Mistake #2: “The rules of Shari`ah should be constant and unchanging.”
On the opposite end of the spectrum of what was discussed in Part IV of this series are those who believe that the Shari`ah is a completely static and fixed entity. Such people may scorn the idea of rulings of Shari`ah changing from one circumstance to another as ‘watering down Islam,’ or ‘changing Allah’s religion to please people.’ In a desire to protect religious practice from the whims of the lower self or from adulteration by modern-day trends, they may insist on applying the rulings of Shari`ah in the exact way they were articulated and practiced in the time of the early generations of Muslims, or the era of certain classical scholars and their students. What is often overlooked here is that in one’s zeal to shield one’s religious practice from inappropriate change, one may actually be closing the doors on changes that the Shari`ah does in fact condone. In lumping together all the rulings of Islamic law into one monolithic category – that of being fixed, independent of context, and the same through varying times and places – one is making Shari`ah overly rigid, in a way that is not faithful to its inherently balanced nature. In this article we will discuss some of the means by which rulings of Shari`ah can legitimately change, seek to differentiate between rulings which are affected by contextual factors and those that are not, and clarify some misconceptions related to these points.
The Role of Culture and Custom in Shari`ah
Scholars of Usul distinguish between two types of rulings when considering whether cultural factors play a legitimate role in their development. The first type are those rulings of Shari`ah that are constant, such as acts of worship, like prayer and the rites of Hajj, as well as commands and prohibitions that are clear and well-established by texts (al-m`alumu min ad-deeni bidarura), such as the obligation of mutual consent in contracts, the prohibition of the consumption of alcohol, a husband’s financial obligation to his wife, the obligation of hijab, and so on.1 Matters of culture, custom, or factors related to time and place have no influence on the establishment of these rulings and they remain unvarying across history and geography.
The other type of rulings are those that, by their nature, must take into account the normative practices or customs of the people who are seeking to apply them. An example of this can been seen in the rulings related to statements of divorce. Whether a statement would be considered an overt expression of divorce (sareeh) or one that is ambiguous and connotes more than one meaning (kinaya) would depend on the customary usage of certain expressions and phrases in the language of a people. Similarly, muru’ah, or the condition of uprightness necessary for the acceptance of one’s testimony, is determined in different ways in different places. A man entering a public setting with his head uncovered would be a sign of immodesty and a lack of muru’ah in many traditional Eastern cultures, while in other places this would not be the case. A third example can be seen in the command for believers to interact with others with ma`ruf, in a manner of goodness and excellence. The exact actions one would commit and the particular words one may say to be considered behaving with ma`ruf would obviously vary, depending on the respective culture and situation. These are all examples of rulings that are related to custom, and what is intended by the axiom that, “Common practices or customs of a people can be used as a legislative source for rulings.” (al-`aadatu muhakkamah).2
What is important to note here is that the Lawgiver, Allah the Exalted, has linked some rulings to context and situation (manat), and that this naturally leads to different manifestations of these rulings in different scenarios. This does not mean, as some may presume, that one is deviating from the law itself, since these varying configurations are within the legitimate breadth of the original command or prohibition in question. In the same way we find water a legitimate means of purification in some cases, and dust a legitimate means in others (in tayammum3), each depending on the circumstance, so too we find rulings applied in different ways according to context, while still maintaining the underlying directives intended.
In the examples mentioned above, we see that the underlying rules or directives of Shari`ah are not in any way challenged or altered. The legal consequences of explicit and implicit statements of divorce remain the same. The condition of muru’ah for a witness’s testimony remains intact, and the command for acting with ma`ruf remains constant. However, it is in consideration of the relevant culture that a scholar assesses the situation and determines how these rulings can accurately be applied.
The Role of Maslaha in Shari`ah
A second means by which rulings may be subject to change or new rulings may be established is related to the concept of maslaha, or consideration of public interest. Scholars may seek to establish a ruling with the objective of securing the well-being of a people, either by promoting some benefit for them or protecting them from some type of harm.
This method of legislation is limited to matters of ijtihad4, and excludes devotional matters (`ibadat) and issues that have been definitively established by authentic texts (qat`iyat). Establishing this type of ruling also has certain conditions. It must be in line with the objectives of the Lawgiver, have a realistic probability of bringing about the benefit intended to the general population, and be corroborated in some way by a definitive text or scholarly consensus.5 Some scholars, particularly of the Maliki and Hanbali schools, state that such a ruling would have proper grounds for legislation even if no indication about it exists in Shari`ah, as long as it does not conflict with any of the Shari`ah’s established values and principles.6 This is because the texts we have available to us are limited and fixed in number, while the varying and evolving situations of people are virtually limitless.
We find examples of this consideration of maslaha in the practice of even the earliest generations of Muslims, including the companions of the Prophet ﷺ. Abu Bakr (may Allah be pleased with him) authorized the compilation of the Quran into one volume during his rule – something that was not done in the time of the Prophet ﷺ - after concern for its preservation intensified with the death of many of those who had memorized it. Umar (may Allah be pleased with him) suspended the prescribed punishment for theft in a year of famine out of consideration for those who may have felt compelled to steal out of duress. He intensified the punishment for drinking alcohol when many of the companions became concerned about its widespread acceptance, due to the influence of Persian culture. He also ruled that three statements of divorce in one sitting would count as three separate divorces, in order to lay emphasis on the seriousness of such pronouncements.7 These were unprecedented rulings that were not seen in the earlier rule of Abu Bakr or the time of the Prophet.8 Uthman (may Allah be pleased with him) ruled that if a husband irrevocably divorced his wife on his deathbed with the intent of barring her from inheritance, she would still be granted her rightful share of the inheritance. Ali (may Allah be pleased with him) would hold craftsmen and traders responsible for the loss of goods that were placed in their custody, in order to ensure greater care in safeguarding others’ property.9 A later example can be seen in the issue of accepting financial compensation for teaching Quran or acting as an imam or muezzin. While Imam Abu Hanifa and his students Abu Yusuf and Shaybani prohibited people from doing so, later Hanafi scholars allowed it as a means to help preserve the Quran, and because such people were no longer provided for from the treasury of the Islamic state.10 When the circumstances changed, we find that the ruling changed as well.
From these points we can see that even in the earliest generations of Muslims, scholars had an interest in and sensitivity to the current trends and issues that were affecting their communities, and would issue their rulings in consideration of them. The task of the scholar was not only to accurately derive rulings from textual sources, but to determine the best method of their application in a given situation, community, and culture, that would bring about the most benefit and minimize harm. Such a task required sound knowledge not only of sacred texts, but also of context.
The Dilemma of Importing Fatwas
In light of the above, we can see why dependence on fatwas from abroad or from ages-old texts could, in some cases, be quite problematic. A thorough understanding of the normative culture of a people is very important, particularly in matters of marriage, divorce, and other social issues. While rulings on matters of ritual purification, prayer, fasting, and so on may be independent of context and therefore legitimately gleaned from qualified scholars in any locality or from any time period, this is not the case for many matters that we find pressing in our communities and families. It is for this reason that the development of an indigenous scholarship in our times, that has a strong grounding the Islamic sciences as well as a deep and nuanced understanding of the environment in which their rulings will be applied, is vital. An Arabic expression states, “the people of Mecca are most knowledgeable about its hills and valleys” – meaning that those who are native to a land are the most familiar with it and the best able to navigate its territory. Similarly, scholars who are indigenous to a land and are currently living in it would be most adept at addressing its people’s concerns, problems, and issues.
The Question of Minority Fiqh11 (Fiqh al-Aqalliyat)
Minority fiqh, or fiqh al-aqalliyyat, has been criticized by some as a means of illegitimately changing rulings to accommodate living in a non-Muslim environment. While the term itself is relatively new, the concept of certain religious rulings changing according to context and environment is not something novel to Islamic jurisprudence, as we have clearly shown. Having a category in fiqh that expressly relates to the concerns, questions, needs and difficulties that Muslims face as a minority – issues that are often not found in the traditional lands of Islam – should be seen as a specialization, and not a deviation.12
A desire to preserve Islam from unwarranted or illegitimate change is certainly something noble and commendable. However, our concerns about such changes should not cause us to cling to a rigidity in our outlook that hinders Islam from being a viable, livable tradition in our times. We should not relegate Islamic scholarship to a simple rehashing, translation, or transposition of the work of our forebears, but should give scholars of today the space to navigate and explore new and relevant issues of our times, using the legitimate means Shari`ah has granted. This tradition of scholarship is one that needs to be enlivened, nourished and encouraged in our communities, so that the profound beauty of sacred law can become a reality by which we live our lives.
May Allah help us to understand and practice His religion in the best, most balanced, and most beautiful of ways. May He bless our communities with leaders and scholars who can help us to live our lives in accordance to sacred law, and in a way that is pleasing to Him. Ameen.
- al-Qawa’id al-Fiqhiyyah `ala al-Madhhab al-Hanafi wa’l-Shaafi’i by Dr. Muhammad al-Zuhayli, p.319, as quoted by Sh. Muhammad S. Al-Munajjid in his fatwa here. ↩
- Dawabit al-Maslaha by Dr. Said Ramadan al-Buti, p.292, Dar al-Fikr Publications. ↩
- Tayammum (تيمم) refers to a dry ablution using sand or dust which may be performed in place of ablution with water if no clean water is readily available or if using it would be detrimental to one’s health. ↩
- In this context, matters of ijtihad (اجتهاد) refers to those issues that require intellectual exertion and interpretation on the part of qualified scholars, in cases in which no clear directives exist to derive an Islamic decision. ↩
- Principles of Islamic Jurisprudence by Muhammad Hashim Kamali, p. 357, Islamic Texts Society. ↩
- Ibid, p. 362. ↩
- Sina`atul Fatwa wa Fiqh al-Aqalliyat by Sh. Abdullah bin al-Shaykh al-Mahfudh bin Bayyah, pp. 183-184, Dar al-Minhaj Publications. ↩
- There is some discussion among scholars about whether these rulings would fall under the technical category of maslaha (istislah) in Usul or simply be considered Umar’s adept and insightful interpretations of existing texts. (See Dr. Said Ramadan al-Buti’s Dawabit al-Maslaha, pp. 152-175, Dar al-Fikr Publications.) In either case, these rulings indicate a responsiveness on the part of Umar (may Allah be pleased with him) to the issues and problems that existed in his community, and show that new rulings were established to bring about benefit and to minimize negative and harmful developments in society. ↩
- Principles of Islamic Jurisprudence, p.355. ↩
- Sina`atul Fatwa wa Fiqh al-Aqalliyat, p. 186. ↩
- Fiqh is usually translated as Islamic jurisprudence. ↩
- For more information on this topic, see Sina`atul Fatwa wa Fiqh al-Aqalliyat by Sh. Abdullah bin Bayyah, pp. 163-168, Dar al-Minhaj Publications. ↩