hard and fast rules logically
deducible from certain general notions. Yet, looked at through the spectacles
of Aristotle’s logic, it appears to be a mechanism pure and simple with
no internal principle of movement. Thus, the school of Abë Àanâfah tended to
ignore the creative freedom and arbitrariness of life, and hoped to build a
logically perfect legal system on the lines of pure reason. The legists of Àij«z,
however, true to the practical genius of their race, raised strong protests
against the scholastic subtleties of the legalists of Iraq, and their tendency
to imagine unreal cases which they rightly thought would turn the Law of Islam
into a kind of lifeless mechanism. These bitter controversies among the early
doctors of Islam led to a critical definition of the limitations, conditions,
and correctives of Qiy«s which, though originally appeared as a mere
disguise for Mujtahid’s personal opinion, eventually became a source
of life and movement in the Law of Islam. The spirit of the acute criticism
of M«lik and Sh«fi‘â on Abë Àanâfah’s principle of Qiy«s, as
a source of law, constitutes really an effective Semitic restraint on the Aryan
tendency to seize the abstract in preference to the concrete, to enjoy the idea
rather than the event. This was really a controversy between the advocates of
deductive and inductive methods in legal research. The legists of Iraq originally
emphasized the eternal aspect of the ‘notion’, while those of Àij«z
laid stress on its temporal aspect. The latter, however, did not see the full
significance of their own position, and their instinctive partiality to the
legal tradition of Àij«z narrowed their vision to the ‘precedents’
that had actually happened in the days of the Prophet and his companions. No
doubt they recognized the value of the concrete, but at the same time they eternalized
it, rarely resorting to Qiy«s based on the study of the concrete as such.
Their criticism of Abë Àanâfah and his school, however, emancipated the concrete
as it were, and brought out the necessity of observing the actual movement and
variety of life in the interpretation of juristic principles. Thus the school
of Abë Àanâfah which fully assimilated the results of this controversy is absolutely
free in its essential principle and possesses much greater power of creative
adaptation than any other school of Muhammadan Law. But, contrary to the spirit
of his own school, the modern Hanafâ legist has eternalized the interpretations
of the founder or his immediate followers much in the same way as the early
critics of Abë Àanâfah eternalized the decisions given on concrete cases. Properly
understood and applied, the essential principle of this school, i.e. Qiy«s,
as Sh«fi‘â rightly says, is only another name for Ijtih«d 55
which, within the limits of the revealed texts, is absolutely free; and its
importance as a principle can be seen from the fact that, according to most
of the doctors, as Q«dâ Shauk«nâ tells us, it was permitted even in the lifetime
of the Holy Prophet.56 The closing of the door of Ijtih«d
is pure fiction suggested partly by the crystallization of legal thought in
Islam, and partly by that intellectual laziness which, especially in the period
of spiritual decay, turns great thinkers into idols. If some of the later doctors
have upheld this fiction, modern Islam is not bound by this voluntary surrender
of intellectual independence. Zarkashâ writing in the eighth century of the
Hijrah rightly observes:
‘If the upholders
of this fiction mean that the previous writers had more facilities, while the
later writers had more difficulties, in their way, it is, nonsense; for it does
not require much understanding to see that Ijtih«d for later doctors
is easier than for the earlier doctors. Indeed the commentaries on the Kor«n
and sunnah have been compiled and multiplied to such an extent that the
mujtahid of today has more material for interpretation than he needs’.
57
This brief discussion,
I hope, will make it clear to you that neither in the foundational principles
nor in the structure of our systems, as we find them today, is there anything
to justify the present attitude. Equipped with penetrative thought and fresh
experience the world of Islam should courageously proceed to the work of reconstruction
before them. This work of reconstruction, however, has a far more serious aspect
than mere adjustment to modern conditions of life. The Great European War bringing
in its wake the awakening on Turkey - the element of stability in the world
of Islam - as a French writer has recently described her, and the new economic
experiment tried in the neighbourhood of Muslim Asia, must open our eyes to
the inner meaning and destiny of Islam.58 Humanity needs three things
today - a spiritual interpretation of the universe, spiritual emancipation of
the individual, and basic principles of a universal import directing the evolution
of human society on a spiritual basis. Modern Europe has, no doubt, built idealistic
systems on these lines, but experience shows that truth revealed through pure
reason is incapable of bringing that fire of living conviction which personal
revelation alone can bring. This is the reason why pure thought has so little
influenced men, while religion has always elevated individuals, and transformed
whole societies. The idealism of Europe never became a living factor in her
life, and the result is a perverted ego seeking itself through mutually intolerant
democracies whose sole function is to exploit the poor in the interest of the
rich. Believe me, Europe today is the greatest hindrance in the way of man’s
ethical advancement. The Muslim, on the other hand, is in possession of these
ultimate ideas of the basis of a revelation, which, speaking from the inmost
depths of life, internalizes its own apparent externality. With him the spiritual
basis of life is a matter of conviction for which even the least enlightened
man among us can easily lay down his life; and in view of the basic idea of
Islam that there can be no further revelation binding on man, we ought to be
spiritually one of the most emancipated peoples on earth. Early Muslims emerging
out of the spiritual slavery of pre-Islamic Asia were not in a position to realize
the true significance of this basic idea. Let the Muslim of today appreciate
his position, reconstruct his social life in the light of ultimate principles,
and evolve, out of the hitherto partially revealed purpose of Islam, that spiritual
democracy which is the ultimate aim of Islam.59
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Notes]
Date/Time Last Modified: 6/18/2002 8:03:45 AM
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