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The Flexibility of Islamic Laws
By: Martyred Ayatullah Murtada Mutahhari
Another matter which should be made clear is that Islamic thinkers believe that within Islam there is a enigmatic secret which enables this religion to adapt to and improve according to the advance of time. They believe that this religion is in harmony with the forward movement of time, with the development of learning, and with the changes that arise from such development. Now we must see what this secret is. In other words, we have to look into the “nuts and bolts” that went into the making of this religion and which have given it that quality of dynamism which has enabled it to remain in harmony with the changing circumstances arising from advances in knowledge and learning without needing to put aside any of its precepts, and without any contradiction arising among them. What is this enigma? This is the matter which will be explained in this article.
Some of my readers will be aware of what I myself, more than anybody else, am conscious of, that this subject has a technical and specialized aspect, and that it should only be discuss with specialists.
However, seeing that there are many pessimists among those who have inquired from us and among those people with whom we have come into contact who are concerned about this matter, and having understood that they are unaware that Islam has such a special quality, we will enter into this subject only to such an extent as to relieve the pessimists of the pessimism and to give others and example of dynamism within Islam.
The respected readers may consult the excellent book Tanbihu’l-ummah (A Warning for the People) compiled by the late Ayatullah Nai’ini [1], and a very valuable article Vilayat va za’amat (Guardianship and Authority) by the great contemporary scholar Allamah Tabatabai [2] which is published in the book Maraja’iyyat va ruhaniyyat (The Ulama’ and Reference to Religious Authority) [3], to see that discussions of this kind of problem have not been ignored by the leading scholars of Islam. Both the books are in the Persian language.
There are number of factors which contribute to the secret of how the pure religion of Islam, with the fixed and unchanging laws that it has, can accommodate the development of civilization and culture, and can remain in conformity with the changing patterns of life, and we shall explain some of them.
Attention to essence and meaning as opposed to shape and form:
1. Islam has not meddled with the outward pattern and form of life, which is wholly dependent upon the standard of human knowledge. Islamic instructions are concerned with the spirit, meaning and aim of life and the best course that a man should adopt to attain that final aim. Knowledge neither alters the aim and spirit of life nor directs to a better, shorter and safer route to attain the aims of life. Knowledge always places in the power of man better and more perfect resources for attaining the aims of life and for traversing the route to reach an attain those aims.
Islam by keeping the aims under its own authority, and by giving over the forms, models and tools to the realm of knowledge and skill, has kept away from all conflict with the development of culture and civilization. Furthermore, by encouraging the factors which develop culture and civilization, that is, science, labour, piety, determination, courage and perseverance, Islam has itself guaranteed the fundamental practical ground plan for the development of civilization.
Islam has set up in along the path of mankind. On the one hand, these indicators point towards the right course and the right destination, and, on the other hand, they warn the dangerous signs of deviation and decline. All Islamic injunctions consist either of the first kind of indicators, or the caution signals of the second kind.
The ways and means of life in every age depend upon the level of information and knowledge of man. By force of time and circumstances, the more man’s information and knowledge increases, the more the means of life are perfected, and the more they replace comparatively defective means.
In Islam, no one single means, and no one particular external or material form can be found that has an aspect of ‘holiness’ in it, so that a Muslim could consider himself constrained to retain that means or form for ever.
Islam did not specify that tailoring, weaving, agriculture, transport, war or any other activity should be carried out using such and such means, so that when that means became obsolete due to an advance in knowledge there could arise an antagonism and a conflict between science and the dictates of Islam.
Neither has Islam given any special instructions regarding shoes or clothes, or determined that a building should be made with stone or steel, or that particular kinds of apparatus should be manufactured and distributed.
This is one of the reasons why the job of conforming this religion to temporal progress has been easy.
A permanent law for a permanent requirement, and a variable law for a varying requirement:
2. One of the other peculiarities of the Islamic religion which has much importance is that it has ordained permanent laws for permanent human requirements, and has maintained a changing attitude towards varying requirements. Some requirements, which may be personal, individual, general or social, are unchanging and permanent. They are the same for over. The discipline that human beings maintain in respect of their instinctive urges, and the discipline that they establish for their society is, as a general rule, always the same.
I am conversant with the concept of ethical relativity and with the idea of the relativeness of justice, and I am aware of the fact that there are people who uphold these ideas, therefore, I shall make known my point of view to these people.
Another section of human requirements comprise varying human needs which call for varying and non-permanent laws. Islam has kept in mind a variable position with respect to these varying needs, by means of linking the varying conditions with invariable and stable principles. These invariable principles create particular auxiliary laws for each changing condition.
I cannot expand upon this point any further in this article except that I shall try to clarify the point in the minds of my respected readers by means of a few examples.
And prepare against them whatever force you can. (Qur’an.8:60)
i.e., ‘O Muslim! Prepare force against the enemy to the furthest possible extent. Apart from this, in the traditions of the Prophet there is a series of commands which has been handed down, and which is collected together in Islamic law under the title of ‘horse-racing and archery’. There are commands that you yourself and your sons should learn the arts of horse-riding and archery to a degree of complete proficiency, Horse-riding and archery were a section of the martial arts in those days. It is quite evident that the origin and the basis of the command about horse-riding and archery is the principle: And prepare against them whatever force you can. This means that the arrow, the sword, the spell, the bow, the mule and the horse are not fundamental in themselves in the eyes of Islam: the basic point is to be strong enough. The thing that has real importance is that Muslims in every period of history and in every age, should do their utmost to strengthen themselves with regard to military and defense forces against the enemy. The necessity of being proficient in archery and horsemanship is an expression in which to cloth the necessity of being powerful. In other words it is the practical or executive form of the latter. The necessity of strength against the enemy is a permanent law which originates from a permanent and constant necessity.
However, the requirement of proficiency in archery and horsemanship is a manifestation of a changing necessity linked to time and it changes according to the age and the times. With changes in the conditions of civilization, other things such as the preparation of up-to-date weapons, and proficiency and specialization in their use, take the place of that necessity.
Another example: another social principle has been laid down in the Qur’an, which concerns the exchange of wealth. Islam acknowledges an individual’s right of ownership. No doubt there are vast differences between what Islam permits in the name of ownership and what is going on in this regard in the capitalist world, but there is no occasion here to discuss these points. The essential condition of an individual’s ownership is exchange.
Islam has laid down principles to do with exchange: one of which is: Do not consume your wealth amongst yourselves in vain, (Qur’an, 2:188).
This means that the property and wealth which passes from one person to another, which leaves the possession of the producer and the person has the prior authority over it and falls to another person and then to a third person, should always be in return for lawful profit, which should accrue to the previous owner. The passing of wealth from hand to hand without a return that may be human valuable for the owner is prohibited. Islam does not consider ownership as an absolute right of control.
Besides that, it is made clear in the precepts of Islam that the sale and purchase of certain things, including blood and human excrement, is forbidden. Why is that so? For the simple reason that the blood of man or a sheep cannot be put to any useful purpose and cannot be considered a useful commodity and a part of human wealth. The root cause of the prohibition of blood and human excrement is the principle of : Do not consume your wealth amongst yourselves in vain; the prohibition of the sale and purchase of these particular things is not the fundamental. The basic thing is that exchange of only those things which are of any human use should take place. The forbidding of the exchange of things like blood and human feces is merely an example of the prohibition of futile exchanges of wealth. In other words, it is a mere practical expression for the basic principle laid down in the words: Do not consume your wealth amongst yourselves in vain. Moreover, if there is no occasion for exchange, no wealth can be appropriated from another in Vain and put to use.
This principle is invariable for all times and is based upon a general and constant human necessity but the fact that blood and human faeces do not constitute wealth and are not exchangeable depends upon the times, the historical period, the level of civilization, the change in the conditions and advancement of knowledge, upon industry and the possibilities of right and profitable utilization of these things. These factors may bring about alterations in the law.
Another example: Amir al –mu’minin’ Ali ( a.s) in the latter years of his life, did not dye his hair in spite of the fact that it has become white. His beard was white as well. Some person asked him whether the Prophet had not given a command to dye white hair. He replied, “Yes, he did”. The man asked why, then, he did not dye his hair. ‘Ali replied that when the Prophet had given these instructions Muslims were few in number, and amongst them there was a number of old people who used to take part in the battles. When the enemy looked at the ranks of Muslim warriors and saw the white-haired old men, they worked up courage and became self-confident from the fact that their opponents were a lot of old men. The Prophet issued an order that old men should dye their hair so that the enemy should not realize that they were old. Then Ali told the man that the Prophet issued the order when the Muslims had been few in number and it had been necessary that a stratagem like that should be adopted. But in the time of ‘Ali, when Islam had spread throughout the land, it was no longer necessary to carry on these practices. Everybody was free to dye or not to dye his hair.
In the view of Ali (a.s.), the commandment of the Prophet that Muslims should dye their hair was not the basic principle. The object of the commandment was something else. This was, so to say, the outer form in which the basic and the fundamental law was clothed. The purpose was to prevent the enemy from being bold in spirit or full of hope.
Islam attaches importance both to the form, the external appearance and the outer “covering”, and also to the spirit, the inner meaning and the heart of the matter, but always seeks that the form and the outward appearance, the “covering” should agree with the spirit and inner meaning, the “heart”. It puts a shell round the kernel, and clothing on the body.
The question of change of script:
There is presently under discussion in our country the question of changing the script. This matter requires to be examined closely from the linguistic and literary angle of the Persian language, as well as from the perspective of Islamic principles. From the Islamic perspective this proposition can be dealt with in two ways, Firstly, it is to be seen whether Islam has some particular alphabet; whether it distinguishes between different alphabets; whether Islam considers our present alphabet, which is the Arabic alphabet, its own, and considers other alphabets like the Latin alphabet as foreign alphabets. It is certainly not so. In the eyes of Islam, which is a universal religion, all alphabets are equal.
The other aspect of the proposition concerns the result that the change of alphabet and script would have on Muslim society as regards its being merged into, absorbed and swallowed up by societies alien to it? What would be the result of severing the intimate ties of association of this nation with its cultural heritage which has, at any rate, written all its Islamic and scientific literature in this very alphabet for as long as fourteen centuries? Apart from that, the question arises as to who suggested this plan for changing the script, and who would enforce it? This is what needs to be investigated.
It does not matter what you wear, as long as you do not imitate slavishly:
People like me are sometimes confronted by questions that are asked in an attempt to belittle and ridicule. What does the shari’ah say about eating while standing? What about eating with cutlery ? Is it forbidden to put on a hat? Is the speaking of foreign language prohibited?
In reply to these questions I say that Islam did not issue, hard and fast orders regarding these matters. Islam did not lay down whether food should be taken with the hand or with a spoon. Islam has, however, directed that cleanliness be maintained. Regarding shoes hats and dress, Islam has not specifically mentioned any particular fashion. In the eyes of Islam the English, Japanese and Persian languages are each as good as the others.
However, Islam has said something else. It is forbidden to willfully destroy a particular speech form. It is forbidden to be intimidated by others. It is forbidden to imitate blindly. It is forbidden to be absorbed and swallowed up by others. It is forbidden to be bewitched by others, like a small animal mesmerized by a snake. It is forbidden to soak up the aberrations and misfortunes of others in the name of “moving with the times”. It is forbidden to believe that an Iranian must become bodily, spiritually, inwardly and outwardly a European. It is forbidden to spend a weekend in Europe and then pronounce everything in French accent. [4]
The question of “ahamm wa muhimm” (that which is more important and that which is significant)
3. Another aspect which provides Islam with the possibility of adapting to the requirements of the times, is the rational aspect of this religion. Islam has given its followers to understand that all its commands arise from a series of supreme exigencies; and, what is more, Islam has established the degree of importance of these exigencies. This consideration has facilitated the task of knowing the reality of Islam in cases where diverse exigencies find themselves in conflict with each other. Islam has permitted that, in these circumstances those who are deeply acquainted with Islam should determine the degree of importance of the exigencies, and select the more pressing exigencies, always in accordance with the guidelines set down by Islam itself. The fuqaha’ (jurisconsults) call this principle ahamm wa muhimm (lit. “that which is more important and that which is significant”). Here also I could give many examples, but I shall refrain from doing so.
Laws with the right of ‘veto’:
4. Another consideration which has given this religion the property of mobility and adaptability, and gives it eternal life, is that there is a series of principles and laws incorporated into this religion whose function is to control and harmonise the other laws. The fuqaha’ call these rules al-qawai’du ‘l-hakimah (governing principle) such as the principle of ‘la haraj (“no blame”) and la darar, (“no harm”) [5] which have authority throughout fiqh (Islamic jurisprudence). The purpose of this series of principles is to control and harmonize the other laws. In fact, Islam has acknowledged these principles as having the right of veto over all laws and precepts. This subject has an extensive history into which I cannot enter here.
The governing authority:
Besides what has already been mentioned, another series of “nuts and bolts” are also used in the structure of the pure religion of Islam which have endowed it with the property of perpetuity and its position as the last religion. The late Ayatullah Na’ini and ‘Allamah Tabatabai [6] have, in this respect, laid great emphasis on the authority which Islam has conferred on a competent Islamic government.
The fundamental of ijtihad:
The Pakistani thinker, Iqbal, has said that ijtihad [7] is the motive force of Islam. This is, no doubt right, but the main point is the ability of Islam to support ijtihad. If there were anything in the place of Islam, we would see how difficult the task of ijtihad would be. For then, the way to ijtihad would be blocked. The main point is the hidden secrets which have been employed in this amazing divine religion, so that in this way it has been given the property of harmonization with the advance of civilization.
Ibn Sina, in his book ash-Shifa’, sets forth the necessity of ijtihad on the same basis. He says that since temporal conditions change and new problems are continuously coming to the fore, and since on the other hand, the general principles of Islam are permanent and unchanging it is necessary that in every age and in every period there should be persons who have complete knowledge and acquaintance with Islamic matters, and who can be the answerers to the needs of Muslims with attention towards the new problems that come forward in every age.
In the supplement of the Constitutional Law of Iran such an anticipation has a been made, that in every age a body of not less than, five mujtahids who are also “conversant with the requirements of the times”, shall watch over the laws which are passed. The intention of the writers of this clause was that persons who are neither ‘reactionary’ nor ‘ignorant progressivists’ Who are neither against the advances of the era, nor subservient to or followers of others, should watch over the laws of the State.
The point which must be remembered is that ijtihad, as the word really signifies, means specialization and expertise in the science of Islamic affairs. It is not the kind of thing that every educational “drop-out” can claim merely on the basis of having spent a few days in one of the centres of Islamic learning.
In order to specialize in Islamic matters and to be competent to pronounce one’s own opinion, entire life-time, provided it is not short, is decidedly not too long. That, too with the condition that the person is endowed with the liking for it, a certain powerful genius and is finally completely graced with the favours of Allah.
Apart from specialization and ijtihad, certain persons can be recognized as authorities for their viewpoints and opinions who are at the pinnacle of piety, and knowledge and fear of God. The history of Islam can show persons who, with complete scientific and moral competence, used to tremble like willows when they intended to express their opinions.
I apologize to my worthy readers that the diversion in this topic has reached such a great length.
Notes:
[1] Muhammad Husayn ibn ‘Abd ar-Rahim an-Na’ini (1277/1860- 1355/1936) one of the great recent teachers of an-Najaf al-Ashraf. (Iraq).
[2] Allamah Sayyid Muhammad Husayn Tabataba’i (1321/1904-1402/1981) one of most renowned contemporary scholars of Islam, now living in Qum. Author of the great commentary on the Qur’an, Al-Mizan, and Shi’ah dar Islam (translated in English by Dr. Sayyid Husayn Nasr as Shi’ite Islam) he is a master of both the sciences of Divine Law and the intellectual sciences, metaphysics and ‘irfan.
[3] An anthology of articles published following the death of the great marja’-e taqlid Ayatullah Burujirdi (1380/1961).
[4] The actual text speaks of those who pronounce the Persian “r”(rather like a Scottish rolled “r”) as if it were “gh” (the French gutteral “r”), which was an affectation of Europeanized Iranians (Tr.)
[5] The principle of la haraj (no blame) is applied when excessive difficulty would occur from the carrying out of an injunction in the shari’ah, and allows the person concerned not to carry it out. The principle of la darar (no harm) applies when the performance of an injunction would result in illness to the person concerned, and likewise allows him or her to abstain from performing it.
[6] For both these see note # 2 under Islam and modernity (3)
[7] ijtihad is the exercising of independent judgement in Islamic jurisprudence (fiqh). The person who exercises ijtihad is called a mujtahid. By his knowledge of religious sciences and by virtue of his moral qualities, he has the right to give new opinions (fatwa) on matters pertaining to the shari’ah. A marked difference exists between Sunni Islam and Shi’ite Islam in the matters of ijtihad, since in the former the “gate of ijtihad” has been closed since the 3rd century A.H., while in the latter it is still open.
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