Sharīʿah, Ethical Goals and the Modern Society

Sharīʿah, Ethical Goals and The Modern Society Jasser Auda

Muis Academy The Occasional Paper Series Paper No. 10

Other Titles in the Series: 1. Muslims in Secular States

by Abdullah Saeed 2. Contemporary Islamic Intellectual History

by Ibrahim M. Abu-Rabi’ 3. Islamic Law and Muslim Minorities

by Khaled Abou El Fadl 4. Religious Values in Plural Societies

by Chandra Muzaffar 5. Islam in Southeast Asia

by Azyumardi Azra 6. A Framework for Nonviolence and Peacebuilding in Islam

by Mohammed Abu-Nimer 7. Civic Responsibility in Political Society: An Islamic Paradigm

by Abdulaziz Sachedina 8. The Construction of Gender in Islamic Legal Thought and Strategies from Reform

by Ziba Mir-Hosseini 9. Basis for Interfaith Dialogue: Prospects and Challenges

by Mahmoud M. Ayoub

Copyright © 2015 Muis Academy, Singapore Published by Muis Academy, Singapore Designed and Printed by Oxford Graphic Printers Pte. Ltd. The following is an edited transcript of a Public Lecture held at Muis Academy on 8 November 2013 The views represented here do not necessarily reflect the views of Muis Academy, Islamic religious Council of Singapore (MUIS), publisher, or its staff.

ISBN: 978-981-09-7656-9

Sharīʿah, Ethical Goals and The Modern Society Jasser Auda

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Transcript of Lecture Introduction Peace, mercy and blessings be upon all those present.

In the Name of Allah, the Most Merciful, the Most Compassionate.

Praise and gratitude be to Allah, the Nourisher-Sustainer of the Universes and may the peace, blessings and salutations of Allah be showered upon the Joy of Creation, the Seal of the Messengers, Muhammad, his family, companions, and excellent followers.

I am really honoured to speak tonight. The direction of the talks and the themes that I have been asked to contribute to, in the last two or three days, have to do with ethics. I think ethics and an ethical approach to life are very important for Muslims today. I am really thankful to Muis and my friends, Dr. Albakri and all of the people for their hospitality and for their great friendships.

In addition, I chose this topic of Sharīʿah, because I think that Sharīʿah and ethics are very similar. My understanding of Sharīʿah is that it is an ethical approach to modern society.

In order to explain the term Sharīʿah, which is originally Arabic, let me try to explain the difference between a number of Arabic terms that I think are necessary for clarity.

People talk about Sharīʿah and they do not know what Sharīʿah is all about. Sharīʿah is defined in the books of Sharīʿah, as a way of life that brings justice, mercy, interest in common good and wisdom to the society. In the study of jurisprudence, Sharīʿah is defined primarily as justice; it is said to be all mercy, all wisdom and all common good.

In jurisprudence, we know that an opinion that attempts to apply any of the Sharīʿah’s injunctions in ways that would lead to forms of injustice is not considered reflective of the objective and the spirit of Sharīʿah. It should only be considered as a personal opinion. Therefore, I find it necessary to explain the difference between a number of terms for those who are new to Islamic Studies and for those who have experience, like my friends here, in order to discuss the translation of these terms.

Sharīʿah Defined Firstly, the word Sharīʿah. The term “Sharīʿah” in Arabic, comes from the root word Sharaʿa - Yashraʿu - Sharīʿatan - Shirʿatan, which means “way.” The origin is the ‘way’ that camels used to take in the desert to find water, so this is a way for optimum good.

Allah (glorified and exalted be He) mentioned Sharīʿah in the Qurʾān and once you have a word mentioned in the Qurʾān as “a certain way,” then this is the definition of the word, not a definition of someone who appears on TV and talks about it. It is mentioned in the Qurʾān, where Allah (glorified and exalted be He) addresses Muhammad (peace and blessings of Allah be upon him) saying: “Then We put you, [O Muhammad], on an ordained way concerning the matter [of religion]; so follow it and do not follow the inclinations of those who do not know.” (45:18). “We have put you on a Sharīʿah,” so in the translation, you will find the translators defining it as “this is the 2

high road, the way, the divine way, or the divine light.” Allah (glorified and exalted be He) had described and defined a way, if we follow it, it will lead us to happiness in this world and the next, and this is the definition of Sharīʿah.

‘The Way’ is defined according to the Qurʾān and according to the embodiment of the Qurʾān in the human form, which is Muhammad (peace and blessings of Allah be upon him). So Sharīʿah is the Qurʾān and Muhammad is the example that explains the Qurʾān. Allah (glorified and exalted be He) mentioned in the Book that Muhammad is “Bayān” - an explanation and illustration - you know, when I give a theory and then I give an illustration – “And We revealed to you the message that you may make clear to the people what was sent down to them” (16:44). The Prophet was sent as an illustration. So the Sharīʿah is the Qurʾān and the illustration of the Qurʾān is found in the life of Muhammad (peace and blessings of Allah be upon him). Sharīʿah is the Islamic way of life.

When I translate Sharīʿah in the books I write, it is the Islamic way of life. The translation of Sharīʿah as Islamic law is not a correct translation, because there is a difference between the law and Sharīʿah. Sharīʿah is not law but an ethical way of life. Yes, it could be translated into some statutes, as there are some issues, in the Sharīʿah, that require an authority, but other than that, there are other issues that are spiritual matters, and there are yet other issues that have to do with society. The presumption that the ‘Qurʾān equals to law’ is wrong to start with. The appropriate translation of the word ‘Sharīʿah’ is ‘the way.’

Fiqh Defined Secondly, the word “al-Fiqh.” What is Fiqh? It comes from the root word Faqiha – Yafqahu – Fiqhan. Linguistically, fiqh, in Arabic, means ‘understanding’, and [Islamic] ‘Fiqh’ means the understanding of the Sharīʿah. Again, Fiqh is not the law; it is the jurists’ understanding of Sharīʿah, in order that they transform Sharīʿah into rules.

These rules; you could call them ethical rules, but they are not Sharīʿah rules. There is a difference between Sharīʿah and Fiqh. This is also very important.

Fiqh is the understanding of Sharīʿah as the scholars have understood it. We have in our history a number of scholars who understood Sharīʿah in unique ways, and eventually the students and the students of the students established schools of Fiqh.

They called these schools of Fiqh after their primary scholars – e.g., al-Shāfiʿī, al-Ḥanafī, and al-Ḥanbalī. There were other scholars too, but their students did not publicise them as much, because they did not serve as much, even though they were great Fiqh scholars such as al-Awzāʿī and al-Thawrī. There are other schools that did not have many followers like al-Ẓāhiriyyah and al-Muʿtazilah, which are considered as schools of Fiqh too. Other than that, there were al-Jaʿfariyyah, al-ʿIbāḍiyyah and so forth.

So, Fiqh is the understanding of the Sharīʿah and its conversion into rules and we have a number of schools. Why do we have those four or five that are very popular, today?

It is because of the court systems that we had in the history of the Muslim-majority countries. We had courts, and people resorted to courts to resolve their conflicts and their issues. At that time, the state did not govern everything in your life, as the modern 3

state does today. Instead, at that time, the state was just for border protection, the army and for appointing Qāḍī al-Quḍāh (Chief Judge) - and they would have a number of judges. When people have a problem, they go to the judge. If they don’t have a problem, then life goes on. The state did not tax them and tell them what to wear and what to drink. Of course, it is a different world now and we have a different state, but that is why the court was important. The court, at the time, was a place where people go and resolve their differences.

The court had to follow some sort of a book because they did not have a “law” [the way we understand law today] at that time. So the current law, i.e., constitutionalism and a legal system is a 19th / 20th century development in the Islamic world. We did not know that before. Basically before that, the law was the court, and people go to court to resolve their differences.

Now, the khalīfah at that time, or the king, or the amīr or the prince, chose the Qāḍī and the Qāḍī has a madhhab (school of Fiqh). That is why the court adopted a particular school. There would be a Shāfiʿī court and another Ḥanafī court and so on. Eventually, the courts came to define the culture of their localities. People would say “we are Shāfiʿī,” “we are Mālikī.” Many people did not know what being a Shāfiʿī meant, but they followed what the court says – and that was dependent on their Qāḍī, scholar, school and mosques.

Some of the madhāhib (schools of Fiqh) were chosen for political reasons. The Ottomans, for example, when they made al-Dawlah al-ʿUthmāniyyah (the Ottoman Empire), their khalīfah was not from Quraysh. At that time all the schools, except for the Ḥanafī school, disagreed with that. It is because according to a Ḥadīth [a saying from] Prophet Muhammad (peace and blessings of Allah be upon him) the khalīfah had to be from the Arab tribe of Quraysh. The Ottomans chose the Ḥanafī madhhab for their court, as their Mālikī school stipulated that a legitimate khalīfah must be from Quraysh. Therefore, there were many political reasons that made certain madhhab widespread in certain areas. Sometimes, it depended on the school of the first person to spread Islam in a certain land. However, these schools did not define the land they are not denominations - you could live and die without knowing anything about these schools as long as you are Muslim.

This is Fiqh. Fiqh is the scholars’ understanding of the Qurʾān. Today when we have a question of right and wrong or halal and haram, we build on that historical body of knowledge. Today, the Faqīh (the jurist) deliberates and decides on the permissibility of contemporary matters and issues a fatwā.

Fatwā Defined Thirdly, the word “Fatwā.” Fatwā (fatāwā, pl.) is an opinion about a topic. Fiqh is the understanding of the Sharīʿah, whereas fatwā is the application of Fiqh to a specific case. Fatwā is not for every place and time, also not for everybody. Fatwā is a personal advice. “They request from you a [legal] ruling. Say, ‘Allah gives you a ruling…’”

(4:176). Fatwā is not a law; it is an advice. It could later be adopted in policy-formulation or used as a reference for law-making, but fatwā is originally only a personal advice.

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That advice changes from person to person. Multiple fatāwā may be issued regarding a single matter depending on the contextual application of the Fiqh. Fiqh’s application varies from a child to an old man, or from a rich to a poor person, from a man to a woman, from weak to strong. Therefore, fatwā is an opinion given to someone based on their circumstances. In ʿUlūm al-Sharīʿah (Shariah Studies) it is accepted that a fatwā also changes according with the change of time, the change of place, the change of circumstances, from person to person, from an intent to an intent. If a person has an intent to commit a crime, for example, or commit a sin, Allah (glorified and exalted be He) forbids his action, whereas someone else may do the same action, but without having intended it or without knowing the consequences or perhaps he was forced then, the legal ruling for the same action would differ.

To recap - Sharīʿah is the way, Fiqh is the understanding of the Qurʾānic injunctions into rules, and fatwā is the application of the rule to the specific circumstances – and as a matter of fact, none of these is the law. The law, in Arabic, is [appropriately] called “Qānūn.” It may be observed that it has something to do with ‘canon.’ Perhaps, it may have its origins in either the Latin or the Persian word ‘canon.’ Therefore, Qānūn is something that has to do with the state, and has to do with the application of a law with a small letter “l.”

Qānūn Defined Fourthly, Qānūn is different from the Sharīʿah and the fatāwā. While Sharīʿah is the ethics of the individual and the society, Qānūn, on the other hand, is what the authorities enforce on the society and the individual. In addition, the difference between the Sharīʿah and the Qānūn may be attributed to the difference between a sin and a crime, in Islam. Not every sin, in Islam, is a crime; and not every sin, that a Muslim commits, is something that the state has to take legal action against.

In fact, to transform a sin or a moral mistake into a crime requires taqnīn (a process of legislation). The process of legislation is subject to the politics and the structure of the state. In the past, we had very simple states, we had a head of state/authority – in the form of either a king, an imām, an amīr, or a khalīfah – who would take something from the Sharīʿah or the Fiqh and make it a law. So he would say “people are not supposed to do ‘that,’ if they cross that line, then they pay a fine or they get arrested or they go to prison.”

However, not every sin is automatically criminalized by the Islamic law. If you want pure Islamic law, it is something that aims to preserve the public order of a society but not the morality of the society. The morality of the society in Islam, is supposed to be preserved through the mosque, the family and the educational institutes, not through the law and surely not through a top down approach by the authorities.

Prophet Muhammad (peace and blessings of Allah be upon him) was all of these. He was a judge, a leader and a prophet. As a leader, he did not exercise his authority on people. When people made moral mistakes he (peace and blessings of Allah be upon him) would advise them and he would ask the neighbours to boycott that person. For example, a person came and complained “My neighbour is harming me. What do I do?”

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He adviced, “take your furniture out, put it on the street and sit there.” So the man did that. The man took the furniture and sat outside his door so the neighbours came back and forth and inquired, “what happened?” He informed them “well, my neighbour is harming me and the Prophet asked me to put my furniture out.” So this is a public complaint and as a consequence, all the neighbours gathered themselves and went to that harmful neighbour and told him, “you have to be good to your neighbour.” They took the furniture and put them back after they have solved the problem.

The Prophet (peace and blessings of Allah be upon him) had many examples like this in which he did not act as an authority. He did not take that person who harmed his neighbour and put him in prison or take them and make a court case. He did not do that. He acted as a teacher. He did not act as an authority, unless the sin becomes something that affects the public order, affects the fabric of the society.

For example, somebody perpetuates usury (ribā) in a market where he is giving loans and he is taking these loans back as multiples. This is something that the Prophet (peace and blessings of Allah be upon him) would oppose as an authority, because he thought that this would be against the order of the society that’s supposed to maintain justice and where the powerful is not supposed to exploit the weak.

He (peace and blessings of Allah be upon him) protected the weak from the powerful as an authority. If the sin, whatever it is, became something that is public, that people would see it and witness it, and so on, it becomes a crime, and then there is a due process for it. But then, there is the difference between Qānūn and Fiqh in that matter.

Not everything that is Fiqh is supposed to go into the law.

I am just introducing topics, perhaps in the discussion we can discuss these issues further. But I was introduced to a few of you and some of you work in fields related to the law; the law of the land. The law of the land is just the way it is, it is not equal to Sharīʿah and also not equal to Fiqh but it could be informed by our ethical system, and I will talk about that later on, inshā Allāh.

Sharīʿah is not equal to Fiqh, and it is not equal to Qānūn, even though it has something to do with them. Sharīʿah is not equal to something else, even though it has nothing to do with it, which is called “al-akhlāq.” In Arabic, al-akhlāq or khuluq, is the virtues. It is not ethics. Ethics does not really have an Arabic translation, because ‘ethics’ is a word that, to me, is closest to Sharīʿah in Arabic. [Rightfully] al-Akhlāq in English is virtues (faḍāʾil); such as al-raḥmah, al-shajāʿah and al-karam, i.e., to be merciful, courageous, and to be generous. So al-akhlāq are the virtues that a Muslim embodies.

Yes, you learn these akhlāq from Prophet Muhammad (peace and blessings of Allah be upon him) because there is no scientific evidence (or measure) in the lab, for the goodness or courage or generosity or mercy that a person needs to adopt. But you know that these are virtues because the Perfect Human Being (peace and blessings of Allah be upon him) in his perfection, embodied them. When Allah (glorified and exalted be He) described the Prophet (peace and blessings of Allah be upon him), He did not describe him as anything other than with the expression “Indeed, you are of a great moral character” (68:4). So Allah (glorified and exalted be He) did not describe him as a warrior or a friend or a father or a speaker or anything. Even though he (peace 6

and blessings of Allah be upon him) was all of these, Allah described him as somebody with a great moral character; and this moral character (al-akhlāq, al-faḍāʾil) of Prophet Muhammad was set as an example for us. Therefore, al-akhlāq is something that the Sharīʿah informs us with, but Sharīʿah is not equivalent to akhlāq, either. It is, as much as it is not equal to qānūn and it is not equal to Fiqh.

In addition, there is a part of Sharīʿah that has to do with ethics, as well, that we often forget about, one which is not focused on ethics related to people, but rather informs us of the ethics in relation to Allah (glorified and exalted be He) – the spiritual ethics, if you wish, or the ethics with God (glorified and exalted be He). This is also part of Sharīʿah and this is actually a major part that we often forget when we talk about it. It is studied, in Islamic Science, within a discipline called “al-Taṣawwuf,” but if you have a problem with that word, call it “al-Sulūk” and let us not argue about it much.

Taṣawwuf Defined The fifth term is “taṣawwuf.” Taṣawwuf (Sufism) is one of the Islamic sciences in which scholars were trying to explain how to relate to Allah (glorified and exalted be He), not how to behave with people. It has to do with sulūk. Sulūk is khuluq, the virtues.

But these virtues are related to Allah (glorified and exalted be He). Basically, they told us how to be in a state of tawakkul (a state of reliance on Allah (glorified and exalted be He)); how to be in a state of shukr (a state of gratitude to Allah (glorified and exalted be He)); how to be in a state ṣabr (a state of trusting patience); how to be in a state of khawf (a state of fear/awe of Allah (glorified and exalted be He)); and how to make duʿāʾ (to supplicate with sincere hope to Allah (glorified and exalted be He)).

Being taught how to make duʿāʾ is not about how to raise your hands and which direction to face - this is the Fiqh of duʿāʾ - the external rules of supplication. But the inward spirit of expressing our sincere hope is what the sufis would teach you when you pray to Allah (glorified and exalted be He). You pray with total certitude that Allah (glorified and exalted be He) will answer your prayers. If he does not answer your prayers, you would trust that He is choosing something better for you. This is derived from the oral tradition (Ḥadīth) of Prophet Muhammad (peace and blessings of Allah be upon him).

Admittedly, sufism, like almost every Islamic branch of knowledge, had lots of intruders who introduced information that is incorrect. But the correct sufism, derived from the Prophetic Ḥadīth, taught us that when you make duʿāʾ, when you pray to Allah (glorified and exalted be He) you should know that Allah (glorified and exalted be He) is the Greatest and He is the Most Generous, so you can communicate with Him accordingly. Prophet Muhammad (peace and blessings of Allah be upon him) said: “Ask God with certainty of the response.”

This is a part of the Sharīʿah that it is not again equivalent to the Sharīʿah. Yet it is an important part of the Sharīʿah, and the Fiqh of Islam, which is “Fiqh al-Qulūb,” we called it “Fiqh al-Bāṭin” the Fiqh of inward spiritual matters, the Fiqh of the heart of things; the understanding of the heart of matter, not just the understanding of the external rational mechanics of the mind. That is the sulūk or taṣawwuf.

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ʿĀdāt and ʿUrf Defined Sixthly, the term ʿĀdah (ʿĀdāt, pl.) or ʿUrf. Sharīʿah has something to do with what’s called “ʿurf”, or “ʿādāt.”ʿUrf is the custom of the people or their tradition. But people with Islam as their religion for hundreds of years, have developed customs that have something to do with Islam but they are not exactly Islam. So they have something to do with Islam, because they are guided by the Islamic morals and its higher values.

They are not exactly Islam, because the ʿādāt or the customs in one place could be different from a custom in another place.

Islam is a very multicultural and multi-customed religion. I happen to travel through Muslim countries, different places, and non-Muslim majority countries. I find that Muslims practise Islam in many ways. These are the ʿādāt that they have developed.

I’m not talking about prayers and fasting. These are ʿibādah (religious rituals) – they are virtuous acts. You learn these through the rules of Fiqh and you practise them by your heart from the guidelines of taṣawwuf.

For every ʿibādah, be it prayers, fasting or hajj, there are rules of the mind and rules of the heart, if you wish. There are rules for the body to follow when you make wuḍūʾ(ablution), you do this; and when you pray, you do that. There are also rules for the heart, so when you make wuḍūʾ, you make sure that you are clean, you make sure you are preparing yourself to be in Allah’s Presence (glorified and exalted be He). When you bow, you are aware of your humility in the face of Allah’s Greatness (glorified and exalted be He), and when you prostrate, you are aware that Allah (glorified and exalted be He) is within you, closer to you than your jugular vein and so forth. These are the rules of the body and the rules of the heart.

But ʿādāt is different from that. It is how a society develops a unique way of living that incorporates Islamic elements as well as specific cultural elements. They could be Chinese, Egyptian or Brazilian, anything. Even now many American Muslims are developing their own customs and their own ways of doing things that are both American, and also Islamic. [These practices] are understood as a unique way of living of a specific group of people that is inspired by the values of the Sharīʿah, but is not equivalent to the Sharīʿah.

This is a brief introduction to the nuances of the Arabic terms related to today’s topic, namely Sharīʿah, Fiqh, qānūn, akhlāq, sulūk and ʿādāt. The Fiqh is the understanding, if you wish, for the rules that the body follows; the qānūn is the law that is enforced by the state; the akhlāq are the virtues that inspire people; the Sulūk is the way to relate to Allah (glorified and exalted be He), the Fiqh of the heart, if you wish; and the ʿādāt are the customs that are informed by all of that, but they are not equal to the Sharīʿah, because it is larger than the sum of these parts.

Sharīʿah: A Nuanced Understanding The big question – what is Sharīʿah? If we include all of the above, Sharīʿah is Allah’s guidance in all of these matters. Yet, it is really the Qurʾān and the Sunnah. Sharīʿah is the Qurʾān in its essence, not in its application. There is a difference between the Qurʾān 8

and the interpretation of the Qurʾān. Sharīʿah is the Qurʾān, while the interpretation of the Qurʾān is Fiqh. Fiqh could be right or could be wrong. Fiqh could be changeable with the change of time. Fiqh can be complete in some understanding and incomplete, therefore the incomplete completes itself as it goes. But Sharīʿah is complete. The Qurʾān is complete. The Qurʾān is infallible. The Qurʾān is correct.

When I read the Qurʾān, I know that this is the Book, the Word of Allah (glorified and exalted be He). But when I read Shāfiʿī’s al-Umm or Abū Ḥanīfah’s al-Kharaj, or whatever, I know this is Fiqh. I’m not saying it is wrong or worthless, no. But this is very different from the Qurʾān. The Qurʾān is infallible and it is correct and perfect. But Fiqh is imperfect. The Qurʾān is not changeable, it’s fixed, for every place and time. We will not evolve the Qurʾān and make it, I don’t know, less number of sūrahs (chapters) or combine the chapters - we never do that to the Qurʾān. But with Fiqh, yes, we can have new chapters and new issues and so forth.

Sharīʿah: Islamic Ethics To me, the best English phrase to express Sharīʿah is Islamic ethics. Because ethics, in the English language, has to do with conduct. I know that ethics now is defined in weird ways, sometimes people take ethics and they think about the code of ethics, so that’s all about ethics. They think in terms of a profession, when you enter the company, you find this code of ethics for this company and you read it, and then there is nothing after that. This is not the code of ethics I am talking about. I am talking about ethics as in the conduct of the person, not just again the conduct of the body, but the conduct of the heart.

Codifying Islamic Ethics vs Stating Ethical Positions Thus, Sharīʿah is Islamic ethics of the body and the heart. Now, this ethics that we talk about could find its way to some rules, and these rules are a matter of Fiqh. Fiqh is about telling you: ‘This is forbidden, this is allowed, and this is an obligation.’ But, as discussed, not everything in the Sharīʿah is equal to Fiqh. There are some ethical rules that will translate into how we pray, how we fast and how we conduct the affairs of family life, etc. Some rules of the Sharīʿah translate into the law. There are things in the Sharīʿah that we understand about, for example, the sanctity of life. Therefore, there are laws that criminalize murder and punish murderers. This is a law that is exactly the law of the Sharīʿah. But it made its way into the law through a process; through a process of legislation and that process is not equal to Sharīʿah; this is a process that is subject to the different countries.

In a Muslim majority country, you will find that many laws are inspired by the Sharīʿah. If the Muslims are a minority, like your case here, or the case of many Muslim minorities, then legislative matters are decided by the politics of the legislative bodies.

The Sharīʿah does not have much to do with it, really, nor does Fiqh, or the Muslims, for that matter. However, Muslims could give some opinion about some issues.

For instance, if there are legislations that allow the selling and the consumption of alcohol, Muslims may ask, ‘since alcohol is forbidden in Islam, and it is not really 9

good for you, but the majority is legislating for it, then what can we do?’ We just state our moral position. We make an ethical stand from the law’s perspective and then hopefully, the law will change one day to be similar to our ethical stand. But all we can do is state our ethical stand, as we cannot really change the law, unless Muslims are elected to make that change in the law. But in the common definition of the state today, a change in law is based on the parliament or the legislative body, whatever it is.

The Spirit of Islamic Ethics The Sharīʿah has a lot to do as I said, with the sulūk, or the taṣawwuf, or the heart part of it, which we often forget. Although we really have to start reviving that part of Fiqh because when we think about Fiqh, as in the rules, we think about the way to pray and the way to do hajj, but we do not think about the spirit of the prayers and the spirit of hajj. So it becomes very formalistic, very literalist (shakliyyah) - “How do I raise my hands?” “Like that?” Okay, and then “where do I put my hands?” And then we fight over where to put the hands and whether to move the finger or not.

Gradually, with too much focus on such formalities we will forget that, when I stand to pray, I am supposed to be heightening my awareness of being in God’s Presence. I am, as all scholars said, “putting the lower-based aspects of my humanly existence (dunyā) below me and getting ready to be propelled into the Higher Self by Allah’s Mercy.” By saying “Allah Akbar,” God is Greater; greater than anything I could think about, including myself. Now I am entering the awareness of His Ever-Presence. When I read the Opening Chapter (al-Fātiḥah), 7 verses, it is not just a perfected, albeit blind reading of it. There is a need for me to recite “In the Name of Allah, Most Gracious, Most Merciful” (1:1) flawlessly and this is part of the Fiqh. But when you read al-Fātiḥah, you also think about it. It is a chapter that gathers every important aspect in Islam.

The Spirit of Practices “Praise be to Allah, the Nourisher and Sustainer of the worlds” (1:2). “The Most Merciful, Most Compassionate” (1:3) - you remember that, the mercy of Allah that surpasses your imagination. “Sovereign of the Day of Judgment” (1:4) - you remember the transience of this life, and that it will give way to a next phase of existence, and that the Day of Judgment is a time to stand responsible for your choices. “It is You we worship and You we ask for help” (1:5) - right? You are directing yourself. This is the spirit of the prayers.

It is not just the Arabic and my reading and my movements. “Guide us to the straight path” (1:6) - and you enter the prayer and you ask Allah (glorified and exalted be He) to guide you to the straight path, seventeen times every day.

The straight path is the path of guidance and the path of justice. Being on the straight path (al-Ṣirāṭ al-Mustaqīm) is to be in a state of istiqāmah (a state of authentic alignment).

We say in Arabic al-Istiqāmah hiya al-ʿadl wa al-tawassuṭ wa al-qisṭ - (being on the straight path is being just, moderate and fair) because the words have similar meaning. You are asking Allah (glorified and exalted be He) to guide you to a moderate path. “The path of those upon whom You have bestowed favour, not of those who have evoked [Your] anger or of those who are astray” (1:7) - you ask Allah (glorified and exalted be He).

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There is a spirit behind and within every word. Likewise, when you bow; when you do hajj and you wrap yourself with the white clothes [worn during hajj] that look like the shroud that is used to wrap the deceased up. This is the spiritual objective of this choice of clothing – for you to remember that one day you will be wrapped up with the same piece of cloth but you will not be moving, you will actually be dead and you will be lowered into the grave, etc. It is a very heavy reminder of that, when you put on the hajj’s cloth.

In addition, throughout your pilgrimage, you go around the places where all the Prophets had been to. Prophet Muhammad (peace and blessings of Allah be upon him) said that all the Messengers had visited these places and performed these rituals, such as circumambulating the Kaʿbah. You follow in their footsteps and do the same without asking why. In maqāṣid al-Sharīʿah (The Higher Objectives of Shariah), there is a discussion for the need to be critical and the need to constantly ask why; but when you do hajj, you do not ask why.

Islamic Ethics: States of the Heart Instead, when you pray, you just do it from a state of humility, awareness and sincerity.

In this way, you are giving your mind its appropriate place. You are humbling your mind a little bit. Sure, you can be a great philosopher. However, when performing hajj, you are just going around the Kaʿbah seven times in an anticlockwise direction. It does not make sense to you - that is fine. Do it like the simple-minded person next to you and observe that you are all in the same crowd, going around the Kaʿbah seven times.

When you perform it from a state of humility and sincerity, you will feel something wholly different, as some of those who have experienced it would describe. The act of humbling the mind is in itself a message from Allah (glorified and exalted be He) that there is something beyond our limited mind/consciousness, so just obey, perhaps, you’ll be propelled into higher consciousness. But we are not uncritical in all matters, only in matters of worship (ʿibādah) [and in matters that require intuitive inspiration.]

Islamic Ethics vs Islamic Traditions Now Sharīʿah, again, is not equal to the ʿādāt. However, we have to appreciate al-ʿādāt al-Islāmiyyah (Islamic traditions) that are also inspired by the Sharīʿah. Therefore, they command a degree of respect, even though they are not equal to the Divine Way. They are traditions that a society developed over time: ways of celebration, eating, drinking and style of dress. These are not equal to the rules of the Sharīʿah. In fact, the link between them is weak, as these traditions are subject to cultures, mindsets, and contexts.

Ethical Goal: State of Balanced Well-being With regards to today’s topic Sharīʿah, Ethical Goals and Modern Society. Sharīʿah was revealed by Allah (glorified and exalted be He) to maintain ethics in this world: ethics of the conduct of the body and the ethics of the heart, as well. Ethics with God and the ethics of the people, this is the ultimate goal of the Sharīʿah, and this is why we have Sharīʿah.

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Of course, I am expecting questions on ḥudūd and criminal punishments and Islamic financing and all of that, but all these are not equivalent to Sharīʿah. This might be part of the Sharīʿah and may be applicable or it may not be applicable and we can discuss that, but strictly speaking, this is not Sharīʿah. If somebody comes and asks you: “What is Sharīʿah?” tell them that Sharīʿah is my ethics; Sharīʿah is my ethical way of life, this is what I follow. The goals of this ethical way of life is mercy and justice on earth, spiritual alignment with God and nature, harmony and synergy amongst the diversity of people and all of the Islamic values that we know.

Yes, these values will find their manifestation in the law. They will find manifestation in some rulings, rules that I follow as a Muslim. But the ultimate goal of Sharīʿah is attaining happiness in this life and the next phase of existence, as scholars have said.

Happiness in this life and the next is attained by safeguarding the well-being of the human being, and of society - this is the ultimate goal of the Sharīʿah. It is for this wellbeing that Allah (glorified and exalted be He) has sent His Messengers with guidance on how to attain it. Muhammad (peace and blessings of Allah be upon him) was the final of these Messengers and he brought the latest version of guiding values/ethics/ rules – i.e. the Qurʾān, from which we deduce the Sharīʿah. God does not send guidance to make our life hard. He declared in the Qurʾān the intention of His guidance, saying “We have not sent down to you the Qur’an that you be distressed” (20:2) and “Allah does not intend to make difficulty for you, but He intends to purify you and complete His favour upon you that you may be grateful. (5:6).

Ethical Goal: Unconditional Love & Gratitude The objective of Sharīʿah in the modern world, or in any other time, is to guide mankind on how best to attain their optimum well-being. It was sent because Allah wants to purify you. He wants you to have all of His blessings. All experiences are value-neutral blessings, even though, from your finite perception that’s not privy to the wise, grand and the perfect scheme of things, some experiences seem positive (health and prosperity) while others seem negative (sickness, loss and poverty) so that you may be trust the All-Knowing and cultivate unconditional gratitude.

Closing Supplication We ask Allah (glorified and exalted be He) to guide us to be in a state of unconditional love and gratitude. We also ask Allah (glorified and exalted be He) to guide us to be in the best state of devotion and worship that He (glorified and exalted be He) would be pleased with. We ask Allah (glorified and exalted be He) guidance and forgiveness and we also ask Allah (glorified and exalted be He) to guide us to follow the footsteps of all His great Messengers and particularly Prophet Muhammad (peace and blessings of Allah be upon him), as their path is the path of unconditional happiness in this world and in all phases of existence.

May the peace and blessings be upon Muhammad, the Prophets, his companions and his followers , Ameen. Thank you.

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Question and Answers Moderator: Thank you Dr Auda for an eye-opening lecture. It helped me understand a statement made by Professor Ibrahim Musa, who said “I don’t understand people who say Islam is simple and easy.” Now, I am starting to understand why he made that comment. Not in the sense that it is difficult and you rightly pointed out that it’s not to make our lives difficult, it is actually to make our lives easy. But I think the way we understand Islam, needs to improve. I will now open the floor for comments and discussions or questions.

Q:

Is there democracy in Islam?

A: Is there democracy in Islam? There is justice and consultation in Islam.

Justice, in the social, political, and economical sense and this is an Islamic teaching.

Consultation, is called “Shūrā,” in Arabic. The people have to be consulted in their affairs and the system has to ensure a fair political and justice systems and so on. The ruler has to represent the people, has to work for the best interest of the people and has to make sure that the system has to protect its people. So democracy is in Islam by its values, but not necessarily its specific present structures.

Yet, democracy is the best, if you wish, political setup that we have so far. That is why you find, democracy is good from an Islamic point of view, but it is just not good enough. It is good because it is better than all the alternative systems that we have had so far, which include dictatorships and totalitarian systems, etc. From the point of view of Islamic values democracy has more things in common with it than others [political systems].

It solves a major problem in our Islamic history which is the automation of power.

It would have been good had we had elections in the early days of Islam, instead of having two big factions of companions fighting, they could have simply voted and life would go on. But we did not do that. We had major fights and we lost many of the companions of the Prophet (peace and blessings of Allah be upon him). Thereafter, we had kingdoms that were tyrannical and continued on for centuries yet, from the time of the Umayyads there were very few kings who were actually just.

Yet, democracy is not the end of history, from an Islamic point of view. Some Americans and Westerners like to think that once you reach this particular way of doing politics, then you’ve reached the end of history. No, the journey always continues, with ups and downs because there is no human system that is complete. Therefore you find critiques of democracy, even from within the western political philosophy tradition, they aim to correct and improve the democratic setup.

That is what Muslims could contribute in that sense. Informed by Islamic values and the Islamic ethics, we could propose amendments to democracy and new ways of doing things. That was the hope with the Arab spring. The Arab spring is now in a coma, I do not know if it will wake up. But the Arab spring turned out to be much more of a challenge than we thought when we had these revolutions. We thought 13

that we toppled these dictators, we would build our democracies and modern states and start having hopes of re-envisioning the state through new constitutions and so on – the Tunisian constitution, the Egyptian constitution, the Yemenis, even the Syrians had hopes at one point.

The ruling elites of other Arab states wanted to avoid the pressure like in Morocco and others, so they started to make reforms that are very interesting and forwardlooking. So we had hopes that we could re-envision the state in something that is better than democracy. We are now realizing through the very painful events taking place in Syria and in Egypt that we have been ruled not just by dictators, but we have been ruled by a mafia – a whole mafia gang, that extends all the way down to the roots of the government, and therefore, it is going to be really difficult to change the political system until we change the political culture; and the political culture is, so far, a culture of dictatorship.

Everybody who controls a traffic junction is a dictator in his own right, and not just Mubarak and Assad and their immediate allies. Change has to happen from the bottom up, and that is what my humble writings on the post-revolution period refers to. I insist that no change made in the political system now, will have an impact on the lived reality, until we change the culture/mindset/attitude in the Arab world.

The Arab culture needs a lot of democratization, for lack of a better word. A lot of development in order for that culture to be fit for leaders who are better leaders.

“As you are, so are your leaders,” said Prophet Muhammad (peace and blessings of Allah be upon him). If you want to see a change in your leaders, change yourselves.

Allah (glorified and exalted be He) said, “Indeed, Allah will not change the condition of a people until they change what is in themselves” (13:11). If you want to see a change in your affairs, you need to change yourself. And every philosopher advised, “be the change you want to see.” In short, the Arab spring will wake up from the coma, hopefully, and will start to move towards something better than democracy, even though democracy is great so far.

Q: Thank you Professor Jasser Auda. Your presentation discusses an inwardlylooking perspective on what Sharīʿah is. But there are groups within the larger community of Muslim groups who talks about Sharīʿah from a very constitutional/ legislative point of view, and who push for hard-core agendas. Do you see this perspective contradictory to what you’ve shared?

My second question is regarding the concern and fears towards Sharīʿah in many parts of the world. What do you think constitutes some of these concerns? Why are western governments fearful of it? It’s like the other side of Sharīʿah, beyond the media and everybody else. Is it justified?

A: The first question regarding groups that call for Sharīʿah in a way that seems very different from the way you heard. You cannot really bring Sharīʿah to politics based on historical precedents of Islamic politics, if you wish. So you cannot really bring something that happened during the various historical Islamic Caliphates or even during the time of the four rightly guided Caliphs, and impose it onto our context without understanding the current politics of the state.

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We had a lot of these constitutional debates in Egypt, for example, post-Arab Spring. And people want to take structures from the Abbasid era and implement it in Egypt today. Ḥisbah is a concept for guarding morality or for the police to watch for moral crimes that are supposed to be crimes in the society; that is fine.

But in order to borrow something from our history and bring it to a nation-state, where citizens are supposed to be equal and you have borders and sovereignty, this is a different world that you are bringing the history to. Therefore, there is a problem with the application of the Sharīʿah, if one’s focus is its form and structure in history, rather than its abstract values that transcend time and space. Yes, Sharīʿah had manifested in our history in many ways, but we’re not supposed to borrow how it had been applied from our histories. We’re supposed to be creative for today, for the sake of a better today.

Certain groups want to introduce ‘Sharīʿah-compliant evidence’ although there was no historical precedence for that. When asked ‘why do you want to do that?’ They say, ‘because Hārūn al-Rashīd, when he did ‘that,’ he did this.’ That is fine, but Hārūn al-Rashīd is not Muhammad (peace and blessings of Allah be upon him), so why are you bringing Hārūn al-Rashīd as a justification. This is not something that is acceptable. Some people do not observe the difference between Fiqh and Qānūn that I mentioned. So they wanted everything in our Fiqh, everything in my prayers, zakāh, hajj, and so on, to become codified in the legal system. In the post-Egyptian revolution some people even went far enough as to suggest setting up independent full-fledged ministries - Ministry of Prayers, Ministry of Zakāh and Ministry of Haj. [Audience’s laughter] - You’re laughing, but I saw this in Tahrir, like a whole proposal, and people were signing it. What is that? How do you run a whole state, based on rituals? That is unacceptable.

What about non-Muslims? It’s suggested that they pay jizyah. But that’s unacceptable too, because now you have a state that has been in existence for a long time and where its citizens are equal. Nowadays, you want some members of the state to pay a tax, while others do not. That is unacceptable. When the Prophet (peace and blessings of Allah be upon him) did it, he did it based on the political consideration of the time, not because it is al-Dīn (Sharīʿah). He did it because that was a suitable solution for the political context of the time. It worked because both Muslims were paying zakāh, and non-Muslims were paying something similar to zakāh to the state at that time. However, today, Muslims are not paying anything to the state in that sense.

Everybody pays taxes, but you want to add a tax just because the person is not a Muslim?!

Such a Fiqh-based approach to politics today is unacceptable, also the historical approach to politics today is just as unacceptable, even from a universal Islamic point of view. I think the best way to approach politics of today, from an Islamic point of view, is the approach of ethics and the approach of values.

For instance, the Islamic values of consultation; al-Shūrā. The questions that should be asked and resolved creatively are how can we ensure the highest level of consultation? How best can we be consultative? For starters, democracy embeds a parliament, but how can we value-add to this democratic parliamentary structure?

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Not to bring historical structures that we have outlived and which were mostly structures of dictatorship - the amīr was doing whatever he wanted, and whoever disobeyed him risked his life. And they want to do that today, so they find people who give them fatwās to cut people’s throats if they disobeyed the government. But that is unacceptable.

There has to be due process and rule of law, because that is the Fiqh of today. The rule of law is not a Western concept. It is a human concept that any state should apply. If you have a modern state as proposed by Thomas Hobbes (d. 1679) and others, you have to live with it as it is. You cannot really deal with it as a Caliphate, the khīlāfah is finished, it is gone. And if we are going to have a khīlāfah in the future, certainly it will not be as central as it was before. It will not be one person who stays in Medina, and he has a council of five or ten (ahl-al-ḥil wa al-ʿaqd), and he sends a walī here and a walī there, it will never be like that, for sure.

If we ever have something that we call a “khīlāfah,” it will be some sort of a union, perhaps between Muslim countries, perhaps economic unions, or political unions these would be great. But that (caliphate as practiced in the past) is something that is not realistic today. You know, some brothers made a conference in California and called it “Khalifornia.” And as I take this in, I saw it on a poster, I could not believe my eyes – what is “Khalifornia”? Wow! So they wanted to establish a Caliphate in California. It is funny. I mean, most of them are refugees in America, anyway, running from Assad and Saddam.

So, regarding the second question, are there serious and legitimate concerns, in terms of Islamophobia? Actually, yes, there are. Islamophobia, partly, arises because of people’s hatred towards Islam and their historical problems with it. But a lot of what’s happening in the Islamophobes’ imagination, is true, in fact. Many Muslims have lost their minds and have been presenting very ugly pictures of Islam. I wrote an article once and I called it “Islamophobia and Islamic Extremism Are Two Sides of the Same Coin.”

What triggered Islamophobic sentiments in America recently, was the Boston court case. A Muslim man from Boston abused his wife badly. When she went to court, his lawyer approached the judge and explained that according to Sharīʿah, a man is allowed to abuse his wife. The judge, I do not know – with good or bad intention – acquitted him.

This was the first recent case of Islamophobia, and that’s why now the Tea Party is proposing to ban Sharīʿah nationwide. They have already banned it in a few states, and lawyers are not supposed to resort to Sharīʿah, because it is deemed bad, evil and violent.

In this particular case, they presented Sharīʿah as bad, evil and violent. What law system allows such things? Had the lawyer tried to present this argument in front of a Muslim judge, he would have been easily overruled him, because it’s understood that no, in Islam we don’t do that.

Islamophobia is sometimes justified, really, by our behaviours, especially by people 16

who take extreme views that may veer on the non-Islamic yet they claim for it to be mainstream Islamic understanding. But it’s our role to clarify the picture of Islam.

After that case, when the groups of Americans at that time, from the far left and so on, proposed to ban Sharīʿah in the American courts, I expected the Muslim groups in America to come out and say: “Well, this guy is wrong, because Islam bans abuse,” and this would have been the appropriate response to the situation.

An inappropriate response would be to attack the state directly by saying that a secular state is not supposed to support such a ban.”

From my perspective, with all humility, the Islamic groups, Islamic rights groups in America at that time, were not loud enough against criticizing people who (mis)represent Islam, before they could protest the banning of Sharīʿah. And therefore – yes, they are justified.

Unfortunately, the media also plays a big role in that. By highlighting a single standalone case and blow it out of proportion, while at the same time, underrepresenting the average American Muslims, who are good people with good families and decent lives, naturally, Americans will develop a fear of any and all Muslim men. This is especially pronounced in the media where they show Muslims as bearded men or ḥijābi women particularly right after they show blood and gore. This affirms the association of Muslims and violence in the viewers’ minds.

Q: Al-Salām ‘alaykum wa-raḥmat Allah wa-barakātuh (Peace Be Upon you, as well as Allah’s Mercy and Blessings). Thank you professor, for the very in-depth explanation and the presentation that you have made. I’ve got a question on the issue of human reasoning versus the Qurʾānic revelation. There are challenges for the fatwā formulation process. There is always this challenge of how far do we actually go beyond trying to have human reasoning in very clear injunctions in the Qurʾān.

There are critics who have said that going far from what has been revealed in the Qurʾān may be termed as liberal; you are being too modern in that sense, without looking at traditions, and so on. So these are challenges that we face constantly when coming up with a certain views on modern issues that the community is facing and decisions that have to be made on certain Islamic legal perspectives, for example farāʿiḍ, (Muslim inheritance) zakāh, and many other issues. So maybe you can elaborate on the challenges, the problems, and how do we tackle this? Thank you.

A: I think the key here is to differentiate between the fixed matters in Islam and the variable matters. There are matters in Islam that are qaṭʿī, (permanent) we call them “confirmed, fixed, there’s no negotiation about them.” They are matters like, you know, pray five times a day and do hajj and fasting in Ramadan. There are the matters of marriage in Islam between a man and a woman that are based on certain legal things. There are aspects related to the human body, its sanctity in life and after death. There are matters like that that are fixed in Islam. Yet there are a lot or a majority of matters are variable.

In the variable matters in Islam, we need to use reason, even if it contradicts the apparent implication of the scripts. This is a bit of a heavy term, maybe I can repeat that there is an implication of the scripts that have a ẓāhir (apparent) meaning.

The apparent meaning of the script, if we are talking about a fixed matter, then 17

this is what we take it to mean. But if we are not talking about a fixed matter and it’s a matter of ijtihād, then reasoning should be the default methodology.

In Faṣl al-Maqāl Bayna al-Sharīʿah wa al-Ḥikmah al-Muqtaṣad (The Decisive Argument about the Relationship between Reasoning and Sharīʿah), Ibn Rushd said that if the correct, sound and confirmed reasoning contradicts what is in the Qurʾān, then we have to do what is called as “Ta’wīl” or reinterpretation of the Qurʾān. We have to reinterpret as much as the language could allow us in order for our rational understanding to have the higher hand. It is because the rational understanding – in the matters of variables, not in the matters of the fixed issues in the Sharīʿah – has higher ground over the original scripts that give an apparent meaning.

They have an aim. Their objective is to achieve the interest that the rational would achieve better in the current situation. You see, it’s a very long sentence, but in the current situation, we are thinking in a certain way and we achieve the common good in a certain way according to our rational intellect, and that may contradict with some of the narrations or an apparent meaning from the verses. But this is not confirmed, nor is it fixed. Therefore, we are allowed to reinterpret the original Qurʾānic text or a Prophetic tradition in order for our rational intellect to rule.

The very famous example that had caused a controversy is Ḥadīth al-Dhubābah (The oral Prophetic Tradition concerning the Fly). I know that this is a much smaller issue than the issues you are probably thinking about, but it is just for illustration. It is reported in this Ḥadīth that the Prophet (peace and blessings of Allah be upon him) said: “If the fly falls into your drink, then immerse the fly in the drink and then throw it away before you drink. Because Allah made in one of its wings, a disease, and in the other wing, the cure.”

Eventually, we discovered bacteria and infection and that flies carry things like that, and therefore some of our scholars, in the twentieth century, they started to say: No, the mind and its logic require us to reinterpret the Ḥadīth. At least to determine the degree to which it is applicable; perhaps it was meant to be a personal advice? Or to mean that perhaps the Prophet (peace and blessings of Allah be upon him) did not know that the fly had bacteria, etc. So we reinterpreted the Ḥadīth in order for us, when a fly falls into your drink, we would no longer drink it.

Subsequently, science confirmed that the Ḥadīth is true. It was discovered that there are harmful material and there is anti-matter, in the fly itself. But before knowing that the Ḥadīth was true, we were supposed to use our minds. The scholars who used their minds, and rejected the Ḥadīth because they thought that the meaning is incorrect, took the right decision at their time. But then, eventually science proved that literal understanding of the Ḥadīth was correct.

As a general rule, if there is a literal understanding of something that goes against the rationality of today, we should go by the rationality of today, because that is what Allah is asking us to do - to use our mind. The verse or the Ḥadīth that aims at the common 18

good, like this particular Ḥadīth – one that does not address a primary religious injunctions such as prayers, zakāh or hajj, rather it’s addressing a variable issue in the area of health, is neither fixed nor confirmed. In this case, we should reinterpret whatever scripts we have in order for the mind to judge. The mind is to be accorded appropriate respect, and this is not a philosophical stand, this is an Islamic stand, too.

Ibn Taimiyah authored a six-volume book The Rejection of the Contradiction between Reasoning and the Revelation. In the book he said that correct reasoning and the correct revelation will never be in contradiction. When Allah gives us reasoning, and we think that the revelation contradicts with it, this indicates that we either did not do enough reasoning or we did not understand the revelation. Therefore, we have to work on perfecting our reasoning, and if we are sure that we’ve perfected our reasoning, then we should know that we did not understand the revelation very well. I am not sure if I have answered your question. But if there is a specific example, perhaps you can give me, so I can know what you’re talking about.

Q: An example may be inheritance. It’s clear in the Qurʾān how it should be distributed, however, because of human reasoning, culture, and changes in our community, we interpret and reason it to be fair and just based on ethics again that it should be distributed in a different way, so it contradicts with first revelation of how it should be distributed. What is your take on that?

A: Basically, the issue of inheritance cannot be understood properly in light of Islamic justice and Islamic rationality without understanding the issue of support.

People who inherit more, people who are equivalent to others, brother, sisters, husbands and wives, and so on, they inherit more because they have financial obligations towards other people. That is why you find, for instance, that the brother inherits more than the sister, because he is financially responsible for her, as her guardian (wālī) from the Islamic perspective. If you go on, you will find the parents inherit from their son, but if the son has children, then they inherit less, because the child will take care of the grandparents. But if he does not have children, then the mother inherits more. She inherits more because she lacks a grandson or a granddaughter who could take care of her. But if she has brothers or sisters, then she goes back to the one-sixth portion, because the brothers and sisters are obligated to look after the mother.

Then Allah (glorified and exalted be He) said “after any bequest which was made or debt” (4:12) – which means that all of these distribution injunctions should only come into effect after a personal will had taken effect. These are fixed matters in Islam. The variable matter is the scope of the will. The scope of the will is something that scholars differ about. So, in particular cases, if a man thinks that he wants to equate between his children, then he should put that in the will. The will, in Islam, the support structure, and the inheritance should be understood together.

They have to be applied together. If you apply the inheritance rules without the support rules, then it is unjust, and Islam is not about injustice. You either apply them together or you don’t apply them. In fact, you should apply them and apply the wills to allow people to give wills as they wish.

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Although Imam Shāfiʿī rejected a Ḥadīth, which he narrated as follows, “A will cannot come into effect for a beneficiary, except if the other heirs agree to it,” but we can see that perhaps, if the other heirs agree, a redistribution that achieves justice in the contemporary context more would be possible. In the societies where the man is still taking care of the female, then, yes, the male would inherit more, in terms of that – although we are well aware that women are not only financially independent now, in fact in many instance they look after the male members of the family.

It is my humble recommendation that either a state enforces both inheritance rules and develop support structure or enforce neither and let people go by the will. As it is, the current state enforces inheritance rules and if inheritance is not divided according to the Sharīʿah, you get arrested and you go to prison right away. But if a person fails to fulfill his financial/social obligations towards someone under his care, you would be taken to court and end up spending five years in court proceedings.

In addition to a long court procedure, you have to pay for lawyers until you go bankrupt and the person seeking his rights may give up the case because he cannot afford the lawyer. That’s not fair. This is not Sharīʿah.

The Sharīʿah is to either apply both, in the same case. For instance, Allah (glorified and exalted be He) said the son would inherit more and he would have a bigger share because he is financially responsible for his mother. If he neglects his duties, she can take him to court, under the Islamic proper Sharīʿah and get support from him within one session. This is the proper Sharīʿah. But if the mother takes the son to court and she spends five years in order to ask for her rights, then, no, he should not inherit that much. Therefore, there has to be a change in the law in order to either apply a balanced and a fair system in the Islamic structure of society or otherwise, we use our minds and we just remove the inheritance rules and the support assumption and we let people do their wills because maybe the wills will be fairer.

The objective is to be fair, it is not to apply half of the Islamic law. If you apply half of the Islamic law, and not the other half, like in a family setting, you enforce the rights of a few members and neglect to enforce the responsibilities upon them, then it is wrong. So, in this case, rationality does not cancel the script, but it balances the script.

It balances the application of the script. Otherwise, we do not apply something until we have justice in the society.

This is similar to the issue of ḥudūd - I know, it is a much more theoretical issue - you cannot apply the ḥudūd, or the punishments, in the society, if corruption is rife in courts and poverty and immorality are widespread - you cannot apply these; they do not apply, simple as that. They are in the Qurʾān, they are part of the Sharīʿah - that is fine. But for them to become law, that is a different story, and that is my differentiation between Sharīʿah, Fiqh and law. You cannot put something in the law unless you can make sure that the law will achieve justice.

Therefore, the law has to be balanced. Balancing the different parts of the Sharīʿah or freezing these parts of the Sharīʿah from the law until we make sure that the conditions in which these parts apply are there. Otherwise we do not apply them.

We freeze them. We wait.

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Q: I am just trying to bring back the discussion to the topic and I look at those three words; Sharīʿah, Ethical Goals in the Modern Society. I’m just trying to be contextual, particularly, in the modern Singapore today. We live in a plural society, a society where there will be continuous contestation of ideas, claims and counter-claims, and a market place of ideology.

For some, the definition of ethical goals will vary depending on the value system and depending on how one perceives the worldview and belief as well. But I do not think we would disagree on trying to create a good society. Here I’m trying to loosen the definition of Sharīʿah and ethics into a good society so that my non-Muslim friends can also take part in this discussion.

In other words, we want to try to be a good society. We want to try to create a society that is good, just, honest, kind, gracious, and that looks after each other.

Then the question, on my mind is, what would be the sufficient and the necessary conditions for that to happen? And I am trying to relate this to the fact that you made earlier on Sharīʿah, as we just discussed, it is quite internal, one of the brothers says, quite inward. You know, your ethics with God and ethics with the body and the heart. I am trying to make a connection with society at large. How do we literally transport this particular ethics from the individuals to the society, and therefore, hopefully an outcome which creates an ethical society. In other words, what would be the ethical frame that we need to develop the society that we desire?

A:

At what capacity? Who are we? Are we individuals in the society? Are we...

[Questioners response]:

Yes, as individuals in the society.

A: And we are looking at an ethical framework to better the society, that is not based on Sharīʿah or that is?

[Questioners response]: It can be based on the Sharīʿah but, we need to keep in mind that we are part of a plural society here and we want these particular values to be shared by society at large, as well.

A: Well, there are parts of the Sharīʿah that are specifically addressed to Muslims, particularly in matters of worship. Other than that, the Sharīʿah addresses the human.

It ensures the preservation of the mind, life, family, and dignity. Once you go from the Sharīʿah to Maqāṣid al-Sharīʿah (the Higher Purposes of Sharīʿah), if you go from, for the lack of a better word, from the law to the philosophy of the law; then Maqāṣid al-Sharīʿah are purposes, the ends, the meanings - then you are talking about justice and human rights and so on. They are in the Sharīʿah in a similar way – it discusses the right to life, the rights to association, freedom from torture, freedom of expression and freedom of belief, we have them in the Sharīʿah in the same way.

So perhaps the best way is to keep the part of the Sharīʿah that is specific to Muslims to ourselves and align with people in the society on common concerns and common issues, not just Islamic issues.

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We have a problem as Muslim minorities sometimes - I lived in Canada, the UK, and in the States - we only address the society when we have an Islamic issue; it has to be a ʿEid or a ḥijāb issue. Only then, do we appear and talk to the society.

But we do not address the society on general concerns of the society that are important to us as a whole. When I was in Canada, I suggested that the Islamic Association support the just cause of the aboriginal Canadians, as simple as that.

The response was “But this is not an Islamic issue, these are Indians. What are you talking about? I said “No, justice is an Islamic issue. This was not about the Indians, this was about supporting justice in whichever cause. I think this is the best form of daʿwāh that you can do for Islam because Islam is about justice.”

So, if we stand up for issues in this country that are not Islamic issues, but just normal issues that affect the general Singaporean – in any sector, e.g. if there is an issue with the educational system or the environment, etc., then participate or even initiate a way forward.

Therefore, now we can be integral members of the wider society that we are a part of.

There are minorities in this world that are very small but they are very influential in the country and they shape the culture of the country. The Jewish minority in America for example, they shape a lot of the culture and the economy and politics because they address the American issues. Yes, of course, many of them are concerned about Israel and many of them are Zionists, but most of their work is about the American education, American art, American legal system, and they really work hard for America, for the country. So, perhaps, this will help to you.

Q: Talking about Sharīʿah in modern society, as much as we want to form a good society or even adopt Sharīʿah as an ethical framework, as a means to justice, but the non-Muslims will ask whose justice? Whose wisdom? We may try to instill goodness into society, but it seems that they are not only Islamophobic but they are also Sharīʿah-phobic. When discussing the issue ḥijāb some fear that it would lead to the implementation of Sharīʿah. That’s the perception that they have. They must have developed this impression by the negative images that Muslims have given Islam.

So, I feel that to address this issue with a non-Muslim means that we have to address our internal issues first. Do you think that the cause of this is because we, Muslims, have not understood what Sharīʿah is really about? Therefore, we are not able to live it, let alone explain it to a non-Muslim?

In your opinion, do you think this is because Muslims feel there is a conflict between reasoning and also the revelation, which creates a dichotomy between the traditionalists (those who come from the Islamic background) and the social scientist/sociologists? Therefore, when we attempt to discuss a certain matter, the discussion is polarized by, on the one hand, the pro- Sharīʿah, while on the other, by the pro-reasoning. Muslims cannot seem to combine both revelation and reasoning together, so therefore, this problem has occurred in probably the majority of Muslim countries.

A: Yes, I agree with you that we have a problem internally, of not understanding the Sharīʿah very well. If your friends ask you: “Whose justice and whose 22

wisdom?” We should also ask ourselves: “Whose Sharīʿah?” It is because some people claim Sharīʿah for things that are far from the spirit of Sharīʿah. We have an educational problem as Muslims. We need to work on educating our masses as Muslims, our professionals and everybody about the Sharīʿah and what it is and what Islam is about. We have problems in the Muslim majority countries in the Middle East that we export to you, unfortunately, we apologize for that.

You have a great country, and we are bringing all of our problems to you. I am hearing things here about groups that take certain opinions and people start getting divided and begin fighting – although, you do not have a history of that here. In Baghdad and in Cairo we have so many problems, just turn on the news and see. But then it is unfair that we bring these problems and export them to you here and it is not right for you to import them, either. To bring all the problems that we have in the Islamic world and bring it here and people fight [among themselves].

So I think that you need to take care of the educational aspect. I really appreciate all the educational work that Muis is doing. It is fantastic. We need to really be very careful with the curriculum that we offer to our children. It must equip them with the proper understanding of Islam. So that the answer to the question ‘whose justice and whose wisdom?’ would make sense to the average human being, Muslim or non-Muslim. When we take a stand for justice or wisdom it has to be for the best of the society.

We should be very harsh against the groups that have a deformed or erroneous understanding of Islam. We should really offer a counter narrative and clarify what Islam is not. It has to be made clear who represents Islam and who does not. Please be wary about bringing others’ conflicts from other parts of the world. Each area has its own set of challenges. Each group of people need to find better strategic resolutions suitable to our unique challenges.

For instance, you mentioned the issue of ḥijāb. I think the best way to approach this issue is from within the society, not from outside the society, like from within the secular nature of the state. We are a secular democratic state, well, this is great, here in Singapore. I mean, this is the best state you could have here, as a minority. You may argue from within the secular state that banning of the ḥijāb is not good for the secular state, because in secularism, the state is separate from the religion. The state would not intervene in the religion, because it is neither pro-religion nor antireligion. The problem with some secular states, like France, for example, is that, it is not pro-religion, but it is anti-religion.

In America, Britain, and perhaps here, the state does not intervene in religion, positively or negatively. Therefore, in Heathrow airport, you may find sisters with a turban or ḥijāb as part of the police forces in the airport. We ought to frame our stand from within the secular state and advance the argument that this is against people’s freedom. A secular state is a state of freedom and liberties, and I am not sure, but the French are not very faithful to their liberté; they really want to control people and how they live their lives and so on. But perhaps, Singapore could be more faithful to liberty because that is how it is and this is secularism.

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From within secularism - not an Islamic argument - we should be able to defend our freedom because this is how the country should move forward. Secularism is not supposed to be a totalitarian regime; this is not a secular regime. A secular regime is a regime that leaves people alone to practice their lives their way, as long as they do not harm the public. I do not see any harm why a policewoman cannot cover up her hair. Why does she have to show her hair? Or a nurse? In fact, the nurse covers her hair in most of the hospitals around the world so that the hair does not fall into the medicine and stuff. So there is even a hygiene issue there. Why does she have to show her hair? We are not asking for more than that. Hair covered with a cap perhaps. We are not asking for more than that. It is very rational.

Q: Perhaps you can comment on my view. This term, Sharīʿah, I think, particularly in a modern society has taken on much negative connotation. Maybe we can neutralize the term “Sharīʿah”? You say Sharīʿah means the virtues. It encompasses the values that we want to inculcate into the society. Is it possible to neutralize the terms? And I relate what mentioned yesterday in your talk on Maqāṣidi thinking, you made the distinction between the meaning and the name, and Shakespeare said: “What is in a name?” I think that the meaning is more important. Maybe you can comment on this.

Thank you.

A: I think the word “ethics” is just as appropriate and friendly to English speaking audience. If they tell you “Well, Sharīʿah is scary.” Say that you do not understand Arabic. There was an Arab guy who came here and said Sharīʿah is ethics. Tell us what Sharīʿah really is? It is ethics. It is not law. Is Sharīʿah a law in the Arab world? No, it is ethics. The law is a different thing. To transfer the Sharīʿah to a law everywhere requires a process.

So, we should neutralize the terms, I agree with you, but use the word ethics; this is our Islamic ethics. You can go on to explain, that some people apply Sharīʿah in crazy ways in other countries and their action does not represent our understanding of it, they can call their crazy action whatever they want.

Q: You discussed the notion of a secular state and I see a problem there. Within the secular state, liberties and rights of certain groups can be legitimized morally, so what is this face of morality in the secular state? For example, if we look at the group of, for example, LGBT, and homosexuals as a possible elite minority, how should Muslims act in response to such lobbying? Rights and liberties of this particular group, within a secular state, can be morally legitimized too? So what is this justice?

A: Regarding the secular state and gay rights and all of that and how Muslims should act. I am afraid I agree with you. In a secular state, people have the rights and the freedoms. In a secular state, if there is a group that is calling for equal rights - even though the group could be doing something that is against the teachings of a religion or all the religions in the country, and the democratic process has taken the groups appeal and gave the group these rights - then these rights are granted to this group by law, not by ethics or morality or Sharīʿah.

If you are talking about a gay marriage, for example, in the Islamic way of life, marriage is between a man and a woman, this is an Islamic marriage. So, as I do 24

conduct marriage ceremonies sometimes, I would not make a marriage ceremony between two men or two women because this is not what my ethical framework/ morality compass informs me to do. If I say this is a legitimate marriage, then I am not a scholar or I do not understand what I am talking about.

But there is a difference between a religious marriage and a civil marriage in a secular state. If a secular state allows a gay couple to marry, as Muslims you are asking how Muslims should act. Muslims should say this is something that is against our ethics, as this is not permitted in the Islamic lifestyle; it is not an Islamic marriage, but it is a marriage according to the state. Can we try to change that through the process?

Yes, we can. But through the process, from within the process. Not from the khilāfah (Caliphate). You do not have a caliph. You have a President or a Prime Minister. But even the President of this country is not going to be able to change the democratic process. Even if the President has a different moral opinion or an ethical stand or a religious orientation, there is a process for making a law. If the law passes, then the law passes, what can you do? Whether the law allows alcohol, it allows alcohol.

But in the Sharīʿah, alcohol is not permissible and this will never change. If the law allows gay marriage, then it allows gay marriage. In the Sharīʿah it is not permissible, it will never change. This is not an Islamic marriage.

What I am saying is that, in a secular state, Muslims gain equal rights and justice as our brother is saying. But they also lose something because in a secular state, the game is for all. Everybody could have the rights. So you, as a Muslim, have the right for the Islamic marriage, and someone else will have the right for their own marriage in their own ways. If you have the right as a Muslim in a secular state for certain things, then other people will have that.

Yet, I would repeat that a secular state is the best possible state that you could have here. I know that this could produce laws at the end that are against the Islamic laws, but they do not apply to Muslims anyway. If two Muslims want to go and do that, they do that. They can go drink alcohol. Alcohol will never be halal. It’s haram anyway even if Muslims go and drink alcohol because the state allows alcohol.

In other Islamic states, where the state does not allow alcohol, which is very few states, people are not allowed. But this is, again, a process. In most of the Islamic countries, alcohol is allowed for Muslims and non-Muslims to drink. Sometimes with a tax imposed, but this is the nature of the secular state.

So I agree with you that if it is justice, then it is justice for all. You want the Muslim to wear ḥijāb and you want gay people to have the rights, okay, it is a secular state. But you can try, through the democratic process, as a Muslim, to change the process. You could try to tell people that alcohol is not good for our society and let us try to limit the hours of alcohol, or raise the age, or impose more taxes on alcohol. Let us try to impose taxes on gambling and all of that. We can try to do that as Muslims, and this is good, this is Islamic. The Islamic ideal is zero alcohol and zero gambling, but we could try as much as we can to limit that. We could also try to change gay marriage.

We could say from our Islamic point of view this is not a natural family, no offense, but this is how we define nature. We define nature in a sacred manner because nature is defined by God, according to our Book, and our Book says that family is made up of a man and a woman. That is it.

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But we should not, as Muslims, discriminate against these people. Discrimination, violence and killing or anything negative, harmful and destructive is wrong in Fiqh. It is not right Fiqh. Because the Ḥadīth, which is the Sharīʿah, differentiated between Sharīʿah and Fiqh. Some of the Fuqahā’ (jurists) were very harsh on gays, and that is not what the Prophet (peace and blessings of Allah be upon him) has done in his Sunnah. If you open Bukhari and Muslim you will find dozens of Prophetic Oral Traditions that address or involve people of different orientations.

You will find them in the Sunnah, they prayed in the masjid of the Prophet (peace and blessings of Allah be upon him) and they went into the rooms of the mothers of the believers. For instance, in one of the Aḥādith there was a man, who was thought to be woman, but then he started to describe the Prophet’s wife in a certain way, so then the Prophet (peace and blessings of Allah be upon him) said: “Hide from him and do not show him your body.”

There are many Prophetic Oral Traditions that record that gays were living in the society of Medina as normal people, as long as they are not doing anything against the public order of the time, or against the morality of the society of the time. It was something that was in the Sunnah.

Therefore, discrimination against gays or violence against them is not Islamic. It is simply not Islamic. Any sexual relationship outside marriage in Islam is ‘Zinā,’ it is called fornication; whether it’s between two males, between two females or between a male and a female – as long as they are not married. This is something forbidden in Islam, whether for male or female who are not married or two males or two females. It is the same thing.

So, in Islam, we need to be clear about our moral issues. We should not be apologetic about our family structure. This is the structure of family in Islam, that’s it. We are never going to give you an Islamic marriage for a gay couple. But they want to register as their own unique union and they want to call it, civil, x/y/z, union.

Whatever you want to call it. It is not marriage from the Islamic point of view, it is a union. What does it mean? It means, social benefits in a secular state. That is part of the nature of the beast, I guess.

Thank you.

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Closing Remarks: This discussion is much needed for Muslims around the world.

Prof Auda has left us with a lot of food for thought. Even from these discussions, from politics to inheritance to ḥijāb to morality, we have a lot of work ahead of us.

One important point to note is that Sharīʿah is not law in itself, or an end in itself, but rather a way or an approach in itself to lead a good, dignified, ethical and deeply meaningful life. This discussion is not easy and with the complexities of human nature, law is actually the minimum and ethics is actually the maximum we should strive for.

If you would like to carry on the discussions, you may still contact Professor Jasser, he is very active on Facebook, Twitter, and he has a website where you can actually download his books on Maqāṣid, it is www.jesserauda.net. So please join me in thanking Professor Auda.

Peace, mercy and blessings be upon all those present.

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Scholar’s Profile

Jasser Auda Professor Auda is Al-Shatibi Chair of Maqasid Studies at the International Peace College South Africa, the Executive Director of the Maqasid Institute, a global thinktank based in London, and a Visiting Professor of Islamic Law at Carleton University in Canada.

He is a Founding and Board Member of the International Union of Muslim Scholars, Member of the European Council for Fatwa and Research, Fellow of the Islamic Fiqh Academy of India, and General Secretary of Yaqazat Feker, a popular youth organization in Egypt.

He has a PhD in the philosophy of Islamic law from University of Wales in the UK, and a PhD in systems analysis from University of Waterloo in Canada. Early in his life, he memorized the Quran and studied Fiqh, Usul and Hadith in the halaqas of Al-Azhar Mosque in Cairo.

He previously worked as Founding Director of the Maqasid Center in the Philosophy of Islamic Law in London; Founding Deputy Director of the Center for Islamic Ethics in Doha; professor at the University of Waterloo in Canada, Alexandria University in Egypt, Islamic University of Novi Pazar in Sanjaq, Qatar Faculty of Islamic Studies, and the American University of Sharjah.

He lectured and trained on Islam, its law, spirituality and ethics in dozens of other universities and organizations around the world. He wrote 25 books in Arabic and English, some of which were translated to 25 languages.

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