Islam and Modernity, Part 3 – Pragmatism in Islamic Law

July 9, 2020

In the previous articles on Islam and Modernity, part one introduced the topic and touched upon the challenges Islamic law faced in the modern context. Part two in the series covered the oppressive nature of modern knowledge in regards to traditional knowledge and explained that, since the nature of truth does not belong to the East nor to the West, a collaboration between the two is the only way to achieve a better reflection of truth. This part of the series defends traditional knowledge and proves its relevance to a modern context.

The irrelevance of traditional thoughts and the Islamic legal system to a modern context is an accusation as old as the history of colonization. Colonial European empires manufactured and developed the irrelevancy accusation as a strategy to demolish the existing Hindu, Islamic, and Mali civilizations, and other local traditions in India, Africa, and Indonesia and replace them with the modern Western legal system. Reforming traditional societies through the method of “demolish-and-replace”¹ became a working system for European empires and shaped the minds of many academic Orientalists. Many Orientalists labeled Islamic law as rigid and lacking in creativity. In his book The State and the Individual in Islamic Law, Noel J. Coulson, a well-known twentieth century Orientalist, states that Islamic law “was the result of a speculative attempt by pious scholars, working during the first three centuries of Islam, to define the will of Allah. In a self-imposed isolation from practical needs and circumstances, they produced a comprehensive system of rules, largely in opposition to the existing legal practice, which expressed the religious ideal.”² H. A. R. Gibb, the twentieth century Scottish historian on Orientalism, took the same claim further to assert that the gate of ijtihad or expending effort [to derive Islamic rules] “was closed, never again to be reopened.”³  J. N. D. Anderson, another well-known twentieth century lawyer and Orientalist, also claimed the same in his Law Reform in the Muslim World.⁴

In addition to the Orientalist camps that openly advocated the irrelevancy of Islamic law from the outside, there was Muslim camp that voted for the insidad bāb al-ijtihād or closure of the door of ijtihad. Khadduri in his “From Religious to National Law”⁵ and Rahman in Islam⁶ in one way or another preached the irrelevance of Islamic law, because the focal point of the controversy regarding the closure of the door of ijtihad was not whether the activity of ijtihad had ceased or continued, but rather whether Islamic law was and continues to remain relevant to its contexts or that it is and it was for the most parts rigid, theoretically fixed, and hence not suitable or applicable to changing circumstances over time.

Different Approaches in Response to the Accusation

Many authors from various disciplines felt the responsibility to defend the relevance of their Eastern civilizations and traditions against the imperialistic nature of this accusation. While Rene Guenon, the famous Muslim French philosopher of the early twentieth century and Hussein Nasr,⁷ the contemporary Muslim philosopher, criticized modernity from the philosophical perspective of Eastern wisdom traditions, Hallaq⁸ and Fekry Ibrahim⁹ defended the relevance of Islamic law with their legal theory (uṣūl al-fiqh) approach. However, among the approaches in the vast literature that defend the relevance of Islamic law, works that present the flexibility and adaptability of the application of Islamic law by showing actual examples of change in fatwas or religious rulings over time are lacking. This would mean a study, examination, and comparison of fatwas on a given subject as they occur in different centuries. Thus, in this article, we describe a few fatwas declared on subjects in different centuries to show the pragmatic nature of Islamic law.

1. Ritual Purity of People of the Book (Ahl al-Kitāb)

Wahid al-Bihbahani (d. 1791), the prominent scholar of the eighteenth century and the founder or restorer of the uṣūlī school¹⁰ explains the most popular fatwa regarding People of the Book (ahl al-kitāb) in his time. He says, “Sayyid al-Murtaḍā and Ibn Idrīs¹¹ claimed the consensus of our scholars on the impurity of the People of the Book.”¹² Other prominent scholars who were his contemporaries, like Yusuf al-Bahrani (d. 1772), Morteza Ansari (d. 1864), and Muhammad Hassan al-Najafi (d. 1850), have also accepted the same opinion regarding the ritual impurity of ahl al-kitāb.

However, this mainstream fatwa eventually began to shift in the twentieth century, and the number of scholars who believed in the ritual purity of the People of the Book increased. By the end of the twentieth century, not only did the previous mainstream opinion was replaced by the fatwa of purity of ahl al-kitāb¹³ there were also several prominent jurists who expanded the application of ritual purity to all human beings. Some jurists of this century developed the theory of karāmah or nobility of all human beings based on the verse “We have honored the children of Adam”¹⁴ and the theory gained popularity. Sayyid Muhammad Bāqir al-Ṣadr (d. 1980), Mohammad Hussein Fadlallah (d. 2010), Muhammad Hadi Ma‘rifat (d. 2007), Makarim Shirāzi (b. 1927), Mohammad Ebrahim Jannaati¹⁵ (b. 1993), Surush Mahallati (b. 1961) and others¹⁶  are among the contemporary jurists and scholars who accepted the karāmah theory and proclaimed fatwas accordingly.

2. The Transaction Formula (Sīghah)

Ibn Zuhrah, the great Shi‘i jurist of the twelfth century (d. 1189), narrates the invalidity of any transaction without the utterance of the special transaction formula (Ṣīgha al-ījāb wa al-qabūl). He mentions that scholars have unanimously agreed that any transaction in which possession of a property is transferred without first reciting the special formula has no effect. Other scholars have also asserted the same point and used the same consensus (ijmā‘) to prove their fatwa.

It is not clear when this consensus among scholars shifted on the validity of business transactions without the utterance of the special formula. However, contemporary jurists have consensus that the utterance of a special transaction formula, whether in Arabic (bi‘tu and ishtaraytu) or in any other language is not required for the validation of a transaction.¹⁷ Yet, one transaction that remains almost unchanged is the marriage and divorce contract in which most contemporary scholars require the utterance of a special formula for the validity of marriage and divorce.

3. Making up for Missed Daily Prayers

Making up missed daily prayers is obligatory according to all Shia jurists. However, there is a shift in their legal opinion and fatwas regarding the type of this obligation. Al-Shahīd al-Awwal (d. 1385), the author of the most prominent fiqh textbook in the contemporary seminaries of Qum and Najaf, states that “most [jurists] obligate the missed prayer to be made up immediately.” Similarly, most jurists, at least up to the fourteenth century according to Shahid al-Awwal’s observation,  believed that making up missed prayers needed to be done as soon as possible. Some did not even allow eating or drinking¹⁸ before making up missed prayers, and some did not allow performing the next prayer unless the person first performed the qadā prayer.¹⁹

About four centuries later, Shaykh Yusuf al-Baḥrānī (d. 1772), another great scholar of the eighteenth century, stated that the fatwa among his contemporary scholars on this topic had changed. According to them, making up missed prayers was wajib (required) but it was not an immediate wajib and they could be made up anytime.²⁰ Jurists after the eighteenth century issued the same fatwa. The fatwa became more popular among contemporary jurists to the point that there is not a single twenty-first century jurist who believes in the necessity of performing a missed prayer immediately.

4. Unnecessary Conversation with a Non-Mahram Person

A man having conversation with and listening to a non-maḥram female has been considered forbidden among classical Shia jurists. Mulla Ahmad Narāqi (d. 1829) in his Mustanad al-Shia states that “A group of scholars absolutely forbid the unnecessary listening to a non-maḥram female…and this is the mainstream fatwa among our jurists.”²¹ Fayḍ al-Kāshānī (d. 1680), the hadith scholar of the seventeenth century, also forbids speaking more than five words with a non-maḥram person.²² He justifies and bases his fatwa on a hadīth from Imām Jafar al-Ṣādiq (p) which narrates that Prophet Muhammad (pbuh&hp) “forbade the conversation of a wife in front of people other than her husband and maḥram people more than five words when it is not necessary.”²³ Moreover, Shaykh Yusuf al-Baḥrānī (d. 1772) in his Ḥadāiq al-naẓirah accepts the same fatwa and states that it is the mainstream fatwa among jurists.²⁴>

Studying these fatwas reveals that the default ruling among classical jurists was that any conversation between maḥram and non-maḥram was forbidden, and criteria for permissibility was necessity (ḍarūrah). However, contemporary jurists have different criteria on the subject, as mentioned by Sayyid Taqī Tabatabaei al-Qummi (d. 2016), in his Minhāj al-sāliḥīn. He states, “It is permissible to listen to a non-maḥram woman without joy [sexual pleasure] and it seems that this is an agreed upon fatwa in jurists’ circles.”²⁵ The criteria, as is clear from al-Qummi’s statement, is not the necessity of the conversation, rather it is the intention of sexual pleasure between maḥram and non-maḥram. The shift here is significant since it is a shift in criteria. Among classical jurists, a conversation with a non-maḥram was forbidden by default unless it was necessary, whereas among contemporary scholars, the same conversation is permissible by default unless there is sexual pleasure.

A similar shift happened in the case of a man looking at the face of a non-maḥram woman.  It was forbidden by default and permissibility occurred only as a necessity (ḍarūrah) among classical jurists, as opposed to contemporary jurists who consider looking to be permissible by default, and the impermissibility occurs if there is sexual pleasure.

Conclusion

Attributing rigidity to Islamic law, particularly as it takes form in the fatwas of scholars, is an incorrect accusation. The examples above and many others that can easily be found in books of Islamic rulings are clear proof that classical and contemporary jurists were determined to discover the manifestation of God’s will in the daily practices of the people in their respective contexts to the best of their understanding. It shows that their understanding of the manifestation of God’s will has not been the same in different time periods and that the main reason for this difference in understanding has been the customs and the common understanding of the people of their time (‘urf). As that common understanding among the people changed over time, the jurists’ understanding of the manifestation of God’s will also changed, and this continued through the fourteen centuries of Islamic law.

This fact is a very clear proof that time and place played a big role in how jurists interpreted the will of God, which demonstrates the pragmatic nature of Islamic law. Ijtihad as the main internal mechanism in Islamic law allowed its relevance in centuries past and it will continue to do so for centuries to come. The qualities of rigidity, strictness, and inflexibility attributed to Islamic law by some early Western Orientalists was simply a misunderstanding due to their overlooking ‘urf, which represents the changing behaviors and sentiments of people over time.

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1. Borrowed this phrase from  Wael B. Hallaq’s Restating Orientalism: A Critique of Modern Knowledge (2018), p.168.
2. N. J. Coulson, “The State and the Individual in Islamic Law,” International and Comparative Law Quarterly 6.
   3.H. A. R. Gibb, Modern Trends in Islam, (Chicago, 1947), p. 13.
3. J. N. D. Anderson, Law Reform in the Muslim World, (Londdon, 1976), p. 7.
4. M. Khadduri, “From Religious to National Law,” in J. H. Thompson and R. D. Reischauer, eds., Modernization of the Arab World, (Toronto, 1966), p. 41.
5. F. Rahman, Islam, (Chicago, 1966), p. 77-78.
6. Seyyed Hossein Nasr, The Encounter of Man and Nature:. The Spiritual Crisis of Modern Man,  (London: George Allen and Unwin, 1968), p. 152.
7. Hallaq, From Fatwas to Furu.
8. Fekry Ibrahim, Pragmatism in Islamic Law.,
9. Vs. Akhbaris, for more refer to http://en.wikishia.net/view/Akhbaris.
10. Both are among the greatest scholars of fiqh (jurisprudence) in the school of Ahl al-Bayt.
11. Muhammad Baqir Bihbahani, Al-ḥāshiya ala al-aḥkām,  vol. 2, p. 199, http://lib.eshia.ir/27746/2/199
12. http://wikifeqh.ir/.
13. The Holy Quran 17:70, Muhammad Sarwar translation.
14. https://hawzah.net/fa/Book/View/45246/.
15. Muhsen Kadivar, Ref to: https://kadivar.com/10862/.17. Ibn Zuhra, Ghunya al-nuzu‘ ilā ilm al-usul, vol. 1,:p.  214,  http://lib.eshia.ir/13037/1/214.
    18.Muhammad al-Makki, Al-zihrā, vol. 1, p. 132, http://lib.eshia.ir/10021/1/132.
16. Ibid.
17. Sayyid Taqi Tabatabaei al-Qummi,  Mabānī minhāj al-sālihīn, vol. 5, p. 126, http://lib.eshia.ir/71843/5/126.
18. Mulla Ahmad Naraqi, Mustanad al-Shia, vol. 16,p.66, http://lib.eshia.ir/10153/16/66.
19. Fayd al-Kashani, Mafatih al-sharyi‘a, vol. 2, p.  22,  http://lib.eshia.ir/86886/2/22.
20. Abu Jafar al-Hur al-A‘mili, Vasāil al-Shia, vol. 20, p. 212, http://lib.eshia.ir/11025/20/212.
21. Yusuf al-Bahrani, Hadaiq al-nādira fi ahkam al-itrah al-tahira, vol. 24, p. P451, http://lib.eshia.ir/10013/24/451.
22. Sayyid Taqi Tabatabaei al-Qummi,Mabānī minhāj al-sālihīn,vol. 9, p. 581, http://lib.eshia.ir/71843/9/581.