Voices of Islam (37 page)

Individualism and Communitarianism

Islamic law requires that government affairs be conducted in consultation with the community and that the government should strive to secure the public interest (
maslaha
). This is the subject of the following legal maxim: ‘‘The affairs of the Imam are determined by reference to public interest.’’ According to another legal maxim, instances of conflict between public and private interests must be determined in favor of the public. Public interest is thus the criterion by which the success and failure of government is measured from the perspective of the Shari‘a.

Notwithstanding its communitarian orientation, the Shari‘a is also inher- ently individualistic. The individualism of the Shari‘a can be seen in the idea that religion is primarily a matter of individual conscience. The individualistic orientation of the Shari‘a is manifested in a variety of other ways too, includ- ing the fact that the rules of the Shari‘a are addressed directly to the
mukallaf,
the legally competent individual. The individualism of the Shari‘a was strong enough to persuade the sectarian Kharijites (literally, ‘‘Secessionists’’) and certain groups of Islamic rationalists to embrace the view that forming a

170
Voices of Tradition

government was not a religious obligation. According to this view, since the Shari‘a addressed individuals directly, if every person complied with its rul- ings, justice would prevail without the need for a government. These and similar other views were expressed on the assumption of a basic harmony between the interests of the individual and those of the community.

From a legal perspective, Islam pursues its social objectives through the re- form of the individual. The individual is seen as a morally autonomous agent who plays a distinctive role in shaping the community’s sense of direction and purpose. An individual is admittedly required to obey the government (Qur’an 4:59), but he obeys the ruler only on the condition that the ruler obeys the Shari‘a. This is refl in the renowned hadith, ‘‘There is no obedience in transgression, obedience is only in righteousness.’’
13
One can also quote two other traditions that substantiate the moral autonomy of the individual. In one of these traditions, the Prophet instructed believers to ‘‘tell the truth even if it be unpleasant.’’ In the other, he declared, ‘‘The best form of
jihad
is to tell a word of truth to an oppressive ruler.’’
14

The dignity and welfare of the person is of central concern to Islamic law. Scholars have agreed that the Shari‘a should uphold fi essential goals (
maqasid al-Shari‘a
). These are religion, life, intellect, property, and lineage. Each of these goals is premised on the dignity of the person, which must be protected as a matter of priority. Although the basic interests of the commu- nity and those of the individual are thought to coincide within the structure of these goals, the main focus is nevertheless on the individual.

The Qur’anic principle of enjoining good and forbidding evil (
hisba
) is pri- marily addressed to the individual as well, although it is also a responsibility for the community and for government. The individualism behind this prin- ciple can be seen in a hadith that states: ‘‘If any of you sees an evil, let him change it by his hand. If he is unable to do that, let him change it by his words. If he is still unable to do that, then let him denounce it in his heart, but this is the weakest form of belief.’’
15
The ruling conveyed in this hadith is supportive of the moral autonomy of the individual and validates, at least in principle, a citizen’s power of arrest. In dealing with this issue, Muslim jurists have concluded that the individual must act with conviction when he believes that the initiative he takes is likely to achieve the desired result. How- ever, he is advised not to act if he is convinced that his intervention, however well intended, might cause a harm equal to or greater than the one he is try- ing to avert.

A related Qur’anic principle is that of sincere advice (
nasiha
). This princi- ple entitles an individual to advise a fellow citizen, including the head of state and his officials, or rectify an error on his part. The main difference between
hisba
and
nasiha
is that the former is concerned with events that are actually witnessed at the time they occur.
Nasiha
is not confi to the actual moment of direct observation and, as such, is more flexible. The individualis- tic aspect of the Shari‘a is also manifested in the Qur’anic advice to the

The
Shari‘a:
Law as the Way of God
171

believers, ‘‘Take care of your own selves. If you are righteous, the misguided will not succeed in trying to lead you astray’’ (Qur’an 5:105). Although Islam encourages the call to religion (
da‘wa
), the Qur’an proclaims, ‘‘Let there be no compulsion in religion’’ (Qur’an 2:256). In the context of a mixed marriage, this means that a Muslim husband is required to respect the individuality of his non-Muslim wife; he is therefore not allowed to press her into embracing Islam.

The individualistic aspect of the Shari‘a can also be seen in the history of the development of Islamic law. Islamic law is often characterized as a ‘‘jurists’ law,’’ mainly developed by private jurists who made their contribu- tions as pious individuals rather than as government functionaries and lead- ers. This aspect of Islamic legal history is also seen as a factor for its stability, in that it was not particularly dependent on government participation and support. Governments came and went but Shari‘a remained as the common law of Muslims. Another dimension of this picture was that relations between the government and the ulama were less than amicable since the period of the Umayyad dynasty (661–750
CE
). The secularist tendencies of the Umayyad rulers marked the end of the Righteous Caliphate, and the ulama became increasingly critical of this change of direction in the system of government. The ulama also retained their independence by turning to prominent individ- uals among them, which led eventually to the formation of the schools of law. The ethical principles established by these schools often conflicted with the political goals of Muslim rulers. The immunities against prosecution, for example, which are enjoyed by monarchs and heads of state, state assemblies, and diplomats in other legal systems, are absent in Islamic law. No one can claim immunity for his conduct merely because of social or official status.

Two of the most important principles of Islamic law, personal reasoning (
ijtihad
) and consensus (
ijma‘
), were put into practice by the jurists without the participation of the government in power.
Ijtihad
and
ijma‘
were the nearest equivalent to parliamentary legislation in premodern Islam.
Ijtihad
was practiced mainly by individual jurists.
Ijma‘
is broadly described as the unanimous consensus of the qualified scholars of the Muslim community on a particular issue. As such,
ijma‘
can be initiated by individual jurists, who make their ruling binding on the government without the government’s participation. The jurist who carries out
ijtihad
also enjoys independence from the government. He is expected to act on the merit of each case in line with the guidelines of Shari‘a alone.

GOALS AND OBJECTIVES (
MAQASID
) OF THE SHARI‘A

The Goals of the Shari‘a (
maqasid al-Shari‘a
) offer a comprehensive read- ing of the Shari‘a that is particularly meaningful to contemporary Islamic jurisprudence. The concept of the Goals of the Shari‘a emerged at a later

172
Voices of Tradition

stage in the history of Islamic jurisprudence and gained prominence only after the methodologies of the schools of jurisprudence lost the ability to stimulate
ijtihad
. The chief exponents of
maqasid al-Shari‘a,
Abu Ishaq Ibrahim al-Shatibi (d. 1387
CE
), and more recently, Tahir ibn ‘Ashur (d. 1973), have emphasized that the jurist must have an adequate under- standing of the goals and purposes of Shari‘a to avoid errors in
ijtihad
.
16

The Qur’an expresses its objectives when it characterizes itself as ‘‘a guid- ance and mercy for the believers’’ (Qur’an 10:75) and when it characterizes the Prophet Muhammad’s mission as ‘‘a mercy to all of God’s creatures’’ (Qur’an 21:107). Ibn Qayyim al-Jawziyya (d. 1351
CE
) explains that the Shari‘a aims to safeguard people’s interests in this world and the next: ‘‘In its entirety, [the Shari‘a] is justice, mercy and wisdom.’’ In order to attain these objectives, the Shari‘a focuses on educating the individual to administer justice and realize the benefit (
maslaha
) of the self as well as the community.
17

Educating the Individual

Islam inspires the individual with faith and teaches the believer to be trust- worthy and righteous. It is through reforming the individual that Islam achieves its social goals. Acts of devotion (
‘ibadat
) are part of Islam’s educa- tional program. The
‘ibadat
aim at purifying the mind and heart from cor- ruption, selfishness, and indulgence in material pursuits. This is the declared purpose of the ritual prayer (
Salat
) in the Qur’an: ‘‘Surely prayer keeps one away from indecency and evil, and remembrance of God is the greatest (act of devotion)’’ (Qur’an 29:44).
Salat
involves both mental and physical train- ing. While performing the prayer, the worshiper concentrates with full atten- tion; one is not free to do what one likes or act in any way that would disrupt the continuity of the prayer. There is no turning to the side, no staring, laughing, eating, or drinking while one prays, all of which involve an exercise in self-control. The body must be calm and stable before the phrase ‘‘
Allahu akbar
’’ (God is great) is uttered. The first chapter of the Qur’an, which is recited from memory, reads in part, ‘‘We worship only Thee, O God, and beg only Thy help.’’ Here one does not use the word ‘‘I’’ but ‘‘we’’ to show that prayer not only concerns the individual but also the community as a whole.

There is a defi time in which to discharge the obligation of
Salat.
According to most jurists, performing the dawn prayer even a minute after sunrise makes the prayer invalid, and one cannot offer the excuse of being sleepy. The purpose of observing such punctuality is to educate and train the individual. One is also commanded to face the Ka‘ba in prayer. Why should Muslims face the Ka‘ba when the Qur’an clearly says, ‘‘Whichever direction you turn, there is the face of God’’ (Qur’an 2:115)? Making all

The
Shari‘a:
Law as the Way of God
173

Muslims face in a single direction is a form of social education. Turning to pray in any direction one may wish causes indiscipline and confusion. Imag- ine the scene if everyone in a mosque faced in different directions! Cleanliness of body and attire and decency in clothing are also required for the
Salat.
In addition, performing
Salat
in congregation nurtures equality and solidarity among worshipers and facilitates social encounters in a peaceful environment. Finally,
Salat
ends with the phrase, ‘‘May the peace and blessing of God be on His servants.’’ This is a declaration of goodwill toward one’s fellow human beings. These objectives are similarly present in fasting, the Hajj pil- grimage, and the Zakat Tax. All of these practices train the individual in self-discipline, sacrifice, and sensitivity for the well-being of others. The pil- grimage is particularly useful in broadening the individual’s outlook beyond the confi es of a particular locality and encourages a sense of awareness of the conditions of the Muslims worldwide.

There is a great deal in the Qur’an and the Hadith on the promotion of an Islamic ethic that enjoins the individual to practice God-consciousness (
taqwa
); to be honest; to fulfi promises; to practice pleasant manners, humility, sincerity, and beneficence; to cooperate in good works; to be coura- geous; and to act in a mature manner. Islamic sources also emphasize avoid- ance of oppression, lying, perfi degrading conduct, arrogance, and hypocrisy. Educating the individual in good values, moral excellence, and the attainment of ethical virtues may thus be characterized as among the car- dinal goals and objectives of Islam.

Justice (‘Adl)

Whereas the basic objectives of the Shari‘a concerning the individual are purification of character and moral excellence, in the social sphere the objec- tive is to establish justice. The Islamic conception of justice is not confined to corrective and regulatory justice alone. It also makes justice a part of the char- acter and personality of the believer.

‘Adl,
the Arabic word for justice, literally means ‘‘to place things where they belong.’’ It seeks to establish equilibrium through the fulfi lment of rights and obligations by eliminating disparities and excesses of wealth and power in all areas of life. The Qur’an declares that justice is an overriding objective of religion: ‘‘We sent Our Messengers with evidence, the scripture, and the balance so as to establish justice among people’’ (Qur’an 5:25). The phrase ‘‘Our Messengers’’ is in the plural, which suggests that justice is a goal not only of Islam but also of all revealed religions. The reference to ‘‘the bal- ance’’ (
al-mizan
) next to ‘‘the scripture’’ (
al-Kitab
) in this verse has been understood to mean a form of procedural justice that ensures proper imple- mentation of the ruling in this text. According to another interpretation, it means wisdom and balance as opposed to dry literalism. The Qur’anic

174
Voices of Tradition

standards of justice are not tainted by considerations of race, nationalism, or religion. The believer is urged to be just at all levels, as the Qur’an states: