Concluding The Main Differences

article picked 4U by - Mohammad Shahrour

May 27, 2020

We conclude by discussing the main differences between our proposed theory of limits and conventional fiqh jurisprudence:

1- We do not treat the legal verses of the Book as codified law but as signposts or ethic al-legal markers that Allah asked human beings not to overstep. Traditional fiqh jurisprudence has regarded the legal verses as absolute law which allowed neither mitigation nor adaptation to changing social and cultural circumstances. Our theory of limits aims to regain the flexibility and elasticity in human legislation that was originally built into the divine text but which was removed by an overly rigid system of fiqh jurisprudence. We re-emphasize the high degree of universality ..

2- in Islamic legislation that is implicit in Allah’s revelation. Traditional jurisprudence has sacrificed this universality in favor of very narrow cultural and nationalist agendas that reflect particular political interests more than they do the universal ethical message of the Book. We propose to disentangle Islamic legislation from the narrow cultural perspective of seventh-century Arabia and to replace it with a universal perspective which allows cultural diversity beyond the specific legal parameters on the ancient Arabian Peninsula.

3- We treat the Sunna of Muhammad as a model of good legal practice in the theory of limits, not as the ultimate specification and binding exemplification of Islamic law. Traditional jurists imprisoned the universal message of Islam too rigidly by their legal injunctions derived from Muhammad’s Sunna, thereby mixing Islam with the more specific and much narrower concept of Eman. We suggest to regard the Sunna as an exemplary method of how to cope with the challenges and legal conflicts that Muhammad faced in his time and of how to emulate his methods and apply them with our methodology (minhaj) to a system of law by which we are able to face the challenges of our modern times.

4- We dispense with ‘analogy’ (qiyas) as a source of law as a consequence of our quest for universality in Islamic legislation. Traditional jurisprudence is inhibited by this method which has locked generations of jurists firmly inside the legal and intellectual horizon of seventh-century Arabia. The theory of limits functions perfectly well without analogies, which allows mujtahids to be firmly rooted in their contemporary context and to substitute comparisons to early Islam with references to the latest results of scientific research. This also allows them to correlate Islamic legislation with the epistemological progress in the sciences.

5- We base the theory of limits on the belief that Muhammad’s message (risala) is the last message sent by Allah to human beings. No other new revelation will ever replace Muhammad’s message, unlike previous revelations that were meant to be replaced entirely. For this reason, Muhammad’s message was not formulated as a final expression of law but in a way that permits a further evolution of law for millions of years until the coming of the Last Day.

Unforgivably, traditional jurisprudence has regarded Muhammad’s message in exactly the same way as previous messengerhoods and treated its law as absolute, certain, and definitive. This is a fatal mistake because it has regretfully negated the real essence of Muhammad’s message as the last and final revelation which is, by legal and historical logic, at odds with absoluteness and comprehensiveness.

6- We take seriously the changes in cultural and social patterns of human behavior and adopt them with our theory of limits. We compare human legislation with a football field where players are allowed to move freely and to use the entire space available. Traditional jurists have been so frightened of unexpected moves and unpredictable developments that they interpreted the rules of the game in such a rigid way that players were only allowed to move on the sidelines of the field which, inevitably, led to a complete paralysis of the game.

Put in legal terms, we would allow flexibility in moving across the entire field of legislation, encouraging creative moves that lead to great sociocultural diversity in regulating marriage, divorce, inheritance, theft, murder, adultery, polygamy, dress codes, and so on, provided that legislators and mujtahids always stay strictly within the limits that Allah has laid out in the Book.

7- We distinguish between three branches ( furu’) of Muhammad’s message, of which only one allows the practice of ijtihad. Ijtihad will never be allowed in the sphere of rituals, since alterations will be rejected as harmful and illegitimate innovations (bid’a). The same is true for ethics and moral ideals, since the divine condemnation of hatred, greed, dishonesty, gluttony, and such must never be modified or changed.

In the third branch, that is, the legal sphere, the legislative verses of command (do!) and prohibition (do not!) permit the exercise of ijtihad. However, traditional fiqh jurisprudence, obsessed with an almost pathological quest for ritual accuracy, has ignored the ethical sphere, blocked ijtihad in new legislation, and instead dealt with the smallest and most insignificant details of ritual behavior. Our theory of limits puts the priorities right and allows ijtihad for all legal verses, whether explicit nass texts or not, and retrieves the ethical underpinning of Islamic law that it once undoubtedly had.

Finally, we believe that the theory of limits functions

8- without the need to resort to abrogations. In our view, the abrogation of legal verses within one and the same messengerhood never took place. If verses were abrogated then this was only between subsequent messengerhoods, for example, between Moses and Muhammad, as explained earlier. This implies that a new messengerhood could either amend or completely annul an earlier messengerhood or, if no legal provision was given, introduce an entirely new rule.

Traditional fiqh has, on the contrary, been based on the acceptance of abrogation within messengerhoods, assuming wrongly that the following two verses support their false views: None of our revelations do We abrogate or cause to be forgotten, but We substitute something better or similar… (Baqara:106). When We substitute one revelation for another…; and God knows best what He reveals (in stages) … (Nahl:101).

We believe that both verses refer only to the abrogation of divine messages (as a whole), not individual sentences of the divine text. This is based on our belief that Allah would not issue contradictive legislation within one and the same messengerhood, whatever the historical situation. We believe in a succession of messages that are naturally replaced by a new revelation.

Thus we see ourselves today in a wholly new post prophetic age in which, although formed and shaped by previous messengerhoods, we have matured to such a degree that we can be left alone to sort out legal problems without further divine messages. As we have shown, Allah has urged us unambiguously not to wait for new revelations but to rely on reason in using what we have already been given.