Ethics in Maqasid al-Shari’ah, Politics, and Policy

[This is the fourth 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. 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.]

“Ethics in Maqasid al-Shari’ah, Politics, and Policy”

Moderator: Carl W. Ernst, University of North Carolina – Chapel Hill

“Realizing Islamic Ethics in the Islamic Rules”

Prof. Jasser Auda, Qatar Faculty of Islamic Studies

I think the best way to develop ethical reasoning in the Islamic sense is to integrate it into fiqh, to renew fiqh (tajdîd) so it is provides the answers about virtue, which, in English, is a small part of ethics. There are a few proposals about the relationship of ethics to fiqh. One view is that they are distinct, with fiqh being about rules and ethics being about akhlâq. Another approach is to integrate knowledge from the scripture with knowledge from the universe, but to me this does not answer the question because knowledge of the universe should begin with the scripture. It is good to mix scholars of Shariah with scholars of various professions to make a fatwa, but knowledge itself must be Qur’an-based. Another view would replace fiqh with ethics. I do not think fiqh is replaceable with ethics. For me, including ethics with fiqh means including maqasid into fiqh, and henceforth I shall use the word maqasid in place of ethics. This is the case regardless of whether you view ethics as the right or as divine command; an Islamic ethics will incorporate my ethical theory either way.

Tajdîd [renewal] is not a new concept and is mentioned in a hadith. Understanding (fahm), interpreting (tafsîr) and applying (tanzîl) the texts are three stages. There is fiqh al jawârih (jurisprudence of the body) and fiqh al qalb (jurisprudence of the heart, spirituality).  The instructions of the Qur’an must be understood in the context of their objectives. Qarafi notes the intentions of the Prophet (saws) must be understood. It is a refined way of looking at the Sunnah, but it is necessary to distinguish what the Prophet addressed in his own culture from what is inherent in Islam. Among the Deobandis, I said the Prophet wore a thobe because he was an Arab, but one student objected that the thobe is Islamic. I explained that the kurta the student wore is not the thobe the Prophet wore. He replied but the thobe is Islamic. I said Abu Jahl and Abu Lahab also wore the thobe. He accused me of making fun of the Sunnah. We must distinguish the Prophet’s rulings as a judge from his instructions in religion. The Prophet’s judgments were not infallible. The Qur’an mentions his conviction of an innocent man and in a hadith he says if he awarded a piece of land to a man unjustly he had awarded him a piece of Hellfire. The enslavement of captives of war and jizya (despite its having been mentioned in the Qur’an) are ordinances based on politics of the time. In other cases he was illustrating solutions, and the illustrations are not unique.

Ta`ârud deals with contradictions between verses of the Qur’an or between the Qur’an and hadith. Scholars turned to abrogation as a solution. I reject abrogation and say what appears to be abrogation is merely the application of the same principles in different circumstances. Some scholars separate usûl al fiqh from maqâsid ash-shari`ah. It is important to keep the rules devised by the scholars but to subordinate them to the maqasid. There are huge areas of unaddressed issues, like art and entertainment.

The maqasid are fixed. Not because they are not objective, but because they are closer to the qat`i (definitive) proofs than anything else. Then there are the acts of worship that include not only ritual, but many matters of family law that are part of worship.

“Islam with the Heart”

Prof. Jonathan Brown, Georgetown University

Ibn Abbas’s was a companion of the Prophet who for all his life believed mut`a (temporary) marriage is halal. Ibn Taymiyya dissented from all his predecessors on triple talaq, quoting Ibn Abass. The diversity of rulings provides a resource for Muslims, but it is also a liability and a risk because it can be used to excuse illegitimate desires, agendas, and exploitation. Ibn Rashid said that certain selection of diverse opinions would make you the worst Muslim in history. To deal with this dilemma we deal with intentions, set limits, and look at qualifications and political considerations, by which I mean the interests of the regnant cultural ideas.

Muslim judges not only dealt with ethics, but they were judges concerned with the legal order. By the 1200s, in an area where one school dominated, as in North Africa, judges ruled by the predominant opinion within that madhhab (school of thought), although senior judges had more latitude to select among rulings within the madhhab. In some areas (e.g., Ottomans), the sultans would specify a ruling not predominant in the madhhab (allowing for example a cash waqf), which at the time was the dominant reality. In areas like Egypt, where multiple schools co-existed, people understood where you would go for certain issues. E.g., the Hanbalis would allow the tearing down of a mosque if it was “decrepit.”

There were other questions that did not involve entering a courtroom. Then, scholars acted as muftis and their approach was different. One approach was permissive that said you can engage in fatwa shopping. First, you will be judged by your intentions in any case. Second, this is what the companions did (although they had no schools of law). Zarqasi followed this approach.

A second approach was to set up a body of procedures. E.g. you could neither mix and match to hybridize contradictory rulings between schools, nor could you mix and match rulings to concoct a solution that would be accepted by no school. You could take a solution that addresses a legitimate need (hâja). (This is distinct from necessity.) This would not allow you to eat pork, but it would allow you to take a ruling from a competing madhhab.

The third view, most common among the Hanbalis and also among the Deobandis, is that you should follow only one school of law or one mufti, but this has an exception. The scholar is still able to choose among schools in cases of darûrah (necessity). This is only for the scholar, not the layman seeking the opinion.

Consider marriage age. Can Muslim scholars legitimately say it is illegal for men and women to marry under the age of 16? Such prohibitions have been instituted in most Muslim countries. How did this happen? The argument is that the ruler is not making a decision on what is halal and haram, but only exercising his administrative power. Ibn Shubrama, a respected scholar with no school, said you cannot make a marriage contract before bulugh (puberty/physical maturity). What is the motivation of the scholars? Are they trying to do God’s will and advance the interests of the Muslim community, or to please the British overlords?

Ibn Shubrama is also at the center of the debate over Islamic mortgages. None of the schools of law permit a sale with conditions. It is not legally enforceable, except under Ibn Shubrama. Palestinian scholar Muhammad al-Ashqar was among the objectors saying no one really knows what Ibn Shubrama’s opinion was because he left no madhhab. Is it the best argument that takes the day, or only what is politically popular?

Q. Jafari also do not allow triple talaq. This was during the period of taqrîb (coming together).

Brown. Muhammad Abu Zaffra is a fan of Ibn Taymiyya and suggests he may have been influenced by the Jafari school.

Q. Are we making a methodology for the elite?

Auda. People not versed in the Shariah should ask the people who know. I know there is an authority issue here. Authority should not be abused, but it should be respected.

Q. If Islamic ethics can be identified with maqasid, and maqasid is found in fiqh, and fiqh should be ethical, is this not clear reasoning?

Auda. Maqasid should be derived from the text.

Q.  Instead of trying to validate ourselves, shouldn’t we be looking at the consistency of particular arguments to the overall worldview? Can we interrogate the sahaba the way the Shi`a interrogate their mujtahids?

Brown. The fact that you cannot interrogate the companions is the reason that they are not considered valid for these purposes.

Imad-ad-Dean Ahmad. In saying the maqasid are fixed, are you precluding the addition of new maqasid such as liberty or the environment? Tariq Ramadan said after attempting to resort to usûl to reform the fiqh, he concluded the usûl themselves are part of the problem in need of reform.

Auda. I do agree that the usûl are the problem but I think they are also the solution. The maqasid are fixed but they are also changeable, like the sun that looks fixed but is actually moving. They can be reinterpreted and re-imagined.  For example, preservation of soul should be preservation of life.

Q. So if a legal scholar wants to make a ruling they either look at the Prophet’s example or go to a masjid. Why don’t modern scholars consider themselves as did Abu Hanifa or Malik? The hadith is contestable but we have a corpus. Why must I go to the medieval period?

Brown. We are in such disarray that modern scholars cannot even agree on how to proceed. Some are tradition bound and others want to dispense with it completely, and there others all between. Hegemonic pressure is too strong.

Auda. You work within a heritage of quoting people from the past. You have to refer to it.

Q. In Radd al Asubki by Ibn Taymiyya, he says it may be important to take into account the Jafari school if you want to make an ijma’. If you look at Al-`âlami, you see Aristotelian logic permeates that book. In the same way that our understanding of gravity has progressed, can our understanding of these issues not also progress? These things are not muqaddis (sacred).

Auda. There is no ijmâ’ on the definition of ijmâ’.  Usûl that is based on systems theory will go nowhere. We must begin with the classical literature and incorporate systems into that.

Brown. Aristotle is not a stupid person. What is problematic in Aristotle is not problematic for the usûl. Usûl is actually post-modern in its insights.

Q. The hadith of Aisha’s extremely early marriage has been discredited.

Brown. But all the schools of law have based their conclusions on this hadith. Musa Fervor did great research on how people react to fatwas and what makes them buy in. Traditionalist scholars can’t stop quoting so-and-so. What convinces the lay people is quotes from the Qur’an, and then quotes from the hadith. The scholarly opinions are drawn out of the madhhabs but packaged with Qur’an and Sunna for marketing purposes.

Auda. Can Bukhari be revised on the bases of matn (text)?

Brown. No. We’re stuck with it.

Q. I think the solution is not to include maqasid in fiqh but to distinguish fiqh from maqasid.

Auda. Abu Hanifa and Malik did not have usûl. Their work was on a case by case basis. Usûl is the work of the students of their students.

Q. There are references to Ibn Shubrama in the Majalla. Do you agree the problem is usûl?

Auda. Ethics must be in a book of today written in the language of today.

Brown. The Majalla treats Ibn Shubrama as outside the madhhab. The usûl is an enterprise outside of law that is there to reconcile the epistemology; it does not govern the outcomes.

Q. You can legislate when to fast in Ramadan but you cannot de-legislate the mandate to fast in Ramadan. We have to build on tradition. We need a fiqh for today’s world.

Auda. Maqasid is fiqh `alî, a higher form of fiqh.

Q. Maqasid are not fixed; they can be discovered.

Q. I am fascinated by the proposal that akhlâq can be brought into the discourse of fiqh. Carl Ernst argued that it is counterproductive to distinguish law from other forms of ethical discourse. I would like to know what whether bringing this will do justice to the fiqh.

Ernst. I do not approach this from a prescriptive point of view. I am not a faqih. I am trying to account for a wide range of history. I keep being reminded of these interesting declarations like tasawwaf being adab. The principles of akhlâq transcend the Islamic horizon, but are thoroughly consisted with it. I see my job to remind people that Islamic history and culture are put in a separate category for what are not always convincing reasons.

Auda. The fuquha had their fiqh and  as two different categories: We consider the fiqh of the `ulum ad-dunya and the real fiqh which is of the spirit, to say if you don’t pray with khushû` (humility) your prayer is not accepted; but I don’t think this can be done systematically. Renewal must be done in parallel lines. Shatabi said every religion has the same system of maqâsid ash-shari`a.

Brown. I heard a woman say Americans don’t have manners anymore; they only have law. I think in the pre-Islamic world there were strong social conventions that may or may not have been in line with Islam. In a fatwa you can tell people what they can or can’t do, or what they should do, or combine them.

Ahmad. You have to refer to the tradition, but you do not have to defer to it.

Auda. The politics of fiqh are interesting. Many scholars are unwilling to state very interesting opinions, like the shaikh who, just before he died, said he does not believe stoning is an Islamic thing. Often the mob dictates what the scholar will or can say.

Q. People who disagree do not say their predecessors are wrong, they say they were tailored to the situation.

Ahmad. But that is the problem. If we insist our new opinions are just variations on the opinions of previous scholars we will at best confuse our intended audience.

Q.  All sciences defer to tradition.

Brown. That there is something new is a post 16th century concept.

Q. I am not against tradition. I prefer the classical books to modern books; they have more layers. But the burden it puts on us is a problem. You know the Messenger is called ummi (illiterate) and when once I said there is a relationship between ummi and ummah and I was told I could not mention this unless someone else has said it earlier. Tabari said it, but that’s very limiting, dehabilitating, and confining. You cannot think of anything new.

Ernst. I am reminded of a criminal whose criminal actions were based on classical precedent.

Ahmad. The idea that there is something new does appear before the 17th century.  Galileo (16^th c.) and Ibn Khaldun (14^th c.) are among the examples.

Q. I think there are many hermeneutical tools available to us. ISIL is cutting off hands because they accuse people of stealing and because they want to apply Shariah. If we insist on defending the tradition are we enabling that kind of behavior. I approached the issue with a fresh eye and concluded the use of the word kat`a (cutting) in the Qur’an is not necessarily literal. But even when literal, as in Surah Yusuf, it doesn’t necessarily mean cutting off. As-sâriq (the thief) is different from saraqa (theft). It is not a crime but an identity label. When Yusuf’s brothers denied stealing the cup they said, “We are not thieves.” In the Sunnah there is no specification of at what place to cut the hand. We have no text that the Prophet did it. I think language is very important and very understudied.

Auda. This is called ta’wîl (elaboration). It is easier to do taqsîd, to tie the rule to the purpose, and I think more to the point.

Ernst. We’ve ended up with a kind of insoluble problem about the misuse of the term Shariah.

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