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The
Principle of Movement in the Structure of Islam Books and Documents 14 Jul 2008, NewAgeIslam.Com Lecture 6: The Principle of Movement in the
Structure of Islam As a cultural movement Islam rejects the old static
view of the universe, and reaches a dynamic view. As an emotional system of
unification it recognizes the worth of the individual as such, and rejects
blood-relationship as a basis of human unity. Blood-relationship is
earth-rootedness. The search for a purely psychological foundation of human
unity becomes possible only with the perception that all human life is
spiritual in its origin.1 Such a perception is creative of fresh loyalties
without any ceremonial to keep them alive, and makes it possible for man to
emancipate himself from the earth. Christianity which had originally appeared
as a monastic order was tried by Constantine as a system of unification.2 Its
failure to work as such a system drove the Emperor Julian3 to return to the old
gods of Rome on which he attempted to put philosophical interpretations. A
modern historian of civilization has thus depicted the state of the civilized
world about the time when Islam appeared on the stage of History: It seemed then that the great civilization that it
had taken four thousand years to construct was on the verge of disintegration,
and that mankind was likely to return to that condition of barbarism where
every tribe and sect was against the next, and law and order were unknown . . .
The old tribal sanctions had lost their power. Hence the old imperial methods
would no longer operate. The new sanctions created by Christianity were working
division and destruction instead of unity and order. It was a time fraught with
tragedy. Civilization, like a gigantic tree whose foliage had overarched the
world and whose branches had borne the golden fruits of art and science and
literature, stood tottering, its trunk no longer alive with the flowing sap of
devotion and reverence, but rotted to the core, riven by the storms of war, and
held together only by the cords of ancient customs and laws, that might snap at
any moment. Was there any emotional culture that could be brought in, to gather
mankind once more into unity and to save civilization? This culture must be
something of a new type, for the old sanctions and ceremonials were dead, and
to build up others of the same kind would be the work of centuries.’4 The writer then proceeds to tell us that the world
stood in need of a new culture to take the place of the culture of the throne,
and the systems of unification which were based on blood-relationship. It is
amazing, he adds, that such a culture should have arisen from Arabia just at
the time when it was most needed. There is, however, nothing amazing in the
phenomenon. The world-life intuitively sees its own needs, and at critical
moments defines its own direction. This is what, in the language of religion,
we call prophetic revelation. It is only natural that Islam should have flashed
across the consciousness of a simple people untouched by any of the ancient
cultures, and occupying a geographical position where three continents meet
together. The new culture finds the foundation of world-unity in the principle
of Tauhâd.’5 Islam, as a polity, is only a practical means of making this
principle a living factor in the intellectual and emotional life of mankind. It
demands loyalty to God, not to thrones. And since God is the ultimate spiritual
basis of all life, loyalty to God virtually amounts to man’s loyalty to his own
ideal nature. The ultimate spiritual basis of all life, as conceived by Islam,
is eternal and reveals itself in variety and change. A society based on such a
conception of Reality must reconcile, in its life, the categories of permanence
and change. It must possess eternal principles to regulate its collective life,
for the eternal gives us a foothold in the world of perpetual change. But
eternal principles when they are understood to exclude all possibilities of
change which, according to the Qur’«n, is one of the greatest ‘signs’ of God,
tend to immobilize what is essentially mobile in its nature. The failure of the
Europe in political and social sciences illustrates the former principle, the
immobility of Islam during the last five hundred years illustrates the latter.
What then is the principle of movement in the structure of Islam? This is known
as Ijtih«d. The word literally means to exert. In the
terminology of Islamic law it means to exert with a view to form an independent
judgement on a legal question. The idea, I believe, has its origin in a
well-known verse of the Qur’«n – ‘And to those who exert We show Our path’.6 We
find it more definitely adumbrated in a tradition of the Holy Prophet. When
Mu‘«dh was appointed ruler of Yemen, the Prophet is reported to have asked him
as to how he would decide matters coming up before him. ‘I will judge matters
according to the Book of God,’ said Mu‘«dh. ‘But if the Book of God contains
nothing to guide you?’ ‘Then I will act on the precedents of the Prophet of
God.’ ‘But if the precedents fail?’ ‘Then I will exert to form my own
judgement.’7 The student of the history of Islam, however, is well aware that
with the political expansion of Islam systematic legal thought became an
absolute necessity, and our early doctors of law, both of Arabian and
non-Arabian descent, worked ceaselessly until all the accumulated wealth of
legal thought found a final expression in our recognized schools of Law. These
schools of Law recognize three degrees of Ijtih«d: (1) complete authority in
legislation which is practically confined to be founders of the schools, (2)
relative authority which is to be exercised within the limits of a particular
school, and (3) special authority which relates to the determining of the law
applicable to a particular case left undetermined by the founders.8 In this
paper I am concerned with the first degree of Ijtih«d only, i.e. complete
authority in legislation. The theoretical possibility of this degree of Ijtih«d
is admitted by the Sunni`s, but in practice it has always been denied ever
since the establishment of the schools, inasmuch as the idea of complete
Ijtih«d is hedged round by conditions which are well-nigh impossible of
realization in a single individual. Such an attitude seems exceedingly strange
in a system of law based mainly on the groundwork provided by the Qur’«n which
embodies an essentially dynamic outlook on life. It is, therefore, necessary,
before we proceed farther, to discover the cause of this intellectual attitude
which has reduced the Law of Islam practically to a state of immobility. Some
European writers think that the stationary character of the Law of Islam is due
to the influence of the Turks. This is an entirely superficial view, for the
legal schools of Islam had been finally established long before the Turkish
influence began to work in the history of Islam. The real causes are, in my
opinion, as follows: 1. We are all familiar with the Rationalist movement
which appeared in the church of Islam during the early days of the Abbasids and
the bitter controversies which it raised. Take for instance the one important
point of controversy between the two camps – the conservative dogma of the
eternity of the Qur’«n. The Rationalists denied it because they thought that
this was only another form of the Christian dogma of the eternity of the word;
on the other hand, the conservative thinkers whom the later Abbasids, fearing
the political implications of Rationalism, gave their full support, thought
that by denying the eternity of the Qur’«n the Rationalists were undermining
the very foundations of Muslim society.9 Naďď«m, for instance, practically
rejected the traditions, and openly declared Abë Hurairah to be an
untrustworthy reporter.10 Thus, partly owing to a misunderstanding of the
ultimate motives of Rationalism, and partly owing to the unrestrained thought
of particular Rationalists, conservative thinkers regarded this movement as a
force of disintegration, and considered it a danger to the stability of Islam
as a social polity.11 Their main purpose, therefore, was to preserve the social
integrity of Islam, and to realize this the only course open to them was to
utilize the binding force of Sharâ‘ah, and to make the structure of their legal
system as rigorous as possible. 2. The rise and growth of ascetic Sufism, which
gradually developed under influences of a non-Islamic character, a purely
speculative side, is to a large extent responsible for this attitude. On its
purely religious side Sufism fostered a kind of revolt against the verbal
quibbles of our early doctors. The case of Sufy«n Thaurâ is an instance in
point. He was one of the acutest legal minds of his time, and was nearly the
founder of a school of law,12 but being also intensely spiritual, the
dry-as-dust subtleties of contemporary legists drove him to ascetic Sufism. On
its speculative side which developed later, Sufism is a form of freethought and
in alliance with Rationalism. The emphasis that it laid on the distinction of
ď«hir and b«Çin (Appearance and Reality) created an attitude of indifference to
all that applies to Appearance and not to Reality.13 This spirit of total other-wordliness in later
Sufism obscured men’s vision of a very important aspect of Islam as a social
polity, and, offering the prospect of unrestrained thought on its speculative
side, it attracted and finally absorbed the best minds in Islam. The Muslim
state was thus left generally in the hands of intellectual mediocrities, and
the unthinking masses of Islam, having no personalities of a higher calibre to
guide them, found their security only in blindly following the schools. 3. On the top of all this came the destruction of
Baghdad – the centre of Muslim intellectual life – in the middle of the
thirteenth century. This was indeed a great blow, and all the contemporary
historians of the invasion of Tartars describe the havoc of Baghdad with a
half-suppressed pessimism about the future of Islam. For fear of further
disintegration, which is only natural in such a period of political decay, the
conservative thinkers of Islam focused all their efforts on the one point of
preserving a uniform social life for the people by a jealous exclusion of all
innovations in the law of Sharâ‘ah as expounded by the early doctors of Islam.
Their leading idea was social order, and there is no doubt that they were
partly right, because organization does to a certain extent counteract the
forces of decay. But they did not see, and our modern ‘Ulem« do not see, that
the ultimate fate of a people does not depend so much on organization as on the
worth and power of individual men. In an over-organized society the individual
is altogether crushed out of existence. He gains the whole wealth of social
thought around him and loses his own soul. Thus a false reverence for past
history and its artificial resurrection constitute no remedy for a people’s
decay. ‘The verdict of history’, as a modern writer has happily put it, ‘is
that worn-out ideas have never risen to power among a people who have worn them
out.’ The only effective power, therefore, that counteracts the forces of decay
in a people is the rearing of self-concentrated individuals. Such individuals
alone reveal the depth of life. They disclose new standards in the light of
which we begin to see that our environment is not wholly inviolable and requires
revision. The tendency to over-organization by a false reverence of the past,
as manifested in the legists of Islam in the thirteenth century and later, was
contrary to the inner impulse of Islam, and consequently invoked the powerful
reaction of Ibn Taimâyyah, one of the most indefatigable writers and preachers
of Islam, who was born in 1263, five years after the destruction of Baghdad. Ibn Taimâyyah was brought up in Hanbalite tradition.
Claiming freedom of Ijtih«d for himself he rose in revolt against the finality
of the schools, and went back to first principles in order to make a fresh
start. Like Ibn Ŕazm – the founder of Ę«hirâschool of law14 – he rejected the
Hanafite principle of reasoning by analogy and Ijm«’ as understood by older
legists;15 for he thought agreement was the basis of all superstition.16 And
there is no doubt that, considering the moral and intellectual decrepitude of
his times, he was right in doing so. In the sixteenth century Suyëtâ claimed
the same privilege of Ijtih«d to which he added the idea of a renovator at the
beginning of each century.17 But the spirit of Ibn Taimâyyah’s teaching found a
fuller expression in a movement of immense potentialities which arose in the
eighteenth century, from the sands of Nejd, described by Macdonald as the
‘cleanest spot in the decadent world of Islam’. It is really the first throb of
life in modern Islam. To the inspiration of this movement are traceable,
directly or indirectly, nearly all the great modern movements of Muslim Asia
and Africa, e.g. the Sanâsâ movement, the Pan-Islamic movement,18 and the B«bâ
movement, which is only a Persian reflex of Arabian Protestantism. The great
puritan reformer, Muhammad Ibn ‘Abd al-Wahh«h, who was born in 1700,19 studied
in Medina, travelled in Persia, and finally succeeded in spreading the fire of
his restless soul throughout the whole world of Islam. He was similar in spirit
to Ghazz«lâ’s disciple, Muhammad Ibn Tëmart20 – the Berber puritan reformer of
Islam who appeared amidst the decay of Muslim Spain, and gave her a fresh
inspiration. We are, however, not concerned with the political career of this
movement which was terminated by the armies of Muhammad ‘Alâ P«sh«. The
essential thing to note is the spirit of freedom manifested in it, though
inwardly this movement, too, is conservative in its own fashion. While it rises
in revolt against the finality of the schools, and vigorously asserts the right
of private judgement, its vision of the past is wholly uncritical, and in
matters of law it mainly falls back on the traditions of the Prophet. Passing on to Turkey, we find that the idea of
Ijtih«d, reinforced and broadened by modern philosophical ideas, has long been
working in the religious and political thought of the Turkish nation. This is
clear from Ŕalim S«bit’s new theory of Muhammadan Law, grounded on modern
sociological concepts. If the renaissance of Islam is a fact, and I believe it
is a fact, we too one day, like the Turks, will have to re-evaluate our
intellectual inheritance. And if we cannot make any original contribution to
the general thought of Islam, we may, by healthy conservative criticism, serve
at least as a check on the rapid movement of liberalism in the world of Islam. I now proceed to give you some idea of
religio-political thought in Turkey which will indicate to you how the power of
Ijtih«d is manifested in recent thought and activity in that country. There
were, a short time ago, two main lines of thought in Turkey represented by the
Nationalist Party and the Party of Religious Reform. The point of supreme
interest with the Nationalist Party is above all the State and not Religion.
With these thinkers religion as such has no independent function. The state is
the essential factor in national life which determines the character and function
of all other factors. They, therefore, reject old ideas about the function of
State and Religion, and accentuate the separation of Church and State. Now the
structure of Islam as a religio-political system, no doubt, does permit such a
view, though personally I think it is a mistake to suppose that the idea of
state is more dominant and rules all other ideas embodied in the system of
Islam. In Islam the spiritual and the temporal are not two distinct domains,
and the nature of an act, however secular in its import, is determined by the
attitude of mind with which the agent does it. It is the invisible mental
background of the act which ultimately determines its character.21 An act is
temporal or profane if it is done in a spirit of detachment from the infinite
complexity of life behind it; it is spiritual if it is inspired by that
complexity. In Islam it is the same reality which appears as Church looked at
from one point of view and State from another. It is not true to say that
Church and State are two sides or facets of the same thing. Islam is a single
unanalysable reality which is one or the other as your point of view varies.
The point is extremely far-reaching and a full elucidation of it will involve
us in a highly philosophical discussion. Suffice it to say that this ancient
mistake arose out of the bifurcation of the unity of man into two distinct and
separate realities which somehow have a point of contact, but which are in
essence opposed to each other. The truth, however, is that matter is spirit in
space-time reference. The unity called man is body when you look at it as
acting in regard to what we call the external world; it is mind or soul when
you look at it as acting in regard to the ultimate aim and ideal of such
acting. The essence of Tauhâd, as a working idea, is equality, solidarity, and
freedom. The state, from the Islamic standpoint, is an endeavour to transform
these ideal principles into space-time forces, an aspiration to realize them in
a definite human organization. It is in this sense alone that the state in
Islam is a theocracy, not in the sense that it is headed by a representative of
God on earth who can always screen his despotic will behind his supposed
infallibility. The critics of Islam have lost sight of this important
consideration. The Ultimate Reality, according to the Qur’«n, is spiritual, and
its life consists in its temporal activity. The spirit finds its opportunities
in the natural, the material, the secular. All that is secular is, therefore,
sacred in the roots of its being. The greatest service that modern thought has
rendered to Islam, and as a matter of fact to all religion, consists in its
criticism of what we call material or natural – a criticism which discloses
that the merely material has no substance until we discover it rooted in the
spiritual. There is no such thing as a profane world. All this immensity of
matter constitutes a scope for the self-realization of spirit. All is holy
ground. As the Prophet so beautifully puts it: ‘The whole of this earth is a
mosque.’22 The state, according to Islam, is only an effort to realize the
spiritual in a human organization. But in this sense all state, not based on
mere domination and aiming at the realization of ideal principles, is
theocratic. The truth is that the Turkish Nationalists
assimilated the idea of the separation of Church and State from the history of
European political ideas. Primitive Christianity was founded, not as a
political or civil unit, but as a monastic order in a profane world, having nothing
to do with civil affairs, and obeying the Roman authority practically in all
matters. The result of this was that when the State became Christian, State and
Church confronted each other as distinct powers with interminable boundary
disputes between them. Such a thing could never happen in Islam; for Islam was
from the very beginning a civil society, having received from the Qur’«n a set
of simple legal principles which, like the twelve tables of the Romans,
carried, as experience subsequently proved, great potentialities of expansion
and development by interpretation. The Nationalist theory of state, therefore,
is misleading inasmuch as it suggests a dualism which does not exist in Islam. The Religious Reform Party, on the other hand, led
by Sa‘âd Ŕalâm P«sh«, insisted on the fundamental fact that Islam is a harmony
of idealism and positivism; and, as a unity of the eternal verities of freedom,
equality, and solidarity, has no fatherland. ‘As there is no English
Mathematics, German Astronomy or French Chemistry,’ says the Grand Vizier, ‘so
there is no Turkish, Arabian, Persian or Indian Islam. Just as the universal
character of scientific truths engenders varieties of scientific national
cultures which in their totality represent human knowledge, much in the same
way the universal character of Islamic verities creates varieties of national,
moral and social ideals.’ Modern culture based as it is on national egoism is,
according to this keen-sighted writer, only another form of barbarism. It is
the result of an over-developed industrialism through which men satisfy their
primitive instincts and inclinations. He, however, deplores that during the
course of history the moral and social ideals of Islam have been gradually
deislamized through the influence of local character, and pre-Islamic
superstitions of Muslim nations. These ideals today are more Iranian, Turkish,
or Arabian than Islamic. The pure brow of the principle of Tauhâd has received
more or less an impress of heathenism, and the universal and impersonal
character of the ethical ideals of Islam has been lost through a process of
localization. The only alternative open to us, then, is to tear off from Islam
the hard crust which has immobilized an essentially dynamic outlook on life,
and to rediscover the original verities of freedom, equality, and solidarity
with a view to rebuild our moral, social, and political ideals out of their
original simplicity and universality. Such are the views of the Grand Vizier of
Turkey. You will see that following a line of thought more in tune with the
spirit of Islam, he reaches practically the same conclusion as the Nationalist
Party, that is to say, the freedom of Ijtih«d with a view to rebuild the laws
of Sharâ‘ah in the light of modern thought and experience. Let us now see how the Grand National Assembly has
exercised this power of Ijtih«d in regard to the institution of Khil«fat.
According to Sunni Law, the appointment of an Imam or Khalâfah is absolutely
indispensable. The first question that arises in this connexion is this –
Should the Caliphate be vested in a single person? Turkey’s Ijtih«d is that
according to the spirit of Islam the Caliphate or Imamate can be vested in a
body of persons, or an elected Assembly. The religious doctors of Islam in
Egypt and India, as far as I know, have not yet expressed themselves on this
point. Personally, I believe the Turkish view is perfectly sound. It is hardly
necessary to argue this point. The republican form of government is not only
thoroughly consistent with the spirit of Islam, but has also become a necessity
in view of the new forces that are set free in the world of Islam. In order to understand the Turkish view let us seek
the guidance of Ibn Khaldën – the first philosophical historian of Islam. Ibn
Khaldën, in his famous ‘Prolegomena’, mentions three distinct views of the idea
of Universal Caliphate in Islam23: (1) That Universal Imamate is a Divine
institution, and is consequently indispensable. (2) That it is merely a matter
of expediency. (3) That there is no need of such an institution. The last view
was taken by the Khaw«rij.24 It seems that modern Turkey has shifted from the
first to the second view, i.e. to the view of the Mu’tazilah who regarded
Universal Imamate as a matter of expediency only. The Turks argue that in our
political thinking we must be guided by our past political experience which
points unmistakably to the fact that the idea of Universal Imamate has failed
in practice. It was a workable idea when the Empire of Islam was intact. Since
the break-up of this Empire independent political units have arisen. The idea
has ceased to be operative and cannot work as a living factor in the
organization of modern Islam. Far from serving any useful purpose it has really
stood in the way of a reunion of independent Muslim States. Persia has stood
aloof from the Turks in view of her doctrinal differences regarding the
Khil«fat; Morocco has always looked askance at them, and Arabia has cherished
private ambition. And all these ruptures in Islam for the sake of a mere symbol
of a power which departed long ago. Why should we not, they can further argue,
learn from experience in our political thinking? Did not Q«dâ Abë Bakr B«qil«nâ
drop the condition of Qarshâyat in the Khalâfah in view of the facts of
experience, i.e. the political fall of the Quraish and their consequent
inability to rule the world of Islam? Centuries ago Ibn Khaldën, who personally
believed in the condition of Qarshâyat in the Khali`fah, argued much in the
same way. Since the power of the Quraish, he says, has gone, there is no
alternative but to accept the most powerful man as Ima`m in the country where
he happens to be powerful. Thus Ibn Khaldën, realizing the hard logic of facts,
suggests a view which may be regarded as the first dim vision of an
International Islam fairly in sight today. Such is the attitude of the modern
Turk, inspired as he is by the realities of experience, and not by the
scholastic reasoning of jurists who lived and thought under different
conditions of life. To my mind these arguments, if rightly appreciated,
indicate the birth of an International ideal which, though forming the very
essence of Islam, has been hitherto over-shadowed or rather displaced by
Arabian Imperialism of the earlier centuries of Islam. This new ideal is
clearly reflected in the work of the great nationalist poet Ęiy« whose songs,
inspired by the philosophy of Auguste Comte, have done a great deal in shaping
the present thought of Turkey. I reproduce the substance of one of his poems
from Professor Fischer’s German translation: In order to create a really effective political
unity of Islam, all Muslim countries must first become independent: and then in
their totality they should range themselves under one Caliph. Is such a thing
possible at the present moment? If not today, one must wait. In the meantime
the Caliph must reduce his own house to order and lay the foundations of a
workable modern State. ‘In the International world the weak find no
sympathy; power alone deserves respect.’25 These lines clearly indicate the trend of modern
Islam. For the present every Muslim nation must sink into her own deeper self,
temporarily focus her vision on herself alone, until all are strong and
powerful to form a living family of republics. A true and living unity,
according to the nationalist thinkers, is not so easy as to be achieved by a
merely symbolical overlordship. It is truly manifested in a multiplicity of
free independent units whose racial rivalries are adjusted and harmonized by
the unifying bond of a common spiritual aspiration. It seems to me that God is
slowly bringing home to us the truth that Islam is neither Nationalism nor
Imperialism but a League of Nations which recognizes artificial boundaries and
racial distinctions for facility of reference only,26 and not for restricting
the social horizon of its members. From the same poet the following passage from a poem
called ‘Religion and Science’ will throw some further light on the general
religious outlook which is being gradually shaped in the world of Islam today: "Who were the first spiritual leaders of
mankind? Without doubt the prophets and holy men. In every period religion has
led philosophy; From it alone morality and art receive light. But then religion
grows weak, and loses her original ardour! Holy men disappear, and spiritual
leadership becomes, in name, the heritage of the Doctors of Law! The leading
star of the Doctors of Law is tradition; They drag religion with force on this
track; but philosophy says: ‘My leading star is reason: you go right, I go
left." ‘Both religion and philosophy claim the soul of man
and draw it on either side!’ ‘When this struggle is going on pregnant experience
delivers up positive science, and this young leader of thought says,
"Tradition is history and Reason is the method of history! Both interpret
and desire to reach the same indefinable something!" ‘But what is this something?’ ‘Is it a spiritualized heart?’ ‘If so, then take my last word – Religion is
positive science, the purpose of which is to spiritualize the heart of man!’27 It is clear from these lines how beautifully the
poet has adopted the Comtian idea of the three stages of man’s intellectual
development, i.e. theological, metaphysical and scientific – to the religious
outlook of Islam. And the view of religion embodied in these lines determines
the poet’s attitude towards the position of Arabic in the educational system of
Turkey. He says: ‘The land where the call to prayer resounds in
Turkish; where those who pray understand the meaning of their religion; the
land where the Qur’«n is learnt in Turkish; where every man, big or small,
knows full well the command of God; O! Son of Turkey! that land is thy
fatherland!’28 If the aim of religion is the spiritualization of
the heart, then it must penetrate the soul of man, and it can best penetrate
the inner man, according to the poet, only if its spiritualizing ideas are
clothed in his mother tongue. Most people in India will condemn this
displacement of Arabic by Turkish. For reasons which will appear later the
poet’s Ijtih«d is open to grave objections, but it must be admitted that the
reform suggested by him is not without a parallel in the past history of Islam.
We find that when Muhammad Ibn Tëmart – the Mahdi of Muslim Spain – who was
Berber by nationality, came to power, and established the pontifical rule of
the MuwaÁÁidën, he ordered for the sake of the illiterate Berbers, that the
Qur’«n should be translated and read in the Berber language; that the call to
prayer should be given in Berber;29 and that all the functionaries of the
Church must know the Berber language. In another passage the poet gives his ideal of
womanhood. In his zeal for the equality of man and woman he wishes to see
radical changes in the family law of Islam as it is understood and practised
today: ‘There is the woman, my mother, my sister, or my
daughter; it is she who calls up the most sacred emotions from the depths of my
life! There is my beloved, my sun, my moon and my star; it is she who makes me
understand the poetry of life! How could the Holy Law of God regard these
beautiful creatures as despicable beings? Surely there is an error in the
interpretation of the Qur’«n by the learned?30 ‘The foundation of the nation and the state is the
family!’ ‘As long as the full worth of the woman is not
realized, national life remains incomplete.’ ‘The upbringing of the family must correspond with
justice;’ ‘Therefore equality is necessary in three things –
in divorce, in separation, and in inheritance.’ ‘As long as the woman is counted half the man as
regards inheritance and one-fourth of man in matrimony, neither the family nor
the country will be elevated. For other rights we have opened national courts
of justice;’ ‘he family, on the other hand, we have left in the
hands of schools.’ I do not know why we have left the woman in the
lurch? Does she not work for the land? Or, will she turn
her needle into a sharp bayonet to tear off her rights from our hands through a
revolution?31 The truth is that among the Muslim nations of today,
Turkey alone has shaken off its dogmatic slumber, and attained to
self-consciousness. She alone has claimed her right of intellectual freedom;
she alone has passed from the ideal to the real – a transition which entails
keen intellectual and moral struggle. To her the growing complexities of a
mobile and broadening life are sure to bring new situations suggesting new
points of view, and necessitating fresh interpretations of principles which are
only of an academic interest to a people who have never experienced the joy of
spiritual expansion. It is, I think, the English thinker Hobbes who makes this
acute observation that to have a succession of identical thoughts and feelings
is to have no thoughts and feelings at all. Such is the lot of most Muslim
countries today. They are mechanically repeating old values, whereas the Turk
is on the way to creating new values. He has passed through great experiences
which have revealed his deeper self to him. In him life has begun to move,
change, and amplify, giving birth to new desires, bringing new difficulties and
suggesting new interpretations. The question which confronts him today, and
which is likely to confront other Muslim countries in the near future is
whether the Law of Islam is capable of evolution – a question which will
require great intellectual effort, and is sure to be answered in the
affirmative, provided the world of Islam approaches it in the spirit of ‘Umar –
the first critical and independent mind in Islam who, at the last moments of
the Prophet, had the moral courage to utter these remarkable words: ‘The Book
of God is sufficient for us.’32 We heartily welcome the liberal movement in modern
Islam, but it must also be admitted that the appearance of liberal ideas in
Islam constitutes also the most critical moment in the history of Islam.
Liberalism has a tendency to act as a force of disintegration, and the
race-idea which appears to be working in modern Islam with greater force than
ever may ultimately wipe off the broad human outlook which Muslim people have
imbibed from their religion. Further, our religious and political reformers in
their zeal for liberalism may overstep the proper limits of reform in the
absence of check on their youthful fervour. We are today passing through a
period similar to that of the Protestant revolution in Europe, and the lesson
which the rise and outcome of Luther’s movement teaches should not be lost on
us. A careful reading of history shows that the Reformation was essentially a
political movement, and the net result of it in Europe was a gradual
displacement of the universal ethics of Christianity by systems of national
ethics.33 The result of this tendency we have seen with our own eyes in the
Great European War which, far from bringing any workable synthesis of the two
opposing systems of ethics, has made the European situation still more
intolerable. It is the duty of the leaders of the world of Islam today to
understand the real meaning of what has happened in Europe, and then to move
forward with self-control and a clear insight into the ultimate aims of Islam
as a social polity. I have given you some idea of the history and
working of Ijtih«d in modern Islam. I now proceed to see whether the history
and structure of the Law of Islam indicate the possibility of any fresh
interpretation of its principles. In other words, the question that I want to
raise is – Is the Law of Islam capable of evolution? Horten, Professor of
Semitic Philology at the University of Bonn, raises the same question in
connexion with the Philosophy and Theology of Islam. Reviewing the work of
Muslim thinkers in the sphere of purely religious thought he points out that
the history of Islam may aptly be described as a gradual interaction, harmony,
and mutual deepening of two distinct forces, i.e. the element of Aryan culture
and knowledge on the one hand, and a Semitic religion on the other. The Muslim
has always adjusted his religious outlook to the elements of culture which he
assimilated from the peoples that surrounded him. From 800 to 1100, says
Horten, not less than one hundred systems of theology appeared in Islam, a fact
which bears ample testimony to the elasticity of Islamic thought as well as to
the ceaseless activity of our early thinkers. Thus, in view of the revelations
of a deeper study of Muslim literature and thought, this living European
Orientalist has been driven to the following conclusion: The spirit of Islam is so broad that it is
practically boundless. With the exception of atheistic ideas alone it has
assimilated all the attainable ideas of surrounding peoples, and given them its
own peculiar direction of development.’ The assimilative spirit of Islam is even more
manifest in the sphere of law. Says Professor Hurgronje – the Dutch critic of
Islam: When we read the history of the development of
Mohammadan Law we find that, on the one hand, the doctors of every age, on the
slightest stimulus, condemn one another to the point of mutual accusations of
heresy; and, on the other hand, the very same people, with greater and greater
unity of purpose, try to reconcile the similar quarrels of their
predecessors.’These views of modern European critics of Islam make it perfectly
clear that, with the return of new life, the inner catholicity of the spirit of
Islam is bound to work itself out in spite of the rigorous conservatism of our
doctors. And I have no doubt that a deeper study of the enormous legal
literature of Islam is sure to rid the modern critic of the superficial opinion
that the Law of Islam is stationary and incapable of development.
Unfortunately, the conservative Muslim public of this country is not yet quite
ready for a critical discussion of Fiqh, which, if undertaken, is likely to
displease most people, and raise sectarian controversies; yet I venture to
offer a few remarks on the point before us. 1. In the first place, we should bear in mind that
from the earliest times practically up to the rise of the Abbasids, there was
no written law of Islam apart from the Qur’an. 2. Secondly, it is worthy of note that from about
the middle of the first century up to the beginning of the fourth not less than
nineteen schools of law and legal opinion appeared in Islam.34 This fact alone
is sufficient to show how incessantly our early doctors of law worked in order
to meet the necessities of a growing civilization. With the expansion of
conquest and the consequent widening of the outlook of Islam these early
legists had to take a wider view of things, and to study local conditions of
life and habits of new peoples that came within the fold of Islam. A careful
study of the various schools of legal opinion, in the light of contemporary
social and political history, reveals that they gradually passed from the
deductive to the inductive attitude in their efforts at interpretation.35 3. Thirdly, when we study the four accepted sources
of Muhammadan Law and the controversies which they invoked, the supposed
rigidity of our recognized schools evaporates and the possibility of a further
evolution becomes perfectly clear. Let us briefly discuss these sources. (a) The Qur’«n. The primary source of the Law of
Islam is the Qur’«n. The Qur’«n, however, is not a legal code. Its main
purpose, as I have said before, is to awaken in man the higher consciousness of
his relation with God and the universe.36 No doubt, the Qur’«n does lay down a
few general principles and rules of a legal nature, especially relating to the
family37 – the ultimate basis of social life. But why are these rules made part
of a revelation the ultimate aim of which is man’s higher life? The answer to
this question is furnished by the history of Christianity which appeared as a
powerful reaction against the spirit of legality manifested in Judaism. By
setting up an ideal of otherworldliness it no doubt did succeed in
spiritualizing life, but its individualism could see no spiritual value in the
complexity of human social relations. ‘Primitive Christianity’, says Naumann in
his Briefe Ü ber Religion, ‘attached no value to the preservation of the State,
law, organization, production. It simply does not reflect on the conditions of
human society.’ And Naumann concludes: ‘Hence we either dare to aim at being
without a state, and thus throwing ourselves deliberately into the arms of
anarchy, or we decide to possess, alongside of our religious creed, a political
creed as well.’38 Thus the Qur’«n considers it necessary to unite religion and
state, ethics and politics in a single revelation much in the same way as Plato
does in his Republic. The important point to note in this connexion,
however, is the dynamic outlook of the Qur’«n. I have fully discussed its
origin and history. It is obvious that with such an outlook the Holy Book of
Islam cannot be inimical to the idea of evolution. Only we should not forget
that life is not change, pure and simple. It has within it elements of
conservation also. While enjoying his creative activity, and always focusing
his energies of the discovery of new vistas of life, man has a feeling of
uneasiness in the presence of his own unfoldment. In his forward movement he
cannot help looking back to his past, and faces his own inward expansion with a
certain amount of fear. The spirit of man in its forward movement is restrained
by forces which seem to be working in the opposite direction. This is only
another way of saying that life moves with the weight of its own past on its
back, and that in any view of social change the value and function of the
forces of conservatism cannot be lost sight of. It is with this organic insight
into the essential teaching of the Qur’«n that to approach our existing
institutions. No people can afford to reject their past entirely, for it is
their past that has made their personal identity. And in a society like Islam
the problem of a revision of old institutions becomes still more delicate, and
the responsibility of the reformer assumes a far more serious aspect. Islam is
non-territorial in its character, and its aim is to furnish a model for the
final combination of humanity by drawing its adherents from a variety of
mutually repellent races, and then transforming this atomic aggregate into a
people possessing a self-consciousness of their own. This was not an easy task
to accomplish. Yet Islam, by means of its well-conceived institutions, has
succeeded to a very great extent in creating something like a collective will
and conscience in this heterogeneous mass. In the evolution of such a society
even the immutability of socially harmless rules relating to eating and
drinking, purity or impurity, has a life-value of its own, inasmuch as it tends
to give such society a specific inwardness, and further secures that external
and internal uniformity which counteracts the forces of heterogeneity always
latent in a society of a composite character. The critic of these institutions
must, therefore, try to secure, before he undertakes to handle them, a clear
insight into the ultimate significance of the social experiment embodied in
Islam. He must look at their structure, not from the standpoint of social
advantage or disadvantage to this or that country, but from the point of view
of the larger purpose which is being gradually worked out in the life of
mankind as a whole. 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 Ęiy« 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 Ŕadâth. 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 Ŕanâfah, 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 Ŕanâfah 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 Ŕanâfah. But
even if we suppose that these collections never reached him, or that they did
not contain traditions of a legal import, Abë Ŕanâfah, like M«lik and AÁmad Ibn
Ŕanbal 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 Ŕanâfah 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 (Ŕukm)
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 Source:
http://www.allamaiqbal.com/works/prose/english/reconstruction/06.htm Posted by syedmdasadullah on July 24, 2009 at 9:09
am http://syedmdasadullah.wordpress.com/2009/07/24/lecture-6-the-principle-of-movement-in-the-structure-of-islam/ |
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