Tuesday, December 06, 2005

Renewal of Religious Sciences (Al-Alwani on Al-Jazeera)

Last night, I watched the episode of Al-Shari`a wa Al-Hayah with Dr. Taha Jaber Al-Alwani. The episode was most interesting, focusing on the need to review the content and methodology of religious sciences. Dr. Al-Alwani's main aim was to show that the fields of knowledge known variously as religious sciences, Islamic sciences, or canon-based sciences (العلوم النقلية) are in-fact mostly man-made, and hence must be reviewed for authenticity in light of Qur'an and valid Sunnah.

The most important point that he made was that jurists' use of the Canon changed from approaching it as a source to explain, to using it as a tool to support their pre-conceived opinions. As an example, he cited Al-Shafi`i, who when confronted with challenges of his claim that consensus is a source of Islamic jurisprudence, said that he re-read the Qur'an three times until he found proof for the legislative power of consensus in the verse [Al-Nisaa;:115]
ومن يشاقق الرسول من بعد ما تبين له الهدى ويتبع غير سبيل المؤمنين نوله ما تولى ونصله جهنم وساءت مصيراً
He argued convincingly that - regardless of the validity of this proof, the very fact that Al-Shafi`i had to search for the proof post hoc shows that he had reached the conclusion independently, and then went looking for proof. Likewise, he argued, much of what is considered religious science from the First Century AH onwards was in-fact the product of the human minds of scholars, and they only used references to the Canon as post hoc support.

In my recent writings, e.g. my forthcoming book on Islamic Finance, I have argued similarly that Islamic jurisprudence is in fact a common-law system (based on precedent and analogy), despite pretending to be a canon-law system (that ostensibly obtains rulings for new situations only through analogies to Canonical rulings). Many others have noticed this similarity of Islamic jurisprudence to Anglo-American common law, both in methodology and in substance. I think that this is a point of strength not of weakness.

While Dr. Taha was arguing that we should go back to the Canon, and aim to rediscover Islamic law in its pure form, I think thhat this suggestion is disingenuous. If the best scholars only one century after the Prophet's death failed to do so, what hope do we have? The best we can do -- I believe -- is to admit the common-law feature of jurisprudence, and thus to admit that the bulk of our traditional jurisprudence is based on outdated legal and secular knowledge. Rather than maintaining the pietist view that scholars who were temporally closer to the source must be more knowledgeable (hence refusing, e.g. to reverse a ruling of Al-Shafi`i on a problem that he addressed directly), we can thus agree that religious sciences -- like all sciences -- accumulate knowledge, and later analysts are generally better positioned to provide better answers, based both on the benefit of hindsight, but also on the accumulated knowledge and experience in other sciences and other legal systems.


Blogger Islamic Law, Etc. said...

Salam Alaikum
Br. Mahmoud,

Firstly I’d like to thank you for another interesting blog subject
I had a few thoughts I would like to share with you.

The common law aspect of Islamic jurisprudence is quite evident; a case example can be had in the Fiqh of Malik. However this does not deny the fact that Islam is one of Canon based law as well.

Its seems that a more plausible solution to a 'one or the other' suggestion is to look at the Islamic legal framework as one being canonical in essence, however in the absence of that, common law is used for deriving legal rulings.

Going back to Malik, he is known to have used both, yet when approached by the caliph of his time refused to make his law canon because of the large amount of hadith that had not reached him. So in absence of this canonical law base (the hadith not found in Medinah) he then relied on the common law actions and customs of the Medinites.

Your statement that Shaikh Taha’s “…suggestion is disingenuous…” may be so if we are speaking in terms of the first generation of Islam. However as you yourself have pointed out on many occasion, and in this posting as well that we can “…provide better answers based both on the benefit of hindsight, but also on the accumulated knowledge and experience in other sciences and other legal systems.”

I must say that I am a firm believer in the logical nature of Islam as a whole. Exploring the possibilities of computational law in the context of Islamic legal rulings and its theory may allow us to as you said “…provide better answers…”

I do agree with you when you said:

'The best we can do -- I believe -- is to admit the common-law feature of jurisprudence, and thus to admit that the bulk of our traditional jurisprudence is based on outdated legal and secular knowledge.'

This however is faulted not by way of principle, but by one of methodology (Ibn Rush Al Hafid elaborates on this In his Bidayah), and at that has been a problem for the Fuquha'a throughout history.

The principle is sound, yet many go astray by one of two ways: either not taking the proper methodology in understanding the sacred texts, or by staunchly holding on to principles that are either outdated or simply wrong.

The unwillingness to change, whether it be disguised in a cloak of salafiyyah, madhhabiyah or any other name, will always be part and parcel to those in need of a security blanket due to their unwillingness to strive to reach the level of Ijtihad. (Ahmad's advice to his students to take from whence he took seems relevant here).

In particular the absence of scholars who truly understand “Usul Al fiqh” and “Maqasid” and have as Al-Tahir ibn Ashour put it have become “…saturated with the Book and the sunnah…” in addition to being up-to-date with science and technology is probably one of our biggest pitfalls these days.

As for the Statement of Al-Shafi'i about consensus, I (not being one qualified to critique the likes of Shaikh Taha) can only say that the circumstances behind this story are somewhat different than what is apparently understood in the context is this interview.

When Al-Shafi'i searched for this 'evidence' to support a pre-conceived opinion' in fact he was only searching for a 'Qati'i' evidence, not that the evidence in a 'Zanni' form was not available. Since the Mu'tazilah were unwilling to accept the 'Zanni' form a 'Qati'i' one was needed to be able to unequivocally establish the validity of consensus, even to those that deny it.

Hope to hear from you soon with comments or corrections.

7:20 PM  

Post a Comment

<< Home