The Humble "I"

Knowing, Doing, Becoming

Lessons from Imam Malik’s Letter to al-‘Umari, the Renuncient

Imam Malik was once urged by ‘Abd Allah al-‘Umari – who was given to much worldly detachment (zuhd) – that he ought to devote far more time to spiritual seclusion and to other personal acts of piety. Imam Malik wrote a letter of courtesy to him, offering this piece of wisdom:

إِنَّ الـلَّـهَ تـعـالَـى قَـسَّـمَ الأَعْـمَـالَ كَـمَـا قَـسَّـمَ الأَرْزَاقَ ، فَـرُبَّ رَجُـلٍ فُـتِـحَ لَـهُ في الـصَّـلاةِ وَلَـمْ يُـفْـتَـحْ لَـهُ في الـصَّـوْمِ ، وَآخَـرَ فُـتِـحَ لَـهُ في الـصَّـدَقَـةِ وَلَـمْ يُـفْـتَـحْ لَـهُ في الـصَّـوْمِ ، وَآخَـرَ فُـتِـحَ لَـهُ في الْـجِـهَـادِ , وَنَـشْـرُ الْـعِـلْـمِ مِـنْ أَفْـضَـلِ الأَعْـمَـالِ ، وَقَـدْ رَضِـيـتُ مَـا فُـتِـحَ لِـي فِـيـهِ ، وَمَـا أَظُـنُّ مَـا أَنَـا فِـيـهِ بِـدُونِ مَـا أَنْـتَ فِـيـهِ ، وَأَرْجُـو أَنْ يَـكُـونَ كِـلانَـا عَـلَـى خَـيْـرٍ وَبِـرٍّ.

‘Allah, exalted is He, apportions people’s actions as He apportions their sustenance. So sometimes He grants a spiritual opening to a person in terms of [optional] prayers, but not [optional] fasting. Or He grants an opening in giving charity, but not in fasting. To another, He may grants them an opening for jihad. As for spreading sacred knowledge, that is from the best of deeds, and I am pleased with what Allah has opened to me. Nor do I imagine that what I am engaged in is any less than what you are engaged in; and I hope that both of us are upon goodness and righteousness.’1

Its adab and humility aside, the core lesson from the letter is: When Allah opens a door to being consistent in doing a certain righteous deed, and makes that your main focus, then cling to it and do not give it up for anything else. We should, undoubtedly, have a share of other good deeds too; without them necessarily being our main preoccupation or focus.

Something similar is suggested in a report concerning Ibn Mas‘ud, when he was asked as to why he did not fast optional fasts more frequently. His reply:

.إِنِّـي إِذَا صُـمْـتُ ضَـعُـفْـتُ عَـنْ قِـرَاءَةِ الـقُـرْآنِ , وَقِـرَاءَةُ الـقُـرْآنِ أَحَـبُّ إِلَـيَّ مِـنَ الـصَّـوْمِ

‘When I fast, it weakens my ability to recite the Qur’an; and reciting the Qur’an is more beloved to me than [optional] fasting.’2

We ask Allah for taysir and tawfiq.

1. Cited in al-Dhahabi, Siyar A‘lam al-Nubala (Beirut: Mu’assasah al-Risalah, 1998), 8:114.

2. Ibn Abi Shaybah, al-Musannaf, no.8909; al-Tabarani, al-Mu‘jam al-Kabir, no.8868.

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Meditations #1: Pressures to Water Down Faith

This short video is about the demand being placed on Muslims to make their religious teachings align with the liberal orthodoxies of the age, and what our response to such pressures ought to be. Should we, as some are now doing, be watering down our faith teachings to make our religion more palatable to a wider secular audience? Should we compromise a few aspects of our religion in order to better our liberal credentials, thus making faith more palatable to the monoculture? These are the issues addressed in this Five Minute Meditation: https://youtu.be/l0xI6Agvjuk

Understanding Taqlid: the Good, the Bad & the Ugly [1/2]

Must each Muslim know the proofs behind a religious action before performing that act? In Islam, what counts as “proof”? Is accepting a fatwa of a qualified Muslim scholar on trust, without knowing his legal reasoning, blind following? Can ordinary Muslims who’ve had no legal training evaluate proof-texts and identify the strongest view. How can Muslim laymen utilise their God-given intellects in matters of fiqh? How true is it that there is no “clergy” or magisterium in Islam when it comes to religious authority and knowledge? And who were the Four Imams addressing when they forbade taqlid? Such questions lie at the very heart of understanding what sound Islamic epistemology and orthodoxy is; generating huge schisms, strife and religious anarchy in the ummah wherever and whenever they are misunderstood. This article is an attempt to shed some much needed clarity, balance and authenticity on the subject; God-willing.

Now if we strip these contentions down to their bare bones, they’ve historically been framed simply like this: What is the Islamic ruling (hukm) concerning taqlid, in terms of qualified jurists, as well as in terms of non-jurists and the general Muslim public? It is from this perspective that we’ll broach the above questions. For convenience sake, I’ve split the article into two parts because of its length.

A final point: Some will notice that I mostly cite from Hanbali and Shafi‘i scholars. The reason for this is simply because I have a working familiarity with the Hanbali school and its legal theory, and an acquaintance with Shafi‘i legal theory. But I cannot say the same for Hanafi and Maliki legal literature: hence the slant. Despite this, I believe that the overall picture represent the normative legal theory of all four law schools.

I. DEFINING TAQLID

Let us begin by first defining a few basic terms, so as to avoid any cross wires or being at cross purposes. Thus in Islam’s legal culture, the term taqlid has two meanings: one lexical, the other religious. Lexically, it stems from the word qalladah – a “collar” – and is defined as: ِ‎وَضْعُ الْشَّيءِ فِي العُنُقِ مُحِيطاً بِه – ‘To place something around the neck so as to encircle it.’1 For the one doing taqlid, the muqallid, has entrusted his affair to the one he makes taqlid of. He is, so to speak, like someone being led by the collar.

Its religious/legal definition is: قَبُلُ قَوْلِ الغَيْرِ بِغَيْرِ حُجَّةٍ – ‘To accept the opinion of someone without knowing the proof.’2

Usually, but not always, the term taqlid refers to a layman (‘ammi) accepting a religious ruling from a qualified jurist, without knowing the proof (dalil) or legal rationale (ta‘lil) behind the ruling. In doing so, the layman resigns his affair to the scholar and agrees to be guided by him, out of a trust and a confidence he has in his scholarship. It is in this sense that jurists conventionally employ the term.3

II. UNDERSTANDING IJTIHAD

The science that evolved in understanding the shari‘ah, or Sacred Law of Islam, is called fiqh: usually translated as “jurisprudence”, and comes from the word faqiha, meaning: “to understand”. Fiqh, therefore, is all about understanding these divine laws and the way they shape the life-pattern of believers. Strictly speaking, shari‘ah refers to the body of laws revealed to the Prophet Muhammad ﷺ which he taught and lived by in his day to day life; while fiqh is the science of understanding, extracting and developing these laws – and this involves human effort.

Now “effort” in the area of jurisprudence is known as ijtihad (lit. “exertion”), and is the task of the mujtahid – a jurist qualified and capable of such juristic efforts, though only after receiving rigorous and prolonged legal training. For uncovering the intent of the Lawgiver – the murad al-shari‘ – and to infer new rulings and legislation from the root sources of Islamic law – the Qur’an and Sunnah, as well as analogy (qiyas) and scholarly consensus (ijma‘) – can be an uphill task. Often a mujtahid must struggle through long days and nights to reach a conclusion.

The phrase used to describe this effort is: بَذْلُ المَجْهُوْد or اِسْتِفْراغُ الْوُسْعِ – “expending every possible effort” so as to reach a legal judgement.4 The significance here is that ijtihad is not just one of juristic effort or exertion, but one of exhaustion! The mujtahid spends every possible effort, leaving no stone unturned, in order to arrive at a ruling. Ijtihad is certainly not merely surfing a few websites on the internet, or skimming some pages of a few Arabic books. It is nothing less than examining and interrogating all the relevant proof-texts on the matter before arriving at a legal judgement or hukm – however many hours, days weeks or months it may take.

III. AN INSIGHT INTO IJTIHAD

Jumping the gun slightly, let’s just get an idea into what level of learning is required so as to undertake ijtihad. Now ijtihad has varying levels. The highest is when a jurist can perform absolute ijtihad – i.e. they can infer rulings directly from the primary texts of the Qur‘an or Sunnah, unrestricted by anyone else’s legal framework. A mujtahid who reaches this rank is called a mujtahid mutlaq. Imam Ibn Hazm was one such mujtahid-jurist. Contextualising Ibn Hazm’s words: ‘I follow the truth, make ijtihad, and do not confine myself to a single law school (madhhab),’ Imam al-Dhahabi wrote:

نَعَمْ، مَنْ بَلَغَ رُتْبَة الاجْتِهَاد، وَشَهِد لَهُ بِذَلِكَ عِدَّة مِنَ الأَئِمَّةِ، لَمْ يَسُغْ لَهُ أَنْ يُقَلِّدَ، كَمَا أَنَّ الفَقِيْه المُبتدئ وَالعَامِي الَّذِي يَحفظ القُرْآن أَوْ كَثِيْراً مِنْهُ لاَ يَسوَغُ لَهُ الاجْتِهَاد أَبَداً، فَكَيْفَ يَجْتَهِدُ، وَمَا الَّذِي يَقُوْلُ؟ وَعلاَم يَبنِي؟ وَكَيْفَ يَطيرُ وَلَمَّا يُرَيِّش؟

“Yes! Whoever reaches the level of ijtihad, and a number of scholars testify to it, taqlid is not allowed to him. Much like how a novice jurist, or a layman who has memorised the Qur’an or most of it, is not permitted to attempt ijtihad at all. How could he make ijtihad? What could he possible say? On what can he base his opinion? How can he fly and he has yet to grow wings?5

He then proceeds to detail the type of learning needed to reach a rank of ijtihad below that of the highest or absolute level. He says:

 الفَقِيْهُ المنتهِي اليَقظ الفَهِم المُحَدِّث، الَّذِي قَدْ حَفِظ مُخْتَصَراً فِي الْفُرُوع، وَكِتَاباً فِي قوَاعد الأُصُوْل، وَقرَأَ النَّحْو، وَشَاركَ فِي الفضَائِل مَعَ حِفْظِهِ لِكِتَابِ اللهِ وَتشَاغله بتَفْسِيْره وَقوَةِ مُنَاظرتِهِ، فَهَذِهِ رُتْبَة مِنْ بلغَ الاجْتِهَاد المُقيَّد، وَتَأَهَّل لِلنظر فِي دلاَئِل الأَئِمَّة، فَمتَى وَضحَ لَهُ الحَقُّ فِي مَسْأَلَة، وَثبت فِيْهَا النَّصّ، وَعَمِلَ بِهَا أَحَدُ الأَئِمَّةِ الأَعْلاَمِ كَأَبِي حَنِيْفَةَ مِثْلاً، أَوْ كَمَالِك، أَوِ الثَّوْرِيِّ، أَوِ الأَوْزَاعِيِّ، أَوِ الشَّافِعِيِّ، وَأَبِي عُبَيْدٍ، وَأَحْمَدَ، وَإِسْحَاق، فَلْيَتَّبع فِيْهَا الحَقّ وَلاَ يَسْلُكِ الرّخصَ، وَلِيَتَوَرَّع، وَلاَ يَسَعُه فِيْهَا بَعْدَ قيَام الحُجَّة عَلَيْهِ تَقليدٌ.

‘An extremely versed and brilliant jurist who – having committed to memory a primer in law, as well as a book on juristic maxims and on legal theory; has mastered grammar; memorised the Book of God and busied himself with its exegesis; possessesing a sharp, analytical mind – has now reached a rank of restricted ijtihad and is thus qualified to investigate the textual reasoning of the leading scholars. Thus when the truth becomes apparent to him in a given issue, and the proof well established, and it has been acted upon by one of the great Imams like Abu Hanifah, for instance, or Malik, al-Thawri, al-Awza‘i, al-Shafi‘i, Abu ‘Ubayd, Ahmad or Ishaq, he follows [what he sees as] the truth; without chasing concessions, but instead by being diligent. Taqlid is unlawful to him in the issue after the proofs have been established to him.’6

Now compare this with the da‘wah that insists (or at the very least, encourages) those who don’t have even an iota of the above depicted skill-set to “investigate” and “weigh-up” the proofs! Such an insane approach isn’t just reckless. It is possibly the single most significant cause for religious anarchy, extremism, and undermining shari‘ah structures to have ever afflicted the body of the ummah. For when juristic restraints are loosened, and handed to those wholly unfit for purpose, all things run amok!

IV. DIVINE LAW AND THE DETAIL

Let’s shuffle back to the issue of taqlid. In Islam, religious terms or concepts often have nuances or multiple meanings. Thus, both justice and academic integrity demand that we take to tafsil, “distinction” and “detail” and not be black and white. It might even be said (figuratively, of course) that when it comes to Islamic law, it is the divine – and not the devil – that is in the detail! To this end, Ibn al-Qayyim versified:

فَعَلَيْكَ باِلتَّفْصِيْلِ وَالتَّميِيْزِ فَال/إِطْلاقُ والإجْمالُ دُوْنَ بَيانِ
قَدْ أفْسَدَا هَذَا الوُجُودَ وخَبَّطَا الْ /أَذْهانَ وَالآراءَ كُلَّ زَمانِ

‘Take to distinction and differentiation;
For generalisations without clarification;
Have corrupted this existence and ruined
Intellects and opinions in every age.’7

With that in mind, the texts of the Book and the Sunnah, and the words of the eminent jurists, identify that taqlid is of two types: one prescribed, the other prohibited. Getting to the nub of the matter, one jurist wrote: ‘It is obligatory upon the lay people who do not have the ability to learn [proofs or means of juristic inference], to ask the scholars, and to then act on the fatwas they are given. This is taqlid in the conventional sense; its reality being: “Accepting the view of someone without knowing the proof.” And it is of two types: permissible and impermissible.’8

V. THE PRESCRIBED TAQLID

Here now is an outline of the lawful form of taqlid, courtesy of Shaykh Muhammad al-Amin al-Shanqiti, followed by its textual justifications:

وَالتَّحْقِيقُ : أَنَّ التَّقْلِيدَ مِنْهُ مَا هُوَ جَائِزٌ، وَمِنْهُ مَا لَيْسَ بِجَائِزٍ … أَمَّا التَّقْلِيدُ الْجَائِزُ الَّذِي لَا يَكَادُ يُخَالِفُ فِيهِ أَحَدٌ مِنَ الْمُسْلِمِينَ ، فَهُوَ تَقْلِيدُ الْعَامِّيِّ عَالِمًا أَهْلًا لَلْفُتْيَا فِي نَازِلَةٍ نَزَلَتْ بِهِ ، وَهَذَا النَّوْعُ مِنَ التَّقْلِيدِ كَانَ شَائِعًا فِي زَمَنِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَلَا خِلَافَ فِيهِ. فَقَدْ كَانَ الْعَامِّيُّ يَسْأَلُ مَنْ شَاءَ مِنْ أَصْحَابِ رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ  عَنْ حُكْمِ النَّازِلَةِ تَنْزِلُ بِهِ ، فَيُفْتِيهِ فَيَعْمَلُ بِفُتْيَاهُ

‘Inquiry establishes that there is a type of taqlid that is permissible and a type that isn’t permissible … As for the permissible taqlid, which none from the Muslims contest, it is a layman’s taqlid of a scholar qualified to give fatwas about various occurrences. This type of taqlid was in vogue during the Prophet’s time ﷺ and there was no difference about it. So the layman would ask whoever he wished from the Companions of Allah’s Messenger ﷺ about the ruling for the situation he faced. When a response was given, he acted on it.’9

As for the textual proof for this type of taqlid, and who it applies to, this next account goes a long way in bringing clarity to the matter:

‘The legislated taqlid is performing taqlid of the scholars whenever there is an inability to decipher proof-texts. Those to whom this applies are of two groups: Firstly, the lay people who aren’t versed in jurisprudence (fiqh) or in the prophetic traditions (hadiths); nor can they evaluate the words of the scholars. Such people are required to perform taqlid; there being no contention over this. In fact, a number of jurists have recorded a consensus to this effect.

‘Secondly, a person that has acquired some awareness of a law school, and has studied a few of the texts of the later scholars … yet despite this, is deficient in examining proofs or evaluating the opinions of the jurists. Such a person must also perform taqlid. He is not obliged to shoulder what he cannot, for: Allah does not charge a soul with more than it can bear. [2:286]

‘The textual stipulations from the scholars about the legality of taqlid for such people are many, well-known, and rooted in Allah’s words: فَاسْأَلُوا أَهْلَ الذِّكْرِ إِنْ كُنتُمْ لاَ تَعْلَمُونَSo ask the people of knowledge if you do not know. [21:7]; and in the Prophet’s words ﷺ that say: أَلاَّ سَأَلُوا إِذْ لَمْ يَعْلَمُوا فَإِنَّمَا شِفَاءُ الْعِيِّ السُّؤَالُ – “Why didn’t they ask if they knew not? The cure for ignorance is to ask.”10

‘The lay people haven’t ceased – since the time of the Companions, the Successors, and their followers – asking their scholars about rulings of the shari‘ah. Scholars, in turn, have readily responded to such queries without necessarily mentioning proofs; nor did they forbid this to them in the least. So this is a point of consensus on the lawfulness of the laity making taqlid of their mujtahid scholars, and that they are only required to do this of one whom they consider to be a scholar.’11

VI. CONSENSUS OVER THE PRESCRIBED TAQLID

As alluded to, the prescribed taqlid is a matter about which jurists are unanimous. That is to say, it is a point of scholarly agreement or consensus (ijma‘), and is thus a hallmark of Islamic orthodoxy; of ahl al-sunnah wa’l-jama‘ah. In fact, historically, only a handful of deviant innovators have ever rejected it.

So, for instance, Ibn Qudamah stated: وَأَمَّا التَّقْلِيدُ فِي الْفُرُوعِ فَهُوَ جَائِزٌ إِجْمَاعًا – ‘As for taqlid in the detailed branches of the law (furu‘), it is permitted by consensus.’12

Imam al-Qurtubi has similarly written: ‘There is no difference among the scholars that the lay people should perform taqlid of their scholars.’13

Ibn Qudamah also tells us of who injected this erroneous idea into the religion, seeking to burden the masses, and other non-specialists in fiqh, with an impossible task:

وَذَهَبَ بَعْضُ الْقَدَرِيَّةِ إِلَى أَنَّ الْعَامَّةَ يَلْزَمُهُمُ النَّظَرُ في الدَّلِيْلِ في الْفُرُوْعِ أَيْضاً ، وَهُوَ بَاطِلٌ بِإِجْمَاعِ الصَّحَابَةِ

‘It is the view of some of the Qadariyyah that the lay people are required to investigate the proofs, even in the furu‘. But this is futile by consensus of the Companions.’14

Thus the belief requiring lay people to first know the evidence for the religious ruling they wish to act upon, isn’t just a hopeless and undoable task. The actual antecedent or predecessors of this bid‘ah was a faction of the Qadariyyah: one of the most heterodox and misguided of the seventy-two sects.

VII. THE MUQALLID & THE COMPLETE PICTURE

Now if taqlid is defined as a person following a scholarly opinion while not knowing the proof, how can a partially learned person, or a layman who is familiar with a proof-text or two in a few religious issues, be considered a muqallid? Ibn Taymiyyah furnishes us with the answer. He explains:

فَأَمَّا مَنْ لَمْ يَعْرِفْ إلَّا قَوْلَ عَالِمٍ وَاحِدٍ وَحُجَّتَهُ دُونَ قَوْلِ الْعَالِمِ الْآخَرِ وَحُجَّتِهِ فَإِنَّهُ مِنْ الْعَوَامِّ الْمُقَلِّدِينَ؛ لَا مِنْ الْعُلَمَاءِ الَّذِينَ يُرَجِّحُونَ وَيُزَيِّفُونَ

‘As for a person who knows the opinion of one scholar and his proof, but not the other scholar and his proofs, then he is from the generality of the muqallids. He isn’t from the scholars capable of evaluating and weighing-up [proofs].’15

This is a highly important point that is all too often misunderstood. The great bulk of jurists maintain that if a person knows a proof-text for any given issue, but is unaware of the complete proofs, he is still a muqallid (albeit one familiar with a proof or two, but not enough to evaluate the juristic strengths and weaknesses of each argument). This “complete” knowledge has three aspects to it: Firstly, knowing the relevant proof-texts. Secondly, knowing how legal rulings are extracted from them. Thirdly, knowing how to resolve any textual conflicts (ta‘arrud al-adillah). So the muqallid includes: (i) a layman who does not know the proof-texts; and (ii) someone who knows some proof-texts, but in an incomplete manner.

VIII. LET US ALL GROW IN SACRED LEARNING

The Prophet ﷺ said in regards to the excellence of seeking sacred knowledge: مَنْ سَلَكَ طَرِيقًا يَلْتَمِسُ فِيهِ عِلْمًا سَهَّلَ اللَّهُ لَهُ طَرِيقًا إِلَى الْجَنَّةِ – ‘Whosoever traverses a path in order to seek knowledge, Allah will make easy for him a path to Paradise.’16

Another hadith says: مَنْ تَعَلَّمَ عِلْمًا مِمَّا يُبْتَغَى بِهِ وَجْهُ اللَّهِ عَزَّ وَجَلَّ لاَ يَتَعَلَّمُهُ إِلاَّ لِيُصِيبَ بِهِ عَرَضًا مِنَ الدُّنْيَا لَمْ يَجِدْ عَرْفَ الْجَنَّةِ يَوْمَ الْقِيَامَةِ – ‘Whoever learns knowledge by which the face of Allah is to be sought, but does so only to acquire some worldly thing, shall not smell the fragrance of Paradise on the Day of Resurrection.’17

Just because lay people aren’t obligated to know the proof behind a fatwa of ruling they read or are given, should not prevent them from increasing in their overall knowledge of the Qur’an or the Hadith corpus. As a rule of thumb, it is encouraged for all Muslims to increase in their share of sacred knowledge. Let the lay people apply their God-given intellects to grow in understanding textual proofs related to religious foundations (usul al-din), ethics and good character, matters of the heart and spiritual growth, and basic rights and responsibilities. Books like Imam al-Nawawi’s Riyadh al-Salihin are priceless in this regard. It is only in the area of detailed Islamic law, in fiqh, where the proofs are usually complex and difficult to fathom without legal training. And it is here that taqlid is legislated in order to relieve such hardships. Al-Khatib al-Baghdadi remarked:

‘As far as the Islamic rulings go, they are of two types. Firstly, those known by necessity to be part of the Prophet’s religion ﷺ – like the five daily prayers, zakat, or pilgrimage; and the prohibition of adultery, intoxicants, etc. In such issues taqlid is not allowed, for these are issues every person must know. The second: rulings that need to be inferred, like the details of the acts or worship (‘ibadat) or the social transactions (mu‘amalat). It is in these issues that taqlid is permitted.’18

So let the lay people grow in sacred knowledge and engage with the texts of the Qur‘an and hadiths in such clear-cut and unambiguous matters; whilst avoiding giving fatwas, inventing their own interpretations or speaking about religious matters without sound comprehension. And there’s plenty here for them to get on with. Even then, when they are unsure of what the texts mean or point to, let them heed Allah’s bidding: فَاسْأَلُوا أَهْلَ الذِّكْرِ إِنْ كُنتُمْ لاَ تَعْلَمُونَSo ask the people of knowledge if you do not know. [21:7].

Perhaps it doesn’t need saying, but I’ll say it anyway. It’s not that the muqallid is seen as foolish or unintelligent. For muqallids could be theoretical physicists, mathematicians, doctors, erudite economists, philosophers, accountants, or a host of other professions which require intelligence and specialist learning. They could even be scholars in other branches of Islam: hadith experts, seasoned Arabic grammarians, cultivated linguists, accomplished theologians, or highbrow historians. But they aren’t schooled in fiqh and legal theory, and are not capable of ijtihad in juristic matters. And that, in itself, is not a blight upon their faith, character, or intellectual abilities.

IX. GOOD TAQLID: THE BOTTOM LINE

It terms of the legislated taqlid, it pretty much boils down to what Shaykh al-Islam Ibn Taymiyyah encapsulated when he said:

وَاَلَّذِي عَلَيْهِ جَمَاهِيرُ الْأُمَّةِ أَنَّ الِاجْتِهَادَ جَائِزٌ فِي الْجُمْلَةِ؛ وَالتَّقْلِيدَ جَائِزٌ فِي الْجُمْلَةِ لَا يُوجِبُونَ الِاجْتِهَادَ عَلَى كُلِّ أَحَدٍ وَيُحَرِّمُونَ التَّقْلِيدَ وَلَا يُوجِبُونَ التَّقْلِيدَ عَلَى كُلِّ أَحَدٍ وَيُحَرِّمُونَ الِاجْتِهَادَ وَأَنَّ الِاجْتِهَادَ جَائِزٌ لِلْقَادِرِعَلَى     الِاجْتِهَادِ وَالتَّقْلِيدَ جَائِزٌ لِلْعَاجِزِ عَنْ الِاجْتِهَادِ 

‘That which the vast majority of the ummah hold to is that ijtihad is allowed in general, and taqlid is allowed in general. Ijtihad isn’t obligated on everyone and taqlid forbidden, nor is taqlid obligated on everyone while ijtihad forbidden. Rather, ijtihad is for the one capable of it, while taqlid is for those who are incapable of it.’19

Again, stressing the limitations of a muqallid layman in the detailed and exacting art of fiqh, Ibn Taymiyyah reminds us that the muqallid is in no position whatsoever to make a just or knowledge-based evaluation of the proof-texts or scholarly positions in strictly legal matters:

لَا يَجُوزُ لِأَحَدِ أَنْ يُرْجِحَ قَوْلًا عَلَى قَوْلٍ بِغَيْرِ دَلِيلٍ، وَلَا يَتَعَصَّبُ لِقَوْلِ عَلَى قَوْلٍ وَلَا قَائِلٍ عَلَى قَائِلٍ بِغَيْرِ حُجَّةٍ؛ بَلْ مَنْ كَانَ مُقَلِّدًا لَزِمَ حُكْمَ التَّقْلِيدِ، فَلَمْ يُرَجِّحْ، وَلَمْ يُزَيِّفْ، وَلَمْ يُصَوِّبْ، وَلَمْ يُخَطِّئْ؛

‘It is not permissible for anyone to prefer one view over another without a proof, nor to be bias towards one opinion over another; or one person’s saying over another, without an evidence. Instead, whoever is a muqallid, then the ruling of taqlid applies to him: he cannot weigh-up, evaluate, or judge [a view] to be correct or incorrect.’20

Another demand arising from taqlid is: ‘There is a consensus among the Muslims that it is unlawful for a muqallid to state that something is halal or haram in those issues of ijtihad where he is doing taqlid of someone else. What he may say is: “This is the ruling in the madhhab I follow” or that: “I sought a fatwa and this was the response.”’21 If only people stuck to their levels and put the above rule into practice. So many quarrels and disputes would vanish into the twilight as egos wore thin and righteous conduct rolled in. But alas! Our social media age, whilst permitting a greater flow of information, has now elevated the hasty and ill-informed opinion to the same level as the seasoned and qualified one!

One last point. If this kind of taqlid is sanctioned by the Book and the Sunnah; and not only that, but jurists have a consensus about its legality, one cannot use a derogatory term for what Islam prescribes – i.e. taqlid is merely “blind-following.” Rather, this type of taqlid is Islamic, praiseworthy and must be seen for what it truly is: ‘The following of qualified scholarship in the details of the religion.’ After all, does one not get rewarded by Allah for this type of taqlid? Does it not count as an act of divine obedience drawing one closer to Allah?

X. THE PROHIBITTED TAQLID

Having covered the outlines of the prescribed taqlid, in particular how it relates to the layperson and anyone else incapable of ijtihad, let us now turn to the forbidden taqlid. Here, Ibn al-Qayyim said: ‘A mention about the details of taqlid and that it is classified into: [1] the prohibited; [2] the obligatory; [3] the permitted, but not obligatory.’22

Then he writes that the forbidden kind of taqlid takes three forms, which he goes on to elaborate as being:

أَمَّا النَّوْعُ الْأَوَّلُ فَهُوَ ثَلَاثَةُ أَنْوَاعٍ : أَحَدُهَا: الْإِعْرَاضُ عَمَّا أَنْزَلَ اللَّهُ وَ عَدَمُ الِالْتِفَاتِ إلَيْهِ اكْتِفَاءً بِتَقْلِيدِ الْآبَاءِ.  الثَّانِي: تَقْلِيدُ مَنْ لَا يَعْلَمُ الْمُقَلِّدُ أَنَّهُ أَهْلٌ لَأَنْ يُؤْخَذَ بِقَوْلِهِ. الثَّالِثُ: التَّقْلِيدُ بَعْدَ قِيَامِ الْحُجَّةِ وَ ظُهُورِ الدَّلِيلِ عَلَى خِلَافِ قَوْلِ الْمُقَلَّدِ

‘The first category is of three types: Firstly, to turn away from what Allah has revealed and not resort to it, sufficing instead with following one’s forefathers. Secondly, doing taqlid of someone, not knowing if they are qualified so that they can be authoritatively followed. Thirdly, doing taqlid in the face of the proof being established, and it is clear that the proof opposes the view of the authority being followed.‘23

This concludes the first part of the discussion. The second begins by looking into each of these three types of forbidden taqlid and, in the process, sweep away the myths and misinterpretations that have crept into this area, and that erroneously pass as religion in certain quarters of Muslim thought. The words of the Four Imams and their censure of taqlid will also be put into their rightful context. Finally, I’ll attempt to round off the article with a brief word about madhhabs.

1. Al-Tufi, Sharh Mukhtasar al-Rawdah (Beirut: Mu’assasah al-Risalah, 1410H), 3:650.

2. Al-Ghazali, al-Mustasfa min ‘Ilm al-Usul (Cairo: Maktabah al-Tijariyyah, 1356H), 2:387.

3. See: Bakr Abu Zayd, al-Madkhal al-Mufassal ila Fiqh Ahmad b. Hanbal (Riyadh: Dar al-Tawhid, 1411H), 1:64.

4. See: al-Ba‘li, Talkhis Rawdat al-Nazir (Riyadh: Maktabah al-Rushd, 1429H), 347.

5. Siyar A‘lam al-Nubala (Beirut: Mu’assasah al-Risalah, 1419H), 18:191.

6. ibid., 18:191.

7. Al-Kafiyat al-Shafiyah (Makkah: Dar ‘Alam al-Fawa’id, 1428H), vv.774-75; 237.

8. Bakr Abu Zayd, al-Madkhal al-Mufassal, 1:64.

9. Al-Shanqiti, Adwa’ al-Bayan (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1417H), 7:318.

10. Abu Dawud. no.336; Ibn Majah, no.572. It was graded sahih due to supporting chains in al-Albani, Sahih al-Jami‘ al-Saghir (Beirut: al-Maktab al-Islami, 1406H), no.4362.

11. Ibn Mu‘ammar, Risalah fi’l-Ijtihad wa’l-Taqlid (Jeddah: Dar al-Andalus, 1421H), 43-6.

12. Rawdat al-Nazir wa Jannat al-Manazir (Riyadh: Maktabah al-Rushd, 1414H), 3:1015

13. Al-Jami‘ li Ahkam al-Qur’an (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1417H), 11:181

14. Rawdat al-Nazir, 3:1019.

15. Majmu‘ Fatawa (Riyadh: Dar ‘Alam al-Kutub, 1412H), 35:233.

16. Muslim, no.2699.

17. Abu Dawud, no.3664. Al-Nawawi declared its chain sahih in Riyadh al-Salihin (Saudi Arabia: Dar Ibn al-Jawzi, 1422H), no.1399.

18. Al-Faqih wa’l-Mutafaqqih (Riyadh: Dar al-Ifta, 1389H), 2:67.

19. Majmu‘ Fatawa, 20:203-04.

20. ibid., 35:233.

21. Al-Madkhal al-Mufassal, 1:73.

22. I‘lam al-Muwaqqi‘in (Saudi Arabia: Dar Ibn al-Jawzi, 1423H), 3:447.

23. ibid., 3:447.

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Concerning Functional Fatwas & Dysfunctional Muftis

Do fatwas change with place and time; if so, how? Is Islamic fiqh fossilised? Do we require a new fiqh for the 21st century? Are classically-trained muftis fit for purpose in today’s world? Should the ‘ulema be trained in the core philosophical underpinnings of modernity? Does the new maqasid-based fiqh offer a better way forward than the older models? Should Western Muslims rely on scholars from outside the West? These are the core concerns explored in this latest blog. In the course of the discussion, there is a brief reflection about just how legitimate the notion of a modern Islamic ‘state’ is.

I

Understanding affairs dedicated to modern British Muslim life – its specifics, not only its generalities; its daily practices, not merely its theory – is a non-negotiable requisite for issuing fully functional fatwas for Britain’s rising Muslim population. The Qur’an says: وَمَا أَرْسَلْنَا مِنْ رَسُولٍ إِلاَّ بِلِسَانِ قَوْمِهِ – We did not send any Messenger, except with the language of his people. [14:4]

The language of his people, as Mufti Taqi Uthmani insists, isn’t only about speaking the same lingo as your countrymen. It’s also about understanding their joys, sorrows and vicissitudes; their deepest aspirations, hopes and fears; and their culture, conventions and history. In other words, it’s about knowing who they actually are and what makes them truly tick.

Without such a familiarity, nothing else will do and such fatwas will readily be seen for what they probably are: off-key, lamentable and, in some cases, socially destructive or spiritually calamitous.

II

Elsewhere, the Qur’an says: وَمَا أَرْسَلْنَا مِنْ قَبْلِكَ إِلاَّ رِجَالاً نُوحِي إِلَيْهِمْ مِنْ أَهْلِ الْقُرَى – We only sent before you men to whom We reveal, from the people of the towns. [12:109]

The significance of God’s Prophets being from the people of the towns and cities (ahl al-qura) is that they were not bedouins disconnected from the culture and customs of the people, or their day-to-day lives and struggles. Not only did they understand their peoples’ attitudes, outlook, history, fears, concerns and aspirations, they were deeply concerned for their welfare and guidance too; because they were their “people”. The Prophet once prayed for the Makkan idolaters: اللَّهُمَّ اغْفِرْ لِقَوْمِي فَإِنَّهُمْ لا يَعْلَمُونَ – ‘O Allah, forgive my people for they know not.’1

III

The task ahead isn’t to now discard or disavow “foreign” scholarship. That would be uncalled for, as it would be reckless. For the creme of traditional Islamic scholarship still lies outside of the West. Furthermore, fatwas about rules of prayer, pilgrimage or ablution; as an example, or core beliefs and ethics, aren’t tied to whether one is from the East or West. Such things are fixed and unchanging.

Fatwas where customs and societal norms play a significant part; or where context or socio-political realities must be factored in; or where social conventions, mentalities and idiosyncrasies simply cannot be overlooked – then yes, to hand over such fatwas to foreign scholarship is either the act of fools or of bigots. Outside scholarship may be consulted, and the wisdom it offers should be considered. But the end fatwa must be the preserve of homegrown muftis known, not just for their depth of learning, but also for their piety, measured temperament, and avoidance of pandering to populist public opinion or politicians. (Of course, it has been argued that if we explain these cultural scenarios to foreign muftis, they’d get it and could then give us a relevant fatwa. Such a stance is a hit and miss one, at best; and a dangerous gamble with the souls of God’s servants, at worst!)

IV

In context of the above come Ibn al-Qayyim’s famous, though highly misused, words: ‘Thus it is vital that he [the jurist] be thoroughly aware of the peoples’ ploys, schemes, culture and customs.’ He then said: فَإِنَّ الْفَتْوَى تَتَغَيَّرُ بِتَغَيُّرِ الزَّمَانِ وَالْمَكَانِ وَالْعَوَائِدِ وَالْأَحْوَالِ – ‘For fatwas change with the changing of time, place, customs and circumstances.’2  

This above notion is expressed by the legal maxim: تغيّرُ الأحكامِ بتغيُّرِ الأزمانِ – ‘Rulings change with the changing of time.’ But this maxim is not an absolute one. But rather than explain it in my own words, let’s get Ibn al-Qayyim to do his own explaining. He writes in another one of his works that:

‘Legal rulings are of two types: a type which admits of no change whatsoever; neither due to time, place nor scholarly ijtihad – like the requirement of the obligatory duties, the forbiddance of the prohibitions, the prescribed punishments (hudud) for criminal offences; and the like … The second type: what may change, according to the general interest necessitated by change in time, place, or circumstance – such as the amount, forms or types of discretionary punishments (ta‘zirat) [meted out].’3

V

Thus the rule which states that: taghayyur al-fatwa bi taghayyur al-azman – “Fatwas change with the changing of time” is not a free for all. Those fatwas that may change due to time, place or circumstance; the mutaghayyarat, as some call them (in contrast to rulings that remain fixed and unchanging: the thawabit), may do so because of the following reasons: [1] Changes in customs (‘urf, ‘adah) is the obvious one; as is [2] dire necessity (darurah). [3] An overriding public benefit (maslahah) is yet another. [4] Then there’s the deterioration or corruption of the times (fasad al-zaman), and also [5] when afflictions or problems become widespread throughout the community (ma ta‘ummu bihi al-balwah). Some of these juristic tools can even make clear-cut prohibitions halal or lawful for a short time, as per the dire necessity. Others will change a ruling pretty much permanently. Of course, knowing how and when to employ such complex legal devices is the art and craft of the jurist-mufti; and none other.

Examples of when one or more of the above juristic devices have been employed so as to meet the changes in time, place or circumstance include: Loosening the condition of two just male witnesses (shahiday ‘adl) for a marriage, to two male witnesses, out of an increasing difficulty of finding men who qualified as being ‘adl – possessing moral and religious uprightness – in any given town or district. Nothing has changed in our time on that score! Registration of marriages through the courts was stipulated for similar reasons of peoples’ untrustworthiness in terms of testimony.

Another change was the allowance given by some scholars of paying zakat al-fitr, not in wheat, grain or other staple food stuff, but in money. This, contended the Hanafis and others from our early salaf, best allowed the overall objective of zakat al-fitr to be met, in terms of the poor recipients.

Some jurists overlooking the nisab threshold of zakat on silver is another example of change in fatwa. During the Prophetic era, silver’s nisab of 595 grams was comparable to gold’s (87.5 grams), and was enough for a family to subsist on for a year. When the value between gold and silver became significantly large, and when it was no longer feasible for a family to annually live on the monetary equivalent of 595 grams of silver, only the gold nisab was considered.

A final example is Muslims being divided into different countries, of not living under a single caliphate. Stating the ideal, then supplying this dispensation on the matter, Ibn Taymiyyah asserts: ‘The Sunnah is for the Muslims to have a single ruler (imam), with others being his deputies. But if it happened that the ummah left this, due to sin from some and inability from others, so that it had multiple rulers, it would then become incumbent on each ruler to establish the prescribed punishments and protect peoples’ rights.’4

Adapting to the changing realities and seismic political shifts of the eighteenth and nineteenth century Muslim world, the jurist and murajjih, Imam al-Shawkani, stated: ‘However, as for after Islam became widespread and had reached many far away lands, then as is known, there arose in each province or territory a state with its own leader or ruler. This happened in all regions. The authority of each of them does not extend to the area of others, hence there is no harm in there being a number of leaders and rulers. Obedience to each of them, after the oath of allegiance, is obligatory upon the people of that area where his orders and prohibitions are operative. The same goes for the ruler of each area … So realise this.’5

In terms of the juristic techniques employed above, the first two are instances of fasad al-zaman – a deterioration of the times; the third is an issue of maslahah; the fourth, no doubt, is driven by change in ‘adah or societal customs; while the fifth is an example, at its core, of widespread calamity: umum al-balwah. That said, there’s an overlap in some of these legal predicaments and their utilisation.

VI

What all these quotations, examples and discussions are aiming at is a singular reality concerning the nature and craft of fatwa and the mufti: that fatwas can and often do evolve and change with time. There simply is no such thing as fossilised fiqh! Ibn al-Qayyim said:

‘Whoever issues legal rulings to the people merely on the basis of what is transmitted in the [legal] compendia – despite differences in their customs, usages, times, places, conditions, or the particular circumstances of their situations – has strayed and leads others astray. His crime against the religion is far worse than the crime of a physician who gives people medical prescriptions without any regard for the differences in their climes, norms, the age they live in, or their physical natures; but merely in accordance with what he finds in some medical book about people with similar anatomies. He is an ignorant physician; but the other is an ignorant mufti and far more detrimental to peoples’ religion and physical welfare.’6

A century earlier, al-Qarafi offered a similar caution to the intellectually lazy muftis; those who become dysfunctional or unfit for purpose if they do not have a thorough grasp of the cultural milieu that they or the mustafti (the one seeking a fatwa) operate in. He wrote:

‘Whenever new customs are introduced, take heed of them; and whenever they are no longer practiced, disregard them. And do not blindly adhere to what is written in the books your entire life. Rather, if a man from another land came to you seeking for a fatwa, do not inform him of the customs of the people of your land. Instead, ask him about the customs of his people and hold him accountable for that; not your customs or what is in your legal compendia. This is the clear truth, and forever blindly clinging to [past] views is misguidance in religion and ignorance of the ultimate objectives of the Muslim scholars and the past predecessors.’7

VII

The final issue I wish to deliberate upon concerns the mufti’s actual understanding of things, particularly 21st century modernity. But first let’s set the context with another citation from Imam Ibn al-Qayyim, rahimahullah:

لَا يَتَمَكَّنُ الْمُفْتِي وَلَا الْحَاكِمُ مِنْ الْفَتْوَى وَالْحُكْمِ بِالْحَقِّ إلَّا بِنَوْعَيْنِ مِنْ الْفَهْمِ أَحَدُهُمَا فَهْمُ الْوَاقِعِ … النَّوْعُ الثَّانِي فَهْمُ الْوَاجِبِ فِي الْوَاقِعِ وَهُوَ فَهْمُ حُكْمِ اللَّهِ الَّذِي حَكَمَ بِهِ فِي كِتَابِهِ أَوْ عَلَى لِسَانِ قَوْلِهِ فِي هَذَا الْوَاقِعِ

‘Neither a mufti nor a judge can issue a fatwa, in truth, without [possessing] two types of understanding. Firstly, understanding the actual reality … Secondly, understanding the obligation related to the reality; i.e. understanding Allah’s judgement as expressed in His Book or in his [the Prophet’s] words regarding this reality.’8

Thus, having a deep understanding (fiqh, fahm) of the actual reality, the waqi,‘ is critical to the whole enterprise of ifta: of giving fatwas. Having an appreciation and awareness about the nature of modernity – its philosophical cornerstones, and the nihilism, sense of uprootedness, ennui and political resentment that inevitably follow in its wake – is just as crucial too.9

One example, I hope, will suffice to show just how indispensable both types of fiqh are; and it concerns calling for an ‘Islamic state’. A modern ‘Islamic’ ‘state’ is something of a contradiction in terms. Whereas the all-invasive modern state monopolises legislation, the traditional Muslim state doesn’t legislate at all. Traditionally, legislation belongs to Allah; as understood and deciphered by the ‘ulema. How that may be squared with the modern state – in which to practice law making; to be part of the legislature, is to be an agent of the state – hasn’t been adequately tackled by Muslim legalists or Islamists. For there is no modern state sovereignty without state-manufactured law, which the state alone then wields so as to reengineer the social order. To make the state ‘Islamic’, then, we need to look for ways where law is not contaminated by state involvement. Sound fiqh concerning an ‘Islamic state’ is not only about the need for the political process in Muslim lands to reflect the dictates of mercy, justice and shari‘ah, and allow the Islamic potential of its subjects or citizens to flourish – of which there are a number of possible models which reflect what Islamic governance could be. But fiqh of our modern reality, our waqi‘, requires us to understand that ever since the Ottoman reforms of 1856, when the modern Muslim ‘state’ started to become master and legitimiser of legislation, the shari‘ah and its fiqh became subjected to a great deal of aberration and to an enormous process of politicisation. The question then is, can Islamic governance – whose moral, legal, social, political and metaphysical foundations are radically different to that of the modern state; and whose law is primarily a set of theological tenets and moral precepts underscored by legal principles – function independently of the state? Can there be a model of a modern state that divests itself of legislation? Is such an arrangement even possible as an integral facet in the modern patchwork of nation states is a question that needs serious thought and engagement (beyond our current Western-inspired Islamist or state totalitarianism solutions).

VIII

The modern world is radically different to anything and everything which went before. Defining modernity is elusive, even to philosophers and to those in the social sciences; but it does have certain traits. The modern world – this ‘brilliant series of distractions,’ as it’s been called – is the great leveller: Where once there was meaning, there is now anomie and meaninglessness. Where once there was optimism, there is now discontent and despair. Where there was religion and spiritual ambition, there is now a yawning gulf. And where there was direction, there is now a maelstrom of confusion and a lack of inner purpose. To mask this bleak reality; to anaesthetise us, modernity offers us a plethora of gadgets and technology so as to distract us like kids with their new toys. A basic religious insight is that sa‘adah – human ‘happiness’ is to do with the soul. It’s to do with hope, optimism, security, having a sense of direction, a sense of purpose and meaning. And this is something modernity simply cannot supply.

Another religious insight concerns fitrah, in that it regards some things as immutable. For modernity, though, all is up for grabs, nothing is constant or unyielding. ‘Forms of modern life may,’ writes Bauman, ‘differ in quite a few respects – but what unites them all is precisely their fragility, temporariness, vulnerability and inclination to constant change.’ He says that to be modern means to compulsively and obsessively modernise; not ‘just to be’, but forever ‘becoming.’ He then goes on to contend that what was not too long ago dubbed ‘post-modernity,’ which he calls ‘liquid modernity,’ is the growing belief that ‘change is the only permanence, and uncertainty the only certainty.’10

Of course, this does not mean that muftis now all have to dive, head first, into the sea of eighteenth-century tracts on the doctrine of natural rights, or a nineteenth-century discourse on liberty: although it could be useful. Nor is it required to grasp more recent obscurities like Derrida’s deconstructionism, or Sartre’s existentialism: although, again, an acquaintance could indeed prove fruitful. What must be done, however, is to avoid the 19th and 20th century naiveties of the Muslim modernist movements, whose love affair with the West’s alleged Enlightenment – as per the ideas of Kant, Hume, Voltaire, Rousseau, et al. – blinkered many of them from discerning true ishraq from ghaflah and zandaqah. Without some appreciation of the deeper structures of modernity, though, it is likely that we’ll continue to look at things too simplistically. So we either have those who, on the one extreme, reject the modern world on moral grounds, but are entirely smitten by its science and technology; welcoming them with uncritical acceptance. On the other extreme there’s the wholesale acceptance of modernity: those who think that the underlying logic, values and priorities of the secular modern world is where Islam ought to be; and that all we must do to modernity’s basic form is add Islamic content like hijab, halal meat and other such things. Islam’s usual rule in such matters is: khayr al-umur awsatuha – ‘The best of affairs is a middle one.’ And this requires a high degree of depth, deliberation and critical discernment – not only in terms of fiqh, but in terms of ihsan or being spiritually rooted too.11

To be perfectly clear, the intellectual and psychological challenges posed by modernity are probably the hardest and most complex the ummah has ever faced. This is why the capacity of the scholars for tamyiz – to correctly ‘discern’ and to ‘evaluate’ – needs to be stronger and sharper than ever before. There’ll be times, even, when the textual proofs may lend themselves to ambiguities; where the scholar is at a loss to decide as to what is the proper course. In such a case, spiritual inspiration (ilham) – as birthed from deep piety, worship and dhikr; and from purifying the soul from its ego, false pretension, and responses based on agitation, anger or over-admiration – can help decide the issue. Ibn Taymiyyah said: ‘If the seeker, after taking the clear shari‘ah proofs into consideration, fails to reach an answer, his ilham may be an argument to help him resolve the matter: providing he is pious and has right motives.’12

IX

Currently, in terms of legal methods and hermeneutics, there are two competing legal models that form the basis for our contemporary fiqh and fatwa. There’s the traditional nazilah method and the more recent maqasid one. What’s meant by nazilah (pl. nawazil) is a momentous and highly problematic event, usually impacting on society as a whole. This fiqh al-nawazil which, let us not forget, has a long history of tackling momentous and unprecedented cases, assesses the nazilah within the classical juristic framework of ijtihad; of identifying features that the new case may have with earlier legal precedents; of isolating the ratio legis or legal causation (ta‘lil); of utilising juristic devices like ‘adah or darurah, and to then rule accordingly. And while greater scrutiny of the ta‘lil behind religious rulings is certainly warranted, and deeper appreciation of modernity required, claims about an epistemological crisis within the traditional juristic paradigms tend to be greatly exaggerated.

The maqasid approach pushes for something of an overhaul of the classical paradigms. It (like the fiqh al-aqaliyyat or “jurisprudence of [Muslim] minorities” that draws heavily from it) contends that the wholesale secularisation of societies, along with modernity’s other intrusions, require that we think anew how shari‘ah and legal judgements are to be [re]formulated and administered in today’s world. And that’s where the concept of maqasid-based ijtihad comes in. Now maqasid (sing. maqsad – “aim”, “goal”, “objective”, “purpose” of the shari‘ah) isn’t a new legal device, per se; what’s new is its utilisation and scope. Muslim jurists, as far back as al-Juwayni and al-Ghazali, identified certain higher objectives or aims of the shari‘ah ethics and laws. Via a process of istiqra’ or “induction”, whereby a universal rule is inferred from particular instances of the law, these legalists concluded that the maqasid al-shari‘ah; the overall aims of Islam’s Sacred Law, are five: preservation of religion, life, intellect, property and lineage (with some adding a sixth: honour). Three points must be kept in mind about the classical idea of maqasid. Firstly, it was seen as interchangeable with the idea of maslahah – public “welfare” or “utility”. Secondly, its scope was fairly limited. Thirdly, it couldn’t trump explicitly revealed texts or juristic consensus.13

Today’s maqasid approaches are being steadily freed from their historical shackles and, for all intents and purposes, have started taking on lives of their own. Critics of these new maqasid approaches point to a number of concerns. Probably the main objection is that it is too arbitrary; that in its bid to seek end objectives and purposefulness in law for modernity, it ends up allowing maslahah to override clear-cut textual stipulations. Other jurists are suspicious. They see it as nothing more than a Trojan horse galloping its way into the heart of Islamic law-making, fuelled by mindsets that are besotted with Western liberal ideals. The upshot is that it arms such maqasidites with power to alter and abrogate God’s word with their own subjective preferences.14 Some will say that this horse has already bolted.

Notions of public welfare are not just rooted in ease or lenience. Nor are they confined just to this world. Rather, human welfare concerns both this world and the next, and is rooted more so in mercy (rahmah) and reigning in the ego (dabt al-nafs), than in taysir, ease, for its own sake. The truly-taken ease that the shari‘ah permits, or even urges, will always help you to grow; even if only a little. The falsely-taken ease will diminish you; and will often do so rapidly.

Here, let me pause and offer this seldom asked question for consideration. What fatwas has this new maqasid-based ijtihad delivered to us that haven’t been duly addressed by traditional legal methods? What is the traditional method incapable of addressing so as to warrant a complete overhaul, or a radical quantum leap, in legal thought and fatwas? That the maqasid approach allows us to live in the monoculture with greater ease and satisfaction, or that it inches us closer to joining the table of the liberal West, is simply not a good enough response.

A final criticism is that the maqasid approach is too in awe of Western Enlightenment ideals, too readily mistaking them for universal ones. Abdal Hakim Murad notes that these theorists ‘propose reforms to God’s law on the basis of outmoded identifications of human utility, which always seem to be of Western inspiration. The public interest (maslaha, maqsad) always turns out to take the form of what is intelligible and desirable to those outside Islam.’15

X

To conclude: While some of its presumptions are flawed, some of the insights modern maqasid theory yields can and should be benefited from. Traditional fiqh methods can certainly benefit from a renewed engagement with maqasid theory. With its complex, multifaceted methods and axioms, traditional fiqh methods, rather than being found wanting, continue to demonstrate an authentic robustness and flexibility.16 Yet what is clear in this whole analysis is that we are still in need of highly-versed, pious, creative muftis with far-sightedness into “the language of the people” – especially the language and logic of modernity.

وصلّى اللهُ وسلّم على سيّدِنا محمّد و آلِهِ وصحبِهِ أجمعين

1. Al-Bukhari, no.3477; Muslim, no.1752.

2. I‘lam al-Muwaqqi‘in (Riyadh: Dar Ibn al-Jawzi, 2002), 6:113-14.

3. Ighathat al-Lahfan (Makkah: Dar ‘Alam al-Fawa’id, 2011), 570-71.

4. Majmu‘ Fatawa (Riyadh: Dar ‘Alam al-Kutub, 1991), 35:175-76.

5. Al-Sayl al-Jarrar (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1985), 4:512.

6. I‘lam al-Muwaqqi‘in, 4:470.

7. Al-Qarafi, al-Furuq (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1998), 1:322-23. Similar words from him can be found in his al-Ihkam fi Tamyiz al-Fatawa ‘an al-Ahkam (Beirut: Dar al-Basha’ir al-Islamiyyah, 1995), 232.

8. I‘lam al-Muwaqqi‘in, 2:165.

9. A disquieting account of modernity’s discontents can be read in Mishra, Age of Anger: A History of the Present (Great Britain: Allen Lane, 2017).

10. Bauman, Liquid Modernity (Cambridge: Polity Press, 2012), viii-ix.

11. A superb interrogation of a believer’s relationship to modernity is offered in Abdal Hakim Murad’s lecture: Crisis of Modern Consciousness,

12. Majmu‘ Fatawa, 10:473.

13. A good discussion on maslalah is given in Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2003), 351-368. For a more detailed and in-depth study, cf. Opwis, Maslaha and the Purpose of the Law (Leiden & Boston: Brill, 2010).

14. Such suspicions were fleshed out more than half a century ago by al-Buti as part of his clarification and critique of modern maslahah theorists, in Dawabit al-Maslahah fi Shar‘iyyah al-Islamiyyah (Damascus: Dar al-Fikr, 2009).

15. Commentary on The Eleventh Contentions (Cambridge: The Quilliam Press, 2012), 42.

16. For non-specialists, a useful discussion on the relevance of traditional fiqh and legal theory to contemporary issues can be read in: A. Mohammed, Muslims in Non-Muslim Lands: A Legal Study with Applications (Cambridge: The Islamic Texts Society, 2013). The study does much to disabuse us of the myth that traditional fiqh methods are outdated and inflexible.

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