by Reza Aslan
But there is an even larger obstacle to using the Sunna of the Prophet as a primary source of law. As rigorous as scholars like al-Bukhari and Ibn al-Hajjaj were in scrutinizing each hadith for the signs of correct transmission, the fact is that their method lacked any attempt at political or religious objectivity. The bulk of what are considered to be sound traditions were deemed so not because their isnads were particularly strong, but because they reflected the majority beliefs and practices of the community. In other words, the hadith were collected, and the Sunna developed, specifically to create a sense of Islamic orthodoxy and orthopraxy by legitimizing those beliefs and practices that were already widely accepted by the majority of the Ulama, and eliminating those that were not. While some hadith may in fact contain an authentic historical core that can be traced back to the Prophet and his earliest Companions, the truth is that the Sunna is a far better reflection of the opinions of the ninth-century Ulama than of the seventh-century Ummah. After all, to quote Jonathan Berkey, “It was not Muhammad himself who defined the Sunna, but rather a memory of him.”
Reliable or not, the Sunna was grossly inadequate for addressing the myriad legal issues that arose as Islam expanded into an empire. A number of other sources had to be developed to cope with those concerns not expressly dealt with in the Quran and the Sunna. Chief among these was the use of analogical arguments, or qiyas, which allowed the Ulama to draw parallels between their community and Muhammad’s when responding to new and unfamiliar legal dilemmas. Of course, analogies can be stretched only so far and, in any case, the Traditionalist-dominated schools of law were wary of placing too much emphasis on reasoning over Revelation. So while qiyas remained a vital tool in the development of the Shariah, the Ulama ultimately grew far more dependent on the fourth source of law: ijma, or “juridical consensus.”
Relying on the Prophet’s saying that “my community will never agree on an error,” the Ulama posited that the unanimous consensus of the legal scholars of a particular age on a particular issue could create binding legal decisions, even if those decisions seemed to violate Quranic prescriptions (as was the case with the practice of stoning adulterers). Like the Sunna, ijma was developed specifically to create orthodoxy among the Muslim community. But more importantly, ijma served to consolidate the authority of the Ulama as the sole determiners of acceptable Muslim behavior and beliefs. Indeed, it was primarily through the use of ijma that the schools of law were formed.
Unfortunately, as these schools became firmly institutionalized in the Muslim world, so did their legal judgments, so that eventually the consensus of one generation of scholars became binding for successive generations, with the result that the Ulama gradually became less concerned with developing innovative solutions to contemporary legal problems and more occupied with what in Islam is referred to derisively as taqlid—the blind acceptance of juridical precedent.
One other major source of law must be mentioned. During the formative stages of the Shariah, it was commonly believed that when the Quran and the Sunna were silent on an issue, and if analogy and consensus had failed to deliver a solution, a qualified legal scholar could use his own independent juristic reasoning to issue a legal ruling, or fatwa, which could then be accepted or rejected by the community as they wished. Known as ijtihad, this was an absolutely vital source of the law until the end of the tenth century, when the Traditionalist Ulama, who at that time dominated nearly all the major schools of law, discouraged it as a legitimate tool of exegesis. The “closing of the gates of ijtihad,” as this action has been called, signaled a major (albeit temporary) setback for those who held that religious truth, as long as it did not explicitly contradict the Revelation, could be discovered through human reason.
By the beginning of the eleventh century, what began as ad hoc gatherings of like-minded Ulama had become crystallized into legal institutions empowered with the binding authority of God’s law. The modern Sunni world has four main schools. The Shafii School, which now dominates Southeast Asia, was founded on the principles of Muhammad ash-Shafii (d. 820), who held the Sunna to be the most important source of law. The Maliki School, which is primarily observed in West Africa, was founded by Malik ibn Anas (d. 795), who relied almost exclusively on the traditions of Medina in forming his opinions. The Hanafi School of Abu Hanifah (d. 767), which prevails across most of Central Asia and the Indian subcontinent, is by far the largest and most diverse legal tradition with regard to breadth of interpretation. And finally, the Hanbali School of Ahmad ibn Hanbal (d. 855), the most traditionalist of the legal schools, can be found in pockets throughout the Middle East, but tends to dominate ultraconservative countries like Saudi Arabia and Afghanistan. Added to this group is the Shi‘ite school of law founded by Ja‘far as-Sadiq (d. 765), which will be dealt with in the following chapter.
The Ulama associated with these schools entrenched themselves as the sole authority of acceptable Islamic behavior and the sole interpreters of acceptable Islamic beliefs. As these schools of thought gradually transformed into legal institutions, the diversity of ideas and freedom of opinion that characterized their early development gave way to rigid formalism, strict adherence to precedent, and an almost complete stultification of independent thought, so that even by the twelfth century, Muslim thinkers like al-Ghazali (himself a Traditionalist) began decrying the Ulama’s assertion that “whoever does not know scholastic theology in the form [the Ulama] recognize and does not know the prescriptions of the Holy Law according to the proofs which they have adduced is an unbeliever.” As we shall see, al-Ghazali’s complaint against the Ulama is as applicable today as it was nine hundred years ago.
In the modern era, as questions of individual religious obligation have entered the political realm, the Ulama’s ability to define the public discourse regarding correct behavior and belief has increased dramatically. They have even managed to broaden their audience by playing a far more active role in the political developments of the Middle East. In some Muslim countries, including Iran, Sudan, Saudi Arabia, and Nigeria, the Ulama exert direct political and legal control over the populations, while in most others, they indirectly influence the social and political spheres of society through their religious edicts, their legal rulings, and, most notably, their stewardship of Islam’s religious schools, or madrassas, where generation after generation of young Muslims are often indoctrinated in a revival of Traditionalist orthodoxy, especially with regard to the static, literalist interpretation of the Quran and the divine, infallible nature of the Shariah. As one Pakistani teacher and scholar recently argued,
The Islamic law has not come into being the way conventional law has. It has not had to undergo the same process of evaluation as all the man-made laws have done. The case of the Islamic law is not that it began with a few rules that gradually multiplied or with rudimentary concepts refined by cultural process with the passage of time; nor did this law originate and grow along with the Islamic community.
As a matter of fact, that is exactly how the Shariah developed: “with rudimentary concepts refined by cultural process with the passage of time.” This was a process influenced not only by local cultural practices but by both Talmudic and Roman law. With the exception of the Quran, every single source of Islamic law was the result of human, not divine, effort. The early schools of law understood this and so represented nothing more than trends of thought that existed within the Muslim community. The sources from which these schools formed their traditions, especially ijma, allowed for the evolution of thought. For this reason, the opinions of the Ulama—whether Rationalist or Traditionalist—were constantly adapting to contemporary situations, and the law itself was continually reinterpreted and reapplied as necessary.
Regardless, none of the legal decisions made by any of these schools of law were binding on individual Muslims. In fact, until the modern period, it was common for believers to switch their allegiance from one school to another at their pleasure, and there was nothing expressly prohibiting a Musli
m from accepting Maliki doctrine on some issues and Hanafi doctrine on others. So it is simply unreasonable to consider what is so obviously the result of human labor, and so plainly subject to changing human biases, to be the infallible, unalterable, inflexible, and binding sacred law of God.
Even the most cursory analysis of the development of the Shariah demonstrates how both the law and the Revelation grew “along with the Islamic community.” The Quran itself clearly indicates that while its message is eternal, it was revealed in response to very specific historical situations. The more Muhammad’s community evolved, the more the Revelation changed to adapt to its needs. Indeed, during the twenty-two years of Muhammad’s ministry, the Quran was in an almost constant state of flux, sometimes altering dramatically depending on where and when a verse was revealed, whether in Mecca or Medina, whether at the beginning or the end of Muhammad’s life.
Occasionally, these changes led to what appear to be significant textual contradictions. For example, the Quran initially took a somewhat neutral stance on the drinking of wine and the practice of gambling, claiming that in both “there is great sin and some benefit for people, though the sin is greater than the benefit” (2:219). A few years later, another verse was revealed that, while still not prohibiting drinking and gambling, urged believers to refrain from gambling and not to “come to prayer while intoxicated” (4:43). Some time after that, however, the Quran explicitly outlawed both drinking and gambling, calling them “acts of Satan” and associating them with idolatry, the greatest sin (5:90). In this way, the previous verses, which condemned but did not forbid drinking and gambling, appear to have been abrogated by another, later verse, which unambiguously prohibited both.
Quranic scholars call this abrogation of one verse with another naskh, claiming that it demonstrates that God chose to introduce important sociological changes to Muhammad in stages, thereby allowing the Ummah to adjust gradually to the new moral ethos. But if naskh demonstrates anything, it is that while God may not change, the Revelation most certainly did, and without apology: “Whenever We abrogate a verse or cause it to be forgotten,” the Quran says, “We exchange it with a better or similar one; don’t you know that God can do anything?” (2:106; see also 16:101).
The Prophet himself sometimes openly suppressed or negated older verses, considering them to have been replaced by newer ones. That is because Muhammad did not consider the Quran to be a static Revelation, which may be why he never bothered to authorize its collection into a codified book. The Quran was for Muhammad a living scripture that consciously evolved alongside the Ummah, continually adapting itself to meet the specific needs of the developing community. In fact, an entire science of commentary called asbab al-nuzul (“the reasons for, or causes of Revelation”) developed soon after Muhammad’s death in order to determine the specific historical circumstances in which a certain verse was revealed. By tracking the changes in the Revelation, the early Quranic interpreters were able to create a helpful chronology of its verses. And what this chronology most clearly indicates is that God was rearing the Ummah like a loving parent, instructing it in stages and making alterations when necessary, from the first Revelation in 610 to the last in 632.
Of course, with Muhammad’s death, the Revelation ceased. But that does not mean that the Ummah stopped evolving. On the contrary, the contemporary Muslim community—nearly a billion and a half strong—bears almost no resemblance to the small community of faith that Muhammad left behind in seventh-century Arabia. While the Revelation may have ended, the Quran is still a living text and must be treated as such. The notion that historical context should play no role in the interpretation of the Quran—that what applied to Muhammad’s community applies to all Muslim communities for all time—is simply an untenable position in every sense.
Nevertheless, the heirs of Traditionalism have managed to silence most critics of reform, even when that criticism has come from their own ranks. When in the 1990s Nasr Hamid Abu Zayd, a Muslim professor at Cairo University, argued that the Quran, while divinely revealed, was a cultural product of seventh-century Arabia, he was branded a heretic by the conservative-dominated Ulama of Egypt’s famed al-Azhar University and forced to divorce his Muslim wife (the couple fled Egypt together). When Mahmoud Mohamed Taha (1909–85), the renowned Sudanese legal reformer, claimed that the Meccan and Medinan texts of the Quran differed so greatly from one another because they were addressed to very specific historical audiences and should be interpreted as such, he was executed.
As will become apparent, the debate over the nature and function of the Quran and the Shariah has in no way ended. Indeed, contemporary Muslim scholars such as Abdolkarim Soroush, Tariq Ramadan, Abdullahi An-Na’im, Amina Wadoud, Khaled Abou El Fadl, and many others have been vigorously pushing the Muslim community to reopen the gates of ijtihad and revive the rational exegesis of the Quran. Nevertheless, the dominance of the Traditionalist position continues to have devastating consequences for the development and progress of law and society in modern Islam.
The problem is that it is practically impossible to reconcile the Traditionalist view of the Shariah as a sacred and divinely revealed set of laws requiring no human interpretation or historical context with the requirements of a modern constitutional state, let alone the most minimum standards of democracy and human rights. The principal fallacy of the Traditionalist position lies not in the utterly false notion that the Shariah is a fixed and ahistorical legal code. As we have seen, there can be no question whatsoever that the Shariah was developed within a clear historical context, that it evolved in response to specific historical circumstances, and that it was privy to the same social, political, and economic factors that have influenced all legal codes in all cultures and in every part of the world. Anyone who claims otherwise is either wholly ignorant of Islamic history or simply delusional. No, the principal error of the Traditionalists is the intolerably heretical belief that a constantly changing and obviously man-made legal tradition built upon the wildly conflicting interpretations of half a dozen competing schools of law, each of which relies on drastically different textual and historical sources, should be treated as sacred and divine. Such a belief is, in a word, shirk.
There is absolutely nothing divine about the Shariah and in no way can it possibly be considered fixed and infallible. The argument that the Shariah derives its divine nature from its first and primary source, the Quran, falls flat when one recognizes that the Quran, unlike the Torah, is not a book of laws. The Quran is God’s direct self-revelation to humanity. Certainly, it contains the moral framework for living a holy and righteous life as a Muslim. But it was never meant to function as a legal code, which is precisely why scholars had to rely so heavily on extra-Quranic sources like ijma (consensus), qiyas (analogy), istislah (which refers to the common good of the people), and ijtihad (independent juristic reasoning)—all of them, by definition, reliant on human judgment and historical context—in order to construct the Shariah in the first place. To say the Shariah is divine because the Quran is divine is akin to arguing that water and wine are the same, since water is a primary ingredient in wine.
So then, when it comes to incorporating the Shariah into its legal systems, a modern Islamic state has only three options. It can fully apply a Traditionalist understanding of Shariah to the state with no attempt either to modernize it or adapt it to contemporary norms of law and society, as Saudi Arabia and Afghanistan under the Taliban have done. It can accept the Traditionalist view of Shariah and declare it a legitimate source of civil law but choose to ignore it in all but the most obvious family, divorce, or inheritance cases, as Egypt and Pakistan do. Or it can attempt to fuse the traditional values of the Shariah with modern principles of constitutionalism and the rule of law through a comprehensive reform methodology that takes into account both its historical context and its evolution at the hands of human beings. Iraq’s burgeoning democratic experiment notwithstanding, thus far only one Islamic state has seriously considered the
latter option.
For more than thirty years, the Islamic Republic of Iran has been struggling to reconcile popular and divine sovereignty in an attempt to construct an Islamic state dedicated to pluralism, liberalism, and human rights yet founded upon a distinctly Islamic moral framework. It has been a difficult, violent, and hitherto unsuccessful endeavor, one that has been derailed both by external forces and by the corruption and ineptitude of the country’s own religious and political authorities. Whether the Iranian experiment will ultimately prove successful remains to be seen. However, not since the Prophet Muhammad attempted to build a new kind of society in Medina has a more significant experiment in nation building been attempted.
Of course, Iran is a special case. The Iranian Islamic ideal is a patently Shi‘ite one, and from their inception as a political movement with the aim of restoring the Caliphate to the family of the Prophet to their rise as a separate religious sect in Islam with its own distinct beliefs and practices, the Shi‘ah have always done things differently.
7. In the Footsteps of Martyrs
FROM SHI‘ISM TO KHOMEINISM
EARLY IN THE morning on the tenth day of the Islamic month of Muharram, in the sixty-first year of the Hijra (October 10, 680 C.E.), Husayn ibn Ali, grandson of the Prophet Muhammad and the de facto head of the Shi‘atu Ali, steps out of his tent one last time to gaze across the vast, withered plane of Karbala at the massive Syrian army encircling his camp. These are the soldiers of the Umayyad Caliph, Yazid I, dispatched from Damascus weeks ago with orders to intercept Husayn and his party before they can reach the city of Kufa, where a brewing rebellion awaits his arrival.