Fiqh is the human expression of the shariah and the shariah is the means to develop a complete human personality on an ethical basis. However, fiqh can be a proper expression of shariah only if in seeking to express the shariah, it should not negatively impact on the divine ethics, which are the very core of din. If it does so, the shariah cannot be expressed and implemented in the right manner and the aim of ethics and morality would be negatively affected.
As regards the absolute and explicit commands of Islam, which have been taken from the Quran and Sunnah, there is no need for any reflection or ijtihad. But with regard to matters that are not explicit and in which there is need for deep reflection and ijtihad, there is a possibility of differences in opinion and argument. In Islam there are many matters which fall in this category and this very fact reflects that God wishes that there be room for flexibility and accommodation in the concerned rules in this regard according to space and time. Hence, there is necessity for tafaqquh fil din (understanding the law through pondering on its true import) and this shall continue till the Day of Judgment. According to the Quran, a group of people will always be there who will play this role of interpretation of Islamic principles and rules according to space and time.
Fiqh can serve as a means for the proper interpretation of shariah only when ijtihad is given its due place and when the aims of the shariah (maqasid-e shariah) are upheld. If this is not observed, one deviates from the very essence of Islam. Unfortunately, some aspects of the fiqh tradition are bereft of the true spirit of the din and shariah and are, in fact, a hurdle in the path of the total submission of human beings to God’s Will, which is the essence of Islam. In the later centuries, the fiqh tradition was seen as completely synonymous with the divine shariah, which, in fact, is not the case. Muslim society was sought to be regulated in accordance with the corpus of fiqh rules, some of which, to an extent, went against the Islamic ethical imperatives.
The aim of the principles of fiqh (usul-i fiqh) was to keep alive the practice of ijtihad, but in the fourth Islamic century the development of the usul-i fiqh was halted. In this way, the tradition of fiqh became a collection of stagnant and frozen rules whose relation to contemporary times was, to an extent, only formal or customary. Those fundamental aspects of the divine sources (nusus) which are related to Islamic ethics and which are the very soul of the shariah came to be increasingly ignored. The divine sources came to be seen as sources of rules and regulations, thus somewhat ignoring their ethical import.
The contemporary fiqh tradition has, in some respects, negatively impacted on both the personal as well as collective dimensions of the understanding of Islamic ethics, because of which numerous Islamic ethical demands have been sidelined. Through various methods of hila (casuistic arguments in order to circumvent the spirit of the shariah) which relate to the interpretation of fiqh, some things considered to be haram or forbidden have been sought to be made legitimate and vice versa. It was now easy for things like the rights of others, charity, benevolence and honour to be ignored through such technical devices.
The ignoring of collective morality in this way can be seen in the context of fiqh rules related to non-Muslims. The Prophet Muhammad (s.a.w.) used to stand up when the funeral procession of a Jew would pass in front of him out of human courtesy. In contrast, many fuqaha consider it forbidden or permitted only in very special cases, and that too in a very limited way, to greet non-Muslims, attend their funerals, pray for God’s mercy for them, attend their festivals and exchange gifts with them. Likewise, the fiqhi concept of offensive jihad goes against the basic social ethics of Islam. In fact, Western powers are doing precisely this today in attacking, without any reason, other countries. Although this attitude is condemnable, they alone are not to blame. We also need to look within, to introspect, to revise our own understanding of what jihad truly means.
Because of this, seeking to understand Islamic ethics entirely within the framework of classical fiqh is not possible and is also not in accordance with the aims of the divine revelation. Instead, we need to make the Quran the basic framework for deriving our understanding of Islamic ethics. Tradition serves as a lamp for us, which will guide us at every step, but we must not rely completely on it for our intellectual development. We would need to read the Quran and Sunnah in the light of new human discoveries and the expanding corpus of human knowledge. In this way the gap between the new cultural era and traditional Islamic theology can be bridged and they can be brought into harmony with each other. The Quran is firstly a book of morality and ethics and only later a book of law. The Prophet Muhammad (Pbuh) mentioned that he had been sent to the world in order to fulfill morality or ethics. This is why we would need to re-read the Quranic revelation within the framework of the universal Islamic morality.
(The writer is the Editor of the New Delhi-based monthly Tarjuman-e Dar ul-Ulum, the official organ of the Old Boys’ Association of the Dar ul-Ulum, Deoband. He can be reached at ws_mazhari@yahoo.com)