Islam and modernism III

The myth of inadaptability

Part three of Mohammad Reza Shalguni’s series on whether Islam and modernism are compatible

There are those who present Islam itself as the main, or one of the main, obstacles to modernisation in Islamic countries. They usually argue that Islam is a totally rigid, or  much less adaptable, than other religions, especially Christianity. This view was originally held by Orientalists and Weberists. With the running made by Islamists today, it has assumed the character of an indisputable fact. Ironically, in holding this notion fanatical Muslims share the same camp as the Orientalists and Weberists.

The truth is otherwise. Like all religions Islam was born under special social circumstances, and has changed under the influence of changes in social relations. Undoubtedly, as in other religions, where it became the dominant religion it acted as a force blocking change and a fortress for conservatism. 

I have chosen examples illustrating the potential of Islam for change mainly from Islamic jurisprudence (feqh). I chose feqh for three reasons: firstly because like all religions changes in the realm of law are slower than in other fields. For example the cosmology of believers, their views on the world, life, origin and resurrection are easier altered than their understanding of law, for which they have less tolerance of broad interpretations. Secondly this is an area where proof of changes is easier to obtain and hence less open to dispute. And thirdly because when Islamists talk of the need to establish an Islamic government, foremost in their minds is the necessity to implement this very feqh - laws in whose eternal validity and divine origin they believe. Therefore to show that some of these laws have changed over the years, and that some of them have no roots in the Qur’an and have entered feqh after the Prophet of Islam, has important political implications.

Late development

Before giving the examples of a change in the laws of  feqh it is worth noting that the very appearance of feqh - or more accurately its appearance as a codified field of knowledge - was itself a major development in Islamic shari’a (Islamic law). The first concerted efforts to codify Islamic feqh took place in the second Islamic century (8th Century AD), that is at the height of the Abbasid Caliphate (789-1258 AD). One of the very first compilers of feqh was Ja’far al-Sadiq (d 765), the Shi’i sixth Imam and the founder of the Ja’fari school of jurisprudence (madhhab). Abu Hanifa (c. 699-767) and Malek Ibn Anas (c.715-95) - founders of two other schools of jurisprudence - were both born over 70 years after the death of Mohammad.  The gathering of the main sources of the sunna (the Prophet’s habitual behaviour) - which after the Qur’an forms the most important basis of  feqh, and without which it would be impossible to link most of the shari’a rules to the Prophet - took place in the nine and tenth centuries AD (3rd and 4th Islamic centuries).

Two key collections of Sunni hadith (record of the Prophets behaviour or words) - “Sahih” by Muslim Ibn al-Hajjaj (c 817-75) and “Sahih” by al-Bukhari (810-70) were both compiled in the 9th Century. The four main Shi’i collections of Hadith came even later in the 10th and 11th Century AD.

Thus Islamic jurisprudence (feqh) took shape at least two centuries after the birth of Islam and were the product of a different social and historical conditions. Some of the main compilers of feqh were not even Arabs. Abu Hanifa, the most important Sunni scholar of feqh, Abu Abdollah Bokhari, Muslim Ibn Hajjaj and Abu Davoud Sajestani (authors of three of the six key Sunni hadith collections) were all Iranian. So were the authors of three of the four key Shi’i hadith collections: Ibn Babvieh and Abu Ja’far Tusi.

Imperial needs

The compiling of feqh, above all, meant an expansion of shari’a law. What made that necessary was the need of the Islamic empire for new laws.

In the ninth and tenth centuries the Muslims ruled over a vast empire, some of which were among the richest and wealthiest of its time, without much resemblance to the backward society in which Islam took shape. Clearly it was not possible to rule such communities using the very rudimentary and highly primitive laws of early Islam.

Yet those who took on the name of  Caliph (successor to the Prophet) and ruled in the name of Islam could not make new laws without recourse to Islamic shari’a. The Caliphs took the only route open to them: to give an Islamic cover to the laws they needed to govern this vast empire. This was done in two ways. First by ascribing the laws and legislations under consideration to the Prophet himself. 1 Second, through a systematic interpretation of the Qur’an and the hadiths that were imputed to the Prophet.

The first method, the chronicling and documenting of the basis for feqh, was an attempt to collect the necessary documents and sources to give legitimacy to the required laws. For the political order this method was of vital importance. It allowed an extension of laws, as was seen necessary, without creating a crisis of legitimacy for the political order. This was why the collection of hadiths was embarked on as an important, and at the same time politically delicate, task.

In a society where an Islamic cover was needed to legitimise anything, the most natural activity for any political current was to find the right hadith to legitimise their demands. The Caliphs, in turn, defended their interests by rooting out “un-authentic” hadiths. The battle for the unearthing “un-authentic” hadith and their compilers was one of the main forms of political repression of this period.

For example Ibn Abi al-Owja’ was hung for irreligion and forging hadiths in Baghdad. He is reported to have shouted, with a noose round his neck, that whatever you do is useless, for I have forged thousands of hadiths and have totally confused your halal and haram. 2 Inventors of hadiths were, however, not suppressed in order to defend religious purity. The political order wanted a monopoly of hadith forgery, which gave it a monopoly of legitimacy. The success of the Caliphs in confronting hadith forgery must be seen as control by the political order on the formation of the main sources of religious jurisprudence (feqh). 3

This was how the “Tradition (sunna) of the Prophet” took shape in the 9th and 10th Century in response to the needs of the empire. More importantly the sunna  rose to a position equal with the Qur’an as one of the two main sources of divine shari’a.

The empire, however had to go beyond hadith-forgery to answer its legal needs. The centralised government of the Abbasid Caliphate had to deal with highly complex matters that the earlier Arabs could not have even imagined.

Invention of new hadiths had to supplemented with a systematic analysis and interpretation of the Qur’an and the hadiths. It was in this way that an Islamic  jurisprudence and feqh based on the use of logic and reason took shape. To the main sources of sharia’ (the Qur’an and the sunna) two new sources were added. These were qiyas (analogy) and  ijma’ (consensus).

The use of these two were clearly based on the supposition that Islamic societies are faced with many questions for which no direct answer in the Qur’an and sunna can be found. The religious jurisprudences (faqih) allowed themselves to use analogies in the Qur’an or sunna to deduce new laws, or at their own discretion make new laws. This formed the methodological basis of qiyas. With ijma’ a consensus of reputable Islamic jurisprudences would give legal legitimacy to these deductions.

Just like the methodology which depended on chronicling and recounting, the use of reason to expand shari’a law also took place mainly under the direct supervision of the political power, and once again mainly by non-Arab faqihs. For example Abu Hanifa, the first and most important advocate of the use of reason was a friend of the second Abbasid Caliph, Mansur (754-75) and received his encouragement. Abu Hanifa’s most important pupil Abu Yusef - author of Al-Kharaj - was appointed as Qazi-al-Quzzat (supreme judge) during the reign of the third, fourth and fifth Abbasid Caliphs (Mehdi, Hadi and Rashid) - the first to be appointed to such a post. Another important Abu Hanifa pupil, Mohammad Ibn Hassan al-Sheibani was the Qazi in Raqqeh (summer capital of Harun al-Rashid) and the city of Rey.

The adoption of the new methods were of course too bold to escape censure and opposition. The main centres of opposition were Mecca and Medina which were centres of Islamic orthodoxy. However, since the broadening of shari’a had become a vital state necessity, such oppositions were bound to be marginalised or of brief duration.

Thus Malik Ibn Anas, who led the Medina revolt against Abu Hanifa’s use of qiyas was in practice forced to refer to the traditions and practices of the people of Hejaz (Arabian peninsula) as one of the sources for the extension of feqh. His differences with Abu Hanifa was in reality narrowed to firstly: placing the hadith above qiyas at all times and even preferring a hadith whose sources was doubtful to qiyas. And secondly: to accept as valid only the ijma’ of the Islamic jurisprudences in Mecca and Medina. 4

The Shi’i faqihs who also strongly opposed the use of qiyas, were in practice also forced to resort to “reason”. Their differences with the Abu Hanafi school was ultimately modified into a difference in terminology rather than  methodology. 5

The most enduring resistance against the methodology of “reasoning” came from Ahmad Ibn Hanbal and his followers. Hanbal was a pupil of al-Shafi’i (the founder of the Shafi’i school of jurisprudence). Unlike his teacher he totally rejected qiyas and considered ijma’ as a non-shari’a innovation (beda’at). His remained a minority view, and although the Hanbali school gained some influence and was even accorded the status of an official school of  feqh through the ijma’ of Sunni jurisprudences in the 11th Century, it never became a dominant religious force in the important and advanced Islamic centres.

On the whole, therefore, the methodology of extending feqh through “reason” was taken up by the various schools of jurisprudence with varying degree of application. It is no accident that the Hanafi school, which took to this method with greater boldness than the other madhhabs, became the official state religion during two of the most powerful and longest period of Islamic Caliphates: the Abbasid (749-1258) and he Ottomans (1281-1922), and today is the school of feqh followed by over half the Muslim world. 6

To sum up: a look at the very formation of Islamic jurisprudence - feqh-  shows that:

n First: Islam is not an inflexible religion. Like all religions it has undergone major transformations throughout its history.

n Second: it was social and historic developments that made these religious transformations inevitable.

n Third: during these transformations, those guarding the shari’a had to take social needs into consideration and consciously added earthly and material sources to the “divine” sources of shari’a.

n Fourth: the most advanced and complex centres of the world of Islam had the greatest role in creating these changes and helping their universalisation.

n Fifth: the political power, and hence the ruling class had a crucial role in shaping and directing the way shari’a developed.

 

Let us now examine examples of changes in shari’a laws:

A: The peasant and agriculture

Islam was born in a society where agriculture had a subsidiary role. The early Muslims did not have a clear notion of agricultural relations. There is nothing in the Qur’an on these relations although they were at the centre of the economic life of all the more advanced societies of the time.

The Qur’an is the product of that period in Islamic history when Islam had yet to go outside the “barren valley”. 7 During this time the Muslims not only had little to do with agricultural rent, but even looked down on agriculture and the agricultural worker. They saw working on the land as a  source of hardship and submission. As I wrote in earlier chapters, Ibn Khaldun quotes from Bukhari’s “Sahih” that when the Prophet “saw a thresher in a house of a Companion, he declared: these tools never entered anyone’s home into which wretchedness did not find a way. This is a clear reason that levies are a cause of hardship. To this one must add the consequences that follow the wretchedness of [imposing] tolls such as the habit of deception and hypocrisy which is acquired because of the dominance of power and violence. Such that it has been written in Sahih that the Prophet takes refuge with God from levies and tributes. When asked on this point he [Mohammad] replied: when someone wants to pay tribute, he speaks but resorts to lies and promises but does not keep that promise...”.8

One can even speculate that it was from such a point of  view that Omar (the second Caliph) did not allow his victorious troops to lay possession on land they had conquered 9 since he feared that they might take to agriculture, get attached to their lands and lose the desire for war. Hence the military might of Islam would have scattered.

When, however, Islam went beyond the confines of the Arabian Peninsula, and the Islamic rulers began to understand the vital importance of agriculture, they not only abandoned their former way of looking at agriculture, but enacted complex laws to guarantee agricultural prosperity. Yet, as was required, all of these were given an Islamic cloak and linked to the Prophet himself through a series of hadiths.

Thus while the religious calendar of Islam is a lunar one, and this is endorsed by a direct Qur’anic quote, 10 later Muslims were forced to officially switch to the solar calendar for their tax-collecting machinery (Divan al-Kharaj). An agricultural community works on the solar and not the lunar calendar and the collection of agricultural tax could not ignore the harvest season.

Similarly the concept of kharaj (tribute) did not exist in early Islam. Islam was born in conditions where there was neither a state nor much agriculture. Therefore neither tax nor agricultural rent had any meaning. As Islam was forming the first government of the Arab tribes and the concept of tax was also taking shape.

In the Qur’an, which expresses the world-view of this early period, the paying of tax is more than anything a religious and moral obligation with no earthly guarantee of delivery. These references are usually justified by the need to help the poor and the destitute. This is true particularly of the Meccan verses which belong to the period before the Prophet’s emigration to Medina. They are referred to as zakat (means of cleansing = alms) and sadaquat (means of keeping promises or right-doing).

Once Islam went beyond the Arabian Peninsula, agricultural rent from peasants became the main source of finance for the vast empire. This is usually referred to as kharaj (tax levied on land or its produce). To collect kharaj a huge bureaucratic machinery was created which resorted to the most brutal of methods. The laws relating to the collection of kharaj were often the same laws that were in force before the Muslim conquerors. For example the kharaj from Iran and the Mesopotamia was calculated annually almost in the same way, and at the same level, as it was collected in Sassanian times [the empire overthrown by the Arab conquest- tr]. In Egypt, because of the peculiarities of the Nile irrigation system, it was calculated as the average output of four years. 11 The Muslims were so unfamiliar with the question of how to calculate and collect kharaj that for a whole period the tax books were written in the Pahlavi language [of the Iranians] as they were in the Sassanian times.

At first kharaj was applied only to the rent collected from non-Muslim peasants or peasants that had recently converted to Islam in the conquered lands. The rent paid by Muslims was called zakat (or ushr; i.e one tenth). It was not possible to take both kharaj and zakat from the same person.

Later when most of the peasants in the conquered lands converted to Islam this distinction was put aside. Kharaj was also collected from Muslim peasants - using the same repressive means that was used on non-Muslims. It was no longer a financially valid proposition for the rulers to observe the difference.

Feqh (jurisprudence) rapidly adjusted to these new circumstances. Such influential jurisprudences as Abu Yusef Ghazi and Abol-Hassan al-Mawardi (d. 1028) gave the necessary shari’a cover for the caliphate. Thus in all the Islamic caliphates kharaj became the central tenet of taxation. It is ironical that the earlier zakat, which was taken from the haves as a means of helping the poor and destitute, was transformed to kharaj which is taken from the poor and toilers for the comfort of the rich and exploiters.

There is of course nothing astonishing in this about turn. All the Islamic caliphates were states based on the tributary mode of production. They could not stay on their feet without reliance on the excess agricultural produce extracted from the direct producers (the peasants) through non-economic means.

Protecting the producer

Another example in the same field is the protection given to those working the land in order to assure agricultural prosperity. There is an article in feqh which declares: “the crop belongs to the farmer even if he had usurped the land”. This rule is obviously an unequivocal defence of the farmer and agriculture.

Note how little this has in common to the contemptuous early views of the Muslims who saw the thresher as a means of wretchedness. Such a legal ruling comes only out of an agricultural community, and by those who understand that their whole being depends on extracting the “excess production”. The importance of this ruling is that it accepts that the crop is the product of the labour of the peasant and not the natural product of the land. Thus even if the farmer had usurped the land, the owner of the land cannot lay claim to his crop, or destroy it, but must wait until the crop has been harvested and then reclaim his land.

We must note that this rule is an exception to at least two other more general rules in feqh: the rule of netaj (progeny) and the rule of ghasb (usurpation). According to the rule of netaj the product of any wealth belong to the owner of that wealth. Thus the product of the land should belong to the owner of that land. The netaj, or offspring of  female animals, or even the children of female slaves, belong to the owner of the mothers.

The law of ghasb declares that “ the usurper should be dealt with harshly”.   That means that if any change in wealth is made during usurpation, the usurper must return most of this to the rightful owner. Undoubtedly both these rules were made to protect property. And their jurisdiction is far beyond that of agriculture.

Thus the rule on the agricultural produce mentioned above must be seen as an exception to the two rules of netaj and ghasb. What has induced feqh to accept this exception is the importance and sensitivity of agriculture. One must remember that in Islamic lands, much as in other eastern land (and unlike European feudalism) the excess produce was usually taken in kind, that is as a part of the crop, and not as forced labour on the lands of the landowner.

Therefore the peasant, at least in theory, was not tied to the land and could leave it. For this reason, in order to prevent the flight of the peasant from the land and the abandoning of cultivable land - which often took place under extreme situations and dragged agriculture (and with it the whole community) to ruin - the ruling classes found themselves forced to come up with a minimum protective legislature for the peasants.

The attention given over to agriculture was not confines to feqh alone. It can be found in the writings of most of the thinkers of the ruling classes. For example in many of the most important writings on political power - from the Book of Government (Siaisat Nameh) of Nizam al-Mulk Tusi (1018-92), to Rashid al-Din Fazlollah’s Jame’ al Tavarikh, and Ibn Khaldun’s Introduction, the point is emphasised that the survival of the state is on its troops, the troops rely on kharaj, and the survival of kharaj depends on the prosperity of agriculture and paying due attention of the condition of those working the land. It is natural that under these conditions feqh could not stick to the rules and context of early Islam and ignore the most sensitive issue facing these agricultural communities.

To be continued

Parts I and II appeared in iran bulletin nos 12 and 13

 

References

1. For the Shi’i branch of Islam the sayings and acts of the 14 immaculate Imams (descendants of Mohammad) is also a source for shari’a

2 Quoted from Taghi Arani: Erfan and the Principles of Materialism. Of course sensitivity to hadith is not confined to this period. Islamic government was always mindful of this. It is reported that the second Caliph, Omar ordered the whipping of Abu Harireh, one of the Prophet’s Companions and a reputable mohaddeth (quoter of hadith), for forging a hadith.

3 Not only the hadith but even the Qur’an was collected under the direct supervision of the political power. The gathering of the Qur’an took place after the death of  Mohammad under the Caliphate of Uthman (644-56). He ordered the destruction of all other versions of the Qur’an in existence. The political power was thus the key instrument in shaping both the “Book of Allah” and the “Tradition of the Prophet”.

4 See Reuben Levy. The Social structure of Islam. Cambridge University Press 1969  p172

5 The opposition of Shi’i faqihs to qiyas was less based on differences in on methodology than in political differences. They did not wish to submit to the jurisdictory legitimacy  that had taken shape under the control of  the “usurping” Caliphs. Moreover if you over-relied on methods based on reason, you invalidated the need for an immaculate Imam - on which the whole of Shi’ism is based. It is for the same reason that Shi’i scholars in feqh were not prepared to accept ijma’. They were in a minority and  would be outvoted in any ijma’. They indeed only accepted the ijma’ of Shi’ite faqihs on condition of being ratified by the Imam of the time. Of course when later on they had too were forced to extend jurisprudence in the absence of the “Immaculate Imam” they came to terms with the methodology based on the use of reason with the argument that during the “occultation” of the 12th (and last) Imam the road to ijtihad (interpretative reasoning) is open to those faqihs favoured by the 12th Imam.

6 R Levy, ibid p 182

8 Ibn Khaldun.  Introduction. Farsi translation. P 271.

9 R Levy ibid. p 309. Omar’s apparent explanation was if the conquered land was divided up among the victorious troops nothing would be left for future generations of Islam. Even if we take this explanation at face value it shows that Omar was thinking more of collecting tribute and levies from conquered lands rather than agricultural prosperity which was the main source of wealth in those times.

10 “Allah ordained the months twelve in number when He created the heavens and the earth. Of these four are sacred, according to the true faith. Therefore do not sin against yourself by violating them. But you may fight against the idolaters in all these months since they themselves fight against you in all of them. Know that Allah is with the righteous”. Qur’an 9:36. As I pointed out above in the period Islam was taking shape, the forbidden month of war were vital for the economy of Mecca and the security of the merchant caravans on the coast of the Red Sea. Islam could not establish itself among the Arab tribes without that. This is the reason the Qur’an gives official blessing to the lunar calendar of the Arabian tribes and even presents it as an eternal way of measuring time.

11 Taghi al-din Maqrizi, Khetat al-Asar. The 14th century historian, gives interesting insights on the means and ways of tax collection in various Islamic lands

 



1 For the Shi’i branch of Islam the sayings and acts of the 14 immaculate Imams (descendants of Mohammad) is also a source for shari’a

2 Quoted from Taghi Arani: Erfan and the Principles of Materialism. Of course sensitivity to hadith is not confined to this period. Islamic government was always mindful of this. It is reported that the second Caliph, Omar ordered the whipping of Abu Harireh, one of the Prophet’s Companions and a reputable mohaddeth (quoter of hadith), for forging a hadith.

3 Not only the hadith but even the Qur’an was collected under the direct supervision of the political power. The gathering of the Qur’an took place after the death of  Mohammad under the Caliphate of Uthman (644-56). He ordered the destruction of all other versions of the Qur’an in existence. The political power was thus the key instrument in shaping both the “Book of Allah” and the “Tradition of the Prophet”.

4 See Reuben Levy. The Social structure of Islam. Cambridge University Press 1969  p172

5 The opposition of Shi’i faqihs to qiyas was less based on differences in on methodology than in political differences. They did not wish to submit to the jurisdictory legitimacy  that had taken shape under the control of  the “usurping” Caliphs. Moreover if you over-relied on methods based on reason, you invalidated the need for an immaculate Imam - on which the whole of Shi’ism is based. It is for the same reason that Shi’i scholars in feqh were not prepared to accept ijma’. They were in a minority and  would be outvoted in any ijma’. They indeed only accepted the ijma’ of Shi’ite faqihs on condition of being ratified by the Imam of the time. Of course when later on they had too were forced to extend jurisprudence in the absence of the “Immaculate Imam” they came to terms with the methodology based on the use of reason with the argument that during the “occultation” of the 12th (and last) Imam the road to ijtihad (interpretative reasoning) is open to those faqihs favoured by the 12th Imam.

6 R Levy, ibid p 182

8 Ibn Khaldun.  Introduction. Farsi translation. P 271.

9 R Levy ibid. p 309. Omar’s apparent explanation was if the conquered land was divided up among the victorious troops nothing would be left for future generations of Islam. Even if we take this explanation at face value it shows that Omar was thinking more of collecting tribute and levies from conquered lands rather than agricultural prosperity which was the main source of wealth in those times.

10 “Allah ordained the months twelve in number when He created the heavens and the earth. Of these four are sacred, according to the true faith. Therefore do not sin against yourself by violating them. But you may fight against the idolaters in all these months since they themselves fight against you in all of them. Know that Allah is with the righteous”. Qur’an 9:36. As I pointed out above in the period Islam was taking shape, the forbidden month of war were vital for the economy of Mecca and the security of the merchant caravans on the coast of the Red Sea. Islam could not establish itself among the Arab tribes without that. This is the reason the Qur’an gives official blessing to the lunar calendar of the Arabian tribes and even presents it as an eternal way of measuring time.

11 Taghi al-din Maqrizi, Khetat al-Asar. The 14th century historian, gives interesting insights on the means and ways of tax collection in various Islamic lands