Intent of the Islamic Law
The New Nation published my article captioned ‘Islam and Democracy: How Far Compatible’ on 11 March 2006 wherein I referred to the Ijtihad of Caliph Omar concerning his decree by which he suspended the amputation of hands of the thief and he decreed that this law couldn’t be implemented if people are without food and they steal. Caliph Omar took this decision because of the famine condition in Arabia and his apprehension that people may be tempted to steal due to scarcity of food and starvation.
In that article I raised the question as to what will happen if we expound this law of Caliph Omar in case of adultery? Can we implement Islamic Penal Law for adultery as long as we keep the door of obscenity open such as brothels, bars, obscene movies, obscene printed books and pornography or the government cannot ensure the marriage at appropriate age? Or if we cannot make adequate arrangements for housing so that our troops can stay in the barracks with their wives and truck and bus drivers are not required to remain isolated from their spouses for days and months. Really what moral authority we have to demand implementation of Hudud before creating congenial and healthy social environment? Only recently Tariq Ramadan, distinguished educator of Philosophy at the University Fribourg, Switzerland and an eminent Arab Islamic scholar, has given a clarion call for the suspension of Hudud for the time being, till all relevant issues have been examined by the scholars
Some readers of this article raised question as to why I write on such sensitive issues where there is Iktilaf, difference of opinion among the Islamic scholars. My immediate reaction to such opinion holders was that we must address all issues and try to resolve those. There is no meaning of keeping problems beneath the carpet. I thought that we need to enlighten people on the intents of the Shariah so that unnecessary doubts are not created in the peoples’ mind.
Later while reading the Bangla translation of the book of the eminent Egyptian Islamic scholar and Dean of the Faculty of Shariah, Qatar University Prof. Dr. Yusuf Al Qaradawi ‘Shariatul Islam Khuluduha Wa Salahuha Lit-tatbiki Fi Kulli Jamanin Wa Makan I found that he holds almost the same view as I do. Prof. Dr. Yusuf Al Qaradawi opined that before implementation Hud, punishment for adultery we have to establish an [ideal] Islamic society [Bengali tr. Islami Shariater Bastobayan, Oddhai- Bartaman Juga Islami Shariat Bastobayaner Purba Sharta, Khairun Prokashani, Dhaka, 2002, pp 174-179].
Now the question that arises what prompted Caliph Omar to suspend the amputation of the hands of thief in case of food crisis? What is the rationale, raison d'ętre behind? Again what impelled Prof. Dr. Yusuf Al Qaradawi to conclude that in our time we cannot implement Hadd, punishment for adultery, unless we are able to create an ideal Islamic society and close the door of obscenity [ibid. pp 174-179]. What is the underlying principle, justification behind this ruling?
There is no meaning of concluding that Muslims of this generation do not have the ability or are not competent to exercise Ijtihad for then we have to believe the current generation of Muslims are not vicegerent of Almighty Allah to establish His Will which is not a fact for Allah ordained: It is He Who has made you (His) agents, inheritors (Caliph) on the earth [Al Quran 6: 165]. From this verse of the Holy Quran it is clear that the door of Ijtihad should remain open rather than be restricted to a particular generation, person or age.
Every generation has right to understand the revelation in its own way, even if it differs from that of previous generations. Any Muslim is entitled to contemplate on a revealed statement and draw conclusions that his or her reason allows, provided the utmost intellectual capability has been used. A scholar may change his views, as happened with Imam Shafi, whose move from Iraq to Egypt resulted in new views. One ruling may rescind an earlier one, elaborate on a concise statement, narrow the scope of a more general concept, or restrict an absolute injunction.
Muslims’ contemporary situations and circumstances are not the same as those prevailing at the time of revelation. Understanding the intent depends on understanding those traditions and customs –asbab al nuzul- of the time of the revelation. Changing situations demands different understandings to accomplish the timeless intent.
The divine intent could easily be identified depending on whether or not text itself is conclusive and whether the intent is stated explicitly or implicitly As to the thief, male or female, cut off his or her hands; a punishment by way of example from Allah for their crime [Al Quran 5: 38]. This statement includes an order to cut off the hands of thieves in order to realize the divine purpose of protecting property - the relevant verse is understood as ordaining the penalty in the light of prevailing situation at the time of revelation. Protecting property is a timeless intent, but cutting of hands of thieves to actualize the intent was linked to prevailing situation at a time of revelation.
No doubt the divine intent is most important but the question is how the revealed statement may be confined to particular circumstances. The intent is also more important as revelation was sent down to actualize them, while the methods set forth by revelation are just example and models
Revealed statements were not sent down once for all, imposed from the divine upon all peoples, but rather are a set of solutions to problems occurring at any time. Many solutions were changed by virtue of human experience. Moreover many solutions were not given in revelation but rather were suggested by individuals and Muslim community, then endorsed and sanctioned by revelation.
Revelation based legislation was based on the actualities of life. Sources of legislation aimed at rationalizing life. The Shariah accommodated life in the past and advanced it, our life today has yet to be accommodated by a new model, the demands of which are so vast that existing models fail to meet them.
The Shariah is universal being addressed to all peoples, none is discharged from its binding obligations, and none is excluded for its rulings. Circumstances, situations and events prevailing at the time of revelation do not affect its universality.
Changing and emerging situations calls for new understanding that do not resemble those belonging to the time of revelations. This approach focuses on the facts of contemporary life. Therefore what was prohibited becomes permitted and vice versa on the grounds that the realities of modern life necessities that divine intents be actualized according to the new understanding.
Cutting off the hands of thief, the divine intent behind the penalty was to deter thieves, protect property and provide safety for individuals. If the implementation of such punishment the benefit or advantage outweighs the disadvantage, then the former is religiously intended otherwise not. While implementing any divine commandment, the intent should be kept uppermost in view. This is the lesson we learn from Caliph Omar’s suspension of amputation of hands during famine. When applying rulings to different emerging events, the divine intent must be explored to its ultimate conclusion. Due to the diversity of emerging situations, successful applications depend largely on identifying the rulings’ purposes. Lack of knowledge of the Shariah inflicts hardships. Such people calls for mechanical implementation of the Shariah.
It is important that we need to guard against the automatic application of the Shariah rulings of the earlier scholars. Those who call for applying the Ijtihadi conclusions of the Companions of the Prophet, Imams and Fuqaha (jurist) in our contemporary situations arguing that our previous scholars excelled in every respect and applied their ability to the utmost forget that applying the legacy of the golden era to the contemporary life will create bottleneck in the advancement of the Ummah and endanger its progress.
Our ancestors were wonderful in applying religion to their lives and within their particular contexts. They successfully interacted with the actualities of their lives, situations and circumstances. However the lives of the contemporary Muslims have greatly changed since then, and the complexity of modern life is beyond our ancestors’ imagination. This calls for a correspondingly new Ijtihad, one that will naturally draw upon their Ijtihadi legacy as conventional wisdom. However, applying Shariah rulings to modern life requires that they be built on the reality of the contemporary life.
Suspending the penalty for theft in the year of famine is a well known Ijtihad by Caliph Omar. He analyzed the prevailing situation and discovered that widespread famine might force people to steal in order to survive. Applying the penalty for theft in such a case would have been unjust. The universal inclusive ruling was thus restricted in order to actualize the Shariah purpose of protecting the self. This is also the objective of Prof. Dr. Yusuf Al Qaradawi when he said that before implementing punishment for adultery an ideal Muslim society must be created where doors of obscenity is totally closed.
However it should be stressed that despite all restrictions, the conclusive nature of the ruling itself is not subject to change over time. If the conditions required for application exist, it should be applied and vice versa. Not applying the ruling at a certain time or to a particular case does not jeopardize the validity of that particular ruling. Annulling the ruling is a risky approach for some people might think later that the earlier ruling has been abrogated. Such an approach might cause the destruction of the methodology embodied in Al Quran 6: 165 as discussed earlier.
Article prepared on 1 August 2006.