Sharia and Reform | Dr Hatem Al-Haj

Many ‘conservative’ Muslims feel instantly uncomfortable when they hear someone talk about tajdeed (renewal) of the religion. Some of us do this out of fear of the unknown. This is partly because our Ummah suffers from a great deal of weakness and disunity, which fosters an environment of defensiveness and mistrust. However, our fears that stem from the call to tajdeed may not be all unjustifiable. After all, many of the callers to tajdeed of the deen are utterly unqualified for the job.

They dismiss much of the established Sunnah, and defy the definitive implications of the text of revelation with complete disregard for the cumulative tradition. They are quick to dismiss the great jurists of Islam, claiming that they were but a product of their culture and were blindfolded by their biases. It also seems to the ‘conservative’ Muslim that much of the proposed tajdeed is simply an act of unconditional surrender to the mainstream modern culture, making the Divine instruction subject to the influence of people’s relative and changing thoughts and social constructs. However, the problem that may result from our timidity to contribute to this discourse about tajdeed is that others may hijack its banner, and all the people who are frustrated with the condition of the Ummah and yearning for a change will be tempted to follow them.

The Messenger of Allah (saws) said: “Indeed, Allah sends for this Ummah, at the onset of every century, those who renew (literally: make tajdeed) of the religion for it.”[1] Therefore, the one who calls for tajdeed should not be denounced, since the first one to utter this term in this context was the Messenger of Allah (saws) himself. Rather, the discussion should revolve around the intended meaning of this tajdeed. Does it only mean ‘restoration’? If it does, why did the Prophet (saws) use it in the sense of ‘renewal’ instead, when there are Arabic words that specifically mean ‘restoration’? Also, ‘restoration’ sounds more suitable for a static structure, like a historic building that you want to bring back to its original beauty. Our deen is a living entity with one spirit, consistent objectives, and overarching maxims, but with a flexible legal framework that can appropriately engage with changing realities. ‘Renewal’ is thus the right word. But if it is about renewal, how can we ‘renew’ the religion? Does this mean we have the liberty to change the Divine instruction?

The default status in the religion is that it remains unchanging, and most of what is meant by ‘renewal’ is actually restoration done simply through reviving that which is original, and cleansing that which is unoriginal, such as the innovations and customs of people which conflict with the revelation. Aside from that, there is another type of renewal, and that is the ijtihâd-based renewal. This is what the scholars refer to by saying, “The change in rulings due to the change in times is not to be denounced.”[2] One example of this was when ‘Umar (ra) prevented al-mu’allafati quloobuhum[3] from receiving their share of zakât when he saw that Allah had empowered Islam and the Muslims during his blessed caliphate. In another instance, ‘Uthmân (ra) commanded during his caliphate that the stray camel be taken, sold, and its price kept for its owner. This was contrary to the original ruling, wherein taking stray camels is prohibited, but it was resorted to because of the moral deterioration that had occurred between the time of the Prophet (saws) and the time of the caliphate of ‘Uthmân (ra). Similarly, it was undisputed among the early Ḥanafi scholars that taking a wage for teaching Qur’an was unlawful; they later consented to allow Qur’an teachers to receive payment when volunteers became few in number – out of fear that knowledge of the Qur’an would be lost.

Did these greats change the legislated ruling? Never that, for the legislation of Allah is not subject to change. Allah, the Most High, says (what means): {They took their scholars and monks as lords besides Allah} (at-Tawbah 9:31), and the Messenger of Allah (saws) explained to ‘Adi ibn Ḥâtim (ra) that this occurred by following them in considering the unlawful as permissible and the permissible as unlawful.[4] Moreover, would this not be exactly what the Messenger of Allah (saws) prohibited when he said: “If anyone introduces into this matter of ours what is not from it, it will be rejected.”[5]?

Therefore, it is impossible that they changed the ḥukm (as it refers to the Divine khiṭâb or instruction), even if some of the scholars used that term, for they only meant the fatwa (religious edict) and not the actual ruling in Sharia. A single act can have two different fatwas because of the variant circumstances in different contextual scenarios.

To further clarify, let us take the example of receiving wages for teaching Qur’an. Its prohibition was a matter of agreement among the early Ḥanafi scholars, but then the practice was permitted by them later on. The question is, were the prohibition and permission with regard to the same thing? It appears that way, but upon taking a closer look, it becomes clear that we cannot equate between accepting a wage for teaching Qur’an at a time when many were enthusiastic about teaching it as an act of devotion (to Allah), and were supported financially from the state treasury, and a time when teachers were no longer sustained by the state treasury. In the latter situation, if they occupied themselves with teaching, their families would be lost, and if they occupied themselves with earning a livelihood, their students would be lost.

Thus, a particular scenario may call for a different set of rulings that suit it, and the mujtahid (the one who engages in ijtihâd) chooses from among them what is most suitable to it. Sometimes, the matter may fall between two rulings or two principles, in which case the judge attributes the matter to whichever of the two it seems closer. Closeness is determined either by technical deductions or through considering the ultimate objectives (maqâṣid) of Sharia, though it is preferred to give precedence to the ultimate objectives. This is obviously pertinent only to rulings which are affected by people’s customs and interests. Regarding this, Imam ash-Shâṭibi (may Allah bestow mercy upon him) said:

Rulings differing whenever customs differ is not really a difference in the Divine instruction itself, for the Sharia was revealed to be permanent and eternal. Hypothetically, were this world to remain without end, and the people remained liable [to uphold the Sharia] as well, the Sharia would not need any additions. In other words, whenever customs change, they would fall under another [different] principle of Sharia that would govern them…”[6]

In the example of taking wages for teaching the Qur’an, the first of the two principles was that there was no intention other than (the pleasure of) Allah in acts of devotion – and this supported the view of impermissibility in the first era; and the second was to preserve the Qur’an by teaching it to youngsters – and this supported the view of permissibility in the second era. The ijtihâd-based renewal considers the change of time and place, not because they are in themselves consequential to the rulings, but because they are vehicles of different circumstances that may be consequential to those rulings.

Some Practical Examples of Tajdeed

Sometimes we need to reexamine not only the rulings but the very terms we use, since the similarity of the name does not necessarily mean similarity of the named. For example, the prohibition of making a ṣoorah (translated as ‘picture’) of any being that can be said to have a soul: is this prohibition applicable to a photograph by virtue of the two things having a name in common in Arabic? Not likely. This still does not mean that they cannot share the same ruling. However, the prohibition of photographs (if one is so inclined) must be reached through analogy, and only if it meets the requirements.

Was war during the time of the Prophet like war is today? Lexically speaking, yes. However, we must ask ourselves if the one-on-one confrontation of thousands of individual soldiers sparring in a battlefield is like the mass and indiscriminate devastation that ensues from modern war. Should the difference be consequential? Should it make war an even remoter last resort? Did the early Muslims fight for humanity or against it? We are sure they fought and sacrificed their lives to achieve the cause of Divine justice and to liberate humanity from tyranny, to afford people the right to worship their Lord. If so, will the fact that most nations allow their subjects freedom of religion be consequential?

When the Prophet prohibited women from travelling alone, was travel then like travel now? Would a difference be consequential? It would, at least according to the scholars who rule as acceptable travelling with a safe company; they must have understood that there is some identifiable ‘illah (effective cause) for the prohibition. Sometimes, erudite scholars will even make the well-defined ḥikmah (wisdom/ultimate rationale) consequential to the rulings. Some may claim that, using the same rationale, we may also do away with hijab or the rules of proper conduct between the two sexes, since the human community has matured and it is safer for women to go out in whichever attire they please. This would be in defiance of the clear text and of the unchanging human nature as well. The Islamic rules of modesty were to protect women, men, and entire societies from an avalanche of evil that would result from failure to observe them. It must be also observed that the societies of the modern and ‘civilized’ humans of the twenty-first century, when compared to societies of earlier eras, are not experiencing lower rates of infidelity, family breakdown, rape, or psychological disorders related to sex. There is no level of education or cultural sophistication that has proved to be protective against any of these ills.

This religion has immense vitality, so there will never be a time where the mujtahideen fail at finding solutions for newly emerged challenges. All over the world, the change in living standards and conditions in the last two centuries has been immense. Some of these changes have had an enormous impact on family dynamics. In today’s world, if a woman had decided to stay at home for the interest of the family, and after forty years of marriage her husband divorces her, should he walk away with all of the family’s savings because it is ‘his’ money? Should she get half of it? What if this happened after only two years of marriage? Would that discourage many men from getting married? Is there a point of moderation between those two ends? The Sharia has in fact provided a solution, albeit controversial in this case, yet authentic and also supported by the apparent implication of the Qur’an, where Allah says (what means), {And for divorced women is a provision according to what is acceptable – a duty upon the righteous.} (al-Baqarah 2:241) This provision is called mut‘ah, which may be translated as ‘bereavement gift’ or alimony. If we employ this provision and make it sizeable and commensurate with the duration of marriage and the socioeconomic status of the family, we can have a legitimate solution for a new challenge.

Some people may argue that the same changes of our world should warrant a change to the laws of inheritance. This would not fall under tajdeed (renewal), but rather tabdeed (annihilation). This is a fixed law in the revelation. It is explicitly stated. It is not contingent upon the customs and interests of people. Women do not always take half of what men take. This is only true in certain cases. However, if you make the proportion of inheritance equal in all cases, you must also relieve the men from their responsibilities towards the women of their households and kin. While certain people (not necessarily Muslims) may find this to be acceptable during different times or eras, it defies the distribution of roles that Allah has designated based on innate differences between the sexes that are not subject to change. Such a suggestion would have been absurd to Westerners in the nineteenth century, and still is to many people throughout the world.

At times, we have conflicting scholarly positions. Some opinions may be indispensable in our times, even if they are counter to the majority position. When there is nothing definitive in the Quran and the Sunnah to prevent us from choosing to go with an opinion that provides a solution to a contemporary problem, we ought to. For example, in the past, the jurists differed regarding the methods by which a claim is established in the Islamic judiciary. Some limited it to whatever has been explicitly stated in, or extracted from, the revealed texts. Others widened the circle of evidences to include whatever reveals the truth and paves the way for justice. For this reason, basing rulings on qarâ’in (corroborative evidences) was a matter of debate among the jurists.

The difference today is that forensic science has evolved to such a degree that judicial systems throughout the world are extremely reliant on it. Law experts call this type of evidence ‘tangible proof,’ and despite it being considered a largely modern phenomenon, it still falls under corroborative evidences. The question is, where should the Islamic judiciary stand regarding forensic science? Should it benefit from it? Should this benefit be limited to guiding the criminal investigator and enlightening the judge with important details of the crime? Or should these evidences be used by the judge, whenever they qualify, even in the absence of the customary evidences known to Islamic jurisprudence such as the testimony of witnesses, admissions, oaths, and nukool (refusal to take an oath).

I believe that a reasoned incorporation of the tangible evidences in what counts as admissible proofs is completely warranted. This was the position of luminaries like Ibn al-Qayyim^[7], Ibn Taymiyyah^[8], and Ibn Farḥoon^[9], and of the remaining Mâlikis, in addition to Ibn al-Ghars^[10] of the Ḥanafis, and some Ḥanbalis[11]. The use of qarâ’in is emphatically not like redefining the admissible proofs or equating the testimony of women in financial matters to that of men. These actions would be in defiance of a clear text, while using corroborative evidences is not. There is reason to believe that there are specific differences between men and women that made the testimony of two women equal to that of one man in financial matters, while a woman’s testimony is of the same or higher value than a man’s in other areas, such as childbirth and breastfeeding.

Sometimes we create rigidity, and fear of ‘walking away’ from what we created. Neither the Prophet (saws) nor ‘Umar[12] (ra) decreed that the tarâweeḥ prayer should be done in congregation, or that it should be eight or twenty raka‘ât or that one juz’ ought to be completed every night. In fact, Imam Mâlik and Imam ash-Shâfi‘i consider it superior if tarâweeḥ prayers are done at home. Yet today, we adhere to a particular number of raka‘ât in tarâweeḥ and/or a specific length for its recitation, without this being binding on us. Now, with the time for ‘ishâ’ starting very late in North America and other extremely northern or extremely southern lands during the summer, and the many differences between the era of the Companions and our own, should we adhere to a particular format for the tarâweeḥ when none has been designated by Allah, His Messenger, or even any of the Companions? Should there be more time for reflection in the local language over the meanings of what is being recited? Should there be more time left for socialization and creating a bond between the ‘Ramadan only’ congregants and their local masjid? I believe all of this is warranted. On the other hand, if someone said that we should do away with the tarâweeḥ prayers in congregation, then he would be calling for the cessation of an agreed-upon practice that has been ongoing since the time of ‘Umar (ra). Once again, that is not in any way a form of tajdeed.[13]

Some people want, via tajdeed, to diminish the role of the Sharia in guiding humanity. We believe that beyond the domain of worship and family law, the Sharia already leaves enough room for human thought and creativity, and it only provides guidelines and milestones to prevent people from being victims of their own and others’ prejudices, biases, and excesses. We do believe, however, that this general guidance is much needed by humanity. We believe that the Sharia must contribute to the discourse on contemporary issues such as corporate ethics, bioethics, environmentalism, and so on. This is an important aspect of the tajdeed we seek.

In the attempts by Muslim countries to re-normalize Islam’s position in the public sphere, they will have to answer many questions. In fact, we have to develop a new fiqh that is conscious of the new world we live in: again, without departing from the objectives of the law or the constants of the revelation. The relationship between the ruler and the ruled must be re-evaluated. The consensus reported about the prohibition of rebellion against the oppressive ruler must be re-examined – at least, its modern implications.[14] If we were to accept it, we must ask whether it applies to a sectarian effort to topple a ruler or a popular uprising by the nation. Would it apply to populist revolutions, even if they were unarmed? What if it were supported by ahl ul-ḥall wal-‘aqd?[15] Is there an effective alternative to end the tyrannical regimes that have become a signature characteristic of the Muslim countries?

What about the caliphate we reminisce about? Is it a central, federal, or confederal government? What is the plausibility of that? Could the OIC (Organisation of Islamic Cooperation) serve that purpose, if it took gradual steps towards becoming more like the European Union, allowing willing Muslim and non-Muslim states to join – if they wish to? Denying Muslim countries the right to seek some form of unity and denouncing the very concept of the caliphate is simply succumbing to outside pressure. This is not a genuine tajdeed in the interest of Islam and the Muslims. On the other hand, expecting a return of an Abbasid-style caliphate is a form of rigidity that is bound to impede any progress towards Muslim unity.

The presence of large Muslim minorities in non-Muslim lands is not a recent phenomenon. However, the concepts of nation-states and secular governments are relatively new. There is a pressing need to normalize – and harmonize – the relationship between those minorities and their respective countries. This effort is a major part of the needed ijtihâd-based tajdeed. We need an authentic and realistic formula to reconcile between their religious allegiance and national belonging. Muslims in non-Muslim countries must not be seen as a Trojan horse or potential traitors by their compatriots, and they should not be that.

Finally, this ijtihâd-based renewal, which does not apply to ritual acts of worship or constants of our Sharia like the kaffârât (expiations), can only be exercised by the most distinguished mujtahid scholars of each era. If the matter is left to those who have not reached this degree of ijtihâd, the religion would fall into peril and be subject to distortion, and the enormity committed by non-scholars who engage in this is beyond needing to be mentioned. This involves the greatest calamity: forging lies about Allah – the Mighty and Majestic – and speaking about Him without knowledge. Allah (st) said (what means): {And do not pursue that of which you have no knowledge. Indeed, the hearing, the sight and the heart – about all those [one] will be questioned.} (al-Isrâ’ 17:36)

Therefore, what is required is the reunion between theory and practice, in light of the ijtihâd that preserves the constants but accommodates the changing variables. This is what existed during the days of the rightly-guided caliphate, and it is what enabled the Ummah to accommodate the Persian, Roman, Nabataean, Kurdish, Coptic, Berber, and other cultures which led to a civilizational, developmental, and cultural birth that has never been matched in the history of this world. All of that occurred without the religion itself being tainted with any distortion. But when this vigilant ijtihâd vanished, and that was specifically around the middle of the Abbasid era, the gap between theory and practice began widening until Muslim society became divided into groups: people of extravagance that have no care for religion; Sufis who mostly fled the trials of life by escaping into spirituality and monasticism – and some to mysticism – in search of what would satisfy their souls’ longing for truth; withdrawn scholars who were fixated upon serving the texts and literature; and masses that became lost when their leaders lost their compass. Correspondingly, there remained a scarcity of God-fearing scholars, committed to the spirit and letter of the deen, to purifying the interior (actions of the heart) and upholding the law, true beacons of light that – by Allah’s bounty – no era in the life of this Ummah may be void of. They are those who remained fighting to revive the true teachings of Islam that have been subverted by heedlessness and corrupted customs, and make these teachings guide the life of the Ummah once again.

I hope that some of the examples mentioned above clarify, to some extent, what I mean by tajdeed. Some readers may justifiably ask what my role is in this effort. It is understandable that ijtihâd-based tajdeed is the lot of the mujtahideen. However, the public can always engage in the restorative tajdeed. It is also the public that will establish foundations and institutions to foster ijtihâd-based tajdeed. If we are still struggling to build masjids, when might we have endowments that could support independent and authentic research institutes?

Let the revival begin by individual repentance, purification of the hearts and intentions, learning the religion from its pristine sources, commitment to righteousness and correctness, and finally, a discerning ijtihâd that allows the Sharia to continue its role in showing humanity a balanced and holistic path to success in this world and the one to come.

[1] Collected by Abu Dâwood and al-Ḥâkim, who authenticated it on the authority of Abu Hurayrah. Sunan Abi Dâwood, verified by Muhammad Muhyid-Deen ‘Abdil-Hameed. Dâr al-Fikr, 4/109.

[2] Majallat al-Ahkaam al-‘Adliyyah, Article 39. This was also stipulated in different wordings by some of the most erudite scholars of Uṣool, such as Ibn al-Qayyim, ash-Shâṭibi, ash-Shawkâni, and others.

[3] Al-mu’allafati quloobuhum (at-Tawbah 9:60) are new or non-Muslims whose hearts the Muslims hope to win over.

[4] Sunan al-Bayhaqi al-Kubrâ (10/116) in the chapter on [The Manners of the Judge, and What the Judge Rules By], Mecca: Dâr al-Bâz, 1414H.

[5] Ṣaḥeeḥ al-Bukhâri (2/959) in the chapter on [Treaties: Agreeing Upon Unfair Terms Nulls the Treaty], Beirut: Dâr Ibn Katheer wal-Yamâmah, (3^rd ed., 1407H) – and Ṣaḥeeḥ Muslim (3/1343) in the chapter on [Verdicts: Nulling False Rulings and Rejecting Innovations], Beirut: Dâr Ihyâ’ at-Turâth al-‘Arabi.

[6] Al-Muwâfaqât by ash-Shâtibi. Verified by ‘Abdullâh Drâz, Beirut: Dâr al-Ma‘rifah, 2/217.

[7] See his books I‘lâm al-Muwaqqi‘een and aṭ-Ṭuruq al-Ḥukmiyyah.

[8] See the two previous books, in addition to al-Inṣâf (10/233) by al-Mirdâwi, al-Furoo‘ (6/85) by Ibn Mufliḥ, and as-Siyâsah ash-Shar‘iyyah (p. 136) by Ibn Taymiyyah.

[9] See his book Tabṣirat al-Ḥukkâm fee Uṣool al-Aqḍiyah wa Manâhij al-Aḥkâm: the second section, regarding the types of evidences.

[10] See Hâshiyat Ibn ‘Âbideen, 5/354.

[11] These are mentioned in order of the strength of their support for the use of qarâ’in and the scope of its use in their ijtihâd.

[12] ‘Umar (ra) found the Companions praying in the masjid in small groups, so he simply brought them together and had Ubayy lead them in prayer. Many of the ṣaḥâbah continued to pray at home. Some of them, including Ibn ‘Umar, considered it inferior if done at the masjid in congregation.

[13] An even more absurd suggestion we have heard is to make the tarâweeḥ start before ‘ishâ’.

[14] The first one to report it was Ibn Mujâhid al-Baṣri (d. 370 AH). It was contested by many scholars. Ibn Mujahid (raḥimahullah) was a resident of Basra, a city deeply traumatized two centuries earlier by the defeat of Ibn al-Ash’ath, which cost it the lives of many of its eminent scholars in their fight against the Umayyads. One may ask if there is a basis in the Revelation that made them agree on this edict in the fourth century AH. If there is, how could it have been missed by all of the previous generations of the righteous predecessors and suddenly become so clear to them? If this agreement was based on reasoning related to public interest, which is most likely, then as Shaykh Shaltoot points out, such is the only consensus that may be abrogated by another upon the change of circumstances.

[15] Literally, ‘the people of authority.’ They are the elites, somewhat equivalent to today’s ‘representatives of the people,’ or the ‘senate.’ Traditionally, they were the princes, scholars, tribal chiefs, leaders of the army and various professions.