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Shari`ah Between Texts and Reality

Consideration of people’s reality when applying textual proofs
By Osamah Salhia
Fiqh Between Texts and Reality

Fiqh is one of the most essential and practical Islamic sciences, since its subject is the actions of accountable individuals (mukallafin) in terms of being obligatory, recommended, permissible, impermissible or abhorred.

The teachings of Islam were taught by the Prophet (peace and blessings be upon him) throughout his life, and his Sunnah offers us a wealth of different circumstances and contexts that he and his companions experienced. This added to the teachings of our faith a significant human component that our scholars studied and used to extrapolate principles and guidelines to understanding.

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Since individuals may experience unique circumstances that may hinder their ability to comply or warrant special considerations, the scholars have pointed out several factors that the faqih (jurist) must keep in mind when offering legal discretion (fatwa). Although our predecessors all did have their viable legal stances regarding the relationship between religious texts and various religious evidences and the extent that eternal factors may influence these texts, they are in agreement that religious texts should not be divorced from the context.

This article will address: 

  • The significance of context in the practice of the Prophet (peace and blessings be upon him), the companions and the fuqaha’ (jurists).
  • The practicality of fiqh and the importance of negotiating between the theory and reality within an acceptable legal framework.
  • The dangers of dealing with texts in insolation from reality and limiting the dynamics of fiqh to quotes and memorization.
  • Concepts that shed light upon the significance of case specific information when dealing with religious texts (customs and the change of fatwa with time and place).

 

The Significance of Context

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Islam has given high merit to engaging daily life and society, for in it we manifest our servitude to our creator and our adherence to His teachings. Allah, Glorified and Exalted, has described His prophets as those who live among their people: {And We did not send before you, [O Muhammad], any of the messengers except that they ate food and walked in the markets} (Al-Furqan 25:20)

Allah, the Almighty,  states: {Ar-Rahman (the Most Gracious!). It is He Who has taught the Qur'an . He has created man [and] taught him eloquence.} (Ar-Rahman 55: 1-4) Allah has selected eloquence, or in other words effective expression, as a distinguishing quality of humankind. The scholars of balaghah (rhetoric) have defined eloquence as: The suitability of speech to the condition in which it is delivered.[1] Such a characteristic, the ability to distinguish different conditions and address each one with the most suitable words is at the core of wisdom and is grounded in understanding context. Allah said regarding wisdom:

{Our Lord! and send among them a messenger from themselves who will recite to them Your verses and teach them the Book and wisdom and purify them.} (Al-Baqarah 2: 129)

Explaining the wisdom mentioned in the verse, Ibn Qutaybah said: “It is knowledge and action together; an individual cannot be of the wise until he gathers them both”[2].

The Qur’an implied the significance of understanding the nature of people:

{The bedouins are stronger in disbelief and hypocrisy and more likely not to know the limits of what [laws] Allah has revealed to His Messenger. And Allah is Knowing and Wise.} (At-Tawbah 9: 97)

They are less likely to know the limits because of their geographical distance from hearing the Qur’an and the sunnah[3]. Hence, the actions of our beloved prophet (peace and blessings be upon him) highlighted his wisdom in dealing with these people who were more susceptible to being unaware because he understood their reality:

Anas ibn Malik (may Allah be pleased with him) reported: While we were in the Masjid with the Prophet (peace and blessings be upon him), a bedouin Arab entered and began to urinate. The companions of the Prophet began to reprimand him and order him to stop.

The Companions of the Prophet learned well from the prophetic school the significance of understanding people and context.

The Prophet (peace and blessings be upon him) said: “Do not disturb him. Leave him”. So, they left him until he finished, then the Prophet (peace and blessings be upon him) called him and said: These masjids are not suitable for any of this urination or for any filth. Rather, it is for remembrance of Allah, prayers and recitation of Qur’an”. Then, he ordered the companions to spill a bucket of water over the urination” (Al-Bukhari and Muslim). And in another variation, the Prophet (peace and blessings be upon him) instructed the companions: “Indeed, you were sent as torchbearers of ease, and you were not sent as torchbearers of hardship” (At-Tirmidhi).

On the other hand, we find that he (peace and blessings be upon him) reprimanded those who were aware of the limits. Usamah ibn Zayd reported:

The Prophet (peace and blessings be upon him) sent us out on a campaign, and I came across a man who said ‘La ilaha illah Allah’ (There is no deity worthy of worship except Allah), and I stabbed him, and I felt uneasy about it. So, I mentioned it to the Prophet (peace and blessings be upon him), and he inquired: “He said la ilaha illah Allah and you killed him?” I said: O Prophet of Allah, he said it out of fear of the weapons. The Prophet (peace and blessings be upon him) then responded: “Have you uncovered his heart so that you may know he said it for that reason or not?” The Prophet (peace and blessings be upon him) continued to repeat the question to the extent that I wished I had embraced Islam that day” (Muslim).

Shari`ah: Bringing Value to Our Lives (Series)

The Companions of the Prophet (peace and blessings be upon him) learned well from the prophetic school the significance of understanding people and context. Ibn `Abbas was of the opinion that one who kills a believer can repent. However, once a man came to him and asked: “Does one who kills a believer have the opportunity to repent?”

Ibn `Abbas responded: “No, only the hellfire.”

When the man left, those sitting in his gathering stated: “That is not the fatwa you used to give us.” You stated that for one who kills a believer there is an opportunity for an accepted repentance, so what changed today?"

He responded: “I believe him to be angry and contemplating the murder of a believer.” So, they sent someone in search of the man and they found that to be the case[4].

 

The Practicality of Fiqh

The scholars and fuqahaa’ in the Islamic legacy have also emphasized that it is essential for scholarly discretion (fatwa) to be on a solid basis of understanding context and people. There is often a discrepancy between theory and reality and the scholar must be able to negotiate between theory and reality. Imam ibn al-Qayyim said:

“The faqih is one whose practice is between obligations and reality, and he attempts to establish religious obligations to the best of his ability. The faqih is not one who creates friction and divergence between religious obligations and reality, for every age has its respective ruling, and the people of one age are more akin to it than their forefathers”[5].

Imam Ahmad said: “The individual should not present himself for fatwa until he knows the people”. Imam ibn al-Qayyim commented on this statement of Imam Ahmad:

This is a great principle that a mufti and a ruler are in need of. So, if he does not understand this principle and understand the religious commands and prohibitions while trying to apply one to the other, he will corrupt more than he rectifies. If he does not understand the religious commands and the people, he will view the oppressor as oppressed and vice versa, and he will view the rightful party as wrongful, and he will be easily deceived[6].

The Shafi`ite jurists have ruled that it is disliked (Makruh) for the judge to issue a ruling in numerous conditions because they are factors that block one’s judgment and influence his state of mind. Al-Qadi Abu Shuja` Al-Asfahani said:

And he should avoid judgment in ten conditions: Anger, hunger, thirst, strong arousal, extreme sadness, extreme happiness, illness, struggling with bowel movements, exhaustion or extreme heat or cold[7].

The general rule that gathers all of these conditions is that it is disliked for him to judge in every condition that negatively influences his character. They also ruled that it is impermissible (haram) for him to accept gifts from the citizens in his jurisdiction and that his rulings for his ascendants and descendants are invalid for the plausible influence that these matters have on his judgment[8].

 

Theory and Practicality

One of the dangers that many muftis today fall into is succumbing to the present reality and all that it contains of deviances and challenges to Islam’s teachings

Consequently, it is absolutely necessary for one who addresses reality in the name of faith to have a strong grasp of the theoretical teachings, the context and how to apply theory to context (Tanzil al-Hukm). This very intricate and complex process is at the core of Ijtihad and fatwa, which is the epitome of fiqh. The absence of any of these elements can have devastating repercussions. Hence, Dr. Yusuf Al-Qaradawi said:

“I have benefited from the minds of fourteen hundred years of our Ummah, and I have learned from the Ijtihad performed by the various juridical schools…We cannot say that we shall depend on modern work and forget the classical work; rather, we must take from it and build upon it because the generations complete one another”[9].

He also said:

"Without knowing people and living their reality and their challenges the mufti will fall into major lapses and will have a surreal view of issues. He will be living in one world and the rest of the world in another because he only knows what should be the status quo rather than what actually is the status quo while they are two very different matters"[10].

And he also warned:

“One of the dangers that many muftis today fall into is succumbing to the present reality and all that it contains of deviances and challenges to Islam’s teachings… Undoubtedly, many people who speak of Islam and its teachings struggle against spiritual defeat before this reality and feel severe weakness against its immense pressures”[11].

Imam ibn al-Qayyim said: The mufti or ruler is unable to judge by truth except by two types of understanding:

  1. Understanding the context and deducing the knowledge of what truly occurred by signs and indications.
  2. Understanding the religious obligation related to that context; it is to understand Allah’s ruling in His book or on the tongue of His prophet regarding that particular context. [12]

 

Using Texts Away From Context

Whosoever issued fatwas merely by citing quotes from books while people vary in customs, times and conditions has deviated and caused others to deviate.

The scholars of Islam have conveyed the dangers of one who issues edicts in isolation from the context, and they have denounced the idea of approaching texts without regarding the case specific circumstances and the other considerations of ijtihad. Shaykh `Abdullah bin Bayyah mentioned:

Ibn `Abideen said:

“If you were to say: ‘If this is the case, the Mufti should not offer legal discretion by merely reviewing a book, even if that book was well known’. I would say: Yes, that is surely the case…If fiqh was attained by merely reviewing the issue in its chapter (in fiqh books), it would be the easiest knowledge to attain, and it would not need training by an experienced teacher or a great deal of intelligence…[13].

Imam Ibn al-Qayyim said: “Whosoever issued fatwas to people merely by citing quotes from books while they (people) vary in customs, times and conditions has deviated and caused others to deviate.”[14]

 

Fiqh vs. Memorization

Shaykh `Abdullah bin Bayyah said:

"The Mufti must have insight into reality and realization of case specific circumstances in order for him to apply the fiqh rulings and principles. Memorizing issues is insufficient when the scholar is incapable of applying those issues to real life situations and using the principles of deduction."[15]

Imam Ibn Rushd Al-Andalusi drew the following analogy of those who assume that excelling in fiqh is achieved simply by virtue of memorization:

The condition of these people is like that of one who assumes that a shoemaker is one with a large stock of shoes, not the actual manufacturer. It is clear that there will be an individual that has a foot size not suitable for anything in his stock, and at that point, he will contact the manufacturer who is able to make custom made sizes.[16]

 

Fatwa Changes with Time and Place

Not all rulings are susceptible to change with time and place.

The Sunnah of our beloved Prophet (peace and blessings be upon him) has taught us that there are many circumstances that warrant a religious ruling to be changed. The following hadith about the ruling of kissing a spouse while fasting illustrates this. It was reported on the account of `Amr ibn Al-`Aas:

We were sitting by the Prophet (peace and blessings be upon him) when a young man came and asked: “O prophet of Allah, shall I kiss while I am fasting?” The Prophet (peace and blessings be upon him) responded: No. Then, an old man came and asked: “O prophet of Allah, shall I kiss while I am fasting?” He responded: Yes. So, we began to glance at one another. The prophet (peace and blessings be upon him) then said: “I know why you are glancing at one another. The old man can control himself.” (Ahmad)

Not all rulings are susceptible to change with time and place. That which changes are the rulings based on Ijtihad. As for explicit rulings (qat`i), they can never change. So, the rulings of inheritance can never change with the claim that women in modern day have a distinct status in relation to the past and the prohibition of stipulating interest in the contract (Riba An-Nasa’) can never change in Muslim lands.[17]

Shaykh Mustafa Az-Zarqa said that the circumstances warranting change with time and place are of two types:

  1. The change of time which necessitates a change in the fiqh rulings which are based on Ijtihad. This necessitated change stems from the corruption of social manners, the absence of religious caution (wara`) and the weak motivation to comply with religious rulings, which is referred to as the corruption of time (Fasad Az-Zaman).
  2. Human advancements which incur new administrative conditions, modern tools and equipment that cause the previous social constructs to no longer be suitable.[18]
Shari`ah and the Principle of Hardship Removal

An example of the first type is the modern ruling of closing the mosques outside of prayer times, although they are areas prepared for worship and prayers. It should be open at all times, as was the condition by our predecessors, but some modern scholars issued a fatwa that it may be closed at times in order to preserve it from theft and offense.[19]

A modern example of place changing the fatwa is the calculation of prayers in lands where the sun rises for a period of six months and sets for a period of six months. Dr. Yusuf Al-Qaradawi said:

Our fatwa to the people in these areas is that they must calculate the time. They must divide the year into days (24 hours) and calculate the five daily prayers according to the times of Makkah and Madinah, the lands of revelation, or according to the nearest country with normal days. The obligation of calculation was taken from the known hadith that speaks of the Dajjal and the day being elongated to the span of one year.[20]

The set ruling that prayers must be prayed in their allotted times, which enter based on certain signs that appear in the various stations of the day, had to be redefined in this extraordinary circumstance due to the absence of those signs for months.

A modern example of time changing the fatwa is the religious obligation of registering marriage contracts. In the past, writing the marriage contract was not required because the contract is religiously initiated orally. Shaykh al-Qaradawi said:

One of the matters required due to the decadence of social character and the audacity of people upon prohibitions is the registry of marriage contracts in order to protect the rights of spouses and the rights marriage entails, such as establishing parenthood of the children. This is mandatory due to the fear that one of the spouses may deny their marriage.[21]

 

The Role of `Urf (Customs) in Scholarly Discourse

At its base, `urf (customs) is an agreed upon religious evidence. However, its scope of application is an area of contentious debate among the scholars. Since customs are often based on matters appropriated by human minds, it would be incorrect to refer to it as religious evidence in all cases; otherwise, the mind will essentially become the judge of what constitutes Shari`ah, which is something unacceptable.[22]

In light of these basic guidelines, I mention the statement of Imam al-Qarafi:

"Whenever new customs are introduced take heed of them, and whenever they are no longer practiced disregard them, and do not confine yourself to what is written in the books your entire life. Rather, if a man from another land came to you seeking fatwa, do not inform him of the customs of the people of your land. Rather, ask him of the customs of his people and hold him accountable for that, not your customs and what is in your books. This is evident truth, and forever confining oneself to quotes is deviance in faith and ignorance of the objectives of Muslim scholars and our predecessors."[23]

Hence, the customs that contradict texts (nusus) are disregarded except in a limited scope. Further detail can be found in the books of Usul al-Fiqh (Principles of Islamic Jurisprudence), but for the purpose of this article, it is important to realize that `urf (customs) is factored in to the faqih’s mind when issuing religious rulings.

An example that may be used for this concept is the testimony of women according to the opinion of a few scholars such as Imam ibn Taymiyyah, Ibn al-Qayyim and Muhammad Abduh.  Imam Ibn Taymiyyah reasoned that the wisdom of the testimony of two women being equivalent to the testimony of one man is that women did not usually withstand these kinds of sittings and various types of transactions. But if a woman’s expertise, practices and habits evolved, her testimony would be equivalent to the testimony of a male (even in civic rights or loans).[24]

Imam Muhammad `Abduh mentioned this same concept by contextualizing this matter in regards to historical societal norms. Historically, women were far from the business world, and thus, they were far from being able to gain expertise in particular fields. This is a historical fact that can evolve and change and it is not due to innate characteristics inherent in all women in different eras.[25]

 

Conclusion

Transmitting texts to real life circumstances is a complex task that the scholars dealt with very delicately. The previous quotes convey the dangers of such a role being left to the whims of those who do not have the proper expertise, and they also highlight the significance of the life component and the context in issuing sound edicts.  Realizing the compounded nature of Islamic scholarship is the proper step towards preserving the legacy of our predecessors and the Sunnah of our beloved Prophet (peace and blessings be upon him), and it is also the proper course for Muslims to take in order to arouse caution when speaking in the name of faith and to broaden the horizons of students of knowledge. The concepts addressed in this article contribute to the larger framework of Ijtihad practiced by the scholars for over fourteen hundred years. I ask Allah, Glorified and Exalted, to make us of those who soundly understand their faith and efficiently understand their reality.

 



[1] Asaleeb al-Bayan by Dr. Fadl Hasan Abbas page 23

[2] Tafsir Al-Baghawi (Al-baqarah 2: 1290

[3] Tafsir Al-Baghawi (At-Tawbah 9: 97)

[4] Musannaf ibn Abu Shaybah; Ibn Hajar said in At-Talkhees al-Habeer: “Its narrators are reliable”.

[5] I’lam al-Muwaqqi’in by Ibn al-Qayyim, Dar ibn al-Jawzi (2002) volume 6 page139

[6] Ibid. volume 6 page 113

[7] Matn Al-Ghayah wat-Taqreeb

[8] Minhaj At-Talibeen by Imam an-Nawawi, Dar Al-Basha’ir (2005), volume 3 page 404 - 405

[9] Mujibat Taghayyur al-Fatwa fi ‘Asrina by Dr. Yusuf al-Qaradawi, page 27

[10] Al-Fatwa Bayna al-Indibat wat-Tasayyub by Dr. Yusuf al-Qaradawi, page 37

[11] Ibid. page 77

[12] I’lam Al-Muwaqqi’in

[13] Sina’at al-Fatwa by Shaykh Abullah bin Bayyah, Dar al-Minhaj page 29

[14] I’lam al-Muwaqqi’in by Ibn al-Qayyim Dar ibn al-Jawzi (2002), volume 4, page 470

[15] Sina’at al-Fatwa by Shaykh Abdullah bin Bayyah, Dar al-Minhaj, page 23

[16] Bidayat al-Mujtahid wa Nihayat al-Muqtasid, Dar As-Salam, volume 3, page 1716

[17] Sina’at Al-Fatwa by Shaykh Abdullah bin Bayyah, page 185

[18] Al-Madkhal Al-Fiqhi Al-‘Aam by Shaykh Mustafa Az-Zarqa

[19] Qa`idah Al-`Adah Muhakkamah by Dr. Ya’qub Al-bahusayn, Maktabah ar-Rushd, page 225

[20] In the hadith of the Dajjal, the Companions asked the Prophet (peace and blessings be upon him): O Prophet of Allah, in the day that is like a year, would the prayers of one day be sufficient for us? He said: “No, calculate for it its deserved amount”. (Muslim) Mujibat Taghayyur al-Fatwa by Dr. Yusuf al-Qaradawi, page 44 -45

[21] Ibid. page 57

[22] Qa`idah Al-`Aadah Muhakkamah by Dr. Al-Bahusain, page 128

[23] Al-Furuq by Al-Qarafi, Mu’assasa Ar-Risala, volume 1 page 387

[24] I'lam al-Muwaqqi’in, by Ibn Al-Qayyim, Dar Ibn Al-Jawzi (2002), page 178

[25] Taken from an article titled “The Testimony of Women in Islamic Law” by Dr. Ali Jumu’ah

References

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