Voices of Islam (36 page)

This distinction between what is and what is not enforceable in a court of justice can also be seen in the scale of Five Values: obligatory (
wajib
), recom- mended (
mandub
), permissible (
mubah
), reprehensible (
makruh
), and for- bidden (
haram
). Of these Five Values, only the first and the last, the obligatory and the forbidden, are legal categories. The remaining three cat- egories are moral in nature and thus are not actionable in court. A lawfully constituted government is authorized, however, to deem a reprehensible act forbidden and a recommended act obligatory if public interest dictates such.

The same distinction between moral and juridical obligations also charac- terizes the difference between adjudication (
qada
) and juristic opinion (
fatwa
). The judge (
qadi
) must decide his cases based on apparent evidence, whereas a jurisconsult (
mufti
) investigates both the apparent and the actual positions. Both are reflected in his verdict. In the event of a conflict between the two positions, the
mufti
can base his
fatwa
on religious considerations, whereas the judge must consider objective evidence only. Hence, a pious individual in a court case is not treated differently from a person of question- able piety or of no apparent religion.

The
Shari‘a:
Law as the Way of God
165

This dual approach to rights and duties can also be seen in the different ori- entations of the legal schools with regard to externality and intent. As already noted, the Shafi‘i and Hanafi schools tend to stress the external form of con- duct without exploring the intent behind it, whereas the Maliki and Hanbali schools are inclined toward the opposite position. This can be illustrated with reference to the contract of marriage. If a man marries a woman with the sole intention of sexual gratifi ation and then divorces her soon afterward, the marriage is invalid according to the Maliki and Hanbali schools but is lawful according to the Hanafi and Shafi schools. All that is necessary according to the Hanafi and Shafi‘i schools is that the legal requirements of a valid con- tract of marriage are fulfilled. The other two schools base their judgment on the underlying intent of the act and maintain that distortions should be rec- tified whenever they become known.

This difference of attitude can also be seen with regard to legal stratagems (
hiyal fiqhiyya
), such as in the following case: Person A sells a piece of cloth to person B for $100 payable in one year. Then he immediately buys the same cloth for $80 paid on the spot. This is considered disguised usury (
riba
) because it amounts to charging an interest rate of 20 percent for a deferred payment of $100 over one year. This can be seen as circumventing the Shari‘a prohibition against usury by violating its intent. The Malikis and Hanbalis reject such stratagems on this basis, but the Hanafis and Shafi‘is allow such sales, provided they are not made fraudulently and that they realize a benefit.
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The Shari‘a also contains provisions on expiations (
kaffara
), which are self- inflicted punishments of a religious character that the courts are not author- ized to enforce. For example, when a person breaks a solemn oath, he may expiate it by giving charity sufficient to feed 10 poor persons, or alternatively he may fast for three days. Similar other expiations are provided for in the

Qur’an. However, none of them are legally enforceable.

Morality and religion are closely interrelated. The Prophet declared in a hadith, ‘‘I have been sent to accomplish the virtues of morality.’’ The moral overtones of the Shari‘a are seen in its propensity toward duty and respon- sibility (
taklif
). This is so much the case that some Western scholars have characterized the Shari‘a as a ‘‘system of duties’’ in comparison with statutory law, which often speaks of rights. The facts that the Shari‘a proscribes usury, wine drinking, and gambling; proclaims legal alms (
Zakat
) as a duty; and encourages ‘‘lowering the gaze’’ between members of the opposite sex are all reflective of the moral underpinnings of the Shari‘a. The moral nature of the Shari‘a can also be seen in the rules pertaining to war, in which the Shari‘a forbids maiming, injury to children, women, and the elderly, and damage to animals, crops, and buildings. The Prophet and the early Caliphs after him condemned cruelty to animals and took to task those who caused them hard- ship and abuse. Although infractions such as these are not enforceable in a court of law, in premodern times the market controller (
muhtasib
) was authorized to intervene and stop such practices.

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Voices of Tradition

Continuity and Change

It is often said by Muslims that Islamic law is immutable because it is divinely ordained. However, the divine law itself includes a certain amount of adaptability and change in its philosophy and outlook. Some of the basic principles of the Shari‘a, such as justice, equality, public interest, consultation, and enjoining the good and forbidding evil, are inherently dynamic and cannot be accurately described as either mutable or immutable. They are immutable in principle and yet remain open to adaptation and adjustment on the level of imple- mentation. The fundamentals of faith and the practical pillars on which it stands, the basic moral values of Islam, and its clear injunctions are on the whole permanent and unchangeable. However, in many other areas the Shari‘a provides only general guidelines whose details may be adjusted and modifi through the exercise of reasoning and
ijtihad
.

Broadly speaking, the Shari‘a is immutable with regard to ends but mutable with regard to means. Moral ends such as promoting human dignity, justice, and equality; the realization of lawful benefi for the people; the prevention of harm; and removal of hardship are among the overriding objectives of the Shari‘a. In their broad outlines, these objectives are permanent and unchangeable. However, the means of securing the recognized objectives of the Shari‘a are flexible since they are not specified in the sources and thus remain open to considerations of public policy and justice. For example, vindicating the truth is an objective in its own right. Truth may be established by the testimony of upright witnesses or by other means as they become available, such as sound recording, photography, or laboratory analysis, which may be even more reliable than verbal testimony. The Shari‘a specifies the objective of upholding the truth but leaves open the means by which the truth is ascertained. One
fiqh
rule that is often criti- cized in the West is that the testimony of two females is equal to that of one male. Muslim jurists of the medieval era apparently upheld this rule in light of the prevailing conditions of their time. There is a reference in the Qur’an that validates the testimony of men and women in that order. However, the reference does not specifically preclude the testimony of female witnesses in any specified number, with or without male witnesses. Many contemporary Muslim scholars believe that the legal interpretation of the Qur’an should be goal oriented and responsive to the realities of contemporary Muslim society. Thus, if the overriding objectives of truth and justice are better served by admitting the testimony of female witnesses on an equal basis with that of male witnesses—especially when women are the only witnesses available in a particular case—a judge should not hesitate to admit them as witnesses and adjust the rules of
fiqh
to that effect.
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The
Shari‘a:
Law as the Way of God
167

Ratiocination (Ta‘lil)

As a principle of jurisprudence, ratiocination is a step beyond interpreta- tion (
tafsir
or
ta’wil
), in that the latter is confi to the words and sentences of the text, while ratiocination looks into the rationale and purpose of the text. The rules of the Shari‘a are accordingly derived from the proper effective cause or causes (
‘illa
) of a ruling in a text, which must be present if the rules are to be implemented. The practice of ratiocination in Islamic jurisprudence takes its origin from the Qur’an. Unlike statutes, textual rulings of the Qur’an often espouse an appeal to the reason and conscience of its audience. On numerous occasions the text explains the rationale, effective cause, intention, purpose, or consequences of its ruling. This aspect of the Qur’an, known as
Ta‘lil,
is also supported in the frequent references the text makes to those who think, enquire into the world around them, and draw rational conclusions from their observations.

Ratiocination is also an essential component of analogical reasoning (
qiyas
), in that an analogy cannot be constructed without the identification of an effective cause that is common between the original case and the new case. Ratiocination is not valid with regard to devotional matters, but outside of this sphere the Shari‘a encourages investigation and enquiry into its logic. Ratiocination in the Qur’an means that the laws of the Qur’an are not imposed for the sake of mere conformity to rules but that they aim at the realization of certain benefi and objectives. When the effective cause, rationale, and objective of an injunction are properly ascertained, these serve as basic indicators of the continued validity of the injunction. Conversely, when a ruling of the Shari‘a outside of the sphere of devotional matters no longer serves its original intention and purpose, it is the proper role of the scholar (
mujtahid
) to substitute a suitable alternative for it.

An early instance of ratiocination is noted in the decision of the second Caliph, ‘Umar ibn al-Khattab (d. 643), who suspended the influential former pagans’ share in
Zakat
revenues. Although the Qur’an assigned a share of the Zakat Tax for them (Qur’an 9:60), the Caliph discontinued this practice on the argument that ‘‘God has exalted Islam and it is no longer in need of their support.’’ The Caliph thus departed, on purely rational grounds, from the letter of the Qur’an in favor of its wider interpretation because of the change of circumstances.

It is also reported that the Prophet’s widow ‘A’isha reversed the ruling of the hadith that had allowed women to attend mosques for congregational prayers, stating that owing to the spread of moral corruption among the Muslims, the Prophet would have done the same were he alive. Once again, I must add that because of the change of conditions in our own time, the prevailing custom permits women’s participation in almost all

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occupations. Thus, it would no longer make sense that the mosque should be the only place where women should not be present. The specific cause and argument may vary in each case, but the basic rationales behind the practice of ratiocination are the common good and caution against irrational conformity to rules. In the practice of Islamic jurisprudence, ratiocination is thus indispensable to juridical reasoning. The majority of legal scholars have upheld this practice on the belief that a mechanical reading of the text that is devoid of wisdom and driven only by considera- tions of conformity should be avoided whenever possible.

Gradualism and Pragmatism

The Shari‘a favors a gradual approach to legislation and social reform. This is amply illustrated in the fact that the Qur’an was revealed over a period of 23 years and much of it was revealed in relationship to actual events. As noted earlier, the Meccan portion of the Qur’an was devoted to moral teaching and dogma and contained little legislation. Legislation is almost entirely a phenomenon of the Medina verses. Even in Medina, many of the laws of the Qur’an were revealed in stages. For example, the fi ban on wine drinking (Qur’an 5:90) was preceded by two separate declarations, one of which merely referred to the adverse effects of intoxication (Qur’an 2:219). Another verse proscribed drinking during ritual prayer before wine drinking was finally banned altogether (Qur’an 4:43). This manner of legislation can also be seen with respect to the fi daily prayers, which were initially fi

at two and were later raised to five. Also, the payment of the Zakat Alms Tax, which was an optional charity to begin with, became obligatory after the Prophet’s migration to Medina. Finally, the practice of fasting was also optional at fi and was later made into a religious duty. Some of the earlier rulings of the Qur’an were subsequently abrogated and replaced in light of the new circumstances that the nascent community experienced in Medina.
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Islamic law favors realistic reform but it is averse to abrupt revolutionary changes. This is conveyed in the advice that the Umayyad Caliph ‘Umar ibn ‘Abd al-‘Aziz (d. 720
CE
) gave to his ambitious son ‘Abd al-Malik, who sug- gested to his father that God had granted him the power to end corruption in society. The Caliph advised against such a course, saying that Almighty God Himself denounced wine drinking twice before He banned it. ‘‘If I take sweeping action even in the right cause and infl it on people all at once, I fear revolt and the possibility that they may reject [my reforms] all at once.’’ Commenting on this account, the contemporary jurist Yusuf al-Qaradawi wrote, ‘‘This is a correct understanding of Islam. The kind of understanding that is implied in the very meaning of
fi
and would be unquestionably upheld by it.’’
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The
Shari‘a:
Law as the Way of God
169

The pragmatism of the Shari‘a is also manifested in the frequent conces- sions it makes to those, including the sick, the elderly, pregnant women, and travelers, who face hardship regarding daily prayers and fasting. It also makes provisions for emergencies, in which the rules of Shari‘a may be tem- porarily suspended on grounds of necessity. Thus, according to a legal maxim, the opinion (
fatwa
) of a
mujtahid
must take into consideration changes of time and circumstance. We note, for instance, that people were not allowed in the early days of Islam to charge a fee for teaching the Qur’an, as this was an act of spiritual merit. Later, however, it was noted that people no longer volunteered to teach, and their knowledge of the Qur’an suffered a decline. The jurists consequently issued a verdict that reversed the former position and allowed payment of remuneration for the teaching of Qur’an. Note also the pragmatic verdict of Imam Malik, which permitted the pledg- ing of allegiance (
bay‘a
) for the lesser qualified of two candidates for leader- ship, if this is deemed to be in the public interest. The normal rule requires that allegiance only be given to the most qualified candidate. On a similar note, normal rules require that a judge should be a learned
mujtahid
; how- ever, a person of lesser qualifi ation may be appointed should there be a shortage of qualifi persons for judicial posts. The same logic applies to the uprightness of a witness. In the event, however, where the only witness in a case is a person of lesser qualifi ations, the judge may admit him and adjudicate the case if this is deemed the only reasonable alternative. Thus, the judge, jurist, and ruler are advised not to opt for a more difficult decision in the event where an easier option is justified.