Islamic Law and the Texts


Peace on you all,

Since my last post, I have been thinking more about the scholars, and I have so much more to say. The scholars, at least those who have reached the level of mujtahid, are indeed experts.  Experts worthy of respect.
To the scholars, I say to you that I recognize the sources of this religion are in the texts, the Qur’an, and the sunna. Without the texts, we have no tradition, no narrative history that makes us Muslim. They form the focal point of our heritage, that which differentiates us from others.
You, the scholars, are experts in the study of the texts. You have developed, in each of your respective schools, elaborate systems of legal reasoning to take the few pages that these texts comprise, and to discover a whole universe of meaning.

You are able to read the texts in a way that I cannot read them. Most obviously, you can read them in the original Arabic. I must read them in a translated version because my Arabic is poor. The translation is usually written by one of you. In some sense, you have already decided what the text means, and are presenting it to me through your eyes.   And what I read, through your eyes, still fills my heart with light and joy, at least most of the time. I depend on you, and I thank you.

But even beyond that, what you do in interpreting the texts is not so different from what American judges do to interpret the laws of the United States. You are specially trained like our judges here, who follow canons of legal interpretation, to make sense of constitutions, statutes, and legal opinions.   And it is well-assumed, that judges in this country must be well-trained in jurisprudence.  In our highest courts, we select only the best legally-trained, sharpest legal minds we can find to govern us all.  The Supreme Court of the United States is made up of nine of these geniuses of law, and we are quite sure that we could never substitute a random nine of our lay citizenry and expect their interpretations of the law to be nearly as wise and sophisticated.  That is, I think we are quite sure, but that’s not to say I don’t wonder what would happen if we tried.

And so it might be that Islamic texts too require levels of interpretation involving sophistication most of us cannot handle. You’ve spent many years training to become mujtahids. You’ve learned special rules of textual interpretation. In theory, these rules are meant to help you best realize the true intent of God.  Many scholars will say further that such sophisticated rules of interpretation keep them from reading into the texts their personal desires.  We look around at the world, and we see so much evil committed by human nature.  We look at our own lives, and we know we are not pure.  By following strict rules, perhaps you as specially trained scholars are not influenced personal opinion, but are determining what the texts, in some logical, transcendent sense, dictate.

Yet, I know that even you agree that what you are doing in interpreting texts is not mathematics. There are many things you consider before rendering legal conclusions, and you do not come to your decisions mechanically. You struggle with yourself, the very meaning of ijtihad, and you recognize that your reasoning isn’t perfect, because we are all fallible.

Traditionally, the use of qiyas is perhaps the most obvious realm where much of the uncertainty inherent in human reasoning has traditionally played a part in your struggle. Especially as it applies in our modern world, so much is left silent in the texts. Qiyas is the name for the process you use to draw analogies from what can be read from the text to then be applied in a new context.

Especially relevant for our purposes, think, for example, of Islamic cyberlaw. The Prophet Muhammad (p.b.u.h.), as prophetic as he was, never made any specific mention of what our community should do when much of our lives would become electronic. How are we to decide what is the proper etiquette in this medium? Presumably, you the scholars would derive the rules appropriate in cyber-media by analogy from laws you think appropriate in the “real world.” And those laws, you would somehow derive more directly from the texts.

But if I understand correctly, to apply an interpretation of Islamic laws to cyberspace, you must determine what is the essence of the preexisting laws you have already deduced. The essence, or ‘illa, that is the ultimate reason for the law, is the part that you find to be the essential manifestation of God’s wisdom.

Alas, when it comes to determining God’s wisdom in such circumstances, even the traditional schools recognize that personal opinion must come into play. The Hanafi school of Islamic jurisprudence, in particular, allows extensive use of istislah (where uncertain, prefer interpretations that maximize utility) and istihsan (where uncertain, prefer interpretations for unstated reasons). Utility (maslaha) is what we generally understand to be the aggregate measure of all the “good” that might come from a given rule or analogy. We assume that where one rule or analogy seems to bring more “good,” that must be the right one, because God would only want good for us.  But the very fact that there is uncertainty about the interpretation shows that God has not made the best course clear even to you the scholar!  God must be depending on you to struggle, and bring your own hearts to bear on the decision.  Istihsan requires an even more subtle use of the heart, because here, you need not even give a reason for choosing one interpretation over another.  You choose an interpretation because it seems better–you just cannot explain it.  It is a subtle level of inspiration that draws you to one interpretation over the other. By the mercy of God, because we think He must want what is ultimately good for us all, we have traditionally trusted that He is guiding you the right way.

Yet, purity of heart, and the potential for spiritual guidance is available to every person, lay or expert.  In the Qur’an, God says about every person, “I am closer to you than your jugular vein.”  And He says that before we were born, He “breathed something of [His] spirit into” us.  In some sense, we all have the capacity to voice the beauty of God, though our close connection to Him.  We are not perfect, far from it, but each one of us manifests some of God’s qualities at least imperfectly.  He is there to guide us all.  The more we let his spirit shine through us, the better our world becomes.  Will you not tap into that spirit that resides in all of us?  At least where you are unsure about your interpretations, perhaps you will find some hint of the wisdom of God through the voice of even the lay Muslim, who wants to join you in the struggle to understand truth.  Perhaps as you listen to more voices, you will find them as an aid to applying even the traditional rules of interpretation that have historically dominated Islamic legal systems.

Again, I hope you the scholars will join us, and engage us.


Tawfiq Ali

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