[Reader-list] Waris Mazhari: Re-Imagining Islamic Jurisprudence in the Context of Islamic Ethics

[Yogi Sikand]

Re-Imagining Islamic Jurisprudence in the Context of Islamic Ethics

By Waris Mazhari

(Editor, Monthly Tarjuman-e Dar ul-Ulum Deoband, New
Delhi, India)


Fiqh (Islamic jurisprudence) and ethics are, in some
respects, intimately related to each other, and not so
in other respects. Their commonality is reflected in
the fact that both are related to human actions and
their goals are the same, i.e. to direct human actions
in such a way that human beings walk on the ethical
path and thereby do God's will. Their difference lies
in the fact that fiqh relates to human beings'
external acts and behaviors while ethics relate to
inner state or conditions of human beings. Fiqh
concerns the rewards and punishments related to
external human actions. On the other hand, ethics and
morality seek to encourage the feelings God has placed
in the nature of human beings which may have been
temporarily suppressed by material and other factors.
These feelings, when guided by morality, lead to
righteous acts, not through external compulsion but
through inner transformation. Hence, the scope of
morality and ethics is considerably wider than that of
fiqh. However, despite this difference, both of them
are   complementary and indispensable. Morality
without fiqh and law cannot lead to the fulfillment of
the demands of the human personality. Likewise, law
without morality can not be of any use for human life.
This is why, according to the Quran, God has made an
"open way" (minhaj) and law (shir-ah') for all
communities. Prior to the Prophet Muhammad (s.a.w.)
several prophets received from God different sets of
laws, the most clear form of which was that given to
the Prophet Moses.



Fiqh is the[i] human expression of the shariah and the
shariah is the means to develop a complete human
personality on an ethical basis. It is also a standard
of ethics. God's intention in sending prophets and
heavenly books to humankind was to help mould a
complete human personality on an ethical basis through
shariah. It was also intended to establish morality on
the basis of human nature (fitrah).



However, fiqh can be a proper expression of shariah
only if it remains confined to the limitations that
are set for it. Its limitations are such that in
seeking to express the shariah it should not
negatively impact on the divine ethics, which are the
very core of din. If it does so, the shariah cannot be
expressed and implemented in the right manner and the
aim of ethics and morality would be negatively
affected. This happened in the case of Mosaic law,
which was later changed in significant respects, in
protest against which Jesus Christ raised his voice. A
special feature of Jesus Christ's work and message was
to purify the din of what the Quran calls "the heavy
burdens of the rules and restrictions" (isr wa aghlal)
 which had crept into the din because of an unnatural
expression of shariah.



Despite its certain special features, the Islamic
shariah is the culmination of the process of revealing
divine shariahs through history. In this way, fiqh
must reflect not just the core of the shariah revealed
on the Prophet Muhammad (s.a.w.) but also of the
divine shariah of the prophets who came before him.
Without this, it would not be possible for fiqh to
represent divine ethics (akhlaq ullah) needed for the
whole of humankind.



The impact of Islamic fiqh on human life.



In understanding the relation between Islamic fiqh and
ethics one needs to look at the impact of fiqh on
Muslim life. This impact is of two types. The first is
related to the absolute and explicit commands of
Islam, which have been taken from the Quran and
Sunnah. There is no need for any reflection, ijtihad
or deduction as far as these are concerned.



The second type is related to matters that are not
explicit and in which there is need for deep
reflection and ijtihad. In these matters there is a
possibility of differences in opinion and argument. In
one sense, human beings cannot easily understand their
reality comprehensively. In Islam there are many
matters which fall in this category and this very fact
reflects that it is God's wishes that there be room
for flexibility and accommodation in the concerned
rules in this regard according to space and time
.Because of this, ,fiqh establishes a very close
relation with family and social life.



According to the scholars of the rules of Islamic
jurisprudence (�ulama ul-�usul) fiqh concerns sane
adults with respect to various actions, which are
classified as obligatory (wajib), prohibited(haram),
recommended (mustahab) and permitted but discouraged
(makruh).  By classifying human actions this way, fiqh
plays an important and positive role in human life.
The deduction of fiqh rules in this way is based on
the upholding of certain principles (usul) rather than
being based on the personality of the scholars who
played a key role in the development of the fiqh
tradition. The crucial role of fiqh and its impact on
human life can also be seen in context of the fact
that Islam is din and also a complete system of life.
This understanding of Islam is completely different
from Western secularism. Contemporary Western
civilization does not look upon any public role for
religion with favor including in politics, economics
and law, which it seeks to base on what it perceives
of as human intelligence and experience alone. But we
cannot forget the fact that the positive impact of
fiqh on human society cannot be seen as separately
from Islamic shariah. Rather, it is, in reality, the
impact of the Islamic shariah. To understand them
separately is to underestimate the status of shariah.
A person observes the rules of purity, abstains from
shameful deeds, values time, fulfills his promises
etc., but it does not mean that he has necessarily
studied the chapters on physical purification etc.
that are included in corpus of fiqh. Instead, he does
so instinctively, because this is what his conscience
tells him, and the shariah supports him in this regard
while providing him a standard to measure the worth of
actions. Fiqh reflects human effort to understand the
import of  shariah.



However, this does not mean that fiqh has only a
formal relation with shariah. Instead, as a humanly
constructed form of the expression of shariah, it is
an important part of shariah. Hence, there is
necessity for tafaqquh fil din (understanding the law
through pondering on its true import) and this shall
continue till the Day of Judgment. According to the
Quran, a group of people will always be there who will
play this role of interpretation of Islamic principles
and rules according to space and time. Because no
other shariah will come after Islamic shariah, the
importance of fiqh is obvious.





The Second Aspect



Fiqh can serve as a means for the proper
interpretation of shariah only when ijtihad is given
its due place and when the aims of the shariah
(maqasid-e shariah) are upheld. If this is not
observed then one deviates from the very essence of
Islam. Unfortunately, some aspects of the fiqh
tradition are bereft of the true spirit of the din and
shariah and are, in fact, a hurdle in the path of the
total submission of human beings to God�s Will, which
is the essence of Islam. In the later centuries, the
fiqh tradition was seen as completely synonymous with
the divine shariah, which, in fact, is not the case.
Muslim society was sought to be regulated in
accordance with the corpus of fiqh rules, some of
which, to an extent, went against the Islamic ethical
imperatives. This happened, in large measure, as a
response to the devastation of Muslim lands by the
Tatars, because of which the fuqaha sought to closely
regulate Muslim society through intricate and detailed
rules and laws in order to save it from attack and
chaos.  But this was an unnatural way of thinking.
According to Muhammad Iqbal, the medieval fuqaha did
not understand that the fate of communities is
dependent not so much on the degree of legal
regulation as on the ascertaining of the personal
qualities and capabilities of people. If a society is
sought to be excessively regulated, the status of the
individual comes to be undermined. The individual
becomes shaped by his external environment but loses
his real spirit.


Sufism



Sufism developed at the same time as the schools of
fiqh and represented a revolt against monarchy and the
excessive externalism associated with many fuqaha. It
played a crucial role in renewing and reviving the
fountains of Islamic ethics and morality. In the
medieval period, there was considerable tension
between some Sufis and fuqaha, in which the latter
often received the support of rulers. While the fuqaha
sought to regulate people�s minds, the Sufis sought to
reach out to their hearts. In this way, Muslim society
was spared the extreme ethical stagnation at the
ethical level that had occurred in several pre-Islamic
societies.



The Fatwa Phenomenon



Fiqh and fatwa are not two separate things. A fatwa
relates to the practical expression of fiqh as
concerns any particular matter. However, today fatwa
has taken the form of a new phenomenon that, in some
cases, reflects the mentality that has been shaped by
jurisprudential stagnation. It has, accordingly,
assumed, in the public eye, the status of a ruling
rather than the opinion (ra�i) that it really is. It
is sometimes, though wrongly, seen as sacrosanct. Some
people even believe that not accepting a fatwa is
tantamount to defying the shariah itself. In the
middle ages, many fuqaha engaged in fiqh only to mint
money and reduced it to the status of a mehnah
(worldly profession). The prominent Islamic scholar
Imam Ghazali (d. 505 A.H.) found it very
objectionable. Today, the fatwa is a hotly discussed
phenomenon in the South Asian media. Fatwas are
erroneously projected as �shariah in action� in the
writings of the right-wing scholars like Arun
Shourie6. Fiqh is erroneously presented as a
�sub-shariah�.



Fiqh and Contemporary Islamic Ethics



Can the corpus of traditional fiqh provide a framework
of Islamic morality that is in accordance with today�s
cultural demands? The answer is in the negative. This
is because the Islamic understanding of morality is
universal while fatwas relate to specific
spatio-temporal contexts. Because ijtihad has, for
centuries, been ignored, the fuqaha have lost a
crucial aspect that is central to the Quran and
Hadith.



The aim of the principles of fiqh (usul-i fiqh) was to
keep alive the practice of ijtihad but in the fourth
Islamic century the gates of ijtihad were closed and
the development of the usul-i fiqh was halted. Imam
Shatibi (died 790 A.H.) sought to take forward the
tradition of the aims of the shariah (maqasid-e
shariah) as developed by Imam ul Haramayn (d. 478
A.H.) and Imam Ghazali but till the writing of the
book Maqasid al Shariat ul Islamiya by Imam Muhammad
bin Tahir bin �Ashur (d.1973 A.H.), a student of
Muhammad Abduh, there had been no real progress on the
work that Imam Shatibi had done.  In this way, the
tradition of fiqh had become a collection of stagnant
and frozen rules whose relation to contemporary times
was, to an extent, only formal or customary. Because
of the weakening of the link between fiqh, divine
revelation (wahy) and human society, the fiqh
tradition became more technically convoluted and
complicated. Its focus came to be almost entirely on
those aspects from which shariah rules could be
derived. Those fundamental aspects of the divine
sources (nusus) which are related to Islamic ethics
and which are the very soul of the shariah came to be
increasingly ignored. The divine sources came to be
seen as sources of rules and regulations, thus
somewhat ignoring their ethical import.



The Negative Impact of Fiqh on Islamic Ethics



The contemporary fiqh tradition has negatively
impacted on both the personal as well as collective
dimensions of the understanding of Islamic ethics in
some respects, because of which numerous Islamic
ethical demands have been sidelined. Through various
methods of hila (casuistic arguments in order to
circumvent the spirit of the shariah) which relate to
the interpretation of fiqh, some things considered to
be haram or forbidden have been sought to be made
legitimate and vice versa. It was now easy for things
like the rights of others (huquq ul �ibad), charity
(infaq), benevolence (ahsan) and honour (irdh) to be
ignored through such technical devices.



The ignoring of collective morality in this way can be
seen in the context of fiqh rules related to
international affairs. The fiqh tradition has divided
the world into the �abode of Islam� (dar ul-islam) and
the �abode of war� (dar ul-harb) in order to uproot
infidelity (kufr) and impose jizya on non-Muslims, for
which it considers war as necessary. The Prophet
Muhammad (peace be upon him) used to stand up when the
funeral procession of a Jew would pass in front of him
out of basic human courtesy. In contrast, many fuqaha
consider it forbidden or permitted only in very
special cases, and that too in a very limited way, to
greet non-Muslims, attend their funerals, pray for
God�s mercy for them, attend their festivals and
exchange gifts with them. The fiqhi concept of
offensive jihad goes against the basic social ethics
of Islam. In fact, Western powers are doing precisely
this today in attacking, without any reason, other
countries. Although this attitude is condemnable, they
alone are not to blame. We also need to look within,
to introspect, to revise our own understanding of what
jihad truly means. The policy of dehumanization of
non-Muslims that was devised by some fuqaha in the
dark Middle Ages has been adopted and acted upon by
the West, particularly America, in this so-called age
of civilization and progress.



The Need for a New Understanding of Fiqh: The
Reconstruction of Islamic Thought



Because of this, seeking to understand Islamic ethics
entirely within the framework of classical fiqh is not
possible and is also not in accordance with the aims
of the divine revelation. Instead, we need to make the
Quran the basic framework for deriving our
understanding of Islamic ethics. Tradition serves as a
lamp for us, which will guide us at every step, but we
must not rely completely on it for our intellectual
development. We would need to engage in ijtihad in the
context of scientific discoveries and the technical
revolution that have completely transformed the global
human community. We would need to read the Quran and
Sunnah in the light of new human discoveries and the
expanding corpus of human knowledge. In this way the
gap between the new cultural era and traditional
Islamic theology can be bridged and they can be
brought into harmony with each other.



We would need to revive the Quranic understanding of
ijtihad, which prevailed during the early period of
Islam. In fact, because ijtihad had been discounted,
Islamic thought was rendered stagnant. The practice of
blind imitation (taqlid-i shaksi) and the stringent
conditions laid down at the level of the principles of
fiqh for qualification as mujtahid are major
challenges in this regard.



The task of the new fiqhi or ijtihadi framework, or,
in other words, the reconstruction of Islamic legal
thought, would be to approach the principal sources of
Islam without the interference of cultural and
spatio-temporal factors and base itself on the spirit
of the din and shariah. The Quran is firstly a book of
morality and ethics and only later a book of law. The
Prophet Muhammad (s.a.w.) mentioned that he had been
sent to the world in order to fulfill morality or
ethics. This is why we would need to re-read the
Quranic revelation within the framework of the
universal Islamic morality, which is based on human
nature.  In other words, it is not possible to develop
a conception of Islamic morality which is relevant to
the contemporary age without a proper understanding of
the din and shariah.




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The monthly Tarjuman-e Dar ul-Ulum, of which the
author is the editor, is the official organ of the Old
Boys� Association of the Dar ul-Ulum, Deoband, India.
Waris Mazhari can be contacted on
w.mazhari at gmail.com