By Syed Ali Imran (Canada)
What follows is a summary of the book Shumūl al-Sharī‘ah (Comprehensiveness of the Shari‘ah – Discussions on Extents of Legal Reference Between Intellect and Revelation) written by Shaykh Haider Hobbollah. The published book is around 820 pages and as the discussions in this book are not very accessible in English, what follows below is an extensive summary of what the book contains.
The book is divided into five sections:
- Chapter One: The concept of al-Shumūl al-Tashrī‘ī (comprehensiveness of the divine law) and the evidence for and against it. This section ends at page 254.
- Chapter Two: Proponents of al-Shumūl al-Tashrī‘ī and the Problem of Fixed and Changeable (al-thābit wa al-mutaghayyar). This section ends at page 448.
- Chapter Three: Proponents of absence of comprehensiveness of divine law and theories on limited role of Sharī‘ah. This section ends at page 744.
The most crucial sections are chapter one, two and three, where the crux of the discussion takes place. The book begins with the traditional practice of defining all terms as precisely as possible, boiling down the idea of “comprehensiveness of the Sharī‘ah” into four possible meanings:
- For every human action there is a divine legislation (ḥukm shar‘ī) by Allah (swt).
- For every individual or societal circumstance, the Sharī‘ah has something to say about it – it has not left such legislation in the hands of humans – which is then to be reflected in the actions of that individual or society.
- The Sharī‘ah has legislated laws for a large aspect of our lives, but not for every single aspect of reality. This is because Allah (swt) Himself knows that it is with these limited laws humans will progress and reach perfection, and beyond that there is no reason for Allah (swt) to have legislated laws Himself.
- For every aspect of human life – whether the Shari‘ah has anything to say about it explicitly or not – there is no fundamental and primary recourse for law except Allah (swt). Any other source of legislation, which is not to be attributed to Allah (swt) and His (swt) religion, still has to have been granted permission by Allah (swt) Himself.
The vast majority of Muslims have and continue to believe in the first or second definition, whereas what Shaykh Haider concludes through the course of his research is the fourth definition. Historically it is important to note that though there are no independent written works on the concept of the Sharī‘ah being comprehensive, many Muslim jurists from the 2nd century hijrī onwards had realized this problem, with what they termed as circumstances where there was no naṣṣ (lā naṣṣ fīh). The problem was defined by the notion that the traditions and the Qurānic verses are limited, yet worldly phenomenon is ever changing, and new issues keep arising. In these earlier centuries, some jurists who later ended up being consolidated as the Ahl al-Sunnah resorted to qiyās and other alternatives as a solution to this problem.
By the dawn of the 20th century as the Muslim world encountered the modern world, this question became ever so pressing. Is it possible that a religion that offers such extensive details on how to use the toilet, how to purify yourself, laws concerning marital life, business transactions, renting etc. has absolutely nothing to say about environmental laws, fishing laws, laws concerning space travel and many other aspects of modern life? Is this all just a coincidence? What theories and solutions did Muslim scholars offer for this challenge?
After outlining these four definitions, the book begins looking at all the evidence used to prove the first or second definitions. Given that such a view has been taken for granted, there are no independent works written on this subject over the last 12-13 centuries, and hence these arguments have to be extracted from different sections of different works, where scholars may have alluded to it.
The arguments were divided into four categories:
1) Rational – ten arguments are cited and each of them is critiqued. I will point out just two of these arguments:
- i) Pages 53-56 discusses this argument: Islam is a “complete religion” that has a positive or negative stance against every aspect of one’s life, and that it is the final religion from Allah (swt).
Response: This is nothing but begging the question because claiming that Islam is a “complete religion” is another way of saying it is a comprehensive religion. Secondly, what is the relationship between being the “final” religion and having complete comprehensiveness for every act of one’s life?
- ii) Pages 56-58 discusses this argument: The intellect cannot conceive of an instance in life where a legislated law cannot exist. In other words, God either legislates a law that is obligatory, prohibited, recommended or detested and if none of these are legislated then by default there will be a law legislating permissibility.
Response: This argument complete ignores the fact that we are not discussing external acts and whether they are preferred or not, and neither whether Allah (swt) knows of them being preferred or not. Rather we are discussing legislation – despite His knowledge – and whether this legislation concerns us or not. In other words, this argument focuses on the state of criterion (milāk) in the realm of permanence (thubūt) which is not sufficient to make the jump that there is also legislation after it.
What strengthens this response is that numerous scholars confirm that the Islamic Shari‘ah was not complete in the Meccan period, rather it was completed at the end of the Medani period, or that the Shari‘ah was never completed until the arrival of Muḥammad (p), while at the same time they do not deny that Allah’s knowledge with respects to what is good and bad still existed, even before the Meccan period. Why do they not say that the Shari‘ah was complete during the Meccan and Medani period? On the contrary, the verse of the Qurān [5:3] is very clear in saying “today I have completed your religion,” indicating that Allah’s (swt) knowledge does not necessitate legislation.
3) Consensus, Popularity and Practice of the Religious People
In conclusion, the book argues there is no rational, intellectual, theological, or philosophical argument for the comprehensiveness of the Sharī‘ah for every single aspect of one’s life. Hence such a presumption should not be considered when reading the Qurānic and Ḥadīth texts. In fact, the Qurānic arguments and as well as the arguments from the ḥadīth allude more towards definition four as aforementioned.
Ultimately, the argument is made that in such a situation where the Sharī‘ah is not concerned with every aspect of our life – for example, there is nothing in the Sharī‘ah about environmental or fishing laws – then in these cases the legislative authority has been granted to the intellect of the believer with the major difference that these laws themselves cannot be attributed to Allah (swt) or His (swt) religion.
In chapter two, the book discusses the different responses and theories proponents of a comprehensive Sharī‘ah according to the first or second definition have given in order to resolve the undeniable reality of the world which is that some aspects of this world life are fixed, while other aspects are changeable. In other words, how does a fixed and comprehensive Sharī‘ah deal with this complex problem of change in this world. Three major theories are discussed:
First Theory: This theory originates in the work Tanbīh al-Ummah wa Tanzīh al-Milla (The Awakening of the Community and Refinement of the Nations) of Mīrzā Nā’inī (d. 1936) written during the time of the Persian Constitutional Revolution. Later scholars who built upon this theory or offered a different version of it were ‘Allāmah Ṭabāṭabā’ī, Shahīd Muṭahharī, Shahīd Ṣadr’s Manṭaqah al-Farāgh and Shaykh ‘Alī-Dūst. The essence of all versions of this theory and the different ways they are being justified is that some sort of authority is being granted to the Walī Amr (an individual or group vested with political authority) to legislate law for cases where there is no Qurānic verse or Ḥadīth, or to alter laws based on expediency, and that these laws are attributable to Allah (swt) and Islam.
In this section of the book a lengthy discussion is held on the concept of al-ḥukm al-ḥukūmī/al-ḥukm al-wilāyī/al-ḥukm al-tadbīrī and the difference between that and al-ḥukm al-awwalī, al-ḥukm al-thānawī. In this context the view of Imam Khūmaynī who believed al-ḥukm al-ḥukūmī is essentially al-ḥukm al-awwalī, and the view of ‘Allāmah Muḥammad Taqī Ja‘farī who believed al-ḥukm al-ḥukūmī is al-ḥukm al-thānawī, and as well as the view of some other scholars is discussed.
The main critique taken on these theories is that they are irreconcilable with their own presumption that the Sharī‘ah is comprehensive and was completed during the last days of the Prophet (p), and that there is not an aspect of reality except that there is a law for it, since it gives legislative authority to a Walī Amr, the parliament, a nation etc.
Second Theory: The view of the vast majority of Muslim scholars is that there is no such thing as Manṭaqah al-Farāgh, that on the contrary there is indeed a specific law for every aspect of one’s life legislated by Allah (swt), and that no government, parliament, or Walī Amr has any right to legislate any laws by their own account in cases where they supposedly think there is no law.
Before expanding on the detailed response of the proponents of this theory, the book highlights the fact that there are certain groups of scholars in this camp who simply believe that this discussion of fixed and changeable, or the challenges the Sharī‘ah faces in modern times, is itself moot because the very life in the modern day and age is fundamentally wrong and incorrect. Modern life is based on the errors humans have made over the past centuries, resulting in all sorts of further challenges, problems, abusive technologies, oppressive economic systems etc. and it is not that the Sharī‘ah needs to be able to address these issues by offering us a practical way to navigate through these changes, rather these very changes themselves need to be eliminated to revert them back to how things were before humans made these erroneous decisions.
The book does not address the validity of this claim as it is outside the scope of the book, but it will respond to it in one of the observations and critiques given at the end of this chapter. I will also allude to it shortly.
This theory relies on a number of elements to deal with the changing nature of the world while still professing the comprehensiveness of the Sharī‘ah:
- Change in Concepts and Names: These are principles that say that the law is subordinate to the subject-matter at hand, or the instances in external reality. For example, if the Sharī‘ah law said that blood is prohibited to consume, then if an animal drinks blood which is then digested by it and becomes part of its body, and you slaughter and eat this animal, it is not prohibited for you to eat the flesh because you are no longer consuming “blood”, rather you are consuming “flesh” of a slaughtered animal. The subject-matter here has changed.
Another example, the Sharī‘ah law may say disrespecting your parents is prohibited. In 8th century Arabia walking in front of your father could have been seen as a sign of disrespect, whereas today it is not considered disrespect. This does not mean that at one point “walking in front of your father” was permitted in the Sharī‘ah law and that this law has now changed, rather the law is still the same – which is the prohibition of disrespecting your parents – and only its instance has changed.
- Ijtihād: Many Sunnī and Shī‘ī scholars have argued that the process of ijtihād itself is a way to continuously responding to the changing world. For the Ahl al-Sunnah, procedures such as qiyās, istiḥsān, al-maṣālih al-mursalah etc. are ways by which Sharī‘ah law can be continued to be discovered.
- Secondary Rules: For many situations, the Sharī‘ah law can be given as per secondary rules such as harm (ḍarar), extreme difficulty (ḥaraj), emergency (iḍṭirār), necessity (ḍarūrah) etc. These secondary rules can encompass a large segment of our lives where we do not have any clear Qurānic verse or ḥadīth.
- Political Rules: Some scholars such as Shaykh Ja‘far Subḥānī and Shaykh Makārim Shīrāzī have argued that there are certain political rules which are not human legislations, but rather they are advisory commands or rules that are the means by which the Sharī‘ah law is to be implemented – whether primary laws or secondary laws. In other words, if certain rules are made for the army, or for tourism, or military service etc. then these political rules either come under the general Islamic obligation of maintaining order in society or they are preliminaries by which the Sharī‘ah law is can be implemented. It is important to note that these are not cases where the political authority has been granted legislative authority whose laws can be deemed as part of the Sharī‘ah.
- The Legislative Nature of Religious Texts: Another way to reconcile between the religious sources and everchanging nature of the world is that the textual sources themselves have a legislative quality. This legislative quality is discussed in legal theory when studying various linguistic theories dealing with iṭlāq and ‘umūm. For example, if the verse of the Qurān says [5:1] fulfill the contracts, then the generic nature of this command is such that it is not exclusive to contracts that were present during the life of the Prophet (p), rather any type of contract that society formulates can also be inclusive of it (as per the opinion of some jurists). Hence Quṭb al-Dīn al-Rāwandī (d. 573 AH) said: “The new events are never ending, and the generic nature of the texts is also never ending, even though the texts themselves are finite.”[note]Fiqh al-Qurān, vol. 1, pg. 13.[/note]
- Differentiating Between Religion and Understanding of Religion: Some scholars have said it is necessary to distinguish between religion itself, which is complete and has a law for every single circumstance for our lives, and our understanding of the religion which has been transmitted down to us. The religion maybe complete, but our understanding of it may be limited or we may be unable to discover all these laws for all situations due to our own capacities and affinities. It is in this contxt that the likes of Shaykh Yusūf al-Qarḍāwī therefore say that the textual sources are capable of being implemented in contemporary times whether one is text-focused like the Ḥanbalīs, or qiyās-oriented like the Ḥanafīs, or lenient like Ibn ‘Abbās, or strict like Ibn ‘Umar, or a literalist like Dāwūd.[note]‘Awāmil al-Si‘ah wa al-Marūnah fī al-Sharī‘ah al-Islāmīyyah, pg. 49-63.[/note]
- Practice of the Reasonable Ones: Over the last century many jurists have focused greatly on the argument of sīrah al-‘uqalā’ (practice of the reasonable ones) and have used it as a basis to determine many fundamental axioms that the average sane and sensible human follow in his or her day to day life. Through this, some jurists are able to derive many laws
Some of these seven solutions have some consequences, as can be witnessed in the works and discussions of the jurists, particularly since the 20th century. These consequences are as follows:
- Historicism of some of the religious texts and law – sometimes this can lead to a restriction of a law, while other times it can result to an expansion of the application of a law.
- The greater goals of the Sharī‘ah (maqāṣid al-sharī‘ah) are to be considered when doing ijtihād.
- Considering the role of time and place in the process of ijtihād – Imam Khūmaynī has become renowned for bringing and highlighting this aspect of ijtihād – at least in Shī‘īsm – greatly in his academic discussions.
Seven lengthy observations and critiques are given in response to this second theory, which is the most prevalent solution given by Shī‘ī and as well as many Sunnī jurists. I will allude to just a few of them:
- One of the responses given is for the aforementioned solution #5 on pages 402-410. Solution #5 said that the textual sources themselves have a lot of capacity and due to the presence of iṭlāqāt and ‘umūmāt, we have nothing to worry about when many contemporary issues arise. The critique here is that though there is no doubt many religious texts are absolute and generic, but many Muslim jurists have fallen into an extremity where they claim such iṭlāqāt and ‘umūmāt to exist even when there is very strong contextual reasons to suggest otherwise. On many occasions the jurists have to resort to a lot of mental gymnastics, and make far-fetched arguments to back their claims up, and such justifications are very distant from the way humans understand language.
- Resorting to procedural principles such as barā’ah or iḥtiyāt – although not istiṣḥāb according to one group of scholars – is not a solution at all. These principles do not tell us anything about the Sharī‘ah law and rather only tell us our practical responsibility so that we are excused on the day of judgement.
- The next critique is not applicable on those who reject the probative force of speculation, but such jurists are few in number in the Muslim world. The mainstream process of ijtihād is thoroughly speculative, fundamentally catered to ensuring we are excused on the day of judgement. Since it is heavily based on the idea that much of the reality of the Sharī‘ah law is unknown to us since the vast majority of the sources of Sharī‘ah are speculative, and that most of our laws are merely apparent laws whose correspondence with the actual Sharī‘ah is unknown, how can such a legal system even claim to say it can answer and offer the actual Sharī‘ position on contemporary and newer issues? The most it can offer are further apparent laws whose correspondence with the actual Sharī‘ah is not even known.
- One of the responses given is to the claim that the modern world is a result of human error itself, and that we must return back to a situation before this error was made. Even if we were to accept and agree with the claim above, even in this case the proponents would need to give a working and practical solution from the Sharī‘ah as to how we are to revert the world back to a time before some of these crucial mistakes were made. Given that such a change is not meant to happen overnight, rather could take a few centuries, has the Sharī‘ah spoken and informed us about the type of laws that need to be followed in order for us to make these changes? We are not speaking about just mere laws concerning individuals, rather we are speaking about the Muslim world as a whole. The Sharī‘ah is not just a Sharī‘ah for when humanity is all righteous and pious, rather the comprehensiveness of the Sharī‘ah would entail that it has a clear cut solution for even situations like the one we face today. If the solutions offered are from personal experiences, intellect and endeavors, then this itself is a type of confession that the Sharī‘ah is not comprehensive and has failed to offer a solution on how we are to take the Muslim world out of this situation.
Third Theory: This theory is offered by Shaykh Muḥammad Mahdī Shams al-Dīn (d. 2001) who believes in a third category of laws other than primary and secondary laws, and these are essentially laws that a jurist derives for a case where there is no naṣṣ, but relies on general overarching principles of the Sharī‘ah to arrive at a temporal law. For example, Shaykh Shams al-Dīn acknowledges that there is no detailed system in the Shar‘ī texts that we have by which we can derive a system to deal with the environment, but we do have some other generic principles such as the obligation of maintaining justice, maintain order in society, the preservation of brotherhood etc. which can be used by an infallible Imam (a) or a capable jurist to give us regulations and laws for the phenomenon we are dealing with.
One of the elements that differentiates Shaykh Shams al-Dīn’s view from the first theory is that this authority is being granted to all capable jurists, and not just a jurist who hold a formal political position in society. Secondly, though he repeatedly mentions his belief in the comprehensiveness of the Sharī‘ah, but he also confesses that there is an area where not only do we have no naṣṣ, but there are not even any ‘umūm or iṭlaqāt to refer back to. In other words, Shaykh Shams al-Dīn is not saying that the narrations on these subjects have not reached us, rather he is saying there were no such narrations or verses to begin with – Allah (swt) did not reveal these to us. In essence, this is a much bolder confession to the problem of the limitations of the religious texts than proponents of the first theory.
Altogether there are nine observations and critiques on Shaykh Shams al-Dīn’s theory, discussed from pages 427-445. Some of the critiques or limitations can be summarized as follows: If there is a vast region where there is no law mentioned by the Shar‘ and it has not provided us with a clear organized picture of how we are to deal with some new phenomenon, as Shaykh Shams al-Dīn himself confesses that these are areas where there is no naṣṣ, then how is it possible for the jurist to derive a law for such cases through some higher generic principles and make it obligatory on people to follow it? What makes it obligatory for us to follow a law that the Sharī‘a itself has not revealed to us, and what kind of Sharī‘ah is this that sees some benefit in not revealing the laws for these new circumstances and then later tell us that you are obligated to follow these unrevealed laws (derived by the jurist), laws that we did not reveal in the Qurān or the ḥadīth, neither the Prophet (p) mentioned them, nor the Imams (a). What does it mean then for the Sharī‘ah to have been completed as mentioned in [5:3]? Why does the principle of barā’ah not apply in these circumstances like it does in any other place where we are unaware of a law?
In addition, if the end result of this theory is that the Sharī‘ah has some generic higher principles that a jurist has to use to come up with a temporal law for their circumstances, then how is this any different to what some of the critics of the comprehensiveness of the Sharī‘ah are saying? At the end of the day, the opponents’ claim is that the Sharī‘ah is not comprehensive and has not given us details on all aspects of our lives, rather humans have been granted permission by Allah (swt) Himself to legislate laws following certain guidelines (which will be discussed shortly), though they are not attributed to the Sharī‘ah, and practically speaking this is exactly what is being done in Shaykh Shams al-Dīn’s theory.
Finally, Shaykh Shams al-Dīn does not clearly elaborate on the probativity of the jurist’s derived rule in this situation, particularly as he is not claiming to be from the proponents of insidād. For example, proponents of the first theory will make the argument that prove the probative force of the rulings legislated by the Walī Amr, and though Shaykh Shams al-Dīn critiques the evidence for this position, he himself does not explain why and how the jurist’s opinion in an area where there is no naṣṣ, and the jurist is simply relying on their intellect and human experiences, albeit under the umbrella of some generic Shar‘ī guidelines, is probative. The problem is further complicated by Shaykh Shams al-Dīn’s own admission that we are unable to perceive much of the expediency and harms Allah (swt) considered when legislating laws.
In chapter three, the views of four prominent figures who reject the idea of the comprehensiveness of the Sharī‘ah are discussed and critiqued. The four personalities are Shaykh ‘Alī ‘Abd al-Rāziq (d. 1966), Mahdi Bazargan (d. 1995), Abdul Karim Soroush, and Muhammad Mujtahid Shabestari. The question these figures were essentially trying to answer is that if the Sharī‘ah is not comprehensive, then what are its limits and to what extent does it play a role in human life? What are we to do in cases beyond the limits of the Sharī‘ah? Ultimately, what is the role of Islam in our lives today and how can we continue to give Islam relevance if it does not have – nor claim – to have practical legislation for every single aspect of human life?
First Theory: A number of scholars have said that Islam was sent in order to address and deal with those aspects of our life which concern our hereafter and is not fundamentally concerned with this world. In other words, religion is not concerned with offering an economic system, a system to deal and manage the environment, laws for space travel, medical systems, elaborate political systems etc. Rather, religion’s main concern is to help develop a relationship with Allah (swt). If we were to give an example of this theory manifested in one prominent world religion, it would be Christianity, where the notion of law and legislation is not as apparent and obvious, as opposed to Judaism where rules and regulations for this world are extremely elaborate and detailed. While the general understanding of the Muslims has been a reconciliation between these two approaches, where both the world and the hereafter are combined, proponents of this first theory, such as Shaykh ‘Alī ‘Abd al-Rāziq and Mahdi Bazargan, have argued otherwise.
Note that Shaykh ‘Alī ‘Abd al-Rāziq and Mahdi Bazargan are merely given as two examples of proponents of this theory. There is a lengthy analysis of ‘Abd al-Rāziq’s life, studies, political situation during his time, that led him to arrive at certain ideas about the caliphate and political systems. One of the conclusions he arrives at is that the Prophet (p) was not playing a role of a politician and ruler, rather his role was that of a messenger and propagator. The reason why the Prophet (p) was able to gather society together and get them to obey was not because of obedience to him as a ruler, king or a politicians, but rather it was because of the spiritual power and attraction he had gained in society which brought people close to him (p) and saw him (p) as a role model in religious affairs. ‘Abd al-Rāziq cites numerous verses where the Qurān says the Prophet (p) is not a manager or guardian for the people around him [6:107], neither does he have to oversee them, nor does he have any control over them [88:22]. Eventually he concludes that religion has left these worldly affairs to humans to figure out and determine the best course of action. As for the extant details on some aspects of life that exist in jurisprudence, such as marriage, transactions, divorce etc. ‘Abd al-Rāziq says these are still not extensive enough to cover every aspect of human life.
The second example is that of Mahdi Bazargan which once again follows a lengthy analysis of his background and political circumstances surrounding his life. Between 1960 to 1980 Bazargan was a proponent of the Sharī‘ah being comprehensive, had written at length about it, arguing that Islam is able to reconcile between this world and the hereafter. His works were accepted and celebrated amongst the religious demographic, at least amongst the pro-revolutionaries in Iran. Some time after the 1980s, it appears Bazargan began to revisit his views, and by early 1990s he had explicitly discussed his new views. One of the most significant questions Bazargan asks is what is the role of religion today and what is the purpose and goal it is trying to get us to achieve? What should we be expecting from religion? This question itself was relatively a radical shift in one’s view of religion at that time, a question which is now a part and parcel of discussions held in kalām jadīd (New Dialectics). Bazargan says that the answer to this question cannot be given from within religion itself, rather it has to be determined from outside of religion and then one needs to approach the religious texts in order to be able to determine accurately what parts are to be deemed religion and what parts are not relevant to religion.
Relying on certain philosophical premises Bazargan concludes that the Prophets (p) were sent down for two main reasons: 1) to announce that one’s worldview should be God-centric, rather than man-centric; and 2) to inform them about the hereafter which is the everlasting and eternal life, while this world is merely temporal and finite. However, as he would have realized that religious texts – the Qurān and ḥadīth – are an integral part of the Muslim society, he could not have sufficed with a purely philosophical – externalist – perspective regarding religion, he began to bring evidence for his claim from religious sources. In a Shī‘ī context he pointed out that the Imams (a) themselves were never interested in obtaining power and authority, in fact only one or two Imams (a) were able to gain complete control as caliph and that was when people insisted that they should. Even someone like Imam Riḍā (a) who was offered the caliphate rejected this offer and did not try to seek it. If such political authority was definitely a God-given right and duty, there would have been no reason for Imam Ḥasan (a) to do a truce or for the other Imams (a) to not openly seek this right, in order to fulfil their duties. The case of Imam Ḥusayn (a) is also such that he did not revolt in order to gain power, rather it was to fight against oppression.
Bazargan continues with similar analysis with numerous Qurānic verses in order to demonstrate that his externalist perspective is in line with that the religious sources themselves say. The Qurān does not say that the messengers were sent to establish an economic system, or a political system, or even to establish an extensive system for human life in this world, rather their main goals were to ensure justice is maintained, goodness, charity, and hospitality is upheld in society etc. These changes are acquired through education, training and spiritual development. A strong spiritual life leaves a positive effect on human worldly life, but worldly life itself does not have any positive effect on one’s spiritual progress.
Between pages 489-530 seven critiques and observations are given on the first theory. I will summary the gist of a few of them below:
First and foremost Bazargan and other proponents of this theory really have not addressed all the evidence brought forth by proponents of the comprehensiveness of the Sharī‘ah in the first chapter, neither have they offered any criticisms and refutations of those arguments. At the very least they should have offered an interpretation or an explanation by which their views can completely reconcile with the numerous Qurānic and ḥadīth traditions that apparently signify the comprehensiveness of the Sharī‘ah. Secondly, if they have arrived at such conclusive evidence from outside of the religion that religion is fundamentally concerned with the hereafter, then the approach of ‘Abd al-Karīm Sorush (proponent of the next theory discussed) is much more consistent and appropriate in the sense that religious texts and historical stories have no significant value for him, and in fact he is a vocal critic of Islamic law and an Islamic political system altogether, as opposed to the proponents of this theory who are still trying to make do and make sense of the large body of Qurānic verses and ḥadīth, as well as the extensive religious tradition of jurisprudence.
Perhaps one of the biggest shortcomings in this idea that religion is concerned more so with the hereafter and less with this world, is that things like maintaining justice, being a good human, progressing spiritually, are not just mere terms that are meant to make us feel-good and have no practical implications on as to what we are meant to do in his world to make sure these objectives are fulfilled. Even if we say the Prophets (p) came to fulfil these goals, they didn’t just utter these remarks and then sit back and watch the results, rather they lived amongst the masses and practically showed what we are meant to do in order for these terms and concepts to in society.
Another inconsistency in the approach of Bazargan is that the criteria he gives for differentiating between a “worldly act” and an act concerning the “hereafter” is that an act which harms or benefits an individual or society in this world is a “worldly act”, whereas an act which harms or benefits an individual or society in the hereafter is an for the afterlife. As per this criterion, adultery would be a worldly act, while sitting in the mosque will be an act for the hereafter. Giving charity to the poor is a “worldly act” as it is a means to get people to a certain higher position in society, but the same act if it is done by an individual so to diminish the love they have for wealth, will become an act for the hereafter. The inconsistency here is that as per this criterion, many political legislations and rules cannot be separated from being considered religious and acts for the hereafter. Critics can argue that ensuring there is an organized and extensive Islamic political system can help diminish oppression and take mankind to lofty spiritual positions by which their hereafter is secured. Bazargan’s criterion is related more with one’s intentions, and by that measure, many worldly acts can be fixed and be seen as useful for one’s hereafter if one’s intentions are changed and made more sincere.
As for some of the examples Bazargan brings from the lives of the Imams (a), none of these prove that the Imams (a) did not want the government or that they did not believe it is their divine right. Regarding Imam Ḥusayn (a), Shaykh Haider believes that the Imam (a) may have initially left Medina in order to avoid having to give allegiance, but in Makkah the historical reports are very apparent that he was seeking to take over the government with the assistance of the Kufans. In other words, even though Imam Husayn’s (a) complete movement does not entail that religious identity revolves around power and authority, but it also does not negate it. As for Imam Ḥasan’s (a) truce with Mu‘āwiyah then this is explained by the very nature of truces themselves. A truce in its very nature expects both parties to overlook some goals and rights that they may believe they have and so simply doing a truce does not mean the Imam (a) did not believe in his divine right to the caliphate. As for the explanation of Imam Riḍā’s (a) position, though Shaykh Haider prefers Bazargan’s explanation, yet this is just one of many other probable and speculative explanations for the Imam’s (a) political decisions, and such speculation does not aid us in anything conclusive.
Second Theory: This theory believes that the Sharī‘ah is an accidental attribute of religion, it is not the essence of religion, in addition to its being a private venture between an individual and God. Due to certain historical events and trends – discussed in the book – scholars of different faiths began to frame discussions regarding religion in which multiple religions would be spoken of collectively, in response to critics and despisers of religions. This led to the understanding that all religions essentially have a similar essence, while they are differentiated by certain accidental attributes. Somewhat in this context, ‘Abd al-Karīm Sorush presents his view which is built upon a number of premises:
- i) Flux of religious knowledge: Sorush believes knowledge is of two types, one that produced and another that consumes. Religious knowledge is of the second category because its interpretation is dependent on various other disciplines and sciences, and once those other disciplines and sciences alter, religious interpretation will also alter. As such, there is a difference between religion in its essence and knowledge of religion, the latter being in constant flux.
- ii) Religious pluralism: This view is essentially necessitated by the previous premise, and Sorush’s understanding of pluralism is that given religious knowledge is in flux, no single individual or sect or religion possesses all the truth.
iii) Expansion and contraction of Prophetic experience: This premise argues that revelation itself is nothing but a manifestation of the Prophet’s (p) experience. Revelation may have been revealed to the Prophet (p) in its meaning, but the words, sentence structure, parables and examples etc. are all chosen by the Prophet (p) and are contextual and limited to his time and space. In other words, the Qurānic verses are the words of the Prophet (p) himself, and the verses are influenced not just by the historic moment the Prophet (p) lived in, but rather the personality of the Prophet (p) himself. The spirit and essence of the verses though are still Divine.
These three premises lead Sorush to argue that the essence of religion is one and universal, but the Sharī‘ah is not part of its essence, rather it comprises its accidental attributes. To illustrate this with an example consider the following three idioms:
- i) Persian: زيره به كرمان بردن (To carry spices to Kerman)
- ii) English: To carry coal to Newcastle
iii) Arabic: كناقال التمر إلى البصرة (To carry dates to Basra)
These three idioms are all different in the sense that what is being carried is different and the cities referenced are different, but they all share one essence and meaning, which is that the each of these idioms describes a pointless action.
The book continues with an exposition of Sorush’s view on the accidental aspect of the Sharī‘ah and how to differentiate the essence from the accidentals. I will spare summarizing this part of the book as there is ample material on Sorush’s view available in English already and his views are generally well known in the traditional seminaries.
Critiques and observations on Sorush’s view are contained between pages 554 to 608. Once again, a very watered-down gist is being provided below:
There are discussions on whether Sorush is the first one to offer this view or not and while it doesn’t concern the author he does mention in passing that the dichotomy of religion into its essence and accidental attributes – generally speaking – is not a new view. Sorush mentions two qualities by which he argues for the accidental nature of jurisprudence:
- i) He borrows from Walī Allah Dehlawī who believed that some aspects of the Sharī‘ah are to be contextualized and understood in the historic period of Arabia. Sorush has taken this view and has exaggerated it extensively. While the author does not deny that some laws in the Sharī‘ah have historical roots in some historical phenomena and are suitable for the Arabian society 14 centuries ago, but this by no means proves that all of the Sharī‘ah was as such. In other words, it really cannot be said that if Islam was revealed in another region that a vast majority of these laws would not have been the same laws. It is surprising that Sorush makes such a big claim but does not offer any extensive research on whether this truly would have been the case. In fact many Sharī‘ laws and concepts were legislated considering intuitive and reasonable human practices that continue to exist until today.
Even if we were to agree with Sorush that much of the Sharī‘ah is to be contextualized to the Arabian society, this still does not mean there are no universal and generic Shar‘ī objectives that God does not want to be fulfilled. For example, if we say the prohibition of chess was contextualized to certain time and place, this does not mean gambling is now also permitted; or if we say that the reason why men were considered maintainers of women was because of economic reasons, this does not mean maintenance by the financially stronger partner in marriage is not obligatory. All this proves is that some instances of the law are accidental, not the actual law itself.
Thirdly, we do not believe Sorush has been able to present any convincing demonstrative argument for his claim that the mere existence of something amongst the Arabs 14 centuries ago which the Sharī‘ah also acknowledged, indicates that this legislation was merely for the Arabs. What evidence does Sorush have to say that the detailed laws of breast-feeding and wet-nurses, as an example, were legislated in context of the fact that Arabs already engaged in this practice and hence the laws are specifically for their context. What rejects the possibility – convincingly – that if this religion was revealed in India – where breast-feeding and wet-nurses also existed, as they did in many parts of the world – that these detailed laws would be definitely different than what we saw in the Arabian context? A very strong demonstrative argument and proof needs to be offered for this claim, not mere speculation. We believe all Sorush’s analysis can prove is that some aspects of the Sharī‘ah was of this nature, but by no means can this be taken as a default principle.
- ii) The nature of jurisprudence is that it revolves around questions and answers, thus it has nothing to do with the essence of religion which would have to be conveyed even if there were no questions being asked. In other words, if people did not ask certain questions, there would be no answers given by the Prophet (p) or the Qurān. Sorush refers to certain verses where the Qurān discourages asking too many questions.
In response to this, if we were to look at those specific Qurānic verses on their own, there is nothing in them telling us that they are concerned with the nature of Islamic jurisprudence. Rather, the discussion on questions and answers is apparently concerned with being a nuisance to the Prophet (p). In addition, if we were to consider the traditions on some of these verses one will find that they most definitely have nothing to do with jurisprudence, rather some of these narrations show people asking about whether their fathers are going to heaven or hell – these questions have nothing to do with the nature of jurisprudence.
Even if we were to accept the fact that the verses concern questions and answers about jurisprudence, these verses themselves signify that they were not being prevented from asking questions per say, rather they were being asked to wait for revelation and then ask questions for clarifications. This would mean that jurisprudence is related to revelation, and not based upon questions and answers.
A number of further critiques are offered on Sorush’s views. The chapter ends with an analysis of Ghazālī’s view – between pages 578 to 608 – on the worldly-nature of jurisprudence and the other-worldly aspect of the essence of the religion. This section contains four stages: 1) Explanation of Sorush’s, Nasr Hamid Abu Zayd’s and Muhammad Shabestari understanding of what Ghazālī meant; 2) Shaykh Haider Hobollah’s understanding of what Ghazālī meant and critique of each of the three aforementioned scholars; 3) Analysis of Mullā Fayḍ Kāshānī’s take on Ghazālī’s view, observations on it and Soroush’s take on Kashānī; 4) Observations on Soroush’s and Shabestari’s view on utilizing Ghazālī’s theory on the worldly-nature of jurisprudence on the basis of experimentation.
This is an invaluable discussion which perhaps can be summarized and published in a different article at a later time.
Third Theory: This theory believes that the Sharī‘ah is not the laws rather it’s the values. In other words, this theory argues that legal rules inherently do not have the ability to be eternal and absolute, laws are historical and contextual to certain times and places, but the underlying values behind them are universal. This theory presumes that ethical values are fixed and absolute, these values make up the spirit of the religion, and that Islamic jurisprudence is not capable of being eternal.
Furthermore, it argues that the dichotomy of Islamic and secular is not within law, rather it is within one’s religious and spiritual experience, in which case the law simply takes this religious or secular connotation depending on the individual’s own personal experience.
In one sense, this is one of the most expansive versions of Maqāṣid al-Sharī‘ah (objectives of the divine law) as it completely dismisses any significance for any legal ruling and confines it to higher ethical values. According to this theory, no legal ruling in it of itself is the objective, and it is one of the theories that historicizes Islamic law extensively. While a few Muslim scholars over the last century may have pushed this view, the book deals with one of the most prominent and influential proponents of this theory, the Iranian scholar Muhammad Mujtahid Shabestari.
It is critical to note that Shabestari’s discussions are fundamentally hermeneutical. As such he outlines a few qualities regarding the very essence of the language of religion:
- a) It requires an exegete, in this case the Prophet (p) in relation to the Qurān
- b) It is open to critique and as such there is no one official reading and interpretation of religion
- c) It is distinct from all other languages, such as philosophical, scientific, political etc.
- d) It is symbolic on many occasions and does not reveal the full truth, similar to the language of stories and tales.
- e) It is historical in the sense that it is contextualized to the time and place it was uttered or revealed in. It is with this aspect that the question is posed, how can one understand the meaning of a text if they are distanced from the origin. In order to respond to this, Shabestari believes we need to superimpose our context onto the text in order to derive a meaning that is suitable and workable with our lives today. This is very similar to the hermeneutical theories put forth by a number of prominent Western philosophers.
Shabestari explains his view by arguing that Islam was not being revealed to a group of people who had no laws and customs, rather they had many elaborate customs and conventions concerning marriage, war, truce, transactions, etc. In a vast majority of these cases Islam actually did not bring anything new, except perhaps a few minor changes to make certain aspects of these laws more just. Justice then is a crucial and universal value that always needs to be maintained in the form and application of all laws. However, according to Shabestari it is possible for these very laws to become unjust in another historical context in which case they would need to be altered and adjusted to maintain justice.
Shabestari cites a very sensitive – at least in Shī‘ī communities – example as further evidence for his views. He says that the literal form of the political life of Imam ‘Alī (a) cannot be taken as an inspiration and role model for our times today and that he was only a role model in this regards for his own time and place. In other words, our task is to obey and hold on to the Prophetic method which was subsequently followed by Imam ‘Alī (a) and not the actual form in how they implemented certain policies. By the phrase Prophetic method, Shabestari is referring to the Prophet (p) ensuring justice is maintained in accordance with the historical reality he lived in, in accordance with the customs and conventions of the people who lived in society at that time.
In conclusion, Shabestari believes the Sharī‘ah in its form is by no means an eternal law, in fact such a claim is impossible to make. He says that the jurists have relied on the principle of iṭlāq to heavily to make it appear that the Sharī‘ah is eternal, whereas the fallacy they commit is that their use of the principle of iṭlāq already presumes the eternal nature of the law. If such a presumption is negated, the use of iṭlāq would not be possible.
In 2016 Shabestari wrote a series of articles in which he announced the end of the era of Islamic jurisprudence and even cites the Iranian law as an example where hundreds of laws are passed based on various different notions that originated in Western thought, political theories and societies. This, he argues, is one of the clearest evidence showing the inability of the Sharī‘ah – as understood traditionally by the jurists – to offer answers and solutions for all aspects of our lives as none of these laws implemented in Iran have any presence in the Qurān and Sunnah. After these articles were published, Shabestari publicly challenged the jurisconsults of Qom to come and debate him on these pertinent matters. However, no jurisconsult accepted his offer, instead some sent forth some of their very well-known students to debate him, but this was seen as a sign of arrogance and conceit by Shabestari.
The details of Shabestari’s views are between pages 609 – 636, while the critique is between pages 637 to 683. The critiques are extensive and lengthy, the gist of a few of them will be summarized below:
- The author acknowledges that there are certain aspects and presumptions in Shabestari’s discussions which are far too extensive to cover in this book, namely his ideas on hermeneutics, language of religion and nature of revelation. In the critique, these presumptions made by Shabestari are generally taken for granted.
One of the most important questions that Shabestari does not address in his analysis is, what exactly is the nature of the presumptions themselves which are being made before approaching and investigating religion? Shabestari does not address this question anywhere and instead goes straight to analyzing the religion with these presumptions. It appears that there could be three possible sources for the presumptions Shabestari makes:
- a) The intellect, which will be used in the form of a deductive logical argumentation which will determine the limits of religion before we even approach and investigate religion and the religious sources.
As far as the intellect is concerned, there is really no logical argument which can be brought to show religion cannot be an expansive message which can be a part and parcel of every single aspect of our life, particularly in those matters where Shabestari argues otherwise.
- b) History, which shows how every generation interpreted and understood religion in their own way and in their own context, which by extension shows the limits of it as well. History shows that despite various readings and interpretations of the religion, what they all focus on is essentially propositions concerning Tawḥīd and living a monotheistic life.
If this source is independent from the religious sources, then there is nothing within it that proves any limits on religion itself, because the interpretation and reading of religion is not religion itself. In other words, history cannot even be used as evidence in this case, particularly when the discussion appears to be more so philosophical.
- c) Religious sources, which themselves show us how limited they are once we approach them and analyze them. For example, religious sources do not mention any rules regarding cars and driving laws, in which case it is correct that one ought not to refer to the sources to determine what they laws they have to legislate for driving cars. However, if the religious sources do tell us something about family law, then we cannot just presume that religion has nothing to do say about this topic for us today unless there is a very specific intellectual or scientific argument which prevents us from perceiving the law to be eternal or from implementing a certain law in an eternal manner.
The third possibility is reasonable; however one cannot use this source – which is a religious source to begin with – to say all of religious law is historical in its nature.
- The author critiques Shabestari by saying philosophical investigation is unable to prove that religion is confined and restricted to just spirituality and aspects that are beyond the intellect. The most Shabestari can argue for is that religious sources give a lot of attention to spirituality and a spiritual life, but this by no means proves that religion has nothing to say about particular legal matters, such that we take this as a principle and then begin reading and interpreting the religious tradition through this lens. The intellect merely being unable to perceive this role for religion does not negate its possibility.
Perhaps Shabestari can respond by saying that one of the arguments made for the necessity of religion is that humans “need” it. Shabestari could ask, what do humans really need and are looking for when it comes to religion? Since humans themselves can actually come up with laws to organize their livelihood and interactions, they are not really in need for religion for these matters, rather they are only in need for spirituality. In order to address this, there are two dimensions to consider:
- i) This “need” could be understood to be an individual need, in which case the role of religion will differ from one person to another. It is possible that some individuals may need religion then to resolve their spiritual issues, identity crises, mental and psychological issues, as it does tend to do in the modern day and age, but it is just as much possible that there are other individuals who are in “need” of determining rules and regulations on how to live life. In other words, individual need will vary significantly and differ from a person to another person. If this is what Shabestari truly means by citing the argument of “need of religion” then this is nothing but a mere expression of his own personal and individual needs and it cannot be generalized in any way whatsoever.
- ii) The “need” being referred to is a general societal need. If this is what Shabestari means and his claim is that society does not need religion to provide them with a system or code of conduct on how to live life, that humans can derive these themselves, then Shabestari has failed to offer any logical argument for this. In fact, we question Shabestari as to which society is he referring to? Today’s society, societies of the past, and how can one say with conviction that any of these societies can claim to resolve all of their problems on their own without ever feeling the “need” of some other assistance? Even today’s societies have not resolved many fundamental issues of human life, one can observe the greatest of philosophers still struggling to answer and offer solutions to various questions.
How does any of this prove that the religion of Islam therefore came just to address spirituality? Perhaps the most Shabestari can argue for is that this religion came to fulfill societal needs at a certain time for a certain society, but that it cannot fulfil those needs for todays society, however the spiritual needs can still be fulfilled.
As a matter of fact, we want to flip the argument back on Shabestari and ask him what is even the need for religion when it comes to spirituality? Why is it presumed impossible for modern man to develop a spiritual relationship with God, without the need of religion, especially if spirituality is seen as a personal experience?
- One of the arguments Shabestari makes is that there is no official reading and interpretation of religion. Shaykh Haider generally accepts the premise that there are various readings of religion and that the religious texts have the capacity to be understood and interpreted in various ways, but the mere possibility of it having the capacity of multiple interpretations does not say anything about which one of these interpretations is to be preferred. This is similar to saying that the door of ijtihād is open, but this does not mean every ijtihād that is done will be accurate, correct or preferred? If all of them are correct then why is Shabestari writing extensive works against the jurisprudential reading of religious sources?
Just because an ijtihād or an opinion is justified, does not necessarily make it correct or preferred amongst other opinions. Likewise, just because one makes the claim that readings of religion are all justified – hermeneutically – it does not mean all of them are automatically accurate or preferred.
- Shabestari argues that Islam was revealed onto a society that already had laws and conventions and it did not make any significant changes to it. The question we would ask Shabestari is whether it is a condition for a religion to come in a context which is void of any laws and customs? Do present human and democratic laws – which are often offered as an alternative by Shabestari – work this way?
Also, it is an exaggeration to say that Islam did not make any significant changes at all. On the contrary, there are many aspects of life where Islam made serious changes, such as prohibiting more than four wives, granting women certain rights in inheritance and ownership, prohibiting the burying of girls alive, various laws regarding slavery, bringing a new system of inheritance, institutionalizing certain penalties for adultery and fornication, obligating the alms-tax, actively working on altering the tribal lifestyle and many other significant changes. How can all of these be ignored and the claim be made that Islam only made some minor particular changes?
In this critique of Shabestari it does not concern us whether these laws are absolute and eternal, or whether they are applicable today or not, rather this is a response to the claim that Islam merely came with some minor changes to already existing laws to make them more just and it did not institutionalize and offer anything significantly life changing.
- A crucial dichotomy used by Shabestari is that of legal form and values. This dichotomy is valuable and of importance, but Shabestari does not offer any precise criteria by which we can differentiate between forms and values. For example, when the Qurān says to fulfill all contracts (5:1), is this a an eternal value or a legal injunction that can be changed?
What we find is that Shabestari focuses on three notions:
- i) Religion has nothing to do with technology, agriculture, manufacturing, natural sciences etc.
- ii) Life is in a state of flux, hence it is only natural that religion does not offer anything fixed for such a life.
iii) Phenomenological studies of religion have shown that the essence of religion is other than its accidental attributes. It is for this reason that things are added onto religion and then they disappear over the course of time, and it is for this reason that the Shar‘ī discussions in the Qurān and Sunnah are from its accidental attributes.
It is the second notion which is of concern to us, which is then followed by the third notion. Regarding the second notion, we would ask Shabestari is, what philosophical or ethical justification do we have for this constant change in every aspect of one’s life? Change in life does not necessarily mean this change is justified, and rather we must have a philosophical and ethical justification for any change that occurs. Perhaps these changes are such that result in the destruction of humans, are these changes enforced upon us such that human will has no role to play in it, or is it us ourselves who are bringing about this change? If it is the latter, then we have the right to ask whether these changes are in the benefit of humanity or not. Is the direction and change the West is moving towards a change and journey which is good and justified?
Shabestari does not offer any philosophical justification for why change – qua change – implies that it is justified. What establishes the probative and binding force of what is apparently observed in life and the changes that occur in the world? This seems to have been taken for granted by Shabestari and in fact it seems he has been influenced heavily by the global discourse regarding religion which places religion as a worldly phenomenon and not something sacred. In other words, the predominant global discourse around religion is very secular, but based on what criterion is this discourse and understanding of religion probative on Shabestari such that he takes it for granted?
What is strange is that Shabestari insists that there is no philosophical argument that is not open to critique, and has cast doubt on the most self-evident of axioms, but when it comes to his views he relies on numerous principles and axioms, he does not provide any systematic explanation or study of what grants his conclusions any logical, philosophical or ethical justification. He instead treats these presumptions as if they are eternal truths and realities that cannot be doubted. This is despite the fact that many of these presumptions are themselves open to debate and discussions amongst Western scholars and philosophers.
A number of other critiques are also offered till page 683. All in all, it appears that Shaykh Haider does seem to agree with some aspects of Shabestari’s conclusions, but the crux of his issue with Shabestari is that he makes wide generalizations regarding his conclusions and as well as offers no systematic criteria one can apply on the religious sources to discern the various dimensions of it as described by him.
The author discusses his views between pages 684 to 744. He believes both camps, those who accept the idea of the comprehensiveness of the Sharī‘ah and those who reject it, seem to have taken their positions for granted and have not offered any convincing arguments for their positions, except some allusions to the Qurān or the ḥadīth without an extensive study of these sources. This is what the author has done in the first chapter of the book and has extensively analyzed every possible argument.
Thereafter the author described, analyzed and offered observations on prominent proponents on each side and described how they reconcile the comprehensiveness or the lack of comprehensiveness with the world today.
Before addressing this topic, one has to cast a distinction between two approaches:
- i) Bottom-Top or the Inductive approach: This is when an individual goes through every single Qurānic verse and the ḥadīth to see what subjects and topics they have spoken about. This approach can theoretically be done even by a non-Muslim, as it is merely an induction. When we use this approach we genuinely realize that there are many subjects and topics that the religious sources have not mentioned specifically, nor addressed them directly. For example, while camels and horses have been spoken about in the context of transportation, there is nothing about cars and planes in the Qurān or ḥadīth. In this case, the jurists will usually rely on some general procedural principles or rely on certain linguistic principles such as iṭlāq and ‘umūm.
- ii) Top-Bottom or an Ideological approach: This is when an individual concludes on the matter using some argument, be it philosophical, rational, transmitted, etc. This was addressed in the first chapter and it was seen that no argument proves the comprehensiveness of the Sharī‘ah to such an extent that we would not be in need of some other legislative authority and source.
What we find in the Qurān and Sunnah is that we have texts that cover a very decent aspect of human life, in extensive detail, in addition to texts that relay various general principles that can be employed and used on a day to day basis. When we encounter a situation where the texts have not given us anything specific, we refer back to these general principles – which we have plenty of – and use them as a basis to legislate a law that is in accordance with this principle. This process relies on the religious principles from one perspective and the human intellect from another perspective. The law that is legislated cannot be attributed to Allah (swt) nor to religion directly, but it has been sanctioned by religion; this is neither a primary ruling of Islam neither a secondary ruling, rather this is a legislation based off of human experience and the intellect. In order to carry this process out, there are four steps:
1) Extensive understanding of the principles of religion, legal principles, ethical principles, and the limits. This is because these will form the framework under which ijtihād in these matters, for which there is no religious text, and in essence this is will be a Maqāṣid-based ijtihad.
2) A study of the reality on the ground regarding the subject-matter for which a law is going to be legislated. This will require human expertise from relevant fields.
3) Brainstorming the legislation of law which will potentially resolve a problem or present a duty for an individual or society.
4) Going through the process of ijtihād in arriving at the best possible legislation that is in accordance or closest to the general religious principles, the objectives of the religion and also not in contradiction with any of the other extensive and elaborate laws that are derived from the religious texts.
This process will lead to a legislation of a law which is a product of human contemplation and efforts, within the principles of religion, seeking to address an issue or convey a specific duty that an individual or society has to abide by.
The author claims that this process is practically already being implemented and that Imāmī Shī‘ī law has already arrived at this stage under the context of the Islamic government of Iran, but the scholars and lawmakers generally are not very explicit and blunt in acknowledging this. In other words, they are not explicit in saying that a certain set of legislations are not to be deemed religious in the sense that they can be attributed to Islam or Allah (swt), rather they are human endeavors within the general guidelines provided by religion.
In fact, the author says that Sunnī law seems to have arrived at this recognition much earlier in history when they realized the absence of religious texts for various aspects of human life, and therefore resorted to qiyās (analogical reasoning and conjecture). Qiyās is nothing but a human speculative effort of legislating laws for new circumstances within a certain religious framework. Of course the Ahl al-Sunnah also have been hesitant to acknowledge that these speculative laws should not be attributed to Allah (swt), rather they argued for the probativity of qiyās.
Furthermore, what the Shī‘ī scholars later came to describe as political rules (al-aḥkām al-wilāy’ī) being uttered by the Prophet (p) or the Imams (a), is most likely nothing more than the infallibles using their authority to legislate a law in a situation where religion had nothing specific and particular to offer. This theological understanding can also help us understand many narrations in which the Imams (a) may respond by saying, “I think you should do such and such.” Perhaps the narrations which apparently signify that the Prophet (p) and Imams (a) had al-wilāyah al-tashrī‘īyyah (legislative authority) can be understood through this lens.
Salient Features of the Author’s Theory
The author explains the differences of his theory in contrast to other scholars who also reject the comprehensiveness of the Sharī‘ah:
- It is very clear that other proponents seem to cast away the religious texts even in places where these texts have most certainly interfered with human life – individual or societal. This is because they have deemed jurisprudence on its own as an accidental attribute of religion; whereas the author maintains the authoritative position of religious texts in matters where it has interfered, and the authority of the religious texts alongside human intellect and experience in places where the texts do not offer any clear legislation. The conclusion of the latter will be a law that cannot be deemed religious, meaning it cannot be attributed to Allah (swt), rather it is a product of human effort. The author believes his view protects the sacredness of Islam and its religious textual sources, contrary to what other proponents believe.
- Other proponents conclude based on external sources – such as relying on some rational arguments – that religion is limited and restricted, before arriving at the religious sources themselves. Whereas the author does not approach the religion with such a presumption and rather allows for the religious sources themselves to elaborate on their limits.
- The historicism championed by other proponents is a very different type of historicism that the author leans towards. For the author, conducting ijtihād within the religious texts itself will lead you to the conclusion of whether a certain law is contextual to a certain time and place or not. In other words, simply because one believes the Sharī‘ah is not comprehensive, it does not mean that whatever laws that do exist within the Sharī‘ah are necessarily inapplicable eternally. There is no relationship between these two concepts, rather the latter is an ijtihād one has to do within the religious texts itself.
The author then explains the various aspects of ijtihād that his theory will impact, such as in Maqāṣid based ijtihād, the application of procedural principles (takhyīr, istiṣḥāb, iḥtiyāṭ, and barā’at), the principle of necessity (mulāzamah) between the intellect and legislation, the impact on using the silence and tacit approval of the Prophet (p) or Imams (a) as evidence for a law, who has the right to legislate these laws and so on.
One of the last important discussions the author does is what makes these human legislated laws mandatory to be obeyed, especially if they are not to be considered as part of the Sharī‘ah. The author discusses a few theories on this matter and concludes that what makes these laws mandatory to be followed are the religious arguments granting authority to rulers – the Uli al-Amr as described in the Qurān. However, if for a certain individual it becomes manifest that a certain legislated law is against the Sharī‘ah and principles of the religion, then that specific law will not be necessary upon them to follow – except based on some secondary reasons such as the fact that their disobedience may cause a degree of chaos in society, or weaken the overall system of governance.
The author concludes this specific chapter with the following summary – partially translated:
- The Sharī‘ah contains a lot of rules and regulations for a large aspect of our lives. These are legal injunctions, ethical principles, rules regarding crime and punishments and so on.
- The Sharī‘ah does not cover or address every aspect of our life until the day of judgement, rather after having provided principles to abide by, it has left and even encouraged humans to make use of their intellects and collective experience to legislate laws for matters that the religion has not addressed. These laws are to remain within the boundaries and principles of the Sharī‘ah and should meet the overarching objectives.
- The process of legislation is not easy and rather it must follow a series of steps – aforementioned – and then checked with whether they are in line with the principles of religion or not.
- The primary rulings are still fundamental and prior to any human legislate laws, just as how secondary laws are prior to the implementation of primary laws. In other words, if a certain human legislated law is in conflict with a primary ruling that is applicable at a certain time and place, the primary ruling is to be implemented and the human legislated law is to be discarded.
- A secondary ruling has to come into play to remove one’s duty in accordance to a primary ruling or a procedural principle, and once it is removed from the latter, the actual practical law is a product of human endeavor within the boundaries of the Sharī‘ah and ethical principles.
- When there is conflict and contradiction between two lawmakers in such a situation, one of the main elements by which one lawmaker’s legislation will be preferred over another’s is by determining which law is closer to the objectives of the religion, be it legal or ethical.
- These legislations are considered political rules, not primary or secondary Islamic rules of the Sharī‘ah.
- What differentiates these legislations from civil laws that are legislated under secular governments is that the recourse principles for the former are injunctions, principles, ethical values which are derived from religious texts, and as well as the preference of primary and secondary Islamic laws over human legislation.
- The justification for why people must obey these human legislations are the religious evidence that prove that one must obey those who have authority of the affairs (wilāyah al-amr) in any given society.
- This theory has a significant impact on the process of ijtihād as a whole and in particular discussions concerning qiyās, al-maṣāliḥ al-mursalah, procedural principles, the principle of mulāzamah, the notion of tacit approval of the Prophet (p) or Imams (a) etc.