Saturday, August 06, 2005

Islamic legal theories are man-made too!

The bulk of the Amman declaration (dealing with differences in madhahib, etc.) is praiseworthy: You cannot declare a person apostate because he accepts the Ash`ari view vs. the Wasatiyya creed, or any other, because they exercise "correct Sufism", follow the Salfi school or belong to any of the eight major schools of jurisprudence. On the other hand, such "open-mindedness" (historically limited and myopic as it may be) is definitively negated by the following passage:

3) Acknowledgement of the Schools of Jurisprudence within Islam means adhering to a fundamental methodology in the issuance of fatwas. No one may issue a fatwa without the requisite personal qualifications which each School of Jurisprudence defines. No one may issue a fatwa without adhering to the methodology of the Schools of Jurisprudence. No one may claim to do absolute Ijtihad and create a new School of Jurisprudence or to issue unacceptable fatwas that take Muslims out of the principles and certainties of the Shari‘ah and what has been established in respect of its Schools of Jurisprudence.


The reason for this announcement is clear: to discredit criminal elements and misguided people from issuing fatwas that others may follow blindly. However, it also closes many doors of ijtihad, yet again. It is curious to note that the schools that are put on equal footing by those present at the Amman conference would not themselves had emerged based on the methodology advocated here.

Worse yet, there is a continuation and formalization of a fundamental problem that I see even in the most progressive forms of ijtihad done today: The issue of Usul or methodology. Jurists accept that rulings in furu` (specific spacio-temporal incidents) change with the circumstances of place and time. That follows not only from the view that different circumstances merit different application (tanzil al-naSS) of Canonical Text rulings, but also from the fact that temporal rulings based on fatwa are man-made, and may simply be wrong!

A tenth Century fatwa in medical affairs would be changed now not because human physiology has changed, but because that fatwa would have been based on faulty medical knowledge -- i.e. its understanding (taSwir) and framing as a juristic question (takyeef fiqhi) were both wrong, rendering the fatwa useless today. Many jurists choose to discuss differences in fatwa based on circumstances, and forget this fundamental ability of secular knowledge (YES, THE S WORD) to inform us regarding the CORRECTNESS and relevance of previous fatwas: A fatwa issued by the most knowledgeable person in the 2nd Century AH, based on an assuption that the earth is flat, is irrelevant.

Likewise, in the area of economics, I would say that -- rather than looking for an "Islamic Economics" that agrees with the outdated worldview of great minds of the past such as Ghazali and others -- much of what great scholars of the past said regarding economic and financial affairs is wrong and irrelevant, because their understanding of economics (as a secular social science) was wrong. Of course, our understanding of various secular sciences today will also be proven wrong in the future, hence the need to continually revisit earlier thought in light of that secular knowledge, which is also "knowledge" in the sense of "`ilm"!

Many (though still a minority) may agree with this view in the areas of medicine, physics, etc. Fewer still will agree with this view in the fields of economics, psychology, etc. But the more fundamental question I wish to raise in this posting goes beyond all of that, and addresses the quotation from the `Amman conference conclusions:

Just as our medical knowledge should inform (and allow us to change) our fatwas in certain areas, and economic knowledge should inform (and allow us to change) our fatwas in other areas, advances in logic, legal scholarship, social science and scientific method should inform our Islamic legal methodology and legal theory. Brilliant as Al-Shafi`i, Al-Sarakhsi, Al-Juwaini, Al-Shatibi, Al-Qarafi, etc. may have been for their time, their formulation of legal theory was shaped and constrained by their knowledge of Roman law and Aristotelian logic... Advances in legal scholarship, formal logic, and social science have allowed modern societies to develop better (though by no means perfect) legal theories. Why can't Muslims also revisit their "methodologies" (mentioned in the quotation above) in light of Islamic Canonical Texts as well as those advances in logic, etc. Afterall, those legal theories were themselves man-made. To restrict us to the use of a legal theory developed 10 centuries ago is no less harmful than to restrict us to specific opinions (fatwas) issued at that time.

3 Comments:

Blogger dezhen said...

Great post! I would add that in my mind, the likes of as-Shatibi and others would agree - Shatibi himself did not deal with law in a static way, and some of his proposals were radical for his time.

I am quite happy to follow a Madhab methodology in Usul - but in some cases they nay not have the required tools to deal with the problem. The issue is what happens then.

10:02 PM  
Anonymous Mohammad Fadel said...

Not to beat a dead horse, but deference to jurists in empirical matters is not legally valid, as pointed out by Qarafi some 800 years ago. He cites numerous examples of failures by his contemporaries to distinguish legal matters from empirical ones, with the result that they would sometimes erroneously defer to the factual conclusions of a mujtahid, even though there is no reason to believe that the particular mujtahid in question had any particular knowledge with respsect to that matter. If Qarafi recognized that 800 years ago (and he also mentioned that the manner by which humans can understand their empirical world is potentially infinite and will continue until the Day of Judgment) how come jurists today fail in recognizing the limitations of their judgments? One reason is that they are no longer terribly interested in methodology. Another answer is that they are generally ignorant of contemporary scientific and philosophic developments, unlike previous Muslim intellectuals such as Ghazali and Qarafi (who even dabbled in astronomy).

But, we should not focus all our blame on religious scholars -- they are in general no better and no worse than the general intellectual climate that currently prevails in the Arab world. (I am speaking exclusively of Arab scholars, since I am not generally familiar with the works of non-Arab scholars.)

Again, this suggests why we should read works from the turath -- not to blindly parrot what they said, but to appreciate their critical method and understand that a critical methodology is not contrary to being a good Muslim.

11:57 PM  
Blogger Muhammad Saeed Babar said...

Verily We have propounded for men in this Qur'an every kind of Parable: but if thou bring to them
any Sign the Unbelievers are sure to say "Ye do nothing but talk vanities." Aya 58 Sura Ar-Rum

This Qur'an is not such as can be produced by other than Allah; on the contrary it is a confirmation of (revelations) that went before it and a fuller explanation of the Book wherein there is no doubt from the Lord of the Worlds. Aya 37 Sura Yunus

Verily this Qur'an doth guide to that which is most right (or stable) and giveth the glad tidings to the Believers who work deeds of righteousness that they shall have a magnificent reward; Aya 9 Sura Al-Israa

High above all is Allah the King the Truth! Be not in haste with the Qur'an before its revelation to thee is completed but say "O my Lord! advance me in knowledge." Aya 114 Sura Ta-Ha

As to thee the Qur'an is bestowed upon thee from the presence of One Who is Wise and All-Knowing. Aya 6 Sura An-Naml

The methodology of jurisprudence has been explained in Quran but we are ignorant. We don't pray to Allah (SWT) as has been guided.

1:05 AM  

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