Mystic Thoughts: Understanding the Islamic Law as Binding vis-à-vis Mercy

Posted by admin_kas on 2025-07-18 12:14:12 |

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Muhammad Maroof Shah

The binding nature of tradition is required from the very nature of things as such –Revelation is self-authenticating – it unveils or shows forth itself/its binding or authoritative nature. But this binding is of a very special sort – one needs to unbind to truly bind.

And Tradition is open ended in a sense that it requires every addresses or respondent to creatively live it, to read signs of times in any attempt to engage with what has been past expression of Tradition, to be perpetually open to what is not yet and discover ever fresh meanings and ultimately not to be duped by any interpretative framework in order to be available to what is the case or what shows forth.

One needs to note Fazlur Rahman’s point that the process of questioning and changing a tradition in the interests of preserving or restoring its normative quality in the case of its normative elements-can continue indefinitely and that there is no fixed or privileged point at which the predetermining effective history is immune from such questioning and then being consciously confirmed or consciously changed. This is what is required for an adequate hermeneutical method of the Qur'an.

 Much hinges on what is considered binding. Given the Quran is universally considered binding, the debate has usually hinged on prophetic traditions, especially solitary (ahad) narrations with particular emphasis on legal import of the later and nature of its independent or autonomous authority vis-à-vis the Quran.

However, the more important point to note is the nature of Revelation or Quran, role of history and language as mediating or relativizing features that is often discussed under text context relationship and distinction between universal/principles/values and concrete/historical/contingent facts and even such distinctions now enunciated as Meccan-Medinan verses.

There remain significant difference in emphasis and even approach amongst major exoteric theologico-juristic and philosophico-mystical exegetical figures in Islamic tradition.

Standing differences on sources of law (effectively amongst four commonly cited sources Quran, Sunnah, Ijma (Consensus) and Qiyas (Analogy) only the first mentioned is agreed upon as differences over construing Sunnah and role, significance and extent of invoking other sources are wide) and readings of sources (including reigning debates on scope and import of key Quranic verses) mean much flexibility for legal action or diversity in choice between diverse opinions implying in turn a wide room for exercising personal choice or wide latitudethat accommodates diverse temperaments.

Striking divergence is even divinely ordained modes of worship/rituals– from ablution to prayer (timings, need of congregational prayer etc.) to exemption from fasting and what breaks fast to sacrifice of animals to details of offering hajj and historical divergence in community’s understanding of such calls as that of dawah/jihad/role and purport of mysticism and philosophy or hikmah, running the State, rights of religious or sectarian other/minorities/women shows Islam embraces wide variety of informed choices of believers.

Muslims are hardly recognizable/distinguished as a community by any standardized attire, grooming patterns, housing style or even mosque architecture, artistic forms, spending or organizing charity/zakah. Five pillars are embodied in numerous permutations and combinations on daily basis – Muslims may be offering prayers individually or collectively on divergent times in diverse ways.

"Apply the golden test of ease and mercy before declaring anything as ‘the only Islamic view’. There are almost always alternative fatwas, even within the same school. The harder path isn’t always the holier one."

Similar divergence incultural expressions of the Islamic world means Islamic law has not been a monolith or rigid or squeezing/skewing freedom of expression of community or individual though it has been channelizing it along certain lines. Islam had little difficulty in engaging with religious/cultural other from Africa to Persia to India to China and found home everywhere.

Whenever any view is defended in the name of Islam (say about blanket ban on music, particular length of shalwar or beard, wujoob of burqa or qurbani for every sahib-inisaab, apply this golden test of ease and mercy and don’t forget that there are, often, alternative views or fatwas available, often even within the school one has chosen to follow or amongst equally competent modern jurists and scholars who know better the spirit of times that is so important in approaching Islamic law.

The basic problem with old formulations is that they might be ideal for their times but might miss the spirit of our times and thus appear incongruous or needlessly difficult. Choosing more difficult option is not ordinarily recommended in the issues that are mostly in debate (that is recommended in cultivating virtues and called azemiyaet).

Is a particular prophetic tradition falling short of mutwatir status binding in absolute terms? In theory or principle yes but when we required, from a legal point of view, to implement we may well pause as it might be pointed out that we don’t know with certainty that the Prophet said so and so or meant this and that and may have other reasons to dispute authenticity though not authority of particular solitary traditions that are brought into debate over and above/in apparent contrast to the Quran.

Many filters/qualifications added in Hanafi fiqh while arguing from solitary narrations, continuing debate over whether a particular ruling is of speculative/descriptive/ commanding nature and if narration carries an Amr in it whether it is to be understood as an obligation or a recommendation or just permissibility.”

Is fatwa of a Companion binding? “Whereas some have seen the verdict and ruling of a Companion as a true manifestation of the Sunnah of the Prophet and therefore authoritative, others have disagreed and stated that the fatwa of a Companion is authoritative over something which the latter has narrated from the Prophet, but not otherwise.”

Is Ijma (consensus) binding? The first question is: Is there a consensus on authority, definition and scope of consensus? No is the answer as lucidly discussed in Muhammad Omar Farooq’s Towards Our Reformation: From Legalism to Value-Oriented Islamic Law and Jurisprudence. Besides we need to see that it has been noted that “The Ulama have on the whole maintained that the textual evidence in support of Ijma does not amount to conclusive proof.

The verses quoted in support of Ijma (4:59, 4:83; 4:115, etc.) are not conclusive for Ijma. Imam Ghazali says these Ayats are indications, not clear Nass on Ijma. Suyuti's interpretation is the same.” Al Amidi says, "these give rise to probability (Zann), not positive knowledge". Imam Kashmiri had to read the Quran several times to get some clue in his search for some Quranic basis for Ijma.

Furthermore, we may note that “Any agreement of majority can be a proof but cannot be a binding proof because to be binding, it must fulfill the conditions stated in the Ahadith quoted in support of Ijma (which is nothing short of Ijma of all people, at least all scholars.) There is no good ground to exclude any scholar of any school of Islam, as long as the school or group itself is not considered outside Islam by the Muslims.”

We need, however, to appreciate more subtle point in defence of binding nature of ijma in traditional scholarship. “But when there is general consensus over a particular ruling ikhtilaf must come to an end, and the scholar or mujtahid who might have a different opinion is expected, like everyone else, to abandon his opinion and follow the ruling of ijma‘.

This is precisely what is meant when we say that ijma‘ is a binding proof. The raison d’etre of ijma‘ is clearly to put an end to ikhtilaf and ultimately to vindicate the outlook and spirit of unity that is of central importance in Islam.”

Here one may remark that ijma has historically more fundamentally pertained to securing unity on issues about which certain differences of opinion could still remain but required a community’s collective decision for which individual dissenting notes can’t count as decisive to avoid being divisive for community that would have disastrous consequences.

Ikhtilaf or disagreement is a well-developed area of fiqh from the earliest times when fiqh itself developed as evidenced by Abu Hanifa’s work titled Ikhtilaf al Sahabah (Disagreement among the Companions).

The general ruling of the text is “definitive (qatiee) according to the Hanafis but it is speculative (zanni) according to the majority (jumhoor). One of the consequences of this would be that no conflict can arise between the general and the specific according to the majority, since the latter will always prevail over the former.”

Widely held principle is of "ibaha asliya" – all things are originally permitted. This reflects above all “a comprehensively positive, ‘ontological’ awareness of the divine Bounty and Mercy revealed in all of Being, a reality which is only fully perceived in the enlightened vision of the saints.”

Despite this, subsequently, a few things are seen to obstruct our access to obstruct community values or social equilibrium and higher joys or beauties of body, mind and spirit. Since we are a product of disequilibrium we fail to enjoy the world as in the Garden of Eden we could. For no joy is really denied us for the sake of denial.  Indeed, the Sahabah rarely used to question the Prophet  about any matter unless he himself mentioned it first.

Jurists agree that Islamic laws “may be discarded if they are based on a cause ('lilah) which itself has disappeared,” and “must serve the commonweal” ("public maslaha").

“Originally, individuals were free to select and follow the school of itihad they preferred. They could even combine it with preferred parts of the jurisprudence of other schools. As the State grew more powerful, such choices were increasingly taken out of the hands of individuals.

Ultimately, the State took choice away from Muslim citizens altogether in many areas of the law by selecting the jurisprudence of one of the schools as the law of the land.” And it is indeed the case that “Many followers of the four most reputable schools allowed transfer (tanaqqul), even for the public, from one madhhab to another, and takhayyur (expert selection) or patching positions (talfeeq) from the different madhâhib; something that is frequently done in contemporary fiqh assemblies by scholars who are otherwise wholly committed to their own madhâhib.”

Ibn Hazm said that taqlid is not permissible for anyone, a point that is not incompatible with Imam Kashmiri taking pride in following Abu Hanifa, at least on methodological plane – Abu Hanifa is Ijtihad or freedom to follow reason in matters where no reason against using reason – nass – exists).

If we are in doubt regarding any ruling or have to choose between two different interpretations we have to decide on the basis of this old principle: That is to be followed which leads to increase of love of God and love of neighbour.

The five fiqhi schools generally agree that “Islamic laws (1) change with the passage of time and with the change of placeor circumstance; (2) must avoid harm.”(Azizah al-Hibri).

Law “isn’t absolute and changes with change in context, necessity, circumstances, even person.” Different opinions could be simultaneously true. In fact the term truth is best applied to more universal premises, axioms and formulations that aren’t affected by variety of factors that  viscidities of time or history brings forth. In fiqh, it is more a matter of social equilibrium or perception of justice and fulfilment of formal requirements than truth that is at stake. This is further substantiated by the view of the majority holding that Ijtihad is liable to error and still deserving reward. The minority holding that each of the several verdicts of Mujtahids may be regarded as truth on their merit implies tacit recognition of relativity of truth claims or impossibility of recourse to The Truth.

The fact that there were other shariahs shows a particular sharia has more to do with social equilibrium and less to do with salvation. Salvation is linked to universally common ethics and esoteric/metaphysical truths of revealed religions. It implies we need to eschew absolutist tendency we find in many jurists and theologians.

The acts “which the Prophet saw performed regularly, but which he sometimes neglected without any valid reason to show the permissibility of their omission” are termed sunan muwkaddah (the emphatic sunan).“Neglect of Sunnah al-Muakkadah is blameworthy but not punishable. Neglect of Sunnah Gair al-Muakkadah is neither blameworthy nor punishable.” Saifulah Rahmani quotes Allama Haskafi: “Although one doesn’t become entitled to hell with disregarding sunnah, one is denied shafa and no Muslim can consent to this deprivation.”

Taqlid is permissible only for a layman. Ibn Hazm believes Taqlid is not permissible for any one.   Gifted with intelligence anyone can examine arguments and draw implications.

Those things declared lawful in book are lawful and those declared unlawful unlawful. There are some things about which silence has been chosen. They are such that God has eschewed them (derguzer sae kam liyae hae) (Tirmidhi and Ibn Maja).

Saifullah Rahmani, author of influential encyclopaedic work on fiqh, infers “Goya jin chhezo kae mutaqal eq kitab o sunnat khamosh mubah haen.”

"Islamic law has never been a monolith — it embraces rich diversity across cultures, times, and schools. From rituals to rulings, the faith has always allowed latitude. Uniformity was never the spirit of sharia."

If you are troubled regarding any question you have (we aren’t troubled about rulings with which salvation is linked such as ten commandments or fitrah or well established path/practice – sunnah), generally speaking, so many choices to choose from.

If, rarely, one may nevertheless find certain ruling hard to carry, one should pray for steadfastness and God will surely respond.

A rule propounded by some Fuqaha (Suyuti and Sarakhsi) is that "what is proven by Urf [custom] is alike that proven by Shariah." This was adopted by Turkish Khilafat in AlMajallah. However, it has been emphatically asserted that “this rule is applicable in the case of Urf of the Muslim nations and when the Urf is not in conflict with the rules, essence and spirit of Shariah.” The qualifications such as Urf of the Muslim nations and Urf not in conflict with the rules, essence and spirit of Shariah and need for careful examination of Urf of non-Muslim societies don’t contradict the tenor of ease and mercy but help see limitations of the idols of tribe.

“Umar learnt a great deal from the Prophet (S.A.W). He often noticed that the Prophet would refrain from issuing an order to the people to do something good, although he wanted to do so, because he did not want to subject them to hardship. He often used to say: ‘If it were not that I am afraid to impose hardship on my Ummah, I would have commanded them to do... such and such.’ Sometimes he would forbid them to do certain things, and then, when he saw that the reason for forbidding them was no longer valid, he would lift the ban.

On other occasions, he would be about to forbid something, and they would tell him of the hardship and distress that such a prohibition would cause them, so he would refrain from it so as to protect them from hardship.”

In matters of ijtihad that are subject to difference, Imam Malik regarded it as an abomination for a jurist to say that “It is unlawful.” Instead he recommended that the jurist should simply say “I dislike.”