by Shaykh Muhammad Hisham Kabbani
 

One of the primary criticisms leveled against Islam is that it is a religion frozen in time, one that has not embraced the new paradigms of the modern world. In reality, Islam has always been a living, vibrant faith that adapts to new and changing circumstances.

Though it is true that some scholars have attempted to freeze the interpretation of Islam in time and place, most accept the view that Islamic Divine Law, or shariah, is subject to ongoing reevaluation according to the principles of juristic reasoning, known as ijtihad. The purpose of this ongoing process of ijtihad is precisely to adapt shariah to new and changing societal circumstances. Thus, it is said by most Islamic scholars that “the door of ijtihad remains open.”

In the first century of Islam, after the passing of the Prophet Muhammad, upon whom be peace and blessings, the science of jurisprudence did not exist, nor for that matter did the sciences of Quran, Hadith, language, grammar or spirituality.

The process of formulating these sciences and their attendant schools took place in a highly eventful period when the Muslim community was expanding rapidly into new lands, each with their own unique cultures, climes and geographies. As Islam expanded, its ability to adapt to new environments was tested, and the community of believers saw the need to formalize and formulate methods of adapting Islamic regulations to various societal and cultural situations. Brilliant scholars emerged to lead this effort. Each of these luminaries had a direct connection to the Prophet’s Companions (sahaba) or their Successors (at-tabi`een) that guaranteed the authenticity of their understanding of this complex knowledge.

The knowledge the Prophet brought was in the form of the primary Islamic source text, the Quran, and the practices and statements of the Prophet and his appointed successors, the four caliphs, known broadly as Hadith. The Quran and Hadith were grounded in a fixed time and place within a very specific social and cultural milieu, that of seventh century Arabia. However, based on the Quranic principle that Islam’s message and the law it brought was for every time and place, scholars sought to derive the principles behind the thousands of rulings made in the time of the Prophet and his successors in order to build a system of precedent-based law that would provide a solid foundation for jurists into the unbounded future. This system came to be known as usul al-fiqh, and the law which derives from its application as fiqh.

Among its principles were the concepts of consensus of scholars, analogy to prior rulings, pursuit of the greater good, the idea that a lesser harm is preferable to a greater harm, and the importance of pre-existing customs and practices. These principles stipulate that law can depend on precedence, not unlike the way that contemporary American laws must conform to the precedent of existing law and court case history, or the way in which Jewish Kashrut law is built on the rulings of earlier scholars, which in the end depend on analogy with situations addressed in the Torah or in the tradition of Moses and the Judaic prophets.

Over time, different scholars developed different schools of jurisprudence based on these principles. While each school, or madhhab, concurred with the others on the broad points of Islamic law and practice, each developed subtle variations in the application thereof. After three centuries, there were more than 400 different schools competing for the loyalty of the by then, vastly expanded Muslim community. Unfortunately, instead of deriving benefit from the diversity of opinions this expansion offered, the adherents of one school sometimes became adversarial to other schools, insisting their own interpretation and methodology was the only correct one. This resulted in debate, conflict and finally open bloodshed between adherents of different schools – something their founders never intended. In order to stop this confusion, Sunni Islamic scholars imposed a ban on the creation of new schools in the 14^th century. Then, by the process of consensus, the number of “acceptable” schools was whittled down to the four with the largest followings, each named after their founding scholars: Maliki, now found primarily in Africa; Hanafi, found in Central Asia, Turkey, the Balkans and the Indian sub-continent; Shafii, followed in the Middle East and Southeast Asia; and Hanbali, followed mainly in the Arabian Peninsula.

These four schools were chosen not only because they had the largest number of adherents, but also because of the widely recognized brilliance of their founders and the principles they enunciated. Each asserted the primacy of the Quran, followed by the Hadith. However, they differed in the application of Hadith, each taking a different view of its appropriate use and relative primacy. The Maliki school focused primarily on the practice of the Prophet’s city, Madina, as the basis of law, as opposed to the transmitted texts. In contrast, the Hanafi school, founded by Imam Abu Hanifa in Baghdad, focused more on the use of analogy in deriving law for issues not explicitly dealt with in the religious texts. Imam Shafii, who studied under both these scholars, created a new school which gave predominance to the use Hadith over analogy. Finally, Imam Ahmad ibn Hanbal, whose founded his school later after the formal science of Hadith had matured, emphasized these texts and reduced the reliance on analogy as a source of law.

With the establishment of the four schools, the process of ijtihad was restricted in order to prevent the factionalist strife which ensued with a proliferation of methods of interpreting Islamic law, but it was not eliminated. Rather, as time passed these schools refined their founders’ principles of deriving law and legal judgments. By the time they emerged as the four Sunni schools, each had established a complete methodology for evaluating legal questions in light of changing times, places, circumstances and social milieus.

An oft-cited example is that of Imam Shafi`i, who when first formulating the basic rulings of his school in Baghdad took a more relaxed approach to the restrictions on social interaction between men and women in public places. However, after moving to Cairo, he called for much stricter rules of separation between the sexes. When asked why, he said, “The people of Egypt are more hot-blooded than those of Iraq, and in order to prevent the causes of adultery, I have required men and women to be strictly separated.”

A more recent example of this sort of reasoning is found in the fatwa, or legal ruling, issued by Shaykh Ali Jumah, the Grand Mufti of Egypt, which permits Muslims living in non-Muslims lands to buy, sell and serve alcoholic drinks. This ruling came as a shock to many, but was based on solid Islamic juristic reasoning. While this appears to directly contradict Quran and Hadith texts, this ruling was based on a ruling by Imam Abu Hanifa, whose school is by far the largest in the world. Imam Abu Hanifa argued that in a place that does not following shariah, it is possible for Muslims to abstain from the law in certain circumstances in accordance with vital need. Thus, Shaykh Jumah derived his ruling not from a newfound openness to intoxicants in Islam, but from a principle enunciated early in Islam by Imam Abu Hanifa, founder of one of  the four Sunni schools.

This example demonstrates the living, vibrant nature of Islamic jurisprudence, as well as its ability to respond to new challenges and changing times. However, it must be stressed that this practice of juristic reasoning is strictly limited to those with the required legal and spiritual training and knowledge.

Jurisprudence requires not just the study and regurgitation of the sacred texts, but a deep comprehension of the circumstances of the issue being addressed and an intuitive spiritual wisdom that guides the jurist towards a decision that fulfills not just the letter-of the law, but also the practical realities of a given time and place. The spiritual wisdom needed to derive well-rounded and valued rulings is not something that comes from excessive study or memorization. Rather, it comes from a light by which pious jurists are guided, a light that comes from sincerity to God, devotion and a spiritual connection to the source of guidance. That light is developed and maintained by means of rigorous spiritual exercises under the guidance of masters of spiritual training and enlightenment.