CHAPTER THREE: DIVINE AND HUMAN LAWS
And now We have set thee (O Muhammad) on a clear road (Shar‘) of Our Commandment; so follow it, and follow not the whim of those who know not.
It is the Law of God which has taken course aforetime. Thou wilt not find any change in the Law of God.
THE PHILOSOPHY OF LAW IN ISLAM
One of the most difficult aspects of Islam to understand for modern Westerners is the “philosophy of law,” which provides the conceptual foundation for theShari‘ah (literally, “road” or “path”), or Divine Law, in Islam. Since Christ did not promulgate a law like those of the prophets of the Old Testament and the Prophet of Islam, but rather came to break the letter of the law in the name of the Spirit, religious law in the West developed in a very different manner than it did in Islam. Even during the Middle Ages, when Western society was thoroughly Christian, everyday laws were drawn from Roman sources or common law. These sources were clearly distinguished from Divine Law, which in the Christian context involved spiritual principles and not ordinary laws dealing with society in general. Moreover, Christian theologians developed an elaborate doctrine of natural law, which does not have an exact counterpart in Islam, although there are striking developments worthy of comparison in this domain within the two traditions.
Originally, natural law meant a system of rights or justice common to all human beings and derived from nature. St. Thomas Aquinas provided the greatest elaboration of this concept, stating that eternal law exists in God’s mind and is known to us only in part through revelation and in part through reason. For St. Thomas, the law of nature is the “participation of the eternal law in the rational creature.”
Human law, based on precepts that human beings can derive by their own reason, must be a particular application of that law. Now, although Muslim theologians also debated among themselves whether our God-given reason can know the good without revelation, they did not develop a theory of natural law such as one finds in Thomism. Their view was closer to that of John Duns Scotus and Francisco Suarez, who believed that the Divine Will, rather than reason, was the source of law. In any case, even in the Middle Ages there were differences between the Islamic and certain of the predominantly Catholic schools of theology concerning the philosophy of law.
From the Renaissance onward laws became more and more secularized in the West, and they came to be seen as ever-changing regulations devised and defined by society to be made and discarded as circumstances dictate. And with the rise of parliamentary democracy, these laws came to be made and abrogated by the representatives of the people.
Within the context of such a background, it is easy to see why the understanding of the Islamic, and more generally the Semitic, concept of law, which is associated with the Will of God and is meant to determine society rather than be determined by it, poses such a problem for modern Westerners.
Yet such a view should not be so difficult to understand in the West if one only turns to Jewish Law and the Old Testament, which is of course also a part of Christian sacred scripture. In the Old Testament is stated a clear theology that determines the meaning of law for human society.
According to it, God is the Transcendent Reality Who is all powerful and sovereign over human beings. He is the only ultimate sanction of law, and
the laws of human society are the embodiments of His Will. In the Bible, law is designated as God’s commandments (mitsvah; as in Deut.11:13), teaching or instruction (torah; Gen. 26:5), utterance (davar; Deut. 4:13), and norm (mishpot; Exod. 21:1), along with other expressions. Violation of law is seen not only as an offense against society, but also as a moral sin and a violation of God’s order to humanity, for which human beings are accountable to God (Gen. 20:6; Lev. 19-
20, 22). The Bible makes no distinction between religious and secular offense against the law, and the law is seen as a norm by which not only men and women, but all beings must abide (Gen. 2:11-17; 9:1-7). For the rabbis, there was no distinction between fas, God-given laws, and lex, human laws, as claimed by the Romans; all laws were seen as expressions of God’s Will.
Now, this whole understanding of the meaning of law in the Bible corresponds very much to that of the Quran. If modern Westerners were only to grasp what the Old Testament says about law or how contemporary traditional Jews comprehend and practice Talmudic Law, it would be much easier to understand the “philosophy of law” in Islam. For Muslims also, God as the supreme and transcendent Sovereign has revealed His Laws through His prophets. TheShari‘ah is the concrete embodiment of the Divine Will, and in its most universal sense it embraces the whole of creation; what we call laws of nature are “theShari‘ah ” of various orders of corporeal reality. There is no distinction between the religious and secular realms, although the existence of non-Shari‘ite laws are recognized in practice, as we shall see later.
In the Islamic perspective, Divine Law is to be implemented to regulate society and the actions of its members rather than society dictating what laws should be. The injunctions of Divine Law are permanent, but the principles can also be applied to new circumstances as they arise.
But the basic thesis is one of trying to make the human order conform to the Divine norm, not vice-versa. To speak of theShari‘ah as being simply the laws of the seventh century fixed in time and not relevant today would be like telling Christians that the injunctions of Christ to love one’s neighbor and not commit adultery were simply laws of the Palestine of two thousand years ago and not relevant today, or telling Jews not to keep Sabbath because this is simply an outmoded practice of three thousand years ago.
Modern secularists might advance these arguments, but it is difficult to understand how Jews or Christians who still follow their religious tradition could do so. As far as Christianity is concerned, how Christians hold the spiritual teachings of Christ to be immutable can be a key for the understanding of how Muslims regard theShari‘ah . As for Jews, such an understanding should be even easier, because the Islamic understanding of Divine Law is so similar to that found in Judaism, and theShari‘ah and Halakhah hold very similar positions in the two religions, respectively.
As in Judaism, for Islam Divine Law is more central than theological thought to the religious life. One can be a very serious Muslim without interest in kalam, or Islamic theology, but one cannot be a serious Christian
without interest in Christian theology unless one is a mystic or pietist. One could, in fact, say that what theology is to Christianity, theShari‘ah , or Divine Law, is to Islam. To be a Muslim is to accept the validity of theShari‘ah , even if one is too weak to practice all of its injunctions, and to understand theShari‘ah is to gain knowledge of the formal religious structure of Islam. Even those who have sought to go beyond the formal level, through the Tariqah to the absolute Truth, which transcends all forms, have never ceased to revere theShari‘ah and to practice it. The greatest philosophers of Islam from Avicenna to Averroës practiced theShari‘ah ; so did the greatest saints and mystics, such as Ibn ‘Arabi, who wrote that his heart was the temple for idols and house for the Torah, the Gospels, and the Quran, but who never broke the Divine Law or stopped saying his daily prayers, promulgated by theShari‘ah , until his death.
The transcending of the Law in Islam in the direction of the Spirit has never been through the flouting of the Law, through breaking or denying its formal structure, but by transcending it from within. If there have been exceptions for those crazed by the love of God and in a paranormal state of consciousness, they have been there as exceptions to prove the rule. To speak of Islam on the level of individual practice and social norms is to speak of theShari‘ah , which has provided over the centuries guidelines for those who have wanted or wish today to live according to God’s Will in its Islamic form. When we hear in the Lord’s Prayer uttered by Christ “Thy Will be done on earth as it is in Heaven,” for the Muslim His Will is expressed in theShari‘ah , and to live according to this Will on earth is, first of all, to practice the injunctions of the Divine Law. It is on the basis of this practice, meant for all Muslims, that the saintly can then surrender their whole will to the Will of God.
God, then, is the supreme Legislator (al-Shari‘ ).
Through His Laws, before which according to Islam all men and women are equal, human life is sanctified. The Divine Law embraces every aspect of life and removes the distinction between sacred and profane or religious and secular. Since God is the creator of all things, there is no legitimate domain of life to which His Will or His Laws do not apply. Even the most ordinary acts of life carried out according to theShari‘ah are sanctified, and persons of faith who live a life according to the Divine Law live a life immersed in grace, or what in Arabic is called barakah.
Their life gains meaning, and they move through the journey of life certain that they are following a road (shar‘) designated by God, a road that leads to salvation and felicity in the ultimate encounter with Him. To live according to theShari‘ah in both form and inner meaning is to live an ethical life in the fullest sense.
THE SOURCES OF THE SHARI‘AH AND THE METHODOLOGY OF ISLAMIC JURISPRUDENCE
The most important source of theShari‘ah is the Quran, which some scholars claim to be the only basic source; all other sources serve only to elucidate and elaborate the roots and principles contained in the Sacred Text. There are some 350 legal verses, or what Western law calls juris corpus, in the Quran. Some of them deal with specific legal issues and penalties for illicit and illegal acts. A large number deal with the principles of the acts of worship and in some cases the details of such actions. Another group of verses deals with commercial and economic issues. In addition, many verses deal with the questions of justice, equality, evidence in law, legal rights, and so forth. Together these verses constitute only a small part of the Quran, but they are essential as the roots of Islamic Law.
The injunctions of the Quran would not, however, be fully understood without theSunnah and Hadith of the Prophet, which constitute its first commentary. The Quran orders Muslims to pray, but how to pray was learned from the model established by the Prophet. After the Quran, therefore, theSunnah and Hadith are the second most important source of theShari‘ah . All schools of Law, Sunni and Shi‘ite alike, accept these two as the absolutely necessary sources for Islamic Law. It is important to note that it was only after the canonical collections of Hadith were assembled in the ninth century that the definitive work on the methodology of jurisprudence was produced by Imam al-Shafi‘i.
OtherShari‘ah sources are accepted by some schools and not by others. They include qiyas, or analogy, in its juridical sense, which technically means the extension of a Shari‘ite ruling or value from a known and accepted case (asl ) to a new case with the same effective cause, legally speaking. These sources also include ijma‘, or consensus, which is usually considered to be the consensus on a legal matter of the legal scholars who are specialists in theShari‘ah , but which in Islamic history has also been the consensus of the whole community over a long period, as in the case of the banning of slavery and the acceptance of tobacco as being halal, that is, legally acceptable rather than forbidden. There is, in fact, a hadith of the Prophet that asserts: “My community shall never agree on error.”
Then there is istihsan, or equity, which differs from equity in Western law in that in the latter equity relies on the concept of natural law, whereas istihsan relies on theShari‘ah ; otherwise, they are similar in that both are concerned with the idea of fairness and conscience in law. Finally, in this brief account one must mention mas.lah. ah mursalah, or considerations of public interest that are harmonious with theShari‘ah and the objectives of the Lawgiver.
An important point here is the position within theShari‘ah of human custom and law as distinct from the Divine Law. What in classical texts is called ‘urf or ‘adah, meaning human custom or habit, is considered valid in theShari‘ah itself if such a custom or habit does not contradict or contravene theShari‘ah . Therefore, human laws not derived from the Divine Law can become integrated into the Islamic legal system as long as they do not oppose the edicts of theShari‘ah . This occurred often
throughout Islamic history. Divine Law is referred to asShar‘ , and human law is referred to asqanun (from the Greek word kanon, which is also the source for the word “canonical” in Western law). Paradoxically, nonreligious law in Islam uses the same term as religious or ecclesiastical law in Christianity.
From the point of view of theShari‘ah , to follow theqanun of any country in which one finds oneself is itself commended as long as thatqanun or law does not contradict the injunctions of theShari‘ah .
Historically and in contrast to the modern period, there was much harmony betweenShar‘ andqanun in the Islamic world, and traditional Muslims did not feel any appreciable tension between Divine Law and human law.
This tension is a modern phenomenon that began in the nineteenth and early twentieth centuries with the abrogation of theShari‘ah in certain Muslim countries and the forced implementation of various European legal codes, for example, in Persia, Egypt, Turkey, and North Africa. In these and similar countries, needless to say, the substitution of European laws for theShari‘ah created a tension between private religious life and the public domain and drew the majority of the population further away from their governments, which they began to view as anti-Islamic or at best indifferent to Islam.
In the hierarchy of the sources mentioned above, the Quran stands at the highest level, followed by theSunnah andHadith . An elaborate methodology was developed to deduce rulings from these sources and create the body of Islamic laws. This science of deriving juridical decisions from sources is called the “principles of jurisprudence” (us.ul al-fiqh ) and is central to Islamic Law. Althoughfiqh itself originally meant “understanding” or “knowledge” in general, gradually it came to be associated with the “science of the law,” or jurisprudence, corresponding to what the Romans called iurisprudentia. It deals with the body of the law and ways of concluding legal views from the principles and sources of the law.Fiqh has, therefore, a more technical legal meaning than theShari‘ah , which includes moral laws and the general framework for the religious life of Islam.
Fiqh, according to traditional authorities, is knowledge of the practical regulations and rules of theShari‘ah acquired by reference to and detailed study of the sources.
Although the fifth and sixth Shi‘ite Imams, Muh.ammad al-Baqir and Ja‘far al-Sadiq, said much aboutfiqh and its principles, it was Imam al-Shafi‘i who, in his Risalah (“Treatise”), established the systematic methodology for deriving laws from the sources. To exercise such an intellectual undertaking is called ijtihad, and the person who can give fresh views on matters of law by going back to the sources is called a mujtahid. In the Sunni world the “gate of ijtihad” closed after the tenth and eleventh centuries, when the major schools were established, whereas in the Shi‘ite world it has remained open to this day and in each generation the mujtahids have derived the laws from the established principles and sources, which for
Shi‘ites are the Quran, theHadith of the Prophet, and the teachings of the Imams.
Through the meticulous following of the methodologies elaborated inus.ul al-fiqh , the major schools of Sunni Law already mentioned, that is, the Hanafi, Maliki, Shafi‘i, and Hanbali, came into being, as did the Twelve-Imam Ja‘fari School and the Zaydi, Isma‘ili, and ‘Ibadi schools. Since the last century, a great debate has taken place in the Sunni world about opening the “gate of ijtihad” again, and in both the Sunni and the Shi‘ite worlds, fundamental discussions are taking place today about the future development and application of theShari‘ah to Islamic society facing major new challenges, including those issuing from biotechnology and all the problems that it poses for ethics.
In this domain the recent responses of Jewish and Christian thinkers are close to Muslim ones, and the followers of the three monotheistic faiths can certainly collaborate together on many issues in the fields of bioethics and environmental ethics.
TheShari‘ah can best be understood through the use of the symbol of the tree, mentioned in the Quran: “Seest thou not how God coineth a similitude: A good saying, as a goodly tree, its roots set firm, its branches reaching into heaven” (14:24). This symbol has many levels of meaning, one of which concerns theShari‘ah . Divine Law is like a tree whose roots are sunk firmly in the ground of revelation, but whose branches extend in different directions and have grown in various ways. The firmness of the roots does not mean that the tree is not living. On the contrary, it is the very firmness and immutability of the roots that guarantee the flowing of the sap into the branches and the continuous life of the tree. TheShari‘ah has developed in many different cultural and political climates over the centuries.
It has harbored many differences of interpretation, and yet it has remained theShari‘ah . Today it is faced with unprecedented challenges both from within the borders of the “Abode of Islam” and from outside, but it remains a living body of law that Muslims consider the concrete embodiment of God’s Will for them to follow on the basis of their faith and free will.
TO WHOM DOES THE SHARI‘AH APPLY?
According to all schools of Islamic Law, the injunctions of theShari‘ah of Islam apply to all Muslims, male and female, who have reached the legal age and only to them. All Muslims are in principle equal before the law, whether they are kings or beggars, women or men, black or white, rich or poor. The Quran especially emphasizes that its injunctions concern both men and women in several verses where both sexes are addressed clearly and in a distinct manner, as when it says:
Verily, men who surrender unto God, and women who surrender, and men who believe and women who believe, and men who obey and women who obey, and men who speak the truth and women who speak the truth . and men who give alms and women who give alms, and men who fast and women who fast, and men who guard their modesty and women who guard (their modesty), and men who remember God much and women who
remember-God hath prepared for them forgiveness and a vast reward. (33:35)
In a society ruled by theShari‘ah and in which Muslims are the majority, accepted religious minorities are absolved from following the IslamicShari‘ah except in that which concerns public order. According to the IslamicShari‘ah itself, Jews, Christians, and other “People of the Book,” which in India included Hindus and in Persia the Zoroastrians, have their ownShari‘ah , and therefore their personal and communal affairs should be left to them. This is how the “community system,” or millat system, of the Ottoman world functioned for many centuries. In the millat system the central government, although Islamic, recognized fully the social, economic, and especially religious rights of established minorities, so that there was no danger of the majority destroying the presence or identity of minority groups. Under the Ottomans the rights of Jews and Christians were guaranteed by the state itself. Although there were occasionally social frictions, by and large there was certainly much greater tolerance between various groups than what we have observed in Yugoslavia since its breakup, with all those horrendous acts of ethnic cleansing and genocide that followed.
CATEGORIES OF ACTIONS AND VALUES
According to Islamic Law, the Lawgiver, that is, God, has made a demand upon human beings in five categories:wajib orfard (obligatory),mandub (recommended),haram (forbidden),makruh (abominable), andmubah or halal (permissible). Each of these categories possesses nuances and subdivisions into which we cannot go here. Just to cite one example,wajib orfard can involve the individual (‘ayni ) or the collectivity (kafa’i ). The daily prayers arewajib ‘ayni , incumbent upon each and every individual, while building orphanages and hospitals is obligatory upon the community as a whole (wajibkafa’i ) and not on a particular person.
Obligatory injunctions include the “pillars of Islam,” or the rites to which we shall turn later, and taking good care of one’s health to the extent possible. They also include supporting one’s family, feeding the hungry, and paying the dowry of one’s wife. Recommended(mandub) acts are not required, but are pleasing in the eyes of God and bring reward in the Hereafter. Such acts are called acts of rectitude and bring with them reward from God(thawab) .
They include acts of nonobligatory charity, for example, building a school or mosque, performing extra prayers, and following the example of the Prophet in personal matters recommended but not required by theShari‘ah .
The category of the forbidden (haram ) includes all acts the commission of which is punishable and the omission of which is rewarded. This includes all the “Thou shalt not” injunctions in the Ten Commandments such as murder, adultery, and theft as well as others such as the eating of pork, the drinking of blood, use of alcoholic beverages, usury, gambling, marrying two sisters at the same time, and looking at the private parts of others (excluding one’s spouse). This category covers a wide range from moral and ethical issues to practical dietary matters.
Something is abominable(makruh) if omitting it is better than performing it, and this category is the opposite of what is recommended(mandub) . The person who commits an act that ismakruh cannot be punished by law, but the person who avoids themakruh gains merit with God.
Something such as divorce, which is permitted but considered to be “the most abominable of permitted things” in the sight of God, ismakruh . Another example is the wearing of gold and silk by men. There are alsomakruh acts in the economic field, such as making an offer to buy something for which another person has already made an offer.
Finally, the permissible, ormubah , pertains to any act a person has the equal option of performing or not performing.
The most obvious case is that of consumption of food that the Quran andSunnah consider to be permissible to Muslims. Also, a sinful act committed under necessity can become permissible andmubah An example of this would be eating a carcass of a dead animal when one is dying of hunger and has no other means of nourishment. In general any act that does not belong to one of the other four categories is permissible, provided it does not cause harm.
Since many Muslims now live in the West, the term halal has practically entered into everyday English vocabulary.
This fact necessitates elucidating somewhat further how the category of halal pertains to dietary regulations, although of course this category is far from limited to these matters.
Like Judaism and Hinduism and in contrast to Christianity, Islam has dietary regulations that have a religious basis and are a means of sanctifying everyday life. Islamic dietary laws are not as complicated as those of Hinduism and Judaism, but they share some elements with the latter. Like Jews, Muslims refrain from eating products of the swine, whether flesh or grease derived from the flesh. And also like Jews, they eat only certain animals, such as cows, sheep, birds, and so on, but on condition that they have been killed ritually and in the Name of God. For Christians the sacrifice of Christ removed the necessity of the ritual slaughter of animals in order that their meat might be consumed, but not for Jews and Muslims. What is called kosher meat in Judaism corresponds closely to halal meat in Islam. Muslims also refrain from the use of any alcoholic beverages, not because they are chaotic in their very substance like the flesh of swine (the swine is envisaged by both Judaism and Islam from the point of view of ritual purity for human beings and in light of what it consumes as an animal), but because, as the Quran says, its harmful effects outweigh its positive ones. The Quran speaks of the pure wine the virtuous shall taste in Paradise, and wine as a symbol of realized knowledge of God combined with love for Him plays a central role in Sufi poetry.
Some in the West have claimed that the Shari‘ite division of acts into five categories destroys the spontaneity of religious life and reduces it to a mechanical exercise without grace. Nothing could be further from the truth for either Islam or other religions with similar views of Sacred Law, such as Hinduism and Judaism. The Shari‘ite categories are so many signposts along the road of life, but men and women still have to travel on this road and in every step there is the tension between the good and the evil tendencies of the soul, between what Simone Weil called gravity and grace. The drama of human existence and the tremendous responsibility that having free will entails for the human being are not in any way diminished by any Sacred Law, but are enacted and lived in each religious universe according to the principles and norms dominating that universe.
But the drama within the soul is nevertheless there for all religious beings whether they are Jews, Zoroastrians, Christians, Muslims, Hindus, Buddhists, Taoists, Confucians, or followers of one of the primal religions. TheShari‘ah for Muslims neither destroys that drama nor removes human responsibility before God and one’s own conscience. Rather, it provides the framework for the religious life of the individual and the community and sanctifies daily life.
THE CONTENT OF THE SHARI‘AH: ACTS OF WORSHIP AND TRANSACTIONS
Traditionally theShari‘ah has been divided into two parts: the ‘ibadat, or acts of worship, and the mu‘amalat, or transactions. The heart of theShari‘ah may be said to be the part dealing with the ‘ibadat. Even in modern times, when in many lands governments have replaced much of theShari‘ah with European laws, the part dealing with worship continues to be practiced and could not but continue to be the foundation of the religion, or what Muslims themselves call arkan al-din, the “pillars of the religion.”
These “pillars” include (besides bearing witness to the two shahadahs) the daily prayers (s.alah), fasting (s.awm), almsgiving(zakah) , and pilgrimage(hajj) . As for jihad, meaning “exertion in the path of God,” to which we shall turn extensively later in this book, it is a necessity for carrying out any act pleasing to God including all the “pillars.”
Acts of Worship
Daily Prayers: Of all the Islamic rites, the most important and central are the daily prayers (s.alah), whose form was revealed by God to the Prophet and was then taught by him to Muslims. This rite is obligatory upon all men and women (except during their menstrual period) from the age of puberty until death. Five times a day, determined by cosmic events and not any mechanical or electronic means, Muslims must make a ritual ablution, which is a purification like the Catholic confession, and then perform the prayers.
The ordinary ablution involves the ritual washing with clean water of the hands, face, arms, feet, and the top of the head. This is in addition to the washing of the anus and the male or female organ after relieving oneself. A total ablution, which involves the washing of the whole body, must be performed after certain states and actions such as sexual intercourse. That is why every Muslim town and city from the seventh century onward has always had public baths, some of which that have survived being outstanding works of art. Before modern times, for many centuries the only towns in Europe that had bathhouses were those that were or had been ruled by Muslims. The ritual ablution, a very important aspect of the Islamic pattern of life, is also closely associated with the importance of cleanliness. Certain verses of the Quran and sayings of the Prophet constitute the Islamic counterpart of the Western adage that cleanliness is related to godliness.
After making the ablution, wearing ritually clean clothing and standing on clean ground, Muslims turn in the direction of Mecca and perform the prayers. These involve the recitation of verses of the Quran and the making of certain bodily movements that integrate the psycho-physical dimension of the human being into its spiritual archetype.
In the prayers each person acts as his or her own priest standing directly before God. But when two or more people are present, it is recommended that the prayers be said in assembly with one person, called the imam, leading it. On Fridays the major weekly congregational prayers include a sermon, which often contains an important social and political message as well as an ethical and spiritual one.
The heart of s.alah is the first chapter of the Quran, called the Surat al-Fatihah (or Opening Chapter), which is repeated in every unit of the canonical prayer. It is the heart of the Quran and contains the message pertaining to the dimensions of the ultimate relation between human beings and God. The surah is as follows:
Praise be to God, the Lord of the worlds, the Infinitely Good, the All-Merciful, Master of the Day of Judgment.
Thee we worship, and in Thee we seek help.
Guide us upon the straight path, the path of those on whom Thy Grace is, not those on whom Thine Anger is, nor those who are astray. (1:2-7)1
The life of the practicing Muslim is punctuated ever anew by the daily prayers, which break the hold of profane time upon the soul and bring men and women back to a sacred time marked by the meeting with God and to a sacred space pointing to the supreme center of the Islamic universe, Mecca, where the celestial axis penetrates the plane of earthly existence. The prayers are a rejuvenation for the soul, protection against evil acts, and a shelter for believers amid the storm of the life of this world. They have many levels of meaning, from the most outward to the most esoteric known to and experienced only by the sages and saints who are the friends of God. The canonical prayers were constituted in such a way that all kinds of people with various degrees of understanding and perspicacity can participate in them and be nourished by them according to their own capacity. They are a Divine norm transcending the individual order, and yet they act as the gate for the individual’s access to the universal. There are in Islam two other modes of prayer, the prayer of the heart, meant only for those following a spiritual path, or Tariqah, and individual prayers (du‘a) that Muslims, like Christians, Jews, and others, perform from time to time. The s.alah, however, is incumbent upon all Muslims, for it is the guarantee of our living in accordance with our theomorphic nature as beings reflecting God’s Names and Qualities and the means whereby we stand directly before God to address Him as His vicegerents on earth.
Fasting: Like the daily canonical prayers, fasting (s.awm) is an obligatory rite to be performed during the lunar month of Ramad.an by all Muslim men and women from the age of puberty until old age. It is a fast from all food, drink, smoke, and sexual activity (also evil thoughts and deeds) from dawn to sunset (and for Shi‘ites until dusk).
This rite is, however, obligatory only for those who have the physical capability to carry it out. Exceptions are made for the sick and those on a journey (who must make it up later), women in their menstrual period or pregnant or nursing a child, and those who are too weak because of old age. The month of Ramad.an was the month of the descent of the Quran. In this holiest of Islamic months, Muslims combine physical and psychological purification with an intensification of prayer, recitation of the Quran, and acts of charity. During this month, in almost all Islamic cities, vast amounts of food are provided free for the poor, and the cost of the one meal that one and one’s family does not eat each day is given to the needy.
During the fast one puts on, in a sense, the dress of death and distances oneself from the passions that attach one to the world. It is a time for great
self-discipline and the practice of the virtues of patience and persistence in hardship for the sake of God. It is also a time to develop greater compassion toward the needy and to realize what it means to suffer from hunger. The Prophet loved fasting, and in a way fasting from food in Islam corresponds to abstaining from sexuality in Christianity, which exists as a religious ideal although only practiced fully by those who observe celibacy. The Founder of Islam fasted on many other days during the year, and there are many who emulate his model to this day. But the only obligatory fast is that of Ramad.an, which is practiced by the vast majority of Muslims throughout the world to this day.
It is necessary here to say something about the Islamic lunar calendar, which determines the period of fasting as well as other religious rites and ceremonies. In Islam all religious events are based on the lunar calendar, although the solar calendar is used for agricultural and other matters.
In fact, the most accurate solar calendar ever devised, more accurate than the Julian or Gregorian calendars, is the Jalali calendar, devised by the famous mathematician-poet ‘Umar Khayyam and others in the twelfth century and still in use in Iran and Afghanistan. This solar calendar divides the year into twelve months, the first six of which have thirty-one days, the next five, thirty days, and the twelfth month, twenty-nine days, except on leap year when it has thirty days. It therefore makes it easier to keep count of how many days are in each month as compared with the Western calendar and is also astronomically more precise. But Islam explicitly bans intercalation, which means adding a number of days to the lunar year to make it the equivalent of the solar year. Consequently, the Islamic lunar calendar moves through the solar calendar completing one cycle every thirty-three years. As a result, Ramad.an is sometimes in the winter and sometimes in the summer, sometimes during long and hot days and sometimes during short and cool ones. Since Islam is a global community, this injunction banning intercalation, as foreseen in the Quran, guarantees fairness and justice as far as conditions go for fasting, the hajj, and early morning prayers for people living in different geographical latitudes and in the two different hemispheres of the globe.
Almsgiving: The word for almsgiving, zakah, comes from the root zky, meaning “to purify.” It is a tithe or alms whose payment is obligatory according to theShari‘ah and is the means of “purifying” what bounties God has given by sharing some of it with the poor and the needy. In traditional Islamic society, this sum was paid to the public treasury.
Many projects for public use, such as the creation and maintenance of schools, hospitals, orphanages, and the like, were implemented by use of the sums collected through this religious tax.
Those familiar with Jewish and Christian practices can see obvious similarities in the use of tithing in the three Abrahamic traditions. The word “tithe” comes from the Old English word meaning “tenth,” but the practice goes back to Judaism, where Mosaic laws prescribed the paying of tithes for the support of the Levites and temple service.
The book of Numbers (18:21) in the Old Testament states, “I have given the children of Levi all the tithes in Israel for an inheritance in return for the work which they perform.”
The practice was followed later by the Roman Catholic Church and revenues were used for the support of clergy, churches, and the poor. It became enjoined by ecclesiastical law from the sixth century onward and enforced by secular law starting in the eighth century. It provided the main source of funds for the building of the beautiful medieval cathedrals. Martin Luther approved of tithing, while the French Revolution repealed it. In contrast to Catholicism and Protestantism, however, the Orthodox Church did not accept the practice of tithing. As far as the United States is concerned, the practice of tithing was never enforced except by Mormons. Looking at Western Christianity in general, one can therefore see that tithing and zakah are similar, although the amount of the alms or religious tax has not been the same in the three Abrahamic faiths.
In Shi‘ite Islam in addition to zakah, there is also another obligatory religious tax called khums, meaning one fifth. Moreover, there are many other kinds of almsgiving common to all Muslims, such as s.adaqah, a sum given to the poor in gratefulness to God for the warding off of some danger or the receiving of a special blessing, or fit.riyyah, money given to the poor at the end of the month of Ramad.an. These forms of almsgiving must not, however, be confused with the zakah, which is obligatory and one of the “pillars” of Islam.
In general, theShari‘ah encourages giving(ithar) in the path of God, and Muslims agree completely with the dictum of the Gospels, “It is more blessed to give than to receive.” Much of the social and economic life of Islamic society, in fact, continues to be financed through various forms of religious charity. The institution of waqf, or religious endowment, whose conditions are set forth in Islamic Law, has played the greatest role in Islamic history in the creation of public facilities, especially schools and hospitals.
Today in most Islamic countries the waqf is taken over by governments, but traditionally the waqf was like the endowments created and sustained by the private sector in America today, except that it was always of a religious character.
Pilgrimage: Thanks to radio and television broadcasts available globally, most of the world has now heard of the Muslim pilgrimage, the hajj, and most likely seen images of what is perhaps the largest annual religious gathering in the world. The hajj, which is obligatory at least once in a Muslim’s lifetime if he or she has the financial means and is physically able to perform it, involves pilgrimage to Mecca during a particular period in the lunar month of Dhu’lhijjah. The rite retraces the acts of Abraham after he rebuilt the Ka‘bah (the cubic structure at the center of Mecca considered by Muslims to be the most ancient sanctuary, built originally by Adam) and follows the model established by the Prophet. It is in a sense an Abrahamic rite within the final expression of monotheism, that is, Islam, which revived and reestablished pure Abrahamic monotheism.
The pilgrim, whether male or female, must wear a special white cloth, called ih. ram, before entering the sacred precinct around Mecca, within which only Muslims are allowed, a cloth that is often used later as one’s shroud. In becoming muh. rim, that is, clothed with this special cloth, men and women must leave the world behind. During the hajj they must abstain from sexual activity and devote themselves wholly to God, whose House, the Ka‘bah, they are visiting. Here all external distinctions are erased; king and peasant are dressed in the same manner. The complicated rites involve among other acts circumambulation around the Ka‘bah in a counterclockwise direction with the awareness that one is moving against the march of time and washing away from one’s soul all the dross that has accrued within as the result of the flow of time. Through these rites, which include the sacrifice of an animal symbolizing the sacrifice of one’s passionate soul before God, the pilgrim returns to the state of primordiality, or the Edenic state in which he or she was created, and God forgives that person’s sins if the hajj is performed with full sincerity and devotion. That is why many older people make the pilgrimage with the hope of dying in the process and therefore leaving this world cleansed of their sins. At the corner of the Ka‘bah is to be found the black stone that symbolizes the covenant between human beings and God. All pilgrims seek to kiss and touch it to remind themselves concretely of the primordial covenant they have made with God to accept the state of being human, which means to accept the Lordship of God and surrender to Him.
The hajj is both the means of purification of the individual and the integration of society. Muslims from all parts of the world are to be seen at the hajj. Today the over 2 million people who perform it each year come from all quarters of the world and include Arabs, Persians, and Turks as well as Black Africans and Malays, Chinese and Indo-Pakistanis as well as Germans and Americans, black-skinned as well as fair-skinned people, pilgrims with dark eyes as well as blue ones. Nowhere else in the world is the ethnic and racial diversity of the Islamic community unified in the surrender to the One God more evident than in Mecca during the hajj. Here, exchange of ideas and goods also takes place between Muslims from various parts of the world, and the Divine and Human Laws 137 hajj has been called by some Western scholars the world’s first international scientific congress as well as international economic fair. But more than anything else, through the hajj, pilgrims are purified and in returning home bring something of the grace, or barakah, of the Center to the farthest outreaches of the Islamic world.
With the global population explosion, the problem of accommodating all the pilgrims who wish to make the hajj has become acute. Although the number of pilgrims has now risen to over 2 million, this is still a small percentage of the 1.2 billion Muslims in the world, not all of whom, however, fulfill the conditions necessary to make the hajj.
The number of those who do qualify annually according to the Divine Law to make the hajj, however, is much larger than those given permission to perform it. There is therefore a great deal of pressure on most Muslim governments as well as on Saudi Arabia to permit more pilgrims every year,
while at the same time the very logistics of such a large gathering and the space limitations make it impossible to continue to increase the number of pilgrims. In view of the limitations, some Muslims make the pilgrimage to Mecca outside of the specified season to benefit from the grace of the visit to the House of God even if it is not during the days specified by Islamic Law.
The hajj, however, is not the only form of Islamic pilgrimage, but the only one that is obligatory according to theShari‘ah if certain conditions are fulfilled. Today in America, pilgrimage does not play such a central role in the religious life of Protestants, although there are still those who make pilgrimage to Jerusalem. As for Catholics, both in America and Europe there are still those who make pilgrimage to Jerusalem, Lourdes, or Rome, and in Central and South America to local shrines such as that of the Virgin of Guadalupe in Mexico City. In the Middle Ages, however, pilgrimage was much more common in the West, not only to Jerusalem, which served as the excuse for the Crusades, but also to many local sites such as Canterbury in England and Santiago de Compostela in Spain. The importance of pilgrimage in Islam today must be compared more to practices in the earlier eras of Christian history than those today, especially in America.
In the Islamic world, those who make the hajj also visit the tomb of the Prophet in Medina and before the 1967
Israeli takeover of Jerusalem, they also made pilgrimage in large numbers to this third holy city of Islam. Many local sites of pilgrimage are loci of grace associated with the tombs of descendants of the Prophet and the great saints.
All of these sites are so many extensions of Medina and expand the barakah of the city of the Prophet and his sacred remains to the various areas of the Islamic world.
Some of these sites are the tomb of Ah.mad Bamba in Touba, West Africa; the two Moulay Idrises in the proximity of Maknes and in Fez; the Mosque of the “Head of Husayn” in Cairo; the tomb of Sayyid Ah.mad Badawi, the patron saint of Egypt, in Tanta; and the “sacred stations” of Zaynab in Cairo and Damascus. The many holy sites in Iraq include the tomb of ‘Abd al-Qadir al-Jilani and the mausoleums of the Shi‘ite Imams, especially those of ‘Ali in Najaf and H. usayn in Karbala’. The mausoleum of Jalal al-Din Rumi in Konya, Turkey; the holy cities of Mashhad and Qom in Iran; the mausoleum of Khwajah ‘AbdAllah Ans.ari in Herat and that of Baha’ al-Din Naqshband near Bukhara; and the tombs of many of the great Sufi saints of the subcontinet of India such as that of Dadaji Ganjbakhsh in Lahore, Niz.am al-Din Awliya’ in Delhi, and Mu‘in al-Din Chishti in Ajmer, which are among the greatest sites of religious life in Islam. During annual commemorations of the death of these saints, often hundreds of thousands of people gather at these locations for religious rites and to receive blessings.
It is important to note that these sites of blessing are not limited to the sacred station(maqam) , or mausoleum, of males, but include those of females as well. In Cairo, after the Mosque of the “Head of H. usayn,” the most important sanctuary and center for pilgrims is the maqam of the
granddaughter of the Prophet, Zaynab, whose other maqam in Damascus is in many ways the religious center of the city. Also in Cairo, the mausoleum of Sayyidah Nafisah, a great scholar, saint, and descendant of the Prophet, is a major religious site. In Iran, after Mashhad, the city of Qom, which is the center of Twelve-Imam Shi‘ism, is the most important shrine in Iran because of the tomb of Had.rat-i Ma‘s.umah, the sister of Imam Rid.a, who is buried in Mashhad. And before the Wahhabis destroyed the mausoleums of the wife and daughter of the Prophet, Khadijah and Fat.imah, in the Hijaz, those sites were also major centers for pilgrimage. Naturally, these mausoleums of female saints are visited especially by women, but not exclusively.
Both men and women participate in large numbers in pilgrimage to all of these sites, whether they are associated with a male or female saintly figure.
Visits and pilgrimage to the tombs of saints is strongly opposed by Wahhabis and other puritanical reformers and also discouraged by modernists. The Wahhabi opposition is based on the idea that to visit the tomb of a saint is like idol worship and takes one’s attention away from the transcendence of God; modernists have discouraged such pilgrimages in order to secularize social life, but their opposition has never been as severe as that of the Wahhabis. Still, the practice of pilgrimage to various holy sites remains to this day at the heart of the religious life of the Islamic world.
One cannot understand the religious practice of Islam without paying attention to the significance of pilgrimage, which ranges hierarchically from the hajj and the pilgrimage to Medina to visitation of local sacred sites that exist in most Muslim lands. These “lesser” forms of pilgrimage do not, however, in any way detract from the centrality of the hajj, but are like so many foretastes and reflections of it.
The visit to the “House of God” remains supreme in the mind of Muslims when it comes to pilgrimage, and many visit it even outside the designated season in what is called ‘umrah. That is why today, when populations have increased and travel is easier, every day of the year there are numerous pilgrims in Mecca, and in the middle of any night during any season one finds thousands of pilgrims circumambulating around the Ka‘bah and praying before the house rebuilt by Abraham in celebration of the One God who in the Old Testament uttered, “I am That I am.”
Besides all these rites promulgated by theShari‘ah , there are also many other religious practices in Islam based on theSunnah of the Prophet and later traditional elaborations thereof. They include ritualized ways of feeding the poor, sessions of special prayers, ritualized sermons, sacrifice of animals whose meat is then distributed among the needy, and many other activities. In the traditional Islamic world, in fact, nearly every necessity of life is sanctified, and theShari‘ah considers even the earning of one’s daily bread a religious act. It is the totality of the obligatory rites as well as the recommended ones together with the sacralized forms of many different actions that constitute the Islamic way of life, in which, in principle, there is no distinction between the sacred and the profane and what we now call ordinary or everyday life is integrated into the matrix of the sacred.
Transactions It is precisely the all-embracing nature of theShari‘ah that has necessitated its dealing with what are called transactions (mu‘amalat)-social, environmental, economic, and political matters such as personal laws, the family, the neighbor, and so forth. Social teachings are dealt with in the next chapter, but here it is necessary to say a few words about the environmental, economic, and political teachings of theShari‘ah , some of which are parts of jurisprudence, or fiqh, and others principles to be applied by various generations of Muslims to specific situations in the absence of explicit legal rulings.
Environmental Teachings: The environmental crisis is primarily the consequence of an inner malaise and a whole worldview that gives human beings unlimited power over nature seen as a desacralized reality. This manner of looking at things has resulted in the reduction of nature to only a resource for economic production. As far as dealing with it on the social and legal planes is concerned, however, for Islam environmental matters may be said to be a legal issue already treated in principle in the sources and applications of Islamic Law, whereas in the West law seems to be trying to “catch up” with the problems caused by this crisis. The traditional Islamic worldview is totally opposed to the prevalent modern paradigm of the relation between human beings and nature, which has caused unprecedented harm to the natural environment, has led to the loss of many species, and now threatens the very future of human life on earth. Islam sees men and women as God’s vicegerents on earth. Therefore, in the same way that God has power over His creation but is also its sustainer and protector, human beings must also combine power over nature with responsibility for its protection and sustenance. The Quran is replete with references to nature, and the phenomena of nature are referred to as God’s signs and are therefore sacred. In traditional Islamic society human beings lived in remarkable harmony with their natural environment, as can be seen in the urban design of traditional Islamic cities and also in the life in the villages, which, as in other premodern parts of the world, is still based on remarkable harmony with the rhythms of nature and makes full use of what is now called recycling.
On the basis of the Quran andHadith , theShari‘ah has extensive teachings, both legal and moral, concerning the natural environment: the way that animals should be treated kindly, trees preserved and not cut unless absolutely necessary, vegetation guarded even in war, running water protected, and many other relevant issues. The Prophet himself was always very kind to animals. As for trees, he emphasized the significance of creating what is today called green space; He said, “It is a blessed act to plant a tree even if it be a day before the end of the world.” TheShari‘ah promulgates certain general principles concerning the environment, such as that of balance(mizan) between all parts of God’s creation, the prohibition of waste, and respect for all life forms, and specific injunctions, such as the creation of protected areas for wildlife.
But in many areas where crises have been created during the past century as a result of the advent of modern technology, overpopulation, economic plunder, and so on, specific Shari‘ite laws are missing. For some time the
Islamic world, like the rest of the non-Western world, neglected the environmental crisis and thought that it was a problem only for highly industrialized countries. As the dimensions of the crisis grew, however, the situation changed during the last two decades of the twentieth century. A whole new branch of theShari‘ah is now being developed on the basis of the traditional sources of the Divine Law to address the crucial problems posed by the environmental crisis in the Islamic world as elsewhere. From Nigeria to Malaysia, legal scholars are applying themselves to these issues, and this branch of theShari‘ah is one of the most challenging and dynamic aspects of it in the present day.
Economic Teachings: Before modern times there was no such thing as economics among the Islamic sciences, just as it was not part of European divisions of learning before the Renaissance. Both civilizations knew the Latin word oeconomicus (itself of Greek origin), from which the modern word is derived, but understood it in its original sense of managing the affairs of one’s household. The modern Arabic word for economics, al-iqtis.ad, in fact, had the completely different meaning of “moderation” or the “just mean” in classical Arabic and is part of the title of one of the most famous works of Islamic theology by al-Ghazzali.
One could not say, of course, that there was no economics in Islam, but the area or activity known as economics as we understand it today was never isolated by itself in Islamic society. It was always combined with ethics and was seen as an organic part of the life of human beings, all of which should be dominated by ethical principles. That is why the very acceptance of economics as an independent domain, not to speak of as the dominating factor in life according to the prevailing paradigms in the modern world, is devastating to the Islamic view of human life.
If we were to accept the modern definition of economics, then we could say that the Quran has many verses that refer to economic life, including questions of inheritance, religious tax, opposition to excessive amassing of wealth, and so forth. It also contains, as does theHadith , numerous ethical teachings that bear directly upon economic life and are incorporated into theShari‘ah . These include opposition to greed, the importance of honesty in all economic transactions, the inviolability of private property, and so on. As far as property is concerned, in principle “all property belongs to God,” but God has given human beings the right to possess their own property, although a limit is set on the right to private property when it comes to what is meant for everyone and should remain public such as mountains, forests, and rivers.
TheShari‘ah promulgates a work ethic of central importance to economic life. The Quran states, “O ye who have faith! Be faithful to your covenants (‘uqud)” (5:1). This verse connects work ethics explicitly to human religious life. Covenants can be between human beings and God, between the human being and his or her own soul, or between an individual or group and another person or group. The third covenantal relationship is at the foundation of Islamic work ethics, but at the same time is inseparable from the other two. On the basis of this and other verses, theShari‘ah teaches that in all economic transactions the two sides must strictly observe
the conditions on the basis of which a transaction is to take place. Both the employer and employee or the buyer and seller have a responsibility to keep their covenant, and the manner in which they carry out a transaction affects their soul as well as their relation to God.
As far as the relation between employer and employee is concerned, theShari‘ah emphasizes the significance of personal relationship and recommends fairness and kindness on the part of the employer, who is in a position of power over the employee. According to ahadith , a worker should be paid wages due before the sweat on his or her brow has dried. This personal relationship in economic transactions is so emphasized in Islamic civilization that to this day, even amid modern impersonal economic practices, most Muslims still rely on and trust personal contact above all else.
This personal relationship was of course also very much emphasized in the production of goods, as we see in the guilds, to which we turn in the next chapter.
TheShari‘ah , moreover, opposes certain economic practices, some of which are forbidden and others discouraged.
The practice of usury (riba’) is forbidden in the Quran and according to Islamic Law, as it was forbidden in the Roman Empire, in Europe in the Middle Ages, and even in England before Henry VIII. The excessive amassing of wealth, to which the Quran refers in terms of gold and silver is also forbidden, as is dealing with substances that are themselves haram, such as making or selling alcoholic beverages. Such acts are considered both illegal and sinful. Altogether theShari‘ah envisages a society in which economic life is organic, based on the flow of goods and capital through various parts of society like the blood circulating through the human body.
In contrast to the Christian West, where mercantile activity was looked down upon up until the Renaissance, in the Islamic world from the beginning trade and economic transactions were seen in a positive light from the religious point of view. The Prophet himself had originally been a merchant, as had his wife Khadijah, and throughout Islamic history the merchant class associated with the bazaar has been among the most pious in Islamic urban areas, as have been farmers living in the countryside and villages. Traditional Islamic society succeeded in creating a notable integration of economic life and religion. It is also important to remember that in the economic domain, participation was not limited to men and integration concerned the whole of society. Women were active in the production of many goods from agricultural products to carpets and also as merchants and property owners. TheShari‘ah has given economic rights to women that did not exist in any large society, including the West, until very recently.
There has been a great deal of effort during the past few decades to study the economic principles and injunctions (in the Western sense) contained in theShari‘ah , which many now call Islamic economics, and to put them into practice. Interest-free banks, called Islamic banks, have been created in several Islamic countries and in the West and interest-free loans made available. But the deeper issues have rarely been tackled in the face of
problems created by the fact that the Islamic world is forced to be involved in a global economic system based on very different tenets and presumptions. But the field remains, nevertheless, among the most lively on the contemporary Islamic intellectual and religious scene.
Political Teachings: The Quran does not outline a particular political structure, but presents certain basic principles for rule, the most important of which is consultation, or shawra, as stated in the verse, “and consult with them concerning conduct in affairs” (3:159). The rule of the Prophet in Medina and the document called the Constitution of Medina are also central to all later Islamic political thought and action, but, again, this constitution does not outline a particular form of government in the absence of the Prophet, who was both prophet and ruler of the community. What the Quran andHadith emphasize, however, is that the domain of politics cannot be separated from that of religion, which, however, must not be interpreted as “church” in the Western sense of the term. In America one always speaks of the separation of church and state, although religion itself has never been totally separated from political life from the time of the writing of the American Constitution onward. In Europe, during the premodern period there were always two powers, the papacy and the empire or monarchy, and the latter received its religious legitimacy and investiture from the former. Later, states became secularized, especially after the French Revolution, but in many countries state religions have been maintained to this day, and in Great Britain the monarch is still the head of the Church of England.
None of these models apply, however, to the Islamic world, where there is no church or pope and where the classical caliphate was neither like the papacy nor like the emperorship of the Holy Roman Empire. Some have said that the Islamic model is a theocracy, but this is not exactly true as this term has been understood in the context of Western history or even that of ancient Egypt or classical Japan. A theocracy means the rule of the priesthood or the priestly class, of whom the ruler is the head or leader. In Islam, however, there is no priesthood comparable to that found in Christianity, Hinduism, or Buddhism; the closest class in Islamic society to priests is the ‘ulama’, or religious scholars, who are knowledgeable in the Divine Law and serve as its guardians and interpreters. Moreover, except for Iran since the Revolution of 1979, the ‘ulama’ have never ruled directly over Islamic society, and even in Iran, the rule of the jurisprudent (wilayat-i faqih) is modified by the presence of an elected parliament. In any case, facile comparisons between the views of Christian fundamentalists concerning “theocracy” and Islamic views of government are simply false. Technically speaking, the Islamic ideal is that of a nomocracy, that is, the rule of Divine Law. It is true that all power, including political power, belongs ultimately to God, as the Quran states, “The command rests with none but God” (6:57; 12:40). But in the case of Islam, the rule of God was never associated with the rule of the priestly class; rather, it was associated with that of theShari‘ah . The Islamic Republic of Iran is the first case in Islamic history in which the religious ‘ulama’, the closest one can come in Islam to a priestly class, has ruled directly over a major Islamic country.
During Islamic history, first the institution of the caliphate and then that of the sultanate were developed in Sunni Islam. Shi‘ism rejected the caliphate as a political institution, but accepted the sultanate, or monarchy, as the least imperfect form of government in the absence of the Mahdi. This was even the view of Ayatollah Khomeini in his earlier writings, before he turned against the institution of the monarchy in favor of the new concept of the “rule of the jurisprudent” (wilayat-i faqih). In any case, in all the different forms of government, the ruler sought legitimacy by protecting theShari‘ah , or at least claiming to do so, and seeking the backing of those who were the custodians of theShari‘ah , namely, the ‘ulama’. Even the legitimacy of the monarchy relied not so much on blood, as in Europe, but on the ability to preserve order and to protect theShari‘ah . Of course, many rulers did not follow the teachings of theShari‘ah , which in principle applied to them as to everyone else. But the ideal of protecting and preserving theShari‘ah was always there, and, in fact, in practice theShari‘ah often served as a shield for the protection of the people against the whims of powerful authoritarian rulers, although there were, again, exceptions.
In Islamic political theory, the role of the government is always limited, and in practice such major areas as justice, health, and education were left to the private sector before the rise of modern states in the Islamic world. Rule was also usually personal, and before modern times caliphs and kings would hold regular sessions with their ordinary subjects during which the petitions of the latter were received and answered. Today there is much talk of Islam and democracy. If democracy is understood as the rule of the will of the people, then there were mechanisms in traditional Islamic society where the will of the people was reflected to the ruling class, including the caliph or sultan, and it definitely played a role in those governments that were successful and that endured. If it means the particular institutions developed during the past few centuries in the West, then there is no parallel for them in premodern Islamic history, no more than there is for them in premodern Japan, China, or India. Although many Islamic countries have tried to introduce Western models of democracy during the past century, usually with little success, and although there is much turmoil in this domain today, the one principle that remains clear to all Muslims is that sovereignty belongs ultimately to God as expressed in the Divine Law and an Islamic society is one in which this sovereignty is accepted; but that still leaves a vast domain in which the people can exercise their views and act freely as long as they do not oppose the Divine Law.
With the fall of the Ottoman caliphate and the many twentieth-century revolutions based on the European model that followed, the whole question of political rule in its relation to Islamic teachings, the wishes of the people, and the form that an Islamic government should take has become central. There is today great confusion and turmoil in the Islamic world on this matter. Some have adopted Western republican models, others have continued the older form of sultanate or monarchy, and yet others want to revive the caliphate. It will take some time before Islamic civilization can again develop its own authentic political forms, a task that is being made
much more difficult today by the fact that it is under constant external pressure and is not able to create institutions based on the inner dynamic of Islamic society. Paradoxically, many Western-oriented Islamic countries that are praised in the West for having “secularist” governments do not allow Western-style democratic practices; if they did in the sense of allowing people to really express their preferences, the result would be a much more Islamic government as far as the rule of theShari‘ah is concerned. This is because the vast majority of all Muslims, even in the most Westernized and modernized countries, would like to live according to theShari‘ah and to have their own freedom and democracy on the basis of their own understanding of these concepts and ideals rather than on how they are understood in the modern and postmodern West.
PUNISHMENTS AND RESTRICTIVE ORDINANCES
To speak of law is also to speak of restrictive ordinances and statutes (h. udud), or punishment, under that law. Of course, to disobey the Divine Law is a sin, but it also has its legal consequences in this world, as we also see in Jewish law. In the modern world, religious statutes of this kind are often called “medieval” and “barbaric” on the basis of the idea that through progress people have now become much more “civilized” and “humane”-as if waiting on death row for a dozen years and then being executed is a lesser torture than being hanged shortly after being found guilty. And usually this criticism is immediately leveled at the Islamic restrictive ordinances. To make the situation clear it is necessary to point out, however, that these statutes and ordinances, called hudud in Islamic Law, are fewer than in Jewish Law, where thirty-six crimes such as adultery, sodomy, idolatry, sorcery, and murder are punishable by death by hanging, beheading, burning, or strangling. I mention especially Jewish Law, because according to Islam, the Jewish laws brought by the Hebrew prophets remained valid as long as they were not abrogated by Islamic laws. A case in point is the stoning of an adulterer or adulteress, which is not mentioned in the Quran, but which was a Jewish practice that was continued in Islam with the addition of restrictions to the conditions needed to prove guilt in a Shari‘ite court.
The Quran says, “He [God] is the most swift of reckoners” (6:62), and many verses of the Quran, such as 2:187, 229, 230 and 4:13-14, are concerned with ordinances, or hudud, which literally means “limits” set by God. For example, “Those who disobey God and His Messenger and transgress His limits (h. udud) will be admitted to a fire, to abide therein: and they shall have a humiliating punishment” (4:14). Quranic punishment, based on the concept that God is just and the reckoner of our deeds, involves acts forbidden in the Sacred Text; such acts are both illegal and a sin against God. These acts include illicit sexual intercourse and false accusation of it, drinking wine, theft, robbery, and murder. According to theShari‘ah , the punishment for adultery is stoning, but there has to be either a confession by the party or parties involved or four just witnesses.
That is why such a punishment has been extremely rare in traditional Islamic society. Punishment for theft and highway robbery, if it involves homicide, is death by sword or hanging, and if it does not, the amputation of a finger or in extreme cases a hand or foot. But many other conditions, according to some jurists twelve in number, have to be met before the punishment of amputation can be carried out. That is why this punishment has also been very rare.
For lesser cases there is flogging. The punishment for murder is death unless the family of the victim accepts blood money. Although these are transgressions against God, repentance is accepted and theHadith strongly limits the application of hudud, as we also see in the case of Jewish Law. In a Shari‘ite court, proof of offense is made very difficult, and the judge or qad.i, is even permitted to accept the withdrawal of confessions. Many religious scholars, over the ages, have given the edict that the punishment for theft should only be carried out in a society that is Islamically just from
the economic point of view and that it should not be applied to a petty thief who has stolen because of poverty and dire need.
Although a great deal is made today in the West of the extreme nature of such punishments in certain so-called fundamentalist countries, little is said about how rare, in fact, such punishments are in the Islamic world as a whole.
More important, few want to face the fact that the number of people who die or are seriously injured in crimes involving theft and rape in America is far greater than the number of people punished for theft or adultery in a land such as Saudi Arabia, where they deal severely with these matters.
In trying to understand the Shari‘ite restrictive ordinances, one must do so in the context of the historical reality of Islam and in light of all the mitigating circumstances that limit them in practice. Furthermore, it is important to see such matters not in the matrix of what is popular in the West today, but also in relation to the whole history of the West and the punishments meted out until only recently in both Europe and America for various crimes. The Islamic world is in the process of observing and studying the recent changes in the West in these matters and will not follow the same course as has the West, if the results of current social and legal experiments in Europe and America do not succeed in noticeably diminishing the crimes for which various societies, including the Islamic, had set punishments over the ages.
DIVINE AND HUMAN LAWS: CRISIS AND CONFRONTATION TODAY
Already in the middle of the nineteenth century in many Islamic countries, the rule of theShari‘ah as a legal system was either limited to personal laws governing the family, inheritance, and so on or replaced by Napoleonic codes or English common law and European-style courts. By the time most Islamic countries gained their independence after World War II, the fullShari‘ah was applied only in a few lands such as Saudi Arabia, the Yemen, and Afghanistan.
These countries may have had various political and economic problems, but at least they did not experience the tension between two different legal systems and philosophies that other Islamic countries did. Unfortunately, the application of theShari‘ah did not prevent Yemen and Afghanistan from being invaded by foreign forces and having their traditional patterns of life, including their legal aspects, deeply disturbed and in some places shattered.
Despite these tragedies, however, Shari‘ite Law played a central role in preserving the religious character of the life of the people of these countries even under great duress.
Despite all the political turmoil in the Islamic world during the past half century, there has been an attempt in most Islamic countries to return to the Divine Law as contained in theShari‘ah , while incorporating and taking into consideration human laws associated with modern situations in which Muslims find themselves. Moreover, there continues to be extensive discussion on theShari‘ah itself.
In the Sunni world, as already mentioned, many want to open the gate of ijtihad again, and there are those who speak of combining rulings from different classical schools of Law such as the Shafi‘i and the Hanafi. Also, there are now a number of lay lawyers (not formal members of the class of ‘ulama’, the traditional custodians of theShari‘ah ) who believe that they have the right to make juridical decisions(fatwas) and formulate new Shari‘ite rulings. Even in Shi‘ite Iran, where the ijtihad is practiced afresh in every generation, a number of modernized religious thinkers speak of the “dynamicShari‘ah ,” which they contrast with the old static one. In the field of law, just as in the field of politics, which is closely related to it, there is much debate and discussion going on throughout the Islamic world, but there is no doubt that the question of the revival of theShari‘ah after its eclipse during the colonial period is at the center of the concerns of contemporary Islam.
THE DIVINE LAW, ETHICS, AND THE RELIGIOUS ETHOS
TheShari‘ah is not only concrete positive law, but also a set of values and framework for the religious life of Muslims.
The books of jurisprudence(fiqh) contain the specific laws of theShari‘ah , but theShari‘ah itself also includes ethical and spiritual teachings that are, strictly speaking, not of a legal nature, although the legal is never separated from the moral in Islam. On the basis of the Quran andHadith , theShari‘ah teaches Muslims to respect their parents, to be kind to their neighbors, to be charitable, to be always truthful, to keep their word, to be honest in all affairs, and so forth. The whole ethics of Islam is related on the individual and social plane to theShari‘ah , while the inner purification of the soul and the penetration into the inward meaning of theShari‘ah are for the spiritual path, or the Tariqah, which is of necessity always based on the formal practice of the Divine Law.
Today, in many parts of the Islamic world, Divine Law, or theShari‘ah , is no longer fully practiced on the level of law, but the ethics that are contained in its teachings still permeate Islamic society. TheShari‘ah , in fact, determines the religious ethos of Islam on both the personal and the social level and is inseparable from the life of faith. For the vast majority of Muslims, the practice of the injunctions of theShari‘ah is their manner of practicing their surrender to the Will of God and of living a virtuous and righteous life leading to felicity and salvation in the Hereafter. Even those who do not practice theShari‘ah but still consider themselves Muslims draw their ethics, their understanding of right and wrong, and their frame of reference in the chaos of this world from theShari‘ah . And those who aim to reach God in this life and to walk the path of the Tariqah to that Truth, or Haqiqah, which is the source of both the Law and the Way are more aware than anyone else how indispensable the Divine Law is, the law that alone can provide the sacred forms that are the sole gateways in this world of change and becoming to the immutable empyrean of the Formless.