By Dr Muhammad Maroof Shah
31 Aug 2017
Choosing between Diverse Options in Fiqh
Is our fate in the otherworld linked to following particular juristic school in a given case? Is animal sacrifice (Qurbani) mandatory for every individual who can afford it (Sahibi Istita'at)? Is the popular understanding of Qurbani (especially Hanafi one) based on certain reading of prophetic traditions uncontested in Islamic tradition? No is the answer to all these questions. Let us explore why. And our inquiry would be relevant to other important issues that often divide us, declare us guilty or cause us to take positions that we are not sure, at some level, we should be identifying with.
It seems that more careful attention to underlying motivations or rationale of what is called Islamic law (more appropriately, human understanding of Revealed Law, Fiqh) would help all Muslims, irrespective of theological or juristic affiliations including reformists/modernists and their traditionalist critics, to approximate consensus on almost all important issues that currently divide them. Inspired by the idea informing Al-Juwayni’s Ghiyath al-Umam (The Salvage of Nations) that sought to derive/reconstruct Islamic law in a hypothetical situation in which all the schools of Islamic law and jurists had disappeared and one is confronted by the problem of evolving consensus on framing laws within Islamic framework, I wish to ask about the possibility of communicative dialogue (arriving at consensus) between theorists of Islamic law.
The problem, before us, is identifying the deepest or highest principle that informs diverse schools - Shia and Sunni, Taqlidi and Non-Taqlidi, conservative and reformist. I think this principle has not been given due attention in Islamic legal history though marginalized Maqasid based approach comes close to articulating it. This principle is formulating laws as if salvation or our otherworldly destiny mattered. We need to find what is the necessary connection between law and felicity/salvation and agree to uncompromisingly uphold/actualize what is the common minimum part of every legal school that is premised on this link in very clear terms.
I imagine a dialogue amongst the best minds of Islamic tradition contributing to development of Usool-i-Fiqh and especially Maqasid and see them in principle agreeing/converging on the following, among other points:
The ultimate rationale and purpose – even if we don’t necessarily identify or ascertain or grant any rationally discoverable illa in particular cases – should not be lost sight of or compromised. For the Quran God doesn’t create/ordain things in vain. Shariah is not without purpose though we may or mayn’t be able to identify it in some cases. However, connection with worship or our otherworldly destiny for certain rulings is generally accepted.
The ultimate purpose, stated negatively, is salvation from hell/purgatory and stated positively, access to Heaven, especially the Garden of Essence. (Here we discuss minimum qualifications/pass marks required for the former.
It Is Intention That Finally Counts In The Eyes Of God.
Our salvation is not necessarily granted by passing Sawab-Gunah calculus but God’s grace or what is called Fazl has a say here.
It is virtues we have cultivated/internalised rather than mechanical following of rulings that are really conducive to salvation. Salvation of humans is, in Surah al-Asr (about which it has been well observed by Shafei that “If people were to ponder over just this Surah it would suffice them” and Muhammad Abduhu that “If nothing were revealed in the Qur’an except it it was sufficient for mankind”) linked to four things – Iman, right action, exhorting one another to truth and patience. We might see the last two as corollaries of the first two and formulate the conditions as Iman and right action as stated many times elsewhere in the Quran. Believers of every tradition and even most if not all of secular philosophers would grant the logic and force of these four demands. It is often forgotten by legists who make certain legal opinions as if a matter of life and death and resent picking and choosing the most convincing opinion across schools in a given case, that hell only punishes gross violation of moral law and that moral law is essentially shared by Semitic and non-Semitic religions.
A review of eschatological corpus of Islam reveals mostly silence on the issues – or God’s non-interest – that are vehemently advocated by legists and one wonders whom to make responsible for unnecessary guilt and hardship. Issues that divide Muslim legal schools or “modernists” and “traditionalists” mostly make little or no difference to one’s otherworldly prospects and as such should have been less rigidly taken or the other position more empathized with by either camp.
Much of the legal corpus sustains varied orthodox readings and there is “dissent between the various schools on almost all questions of law” implying certain neutrality/wide latitude in terms of otherworldly implications. On the issue of Qurbani we find significant dissent and thus different options remain open to consider without impacting prospects of salvation.
What saves us from hell is surrender of will (as is meaning of Islam) that wants to have a kingdom of its own and claims agency and reward or sanctity. (Sin is to have claimed that I haven’t sinned, as Ibn Hazm remarks in his Al-fasl fil al-Milal wal-Nihal).
Istihsan, validated by majority of jurists, is for avoiding “any rigidity and unfairness that might result from literal application of law.” A major jurist Al-Sarakhsi considers Istihsan as “a method of seeking facility and ease in legal injunctions.”
The terms Farz, Wajib, Sunnah, Mustahab etc. have been fashioned by jurists and may often be contested, at least in application, and are even quite fluid and there are intra and inter-schools disputations regarding the status of most of particular rulings about which we ordinarily are supposed to chose in absolutist terms.
Since it is unambiguously granted that our; a) salvation is not linked to following this or that school of Fiqh (Imam Kashmiri, the great advocate of Hanafi school, has given us a telling confession stating his energies would have been better spent elsewhere as ultimately God didn’t mind our following this or that school) b) there are well attested opinions amongst the Salaf that go against the supposed obligational nature of individual Qurbani (one may see examples and more insightful discussion of prophetic traditions supposed to imply obligational character in Amaar Khan Nasir’s “Qurbani: Nawiyet, Wujoob-o-Istihbab” on http://ibcurdu.com/news/31880) and c) we have now arguments from considerations of Maqasid-i-Shariah that lead to revisit the position of individual obligation, let us resist absolutism on this issue.
Given wide prevalence of divergence in interpretations from the age of Companions till date and given the possibility that our interpretation may be wrong/not final or may miss something more profound that may be revealed later in time and given the consideration that the words of God or Prophet (SAW) are final but our interpretation of them can’t be final let us consider views of those who think differently without going outside the bounds of Tradition. One can chose from diverse opinions (Qurbani Is Wajib/Mandub individually/for head of family/collectively),that better satisfy our mind and conscience and express better the spirit underlying all legislation which is removal rather than imposing of constraint/hardship.
So when you, as an individual, are in doubt concerning any ruling or its true meaning and scope or spirit, search for the diverse opinions held by Mujahids and jurists of all schools and choose the one that furthers love of God and love of neighbour. Since Ulema or jurists differ and none of them may be a priory or necessarily correct in a given case and it is not demanded by God/Tradition to follow any one scholar or school in all matters till eternity (scholars of different schools have sometimes opted for views from another school in certain issues) and knowing well that mountains wouldn’t fall because of differences in opinion which are bound to arise because it is the domain of will or action which is linked to different contexts and historicity, let us not be trapped in holier than thou attitude and accuse those who sacrifice one animal per family of miserliness/being bad Muslims.
I recall Mujahid ul Islam Qasmi, among others, who pleaded for more open attitude to Talfeeq (picking and choosing opinions from other schools). Maulana Thanvi was bold enough to exercise it in some cases to the relief of millions of Muslims. I hope modern Mujtahids follow his example.
Triple Talaq issue wouldn’t have been so alienating for most Muslim women (politics of others apart) if jurists were more open to Talfeeq. The time has come to exercise, for capable jurists, (although many, including God fearing Muslims, have already embraced it in practice!) Talfeeq on many issues including the issue of Qurbani or any issue that one finds incompatible with larger understanding of Tradition grounded in Metaphysics as Scientia Sacra and embracing every tradition we know about without ignoring insightful new thinking respectfully engaging with our worthy predecessor.
Qurbani has been a part of Islamic Shariah but the Fiqh of it – its exact form and popularly supposed obligation on every individual who can afford – has been a matter of debate and thus open to interpretation. For an individual (though not for the collectivity/Ummah) to choose or not to choose to do Qurbani on particular Eid remains an option for which God will not take him/her to task.