- Haidar Hobballah()
I would like to initially express my earnest gratitude to the al-Mahdi Institute for putting together this much needed conference and for inviting several independent scholars and researchers to participate and share their thoughts on this topic.
Freedom of intellectual expression has become a prominent topic in the modern era. It’s a topic which is examined within religious discourse and tackled by jurists under the heading of ‘books of misguidance’ or kutub al-ḍalāl. My focus will only be on the views presented within the Islamic world. An examination of the jurisprudential literature, with its different schools, will lead us to the following three observations:
The 1st Observation:
The first observation pertains to the concept of misguidance and how to define it, this is very important because not every error represents is an instance of misguidance fitting the mawdu’ al-hukm here which requires subsequent action like confronting it, banning its publication, and the removal of freedoms. This is what the jurists themselves say here. Not every ijtihadi error is such that it is necessary to prevent it from being spread
The concept of misguidance is extremely ambiguous, but was frequently utilised as a means of character assassination. Apart from a few agreed examples, the concept lacked a clear and precise meaning by which to settle various disputed cases. So were books of blasphemy and books of other religions the only examples of books of misguidance, or do books of certain Islamic sects also constitute misguidance? What about works that oppose a particular truth? If so, which truth is relevant? Is it all truths within a religion or a specific doctrine? Some jurists even considered books that are true, as books of misguidance given that they often led people to misguidance, such as the works written by mystics.
What is further unclear is how to differentiate between one’s right to ijtihād and creativity in religious thought, and the concept of misguidance and innovation.
All this means, is that the subject-matter of this ruling – namely mawdu’ al-hukm – in this topic appears to be unclear. In my opinion, one of the reasons for the lack of consistency in the application of this subject-matter and the emergence of subjective criteria is due to imprecise definitions for this concept – the concept of misguidance. This gives the political or religious authorities the opportunity to aggressively suppress those who oppose them, which then leads to suppressing freedom, stagnating creativity, and partially closing the door of ijtihād.
In fact, this is one of the reasons why ijtihad in theology, or historical matters related to theology can be actively prevented. Since issues of theology are usually considered landmarks of religious and sectarian identity, any attempt to critique these features poses a real threat to identity for the ruling authorities, politically, socially and religiously. It is here that notions of misguidance and innovation are weaponized to confront intellectual and cultural minorities.
Here we can also make a quick comparison between the topic of what exactly is the “Criteria of Islam and disbelief”, and the “Criteria of guidance and misguidance,” or even the “Criteria of Tashayyu‘ and Tasannun.” The criteria of Islam and disbelief was subject to rigorous investigation in Islamic jurisprudence, especially in two places: the Kitab al-Taharah (Book of Purity) and Kitab al-Hudud (Book of Prescribed Punishments), particularly in the topic of apostasy. The jurists presented numerous arguments for their views, but in stark contrast, similar argumentation is rarely found when we try to determine the definitions of Tashayyu‘ and Tasannun or the concepts of guidance and misguidance. For example, how do we know that denying infallibility represents a departure from Shi’ism? What evidence exists for such a claim which entails that the denier is deprived of the characteristics and privileges that Shi’i jurisprudence generally grants to the Shi‘a.
Note, that we are not speaking of Shiism or Islam as a historical or social phenomenon, because I’m not a historian or a sociologist, but rather I’m speaking of it as a religious truth as expounded by the Prophet (p) and his family (a). Besides some recent discussions that have appeared in the last few decades, where can one find more extensive research on this topic in the classical books of Fiqh?
In our topic of discussion, the most difficult thing to determine is the definition of misguidance or the one who is lost, because it is by this definition, that we can affirm that what they say represents misguidance, or what they write is classified as a work of misguidance. Where did the jurists discuss this definition?
Also, another important thing to note here is that delegating the ability to determine the instances of misguidance to the religious or political authority carries a high risk and is a potential threat to freedoms and rights. In fact, we have the right to ask the authorities: What are the criteria for determining the instances of misguidance? What is the justification for choosing any particular standard? We return once again to the same point, which is the lack of a clear standard for dealing with sensitive cases of this kind.
Here, I must refer to another important matter, which is that many jurists, acknowledge that identifying external instances of a subject-matter – meaning tashkis al-mawdu’ – is not part of the responsibility of a jurist as a jurist – unlike deducing the actual subject matter itself – and in fact, their identification is not binding on others to begin with. Though they acknowledge this themselves, they continue to practice the process of identifying instances within their ijtihad, which results in the issuing of a fatwa that contains an element over which a jurist had no authority.
So just to give a hypothetical example, they may determine that tea leaves are eaten and so it is impermissible to prostrate on it. However, when there is no textual evidence from the Quran or Sunnah regarding tea leaves, a jurist should simply say that a person has to prostrate on something that is not eaten, rather than identify whether tea leaves can be prostrated on or not. There are many real examples of this throughout the books of Fiqh.
In my opinion, the same error has occurred in our discussion. You will find that the jurists have taken their general conceptions of guidance, or misguidance, and applied them to certain ideas in accordance with their own personal opinions, despite the religious texts not identifying these ideas as misguidance, as being instances of mawdu’ al-hukm in these cases. Further, there is generally nothing in the Quran and Sunnah which says those who hold some of these ideas are to be deprived of their freedom of expression.
When the religious texts indicate – for you – that the Ahl al-Bayt possess Wilayah Takwiniyyah, or that the companions were absolutely just, this does not mean that one who denies any of these two ideas should be deprived of the freedom and the right to present their own ijtihad, because they do not believe these texts indicate these ideas. A text that affirms an idea based on one’s ijtihad, does not necessarily say anything about the attitude one should have towards those who deny that very same idea as a result of mistaken ijtihad.
The 2nd Observation:
This observation pertains to the Quran and how it has been used in this discussion. It is clear that the Qur’an does not speak directly about this issue of kutub al-dalal. Rather it refers to generic concepts, such as the prohibition of misguiding people or the prohibition of aiding others in sin. However, the jurists have attempted to apply these generic concepts to specific instances and because of this, much confusion and errors have been made.
Here, once again, the jurist supposes that every ijtihad he is not familiar with or finds strange, whether it be in jurisprudence, theology, history, or elsewhere, necessarily implies that it is misleading others without knowledge, which is an idea mentioned in the Quran in surat Loqman, verse 6 and elsewhere ومن الناس من يشتري لهو الحديث ليضل عن سبيل الله بغير علم
However, if the concept of misleading others without knowledge were to be applied to every ijtihadi error, the door of ijtihad would have to be closed in jurisprudence itself! Rather, the concept of “strange or unfamiliar jurisprudence” is itself ambiguous and misleading. Others may differ with respect to the correct methodology in ijtihad itself, and in this case, it is only natural that the results of one methodology are going to look strange or unfamiliar to the proponents of another methodology. This means that if we make the criteria for guidance “familiarity with ijtihad” meaning to use the established methods of ijtihad that they approve of, then this appears to ultimately close the door of doing ijtihad in determining what exactly is the correct methodology, which is extremely problematic.
Just like a jurist imagines that opening the door for alternative forms of thinking is tantamount to aiding in sin (al-ta’awun ‘ala al-ithm), it may nevertheless, from another perspective, be tantamount to aiding in piety (taqwa). This is due to two reasons: firstly, because it aids a mujtahid or a specialist by granting them the right to think, and secondly, it develops and deepens religious studies by expanding ideas and horizons – and both of these reasons are from the Maqasid or the objectives of the Shari’ah.
What I just mentioned dealt with the Quranic evidence that has been used to tackle the subject of kutub al-dalal. However, when looking at the Sunnah, what is quite shocking is that no textual evidence, besides around four traditions, three of which are weak. Even most of these existing traditions do not support the idea of suppressing individual freedom. In fact, when we look at the hadiths and historical sources, we find a contrary notion where the Prophet or the Imams did not confront those with opposing views by suppressing their freedom to express it. I have brought several reports regarding this in my paper.
Based on my humble opinion on the lack of binding force of a speculative solitary report, or ‘adam al-hujjiyyah khabar al-wahid al-zanni in religious rulings, and more specifically in critical matters, relying only on three or four narrations to justify the confiscation of freedoms and suppressing other opinions, is unsound.
My final Observation:
Rational proofs have been some of the main arguments used by jurists when dealing with the topic of kutub al-dalal. These arguments were then employed contextually to help deal with deviant thought. There is no religious command found in the scriptural sources that specifies a particular method of how to tackle falsehood. This gives us the space to come to a reasonable solution that does not necessarily result in taking away intellectual freedoms.
A comprehensive reading on this subject concludes that while the law gives importance to protecting religious values, it has not prescribed for us specific measures that we can use in countering devious thought. This entails that we have been left free to employ measures that are moral and rational and in accordance with the changes of time and place.
And if previous jurists have adopted a path of confrontation, based on the culture and the circumstances of their time, this doesn’t mean that the path they took represents a basis that transcends time and place. On the contrary, it invites us today to think about the best ways to achieve the higher objectives of the religion, which is to provide the highest percentage of people with the message of religion, and to achieve their true and realistic adherence to these religious values.
As long as we continue to think that the criteria of religiosity for a society rests in how much it appears religious in its outward appearance, it means that we have not understood the original message of the religion, which is that it came to reform hearts, change the minds, and purify the souls in a way that automatically reflects goodness in form, appearance, rituals, customs and norms.
As such, forcing this apparent outward nature of religion onto people as a prerequisite to reform their souls, in today’s day and age, sometimes results in the opposite of what was intended. The best evidence for the validity of this claim is the experiences of people in some Islamic countries.
On a final note: One of the most dangerous things facing Islamic thought and advocacy today is the reaction of those working in Islamic studies, who compensate for their intellectual failures by suppressing and cancelling others or issuing religious verdicts against others.
Yes, freedoms are not absolute, nor do we desire such a thing, but in the name of not granting absolute freedom, it is not permissible for us to limit freedoms to an unjustified amount.
We ask Allah to grant success and guidance to all those working in the Islamic field.
. lecture given at the conference “Free Speech, Scholarly Critique, and the Limits of Expression in Islam”, which was held by Al-Mahdi Institute, in Birmingham UK, 1st – 2nd July 2021.