Allama Iqbal delivered 6 lectures in Madras, Hyderabad and Aligrah universities during 1928 – 1929.

These lectures were published in 1930. The 7^th lecture was added in 1934 edition.

The titles of those lectures are:

(1)    KNOWLEDGE AND RELIGIOUS EXPERIENCE

(2)    THE PHILOSOPHICAL TEST OF THE REVELATIONS OF RELIGIOUS EXPERIENCE

(3)    THE CONCEPTION OF GOD AND MEANING OF PRAYER

(4)    THE HUMAN EGO – HIS FREEDOM AND IMMMORTALITY

(5)    THE SPIRIT OF MUSLIM CULTURE

(6)    THE PRINCIPLE OF MOVEMENT IN THE STRUCTURE OF ISLAM

(7)    IS RELIGION POSSIBLE?

Today we will talk about the 6^th lecture

THE PRINCIPLE OF MOVEMENT IN THE STRUCTURE OF ISLAM

The lecture starts with this statement:

As a cultural movement Islam rejects the old static view of the universe, and reaches a dynamic view. As an emotional system of unification it recognizes the worth of the individual as such, and rejects blood-relationship as a basis of human unity. Blood-relationship is earth-rootedness. The search for a purely psychological foundation of human unity becomes possible only with the perception that all human life is spiritual in its origin. Such a perception is creative of fresh loyalties without any ceremonial to keep them alive, and makes it possible for a man to emancipate himself from the earth.

 

No name of the author or the book:

A modern historian of civilization has thus depicted the state of the civilized world about the time when Islam appeared on the stage of History:

It seemed then that the great civilization that it had taken four thousand years to construct was on the verge of disintegration, and that mankind was likely to return to that condition of barbarism where every tribe and sect was against the next, and law and order were unknown.

……….

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Was there any emotional culture that could be brought in to gather mankind once more into unity and to save civilization?

It is amazing he adds that such a culture should have arisen from Arabia just at the time when it was most needed.

There is, however, nothing amazing in the phenomenon.

The world life intuitively sees its own needs and at critical moments defines its own directions.

This is what in the language of religion, we call prophetic revelation

…

It is natural that Islam should have flashed across the consciousness of a simple people untouched by any of ancient cultures, and occupying a geographical position where three continents meet together. The new culture finds the foundation of world-unity in the principle of ‘Tauhid’.

Islam as a polity is only a practical means of making this principle a living factor in the intellectual and emotional life of mankind.

It demands loyalty to God, not to thrones.

And since God is the ultimate spiritual basis of all life, loyalty to God virtually amounts to man’s loyalty to his own ideal nature. The ultimate spiritual basis of all as conceived by Islam is eternal itself in variety and change. A society based on such a conception of reality must reconcile, in its life, the categories of permanence and change.

But eternal principles when these are understood to exclude all possibilities of change which, according to Quran, is one of the greatest ‘signs’ of God, tend to immobilize what is essentially mobile in its nature. The failure of Europe in political and social science illustrates the former principle, the immobility of Islam during the last 500 years illustrates the latter.

What then is the principle of movement in the structure of Islam?

This is known as ‘Ijtehad’. .. The word literally means to exert. In the context of Islamic law it means to exert with a view to form an independent judgment on a legal question. The he quotes a verse of Quran:

‘And those who exert, We show our path’.

Ma’ad was appointed the ruler of Yemen. Follow Quran, Hadis if not use your judgment.

Four schools of law exist is Sunni jurisprudence.

(1) Hanfi   –        Imam Abu Hanifa                  Year of Birth        80 AH   702 AD

(2) Shafi      –     Imam Shafie                            Year of Birth        93 AH    715 AD

(3) Maliki         Imam Malik                             Year of Birth      150 AH    772 AD

(4) Hanbali.     Imam Ahmad Bin Hanbal      Year of Birth      164 AH   786 AD

All four schools recognize three degrees of Ijtehad.

(1)    Complete authority in legislation which is practically confined to the founders of school.

(2)    Relative authority which is to be exercised within the limits of particular schools

(3)    Special authority which relates to the determining of the law applicable to a particular case left undetermined by the founders.

In this chapter I am concerned with first degree of Ijtihad only i.e. complete authority in legislation.

The theoretical possibility of this degree of Ijtehad is admitted by the Sunnis but in practice it has always been denied even though Islam is based on Quran which embodies an essentially dynamic outlook of life.

We are obligated to find out the causes of this attitude which has reduced the law of Islam practically to a state of immobility. Some western scholars think it is because of Turks.

Allama Iqbal disagrees and he attempts to find out the reasons.

(1)    Rationalist movement which appeared in the early days of Abbasside’s and the bitter controversies which it raised. The conservative dogma of eternity of Quran.

Rationalists think Quran is not eternal where as conservative group think that Quran is eternal.

Eventually conservative prevailed and rationalists were defeated in this struggle.

(2)    The rise and growth of ascetic Sufism which gradually developed under the influence of non-Islamic character (Non Islamic means Christian, Jewish, Hinduism or Buddhism), a purely speculative side, is to large extent responsible for this attitude.

On its purely religious side Sufism fostered a kind of revolt against the verbal quibbles of early doctors.  Sufiyan Sauri (716 – 778) ascetic Sufi.

On its speculative side, which developed later, Sufism is a form of freethought and in alliance with Rationalism. The emphasis that it laid on the distinction of Zahir and Batin (Appearance and Reality) created an attitude of indifference to all that applies to Appearance and not to Reality.

This spirit of total other-worldliness in later Sufism obscured men’s vision of a very important aspect of Islam as a social polity, and offering the prospect of unrestrained thought on its speculative side it attracted and finally absorbed the best mind in Islam.

The Muslim State was thus left generally in the hands of intellectual mediocrities, and the unthinking masses of Islam, having no personalities of higher caliber to guide them, found their security only in blindly following the schools.

(3)    On the top of this came the destruction of Baghdad – the center of Muslim Intellectual life – in the middle of 13^th century. For fear of further disintegration, the conservative thinkers of Islam focused on preserving a uniform social life for Muslims by a jealous exclusion of all innovations in the law of Sharia as expounded by the early doctors of Islam. Their leading idea was social order, and there is no doubt that they were partly right, because organization does to a certain extent counteract to the forces of decay. But they did not see, and our modern Ulema do not see, that the ultimate fate of people does not depend so much on organization as on the worth and power of individual men. In an over-organized society the individual is altogether crushed out of existence. He gains the whole wealth of social thought around him and loses his own soul.

The only effective power that counteracts the forces of decay in a people is rearing of self-concentrated individuals. Such individuals alone reveal the depth of life.

The tendency of over-organization by the false reverence of the past, as manifested in the legists of Islam in the 13^th century and later, was contrary to the inner impulse of Islam, and consequently invoked the powerful reaction of Ibn-i-Taimiyya, one of the most indefatigable writers and preachers of Islam, who was born in 1263, five years after the destruction of Baghdad.

Ibn-i-Taimiyya was brought up in Hambalite tradition. Claiming freedom of Ijtehad for himself he rose in revolt against the finality of schools, and went back to first principles in order to make a fresh start. Like Ibn-i-Hazm – the founder of Zahiri school of law – he rejected the Hanafite principle of reasoning by analogy and Ijma, for he thought agreement was the basis of all superstition. And there is no doubt that, considering the moral and intellectual decrepitude of his times, he was right in doing so.

In the 16^th century Suyuti  (1445 – 1505) claimed the same privilege of Ijtehad to which he added the idea of a renovator at the beginning of each century.

But the spirit of Ibn-i-Taimiyya’s teaching found a fuller expression in the movement of immense potentialities which arose in the 18^th century, from the sands of Nejd described by McDonald as the ‘cleanest spot in the decadent world of Islam’.

It is really the first throb of life in modern Islam.

To the inspiration of this movement are traceable, directly or indirectly, nearly all the great modern movements of Muslim Asia and Africa, e.g.,

the Sennusi Movement,  (Libya)

the Pan-Islamic movement, and

the Babi movement (Shia – Persian + Iraq  Hidden Imam), which is only a Persian reflex of Arabian Protestantism.

The great puritan reformer, Mohammad Ibn-i-Abdul Wahab who was born in 1700, studied in Medina, travelled in Persia and finally succeeded in spreading the fire of his restless soul throughout the whole world of Islam.

Abdul Wahab was similar in spirit to Ghazali’s disciple Mohammad Ibn-i-Tumart –  (1080 -1130)

The Berber puritan reformer of Islam who appeared amidst the decay of Muslim Spain and gave her a fresh inspiration. Political developments aside, the essential thing to note is spirit of freedom manifested in it, though inwardly this movement, too, conservative in its own fashion.

While it rises in revolt against the finality of schools, and vigorously asserts the right of private judgment, its vision of the past is wholly uncritical, and in matters of law it mainly falls back on the traditions of the Prophet.

Passing on to Turkey, we find that the idea of Ijtehad, reinforced and broadened by modern philosophical ideas, has long been working in the religious and political thought of the Turkish nation. This is clear from Halim Sabit (1883 – 1946) new theory of Mohammadan law, grounded on modern sociological concepts.

If the renaissance of Islam is a fact, and I believe it is a fact, we too one day, like the Turks, will have to re-evaluate our intellectual inheritance. And if we cannot make any original contribution to the general thought of Islam, we may, by healthy conservative criticism, serve at least as a check on the rapid movements of liberalism in the world of Islam.

 

From page 153 to 163 Allama Iqbal has given us a detailed description of Islamic law in Turkey.

I now proceed to give you some idea of religio-political thought in Turkey which will indicate to you how the power of Ijtihād is manifested in recent thought and activity in that country. There were, a short time ago, two main lines of thought in Turkey represented by the Nationalist Party and the Party of Religious Reform. The point of supreme interest with the Nationalist Party is above all the State and not Religion. With these thinkers religion as such has no independent function. The state is the essential factor in national life which determines the character and function of all other factors. They, therefore, reject old ideas about the function of State and Religion, and accentuate the separation of Church and State. Now the structure of Islam as a religio-political system, no doubt, does permit such a view, though personally I think it is a mistake to suppose that the idea of state is more dominant and rules all other ideas embodied in the system of Islam. In Islam the spiritual and the temporal are not two distinct domains, and the nature of an act, however secular in its import, is determined by the attitude of mind with which the agent does it. It is the invisible mental background of the act which ultimately determines its character. An act is temporal or profane if it is done in a spirit of detachment from the infinite complexity of life behind it; it is spiritual if it is inspired by that complexity. In Islam it is the same reality which appears as Church looked at from one point of view and State from another. It is not true to say that Church and State are two sides or facets of the same thing. Islam is a single unanalyzable reality which is one or the other as your point of view varies. The point is extremely far-reaching and a full elucidation of it will involve us in a highly philosophical discussion.

..

The unity called man is body when you look at it as acting in regard to what we call the external world; it is mind or soul when you look at it as acting in regard to the ultimate aim and ideal of such acting. The essence of Tawhid, as a working idea, is equality, solidarity, and freedom.

 

The next paragraph needs attention and scrutiny.

 

It is in this sense alone that the state in Islam is a theocracy, not in the sense that it is headed by a representative of God on earth who can always screen his despotic will behind his supposed infallibility. The critics of Islam have lost sight of this important consideration. The Ultimate Reality, according to the Qur’an, is spiritual, and its life consists in its temporal (secular, nonspiritual, worldly, profane, material, mundane, earthly, terrestrial, nonreligious, areligious) activity. The spirit finds its opportunities in the natural, the material, the secular. All that is secular is, therefore, sacred in the roots of its being. The greatest service that modern thought has rendered to Islam, and as a matter of fact to all religion, consists in its criticism of what we call material or natural– a criticism which discloses that the merely material has no substance until we discover it rooted in the spiritual. There is no such thing as a profane world. All this immensity of matter constitutes a scope for the self-realization of spirit.

All is holy ground. As the Prophet so beautifully puts it:

“The whole of this earth is a mosque.”

The State, according to Islam, is only an effort to realize the spiritual in a human organization. But in this sense all state, not based on mere domination and aiming at the realization of ideal principles, is theocratic.

Let us now see how the Grand National Assembly in Turkey has exercised this power of Ijtihād in regard to the institution of Khilāfat. According to Sunni Law, the appointment of an Imām or Khalīfah is absolutely indispensable. The first question that arises in this connexion is this– Should the Caliphate be vested in a single person? Turkey’s Ijtihād is that according to the spirit of Islam the Caliphate or Imāmate can be vested in a body of persons, or an elected Assembly. The religious doctors of Islam in Egypt and India, as far as I know, have not yet expressed themselves on this point. Personally, I believe the Turkish view is perfectly sound. It is hardly necessary to argue this point. The republican form of government is not only thoroughly consistent with the spirit of Islam, but has also become a necessity in view of the new forces that are set free in the world of Islam.

….

Republican means what?

The last lines of next paragraph:

To my mind these arguments, if rightly appreciated, indicate the birth of an International ideal which, though forming the very essence of Islam, has been hitherto overshadowed or rather displaced by Arabian Imperialism of the earlier centuries of Islam. This new ideal is clearly reflected in the work of the great nationalist poet Ziya whose songs, inspired by the philosophy of Auguste Comte, have done a great deal in shaping the present thought of Turkey.

Pan Islamism: ?

In order to create a really effective political unity of Islam, all Muslim countries must first become independent: and then in their totality they should range themselves under one Caliph. Is such a thing possible at the present moment? If not today, one must wait. In the meantime the Caliph must reduce his own house to order and lay the foundations of a workable modern State.

 

In the International world the weak find no sympathy; power alone deserves respect.

These lines clearly indicate the trend of modern Islam. For the present every Muslim nation must sink into her own deeper self, temporarily focus her vision on herself alone, until all are strong and powerful to form a living family of republics. A true and living unity, according to the nationalist thinkers, is not so easy as to be achieved by a merely symbolical over lordship. It is truly manifested in a multiplicity of free independent units whose racial rivalries are adjusted and harmonized by the unifying bond of a common spiritual aspiration. It seems to me that God is slowly bringing home to us the truth that Islam is neither Nationalism nor Imperialism but a League of Nations which recognizes artificial boundaries and racial distinctions for facility of reference only, and not for restricting the social horizon of its members.

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The truth is that among the Muslim nations of today, Turkey alone has shaken off its dogmatic slumber, and attained to self-consciousness. She alone has claimed her right of intellectual freedom; she alone has passed from the ideal to the real– a transition which entails keen intellectual and moral struggle. To her the growing complexities of a mobile and broadening life are sure to bring new situations suggesting new points of view, and necessitating fresh interpretations of principles which are only of an academic interest to a people who have never experienced the joy of spiritual expansion. It is, I think, the English thinker Hobbes who makes this acute observation that to have a succession of identical thoughts and feelings is to have no thoughts and feelings at all. Such is the lot of most Muslim countries today. They are mechanically repeating old values, whereas the Turk is on the way to creating new values. He has passed through great experiences which have revealed his deeper self to him. In him life has begun to move, change, and amplify, giving birth to new desires, bringing new difficulties and suggesting new interpretations. The question which confronts him today, and which is likely to confront other Muslim countries in the near future is whether the Law of Islam is capable of evolution– a question which will require great intellectual effort, and is sure to be answered in the affirmative, provided the world of Islam approaches it in the spirit of ‘Umar– the first critical and independent mind in Islam who, at the last moments of the Prophet, had the moral courage to utter these remarkable words:

“The Book of God is sufficient for us.”

…

I have given you some idea of the history and working of Ijtihād in modern Islam. I now proceed to see whether the history and structure of the Law of Islam indicate the possibility of any fresh interpretation of its principles. In other words, the question that I want to raise is– Is the Law of Islam capable of evolution?

Horten, Professor of Semitic Philology at the University of Bonn, raises the same question in connexion with the Philosophy and Theology of Islam. Reviewing the work of Muslim thinkers in the sphere of purely religious thought he points out that the history of Islam may aptly be described as a gradual interaction, harmony, and mutual deepening of two distinct forces, i.e. the element of Aryan culture and knowledge on the one hand, and a Semitic religion on the other. A Muslim has always adjusted his religious outlook to the elements of culture which he assimilated from the peoples that surrounded him.

 

From 800 to 1100, says Horten, not less than one hundred systems of theology appeared in Islam, a fact which bears ample testimony to the elasticity of Islamic thought as well as to the ceaseless activity of our early thinkers. Thus, in view of the revelations of a deeper study of Muslim literature and thought, this living European Orientalist has been driven to the following conclusion:

 

The spirit of Islam is so broad that it is practically boundless. With the exception of atheistic ideas alone it has assimilated all the attainable ideas of surrounding peoples, and given them its own peculiar direction of development.

 

The assimilative spirit of Islam is even more manifest in the sphere of law. Says Professor Hurgronje – the Dutch critic of Islam:

 

When we read the history of the development of Mohammedan Law we find that, on the one hand, the doctors of every age, on the slightest stimulus, condemn one another to the point of mutual accusations of heresy; and, on the other hand, the very same people, with greater and greater unity of purpose, try to reconcile the similar quarrels of their predecessors.

 

These views of modern European critics of Islam make it perfectly clear that, with the return of new life, the inner catholicity of the spirit of Islam is bound to work itself out in spite of the rigorous conservatism of our doctors. And I have no doubt that a deeper study of the enormous legal literature of Islam is sure to rid the modern critic of the superficial opinion that the Law of Islam is stationary and incapable of development. Unfortunately, the conservative Muslim public of this country is not yet quite ready for a critical discussion of Fiqh, which, if undertaken, is likely to displease most people, and raise sectarian controversies; yet I venture to offer a few remarks on the point before us.

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1. In the first place, we should bear in mind that from the earliest times, practically up to the rise of the Abbasids, there was no written law of Islam apart from the Qur’an.

 

2. Secondly, it is worthy of note that from about the middle of the first century up to the beginning of the fourth not less than nineteen schools of law and legal opinion appeared in Islam. This fact alone is sufficient to show how incessantly our early doctors of law worked in order to meet the necessities of a growing civilization. With the expansion of conquest and the consequent widening of the outlook of Islam these early legists had to take a wider view of things, and to study local conditions of life and habits of new peoples that came within the fold of Islam. A careful study of the various schools of legal opinion, in the light of contemporary social and political history, reveals that they gradually passed from the deductive to the inductive attitude in their efforts at interpretation.

 

3. Thirdly, when we study the four accepted sources of Muhammadan Law and the controversies which they invoked, the supposed rigidity of our recognized schools evaporates and the possibility of a further evolution becomes perfectly clear. Let us briefly discuss these sources.

(a)   The Qur’an. The primary source of the Law of Islam is the Qur’an.

The Qur’an, however, is not a legal code. Its main purpose, is to awaken in man the higher consciousness of his relation with God and the universe. No doubt, the Qur’an does lay down a few general principles and rules of a legal nature, especially relating to the family – the ultimate basis of social life. But why are these rules made part of a revelation the ultimate aim of which is man’s higher life?

 

The answer to this question is furnished by the history of Christianity which appeared as a powerful reaction against the spirit of legality manifested in Judaism. By setting up an ideal of other-worldliness it no doubt did succeed in spiritualizing life, but its individualism could see no spiritual value in the complexity of human social relations.

 

“Primitive Christianity”, says Naumann in his Briefe über Religion, “attached no value to the preservation of the State, law, organization, production. It simply does not reflect on the conditions of human society.” And Naumann concludes: “Hence we either dare to aim at being without a state, and thus throwing ourselves deliberately into the arms of anarchy, or we decide to possess, alongside of our religious creed, a political creed as well.” Thus the Qur’an considers it necessary to unite religion and state, ethics and politics in a single revelation much in the same way as Plato does in his Republic.

 

The important point to note in this connexion, however, is the dynamic outlook of the Qur’an. I have fully discussed its origin and history. It is obvious that with such an outlook the Holy Book of Islam cannot be inimical to the idea of evolution. Only we should not forget that life is not change, pure and simple. It has within it elements of conservation also. While enjoying his creative activity, and always focusing his energies on the discovery of new vistas of life, man has a feeling of uneasiness in the presence of his own unfoldment. In his forward movement he cannot help looking back to his past, and faces his own inward expansion with a certain amount of fear. The spirit of man in its forward movement is restrained by forces which seem to be working in the opposite direction. This is only another way of saying that life moves with the weight of its own past on its back, and that in any view of social change the value and function of the forces of conservatism cannot be lost sight of. It is with this organic insight into the essential teachings of the Qur’an that modern Rationalism ought to approach our existing institutions. No people can afford to reject their past entirely, for it is their past that has made their personal identity. And in a society like Islam the problem of a revision of old institutions becomes still more delicate, and the responsibility of the reformer assumes a far more serious aspect. Islam is non-territorial in its character, and its aim is to furnish a model for the final combination of humanity by drawing its adherents from a variety of mutually repellent races, and then transforming this atomic aggregate into a people possessing a self-consciousness of their own. This was not an easy task to accomplish. Yet Islam, by means of its well-conceived institutions, has succeeded to a very great extent in creating something like a collective will and conscience in this heteroge­neous mass. In the evolution of such a society even the immutability of socially harmless rules relating to eating and drinking, purity or impurity, has a life-value of its own, inasmuch as it tends to give such society a specific inwardness, and further secures that external and internal uniformity which counteracts the forces of heterogeneity always latent in a society of a composite character. The critic of these institutions must, therefore, try to secure, before he undertakes to handle them, a clear insight into the ultimate significance of the social experiment embodied in Islam. He must look at their structure, not from the standpoint of social advantage or disadvantage to this or that country, but from the point of view of the larger purpose which is being gradually worked out in the life of mankind as a whole.

 

Turning now to the groundwork of legal principles in the Qur’an, it is perfectly clear that far from leaving no scope for human thought and legislative activity the intensive breadth of these principles virtually acts as an awakener of human thought. Our early doctors of law taking their clue mainly from this groundwork evolved a number of legal systems; and the student of Muhammadan history knows very well that nearly half the triumphs of Islam as a social and political power were due to the legal acuteness of these doctors. “Next to the Romans,” says von Kremer, “there is no other nation besides the Arabs which could call its own a system of law so carefully worked out.” But with all their comprehensiveness these systems are after all individual interpretations, and as such cannot claim any finality. I know the Ulema of Islam claim finality for the popular schools of Muhammadan Law, though they never found it possible to deny the theoretical possibility of a complete Ijtihād. I have tried to explain the causes which, in my opinion, determined this attitude of the Ulema; but since things have changed and the world of Islam is confronted and affected today by new forces set free by the extraordinary development of human thought in all its directions, I see no reason why this attitude should be maintained any longer. Did the founders of our schools ever claim finality for their reasoning’s and interpretations? Never. The claim of the present generation of Muslim liberals to reinterpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified.

The teachings of the Qur’an that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.

 

You will, I think, remind me here of the Turkish poet Ziya whom I quoted a moment ago, and ask whether the equality of man and woman demanded by him, equality, that is to say, in point of divorce, separation and inheritance, is possible according to Muhammadan Law.

I do not know whether the awakening of women in Turkey has created demands which cannot be met with without a fresh interpretation of foundational principles. In the Punjab, as everybody knows, there have been cases in which Muslim women wishing to get rid of undesirable husbands have been driven to apostasy. Nothing could be more distant from the aims of a missionary religion. The Law of Islam, says the great Spanish jurist Imām Shātibī in his Al-Muwāfaqāt, aims at protecting five things– Dīn, Nafs, ‘Aql, Māl, and Nasl.

 

Applying this test I venture to ask: “Does the working of the rule relating to apostasy, as laid down in the Hidāya, tend to protect the interests of the Faith in this country?” In view of the intense conservatism of the Muslims of India, Indian judges cannot but stick to what are called standard works. The result is that while the peoples are moving the law remains stationary.

 

With regard to the Turkish poet’s demand, I am afraid he does not seem to know much about the family law of Islam. Nor does he seem to understand the economic significance of the Qur’anic rule of inheritance. Marriage, according to Muhammadan Law, is a civil contract.

The wife at the time of marriage is at liberty to get the husband’s power of divorce delegated to her on stated conditions, and thus secure equality of divorce with her husband. The reform suggested by the poet relating to the rule of inheritance is based on a misunderstanding. From the inequality of their legal shares it must not be supposed that the rule assumes the superiority of males over females. Such an assumption would be contrary to the spirit of Islam. The Qur’an says: “And for women are rights over men similar to those for men over women.” (2: 228).

 

The share of the daughter is determined not by any inferiority inherent in her, but in view of her economic opportunities, and the place she occupies in the social structure of which she is a part and parcel. Further, according to the poet’s own theory of society, the rule of inheritance must be regarded not as an isolated factor in the distribution of wealth, but as one factor among others working together for the same end. While the daughter, according to Muhammadan Law, is held to be full owner of the property given to her by both the father and the husband at the time of her marriage; while, further, she absolutely owns her dower-money which may be prompt or deferred according to her own choice, and in lieu of which she can hold possession of the whole of her husband’s property till payment, the responsibility of maintaining her throughout her life is wholly thrown on the husband. If you judge the working of the rule of inheritance from this point of view, you will find that there is no material difference between the economic position of sons and daughters, and it is really by this apparent inequality of their legal shares that the law secures the equality demanded by the Turkish poet. The truth is that the principles underlying the Qur’anic law of inheritance– this supremely original branch of Muhammadan Law as von Kremer describes it– have not yet received from Muslim lawyers the attention they deserve. Modern society with its bitter class-struggles ought to set us thinking; and if we study our laws in reference to the impending revolution in modern economic life, we are likely to discover, in the foundational principles, hitherto unrevealed aspects which we can work out with a renewed faith in the wisdom of these principles.

(b) The Hadīth. The second great source of Muhammadan Law is the traditions of the Holy Prophet. These have been the subject of great discussion both in ancient and modern times. Among their modern critics Professor Goldziher has subjected them to a searching examination in the light of modern canons of historical criticism, and arrives at the conclusion that they are, on the whole, untrustworthy! Another European writer, after examining the Muslim methods of determining the genuineness of a tradition, and pointing out the theoretical possibilities of error, arrives at the following conclusion:

 

It must be said in conclusion that the preceding considerations represent only theoretical possibilities and that the question whether and how far these possibilities have become actualities is largely a matter of how far the actual circumstances offered inducements for making use of the possibilities. Doubtless, the latter, relatively speaking, were few and affected only a small proportion of the entire Sunnah. It may therefore be said that . . . for the most part the collections of Sunnah considered by the Moslems as canonical are genuine records of the rise and early growth of Islam (Mohammedan Theories of Finance).

 

For our present purposes, however, we must distinguish traditions of a purely legal import from those which are of a non-legal character. With regard to the former, there arises a very important question as to how far they embody the pre-Islamic usages of Arabia which were in some cases left intact, and in others modified by the Prophet. It is difficult to make this discovery, for our early writers do not always refer to pre-Islamic usages. Nor is it possible to discover that usages, left intact by express or tacit approval of the Prophet, were intended to be universal in their application. Shāh Wall Allāh has a very illuminating discussion on the point. I reproduce here the substance of his view. The prophetic method of teaching, according to Shāh Wall Allāh, is that, generally speaking, the law revealed by a prophet takes especial notice of the habits, ways, and peculiarities of the people to whom he is specifically sent. The prophet who aims at all-embracing principles, however, can neither reveal different principles for different peoples, nor leaves them to work out their own rules of conduct. His method is to train one particular people, and to use them as a nucleus for the building up of a universal Sharī‘ah. In doing so he accentuates the principles underlying the social life of all mankind, and applies them to concrete cases in the light of the specific habits of the people immediately before him. The Sharī‘ah values (Ahkām) resulting from this application (e.g. rules relating to penalties for crimes) are in a sense specific to that people; and since their observance is not an end in itself they cannot be strictly enforced in the case of future generations. It was perhaps in view of this that Abū Hanīfah, who had a keen insight into the universal character of Islam, made practically no use of these traditions.

The fact that he introduced the principle of Istihsān, i.e. juristic preference, which necessitates a careful study of actual conditions in legal thinking, throws further light on the motives which determined his attitude towards this source of Muhammadan Law. It is said that Abū Hanīfah made no use of traditions because there were no regular collections in his day. In the first place, it is not true to say that there were no collections in his day, as the collections of ‘Abd al-Mālik and Zuhrī were made not less than thirty years before the death of Abū Hanīfah. But even if we suppose that these collections never reached him, or that they did not contain traditions of a legal import, Abū Hanīfah, like Mālik and Ahmad Ibn Hanbal after him, could have easily made his own collection if he had deemed such a thing necessary. On the whole, then, the attitude of Abū Hanīfah towards the traditions of a purely legal import is to my mind perfectly sound; and if modern Liberalism considers it safer not to make any indiscriminate use of them as a source of law, it will be only following one of the greatest exponents of Muhammadan Law in Sunnī Islam. It is, however, impossible to deny the fact that the traditionists, by insisting on the value of the concrete case as against the tendency to abstract thinking in law, have done the greatest service to the Law of Islam. And a further intelligent study of the literature of traditions, if used as indicative of the spirit in which the Prophet himself interpreted his Revelation, may still be of great help in understanding the life-value of the legal principles enunciated in the Qur’an. A complete grasp of their life-value alone can equip us in our endeavor to reinterpret the foundational principles.

(c) The Ijmā‘. The third source of Muhammadan Law is Ijmā‘ which is, in my opinion, perhaps the most important legal notion in Islam. It is, however, strange that this important notion, while invoking great academic discussions in early Islam, remained practically a mere idea, and rarely assumed the form of a permanent institution in any Muhammadan country. Possibly its transformation into a permanent legislative institution was contrary to the political interests of the kind of absolute monarchy that grew up in Islam immediately after the fourth Caliph. It was, I think, favorable to the interest of the Umayyad and the Abbaside Caliphs to leave the power of Ijtihād to individual Mujtahids rather than encourage the formation of a permanent assembly which might become too powerful for them. It is, however, extremely satisfactory to note that the pressure of new world-forces and the political experience of European nations are impressing on the mind of modern Islam the value and possibilities of the idea of Ijmā‘. The growth of republican spirit and the gradual formation of legislative assemblies in Muslim lands constitute a great step in advance.

The transfer of the power of Ijtehād from individual representatives of schools to a Muslim legislative assembly which, in view of the growth of opposing sects, is the only possible form Ijmā can take in modern times, will secure contributions to legal discussion from laymen who happen to possess a keen insight into affairs. In this way alone can we stir into activity the dormant spirit of life in our legal system, and give it an evolutionary outlook. In India, however, difficulties are likely to arise for it is doubtful whether a non-Muslim legislative assembly can exercise the power of Ijtihād.

 

But there are one or two questions which must be raised and answered in regard to Ijmā‘.

Can Ijmā‘ repeal the Qur’an? It is unnecessary to raise this question before a Muslim audience, but I consider it necessary to do so in view of a very misleading statement by a European critic in a book called Mohammedan Theories of Finance– published by the Columbia University. The author of this book says, without citing any authority, that according to some Hanafī and Mu‘tazilah writers the Ijmā‘ can repeal the Qur’an.

There is not the slightest justification for such a statement in the legal literature of Islam. Not even a tradition of the Prophet can have any such effect. It seems to me that the author is misled by the word Naskh in the writings of our early doctors to whom, as Imām Shātibī points out in Al-Muwāfiqāt, vol. iii, p. 65, this word, when used in discussions relating to the Ijmā‘ of the companions, meant only the power to extend or limit the application of a Qur’anic rule of law, and not the power to repeal or supersede it by another rule of law. And even in the exercise of this power the legal theory, as Āmidī– a Shāfi‘ī doctor of law who died about the middle of the seventh century, and whose work is recently published in Egypt– tells us, is that the companions must have been in possession of a Sharī‘ah value (Hukm) entitling them to such a limitation or extension.

 

But supposing the companions have unanimously decided a certain point, the further question is whether later generations are bound by their decision. Shaukānī has fully discussed this point, and cited the views held by writers belonging to different schools. I think it is necessary in this connexion to discriminate between a decision relating to a question of fact and the one relating to a question of law. In the former case, as for instance, when the question arose whether the two small Sūrahs known as Mu‘awwidhatān formed part of the Qur’an or not, and the companion’s unanimously decided that they did, we are bound by their decision, obviously because the companions alone were in a position to know the fact. In the latter case the question is one of interpretation only, and I venture to think, on the authority of Karkhī, that later generations are not bound by the decision of the companions. Says Karkhī: “The Sunnah of the companions is binding in matters which cannot be cleared up by Qiyās, but it is not so in matters which can be established by Qiyās.”

 

One more question may be asked as to the legislative activity of a modern Muslim assembly which must consist, at least for the present, mostly of men possessing no knowledge of the subtleties of Muhammadan Law. Such an assembly may make grave mistakes in their interpretation of law. How can we exclude or at least reduce the possibilities of erroneous interpretation? The Persian constitution of 1906 provided a separate ecclesiastical committee of Ulema– “conversant with the affairs of the world”– having power to supervise the legislative activity of the Mejliss. This, in my opinion, dangerous arrangement is probably necessary in view of the Persian constitutional theory. According to that theory, I believe, the king is a mere custodian of the realm which really belongs to the Absent Imām. The Ulema, as representatives of the Imām, consider themselves entitled to supervise the whole life of the community, though I fail to understand how, in the absence of an apostolic succession, they establish their claim to represent the Imām. But whatever may be the Persian constitutional theory, the arrangement is not free from danger, and may be tried, if at all, only as a temporary measure in Sunnī countries. The Ulema should form a vital part of a Muslim legislative assembly helping and guiding free discussion on questions relating to law. The only effective remedy for the possibilities of erroneous interpretations is to reform the present system of legal education in Muhammadan countries, to extend its sphere, and to combine it with an intelligent study of modern jurisprudence.

(d) The Qiyās. The fourth basis of Fiqh is Qiyās, i.e. the use of analogical reasoning in legislation. In view of different social and agricultural conditions prevailing in the countries conquered by Islam, the school of Abū Hanīfah seem to have found, on the whole, little or no guidance from the precedents recorded in the literature of traditions.

The only alternative open to them was to resort to speculative reason in their interpretations. The application of Aristotelian logic, however, though suggested by the discovery of new conditions in Iraq, was likely to prove exceedingly harmful in the preliminary stages of legal development. The intricate behavior of life cannot be subjected to hard and fast rules logically deducible from certain general notions. Yet, looked at through the spectacles of Aristotle’s logic, it appears to be a mechanism pure and simple with no internal principle of movement.

 

Thus, the school of Abū Hanīfah tended to ignore the creative freedom and arbitrariness of life, and hoped to build a logically perfect legal system on the lines of pure reason. The legists of Hijāz, however, true to the practical genius of their race, raised strong protests against the scholastic subtleties of the legists of Iraq, and their tendency to imagine unreal cases which they rightly thought would turn the Law of Islam into a kind of lifeless mechanism. These bitter controversies among the early doctors of Islam led to a critical definition of the limitations, conditions, and correctives of Qiyās which, though originally appeared as a mere disguise for the Mujtahid’s personal opinion, eventually became a source of life and movement in the Law of Islam.

 

The spirit of the acute criticism of Mālik and Shāfi‘ī  on Abū Hanīfah’s principle of Qiyās, as a source of law, constitutes really an effective Semitic restraint on the Aryan tendency to seize the abstract in preference to the concrete, to enjoy the idea rather than the event.

 

 This was really a controversy between the advocates of deductive and inductive methods in legal research. The legists of Iraq originally emphasized the eternal aspect of the “notion”, while those of Hijāz laid stress on its temporal aspect. The latter, however, did not see the full significance of their own position, and their instinctive partiality to the legal tradition of Hijāz narrowed their vision to the “precedents” that had actually happened in the days of the Prophet and his companions. No doubt they recognized the value of the concrete, but at the same time they eternalized it, rarely resorting to Qiyās based on the study of the concrete as such. Their criticism of Abū Hanīfah and his school, however, emancipated the concrete as it were, and brought out the necessity of observing the actual movement and variety of life in the interpretation of juristic principles. Thus the school of Abū Hanīfah which fully assimilated the results of this controversy is absolutely free in its essential principle and possesses much greater power of creative adaptation than any other school of Muhammadan Law. But, contrary to the spirit of his own school, the modern Hanafī legist has eternalized the interpretations of the founder or his immediate followers much in the same way as the early critics of Abū Hanīfah eternalized the decisions given on concrete cases. Properly understood and applied, the essential principle of this school, i.e. Qiyās, as Shāfi‘ī rightly says, is only another name for Ijtihād which, within the limits of the revealed texts, is absolutely free; and its importance as a principle can be seen from the fact that, according to most of the doctors, as Qādī Shaukānī tells us, it was permitted even in the lifetime of the Holy Prophet. The closing of the door of Ijtihād is pure fiction suggested partly by the crystallization of legal thought in Islam, and partly by that intellectual laziness which, especially in the period of spiritual decay, turns great thinkers into idols. If some of the later doctors have upheld this fiction, modern Islam is not bound by this voluntary surrender of intellectual independence. Zarkashī writing in the eighth century of the Hijrah rightly observes:

 

If the upholders of this fiction mean that the previous writers had more facilities, while the later writers had more difficulties, in their way, it is, nonsense; for it does not require much understanding to see that ijtihad for later doctors is easier than for the earlier doctors. Indeed the commentaries on the Koran and sunnah have been compiled and multiplied to such an extent that the mujtahid of today has more material for interpretation than he needs.

 

This brief discussion, I hope, will make it clear to you that neither in the foundational principles nor in the structure of our systems, as we find them today, is there anything to justify the present attitude.

Equipped with penetrative thought and fresh experience the world of Islam should courageously proceed to the work of reconstruction before them: This work of reconstruction, however, has a far more serious aspect than mere adjustment to modern conditions of life.

 

The Great European War bringing in its wake the awakening of Turkey– the element of stability in the world of Islam– as a French writer has recently described her, and the new economic experiment tried in the neighborhood of Muslim Asia, must open our eyes to the inner meaning and destiny of Islam.

 

Humanity needs three things today– a spiritual interpretation of the universe, spiritual emancipation of the individual, and basic principles of a universal import directing the evolution of human society on a spiritual basis.

 

Modern Europe has, no doubt, built idealistic systems on these lines, but experience shows that truth revealed through pure reason is incapable of bringing that fire of living conviction which personal revelation alone can bring. This is the reason why pure thought has so little influenced men, while religion has always elevated individuals, and transformed whole societies. The idealism of Europe never became a living factor in her life, and the result is a perverted ego seeking itself through mutually intolerant democracies whose sole function is to exploit the poor in the interest of the rich.

Believe me, Europe today is the greatest hindrance in the way of man’s ethical advancement.

The Muslim, on the other hand, is in possession of these ultimate ideas on the basis of a revelation, which, speaking from the inmost depths of life, internalizes its own apparent externality.

 

 

 

With him the spiritual basis of life is a matter of conviction for which even the least enlightened man among us can easily lay down his life; and in view of the basic idea of Islam that there can be no further revelation binding on man, we ought to be spiritually one of the most emancipated peoples on earth.

Early Muslims emerging out of the spiritual slavery of pre-Islamic Asia were not in a position to realize the true significance of this basic idea.

 

Let the Muslim of today appreciate his position, reconstruct his social life in the light of ultimate principles, and evolve, out of the hitherto partially revealed purpose of Islam, that spiritual democracy which is the ultimate aim of Islam.