By Khaled Abou El Fadl [FNa1]
The purpose of this essay is to answer the following question: Is there a moral duty to obey an Islamic law in an Islamic state? Such an inquiry demands that we define what qualifies as an Islamic law. Furthermore, we will have to attempt a simple definition of an Islamic state, and examine the interrelationship between an Islamic state and Islamic law. Once this is accomplished, we move to identifying the nature of morality under Islam. More precisely, the inquiry must include a probe into the dynamics between morality and Islamic law.
This is a normative--not a descriptive--essay. My aim is not to provide a survey of the various schools of thought or the many juristic approaches that wrestled with the relationship between law and morality throughout Islamic history. In the Islamic legal tradition, there is indeed an extensive and rich body of philosophical discourses on the source and nature of ethics (akhlaq), and on whether an ethical norm could serve as the basis of a binding legal obligation in an Islamic legal order. Muslim jurists writing in the pre-modern era generated detailed discussions on whether every legal rule must also be treated as an ethical obligation and on whether every ethical norm must necessarily give rise to a binding legal obligation. Engaging these detailed micro-level discourses would be an extremely worthwhile task, but this must be left to a much more extensive and exhaustive study. The purpose of this study is much more modest and limited--I contend that given the purpose of Islamic law, Muslims should not treat the technical legal determinations of Islamic law as the objective truth of God. In this context, I assume that the God-given truth is by nature objective in that it is unconditional, unwavering, absolute, and eternal. Meanwhile, human beliefs and judgments, regardless of how firmly and absolutely they may be held or asserted, are by nature subjective in that they are relative, conditional, and imperfect.
I argue that an examination of Islamic law and morality cannot be successful without taking into account the purpose of Islamic law as a guiding principle. If the purpose of Islamic law is to be served, then what qualifies as Islamic cannot be equated with morality. Islamic principles are objectively based because they are compelled by God. However, those objective moral principles are subjectively realized and understood. Islamic law attempts to subjectively implement those objective principles, and thus, there is no moral duty to obey the subjectively based Islamic law.
The question of how the law becomes known has occupied the minds of Muslim jurists for a long time. As early as the eighth and ninth centuries A.D., Muslim jurists had developed a sophisticated methodology for investigating and deducing what could be deemed Islamic legislation--this jurisprudential methodology is known as usul al-fiqh, literally meaning: the sources for comprehension or understanding. In the early centuries, the heated debates, and at times even hostilities, centered around the place and role of ethical principles and reason (rationality) in the development of the religious tradition. [FN1] At one pole was the Mu'tazilis who argued that justice is cognizable through human reason, and at the other, the traditionalists (ahl al-hadith) argued that reason is necessarily whimsical and capricious, and that justice is only realized through revelation.
However, in modern times, this debate has formally subsided. Naturally, while there are liberals, like Muhammad Iqbal, who wish to give rationality and reason a far greater role in the articulation of Islamic law, there are also fundamentalists, like Al Mawdudi, who look to the law as the source of all morality and justice. The secularists exclude Islamic law from any public function. But, whatever the nature of the debate that exists between these groups today, it is no longer phrased in terms of morality and law. The issue of Islamic law and morality has dropped from all consideration in the modern age. Thus, the purpose of this essay, while ironically not original by traditional standards, is novel by modern standards.
The implications of the concerns addressed here are not purely theoretical. Rather, as the debates between naturalists and positivists in the Western world demonstrate, theories of what law is, its functions and its duties, if any, reflect beliefs about order, certainty and diversity. [FN2] The duty to obey laws will have overriding implications on what type of state Muslims are capable of creating.
This essay is motivated by two considerations. First, as a point of departure it accepts that the Qur'an and the laws of God are binding, and that an Islamic theory has to be expressed within the framework of Islamic principles. Second, it maintains that if an Islamic state ought to exist at all, such a state must maintain the dynamism and vitality of Islamic law and morality, and that such a result is not possible without maintaining the liberty and innovative capacities of the individual. Whether in the age of nation-states the idea of an Islamic state, similar in some regards to a Jewish state or a Christian state, is a defensible and coherent concept is something that I will not tackle in this essay. To date, countries such as Iran, Saudi Arabia, Pakistan, and Sudan at one time or another have claimed to be Islamic states, but the elements and conditions that must be fulfilled before a state may claim the status of being “Islamic” is far from clear. One may wonder if a state that applies the letter but not the spirit of Islamic law may qualify as an Islamic state. Similarly, contemporary Muslims have not begun to consider whether an Islamic state is defined more by its positive laws or morality, and which of the two ought to be given priority in the case of a conflict between the two. Cantwell Smith once wrote, “Islam is today living through the crucial, creative moment in which the heritage of its past is being transformed into the herald of its future.” [FN3] Smith is certainly correct and what he says about Islam, as a faith and religion, also applies to Islamic law, as a legal system. This essay is an attempt to come to grips with a problem at the heart of the Islamic tradition and with an issue that will have a great impact on the role that Islamic law will come to play in the lives of Muslims in the present and future.
III. The Nature of Islamic Jurisprudence
“Lo, We offered the trust unto the heavens and the earth and the hills, but they shrank from bearing it and were afraid of it. And man assumed it. Lo! He hath proved a tyrant and a fool.” [FN4] The message conveyed by this verse is that humans accepted God's trust, and with it, they accepted a laborious test. Humans are to be held accountable for their decisions and actions here and in the final life. God's choice to trust humans was elicited by our gift of rationality, but, at the same time, it created a burden of accountability. The failings of humanity are its own, and the successes are its rewards.
This burdensome privilege is not confined to the trust God placed in humans. He also made human beings His viceroys. “We appointed you viceroys on the earth--that We might see how you behave.” [FN5] Humans in general and Muslims in particular, must meet God's expectations. The purpose of humans in life is to realize the righteous path of God, but this entails an everlasting moral struggle to attain that Divine path. [FN6] The Qur'an speaks of this moral and righteous path--the path of Divinity itself--as an existing objective fact. It is as if the genuinely and truly moral and righteous are co-extensive and inseparable from the Divine. The Qur'an often uses terms such as zulm (injustice), adl (justice) or salih (the good) in an objective fashion, as if they are ontological realities--independent and objective. The Divine is the very embodiment of all that is moral, ethical, good, and right, and therefore, the presence of the Divine as an objective reality necessarily means the existence of ethical values such as justice and goodness as an objective reality. Accordingly, it is meaningless for one to claim that God in fact does exist but that justice or goodness does not. Partial justice or partial goodness could be contextual, contingent, and relative, but absolute and perfect justice or goodness are not. Absolute and perfect justice and goodness are attributes of the Divine because the Divine embodies all that is right and good. These Divine embodiments are objective and not subjective realities. The objective entails the absolute and Divine as the Divine is non-contingent and objective.
Critically, God knows the righteous path, but humans do not--they need God's guidance and revelation to reach out towards what the Qur'an describes as “al-sirat al-mustaqim” (the righteous path). In the sura (chapter), that introduces the Qur'an, God exhorts Muslims to say, “[G]od show us the righteous path; the path of those whom thou hast bestowed Thy grace upon. . . .” [FN7] But, God, alone, ultimately, knows what the right path is; “He knows who has wandered from His path, and He knows better who is rightly guided.” [FN8]
It might be important to point out that there is no formal church or priesthood to guide people in Islam. So other than the Qur'an and the teachings of the prophets, humans must rely on their own faculties in realizing the true moral path. Furthermore, according to the Qur'an, humans cannot escape responsibility or accountability by relying on customary practices or the teachings of their forefathers as an excuse for failing to seek the righteous path. They will not be excused for deferring to the commands of their superiors or for blindly adhering to the prevailing social mores or inherited religious beliefs and practices. This does not mean that the technical rulings of Islamic law are to be known intuitively or that any conceited person with a delusional sense of jurisprudential acumen may pontificate as to the details of the law. We are not yet talking about Islamic law; we are only addressing the relationship of the individual vis-à-vis the righteous path as an objective reality. In other words, we are talking about the basic moral and ethical precepts, and the responsibility of individuals to seek to live an ethical and moral life. The Qur'an insists that a person may not cite the moral irresponsibility or the immorality of others as an excuse for his or her own moral failures.
In this context, it is critical to differentiate between responsibility or obligation and accountability or liability. Each and every human being has a moral obligation or responsibility to seek out and recognize al-sirat al-mustaqim (the righteous path) or objective ethical precepts, which are inseparable from divinity itself. The Qur'an describes the realization or recognition of the path, which includes believing in God, as an act rising out of rational cognition or a matter of common sense. The Qur'an describes itself as a book of remembrance (dhikr), and maintains that its most essential function is to remind people of the reality of Divinity--a reality that includes the presence of God and all that this presence implies. The Qur'an emphasizes repeatedly that the instruments for realizing or recognizing the truth is cognition (fikr), reason ('aql), and remembrance (dhikr). In this context, the truth is Divinity and Divinity is the truth, but, as already mentioned, recognition of Divinity necessitates the recognition of the values that attach themselves to the Divine--values such as justice, fairness, compassion, mercy, honesty, and goodness. The Qur'an intimates that many elements of the sirat--but not the whole integrated sum of the righteous path-- is an innate part of the human mind. As God created humans, he inspired unto them an intuitive liking for the path of righteousness. “And so, set they force steadfastly towards the [one ever-true] faith, turning away from all that is false, in accordance with natural disposition which God has instilled unto humans. . . .” [FN9] The Qur'an continuously prompts people to think, reflect and ponder as a way of reaching out towards the truth of God and His path. The necessity of such thought and reflection is affirmed by the Prophet's saying, “Thought of one hour is better than the prayers of a whole night.” [FN10] Elements of the righteous path or, in other words, basic moral precepts are accessible to human beings through the act of diligent remembrance and reflection or even by an honest willingness to open one's heart to the reprimands of a critical intuitive conscience. [FN11] It is worth noting that it is possible that a person might seek to realize elements of the righteous path while neglecting to pursue the righteous path in its entirety. It is possible to seek to be merciful, for instance, but neglect to properly reflect upon the demands of justice. But more importantly, it is possible that a person might seek to realize moral and ethical precepts while failing to seek out the Divine. The righteous path in its fullness is woefully incomplete and inadequate without believing in God. The Qur'an does appear careful to emphasize that although many elements of the righteous path can be sought out through intuitive and rational faculties, the realization of the righteous path in its entirety and fullness needs something extra--needs an added power: it needs Divine bliss or grace. To be possessed of true wisdom (hikma), where one fully understands the balance (al-mizan) or how all the elements fall into place to form the integrated whole requires spiritual and physical exertion and moral diligence, which in turn is rewarded by an act of grace (hidaya) that allows such a fortunate soul to realize the sirat al-mustaqim in its fullness.
The Qur'an describes the Divine as pure and unadulterated light, and it insists that those who deny God's existence are spiritually blind. Recognizing or believing in the Divine is as if making a decision to remove the blindfolds and if one does so, he enables himself to see the light that has been there all along unaffected by the heedlessness of the blind. Moreover, this Divine light has qualities and attributes that exist completely unaffected by the denials of the blind or the incredulity of the obstinate. The precepts and values of ethics and morality are what I have been describing as the qualities or attributes of the Divine. Metaphorically, moral and ethical precepts are like luminous supernal elements within the light of God. It is possible to seek out and recognize these luminous elements while denying that the Divine or its light exists. From a theological perspective, this means that a person who does so is partially blind--he can see particular luminous substances but does not see the full celestial light.
All human beings have an affirmative individual responsibility and obligation to see or recognize as much of the light as possible. Effectively, this means that each person is obligated to be as religiously pious and devout and as moral and ethical as possible. However, accountability for the realization of this responsibility is an entirely different matter than the obligation itself. Conceptually, the fact that human beings are obligated to seek the path does not necessarily mean that they are accountable for failing to realize the path or even accountable for failing to seek it in the first place. In Islamic theology, temporal accountability is entirely separable from Divine accountability. Divine accountability is something that is in the sole discretion of God--no one can tell God who to forgive or punish. Muslims are asked to believe that God is just in the most perfect sense. Therefore, while Muslims may believe that God, being perfectly just, will give each person his due, no one can presumptuously claim to know what the application of Divine justice will entail. For instance, it might be that being treated cruelly by one's parents or that as a child one has suffered a cruel upbringing will be considered as mitigating factors when judging a person who has failed to realize the ethical precept of mercy. But other than believing that God will judge people with impeccable justice, human beings cannot pretend to know what God's judgment will be in the end. Temporal, as opposed to Divine, accountability is investigated through the instruments of Islamic jurisprudence. Fundamentally, Islamic jurisprudence is concerned with investigating and establishing the obligations (takalif al-halal wa al-haram) and also the temporal accountabilities or liabilities of Muslims (al-mas'uliyyat al-jina'iyya wa al-madaniyya). Another way of understanding the functions of Islamic jurisprudence is to state: the quintessential role of Islamic jurisprudence is to search and establish the methodological tools for the exploration and realization of “rights” (huquq)--whether these rights belong to God or to humans. Rights, however, exist objectively--their existence is not contingent or conditioned on human recognition. Furthermore, if human beings recognize a particular right (haq), it does not necessarily follow that people have the power to hold individuals liable for violating both the rights of human beings and God. Moreover, assuming that in theory a right is recognized or acknowledged, whether the state or a government has the jurisdiction or legal power to enforce such a right depends on a variety of factors that I will elaborate upon below. At this point, it is important to note that the powers of the state are not co-extensive with objective truths or rights. Put differently, just because there exists an objective righteous path, it does not logically follow that a government, which identifies itself as Islamic, has the legal power or jurisdiction to compel adherence to such a path.
According to Muslim legal theory, the purpose of Islamic law is to seek after the righteous path--to try to come as close as possible to it, and in doing so achieve the welfare of the people. In Islamic law, achieving the welfare of the people (tahqiq masalih al-'ibad) is a term of art that is intended to acknowledge that the pursuit of abstract values, such as justice, compassion and mercy, is supposed to translate into concrete and tangible benefits to be enjoyed by human beings.
Muslim and non-Muslim writers often refer to Islamic law as shari'a law, which is not entirely accurate. Linguistically, the word shari'a literally means the fountainhead that quenches the thirst of living beings or the way to goodness. Jurisprudentially, the shari'a is the revealed guidance of God--perfect, complete, incorruptible, immune, and immutable. In a sense, the shari'a provides the skeletal ethical and moral norms of the Islamic legal system.
The main, but not exclusive source of the shari'a is the Qur'an, which focuses on general ethical and moral principles and a few specific laws. Roughly, there are eighty verses in the Qur'an that might be seen as laws in the strict sense, but the Qur'an is mainly a book of ethical and moral teachings. The specific laws that are considered a part of the immutable shari'a must fulfill two criteria: first, they must be stated by the Divine in a clear, specific, and unambiguous fashion, and second, the specific law must by its very nature fully embody the ethical principle that it is intended to articulate. Examples of such laws would include the command to pray five times a day, fast during the month of Ramadan, or give alms, and the prohibitions against extra-marital sex, slander, or the consumption of alcohol and pork. Another example would include the Qur'anic command that all contracts be consensual and free from coercion, fraud, deception, or misrepresentation, and also that parties to a contract must in good faith make every effort to honor their promises. Muslim jurists argued that laws such as these clearly mandated by God, are stated in an unambiguous fashion in the text of the Qur'an in order to stress that the laws are in and of themselves ethical precepts that by their nature are not subject to contingency, context, or temporal variations. It is important to note that the specific rules that are considered part of the Divine shari'a are a special class of laws that are often described as Qur'anic laws, but they constitute a fairly small and narrow part of the overall system of Islamic law. In addition, although these specific laws are described as non-contingent and immutable, the application of some of these laws may be suspended in cases of dire necessity (darura). [FN12] Thus, there is an explicit recognition that even as to the most specific and objective shari'a laws, human subjectivity will have to play a role, at a minimum, in the process of determining correct enforcement and implementation of the laws.
Some modern writers have argued that shari'a law, not just human interpretation of shari'a law, may be suspended if it is in the public interest to do so (al-maslaha al-'amma). Effectively, these writers erroneously equate public interests with individual cases of necessity and treat the two as having the same effect upon shari'a law. The problem, however, is that this logic implies that public interest, however it may be defined, on a scale of shari'a values is the highest possible value that trumps all others. If public interest is equated with political interests or the greater attainment of happiness, this means that shari'a promotes a strictly utilitarian value system. The claim of an exception based on necessity is of an entirely different nature than the suspension of shari'a laws on the basis of public interests. A claim of necessity is but a tool invoked in order to protect a moral principle or ethical value. But a claim of public interest is premised on the idea of the greater good or preserving the overall welfare of people. An overriding utilitarian exception would be inconsistent with the objectivity of the shari'a and to its claim of any absolute moral values. There is no indication that the Qur'an intended to endorse unmitigated subjectivism or moral relativism as the foundation of shari'a law. I am not claiming that Islamic law does not recognize the incorporation of public interests in limited cases where such a reference does not conflict with the higher moral values of shari'a. I am also not claiming that Islamic law limits itself to the recognition of cases of individual necessity or that Islamic law does not recognize cases of public necessity. In fact, because Islamic jurisprudence does recognize exceptions to the law in cases in which the necessity claimed is of a public nature, some contemporary jurists conclude that the difference between necessity and public interest is only a matter of degree--not fundamental in nature. This however is not correct--necessity suspends the application of the law in order to preserve a higher value, but claims that all laws could be altered in order to serve a general public interest (maslaha 'amma) renders the law subject to an overarching and overriding principle of general welfare or well-being. With such an overarching utilitarian commitment it becomes difficult to defend the objectivity and absoluteness of any ethical or moral value. Every ethical or moral value becomes contingent on its ability to serve the general welfare or well-being of people, otherwise it is rendered invalid. This is exactly why modern jurists who relied on the concept of public interest as the save-all measure for Islamic legal reform have tended to create an unprincipled legal system that was made to endorse a very wide range of individualized and even idiosyncratic preferences.
The invocation of public interests as a way of creating legal exceptions became a rather visible issue in modern times because of the nature and role of the so-called Qur'anic law, which is supposed to be a part of the immutable shari'a. Qur'anic laws or the special class of specific ethical commandments, although a small and narrow part of the legal system, are of considerable symbolic significance. This particular set of laws includes a group of criminal sanctions that are known as the hudud punishments. [FN13] Underscoring the significance of the hudud punishments is the fact that most of these laws implicate the mixed rights of God and human beings (huquq mukhtalita). I will comment at greater length about the complex issue of the rights of God and people, but for now it is important to note that the so-called hudud punishments, which include lashing, stoning to death, and the severing of hands, are the most controversial aspect of shari'a law in the modern age. For many Muslims, they have become the indisputable proof of the unique identity of the Islamic legal system and also the symbol for Muslim cultural and political autonomy. For many non-Muslims, however, hudud punishments are considered medieval, draconian, and barbaric. Furthermore, many non-Muslim and Muslim scholars and writers, who are poorly informed about Islamic jurisprudence, treat these laws as if they are the very heart and core of the Islamic legal system. Consequently, many have come to the rather inescapable conclusion that shari'a law is fundamentally incompatible with modern conceptions of human rights.
There is no question that most medieval Muslim jurists considered the hudud punishments to be part of the immutable and eternal shari'a and therefore they rendered the hudud punishments not subject to change, modification, or abrogation. Whether intentionally or not, most medieval Muslim jurists created the impression that it is not possible to implement shari'a law without enforcing the hudud punishments and that, in general, the hudud are integral to the Islamic legal system. Interestingly, however, hudud punishments were hardly ever implemented in Islamic legal history, for the most part because Muslim jurists made the evidentiary requirements and the technical pre-conditions for the enforcement of the hudud practically impossible to fulfill or because they admitted so many mitigating factors to the point that only a criminal who was most determined to be punished could be made to suffer the hudud penalties. [FN14] However, whether the so-called hudud crimes ought to be considered an immutable and permanent part of shari'a warrants re-thinking. As mentioned earlier, generally, the shari'a embodies the characteristics and attributes of Divinity, which consist of general ethical and moral teachings. However, Muslim jurists treated specific laws, which are explicitly commanded by God, to be a part of the eternal shari'a if these laws are in and of themselves ethical precepts that by their nature are not subject to contingency, context, or temporal variations. Dealing with the hudud, Muslim jurists focused on the punishments and not on the behavior or conduct that warranted the penalties. In doing so, they erroneously rendered some of the punitive measures mentioned in the Qur'an and Prophetic traditions sacrosanct and eternal. But there is no plausible reason to believe that the attributes or characteristics of Divinity or that the ethical precepts of Islam are embedded in specific punishments--whatever these punishments may be. If the Divine Will was to safeguard the hudud punishments, either as embodying the attributes and characteristics of God or essential ethical and moral values, it would be incongruous for such punishments to be contingent, contextual, or subject to mitigation. In my view, the classical approach, which tended to sanctify particular punitive measures, and treat them as if part of the immutable and eternal shari'a is quite unfortunate. What ought to be considered immutable and eternal are the values that the punitive measures were intended to safeguard, and not the punitive measures themselves. The severity of the punishments mentioned in the sources is an indication of the importance of a particular value to the shari'a. Therefore, the punishments prescribed for fornication or stealing are powerful indicators of the value that the shari'a places on chastity and on not stealing. The punishments themselves, however, are contextual--they depend on a variety of factors such as mitigation; evidentiary certitude; the intent and purpose of the individual perpetrator; the reliability and accountability of the judicial system at a particular time and place; community standards; sociologically dependent and shifting notions of cruelty, barbarity, and mercy; and the possible deterrence value of such punishments within the context of a certain age and place. As already noted, the classical jurists were keenly aware that to the extent possible, an Islamic judicial system ought to avoid applying the hudud punishments. In fact, in a well-known set of traditions, the Prophet is reported to have taught that in criminal matters any doubt must be construed in the light most favorable to a defendant. But moreover, in the case of hudud, the Prophet instructed, that Muslims ought to seek out the shadows of doubt in order to avoid having to inflict a hadd (singular of hudud) punishment against a defendant. According to the Prophet, if a person knows that someone has committed a hadd crime, it is better to help the criminal repent than to expose the criminal by turning him in to the authorities. Moreover, bringing hadd charges against a suspect that ultimately the accuser is unable to prove might in some circumstances subject the accuser to punishment, and sneaking and spying is not a valid way of proving a hadd crime. This principled recalcitrance and various safeguards against a wide application of the hudud is a clear indication that the hudud punishments themselves do not embody an ethical or moral value. [FN15] The value is in the unethical and immoral behavior that the hudud are intended to deter, and therefore, for instance, it is the ban against the consumption of alcohol that is immutable and eternal and a part of the shari'a, and not the punitive measure prescribed in the text for the commission of such an offense. I do realize that accepting this argument would constitute nothing short of a radical paradigm shift in the way that Muslims think about the so-called hudud punishments. Nevertheless, I believe that this paradigm shift is critically important for the internal coherence of the shari'a system--it is reasonable to deal with the ethical and moral values of the shari'a as immutable, eternal, and absolute, but any positive and context-based laws, such as the laws of kitaba relating to the freeing of slaves for instance, are temporal and changeable.
There is yet another aspect to understanding shari'a and its role that underscores the necessity of the advocated paradigm shift. Beyond ethical and moral principles and the specific set of laws that inherently embody an ethical or moral principle, there is another archetypal sense to shari'a law. Shari'a is the Divine law as it exists in God's Mind, known with thoroughness and perfection only to God. The shari'a is Divine because it emanates from God and it exists only through God. Any human legal system sets in motion certain potentialities--a potential, for instance, for achieving justice, equity, fairness, security, safety, and stability--but the ability of a legal system to pursue, leave alone achieve, any of these potentials is highly contingent; the pursuits of a legal system are dependent on a set of complex socio-political and economic conditions as well as the sincerity, knowledge, intelligence, and diligence of the typically large number of human beings who grease and turn the wheels of a legal system. The shari'a, however, is not only a possibility or potential; it is the fully realized and fulfilled just order possible only from and through God. The shari'a is Divine only because it is not contingent on the human element, but it is a utopian reality existing only in the realm of the Divine. But, most importantly, the vast majority of Muslim jurists considered the shari'a--in its true sense, as the Divine verity, a utopian inspiration, the perfected ideal, and as the achievement of immaculate justice and consummate moral existence--to be unattainable and unachievable by human beings.
As God's viceroys (khulafa' fi al-ard) entrusted with the preservation and caretaking of God's earth, human beings have been commanded not to corrupt the earth, to strive to follow the Divine path, and to act as witnesses on God's behalf by calling for what is moral and good, and resisting what is immoral and depraved (al-amr bi'l ma'ruf wa al-nahy 'ann al-munkar). [FN16] The obligation to command the good and forbid the evil is fundamental to honoring God's trust and covenant with human beings as His viceroys and agents on the earth. The elements of the Divine covenant or trust also identify the nature of the obligation owed by Muslims towards the shari'a. In order to discharge God's covenant or trust, human beings are commanded to engage in a process--the process mandates that there be a conscientious and diligent search or investigation for what is good and what is bad, and then engaging in the process of teaching, counseling, and enforcing. If Muslims had unobstructed and total access to God and God's knowledge, there would be no need to engage in the process of searching because the good and evil would become fully transparent. Although God is the perfect embodiment of goodness, and the exact antithesis of all that is evil, human beings do not have access to God's knowledge--the most that human beings can claim on any specific problem, after a conscientious and diligent search, is a probability of belief that they have succeeded in finding the truth. Hence, human knowledge cannot be equated with the truth of Divinity, but the very process of searching is morally praiseworthy even if human beings are capable only of approximating and coming close to the truth. Moreover, human beings may attain parts of the truth, but they can never embody the whole truth, and in my view, if a government, group, or people arrogantly claim that they are capable of representing the Divine truth or Will, then they have committed a grievous moral offense by associating partners with God. [FN17]
The Islamic theology of truth and its epistemology of knowledge had two main consequences: one, Islamic law was divided into two essential components, shari'a and fiqh. Two, Islamic law is not represented by a code of law or a single jurisprudential school; Islamic law consists of several jurisprudential schools, all of which are considered equally authoritative and legitimate and are treated as alternative but co-equal pathways to the Divine Truth and Will.
Fiqh is a jurisprudential, not an ethical or moral, science; it is the science of studying the principles and dictates of shari'a in order to deduce specific laws that pursue and serve the objectives and principles of shari'a. The shari'a is divine guidance; it emanates from God and by its very nature has an objective, non-contingent existence. Fiqh, however, is thoroughly human; it is expected to represent a concerted, systematic, and rigorous jurisprudential methodology for investigating, comprehending, and seeking after and achieving divinity in the life of human beings. In essence, fiqh is the human implementation of the Divine guidance. More concretely, fiqh is the process by which specific legal determinations are derived from the sources and principles of the shari'a in order to serve and give force to the objectives and purposes of the Divine will.
Literally, fiqh means understanding, and the word itself indicates how Muslim jurists thought of and approached the field of jurisprudence. Although it has become common in Western scholarship to refer to shari'a and fiqh as Islamic law, in reality neither shari'a nor fiqh is law in a positivist sense. Shari'a is more like a constitutional ideal or a multi-faceted grundnorm in the Kelsian sense of the word. Fiqh is a jurisprudential methodology that is employed to produce legal opinions and determinations. In terms of its relationship to shari'a, the process of fiqh cannot be based on whimsical, unsupported, irrational, idiosyncratic, or self-serving methods. The very credibility of any particular school of fiqh depends on its ability to persuade other legal specialists, as well as the laity, of the soundness, integrity, and rigor of its methodology, and not necessarily the correctness of its results. If the methodology or the process by which a particular school seeks to investigate and give effect to the shari'a is seen as whimsically or idiosyncratically unpredictable, the school's legitimacy is not recognized and it ultimately becomes extinct. The epistemological attitude that marked this process is summed-up in a statement variously attributed to al-Shafi'i, Abu Hanifa, and Malik, the eponyms of three of the main surviving schools of jurisprudence, which asserted: “As a matter of law, my attitude must be that my opinion is presumptively correct and the opinions of others (i.e. other schools of law) is presumptively wrong. But I must concede that my opinion is possibly wrong and opinions of others are possibly correct.”
A school of legal thought is known as a madhhab, which literally means: a way, a method, an approach, or an orientation. The most remarkable fact about the institutional history of the madhhabs is that their development, as well as their ultimate fate, which for many schools included becoming extinct, was not determined by the state or some authoritative ecclesiastical authority. Especially in the early centuries of Islam, a madhhab's survival and success depended on a variety of incalculable factors including the charisma of the founder, the dedication and loyalty of his students, the geographic location of the school and its typographical significance, the number of private endowments created to support the teachers and students of a particular madhhab, the ability of the followers of a madhhab to earn respect and deference in public debates held with the students of competing madhhabs, the comprehensiveness and relevance of the texts produced by the founder and the students of a particular school, and sometimes sheer luck or destiny. [FN18] The emergence of a law school and its development was evolutionary as an interpretive community formed around the teachings of a particular school and then further cumulative communities built upon the work of their predecessors. The absence of a regulatory institution meant that in the first three centuries, Muslims witnessed the emergence of an estimated one hundred and thirty schools of thought, all of them constituting legitimate representatives of the shari'a. Eventually, all of the schools except four Sunni, three Shi'i, and one Ibadi became extinct. Nevertheless, the law books and legal views of several of these extinct schools are still extant today.
The nature of Islamic law is similar to the Anglo-Saxon Common Law System except that the mechanics of Islamic law are more complex. Utilizing the methodology of fiqh, jurists reach an opinion about what the law of shari'a on any particular matter ought to be. There is a core set of rulings mostly related to rituals that the vast majority of jurists agree on, but beyond this Muslim jurists have a tradition of disputations and diversity of opinions. In fact, a single school of legal thought could be represented by several legal orientations, all claiming to be loyal followers of the eponym of the school. For instance, the Hanafi school of legal thought, founded by Abu Hanifa, was represented by three main orientations, that of Abu Yusuf, al-Shaybani, and Zufar. The legal opinion (ra'y fiqhi) of a jurist enjoys only persuasive, not mandatory, authority--it is issued by a jurist to convince, not to compel people to follow it. Similarly, a fatwa is a non-binding legal opinion on a novel question of law. Contrary to what many in the West believe, a fatwa is nothing more than a legal opinion that has no mandatory power, except that technically a fatwa deals with unprecedented questions of law. When a legal opinion or fatwa is elevated to the status of a positive law, which is compulsory and mandatory, it is called a hukm.
In many ways, the fruit of legal labor is like a basket full of diverse legal deductions, interpretations, and conclusions all competing to give a truer expression of shari'a. The values of the shari'a mandate that Muslim jurists not just look to the relevant text, but that they also think about justice, mercy, alleviating hardship, serving the public interest, and at times, even weigh in the prevailing customs of a particular people. The legal opinions of a school of thought become mandatory and enforceable in three situations: First, if an individual becomes persuaded that a particular school of legal thought warrants deference and obedience because it has succeeded more than any other school in fulfilling the ideals of shari'a. Second, if the state appoints a jurist from a particular school as a judge (qadi). Muslim jurists developed one of the most complicated conflict of laws jurisprudential systems in the world, which regulates what law a judge enforces and when. Generally, however, a Hanafi judge, for instance, was appointed by the state to implement Hanafi law. If the case involved a novel legal issue, usually litigants tried to obtain fatawa (plural of fatwa) from disinterested jurists, who were usually employed as law professors, in order to bolster their case and persuade the judge to issue a ruling in their favor. Therefore, similar to the American practice in litigation involving a war of experts, classical Islamic judicial practice often involved a war of fatawa. However, it warrants reiteration, the fatwa was nothing more than persuasive authority, but only a judge had the power to issue a binding legal decision (hukm). In certain situations, if both litigants belonged to a particular school (for example, Hanafi), and the judge belonged to another (for example, Maliki), the judge would be obliged to render a judgment according to the choice of law chosen by the litigants (i.e. Hanafi law). Finally, the third situation when the legal opinions of a particular school became binding and enforceable was when the state or rulers chose the legal doctrine of one school or another and applied it as the law of land.
It is critical to note that in the second and third situations, either in the case of the law becoming binding through judicial decree or a state decree, Muslim jurists were keen on explaining that the enforceable law became binding not as a matter of right but only as a functional principle because law and order is a practical necessity. In other words, the law chosen and enforced by the judge or the state becomes binding and must be obeyed as a matter only for the sake of order and stability, not because, as matter of right, this law is necessarily more consistent with the demands of shari'a. Put differently, Muslim jurists distinguished between the law enforced by the state and the law as an ideal type--the law enforced by the state, either directly or through a delegation of powers to a judge, had to be obeyed because, at the functional level, stability and order is in the public interest. Muslim jurists, however, readily conceded that the law enforced by the state could be morally inferior when compared to the alternatives. According to the majority of Muslim jurists, Sunni or even Shi'i, God is the final arbiter of the competing moral claims in the Hereafter. This did not mean that the classical jurists advocated blind obedience, political pacifism, or moral relativity. Quite the opposite; Muslim jurists argued that individual Muslims continue to bear the duty of advocating the good and forbidding the evil as a means of engaging and seeking to reform the law. The state should not be permitted to monopolize this moral obligation by claiming that it is performing the duty of enjoining the good and forbidding the evil on behalf of the public. Effectively, therefore, the state becomes its own critic and judge while usurping this solemn moral obligation and right from the populace. Through an institution known as the hisba, the state does have a formal mechanism for carrying out its obligation of enjoining the good and forbidding the evil. But while carrying out this obligation, the state is constrained by the law and by the executive role of the government as an enforcer of law, the individual carries out this obligation by interrogating the state and by exhorting the state to better fulfill the moral demands of shari'a--demands such as becoming more just, equitable, fair, charitable, merciful, transparent and honest or by becoming tougher on crime or corruption. Of course, an individual or group is expected to abide by the law of the land and not to resort to self-help measures under the guise of enjoining the good and forbidding the evil. Nevertheless, most classical jurists insisted that much more significant than any legal constraint, the legitimate master of an individual is his conscience, and therefore, if the individual firmly believes that the law requires him to commit a sin, then expressing his protests might not be sufficient. If the individual firmly believes that the state is commanding him to offend God, then he might have an affirmative moral duty to dissent by refusing to obey orders or act as, what today we would describe as, a conscientious objector. Classical Muslim jurists illustrated this issue by discussing immoral orders from a superior, such as if a person is commanded by a superior to murder an innocent person or torture a human being. From the point of view of religion and morality, the unlucky soul has no choice but to disobey and be forced to suffer the consequences. In the Hereafter, however, it is expected that God will reward the conscientious dissenter and punish the immoral superior. In exceptional circumstances, a large number of Sunni and Shi'i jurists argued, when injustices become widespread and the state consistently appears to flout God's moral laws (the shari'a), and it is more likely than not that rulers who are more moral and just could successfully replace the government that frequently corrupts God's earth, armed rebellion becomes legitimate and lawful, and in some cases even an affirmative obligation. It is noteworthy that the Qur'an frequently calls for defending what it describes as “the oppressed in earth” (mustad'afin fi al-ard), and indicates that it is legitimate to resort to armed conflict in defense of this group. In the Qur'anic discourse, zulm (injustice) is treated as the quintessential act of corrupting the earth, and the highly immoral process of istid'af means the persistent inflicting of injustices upon a people by robbing them of their rights, causing them to suffer the indignity of feeling subservient (al-isti'bad wa imtihan al-karama), and taking away their sense of autonomy (yufdi ila dararin mulji') to the point that the victims come to feel that their sanctities have been violated (wa bi'l ta'addi 'ala al-hurumat), and ultimately, that they have become powerless (hatta yash'uruna 'anna la hawla lahum wa la quwwata). Considering the strong Qur'anic condemnation of the immorality of oppression, it is not surprising that many Muslim jurists were willing to endorse armed rebellions in exceptional situations. [FN19] This is all the more so considering that Muslim jurists, unlike their medieval counterparts from other legal traditions, were not willing to presume that the law of the state enjoyed Divine sanction or was necessarily consistent with shari'a. In fact, quite the opposite, Muslim jurists presumed that the law adopted and enforced by the state could never be equated with the perfect and ideal prototype of the shari'a. If the shari'a was perfectly attained, there would be perfect justice, and this is not possible except in the Hereafter. Moreover, if the ruler or state was immune from error, then the ruler or state would be equal in wisdom and merit to God, and such a claim would be blasphemous idolatry.
As should be apparent by now, Islamic law is not represented by a single or even several codes of law. Rather, Islamic law is a tradition of juristic deductions, disputations, and arguments. Although the Common Law doctrine of stare decisis is not as strongly present in Islamic law, precedents and what might be called cumulative jurisprudence played an essential role in the Islamic legal tradition. Each school of jurisprudence had its own set of precedents, and these precedents consisted of cumulative conclusions of generations of interpretive communities within the particular legal school of thought. Furthermore, the cumulative jurisprudential tradition of each school of jurisprudence included the fatawa issued by prominent jurists belonging to the school as well as the judicial determinations of the most prominent judges, again, belonging to each particular school. Each school of jurisprudence had its own set of authoritative texts as well as many commentaries on the texts. Since the Islamic juristic tradition was one that relied on the art of disputation for proving the legitimacy of any particular school; for gaining authoritativeness as well as winning disciples and dedicated followers; and for its ability to develop, adapt, and evolve; one of the most remarkable features of the large encyclopedic works on law was that the author would allow and document views and arguments of competing schools of thought. Therefore, for instance, a Hanafi work of jurisprudence, other than recording the legal opinions, responsa, judicial decisions and inner-disputations of Hanafi jurists, would record the opinions and arguments of the non-Hanafi living schools of jurisprudence, as well as the opinions of some of the most prominent extinct schools of thought. It would also document the disputations of Hanafi jurists with their opponents in an effort to defend the superiority of Hanafi doctrine over the competition. Every surviving jurisprudential school of thought, and even some of the extinct schools, produced several of these large encyclopedic books on law as well as shorter hornbooks written to aid students in learning the basics of the law and assist judges in deciding easy cases.
Contrary to contemporary perceptions and stereotypes, the Islamic legal tradition was highly non-deterministic, as demonstrated by the diversity of opinions that were a steady feature of the system. Moreover, far more than the substance, the processes of the law, which gave birth to considerable diversity, were greatly valued. Several traditions attributed to the Prophet or his Companions strengthened and legitimated the non-deterministic nature of the legal tradition. In a famous tradition attributed to the Prophet, it is reported that he said that differences of opinion and diversity is a mercy or blessing for my nation. In another tradition, it was reported that the Prophet had explained that whoever seeks to discover God's law will be rewarded whether the conclusions reached are correct or incorrect, except that those who prove to be correct will receive twice the reward in the Final Day as compared to those who tried and failed. In an even more tantalizing tradition, the Prophet seemed to say that what matters is the search, not the end of the search. He is reported to have said whoever searches for the law so long as he does so diligently and conscientiously whatever the result reached, he is correct. Of course, there is an extensive juristic debate on the precise meaning of these traditions and as to the considerable import they could have on the Islamic concept of law and morality. [FN20] But one clear consequence of this genre of traditions was that the search for the Divine shari'a law was seen as a highly praiseworthy moral act. The very process of searching, studying, contrasting, reflecting, and analyzing was seen as an act of worship, and as the most honorable form of jihad. [FN21] The search for the truth or the journey to shari'a, as it was sometimes described, was a form of partaking in the Divine. This logic, however, had a most interesting consequence: contrary to the claims of many Orientalist and Western scholars, the jurists are not the exclusive source of law in the Islamic tradition. According to the classical paradigm, jurists are no more than individuals, who dedicate their time and energy to acquiring the necessary skills, whether textual, linguistic, or analytical. This process of dedicated study enables them to spend their lives studying and investigating the Will of God and the demands of shari'a. They engage the Divine law, but their work product is not divine--it is only potentially so. If the state, whatever the mechanisms and method of government, chooses to adopt any of the juristic opinions and enforce it as law of the land, the law does not suddenly become any the more divine. The law maintains its status as a learned opinion regarding the Will of God and the requisites of shari'a except that it has now become a part of the law of the state. Adoption by the state does not elevate the moral status of a juristic law or, stated differently, a law that is the outcome of the process of fiqh. [FN22]
Other than the law of the fiqh, or what was often referred to as the law of the fuqaha', the state can legitimately pass its own law, which is supposed to serve the public interest (al-masalih al-'amma). This purely functional law had no claim to being potentially divine--it is considered a form of regulatory or administrative law that is borne out of economic or socio-political needs. Such laws are passed pursuant to al-siyasa al-shar'iyya (public policy interest) and considered legitimate as long as they do not contradict a clear shari'a prohibition or injunction. For example, under the guise of al-siyasa al-shar'iyya the state cannot usurp people's properties, execute its opponents, practice torture, or make the consumption of alcohol lawful for Muslims. These regulatory laws were legitimated by al-siyasa al-shar'iyya (a public policy interest), but they were given various names at different times and places such as tanzimat, lawa'ih, ijra'at 'idariyya, but most interesting and perhaps the most precise of all, they were called qawanin wad'iyya, which could be translated as circumstantial or secular law.
Because state regulatory laws were purely circumstantial, Muslim jurists did not document these laws in their shari'a books. Shari'a books or more precisely books on fiqh, meticulously preserved the juristic disputations, learned opinions, fatawa, and even judicial opinions in landmark cases or cases that raised novel legal issues, but regulatory laws of the state were intentionally excluded. This led some Western scholars to conclude erroneously that regulatory laws of the state were considered illegitimate because of their secular nature. Quite to the contrary, Muslim jurists realized that these secular laws were both necessary and legitimate unless they violated the ethical principles of shari'a. But it is exactly because Muslim jurists recognized that these laws made no claim to attempting to carry out the Divine Will, except indirectly by serving the public interest, that they excluded the secular laws from books of fiqh. Nevertheless, the regulatory laws of various Muslim dynasties in a variety of regions and epochs were documented and preserved in works written mostly by state bureaucrats.
Throughout the pre-modern period, Muslim jurists never took power, directly ruled, or formed anything resembling a theocratic government. Rather, they contented themselves with serving the shari'a as its faithful investigators and guardians, and became involved with the state only as judges and at times, as consultants to governors and rulers. At times, jurists of lesser rank and who were not considered luminaries in the field of jurisprudence were employed as bureaucrats in the awqaf (religious endowments) or as land surveyors and tax assessors. Interestingly, however, through the course of several centuries Muslim jurists debated whether it is proper for jurists to become involved with the state in any capacity whatsoever even as judges. Especially in the early centuries of Islamic history, in various geographic locations, a schism developed between academic jurists and judges, with academics arguing that serving as a judge compromises the integrity of the search for shari'a, because a judge must necessarily become influenced by the political biases of the state, and lose his impartiality and objectivity as a researcher. The significance of this historical debate is that it demonstrated the self-image of jurists--the self-defined socio-political role that the jurists perceived themselves as playing. Muslim jurists did not see themselves as the rulers or governors of the state, but they did see themselves as the guardians of the moral conscience, the teachers, and as the advocates for divinity in society. In contemporary terminology, the jurists played a critical role as a charismatic force in civil society, often playing the role of mediators between the rulers and the ruled. They explained and defended the rulers to the ruled, counseling obedience and patience for the sake of stability and order. But if the jurists became convinced that the rulers had become corrupters in the earth, and that their injustices had become unbearable, often they led rebellions or mass protests that forced the state to offer substantial concessions to the ruled. On many occasions, the jurists led mass-based movements that exerted considerable pressure on the state, forcing it to change policies on a wide range of issues ranging from the levying of excessive taxes to waging war against a menacing enemy.
In the modern age, Islamic law has gone through a major paradigm shift, which has transformed its very nature and role. Whether this paradigm shift is in anyway consistent with Islamic theology is a different matter. Instead of the classical paradigm in which Islamic law had a distinctly egalitarian, open-ended, non-deterministic, and cumulative evolutionary character, it has become deterministic, closed, resolute, and authoritarian. How and why this happened requires a separate treatment, but there is little doubt that as Islamic law is understood today, it is far more vulnerable to becoming co-opted by a theocratic state. [FN23] The transformations that took place in Islamic law were not the product of systematic jurisprudential thought. Instead, these transformations were a byproduct of political manipulations taking place in the context of competitions for power by authoritarian states and their opponents. Both the state and its opponents attempted to co-opt Islamic law and its institutions, and in an effort to enlist the Divine to their side, Islamic law and even God was essentialized, stereotyped, and forced to bolster the cause of either the state or the opposition. The inevitable result was the development of a huge gap between Islamic law, as it is presently constructed, and its intellectual roots. Today's Islamic law would be practically unrecognizable to a medieval jurist from the classical tradition. As Islamic law was robbed of its integrity as a jurisprudential discipline and increasingly became a mere tool in power-politics, the Islamic legal legacy lost its jurisprudential coherence, and this contributed greatly to the state of chaos that currently plagues Islamic law.
Throughout the pre-modern era, Islamic law proved itself resilient and dynamic and its diversity was indeed the secret of its strength and adaptability. The classical jurists stubbornly resisted any attempt at the codification of Islamic law, arguing that reducing the diverse juristic tradition to a single code of law not only would impoverish it but also would be a despotic act. Indeed the idea that God's vast and immeasurable Will could be represented in a single code did seem, to say the least, odd. As early as the 750's, Ibn al-Muqaffa' in his treatise, Risala fi al-Suhba, argued that the Caliph should take direct charge of Islamic law and force the whole nation to follow a single code from which no one could vary, but overwhelming juristic opposition forced the Caliph to abandon the project. Nevertheless, the Abbasid Caliph Abu Ja'far al-Mansur (d. 775) attempted to convince the famous jurist of Medina Malik bin Anas (d. 796) that Malik's book, al-Muwatta', should be adopted as the exclusive law of the land. Malik, however, rejected the Caliph's request arguing that no one school and no single book could claim exclusive access to the Divine truth. Malik also asserted that there are different juristic practices in the various regions of the empire and there is no legitimate reason to force compliance with a single school of thought. [FN24] Not surprisingly, this was not the only attempt by the state to impose a uniform law, or more accurately, to usurp the power to exclusively define the shari'a through the imposition of a state-sanctioned fiqh. But the jurists, as a professional community and a class of technocrats, strongly resisted these efforts, and insisted on their semi-autonomous status, which often led to confrontations with the state, and the persecution of a large number of jurists. [FN25] Ultimately, however, the classical jurists succeeded in protecting their relative autonomy from the state, and also in defending the principle of the equal validity of all the schools of jurisprudential thought. The success of the juristic class was greatly enhanced by the existence of a vast network of religious endowments, not controlled by the state, that funded the various schools and insured both their survival and autonomy. The powerful Ottoman state was the first to succeed in officially adopting a single school of jurisprudence as the official source of law in the land. Although the Ottomans chose Hanafi law as the law of the state, they never succeeded in making the Hanafi school the exclusive source of law in the empire or in de-legitimating the other schools of jurisprudential thought. In many areas of the Ottoman Empire, non-Hanafi schools and courts of law continued to prosper. In fact, before the advent of the puritanical Wahhabis, Mecca, the heartland of Islam, used to have officially recognized muftis from all the major jurisprudential schools, and four chief qadis (judges), one from each of the surviving Sunni schools, were appointed to the judiciary of the city.
In the nineteenth century, with the weakening of the Ottoman Empire and the shift in the balance of power in Europe's favor, a substantial portion of the aristocracy in various Muslim states headed to Europe for an education. The code-based Civil Law tradition prevailed in most European countries, and especially with the advent of Colonialism, European educated Muslims started to call for the codification of Islamic law as a means of achieving reform and progress. This eventually led to the first modern effort at codification; modeled after the French Civil Code, it was accomplished in Turkey with the completion of the Mejelle in 1876--a codified version of Hanafi civil law. However, it was Colonialism more than anything else that sealed the fate of Islamic law and for the worse.
Colonialism represented nothing short of a complete ravishing of Muslim societies and the ripping of Muslims from their roots. In this regard, Islamic law was no exception. One anecdotal incident regarding the adoption of the Napoleonic Code of law in Egypt will illustrate the point. With the emergence of Colonialism and the extension of Western influence, Khedive Isma'il Pasha (r. 1863-1879) reportedly requested that the Azhar seminary lead an effort to codify Islamic law. Isma'il explained that Western interests have greatly increased in Egypt, and that the Western powers complained that the law of fiqh, which is implemented by Egyptian judges, is too complicated, diverse, and full of disagreements and disputations. The Colonial powers were pressuring the Khedive to adopt a uniform law, and so the Khedive told the jurists of Azhar that unless they codify Islamic law, he would have to oblige the Europeans by adopting the Napoleonic Code. Incidentally, the Khedive himself did not speak or read Arabic, had received a Western education, and had no familiarity whatsoever with Islamic law. The Azhari jurists protested that the codification of Islamic law, the imposition of uniformity, and eliminating diversity would be unheard of and even heretical. The Khedive responded by adopting the Napoleonic Code as the law of the land. [FN26]
IV. The Islamic State
It is fair to say that no one is exactly sure what defines an Islamic state. There is no question that the Prophet Muhammad founded a city-state in Mecca and Medina and their vicinity. Many Islamic activists imagine that the Prophet's city-state can be transplanted into the context of the nation-state without any substantial difficulty. This, however, is an illusion. The challenges posed by the modern nation-state have led to a wide range of portrayals of the nature and function of the modern Islamic state, with some claiming that it is a democracy, a theocracy, or a state based on the rule of the juris-consuls. Someone like the late Indo-Pakistani Mawdudi tried to invent a hybrid system that is neither a theocracy nor a democracy, which he called Theodemocracy. Other activists insist that an Islamic government is based on a shura system, which is inherently vague because shura, although commanded by the Qur'an, simply means consultation. I will not attempt to define an Islamic state, but I do believe that the system of governance that is most consistent with the ethics and principles of Islam is one founded on constitutionalism. It is a state founded on the idea of respecting basic individual rights that should not be compromised or violated by the state. The challenge is to create the institutions that are capable of safeguarding the basic rights of human beings.
The classical discourse on the Islamic state is surprising in many regards. Most jurists argued that two basic components define an Islamic state. One, the state is composed of a Muslim majority. Two, the state accepts the shari'a as its guiding source of law, and, in fact, attempts to apply shari'a to the best of its ability.
According to the majority opinion, a state in which the majority of the population is not Muslim cannot be Islamic. For example, if a state existed that in fact enforced the shari'a as its source of legislation but the majority of its citizens was Christian, it would not be considered Islamic. Although Spain was an Islamic state for over six-hundred years, once its Muslim population was eradicated, it ceased to be Muslim. At the same time, a state that enjoys a Muslim majority, but does not enforce shari'a cannot be considered Islamic. It might be a Muslim state, but not an Islamic state.
The complexity, however, comes from the fact that in the classical tradition, these were not the only definitions of the Islamic or Muslim state. Some jurists contended that an Islamic land is wherever Muslims are able to freely and openly practice their faith. Others argued that wherever justice prevails therein is an Islamic state. Still others claimed that once Muslim, a state remains Muslim until the end of times--hence, according to this position Spain, Crete, Sicily, Israel, the Philippines, and India are still to be treated as Muslim states.
However, we need not settle this definitional dispute about what might count as an Islamic or Muslim state (and there is a difference between the two). The issue that interests me here is considerably narrower, and it is the dynamics between an Islamic legal obligation or duty and a moral obligation or duty, especially within the context of an Islamic state. For this limited purpose, we need a working functional description of the core purposes of an Islamic state as it was identified by the classical jurists. Political theorists can argue about the practicality of establishing an Islamic state, the meaningfulness or coherence of the enterprise in the contemporary age, or even its desirability. Depending on their ideological outlooks and commitments, they could develop sophisticated models for a successful Islamic state or challenge the whole enterprise as unwise or wrongful. But these various theoretical efforts, whether pro or con, would greatly benefit from a more sophisticated understanding of the ontological commitments of Islamic law and the relationship of the state to these commitments.
Most classical jurists asserted in a somewhat formulaic fashion that the essential functions of an Islamic state are three-fold. The state must: 1) give effect to the shari'a; 2) protect and serve the public interest or general welfare; and 3) guard and defend Islam and Muslims against any aggressor or oppressor. These functions were declared to be basic and essential, and a state loses its legitimacy in direct proportion to its failure to serve these objectives. In addition, historically, it was always a point of pride for Muslim jurists that legitimate Islamic rule necessarily meant the rule of law-- Muslim jurists regularly boasted that in Islam, the government is bound by the shari'a and not free to act outside the bounds of law, while barbarians, which usually referred to the Franks in Europe, gave unrestrained power to their rulers. They differentiated between the rule of shari'a, which is founded on principles and rule of law, and mulk, which is whimsical, individualistic, and unrestrained by law. Of course, medieval political realities did not always live up to the ideals of Muslim jurists, but at least the juristic tradition established a principle for future generations of Muslims: Any government that seeks the honor, and burden, of identifying itself with Islam must be a government of laws--a government bound by law where the rule of law prevails. In this context, Muslim jurists produced a considerable literary tradition that condemned despotism in the strongest possible terms. According to the classical jurists, despotism by its very nature is unjust and regardless of its material consequences, despotism must be condemned--despotism and justice are by their nature opposites, so they cannot be reconciled (al-istibdad wa al-'adl diddan fa la yajtami'an). At the most basic level, the classical jurists explained that despotism is the antithesis of governance by shura (consultation)--despotism violates both the Qur'anic command to Muslims to conduct their affairs through consultation and the Prophet's practice of consulting with his Companions and deferring to the majority opinion on political issues. But beyond this basic level, and other than this vague concept, [FN27] in the juristic mind, despotism was equated with governance outside the bounds of law; it was also associated with the spread of human suffering, mass detentions and imprisonments without proper judicial trials, unlawful executions, usurpations of property, imposition of excessive taxes (mukus as they were often called), and ultimately, the corruption of the earth. It is fair to say that these practices are illustrations of probable consequences of despotism, but they cannot be considered as the elements of a systematic definition of despotism. Because Muslim jurists were not political theorists, and because, in a typical juristic method, they dealt with the consequences of despotism on a case by case basis, as situations emerged that warranted condemnation, there is no systematically precise and clear definition of despotism in the juristic tradition. It is fair to say, however, that the classical juristic tradition considered despotism to be morally offensive. Of course, this corresponds with the Qur'anic attitude towards ‘istibdad (despotism), ‘istid 'af (oppression), zulm (oppression), and ‘ikrah (compulsion), all of which the Qur'an decisively and unequivocally condemns as evil, ungodly, and a form of corruption. One of the famous traditions that has a significant impact upon the juristic discourse in Islam asserts that Umar bin al-Khattab, the Prophet's close Companion and the Second Rightly Guided Caliph, exclaimed: “How could you enslave people and they were borne free!” [FN28] The effect of this tradition was to recognize very clearly that liberty is a moral value, and oppression is its antithesis.
One can conclude that any government that lays claim to being Islamic, as an integral part of honoring the shari'a and serving the public welfare, must be bound by the moral parameters discussed above. The problem, however, is that as lofty as the ideals and principles might be, it is the technical specifics that pose the real challenge--as the well-known English proverb claims, the devil is indeed in the details. The Islamic historical experience, leave alone the problematic modern attempts at establishing Islamic governments, amply demonstrate that the best of principles could be completely undone by technical aspects that provide a perfect excuse to undermine the moral law.
One of the most significant technical aspects of shari'a law has to do with the treatment of rights. As explained earlier, one of the most significant aspects of shari'a law is that it is intended to serve the rights of God (huquq Allah) and the rights of people (huquq al-'ibad). Therefore, an Islamic government that seeks to enforce the shari'a must honor both the rights of God and the rights of people. But there is a third category, which raises a host of difficult issues, and that is: mixed rights (al-huquq al-mukhtalata or mushtaraka) or rights that to various extents are shared by God and people. The rights of God relate to any matter or act that is expressly reserved for God's Self--acts that are performed solely because God commanded them and that are offered solely for God's sake. In other words, the rights of God are exclusively within God's province. Matters of ritual and worship tend to fall in this category of rights.
The rights of people refer to matters that implicate only the interests of individuals such as owning a horse or car. The interest of owning a piece of property implicates the rights of the owner and other people who are affected by this property in one way or another, for instance as through an easement on the land. Interestingly, the rights of people are considered an original condition--in other words, there is a presumption that everything and every act falls within the category of the rights of people unless God specifically reserves a particular issue or act for God's Self. Unless God affirmatively reserves an issue by claiming exclusive jurisdiction over it, that issue is left to human beings. Mixed rights implicate issues that God has addressed explicitly and thus laid claim to the matter, but the issue at hand also affects the interests of human beings. For instance, God explicitly prohibited slander and dictated a punitive measure for the crime. This makes slander fall in God's jurisdiction because by explicitly addressing this act, God has expressed a specific interest in the act. However, slander is an offense that takes place against a person or persons and therefore, God has an interest that slander not be committed, but so does the victim of the offense. The fact that both God and human beings might have a shared interest in a specific act categorizes it as a mixed right. There are easy cases but there are also difficult cases such as the consumption of alcohol. God prohibited the consumption of alcoholic substances and prescribed a punishment as well. However, arguably, human beings also have a public order interest in prohibiting alcohol because intoxicated people tend to commit crimes and pose a danger to the public. If so, then what has usually been classified as a right of God becomes re-classified as a mixed right.
How and why this classical paradigm emerged is a fascinating story, but cannot be told here. The important point is that this classical paradigm could be utilized to develop a theory of individual rights, and to create a wall of separation between matters within God's jurisdiction and matters that belong to the state. The state would not be able to play God or claim to represent the Divine judgment and will. This is all the more so considering that the classical jurists argued that since God can vindicate God's own rights, in this world, the state must concentrate on vindicating the rights of individuals. In fact, they argued, the state should not have the power to waive or compromise rights that are held by individuals. If an individual has a claim of right against another, the state acts unlawfully if it ignores or waives away this right without the express voluntary permission of the possessor of the right. Furthermore, the classical jurists contended that only God can forgive or vindicate God's own rights, and God does not forgive or waive away the rights of individuals unless they do so first. In other words, if an individual's right is violated, God's judgment is contingent on the will of the victim. If the victim does not forsake or forgive his right, in the Hereafter neither will God.
The problem that does arise in this field is that under the guise of faithful service to the shari'a, zealous governments have tended to claim jurisdiction to enforce the rights of God, and in fact, to make the rights of people secondary to the rights of God. Throughout Islamic history and especially in the contemporary age, puritanical states have tended to argue that it is only logical that a faithful and devout government care about vindicating the rights of God much more than vindicating individual rights. After all, it is argued, who is more important: God or individuals? The venue most susceptible to abuse has been the category of mixed rights. Puritanical governments expanded very widely the category of mixed rights by claiming that even acts of ritual and worship affect the interests of human beings. For instance, if people pray or fast people would be more pious, and if they were more pious, people would be better members of society--they would commit fewer crimes and be more honest in their work. Once puritanical states were able to expand the category of mixed rights, they also greatly extended their jurisdiction and ability to act on God's behalf. Concretely, this kind of reasoning allowed puritanical states to justify imposing the veil upon women or to punish men for failing to pray in the mosque.
Contemporary Muslim scholars have developed the doctrine of rights in a novel, but dangerous direction. Many Muslim scholars have contended that while the rights of people include only private goods, the rights of God are more inclusive--they are concerned with the general welfare of humanity. The main purpose of any body of law, it is argued, is to fulfill the rights of God, but because the very purpose of shari'a is to achieve the welfare of the people, then the rights of God are in reality nothing more than the welfare of people, i.e. the same as the purpose of shari'a. Therefore, any act or thought or institution that aspires to achieve the welfare of humanity is encompassed by the rights of God, which may not be violated. This argument has been developed by scholars of a liberal and democratic persuasion who desire to sanctify the public interest, and therefore, claim a state serves God by serving its citizenry. [FN29] This idea emerged in the context of the enthusiastic euphoria by which liberal reformers celebrated the idea of public interest (maslaha) as a cure all for all the challenges that Islamic law confronts in the modern age. The difficulty with this idea, however, is that other than the fact that it lacks any theoretical or theological foundation whatsoever, it unwittingly sacrifices individual rights in favor of public rights. Public rights are rendered divine and the state is given the power to represent them. As noted earlier, these functionalist approaches make utilitarianism the only effective moral measure in Muslim societies, and this, I believe, is entirely inconsistent with the Qur'anic message. But even worse, this approach does not explain why it is that God's rights are nothing more than the general welfare? It is one thing to say that God wishes the well-being of humanity, or that God wills the public good be pursued, but it is quite another to say that when the state represents the general welfare, it is representing God.
V. Islamic Law and Morality
At this point, it is useful to summarize the basic paradigms of Islamic jurisprudence.
1. The path of God is a moral objective reality.
2. The shari'a guides human beings to the path of God.
3. People must pursue the path of God by using the guidance of revelation (shari'a) and their own reflection and thought. Human beings are expected to engage the shari'a in a search for the moral truth.
4. After using reflection and revelation, and after a conscientious and diligent search, Muslims deduce specific laws (fiqh) as a means of giving effect to and realizing the shari'a. Each school of jurisprudence is equally legitimate and authentic as long as the means pursued are conscientious and diligent in its use of reflection and revelation.
5. The general purpose of Islamic law is serving the general welfare of the people.
I have argued that the general welfare (al-maslaha al-'amma) is not served by some superficial utilitarian calculation; rather, what embody the general welfare are moral objectives--people are not well-served when they possess a great deal of material objects and are able to consume to their hearts' content; they are well-served when their lives are ethical and their society is moral.
This argument, however, could be exploited to justify the despotism of morals. Meaning, acting under the guise of creating a morally upright society, a state can ignore the material needs of people and completely eradicate individual autonomy and personal choice. Every puritanical model from Oliver Cromwell in pre-Restoration England to Muhammad Abd al-Wahhab and the formation of a Wahhabi state in Saudi Arabia has exploited the very same logic. Time and again, puritanical movements have fantasized about creating a morally upright society, and justified the most immoral repression in order to reach this goal.
These puritanical states, however, not only do great violence to their citizenry, but they also completely undermine the integrity of Islamic theology and jurisprudence. As I argued earlier, despotism itself is an immoral condition, and the immoral cannot espouse morality. To do so would be hypocritical, and this is another immoral act. Even more, classical jurists have long recognized that moral order must be premised on justice. Justice is the quintessential and ultimate moral condition because it is what God promises is the final resolution in the Hereafter. Therefore, the quintessential pursuit of shari'a law is not a just order, but justice. This means justice at the individual and collective level, and it is also the basis for condemning oppression as an immoral condition. Puritanical states must inevitably rely on a great deal of coercion or compulsion to achieve the illusion of a moral order. The use of unlawful compulsion is yet another immoral condition, but as importantly, a puritanical state must threaten and terrorize its citizenry into compliance; this forces people to live an inconsistent dual life, one which is used to gain favor with the state, and another that is concealed. The employment of terror, and the encouraging of social hypocrisy not only creates immoral conditions, it is also a form of corrupting the earth, which, according to the Qur'an, is a highly immoral act.
It is not surprising that the classical jurists considered despotism, regardless of its objectives, to be antithetical to justice, or that they believed that corrupting the earth, by terrorizing people, the use of coercion, or the prevalence of social hypocrisy, could not possibly co-exist with justice. But the classical jurists believed the sustaining of life to be a moral value in and of itself. As discussed earlier, for the sake of preserving life, limited exceptions to the moral law may be tolerated as long as no life is preserved at the cost of sacrificing another. But the pursuit of Divinity, with all of its subcomponents, such as the pursuit of justice, requires that human life not only be preserved but that it would be provided with all the means that would enable it to engage in moral pursuits. Means must be provided that would empower human beings to exploit their potential regardless of whether in fact they do so or not. In other words, every human being has a moral potential, which he or she may pursue or fail to pursue. The function of the state is not to make sure that each individual has properly pursued his or her potential--the state has no special competence that allows it to know people's potential or to know how that potential could be best pursued. The state is expected only to provide for the most apt conditions that would allow human beings to engage in reflection, research, supplication and worship, and the development of their conscience and intuition so that their personal autonomy is maximized. Only when not weighed down by fear, anxiety, and need can one be genuinely autonomous. Only a well-developed sense of personal autonomy is capable of supporting the most true and sincere will and intent. In Islamic theology, rituals and good deeds are truly virtuous only if they are done with the most sincere and honest will and intent. Therefore, the classical jurists argued that the elements that allow human life to thrive and possibly realize its potential are divided into three categories: necessities, needs, and luxuries. Necessities are things like food, shelter, safety, a means of living, and dignity; needs are things like education, the financial ability to travel in search of knowledge or to purchase educational materials, the ability to afford marriage, the ability to speak one's mind, and the freedom to congregate and make friends; and luxuries is a catch-all category for everything beyond the needs and necessities of people. A virtuous and just state is one that enables people to enjoy these conditions that allow human life to thrive, and in direct proportion to its ability to first meet the necessities, then needs, and finally, the luxuries of people, is the virtue and justice of a state. This three-part division is fundamental to the notion of the rights of people--as noted earlier, God vindicates God's own rights, and therefore, according to a large number of classical jurists, on this earth, the rights of people take priority over the rights of God. Consequently, an Islamic state is charged with the obligation of maximizing the conditions for justice, and it does so by serving the rights of people. The rights of people consist of necessities, needs, and luxuries, and the virtue of the state lies in its ability to serve as many of those rights as possible.
At this point, some will be tempted to revisit the concept of maslaha; when all is said and done, it will be argued, we have returned to a utilitarian model. The Islamic state's primary objective is to serve the material needs of people, and therefore, in the final analysis virtue has been reduced to material objects, even if these objects are essential for human survival. This maslaha oriented view of justice is bound to repeat processes that took place in Islamic history--processes that produced mischievous results, and defeated any moral aspirations that might have existed in the public order.
Historically, classical jurists tended in theory to insist that the general welfare can only be served by justice. But the reality was that the state's laws were often unjust and unethical. Jurists, particularly those of a conservative orientation, were unwilling to argue that unjust laws should not be obeyed, and so they were forced to argue that the general welfare and justice can only be served by perfect order. Gradually, the only virtues truly honored were order and stability, no matter how unjust the laws. [FN30]
Judith Shklar once wrote: “The idea that law exists in order to impose agreement is the counsel of despair . . . .” [FN31] I think this is exactly the point. Although the arguments about historical inevitabilities and pre-determined failures are very popular with secular critics of Islamic law, it ought to be recalled that the argument that justice is served when the law imposes a forced agreement was not just a concession to order and stability, but an act of despair. The classical jurists did not possess the knowledge of institutions that could be used to force the hand of government or restrain it in any way. As noted earlier, jurists attempted to restrain government by offering it counsel--at times, by shaming it, but ultimately, their primary tool was their charisma and legitimacy among the masses. Ultimately, they would mobilize the masses to threaten rebellion or insurrection and frequently the state was forced to give in. I believe that in the modern age, Muslims could do much better. Institutional restraints and the role of civil society in resisting despotism and oppression has become something of a science, and it would serve Muslims well to use the advances in the knowledge of institutional and non-institutional restraints against government in order to pursue more effectively the objectives of shari'a. In the same way that laws cannot be moral just because people assume it to be so, homogeneous values adopted and imposed by the state have no serious claim to true virtue. From the fact that conservative jurists in the past despaired and settled for the least that could be expected from a state, it hardly needs to be said that we are bound by the counsel of despair.
The other objection that will be raised to the necessities, needs, and luxuries paradigm will come from a very different front. It will be argued that this material-oriented view of virtue is entirely counter-intuitive as to the role and function of a state that associates itself with religion. Especially in the modern age, a large number of activists and popular writers have insisted that, whether the argument posed here comes from the classical tradition or not, this approach is fundamentally flawed because it fails to realize the binding and morally objective character of the shari'a. Muslims cannot pick and choose which Islamic laws to follow and which to reject, and there is a moral duty to obey all Islamic law without distinction. To be truly faithful to God's omnipotence, individual choice and autonomy cannot exist for a Muslim. Before anything else, Muslims are commanded to submit, and therefore, for a Muslim the primary virtue is complete and total submission. Submitting to God, the state must enforce God's law. But fundamentally, neither the state nor the individual has a choice but to submit to God's law. This idea seems so intuitive that most Western scholars writing on Islam have claimed that God is the sole legislator in Islamic law, and that human will and thought is irrelevant to any legislation. Furthermore, such Western scholars assume that disobeying a law in an Islamic state is a sin--moral and legal. [FN32]
This argument, which ironically is equally popular with modern puritanical Muslims and Western non-Muslim scholars, is founded on several premises. God's law is pre-existing and eternal; it is absolute good and ultimate justice, and in an Islamic state God is the Sovereign. As the sole Sovereign, God is also the Legislator of all laws. The state in Islam is solely an executive state--it exists for the sole purpose of maintaining and enforcing the law, and it performs no legislative functions. But the state has a moral educative role, and its laws are actually God's moral lessons to people. By faithfully enforcing God's Legislation, the state also enforces God's ethics and morals. The only source of moral as well as legal Legislation is God; hence, what defines the moral from the immoral is the technical law. This distinctively modern orientation provides a sense of decisive certainty, and also the security of knowing right from wrong by just looking to the laws of the state. The law is assumed to serve the justice as well as the general welfare by its very existence. Law defines the general welfare, but general welfare does not define the law. Although primarily modern in origin, this approach does have roots in the classical tradition--Ibn Hanbal (855 A.D.), the eponym of the Hanbali School of jurisprudence and the Zahiri School of jurisprudence seem to be the most representative of this approach. [FN33] This approach is supra-textual; it relies on the text to be the faithful conveyer of God's Will, and also assumes that human beings can faithfully report the text's determinations. Consequently, the only remaining task left for human beings is to enforce the commands of the text.
A major flaw with this argument is that it assumes too much. First, it confuses between the shari'a and fiqh, or obliterates the distinction between the two altogether. It assumes that on most issues the text is clear and precise and it also assumes that human beings are capable of objectivity to the point that homogeneity becomes possible. These assumptions, however, are nothing short of farcical and fantastical; they are not supported by any field of study whether history, sociology, psychology, or hermeneutics. Puritans create a fantasy world, and many Western scholars for reasons of their own believe, or want to believe, that these fantasies do represent the reality of Islamic law. Unfortunately, however, very often when fantasies are taken too seriously, they become dangerous.
Submission to God is hardly the issue; every practicing Muslim will concede that for humanity's own good, it should sincerely submit itself to God. Puritans, however, have a much narrower conception of submission than did the classical jurists. Puritans see submission primarily as an issue of correct practice. The majority of classical jurists and the position that I advocate in this essay understand submission to be a complete and total engagement in which human beings constantly wrestle with the Divine Will. Submitting to God does not merely mean obedience but reflection and thought--a process according to which a human being lives thinking about God, for God and with God consistently and persistently. This, I believe, is a truer fulfillment of the Qur'anic injunction advising people to live in a state of remembrance--to remember God night and day, standing upright and laying down, and while working or playing.
We also agree that God is Sovereign, but what does that mean? God is Sovereign because God may do as God pleases, but does that mean that God's Sovereignty must void human sovereignty? Does the fact that God is Sovereign necessarily negate human autonomy? The puritanical concept of sovereignty is irreconcilable with the Qur'anic concept of individual accountability. It makes sense to say that if the individual is not autonomous, then human beings cannot be individually accountable. Moreover, as pointed out earlier, all humans are the viceroys of God. All those who seek the true path are equal before the eyes of God. This is reaffirmed by the Prophet's well-known saying, “All people are equal as the teeth of a comb. An Arab is not better than a non-Arab and a non-Arab is no better than an Arab except through piety.” [FN34] As the Prophet repeatedly emphasized, true piety is in the heart, inaccessible to human beings. In addition, the Prophet also stressed that human beings are not given the authority to assess the piety of others--in fact, it is impious to judge the piety of others. Human beings are authorized to evaluate public conduct, not intentions except in mitigation.
All humans have the potentiality of reaching the true path by reflection, knowledge and faith. In fact, without thought and reflection it is not possible to seek out God's path. The Qur'an states: “Hence, those who are deeply rooted in knowledge say: We believe it; the whole [of the divine writ] is from our sustainer albeit none takes this to heart save those who are endowed with rationality [understanding].” [FN35] Rationality is the one feature that gives distinction to human beings, and makes them worthy of the viceroyship. [FN36] However, this rationality must recognize the superiority of God and His path because the correctness or error of human rationality is judged by God's objective moral path. [FN37] In the very first chapter of the Qur'an, God distinguishes His own sovereignty by noting that He is the Judge of the Hereafter and that He is the Owner of the Right Path. [FN38] As the early conflict between ‘Ali, who was the Prophet's cousin and also the Fourth Rightly Guided, and the puritanical Khawarij demonstrates, when human beings legislate for themselves, they do not void or transgress upon God's Sovereignty. In the course of launching their bloody insurrection, the Khawarij raised a banner proclaiming: inna al-hakimiyya li'llah (all sovereignty belongs to God), and accused ‘Ali of violating God's law because he agreed to settle his political disputes with Mu'awiyya through arbitration. At the time, Mu'awiyya was Ali's governor over Syria, and later became the first Umayyad Caliph. According to the Khawarij, it was inconceivable that ‘Ali would agree to settle a dispute through arbitration because doing so implies that God is not the sole Legislator and also that God's Sovereignty is incomplete. In the Khawarij's view, God's law clearly resolves all problems and issues in all their particulars and details, and therefore, ‘Ali was duty-bound to enforce these laws without compromise. Of course, the only recognized details and particulars of God's law were as the Khawarij saw them, which they arrogantly assumed to be God's definitive Will. ‘Ali agreed with the literal words written on the Khawarij's polemical banner, but he disagreed with its import and meaning. God is the Sovereign because God is the Final and ultimate Judge and because God's Will is the authoritative frame of reference, not because God's law is all encompassing. [FN39]
For all practical purposes, puritans end-up equating human subjectivities with God's path, and God's truth with human claims. Human comprehensions and understanding define, restrict, and channel God's path with the result that the path of God obediently follows human law instead of the opposite. The text was created for human beings; human beings were not created for the text. Puritans imagine that human life with all its diversity, richness, and complexity can be imprisoned within a text and that the Divine Will with all of its transcendence and omnipresence can be captured in a text, whatever the nature of this text, and that this text can then in turn be fully represented by human beings.
Humans represent God's ethical existence on earth; they do not represent His truths. This is exactly why the law of creation itself defies puritan fantasies. Very much like birth and death, the Qur'an emphasizes that diversity and disagreement is a part of God's law. Puritans imagine the construction of homogeneity through law, but it is the text of the Qur'an itself that takes issue with this aspiration. Below are samples of the Qur'anic discourse on human diversity:
And unto thee have We revealed the scripture with the truth, confirming whatever scripture was before it, and a watcher over it. So judge between them by that which God hath revealed, and follow not their desires away from the truth which hath come unto thee. From each We have appointed a divine-law and a traced-out-way. Had Allah willed He could have made you one community. By that He may try you by that which He hath given you. So vie one with another in good work. Unto Allah ye will return, and He will then inform you of that wherein ye differ. [FN40]
Had Allah willed, He could have brought them all together to guidance--So be not thou among the foolish ones. [FN41]
Had Allah willed, they would not have been idolatrous. We have not sent thee as a keeper over them, nor are thou responsible for them. [FN42]
And if thy Lord had willed He would have made mankind one nation, yet they ceased not to differ. [FN43]
And if thy Lord willed all, who are in the earth would have believed together wouldst thou [Muhammad] compel men until they are believers? [FN44]
There is no compulsion in religion. [FN45]
These passages indicate that it is inevitable that people will continue to disagree and differ up to the Final Day. This disagreement and diversity is not only expected but is desirable. As alluded to earlier, the Prophet is reported to have said, “The disagreement of my companions is a mercy.” [FN46] Furthermore, a person is not only rewarded for being right but also for being wrong. The Prophet said, “He who strives after the truth and is (ultimately) erroneous is rewarded once, and he who is right is rewarded twice.” [FN47]
Diversity in thought and opinion is accepted, but the truth of God is one. This brings me to the final point of this essay. The Qur'an says, “Let there be of you a nation who invite to goodness, enjoin the right conduct and speak against indecency.” [FN48] The Qur'an does not say, “Let there be of your government . . . .” The duty, which is a core value in Islamic morality, mandates that there not be a moral monologue from the state to the people, but a moral dialogue between people. In my view, an Islamic state is duty-bound to seek after the moral values of shari'a, but people have a right to interrogate the state on its success or failure in the pursuit of the objectives of shari'a. Institutionally, there must be mechanisms that protect the integrity of the moral conversation taking place within society, but if the state assumes the role of the despotic moral teacher--the one that speaks while all humbly and faithfully listen, the state has usurped the role of the Divine. There is a moral duty to obey the law of the state, but only if the person, who will ultimately be held accountable before God, believes the law is moral. Before ‘Ali, the Prophet's cousin, became the fourth Caliph, at one point he was commanded by ‘Uthman (the third Caliph) not to visit or speak with Abu Dhar al-Ghafari, one of the Prophet's Companions. ‘Uthman had exiled Abu Dhar for being too critical of the state's fiscal policies, and forbade anyone from congregating with him. ‘Ali, however, refused to obey the order. When ‘Uthman brought him in for questioning, ‘Ali responded: “Is it that if you command us to do something that we see the obedience of God and His prophet in its opposite, we should blindly obey? No, by God, we will not.” [FN49] At the risk of punishment, ‘Ali took a conscientious stand to uphold a moral principle, and it seems to me, ‘Ali was exactly on point. Truly submitting to God must mean that when all is said and done, a person must be able to answer the call of his conscience and stand on the Final Day before God, able to defend his actions. Hopefully, if one is not being presumptuous or whimsical, if he is not rewarded twice at least he will be rewarded once. Ultimately, Muslims do have a moral duty to obey God's law, but not the state's version of God's law.
[FNa1]. Professor of Law, UCLA School of Law and the Omar and Azmeralda Alfi Distinguished Fellow in Islamic Law. I wish to thank JINEL's editorial board for their hard work, diligence, and patience. I am especially indebted to Sean Riordan for his exceptional contributions and valuable feedback. I am very grateful to the Carnegie Institute for its support, generosity, and dedication. I thank my colleagues at UCLA School of Law for their intellectual inspiration and companionship and especially Dean Michael Schill for his understanding, accommodation, and persistent encouragement. I am also grateful to Mr. Muhammad Fareed, a man who is the very embodiment of true virtue and moral uprightness, for his unfailing encouragement and support. Grace, my wife, read the entire article, and as always she is a demanding but most sagacious critic.
[FN1]. George F. Hourani, Reason and Tradition in Islamic Ethics 16 (1985).
[FN2]. Judith N. Shklar, Legalism: Law, Moral and Political Trials 41-42, 29-110 (1986).
[FN3]. W. Cantwell Smith, Islam in Modern History 3 (1977).
[FN4]. Qur'an 33:72.
[FN5]. Fazlur Rahman, Major Themes of the Quran 32-33 (1980).
[FN6]. Id. at 16, 18.
[FN7]. Qur'an 1:5-6.
[FN8]. Quoted in Hourani, supra note 1, at 38.
[FN9]. Qur'an 30:30.
[FN10]. ‘Abd al-Qadir ‘udah, 1 Al-Tashri’ al-Jina'i al-Islami 29-30 (1968); see also Mahmoud Shaltout, Al-Islam: ‘Aqidah wa Shari'a 21-22 (1983).
[FN11]. In Qur'an 72:2, for instance, the probity and uprightness of a lively self-critical conscience is acknowledged and praised.
[FN12]. There are extensive juristic debates as to which of these laws may be suspended, on a strictly temporary basis, in cases of dire necessity. For instance, practically all Muslim jurists agreed that in cases of dire necessity (darura) the prohibition against the consumption of pork or alcohol may be violated if due to a set of exceptional circumstances violating these prohibitions are necessary in order to preserve human life. However, the excuse of necessity may not be invoked to overcome the prohibition against extra-marital sex. Nevertheless, some jurists argued that necessity may justify atypical marital contractual relationships such as temporary marriages. Likewise, necessity can never excuse the failure to perform prayer (salat) but it may change the form and shape of prayer; for example, it may shorten the prescribed prayers during travel and war; it may change the form of prayer during illness, hardship, or fear of bodily harm; and it may change the timing of prayer during travel, war, hardship, and fear. The most straightforward rationale offered, but not necessarily the most convincing, as to when necessity may or may not be recognized is only when God explicitly states that it may be accommodated. Alternatively, it has been argued that all ethical values are subject to a scale of priorities with the preservation of life being the highest or most important. This view presents a challenge because it mandates that there be a systematic theory of priorities, and while recognizing the ultimate priority of the preservation of life is not very controversial, justifying the place assigned to values such as mercy, equity, or beauty is more contestable. For instance, may necessity be invoked in cases where the exception will not save lives but it will alleviate hardship or even make an individual more happy and content? There is a well-known legal maxim that states: Necessities render the prohibited permissible. In essence, the question is: how expansive is this principle and how can the Islamic legal system avoid the problem of slippery slopes where the exception swallows and consumes the rule and in doing so renders it ineffective and at best marginal?
[FN13]. Although given the rather sanctified title of “Qur'anic laws or punishments” not all of the hudud punishments are actually mentioned in the Qur'an. For instance, the punishment for adultery (stoning) and for apostasy (execution) are not mentioned in the Qur'an whether explicitly or implicitly.
[FN14]. Indeed there is a genre of Prophetic traditions in which the Prophet reportedly gives offenders who have confessed their crimes every chance and opportunity to avoid punishment by exhorting them to cite any mitigating circumstances or defenses that might lessen the sanction or void it altogether.
[FN15]. The second Rightly Guided Caliph Umar bin al-Khattab suspended the hadd for theft when his empire was in dire economic straits. Ostensibly, he did so in order to avoid having to apply the hadd for stealing to a large number of people.
[FN16]. This is a consistent and prevailing theme in the Qur'an. The word used is fasad (corruption); in numerous passages the Qur'an associates the term with the lack of justice, fairness, and safety. Sowing warfare; murder; destruction; pillaging; demolishing places of worship including mosques, temples and churches; preventing people from worshipping God; oppression, and spreading terror are identified as examples of spreading corruption in the earth. The Qur'an repeatedly condemns those who corrupt the earth by declaring them to be the enemies of both God and humanity. “Commanding the good and forbidding the evil” is identified by the Qur'an as the key moral obligation necessary for discharging the duty of bearing witness in truth on God's behalf. This obligation is at the heart of the process of standing up to evil and also resisting the spread of corruption on earth. See, e.g., Qur'an 2:27; 2:205; 2:251; 5:32; 5:64; 7:85; 11:116; 26:183; 28:4; 28:83; 89:12. See also Qur'an 3:104; 3:110; 3:114; 9:67; 9:71; 16:90. Interestingly, Thomas Aquinas, in all probability influenced by the Qur'an and Islamic theology, argued that the obligation of commanding the good and forbidding the evil is the core moral obligation from which all other moral obligations are derived.
[FN17]. Associating partners with God is the English phrase usually employed to describe the concept of shirk in Islamic theology. Shirk is the word used by the Qur'an to condemn the Christian belief in the Trinity. But more than that, the Qur'an uses the term to describe any belief or conduct that intimates that God, or God's uniquely Divine attributes, can or does have equals, compeers, or parallels. It is possible to partake in the divine through the consent of the Divine, but it is shirk to claim that God is limited, constrained, or restricted in any way except through God's own Will. It is hardly surprising that Muslim theologians deduced that there are various forms, levels, and degrees of shirk. But shirk is an offense against God's rights and not the rights of human beings, and therefore, only God has jurisdiction over this offense. Puritanical orientations who tend to give the state the power to punish acts of shirk, in my view, are trespassing against God's exclusive domain.
[FN18]. The best work on this subject remains George Makdisi, The Rise of Colleges in Islam (1981). See also Christopher Melchert, The Formation of the Sunni Schools of Law: 9th and 10th Centuries (1997). The author argues that the state played a greater role in insuring the survival of some schools of law and not others. Although the author does make some good points, his ultimate thesis is not persuasive because his research is not sufficiently exhaustive, and therefore, he fails to deal with a considerable amount of evidence that challenges his conclusions.
[FN19]. On the jurisprudence dealing with dissent and armed rebellions, see Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (2001).
[FN20]. For a discussion on the authenticity and meaning of these traditions see Khaled Abou El Fadl, Speaking in God's Name: Islamic Law, Authority, and Women (2001).
[FN21]. Jihad means to strive diligently in the way of God.
[FN22]. In fact, elsewhere I argue that adoption by the state degrades the moral status of a juristic or fiqh law. See Khaled Abou El Fadl, Islam and the Challenge of Democracy 3-36 (Joshua Cohen & Deborah Chasman eds., 2004).
[FN23]. On the historical process that resulted in this transformation see Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists 26-110 (2005).
[FN24]. Reportedly, the Caliph Harun al-Rashid (d. 809) repeated the attempt but to no avail. See generally Abou El Fadl, supra note 20, at 10-11.
[FN25]. See Abou El Fadl, supra note 22, at 90-99.
[FN26]. Rashid Rida, 30 al-Manar 9:781-82 (1930).
[FN27]. Especially in the early centuries of Islam, shura had a very significant symbolic value. Frequently, rebels would raise the banner of shura as justification for their insurrections claiming that the rulers failed to govern by shura. In fact, the rebels who protested against and ultimately murdered the Third Rightly Guided Caliph Uthman bin ‘Affan accused him of “wasting the shura” by practicing nepotism and ruling despotically. During this historical period, shura as a concept did not stand for the mechanical practice of consulting with others before taking a decision; it was utilized as a symbol for something much broader and also vaguer--it symbolized justice, fairness, and a symbol of protest against despotic governance. See Abou El Fadl, supra note 22, at 16-18.
[FN28]. Al-Qutb Muhammad al-Qutb Tabliyah, Al-Islam wa Huquq al-Insan 305 (Cairo 1976).
[FN29]. See, e.g., Fawzi Najjar, The Islamic State (1967); Fawzi Najjar, Al-Islam wa al-Siyasa (1977).
[FN30]. Muhammad al-Khudari, Usul al-Fiqh 32 (6th ed. 1969).
[FN31]. Shklar, supra note 2, at 41-42.
[FN32]. John L. Esposito, Law in Islam, in The Islamic Impact 71 (Yvonne Haddad et al. eds., 1984).
[FN33]. See Shaltout, supra note 10, at 441-50 for a discussion of the precedence of justice over literalism.
[FN34]. Cited in Tabliyah, supra note 28, at 197-98.
[FN35]. Qur'an 3:7.
[FN36]. See Abd Al Wahab Khallaf, Ilm Usul Al Fiqh 86-87, 197-98 (14th ed., 1981) for a discussion of rationality in legislation.
[FN37]. Id. at 210-11.
[FN38]. Qur'an 1:1-6.
[FN39]. Abou El Fadl, supra note 19, at 129.
[FN40]. Qur'an 5:48 (emphasis added).
[FN41]. Id. at 6:35 (emphasis added).
[FN42]. Id. at 6:108.
[FN43]. Id. at 11:118 (emphasis added).
[FN44]. Id. at 10:99.
[FN45]. Id. at 2:256 (emphasis added).
[FN46]. Muhammed ‘Ashmayi, Ja'whar al Islam 18 (1984); Abd al Kareem Zidan, Madkhal Lidirasat al Shari'a al-Islamiyyah 67 (1985). See also Shaltout, supra note 10, at 468; Khaled Abou El Fadl, And God Knows the Soldiers: The Authoritative and Authoritarian in Islamic Discourses 25 (2001).
[FN47]. ‘Ashmayi, Usul al-Shari'a 135-75 (1983).
[FN48]. Qur'an 3:104.
[FN49]. Tabliyah, supra note 28, at 330.