The Quran is firstly a book of morality and ethics and only later a book of law. The Prophet Muhammad (s.a.w.) mentioned that he had been sent to the world in order to fulfill morality or ethics. This is why we would need to re-read the Quranic revelation within the framework of the universal Islamic morality, which is based on human nature.
By Waris Mazhari
Fiqh is the human expression of the shariah and the shariah is the means to develop a complete human personality on an ethical basis. However, fiqh can be a proper expression of shariah only if in seeking to express the shariah it should not negatively impact on the divine ethics, which are the very core of din. If it does so, the shariah cannot be expressed and implemented in the right manner and the aim of ethics and morality would be negatively affected. This happened in the case of Mosaic law,which was later changed in significant respects, in protest against which Jesus Christ raised his voice. A special feature of Jesus Christ’s work and message was to purify the din of what the Quran calls “the heavy burdens of the rules and restrictions” (isr wa aghlal) which had crept into the din because of an unnatural expression of shariah.
Despite its certain special features, the Islamic shariah is the culmination of the process of revealing divine shariahs through history. In this way, fiqh must reflect not just the core of the shariah revealed on the Prophet Muhammad (s.a.w.) but also of the divine shariah of the prophets who came before him.Without this, it would not be possible for fiqh to represent divine ethics (akhlaq ullah) needed for the whole of humankind.
As regards the absolute and explicit commands of Islam, which have been taken from the Quran and Sunnah, there is no need for any reflection or ijtihad.But with regard to matters that are not explicit and in which there is need for deep reflection and ijtihad there is a possibility of differences in opinion and argument. In Islam there are many matters which fall in this category and this very fact reflects that it is God’s wishes that there be room for flexibility and accommodation in the concerned rules in this regard according to space and time Hence, there is necessity for tafaqquh fil din (understanding the law through pondering on its true import) and this shall continue till the Day of Judgment. According to the Quran, a group of people will always be there who will play this role of interpretation of Islamic principles and rules according to space and time.
Fiqh can serve as a means for the proper interpretation of shariah only when ijtihad is given its due place and when the aims of the shariah (maqasid-e shariah) are upheld. If this is not observed then one deviates from the very essence of Islam. Unfortunately, some aspects of the fiqh tradition are bereft of the true spirit of the din and shariah and are, in fact, a hurdle in the path of the total submission of human beings to God’s Will, which is the essence of Islam. In the later centuries, the fiqh tradition was seen as completely synonymous with the divine shariah, which, in fact, is not the case. Muslim society was sought to be regulated in accordance with the corpus of fiqh rules, some of which, to an extent, went against the Islamic ethical imperatives. According to Muhammad Iqbal, the medieval fuqaha did not understand that the fate of communities is dependent not so much on the degree of legal regulation as on the ascertaining of the personal qualities and capabilities of people. If a society is sought to be excessively regulated, the status of the individual comes to be undermined. The individual becomes shaped by his external environment but loses his real spirit.
Sufism developed at the same time as the schools of fiqh and represented a revolt against monarchy and the excessive externalism associated with many fuqaha. It played a crucial role in renewing and reviving the fountains of Islamic ethics and morality. In the medieval period, there was considerable tension between some Sufis and fuqaha, in which the latter often received the support of rulers. While the fuqaha sought to regulate people’s minds, the Sufis sought to reach out to their hearts. In this way, Muslim society was spared the extreme ethical stagnation at the ethical level that had occurred in several pre-Islamic societies.
A fatwa relates to the practical expression of fiqh as concerns any particular matter. However, today fatwa has taken the form of a new phenomenon that, in some cases, reflects the mentality that has been shaped by jurisprudential stagnation. It has, accordingly,assumed, in the public eye, the status of a ruling rather than the opinion (rai) that it really is. It is sometimes, though wrongly, seen as sacrosanct. Some people even believe that not accepting a fatwa is tantamount to defying the shariah itself. In the middle ages, many fuqaha engaged in fiqh and fatwas only to mint money and reduced it to the status of a mehnah (worldly profession).
Can the entire corpus of traditional fiqh provide a framework of Islamic morality that is in accordance with today’s cultural demands? The answer is in the negative. This is because the Islamic understanding of morality is universal while fatwas relate to specific spatio-temporal contexts. Because ijtihad has, for centuries, been ignored, the fuqaha have lost a crucial aspect that is central to the Quran and Hadith.
The aim of the principles of fiqh (usul-i fiqh) was to keep alive the practice of ijtihad but in the fourth Islamic century the gates of ijtihad were closed and the development of the usul-i fiqh was halted. In this way, the tradition of fiqh became a collection of stagnant and frozen rules whose relation to contemporary times was, to an extent, only formal or customary. Because of the weakening of the link between fiqh, divine revelation (wahy) and human society, the fiqh tradition became more technically convoluted and complicated. Those fundamental aspects of the divine sources (nusus) which are related to Islamic ethics and which are the very soul of the shariah came to be increasingly ignored. The divine sources came to be seen as sources of rules and regulations, thus somewhat ignoring their ethical import.
The contemporary fiqh tradition has, in some respects, negatively impacted on both the personal as well as collective dimensions of the understanding of Islamic ethics, because of which numerous Islamic ethical demands have been sidelined. Through various methods of hila (casuistic arguments in order to circumvent the spirit of the shariah) which relate to the interpretation of fiqh, some things considered to be haram or forbidden have been sought to be made legitimate and vice versa. It was now easy for things like the rights of others, charity, benevolence and honour to be ignored through such technical devices.
The ignoring of collective morality in this way can be seen in the context of fiqh rules related to non-Muslims. The Prophet Muhammad (s.a.w.) used to stand up when the funeral procession of a Jew would pass in front of him out of human courtesy. In contrast, many fuqaha consider it forbidden or permitted only in very special cases, and that too in a very limited way, to greet non-Muslims, attend their funerals, pray for God’s mercy for them, attend their festivals and exchange gifts with them. Likewise, the fiqhi concept of offensive jihad goes against the basic social ethics of Islam. In fact, Western powers are doing precisely this today in attacking, without any reason, other countries. Although this attitude is condemnable, they alone are not to blame. We also need to look within,to introspect, to revise our own understanding of what jihad truly means.
Because of this, seeking to understand Islamic ethics entirely within the framework of classical fiqh is not possible and is also not in accordance with the aims of the divine revelation. Instead, we need to make the Quran the basic framework for deriving our understanding of Islamic ethics. Tradition serves as a lamp for us, which will guide us at every step, but we must not rely completely on it for our intellectual development. We would need to engage in ijtihad in the context of scientific discoveries and the technical revolution that have completely transformed the global human community. We would need to read the Quran and Sunnah in the light of new human discoveries and the expanding corpus of human knowledge. In this way the gap between the new cultural era and traditional Islamic theology can be bridged and they can be brought into harmony with each other.
The task of the new fiqhi or ijtihadi framework, or,in other words, the reconstruction of Islamic legal thought, would be to approach the principal sources of Islam without the interference of cultural and spatio-temporal factors and based on the spirit of the din and shariah. The Quran is firstly a book of morality and ethics and only later a book of law. The Prophet Muhammad (s.a.w.) mentioned that he had been sent to the world in order to fulfill morality or ethics. This is why we would need to re-read the Quranic revelation within the framework of the universal Islamic morality, which is based on human nature.
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The writer is the Editor of the New Delhi-based monthly Tarjuman-e Dar ul-Ulum Deoband, the official organ of the Old Boys’ Association of the Dar ul-Ulum, Deoband. He can be contacted on [email protected]