By studying the history of humanity, it is evident that any nation builds its material achievements upon a specific intellectual foundation. This foundation sustains and advances the nation's material achievements, even in the face of severe problems or crises. On the other hand, if a nation lacked an intellectual foundation, its achievements would wither away and it would be unable to recover from any setbacks that confront it. It would lose its momentum altogether and cease to exist as a civilization. This intellectual foundation is of the utmost significance, as it serves as the basis for any civilization and provides a nation with its point of view about life, goals, methodology, and a reference for problems and issues that emerge in the course of a society. When the intellectual foundation is adopted and implemented, it engenders creativity and an effective way of thinking. The Muslim Ummah has a lengthy and rich history with the Islamic 'Aqeedah as its intellectual foundation. Today, the Muslim Ummah is living in decline, whether in the area of economics, politics, social order, government, morals, etc. It becomes important to scrutinize this set of conditions carefully so as not to mistakenly attribute these aspects as the reason for the decline. Since, this may cause us to direct our efforts away from the correct solution by addressing the symptoms rather than the root problem.This apparent state of decline did not occur in a sudden manner or due to minor problems. The Ummah abandoned Islam as its reference and intellectual basis. We began viewing Islam as a set of rituals and a historical heritage, with no relevance to life. This was a result of many factors that accumulated over many centuries. Some of which are:
1. Neglect in the Arabic language.
2. Muslims being infuenced by alien philosophies such as Greek, Hindu, and Persian. (Some Muslims in the past were influenced by such philosophies and established groups such as Al Mu'tazilah).
3. The intellectual invasion headed by missionaries in the 17th century.
4. The political invasions during the 19th century.
5. The current educational curricula in the Muslim world.
In the 4th century, the doors of Ijtihad were closed, resulting in a devastating impact upon the Muslim Ummah, especially in the long term. Closing the doors of Ijtihad stripped the Ummah from its ability to extract rules to solve newly emerging problems. The accumulation of unsolved problems resulted in the weakness in implementing Islam and caused Muslims to start doubting Islam's ability to solve contemporary problems, especially after the industrial revolution that occurred in the West. By the beginning of this century, many attempts were made or proposed to change the situation of the Muslim Ummah. These efforts focused on addressing the symptoms or resorting to other ideologies and ideas. One such effort was to make Islam relevant by viewing the Islamic Fiqh as changeable and adaptable to the changing society. This distorted understanding has led some to view dynamism of Fiqh from this perspective. So, what needs to be addressed are the mechanisms in Islam which enable it to be relevant and applicable until the Day of Judgment.
Islam And Its Relevance
Islam is relevant in the coming of the 21st century in the same manner it was in the 7th century. Human beings can form a system for life. However, such endeavors will never be free of errors, inconsistencies, and will lack relevancy for all peoples at all times. The manmade system would be able to address specific problems in time, place, and for specific people under certain conditions. However, it will never be able to solve all the problems for all humanity at all times under every condition. All of this is due to the nature of human beings who are limited in their abilities, being influenced by their own needs and surroundings. A system revealed from the Creator surpasses all of these limitations. Allah (swt) states:
“Know you not that it is Allah to whom belongs the dominion of the heavens and the earth? And besides Allah you have neither any Wali nor any helper.” (TMQ 21:107)
“And We have not sent you (Mohammed) except as a giver of glad tidings and a warner to all mankind, but most men know not.” (TMQ 34:28)
“And (remember) the Day when we shall raise up from every nation a witness against them from amongst themselves. And we shall bring you (o Mohammed) as a witness against these. And We have sent down to you the Book as an exposition of everything, a guidance, a mercy, and glad tidings for those who have submitted themselves.” (TMQ 16:89)
How is Islam Relevant.
1.Islam is relevant, since it addresses Man as a human being with his inherent needs and wants. It addresses Man's problem as they relate to him as a being with a specific nature. Islam viewed Man from a holistic perspective and addressed the needs of Man as the basis for its solution. While capitalism did not view Man from a holistic perspective. It concentrated on certain aspects of Man's needs while neglecting his other needs. For instance, in capitalism any commodity or service is considered beneficial and has to be produced as long as it satisfies a need for an individual in the society, e.g. wine, drugs, prostitution. Capitalism views the producer or provider of such services as the one who contributes towards solving the economic problem. The problem is addressed by increasing production and subsequently closing the gap between supply and demand. Increasing production to meet demand overlooks the impact of producing the material or providing certain services for society. While, in Islam certain commodities and services have no value because of their negative effect on the society.Additionally, the tool through which Capitalism guarantees the acquisition of products or services is through money. So, whoever does not possess the price of something would be deprived of it. In Islam, the well being of the individual and society at large is considered and thus one would acquire things needed either through the mechanism of price or through other mechanisms, such as Zakah or through the State's treasury.
2. Islam prescribed or specified a system for all aspects of life while leaving the technical and scientific aspects to Man. Islam left Man to pursue the most efficient technique available. One such example of this is the incident when the Prophet (saaw) in the battle of Badr chose a location for the Muslim army to encamp. One of the Sahabah asked the Prophet (saaw), "Is this the location that Allah has ordered you to choose or is it a tactical decision?" When the Prophet (saaw) said that it is a tactical decision, the Sahabi directed the Prophet (saaw)'s attention towards a more strategic location. In another example, the people inquired from the Prophet (saaw) on the method of pollinating date trees. So he (saaw) told the people to leave it up to the wind. When this method did not work and people complained to the Prophet (saaw) about it, the Prophet (saaw) replied that you know better in your daily affairs (referring to the know hows of life). On the same token, Islam encouraged us to cultivate agricultural land but left it up to Man to use the most efficient techniques available in cultivating and enhancing the quality of vegetation and fruits.
3. The nature of the text of both Qur'an and Sunnah possess the following characteristics that give them relevancy:
a) The text is viewed as a legal text, enabling the Mujtahid to derive rules for other issues not mentioned in the text based upon a valid methodology. If the text was viewed in the way the church viewed the bible (as a holy text), the scope of the text would be literal. As an example in (65:6), Allah says:"...then if they give suck to the children for you, give them their due payment..." [ 65: 6]The ayah mentions that monetary compensation should be paid for breastfeeding. However, from the text the following rules or principles can be derived:Compensation is extended to any hired employee. Also, the wage has to be defined in the contract and employees should receive their wage without any delay upon fulfilling contractual obligations.
b) The text sometimes comes in the form of general guidelines while at other times provides details. As an example in (4:29), Allah (swt) says:“O you who believe! Eat not up your property among yourselves unjustly except it be as trade amongst you, by mutual consent...”The ayah specifies that any form of trade should be conducted upon mutual agreement. So the ayah left the type of trade unrestricted. There are certain transactions excluded from the unrestricted description of trade even if it is done with mutual agreements such as transactions involving Riba.Even the ayahs addressing some issues in detail such as inheritance leave room ijtihad.
c) The text in many cases provides an Illah (legal reason) enabling the Mujtahid to extract rules for others cases sharing the same Illah. As an example in (62:9), Allah says:“O you who believe, when the call is proclaimed for the prayer on Friday, come to the remembrance of Allah and leave trade. That is better for you if you did but know.”The ayah prohibits trading when the adhan is proclaimed. Since the illah is the distraction from prayers, then any activity preventing one from the jumu'ah prayer is forbidden. It is important to note that there are specific guidelines for recognizing the illah mentioned in the text explicitly or implicitly.
d) The text in some cases could be general while in others particular. Allah says in (5:38):“Cut off the hand of the thief, male or female, as a recompense for that which they committed. A punishment by way of example, from Allah. And Allah is All Powerful, All Wise.”This ayah was revealed in response to a specific incident. But is general to be applicable upon all incidents of theft.
e) The text in some cases would include specific phrases, making the text relevant for all times. Allah say in (16:8):“And (He has created) horses, mules, and donkeys, for you to ride as an adornment. And He creates things of which you have no knowledge.”Although the ayah listed some animal as being halal to use as a means for transportation and as objects for adornment, the meaning of the ayah includes any means of transportation that could be developed which is taken from the last part of the ayah.
The Role of Ijtihad
The above mentioned points gave Islam the potential and capacity to address and solve any problem at all times. Through Ijtihad, the Mujtahid is able relate the text to the issue at hand. Ijtihad is defined as exerting one's utmost effort to extract rules from its legislative sources. From this definition, it is clear that the scholars would be able to extract rules for new problems. The process of Ijtihad is defined by specific rules, some of which are:The Mujtahid has to restrict his references to the legislative sources (Qur'an, Sunnah, Ijma' as Sahabah, Qiyas) and cannot practice ijtihad without defining legislative sources.The process itself must adhere to a specific methodology.The Mujtahid has to acquire specific knowledge that enables him to understand the text. For example, a good command of the Arabic language, Hadeeth, Tafseer, etc.The Mujtahid has to understand the issue for which the applicable rule is being sought.These requirements are needed for Ijtihad because the purpose of Ijtihad is to understand the issue and apply the Hukm Shar'ii. If this process is misunderstood, the Mujtahid may mix his personal opinion with the Hukm Shar'ii. This effort would not be the product of Hukm Shar'ii, but rather manmade law.Therefore, Ijtihad is defined as the mechanism by which the Hukm Shar'ii is reached at and is not a source. From this understanding, the meaning of ijtihad and its crucial role becomes clear. The closing of the door of ijtihad contributed significantly to the decline that happened in the Muslim Ummah. Thus, the door of ijtihad has to be reopened as part of the effort to revive the Ummah.
Misconceptions About the Relevance of Islam
Some Muslims would agree that Islam is relevant and it is not expected from any Muslim to doubt this fact. However, the relevance of Islam is distorted due to the following:
1. Viewing the Shariah and Fiqh as separate. The difference is that the Shariah is founded upon revelation whereas the Fiqh is a product of juristic interpretation and is considered as an "independent opinion." They establish the difference between Shariah and Fiqh based upon their definition of Fiqh which according to them is the knowledge of the practical rules of Shariah. While Shariah to them is a collection of revealed rules and principles. Therefore, Fiqh evolves and enables the Shariah to be relevant in the light of the changing conditions of society through Ijtihad.
2. Some view Fiqh as encompassing two aspects:a) Aspects related to the 'Ibadah (rites and rituals of worship) whereby a person received reward or punishment. All of this is based upon the text.b) Aspects related to the Mu'amalat (transactions) and other aspects based upon independent opinion.Therefore, Fiqh can be changed as long as it is not related to the Ibadah. Since the objective of Fiqh is to adapt the Shariah to fit the social change.
3. Dr. Abdul Majid Al Najjar in his book Fiqh ul Taqayun claimed that the Ahkam Shariah is abstract and a set of ideal rules and that the role of the Mujtahid is to make these rules relevant to reality. In this process, the Mujtahid would bridge the idealism of the text and the reality of the problem, thus reconciling the two. Since, the issue changes from place to place, every society or environment should have its own Fiqh applicable to the issue.
4. Some claim that the Shariah is relevant by its adaptability for gradual implementation. As an example, Islam can be implemented in a piecemeal fashion. Mohammed Ghazali in his book, Kayfa Na Ta'amalu ma'al Quran, went as far as to say that the punishment for drinking alcohol is irrelevant and should not be the concern, especially in the case of introducing Islam to the French, who are compulsive drinkers.All of these claims are supported based on following arguments:
1. Some rules of the Qur'an and Sunnah were suspended or replaced by the Sahabah because they no longer secured the benefit and the objective for which they were initially revealed.
2. The Sahabah were not bound by an elaborate methodology in Usul ul Fiqh. They took their lead directly from Qur'an and Sunnah. They exhibited liberalism and latitude in their interpretation of the Shariah.
3. The Shariah specifies details for the 'ibadah. As for the mu'amalat (temporal matters), it is mainly concerned with the exposition of basic objectives and general principles which are open to rational inquiry and often provide a starting point for further development. This understanding is used as an evidence for the adaptation and changing of Fiqh to the environment.
4. The historical emergence of Ahl ul Hadith and Ahl ul Ra'ee are used as evidences. It is claimed that Ahl ul Ra'ee were inclined to be more liberal in the use of rational and personal opinion in their development of Fiqh.
5. 'Usul ul Fiqh was developed after the Sahabah and each school introduced a new legislative source or doctrine. All of this was designed to relate the Shariah to social reality and to serve as an instrument for its adaptation to the society. They point out the following historical development of Fiqh:The Tabi'een carried on the existing legacy of the Sahabah and took it to another level, which led to Ijma'.Ahl ul Ra'ee developed Qiyas when they failed to find a text addressing an issue.The Hanafiah developed Istihsan to overcome the rigidities and irregularities of Qiyas.
6. The claim that the legislation in the Qur'an comes in two varieties: definitive and speculative. Although the Qur'an is definitive in its report and authenticity. Most of the Hadith reached us through Khabr Ahad which is speculative in authenticity and transmission. Furthermore, most of the Quran is speculative in its meaning. Therefore the Shariah remains open to interpretation and reconstruction.
7. The Maslaha is used as a Shar'ii source to prove the relevance of Islam through its adaptation to reality and reconstruction. Maslaha is determined by the 'Aql and anything which has more benefit than harm based on the 'Aql is considered Islamically legitimate. Imam Shatibi is misquoted as this being his opinion.Refuting the above mentioned claims:
1. The human being in his rational capacity is limited and is incapable of providing a system that will solve the problems of humanity. Rather, man's endeavor will always be subject to failure, prejudice, inconsistency, and contradictions. Our Creator, Allah (swt) is the sovereign. This must be kept in mind when we discuss issues related to legislation and way of life.
2. Islam is built upon an intellectual basis and gave the mind a great role. However, this role is well defined and is not absolute. When it comes to the discussion of the creation of the universe and the need for Prophethood, it should be based upon rational proof and not on blind faith. However, once the individual believes in the Qur'an and Sunnah, the wahiy then becomes the reference and consequently it redefines the role of the 'Aql. The 'Aql then, has a role in two areas:
A. The domain of Wahiy in which the 'Aql is a tool to understand the text and to undertand the reality. The Aql has no role whatsoever to pass judgment upon the text.
B. The second domain for the 'Aql is the area of science and technology. It must be understood though that this role is given to the 'Aql by Wahiy. Human beings do not acquire this role independent of revelation. The Qur'an and Sunnah are replete with evidences that prove this point:“It is not for a believer, man or woman, when Allah and His Messenger have decreed a matter, that they should have any opinion in their decision. And whoever disobeys Allah and His Messenger, he has indeed strayed in a plain error.” (TMQ 33:36)“You do not worship besides Him but only names which you have named (forged), you and your fathers, for which Allah has sent down no authority. The command is for none but Allah. He has commanded that you worship none but Him. That is the straight religion, but most men know not.” (TMQ 12:40)“Verily, those who believe and do righteous good deeds, and humble themselves before their Lord, they will be the dwellers of Paradise to dwell therein forever.” (TMQ 11:123)
3. The Prophet delivered the Message of Islam. The Qur'an was revealed in Arabic and people understood the Message because they had full command of the Arabic language which is a prerequisite for understanding the Qur'anic text. The Sahabah were pioneers whom Allah (swt) described as:The first to embrace Islam of the Muhajirun and the Ansar and also those who followed them exactly. Allah is well pleased with them as they are well pleased with Him. He has prepared for them Gardens under which rivers flow to dwell therein forever. This is the supreme success. (9:100)“...(and there is also a share in this booty) for the poor emigrants who were expelled from their homes and their property, seeking the bounty from Allah and to please Him.” (TMQ 59:8-9)“Indeed, Allah was pleased with the believers when they gave their Bay'ah to you under the tree, He knew what was in their hearts, and He sent down calmness and tranquillity upon them, and He rewarded them with a near victory.” (TMQ 48:18)The Sahabah are the people who lived with the Prophet (saaw) day and night. They are the generation that compiled the Qur'an, memorized it, preserved it, and carried it to us.“Verily It is We Who have sent down the Dhikr and surely, We will guard it.” (TMQ 15:9)This ayah testifies that what they carried to us is exactly what Allah preserved and testifies that their consensus is the truth.The legacy of the Sahabah was not created by the Tabi'een as some groups claim. The Sahabah had full command of the Arabic language and they understood the text in a natural way without the need to put down their methodology for us in writing. Therefore, labeling them as liberals is totally absurd. It is completely false to claim that the Sahabah departed from the text or even suspended the text when it no longer secured their interests or benefits. In fact, this claim is a grave accusation against the Sahabah and the texts. 'Umar did not suspend the text, neither in the examples which are quite often repeated by some scholars from the Sunnah or Sh'iah. In all examples, it is mentioned that there is a text or the whole incident is false. As an example, the claim that 'Umar suspended the share for the Muahalftu kulbuhum (person of importance whose cooperation was important) and the cutting of the hand of the thief, Shaykh Mohammed Abu Zaharah studying the text showed that 'Umar's action was in line with the text.In the case of Muahalftu kulbuhum, the ayah mentions the illah and 'Umar understood the illah not existing anymore, and thus the rule would not apply. In the second example, 'Umar did not cut the hand of the thief based on the Hadith of the Rasul (saaw) of not applying the hudud when in doubt (Tirmidhi). 'Umar, in this case found a reasonable doubt not to cut the hand in that situation. Furthermore, who is Umar to prohibit something which Allah allowed ? Would the Sahabah accept this from him knowing that a woman objected to his placing of a limit on dowry control? The fallacy of these arguements is as abvious as the fallacy of the accusation made by the Shi'a that Umar prohibited Muta' (marriage limited in time) marriage. Rather, Muta'h was prohibited by the Prophet (saaw)
4. As mentioned before, the Sahabah did not have any need to lay down Usul ul fiqh. This is the same reason why they did not have the need to lay down the rules of Arabic grammar. Both were known by them in a natural way. When we refer to the great scholars of Arabic language, such as Al Asma'ii, we never refer to them as the ones who established the rules of Arabic grammar. Rather, they are the ones who compiled the rules, just as others compiled Usul ul Fiqh. Usul ul Fiqh was practiced in a natural way. Later, the scholars began compiling its already existing rules. Furthermore, any elementary student of Usul ul Fiqh knows that Ali (ra) used to discuss issues belonging to Usul, such as Naskh (abrogation) and thus Usul was not an invention of late scholarship. It was not to be used to adapt and reconstruct the Shariah. Rather, it was laid down to direct the thinking in the process of ijtihad without which there would be chaso. It is obvious that Arabic grammar governs the syntax and speech on the same token that Usul ul Fiqh controls how a person understands the text and that this outcome is Hukm Shari, and not a manmade verdict. It is reported that 'Abd ul Rahman ibn Mahdi wrote to Imam Shaf'ee requesting from him " to write a book that includes the "methods" of understanding the Qur'an and covering how the narration should be accepted, the authority of Ijma', elaborating on issues of abrogation..." In response to this request, Imam Shaf'ee wrote his great book Ar Risala. Therefore, undermining Usul ul Fiqh means that it will be carried by the incompetent or it will be performed by those who want to mix their opinions or desires with the outcome of Hukm Shar'ii. This will be done by abandoning Usul ul Fiqh or trying to play with Usul by establishing rules to reach a predetermined conclusion.5. The classification of two schools of fiqh at the time of the Tabi'een cannot be thought of as a school of classical traditionalists versus liberal revivalist. This claim is false and implies that the Tabi'een who took from the Sahabah did not adhere to the text. Furthermore, if we go through the names of individuals belonging to the school of Madinah (Ahl ul Hadith), we find names like Malik ibn Anas who used to practice ijtihad according to Maslaha al Mursalah more than Abu Hanifa who belonged to Kufah (Ahl ul Rai). On the other hand, one find scholars such as Al Shabee and Hammad ar Rawiyah from the school of Kufah who were considered as Muhaditheen. Both schools realized what Rasul Allah (saaw) meant when he (saaw) said:“My Ummah will be divided into 70 sects. They would be those who started taking the Deen from their 'Aql.” (Al Darami)“He who adopts an opinion related to the Qur'an based on his 'Aql he will reserve for himself a place in the hellfire.” (Bukhari and Muslim)
The schools of Hadith and Ra'ee were alike in this respect. Both adhered to the text while some practiced Qiyas more than the others.6. Claiming that each school of fiqh invented a new source to serve their purpose and then presenting this claim in a chronological order, leading the reader to think that there was a process of evolution and development which should continue is false. Each Mujtahid or imam of the time believed in Allah and the Message He (swt) sent. All realized that their role is to understand the Hukm Shar'ii based upon the evidence and none of them would adopt a source based upon a preconceived judgment. Thinking otherwise would mean that those imams are not worth consideration, that none of them were objective and the whole issue of Ijtihad and Fiqh was an intellectual sport.
A. Ijma' as Sahabah was not invented by the Tabi'een but rather was based upon the Daleel.
B. Qiyas was not invented by Ahl ul Ra'ee, but rather based upon the Daleel.
C. Istihsan was not introduced by the Hanafiah to handle irregularities and rigidity of Qiyas as claimed by some. It was based upon an evidence viewed by some as sound while others did not view it as such.
The technical definition of Fiqh is not the knowledge of the practical rules of Shariah, since such a definition means that Shariah has two parts: practical rules and set of theories or principles. This distorted understanding leads one to the conclusion that Fiqh is the knowledge of the practical rules and as such the practical rules is a human effort based upon the theories or principles of Shariah.The definition of Fiqh in Arabic is having the knowledge of divine laws derived from the legislative sources. So, the law which is not derived from a source is not Fiqh and in this definition Shariah and Fiqh are synonyms. The linguistic meaning of Shariah means a non-exhaustive source of water. The term Shariah is used twice in Quran:“...to each among you, We have prescribed a law and a clear way” (TMQ 5:48)In this ayah the word Shariah is used to mean legislation.“Then We have put you on a plain way of (Our) commandment. So you should follow that, and not the desires of those who don't know.” (TMQ 45:18)In this ayah, the word Shariah is used to mean Islam.However, Islam consists of two parts the Aqeedah and the rules derived from it. Those rules are not independent opinion rather they are part of Islam. The understanding of the Mujtahid of the text as long as it is within the text will be considered part of Islam. It is true that this understanding could be changed or be different from one Mujtahid to another, but all of these difference have to be justified based upon the text.Assuming that there is a distinction between Fiqh and Shariah, both still cannot be viewed as a manmade endeavor. In the end, the defintion of Hukm Sharii is the address of the Legislator related to our actions.
The Mujtahid understands the text based upon a specific methodology. His understanding is considered a Hukm Sharii and is binding upon him and anyone who follows that Mujtahid without the need for Ijma. The Hukm Sharii cannot be man made and consequently the entire collection of Hukm Sharii which is Fiqh cannot be man made. The Hukm Sharii whether related to Ibadah or Mumalat or whether derived directly or understood is binding. There is a reward or punishment on both the Mumalat or Ibadah. There is no difference between Hukm Sharii related to the prayers which is Ibadah and the prerequisites of the contract which is Mumamlat. Both aspect of Fiqh related to Mumalat and Ibadah are addressed in Islam. So to claim that Islam adressed Ibadah while addressed the general principles in Mumalat means ignorance in Quran and Sunnah. Anyone who reads Quran and Sunnah will discover abundance of details related to transactions, legal system, economic system, etc. Therefore, there is no sacred area related to Ibadah while an open area related to Mumalat.8. Based on the definition of Fiqh and Hukm Shar'ii, the Usul ul Fiqh is defined as the collection of principles pertaining to the methodology for the extraction of Fiqh. The Mujtahid is the one who exhausts his efforts in thoroughly studying a problem and seeking a solution for it from the sources of the Shariah. Therefore, the Mujtahid is not the one who exercises his intellectual abilities to issue a independent verdict, and as such he is not a legislator. As mentioned earlier, the Mujtahid has to adhere to a specific methodology, which is Usul ul Fiqh and has to meet the requirements of Ijtihad (understanding the Arabic Language, the knowledge of Shar'ii disciplines, and understanding the issue).
The Mujtahid should view the Usul as the control mechanism that regulates and directs his thinking to extract the Hukm Shar'ii in a creative way. He should not view them as constraints or as a tool to adapt the Shariah, using it to justify a predetermined result.9. Claiming that most of the Qur'an and the Sunnah are speculative texts, and therefore the doors for adaptation and reconstruction are open is wrong. The Qur'an has Ayat which are Qata'ee (definite) in their meaning while others are Thanni. The word Thanni in this context means that a word would have more than one meaning and the scholar of Tafseer or Mujtahid would be required to study the text, the context, the language, the lifestyle of the Arabs at the time of revelation, and the methodology of Tafseer and Usul ul Fiqh before reaching an answer.
The translation of the word Thanni to speculative or conjectural is very misleading and implies that those texts are open for speculation or that they are nothing but conjecture. This would lead to an erroneous understanding that each person has the authority to speculate without any room for discussion or that no controls exist to insure that the understanding is based on a sound methodology.10. One of the most abused or misused term is Maslaha which is (benefit or interest). This term refers to one of the disputed sources of Hukm Shar'ii by the early 'Ulema, few of which did consider it as a valid source for Hukm Shar'ii. Those 'Ulema who considered it as a valid source, used it with many controls and restrictions:a. It should not contradict the Qur'an.b. It should not contradict the Sunnah.c. It should not contradict Ijma'.d. It should not contradict Qiyas.e. It should not undermine any other Maslaha (benefit or interest) that is more important than the one under consideration.Those who allow many things under the pretext of Maslaha did not pay any attention to this, and say that when the text no longer secures any Maslaha, it should be departed. Most of those who promote Maslaha today refer to their independent opinion in determining the Maslaha as long as it complies with the "spirit of Islam".
Such a term is very vague and misses a very important point: the text carries a specific linguistic connotation which the Shariah binds us to, otherwise there will be no use for the language at all.
The Ijtihad based on this view would be nothing more than imagination based on Maslaha.As an example of this practice of Maslaha is clearly noted when some Islamic movements accept to hold some political positions in the cabinets of some regimes in the Muslim world or in the West under the pretext of Maslaha. This contradicts the numerous texts in the Qur'an and Sunnah, such as: surah 5: 44,45, 47 and the fact that the Prophet (saaw) rejected the Quraysh offer to become a king and ruler of their system.
Claiming that Imam Shatibi adopted the Maslaha in this way is a false accusation of the Imam because Imam Shatibi himself said: "The 'Aql has no room in determining the Maslaha based on the rule of sovereignty " [Volume 2, p.219 (Al-Muwafaqat)]He further says:"If we agree that the Shariah is sent for the welfare of Humanity, then this should be according to what the Shariah prescribed and not based on their whims and desires " [volume 2 p117]He also says:"Violating the Shariah under the pretext of following the basic objectives or values of Shariah (Maqasid al Shariah) is like the one who cares about the spirit with the body and since the body without spirit is useless therefore the spirit without body is useless too."So how could an Imam like Shatibi who mentions very clearly that " the objective behind the Shariah is to liberate the individuals form his desires in order to be a true 'abd (slave) of Allah and that the legitimate Maslaha which the Shariah establishes would be considered as long as it maintains this life as a passage to the hereafter not based on the desires of the human being" P (2-25)
How could any one accuse Imam Shatibi of promoting Maslaha based on Aql?
HISTORICAL FACTORS THAT LED TO THESE MISCONCEPTIONS:
Allah (swt) has sent Islam as a comprehensive social order based on the 'Aqeedah in order to replace the status of not only Arabia but the world at large.Thus, the establishment in Makkah opposed it and this opposition was even carried out by the People of the Book. Although the opposition of the polytheists was expected, the People of the Book, were expected to either embrace it or at least adapt to it. Therefore, a struggle took place from the very beginning. In the initial stage in Makkah, the struggle was purely intellectual and ideological from the side of the Muslims while the Quraysh used all the means at their disposal, such as torture, boycott, blackmail, defamation, killing etc. He (saaw) was able to achieve the objective of the Da'wah by migrating with his (saaw) Sahabah to Madinah and establishing the Islamic State there, which symbolized the turning point in the Struggle. From that point on, the struggle was on three fronts; political, material, and intellectual. It did not take the Muslims long to be the leading nation in the world. Many new means were employed against the Muslims to weaken their status such as:- Fabricating the ahadeeth- Instigating fitnah amongst the Muslims- Political assassinations of the earlier Khulafah- Establishment of sects (e.g., Hassasineen)All of those means that were employed in the struggle were not successful in stopping the Ummah from continuing as the leading nation in the world, even though it caused a drag in the momentum of the Ummah.The Crusader war and Mongol invasions both failed to defeat the Ummah in the long run, although they were victorious in some battles and occupied portions of the Islamic state for a while. It is apparent that their material efforts failed. After the defeat of the Crusades, they started employing a new means of attack which manifested in itself in missionary and ideological warfare. The first Spanish missionary, led by Ramon Lowell started his activities on an individual basis and then by the end of the 17th century this effort had evolved into an organized activity through secret societies and missions that were staked in the heart of Muslim land. The emphasis of their campaign revolved around several points or issues:· Severing the bond between the Muslims by calling for nationalism.· Elimination of Islam as the reference point for Muslims by replacing it with another yard stick· Shaking the trust of Muslims in the Islamic system by attacking some clear Islamic solutions such as Jihad, Penal Code, Marriage, divorce, role of women etc.Throughout this continuos campaign the West was able to recruit many agents from amongst the Muslim Ummah in their efforts. Those agents were not restricted to the political arena but also to the cultural and intellectual arenas. By the 19th century, many ideas were introduced to the mindset of the Ummah such as reconstructing religious thought in Islam, the negation of the doctrine of miracles, the abrogation of jihad, the permissibility of Riba', all of those ideas were propagated under the pretext of bridging the gap between Islam and the contemporary life. Those ideas were carried out by many people such as Sir Syed Ahmad Khan, Muhammad Iqbal, Jamal Al Deen Al Afghani, Muhammad 'Abduh, and Rafa'a al Tahtawi, Rashid Rida, Taha Husayn, and 'Ali 'Abdul Raziq, most of which have maintained a close relationship with the British or French governments, either overtly or covertly. Additionally institutions were established to reorient the thinking of the people such as Aliger in India and in Egypt efforts were done to reorient Al Azhar and at times institutions were established such as Dar ul Uloom to counter Al Azhar. Zwaymer, one of the leading missionaries summarized the objective of those activities by addressing a conference for missionaries in Jerusalem, saying "If you succeed in your efforts, you will be the leading pioneers for the coming colonization". The statement of Guro, the French General who entered Damascus and Allenby the British general who entered Jerusalem is engraved in the minds of the Muslims.Guro kicked the tomb of Salah al Deen and said "Wake up Salah al Deen we are here !" Allenby said upon entering Jerusalem "Now the crusades have ended."Therefore, all of these ides which are now surfacing should not be considered independent of this historical context. All of these ideas and deviations directed the Ummah to the same result: turning away from the Wahiy as a reference, and giving the mind a role that overrides the Wahiy under the pretext of Reconstruction, Reform, Ijtihad, and a new Fiqh. Muslims will start accepting the status quo and changing Islam and the "Fatawa" will be tailored to justify this deviation. An example of this is the claim that the division in the Muslim Ummah is justified by the existence of different conditions in each country which prevent the reunification or the effort to bridge the gap between Islam and science. Today, the propagation of the misconceptions about the reform of the Shariah and the "ongoing efforts to reconstruct the Shariah" are nothing but the perpetuation of the legacy of the above mentioned persons and efforts.Such claims as society undergoing continuous social change and that the Shariah has to adapt to this social reality means that whenever a change occurs Islam has to be molded. Rather, we should view Islam as that which came to change reality so as to render it compliant with the Islamic viewpoint of life.The following are examples which will assist the reader to realize the extent of this deviant effort and the gravity of its impact:1. In Tunisia, Rashid al Ghannoushi states in his book, Huriyat al Amma in regards to a woman being a ruler: that Ahkam al Shariah in general and specifically related to the political system should not be built upon any Thanniy daleel no matter how little the Thann is in the Daleel. He says that the Shariah is not a rigid text nor has it been laid down as a final formula. Also it is not codified like any other body of law. Therefore, the room is wide open for interpretation, updating, and reform through the individual and collective Aql (ijtihad). Based upon his methodology, a woman is allowed to be a ruler.2. In Sudan, Hasan Al Turabi in his book Tajdeed Usul ul Fiqh, claims that the setup of the traditional Usul ul Fiqh does not fit our contemporary needs. He claims that we are in need for a new outlook or understanding for rules of divorce and marriage in which we will benefit from the current social sciences and will build upon our inherited Fiqh, look into Quran and Sunnah equipped with all contemporary needs, sciences, and all Islamic and comparative Fiqh experiences. After this we will find a new way to what Allah's Shariah mandates within the context of our situation.3. The Fiqh Council in North America permitted adoption of the method of astronomical calculations in determining the beginning and end of the lunar month since "it is the best way to unite the community and present it to them in a suitable manner and defending the accusation of Muslims ignoring science". Although it has been claimed that the adaptation of the Shariah to change is limited to the Mu'amalat (as they claim), it seems that they also extended it to the Ibadah.With the new definitions of marriage and family in the West and with the consistent efforts in conferences like the population and women's conferences in Cairo and in Beijing, the Muslims in the future would be subjected to "new Fatawa' to adapt with this new social reality. Some people might think that this is an exaggeration, however with `Fatawa' that say that women do not have to wear the Khimar (headcover) and permitting the women to marry non-Muslim men, it seems, that things could go beyond this.THE SOLUTIONSince Islam is from Allah and addresses the human being with his instincts and organic needs, it cannot be changed because of the following:1. The Human being does not change in either his instincts nor in his organic needs. What changes are the tools, ways, and the means that humans use in their efforts to satisfy their needs. As an example; human beings before and at the time of the Prophet (saaw) used to marry, eat, own, love, hate, travel, satisfy, worship, etc. and will continue to do so. No new instincts or organic biological need can be added. However, the means of satisfying these needs change. It is well known that Islam views any object as Halal unless there is particular Daleel that excludes a particular object (unlike the actions, all of which require a daleel for the performance or abstention). Therefore, what do we need to change Islam for ?Since Allah (swt) is the One Who created man, He is the only One who knows how man's instincts and organic needs can be satisfied. It must be kept in mind that Allah knows the changes which humanity has, is, and will go through, and thus the system He (swt) chose for us must be the perfect system without any human alteration unless we start doubting Allah (swt)'s infinite capability. We have to remember that Islam has its own mechanism, which if followed and implemented effectively will enable the Mujtahid to derive rules from the text and not to change the Shariah or alter the text or rules. That is why every generation should have at least one Mujtahid.Therefore, we need to return to the text the way it is equipped with whatever is needed for this objective. This requires for us to look to Islam as our reference and leadership. We should stop viewing Islam as a set of rituals. This requires from us to pay attention to the Arabic language to make sure it is not separated from Islam. Additionally, by establishing Islam in life and opening the door for Ijtihad with its prerequisites, Islam will be relevant.CONCLUSION:It is very obvious that any law student can propose a law that adapts to new realities in society just by adding one proposition to this law that permits changes in the system. These changes in the system would be an attempt to keep up with the so called changes in life. Humanity witnessed Marx, Hobbes, Adam Smith, James Madison, and the American Founding Fathers who introduced systems that kept undergoing many changes.If we view Islam in the same manner, then where is the uniqueness and miraculous nature of Islam. In fact, why do we need Allah (swt) if the system He (swt) provided us with ends up being changed? Why do we need Allah (swt)'s system if it is similar to Marx's or Jefferson's?These efforts to deviate the Ummah from Islam should be viewed very seriously because they amount to nothing other than the current degree of submission of the Muslim Ummah to other than Islam by replacing its label with a false Islamic one.It must be a matter of Belief that Islam is relevant in all places and all times for all people as their way of life. The emerging need is for Ijtihad to ensure that the rules are correctly extracted from the Shari'ah for new problems. This means that the doors of Ijtihad should be open but not broken.