The Principle of Movement in the Structure of Islam
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14 Jul 2008, NewAgeIslam.Com
Lecture 6: The Principle of Movement in the Structure of Islam
As a cultural movement Islam rejects the old static view of the universe, and reaches a dynamic view. As an emotional system of unification it recognizes the worth of the individual as such, and rejects blood-relationship as a basis of human unity. Blood-relationship is earth-rootedness. The search for a purely psychological foundation of human unity becomes possible only with the perception that all human life is spiritual in its origin.1 Such a perception is creative of fresh loyalties without any ceremonial to keep them alive, and makes it possible for man to emancipate himself from the earth. Christianity which had originally appeared as a monastic order was tried by Constantine as a system of unification.2 Its failure to work as such a system drove the Emperor Julian3 to return to the old gods of Rome on which he attempted to put philosophical interpretations. A modern historian of civilization has thus depicted the state of the civilized world about the time when Islam appeared on the stage of History:
It seemed then that the great civilization that it had taken four thousand years to construct was on the verge of disintegration, and that mankind was likely to return to that condition of barbarism where every tribe and sect was against the next, and law and order were unknown . . . The old tribal sanctions had lost their power. Hence the old imperial methods would no longer operate. The new sanctions created by Christianity were working division and destruction instead of unity and order. It was a time fraught with tragedy. Civilization, like a gigantic tree whose foliage had overarched the world and whose branches had borne the golden fruits of art and science and literature, stood tottering, its trunk no longer alive with the flowing sap of devotion and reverence, but rotted to the core, riven by the storms of war, and held together only by the cords of ancient customs and laws, that might snap at any moment. Was there any emotional culture that could be brought in, to gather mankind once more into unity and to save civilization? This culture must be something of a new type, for the old sanctions and ceremonials were dead, and to build up others of the same kind would be the work of centuries.’4
The writer then proceeds to tell us that the world stood in need of a new culture to take the place of the culture of the throne, and the systems of unification which were based on blood-relationship. It is amazing, he adds, that such a culture should have arisen from Arabia just at the time when it was most needed. There is, however, nothing amazing in the phenomenon. The world-life intuitively sees its own needs, and at critical moments defines its own direction. This is what, in the language of religion, we call prophetic revelation. It is only natural that Islam should have flashed across the consciousness of a simple people untouched by any of the ancient cultures, and occupying a geographical position where three continents meet together. The new culture finds the foundation of world-unity in the principle of Tauhâd.’5 Islam, as a polity, is only a practical means of making this principle a living factor in the intellectual and emotional life of mankind. It demands loyalty to God, not to thrones. And since God is the ultimate spiritual basis of all life, loyalty to God virtually amounts to man’s loyalty to his own ideal nature. The ultimate spiritual basis of all life, as conceived by Islam, is eternal and reveals itself in variety and change. A society based on such a conception of Reality must reconcile, in its life, the categories of permanence and change. It must possess eternal principles to regulate its collective life, for the eternal gives us a foothold in the world of perpetual change. But eternal principles when they are understood to exclude all possibilities of change which, according to the Qur’«n, is one of the greatest ‘signs’ of God, tend to immobilize what is essentially mobile in its nature. The failure of the Europe in political and social sciences illustrates the former principle, the immobility of Islam during the last five hundred years illustrates the latter. What then is the principle of movement in the structure of Islam? This is known as Ijtih«d.
The word literally means to exert. In the terminology of Islamic law it means to exert with a view to form an independent judgement on a legal question. The idea, I believe, has its origin in a well-known verse of the Qur’«n – ‘And to those who exert We show Our path’.6 We find it more definitely adumbrated in a tradition of the Holy Prophet. When Mu‘«dh was appointed ruler of Yemen, the Prophet is reported to have asked him as to how he would decide matters coming up before him. ‘I will judge matters according to the Book of God,’ said Mu‘«dh. ‘But if the Book of God contains nothing to guide you?’ ‘Then I will act on the precedents of the Prophet of God.’ ‘But if the precedents fail?’ ‘Then I will exert to form my own judgement.’7 The student of the history of Islam, however, is well aware that with the political expansion of Islam systematic legal thought became an absolute necessity, and our early doctors of law, both of Arabian and non-Arabian descent, worked ceaselessly until all the accumulated wealth of legal thought found a final expression in our recognized schools of Law. These schools of Law recognize three degrees of Ijtih«d: (1) complete authority in legislation which is practically confined to be founders of the schools, (2) relative authority which is to be exercised within the limits of a particular school, and (3) special authority which relates to the determining of the law applicable to a particular case left undetermined by the founders.8 In this paper I am concerned with the first degree of Ijtih«d only, i.e. complete authority in legislation. The theoretical possibility of this degree of Ijtih«d is admitted by the Sunni`s, but in practice it has always been denied ever since the establishment of the schools, inasmuch as the idea of complete Ijtih«d is hedged round by conditions which are well-nigh impossible of realization in a single individual. Such an attitude seems exceedingly strange in a system of law based mainly on the groundwork provided by the Qur’«n which embodies an essentially dynamic outlook on life. It is, therefore, necessary, before we proceed farther, to discover the cause of this intellectual attitude which has reduced the Law of Islam practically to a state of immobility. Some European writers think that the stationary character of the Law of Islam is due to the influence of the Turks. This is an entirely superficial view, for the legal schools of Islam had been finally established long before the Turkish influence began to work in the history of Islam. The real causes are, in my opinion, as follows:
1. We are all familiar with the Rationalist movement which appeared in the church of Islam during the early days of the Abbasids and the bitter controversies which it raised. Take for instance the one important point of controversy between the two camps – the conservative dogma of the eternity of the Qur’«n. The Rationalists denied it because they thought that this was only another form of the Christian dogma of the eternity of the word; on the other hand, the conservative thinkers whom the later Abbasids, fearing the political implications of Rationalism, gave their full support, thought that by denying the eternity of the Qur’«n the Rationalists were undermining the very foundations of Muslim society.9 Naďď«m, for instance, practically rejected the traditions, and openly declared Abë Hurairah to be an untrustworthy reporter.10 Thus, partly owing to a misunderstanding of the ultimate motives of Rationalism, and partly owing to the unrestrained thought of particular Rationalists, conservative thinkers regarded this movement as a force of disintegration, and considered it a danger to the stability of Islam as a social polity.11 Their main purpose, therefore, was to preserve the social integrity of Islam, and to realize this the only course open to them was to utilize the binding force of Sharâ‘ah, and to make the structure of their legal system as rigorous as possible.
2. The rise and growth of ascetic Sufism, which gradually developed under influences of a non-Islamic character, a purely speculative side, is to a large extent responsible for this attitude. On its purely religious side Sufism fostered a kind of revolt against the verbal quibbles of our early doctors. The case of Sufy«n Thaurâ is an instance in point. He was one of the acutest legal minds of his time, and was nearly the founder of a school of law,12 but being also intensely spiritual, the dry-as-dust subtleties of contemporary legists drove him to ascetic Sufism. On its speculative side which developed later, Sufism is a form of freethought and in alliance with Rationalism. The emphasis that it laid on the distinction of ď«hir and b«Çin (Appearance and Reality) created an attitude of indifference to all that applies to Appearance and not to Reality.13
This spirit of total other-wordliness in later Sufism obscured men’s vision of a very important aspect of Islam as a social polity, and, offering the prospect of unrestrained thought on its speculative side, it attracted and finally absorbed the best minds in Islam. The Muslim state was thus left generally in the hands of intellectual mediocrities, and the unthinking masses of Islam, having no personalities of a higher calibre to guide them, found their security only in blindly following the schools.
3. On the top of all this came the destruction of Baghdad – the centre of Muslim intellectual life – in the middle of the thirteenth century. This was indeed a great blow, and all the contemporary historians of the invasion of Tartars describe the havoc of Baghdad with a half-suppressed pessimism about the future of Islam. For fear of further disintegration, which is only natural in such a period of political decay, the conservative thinkers of Islam focused all their efforts on the one point of preserving a uniform social life for the people by a jealous exclusion of all innovations in the law of Sharâ‘ah as expounded by the early doctors of Islam. Their leading idea was social order, and there is no doubt that they were partly right, because organization does to a certain extent counteract the forces of decay. But they did not see, and our modern ‘Ulem« do not see, that the ultimate fate of a people does not depend so much on organization as on the worth and power of individual men. In an over-organized society the individual is altogether crushed out of existence. He gains the whole wealth of social thought around him and loses his own soul. Thus a false reverence for past history and its artificial resurrection constitute no remedy for a people’s decay. ‘The verdict of history’, as a modern writer has happily put it, ‘is that worn-out ideas have never risen to power among a people who have worn them out.’ The only effective power, therefore, that counteracts the forces of decay in a people is the rearing of self-concentrated individuals. Such individuals alone reveal the depth of life. They disclose new standards in the light of which we begin to see that our environment is not wholly inviolable and requires revision. The tendency to over-organization by a false reverence of the past, as manifested in the legists of Islam in the thirteenth century and later, was contrary to the inner impulse of Islam, and consequently invoked the powerful reaction of Ibn Taimâyyah, one of the most indefatigable writers and preachers of Islam, who was born in 1263, five years after the destruction of Baghdad.
Ibn Taimâyyah was brought up in Hanbalite tradition. Claiming freedom of Ijtih«d for himself he rose in revolt against the finality of the schools, and went back to first principles in order to make a fresh start. Like Ibn Ŕazm – the founder of Ę«hirâschool of law14 – he rejected the Hanafite principle of reasoning by analogy and Ijm«’ as understood by older legists;15 for he thought agreement was the basis of all superstition.16 And there is no doubt that, considering the moral and intellectual decrepitude of his times, he was right in doing so. In the sixteenth century Suyëtâ claimed the same privilege of Ijtih«d to which he added the idea of a renovator at the beginning of each century.17 But the spirit of Ibn Taimâyyah’s teaching found a fuller expression in a movement of immense potentialities which arose in the eighteenth century, from the sands of Nejd, described by Macdonald as the ‘cleanest spot in the decadent world of Islam’. It is really the first throb of life in modern Islam. To the inspiration of this movement are traceable, directly or indirectly, nearly all the great modern movements of Muslim Asia and Africa, e.g. the Sanâsâ movement, the Pan-Islamic movement,18 and the B«bâ movement, which is only a Persian reflex of Arabian Protestantism. The great puritan reformer, Muhammad Ibn ‘Abd al-Wahh«h, who was born in 1700,19 studied in Medina, travelled in Persia, and finally succeeded in spreading the fire of his restless soul throughout the whole world of Islam. He was similar in spirit to Ghazz«lâ’s disciple, Muhammad Ibn Tëmart20 – the Berber puritan reformer of Islam who appeared amidst the decay of Muslim Spain, and gave her a fresh inspiration. We are, however, not concerned with the political career of this movement which was terminated by the armies of Muhammad ‘Alâ P«sh«. The essential thing to note is the spirit of freedom manifested in it, though inwardly this movement, too, is conservative in its own fashion. While it rises in revolt against the finality of the schools, and vigorously asserts the right of private judgement, its vision of the past is wholly uncritical, and in matters of law it mainly falls back on the traditions of the Prophet.
Passing on to Turkey, we find that the idea of Ijtih«d, reinforced and broadened by modern philosophical ideas, has long been working in the religious and political thought of the Turkish nation. This is clear from Ŕalim S«bit’s new theory of Muhammadan Law, grounded on modern sociological concepts. If the renaissance of Islam is a fact, and I believe it is a fact, we too one day, like the Turks, will have to re-evaluate our intellectual inheritance. And if we cannot make any original contribution to the general thought of Islam, we may, by healthy conservative criticism, serve at least as a check on the rapid movement of liberalism in the world of Islam.
I now proceed to give you some idea of religio-political thought in Turkey which will indicate to you how the power of Ijtih«d is manifested in recent thought and activity in that country. There were, a short time ago, two main lines of thought in Turkey represented by the Nationalist Party and the Party of Religious Reform. The point of supreme interest with the Nationalist Party is above all the State and not Religion. With these thinkers religion as such has no independent function. The state is the essential factor in national life which determines the character and function of all other factors. They, therefore, reject old ideas about the function of State and Religion, and accentuate the separation of Church and State. Now the structure of Islam as a religio-political system, no doubt, does permit such a view, though personally I think it is a mistake to suppose that the idea of state is more dominant and rules all other ideas embodied in the system of Islam. In Islam the spiritual and the temporal are not two distinct domains, and the nature of an act, however secular in its import, is determined by the attitude of mind with which the agent does it. It is the invisible mental background of the act which ultimately determines its character.21 An act is temporal or profane if it is done in a spirit of detachment from the infinite complexity of life behind it; it is spiritual if it is inspired by that complexity. In Islam it is the same reality which appears as Church looked at from one point of view and State from another. It is not true to say that Church and State are two sides or facets of the same thing. Islam is a single unanalysable reality which is one or the other as your point of view varies. The point is extremely far-reaching and a full elucidation of it will involve us in a highly philosophical discussion. Suffice it to say that this ancient mistake arose out of the bifurcation of the unity of man into two distinct and separate realities which somehow have a point of contact, but which are in essence opposed to each other. The truth, however, is that matter is spirit in space-time reference. The unity called man is body when you look at it as acting in regard to what we call the external world; it is mind or soul when you look at it as acting in regard to the ultimate aim and ideal of such acting. The essence of Tauhâd, as a working idea, is equality, solidarity, and freedom. The state, from the Islamic standpoint, is an endeavour to transform these ideal principles into space-time forces, an aspiration to realize them in a definite human organization. It is in this sense alone that the state in Islam is a theocracy, not in the sense that it is headed by a representative of God on earth who can always screen his despotic will behind his supposed infallibility. The critics of Islam have lost sight of this important consideration. The Ultimate Reality, according to the Qur’«n, is spiritual, and its life consists in its temporal activity. The spirit finds its opportunities in the natural, the material, the secular. All that is secular is, therefore, sacred in the roots of its being. The greatest service that modern thought has rendered to Islam, and as a matter of fact to all religion, consists in its criticism of what we call material or natural – a criticism which discloses that the merely material has no substance until we discover it rooted in the spiritual. There is no such thing as a profane world. All this immensity of matter constitutes a scope for the self-realization of spirit. All is holy ground. As the Prophet so beautifully puts it: ‘The whole of this earth is a mosque.’22 The state, according to Islam, is only an effort to realize the spiritual in a human organization. But in this sense all state, not based on mere domination and aiming at the realization of ideal principles, is theocratic.
The truth is that the Turkish Nationalists assimilated the idea of the separation of Church and State from the history of European political ideas. Primitive Christianity was founded, not as a political or civil unit, but as a monastic order in a profane world, having nothing to do with civil affairs, and obeying the Roman authority practically in all matters. The result of this was that when the State became Christian, State and Church confronted each other as distinct powers with interminable boundary disputes between them. Such a thing could never happen in Islam; for Islam was from the very beginning a civil society, having received from the Qur’«n a set of simple legal principles which, like the twelve tables of the Romans, carried, as experience subsequently proved, great potentialities of expansion and development by interpretation. The Nationalist theory of state, therefore, is misleading inasmuch as it suggests a dualism which does not exist in Islam.
The Religious Reform Party, on the other hand, led by Sa‘âd Ŕalâm P«sh«, insisted on the fundamental fact that Islam is a harmony of idealism and positivism; and, as a unity of the eternal verities of freedom, equality, and solidarity, has no fatherland. ‘As there is no English Mathematics, German Astronomy or French Chemistry,’ says the Grand Vizier, ‘so there is no Turkish, Arabian, Persian or Indian Islam. Just as the universal character of scientific truths engenders varieties of scientific national cultures which in their totality represent human knowledge, much in the same way the universal character of Islamic verities creates varieties of national, moral and social ideals.’ Modern culture based as it is on national egoism is, according to this keen-sighted writer, only another form of barbarism. It is the result of an over-developed industrialism through which men satisfy their primitive instincts and inclinations. He, however, deplores that during the course of history the moral and social ideals of Islam have been gradually deislamized through the influence of local character, and pre-Islamic superstitions of Muslim nations. These ideals today are more Iranian, Turkish, or Arabian than Islamic. The pure brow of the principle of Tauhâd has received more or less an impress of heathenism, and the universal and impersonal character of the ethical ideals of Islam has been lost through a process of localization. The only alternative open to us, then, is to tear off from Islam the hard crust which has immobilized an essentially dynamic outlook on life, and to rediscover the original verities of freedom, equality, and solidarity with a view to rebuild our moral, social, and political ideals out of their original simplicity and universality. Such are the views of the Grand Vizier of Turkey. You will see that following a line of thought more in tune with the spirit of Islam, he reaches practically the same conclusion as the Nationalist Party, that is to say, the freedom of Ijtih«d with a view to rebuild the laws of Sharâ‘ah in the light of modern thought and experience.
Let us now see how the Grand National Assembly has exercised this power of Ijtih«d in regard to the institution of Khil«fat. According to Sunni Law, the appointment of an Imam or Khalâfah is absolutely indispensable. The first question that arises in this connexion is this – Should the Caliphate be vested in a single person? Turkey’s Ijtih«d is that according to the spirit of Islam the Caliphate or Imamate can be vested in a body of persons, or an elected Assembly. The religious doctors of Islam in Egypt and India, as far as I know, have not yet expressed themselves on this point. Personally, I believe the Turkish view is perfectly sound. It is hardly necessary to argue this point. The republican form of government is not only thoroughly consistent with the spirit of Islam, but has also become a necessity in view of the new forces that are set free in the world of Islam.
In order to understand the Turkish view let us seek the guidance of Ibn Khaldën – the first philosophical historian of Islam. Ibn Khaldën, in his famous ‘Prolegomena’, mentions three distinct views of the idea of Universal Caliphate in Islam23: (1) That Universal Imamate is a Divine institution, and is consequently indispensable. (2) That it is merely a matter of expediency. (3) That there is no need of such an institution. The last view was taken by the Khaw«rij.24 It seems that modern Turkey has shifted from the first to the second view, i.e. to the view of the Mu’tazilah who regarded Universal Imamate as a matter of expediency only. The Turks argue that in our political thinking we must be guided by our past political experience which points unmistakably to the fact that the idea of Universal Imamate has failed in practice. It was a workable idea when the Empire of Islam was intact. Since the break-up of this Empire independent political units have arisen. The idea has ceased to be operative and cannot work as a living factor in the organization of modern Islam. Far from serving any useful purpose it has really stood in the way of a reunion of independent Muslim States. Persia has stood aloof from the Turks in view of her doctrinal differences regarding the Khil«fat; Morocco has always looked askance at them, and Arabia has cherished private ambition. And all these ruptures in Islam for the sake of a mere symbol of a power which departed long ago. Why should we not, they can further argue, learn from experience in our political thinking? Did not Q«dâ Abë Bakr B«qil«nâ drop the condition of Qarshâyat in the Khalâfah in view of the facts of experience, i.e. the political fall of the Quraish and their consequent inability to rule the world of Islam? Centuries ago Ibn Khaldën, who personally believed in the condition of Qarshâyat in the Khali`fah, argued much in the same way. Since the power of the Quraish, he says, has gone, there is no alternative but to accept the most powerful man as Ima`m in the country where he happens to be powerful. Thus Ibn Khaldën, realizing the hard logic of facts, suggests a view which may be regarded as the first dim vision of an International Islam fairly in sight today. Such is the attitude of the modern Turk, inspired as he is by the realities of experience, and not by the scholastic reasoning of jurists who lived and thought under different conditions of life.
To my mind these arguments, if rightly appreciated, indicate the birth of an International ideal which, though forming the very essence of Islam, has been hitherto over-shadowed or rather displaced by Arabian Imperialism of the earlier centuries of Islam. This new ideal is clearly reflected in the work of the great nationalist poet Ęiy« whose songs, inspired by the philosophy of Auguste Comte, have done a great deal in shaping the present thought of Turkey. I reproduce the substance of one of his poems from Professor Fischer’s German translation:
In order to create a really effective political unity of Islam, all Muslim countries must first become independent: and then in their totality they should range themselves under one Caliph. Is such a thing possible at the present moment? If not today, one must wait. In the meantime the Caliph must reduce his own house to order and lay the foundations of a workable modern State.
‘In the International world the weak find no sympathy; power alone deserves respect.’25
These lines clearly indicate the trend of modern Islam. For the present every Muslim nation must sink into her own deeper self, temporarily focus her vision on herself alone, until all are strong and powerful to form a living family of republics. A true and living unity, according to the nationalist thinkers, is not so easy as to be achieved by a merely symbolical overlordship. It is truly manifested in a multiplicity of free independent units whose racial rivalries are adjusted and harmonized by the unifying bond of a common spiritual aspiration. It seems to me that God is slowly bringing home to us the truth that Islam is neither Nationalism nor Imperialism but a League of Nations which recognizes artificial boundaries and racial distinctions for facility of reference only,26 and not for restricting the social horizon of its members.
From the same poet the following passage from a poem called ‘Religion and Science’ will throw some further light on the general religious outlook which is being gradually shaped in the world of Islam today:
"Who were the first spiritual leaders of mankind? Without doubt the prophets and holy men. In every period religion has led philosophy; From it alone morality and art receive light. But then religion grows weak, and loses her original ardour! Holy men disappear, and spiritual leadership becomes, in name, the heritage of the Doctors of Law! The leading star of the Doctors of Law is tradition; They drag religion with force on this track; but philosophy says: ‘My leading star is reason: you go right, I go left."
‘Both religion and philosophy claim the soul of man and draw it on either side!’
‘When this struggle is going on pregnant experience delivers up positive science, and this young leader of thought says, "Tradition is history and Reason is the method of history! Both interpret and desire to reach the same indefinable something!"
‘But what is this something?’
‘Is it a spiritualized heart?’
‘If so, then take my last word – Religion is positive science, the purpose of which is to spiritualize the heart of man!’27
It is clear from these lines how beautifully the poet has adopted the Comtian idea of the three stages of man’s intellectual development, i.e. theological, metaphysical and scientific – to the religious outlook of Islam. And the view of religion embodied in these lines determines the poet’s attitude towards the position of Arabic in the educational system of Turkey. He says:
‘The land where the call to prayer resounds in Turkish; where those who pray understand the meaning of their religion; the land where the Qur’«n is learnt in Turkish; where every man, big or small, knows full well the command of God; O! Son of Turkey! that land is thy fatherland!’28
If the aim of religion is the spiritualization of the heart, then it must penetrate the soul of man, and it can best penetrate the inner man, according to the poet, only if its spiritualizing ideas are clothed in his mother tongue. Most people in India will condemn this displacement of Arabic by Turkish. For reasons which will appear later the poet’s Ijtih«d is open to grave objections, but it must be admitted that the reform suggested by him is not without a parallel in the past history of Islam. We find that when Muhammad Ibn Tëmart – the Mahdi of Muslim Spain – who was Berber by nationality, came to power, and established the pontifical rule of the MuwaÁÁidën, he ordered for the sake of the illiterate Berbers, that the Qur’«n should be translated and read in the Berber language; that the call to prayer should be given in Berber;29 and that all the functionaries of the Church must know the Berber language.
In another passage the poet gives his ideal of womanhood. In his zeal for the equality of man and woman he wishes to see radical changes in the family law of Islam as it is understood and practised today:
‘There is the woman, my mother, my sister, or my daughter; it is she who calls up the most sacred emotions from the depths of my life! There is my beloved, my sun, my moon and my star; it is she who makes me understand the poetry of life! How could the Holy Law of God regard these beautiful creatures as despicable beings? Surely there is an error in the interpretation of the Qur’«n by the learned?30
‘The foundation of the nation and the state is the family!’
‘As long as the full worth of the woman is not realized, national life remains incomplete.’
‘The upbringing of the family must correspond with justice;’
‘Therefore equality is necessary in three things – in divorce, in separation, and in inheritance.’
‘As long as the woman is counted half the man as regards inheritance and one-fourth of man in matrimony, neither the family nor the country will be elevated. For other rights we have opened national courts of justice;’
‘he family, on the other hand, we have left in the hands of schools.’
I do not know why we have left the woman in the lurch?
Does she not work for the land? Or, will she turn her needle into a sharp bayonet to tear off her rights from our hands through a revolution?31
The truth is that among the Muslim nations of today, Turkey alone has shaken off its dogmatic slumber, and attained to self-consciousness. She alone has claimed her right of intellectual freedom; she alone has passed from the ideal to the real – a transition which entails keen intellectual and moral struggle. To her the growing complexities of a mobile and broadening life are sure to bring new situations suggesting new points of view, and necessitating fresh interpretations of principles which are only of an academic interest to a people who have never experienced the joy of spiritual expansion. It is, I think, the English thinker Hobbes who makes this acute observation that to have a succession of identical thoughts and feelings is to have no thoughts and feelings at all. Such is the lot of most Muslim countries today. They are mechanically repeating old values, whereas the Turk is on the way to creating new values. He has passed through great experiences which have revealed his deeper self to him. In him life has begun to move, change, and amplify, giving birth to new desires, bringing new difficulties and suggesting new interpretations. The question which confronts him today, and which is likely to confront other Muslim countries in the near future is whether the Law of Islam is capable of evolution – a question which will require great intellectual effort, and is sure to be answered in the affirmative, provided the world of Islam approaches it in the spirit of ‘Umar – the first critical and independent mind in Islam who, at the last moments of the Prophet, had the moral courage to utter these remarkable words: ‘The Book of God is sufficient for us.’32
We heartily welcome the liberal movement in modern Islam, but it must also be admitted that the appearance of liberal ideas in Islam constitutes also the most critical moment in the history of Islam. Liberalism has a tendency to act as a force of disintegration, and the race-idea which appears to be working in modern Islam with greater force than ever may ultimately wipe off the broad human outlook which Muslim people have imbibed from their religion. Further, our religious and political reformers in their zeal for liberalism may overstep the proper limits of reform in the absence of check on their youthful fervour. We are today passing through a period similar to that of the Protestant revolution in Europe, and the lesson which the rise and outcome of Luther’s movement teaches should not be lost on us. A careful reading of history shows that the Reformation was essentially a political movement, and the net result of it in Europe was a gradual displacement of the universal ethics of Christianity by systems of national ethics.33 The result of this tendency we have seen with our own eyes in the Great European War which, far from bringing any workable synthesis of the two opposing systems of ethics, has made the European situation still more intolerable. It is the duty of the leaders of the world of Islam today to understand the real meaning of what has happened in Europe, and then to move forward with self-control and a clear insight into the ultimate aims of Islam as a social polity.
I have given you some idea of the history and working of Ijtih«d in modern Islam. I now proceed to see whether the history and structure of the Law of Islam indicate the possibility of any fresh interpretation of its principles. In other words, the question that I want to raise is – Is the Law of Islam capable of evolution? Horten, Professor of Semitic Philology at the University of Bonn, raises the same question in connexion with the Philosophy and Theology of Islam. Reviewing the work of Muslim thinkers in the sphere of purely religious thought he points out that the history of Islam may aptly be described as a gradual interaction, harmony, and mutual deepening of two distinct forces, i.e. the element of Aryan culture and knowledge on the one hand, and a Semitic religion on the other. The Muslim has always adjusted his religious outlook to the elements of culture which he assimilated from the peoples that surrounded him. From 800 to 1100, says Horten, not less than one hundred systems of theology appeared in Islam, a fact which bears ample testimony to the elasticity of Islamic thought as well as to the ceaseless activity of our early thinkers. Thus, in view of the revelations of a deeper study of Muslim literature and thought, this living European Orientalist has been driven to the following conclusion:
The spirit of Islam is so broad that it is practically boundless. With the exception of atheistic ideas alone it has assimilated all the attainable ideas of surrounding peoples, and given them its own peculiar direction of development.’
The assimilative spirit of Islam is even more manifest in the sphere of law. Says Professor Hurgronje – the Dutch critic of Islam:
When we read the history of the development of Mohammadan Law we find that, on the one hand, the doctors of every age, on the slightest stimulus, condemn one another to the point of mutual accusations of heresy; and, on the other hand, the very same people, with greater and greater unity of purpose, try to reconcile the similar quarrels of their predecessors.’These views of modern European critics of Islam make it perfectly clear that, with the return of new life, the inner catholicity of the spirit of Islam is bound to work itself out in spite of the rigorous conservatism of our doctors. And I have no doubt that a deeper study of the enormous legal literature of Islam is sure to rid the modern critic of the superficial opinion that the Law of Islam is stationary and incapable of development. Unfortunately, the conservative Muslim public of this country is not yet quite ready for a critical discussion of Fiqh, which, if undertaken, is likely to displease most people, and raise sectarian controversies; yet I venture to offer a few remarks on the point before us.
1. In the first place, we should bear in mind that from the earliest times practically up to the rise of the Abbasids, there was no written law of Islam apart from the Qur’an.
2. Secondly, it is worthy of note that from about the middle of the first century up to the beginning of the fourth not less than nineteen schools of law and legal opinion appeared in Islam.34 This fact alone is sufficient to show how incessantly our early doctors of law worked in order to meet the necessities of a growing civilization. With the expansion of conquest and the consequent widening of the outlook of Islam these early legists had to take a wider view of things, and to study local conditions of life and habits of new peoples that came within the fold of Islam. A careful study of the various schools of legal opinion, in the light of contemporary social and political history, reveals that they gradually passed from the deductive to the inductive attitude in their efforts at interpretation.35
3. Thirdly, when we study the four accepted sources of Muhammadan Law and the controversies which they invoked, the supposed rigidity of our recognized schools evaporates and the possibility of a further evolution becomes perfectly clear. Let us briefly discuss these sources.
(a) The Qur’«n. The primary source of the Law of Islam is the Qur’«n. The Qur’«n, however, is not a legal code. Its main purpose, as I have said before, is to awaken in man the higher consciousness of his relation with God and the universe.36 No doubt, the Qur’«n does lay down a few general principles and rules of a legal nature, especially relating to the family37 – the ultimate basis of social life. But why are these rules made part of a revelation the ultimate aim of which is man’s higher life? The answer to this question is furnished by the history of Christianity which appeared as a powerful reaction against the spirit of legality manifested in Judaism. By setting up an ideal of otherworldliness it no doubt did succeed in spiritualizing life, but its individualism could see no spiritual value in the complexity of human social relations. ‘Primitive Christianity’, says Naumann in his Briefe Ü ber Religion, ‘attached no value to the preservation of the State, law, organization, production. It simply does not reflect on the conditions of human society.’ And Naumann concludes: ‘Hence we either dare to aim at being without a state, and thus throwing ourselves deliberately into the arms of anarchy, or we decide to possess, alongside of our religious creed, a political creed as well.’38 Thus the Qur’«n considers it necessary to unite religion and state, ethics and politics in a single revelation much in the same way as Plato does in his Republic.
The important point to note in this connexion, however, is the dynamic outlook of the Qur’«n. I have fully discussed its origin and history. It is obvious that with such an outlook the Holy Book of Islam cannot be inimical to the idea of evolution. Only we should not forget that life is not change, pure and simple. It has within it elements of conservation also. While enjoying his creative activity, and always focusing his energies of the discovery of new vistas of life, man has a feeling of uneasiness in the presence of his own unfoldment. In his forward movement he cannot help looking back to his past, and faces his own inward expansion with a certain amount of fear. The spirit of man in its forward movement is restrained by forces which seem to be working in the opposite direction. This is only another way of saying that life moves with the weight of its own past on its back, and that in any view of social change the value and function of the forces of conservatism cannot be lost sight of. It is with this organic insight into the essential teaching of the Qur’«n that to approach our existing institutions. No people can afford to reject their past entirely, for it is their past that has made their personal identity. And in a society like Islam the problem of a revision of old institutions becomes still more delicate, and the responsibility of the reformer assumes a far more serious aspect. Islam is non-territorial in its character, and its aim is to furnish a model for the final combination of humanity by drawing its adherents from a variety of mutually repellent races, and then transforming this atomic aggregate into a people possessing a self-consciousness of their own. This was not an easy task to accomplish. Yet Islam, by means of its well-conceived institutions, has succeeded to a very great extent in creating something like a collective will and conscience in this heterogeneous mass. In the evolution of such a society even the immutability of socially harmless rules relating to eating and drinking, purity or impurity, has a life-value of its own, inasmuch as it tends to give such society a specific inwardness, and further secures that external and internal uniformity which counteracts the forces of heterogeneity always latent in a society of a composite character. The critic of these institutions must, therefore, try to secure, before he undertakes to handle them, a clear insight into the ultimate significance of the social experiment embodied in Islam. He must look at their structure, not from the standpoint of social advantage or disadvantage to this or that country, but from the point of view of the larger purpose which is being gradually worked out in the life of mankind as a whole.
Turning now to the groundwork of legal principles in the Qur’«n, it is perfectly clear that far from leaving no scope for human thought and legislative activity the intensive breadth of these principles virtually acts as an awakener of human thought. Our early doctors of law taking their clue mainly from this groundwork evolved a number of legal systems; and the student of Muhammadan history knows very well that nearly half the triumphs of Islam as a social and political power were due to the legal acuteness of these doctors. ‘Next to the Romans’, says von Kremer, ‘there is no other nation besides the Arabs which could call its own a system of law so carefully worked out.’ But with all their comprehensiveness these systems are after all individual interpretations, and as such cannot claim any finality. I know the ‘Ulem« of Islam claim finality for the popular schools of Muhammadan Law, though they never found it possible to deny the theoretical possibility of a complete Ijtih«d. I have tried to explain the causes which, in my opinion, determined this attitude of the ‘Ulem«; but since things have changed and the world of Islam is confronted and affected today by new forces set free by the extraordinary development of human thought in all its directions, I see no reason why this attitude should be maintained any longer. Did the founders of our schools ever claim finality for their reasonings and interpretations? Never. The claim of the present generation of Muslim liberals to reinterpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified. The teaching of the Qur’«n that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.
You will, I think, remind me here of the Turkish poet Ęiy« whom I quoted a moment ago, and ask whether the equality of man and woman demanded by him, equality, that is to say, in point of divorce, separation, and inheritance, is possible according to Muhammadan Law. I do not know whether the awakening of women in Turkey has created demands which cannot be met with without a fresh interpretation of foundational principles. In the Punjab, as everybody knows, there have been cases in which Muslim women wishing to get rid of undesirable husbands have been driven to apostasy.39 Nothing could be more distant from the aims of a missionary religion. The Law of Islam, says the great Spanish jurist Im«m Sh«tibâin his al-Muwafiq«t, aims at protecting five things – Dân, Nafs, ‘Aql, M«l, and Nasl.40 Applying this test I venture to ask: ‘Does the working of the rule relating to apostasy, as laid down in the Hed«yah tend to protect the interests of the Faith in this country?’41 In view of the intense conservatism of the Muslims of India, Indian judges cannot but stick to what are called standard works. The result is that while the peoples are moving the law remains stationary.
With regard to the Turkish poet’s demand, I am afraid he does not seem to know much about the family law of Islam. Nor does he seem to understand the economic significance of the Quranic rule of inheritance.42 Marriage, according to Muhammadan Law, is a civil contract.43 The wife at the time of marriage is at liberty to get the husband’s power of divorce delegated to her on stated conditions, and thus secure equality of divorce with her husband. The reform suggested by the poet relating to the rule of inheritance is based on a misunderstanding. From the inequality of their legal shares it must not be supposed that the rule assumes the superiority of males over females. Such an assumption would be contrary to the spirit of Islam. The Qur’«n says:
And for women are rights over men similar to those for men over women’ (2:228).
The share of the daughter is determined not by any inferiority inherent in her, but in view of her economic opportunities, and the place she occupies in the social structure of which she is a part and parcel. Further, according to the poet’s own theory of society, the rule of inheritance must be regarded not as an isolated factor in the distribution of wealth, but as one factor among others working together for the same end. While the daughter, according to Muhammadan Law, is held to be full owner of the property given to her by both the father and the husband at the time of her marriage; while, further, she absolutely owns her dower-money which may be prompt or deferred according to her own choice, and in lieu of which she can hold possession of the whole of her husband’s property till payment, the responsibility of maintaining her throughout her life is wholly thrown on the husband. If you judge the working of the rule of inheritance from this point of view, you will find that there is no material difference between the economic position of sons and daughters, and it is really by this apparent inequality of their legal shares that the law secures the equality demanded by the Turkish poet. The truth is that the principles underlying the Quranic law of inheritance – this supremely original branch of Muhammadan Law as von Kremer describes it – have not yet received from Muslim lawyers the attention they deserve.44 Modern society with its bitter class-struggles ought to set us thinking; and if we study our laws in reference to the impending revolution in modern economic life, we are likely to discover, in the foundational principles, hitherto unrevealed aspects which we can work out with a renewed faith in the wisdom of these principles.
(b) The Ŕadâth. The second great source of Muhammadan Law is the traditions of the Holy Prophet. These have been the subject of great discussion both in ancient and modern times. Among their modern critics Professor Goldziher has subjected them to a searching examination in the light of modern canons of historical criticism, and arrives at the conclusion that they are, on the whole, untrustworthy.45 Another European writer, after examining the Muslim methods of determining the genuineness of a tradition, and pointing out the theoretical possibilities of error, arrives at the following conclusion:
‘It must be said in conclusion that the preceding considerations represent only theoretical possibilities and that the question whether and how far these possibilities have become actualities is largely a matter of how far the actual circumstances offered inducements for making use of the possibilities. Doubtless, the latter, relatively speaking, were few and affected only a small proportion of the entire Sunnah. It may therefore be said that . . . for the most part the collections of Sunnah considered by the Moslems as canonical are genuine records of the rise and early growth of Islam’ (Mohammedan Theories of Finance).46
For our present purposes, however, we must distinguish traditions of a purely legal import from those which are of a non-legal character. With regard to the former, there arises a very important question as to how far they embody the pre-Islamic usages of Arabia which were in some cases left intact, and in others modified by the Prophet. It is difficult to make this discovery, for our early writers do not always refer to pre-Islamic usages. Nor is it possible to discover that usages, left intact by express or tacit approval of the Prophet, were intended to be universal in their application. Sh«h WalâAll«h has a very illuminating discussion on the point. I reproduce here the substance of his view. The prophetic method of teaching, according to Sh«h WalâAll«h, is that, generally speaking, the law revealed by a prophet takes especial notice of the habits, ways, and peculiarities of the people to whom he is specifically sent. The prophet who aims at all-embracing principles, however, can neither reveal different principles for different peoples, nor leaves them to work out their own rules of conduct. His method is to train one particular people, and to use them as a nucleus for the building up of a universal Sharâ‘ah. In doing so he accentuates the principles underlying the social life of all mankind, and applies them to concrete cases in the light of the specific habits of the people immediately before him. The Sharâ‘ah values (AÁk«m) resulting from this application (e.g. rules relating to penalties for crimes) are in a sense specific to that people; and since their observance is not an end in itself they cannot be strictly enforced in the case of future generations.47 It was perhaps in view of this that Abë Ŕanâfah, who had, a keen insight into the universal character of Islam, made practically no use of these traditions. The fact that he introduced the principle of IstiÁs«n, i.e. juristic preference, which necessitates a careful study of actual conditions in legal thinking, throws further light on the motives which determined his attitude towards this source of Muhammadan Law. It is said that Abë Ŕanâfah made no use of traditions because there were no regular collections in his day. In the first place, it is not true to say that there were no collections in his day, as the collections of ‘Abd al-M«lik and Zuhrâ were made not less than thirty years before the death of Abë Ŕanâfah. But even if we suppose that these collections never reached him, or that they did not contain traditions of a legal import, Abë Ŕanâfah, like M«lik and AÁmad Ibn Ŕanbal after him, could have easily made his own collection if he had deemed such a thing necessary. On the whole, then, the attitude of Abë Ŕanâfah towards the traditions of a purely legal import is to my mind perfectly sound; and if modern Liberalism considers it safer not to make any indiscriminate use of them as a source of law, it will be only following one of the greatest exponents of Muhammadan Law in Sunni Islam. It is, however, impossible to deny the fact that the traditionists, by insisting on the value of the concrete case as against the tendency to abstract thinking in law, have done the greatest service to the Law of Islam. And a further intelligent study of the literature of traditions, if used as indicative of the spirit in which the Prophet himself interpreted his Revelation, may still be of great help in understanding the life-value of the legal principles enunciated in the Qur’«n. A complete grasp of their life-value alone can equip us in our endeavour to reinterpret the foundational principles.
(c) The Ijm«`’. The third source of Muhammadan Law is Ijm«’ which is, in my opinion, perhaps the most important legal notion in Islam. It is, however, strange that this important notion, while invoking great academic discussions in early Islam, remained practically a mere idea, and rarely assumed the form of a permanent institution in any Muhammadan country. Possibly its transformation into a permanent legislative institution was contrary to the political interests of the kind of absolute monarchy that grew up in Islam immediately after the fourth Caliph. It was, I think, favourable to the interest of the Umayyad and the Abbasid Caliphs to leave the power of Ijtih«d to individual Mujtahids rather than encourage the formation of a permanent assembly which might become too powerful for them. It is, however, extremely satisfactory to note that the pressure of new world-forces and the political experience of European nations are impressing on the mind of modern Islam the value and possibilities of the idea of Ijm«’. The growth of republican spirit and the gradual formation of legislative assemblies in Muslim lands constitute a great step in advance. The transfer of the power of Ijtih«d from individual representatives of schools to a Muslim legislative assembly which, in view of the growth of opposing sects, is the only possible form Ijm«’ can take in modern times, will secure contributions to legal discussion from laymen who happen to possess a keen insight into affairs. In this way alone can we stir into activity the dormant spirit of life in our legal system, and give it an evolutionary outlook. In India, however, difficulties are likely to arise for it is doubtful whether a non-Muslim legislative assembly can exercise the power of Ijtih«d.
But there are one or two questions which must be raised and answered in regard to the Ijm«’. Can the Ijm«’ repeal the Qur’«n? It is unnecessary to raise this question before a Muslim audience, but I consider it necessary to do so in view of a very misleading statement by a European critic in a book called Mohammedan Theories of Finance – published by the Columbia University. The author of this book says, without citing any authority, that according to some Hanafâ and Mu‘tazilah writers the Ijm«’ can repeal the Qur’«n.48 There is not the slightest justification for such a statement in the legal literature of Islam. Not even a tradition of the Prophet can have any such effect. It seems to me that the author is misled by the word Naskh in the writings of our early doctors to whom, as Im«m Sh«Çibâë points out in al-Muwaffiq«t, vol. iii, p. 65, this word, when used in discussions relating to the Ijm«’ of the companions, meant only the power to extend or limit the application of a Quranic rule of law, and not the power to repeal or supersede it by another rule of law. And even in the exercise of this power the legal theory, as ‘Amâdâ- a Sh«fi‘â doctor of law who died about the middle of the seventh century, and whose work is recently published in Egypt – tells us, is that the companions must have been in possession of a Sharâ‘ah value (Ŕukm) entitling them to such a limitation or extension.49
But supposing the companions have unanimously decided a certain point, the further question is whether later generations are bound by their decision. Shauk«nâ has fully discussed this point, and cited the views held by writers belonging to different schools.50 I think it is necessary in this connexion to discriminate between a decision relating to a question of fact and the one relating to a question of law. In the former case, as for instance, when the question arose whether the two small Sërahs known as Mu‘awwidhat«n 51 formed part of the Qur’«n or not, and the companions unanimously decided that they did, we are bound by their decision, obviously because the companions alone were in a position to know the fact. In the latter case the question is one of interpretation only, and I venture to think, on the authority of Karkhâ, that later generations are not bound by the decision of the companions. Says Karkhâ: ‘The Sunnah of the companions is binding in matters which cannot be cleared up by Qiy«s, but it is not so in matters which can be established by Qiy«s.’52
One more question may be asked as to the legislative activity of a modern Muslim assembly which must consist, at least for the present, mostly of men possessing no knowledge of the subtleties of Muhammadan Law. Such an assembly may make grave mistakes in their interpretation of law. How can we exclude or at least reduce the possibilities of erroneous interpretation? The Persian constitution of 1906 provided a separate ecclesiastical committee of ‘Ulem« – ‘conversant with the affairs of the world’ – having power to supervise the legislative activity of the Mejlis. This, in my opinion, dangerous arrangement is probably necessary in view of the Persian constitutional theory. According to that theory, I believe, the king is a mere custodian of the realm which really belongs to the Absent Im«m. The ‘Ulem«, as representatives of the Im«m, consider themselves entitled to supervise the whole life of the community, though I fail to understand how, in the absence of an apostolic succession, they establish their claim to represent the Im«m. But whatever may be the Persian constitutional theory, the arrangement is not free from danger, and may be tried, if at all, only as a temporary measure in Sunnâ countries.53 The ‘Ulem« should form a vital part of a Muslim legislative assembly helping and guiding free discussion on questions relating to law. The only effective remedy for the possibilities of erroneous interpretations is to reform the present system of legal education in Muhammadan countries, to extend its sphere, and to combine it with an intelligent study of modern jurisprudence.54
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