The Quest for Ease and Mercy in Islamic Law
Imagine a conference on fiqh today in which the likes of Imam Abu Hanifa, Imam Shafi, Ghazzali, Ibn Rushd, Ibn Taymiyyah, al-Marghinani , Imam Shatibi and Shah Waliullah are invited.
The fundamental orientation of Shariah given to the Prophet (SAW) – “Mercy for the Worlds” – is ease and mercy. If we fail to find this there is something wrong either with particular interpretations supposed to encapsulate the view of Islam or our own understanding of what is our real good or our state of health due to slavery of desire. Let us first explore this almost marginalized aspect of Islamic law stated succinctly by Ibn al-Qayyim: “The Islamic law is all about wisdom and achieving people’s welfare in this life and the afterlife. It is all about justice, mercy, wisdom, and good. Thus, any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Islamic law, even if it is claimed to be so according to some interpretation.” However, the present practice is largely oblivious of what Ibn al-Qayyim notes here as is evident by the following statement of Jasser Auda, a contemporary contributor to the philosophy of Islamic law: “Current applications (or rather, misapplications) of Islamic law are reductionist rather than holistic, literal rather than moral, one-dimensional rather than multidimensional, binary rather than multi-valued, deconstructionist rather than reconstructionist, and causal rather than teleological.” So what do we do? I suggest considering and appreciating the following points that, if remembered, will help us find ease and mercy (that please both God and man better) denied to us in certain popular fiqh formulations/fatwa:
- Imagine a conference on fiqh today in which the likes of Imam Abu Hanifa, Imam Shafi, Ghazzali, Ibn Rushd, Ibn Taymiyyah, Burhanuddin Ali bin Abu Bakr al-Marghinani (author of Hedaya), Imam Shatibi and Shah Waliullah are invited to deliberate certain contemporary issues that are hotly debated. I think they would refuse to participate on the ground that they lack one key qualification – being contemporary or knowing the age (although their spirit would somehow hover around in any debate on fiqh). Given little space for social sciences/new developments in hermeneutics in Madrasah curriculum now, how come we could create many jurists and mujtahids today/for future who have necessary familiarity with the relevant sciences/sensibility of our age or who can truly be said to be living in their age as their predecessors lived in their ages? (It is philosophers and artists who best express this sensibility.)
- The Prophet (SAW) advised us to choose easier and not difficult legitimate solution.
- Often we are forced to choose between letter and spirit but literalism obstructs us. It needs courage and understanding to choose spirit over letter though it is ideal to choose the former without violating the letter either as the latter is only a means to preserve the former. Let us see, how Sayyidna Bilal (RA) made his choice: “I don’t care if I sacrifice only a hen. I prefer to spend the cost of animal for sacrifice (qurbani) on some orphan or destitute instead of qurbani.” Alqama, Abu Masud and Uqbah bin Amr have clearly stated that the reason they don’t do qurbani is people should not consider it obligatory (wajib). Suhaba, Tabiyeen and excepting Hanafis, other schools of fiqh have declared qurbani recommended/sunnah and not wajib and original practice has been of qurbani being offered by families and not individuals. In Kashmir and Pakistan number of animals sacrificed increased several fold recently but humans lives sacrificed at the altar of poverty haven’t decreased even one fold. It doesn’t imply that Qurbani itself as a sacred institution may be wished away or supplanted by diverting resources spent for it for social ends (it should and it will survive on family/community level) and we know that within the Companions there were both views – more strict adherence to letter and more freedom to emphasize the spirit. Hazrat Umar (R.A) especially illustrates the second option.
- We now condemn as Kharijites those who saw only letter and imagined that the Quran speaks without mediation of you and me and thus doesn’t need interpretation.
- Revelations basically seek to liberate us from shackles and if they seem to impose difficult commands, it is only to liberate us from the slavery of desire which is the greatest oppressor.
- A fundamental rule in Islamic law is that “A need that is widespread should be treated as a necessity” and Ghazzali has argued that the higher order necessity should have priority over a lower-order necessity if they generate opposite implications in practical cases.
- Appreciate differentiation between means and ends and, as Muhammad Ghazzali notes, that ends or principles don’t expire but means may.
- Appreciate Ayatullah Shamsuddin’s suggestion that Muslims need to “open their minds to the possibility of ‘relative’ legislation for specific circumstances, and not to judge narrations with missing contexts as absolute in the dimensions of time, space, situations, and people.”
- Appreciate the value of Shatibi’s distinction: ‘Literal compliance is the default methodology in the area of acts of worship (ibadat), while the consideration of purposes is the default methodology in the area of worldly dealings (muamalat).’ And that “it is the very example of the Prophet and his Companions not to imitate them, literally, in the various areas of ‘transactions’ (muamalat) and rather, to go by the principles and ‘maqasid.’”
- “What is considered good by Muslims is good in the eyes of God as well,” stated distinguished Companion Ibn Masud.
- Jurists agree that Islamic laws “may be discarded if they are based on a cause ('lilah) which itself has disappeared,” and “must serve the commonweal” ("public maslaha").
- The general principle is of "ibaha asliya" – all things are originally permitted – "has sweeping negative consequences for the common legalistic conceptions of revelation." This principle though questioned by most Hanafis is accepted by some Hanafis and all Shafees and confirmed by visions of saints. The list of prohibited things inserted by Revelation later is very short and their prohibition is almost universally recognized amongst civilized people. “Say, My Lord has forbidden only shameful deeds, be they open or secret, and sin, and unjustified greed, and the association with God of that for which He has sent down no authority, and the saying against God of what you don’t know” (Quran, 7.33). Note if the word God may be replaced by the word Reality (Al-Haqq, used for God in the Quran) every religion (and even nonreligious humanistic cultures) agrees with this list. Other lists elsewhere in the Quran and prophetic traditions complement this list and there is almost universal consent to the usually understood rationale behind them.
- After ascertaining that a particular ruling is indeed closest to the intention of Shariah, follow it without awaiting discovery of its rationale. However as one naturally wants to find a reason or reconciliation with one’s deepest convictions or common sense, one may consider Shah Waliullah’s Hujjatullah al-Baligah, relevant parts of Ghazzali’s Ihya and if you are interested in the deepest secrets read experts on secrets of Din such as Ibn Arabi, the “greatest Master of secrets of Shariah.” One may also consult Ibn Rushd’s Bidayat al-Mujtahid for better grasp of the logic of dissenting views. And remember that practising itself may reveal to one something of the divine wisdom informing that ruling.
- To understand ontological or psycho-spiritual basis of Revealed law just meditate on convergent ideas of Nomos/Norm/Gabriel/Intellect across traditions.
- “Often you hear brothers quoting a Hadith that carries an Amr. They then mistakenly understand from it that it is an obligation when it fact is a recommendation or permissibility.”
- If we are in doubt regarding any ruling or have to choose between two different interpretations we have to decide on the basis of this old principle: That is to be followed which leads to increase of love of God and love of neighbour. And you know best what expands your spirit/joy/love (manifestations of love of God) and satisfies conscience.
- The five fiqhi schools generally agree that “Islamic laws (1) change with the passage of time and with the change of place or circumstance; (2) must avoid harm.”
- “Early jurists viewed disagreements among them as a sign of God's mercy, because these disagreements injected Islamic laws with the degree of flexibility necessary for a religion which proclaimed itself suitable for all times, all people and all societies. Thus, hundreds of schools of Ijtihad developed, each best suited to its own community and that community's culture, with its attendant customs and traditions.”
- A jurist may anytime review his own view and come up with a new one to change that again at later time. Every day is a new day and may reveal new insights, new meanings or pose new problems for which jurist will have to be perpetually ready.
- Different opinions could be simultaneously true. In fact the term truth is best applied not to individual opinions called fatwa but to more universal premises, axioms and formulations that aren’t affected by variety of factors.
- There is nothing that normal man – and arguably constitutions of modern welfare state – would object if the case of Fiqh as an enquiry or discipline is properly understood/communicated. Fiqh rests on universally laudable faculty of thinking or reflection on Shariah which comprehensively understood embraces both haqiqah and exoteric law and, as Ibn Taymiya noted, couldn’t, by definition, contradict reason. Faith and reason when deepened are both subsumed/sublimated in gnosis and intellect which constitute our ultimate joy or liberation/salvation.
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