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'.
SOME ILLUSTRATIONS:
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.
B—Criminal
Law
(2) It is well known that 'Umar suspended the Hadd
punishment for theft during a period of acute scarcity of food.
C—Social Legislation
(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.
GENERAL CONCLUSION
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.
