Law and Ethics in Islamic Jurisprudence

[This is the first in a series of my notes on the International Institute of Islamic Thought conference on Islamic Law and Ethics held in Herndon, VA in June  2014. It sets the stage for the other papers the presentations and discussions of which will be summarized in the remainder of this series. These notes have only been lightly edited and represent my perception of the discussion. The proceedings will be published by IIIT at a later time. Responsibility for any errors in the notes is mine alone. Names of general participants (other than mine) in the general discussion have been omitted by request of the organizers.]

“Law and Ethics in Islamic Jurisprudence”

Prof. Abdulaziz Sachedina, Ph.D., IIIT Chair in Islamic Studies at George Mason University.

The heart of the problem of reform of Islamic thought goes back to juridical studies in Islam. We have labored under our legal heritage. Modern institutions pose a challenge from personal law to the collective responsibilities of citizens to global markets. The ulama were not willing to redefine the parameters of their own methodologies to speak to societies across nations. The institutions of jurisprudence were, and are, constrained to discussion that was the subject of reform. All the issues are new, and some have not been raised at all. For example, the issue of the status of minorities was based on times when the Muslims were in power. All have been talking about ijtihad, making Islamic law pertinent to its time and space. We have found it easy to give a fatwa saying that if you cannot live a Muslim life where you are, you should go back to where you came from, instinctively conceding that the scholars themselves had nothing to offer.

Another question was the potential role of a legislature today. In the 19th century people asked, “Can we have a parliament to make decisions in the areas of traditional jurisprudence?” But what do we mean by reform of education?  If we don’t know psychology and sociology, how are we going to direct the youth living in a modern society? AbdolKarim Saroush dealt with a third question: When can the Shariah become an open system? The ulama resisted. The Hausa were opposed to the university, and the accusation was made that we are submitting to Western domination. But Shatabi and Ghazali spoke about maqasid. Shafi and Abu Hanifa were well aware of the societies in which they operated. Shariah for them was not just a system of jurisprudence, but a system of values. For them the system was not closed. They spoke of istihsân (juristic reference), maslaha (public interest), etc. Now we hear more and more about maqasid, but even maqasid needs a re-evaluation. If we say protection of religion is part of the maqasad, we must ask, “Is freedom of religion is part of that?”

Today’s science is demanding responses from us. In Muslim societies there is mismanagement of resources, of the environment. People have not been taught that plastic is not degradable. Why has Nigeria been unable to fight malaria? We found a drainage site open in the heat and no directions from the religious establishment that you must keep your environment clean. Ibâdat (ritual worship) is only one-tenth of your religion, nine-tenths is mu`amalât–your daily life. There are no rulings on the ethics of commerce, yet ethics is the foundation of the language of Shariah. It can come from the Quran or Sunnah, but what of the cases on which these sources are silent? In Jordan there is not a single course on the history of Islamic law.

The purpose of Shariah is to increase virtue in society, rooted in the rightness or wrongness of human action. There are no courses on `ilm al kalâm (the science of religious discourse). No one is reading anyone from the classical era scholars who sought to understand the nature of human action. Do you human beings have the capacity to know right from wrong? Those who believed in the divine ethics of the Qur’an said the Shariah will tell you. In contemporary Shia teachings there is no discussion of the absolute reprehensibility of telling lies. There are questions in the Qum seminary being confronted for the first time. People talk of halal and haram but not akhliyât (ethics). They ask what does the fatwa say, but Muslim scholars have not learned how to think about what is the divine objective. What is our essential foundational source? We cite the Qur’an, but I must relate to my Jewish and Christian and other colleagues. I propose no solution, but if theological ethics is not introduced we shall have a hard time today. Allah says He gave us the ability to know right from wrong. Will we always wait for the fatwa, or will give our youth the resources for moral reasoning? We speak of ijtihâd ash-shar`i (original critical thinking to understand the law). Farûd (mandates) are provided by the text. Can farûd come from intuitive human reasoning? It is a gift from God given to us so we can use it. I would argue that you cannot be a good faqih without being a good scholar of ethics. Part of jurisprudence is to make it possible to predict the future answer that will come from Shariah. We seek an opportunity for conversation. We want to revive that sense of security that God is guiding me. Do we read Qur’an carefully and study religion carefully? In all the books on human rights today in Arabic, they go back to `ilm al-kalam, knowing the nature of the human being. The mu`tazila were not rationalists; they were textualists. I think we are seeing some results after nine or ten years, but we are still challenged, as we should be. We will not see any changes coming. Have you seen Qaradawi’s fatawa on cloning? There is no discussion of understanding cloning. He asks will we clone one hundred Saddams? But cloning is not photocopying. Can an opinion not properly rooted in the sources be of any value?

DISCUSSANT: Prof. Ebrahim Moosa, Duke University.

Is fiqh law? How has legal formalism killed Islamic thought? Al-Ghazali says fiqh is knowledge that leads to salvation in the afterlife, meaning that we fulfill our fiduciary responsibility towards the Creator. As Islam becomes a canonized tradition, the form of the provocations that shaped the religion takes on a different form. We do not have a deep and complex history of Islamic law. We have a history of the tadwîn of the law, how it was put together, but what were the politico-economic circumstances that generated it? There is one study of punishment, but there is nothing a modern historian would recognize as history.

Abu Ya`rab al-Marzuki asked if revelation ended with Prophet Muhammad, as then the rise of the law schools is a preposterous act that extends the voice of revelation. The paradigms of the canonical law schools have become part of the sacred discourse. Modern scholars have looked at the legacy and treated it as law, or at least law-like. The qadis were judges, but they also engaged in the ethical realm. Muslims internalize a complex discourse only as law and say if we depart from the law we are no longer Muslim. Thus, whenever we talk about Islamization we talk about law.

I think theology is also important. We now call human experience moral philosophy, etc. How do we theorize the human? Muhammad Abdu and others said we must write about theology, but they never did it.

The talk of ijtihad is tiresome, but everyone has to say it. Dusting Shatabi off the shelf and rereading him is not ijtihad, it is taqlid (blind imitation). Fadlallah listens to the world and responds to it, but that is not systematic. Muslims are not comfortable with modern knowledge. We need not fear the modern, [for we can transform it.] Ibn Qayîm, student of Ibn Taymiyyah, said anything that transform justice into tyranny or mercy into cruelty is not part of the Shariah, for the Sharia that God entrusted the Prophet to transmit is the pillar of this world and the next. Ghazali’s contemporary Ibn Yaqil (an idiosyncratic Hanbali), had to rebut a statement of Shafi that there is no siyâsa (politics) except for that which corresponds to, or complies with, the Shar`a. He said governance is that which brings people to the good and takes them away from corruption (fasâd) even if there is no precedent in revelation or Sunnah. Muslims are so intimidated with dealing with the knowledge of the past that they fall silent before it, hobbling Islamic thought so there is no innovation and no credibility. There is no Islamic exceptionalism in knowledge.

DISCUSSANT: Jasser Auda. Shariah, fiqh, akhlâq, for me, are very different from law and ethics. Issues of halal and haram are very sensitive. I don’t see fiqh as systematic, nor should it be. Sharia is about the identity of Muslims. We don’t want to represent ethics as fiqh but from within fiqh.

Q. The age of nahda (reform) was the late 19th and early 20th century. What do we call these people, modernists or salafis–a term coined by Abdu? There have always been creative Muslim thinkers. In the Sunni community there is no central authority; we have voices, but no platform to make the voices heard. The satellite stations we have serve very particular purposes. We should look at our heritage compassionately as well as critically. Bonaventura said we can see further than those before us because we are dwarves standing on the shoulders of giants.

Q. The books of Islamic law reverse the 10-90 split to which you refer. Were the fuquha too intimidated to deal with these questions? What went wrong? Regarding methodology, we find the Malikis used the Madani praxis, the Shafis focused on text, and the Hanafis on legality, but by the ninth century they all used Shafi methodology.

Sachedina. The view that Sharia is not only the sense of identity, but confidence, leaves open the question, “Where shall Shariah be applied?” Why is fiqh not systematic? I don’t think it is haphazard.  The rubrics show a system. The fuquha paid more attention to ibidât than mu`amalat because it lent itself more easily to systemization. With the mu`amalât each region had its own customs and which questions were important differed from one place to another. There was no supporting text for it, which impeded systemization.

Whether Afghani was an Arab or not, he worked in the Arab world, and he did not have a big following in the non-Arab world. He represented the Arab struggle. Nahda (reform) and islâh (revival) were both connected with those informed about the Western progress and paradigm. Abdu and Ridda were thoroughly grounded in the islâh tradition, drawing on it as a source. Afghani is an exception and we can see reverberations even in Khomeini.

Q. Afghani died in Istanbul.

Moosa. We have different definitions of systematic. Even if the founders were not systematic, their work was systematized later. Masâ’il hisâsa (sensitive subjects) doesn’t mean you talk about sensitive subjects. Jamal ad-Din al Qasimi says it’s all about makânat al akhlâkh (place of ethics). Muslim identity is not static. Muslims in the present do not look exactly like those 500 years ago. Identity is mutable. We debate superficial issues and ignore the deeper philosophical issues. Certain law schools say they can identify the wajib and the haram by extension. If Ibn Hazm comes into the room he would say it is the meat, not the skin, of the pig that is haram. Others would disagree. In Qanûn at-Ta’wîl, al-Ghazali says to approach revelation with humility, reason, and a plurality of interpretations, all of which are in tension with each other. Some fatwas give deep reasoning; others do not. Perhaps there are archives where we could find more. We are frightened by the discourse.

Q. We are presenting modernity as if it were a universal system, but modernity itself is an ideology. Also we see the crises of modernity in environment and ideology. Might not scholarly resistance be constructive? Just how intuitive are ethics, even about something as simple as cleanliness?

Q. If the notion of mutability applies in the area of mu`amalât, then what happens to the text, as in inheritance? Some of these terms have been used differently by different scholars. Shariah consists of unchanging norms and values but the application of fiqh can change. Ethical underpinning should be in the domain of Shariah.

Moosa: I suggest that IIIT examine the whole question of modernity at a future time. McIntyre questions the fact/value division in After Virtue, that Aristotle is still valid today. Bruno Latour says we have never been modern. This is our lived reality. We can create alternative realities, but I see a shadow-boxing with liberalism, and some scholars cannot decide of it is a good thing or bad thing. This gathering here in some people’s eyes is an unIslamic gathering, while others would say it is way too conservative. The last time I went on hajj the circumambulation was on three levels. The ibadât are transforming themselves, but we manage it. The Jafaris and Sunnis differ on inheritance. These things are not as black and white as some think.

Q. I think we have misunderstood the issue of siyasi (political). We have entered areas that once were considered untouchable. We must empower the new thinkers to address these issues.

Q. We need to broaden Shariah so it includes modernity, engineering, and medicine. When we say there are problems with democracy people will say, “Yes, but what alternative do you have to offer?”

Q.  At Dar al Ulum I saw a complexity that isn’t always going to be reflected in the khutbas. Clifford Geertz said you can’t have religion without religious institutions. Can’t we speak more about them?

Q.  Does mutability mean that 200-300 years from now Islam will have become more or less what Christianity has become today? Modernity is just a phase we are experiencing, and we should be able to adapt to it. It is contested idea.

Q. What is the medium of forming Islamic reform?

Auda. My point is that Shariah cannot be reformed from without, and I see an ethical approach as being reform from without. The methodology need not be classical, but it must resonate with the classical one. Qaradawy is not as simple-minded as you suggest. He can refer to Saddam in a joke, but this is not how he formulates a fatwa.

Sachedina. “Modern” and “medieval” are human creations. As moderns, we know the modern infrastructure does not leave you alone. There are various ways of confronting it, and our historical experience affects our response. Mutability is an Orientalist question. We are trying to come to terms with the changed circumstances of women. Were I not informed by modern education I might be doing what they are doing in Mecca or Najaf–

Q. In Mecca they are not doing anything.

Sachedina: We memorized the text and mimicked our teachers. We are responding to this question because we are modern. What is the medium of ethical thinking? I ask Muslims, “Do you accept the killing of innocent children?” and they all say no. I say this is akhliyât. I am taking about prima fascia understanding that has been given by God. My text is telling me that Allah (swt) will question me about what He has given me.

Moosa. The Home Depot version of Islam is very shallow, but we must respect the knowledge of the specialists. The ulama may say their critics’ work is shallow, but some of the work of the ulama is also shallow. The modern condition is a condition of anxiety. What Islam will look like in 300 years is not your burden.  The Prophet said my brothers are those follow me without seeing me. It’s easy for Charles Taylor to say things about modernity, but he does not have to deal with the issue of clean water. The alteration of the ethical is from within Shariah, not from outside. The question of modernity is a question of theodicy. Ghazali said the world in which we live is the only world we know. We are part of the modern, but how do we make it better?

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org

ImadadDean