Shaykh Abdal Hakim Murad, in his masterful lecture, Imam Malik – Abdal Hakim Murad: Paradigms of Leadership, provides an in-depth summary of the intricacies of hadith and Shari’ah. And while these details are quite intricate, they nevertheless represent prerequisite knowledge of these traditions. Without this basic prerequisite knowledge, one cannot be said to hold any reliably accurate view of them. I have transcribed some of the more crucial parts of his lecture here while also adding some of my own elaborations, primarily by way of referencing the works and writings of other notable scholars and authorities on these subjects.
On Hadith
Understanding Shari’ah requires an understanding of classical or Traditional Islam. At one point, one could gather a representational understanding of Islam through the sort of books that were in circulation in traditional society. Konrad Hirschler, in his work “Medieval Damascus: Plurality and Diversity in an Arabic Library: The Ashrafiya Library Catalogue”, describes the classical religious school [madrasa] library in Damascus, which represented the kind of books that the scholars thought should be in circulation. It had a diversity of books that ranged from Plato to Ismaili books to books of the various schools of Islamic thought [madhab]. He writes “This tolerance made it possible to accept opposing systems of values and norms without necessarily insisting on the exclusive truth of one’s own system.” Intellectual life in these societies was thus less characterized by the quest for the one and only truth but rather by the searching for probable and likely answers. That is classical Islam.
This would come as a surprise to many, both Muslim and non-Muslim alike. But that is because certain identity sensibilities are being piqued by virtue of the fact that this is not an ideological take on Islam, nor is it an Islam in which the madrasas are directed by the regime to arrive at certain positions on politics. Rather, the multiplicity of opinion is a part of classical Islam. Imam al-Shatabi famously said that if Allah wished the Shari’ah to be a single set of statutes, revelation would have looked much differently. As Shaykh Abdal Hakim Murad explains, so much in the Qur’an is hard to figure out because there are difficult words in it. Some words in the Qur’an are acknowledged to basically be of mysterious significance. There are words in the Qur’an that do not appear anywhere else in the Arabic language either, so the question that we must ask necessarily is, since the Qur’an as we know it is by Divine Design, why use mysterious words rather than ones that people could readily understand?
The juristic consensus, as al-Shatabi explains, is so that there could be divergence and multiplicity in thought, understanding, and action. This is one reason for the untranslatability of the Qur’an, that at the end of the day when it comes to translation, you have to come down on the side of a particular belief as to what a particular verse means because you cannot maintain the ambiguity in a translation. It would just not make any sense to a reader, nor would it capture the spirit of the verse itself. While translation cannot be considered the original, partly because it cannot contain the ambiguities of the original text, in the multiplicity of translation and interpretation it is possible to contain the universalizing spirit of the text. It is this dimension of the text, its metaphysical origin and purpose, that is the true and universal component that is applicable for all times precisely because the text, as far as application goes, allows for this.
“He is the one who has sent down upon you the Book in which there are clear verses; they are the mother of the book; others are mutashabih…”
Qur’an 3:7
From the beginning, we have an imposition of a culture of ambiguity and a religion of diversity. Islam is regarded as the only religion with an oceanic scriptural basis, and while this is true for the Qur’an, it is even more so for the hadith. This may come as a surprise to many, especially those who very foolishly decide to investigate Islam by jumping into this abyss of the hadith corpus, or at least the corpus that is available online in badly translated English, thinking it no more than a shallow puddle. Instead, they have their intellects swallowed whole, either becoming confused and abandoning the venture altogether, or they delude themselves into believing that they have arrived at a sound understanding; the latter is especially true in the area of polemics against Islam by non-Muslims. As the great hadith scholars [muhadithun] of the past said, whoever approaches hadith without a guide will drown. Ibn Wahbn, one of the greatest scholars of hadith in Islam, said that he learned so many hadith that he became confused, and “were it not for [Imam] Malik and Layth, I would have perished from hadith”. So now you have common people buying Bukhari and becoming confused, often thinking that they have arrived at an understanding or even a refutation where in the past 1500 years nobody before them had ever arrived at.
Studying hadith can be impossibly complex if you’re lacking a formal education in it. The online world is full of both Muslims and non-Muslims engaging in autodidactism, particularly in the areas of debate and apologetics, but making very basic mistakes and arriving at deeply unsound conclusions. These unsound conclusions are not only in the areas of jurisprudence, but also more alarmingly in the area of metaphysics, and therefore, fundamental belief [‘aqida]. Originally, hadith books were never meant for public consumption, they are not meant for laymen; they were meant specifically for scholars, both those established already and those in training. One example that demonstrates this point is the fact that the original authors included many weak and fabricated hadith on purpose in their collections among the many other categories of varying weights and considerations. However, they also included their notes on how to identify them based on various considerations and markings, including by the contents alone without reference to the chain of narration [isnad]. However, you do not see those notes in published hadith books today, so it is said by our scholars that one of the greatest catastrophes of the Muslim world was the mass publication of hadith at the turn of the century by the newly established Saudi printing press. Moreover, a lot of false hadith found their way into early collections, even authentic collections over time; Bukhari alone has around 80 unreliable narrators, so a greater number of weak and fabricated hadith may also exist within its collections. And this fact does not take away from the incredible accuracy of these hadith collections, but it is important to recognize that they are not infallible.
Professor Hashim Kamali explains the reality of authenticity in his work “A Textbook of Hadith Studies: Authenticity, Compilation, Classification, and Criticism of Hadith”. Imam Muslim, after compiling his work, which took fifteen years, showed it to al-Razi. Thereafter he had implemented his suggestions concerning hadith that were defective [‘illa] and included. As a result of these suggestions, only hadith that were clear of ‘illa were now included. Muslim went on record to say that his work consisted of sound hadith but noted “I did not say that what I have verified in this book is devoid of weak reports.” Imam Muslim and Imam Bukhari were stringent in their collection of hadith; Muslim was careful in his use of haddathana and akhbarana, in that he reserves the former for direct hearing by the disciple from the shaykh whereas the latter is used when the disciple has read back to the shaykh for his approval and verification. Bukhari not only used a similar method to ensure that the immediate links in the isnad were contemporaries of one another, but also that they had actually met and direct hearing took place between the teacher and the disciple. For Muslim, it was sufficient if the two were contemporaries even if they had not actually met one another. Muslim was content with the possibility of an encounter whereas al-Bukhari required proof of an actual encounter.
Al-Nawawï said: “The scholars have agreed that the soundest of all hadïth compilations are the two Sahïhs of al-Bukhàrï and Muslim, and the vast majority have agreed that the soundest and most beneficial of the two was al-Bukhàrï’s.” He continued: “The totality of its hadïths are 7,275 with the repetitions and about 4,000 without.” Despite such stringent qualifications for collecting hadith, whole collections cannot be regarded as infallible. Although more of al-Bukhari’s transmitters qualified for the characteristics of having a just character and a retentive memory, there still exists among the transmitters those considered as weak. However, such stringent requirements consequently resulted in there being fewer transmitters in al-Bukhari that are considered weak than there are in Muslim. Thus, it is noted that, according to Kamali, of the total of 430 or so of al-Bukhari’s transmitters, only about 80 have been questioned or labelled as weak, whereas of the total of 620 narrators of Muslim, the critics have raised questions for over 160. About 89 of al-Bukhari’s ahadith have been identified to have some defect, whereas in Muslim’s collection, such hadith have been numbered at 100. (Pg. 38) In his Kitàb al-Tatabbu‘, al-Dàraqutnï argues for the weakness of 78 hadiths in al-Bukhàrï, 100 in Muslim, and 32 based on criticism of the isnad and subject matter [matn].
The ‘ulama’ of hadith have designated ‘Ilal al-hadith as a separate branch of hadith studies. The discussion here is primarily concerned with the study of defects of a less than obvious type in hadith, defects that often escape the naked eye in that they may be present in a hadith even if the hadith appears to be otherwise intact. An ‘illa may relate either to isnad, such as elevating a suspended hadith [raf’ al-mawaquf] or connecting a disconnected hadith [ittisal al-mursal], or to the matn, such as a subtle change of a word, superfluous addition, or insertion of words that do not belong to the text, known as idraj, and insertion sometimes of one hadith into another, or indeed the ‘illa may relate to both the text and to the isnad. Al-Hakim al-Nisaburi has stated that the focus of attention in this branch of the hadith studies is not on hadith which clearly falls under the rejected [mardud] category, nor is impugnment [al-jarh] of concern to ‘ilal al-hadith, for a rejected hadith is usually set aside and abandoned. Rather, in ‘ilal al-hadith one looks into the works of reliable narrators who might have themselves failed to notice the defect in the hadith they have narrated. ‘Ilal al-hadith basically looks into the retentiveness, comprehension, and knowledge (al-hifz, al-fahm, al-ma’rifa) of the qualified narrators of hadith (pg. 96). Al-Hakim al-Nisaburi identified ten different varieties of ‘ilal and the ways that ‘ilal can find its way to a hadith, which he says, cannot be exclusively enumerated nor defined. To illustrate a defect that relates only to the text, Hashim references a hadith recorded by al-Bukhari in which the Prophet ﷺ responded to some of the expectations being heard from among members of the congregation in regards to the distribution of the wealth acquired from the collection of the poll-tax in Bahrain. The part of the hadith in question has the Prophet ﷺ say “…it may distract you from the right path, just as it distracted them (fa-tulhikum kama alhathum).” In another version of the same hadith the last three words have been recorded as “…it will destroy you as it destroyed them (fatuhlikukum kama ahlakathum).” It has been suggested that a Companion who was closer to the Prophet ﷺ may have heard something different from those further away from him (pg. 99).
This is an example of how, despite the excellent qualities of the narrators, ‘illa may still inadvertently be found in hadith literature. For an example of an ‘illa that is detected in the isnad, Kamali refers to a hadith narrated by Ya’la b. ‘Ubayd al-Tanafusi, from Sufyan al-Thawri, from ‘Amr b. Dinar, from Ibn ‘Umar, from the Prophet that “The buyer and seller have the option to (retract their agreement) until they part company”. It has been discovered that Ya’la had mistakenly recorded ‘Amr b. Dinar, instead of ‘Abd Allah b. Dinar. There is no defect in the text of the hadith however (pg. 99). Defects of these types can easily pass unnoticed by readers who are not knowledgeable on the narrators of hadith, their contemporaries, and the expectations therefore of the place of particular narrators in the relevant isnad. Defect is identified when something unexpected or unusual is noted concerning the isnad or the actual text of the hadith. Instances are also found of plausible additions of a phrase to an originally shorter hadith, which either explained the hadith or gave additional detail, but was found upon closer examination to have been added by the narrator himself. Often, one will find in the more reliable sources of hadith, particularly in the jami’i of al-Bukhari and Muslim, shorter versions of longer hadith found in less reliable sources. (pg. 102)
There are maybe a million different hadith reports, and so the hadith corpus is said to be the pre-modern world’s largest single body of literature. Many hadith are even considered as revelation of different degrees, which deepens the level of interpretation required. The complexity of hadith is first glimpsed when we analyze the sophistication of the system of categorization, which increases exponentially when we try to figure out how to navigate hadith, especially those that are apparently in contradiction with each other or even with the Qur’an. If all hadith were of equal weight, it would be a simple matter of applying a very flat and linear sort of logic to analyzing them, but that would likely cause more problems than solutions. But now that there are different weightings as far as reliability and soundness goes, there are now different layers of hadith that must be applied with a logic that is now multidimensional. Whether it is the sound [sahih], and the weak [daif], and the transmitted [mursul], and the disconnected [munqati], and the good [hasan], and the scarce or strange [gharib], and the other dozens of categories, and then simply on the basis of the soundness or dubiousness of attribution, formulating a truly integrated understanding of all of the hadith in relation to each other and with the Qur’an is a momentous task, almost like assembling a vast three-dimensional puzzle. The complexity increases exponentially once again when you get into the question of what the contents of the hadith actually mean, what their context is and how that in turn affects the meaning, or even whether it is bound by context and is specific in view or if it is a general view unbound by context. And then on top of that, we must also consider what the early Companions [Sahaba] made of those hadith, whether there is a consensus among them on the meaning or a difference of opinion [ikhtilaf], and then whether or not these opinions were also contextualized. We must also look to what the early Muslims thought of those hadith as well, much of which was contained in the footnotes of the early compilers.
We have all of these people who barely know Arabic telling you what Islam is, yelling away on youtube because of something they read in Mohsin Khan’s translation of Bukhari. But most people could not even answer the question “which version of Bukhari are you using?” But as Shaykh Abdal Hakim Murad points out, this was basic requisite knowledge in the hadith scholastic tradition, so what we have today is a sorry sign of our decadence unfortunately. There are plenty of hadith that aren’t part of these collections, such as the hadiths in “Musnad al-Shihab”, the hadiths in “al-Kabir al-Tabarani”, the hadiths in the Musannaf of Abdul Razak or ibn Abi Shayba, and the dozens and hundreds of collections which also have hadith in them that the jurists know and take into consideration. And simply because you do not know about them does not mean that they do not exist, a very important and common sense attitude that is lost on people today. Part of the problem, however, is the “scripturalization” of the sound six collection. However, this scripturalization of the sound six, as if Islam is the Book and then six more books, is a complete aberration of religion, a westernization of Islam. And all of those hadith are never going to be translated. Even so, a million hadith and all of their different versions and translations will never give you access in a juridically reliable way as the original, so another requirement is having mastery of classical Arabic.
We can look to Imam Malik’s collections as an example. One of his most important books is “al-Muwatta” or the Muwatta. Shaykh Abdal Hakim Murad explains that People today tend to assume that this is the 6th or 7th book of the “sacred six” hadith collections, which is a popular way of saying that there are only six sound hadith collections. The reality is that there are hadith collections that most people haven’t even heard of, which is why you can’t really be a fundamentalist in Islam. To be a fundamentalist is to assume that your knowledge of the vast tradition is all encompassing. But these hadith are too numerous and spread very widely. The second catastrophe today of the Muslim community, following the first one of the mass publication of badly translated hadith, is the loud preaching and teaching of the deluded fundamentalist, both Muslim and non-Muslim alike.
The Muwatta is Imam Malik’s own compilation that the jurists of the city of Medina approved of. The word “muwatta” gives us a clue about its basis. Muwatta means “the approved”, which denotes the description of animals that have trampled the ground thereby leveling it. In the same way, the learned teachers of Medina applied their generational understanding upon Imam Malik’s work, approving it, stamping out any errors, and refining it, thus it was called “al-Muwatta”. His teacher, ibn al-Majishun also has a Muwatta, and so does ibn Wahbn. A Muwatta is a category within musannaf, which means that it is not arranged by narrator but by subject. Some collections, like the musnad of ibn Hanbal, are arranged by the narrator.
Those who think that you can understand hadith by pulling translations off the shelf, or read single editions, should be aware of the fact that hadith compilations often had many different versions. The Muwatta, for instance, is not just there in a single version. There are at least 75 different versions, and again this is the Islamic culture of ambiguity, but it is hard for the modern mind to understand this at times. This is a significant point. Often someone will read an opinion found in a commentary or in a hadith collection, but they won’t know which version they just read, and if there are dissenting opinions found in other versions. But we tend not to go there due to laziness or attachment to one’s opinion. In the Islamic scholastic tradition, teachers like Imam Malik refine their works. The different versions are due to the original author’s own recensions, it is not like a monograph nowadays where one’s work is perfect and is sent off to the university press.
As well as there being different Muwattas, there are also lots of different commentaries. The commentaries are fundamental for understanding the depth of these texts. They contain sound hadith as well as the sayings of the Companions and their fatwas, as well as Malik’s own views.
Scholars have debated on the soundness of the hadith in the Muwatta. There are many hadith that appear to skip a generation in their chain, called mursal hadith. Dr. Umar Faruq Abdallah in his book “Malik in Medina” explains why in some cases a mursal hadith that omits the name of a companion is regarded as having more evidentiary weight than a hadith that is ahaad that has a single line of narrators. It is not an example of Imam Malik’s carelessness as many modern people think.
But why all of this complexity? It is because reality is complex, and we usually do not appreciate how complex it really is until we try to contain it within written text. The complexity we see in the vast dimension of hadith was all due to the attempt to preserve the reality of the Prophet ﷺ, which in turn was all based on the love that the Companions had for the Prophet ﷺ. That one of those pearls should be lost would be a great tragedy, and so the determination passed down through the generations cannot be sincerely captured except by the purified and sincere heart; for this reason, early compilers saw the character of a narrator to be paramount to the authenticity of the hadith since character was a manifestation of purity of heart. As Shaykh Abdul Hakim Murad concludes about this point of immensity of hadith, you cannot construct a fundamentalism or religious extremism based on a scripture like that. You cannot do fundamentalism or extremism in Islam because it’s just too enormous, too diverse, there’s too much of it to arrive at a narrow reading. A fundamentalist or extremist conclusion is one that is fundamentally insular and rejecting of the vast Islamic tradition, it is more of a reflection of absence and ignorance of Islamic knowledge as opposed to too much of it.
On Shari’ah
Now, if the enormity of Islam’s scriptural tradition necessitates an inherently diverse religious tradition, then the application of the Islamic legal tradition must also necessarily be equally diverse otherwise it would not be reflective of the religious tradition. An oversimplification of the legal system represents an oversimplification of the religion itself, a caricaturing of it typically through textual literalism and the lack of philosophical fluency. The jurisprudential tradition, like the hadith tradition, is just as nuanced as it is vast. It is a place that can only be navigated by the proficient, by those who are trained, and those who possess intelligence and discernment.
Shaykh Abdal Hakim Murad argues that Muslims nowadays look at “Islamic Law”, already a problematic translation of Shari’ah, in the same way they look at western statute law. Much of this has to do with the fact that Muslims and non-Muslims alike have reduced Islam to a legal tradition when in reality it is first and foremost a spiritual tradition. Wael Hallaq writes in “The Impossible State”, that the central fact is that Shari’ah is a grassroots system that takes full account of and operates within the social universe. It travels upwards, with diminishing velocity, to affect in varying degrees, the modus operandi of the state, perhaps even helping to form it; the law comes up from the population below to change and shape the state above. The jurists themselves emanate from the very society which they serve. In other words, the state is not appointing jurists from above to below and enacting law on local levels from a bubble of socio-economic elitism that is wholly disconnected from the average person. Rather, it is society itself that is producing the jurists and the law and the judges, and it is the state that is affected by this. The state is passive, not active. It is one of the most striking features of Shari’ah as a doctrinal and jural system, that it is generated on the very level that it is applied.
As Shaykh Abdul Hakim Murad points out, this is in contradiction to the law of the modern nation state, which is superimposed from a central height in a downward direction. First originating in the mighty powers of the state apparatus, the law is deployed in a highly structured but deliberately descending movement to the individuals that comprise the civil polity. Ultimately, it is the ruling elite that is producing the laws that govern lower society, and the problem that is inherent in this dynamic is that an abuse of power is going to happen in some shape or form, as subtle as it may be even in the form of the new social order. This descending movement of the legal system represents precisely the constituting of the social order, those citizens who are harnessed as national citizens, fathers and mothers in the nations firmaries, economic productive agents, tax payers, soldiers, etc.
Hallaq argues that the Shari’ah is the greatest legal system ever evolved in human history, but this would come as perhaps a great absurdity to most people because they have in mind Islamist examples. However, as Shaykh Abdal Hakim Murad points out, the modern Islamist model of the Islamic state is completely and inherently alien to Islam, which has appropriated the modern western model ironic enough. Instead, the traditional pre-modern model has a space where religious communities are self-regulating and self-sufficient, and that meets the needs of its diverse membership. But this has nothing to do with some sort of progressive latitudinarianism, rather, it is a natural pluralism based on a strict adherence to not only the principles of Shari’ah but also to the way it was always meant to be implemented. The Tradition itself is inherently inclusive and pluralistic precisely because it is also a moralizing force rather than one that eschews morality. As Plato wrote, art is the highest form of philosophy, and the highest form of art is politics because it is the art of how to live together beautifully. Beauty is expressed through art where there is achieved harmony, and so, for society to be harmonious is indeed of the greatest expressions of beauty.
Shari’ah is therefore inherently philosophical. It starts with the transcendent First Principles and works its way down to the level of contingent particulars as expressions of these transcendent Principles. Inherent in the methodology is a system of logic that is equally sophisticated as it is valid, denoting a complex structure underpinned by a beautiful symmetry which aims always with the utmost accuracy towards arriving at the soundest conclusions and harmonious outcomes. The scholars of law say that if Shari’ah were to be reduced to one principle, it would be the Principle of Benefit [Maslaha], which pertains to the public good and the avoidance of harm. The scholars of law derive from First Principles the contingent particulars, which are the rules themselves. Rules must meet the objectives of the First Principles in order to be considered not only philosophically valid but also just and ethical, and thus, real or actual rules that have meaning and value and are worth obeying.
Abdallah Bin Bayyah explains that the aim of Shari’ah is to achieve “moderation”. By moderation he means a “comparison between the universals [of Shari’ah] and its particulars; a balance between the core aims [of Shari’ah] and its secondary branches and a strong correlation between the fixed [texts] and consideration for the changeable [texts related to] benefits [where applicable] when giving religious edicts and opinions without additions or subtractions.” Through moderation, we find the proper expression of those universals through the particular edicts, rules, and legislation that impacts society. The proper expression of the particulars is oriented around the Maslaha. Hashim Kamali explains that the purpose of the fatwa is to keep the Shari’ah “in tandem with social reality” since it is only within an understanding of the social reality that a valid and appropriate rule or religious edict may exist.
Shaykh Hamzah Yusuf contextualizes the laws within the ontological paradigm of Islam itself, which necessitates a teleological basis of the law; that they exist in order to serve human beings, we do not exist to serve the law. If the law does not serve you, he explains, you are permitted to abandon it, and this is actually how we follow the law. But this requires not only knowledge but more importantly wisdom, and not only in terms of understanding how particular laws impact our physical reality but also our spiritual reality precisely because traditionally we understood that there was a relationship between both. Knowing that there is a relationship is what gives us foresight as to the effects that particular laws may produce, both on an individual level as well as on a societal level. This principle understanding, therefore, is not to be confused as a system of laxity that is meant to constantly make space for the voracious appetites of the ego, which inevitably destroys us. But it does acknowledge the reality of the ego and the diverse states that embody society, and that there must be a proper equilibrium if society is to progress in any meaningful sort of way towards healthy and harmony with nature.
Many people find this confusing, even offensive or troubling, because they worship the law as an external marker of a fixed Islamic cultural identity by which they define themselves. A conservative attitude towards custom takes precedence over a conservative attitude towards principles, which is no doubt a central feature of modernity and the age of ego and identity. Shaykh Hamza Yusuf continues, explaining that if people are following the law, and the law is bringing about harm, then they are not actually following the law nor are they worshipping God since the law was created by God to serve humans on how to best worship God in the first place. Despite how much we may cling to an outward display of religious piety, if we are causing harm, and worse than that, we do not care, we can hardly be said to be pious. Rulings are contingent on the objectives of the First Principles, and if a rule is not bringing benefit to the people, and is instead serving as a source of harm, it must be abandoned. To enact a rule regardless of such considerations, even if it had a place in traditional societies, would not be considered as following the Shari’ah but instead be considered as a violation of it.
The Prophet ﷺ said “The sign of Ignorance is when you implement [punitive laws] on the weak and leave alone the strong.” The traditional understanding of Shari’ah is that it emerged after a climate of social justice, fraternity, and community and social bonds had been established. Shari’ah was meant to protect these bonds of trust that maintained the community, which could be said to be one that is cohesive and that promotes living arrangements that are in harmony with nature. An important pillar of a healthy community is that the wealthy and the poor are equal before the law. Without this element of justice, the community would be in disharmony with nature, and we would begin to see alternative systems for enacting justice. So when we think about whether or not a society is following the Shari’ah, it must be determined first if these conditions are present. A society in which the wealthy and the powerful implement a system from which they are immune is not Shari’ah in any sense of its reality. It is only a caricature of it, and so for modern people to state that Saudi Arabia for instance is practicing Shari’ah is a grave injustice that merely validates delusion and confusion and misguidance.
Professor Kamali explains that in the interest of social order and general public interest, that is the spirit, purpose, and the objective(s) of the Principles [maqasid] of the Shari’ah, the Shari’ah would discourage an otherwise Islamically acceptable custom if it is clear that it will create unnecessary civil unrest. Depending on the probability and seriousness (among other factors) of the harm and/or benefit expected, a permissible act may be discouraged or even prohibited if it will create or lead to a situation that does more harm than good, or whose disadvantages are greater than its advantages. This relates to another Principle called the Principle of Blocking the means to a Prohibition [Sadd al-Dhara’i], which follows the logic of “choosing the lesser of two evils”.
For example, the law of corporal punishment relating to theft can be reliably proven to cause more harm than good in most, if not all, societies today. Some of the arguments that demonstrate this perspective make reference to the systemic poverty, inequality, corruption, elitism, and the fact that those in power would not administer it properly or be subject to this law themselves due to political and economic advantage and privilege. The second Caliph, ‘Umar bin al-Khattab, based on similar considerations, abolished the traditional hadd rule relating to theft because it was not consistent with the Maslaha during his current context, which is one of the proofs that rules are not universal but rather contingent. Perhaps prohibition would be an example of a worthy rule that was not appropriate in the 1920’s Western context. Although the objective of eliminating alcohol use is regarded as a virtuous goal, attempting to achieve such a goal through prohibition has caused more harm than good, including the rise of gang influence and violence in society. And so, according to the Principle of Sadd al-Dhara’i, which is the blocking of the means to an expected [destructive] end by choosing the lesser of two evils, in this case gang influence and violence which is likely to materialize if the means towards it, in this case prohibition, are not obstructed, prohibition is therefore understood as not an appropriate rule.
On the other hand, we see this Principle present through the Qur’anic injunctions that address alcohol use among the early Muslims. Drinking alcohol was a strong custom of the Arabs, but to suddenly legislate prohibition would likely lead to hardship. And so the solution was instead to first develop people’s understanding of Islam and to cultivate a sound spiritual state through inner training and discipline. Once that was accomplished sufficiently, and the people in their hearts had distanced themselves from desiring alcohol on a fundamental level and preferring the spiritual realities that alcohol otherwise inhibits, legislating its prohibition was now of the highest benefit. When prohibition was enacted, the people abandoned alcohol without hesitation because they had no attachment to it. Most Muslims by then found it revolting because of how they knew it blocked spiritual ascent. This demonstrates two important points: that the value of laws are according to the benefit they derive for those subject to them, and that laws in and of themselves are not timeless. It also highlights the fact that you cannot separate the legal side of society from its cultural side. They must exist in tandem and be reflective of each other, which is precisely why the post-modern project of moral relativism is so disastrous a project. It is the Principles that are timeless and universal, and regardless of our social conditioning, will still resonate with us on a fundamental level. But it is up to society to mature spiritually for the best possible laws to emerge. But being able to navigate the social realm and develop appropriate legislation in the right way requires wisdom and understanding of the human condition, and for this there needs to be strong institutions in society that teach morality and ethics, and cultivate spiritual maturity. But this cannot happen without a connection to Tradition, which in turn through it connects us to the illuminated hearts that received revelation and achieved Enlightenment.
The difference in how prohibition was approached reflected two vastly different legal traditions. A society subject to Shari’ah is one that is largely self-governing in which law and morality are intertwined and operates in the interests of that society. This enables a wise approach towards social problems such as alcohol use. By contrast, a society subjected to the nation state is one that is ruled from above, and thus is ignorant of social realities and the real world effects on the people. It therefore eschews any real moral considerations despite how lawmakers may frame it. On one hand then, we find a socially conservative tradition such as Islam take an approach of latitude towards alcohol while a socially liberal society take an approach of restrictiveness, but with opposite results. This is yet another strange paradox, which can only be appreciated when it is understood that Shari’ah is not statute law.
The state does not legislate Shari’ah, and so the modern contention or concern by modern critics of Islam of states adopting and proposing Shari’ah does not make much sense. That is not how Shari’ah works because it is not statutory law. You cannot have, for instance, the Pakistani parliament or the Saudi monarchy regard a particular law as Islamic and then implement it on the people of the country because Shari’ah does not give the state or parliament or monarch that right. It is God’ law interpreted by the jurists in many different ways. Once the state starts to impose Shari’ah , then it necessarily becomes a type of totalitarianism where the government is now performing juristic independent reasoning [ijtihad] and making judgements on the ambiguities, which they do not have the right to do. Only the trained scholar of law has that right, and they emerge from the societies they grew up in, understanding the nuances of these very societies.
For this reason, traditionally, for a person to become a jurist they also had to master various areas of knowledge that came under the jurisdictions of their judgements. In doing so, they would acquire both the knowledge and the wisdom to be able to understand how to derive, enact, and remove rules that benefited or harmed the people, both on a general level and also on a particular or individual level.
The most common mistake that people make about Shari’ah is reducing it to a set of rules. A mere set of rules that must be maintained at all times in all places ignores reality and produces nothing but harm. Shari’ah is “The Way” to achieve moderation as the comparison between the universals and the particulars, to reduce it to a mere set of rules is a gross oversimplification. It is not beautiful, it is ugly. Shari’ah, as a legal philosophy seeks to express beauty through harmony. And so, when we talk about Islamic law, we ought to be talking about methodology and philosophy, and especially metaphysics.
Imam al-Shatibi said in al-Muwafaqat:
“The competent mufti, of the highest authority, is one who carries people to a natural balance which is appropriate for the masses. He does not lead them to the way of extremism, nor does he lean with them towards the excess of unbridled liberalism. The evidence for this is that it [the way of balance and moderation] is the straightway which the Shari’ah brought. Thus, it operates on the premise that the goal of Shari’ah, for the one charged with worship, is to bear [his-her religious articulation], upon moderation, without any excessive hardship nor disproportionate ease. Therefore, if the Mufti goes beyond this [balance], in dealing with those who seek fatwa, then he has left the aim of the law giver [Allah]. For that reason, anything that goes beyond the range of moderation is considered debased by the scholars.”
Imam al-Shatibi
Philosophy, as Nietzsche said, is merely a confession of its author. It is, at bottom, an articulation of one’s relationship with the Absolute, and thus it is a statement about metaphysics. Shari’ah is therefore better translated using Dharmic and Neo-Confucian terms such as “Divine Law”, “Sacred Law”, “Natural Law”, or “Heavenly Law” as opposed to “Islamic law”, most likely an orientalist term anyways. The purpose of Islam is to teach people how to know God, which occurs through reconnecting back to nature on the most fundamental dimensions of Being. But it is also said that the people who we have relationships with are our mirrors, and reflected in them we see ourselves. For us to be in harmony within, we must be in harmony with others, and this cannot happen when there is injustice, when we are prospering at the expense of our neighbor. Shari’ah, therefore, is a vast system that attempts to facilitate harmony through and with the external environment so as to facilitate one’s inward journey as opposed to stifling it. And this of course ties into the philosophical and metaphysical underpinning of individual and collective responsibilities in society.
A society that is dominated by commercialized algorithms designed to make you addicted to external stimuli, an addiction which can only be soothed temporarily by the dopamine rush by way of consumption is, for instance, a society that stifles the spiritual journey. It is a society that reduces the quality of relationships also because we now only really look towards consuming others to satiate our egos. It is a society that is not at all in harmony with nature. Humans are, after all, social creatures. We are largely shaped by our environment, and most people do not possess the skills of detachment whereby they may cultivate an inner world that is “an island unto itself”. This is a rare trait that belongs to the reformers and the revivers. Understanding therefore that Shari’ah is a legal philosophy means taking such circumstances and social realities into account. Any philosophical system that is managed by non-philosophers, or simply those who are very bad at philosophy, will always lead to ruin by virtue of the stupidity and the ignorance and the lack of wisdom that is at the helm; when society has become a zoo, then it is the wildest of animals that rule and that are followed. This of course echoes Plato’s theme of the necessity of the Philosopher-King, of the academy and of spiritual cultivation. Unlike modern western models of governance and law care to admit, the early Muslims understood that at bottom, beneath any sort of social structure, it is the quality of the people that determines its health.
As Shaykh Abdal Hakim Murad explains, in our civilization, this is where the essence of life is. It is where the Divine, through morality, intersects with the grittiness of people’s lives, and where the function of the jurist is conscientiously and in an egoless way to create a path for people to engage positively with the gift of life and God’s creation. At the same time, it is to see everything as sacred. This is religious law but it is sacred law. It isn’t really “Islamic law” as modern people understand it, it is a legal tradition in general, a legal philosophy that seeks to reflect the Heavenly influence upon us.
References
1. Moderation in Religious Verdicts: Abdullah bin Bayyah
2. Shariah Law: Question and Answers. Professor Hashim Kamali. Feb. 18, 2008.
3. A Textbook of Hadith Studies: Authenticity, Compilation, Classification, and Criticism of Hadith. Professor Hashim Kamali. Sept. 11, 2009.
4. Weak Hadiths – Shaykh Hamza Yusuf
5. Following Hadith Directly From The Books – Hamza Yusuf
6. Why not take knowledge directly from Quran and sunnah — Shaykh Hamza Yusuf
RoadToGlory.de
January 6, 2022 — 5:50 pm
Great content! Keep up the good work!