IJTIHAD FOR SOCIAL CHANGE AND EARLY SUNNAH
THE PROBLEM BEFORE US
By Fazlur Rahman
WHEN new forces of massive magnitude—socio-economic, cultural-moral or political—occur in or to a society, the fate of that society naturally depends on how far it is able to meet the new challenges creatively. If it can avoid the two extremes of panicking and recoiling upon itself and seeking delusive shelters in the past on the one hand, and sacrificing or compromising its very ideals on the other, and can react to the new forces with self-confidence by necessary assimilation, absorption, rejection and other forms of positive creativity, it will develop a new dimension for its inner aspirations, a new meaning and scope for its ideals. Should it, however, choose, by volition or force of circumstance, the second of the two extremes we have just mentioned and succumb to the new forces, it will obviously undergo a metamorphosis ; its being will no longer remain the same and, indeed, it may even perish in the process of transformation and be swallowed up by another sccio-cultural organism. But more surely fatal than this mistake is the one we have mentioned as the first extreme. Should a society begin to live in the past—however sweet its memories—and fail to face the realities of the present squarely—however unpleasant they be, it must become a fossil; and it is an unalterable law of God that fossils do not survive for long : "We did them no injustice ; it is they who did injustice to themselves" (XI: 101 ; XVI : 33, etc.).
Roughly speaking, for about a century Muslim society has been experiencing the onset, within its fabric, of tremendous forces let loose by what is generally called "Modernity" whose source has lain in the contemporary West. Certain conscious efforts have been made by Muslim thinkers both in the Indo-Pakistan subcontinent and in the Middle East, particularly around the end of the last century, to meet the new challenges by creative absorption, adjustment, etc. With the rise, however, of independent Muslim states during the past two decades or so and their emancipation from the foreign political domination, these influences of Modernity have naturally been accelerated in pace and momentum. We say "naturally" because with the all-too-justifiable desire for developing the potential resources on the part of these countries natural and human—instruments of mass economic production and movement, mass education, media of mass-communication, etc., are absolutely inescapable. Muslim society has plunged itself into the Industrial Age—if it did not do so, its fate would be sealed. But these vast and massive impacts require a creative response of equal dimensions if our society is to progress islamically. This calls for a relentless process of hard, clear, systematic and synthetic thinking, which is not yet visible in the Muslim World. By and large, and in effect, we are still suffering from intellectual indolence and consequently, for all practical purposes, are experiencing the two extreme attitudes born of this indolence, to which we have just now pointed, viz.
(a) a laissez-faire attitude towards the new forces which makes us simply drift, and (b) an attitude of escape to the past which may seem emotionally more satisfying immediately but which is, in fact, the more obviously fatal of the two attitudes.
Fortunately, there are strong guiding lines for us in the early history of the Community when the Qur'anic teaching and the Prophetic Sunnah (the ideal Legacy of the Prophetic activity) were creatively elaborated and interpreted to meet the new factors and impacts upon Muslim society into the "living Sunnah" of the Community. In Chapters 1 and 2
We have studied at some length the phenomenon of this developing, moving “living Sunnah". This was not just an academic exercise motivated through sheer historical curiosity: if it is historically true, then it is fraught with meaning for us now, and, indeed, for ever. In the sequel, we shall illustrate the development of this early "living Sunnah" with concrete examples, endeavouring in each case to show the situational background—the forces that called forth a certain measure—and by pointing out the extent of the newness of the cases we hope to bring out their true magnitude. These illustrations have three objectives in view: (i) they strikingly drive home the reality of the "living Sunnah";(ii)they are intended as pointers for future developments; (iii) they constitute a humble suggestion to the 'Ulama' that if the study of early Hadith-materials is carried through with constructive purposiveness under the canons of historical criticism and in relation to the historico-sociological background, they take on quite a new meaning. A Hadith, say, in al-Muwatta’ that 'Umar did so-and-so, when read as mere Hadith, i.e., as an isolated report, remains a blank and yields little; but when one fully comprehends the sociological forces that brought the action about, it becomes meaningful for us now and assumes an entirely new Dimension.
In what sense does it become meaningful for us now? As a pointer to our future development, as we said in (ii) above. It is of capital importance to realize, however, that a pointer is, by its very nature, generally indicative rather than specifically legislative. The "living Sunnah" of our early forefathers, therefore, while it has lessons for us as a genuine and successful interpretation of the Qur'an and the Prophetic activity for the early days of the Community, is, in its flesh and blood, absolutely irrepeatable, for history really never repeats itself so far as societies and their structures are concerned. There is only one sense in which our early history is repeatable—and, indeed, in that sense it must be repeated if we are to live as progressive Muslims at all, viz., just as those generations met their own situation adequately by freely interpreting the Qur'an and Sunnah of the Prophet—by emphasizing the ideal and the principles and re-embodying them in a fresh texture of their own contemporary history—we must perform the same feat for ourselves, with our own effort, for our own contemporary history.
IJTIHAD IN SOCIAL CHANGE AND EARLY SUNNAH
The following examples have been chosen somewhat at random in the sense that many more examples of the kind exist in books out of which only these happen to be given here. But these are as good as any others in illustrating the points outlined above and in establishing our thesis. In another sense, however, these examples are not altogether the results of random choice but have been largely determined by one major consideration which will become apparent to any careful reader. This is the fact that most of the examples have been chosen from 'Umar's legislation and decisions. The reason for this is not far to seek. It was in the time of ‘Umar that, due to sudden and vast conquests, big sociological and political problems arose in Madinah itself and in the conquered lands. Sociologically speaking, perhaps the biggest problem was the presence of an immense increase in the numbers of slaves and slave-girls or, rather, bondsmen and bondswomen. The same element in the population, when gradually freed, became so powerful that it contributed directly to the subsequent overthrow of the Umayyad rule. While going through the Muwatta' of Malik one is impressed with the social legislation of 'Umar, especially with regard to the slave problem, and more especially with regard to the problem of the slave-girls. Secondly, therefore, many of these examples happen to be drawn from the Muwatta'.
A—Law of War
(1) The practice of the Prophet had been that if a certain tribe did not surrender peacefully but was reduced after armed conflict, its lands were confiscated and distributed among the Muslim soldiers as part of the booty. This was probably an old law of war. But the Muslims accepted it as the Sunnah of the Prophet, as part of the mechanism of devastating the enemy and rewarding the Muslim fighter and, indeed, this law remained operative in the early small-scale conquests of the Muslims outside Arabia. When, however, Iraq (Sawad) and Egypt were conquered and added to the Muslim territory in 'Umar's time, he refused to distribute these massive territories among the Arab soldiers and dispossess the original inhabitants. There was solid opposition against 'Umar's stand even though he was not alone in holding this opinion but several other men of eminence agreed with him. The opposition hardened so much that a kind of crisis developed, but 'Umar remained firm and tried to argue his case on the ground that if Arab soldiers became land-settlers they would cease to be fighters, although his real considerations, as it subsequently turned out, were based on a keen sense of socio economic justice. One day 'Umar came upon the following verse of the Qur'an which, in a very general way, did support his view and in broad terms embodied his unshakeable faith in justice : " . . . And those who shall come after them shall say: O our Lord! Forgive us and those of our brethren who have preceded us In Faith ........ Verily, Thou art kind, benevolent" (LIX: 10). This verse most decisively shows that he was motivated by fundamental considerations of socio-economic justice: he refused to concede the distribution of one whole country after another among the Muslim-Arab soldiery to the neglect of the world population and future generations.
But this case reveals certain features of paramount importance in connection with the interpretation of the Qur'an and the Prophet's Sunnah. The Prophet had undoubtedly confiscated the territories that had fallen after a fight. This fact is historically so clear and firm that it is this kind of unambiguous pronouncement or behaviour that later legists term muhkam or mansus.The truth, however, is that this hard and fast distinction between muhkam and mutashabih, between nass and non-nass does not exist for the very early generations of Muslims.It is this type of case that has led Joseph Schacht to assert repeatedly in his Origins of Muhammedan Jurisprudence that in the early development of Fiqh the Qur'an is "introduced invariably at a secondary stage" (e.g. p. 224). This is an extraordinary statement to make. But it certainly points to something and this something is that the early generations were not bound by what later came to be called 'nass' or the letter of the text. This case of 'Umar is a striking case of this kind. What 'Umar and those who agreed with him—and ultimately everyone had to agree—felt most strongly was that the Prophet was acting within a restricted milieu of tribes, that, therefore, you cannot carry on the same practice where vast territories and whole peoples are involved; otherwise you violate the very principles of justice for which the Prophet had been fighting all his life. One thing is certain: that although 'Umar obviously departed formally from the Sunnah of the Prophet on a major point, he did so in the interest of implementing the essence of the Prophet's Sunnah. Indeed, there are few men in history who have carried on the mission of the Prophet so creatively, so effectively and so well. But these are the choices and the decisions which every living society has to face almost incessantly but particularly at times when massive new factors enter into it.
(2) It is well known that 'Umar suspended the Hadd punishment for theft during a period of acute scarcity of food.
(3) 'Umar ordered, "Whatever slave-girl gives birth to a child from her master, can neither be sold by him nor given away as a gift nor left as a part of his inheritance. She belongs to her master during his lifetime (i.e. unless she is freed by him), but on his death will become automatically free."2 We know that a "mother-of-the-child (umm. al-walad)", as a slave-girl who bore a child was called since early Islamic days, could be sold, given away as a gift and was, of course, on the death of her master, inherited during the lifetime of the Prophet—although this was an old custom of the Arabs, which the Prophet did not forbid because apparently it did not constitute a big social problem. In one respect, however, the slavegirl got a special concession in very early Islam— besides the overall improvement that occurred through Qur'anic legislation and moral exhortation with regard to slaves in general. This is that when she bore a child, she was called "umm al-walad" and, as such, given special treatment.
Not until 'Umar's time, however, was a legislative measure taken to ensure that the "mother-of-the-child" could neither be sold nor given away as gift nor yet could she be retained as a slave after the master was dead. At the latter's death, indeed, both she and her offspring must enjoy equal freedom. What had happened since the Prophet's days that a custom even backed by his own "silent" approval (Sunnah sukuttiyah) had to be legislated against? Obviously, something
vitally Islamic was at stake and on closer examination we find that a big problem of social justice had been raised by certain new factors in the society. The great influx of slaves and slave-girls raised many problems. Especially acute was the problem of those slave-girls—whose number was very large—that bore children. If these were bought and sold and given away as gifts, what would be its effect on society? More especially, what would be its effect on children, on their morale and morals? These were the considerations that led 'Umar to put a ban on their sale and indeed, on their slavery after the master's death. So far as the master's life is concerned, since the woman has borne him children, he is assumed to show her great consideration by an almost physical necessity, as it were. 'Umar, therefore, curtailed the "rights" of slave-owning men and even went against a Sunnah in order to keep the bases of the Sunnah alive, strong and progressively prosperous.
For the traditional students of the Hadith-i.e. 'Ulama',the above-quoted measure of 'Umar is merely a Hadith, i.e. a report about a "saying of 'Umar". Since the genuinely historical reports are not studied with an eye on the historico-sociological background which would make them "live" before our own eyes, they are read as dead matter, shorn of any meaning for us now. May we request our 'Ulama to study these materials with the necessary and relevant background ? We feel certain that once this is done, the whole question of how the Qur'an and the Sunnah are to be interpreted will take on, a new meaning for the traditional students of the madrasah.
(3A) Malik holds3 that if a man-slave contracts with his master to purchase his freedom on payment of instalments to his master but dies before completing the instalments, then, if such a "contractual slave (mukatab)" has left a "mother-of-the-child" and also children who are too weak to complete the instalments left over by their father and thus earn their own freedom as well as that of the "mother-of-the-child", then the "mother-of-the-child" must be sold in order to purchase the freedom for the children.
The really interesting feature of this comment of Malik is that it is not brought into relation with 'Umar's order banning the sale of the "mothers-of-children". Of course, the case Malik is discussing may be different from those covered by 'Umar's order; but Malik does not even mention 'Umar's order, discuss its relevance or otherwise to the case in point and mark out the latter's differential, etc. This is, indeed, a most fundamental and striking feature of our Fiqh, that its various parts and legal points and enunciations do not actually tie up with one another to make it a real well-knit system. That is why it has been aptly described as a "discussion on a Muslim's duties" rather than a legal system in the strict sense. Indeed, even a casual student cannot fail to notice this "atomicity" of Fiqh—the, in effect, intellectually unrelated development of almost all of its enunciations. Therefore, rather than being a system, it is a huge mass of atoms, each atom being a kind of a system in itself. Broadly speaking, therefore, Fiqh constitutes materials for a legal system but is not a legal system itself. We do not, however, deny that Fiqh is endowed with a suficiently definite character which marks it out from other legal systems—this character being the result of its Islamicity—; what we deny is that it is a logically connected, intellectually worked out, and, therefore, a closely enough knit legal system.
(4) Connected with (3) above is 'Umar's decision that if a slave is grossly maltreated by his or her master, the state must intervene. Malik reports that 'Umar ordered the freeing of a slave-girl who had been tortured by her master.
(5) 'Umar issued an order with the following statement: "How about men who cohabit with their slave-girls but then neglect them (and subsequently refuse to own children born of these slave-girls on the pretext that they were never sure where these girls had been visiting). For me it is sufficient ground that the master of a slave-girl should admit having cohabited with her that I should declare the child to be his. So either control your slave-girls or let them go." Just consider the dimensions of the social evil arising from the non-recognition of children by anyone as their father—either the ostensible father or the real one. The problem, however, arose in the first place by the immense number of slave-girls who probably could not even be controlled by their masters. We now understand more fully the significance of (3) Above, viz.'Umar's measure to declare slave-girls with children free and rehabilitate them in society.
D—Law of Evidence
(6) A man came to 'Umar from Iraq and said: "I have come to you for something which has neither head nor tail (i.e. is as dificult to treat as a vicious circle)." "What is it?" inquired 'Umar. The man said: "In. our country (Iraq) false evidence has become rampant." "Is this really so?" asked 'Umar and "yes" was the man's reply. Thereupon 'Umar said: "By God, none shall be imprisoned under Islam except on the evidence of unimpeachable witnesses."6 The law of evidence in Islam, of course, lays down certain criteria of reliability of witnesses although these are rather formal. But what is of importance here is that an important part of the procedural law is being given a fresh meaning because of the new situational context that had arisen. It may be objected that this report of Malik may not be,able to stand the test of strict historical criticism for, to begin with, we do not know who this "man" was that came from Iraq and complained to 'Umar. But our point about the fresh interpretation of laws and investing these with new emphasis and even new meaning in the light of the changing sociological situation remains perfectly valid whether or not the story itself is true and, if true, whether it is true about 'Umar or about somebody else.
(7) A slave who, under a contract, was allowed by his master to purchase his freedom by instalments was called a "mukatab (a slave contracted-for-freedom)". A man was thought to be under no legal compulsion to allow his slave to purchase freedom but this was undoubtedly encouraged by state policies. Actually, the words of the Qur an, "And contract them (the Slaves) for freedom, if you think they are any good" (XXIV: 33) hardly admit of any doubt as to the uncompromising intention of the Qur'an to free slaves and abolish slavery. But with the influx of a large number of slaves—under the war ethics of those days — the- intention of the Qur'an could not be immediately carried out and subsequently this became one of those major points on which the Qur'anic ideals were thwarted by the Community at large. The words of the Qur'an, "If you think they are any good" are not a restriction on freeing of slaves. All that they mean is that if a slave cannot earn to purchase his freedom then he cannot be expected to stand on his own feet, when set free and even when set free; he will be a slave.
Once, however, a slave had contracted for freedom, the question arose whether a slave, on showing good cause, could pay all his instalments at once—if he could earn so much and hence offered to do so—and free himself without going through the entire period of the instalments. Malik says: "Furafisah [Porphyrius (?) —apparently a Graeco-Syrian name] Ibn 'Umayr, the Hanaite (this has no reference to the famous school of Islamic law but to a tribe) had a mukatab who proposed to the former that he accept from the latter all the sums of the mukatabah-contract at once (because the slave had grounds for getting freedom early). Furafisah refused the offer. The mukatab came to the Umawi Marwan, then governor of Madinah, and petitioned to him. Marwan called Furafisah and asked him to accept the offer but the latter refused again. Marwan then ordered that the contract money should be taken from the slave and put in the public treasury, while to the slave he said: 'Go! You are a free man.' When Furafisah saw this, he took the money."7 Commenting upon this Malik says: "Therefore, our established practice (al-amr; we have pointed out before, however, that Malik uses the terms 'al-amr’, 'al-'amal’, 'al-sunnah', and 'al-amr al-mujtama' 'alayhi' as equivalent terms for the practice or Sunnah at Madinah) is that when his special circumstances enable a mukatab to pay up all his dues, even before they are due, it is permitted to him to do so and his master may not refuse.
We have cited this case in order to make two points. First, along with the previously cited examples, it brings out clearly the measure's that were taken by the state-authorities to enfranchize the slaves. Secondly, this illustration forces vividly upon our attention the fact, oft-repeated previously, that Sunnah, i.e., the living practice of the Community, is not just the work of the Prophet as the post-Shafi Fiqh-doctrine claims, but is the result of the progressive thought—and decision-making activity of the Muslims. Here Marwan Ibn al-Hakam's decision is part of the practice or Sunnah according to Malik. Exactly the same is true of the concept of Sunnah in al-Awza'i, the younger contemporary of Malik in Syria. The 'Iraqi school started with the same living tradition but gradually exhibited greater freedom in legal ratiocination and depended less on actual decisions taken in the past. About the middle of the second century, however, this free thought began more and more to take the form of traditions (Hadith). But the 'Iraqi Hadtth is, at bottom, no less regional than the Medinese Sunnah or the "practice" of al-Awza'i.
The illustrations given above—and a host of other examples many of which we have not given and some of which we have provided in the previous chapters — demonstrate beyond any shadow of doubt that our earliest generations looked upon the teaching of the Qur'an and the Sunnah of the Holy Prophet not as something static but essentially as something that moves through different social forms and moves creatively. Islam is the name of certain norms and ideals which are to be progressively realized through different social phenomena and set-ups. Indeed, Islam, understood properly, ever seeks new and fresh forms for self-realization and finds these forms. Social institutions are one of the most important sectors of the Islamic acivity and expression. Social institutions, therefore, must become proper vehicles for the carriage and dispensation of Islamic values—of social justice and creativity, etc. This is the clear lesson that we learn from the early development of the Sunnah.
We do not wish to be misunderstood. We especially and carefully reject that vagrant attitude of empty liberalism or negative spiritualism that seeks to drive a wedge between the form and the essence and says that what matters is the essence and that the form is at best its cumbersome companion. We say that the form and the essence are coevals, inter-dependent and each necessary and desirable. But we know that even forms have a way of changing and yet remaining the same. What is injurious to a living faith and a living society is not forms but formalism. 'Umar changed the form of the Prophet's Sunnah of War in certain fundamental aspects and yet that very Prophet's Sunnah was all the more prosperous because of this change. The Muslims, indeed, changed the Qur'anic law of evidence and, instead of insisting on two witnesses, began deciding cases on the basis of one witness and an oath. They knew that what the Qur'an was after was to establish justice and not two witnesses. If now we can have a recorded self-confession (provided its authenticity is otherwise established beyond doubt) may we not even dispense with conventional modes of evidence in a given case?
But these examples are vital and potent enough to raise other and much bigger issues to which we must give constructive and decisive replies. In the world, as it stands constituted today, is it or is it not among our paramount duties to create the best moral and material conditions for the coming generations? If it is, can we honestly allow the reckless multiplication of population whom we can neither properly nourish nor educate? Does it make good Islamic sense? And if it is the absolutely inalienable 'right' of a Muslim to procreate in season and out of season, can we accept the alternate but desperate course of strict regimentation of labour? The first course is easier, but if not adopted today, tomorrow the choice will no longer be ours and the other alternative will simply impose itself upon us. Again, if we adopt the first course, how much rising of the standard of living do we want before relaxing controls, is another question. But all these are problems that must be answered now; and they must be answered from the depths of the Islamic conscience, not from mimicry of the past. If the right and successful answer emerges now from the Islamic conscience, therein shall live the Sunnah of the Prophet.
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