The Great Theft: Wrestling Islam From the Extremists (19 page)

formed a certain act or actually made a particular statement. Therefore, according to Muslim scholars, traditions could range from the highest to the lowest level of authenticity. Al- though Muslim scholars have tended to believe that they could ascertain whether the Prophet actually authored a particular tradition, the authorship of traditions is historically compli- cated. Many traditions are the end product of a cumulative development that took place through a protracted historical process, and therefore these traditions often give expression to sociopolitical dynamics that occurred many years after the death of the Prophet.

Aside from the issue of authenticity, there are several other ways that the Sunna is different from the Qur’an. The style and language of the Sunna is very distinct and different— while the Qur’an is poetical, melodic, and lyrical, the Sunna is not. Furthermore, the range of topics and issues addressed by the Sunna are much more sweeping than in the Qur’an. The Qur’an is primarily concerned with ethics and morality; the Sunna, however, contains everything from enunciations of moral principles, to detailed prescriptions on various matters of personal and social conduct, to mythology and historical narratives. Not all of the Sunna can easily translate into a set of straightforward normative commands, and therefore Mus- lim jurists argued that parts of the Sunna are intended as leg- islative and binding, while other parts are simply descriptive and, for the most part, not binding. Most importantly, the huge body of literature that embodies the Sunna is complex and generally inaccessible to the layperson. In order to system- atically and comprehensively analyze what the Sunna, as a whole, has to say on a particular topic requires a considerable amount of technical knowledge and training. In part, this is due to the fact that the Sunna literature reflects a rather wide array of conflicting and competing ideological orientations

and outlooks that exist in tension with each other. Selective and nonsystematic approaches to the Sunna produce determi- nations that are extremely imbalanced, and that are highly skewed in favor of a particular ideological orientation or an- other. And yet, such selective and imbalanced treatments of the Sunna of the Prophet are commonplace in the contempo- rary Muslim world.

Nevertheless, it is important to note that many of the basic rituals of Islam were derived from the Sunna traditions. In ad- dition, the Sunna helps in contextualizing the Qur’anic revela- tion, and also in understanding the historical framework and role of the Islamic message. Consequently, it is not possible to simply ignore this formidable oral tradition, or focus exclu- sively on the Qur’an, without doing serious damage to the structure of Islam as a whole.

There is no question that the Qur’an and Sunna occupy a highly authoritative position in the Islamic faith, and that they are boundless and illimitable sources for thinking about ethics, morality, law, and wisdom. But as sources of guidance, they are also multilayered and multifaceted, and when the Qur’an and Sunna are considered together, they tell a complex story. They can be a source of profound intellectual and moral guid- ance and empowerment. However, the opposite is also true and dangerously so: if approached with the wrong intellectual and moral commitments, or even if approached from within a hedonistic and noncommittal moral framework, they could contribute to a process of ethical and intellectual stagnation, if not deterioration and putrefaction. For instance, the Sunna contains a large number of traditions that could be very em- powering to women, but it also contains an equally large number of traditions that are demeaning and deprecating to- ward women. To engage the Sunna on this subject, analyze it systematically, interpret it consistently with the Qur’an, and

read it in such a fashion that would promote and not under- mine the ethical objectives of Islam calls for a well-informed and sagaciously balanced intellectual and moral outlook.

Other than the Qur’an and the traditions of the Prophet, there were various methodologies used by jurists for produc- ing legal rulings. Jurists used rule by analogy in which they ex- tended the same ruling from an old case to a new case because the old and new cases were substantially similar. Traditionally, Muslim jurists also used principles such as equity and public interest in order to make the law responsive to changing cir- cumstances and conditions.

Importantly, what is called Islamic law is not contained in a single or a few books. Islamic law is found in an enormous corpus of volumes that document the rulings and opinions of jurists over the span of many centuries. In the Sunni world, there are four surviving schools of thought: the Shafi’i, Hanafi, Maliki, and Hanbali. In the Shi’i world, there are two surviving schools of thought: the Ja’fari (predominant among Shi’is, including those who live in Iraq and Iran) and the Zaydi (widespread primarily in Yemen). Substantively, despite the sectarian differences, the Ja’fari school is very similar to the Shafi’i school and the Zaydi school is very similar to the Hanafi school in terms of their methodologies and rulings. The Isma’ili school of Qadi Nu’man, although Shi’i today, has a very limited following, primarily in India. There is also the Ibadi school of jurisprudence, which is neither Sunni nor Shi’i, but belongs to a third sect known as the Ibadiyya, and its fol- lowers live predominately in Oman. Each of these schools gen- erated its own jurisprudential tradition of legal rulings and opinions.

Quite often the sages that belonged to a particular school of law wrote legal treatises that became far more influential than the texts written by the founder of the school. For instance,

al-Khiraqi (d. 334/946), author of
al-Mukhtasar,
and Ibn Qudama, (d. 620/1223), author of
al-Mughni,
were both more influential in defining the Hanbali school than the eponym of the school, Ahmad Ibn Hanbal (d. 241/855). Among the many students of the eponym of the Hanafi school Abu Hanifa (d. 150/767), there were three particularly influential sages, the judge Abu Yusuf (d. 182/798), al-Shaybani (d. 189/804), and Zufar (d. 158/774), and each one of them developed his own interpretation of the teachings of the master Abu Hanifa. Yet, although the matter is open to dispute, the Hanafi jurist al- Marghinani’s (d. 593/1196) book,
al-Hidaya,
and the Hanafi jurist al-Sarakhsi’s (d. 483/1090) huge multivolume book
al- Mabsut
has been more influential than any of the texts written by Abu Hanifa or his three celebrated sages. Al-Shafi’i (d. 204/819), the eponym of his school, wrote several extant texts that continue to be very influential, but the works of many of his followers, such as al-Mawardi (d. 450/1058), the author of the monumental corpus
al-Hawi,
and al-Shirbini (d. 972/1569), the author of the commentary
al-Mughni,
continue to have an impact that is no less important than the works of the founder of the school. The eponym of the Maliki school, Anas bin Malik (d. 179/795), wrote a wildly influential work called
al- Muwatta’,
but his disciple, Sahnun (d. 240/854), wrote a more extensive book, titled
al-Mudawwana,
which quickly became an essential reference source for the Maliki school. However, later Maliki jurists, such as Ibn Rusd (d. 520/1122), al-Qarafi (d. 684/1285), and al-Shatibi (d. 790/1388), wrote remarkably creative works that greatly enhanced and developed the field of Maliki law. Similarly, the Ja’fari, Zaydi, and Ibadi schools pro- duced an enormous corpus of jurisprudential works written by different jurists, in different places, and different times, which made each of these schools progressively more sophisticated and mature with the passage of time.

Importantly, the numerous volumes that collectively repre- sent the Islamic legal tradition do not preserve just the rulings and opinions of the living schools of thought, but also record the views of the many extinct schools of law. At one time, there were 130 schools of legal thought in the Islamic civiliza- tion, but most of them became extinct for a variety of reasons. In other words, Islamic law is not represented just by the sur- viving schools, but
all
the schools that at one time or another have thrived in the lands of Islam. Among the jurists who founded schools that ultimately became extinct are the follow- ing: Ibn Shubruma (d. 144/761), Ibn Abi Layla (d. 148/765), Sufyan al-Thawri (d. 161/777), al-Layth Ibn Sa’d (d. 175/791), Sharik al-Nakha’i (d. 177/793), Abu Thawr (d. 240/854), al- Awza’i (d. 157/773), Ibn Jarir al-Tabari (d. 310/922), Ishaq bin Rahawayh (d. 238/852), and Dawud bin Khalaf (d. 270/883), who founded what became known as the Zahiri school. Ibn Hazm (d. 456/1064), who was jurist from the Zahiri school, wrote a multivolume work titled
al-Muhalla
. Although the Zahiri school is now long extinct, Ibn Hazm’s book continues to be very influential among Islamic legal specialists.

“Islamic law” is a shorthand expression for an amorphous body of legal rulings, judgments, and opinions that have been collected over the course of many centuries. On any point of law, one will find many conflicting opinions about what the law of God requires or mandates. The Islamic legal tradition is expressed in works that deal with jurisprudential theory and legal maxims, legal opinions (
fatawa
), adjudica- tions in actual cases, and encyclopedic volumes that note down the positive rulings of law (
ahkam
). As noted earlier, Islamic law covers a broad array of topics, ranging from rit- ual practice to criminal law, personal status and family law, commercial and transactional law, international law, and constitutional law.

The question is: How does this substantial body of ju- risprudence relate to Divinity or to God’s law? In what way can this tradition of juristic disputations, judgments, and opin- ions claim to be sacred or Divine law?

These questions bring us to a crucial distinction that is cen- tral to the very logic of Islamic law. What is customarily re- ferred to as Islamic law is actually separated into two distinct categories: Shari’a and
fiqh
. Shari’a is the eternal, immutable, and unchanging law as it exists in the mind of God. Shari’a is the Way of truth and justice as it exists in God’s mind. In essence, Shari’a is the ideal law as it ought to be in the Divine realm, and as such it is by definition unknown to human be- ings on this earth. Thus human beings must strive and struggle to realize Shari’a law to the best of their abilities. In contrast,
fiqh
is the human law—it is the human attempt to reach and fulfill the eternal law as it exists in God’s mind. As such,
fiqh
is not itself Divine, because it is the product of human efforts.
Fiqh,
unlike Shari’a, is not eternal, immutable, or unchanging. By definition,
fiqh
is human and therefore subject to error, al- terable, and contingent.

With this background, we can now highlight the fundamen- tal differences between puritans and moderates on the topic of law. The moderates strongly distinguish between the eternal law, as it exists in God’s mind, and the human effort to under- stand and implement the eternal law. In effect, this means that most of what is called Islamic law is a human product subject to error, alteration, development, and nullification. The eter- nal law as it exists in God’s mind is perfect, but it is also inac- cessible to human beings. Human beings make a best effort to reach for and understand the eternal law, but it is arrogant and offensive to ever claim that human beings could be certain that they have successfully comprehended the eternal law. Therefore, moderates insist that a jurist must humbly admit

the possibility that what is claimed as Islamic law is subject to error. A jurist must expend his best efforts to understand the eternal law, but a jurist must never assume that his opinion is for certain identical to the eternal law.

In principle, puritans do differentiate between the Divine law (the eternal law as it exists in God’s mind) and human ef- forts to understand that law. However, in reality puritans end up obscuring the distinction to the point of rendering it mean- ingless. Puritans contend the range of
fiqh
or space where
fiqh
may be appropriately applied is limited to cases where God has left matters open to debate and difference, but
fiqh
may not be applied to any question or issue that God has precisely and decisively resolved for Muslims. Put differently, human beings may apply their understanding to all issues that God has left open for debate, but they may not attempt to apply human understanding to any matter that God has decided in an unequivocal and decisive fashion.

Thus far, puritan methodology is uncontroversial—many Muslims would agree that when God speaks decisively and clearly, humans should listen and obey. The problem, however, is that for puritans the range or scope of issues that they be- lieve God has excluded and foreclosed to human understand- ing is very sweeping. For the puritans, regarding most matters and issues pertinent to human existence, God has revealed a precise and exact law, and all that remains is for Muslims to implement the law. According to the puritans, 90 percent of what they consider the revealed law is not open to debate or discussion, alteration or change. Only 10 percent of the law is open to debate and differences of opinion. Therefore, accord- ing to the puritans,
fiqh
is applicable to no more than 10 per- cent of all legally pertinent issues. Conversely, Shari’a covers 90 percent of all human affairs. Put differently, as to 90 per- cent of all issues, the Divine Will can be perfectly realized and

understood with absolute precision, and only 10 percent of all issues are open to human speculation, debate, and disagree- ment.

Interestingly, following the example of ‘Abd al-Wahhab, puritans have rather arbitrarily picked the Hanbali school of law as providing the only valid and correct legal system. The reality, however, is that puritans are very selective—and op- portunistically so—even with the jurists of the Hanbali school. Puritans selectively pick certain Hanbali jurists, such as Ibn Taymiyya and Ibn Qayyim al-Jawziyya, and treat the views of these jurists as immutable and beyond questioning. Moreover, puritans even read jurists like Ibn Taymiyya and Ibn Qayyim al-Jawziyya in an abusively selective manner— they adopt whatever they find in the writings of these jurists that confirms their worldview and ideology, and conveniently ignore the rest.
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In addition, puritans will never cite or refer to Hanbali jurists such as Ibn ‘Aqil or Najm al-Din al-Tufi, who were well known for their rationalist and liberal approaches. As mentioned earlier, this kind of opportunistic selectivity was exactly what ‘Abd al-Wahhab did. Perhaps it is not surprising that the Hanbali jurists that puritans select to follow are typi- cally the most hostile to women and to non-Muslims.