The comprehensiveness of religious content in islamic law

Ritual and secular concerns coexist in Islamic law. De Wael illustrates this fact by noting that the law may deem a prayer invalid or a sale reprehensible.16 Coulson cites the law's prohibition of pork, intoxicants and usury. He observes further that Islamic law invalidates sales contracted at the time of Friday congregational prayers, threatens hellfire for one who misappropriates an orphan's wealth, and portrays a wife's conjugal obedience as virtuous.17

The law's fundamental concern with ritual is evident from the ''five pillars'' (declaration of faith, prayer, alms-tax, fasting, and pilgrimage). It extends to the definition of the clean and unclean, the unlawfulness of certain foods and drinks, and criteria for the slaughter of lawful meats.

The religious content of the law bears on other matters of secular consequence. Oaths and vows are technically matters of private conscience but often create the legal obligation of full implementation. The law sets guidelines for the dress of men and women. It declares the institution of marriage to be ''half the religion'' and intervenes in numerous issues of family law. The alms-tax requires set weights and measures as well as definitions of monetary units; it also calls for adequate accounting practices. The law's ethical concerns extend into the marketplace and even the world of banking and commerce.

Despite Islamic law's comprehensiveness, it distinguishes carefully between the ritual (non-secular) and the non-ritual (secular). Ritual acts require a good intention, while non-ritual acts require no conscious intention at all. Non-ritual acts need only conform to the formal provisions of the law, although any valid non-ritual act can be transformed into an act of worship in the sight of God if it is performed with a religious intention. Thus, a commercial enterprise undertaken with the aim of alleviating poverty for God's sake would be elevated to an act of immense religious merit.

As a rule, Muslim jurists considered strictly ritual matters to be beyond the purview of reason. Non-ritualistic matters, on the other hand, were accessible to reason, and such matters constitute the greater part of the law. Thus, ''rationalism'' is in a sense one of the law's basic characteristics. An important maxim states that ''the foundational principle [of the law] is to have rationales (al-asl al-ta'lil)''. Ritual matters are an exception to this rule because of their intrinsic connection to the spiritual realm. They relate to the purification of the soul and winning God's pleasure. Fundamentals of ritual like the formalities of prayer or the rites of pilgrimage stand as they are and are not open to significant modification. Secular matters, on the other hand, fall clearly within the domain of ijtihad (legal interpretation) and legal review because they have rationales.

Naturally, the distinction between the ritual and the non-ritual is not always clear-cut. For example, the schools of law differ regarding religious ablutions. Most jurists hold them to be strictly matters of ritual, while others regard them as essentially a means to promote bodily cleanliness. On the first view, the act of ablution requires a conscious intention,on the second, it does not. The alms-tax displays the same ambiguity, since it serves the very tangible purpose of assisting the poor, debtors and the needy. Jurists who regard the alms-tax as strictly an act of ritual hold that attainment of legal majority is a prerequisite, since obligatory ritual acts generally require legal majority. For those who regard the alms-tax as falling somewhere between the ritual and nonritual, it is defined as essentially a right of the poor binding upon the wealth of the rich. For them, legal majority is not relevant.

Whether acts are ritual or non-ritual in nature, Islamic law assesses all acts according to five classifications: obligatory, recommended, neutral, disliked and forbidden. Western writers often cite this ethical taxonomy as indicative of Islamic law's essentially religious nature. Because the five categories embrace everything human, Gibb regards them as moral rather than juridical categories.18 According to Schacht, they transform ''law proper'' into a system of religious duties, although he observes that they also guarantee ''unity in diversity''.19

Islamic law designates certain rulings as divine ''limits'' (hudud), which include rituals but extend beyond them to punishments and other matters. The hudud denote all matters fixed by revelation. Generally speaking, they are formally applied as they were revealed. Those hudud that overlap with non-ritual categories may, however, be open to judicial review and modification in some cases. Inheritance lots are among the hudud, because they are specified in the Qur'an. The restriction of polygamous unions to four women falls within the same category. All punishments set by revelation (for adultery, slander, theft and brigandry) are hudud. Most criminal law, however, lies outside the hudud and belongs to the category of ''disciplinary acts'' (ta'zir), which are determined in accordance with public interest, and are open to adjustment and judicial review. The enforcement of all punishments, whether hudud or ta 'zir, is permissible only within an Islamic jurisdiction, and there is consensus among jurists that it is impermissible for Muslims to exact Islamic punishments in a non-Muslim state.

Islamic law divides legal obligations into two categories: the ''rights of God'' (huquiq Allah) and the ''rights of humanity'' (huquq al-'ibad). Rights of God entail all non-negotiable obligations, whether of a ritual or a non-ritual nature. The ''rights of humanity'', on the other hand, allow for options and modifications at the behest of rightful parties. In Islamic jurisprudence, the purpose of the rights of God is to uphold the ultimate objectives of the law: the preservation of religion, life, intellect, children and property.

All hudud are rights of God, as are most other obligations established by revelation. It is a right of God that binding contracts be written in unambiguous language. The claim of the poor to adequate sustenance and the obligation to give homeless children adequate care are rights of God. Forbidden acts may also fall under this rubric, including the prohibition of bribes or of legacies that jeopardise the interests of lawful heirs.

Debts and warranties, on the other hand, belong to the rights of humanity, because they may be pardoned or written off. Punishments for slander and murder fall into this grouping. The slandered party may pardon the abuse and not seek legal action. Exacting punishment for murder also falls into this category, since the right to execute the guilty party rests not with the judge but with the victim's next of kin or guardians, who are given the option of granting full absolution or a partial pardon with financial compensation. Imprisonment and other forms of punishment short of execution, however, fall within the jurisdiction of the court. In the case of murder, the rights of God and humanity are said to overlap, since some degree of judiciary punishment is regarded as God's right.

Given the religious nature of Islamic law, the issue of innovation (bid'a) is critical. Bid'a carries negative, neutral and positive meanings. Its fundamental purpose is to serve as a regulatory mechanism to keep legal developments in conformity with Islamic principles; but this is counterbalanced by the creative imperative of ijtihad to enact new rulings and review older ones. For the majority of classical jurists, any core revision of credal axioms and ritual acts constituted bid'a in the negative sense. For many jurists, the domain of bid'a was restricted to matters of belief and ritual and did not include worldly affairs. The notion that bid'a stood for the categorical prohibition of change in ritual and non-ritual matters alike was regarded as absurd in traditional Islamic law. On the contrary, innovation in the practical disciplines of the world, like crafts and urban development, was required, and here bid'a took on a positive sense.20

Bid'a covered a range of different meanings in classical Islamic jurisprudence, since the varieties of bid'a fell within the five ethical categories of the law. Certain types of bid'a were prohibited or disliked, but others were obligatory, recommended or simply considered to be neutral. When tobacco-smoking first appeared in the Muslim world, some jurists classified it as a forbidden bid'a, while others held it to be reprehensible, depending on their estimation of its effect on health and other considerations. The establishment of educational institutions was assessed as an "obligatory" innovation (there had been no such institutions during the prophetic period). Shading marketplaces from the heat of the summer sun was a "recommended" bid'a, while novel refinements in food and drink were "neutral" as long as they were not excessive.

Ijtihad, on the other hand, was a dynamic, forward-looking component of the law. As Weiss observes, it demonstrated that God's law was not meant to be passively received and applied.21 Santillana notes in his analysis of the ancillary instruments of ijtihad that the point of departure of the entire system was that God had instituted laws for the well-being of society and the individual. Human beings were not made for the law; the law was made for human beings.22

The domain of ijtihaad encompassed non-ritual matters, since they had legal rationales and were open to review and modification according to circumstance. One maxim (qa'ida) of Islamic law stated: "Modifications of legal judgements will not be denounced when they reflect changing times, places, and circumstances.''23 A famous statement of the Prophet declared: ''If a judge performs ijtihad and gets the right answer, he receives two rewards. If he is [honestly] mistaken, he gets one. ''24

Ijtihaad was seen as a standing obligation in Islamic law; to neglect it was not merely a cause for censure but also an act of disobedience to God.25 The widespread notion that the ''door of ijtihad was closed'' in later centuries as a matter of theological principle has been shown in recent scholarship to be without historical foundation.26

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