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| Our Need for a Fiqh Suitable to Our Time and Place
By Sheikh Ali al-Timimi (Transcript of a lecture delivered at JIMAS 1997 Conference: “Establishing Islam in the West” August 1997) Introduction First of all, before beginning my lecture in earnest, I would like to thank the brothers and sisters who have attended this conference and, first and foremost, the organizers of this conference. It brings great pleasure to my heart to be once again with my brothers and sisters in the United Kingdom. This being my second participation at a JIMAS conference here in Leicester having previously been here four years ago. With that being said, we do have today’s lecture before us and it has been entitled “Our Need for a Fiqh Suitable to Our Time and Place.” Now as we take a moment to think about the title of this lecture, even though it is a bit lengthy, it is important that we do not forget the conference theme to which this lecture is one part, specifically, “Establishing Islam in the West in the Way of the Pious Predecessors.” The title lecture and the conference theme are such that they are inseparable. My lecture is composed of five points. 1. Fiqh defined So what is fiqh? If we begin with the Arabic language and look at the basic lexical meaning we will find that the word fiqh is derived from the verb faqiha, which means to understand, to comprehend, to know.1 However, when used as a convention or as a technical term, which is the sense that it is being used in the lecture title, fiqh means “knowledge of the secondary regulations of the sharia as known by their evidences from the Qur’an, the Sunna, the consensus, and valid analogy.”2 What does that mean? Well knowledge, I am sure we all recognize what knowledge means. The scholars define knowledge as to know something as it is in reality.3 What are we trying to know? We want to know the secondary regulations or rulings of the sharia. Well what does that mean? In other words, the sharia, or the religion with which Allah sent the Prophet Muhammad (sallallahu ‘alaihi wa sallam) can, in general, be thought of consisting of two large branches. There are matters of belief, which are held in the hearts. These are called the fundamental issues of the religion or usul ad-din. This is belief in Allah, belief in the angels, belief in the scriptures, belief in the messengers, belief in the last day, belief in qadr, the good and evil consequences thereof. These represent the fundamentals of our religion. They are matters that exist in our heart. But there is another branch to our religion and this is the practices of Islam whether dealing with acts of worship, in other words, our relationship between ourselves and Our Creator, Allah (‘azza wa jall), or al-‘ibadat; or dealing with our relationships with one another. How we deal with one another, or al-mu‘amalat. Entering into this second category are matters like buying and selling, marriage and divorce, and other societal concerns like punishments, the administration of justice and so forth. Fiqh is the knowledge of the rulings of these matters: the various acts of worship and ways of human interaction. So for instance, fiqh is to know that it is wajib (required or obligatory) that a Muslim should pray five times a day. And fiqh is to know that in order to complete a valid sale in Islam certain stipulation must be fulfilled like both parties enter into the transaction uncoerced out of their free choice; that the sale is not over something that is in itself forbidden; that no riba (usury) is involved; and so forth. This is all fiqh. These rulings (there are five obligatory daily prayers; there are certain stipulations for buying and selling; there are certain stipulations for marriage and divorce) we will take from: 1. The Qur’an, Allah’s scripture So to summarize, fiqh is therefore knowledge how to worship Allah and knowledge how to deal one another as derived from the four primary sources of Islamic law: the Qur’an, the Sunna, the consensus of the scholars, and valid analogy. So in the end fiqh is about life. Fiqh is about living in the sense that fiqh addresses how our lives should be in accordance with the sharia. And fiqh is the understanding of the sharia. Allah has created us to worship him. I created the jinn and humankind only that they might worship Me. (51:56) Worship not also includes direct acts of worship: prayer, charity, fasting, pilgrimage, and jihad. These acts form what is referred to as al-‘ibadat, or the acts of ritual worship. Worship also extends to how we conduct ourselves with our own selves and with one another. The former is called as-suluk, the latter almu‘ amalat. So therefore the question that we are posing tonight, which we would like to address and understand, is that in order for us to establish Islam in the West according to the way of the earliest Muslims, those whom the Prophet taught, as-Salif as-Salih, we are in need, of a fiqh that is suitable to the time we are living and the place we are living. This is an issue that people are discussing throughout the West. All Muslims whether in the United States, Canada, the United Kingdom, Continental Europe, or Australia discuss this issue. However though, we do not just want to discuss it, in the sense that everyone gives his two cents worth. Rather we seek is to understand this issue in light of the understanding of as-Salif as-Salih, in light of the understanding of the best Muslims, those whom the Prophet (sallallahu ‘alaihi wa sallam) described: The best of humanity is my generation, then those who followed them, then those who followed them.4 We want to understand these pressing issues for Western Muslims in light of the understanding of those people whom Allah praised in His Scripture. Now some of you might find this topic quite odd. Some of you might be thinking, “What are you trying to say, Ali? Are you trying to say that we need to invent a different fiqh suitable for our time and place?” No that is not what we are trying to say. What we are trying to say that true Islamic fiqh takes into consideration time and place. 2. Examples of the fiqh of the Prophet’s companions 1. What to do with the Arab apostates? 2. Did the Prophet really die? 3. Where to bury the Prophet 4. Who should succeed the Prophet? 5. Should the military expedition prepared for Byzantium sent forth? Yet while all these crises occurred at one time, as-Salaf as-Salih, our pious forefathers, found solutions to them and were able to effectively deal with them. Even though with many of these cases there where not direct texts from the Qur’an and the Sunna to show how to deal with these issues. Yes in some cases there were direct texts. Like with the Prophet’s death (sallallahu ‘alaihi wa sallam) there is an indication to the Prophet dying in the Qur’an. So when Abu Bakr recited that aya in the Prophet’s mosque, some of the Companions remarked, “It was as if we had only heard this aya for the first time.” Likewise as far as to where to bury the Prophet (sallallahu ‘alaihi wa sallam) some of his companions, like Abu Bakr, had memorized a specific hadith where the Prophet (sallallahu ‘alaihi wa sallam) had said: The Prophets are to be buried at the spot where they die. But there where other issues like dealing with the apostates and whether they should send forth or hold back the army prepared for the Byzantines. To to obtain solutions that would lead them out of these crises, the Prophet’s companions applied the fiqh of the Qur’an and the Sunna. 6. Should the Qur’an be compiled into a mushaf? 7. How should the agricultural lands of Iraq be divided? 8. A second adhan for jumu‘a 9. The fitna or civil war So by looking at the lives of the Prophet’s companions, we find that they dealt with the challenges of their day by applying the fiqh of the Qur’an and the Sunna in a way suitable for the time and the place in which they were living. 3. The changing of fatawa regarding time and place 'Every issue that leaves justice for injustice, mercy for its opposite, benefit for harm, wisdom for jest, it is not from the sharia even though it is attributed to the sharia by means of some sort of false reasoning (ta‘wil).'8 The scholars provide many examples to illustrate this. One example pertains to commanding the good and forbidding the evil. If you look at the Qur’an and the Sunna, it is very clear that we are ordered to command the good and eradicate the evil. There are many evidences for this. Among which: And there may spring from you a nation who invite to goodness, and enjoin right conduct and forbid indecency. Such are they who are successful. (3:104) All of us I am sure have heard the hadith of the Prophet (sallallahu ‘alaihi wa sallam) where he said: Whoever among you sees a munkar, let him change it by his hand; and if he cannot then by his tongue, and if he cannot then at least by his heart. And that is the weakness of faith. In other words, he should wish for its eradication. Yet, the scholars have understood that when changing an evil leads to a greater evil, it then becomes impermissible to change that evil. They offer a number of illustrations. One illustration is the application of the hudud on the battlefield, like whipping the one who drinks alcohol. We know that the punishment for intoxication is lashing. Yet the scholars have understood that on the battlefield, the hudud are not to be applied. Thievery, we cut the hand of the thief, but on the battlefield we suspend that ruling. Why? Not because we are negligent with Allah’s sharia; but because the greater benefit dictates otherwise. If you are on the battlefield and attempt to apply the hudud on your sinful soldiers; they might out of anger (as they are now an object of punishment because of their crime) decide to go to the ranks of the enemies. If they go to the ranks of the enemies, they might inform them of some military secrets. Were that to happen, the Muslims might loose a battle or perhaps the war. Thus in order to preserve a greater benefit, the hudud are suspended on the battlefield. A similar case is when there is some sort of doubt regarding the cause of the crime. Was that person truly seeking to overstep Allah’s boundaries or was he compelled by some extraneous factor to overstep Allah’s boundaries if the latter then the hudud are not applied. This is what occurred during ‘Umar’s khilafa. During the year of the drought, which occurred in the 18th year of the hijra, ‘Umar suspended the application of the hadd for thievery due to the drought in Arabia.9 Why? Because there is a possibility that someone stole in order to feed himself; not because he sought to overstep Allah’s boundaries; but was forced to do so out of hunger.10 Another example pertains to the zakatul-fitr, or the charity given at the conclusion of the fast of Ramadan. We know that during the time of the Prophet (sallallahu ‘alaihi wa sallam) the zakatul-fitr was established as expiation for any sins incurred while fasting. During the Prophet’s time, Muslims would pay with certain foods that the inhabitants of Medina would eat, like dates, barley, and so forth. Now if we were to come to the Muslims of Leicester at the end of Ramadan and give them a bag of barley, who would benefit from that charity? Who has a mill in his house to grind that barley, so that they can then bake the flour to make bread by hand to feed one’s children? But to give Muslims in Leicester something like rice which is a staple food is more beneficial. So here again is an example of the application of fiqh for its time and place.11 Likewise we know that during the Prophet’s time that after answering the call of nature, people would clean themselves with stones. Yet today there exists materials that clean better and are easier to use in terms of their availability and people’s comfort with them. Here is another example. We would not tell people when answering the call of nature they should bring three stones along. People can use toilet paper tissue or whatever. This is not only an easier way but also it achieves the aim sought by the sharia, cleanliness, in a better fashion. Another example pertains to the contracts settled between people, or oaths taken, regarding sales, marriage and divorce. To establish these matters people do so in different ways, in different cultures and during different times. We cannot claim that the wording of the marriage contract is fixed. If someone says, “I offer you my daughter’s hand in marriage,” and a person replies, “I accept,” this is a valid contract. One must not repeat the same wording used during the Prophet’s time as this is something that changes. As long as the idea of a proposal and an acceptance is present, then no matter what wording or language the people use, the sharia recognizes its validity. Again it is important to understand that what we are talking about here is the application of the sharia. We are not talking about taking established rules, like it is forbidden to drink intoxicants, commit illicit sexual relations, or steal and say this is now permissible; nor are we saying it is no longer incumbent to obey one’s parents or pray five times a day – because these matters are not suitable for our given time and place. What we are talking about the application of the fiqh. Given this, let us return to the conference theme, “Establishing Islam in the West.” First we need to come to the realization that what the Muslims today are facing in terms of large number of Muslims living in societies where Allah’s sharia is not the dominant law is an aberration in the history of the Muslims. This aberration only occurred once previously during Islamic history and that is during the time of the Mongols who stopped the application of the sharia, and replaced it with Genghis Khan’s law instead. Moreover, this occurred only in that part of the Islamic world that fell under Mongol domination. But today’s situation where we have the sharia practically nullified throughout the Islamic world except in some small regions and, at the same time, millions of Muslims living under direct non-Muslim rule; this is an aberration in history. 4. Two approaches So what we face then are novel matters that the umma has not previously seen and we are thus in need of a fiqh, or understanding, based upon the tradition of as-Salaf as-Salih to deal with this problem. I will not address the issue of the Islamic world, as we are not residing there, we live in the West. What I would like to do for the remainder of this lecture is highlight certain issues that we need to straighten out in order for us to establish Islam in the West. We need to know what Allah wants from us with regards to these issues. We need this in order to stop the argumentation, supposition, and ignorance we see in our communities regarding these issues. Now Muslims in the West in approaching this dilemma, this novel event, have formed two basic approaches. The majority of Muslims, unfortunately, have attempted to adapt Islam to the prevailing culture. This is a sociological reality that occurs with living under a dominating culture. The dominated people will usually adapt themselves to those who have the upper hand over them. Let me provide an example. A couple of years ago I had the opportunity to go to China to participate in the United Nations 4th World Conference on Women. While I was in China, we had one day off. So I decided to tale a tour of the city. One of the landmarks I wanted to see was what is known as the Forbidden City. The Forbidden City is that part of the Chinese capital where the kings of China would reside. If anyone were to enter into this area without permission, he would be executed. This was the practice for six or seven centuries until the Communists came into power and ended the monarchy. As I was entering from the back of the king’s palace, which is the oldest part of the palace, my eye caught onto something. All the script (Mongolian) was written in Arabic letters. It seems that the Chinese rulers of some 600 or 700 years ago would write their names, their dynasty, their ideas, their philosophies in the Arabic script. Why? Because the Islamic civilization was the dominant culture of the time. The Muslims were the dominant people on earth. Now as you make your way through the Forbidden City and you go through different additions to the palace, new buildings appear and with it the centuries are changing. What happens the Arabic script disappears. Until finally when you come to Tinammen Square, the central area in Beijing; you find all the signs are in Chinese and English. Why? Because Western civilization, and specifically the British and now the Americans are the dominant culture in the world. Approach one: westernization of Islam Approach two: blind adherence to the traditional books of fiqh Let me give an example regarding another topic. As I am familiar with the Hanabli madhhab, I will select an example from that legal school. If you look at the classical books produced by the Hanbali madhhab regarding the maintenance to be given by husband to his wife, you will find that these books says that a husband of middle means (sort of what we would call middle class) should provide for his wife a daily loaf of bread and yearly an upper garment, a lower garment, and a blanket. That is the minimal amount that a husband should maintain his wife in order to avoid being unjust. Now while perhaps many brothers are saying, “Ok, let us adopt this so we do not have to spend all our money in our wives.” In reality if we were to take this point and apply it today at the doors of the 21th century, we would be causing a severr injustice to our wives whom Allah has placed as a trust in our hands and regarding this trust we will be asked about on the Day of Judgment. What the scholars gave as an example of fair maintenance was what was compatible with the lifestyles of those days. One cannot compare the lifestyle of Ibn al-Jawzi’s 6th Islamic century Baghdad with the lifestyle of today’s London in the 15th century of Islam. The underlying principle is true that one should show justice to his wife by providing a certain level of income and lifestyle; but obviously the specific details have changed. So my point is not that the scholars were incapable of deducing these issues that we face but they were people living the practicality of their time. So therefore issues regarding jihad, how are the shares to be divided between the mujahidin. The classical books will discuss the share of a person riding a horse versus the share of a person on foot deriving those rulings from the Sunna of the Prophet (sallallahu ‘alaihi wa sallam). But you will no find them discussing the share of a fighter pilot or a person riding in a tank because these issues, of course, did not exist in time. Modern warfare did not exist during those times when they wrote those classical books of fiqh. Another matter we need to realize is that not only terms of the specific examples, do we find the classical books of fiqh not applicable for our time and palce, but also in terms of the scope. When I first discussed this issue in the United States some nine months ago, I did a quick purview of al-Mughni of the issues that deal with Muslims living in the lands of non-Muslims. I found a total of nine or fourteen, the number escapes now, of issues in al-Mughni. This out of a total of approximately 6,000 issues of fiqh. Now Ibn Qudama’s Mughni is considered to be the epitome of Islamic fiqh. Was Ibn Qudama incapable of understanding our issues? No, but he addressed his society and the time in which he lived. We should understand that. Moreover we should understand that in essence the majority of the fiqh, the majority of the sharia is still applicable today as was in the time of the Prophet (sallallahu ‘alaihi wa sallam). Five prayers are still applicable in the Prophet’s Medina (salllallahu ‘alaihi wa sallam) as it is applicable in London of 1997. Five prayers a day, this doesn’t change. Fasting of Ramadan does not change. Hajj to Mecca does not change. That marriage and divorce is to be conducted in a certain manner does not change. 5. Issues of importance for Muslims in the West So what are these issues that we must come out and find solutions for. Well, I am not a scholar to tell you that the ruling concerning this issue is such or the ruling concerning that issue is that. I cannot provide you with those answers. What I am hoping to provide during this last part of my lecture is at least to bring our minds some of things we should be focusing on, some of things we should be getting answers from the scholars of the umma. I have in front of me about twelve or thirteen issues that I would like to go through. The sha‘a’ir The valid parameters for co-existence with non-Muslims Most Muslims either take the opinion well since we are forced into this situation so let us not address it. Others take the other extreme; we are citizens so let us be citizens to the end and slavishly wave the flag Red, White, and Blue. Obviously neither extreme is correct. But rather we must understand these parameters. If we look at the first fatawa that came out when Muslims adopted the citizenship of non-Muslim countries we find that the scholars took the position that to become a citizen of a non-Muslim country would render you an unbeliever. Ibn ‘Ashur, the famous Tunisian scholar who lived at the beginning of the century, said that if any Muslim became a citizen of France he became an unbeliever. Why? Well there was an Islamic state of Tunisia, which France attacked and colonized. Citizenship therefore became an issue of belief and unbelief. Obviously that fatwa does not apply now. None of us would consider his brother, much less himself, an unbeliever because he holds an American or British passport. And yet that was a fatwa that is less than a century old. The parameters of what is the concept of citizenship in the modern state and how that deals with Islamic fiqh is something which is at least in my opinion is something that must be seriously addressed by Muslims. This matter entails a whole host of issues: voting, taxes, being part of the military, being part of the police, entering into the political process, entering into the government. This whole gamut of issues where Muslims have a variety of opinions and sometimes our arguments become heated. We need to have the valid parameters defined. Al-hadi Az-Zahir Whoever resembles a people is from them.12 Or is it permissible for a Muslim to wear Western attire? And if so is it just permissible, or is it as some argue, like Ibn Taymiya, at times even required. What are the parameters for this matter.? And if this applies to the outward appearance of Muslims, then what about the misconceptions some Muslims have that if a man can wear a suit and tie; then why does a Muslim woman have to wear a hijab? Even though it should be stated that the garb of a Muslim woman does not technically enter into this issue of al-hadi az-zahir. However the confusion that arises in the minds of Muslims when trying to discriminate between these two is there. Therefore to set the clarity of the fiqh rulings regarding these matters is something that I believe is an issue we need to address. Celebrations and festivals Financial transactions Now, most Muslims do not know the basics regarding financial transactions that must deal with daily in Western society at the end of the 20th century. Most Muslims do not know the ruling regarding credit card use, is it halal or haram? Most Muslims do not know the rulings regarding different types of transactions performed on the stock market, or the different forms of insurance. Moreover, they hear a multitude of opinions. Those who want to fear Allah are confused, and those who want to follow their desires can easily find an opinion to suit them. The straightening out of these contemporary financial, in terms of knowing the halal and the haram of these transactions is essential for establishing Islam in the West. Indeed, this step precedes the establishment of independent Muslim financial institutions. For how can we establish financial institutions unless we know what is permissible from what is impermissible? The confusion has reached such a degree, that I remember a number of years ago there was a concern in England if using paper money was permissible? The brothers who we can say where all seeking Allah pleasure determined it was not so they wanted to only deal with coined money. The confusion has reached such degrees. Inheritance Leadership Judgments and arbitrations Also what is to be done if we cannot establish this in our own halls of arbitration, that is if the state does not allow us (as it differs from country to country how much arbitration is allowed) and we find ourselves compelled to go to the non-Muslims for arbitration? What is the fiqh and the scope for that? You find some Muslims say if you go to court, you become an unbeliever! Why? Because you are judging to taghut and did not Allah (subhanahu wa ta‘ala) say: Hast thou not seen those who pretend that they believe in that which is revealed unto thee and that which was revealed before thee, how they would go for judgment (in their disputes) to taghut when they have been ordered to abjure them? Satan would mislead them far astray. (4:60) So a Muslim will say brother if you go to court to resolve your dispute you are an unbeliever. Others will adopt the other extreme rather than attempting to resolve the dispute between themselves; they will as soon as they have a problem with a fellow Muslim file a suit against that Muslim and take him to court. Both extremes exist. Thus the issue of arbitration, the boundaries for that, and what should we do when we are required to go outside of that arbitration this is part of the fiqh that we need establish for our time and place, that we may establish Islam in the West. Finally, in conclusion, as the time for this lecture is drawing to an end, I would like to stress the point so I am not misunderstood as I have given this lecture twice before and I have been misunderstood which is probably a reflection of the intricacy of the topic and my inability to express myself clearly. My lecture is not calling for the reinterpretation of the Islamic sharia. Rather it attempts to draw to attention issues that we as Muslims need to solve in light of the Islamic sharia. The majority of the issues of the sharia are immutable and will not change irrespective of the time and place we live. With that I draw an end to this lecture. I seek Allah’s forgiveness for myself and you. Glory and praise be to the Allah, I bear witness there is no god but Thee, I seek your forgiveness and I turn unto you in repentance. May Allah’s peace, mercy, and blessings be upon you. Some questions and answers Well I respect the comment but let us try to think about it. By trying to avoid these issues will we actually live as Muslims? These issues touch our lives. When a Muslim now casts a vote in the ballot box, he will be asked on the Day of Judgment regarding that action. In the same way, when he buys something with his credit card, he will be asked by Allah on the Day of Judgment. So therefore we cannot escape these issues. We are part and parcel of this society. Unless the alternative is that we live some sort of ascetic lifestyle in the mountains. If that is the solution that is being suggested and we cut ourselves out of society; then well maybe the argument that we just close our minds and tune ourselves out of the world. But that is not practical. Because the way the world is today even if you were to go to the highest mountain peak, the world is going to come to your corner. That is the way the world is now we cannot run away from these issues. Therefore those who discard fiqh of our contemporary circumstances, fiqh al-waqi‘, they do not want to live. Rather they want to live in some sort of fantasy or delusion. I don’t know what it is. Allah (subhanahu wa ta‘ala) sent this sharia: He it is Who hath sent His messenger with the guidance and the Religion of Truth, that He may cause it to prevail over all religion, however much the idolaters may be averse. (9:33) Muslims have been put on this earth to worship Allah and to engage society, to engage civilization. We are not an umma that recedes and retracts and puts up the barriers and stick our head in the sand and live the life of an ostrich. This is not the umma of Muhammad (sallallahu ‘alaihi wa sallam). Rather the umma of Muhammad is one that challenges the status quo and changes it so that it submits to Allah’s law and submits to worship Allah. That is the umma of Muhammad (sallallahu ‘alaihi wa sallam). It is dynamic. It engages life. It is not retreating, weak, cowardly, and ostrich-like. That is not Islam. And that definitely not the way of as-Salaf as-Salih even there are some who try to portray that way. So with my respects to the person making the comment. Yes, not everyone is going to agree. But let us not forget that when solutions are taken from the Qur’an and the Sunna they agree with the fitra, the natural state because Islam is dinul-fitra. Islam agrees with common sense because religion and revelation do not disagree, do not conflict with common sense and straight thinking. When solutions are taken from the Qur’an and Sunna, you find many Muslims naturally gravitating toward them. Yes, people will still disagree, and some people will not like what we adopt, but that is there business we cannot guide everyone on the face of the earth. 1 See Lane’s Lexicon, Part 6, p. 2429. |
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