While undertaking any business activity, it is unthinkable to avoid ethical issues. Ethics deal with the question of right and wrong. Human beings have confronted, and found solutions to, ethical question by restoring to tradition, philosophy, and religion.
Religious solutions to ethical problems have been most widely used (or misused). Religion, whether it is followed or ignored, tends to remain even today an extremely profound influence on human behavior.
Islam is the most practiced religion of the contemporary world. With a population of nearly a billion people, it has the second largest following in the world after Christianity. For the Muslim, the message of Islam in the ultimate truth from God Almighty. Understanding ethical teachings of Islam, therefore, assumes an important position in his life.
However, since considerable disagreement exists with regard to the sources and nature of Islamic teachings, a discussion to clarify some important aspects of these teachings seems a reasonable starting point for a course on Islamic Ethics in Business 1.
2.2 Sources of Knowledge is Islam
The world has experienced tremendous changes since, according to Islamic belief, the last of the Divine Revelations ceased to enlighten human beings directly any more through Prophet Muhammad, may Allah’s blessings be on him, about fourteen hundred years ago. It has never been disputed by Muslims, however, that in the Divine Scheme the revelation was meant not for the benefit of the immediate addressees alone: Qur’an itself makes it unmistakably clear that its message is meant to be followed for all time to come 2.
The only right way of living in changing circumstances for the Muslim according to the Divine Scheme is to live in accordance with the guidance of the original sources of the Divine Knowledge. It is important, therefore, that the identity and nature of these sources should be clarified.
The only sources that form the foundation of all Islamic knowledge are the Book of Allah and His messenger’s practical example, referred to as Qur’an and Sunnah respectively in Islamic literature. The following verse from Qur’an is an irrefutable verdict in support of the conclusion drawn above: “O believers, obey Allah and obey the messenger and those of you in authority: and if you have a dispute concerning any matter, refer it to Allah and the messenger if you are believers in Allah and the Last Day” (Qur’an, 4:59). This verse, while on the one hand it impresses upon Muslims the necessity of obeying the leaders of their political systems (those who are in authority), it concedes, on the other, the possibility of a difference of opinion between the subjects and the rulers, in which case it can be concluded from what has been suggested in the verse that a committee of able men should settle the dispute on the basis of what is said in Qur’an and sunnah (refer it to Allah and the messenger). It obviously means that all sources other than these two are challengeable in Islam
Sunnah of the prophet also clarifies that it is unacceptable to confer the status of original sources of Islamic law to any source other than the Divine Revelation transmitted on the authority of the rightly guided prophets of Allah. It is reported that when Qur’an accused the children of Israel in these words, “They consider their rabbis and monks to be their gods apart from Allah …” (9:31), ‘Adi bin Hatim, who had converted to Islam after being a Christian, asked the prophet about the reason Qur’an made that allegation. The prophet, may Allah be pleased with him, replied by asking this question: “Was it not a fact that those rabbis and monks used to dictate [to the people] what was lawful and what was not?” He replied in the affirmative. The prophet said that that was tantamount to making them gods. Guided by the clarification given by the prophet, anyone who assumes the role of the original source of Islamic law is pretending to be a god and those who confer that status to him are making him one (Mawdudi 1982, 505)
We may, therefore, conclude that Qur’an and sunnah are the only two original bases of Divine Knowledge in Islam. This view is held by many scholars – old as well as new – like, for instance, Imam Shafi’i 3, Ibn Taymiyyah, 4Abul ‘Ala Mawdudi, 5 Amin Ahsan Islahi 6 and Javed Ahmed Ghamidi. 7
Qur’an is, beyond doubt, the primary source of Divine Knowledge for Muslims. It is the very Word of God that was revealed to the prophet Muhammad, may Allah be pleased with him, through angel Gabriel (Qur’an, 26: 193-4). The entire Book was vowed to be preserved by God himself (Qur’an, 15-9). It means that not just the words, but the entire sequence of arrangement of the verses (ayat) and the chapters (suwar) has been guaranteed to be protected from corruption. A few important conclusions can be drawn from that.
First, if any other source of knowledge, whether religious or secular, contradicts Qur’an, it is the verdict of Qur’an that Muslims are required to hold supreme. Second, not just the words but the context of the verses within the arrangement of the Book is also crucial to the understanding of Qur’an. This principle, as we shall see, holds the key to the proper understanding of some verses relevant to the economic concepts of Islam.8 Third, no source external to Qur’an can be allowed to unnecessarily insert a context into a verse that is not consistent with the message of Qur’an as can be understood from the text itself. The words and the arrangement of the text should take precedence over all non-Qur’anic sources in seeking the purpose of revelation of any part of Qur’an.9
As mentioned earlier, Sunnah of the prophet is the second of the two original sources of Divine Knowledge of Islam. Unlike Qur’an, however, the identity, scope and authenticity of sunnah are not unanimously undisputed.
According to a popular definition, sunnah means sayings, actions, and silent approval of the prophet on an act done in his presence (Chachi, op. Cit., 10). The definition, however, is inadequate. First, because there were many things said and done by the prophet which had no direct religious relevance. His personal taste for some types of food, for example, cannot be claimed to carry any religious message. For instance, the prophet is reported to have said about the flesh of dabb (a form of lizard) that “it is permissible but not one of my foods” (Muslim 1981, Vol. 5, 203 and Malik 1987, 687-88). Second, because Qur’an itself provides undeniable testimony to the fact that the prophet, on some occasions, behaved in a way that, despite best intentions, was not approved by God Almighty.10
Third, because some of the narration of the prophet also clarify that he did not expect to be a guide in all aspects of human life whatsoever. On a certain occasion, for instance, when his passing remark about the practice of pollination the date trees was misunderstood by some of his companions to mean a binding religious instruction, the prophet clarified thus: “it was just a [personal] opinion. If you fine [my personal opinions] useful, follow them, [otherwise don’t], for, I am only a mortal like you, and opinions can be both right and wrong. However, when I tell you that that’s how Allah has said [follow it], for I don’t misreport anything from Allah” (Ibn Majah, n.d., Vol. 2, 825).11
The definition of sunnah should, therefore, include only those actions and statements of the prophet which by their very nature suggest that they are a part of the Divine Scheme of guidance for human beings.12 Moreover, as will be discussed later, sunnah, despite being an independent source, should contain nothing that contradicts the letter or the spirit of Qur’an. If any aspect of the claimed sunnah does so, it cannot be accepted as authentic. Islahi’s definition of sunnah appears to come very close to meeting all these conditions. He defines it thus: “[Sunnah is] that way which he [the prophet] taught people verbally as well as practically, in his capacity as a mu’allim13 of shari’ah and a perfect example, so that people may properly follow [religious] injunctions and rituals and be able to lead a life in the mould Allah would like to see them in” (Islahi, Amin A. 1989, 24).
Some aspects of the reported life of the prophet claimed to be sunnah may not include acceptable material because, as explained earlier, they may not be relevant to the Divine Scheme of guidance or, as we shall see later, may have come down to us through a suspect source of information.
The question of authenticity of sunnah brings us to the question of hadith. Many writers regard sunnah and hadith as synonymous expressions.14 in actual fact they are not. The term hadith refers to those aspects of the life of the prophet which have been reported by the compilers of hadith in one of the several books of hadith on the authority of narrators who normally form an unbroken chain from the person reporting form the prophet to the compiler of the relevant book of narrators. Sunnah includes some or many of ahadith (plural of hadith) but definitely not all of them. Some of the ahadith have been rejected because they fall short of satisfying one or more of the conditions they are expected to fulfil.15 Others cannot be accommodated within the scope of sunnah because, as mentioned earlier, they are not relevant to the real question of religious guidance.
Of the many books of hadith six are considered to contain more authentic narration and hence they are together referred to as Sihah Sitta (the six authentic). Scholars do not agree on all the six books belonging to this select category: Some would prefer to include one book in the list of the authentic six, while others would prefer another. There is, however, hardly any dispute over the fact that the two most authentic books are the Sahih compiled by Bukhari (810-870) and the Sahih compile by Muslim (817-875). Notwithstanding the exaggerated status granted to them of being unchallengeable by some,16 the fact is that they are the results of human efforts and despite the undeniable dedication of their illustrious compilers, they can neither be considered, nor are they actually, free from errors.
There is one category of sunnah, however, that has been transmitted through as authentic a source of Qur’an and is, therefore, beyond dispute. That is the sunnah which has been transmitted to us through an unbroken chain of continued practice passed on from one generation to another, referred to as sunnah mutawatirah.17 The formal prayer (salat) is the most obvious example. The prophet, may Allah be pleased with him, regularly prayed in the company of his companions five times a day, at least in the last ten years of his life. That practice continued uninterrupted after his death. Thus the practice was passed on to the next generation and the process has continued unbroken to date. The annual pilgrimage (hajj) and fasting in the month of Ramadan are other examples of the same category of sunnah.
2.2.3 Relationship Between Qur’an and Sunnah
Qur’an itself states that it is one of the important obligations of the prophet to clarify the meanings of the Book for the people. Qur’an says: “We have sent to you this reminder so that you may explain distinctly to men what was sent down to them …” (Qur’an, 16:44). The Arabic word used for this is ‘tabyin’ which means to clarify.18 Al-Shatibi (d. 790 H./1388) has rightly pointed out that the status of sunnah is only secondary to Qur’an and that whatever is mentioned in sunnah concerning the verses of Qur’an is the explanation and clarification of the Book and cannot overrule its contents; sunnah is, therefore, secondary to the text it seeks to clarify. He has also quoted the well known dialogue between Ibn Jabal and the prophet, peace be upon him, to emphasise the same point. When Mu’adh was asked by the prophet about the basis on which he would decide as a Muslim ruler, Mu’adh replied: “On the basis of the Book of Allah.” When asked what if he finds no relevant solution from there? He replied: [Then I will decide] on the basis of sunnah of the prophet of Allah.” When asked what if still he finds no solution? He replied: “I will use my opinion.” The approval of the prophet on the responses of Mu’adh to his questions again shows that in Islam the verdicts of Qur’an take precedence of all other (Al-Shatibi n.d., Vol. 4, 7). Ahmad Bin Hanbal (d. 241 H./855), the famous narrator of hadith, is reported to have said that sunnah cannot assume the role of dictating meanings of Qur’an. It can only clarify what Qur’an has mentioned. It is only Qur’an which can abrogate its own verses. Sunnah cannot do so. If it apparently does, it cannot be deemed acceptable.19 In fact, it has been rightly pointed out that all the earlier recognized scholars of Islam agreed that the original source that dominates all others is Qur’an; sunnah of the prophet is the second source.20 From the point of view of its relationship with Qur’an, sunnah can fall into two categories: that which explains the meanings of Qur’an and that which gives guidance not mentioned in Qur’an. While the former cannot go against Qur’an, the latter category is independent and should be followed by Muslims as required by Qur’an in, apart from others, the following verse: “Accept what the messenger gives, and refrain from what he forbids; and fear Allah, for Allah is strict in punishment” (Qur’an, 59:7).21
2.2.4 The Alleged Original Sources
There are at least three more famous alleged sources for seeking Islamic knowledge considered by some Muslims to be no less original. These are Ijma’ i.e. consensus of opinion among the scholars, Qiyas i.e. drawing analogies with similar cases already decided by Qur’an and sunnah, and the decrees of the imams of the shi’ah sect.
Those who hold the view that ijma’, the consensus of opinion among Muslim scholars on a religious issue, is an incontestable source of religious guidance22 have a weak case to defend. There is, first, hardly any consensus on the exact meaning of ijma’. For if it means “a consensus of the opinion of the doctors of law” (Khan, M.A., op. Cit., 3), most claims of ijma’ can scarcely be justified in the fourteen centuries of the Muslim history. Until recently there has been no period when such agreements could practically be achievable if only for lack of communication facilities. That is perhaps why some other scholars have confined the scope of ijma’ to agreement amongst the companions of the prophet alone. Zahiris (a group of jurists amongst the earlier Muslims) did not accept any ijma’ except that of the companions of the prophet (Schacht 1982, 64). They believed that ijma’ after the period of the companions was not possible. The same opinion is held by some companions of Ahmad bin Hanbal and Shaf’i, two of the top four jurists of the early day Muslims (Hisballah 1987, 96). An ijma’ of the companions of the prophet again cannot be proved in respect of many issues since all attempts for the purpose would fail to bring forth statements of positive endorsement for the particular issue under discussion from all the companions. According to Ibn Hazm (d. 456/ 1064), ijma’ took place in those areas only where all the companions of the prophet acknowledged their unequivocal approval. For instance, we are convinced that they all undoubtedly prayed with the prophet five prayers in all, the details of which are unquestionably agreed to by all Muslims. Likewise, in the case of fasting in Ramadan as well as all other injunctions which have reached us without any doubt. 23 If someone claims that ijma’ is anything other than that, he should present the justification for his claim (Ibn Hazm n.d., Vol. 1, 54). At best it can be said that on some issues of Islamic shari’ah a large number of scholars seem to be in agreement.In such cases, those responsible for deciding about verdicts of Islamic shari’ah in a certain period should be asked not to ignore such opinions. However, there is no harm in disagreeing with the opinion of the majority of scholars, provided that the researcher himself is convinced that his opinion enjoys stronger support in the original sources. Mawdudi has rightly clarified that in Islam no group of scholars has been given a status which demands unquestioned acquiescence from believers of all periods and places (Mawadudi 1992, 189).
220.127.116.11 Qiyas and Ijtihad
Qiyas means the process of drawing analogies by referring to a specific decree in Qur’an or sunnah to derive a religious verdict on a contemporary problem of a similar nature.24 It is surprising that some people consider it to be a source of knowledge of Islam.25 Far from that, it is only a process undertaken by a religious scholar to find the true verdict of the shari’ah about various contemporary problems. In other words, it is only a tool applied to benefit from the guidance of the original sources and not – unlike Qur’an and sunnah – the original source itself; it is only like an apparatus to handle information properly and not the information itself. Ijtihad refers to the efforts undertaken by a scholar or a group of them to find out the Divine Will with regard to a certain matter by applying the knowledge of Qur’an and sunnah. Ahmad (Z.) has described ijtihad as a jurist’s use of his reasoning to find solutions to new problems not explicitly covered in Qur’an and sunnah keeping in full view the intent and spirit of Islam (Ahmad Z. 1991, 99). Chachi’s view that qiyas is just one way of doing ijtihad is, in fact, commonly accepted by shari’ah scholars.
18.104.22.168 The Imams
The shi’ah sect disagrees with mainstream Muslims primarily on the question of the status of their imams, although within themselves the shi’ahs have many sub-sects, each disagreeing with the other either on the question whether the status of imam is held by one or another of the claimed candidates or on the question of exact number of imams.27 Apart from other arguments,28 the shi’ah scholars present the same verse of Qur’an which we have quoted in section 2.2 i.e. verse 4: 59, to substantiate their claim, asserting that Qur’an itself enjoins upon the believers to obey apart from Allah and His messenger, those in authority. They insist that the original words ulul amri minkum (those in authority amongst you) refer to the imams who have been appointed by Allah Himself through His messenger and that they must necessarily belong directly to the masculine chain of descendants from the progeny of Ali and Fatimah, the son-in-law and the daughter respectively of the messenger, may Allah be pleased with them.29 Even if the claim of the Divine appointment of the imams is conceded for the sake of argument, a careful look at the verse presented to support the claim clearly reveals that nobody apart from Allah and His messenger can lay claims on wielding absolute authority over Muslims. The words “and if you have a dispute concerning any matter, refer it to Allah and the messenger” clearly show that the verdicts of ulul amri minkum, whoever they are, can be disputed. The claim that the imams hold a place of independent source of knowledge in Islam, therefore, is contrary to the clear guidance of Qur’an.30
2.3 Juristic Differences
The Qur’anic text, although it is the Word of God protected from corruption and human interference, is expressed in human language which is the Arabic used at the time of revelation of Qur’an by the Arabs (Qur’an, 19:97 and 44:58). Despite its miraculous clarity (Qur’an, 26:195), its message could be, and has been, misunderstood by readers despite, on many occasions, their good intentions because of their human limitations. There was an indisputable solution to the problem of interpretation of Qur’an in the person of the prophet, so long as he was alive. He clarified all misunderstandings about the message of Quran and sunnah and gave unquestionable verdicts on disputes arising in that connection. Indeed, as mentioned earlier,31 it was an important part of his prophetic obligation to clarify the message of Qur’an. With is demise, that important privilege was lost to Muslims. Ever sine, Muslim scholars have been unable to agree on many, if not most, of the important issues of Islamic jurisprudence. These differences are neither surprising nor regrettable. In the absence of a general agreement, however, it is vital to decide clearly how to deal with them individually as well as collectively. But before that, a word about the significance of these differences.
2.3.1 Significance of Juristic Differences
Anyone familiar with the work done on Islamic shari’ah in the last fourteen hundred years will not hesitate to agree that juristic differences amongst Muslims scholars are a general rule rather than an exception.
The four famous schools of Islamic jurisprudence are named after the illustrious jurists who were the originators of their respective schools of thought. Although they all acknowledge that Qur’an is the first source Islamic shari’ah followed by sunnah of the prophet, there are still considerable differences in the principles they have derived from these original sources. Amongst these schools, Hanafis rely mainly on analogy (qiyas) and social utility (istihsan). To Malikis, an authentic hadith from the prophet’s companions is more reliable than qiyas. Moreover, to them of all the reports about the practice of the prophet, the more reliable are those which are in compliance with the customs and traditions of the inhabitants of Madinah, the prophet’s city. Shafi’is acknowledge the superiority of ijma’ over a hadith transmitted by only one person or not confirmed by several narrators. The Hanbalis’ approach is not very different from Shafi’is except that in their view authentic hadith is superior to qiyas, ijma’, or the prophet’s companion’s own interpretation.32Moreover, a part of the differences among these schools of jurisprudence are attributable to the fact that they represent attempts to interpret shari’ah under different set of circumstances.
The reason why the number of juristic scholars is not larger than it could be can only be attributed to the tendency of unquestioned acquiescence to a certain school of thought (taqlid) among a large number of latter-day scholars. Sine ijtihad began to be considered a prerogative of the earlier scholars, many of the later doctors of Islamic law faithfully confined themselves to the task of applying the principles of their predecessors to contemporary issues. A few exceptions apart, the process has continued until now. Nevertheless, the differences in the first two centuries of the Muslim calendar had already assumed such proportions that it can rightfully be claimed that hardly any important area of Islamic law has remained unaffected.
2.3.2 Solution at the Individual Level
An individual is bound to confront difficulties in choosing one point of view from amongst a number of those available, in his attempt to follow Qur’an and sunnah. How can he achieve that objective, given the differences on various issues?
There can be no one answer for all people. For religious scholars who have the ability to understand the original sources properly, the only way to follow shari’ah is to follow it in accordance with their own understanding of it. Those who do not possess that ability but can still appreciate the relative strengths of the contesting arguments, the opinion appearing to be the most convincing should be the one they should follow, even though that might result in accepting verdicts of different scholars on different matters. Scholars too will have to adopt this strategy in the areas they have not researched as yet. If there are individuals who are unable to find out clearly the most strongly supported case, they may then accept the opinion of the scholar who enjoys their confidence more because of his good character and sound knowledge (Zaheer 1992, 22-3).
Taqlid, despite being the predominant way of deciding about a religious verdict amongst a large number of the present-day Muslims, cannot be justified from the teachings of Quran and sunnah. First, because it implies that those following this approach have taken a decision not to use their own intellectual abilities. That is clearly against Qur’an.33 Second, because it has to be assumed by those adopting this approach that the scholar they have chosen to follow is fault-free. There is none, according to Qur’an, who is, apart from the prophets, divinely guided and, therefore, fault-free.34 Third, Qur’an itself condemns the approach of those who choose to follow others instead of using their own intellect in religious matters.35
There are some others who believe “that the vastness of juristic horizon in spite of all the difference [of opinion]” is a blessing, which – being the wonderful legacy of Islam – should enable the investigator to choose from several options what suits the situation (Homoud 1985, 204).36 Although it is correct to say that differences of opinion, if kept within limits and taken in the right spirit, are a blessing, however, to suggest that an investigator, as a result of these differences, gets a better opportunity to choose from a wider choice of options a point of view that suits him best can be misleading. An investigator, in my view, should look for only the right point of view, the one which appeals to his intellect as the true verdict of God’s message, and not an opinion which entails convenience to its follower, the opposing opinions cannot all be correct simultaneously. It is only one of them which can possibly be correct or perhaps none. A true seeker after truth should be concerned to find out which opinion seems to be the right one – not the most convenient one. If none of them seems to be correct, he should continue his struggle to discover one himself, if he has the required abilities.
2.3.3 Solution at the Collective Level
Because of the myriad differences of opinion on many issues of Islamic shari’ah, it is imperative that a clear methodology should be outlined to establish the way of deciding Islamic verdicts on various issues for the purpose of implementing them at the collective level. In order to achieve that objective adequately, the process should be able to satisfy these conditions:
- The verdicts for implementation at the collective level should be given by the people who are qualified to do so, i.e. those who are scholars of the original sources of Islamic law.
- The scholars giving such verdicts should have the confidence of the people who are to follow them.
- There should be a possibility of questioning the decisions by those who follow them.
- The decisions, once taken, should not necessarily be unaltered for ever.
The collectively seeking to implement Islamic shari’ah can be an institution, like the interest-free banks (IFBs), or a country endeavoring to achieve that goal.
In case where an institution is seeking to implement Islamic law in a country where there is no arrangement to achieve the same end at the national level, a carefully appointed religious council comprising of Muslim scholars should be able to achieve that goal. The Religious Supervisory Boards (RSBs) appointed by the interest-free banks to oversee the process of implementation of Islamic law is an example of this approach.37 There should, however, be adequate arrangements to provide satisfactory answers to the queries of bank employees, shareholders, depositors, and borrowers. Moreover, the possibility of reviewing the decisions of RSBs on the appeal of the affected parties should be adequately made.38
As for the implementation of Islamic law at the national level in an Islamic state, there should be a high-level committee of religious scholars (‘ulama) who should be elected by the people for a fixed tenure to serve as the highest authority to decide about legal matters in the light of the shari’ah principles.
The majority decision of this body should be enforced as the law of the land so long as that majority continues to support it. Although people should be allowed to criticize the verdicts of the committee in accordance with their understanding of the original sources of law, every one should be practically bound by these verdicts. The members of such a committee should be clearly told to be loyal to Qur’an and sunnah alone instead of trading within the narrow domains of the principles of any one school of thought.
2.4 The Nature of Islamic Law
The last part of this chapter will briefly attempt to clarify a few important questions regarding the nature of the teachings of the Islamic shari’ah.
2.4.1 Relationship With Human Intellect
There has been a tendency amongst some Muslims writers to argue that Islamic Law has nothing to do with human intellect.39 Their reasons for such claims are based basically on misunderstanding about the message of Qur’an.
An important argument presented to prove Islamic shari’ah’s lack of concern for human intellect is based on the verses which emphasize that the believers should listen to the prophet and obey.40 It is argued that since there is no mention of understanding in the contents of the Message in these verses, therefore, intellectual reasoning is not a part of an ideal Muslim’s behavior. On careful examination, however, the argument fails to convince. The verses referred to in the argument are emphasizing action not at the expense of intellectual reasoning but, instead, at the expense of unacceptable human desires. Such verses, therefore, mean that ideal Muslim behavior is to obey Allah and the messenger whether the demand made by them conforms to the desires of the individual or not. The distinction is drawn with the baser human desires and not with human intellect.
Another reason why the opinion alleging Islamic shari’ah’s lack of conformity with human intellect became popular was the fact that some Muslims could not find intellectually acceptable answers to the questions raised about some aspects of the shari’ah. The most effective way of silencing such threatening queries was to remind the questioner that Islam had nothing to do with human intellect. In actual fact many such questions could not be answered either because those questioned were unable to find reasonable answers or because the questions were raised about those verdicts which were not a part of the Islamic Law, but were the juristic opinions of some scholars.
In reality Qur’an attaches great significance to human intellect. It appeals to the intellect of its addressees to convince them about its authenticity as the Word of God.41 It condemns those who fail to use their intellects as unworthy of God’s blessings, and worse than beasts.42 Moreover, those without sound mental ability – like children before reaching the age of puberty and the insane – are not expected to follow the contents of the message of Islam according to the prophet, many Allah be pleased with him.43
The original sources of knowledge of Islam, far from taking the role of opponents of human intellect, are bound with it in a relationship more akin to that of a guide to one who is being guided. Qur’an acknowledges human intellect as basically a blessing from God Almighty and considers the verdicts of sound intellect as he very verdicts of God. In verse 222 of chapter 2 of Qur’an, for instance, God Almighty has asked believing men to approach their wives “as Allah has commanded you”. The ‘command’ of God mentioned in this verse is not referring to any formal legal injunction from God, but to that inherent urge which man apprehends instinctively (Mawdudi 1988, Vol.1, 172). We can conclude from this argument that all natural instincts are injuctions of the nature which God has given us and as such are a part of His Divine Law, although not in a written form (Islahi 1976, Vol.1,482).
However, human intellect has its limitations too. It can be persuaded to accept, for example, what contradicts its own instincts because of its greed or timidity in a given situation. Unrestricted enthusiasm for a certain idea, likewise, can cause the intellect to be biased for what is unworthy of tis approval. There are, moreover, some intriguing problems which are beyond the reach of its grasp. All these limitations constrain the effectiveness of human intellect if used without restrictions. It seems to yearn – given these restrictions – for external guidance. Divine Revelation in the form of messages of the prophets is that very guidance. Qur’an and sunnah constitute the final version of that guidance. Qur’an has described this relationship between Divine Revelation and human intellect as light upon light (nurun ‘ala nur) (Qur’an, 24:35), that is, the guidance of human intellect is basically a light, although with flaws (and therefore dim), whereas the Divine Revelation in the form of Qur’an is a brighter light of make up for the flaws of the intellect. Thus a brighter light (the Divine Revelation) shows the way to a dimmer one (human intellect.)
2.4.2 System in Islamic Law
If an economic system is defined as “the sum total of institutions and patterns of behavior that organize economic activity in society” (Halm 1974, 273), then no such system can be claimed to be found in the original sources of Islamic law. Islam has not specified detailed procedures (Hamdi 1990, 107). In fact, the shari’ah has laid down only the essential elements of a basic strategy and detailed policy measures have been left to be evolved by the collectivity in the light of its peculiar circumstances (Ahmad, Z., op. Cit., 85). It would have been highly unworkable for a message to outline minute details of the working of a system to be followed for all times to come. Because of the evolutionary nature of human societies, any such effort would have been met with stiff resistance from forces of change soon after its introduction. Thus, it has been rightly observed that the original sources of Islamic law did not “expressly provide solutions for all the legal problems inherent in the organization of a society” (Coulson, op. Cit., 20).
Instead of giving details of systems in various aspects of human activities, Islamic shari’ah confines itself to providing basic principles in the form of laws. “It is typical feature of Islamic teachings that strictly mandatory elements are kept to a minimum while a wide area of discretion is allowed to man to organize and order his affairs” (Ahmad, Z., op. Cit., 25). It is, therefore, surprising that some authors insist on using the expression ‘system’ to describe Islam’s guidance on various aspects of human collectivity.44 In fact, there can be different systems in different times and places, each rightfully claiming to be called Islamic if found not to be in conflict with the teachings of Islam.
2.4.3 Spirit of the Islamic Law
The Divine Law of Islam is based on Qur’an and sunnah. The legal injunctions on various issues contained in these sources are meant to achieve certain objectives, which are the real spirit of the law. These objectives are in some cases clearly set forth, while in others these are implied. Muslims are expected to follow the law both in letter and in spirit. A situation where by they are following the letter of the Islamic law in disregard to its spirit cannot be regarded as desirable at all.
Qur’an, for instance, has directed its followers to perform formal prayers (salat) on many occasions. It has also clarified that one of the purposes of performing salat is to remember Allah.45 If a Muslim community strictly observes all the rituals of salat, but ignores its real purpose, it will be guilty of ignoring its spirit despite going through the formal motions. The same observation holds true for all injunctions in Qur’an and sunnah. Another example which will be further substantiated in the next chapter is regarding the prohibition of interest (riba). It is clear from Qur’an that all interest-ridden transactions have been forbidden and that trading based on the basis of profit and loss sharing is permitted because, while the former is unfair, the latter is, in principle, fair. If on the basis of Qur’anic permission, some Muslim traders start exploiting the financially weak by entering into profit and loss agreements with them which are grossly unfavorable to the latter, the arrangement would still be considered Islamically unacceptable, despite its apparent legitimacy.
It has been rightly observed that in Islamic law strict adherence to the form is not as significant as the achievement of the objectives, which necessitated those laws. There could be occasions when adherence to the apparent form may conflict with the real objectives of the Divine Law. In such cases the apparent form should be replaced by such action as would ensure achievement of the real objectives. It was on the basis of that principle that ‘Umar, the second caliph of the Muslims, withdrew temporarily the punishment of the amputation of hads for theft during a time of famine. On the same basis Ibn Taymiyyah, a famous Muslim scholar (6610728 H./1263-1328), on an occasion when a group of Muslims were involved in widespread killings, stopped his companions from dissuading those bandits from consuming alcohol by arguing that whereas consumption of intoxicating drinks was prohibited to shut the door of transgression, the same act was helping in blocking the way of the biggest transgression i.e. killing and looting. His opinion was that under such circumstances preventing those people involved in transgression from consuming intoxicants would be contrary to Allah’s purpose (Mawdudi 1992, 192-3). Such alterations in the apparent form should, however, be introduced with extreme caution only when they are unavoidable, by those who are most competent to do so.
The Spirit of Law and Hiyal
Qur’an criticizes the behavior of some of the people of the Book and says that the arrival of Jesus, may Allah be pleased with hum, was meant, in the divine Scheme, to instil the real spirit of the law among the Jews who had reduced Torah to a “collection of life-less injunctions and spirit-less rituals” (Islahi, Amin A. 1976, 696.)
Qur’an mentions the behavior of a Jewish community who lived by the seaside. They were required to honor the restrictions of Sabbath by not getting involved in any worldly engagements. It so used to happen that whole “on the day of their Sabbath their fish did come to them, openly holding up their heads, but on the day they had no Sabbath, the come not” (Ali, A.Y. 1989, 392). It was too tempting a trial for some of them. However, in order to preserve the apparent sanctity of Sabbath and yet achieve their objective, some of them contrived a clever strategy of preventing the fish from disappearing on Saturday, so that on Sunday, the day following the Sabbath day, they could catch them (Ibn Kathir 1396H, Vol.2, 60). Despite their lame attempt to preserve the apparent form of the law of Sabbath, however, they were condemned to punishment because the spirit of the law – to stay away from all worldly dealings on Saturdays in order to worship God – was totally lost.
Another reference in Qur’an to a religious subterfuge contrived by a people to serve their worldly objectives is the practice of intercalating a month (nasi) by the pagan Arabs. They were required by their religious traditions to honor the sanctity of four months by enforcing complete caesurae to active hostilities against each other. The requirement was meant to enable pilgrims to visit the House of Allah in Mecca from all over Arabia. However, since the calendar was based on the lunar calculation, it necessitated the shifting of months from one season to another. That was not acceptable to the business-minded people of Mecca because pilgrims were an important source of business revenue for them. They inserted a thirteenth month called Kabisah after every three years to ensure that the months did not move around different seasons in different years. in short, instead of openly rejecting the arrangement of lunar months, they resorted to clever manipulations by retaining the apparent form of the law. Qur’an has, however, condemned the whole exercise by calling it “an addition to unbelief” (Qur’an, 9:37).45
The reason why religious subterfuges have been condemned by Qur’an as additions to unbelief is that while simple unbelief is an open rejection of faith, such subterfuges are a cunning way of defeating the purpose of the Divine Law without taking the blame for rejecting it. In other words, those who indulge in it attempt to deceive God by pretending to follow the apparent form while defeating the real spirit.
There have been examples in Muslim history too whereby religious subterfuges have been resorted to retain the legal form of injunctions while defeating the real spirit. It is said, for instance, about a certain individual well versed in religious law that he used to transfer his wealth to his wife’s name after eleven months and similarly back to his name after the same duration to escape the obligation of paying the annual religious tax (zakat) on his wealth. Indeed zakat is, legally speaking, payable on the walth one owns over a period of one year. That, however, is just a legal condition. The real objective Allah Almighty wants to achieve through its imposition is amelioration of the state of the poor and material sacrifice for the sake of Allah by the payer. The individual referred to managed to defeat both the objectives, although in the eyes of the worldly law, he, perhaps, was not guilty. Bukhari (810 – 870) has given his opinion on this type of practice by stating that, although such individuals may have escaped the legal imposition of zakat, yet they have disobeyed the prophet of Allah (Bukhari, op. Cit., Vol. 3, 726).
The question of the spirit of the law has been employed by Muslim jurists to legislate in areas which have not been dealt with in Qur’an and sunnah. The process of ijtihad based on analogy (qiyas) employs this principle. It entails observation of the real basis of an Islamic injunction (‘illah) and finds out if the same basis is present in another arrangement. If, in the opinion of the jurist (mujtahid), ‘illah in the original injunction is similar to the one in the later development, the jurist would declare on the basis of qiyas that the same verdict holds true for both.
There is no general agreement on the bases (‘ilal) of many Islamic injunctions. It is, however, generally agreed that there could be more than one basis for a certain Islamic verdict. The one reason which is considered to the predominant basis of a relevant injunction is call ‘illah while other less significant ones are called hikmah.
Irrespective of the difference in terms, however, both ‘illah and hikmah are concepts which are based on the spirit of law. It is the real spirit of the injunction that is attempted to be captured and, on that basis, other areas of human activity are brought within the purview of Islamic law.
There is a difference of opinion of significant consequence amongst the four earlier schools of Islamic Jurisprudence with regard to the spirit of the law. Malikis and Hanbalis determine the validity or invalidity of a contract, apart from the obvious factors, on the grounds whether it was inspired by proper motives or not, its apparent legitimacy notwithstanding. On the other hand, the Hanafi and, to a lesser extent, the Shafi’i schools of law consider that it is not the function of the courts to investigate what stands behind apparently genuine transactions or to unveil their real inspiration. The obvious consequence of the latter’s principle was that a range of carefully contrived legal stratagems (hiyal) were developed which allowed the spirit of Islamic law to be flouted despite adherence to the apparent form in the lands where the latter schools of fiqh had more influence (Saleh 1988, 25).
Any attempt to implement shari’ah in modern Muslim society should take place within the bounds of the two original sources of knowledge of Islam: Qur’an and sunnah. The guidance within these sources is basic. It is up to the Muslims of each generation to devise systems relevant to their conditions which should be based on those basic teachings. That process should be undertaken by the religious scholars, who should have the confidence of the masses. The laws thus devised should be alterable by the same democratic process which empowered the scholars to legislate in the first place. The doctors of Islamic law in charge of the process of Islamisation should make sure that the system thus devised should adhere to not just the apparent form of Islamic teachings, but the true spirit of the Islamic law as well. The latter requirement necessitates that no religious subterfuge should be allowed to be introduced in the name of Islamic shari’ah.