The Erosion of Sharia

Last update: 2022-04-22 09:58:51

Al-Juwaynī imagines an Islamic world that no longer has either a caliph or the unitary government of an “imam of usurpation” or a sultan. Independent jurists capable of deriving new rules have died out and within Islamic Law it is mainly the worship-related precepts and family-law rules that remains alive. The alternatives are clear: either try to revive the independent jurists or recognize the autonomy of worldly realities.

 

Preface

 

8. As far as the content of the Law and its objectives, sources and derivations are concerned, the various rules and their subdivision into licit and forbidden may be reduced to two parts and are ascribable, as a whole, to two kinds. The first comprises that section of the Law that relates to government and the imams and all those set up in authority within the umma.[1] These assume the leadership, whilst the subjects receive the orders and carry them out. The second kind, on the other hand, comprises that part of the Law for which all Muslims with legal capacity (mukallaf) are autonomously responsible and that falls to anyone who has the power to act and is under legal obligation.

 

9. With God’s help and aid, by way of introduction I will expound in the first part – in various inter-connected chapters – the qualities requested of the imam, the ruler, the pastor and the judge. […] Then I will begin to examine the case of an era that may find itself without defenders of the religion or rulers of the Muslims. […]

 

10. From there I will pass to the second part, which will be useful to the specialist and the non-specialist alike, and in which I will explain how sharia rests on its transmitters, who individually shoulder its burden. They practice ijtihād[2] and, paying legal science the homage of piety and truthfulness, they constitute the [community’s] pillars and its reliable foundations. And yet, should there come a time when those foundations were lacking, we would need to remain calm and vigilant. But in such a case, to what could the servants[3] hold fast, in the raging sea of corruption? If men abandoned the middle path to give themselves over to excesses and Muslims were put to the test both by ulama whom they cannot trust because of their impiety and by ascetics whom they cannot imitate because of their foolishness, well, in such a case would it still be possible to find the right path or would people end up being tossed about here and there, calling each other to the edge of the abyss? How far shall I push myself in my lucubration, how far shall I cast certainties into doubt?

 

That which we feared has occurred / we belong to God and to Him we shall return.

 

The injustice of rulers has become widespread and has surpassed every limit. The ulama have lost their prudence and they have become totally engrossed with worldly vanities. The community’s leaders and the middle class have torn off piety’s snaffle and the cities are in a state of growing injustice and confusion. “Are they looking for aught but the Hour, that it shall come upon them suddenly? Already its tokens have come” (Qur’an 47:18).

 

Now, if I shall succeed in finding a prop for the religion and a support for Islam even when its distinctive features have been obliterated and its star seems to be waning, then I will have carried out a meritorious work, like the one who prepares the thrust block[4] in which the shaft of truth’s mill is placed.

 

 

[The Work’s Plan]

 

12. The Book is divided into three sections:

 

            - the first, on the imamate, with the appropriate sub-divisions;

 

            - the second, on the hypothesis that an era may find itself without imams or [legitimate]  community rulers; and

 

            - the third, on the hypothesis that the “sharia-bearers” may die out totally […].

 

Let us begin, therefore, with the imamate.

 

 

First Section – the Imamate

 

[What the Imamate is and Why it is Necessary to Establish Imams and Guides for the Community]

 

14. The imamate is supreme direction and general guidance, for the elite and the masses, in religious and worldly matters. Its task is to preserve propriety and watch over the well-being of subjects, to call to Islam through the proofs and by the sword, to put an end to dissent and iniquity, to bring justice to those who are oppressed by their oppressors, and to claim back rights from rebels and assign them to those who are entitled to them. […]

 

15. To establish an imam is a duty, when there is the possibility of doing so.

 

 

[Written Investiture]

 

41. When the Prophet’s Companions met on the Day of the Roof[5] to designate a guide and appoint a successor (khalīfa), opinions were divided and passions flared and […], in the havoc and confusion, people asked for a refuge in the shade of which they could find shelter and to whom they could entrust the task of binding and loosening and all the management of the community’s affairs. So they agreed to pledge allegiance to Abū Bakr. He assumed the function that he deserved, souls were appeased and the empty conjectures dissolved. Now, had they received news that ‘Alī had been appointed by the Prophet (and, by God, ‘Alī was well qualified to hold the office of imam), someone would certainly have got up and said, “Why are you cheating in the shadows and getting caught up in dubious lucubration, without knowing which party to choose? Why are you passing over the explicit designation indicated by the Author of the Law?” In short, it becomes immediately clear to everyone that had there been a written investiture, it would have been impossible to hide it and conceal it.

 

 

[Characteristics of the Imam Appointed to Preside over Muslims]

 

91. The characteristics required of imams may be divided into various parts:

 

-          those linked to the senses;

-          those linked to the limbs;

-          those connected to the necessary qualifications;

-          and those linked to acquired virtues.

 

 

[Lineage]

 

106. Amongst the necessary qualifications [for the imamate] there is lineage: indeed, the imam is required to belong to the Quraysh tribe.[6] Only Dirār Ibn ‘Amr[7] disagreed with this restriction but his assent or dissent doesn’t really count. Traditionists have passed down a hadīth according to which “Imams are from the Quraysh.” Some schools’ founders have stated that this hadīth is very widely known (mustafīd) and that, even if the chain of transmitters stops at a Successor,[8] it remains equally proven because the community has accepted and implemented it.

 

107. However, I personally do not like this way of reasoning because the hadīth in question has only been passed down by a few transmitters and has not acquired the status of a “notorious tradition” (mutawātir). Proof of this lies in the fact that in this, as in the other traditions passed down by a single reporter (āhād), we do not perceive that heartfelt conviction and that absolute certainty that the saying comes from the mouth of God’s Messenger. Therefore, this hadīth is not sufficient for inferring the necessity of lineage in the imamate.

 

108. The way to demonstrate what we are seeking to prove consists, rather, in observing that all those who have preceded us have always, and manifestly, reserved this office to the Quraysh, whereas no non-Qurayshi has ever had the distinction of acceding to the imamate, throughout the whole of history and the succession of times. And this despite the fact that, had that been possible, those who actually hold power would already have been doing so for some time. […] Furthermore, the imamate has, in the past, been assumed by Qurayshis who have behaved like kings,[9] lacking the level of religious knowledge desirable for exercising this function. The reason is that anyone who has even only a smattering of knowledge and a brilliant wit can claim to possess wisdom; and if the magnificence of kingship ends up in the hands of an ill-educated man, no one will manage to prevent him from assuming power. Lineage, on the other hand, cannot be fabricated and for this reason, no one who did not have an immaculate genealogy has claimed the imamate for himself. This is one way of demonstrating that lineage is one of the necessary qualifications.

 

109. Rationally, we cannot think that the imamate needs lineage. Nevertheless, God has reserved this elevated office and this noble function to people from the Prophet’s House. It has been a gift of God that He grants to whom He pleases.

 

 

Second Section – The Imamate of Usurpation

 

436. The discussion concerning an era lacking a legitimate imam is divided into three chapters.

 

First hypothesis: disappearance of the qualifications required of the imam, collectively and singly.

 

Second hypothesis: usurpation by a candidate who has the means, the strength and the power [to rule].

 

Third hypothesis: dawning of an era lacking rulers, either in their own or in another’s name.

 

 

[An Era Lacking Rulers]

 

560. As far as the goods entrusted to the imams are concerned, if an era ends up lacking an imam and is without a strong, skilful and capable authority,[10] such goods are entrusted to the ulama. Men, in their various classes, have a duty to refer to the ulama, who will express their opinion on all the issues of government. If they act in this way, they will be guided to the right path and the country’s ulama will become their rulers.

 

561. If it is difficult to unite the ulama in one single place, the inhabitants of every region and district will follow their own particular ulama. If there are many ulama in one region, the one who is most learned must be followed. Should they all be of the same level (a case that almost never arises), they could be in agreement. In this case too, it is nevertheless impossible for all of them to give their opinion, because of the contradictory nature of requests and legal opinions, and so the best thing is for ulama to agree between themselves to select one of them.

 

However, should they argue between themselves to the point that they reach a state of open discord, the solution for ending the dispute would, in my opinion, be to draw lots, so that the person who is drawn is selected.

 

 

Third Section – If “Sharia-Bearers” were to Die Out Totally

 

568. With God’s help and His assistance, His favour and support, I shall now set about organizing this section into various levels, clarifying that which is most appropriate at each stage. We will start out, first of all, from the hypothesis that an era may rely on its muftis.[11] Then we will hypothesize that the independent mujtahids[12] disappear but that there remain scholars who preserve and pass on the doctrines of the legal schools of the past. Then we will imagine an era in which all reliable transmitters of the schools’ legal opinions disappear but the general features of the Law persist and at least the pillars of religion remain known amongst Muslims. Finally, we will go into the whole discourse of sharia’s erosion and the obliteration of its bases, in order to understand whether, in such a case, people gifted with reason would still have to submit to divinely imposed duties. The levels in which I intend to structure this section are therefore four in number.

 

 

[If an Era Should Lack Sharia’s Fundamentals]

 

838. We have considered the case in which knowledge of sharia’s details should disappear but the memory of its fundamentals should remain alive. I would now like to examine the case in which sharia’s fundamentals should also disappear. Several of our ulama have maintained that this can never happen: sharia’s fundamentals would remain unchanging throughout the whole succession of eras, until the day when the Judgement trumpet will be blown. In support of this thesis, they have appealed to the divine Word: “It is We who have sent down the Remembrance, and We watch over it” (Qur’an 15:9).

 

839. This reasoning is not satisfactory, however, because the verse in question speaks of the Qur’an and of how it is safeguarded from every alteration and change, amendment and transformation. Conversely, traditions have reached us that speak of the demise of sharia, the obliteration of the laws of Islam and the disappearance of the criteria for discernment, as the number of ulama decreases. The Prophet said, “Knowledge will decrease to the point that two men will begin to argue about a precept and they will not find anyone who knows the relevant divine rule”.[13]

 

840. The most satisfactory opinion therefore seems to be that the possibility of sharia’s fundamentals being obliterated is a remote one in the short term: if the world no longer follows its regular customs[14] and if the day of the Resurrection should rise shortly, there is no need of these evaluations. But if things take a longer time, it cannot be excluded that, in the order of things, sharia experiences a progressive erosion until it is totally obliterated. Indeed, in the order of things, religious and worldly realities have a beginning, grow until maturity and then decline and diminish until they wholly disappear, as if they had never existed.

 

841. We may also show what we have in mind through an image. Let us suppose that a group of people lives on an island in the middle of the sea. [True religion] is proclaimed to them and the proof of prophecy shines forth, so that they profess the divine Oneness and the prophecy. However, they do not receive any information about the Law’s fundamentals and they have no way of accessing ulama who are experts in sharia. Now, according to the doctrines of the People of Truth [the Sunnis], reason does not know how to recognise what is licit and what is illicit and is not able to grasp the issues relating to the legal duties.

 

842. This principle is amongst the most arduous and it is a slippery enigma for the majority of people. Were I to enter into it, the glosses I would have to add would expand out of all proportion to the point of becoming a second book as big as this one. I shall therefore content myself with mentioning this point of doctrine in order to block the way to those who go in search of harder passages over the great sea of discourse.

 

843. What interests us now is that the people under consideration would only be bound to believe in monotheism and in the prophet who is sent to them, training their souls to a better understanding in future, insofar as it will be possible for them. By this I do not wish to deny that their reason will guide them, in matters of a natural character, to abstain from the things that lead to ruin and to keep away from things that cause death, but I do not judge that the divine law is binding on their reason.

 

844. Coming, finally, to the point I wished to demonstrate, I therefore maintain that if sharia’s branches and roots disappear, so that there is no longer any support, then the servants’ legal obligations end and their condition becomes identical to that of those who, not having received any announcement, are not bound by any Law.

 

Al-Juwaynī, al-Ghiyāthī (Ghiyāth al-umam fī iltiyāth al-zulam), edited by ‘Abd al-‘Azīm al-Dīb, Matba‘at nahdat misr, al-Qāhira 1401 (=1981).

 

Excerpts selected and translated into Italian by Martino Diez. English translation by Catharine de Rienzo. The translation has been revised on the Arabic original by M. Diez.

 

The opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of the Oasis International Foundation

 

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[1] The Muslim community.

[2] Independent reasoning, carried out by qualified scholars of the Law.

[3] The expression means “humankind” insofar as they are God’s servants but I have preferred to keep the image contained in the Arabic term, both here and at the end of the text.

[4] The support into which the mill-shaft is inserted.

[5] This is the name that the Islamic tradition gives to the tumultuous meeting at which, on the day of Muhammad’s death (8 June 632), Abū Bakr was chosen as his successor.

[6] This is the tribe to which Muhammad belonged.

[7] A Mu‘tazilite scholar with ascetic tendencies. He died around the second decade of the ninth century.

[8] By “Successor” is meant a Muslim from the generation after Muhammad, whereas a Companion is a Muslim who was a contemporary of Muhammad.

[9] The allusion is to the Umayyads. In Islamic political language, when not referring to God, the term “king” generally indicates a temporal ruler lacking religious legitimation and showing despotic tendencies.

[10] Sultān, in the Arabic. The term also indicates the concrete figure of the sultan.

[11] Legal scholars qualified to issue legal opinions (fatwas).

[12] Legal scholars capable of independent reasoning (ijtihād).

[13] The hadīth is quoted ad sensum and is documented in various versions in the sources. In that of al-Tayālisī (d. circa 819), it states, “From ‘Abd Allāh Ibn Mas‘ūd. God’s Messenger said, ‘I am a man destined to die. Learn the Qur’an and teach it to the people, learn [religious] knowledge and teach it to the people, learn the precepts and teach them to the people, because I am a man destined to die and the knowledge, too, will decrease: disagreement will appear to such an extent that two men will begin to argue about a precept and they will not find anyone who knows how to resolve their difference’” (see al-Busīrī, Ithāf al-Khayra, Kitāb al-farā’id, Bāb al-hathth ‘alā ta‘līm al-farā’id, edited by Abū ‘Abd al-Rahmān ‘Ādil Ibn Sa‘d and Abū Ishāq al-Sayyid Ibn Mahmūd Ibn Ismā‘īl, vol. 4, Maktabat al-Rushd, al-Riyād, 1998, nos. 4068-4070, pp. 399-401).

[14] Like all the Ash‘arites, al-Juwaynī wishes to avoid speaking of “natural laws”. For this reason, I have translated his expression as “regular customs” and, a little further below, as “order of things”.

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• oasis 25
• sharia
• quranic exegesis