Is Sharia Immutable?
By Asghar Ali Engineer
IT is believed by millions of Muslims across the world that Sharia laws are immutable and represent divine will. This is based on serious misunderstanding. Sharia is not and cannot be immutable.
Recently I was invited to the Jaipur Literary Festival to be part of a panel discussion on the book Heaven on Earth by Sadakat Kadri of London, which is on the application of Sharia laws across the Muslim world. He has travelled to different Muslim countries and talked to various Ulema and muftis about Sharia as applied to their respective countries.
All of them were defenders of conservative Sharia formulations and refused to admit any change. They maintained that Sharia being divine cannot be changed. It is from this rigidity of our Ulema that the misunderstanding among common Muslims arises that Sharia is divine and hence immutable.
In fact our Ulema forget that Ijtihad was not only permitted but encouraged by the Prophet of Islam (PBUH) and the Hadith pertaining to Ma’adh bin Jabal is well-known. When the Prophet appointed him to the governorship of Yemen and he came to take leave of the Prophet, Ma’adh was asked how he would govern. Ma’adh said, according to the Quran. The Prophet thereupon asked what he would do if he did not find the solution to the problem in the Quran, to which Ma’adh said he would govern according to the Sunnah. But when the Prophet asked if he could not find it in the Sunnah also, Ma’adh said “ana ajtahidu” (I will exert myself to find the solution). The Prophet thereupon patted his back and told him he was right.
All Ulema accept this Hadith and yet, while theoretically admitting the permissibility of Ijtihad, refuse to engage in it or allow it saying there is no one capable of doing it. In fact, what is unalterable are the principles and values underlying Sharia ie usul al-fiqh. But laws based on these usul must undergo change in keeping with changes in the social and cultural context. In fact cultural context plays a very important role in the formulation of Sharia. The Arab adaat (customs and traditions) form an important part of Sharia formulations.
The late Abdurrahman Wahid, who headed Indonesia’s religious organisation Nahdlat ul Ulema and also served as president of that country, told me once that there was great debate among the Ulema of Indonesia over whether Indonesian customs and traditions can become part of Sharia as applicable in that country; those who advocated Indonesian adaat ultimately won.
Let us remember that what was called the Muslim Ummah (community) during the Prophet’s time was limited to Arabia only. But when Islam spread to different areas the Ummah was no more confined to the Arabs alone; it also encompassed the Iranians, Uzbeks, Turks, Chinese, Indians and others. Thus there were various linguistic and cultural groups within the fold of Islam.
Sharia was influenced by these factors. Thus the Ummah was no longer a homogenous group but comprised of various cultural communities with their own age-old customs and traditions.
However, the values, Maqasid (intentions) and masalih (welfare) of human beings did not change. Maqasid al-Sharia and masalih al-sharia do not change, but in order to keep these values, Maqasid and masalih intact, the rules framed by the Ulema must change. When Imam Shafi’i moved from Hejaz to Egypt, which was a confluence of Arab and Coptic cultures, he realised this and changed his position on several issues.
However, what I am saying does not apply to Ibadaat ie matters pertaining to worship, the world hereafter etc but only to matters pertaining to mu’amalat ie interpersonal relations like marriage, divorce, inheritance and many other similar socio-economic matters.
The most important, of course, among these is matters pertaining to marriage, divorce etc. In Jaipur I spoke mainly on women’s position in Sharia and women’s position in the Quran.
The fact that the venue was packed with people shows the interest women’s position in general and that of Muslim women in particular generates. I commented that the book referred to earlier deals with only the status quo and application of Sharia laws of patriarchal and feudalised Islamic societies. It very much misses what I call the transcendental Quranic vision. The Quran gives absolutely equal rights to man and woman without any discrimination.
However, the Quran was revealed in a highly patriarchal society which later also became feudalised when the caliphate turned into a feudal empire. Thus patriarchy and feudalism completely distorted the fundamental Quranic vision of gender equality and women’s individuality and dignity.
Unless we understand these sociological and cultural aspects and relate them to the theological one, we will miss the very revolutionary role which Islam wanted to play in totally transforming women’s status.
However, it is highly regrettable that Muslim societies could not produce Ulema with the capacity to relate sociology with theology. Even in modern and post-modern societies our Ulema totally lack a transcendental vision of Islam. They have become prisoners of the past and have frozen Islam in a feudal, patriarchal state.
We need theologians with vision to fulfil the Quran’s mission of going beyond the present which is full of injustice. Our society is replete with gender injustices and the Quran’s central value is justice — justice in all areas of life. Gender justice is as emphatically emphasised as justice in social and economic matters.
In order to emphasise gender justice it is high time that we produce female theologians with profound knowledge of the Arabic language. Even the most conservative Ulema cannot oppose the concept of female theologians.
Asghar Ali Engineer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai.
One can be moral with religion as well as without religion. It takes many sorts to make the world. Simplistic anti-religious harpings are as intrusive as aggressive evangelism.
Gary Gutting says, "Religions express perennial human impulses and aspirations that cannot plausibly be rejected out of hand as foolish or delusional. The idea that there is simply nothing worthwhile in religion is as unlikely as the idea that there is nothing worthwhile in poetry, art, philosophy or science.....Even if it falls short of knowledge, religion can be an important source of understanding."
The books of Muhammad Asad, formerly Leopold Weiss, can be downloaded from the following site:
Incidentally, neither M Asad nor any of the other translators or commentators of the Quran talk about the earth being flat!
The book 'The Road to Mecca' is a fascinating book. I have highlighted the more interesting portions and can mail it to those who cannot read all 360 pages of the book but would like to read the highlights. You may write to me at email@example.com if you are interested in a copy with the important sections highlighted.
The following is an excerpt from Leopold Weiss book 'The Road to Macca' in response to Ajay Sharma’s comment
…Is Islam truly a message from God or merely the wisdom of a great, but fallible, man ... ?
On one occasion - it must have been about a week after we had been married - she remarked: 'How strange that you, of all people, should depreciate mysticism in religion ... You are a mystic yourself - a sensuous kind of mystic, reaching out with your fingertips toward the life around you, seeing an intricate, mystical pattern in everyday things-in many things that to other people appear so commonplace ... But the moment you turn to religion, you are all brain. With most people it would be the other way around ..
But Elsa was not really puzzled. She knew what I was searching for when I spoke to her of Islam; and although she may not have felt the same urgency as I did, her love made her share my quest.
Often we would read the Koran together and discuss its ideas; and Elsa, like myself, became more and more impressed by the inner cohesion between its moral teaching and its practical guidance. According to the Koran, God did not call for blind subservience on the part of man but rather appealed to his intellect; He did not stand apart from man's destiny but was nearer to you than the vein in your neck; He did not draw any dividing line between faith and social behaviour; and, what was perhaps most important, He did not start from the axiom that all life was burdened with a conflict between matter and spirit and that the way toward the Light demanded a freeing of the soul from the shackles of the flesh. Every form of life-denial and self-mortification had been condemned by the Prophet in sayings like Behold, asceticism is not for us, and There is no world-renunciation in Islam. The human will to live was not only recognized as a positive, fruitful instinct but was endowed with the sanctity of an ethical postulate as well. Man was taught, in effect: You not only may utilize your life to the full, but you are obliged to do so.
An integrated image of Islam was now emerging with a finality, a decisiveness that sometimes astounded me. It was taking shape by a process that could almost be described as a kind of mental osmosis - that is, without any conscious effort on my part to piece together and 'systematize' the many fragments of knowledge that had come my way during the past four years. I saw before me something like a perfect work of architecture, with all its elements harmoniously conceived to complement and support each other, with nothing superfluous and nothing lacking - a balance and composure which gave one the feeling that everything in the outlook and postulates of Islam was 'in its proper place.
Thirteen centuries ago a man had stood up and said: I am only a mortal man; but He who has created the universe has bidden me to bear His Message to you. In order that you might live in harmony with the plan of His creation, He has commanded me to remind you of His existence, omnipotence and omniscience, and to place before you a programme of behaviour. If you accept this reminder and this programme, follow me,' This was the essence of Muhammad's prophetic mission!
The social scheme he propounded was of that simplicity which goes together only with real grandeur. It started from the premise that men are biological beings with biological needs and are so conditioned by their Creator that they must live in groups in order to satisfy the full range of their physical, moral and intellectual requirements: in short, they are dependent on one another. The continuity of an individual's rise in spiritual stature (the fundamental objective of every religion) depends on whether he is helped, encouraged and protected by the people around him - who, of course, expect the same co-operation from him. This human interdependence was the reason why in Islam religion could not be separated from economics and politics. To arrange practical human relations in such a way that every individual might find as few obstacles and as much encouragement as possible in the development of his personality: this, and nothing else, appeared to be the Islamic concept of the true function of society. And so it was only natural that the system which the Prophet Muhammad enunciated in the twenty-three years of his ministry related not only to matters spiritual but provided a framework for all individual and social acitivity as well. It held out the concept not only of individual righteousness but also of the equitable society which such righteousness should bring about. It provided the outline of a political community - the outline only, because the details of man's political needs are time-bound and therefore variable - as well as a scheme of individual rights and social duties in which the fact of historical evolution was duly anticipated. The Islamic code embraced life in all its aspects, moral and physical, individual and communal; problems of the flesh and of the mind, of sex and economics had, side by side with problems of theology and worship, their legitimate place in the Prophet's teachings, and nothing that pertained to life seemed too trivial to be drawn into the orbit of religious thought-not even such 'mundane' issues as commerce, inheritance, property rights or ownership of land. All the clauses of Islamic Law were devised for the equal benefit of all members of the community, without distinction of birth, race, sex or previous social allegiance. No special benefits were reserved for the community's founder or his descendants. High and low were, in a social sense, nonexistent terms; and nonexistent was the concept of class. All rights, duties and opportunities applied equally to all who professed faith in Islam. No priest was required to mediate between man and God, for He knows what lies open in their hands before them and what they conceal behind their backs. No loyalty was recognized beyond the loyalty to God and His Prophet, to one's parents, and to the community that had as its goal the establishment of God's kingdom on earth; and this precluded that kind of loyalty which says, right or wrong, my country or my nation. To elucidate this principle, the Prophet very pointedly said on more than one occasion: He is not of us who proclaims the cause of tribal partisanship; and he is not of us who fights in the cause of tribal partisanship; and he is not of us who dies for the sake of tribal partisanship.
Before Islam, all political organizations - even those on a theocratic or semi-theocratic basis - had been limited by the narrow concepts of tribe and tribal homogeneity. Thus, the god-kings of ancient Egypt had no thought beyond the horizon of the Nile valley and its inhabitants, and in the early theocratic state of the Hebrews, when God was supposed to rule, it was necessarily the God of the Children of Israel. In the structure of Koranic thought, on the other hand, considerations of descent or tribal adherence had no place. Islam postulated a self-contained political community which cut across the conventional divisions of tribe and race. In this respect, Islam and Christianity might be said to have had the same aim: both advocated an international community of people united by their adherence to a common ideal; but whereas Christianity had contented itself with a mere moral advocacy of this principle and, by advising its followers to give Caesar his due, had restricted its universal appeal to the spiritual sphere, Islam unfolded before the world the vision of a political organization in which God-consciousness would be the mainspring of man's practical behaviour and the sole basis of all social institutions. Thus fulfilling what Christianity had left unfulfilled. Islam inaugurated a new chapter in the development of man: the first instance of an open, ideological society in contrast with the closed, racially or geographically limited, societies of the past.
The message of Islam envisaged and brought to life a civilization in which there was no room for nationalism, no 'vested interests', no class divisions, no Church, no priesthood, no hereditary nobility; in fact, no hereditary functions at all. The aim was to establish a theocracy with regard to God and a democracy between man and man. The most important feature of that new civilization - a feature which set it entirely apart from all other movements in human history - was the fact that it had been conceived in terms of, and arose from, a voluntary agreement of the people concerned. Here, social progress was not, as in all other communities and civilizations known to history, a result of pressure and counterpressure of conflicting interests, but part and parcel of an original 'constitution. In other words, a genuine social contract lay at the root of things: not as a figure of speech formulated by later generations of power-holders in defence of their privileges, but as the real, historic source of Islamic civilization. The Koran said: Behold, God has bought of the Faithful their persons and their possessions, offering them Paradise in return ... Rejoice, then, in the bargain you have made, for this is the triumph supreme.
I knew that this 'triumph supreme'- the one instance of a real social contract recorded by history -was realized only during a very short period; or, rather, only during a very short period was a large-scale attempt made to realize it. Less than a century after the Prophet's death, the political form of pristine Islam began to be corrupted and, in the following centuries, the original programme was gradually pushed,into the background. Clannish wranglings for power took the place of a free agreement of free men and women; hereditary kingship, as inimical to the political concept of Islam as polytheism is to its theological concept, soon came into being - and with it, dynastic struggles and intrigues, tribal preferences and oppressions, and the usual degradation of religion to the status of a handmaiden of political power: in short, the entire host of 'vested interests' so well known to history. For a time, the great thinkers of Islam tried to keep its true ideology aloft and pure; but those who came after them were of lesser stature and lapsed after two or three centuries into a morass of intellectual convention, ceased to think for themselves and became content to repeat the dead phrases of earlier generations - forgetting that every human opinion is time-bound and fallible and therefore in need of eternal renewal. The original impetus of Islam, so tremendous in its beginnings, sufficed for a while to carry the Muslim commonwealth to great cultural heights - to that splendid vision of scientific, literary and artistic achievement which historians describe as the Golden Age of Islam; but within a few more centuries this impetus also died down for want of spiritual nourishment, and Muslim civilization became more and more stagnant and devoid of creative power.
I HAD NO ILLUSIONS as to the present state of affairs in the Muslim world. The four years 1 had spent in those countries had shown me that while Islam was still alive, perceptible in the world-view of its adherents and in their silent admission of its ethical premises, they themselves were like people paralyzed, unable to translate their beliefs into fruitful action. But what concerned me more than the failure of present-day Muslims to implement the scheme of Islam were the potentialities of that scheme itself. It was sufficient for me to know that for a short time, quite at the beginning of Islamic history, a successful attempt had been made to translate that scheme into practice; and what had seemed possible at one time might perhaps become really possible at another. What did it matter, I told myself, that the Muslims had gone astray from the original teaching and subsided into indolence and ignorance ? What did it matter that they did not live up to the ideal placed before them by the Arabian Prophet thirteen centuries ago - if the ideal itself still lay open to all who were willing to listen to its message?
And it might well be, I thought, that we latecomers needed that message even more desperately than did the people of Muhammad's time. They lived in an environment much simpler than ours, and so their problems and difficulties had been much easier of solution. The world in which I was living - the whole of it - was wobbling because of the absence of any agreement as to what is good and evil spiritually and, therefore, socially and economically as well. I did not believe that individual man was in need of 'salvation': but I did believe that modern society was in need of salvation. More than any previous time, I felt with mounting certainty, this time of ours was in need of an ideological basis for a new social contract: it needed a faith that would make us understand the hollowness of material progress for the sake of progress alone - and nevertheless would give the life of this world its due; that would show us how to strike a balance between our spiritual and physical requirements: and thus save us from the disaster into which we were rushing headlong.
…….For the time being Elsa and I settled down in Berlin, where I intended to complete my series of lectures at the Academy of Geopolitics and also to continue my Islamic studies.
My old literary friends were glad to see me back, but somehow it was not easy to take up the threads of our former relations at the point where they had been left dangling when I went to the Middle East. We had grown estranged; we no longer spoke the same intellectual language. In particular, from none of my friends could I elicit anything like understanding for my preoccupation with Islam. Almost to a man they shook their heads in puzzlement when I tried to explain to them that Islam, as an intellectual and social concept, could favourably compare with any other ideology. Although on occasion they might concede the reasonableness of this or that Islamic proposition, most of them were of the opinion that the old religions were a thing of the past, and that our time demanded a new, 'humanistic' approach. But even those who did not so sweepingly deny all validity to institutional religion were by no means disposed to give up the popular Western notion that Islam, being overly concerned with mundane matters, lacked the 'mystique' which one had a right to expect from religion.
It rather surprised me to discover that the very aspect of Islam which had attracted me in the first instance - the absence of a division of reality into physical and spiritual compartments and the stress on reason as a way to faith - appealed so little to intellectuals who otherwise were wont to claim for reason a dominant role in life: it was in the religious sphere alone that they instinctively receded from their habitually so 'rational" and 'realistic' position. And in this respect I could discern no difference whatever between those few of my friends who were religiously inclined and the many to whom religion had ceased to be more than an outmoded convention.
In time, however, I came to understand where their difficulty lay. I began to perceive that in the eyes of people brought up within the orbit of Christian thought with its stress on the 'supernatural’ allegedly inherent in every true religious experience - a predominantly rational approach appeared to detract from a religion's spiritual value. This attitude was by no means confined to believing Christians. Because of Europe's long, almost exclusive association with Christianity, even the agnostic European had subconsciously learned to look upon all religious experience through the lens of Christian concepts, and would regard it as 'valid' only if it was accompanied by a thrill of numinous awe before things hidden and beyond intellectual comprehension. Islam did not fulfil this requirement: it insisted on a co-ordination of the physical and spiritual aspects of life on a perfectly natural plane. In fact, its world-view was so different from the Christian, on which most of the West's ethical concepts were based, that to accept the validity of the one inescapably led to questioning the validity of the other.
As for myself, I knew now that I was being driven to Islam; but a last hesitancy made me postpone the final, irrevocable step. The thought of embracing Islam was like the prospect of venturing out onto a bridge that spanned an abyss between two different worlds: a bridge so long that one would have to reach the point of no return before the other end became visible. I was well aware that if I became a Muslim I would have to cut myself off from the world in which I had grown up. No other outcome was possible. One could not really follow the call of Muhammad and still maintain one's inner links with a society that was ruled by diametrically opposed concepts. But - was Islam truly a message from God or merely the wisdom of a great, but fallible, man ... ?
ONE DAY -it was in September 1926 - Elsa and I found ourselves travelling in the Berlin subway. It was an upper-class com-partment. My eye fell casually on a well-dressed man opposite me, apparently a well-to-do businessman, with a beautiful briefcase on his knees and a large diamond ring on his hand. I thought idly how well the portly figure of this man fitted into the picture of prosperity which one encountered everywhere in Central Europe in those days: a prosperity the more prominent as it had come after years of inflation, when all economic life had been topsy-turvy and shabbiness of appearance the rule. Most of the people were now well dressed and well fed, and the man opposite me was therefore no exception. But when I looked at his face, I did not seem to be looking at a happy face. He appeared to be worried: and not merely worried but acutely unhappy, with eyes staring vacantly ahead and the corners of his mouth drawn in as if in pain - but not in bodily pain. Not wanting to be rude, I turned my eyes away and saw next to him a lady of some elegance. She also had a strangely unhappy expression on her face, as if contemplating or experiencing something that caused her pain; nevertheless, her mouth was fixed in the-stiff semblance of a smile which, I was certain, must have been habitual. And then I began to look around at all the other faces in the compartment - faces belonging without exception to well-dressed, well-fed people: and in almost every one of them I could discern an expression of hidden suffering, so hidden that the owner of the face seemed to be quite unaware of it.
This was indeed strange. I had never before seen so many un-happy faces around me: or was it perhaps that I had never before looked for what was now so loudly speaking in them? The impression was so strong that I mentioned it to Elsa; and she too began to look around her with the careful eyes of a painter ac-customed to study human features. Then she turned to me, astonished, and said: 'You are right. They all look as though they were suffering torments of hell... I wonder, do they know themselves what is going on in them?'
I knew that they did not - for otherwise they could not go on wasting their lives as they did, without any faith in binding truths, without any goal beyond the desire to raise their own 'standard of living', without any hopes other than having more material amenities, more gadgets, and perhaps more power...
When we returned home, I happened to glance at my desk on which lay open a copy of the Koran I had been reading earlier. Mechanically, I picked the book up to put it away, hut just as I was about to close it, my eye fell on the open page before me, and I read:
You are obsessed by greed for more and more Until you go down to your graves.
Nay, but you will come to know! Nay, but you will come to know! Nay, if you but knew it with the knowledge of certainty, You would indeed see the hell you are in. In time, indeed, you shall see it with the eye of certainty: And on that Day you will be asked what you have done with the boon of life.
For a moment I was speechless. I think the book shook in my hands. Then I handed it to Elsa. 'Read this. Is it not an answer to what we saw in the subway?'
It was an answer: an answer so decisive that all doubt was suddenly at an end. I knew now, beyond any doubt, that it was a God-inspired book I was holding in my hand: for although it had been placed before man over thirteen centuries ago, it clearly anticipated something that could have become true only in this complicated, mechanized, phantom-ridden age of ours.
At all times people had known greed: but at no time before this had greed outgrown a mere eagerness to acquire things and become an obsession that blurred the sight of everything else: an irresistible craving to get, to do, to contrive more and more -more today than yesterday, and more tomorrow than today: a demon riding on the necks of men and whipping their hearts forward toward goals that tauntingly glitter in the distance but dissolve into contemptible nothingness as soon as they are reached, always holding out the promise of new goals ahead - goals still more brilliant, more tempting as long as they lie on the horizon, and bound to wither into further nothingness as soon as they come within grasp: and that hunger, that insatiable hunger for ever new goals gnawing at man's soul: Nay, if you but knew it you would see the hell you are in ...
This, I saw, was not the mere human wisdom of a man of a distant past in distant Arabia. However wise he may have been, such a man could not by himself have foreseen the torment so peculiar to this twentieth century. Out of the Koran spoke a voice greater than the voice of Muhammad ...
Janab Engineer Saheb has rightly said, “The Quran gives
absolutely equal rights to man and woman without any discrimination”. The big question arises, why did the educated Muslims not
understand it? It is so easy for any Tim and dick to comprehend and criticize
but not the Muslims. What an irony!