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Islamic Ideology ( 25 Dec 2017, NewAgeIslam.Com)

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Rescuing Islamic Law from Legalism


By Dr Muhammad Maroof Shah

21 Dec 2017

Reading Muhammad Asad on Respecting Common Man’s Understanding of Islam and Islamic Law.

A tradition warns us that zealots – who are all around us, within us – shall die. Timely plea of Muhammad Asad, “the gift of Europe to Islam,” the famous Quran and Bukhari translator, commentator and author, “Islam should be presented without any fanaticism. Without any stress on our having the only possible way and the others are lost”. We today apply on the discourse of fiqh in the context of heated and often politicized debates on Islamic Law (e.g., on triple talaq, apostasy penalty, recent changes in Saudi Arabia)

      “The task before the modem Muslim is immense”, wrote Iqbal. He went on: “He has to rethink the whole system of Islam without completely breaking with the past.’’ With the exception of Muslim feminists and the likes of Muhammad Asad, Fazlur Rahman and Ghamidi and some lesser know scholar-intellectuals Muslims seem to have largely ignored Iqbal on this point. Asad’s response as contained in his This Law of Ours and Other Essays is what we read today. Asad’s sincerity and love for his chosen faith is beyond question and his credentials as a scholar and passionate activist for Islam well established. As such his concerns and disturbing questions call for attention from Ulama, Fuqaha and masses. A friend of Iqbal who suggested him work on translating Bukhari and work on intellectual foundations of future Islamic State of Pakistan, Asad loved Kashmir and met Mirwaiz Maulana Yousuf Shah. He has been lauded as bridge builder between Islam and the West.

      Asad identifies, with Iqbal and Wahiduddin Khan, the psychological complex incapacitating Muslims as failure to appreciate the spirit of the times. ‘’We must guard against the idea that five or six centuries ago Islam was better understood than it could be understood today. Most emphatically it was not. The Shariah of Islam has been utterly mishandled … not only today, not only yesterday, but for nearly a millennium: since the time, that is, when it was cut off from the direct understanding of average man and woman and became, unwarrantedly, a preserve of “specialized” scholars.’’ “Muslims came to believe that all the subjective conclusions of the early scholars were valid in absolute sense and for all times to come.

 From the Islamic point of view, nothing could have been more disastrous than this belief: it led to standstill of religious thought, and thus to the gradual decay of the civilization that had been built on that thought.’’ “When religious thought became the preserve of specialized scholars, the practicability of the shariah became an illusion; for, instead of being a way of life, the knowledge of the Law became a merely academic affair.” ‘’Now that our critically minded time has revealed inadequacy of so many of old opinions, the popular mind begins to question the validity of Islam itself.’’

      Asad does not plead for “improving” or “reforming” shariah because Shariah is of Divine Origin and timelessly relevant as it anticipates all contingencies. And this implies, for him, it should be accessible to every Muslim of average intelligence and education. God doesn’t want rigid codified complex corpus that is special prerogative of Fuqaha. Asad thinks Ibn Hazm is one of the three or four most brilliant minds Islam has produced and brings his arguments to substantiate his case against Taqlid in general and rule of specialized scholars in particular.

      Exploring reasons why the spirit of Islam is not being translated into practice by the many millions of Muslims and why the Shariah has become a remote factor he laments that large scale community awareness of the Law has receded and “common man has been prevented from knowing through personal insight what the Law of Islam really is.” To the most commonly raised objection that ordinary Muslim can’t know the Law in detail or exercise Ijtihad and needs expert opinion, he replies, with Ibn Hazm, that we are obliged to know what is the take of the Quran and the Sunnah and not the personal opinions of any scholar that constitute building blocks of huge Fiqh manuals.

As Ibn Hazm said: “It is not lawful for anyone to follow blindly the opinions of anyone else, living or dead, seeing that everyone is obliged to resort to independent reasoning in accordance with his ability.’’ Ibn Hazm has stated ‘There is a freedom of choice regarding the views of anybody else in matters where the Law-Giver’s command is not self-evident… and therefore it is permissible, but not obligatory, to follow anybody else’s conclusions…Nobody has the right to ‘make’’ Sharia laws side by side with the Law of the Prophet…’ Asad elaborates: "Similar to the ‘Fathers’ of the Christian Church, we have in Muslim history that large (if not so clearly outlined) group of learned men known as Ahl As-Salaf As-Salih – the ‘’early pious generation’’ – whom the Muslims have been taught to regard as almost infallible.’’

By giving them a common designation, the illusion has been created that their views were more or less identical; but nothing could be farther from the truth. [Amongst them] there existed the deepest differences of opinion in almost all questions of importance. He further notes that the scholars of later generation "resolutely refuse to see the time-bound quality inherent in man’s thoughts.’’

      Arguing  the case for contingency of Fiqh manuals often absolutised in public imagination, Asad states: ‘Beyond the period of the Companions the history of Islam doesn’t furnish a single instance of a real Ijma, either in the sense of an agreement among all Muslim scholars or even among those of a particular period.’’ From 3rd or 4thcentury A.H the Law was conceived as a "combination of the Nass ordinances plus a legislation arrived at through deduction. Instead of the original Two sources or roots (Usul) of the Law – the Quran and the Sunnah, the Muslims were presented with four roots: the Quran, Sunnah, Ijma and Qiyas; and only a small minority of scholars continued to oppose this arbitrary addition.’’

      ‘’According to all psychological canons, Qiyas and Ijma are necessarily subjective, and can’t result in anything but opinions.’’ He gives final verdict to Ibn Hazm in Al-Muhalla: ‘’the Nass [of the Quran and the Sunnah] is absolute truth; but what you are aiming at – namely, at arbitrary additions to the Nass-laws by means of your personal opinion – is utterly wrong.’’

       Carrying Shah Waliullah’s point regarding freedom of Ijtihad (who stated regarding the men of early generation that they were men and we too are men) further, Asad remarks  that the Companions attitude in juridical matters was ‘’based on the realization that the cases and ordinances stipulated in the nusus of the Two Sources had never been intended to cover all possible constellations and complexities of human life, and that, therefore, the Shariah as such  is concise, clear-cut and open to every mature, sane mind. In contrast, our self-appointed ‘guardians of Islam’ tell us now – as they have been telling us for centuries – that the Shariah is far too complex to be accessible to a ‘layman’s’ understanding.’’

      Two other important points made by Asad, a former Jew who chose Islam, are  a)  that despite alleged corruption in other scriptures some important – and I would say requisite salvific – notions endure in the present versions of major religions - sincere followers of earlier revelations ‘’can be regarded as ‘’righteous’’ in the Quranic sense of this term as well – provided they believe in God’s transcendental oneness and uniqueness, are fully conscious of their responsibility to Him, and really live in accordance with these tenets.’’ b) building on Hayy bin Yaqzan, he maintains that sometimes some individuals can, independently, reach the same salvific truths that the Prophets taught – this point has been elaborately defended by Ismail Shaheed in case of sages (Hukama) in Abaqat. Giving more attention to these points we can carry forward interfaith dialogue and inter-civilisational dialogue much more meaningfully than has been the case till now. The problem is the spirit of Taqlid persists in even academic matters and most Muslim scholars uncritically read the apostle of Ijtihad, Ibn Hazm on religious other, Ibn Taymiyyah and Ibn Jawzi  and Sirhindi on Sufism  and Ghazzali on philosophy and medieval Fuqaha on issues that are in essence new and call for fresh thinking.

      Allama Anwar Shah Kashmiri offers an illuminating discussion on how the Quran is both easy (for remembrance) and difficult and how special cases need to be best approached by experts in specialized sciences. He has also conceded needlessness of apologias for huge edifices of Fiqh corpus. Approaching Fiqh manuals as resource rather than as necessary/binding guides would be better for treasuring our legacy and solving our problems today. One must revive that spirit of the Islamic tradition that announces itself as freeing our chains, rejects attitude of taking Ulema as lords, delegitimizes special authority of any Church/priestly class, questions division between Ulema and intellectuals and secular and religious schools, recognizes centrality of sages/Hukama rather than exoteric Ulema for (re)interpretation of religion, shortlists a few prohibited things leaving the wide earth open to enjoy, respects reason, insight and conscience of every believer, makes a virtue of diversity and simplicity and makes a sharp distinction between well known/ well established path called Sunnah and the Zann inflected corpus of traditions, especially Akhbar-I Ahad that qualifies their role in legislation and their supposed eschatological consequences. We need to ask those who know what we don’t know according to the Quran. And here a knower is a much wider term that, arguably, embraces all specialists. What Asad foregrounds is, to invoke an analogy, the  distinction between general physicians and specialists and dispensability of the latter in case of basic health care services. Asad seeks to question the role of specialized scholars as far as they are said to be indispensable for making the basic salvific message of Quran accessible and required to intervene every now and then on moral/religious/legal and other problems we encounter and if all they have to offer is personal opinions that may or mayn’t be true. He is developing Iqbal’s case for Ijtihad by the Parliament and delimiting the role of Ulema.

Post Script:

Asad, a former Jew, found in Islam and its citadel Mecca and laboratory Pakistan his destiny without losing loyalty, in a deeper sense, for the parent Abrahamic faith and the sacred land Jerusalem. The solution to the Palestinian problem lies in better dissemination of the real meaning of Jerusalem that we find, for instance, in Heschel who stressed its Biblical meaning and function as redemption of all mankind and in Asad who in “Jerusalem: The Open City” and “A Vision to Jerusalem” emphasizes that Muslims seem to have better respected its holiness and didn’t politicize it. Let us hope we give the Sacred its due and see what does it mean that the land belongs to God – and not, in absolute terms, to Arabs or Israelis – and both Muslims and Jews are only trustees required to bear witness of God’s special relationship to communities so that whole Jerusalem becomes a pilgrimage site for Abrahamic children and both Israel and Palestine dissolve physical borders  (and, of course, not histories and traditions as Talal Asad would stress) for all practical purposes and the conflict disappears. For that to happen Torah and Islamic Law have to be taken seriously by Jews and Muslims and here Asad and his son Talal Asad enter into the picture to clarify theology and anthropology involved.