The Principles of STATE and GOVERNMENT in ISLAM
By Muhammad Asad
Chapters: The Issue before Us | Terminology and Historical Precedent | Government by Consent and Council | Relationship between Excecutive and Legislature | The Citizens and the Government | Conclusion |
This is what our most advanced scientists are now beginning to realize. Faced with the impossibility of answering metaphysical questions by means of physical research, they have given up the naive hope of the last two centuries that science could ever provide directives in the field of ethics and morality. Not that these advanced scientists distrust science as such: on the contrary, they do believe that it will lead mankind to ever greater marvels of knowledge and achievement; but at the same time they realize that scientific endeavor has no direct connection with man's moral and spiritual life. No doubt, science can, and does, guide us to a better understanding of the world around and within us; but, being solely concerned with the observation of the facts of nature, and with the analysis of the laws that appear to govern the interrelation of those facts, it cannot be called upon to deliver a verdict as to the purpose of human life and, thus, to provide us with valid directives as to the social behavior we ought to adopt. It is only indirectly, through speculative reasoning on the basis of certain established facts, that science can attempt to advise us in this respect. But because science is always in a state of flux—always subject to the discovery of new facts of nature and, consequently, to an unceasing reinterpretation and revaluation of previously ascertained sets of facts—its advice is hesitant, spasmodic, and, at times, quite contradictory to previously tendered advice: which, in a nutshell, amounts to saying that science is never in a position to lay down with certainty what man should do or leave undone in order to achieve well-being and happiness. And for this reason science cannot (nor does it really attempt to) foster moral consciousness in man. In short, the problems of ethics and morality are not within the scope of science. They are, on the other hand, entirely within the scope of religion.
It is through religious experience alone that we can arrive—rightly or wrongly—at standards of moral valuation independent of the ephemeral changes in our environment. I have said "rightly or wrongly" because, by all objective canons of reasoning, there is always the possibility of a religion (any religion) being mistaken in its metaphysical premises and, consequently, in the moral valuation deduced from those premises: thus, our acceptance or rejection of any religion must, in the last resort, be guided by our reason, which tells us how far that particular religion corresponds to man's ultimate needs, both physical and spiritual. But this necessity of exerting our critical faculties with regard to the teachings of a religion does not detract anything from the fundamental proposition that it is religion alone that can endow our life with meaning and thus promote in us the urge to conform our thinking and our behavior to a pattern of moral values entirely independent of the momentary constellation of our individual existence. To phrase it differently, only religion can provide a broad platform for an agreement among large groups of men as to what is good (and therefore desirable) and what is evil (and therefore to be avoided). And could there be any doubt that such an agreement is an absolute, indispensable requirement for any sort of order in human relations?
Considered from this viewpoint, the religious urge in man is not a mere passing phase in the history of his spiritual development, but the ultimate source of all his ethical thought and all his concepts of morality; not the outcome of primitive credulity which a more "enlightened" age could outgrow, but the only answer to a real, basic need of man at all times and in all environments. In another word, it is an instinct.
It is reasonable, therefore, to presume that a state built on the foundations of religion offers an infinitely better prospect of national happiness than a state founded upon the concept of a "secular" political organism; provided, of course, that the religious doctrine on which such a state rests—and from which it derives its authority —makes full allowance, first, for man's biological and social needs, and, second, for the law of historical and intellectual evolution to which human society as a whole is subject. The first of these two conditions can be fulfilled only if the religious doctrine in question attributes positive value not only to man's spiritual nature but also to his biological nature—as Islam undoubtedly does. The second condition can be fulfilled if the political law that is to guide the community's behavior is not only concrete and self-evident but also free from all rigidity—which is, precisely, what we claim for the political law laid down in Quran and Sunnah.
In the following pages I shall try to substantiate this claim. But before proceeding with this task, I find it necessary, in view of the lack of agreement among Muslim scholars as to the extent and the details of shar'i legislation, to make a few general observations about the concept of Islamic Law as such.
The Scope of Islamic Law
As is well known, not all the laws which form the subject matter of conventional Muslim jurisprudence (fiqh) rest on injunctions expressed in clear-cut terms of command and prohibition in Quran and Sunnah. By far the larger part of fiqhi rulings are the outcome of various deductive methods of reasoning, among which qiyas (deduction through analogy) figures most prominently. The great fuqaha (jurists) of the past arrived at their legal findings on the basis of their study of Quran and Sunnah, and there is no doubt that in the instance of the foremost exponents of fiqh this study was extremely deep and conscientious. Nevertheless, the results of such studies were often highly subjective: that is, they were determined by each scholar's personal approach to, and interpretation of, the legal sources of Islam, as well as by the social and intellectual environment of his age. Because that environment was in many respects vastly different from ours, some of these "deductive" conclusions naturally differ from the conclusions we might reach at the present time: which is one of the reasons why so many modern Muslims are reluctant to apply the rulings devised by conventional fiqh to contemporary problems of politics and economics.
Originally, all such rulings were intended by their authors to facilitate the application of shar'i principles to specific questions. In the course of time, however, these rulings acquired in the popular mind a kind of sacrosanct validity of their own and came to be regarded by many Muslims as an integral part of the shariah, the Canon Law, itself. In support of this popular view, it is argued that the explicit legal statements, commands, and prohibitions contained in the Quran and the authenticated Traditions (ahadith) recording the sayings and doings of the Prophet are, by themselves, not sufficient to circumscribe all possible legal situations, and that, therefore, an amplification of the corpus juris by means of deductive reasoning is necessary. However, quite apart from the fact that neither Quran nor Sunnah offers the slightest warrant for such an arbitrary enlargement of the shariah, one might with justice argue (as a considerable number of Muslim scholars have argued through the centuries) that the limited scope of the explicit ordinances contained in Quran and Sunnah was not due to an oversight on the part of the Law-Giver but, on the contrary, was meant to provide a most essential, deliberate safeguard against legal and social rigidity: in short, it is reasonable to assume that the Law-Giver never intended the shariah to cover in detail all conceivable exigencies of life. He intended no more and no less than to stake out, as it were, the legal boundaries within which the community ought to develop, leaving the enormous multitude of "possible" legal situations to be decided from case to case in accordance with the requirements of the time and of changing social conditions.
Thus, the true shariah is far more concise and very much smaller in volume than the legal structure evolved through the fiqh of various schools of Islamic thought. Being a Divine Law, the shariah cannot possibly have been made dependent on scholarly deductions or inferences of a subjective nature, but must be considered to have been laid down in its entirety in the definite ordinances of Quran and Sunnah—ordinances expressed in positive terms of law: "do this," "do not do that," "such-and-such a thing is right, and therefore desirable," "such-and-such a thing is wrong, and therefore to be shunned." These ordinances are described technically as nusus (singular, nass). By their very nature, they are not subject to conflicting interpretations; in fact, they are in no need of any "interpretation" whatsoever, being absolutely self-contained and unambiguous in their wording. All Arab philologists agree that "the nass of Quran and Sunnah denotes the ordinances [ahkam] forthcoming from the self-evident [zahir] wording in which they are expressed."(1) All such nass ordinances are so formulated that they can be applied to every stage of man's social and intellectual development; on the other hand, many of the subjective conclusions of the fuqaha are reflections of a particular time and mentality and cannot, therefore, lay claim to eternal validity. Thus, it is the nusus of Quran and Sunnah—and only these—that collectively constitute the real, eternal shari'ah of Islam. This shariah concerns itself exclusively with what the Law-Giver has ordained in unmistakable terms as an obligation or put out of bounds as unlawful; whereas the far larger area of things and activities which the Law-Giver has left unspecified—neither enjoining nor forbidding them in nass terms—must be regarded as allowable (mubah) from the shar'i point of view.
(1) Lisan al-'Arab, Beirut, 1957 (1375 A.H.), Vol. VII, p. 98.
The reader should not suppose that the views propounded above are an innovation in Islamic thought. In point of fact, they were held by the Companions of the Prophet and, later, by some of the greatest scholars of Islam—and particularly by the man who may rightly be considered one of the most brilliant fuqaha in all our history: Ibn Hazm of Cordova (384-456 A.H.) [A.D.994-1064]. Nothing could be more illustrative of the problem under discussion than the following passages from the Introduction to his great work, Al-Muhalla'.
The shariah in its entirety refers either to obligatory acts [fard], the omission of which constitutes a sin; or to forbidden acts [haram], the commission of which constitutes a sin; or to allowed acts [mubah], the commission or omission of which does not make man a sinner. Now these mubah acts are of three kinds: first, acts which have been recommended [mandub] —meaning that there is merit in doing them, but no sin in omitting them; second, acts which are undesirable [makruh]— meaning that there is merit in abstaining from them, but no sin , in committing them; and, third, acts which have been left } unspecified [mutlaq]—being neither meritorious nor sinful whether committed or omitted...
The Apostle of God said: "Do not ask me about matters which I have left unspoken: for, behold, there were people before you who went to their doom because they had put too many questions to their prophets and thereupon disagreed [about their teachings]. Therefore, if I command you anything, do of it as much as you are able to do; and if I forbid you anything, abstain from it."(2)
The above Tradition circumscribes all the principles of religious law [dm] from the first to the last. It shows that whatever the Prophet has left unspoken—neither ordering nor forbidding it—is allowed [mubdh], that is, neither forbidden nor obligatory. Whatever he ordered is obligatory [fard], and whatever he forbade is unlawful [haram]; and whatever he ordered us to do is binding on us to the extent of our ability alone.(3)
Because it is restricted to commands and prohibitions expressed in self-evident terms in Quran and Sunnah, the real shari'ah is extremely concise and, therefore, easily understandable; and because it is so small in volume, it cannot—nor, as I have pointed out, was it ever intended to—provide detailed legislation for every contingency of life. Consequently, the Law-Giver meant us Muslims to provide for the necessary, additional legislation through the exercise of our ijtihad (independent reasoning) in consonance with the spirit of Islam. It must, of course, be understood that any ijtihddi legislation we may evolve under the inspiration of Quran and Sunnah (occasionally even with the help of the ijtihad of past generations) will always be subject to amendment by the ijtihad of those who will come after us: that is to say, it can amount to no more than a temporal, changeable law subject to the authority of the irrevocable, unchangeable shari'ah, which is self-evident in the nusus of Quran and Sunnah.
The shariah cannot be changed, because it is a Divine Law; and it need not be changed, because all its ordinances are so formulated that none of them ever conflicts with the real nature of man and the genuine requirements of human society at any time: simply because it legislates only with regard to those aspects of human life which by their very nature are not subject to change. This special characteristic of the Divine Law — its applicability to all stages and conditions of human development — presupposes that its ordinances cover, in the first instance, general principles only (allowing thereby for the necessity of time-conditioned variations in matters of detail), and, in the second instance, provide for detailed legislation hi such matters as are not affected by changes due to man's social development. On examining the context of the nusus, it will be found that this assumption is correct. Whenever detailed nass legislation is forthcoming, it invariably relates to such aspects of our individual and social existence as are independent of all time-conditioned changes (for example, the basic elements of human nature and of human relations). Whenever, on the other hand, changes are indispensable for human progress (for example, in matters of government, technology, economic legislation, and so forth), the shari'ah does not stipulate any detailed laws, but either lays down general principles only or refrains from making any legal enactment. And this is where ijtihadi legislation rightfully comes in. To be more precise, the legitimate field of the community's lawmaking activity comprises (a) details in cases and situations where the shari'ah provides a general principle but no detailed ruling, and (b) principles and details with regard to matters which are mubah, that is, not covered by shar'i laws at all. It is this method that the Quran has referred to in the words :
"For every one of you We have ordained a Divine Law and an open road."(4) Thus, while the Divine Law (the shari'ah) outlines the area within which Muslim life may develop, the Law-Giver has conceded to us, within this area, an "open road" (minhaj) for temporal legislation which would cover the contingencies deliberately left untouched by the nusus of Quran and Sunnah.
(2) Muslim, on the authority of Abu Hurayrah.
(3) Abu Muhammad 'Ali ibn Hazm, Al-Mufhalla (Cairo; 1347A.H.), Vol. I, pp. 62-64.
(4) Quran 5:48.
The Need for Free Inquiry
A rediscovery of the "open road" of Islam is urgently required at a time like this, when the Muslim world finds itself in the throes of a cultural crisis which may affirm or deny, for centuries to come, the validity of Islam as a practical proposition. Set as we are in the midst of a rapidly changing world, our society, too, is subject to the same inexorable law of change. Whether we like it or not, a change there will be—it is, indeed, already being enacted before our eyes: a fact as evident as it is pregnant with tremendous possibilities for better offer worse. For better or for worse: this phrase merits emphasis because we must not forget that "change" is but another word for "movement" and, within a social organism, movement can be creative as well as destructive. From the Islamic point of view, an endeavor to return to the realities of Quran and Sunnah, and to find on their basis new channels for our political thought and our social actions, is a movement of the first-named kind. The present drift of Muslim society toward Western concepts and institutions is a movement of the second kind. We can, if it suits us, continue on this drift and thus allow Islam to be gradually obliterated as an independent factor of civilization; and we can, if we so desire, make a new start in terms of the sociopolitical program of Islam and thereby resurrect our culture from the cold ashes of decay.
However, if we decide on the second alternative, it is not enough to say, "We are Muslims, and have therefore an ideology of our own": we must also be in a position to show to ourselves and to the world that this ideology is vital enough to withstand the pressure of the many adverse social and cultural influences converging upon us from all sides, and that even now it can offer us precise directives for the formation of our polity. In order to be able to do this, we must give up our sterile reliance on what to previous generations of Muslim scholars appeared to be "final" verdicts on the sociopolitical laws of Islam, and must begin to think about them anew, in a creative manner, on the basis of our own study of the original sources.
If we approach our task in this spirit of free inquiry, we shall arrive at two important conclusions. First, the concept of Islamic Law—especially with regard to public law—acquires once again that simplicity which had been envisaged for it by the Law-Giver but has subsequently been buried under many layers of conventional and frequently arbitrary interpretation. Second—and this is most pertinent to the problem before us—the outward forms and functions of an Islamic state need not necessarily correspond to any "historical precedent." All that is required of a state in order that it might deservedly be described as "Islamic" is the embodiment in its constitution and practice of those clear-cut, unambiguous ordinances of Islam which have a direct bearing on the community's social, political, and economic life. As it happens, those ordinances are very few and very precisely formulated; and they are invariably of such a nature as to allow the widest possible latitude to the needs of any particular time and social condition.