I spent some time with my Shia friends discussing the topic of tonight’s lecture and naturally I am going to talk more about the Shia approach to modern problems and the background that has enabled the Shia to take on board some of the problems of Islamic law that seem to be posed by modern society.
We are led to believe that because the Shariah is God’s law it is fixed and unchanging and we get picture, when we read the text books, for a very static kind of law.
The truth is somewhat different from that because while there are parts of Islamic law that are static as well as certain of revealed texts and the Prophet’s practices which are static and will remain so (I was going to say until the 12th imam returns) for those of you who are not Shia until the end
of time.
But there always has been a dynamic aspect of the law and this dynamic aspect is still with us. It survives, continues and is strong and I am sure will enable Muslims, both Sunni and Shia to take on board modern problems
and evolve legal solutions to these problems.
At the beginnings of Islamic law we find the revealed text, the Qur’an, God’s law, which provides a framework but only a framework for Islamic law. The legal content of the Qur’an is in fact quite small.
Then we turn to the Prophet’s practise and we again find that there is an enormous amount of the Prophet’s practise which is fixed. Even with the Prophet’s practise we sometimes wonder whether it is fixed. I will give you an example I love to give. When the Prophet was in Medina the Muslims were very short of horses for warfare. Only tow or three were present at the
Battle of Uhud and even fewer at the Battle of Badr. The Meccans had lots of
horses.
If you look at the zakat laws you will find that the Prophet exempted horses from zakat. By right this is a tax incentive, an encouragement to breed horses because the emerging Islamic state need horses to defend itself.
At the time of the conquest there were thousands of horses so the owners did not have to pay any zakat. Muawaiya who was governor of Syria wrote to Omar ibn Al Khatab and said I believe zakat should be levied on horses and there are lots of Muslims who own horses and are willing – even eager – to pay zakat on them. So Omar ibn Al Khatab introduced zakat on horses.
Some time later the highest Ummayad caliph, Omar ibn Abdul Aziz, was seeking to increase the Prophet’s practice among Muslims. He stated that if the Prophet did not require the payment of zakat on horses why should he. He proceeded to abolish zakat on horses.
As much as I am passionate in my love of the Shia I belive that Omar ibn Al Khatab’s decision was the appropriate one and was a decision that the Prophet would have approved of.
This is the kind of thing which we have to look at all the time. When legislation is introduced at any point we have to examine the why’s, wherefore’s and aims of that legislation.
I believe that there are scholars in both the Sunni and Shia communities who are doing that.
The basis of Islamic law are the sources of the Qur’an and the Prophet’s practise. Before the Qur’an and the Prophet’s practise God had intervened in society with other revelations. With the new and final revelation some of the laws of the earlier revelation were abbrogatetd and some of the laws were continued within the Islamic system.
When the Prophet came into the world a whole body of law already existed in different areas, approached in slightly different ways. This kind of law was man’s attempt to build a legal structure for society. Some of that law was found in Arab societies. It was present in conquered territories and became absorbed into Islamic law. So it was legitimised by Islam. This meant that God had already provided two sources of law for mankind. There was revelation and there was the use of reason to develop the law.
The purpose of law at a rational view point is to enable man to live comfortably in society without infringing on other people’s rights and other people’s duties, to try and construct a society where people can get on together. The aim of the Shariah is two-fold. It aims to do that and its aim also is to get a person to heaven. The second is its fundamental aim. Its concern is fundamentally to do with our ultimate destiny and secondarily to
build a society which can operate properly and in which people can live the kind of religious and social lives that will lead them towards heaven.
When the Prophet died the early Islamic law was operating in an Islamic environment. Arabia was kind of Muslim and Islam was progressing in the centuries which followed. So for the next 600 years at least, Islamic law was operating in a society that was essentially Islamic. This law took diverse routes after the death of the Prophet. We had two concepts emerging of the way God operated in society. On the one hand there was the concept that the community was guided by God through its agreements (igma) so that it did not commit an error.
On the other hand we had the view that a leader from the family of the Prophet provided the sureity that the community should not be in error.
Within the Sunni field of law the Prophet’s practise, the Qur’an was supplemented by the views of the sahaba (the companions of the Prophet) and the tabien (the successors). As different legal problems arose as a result of the expansion of the Islamic world groups of scholars got together and discussed and worked out solutions to these problems, basing themselves always on the religious norms of the Qur’an and the practise of the Prophet.
This was a kind of ijtihad but for the Shia community there was no need for this kind of ijtihad at this stage in the development of Islamic law because the fountain head of authority was the imam. When a legal problem arose he was the person to be consulted and his answer was absolute.
It is surprising that vast areas of Islamic law are in fact common to both Sunnis and Shias. Whatever the approach the main body of law was very similar.
In the current Shia adam there is the statement ‘I testify that Ali is the wali of Allah’. Shia scholars of the 4th century, people like Atusi, Sheikh Al Sutuk acutally said that this statement should not be included in the adam. Those who introduced it were from the guwad. Later on this view of leading Shite scholars was changed and it is now standardly found in the Shia adam. But Ayatoallah Khoemini in order to reconcile the two branches of Islam said it was possible to say the adm without saying ‘I testify that Ali is the wali of Allah.’
This is an example of the dynamics of Islamic law at a minor religious level. Even the words of the adam could be subject to dispute by devout, pious scholars throughout history.
There is within the sala more similarities between Muslim Shias and
Sunnis than there are differences. The differences are often inter-madhab so
that an Al Shafi might do certain things in a certain way and a Hanafi and a
Malaki may do them in another. The variations that there are not always
specifically Shia variations. By and large the general body of sala, the
general body of the laws on soam, haj and all the ibadat are very similar.
They are in fact so similar as to testify to the fact that there is a kind
of divine hand making sure that everything is going properly.
The 5th Imam and the 6th Imam, Imam Mohammed Al Bakr and his son Imam
Jaffar Sadiq were responsible for the real development of the Shia madhab.
It was at time in history that the madhabs were beginning to be established.
These two imams were in the forefront of the discussions. It is almost
certain that Imam Mohammed Al Bakr is the founder of the Shia legal madhab
and that his son, Imam Jaffar Sadiq took it on and expanded it so that it is
know by his name as the Jaffari madhab.
It is a possibility that because those immams were taking part in the
legal discussions that were surrounding the development of the schools of
law that they provided the stablising element that provides the basis for so
much common ground for all of these madhabs.
The Sunni world as a result of its approach to law developed legal
theories and legal institutions and a legal education on a much broader
basis in those early days than the Shia school of law. There wasn’t the
great body of work from the Shia scholars during the time of the imams as
there was within the Sunni schools of law. This meant that within the Sunni
schools of law the role of ijtihad was expanded. It is true that some of the
classical jurists tried to limit ijtihad only to kias but this is not true.
All the jurists used a variety of techniques to develop the law. It was
necessary because the Prophet did not legislate for the kind of experiences
that Muslims were meeting in Iraq, Iran and further afield and institutions
had to be formed to cope with the problems and Islamicise them. The Sunnis
with their development of ijtihad played an important role in this.
The bedrock of the Sunni legal system for centuries and centuries was
the caliphate. Whether the caliph had power or not he provided the focus for
legal continuity within the Sunni legal structure. But with the destruction
of the caliphate and the emergence of a non Islamic super power there was
tremendous stress put on the Sunni legal framework.
This stress is with us today. It has brought about the fragmentation of
the Islamic world and a break in Muslim countries of a kind of secular
Islamic law (if you can have this contradiction). A kind of secular Islamic
law is functioning in many Sunni countries. And where you don’t have this
secular Islamic law you have a rather hardline, fundamentalist, Salafi
approach to Islamic law which wants to go back to the time of the Prophet
and the companions of the Prophet. The Prophet and his companions had lots
and lots to say about many important legal problems but on some legal
problems they had nothing to say as the legal problem did not exist at that
time.
The Shia world underwent this problem at a much earlier stage. After the
guidance of 11 of the 12 imams the 12th imam went into occulation.
The 12th imam was not completely absent. He was and is present in
society acting as a kind of guide, inspiration and focal point so that the
Shia believe that through the 12th imam there is a grace from God which will
lead them to take on different legal problems and come out with legal
institutions.
The beginnings of this became very apparent within the few years of
the lesser occultation. There was a tremendous development of traditions
which had been recorded: now they were collected and put together as a legal
guide of the sayings of all the imams.
A further development subsequently took place, a push into Sunni
territory. The great leaders of Islamic thought at the turn of the 4th
Islamic century and the beginning of the 5th Islamic century, people like
Sheikh Al Mufid, Sherif Al Murtada and Sheikh Al Taifah, Mohammed ibn Hassan Al Tusi developed usul al fikr in a way that the Sunnis had developed it
before but elaborated on it with great stress on the use of akl, the use of
reason.
And this was just the beginning. Later on there was an even further
development with people like Al Mukakik Al Hili and Al Alama Al Heili who
developed ijtihad to a much greater extent than even before.
Shia ijma consists of the inclusion of the imam, it is the ijma of the
mustahid. When the ijma of the mustahid is reached there is a presumption
that the 12th imam is present in that ijma.
Also with this development of ijtihad there is the development of
tawhid, pushing the mustahid forward as the person to spend his life
studying legal problems and studying usul al fikr. This meant that the Shia
institutuions were ready for the time when the Islamic world was disrupted
by alien forces. They had the institutions in place because for one the
focal point of the 12th imam was there whereas the focal point of the
calipahte had gone from Sunni Islam. That is one of the reasons some of the
most exciting things are developing in Shia jurisprudence.
The other idea in Shia tawhid is that the fatwa of a mustahid ceases
with the death of the mustahid therefore when a legal decision has been
reached and the mustahid dies everybody has to think about it again and see
if perhaps another solution can be adopted. This is a dynamic way of dealing
with Islamic law. We know that God is guiding his Muslim society. But we
know God is not giving something static when he has made society dynamic and
has given society reasons to change. While there will always be as there is
throughout the world, a struggle between conservatism (those of us who are
getting older say things were much better when I was young) and the dynamic
of the radical who is looking to try and move things on. Both the
conservative and the radical are guided by God in this dynamic of Islamic
law.
Problems are emerging for Muslims with changes in the world scene. It
was quite comfortable for Muslims to sit in Dar Al Islam and have little to
do with Dar Al Harb except occasionally trade with them when the situation
was suitable and Islam was powerful that the trade was usually done on
Islamic terms. And no Muslim would dream of settlement in Dar Al Harb.
The situation has changed now. Dar Al Harb is all over the place and
Muslims whether they like it or not, find themselves compelled to live in
Dar Al Harb. The influence of Western society is already infiltrating into
Islamic society in the fragmented Islamic world.
In the old days the Shia mustahids would regard a member of Ahl Al Kitab
as najis. This was the standard procedure. It was all very well when you are
living in a nice closed society but international relations, the very
essence of two tier century, require you to get on and in some ways
negotiate, discuss and even borrow money occasionally of Dar Al Harb. The
idea of Ahl Al Kitab being najis becomes a little restrictive.
Sure enough the Shia mustahids have looked at this problem again and
decided that this is not to be the case.
When they looked at insurance as conceived by the West many Muslim
scholars said no. But when the examination took place on a more thorough
level, when the contracts were properly worked out the Shia ulema came
forward and accepted that properly regulated insurance was not only
allowable but was quite a good thing.
There was a problem for Muslims living in Britain. Unless you are very
rich or you have a rich uncle or father the only way to buy a house was to
get a mortgage. But that means paying interest. The late Ayatollah Khoei
said you live there, you have got to live there, I don’t really like it but
the way you live there you have got to get a mortgage. So its right for
members of the Shia community living in the West to get a mortgage.
Banking is problematic but I can see it changing slowly through
so-called Islamic banks which are a massive Hanafi hilla, to avoid the
actual statement that interest is being paid in the banking system. As yet
my Shia ulema have not dealt with all the issues. If I lent somebody £100
five years ago and he gives me £100 back he is making an awful lot of money
out of that. Inflation has now made my £100 worth £150. It is not fair and
that is why I do not lend money. This is another problem that the Shia
ulema are going to face. There are many more.
Although I have been arguing for changes in Islamic law you find that
when you reflect on it these changes are not substantive changes. The main
body of Islamic law, which is to create a good society and to enable people
to get to heaven remains as it was at the time of the Prophet.
