The Principle of Movement in the Structure of Islam

-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 Êiy« 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. 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. 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?’ 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. Marriage, according to Muhammadan Law, is a civil contract. 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.

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. 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 Àadâth. 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. 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).

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. It was perhaps in view of this that Abë Àanâfah, 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 Àanâfah 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 Àanâfah. But even if we suppose that these collections never reached him, or that they did not contain traditions of a legal import, Abë Àanâfah, like M«lik and AÁmad Ibn Àanbal 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 Àanâfah 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. 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 (Àukm) entitling them to such a limitation or extension.

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. 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 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.’

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. 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.

(d) The Qiy«s. The fourth basis of Fiqh is Qiy«s, 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 Abë Àanâfah 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. The application of Aristotelian logic, however, though suggested by the discovery of new conditions in Iraq, was likely to prove exceedingly harmful in the preliminary stages of legal development. The intricate behaviour of life cannot be subjected to hard and fast rules logically deducible from certain general notions. Yet, looked at through the spectacles of Aristotle’s logic, it appears to be a mechanism pure and simple with no internal principle of movement. Thus, the school of Abë Àanâfah tended to ignore the creative freedom and arbitrariness of life, and hoped to build a logically perfect legal system on the lines of pure reason. The legists of Àij«z, however, true to the practical genius of their race, raised strong protests against the scholastic subtleties of the legalists of Iraq, and their tendency to imagine unreal cases which they rightly thought would turn the Law of Islam into a kind of lifeless mechanism. These bitter controversies among the early doctors of Islam led to a critical definition of the limitations, conditions, and correctives of Qiy«s which, though originally appeared as a mere disguise for Mujtahid’s personal opinion, eventually became a source of life and movement in the Law of Islam.

The spirit of the acute criticism of M«lik and Sh«fi‘â on Abë Àanâfah’s principle of Qiy«s, as a source of law, constitutes really an effective Semitic restraint on the Aryan tendency to seize the abstract in preference to the concrete, to enjoy the idea rather than the event. This was really a controversy between the advocates of deductive and inductive methods in legal research. The legists of Iraq originally emphasized the eternal aspect of the ‘notion’, while those of Àij«z laid stress on its temporal aspect. The latter, however, did not see the full significance of their own position, and their instinctive partiality to the legal tradition of Àij«z narrowed their vision to the ‘precedents’ that had actually happened in the days of the Prophet and his companions. No doubt they recognized the value of the concrete, but at the same time they eternalized it, rarely resorting to Qiy«s based on the study of the concrete as such. Their criticism of Abë Àanâfah and his school, however, emancipated the concrete as it were, and brought out the necessity of observing the actual movement and variety of life in the interpretation of juristic principles. Thus the school of Abë Àanâfah 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 Hanafâ legist has eternalized the interpretations of the founder or his immediate followers much in the same way as the early critics of Abë Àanâfah eternalized the decisions given on concrete cases. Properly understood and applied, the essential principle of this school, i.e. Qiy«s, as Sh«fi‘â rightly says, is only another name for Ijtih«d which, within the limits of the revealed texts, is absolutely free; and its importance as a principle can be seen from the fact that, according to most of the doctors, as Q«dâ Shauk«nâ tells us, it was permitted even in the lifetime of the Holy Prophet.

he closing of the door of Ijtih«d is pure fiction suggested partly by the crystallization of legal thought in Islam, and partly by that intellectual laziness which, especially in the period of spiritual decay, turns great thinkers into idols. If some of the later doctors have upheld this fiction, modern Islam is not bound by this voluntary surrender of intellectual independence. Zarkashâ writing in the eighth century of the Hijrah rightly observes:

‘If the upholders of this fiction mean that the previous writers had more facilities, while the later writers had more difficulties, in their way, it is, nonsense; for it does not require much understanding to see that Ijtih«d for later doctors is easier than for the earlier doctors. Indeed the commentaries on the Kor«n and sunnah have been compiled and multiplied to such an extent that the mujtahid of today has more material for interpretation than he needs’.

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. The Great European War bringing in its wake the awakening on Turkey - the element of stability in the world of Islam - as a French writer has recently described her, and the new economic experiment tried in the neighbourhood of Muslim Asia, must open our eyes to the inner meaning and destiny of Islam. Humanity needs three things today - a spiritual interpretation of the universe, spiritual emancipation of the individual, and basic principles of a universal import directing the evolution of human society on a spiritual basis. Modern Europe has, no doubt, built idealistic systems on these lines, but experience shows that truth revealed through pure reason is incapable of bringing that fire of living conviction which personal revelation alone can bring. This is the reason why pure thought has so little influenced men, while religion has always elevated individuals, and transformed whole societies. The idealism of Europe never became a living factor in her life, and the result is a perverted ego seeking itself through mutually intolerant democracies whose sole function is to exploit the poor in the interest of the rich. Believe me, Europe today is the greatest hindrance in the way of man’s ethical advancement. The Muslim, on the other hand, is in possession of these ultimate ideas of the basis of a revelation, which, speaking from the inmost depths of life, internalizes its own apparent externality. With him the spiritual basis of life is a matter of conviction for which even the least enlightened man among us can easily lay down his life; and in view of the basic idea of Islam that there can be no further revelation binding on man, we ought to be spiritually one of the most emancipated peoples on earth. 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.

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