Voices of Islam (38 page)

O believers! Stand firmly for justice as witnesses to God, even if it is against your- self, your parents, and relatives and whether it be against rich or poor.

(Qur’an 4:135)

And let not the hatred of a people divert you from the path of justice. Be just as it is closest to piety.

(Qur’an 5:8)

And when you speak, speak with justice.

(Qur’an 6:152)

The demand for justice is also paired with the virtue of benevolence (
ihsan
): ‘‘Surely God enjoins justice and the practice of benevolence’’ (Qur’an 16:90). This juxtaposition of the concepts of justice and benevo- lence opens the field to considerations of equity and fairness, especially where the linguistic confines of a legal text might lead to rigidity and unfair results. Justice should be carried out in the spirit of
ihsan,
even when it is not demanded as such. Muslim legists devised the principle of juristic preference (
istihsan
) in order to find an equitable alternative when the literal reading of a text fails to deliver a just solution.
18
Ibn Qayyim explains that justice must be followed and upheld wherever it is found, whether inside or outside the declared provisions of the law. Because justice is the supreme goal of Islam, God has sent scriptures and Messengers in order to establish justice among people. Whenever there are indications of the proper path to justice, it is in accordance with the law of God to go toward it. Hence, says Ibn Qayyim, ‘‘Any path that leads to justice and fairness is an integral part of the religion and can never be against it.’’
19
Even if a specifi ruling can- not be found in the Shari‘a to show the direction toward justice in a particular situation, the search for justice should still be attempted, and the result of such effort, if sincerely undertaken, will always be in harmony with the Shari‘a.

Muslims are also directed to be just in their relations with non-Muslims: ‘‘God forbids you not to be just and benevolent to those who have not fought you over your faith nor have evicted you from your homes. God loves those who are assiduous in doing justice’’ (Qur’an 60:8). The ruling of this verse extends to all nations and followers of all faiths and includes all of humanity.
20
In quoting this and other Qur’anic injunctions, the Muslim Brotherhood activist Sayyid Qutb (d. 1966) concludes that justice is an inherent right of all human beings under the Shari‘a.
21

The
Shari‘a:
Law as the Way of God
175

It would thus appear that injustice is abhorrent to the letter and the spirit of the Qur’an. Some rulings of Islamic jurisprudence that were formulated at earlier times and in a different set of circumstances may now be deemed unjust. In my opinion, one’s attitude toward such anomalies should be guided by Ibn Qayyim’s penetrating assessment that unjust rulings should not be part of the Shari‘a even though they are derived through its applica- tion. They should thus be revised through
ijtihad
in the light of the broad objectives of Shari‘a and the prevailing interest of society.

Consideration of Public Interest (Maslaha)

It is generally held that the Shari‘a in all of its parts aims at securing benefits for the people and protecting them against corruption and evil. In his pio- neering work,
al-Muwafaqat fi usul al-Shari‘a
(Accepted Doctrines on the Foundations of the Shari‘a), the jurist Shatibi singled out the consideration of public interest (
maslaha
) as being the only objective of the Shari‘a that is broad enough to comprise all measures that are beneficial to human beings, including the administration of justice and rules of worship. In doing this, he put a fresh emphasis on the concept of the Goals of the Shari‘a, and his unique contribution to the understanding of this subject is widely acknowl- edged. Scholars agree that every ruling of the Shari‘a serves the public inter- est: all commandments of the Shari‘a are meant to realize
maslaha
and all of its prohibitions are designed to prevent corruption (
mafsada
) in various ways. The designation of actions as obligatory (
wajib
), recommended (
man- dub
), and permissible (
mubah
) is meant to promote the public good, while the designation of actions as reprehensible (
makruh
) and forbidden (
haram
) is meant to prevent mischief and immorality. Should there arise a confl

between two injunctions because of the nature of circumstances, priority should be given to that which obtains the greater public good. The rescue of a drowning man, for example, takes priority over the obligatory perfor- mance of prayer if a man is found to be drowning at the time of prayer. Because it serves a greater interest, the necessity of saving a person’s life trumps the necessity of worshipping God at the proper time.

The Shari‘a protects the general interest both in this world and in the next. For example, the individual is urged to engage in benefi work. Lawful earning, supporting one’s family, and the pursuit and dissemination of knowledge are all considered acts of devotion and worship. Conversely, an act of devotion that is attempted as a means of escape from useful work and contribution to society loses much of its spiritual merit.

In order to be valid, the concept of
maslaha
must fulfill three conditions. One condition is that the act in question must be genuinely in the public interest and not just theoretically in the public interest. The Shari‘a only pro- tects genuine benefits that are related to safeguarding the essential interests

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(
daruriyyat
) of life, faith, intellect, property, and lineage. Any action that secures these values falls within the scope of genuine benefi whereas any- thing that violates them is considered corruption.

The second condition of
maslaha
is that it must be general (
kulliyya
) rather than particular (
juz’iyya
) in its promotion of the public interest.
Maslaha
is general when it secures the greatest benefit for the largest number of people. It is particular or partisan if it secures a benefit only for certain individuals or groups. The final condition of
maslaha
is that a ruling in the public interest should not confl ct with a clear text of the Qur’an or the Sunna. Because the rulings of the Qur’an and the Sunna are by definition meant for the good of all, an action in the public interest loses its credibility when it conflicts with a clear text of scripture.

Two other objectives of Shari‘a that may be mentioned briefl are the removal of hardship (
raf‘ al-haraj
) and the prevention of harm (
daf‘ al- darar
). Both of these objectives are integral to the concept of public interest. The Qur’an declares, ‘‘God never intends to make religion a means of inflict- ing hardship’’ (Qur’an 22:78). It also declares in an affirmative sense, ‘‘God intends to put you at ease’’ (Qur’an 5:6; 4:28). The Prophet Muhammad’s wife ‘A’isha stated about the Prophet that he always chose the easier of two alternatives, so long as it did not amount to a sin. The prevention of harm is also a cardinal goal of Shari‘a and is the subject of a renowned hadith: ‘‘Harm (
darar
) may neither be inflicted nor reciprocated.’’
22
This tradition is supplemented by a number of legal maxims such as, ‘‘The prevention of harm takes priority over the attraction of benefi ‘‘Harm must be elimi- nated,’’ and ‘‘A particularized harm may be tolerated if it prevents a general- ized harm.’’

ADAPTATION AND REFORM

The First Five Phases of Fiqh

The initial phase of Islamic jurisprudence was the Prophetic period (c. 610–632
CE
). In this period, the Qur’an was revealed and the Prophet Muhammad explained and reinforced it through his own teachings and Sunna. There was a general preoccupation with the Qur’an, and the emphasis was not as much on law as on dogma and morality. The legal rulings of the Qur’an, which were mainly revealed during the second decade of the Proph- et’s mission, were mainly issue oriented and practical. There was little need for speculative legal reasoning or
ijtihad,
since the Prophet himself provided definitive rulings on issues when they arose.

The second phase, the era of Companions of the Prophet Muhammad (c. 632–661
CE
), was one of interpretation and supplementation of the textual subject matter of the Shari‘a, and it is in this period that
fi
and
ijtihad
fi their historical origins. Interpretation of the rulings of the

The
Shari‘a:
Law as the Way of God
177

Qur’an and the Sunna by the Companions is generally considered authorita- tive, as they were the direct recipients of the Prophet’s teachings and were witnesses of the Qur’anic revelation. The Companions were known for their frequent recourse to personal reasoning, and the more prominent among them, especially the first four Caliphs, have left a rich legacy of contributions to the Shari‘a.

The third phase of
fi
was known as the era of the Successors and coincided with the Umayyad dynasty of Caliphs (r. 661–750
CE
). Because of the territorial expansion of the Umayyad state, new issues arose that stimulated significant developments in
fiqh.
This period was marked by the emergence of two schools of legal thought that left a lasting impact on subsequent developments. These were the Traditionists (
Ahl al- Hadith
) and the Rationalists (
Ahl al-Ra’y
). The secession of the Shiites from the main body of Muslims was another major development of this period.

The next two centuries (c. 750–950
CE
) are known as the era of indepen- dent reasoning (
ijtihad
) and mark the fourth phase in the history of
fiqh.
This period saw major developments, which were later manifested in the emergence of the leading schools of law, as discussed above.

The last of the five phases of the formative history of
fiqh
began around the mid-fourth century of Islam (c. 950
CE
). It was generally a period of institu- tionalization of the dominant schools of jurisprudence, with emphasis not so much on new developments but on following the existing precedents and practices of these schools (
taqlid
). By far the longest phase of the history of
fiqh,
this period lasted for about nine centuries and witnessed the downfall of the Abbasid and Ottoman empires and the colonial domination of Muslim lands by European powers. The colonial powers propagated their own doctrines and legal codes in almost every area of the law in their dominions. As a result, the practice and development of
fi
underwent a sustained period of stagnation, particularly in Sunni Islam.

The Current Phase of Developments in Fiqh

The current phase in the history of
fiqh
began around the turn of the twen- tieth century. It is marked by a greater emphasis than before on original thinking and
ijtihad.
Following the Second World War and the ensuing period of nationalism and independence, Islamic revivalism in the Muslim world started with a demand by the Muslim masses to revive the Shari‘a in the spheres of law and government. There were those who opposed this movement and called for the continuation of colonial ideas and institutions. This latter group argued that the Muslim world did not possess a self- contained Shari‘a-based civil code or a constitution to provide a ready recourse for those who wished to revive the
fiqh
tradition.

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Voices of Tradition

Many newly independent Arab states introduced constitutions that were based on those in European countries. However, they also offered a partial revival of
fi h
through the incorporation of clauses that declared Islam the state religion, the Shari‘a as a source of law, and in some cases introduced
fiqh
-based statutory legislation. As the demand for a Shari‘a-based civil code grew stronger, working groups of Shari‘a and modern law experts were formed in Syria and Egypt. ‘Abd al-Razzaq al-Sanhuri (d. 1969), the renowned Egyptian jurist and government minister, featured prominently in these early efforts. Sanhuri’s work was marked by his tendency to incorpo- rate salient aspects of Western and Islamic jurisprudence into Islamic revival- ist projects.

The new trend toward the critical reexamination of
fiqh
became visible in the 1929 Egyptian Law of Personal Status, which drew not only from the juristic legacy of the four major Sunni schools of
fiqh
but also from the opin- ions of individual jurists when this was conducive to the public interest. The 1953 Syrian Law of Personal Status took a step further in the same direction and not only relied on the resources of the leading schools but also formu- lated new rules that had no precedent in existing
fiqh.
The Syrian legislation marked a new beginning for
ijtihad
through statutory legislation, as it departed from the traditional pattern of
fi
being the concern of private jurists and legal experts. This new approach to
ijtihad
through legislation was followed in the same decade by similar attempts in Morocco, Tunisia, Iraq, and Pakistan, where statutory reforms were introduced in the tradition- ally Shari‘a-dominated laws of marriage, polygamy, and divorce.

The call for a Shari‘a-based civil code in Muslim countries was accentuated by the growing support for collective
ijtihad.
This movement was character- ized by two approaches: (1) recourse to the wider resources of
fiqh
in all of its diversity and (2) direct recourse to the sources of the Shari‘a and its goals and objectives as aids to
ijtihad.
In 1976, Jordan promulgated a comprehensive civil code that replaced the Ottoman
Mejelle
of the previous century, which was based mostly on Hanafi jurisprudence. The Jordanian code is now widely seen as a model for Muslim countries, in that it combines infl from modern thought and from the four Sunni schools of law taken collectively. In the early 1980s, the United Arab Emirates created its own civil code based on the Jordanian model, as did the Republic of Sudan. One of the interesting features of the Jordanian code is that its articles are followed by explanatory notes that indicate the sources from where they were drawn. At the same time, the code reveals the influence of the principles of
fiqh,
such as analogical reasoning, the consideration of public interest, different varieties of
ijtihad,
and the Goals of the Shari‘a. Efforts are now underway to formulate a unified, Shari‘a-based civil code for all the Arab countries.