THE IMPERATIVE OF RATIONAL
MEDIATION OF ISLAMIC SOURCES
Shari`a law was historically developed by Muslim jurists by applying human reasoning to
revealed texts with the aim to develop a normative system capable of regulating individual
actions and social interactions. Early jurists relied primarily on the Qur’an and the
practices of the Prophet to elaborate the rules of shari`a, and referred to the process
through which shari`a rules were elaborated by the term ijtihad (intellectual
exercise). Recognizing the imperative of rational mediation for understanding the rules of
shari`a, early jurists exerted a great deal of time and energy to define the grammar of
interpreting the divine texts and the logic of reasoning about their implications. The
differences in
methodological approaches led to the differentiation of the various schools of
jurisprudence. Because the Qur’anic texts were given in a concrete form, whereby the
Qur’an commented on the actions and interactions of the early Muslim community, and
directed early Muslims in concrete situations, the jurists applied legal analogy (qiyas)
to expand the application of the Qur’anic precepts to new cases. The qiyas
technique, widely accepted by the schools of jurisprudence, requires the jurists to
identify the efficient reason (‘illa) of a specific Qur’anic statement,
and to use this reason as the basis for extending the application of the Qur’anic
precept to new cases. For example, early jurists extended the prohibition of wine to all
intoxicating substance on the ground that intoxication was the reason for the
Qur’anic prohibition of wine. Early jurists also utilized the statements and actions
of the Prophet and his companions as a means to arrive at better understanding of the
revealed texts. The practices of the Prophet and his companions became known as the Sunna
and were captured in the hadith narrations. Early jurists did not feel that the Sunna
has an authority independent from the Qur’an, and hence did not hesitate to reject a hadith
narration whenever it was in a clear contradiction with a Qur’anic statement.
Ijtihad took a decisive turn when Muhammad bin Idris al-Shafi‘i produced,
in the middle of the second century of Islam, the first work in Islamic Principles of
Jurisprudence (usul al-fiqh) under the title al-Risala (the Message). In his
Message, Shafi‘i declared that the Sunna was an inviolable source of
law on par with the Qur’an, and insisted that it enjoyed an independent authority.
Furthermore, Shafi‘i confined ijtihad to legal analogy (qiyas),
declaring all other legal reasoning to be arbitrary. The restrictions on ijtihad
were further extended by Ahmad bin Hanbal, who insisted that legal analogy has to be used
only as a last resort. He therefore required that even a weak hadith has to be
given priority over legal analogy. The other two major schools of jurisprudence of the
Sunni branch of Islam, the Hanafi and Maliki, were able to escape the severe restrictions
on ijtihad imposed by Shafi‘i and Hanbali schools by employing the techniques
of istihsan and istislah respectively. Istihsan meant that the jurist
was not bound by the apparent reason of a particular rule, but could utilize other reasons
of shari`a whenever deemed more relevant. Istislah, on the other hand, allowed the
jurist to base the rules of shari`a on public interests and utility, rather than confining
them to ‘illah (efficient reason).
The desire of Hanafi and Maliki jurists to overcome the literalist approach that
equates ijtihad with qias (à la shafi`i), or with linguistic explication of the
Qur’an by reference to hadith (à la Hanbali), has inspired them to develop
methods aimed at prioritizing shari`a rules and principles. Methods such as al-qawa`id
al-fiqhiyyah (juristic rules) or al-maqasid al-Shari`iyyah (shari`a
purposes) aim at the systematization of the shari`a rules by eliminating internal
contradiction, and constitute what is referred to today as maqasid approach.
By its emphasis on meaning, reasoning, and purposes the maqasid approach provide
a powerful tool for reforming historical shari`a, because it rejects the literal reading
of statements apart from their rationale, and insist that those rationale cannot
contradict basic Islamic values. The definitive exposition of this approach can be found
in the work of the Andalusian jurist Ibrahim bin Ishaq al-Shatibi, Al-Muwafaqat.
The maqasid approach expounded by Shatibi can be summarized in the following
points: (1) Shari`a rules purport to promote human interests; (2) Shari`a consists of a
hierarchy of rules, whereby the particular rules (ahkam juz’iyyah) are
subsumed under universal laws (qwanin kulliyyah); (3) General rules must be
modified to accommodate – whenever possible – particular rules; (4) Particular
rules that contradict general rules should be rejected or ignored; (5) The various rules
and laws of shari`a aim at advancing five general purposes: the protection of Religion,
life, reason, property, and progeny.
I wish, in the remainder of this paper, to undertake a fresh interpretation of the
Islamic sources on the moral positions women and non-Muslims enjoy, and the rights and
obligations assigned to them. I propose to employ a methodology rooted in the maqasid
approach, and based on the following five principles:
Principle 1: Rights and obligations cannot be established on the basis of
individual statements of the Qur’an and Sunnah, but have to accord with the totality
of relevant statements. Therefore, a jurist is required, according to this principle, to
consult all relevant texts before rendering a specific ruling.
Principle 2: The multiplicity of Qur’anic rules must be reduced into a
coherent set of universal principles. The universal principles should be used to ensure
the systematic application of shari`a in modern context. Such systematization should
prevent an application of a specific (khas) rule in violation of a general ( ‘am),
or a particular (juz’i) in violation of a universal (kulli).
Principle 3: Because the generalization of a rule presupposes that the reason
for its enactment is clear, no rule should be generalized unless its reason has been
explicated. This principle requires that Qur’anic rules relating to social actions
and interactions should be understood fully, and systematized with other rules. If this
requirement is met, the literalist application of shari`a would be eliminated.
Principle 4: Because the universalization of a principle requires that the
conditions of its application be identical, regardless of time and space, no principle can
be declared universal if the particularity of the context for which it was intended is
evident. This principle complement Principle 3 by requiring the jurist to examine the
extent to which a specific statement or rule is directly connected with the
socio-political context in which it was revealed.
Principle 5: Qur’anic statements take priority over Prophetic ones. Hence,
in the case of conflict and real contradiction, Qur’anic precepts override Prophetic
ones.
Utilizing the methodological framework outlined above, I turn now to examine the extent
to which religious restrictions on religious freedom and the rights of women and
non-Muslims are rooted in the attitudes and practices of historical Muslim communities,
and how far these restrictions can be attributed to revealed texts.
FREEDOM OF CONVICTION
There is ample evidence in the Qur’an, both the Makkan and Madinan, that
individuals should be able to accept or reject a particular faith on the basis of personal
conviction, and that no amount of external pressure or compulsion should be permitted:
"No compulsion in religion: truth stands out clear from error."(2 : 256)
"If it had been the Lord’s will, they would have believed – All who are on
earth! Will you then compel mankind, against their will, to believe!" (10 : 99) By
emphasizing people’s right to freely follow their conviction, the Qur’an
reiterates a long standing position, which it traces back to one of the earliest known
Prophets, Noah:
Not only does the Qur’an recognize the individual’s right to freedom of
conviction, but it also recognizes his/her moral freedom to act on the basis of their
conviction. The principle that the larger community has no right to interfere in
one’s choices of faith and conviction can be seen, further, in the fact that the
Qur’an emphasizes that the individual is accountable for the moral choices he or she
makes in this life to their Creator alone.
Yet despite of the Qur’anic emphasis on the freedom of conviction and moral
autonomy, most classical jurists contend that a person who renounces Islam or converts to
another religion commits a crime of ridda (apostasy) punishable by death. However,
because the Qur’an is unequivocal in supporting religious freedom, classical jurists
relied, in advocating death penalty for ridda (renouncing Islam), on two hadith texts,
and the precedent of the Muslims fighting against Arab apostates under the leadership of
Abu Bakr, the first Caliph. This evidence is, though, shacky and does not stand under
close scruting. The two hadith texts reported in Sahih Bukhari state. "Kill
whoever changes his religion", and "Three acts permit the taking of a
person’s life: a soul for a soul, the adultery of a married man, and renouncing
religion while severing ties with the community".
Now both hadith statements cannot stand as a credible evidence because they
contravene numerous Qur’anic evidence. According to the Maqasid approach, a hadith
can limit the application of a general Qur’anic statement, but can never negate it.
Besides, the hadith even contradicts the practices of the Prophet who reportedly
pardoned Muslims who committed ridda. One well-known example is that of Abdullah
bin Sa‘d who was pardoned after Osman bin Affan pleaded on his behalf. Ibn Hisham
narrated in his Sirah that the Prophet pardoned the people of Quraysh after Muslims
entered Makkah victorious in the eighth year of the Islamic calendar. The Prophet excluded
few individuals from this general pardon, whom he ordered to be killed if captured,
including Abdullah bin Sa‘d. Abdullah was one of the few persons appointed by the
Prophet to write the revealed texts. After spending a while with the Muslims in Madina, he
renounced Islam and returned to the religion of Quraysh. He was brought to the court of
the Prophet by Osman, who appealed for his pardon. He was pardoned even though he was
still, as the narration indicates, in a state of ridda and was yet to reembrace
Islam. If ridda was indeed a hadd (sing. of hudud), neither Osman
would be able to plea for him, nor the Prophet would pardon him in violation of the
shari`a law. Therefore, I am inclined to the increasingly popular view among contemporary
scholars, that ridda does not involve a moral act of conversion, but a military act
of rebellion, whose calming justifies the use of force and the return of fire.
To make things worse, classical jurists extended death penalty to cases of
mis-interpretation of divine texts, or negligence of religious practices. Thus classical
jurists insisted that a Muslim who negates or neglects prayer can be executed if he does
not repent within three days. The vast majority of classical jurists maintained that it
was not necessary for a Muslim to openly renounce Islam to be subject to death penalty.
Rather, it was sufficient for him to say or do something contrary to Islam to be executed.
Although jurists called neglecting religious duties or contravening orthodox
interpretations zandaqa (heresy) rather than ridda, they treated both as
equal in their severity. Interestingly, heresy punishment is not based on any
Qur’anic or Prophetic texts, but on a faulty theory of right.
The widely accepted theory of right among jurists divided rights into three types: (1)
Rights of God (Huquq Allah) — These consist of all obligations that one has to
discharge simply because they are divine commands, even when the human interests or
utilities in undertaking them are not apparent, such as prayers, fasting, hajj,
etc.; (2) Rights shared by God an his servants (Huquq Allah wa al-‘Ibad)
— These include acts that are obligatory because they are demanded by God, but they
are also intended to protect the public, such as hudud law, jihad, zakat,
etc., and (3) Rights of God’s servants (Huquq al-‘Ibad) — These are
rights intended to protect individual interests, such as fulfilling promises, paying back
debts, honoring contracts. Still people are accountable for their fulfillment to God.
As it can be seen, the theory of right devised by late classical jurists – around
the eighth century of Islam – emphasizes that people are ultimately answerable to God
in all their dealings. However, by using the term rights of God to underscore the moral
duty of the individual, and his/her accountability before God, classical jurists obscured
the fact that rights are invoked to support legal claims and to enforce the interests of
the right-holder. Because the Qur’an makes it abundantly clear that obeying the
divine revelation does not advance the interests of God, but only those of the human
being, the phrase "rights of God" signifies only the moral obligations of the
believers towards God, and by no means should they be taken as a justification of legal
claims. It follows that the rights of God which are exclusively personal should be
considered as moral obligations for which people are only answerable to God in the life to
come. As such accepting or rejecting a specific interpretation or a particular religious
doctrine, and observing or neglecting fundamental religious practices, including prayer or
hajj, should have no legal implications what ever. A legal theory in congruence
with the Qur’anic framework should distinguish between moral and legal obligations,
and should confine the latter to public law that promote public interests (constitutional,
criminal, etc.) and private law that advances private interests (trade, family, personal,
etc.).
Unless the above legal reform is undertaken, there is no way to ensure that takfir
(charging one with disbelief) and zandaqa (charging one with heresy) claims would
not become a political weapon in the hands of political groups to be used as a means to
eliminate rivals and opponents. Indeed there is ample evidence to show that zandaqa and
takfir have been used by the political authorities during the Umayyad and Abbasid
dynasties to persecute political dissidents.
