[…]
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’an, is one of the greatest
“signs” of God, tend to immobilize what is essentially mobile in its nature.
The failure of 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 Ijtihād.
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’an– “And to those who exert We show Our path.”
[…]
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 Ijtihād: (1)
complete authority in legislation which is practically confined to the 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. In this paper I am
concerned with the first degree of Ijtihād only, i.e. complete authority in
legislation. The theoretical possibility of this degree of Ijtihād is admitted by the Sunnīs, but in practice it has always been denied ever
since the establishment of the schools, inasmuch as the idea of complete Ijtihād 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’an which embodies an essentially dynamic outlook
on life.
[…]
Passing on to Turkey,
we find that the idea of Ijtihād, reinforced and broadened
by modern philosophical ideas, has long been working in the religious and
political thought of the Turkish nation. ... 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. …
I now proceed to give
you some idea of religio-political thought in Turkey which will indicate to you
how the power of Ijtihād is manifested in recent thought and
activity in that country. ... 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.
[…]
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’an 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.
[…]
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. 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.
[…]
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.
1) The Qur’an. The primary source of the Law of Islam is the Qur’an. The Qur’an,
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. No doubt, the Qur’an does lay down a few general principles
and rules of a legal nature, especially relating to the family – 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 other-worldliness 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
hisBriefe über 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.” Thus the Qur’an 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.
[…]
2) The Hadīth. The second great source of Muhammadan Law
is the traditions of the Holy Prophet.
[…]
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. Shāh Wall Allāh has a very illuminating discussion on the
point. I reproduce here the substance of his view. The prophetic method of teaching, according to Shāh Wall Allāh, 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
Sharī‘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 Sharī‘ah values (Ahkām) 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. It was perhaps in view of this that Abū Hanīfah, 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 Istihsān, 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.
[…]
the attitude of Abū Hanīfah 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 Sunnī 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’an. A complete grasp of their
life-value alone can equip us in our endeavour to reinterpret the foundational
principles.
3) The Ijmā‘. The third source of Muhammadan Law is Ijmā‘ which is, in my opinion, perhaps the
most important legal notion in Islam.
[…]
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 Ijtihād from individual representatives of
schools to a Muslim legislative assembly which, in view of the growth of
opposing sects, is the only possible form Ijmā‘ can take in modern times …
[…]
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 Ulema– “conversant with the
affairs of the world”– having power to supervise the legislative activity of
the Mejliss. … 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 Sunnī
countries. The Ulema 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.
4) The Qiyās. The fourth basis of Fiqh is Qiyās, i.e. the
use of analogical reasoning in legislation. In view of different social and
agricultural conditions prevailing in the countries conquered by Islam, the
school of Abū Hanīfah seem to have found, on the whole, little or no guidance
from the precedents recorded in the literature of traditions. The only
alternative open to them was to resort to speculative reason in their
interpretations.
[…]
Thus the school of Abū Hanīfah which fully assimilated the results of this
controversy is absolutely free in its essential principle and possesses much
greater power of creative adaptation than any other school of Muhammadan Law.
But, contrary to the spirit of his own school, the modern Hanafī legist has
eternalized the interpretations of the founder or his immediate followers much
in the same way as the early critics of Abū Hanīfah eternalized the decisions
given on concrete cases. Properly understood and applied, the essential
principle of this school, i.e. Qiyās, as Shāfi‘ī rightly says, is only another
name for Ijtihād which, within the limits of the revealed texts, is absolutely
free.
This brief discussion, I
hope, will make it clear to you that neither
in the foundational principles nor in the structure of our systems, as we find
them today, is there anything to justify the present attitude. Equipped
with penetrative thought and fresh experience the world of Islam should
courageously proceed to the work of reconstruction before them: This work of reconstruction, however, has a
far more serious aspect than mere adjustment to modern conditions of life. …
Early Muslims emerging out of the spiritual slavery of pre-Islamic Asia were
not in a position to realize the true significance of this basic idea. Let the
Muslim of today appreciate his position, reconstruct his social life in the
light of ultimate principles, and evolve, out of the hitherto partially
revealed purpose of Islam, that spiritual
democracy which is the ultimate aim of Islam.
complete text available at: http://www.allamaiqbal.com/works/prose/english/reconstruction/06.htm
