Philosophy of Fiqh
By Dr. Syed Nasir Zaidi

Islamic philosophy is a newly born science among Muslim scholars and believed to be an important addition in Islamic research methodology in order to make Islam compatible with the modern world and to combat the challenges of modernity. Although it is in its early stages and its different dimensions still need to be explored. Jurisprudence (Islamic Fiqh) like other sciences has its own presuppositions and assumptions which might have been proven in other sciences or need still to be proved, but it is essential to have a clear position on these assumptions as a different approach on presupposition may lead to different results.

When we say that every science or notion has its own assumptions and presupposition, then these assumptions may have at least four areas which should be separated in research:

1.      Why this belief came in to our minds and what are its reasons?
2.      Why we intend to express this particular belief and why we don’t hide it?
3.      How do we know that this belief is true and not false?
4.      Regardless of it being right or wrong, what kind of collective, individual, social, inner and outer results are expected to appear?

Sometimes we consider presuppositions but don’t have enough argument to prove it or never thought to have its logical grounds for these assumptions. Secondly we don’t have any other way to prove it except to use philosophical methodology, which then will be second degree knowledge as compared to first degree knowledge that is directly related to its contents.

Philosophy of Fiqh may have several assumptions, but the most important assumptions which is normally considered indisputable, in fact needs to be discussed in detail and can be described as below:

Revelation and Hermeneutics

Revelation is a main source of Islamic law. Its epistemological argumentation or adoption of any specific approach regarding the nature of Revelation can change the whole scenario of research. If, for instance one could prove revelation, (Wahi) as a Divine source of information, specific interpretation from the revealed text needs to be clearly defined with a strong logical and philosophical argument.

In the next step, how we came to know that our understanding from reviled text is exactly what the author of text had in mind. For this, we need to look to hermeneutics, which has different schools of thought. Some are of the opinion that the actual desire of the author is not accessible. Today we cannot rely on ancient hermeneutical interpretations by ignoring contemporary theories of Schleiermacher, Dilthey, Betti, Gadamer, Ricoeur, and others.

According to conservative approaches to hermeneutics, to get to the truth of the text, one needs to do scholarly research into the historical context in which it was written. An understanding of the historical, cultural and autobiographical background of the author helps us to understand the meaning of the text. Through historical and linguistic research, interpreters are able to transcend their own biases and comprehend the text according to the standards of its own time. Historical and linguistic research will help interpreters to understand their own biases, but such research will not eliminate all biases. We are never able to completely transcend our biases to comprehend the text according to the standards of its own time. In the hermeneutical circle, interpreters impose a meaning to the text, and the text either confirms or resists that meaning due to its own historical and cultural background. Some hermeneutic theories suggested that text always goes beyond the author.

In modern hermeneutics, expectations from text become a very important factor to determine its meanings and have a deep influence on one’s understanding of text. For instance, when jurisprudence is used to consult koranic text, he expects that the Koran is also a book of jurisprudence, therefore Islamic law can be derived from it.

The Role of human intellect in Islamic law 

The place of human intellect as a source of Islamic law is an important issue of philosophy of Fiqh. To what extent does human intellect as an instrument to drive Islamic law from the Koran and the Prophet’s tradition (Sunnah) expend, contract and derive Islamic laws on the behalf of causes and human interest? How much human intellect is capable to understand the real causes, reasons and human interest situated behind the Islamic laws? The Muslim scholars who accept the authenticity of human intellect with its limitations and admit that Islamic laws are always based on causes and human interest, are being questioned for underestimating human intellect for a long time.

Progressive growth in collective rationality in the world and particularly in a Muslim society necessitates the demand for rethinking the role and the potential of human intellect in understanding the Islamic text. It is being widely asked why human intellect has not been allowed to explore all dimensions of human interests and actual reasons on which Islamic law is based. To have a progressive approach in Islamic research methodology and to integrate Islam with modern world, Islamic scholars have to deal with this problem and need to have a clear view point as to why human wisdom always fails to understand the philosophy of Islamic law, especially in social, economic and political areas.

Although it is accepted by most Shia and Suni Scholars, that human intellect can be a source of Islamic law in the area of open brutality and clear justice, which seems to be quite general and unable to resolve the epistemological questions about applicability of justice. It shows that reasons and philosophy of Islamic laws remain a mystery and kept in a secret and symbolic form and can only be understood with the help of revealed text.

In this regard, another important aspect that needs to be discussed in philosophy of Fiqh, is separation of social, judicial and political matters from Ibadat (Worships). Traditional Islamic scholars show a keen interest in putting a label of Islam on everything as much as it is possible. e.g., Islamic banking, Islamic finance, Islamic economics, Islamic punishments, Islamic government, etc., but it is imperative to discuss whether social, political and cultural matters can be Islamic in its deep philosophical sense? Especially when looking into the deep historical and cultural background of Islamic laws, we came to know that more than 95 percent of them already existed in the old Arab society of that day and Islam tried to make them more rational and harmonize them with the principals of justice of that day or just approved tradition of intellectuals (Sēra´he Uqa´la). Although it needs to be discussed further whether justice and rationality of that day is the same as we have today and if there is no development and evolution in human rationality, sentiments and understanding of justice or one should pursue applicability of rationality and justice of his own era.

If awareness of justice and a level of rationality is believed to be matured and one Islamic law can be seen as a best response of the demand of the justice of that day, then new doors for progressive Ijtehad may open.

In the traditional Islamic approach applicability of justice and rationality has been a very complicated issue. For instance, if stoning (Islamic Punishment, Rajm) was harmonic with rational standards of the people of that day, if it still meets the existing standards of rationality and justice and sentiments, thus the philosophy of Fiqh is the best place to discuss this issue whether Islam wanted to teach us how to travel from injustice to justice, ignorance to knowledge and hopelessness to grace and blessing of God or wanted to determine evidence of justice for all ages and for every one regardless of geographical, regional and chronological differences.

On the other hand, there are two different viewpoints among Islamic scholars regarding the nature of Islamic laws. In the traditional approach, even social and political matters should be derived from Islamic sources such as Islamic banking, Islamic government and the Islamic judicial system etc, but according to the intellectual approach in Islamic research methodology, Islam has nothing to do with systems and management related matters. It is up to human wisdom to establish new managing social and political matters on the basis of rationality and justice but it should not contradict the ultimate objectives of  Sharī´ah such as justice, equality and decisive moral values.

A remarkable difference can be seen in two different approaches. According to first approach, the social, judicial and political system must be derived from the Koran and Sunnah. According to another approach, people should have there own social, political and economic system on behalf of knowledge of the day, but this should not violate the basic Islamic values. This approach maintains that Islam did not come to introduce a particular social and political system, Islam had to respond naturally, by the demand of its time by establishing political and judicial system.

In the light of the above discourse, the modern approach must be able to address the problem of eternity (Abadī´at) of Islamic laws. If standards of justice and rationality can be changed, then how can the everlasting dimension of Islamic laws be prevented? In response to this question, some Islamic thinkers are of the opinion that in this case, in spite of the apparent aspect of Islamic text or to adopt a text centered approach, its message should be considered one which can be described by mentioning the basic purpose and objectives of Sharī´ah behind the Islamic laws and supposed to be limited to their own era.

Variability and Invariability of Islamic Laws

Perhaps one of the most important questions facing Fiqh today is that if the prophecy was finished after the death of Prophet Mohammad, and there is no direct contact with source of Wahī (Revelation) i.e. God, then how can Islam respond to the changing situations and daily problems facing man? In other words, when Islam claims that it has finished its growth and perfection and covers all personal, social and political aspects of life (according to the traditional approach), how can invariable and constant Islamic Laws be enough to respond to the different circumstances of daily life? In response to this question, traditional Islamic scholars divided the necessities of man in two parts:

1        Primary needs, which result from the individual and social nature of man. Individual needs, which can be materialistic like food, dress, shelter, etc or spiritual, like the tendency towards knowledge, beauty and worship and social needs, such as living together, cooperation, justice and liberty.

2        Secondary necessities, which result from primary needs, such as the need of tools and machinery in daily life because the quality of life differs from time to time.

Islam, in view of above two type of needs, have two different laws: Constant laws, which are related to a stable principle of human nature and always the same in different cultures and societies, such as laws of inheritance and laws regarding worships etc. and Inconstant laws, which can be derived from constant laws according to the changing of situations and problems. In spite of this, there is a great controversy among Islamic scholars regarding the criteria of variability and invariability, especially in social and political issues. Some scholars are of the opinion that human nature and the sprit of Islam is the main criteria to understand which Islamic law is variable and which is invariable and eternal but one has a right to say that it is a very general standard and a different kind of Islamic law and antithetical issues can be explained under a human nature perspective.

Imposed Laws on Islam

By looking back at Islamic history, one can comprehend that some laws have been imposed on Islam by cultural and social traditions of an ancient Arab society, while Islam in itself did not want to recognize such laws, as well as against the spirit of Islam from the beginning, like slavery. In order to fight against certain existing laws, Islam has to accept and recognized them. Interestingly, it is not known whether the slavery system is still believed to be a part of Islam, or if it is still being considered as a type of punishment for those Muslims who intentionally don’t fast during the holy month of Ramadan (In shia law) or if this law no longer exists in Islam.

If it is right to say that the slavery system is against the sprit of Islam and was imposed on it by the existing cultural and economic traditions of that time, then the question can be raised as to why some social, cultural and political conditions and traditions can not be imposed on Islam and is Islam just obliged to make some laws and changes in existing rules and principles in order to address the people of that time and to show its ability to establish a better system on behalf of social justice which is understandable for that society.

Establishing and Stable period of Islam

Islamic tradition had two different faces. One is related to establishing an emerging period, as when Islam was just introduced by Prophet Muhammad and was taking root in society but was still in danger of conspiracy and the second is related to the time when Islam was completely established and emerged as a strong institution. Is it possible to pursue Islamic laws in this perspective and consider Islamic laws in this establishing period as temporary laws?

Personal Conditions of Prophet’s  Tradition

Prophet’s Tradition (Sunnah) is the second important source of Islamic laws. Since the act of the Prophet Muhammad is also included in Sunnah, one should distinguish personal and individual conditions and circumstances of the Prophet from his religious traditional aim to be followed by Muslims.

When the Prophet Muhammad preached among people, he was asked them whether it is revelation (Wahī) or tradition (Sunnat) in describing Wahī or anything else. In other words, people used to ask him, are you talking with us as a Prophet or it is your personal view on behalf of Wahī? If he said, “it is Wahī,” people would keep silence and immediately would follow him and if he said “I am explaining the Koran on the behalf of responsibility granted to me from God”, people again would follow him, but if he said “what I am saying is neither from Wahī nor on behalf of Wahī, but it is my personal opinion as a judge or head of the state” then people would say, “we want to discuss this issue with you”. In this regard, the prophet is just a human (Bashar) as others. When the Koran clearly says: “I am a human like you, only I receive Wahī,” it means that Prophet wanted to say, “when I am not talking on behalf of Wahī, then I am like you, I can also make mistakes like you. My knowledge is also limited like you and I really need your consultation”. (This is according to Sunni theology, while Shia theologians don’t accept this aspect of the Prophet’s life).

The first (Wahī) and second aspect (Sunnah) of the prophet’s life can be an Islamic principle, but the third aspect of his life, i.e. is social, political and judicial matters are not necessarily to be followed and can be considered as a personal attitude of the Prophet Muhammad. Therefore, one believer is given free hand to establish a social, political and economical system by observing the invariable principles taken form Wahī and Sunnah  and  the ultimate objectives of Islam.