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Adaptation of Islamic Jurisprudence to Modern Social Needs

Subhī Mahmasānī

Commentary

An LL.B. and Docteur en Droit (University of Lyons), he has served as magistrate, president of the Appeals Court (1944–46), member of Parliament, and minister of Economy (1966). He has taught at a number of universities, including the American University of Beirut and the Lebanese University.

Mahmasani’s aim in this selection from 1954 is to describe the activity of jurists in Islamic law and assess the role of ijtihad (independent judgment to determine a legal rule) within it. He laments the “closing of the gates of ijtihad” in the medieval period and advocates the restoration of ijtihad in order to overcome the stagnation and blind imitation in legal thought that had existed since the death in 855 of the last founder of the four schools of Sunni law. The author also identifies religious sectarianism as a problem. Although noting that differences of opinion among jurists are welcome, sectarian partisanship must be avoided. It is one thing for an individual to adhere to a sectarian position after careful reflection; it is quite another to do so out of thoughtless imitation.

Closing the Door of Ijtihād and Neglect of Education

Islamic Jurisprudence dealt with questions of religion and acts of worship, and with legal transactions, along with all provisions, rules, and particu-lars derived from them. That is why jurists in Islam were at once men of religion and jurisprudence. They were called “scholars” (‘ulamā’) because their field of study included all departments of ancient knowledge. As a result, Islamic jurisprudence played such a significant role in the history of Islamic thought as well as in all aspects of Muslim life.

It is known that Islamic jurisprudence is based on various sources; some religious, the Qur'ān and the Sunna, and some secondary accepted by the majority of the jurists: ijmā’ (consensus of opinion) and qiyās (analogy). There are other sources acknowledged by some schools but refuted by others. These are based on necessity, custom and equity; such as istihsān (appropriateness) in the Hanafī school, al-masālih al-mursalat (excepted interests) in the Mālikī school, and the like.

The jurists took up all these sources, known as evidence (adillat) of law, in a special branch of knowledge called ‘ilm al-usūl (science of basic sources). They began to work at discovering legal solutions from such sources and evidences. This sort of activity was referred to as ijtihād (endeavor or interpretation). It was a cause for expanding legal provisions to comprise new cases, as well as a strong factor in the development of Islamic law according to the needs of different countries and the conditions of changing times. Thus, ijtihād had led to the flourishing of Islamic jurisprudence, especially at the early stage of the ‘Abbāsid period.

When Baghdad fell in the middle of the seventh century A.H., intellectual activities diminished, and Arab civilization began to decline. This took place after the Sunni jurists unanimously agreed to close the door of ijtihād and to be contented with the four known Sunnite schools: the Hanafite, the Mālikite, the Shāfi‘ite, and the Hanbalite. The result was that Islamic thought met a dead end, and imitation and stagnation in jurisprudence and other Arabic and Islamic learning became predominant.

In fact, the closure of ijtihād violates the provisions and concepts of Islamic jurisprudence and condemns all Muslims to permanent stagnation and exclusion from the application of the laws of evolution. It imposes upon them to maintain the same conditions prevailing at the time of ancient jurists, and to follow the pattern they had set for themselves and for the Muslims of their days and the days that will follow until eternity.

No doubt, the remedy lies in opening what the ancients had closed or attempted to close. The door of ijtihād should be thrown wide open for anyone juristically qualified. The error, all the error, lies in blind imitation and restraint of thought. What is right is to allow freedom of interpre-tation of Islamic jurisprudence, and to liberate thought and make it capable of true scientific creativeness. . . .

Adherence to doubtful texts

What brought about disagreement in law is the fact that the Prophet did not order the writing of the Sunna as he did regarding the Qur'ān. On the contrary, he prohibited such an action by saying: “Don’t write down from me, and whoever wrote down from me other than the Qur'ān should have it destroyed. There is no harm in relating from me.” (Sahīb Muslim, Vol. 8, pp. 229). This made ‘Umar ibn al-Khattāb refuse to compile the traditions. He was afraid lest the people would take them up and leave the Qur'ān.

However, despite such discouragement, traditions were forged in great number during certain periods of Islamic history. This was done to serve and support certain policies or factions, or to popularize storytelling or to achieve other purposes. Consequently, the traditions became impossibly numerous. Many unreliable and absurd traditions could not possibly stand in logic and reason.

Faced with this situation, Muslim jurists began to study and examine them. They laid down a set of scientific rules by which to judge and determine their authenticity. These rules came to constitute a special science called the Science of Traditional Method (Mustalah al-Hadīth). In addition, many were prompted to write, warning their readers of false traditions. As a result, there was agreement among jurists regarding some traditions and disagreement regarding others. As an example of fabricated traditions, one may cite the following: “The sea is of hell.” “The mouse is Jewish.” “Eggplant is the cure of all sickness.”

Modernist jurists, such as Ibn Taimiyyat and Muhammad ‘Abduh, also revolted against this deplorable situation. They began to examine traditions in the light of the principles of jurisprudence and reason. . . .

The remedy of this evil is obvious and within reach. All forged tra-ditions without exception should be discarded. Nothing should remain except those authentic traditions on which agreement by jurists of the known schools had been unanimous.

In compliance with this warning, Muslim reformists should liberate themselves from the remnants of error, forgery, falsehood and fabrication. They must discard made-up traditions which are incompatible with legal texts and principles, or with the rules laid down by the Science of the Sources of Law (Usūl al-Fiqh), or by logic and reason, on which all pro-visions of Islamic jurisprudence are based.

Adherence to Formalism and Particulars

The provisions of Islamic jurisprudence are based less on the texts than on interpretations of the jurists. The texts form the bases of the principles and universal rules; whereas most details and particulars are based on the interpretation of jurists by way of unanimity, (ijmā’) analogy (qiyās), or other legal sources. These details and particulars fill huge volumes of legal work, so that research regarding them requires a long time and considerable effort.

Furthermore, this great body of particulars often dominated the general principles, and, with repeated imitation, took a rigid and formalistic taint alien to the original substance. Some jurists of late adhered to them and through blind imitation transmitted them as basic obligatory provisions, without any discrimination or examination in the light of the original principles and texts and without the criterion of reason and thought. Thus, details dominated the basis and the form overshadowed the substance. Such a state of things was one of the causes which led to the decline and stagnation of Islamic culture. . . .

Sectarian differences

. . . In general, disagreements among schools were not on the whole disagreements on basic principles and doctrines, but rather on details as a result of diversity of interpretations and differences of views in applying principles to practical cases.

The existence of diversity of opinions was a reason for flexibility in Islamic jurisprudence, as well as a cause of relief to the people. Thus it was said: “Disagreement among jurists is the nation's bliss.” This is supported by the fact that the Ottoman Empire which adopted the Hanafite School in law and religion borrowed from other schools many legal provisions, particularly in its Family Code. . . .

However, alongside those advantages of diversity of schools there were disadvantages too, most important of which was sectarianism, with all its outcome of discord, animosity and hatred. Followers of each school were often so by inheritance and tradition rather than by reason and conviction. They displayed strong fanaticism towards their own school and its leaders and attacked other schools and leaders with flagrant bitterness. There were days when strife became intense between the Shī‘ītes and the Sunnites as well as among the different schools and sects within these two groups. Such a strife was one of the causes leading to disunity and backwardness among Muslims.

The Sources of Law and Modern Legal Reform

To cure this evil, struggle must be waged against sectarian partisanship, Efforts must be made to reconcile all hearts and unite the various schools. This, in my opinion, can be achieved by a return to the same and only original sources of law. Such a return should take into consideration the following bases:

I. To adopt the provisions of the Qur'ān as the first basis for Islamic teachings and jurisprudence; to distinguish in this respect between compulsory and voluntary or directive provisions on the lines already attempted by interpreters of the Qur'ān and scholars of the Science of Legal Sources; and then to apply these provisions in accordance with their respective significance.

II. To adopt the Sunna in all obligatory religious provisions, provided that this Sunna is authentic and acceptable in the various Muslim schools and that it is not inconsistent with the text of the Qur'ān.

III. To adopt the rest of the Sunna, that is to say the traditional teachings and precepts whose authenticity had been disputed by reliable leaders of the schools, provided they are consistent with reason and acceptable to jurists and scholars of the Science of Legal Sources (‘Ilm al-Usūl) on the basis of the principle mentioned above, namely that the truly traditional is always consistent with the truly rational.

IV. To choose from the legal rules based on interpretations of jurists those which are most suitable to the needs of modern society, public interest and principles of justice and equity.

Such are the practical fundamental lines which will lead to the unification of Muslim schools—a unification that has become at the present time an urgent necessity. . . .

Moreover, the idea of unifying the various schools is consistent with the spirit of Islamic jurisprudence and its teachings.

“Those who are discordant in their religion and separated into parties, do not belong to you.” (Qur'ān 4:159).

If Islam prohibits religious fanaticism and demands brotherhood and tolerance between Muslims and the rest of the world, for better reason it does not allow sectarianism among Muslims themselves. . . .

Muslim jurists, as we have already mentioned, studied Islam as being a religion, a law and a social system. This is why Islamic jurisprudence contained provisions pertaining to acts of worship as well as to legal transactions.

As a consequence, there has been an inter-action between the teachings of religion and ethics on the one hand, and the provisions of law on the other hand. Thus we find justice and charity, coupled by the Qur'ān in one single verse: “God enjoins justice and charity,” so that it has become a rule of justice not to do harm to one another, and a duty in legal transactions to abide by the principles of honesty and tolerance. All of this, no doubt, has been a source of benefit for the Muslims. It has made Islamic jurisprudence human and just.

Accordingly, earlier Muslim jurists made a differentiation in certain cases between the legal and the religious rulings, a differentiation similar to that made today between civil and natural obligations. They were, for instance, of the opinion that if a man had the right to repudiate his wife in law, his repudiation in order to be valid in religion must be based on justifiable grounds. Otherwise it would be proof of rashness and ingratitude towards the blessings of marriage which is based on love and mercy.

However, some jurists were influenced by dominant pre-Islamic customs and therefore did not go beyond this imperfect step. They declined to apply in such cases the ruling imposed by the teachings of religion. If they had done so, giving religious and ethical principles more consideration, along with as much implementation in law as had been possible, their attitude would have been closer to the spirit of Islamic jurisprudence and teachings.

In addition, we find that some jurists, especially during the period of imitation and decline, had, despite their differentiation between legal and religious rulings, discarded such differentiation with regard to other matters. They mixed religion with the daily ways of life and studied Islam as comprising both categories in similar degree. They were, thus, unmindful of the fact that the basis in Islam is the religion and its teachings and that the world and its affairs are only the accessories. Indeed, their excess in this respect was such that incidental worldly matters were placed on the same level with the original, essential and immortal provisions of religion.

As a result, stagnation in Islamic thought and culture was bound to take place. Muslims of earlier days adhered to trivialities, so much so that they condemned as a prohibited innovation anything unknown during the time of the Prophet or their time. Thus, for instance, they advocated the prohibition of the study of foreign languages, eating with the fork, wearing the hat, and other worldly trivial matters.

But if we refer to the essence of Islamic jurisprudence, we find that the teachings of the Prophet do not bind the Muslims except in cases pertaining to religion and ethics, along with their accessories. Traditions which refer to secondary matters of daily living and which the Prophet had mentioned as a matter of opinion, are not mandatory. In support of this statement, we may cite the tradition included by Muslim in his collection of traditions (Vol. 7, p. 95), namely that the Prophet once passed by some people who were fecundating-palm trees and he asked: “What are these people doing?” The answer was that they were fecundating palm trees. To this the Prophet said: “If they would not do that (the trees) would be prolific.” When they were told of his words they stopped that pollination. But the fruits did not ripen. Upon learning about this, the Prophet said: “I am only a human being; If I order you to do something regarding your religion you must comply. But if I order you to do something on the basis of my opinion, well I am just a human being. You know better in matters concerning your worldly affairs.”

Therefore, no relation whatever exists between Islam and matters of daily living, unless these are concerned with a principle of religion. By religion, here, is meant the provisions of the faith, the unity of God, acts of worship, along with the principles of ethics and the fundamental rules of legal transactions. Outside these, the above-mentioned tradition leaves to the Muslims freedom in secondary matters relating to their daily life. It is because they know more about such matters, and because such matters are subject to changes in accordance with their needs and interests.

Muslims must comprehend this rule, and thereby separate provisions of religion from matters of daily life in the manner explained. They ought to adhere to their religion and ethical code, and manage their ways of life according to the spirit of Islam and requirements of science and civilization. It is by so doing that they will be able to put an end to their backwardness in this respect and to rise towards happiness and prosperity.

To sum up, the most important factor in the decline of Muslims is their neglect of the duties of Islam. Improvement of their condition can be brought about by their return to the true principles of Islam, their understanding of the effective causes of legal rules, and their giving what belongs to religion to religion and what belongs to the world to the world, along with their determination to destroy the walls of ignorance and imitation, to reject unauthentic texts, formalistic technicalities, particulars, and details, together with sectarian partisanship—all of which have distorted the real essence of Islam.

Muslims have to choose between two courses: the course of ignorant imitators, thereby accepting darkness and ignorance and oblivion; or the course of the pious predecessors which leads to light and knowledge and life. . . .

Bibliography references:

From “Muslims: Decadence and Renaissance” in Muslim World 44 (1954), pp. 186–91, 196–97, 199–201.

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