By Askiah Adam
Free-lance writer and researcher, a student of philosophy with emphasis on Islam. A related and important area of research undertaken over many years is Woman In Islam. A recent area of research interest is Islam post-9/11 concentrating on the Indonesian experience. A Malaysian by birth I have a strong fascination and affinity for Indonesia. A founder member of the Malaysian NGO Sisters In Islam (SIS). A Fulbright Scholar in Islamic studies (1999) and API Fellowship of the Nippon Foundation (2004-2005).
It is argued that Islamic extremism/fundamentalism has economic causes. Of greatest concern, however, is that a triumphant extremism/fundamentalism has, without fail, seen justice to be synonymous with oppressive practices.
In Malaysia, for example, when the Islamic party PAS regained power in its stronghold north-eastern peninsular state of Kelantan, it attempted to enact the hudud. Only the Federal Constitution spared the people of Kelantan the horrors of severe punishments claimed to be divine in origin and, therefore, immutable. In a situation where the legal infrastructure is nominal the shariah courts were ill-equipped to bear the enormous burdens of a harsh system that involves such sentences as amputation of limbs and stoning to death.
Muslims everywhere cast their everyday lives around the simple faith of a merciful and beneficent God: “In the name of Allah, the Beneficent, the Merciful”. How is it possible then that Islam as practiced for well over a millennium, has been unable to allow love, mercy and kindness to surface?
2. Sources of Islamic Law
Is the law in Islam “divinely revealed or socially grounded? Positive or supernatural? Immutable or adaptive?” The answer to this question is fundamental towards an understanding of what divides the Muslim world today.
There are four sources of law in Islam: the Qur’an which is the Holy Book of revelations; the sunna or the exemplary actions of the Prophet Mohammad as embodied in the hadith; ijma’ (the consensus of the umma as represented by the scholars); and, qiyas (conclusions by analogy). For purposes of analysis, it is convenient to categorise these sources into: the basic sources (namely, the former, i.e., Qur’an and the sunna) and the rational sources embodying both the latter.
Ijma’ is arrived at through the practice of ijtihad, the method by which jurists recognize and make known the legal meaning of a Qur’anic rule or a sunna. Ijtihad gives rise to theories that are either accepted or rejected by ijma’.
These then formed what is commonly referred to as usul al fiqh, the sources of Islamic law. Note that here fiqh is used to mean law. It is not uncommon, however, for the body of Islamic law to be referred to as shariah and often these two terms are used uncritically as interchangeable.
The shariah is one comprehensive system of law that is divine in origin, religious in essence and moral in scope. Although it does not exclude fiqh it is, in fact, not identical with it. Fiqh is the science of the shariah and unlike it is a human product arrived at through ‘systematic’ intellectual endeavour in an effort to interpret and apply the shariah accurately. It is also socially grounded.
The confusion arises when there is uncritical usage of the term shariah to designate not only that portion of the law which is divinely revealed but also the human subsidiary sciences. As a consequence of such interchangeability in popular usage those who subscribe to the notion of divine origin and hence unchangeable nature of the essence of Islamic law view the whole legal system as being identical with the shariah in the pure sense. This renders the whole corpus, which evolved over some two hundred years, immutable.
As Hammudah ‘Abd al ‘Ati suggests:
“…much of this confusion can probably be avoided if the analytical distinction between the shari’ah (sic) and fiqh is borne in mind and if it is realized that Islamic law is held… to encompass two basic elements: the divine which is unequivocally commanded… is designated a shari’a in the strict sense of the word; and the human, which is based upon and aimed at interpretation and/or application of shari’a and is designated as fiqh or applied shari’a.”[i]
3. Justice According to the Qur’an and Sunna
A Muslim may offend in two ways. Firstly, an offence directly against God for one may not claim rights against God. One has only duties towards Him. For instance, one cannot question God’s existence or, as Islam is a monotheistic faith, believe in other than the one God [Qur’an: 73;9]. One may also offend against God by not performing the ritual duties enjoined – praying and fasting.
Secondly, one offends God by offending one’s fellow human. It is here that we confront the notion of ethical and social justice in Islam – our mutual rights and obligations in society; justice amongst and between persons.
“Thus it would appear there is a sense in which man as such has no rights within a theocentric perspective where God, the only reality, is in the centre: he has only duties to his Maker. But these duties in their turn gives rise to all the rights, human rights in the modern sense included.”[ii]
However, the secular concept of justice itself is an area of much contention. There is no one received definition for rendering unto everyone his or her due. D.D. Raphael in his book, “Moral Philosophy,” writes:
“Left-wingers give priority to ‘social justice’ with an intention to reform society in the direction of greater equality and the removal of poverty. A right-winger’s concept of justice (he is unlikely to use the phrase ‘social justice’) sets more store by the virtue of law and order, of stability, of reward for enterprise and merit.”[iii]
These are the two polarities of rational justice. The left-wing ideal is based on equality of well-being, where equality is synonymous with perfect justice, where discrimination towards any particular individual or group is permissible only so that they might attain ‘greater equality’ or achieve a higher level of well-being that is already the privilege of the better off. The right-wing meanwhile, gives priority to merit the concomitant of which is free competition. In the final analysis, therefore, justice must of necessity reflect the dominant ideology of the particular society.
The 19th century English philosopher, John Stuart Mill, sees the origins of legal justice in terms of man’s desire to wreak vengeance. But this in itself has no moral value because the law, for it be acceptable, must reflect the common good of society.
“what is moral is, the exclusive subordination of it to the social sympathies… when moralised by the social feeling, it only acts in directions comfortable to the general good: just persons resenting a hurt to society, though not otherwise a hurt to themselves, and not resenting a hurt to themselves, however painful, unless it be the kind that society has a common interest with in the repression of.”[iv]
Views of what constitutes fairness often vary between different societies. The Qur’an, hence Muslim societies, endorses the concept of ‘blood money’ as recompense for a human life taken should the bereaved family wish it. In other societies, however, in the not too distant past, a thief could easily hang. In short, depending on where one commits a crime, a murderer may get away with his life but not a thief. Hence, Aristotle’s observation that justice is relative to the constitutionally established principle of distribution of the particular polity.
In its form, then, there is a sense in which justice, be it legal, social or economic, is neither unchanging nor immutable in endeavouring to fulfill a function (its utility) in society. And, in essence, justice with its always ethical heart is a moral imperative. Possibly, in a completely harmonious society, egalitarian[v] maybe, justice can become uncontentious.
In Islam, under conditions of freedom (not enslaved), everyone is equal before God. Before God a free man and a free woman is indistinguishable, one from the other, in their virtues and vices [Qur’an: 57;18, 33;35, 16;96]. Spiritually then, there is no mistaking that all free persons are equal. The Qur’an does, however, acknowledge the existence of social inequalities: one’s neighbour’s bounties shall not be coveted; the poor and the destitute must be fed and be given alms [Qur’an: 107;1-8, 9;60]. Now, how is this possible?
Voltaire wrote: “all men would necessarily be equal if they were without needs. The poverty characteristic of our species subordinates one man to another. It is not inequality that is the real evil, but dependence.”[vi]
The key word here is ‘dependence’. As there can be no such thing as spiritual dependence, before God then, as per our duties towards Him, everyone who is a free agent is equally liable. Unfortunately, society’s less than egalitarian constructs do not lend themselves easily to equality. For example, much is said about us all being equal before the law, but in exercising our rights some are more equal then others because having money buys some better access to legal justice than others.
This is why in the Qur’an, the social milieu gives emphasis to the bonds between members of the umma and their relationship of interdependence built upon the principles of brotherhood that transcends physical boundaries.
“Men, We have created you from a male and a female and divided you into nations and tribes that you might get to know one another. The noblest of you in Allah’s sight is he who fears Him most.”
For its part, the sunna is explicit. The Prophet Mohammad was once asked, “When will justice be realized on earth?” He was reported as having replied, “Not until he who sees injustice being done to another suffers from the sight of the injustice being perpetrated as much as its victims.”[vii] This, therefore, is what justice must be in Islam.
Islamic justice can then be best understood in today’s perceptions, dominated as it is by western philosophical concepts, as imaginative sympathy. As a result, social relations within the umma must be premised upon one among equals where everyone is viewed as an end-in-him/herself.
Once this underlying principle of justice is understood the means to its application is obvious. In Surah Al-Balad (chapter 90) the right path is defined as: “the freeing of a bondsman; the feeding, in the day of famine, of an orphaned relation or a needy man in distress; to have faith and to enjoin fortitude and mercy.” And no choice is left to the believer: “Those that do this shall stand on the right hand; but those that deny Our revelations shall stand on the left, with Hell-fire close above them”. Accordingly, charity in Islam loses its voluntary nature and becomes for the recipient a legal right. That is how significant alms are in Islam, a condition made even more manifest in the Qur’anic prescriptions for their use.
“Those that give their wealth for the cause of Allah and do not follow their almsgiving with taunts and insults shall be rewarded by their Lord…
A kind word with forgiveness is better than giving charity followed by insult.”
Indeed, it is possible from verse 9;60 to deduce that the Qur’an expects alms to be a sizeable enough source of public income.
“Alms shall be used only for the advancement of Allah’s cause, for the ransom of captives and debtors, and for distribution among the poor, the destitute, the wayfarers, those that are employed in collecting alms, and those that are converted to the faith.”
Thus, it is clear that alms in Islam are more akin to modern day taxation with its expenditure aimed at securing social welfare and defending social integrity. These are the moral imperatives that then “is the function of law to enforce”, matters that have “a direct bearing on the regulation of life of man in relation to his fellowmen” and that the “fundamental rule of law is liberty.”
In the Qur’an “God has set a bound to human activity in order to make legitimate liberty possible to all; without the ‘bounds of God’ liberty would degenerate into license, destroying the perpetrator himself along with the social fabric. This ‘bound’ is precisely what is called law which restrains human action within certain limits, forbidding some acts and enjoining others, and thus restraining the primitive liberty of man, so as to make it as beneficial as possible either to the individual or to society. Whatever their form, these rules tend to the same end and have the same purpose, that is the public weal (maslahah). Accordingly, law [in Islam] is divine in origin, human in its subject-matter, has no other end but the welfare of man…”[viii]
But is the welfare of man served by harsh punishments of amputation of limbs? Is it served when women are regarded as “prisoners with you (men) having no control of their persons”?
4. The Secular Western Equivalent
According to Janet Radcliffe Richards, justice falls into two categories. Firstly, ‘substantial justice’, the principles of which determine “who should have what; how things should be shared out”.[ix] In relation to the law this means that the law of the land would reflect the justice or otherwise expressed by this body of principles. Secondly, ‘formal justice’, which consists of the consistent and impartial application of the laws or actions within society that are deemed just. Or, outside the realm of law, formal justice is expressed in the rules and conventions of society. And, Radcliffe Richards argues that the one can indeed differ from the other.
And, because substantial justice is the core principles determining acts of justice, as in the constitutions of nations, it can never be right to suffer a substantial injustice. Substantial injustice can, however, occur when the principles that make up substantial justice have been overtaken by time. Take the obvious example from the West’s not too distant past, of women’s exclusion from ownership. If justice demands that in essence all adults are equal, why then were women excluded from ownership? Therefore, to correct this very basic wrong an action not in conformity with the current body of laws has to be taken. In short a formal injustice (i.e. the passing of a law that contradicts the relevant principle of the extant substantial justice) is needed to correct this substantial injustice.
In Islam the Qur’an is the source book of law and hence that of substantial justice. It is Divine in origin and so infallible and eternal. It cannot be the cause for any injustice. Yet, it is the Qur’an that prescribes both gender equality and inequality; kindness and apparent cruelty. Why is this?
Even a cursory reading of the Qur’an leaves one with a sense that there are two elements of justice here: one dealing in broad principles and mainly to do with the notion of justice before God, implying compliance of conventions and rules and of moral decisions. Here gender equality and kindness is emphatic, with rewards and retribution being solely dependent on observance of duty. These are the Qur’anic principles that are equivalent to Radcliffe Richards’ substantial justice.
And the other is written laws that leave little room for maneuver in the way of interpretation. Verse 4;34 appears to be a very good example: “Men have authority over women because Allah has made the one superior to the other, and because they spend of their wealth to maintain them.”[x] As a group these laws can be equated with Radcliffe Richards’ formal justice. These would include the laws on inheritance, adultery, marriage, child custody and the punishment for theft, to name but a few. For the most part the punishments are harsh and where it treats of women these laws, taken on their own, are seemingly discriminatory.
The problem then for contemporary Islam is the existence of these inconsistencies in the Qur’an itself, between substantial justice (the tenor of the whole Text as represented by the relationship of humans to the Maker) and formal injustice (the laws). The egalitarian arrangement of humanity before God is not reflected in the social prescriptions of the relationships between human beings. The Qur’anic social organization appears to prefer men over women.[xi] There is then, a shift in perception from an egalitarian, equal before God perspective, to an unequal amongst humans social position.
[It is worth bearing in mind here that some fourteen hundred years ago the Qur’anic laws affecting women’s social position were very enlightened. Fourteen hundred years ago most societies were patriarchal and women were mere chattels. To give women the right to inherit then was revolutionary; to consider women as witnesses, albeit worth only half the testimony of men, was outrageous for its time.]
5. Confronting the Muslim’s Quandry
To go on; as practiced, in areas of the law where the Qur’an is not explicit, human ingenuity may take into account the needs of the prevailing circumstances. But in areas where it is explicit and at odds with modern day living only reasonable modifications can be made, reasonable in that it does not veer away from the letter of the pertinent parts of the Text. Legal science in Islam, under these circumstances, cannot take into account the spirit of the Qur’an if it means altering the letter of the law. For example, to change the inheritance law to reflect gender equality is not something Muslim jurists have attempted to do as this would alter the letter of the Qur’anic law.
The problem here is twofold: the problem of coinage, i.e., the language of communication between the Divine Author and the fallible reader, which is paramount; and, man’s inability to transcend time and space thus limiting the comprehension of Divine expression. Man is limited to and by his historical context.
“…’The mind of the Divine Author’ and the mind of the fallible readers are meeting, by the very hypothesis of revelation, in the same verbal territory. The one is necessarily using the categories of speech and literal symbol which are the realm of the fallibilities, and of all the right apprehensions, of the other.”[xii]
In relation to this difficulty, the Qur’an is itself culpable:
“It is He who revealed to you the Koran (sic). Some of its verses are precise in meaning [muhkamat] – they are the foundation of the Book – and others ambiguous [mutashabihat]. Those whose hearts are infected with disbelief follow the ambiguous part, so as to create dissension by seeking to explain it. But no one knows its meanings except Allah…”
But in verse 39;23 the Qur’an says: “Allah has now revealed the best of scriptures, a book uniform in style….” Which makes for Cragg’s argument that “explicit”, i.e., precise in meaning, and “implicit” or ambiguous should be taken to mean “literal” and “literary” respectively.
“For these are the associations of the roots from which they derive, and of the form of derivative. The muhkam (singular masculine) is that which is decreed or determined from authority, whether of rule or of wisdom. It denotes the legal and the authoritarian, the ‘thus-it-is’ quality of a sovereign will or of a competent tribunal. Mutshabih, however, has artistry and allusion in its nature. It relies on an image or of a figure from one realm for the illumination and expression of another.”[xiii]
This view, when acceptable, is permitting of a reading of the Qur’an as the complete and consistent whole that it is. To restrict oneself to only the obvious and then to discover apparent contradictions is to suggest that the Divine Author is in some way limited. As such, it is a Muslim’s obligatory duty to limit the damage imposed by a fallibility we share with the ancestral language and appreciate the true majesty of the Message, for the fault can only lie with us and never Him. This is the essence of our faith in God. Any less would make it meaningless.
To resist this possibility is to establish the arrogance that is man. For, is not contempt that allows us to blame God for what is cruel and conceit to applaud man for all that is good? This cannot be the basis of true faith.
[i] Hammudah ‘Abd al ‘Ati, “The Family Structure in Islam,” pp 14-15
[ii] Ibid. p51.
[iii] DD Raphael, “Moral Philosophy”, p 67.
[iv] John Stuart Mill, “Utilitarianism”, from “Utilitarianism, On Liberty and Considerations on Representative Government”, edited by H.B. Acton, p 54.
[v] However, Oscar Wilde, in his book “The Soul of Man Under Socialism”, cautions against equating egalitarianism with justice: “Socialism, or Communism, or whatever one chooses to call it, by converting private property into public wealth, and substituting cooperation for competition, will restore society to its proper condition of a thoroughly healthy organism, and insure the material well-being of each member of the community… [but] if the socialism is Authoritarian… then the last state of man will be worse than the first.”
[vi] Voltaire, quoted from “Philosophical Dictionary,” p 182.
[vii] Quoted from A.K. Brohi, “The Nature of Islamic Law and the Concepts of Human Rights” in ‘Human Rights in Islam”, published by the International Commission of Jurists.
[viii] Professor D.De Santillana, taken from A.K. Brohi, op cit., p 56.
[ix] Janet Radcliffe Richards, “The Sceptical Feminist: A Philosophical Enquiry”, p 119.
[x] See Voltaire above. The consequence of independence and inter-dependence, therefore, is to free women from gender inequality.
[xi] It must be noted that the inequality here is very much on the basis of strong against weak and the Qur’an gives protection to all who are weak: women, the poor, the destitute, the orphans, the children and slaves.
[xii] Kenneth Cragg, “The Mind of the Qur’an”, p 39.
[xiii] Ibid., p 40.
This paper is a summary of one presented in Jakarta in 1997 at a conference organised by the Friedrich Naumann Stiftung.