Islam: Between Divine Message and History

Chapter Four – The Issue of Legislation (Tashri)

CHAPTER FOUR THE ISSUE OF LEGISLATION (TASHRIc ) If the situation is correctly summed up at the close of the previous chapter, and we have every reason to believe that it is, we must seek a radical solution that will go beyond spurious compromises, reconcile the contemporary Muslim with his religion, and rid him of the dualism that impedes creativity, hampers initiative, and thwarts the spirit of adventure . That is the reason for our interest in the legislative aspect of the 4XUu­Q, which has been subject to more arguments and disputes than any other. The first point worthy of note in this context is that the revelation (ZD»À) speaks of sharic a not in the sense of a sacred law, but rather in the sense of a direction or a course of action (WDUÀTD).58 The 4XUu­Q’s task is to delineate the course of action that the believer (Mu’min) should follow,59 and in that sense it is binding. However, within this general course of action only a few details of conduct and behavior are indicated and these are usually circumstantial solutions to problems that faced the Muslim community. It is the circumstantial nature of these solutions that explains the discrepancies between them. For the most part the revelation failed to spell out the details in the text (WDQÔÀÔ), whether they related to 58 “We have made you follow a course in the affair, therefore follow it” (The Kneeling (al-Jathiyah) 45/18). 59 This is what Mohammad al 7­OLEÀ calls the “directed arrow” (DO VDKP DO PÚZDMDK), see 0RKDPPDG DO 7­OLEÀ F ,\­O $OODK, Tunis, 1992. THE ISSUE OF LEGISLATION (TASHRIc ) 59 various aspects of life at the time or to whatever might arise later. Although they primarily pertain to acts of worship, these directives, which are of a moral and educational nature, already existed in the Meccan period and could not be separated from the other major contemporary concerns of the revelation, such as monotheism, the resurrection, judgement day, and the prophetic missions. The command to establish regular prayers, to be charitable and pay the ]DN­W (alms tax), to do good, to enjoin truthfulness, patience and compassion on each other, to be righteous, pious, and thankful, to honor covenants, to guard one’s private parts, to set slaves free, to feed orphans, prisoners, and the poor, to grant bloodrelatives and wayfarers their rights—no less than the prohibition of murder, injustice, disobedience, tyranny, pride, obscenity, lechery and adultery, lying and scandalmongering , backbiting and slander, profligacy and meanness , oppressing the orphan and chiding him who asks— were all concerns of the revelation. They were all signs directing Muslims to the right path, and in no way differ from the precepts about fasting, the Kiblah (the direction of the Kac aba towards which Muslims turn in prayer), the -LK­G (Holy war in God’s cause), marriage, divorce, theft, and other aspects of the revelation in the Madinese period. In my view it is as unacceptable to divide the mission into a Meccan and a Madinese one in the manner advocated by 0D»PÚG 7DK­ as it is to break up what is wrongly called ‘D\­W DO D»N­Pu (regulative verses) and to quote these verses out of their historical context and apart from the 4XUu­QLF text, as jurists have done and are still doing. For $»N­P is a jurisprudential term that signifies—in descending order—duty, delegation, the licit, the abhorred, and the illicit. These distinctions have no foundation in the prophetic mission, which was concerned with the good and the bad in its own time, and which could therefore only point towards general standards of honorable conduct and 60 ISLAM moral virtue. What this meant in practice for later generations of Muslims had to be inferred by them on their own. However, in order to be correct, these inferences must not depend on clinging to the letter of the mission and worshiping the text as such, but rather on seeking the spirit of the text with all its meanings and purposes, so that the object of worship would be God alone, and the Muslim’s conscience the only judge of his response to the divine instruction . There is no doubt that this method of reading and understanding can preserve the credibility of the Islamic mission through the different circumstances that may befall Muslims...