Book Summary (Part 1): Comprehensiveness of the Shariah – Discussions on Extents of Legal Reference Between Intellect and Revelation
Finally got myself to completely read the book Shumūl al-Sharī‘ah (Comprehensiveness of the Shari‘ah – Discussions on Extents of Legal Reference Between Intellect and Revelation) by Shaykh Haider Hobbollah this summer. Though I had read some sections of it over the past two years, there was still a huge chunk of the book that deserved to be read. The published book is around 820 pages and it is a very heavy read, definitely requiring you to take notes as you go along. As a lot of the crucial and contemporary discussions in this book are not very accessible in English, what follows below is a summary of the contents of the book.
The book is divided into five sections:
- Chapter One: The concept of al-Shumūl al-Tashrī‘ī (comprehensiveness of the divine law) and the evidence for and against it. This section ends at page 254.
- Chapter Two: Proponents of al-Shumūl al-Tashrī‘ī and the Problem of Fixed and Changeable (al-thābit wa al-mutaghayyir). This section ends at page 448.
- Chapter Three: Proponents of absence of comprehensiveness of divine law and theories on the limited role of Sharī‘ah. This section ends at page 744.
The most crucial sections are chapter one, two and three, where the crux of the discussion takes place. The book begins with the traditional practice of defining all terms as precisely as possible, boiling down the idea of “comprehensiveness of the Sharī‘ah” into four possible meanings:
- For every human action, there is divine legislation (ḥukm shar‘ī) by Allah (swt).
- For every individual or societal circumstance, the Sharī‘ah has something to say about it – it has not left such legislation in the hands of humans – which is then to be reflected in the actions of that individual or society.
- The Sharī‘ah has legislated laws for a large aspect of our lives, but not for every single aspect of reality. This is because Allah (swt) Himself knows that it is with these limited laws humans will progress and reach perfection, and beyond that, there is no reason for Allah (swt) to have legislated laws Himself.
- For every aspect of human life – whether the Shari‘ah has anything to say about it explicitly or not – there is no fundamental and primary recourse for law except Allah (swt). Any other source of legislation, which is not to be attributed to Allah (swt) and His (swt) religion, still has to have been granted permission by Allah (swt) Himself.
The vast majority of Muslims have and continue to believe in the first or second definition, whereas what Shaykh Haider concludes through the course of his research is the fourth definition. Historically it is important to note that though there are no independent written works on the concept of the Sharī‘ah being comprehensive, many Muslim jurists from the 2nd-century hijrī onwards had realized this problem, with what they termed as circumstances where there was no naṣṣ (lā naṣṣ fīh). The problem was defined by the notion that the traditions and the Qurānic verses are limited, yet worldly phenomenon is ever-changing, and new issues keep arising. In these earlier centuries, some jurists who later ended up being consolidated as the Ahl al-Sunnah resorted to qiyās and other alternatives as a solution to this problem.
By the dawn of the 20th century as the Muslim world encountered the modern world, this question became ever so pressing. Is it possible that a religion that offers such extensive details on how to use the toilet, how to purify yourself, laws concerning marital life, business transactions, renting etc. has absolutely nothing to say about environmental laws, fishing laws, laws concerning space travel and many other aspects of modern life? Is this all just a coincidence? What theories and solutions did Muslim scholars offer for this challenge?
After outlining these four definitions, the book begins looking at all the evidence used to prove the first or second definitions. Given that such a view has been taken for granted, there are no independent works written on this subject over the last 12-13 centuries, and hence these arguments have to be extracted from different sections of different works, where scholars may have alluded to it.
The arguments were divided into four categories:
1) Rational – ten arguments are cited and each of them is critiqued. I will point out just two of these arguments:
i) Pages 53-56 discusses this argument: Islam is a “complete religion” that has a positive or negative stance against every aspect of one’s life, and that it is the final religion from Allah (swt).
Response: This is nothing but begging the question because claiming that Islam is a “complete religion” is another way of saying it is a comprehensive religion. Secondly, what is the relationship between being the “final” religion and having complete comprehensiveness for every act of one’s life?
ii) Pages 56-58 discusses this argument: The intellect cannot conceive of an instance in life where a legislated law cannot exist. In other words, God either legislates a law that is obligatory, prohibited, recommended or detested and if none of these are legislated then by default there will be a law legislating permissibility.
Response: This argument completely ignores the fact that we are not discussing external acts and whether they are preferred or not, and neither whether Allah (swt) knows of them being preferred or not. Rather we are discussing legislation – despite His knowledge – and whether this legislation concerns us or not. In other words, this argument focuses on the state of criterion (milāk) in the realm of permanence (thubūt) which is not sufficient to make the jump that there is also legislation after it.
What strengthens this response is that numerous scholars confirm that the Islamic Shari‘ah was not complete in the Meccan period, rather it was completed at the end of the Medani period, or that the Shari‘ah was never completed until the arrival of Muḥammad (p), while at the same time they do not deny that Allah’s knowledge with respects to what is good and bad still existed, even before the Meccan period. Why do they not say that the Shari‘ah was complete during the Meccan and Medani period? On the contrary, the verse of the Qurān [5:3] is very clear in saying “today I have completed your religion,” indicating that Allah’s (swt) knowledge does not necessitate legislation.
3) Consensus, Popularity and Practice of the Religious People
In conclusion, the book argues there is no rational, intellectual, theological, or philosophical argument for the comprehensiveness of the Sharī‘ah for every single aspect of one’s life. Hence such a presumption should not be considered when reading the Qurānic and Ḥadīth texts. In fact, the Qurānic arguments and as well as the arguments from the ḥadīth allude more towards definition four as aforementioned.
Ultimately, the argument is made that in such a situation where the Sharī‘ah is not concerned with every aspect of our life – for example, there is nothing in the Sharī‘ah about environmental or fishing laws – then in these cases the legislative authority has been granted to the intellect of the believer with the major difference that these laws themselves cannot be attributed to Allah (swt) or His (swt) religion.
In chapter two, the book discusses the different responses and theories proponents of a comprehensive Sharī‘ah according to the first or second definition have given in order to resolve the undeniable reality of the world which is that some aspects of this world life are fixed, while other aspects are changeable. In other words, how does a fixed and comprehensive Sharī‘ah deal with this complex problem of change in this world. Three major theories are discussed:
First Theory: This theory originates in the work Tanbīh al-Ummah wa Tanzīh al-Milla (The Awakening of the Community and Refinement of the Nations) of Mīrzā Nā’inī (d. 1936) written during the time of the Persian Constitutional Revolution. Later scholars who built upon this theory or offered a different version of it were ‘Allāmah Ṭabāṭabā’ī, Shahīd Muṭahharī, Shahīd Ṣadr’s Manṭaqah al-Farāgh and Shaykh ‘Alī-Dūst. The essence of all versions of this theory and the different ways they are being justified is that some sort of authority is being granted to the Walī Amr (an individual or group vested with political authority) to legislate law for cases where there is no Qurānic verse or Ḥadīth, or to alter laws based on expediency, and that these laws are attributable to Allah (swt) and Islam.
In this section of the book a lengthy discussion is held on the concept of al-ḥukm al-ḥukūmī/al-ḥukm al-wilāyī/al-ḥukm al-tadbīrī and the difference between that and al-ḥukm al-awwalī, al-ḥukm al-thānawī. In this context the view of Imam Khūmaynī who believed al-ḥukm al-ḥukūmī is essentially al-ḥukm al-awwalī, and the view of ‘Allāmah Muḥammad Taqī Ja‘farī who believed al-ḥukm al-ḥukūmī is al-ḥukm al-thānawī, and as well as the view of some other scholars is discussed.
The main critique taken on these theories is that they are irreconcilable with their own presumption that the Sharī‘ah is comprehensive and was completed during the last days of the Prophet (p), and that there is not an aspect of reality except that there is a law for it, since it gives legislative authority to a Walī Amr, the parliament, a nation etc.
Second Theory: The view of the vast majority of Muslim scholars is that there is no such thing as Manṭaqah al-Farāgh, that on the contrary there is indeed a specific law for every aspect of one’s life legislated by Allah (swt), and that no government, parliament, or Walī Amr has any right to legislate any laws by their own account in cases where they supposedly think there is no law.
Before expanding on the detailed response of the proponents of this theory, the book highlights the fact that there are certain groups of scholars in this camp who simply believe that this discussion of fixed and changeable, or the challenges the Sharī‘ah faces in modern times, is itself moot because the very life in the modern day and age is fundamentally wrong and incorrect. Modern life is based on the errors humans have made over the past centuries, resulting in all sorts of further challenges, problems, abusive technologies, oppressive economic systems etc. and it is not that the Sharī‘ah needs to be able to address these issues by offering us a practical way to navigate through these changes, rather these very changes themselves need to be eliminated to revert them back to how things were before humans made these erroneous decisions.
The book does not address the validity of this claim as it is outside the scope of the book, but it will respond to it in one of the observations and critiques given at the end of this chapter. I will also allude to it shortly.
This theory relies on a number of elements to deal with the changing nature of the world while still professing the comprehensiveness of the Sharī‘ah:
1. Change in Concepts and Names: These are principles that say that the law is subordinate to the subject-matter at hand, or the instances in external reality. For example, if the Sharī‘ah law said that blood is prohibited to consume, then if an animal drinks blood which is then digested by it and becomes part of its body, and you slaughter and eat this animal, it is not prohibited for you to eat the flesh because you are no longer consuming “blood”, rather you are consuming “flesh” of a slaughtered animal. The subject-matter here has changed.
Another example, the Sharī‘ah law may say disrespecting your parents is prohibited. In 8th century Arabia walking in front of your father could have been seen as a sign of disrespect, whereas today it is not considered disrespect. This does not mean that at one point “walking in front of your father” was permitted in the Sharī‘ah law and that this law has now changed, rather the law is still the same – which is the prohibition of disrespecting your parents – and only its instance has changed.
2. Ijtihād: Many Sunnī and Shī‘ī scholars have argued that the process of ijtihād itself is a way to continue responding to the changing world. For the Ahl al-Sunnah, procedures such as qiyās, istiḥsān, al-maṣālih al-mursalah etc. are ways by which Sharī‘ah law can be continued to be discovered.
3. Secondary Rules: For many situations, the Sharī‘ah law can be given as per secondary rules such as harm (ḍarar), extreme difficulty (ḥaraj), emergency (iḍṭirār), necessity (ḍarūrah) etc. These secondary rules can encompass a large segment of our lives where we do not have any clear Qurānic verse or ḥadīth.
4. Political Guidelines: Some scholars such as Shaykh Ja‘far Subḥānī and Shaykh Makārim Shīrāzī have argued that there are certain political rules which are not human legislations, but rather they are advisory commands or rules that are the means by which the Sharī‘ah law is to be implemented – whether primary laws or secondary laws. In other words, if certain rules are made for the army, or for tourism, or military service etc. then these political rules either come under the general Islamic obligation of maintaining order in society or they are preliminaries by which the Sharī‘ah law is to be implemented. It is important to note that these are not cases where the political authority has been granted legislative authority whose laws can be deemed as part of the Sharī‘ah.
5. The Legislative Nature of Religious Texts: Another way to reconcile between the religious sources and everchanging nature of the world is that the textual sources themselves have a legislative quality. This legislative quality is discussed in legal theory when studying various linguistic theories dealing with iṭlāq and ‘umūm. For example, if the verse of the Qurān says [5:1] fulfill the contracts, then the generic nature of this command is such that it is not exclusive to contracts that were present during the life of the Prophet (p), rather any type of contract that society formulates can also be inclusive of it (as per the opinion of some jurists). Hence Quṭb al-Dīn al-Rāwandī (d. 573 AH) said: “The new events are never ending, and the generic nature of the texts is also never ending, even though the texts themselves are finite.”1
6. Differentiating Between Religion and Understanding of Religion: Some scholars have said it is necessary to distinguish between religion itself, which is complete and has a law for every single circumstance for our lives, and our understanding of the religion that has been transmitted down to us. The religion may be complete, but our understanding of it may be limited or we may be unable to discover all these laws for all situations due to our own capacities and affinities. It is in this context that the likes of Shaykh Yusūf al-Qarḍāwī therefore say that the textual sources are capable of being implemented in contemporary times whether one is text-focused like the Ḥanbalīs, or qiyās-oriented like the Ḥanafīs, or lenient like Ibn ‘Abbās, or strict like Ibn ‘Umar, or a literalist like Dāwūd.2
7. Practice of the Reasonable Ones: Over the last century many jurists have focused greatly on the argument of sīrah al-‘uqalā’ (practice of the reasonable ones) and have used it as a basis to determine many fundamental axioms that the average sane and sensible human follow in his or her day to day life. Through this, some jurists are able to derive many laws
Some of these seven solutions have some consequences, as can be witnessed in the works and discussions of the jurists, particularly since the 20th century. These consequences are as follows:
- Historicism of some of the religious texts and law – sometimes this can lead to a restriction of a law, while other times it can result to an expansion of the application of a law.
- The greater goals of the Sharī‘ah (maqāṣid al-sharī‘ah) are to be considered when doing ijtihād.
- Considering the role of time and place in the process of ijtihād – Imam Khūmaynī has become renowned for bringing and highlighting this aspect of ijtihād – at least in Shī‘īsm – greatly in his academic discussions.
Seven lengthy observations and critiques are given in response to this second theory, which is the most prevalent solution given by Shī‘ī and as well as many Sunnī jurists. I will allude to just a few of them:
1. One of the responses given is for the aforementioned solution #5 on pages 402-410. Solution #5 said that the textual sources themselves have a lot of capacity and due to the presence of iṭlāqāt and ‘umūmāt, we have nothing to worry about when many contemporary issues arise. The critique here is that though there is no doubt many religious texts are absolute and generic, but many Muslim jurists have fallen into an extremity where they claim such iṭlāqāt and ‘umūmāt to exist even when there is very strong contextual reasons to suggest otherwise. On many occasions the jurists have to resort to a lot of mental gymnastics, and make far-fetched arguments to back their claims up, and such justifications are very distant from the way humans understand language.
2. Resorting to procedural principles such as barā’ah or iḥtiyāt – although not istiṣḥāb according to one group of scholars – is not a solution at all. These principles do not tell us anything about the Sharī‘ah law and rather only tell us our practical responsibility so that we are excused on the day of judgement.
3. The next critique is not applicable on those who reject the probative force of speculation, but such jurists are few in number in the Muslim world. The mainstream process of ijtihād is thoroughly speculative, fundamentally catered to ensuring we are excused on the day of judgement. Since it is heavily based on the idea that much of the reality of the Sharī‘ah law is unknown to us since the vast majority of the sources of Sharī‘ah are speculative, and that most of our laws are merely apparent laws whose correspondence with the actual Sharī‘ah is unknown, how can such a legal system even claim to say it can answer and offer the actual Sharī‘ position on contemporary and newer issues? The most it can offer are further apparent laws whose correspondence with the actual Sharī‘ah is not even known.
4. One of the responses given is to the claim that the modern world is a result of human error itself, and that we must return back to a situation before this error was made. Even if we were to accept and agree with the claim above, even in this case the proponents would need to give a working and practical solution from the Sharī‘ah as to how we are to revert the world back to a time before some of these crucial mistakes were made. Given that such a change is not meant to happen overnight, rather could take a few centuries, has the Sharī‘ah spoken and informed us about the type of laws that need to be followed in order for us to make these changes? We are not speaking about just mere laws concerning individuals, rather we are speaking about the Muslim world as a whole. The Sharī‘ah is not just a Sharī‘ah for when humanity is all righteous and pious, rather the comprehensiveness of the Sharī‘ah would entail that it has a clear cut solution for even situations like the one we face today. If the solutions offered are from personal experiences, intellect and endeavors, then this itself is a type of confession that the Sharī‘ah is not comprehensive and has failed to offer a solution on how we are to take the Muslim world out of this situation.
Third Theory: This theory is offered by Shaykh Muḥammad Mahdī Shams al-Dīn (d. 2001) who believes in a third category of laws other than primary and secondary laws, and these are essentially laws that a jurist derives for a case where there is no naṣṣ, but relies on general overarching principles of the Sharī‘ah to arrive at a temporal law. For example, Shaykh Shams al-Dīn acknowledges that there is no detailed system in the Shar‘ī texts that we have by which we can derive a system to deal with the environment, but we do have some other generic principles such as the obligation of maintaining justice, maintain order in society, the preservation of brotherhood etc. which can be used by an infallible Imam (a) or a capable jurist to give us regulations and laws for the phenomenon we are dealing with.
One of the elements that differentiates Shaykh Shams al-Dīn’s view from the first theory is that this authority is being granted to all capable jurists, and not just a jurist who holds a formal political position in society. Secondly, though he repeatedly mentions his belief in the comprehensiveness of the Sharī‘ah, but he also confesses that there is an area where not only do we have no naṣṣ, but there are not even any ‘umūm or iṭlaqāt to refer back to. In other words, Shaykh Shams al-Dīn is not saying that the narrations on these subjects have not reached us, rather he is saying there were no such narrations or verses to begin with – Allah (swt) did not reveal these to us. In essence, this is a much bolder confession to the problem of the limitations of the religious texts than proponents of the first theory.
Altogether there are nine observations and critiques on Shaykh Shams al-Dīn’s theory, discussed from pages 427-445. Some of the critiques or limitations can be summarized as follows: If there is a vast region where there is no law mentioned by the Shar‘ and it has not provided us with a clear organized picture of how we are to deal with some new phenomenon, as Shaykh Shams al-Dīn himself confesses that these are areas where there is no naṣṣ, then how is it possible for the jurist to derive a law for such cases through some higher generic principles and make it obligatory on people to follow it? What makes it obligatory for us to follow a law that the Sharī‘a itself has not revealed to us, and what kind of Sharī‘ah is this that sees some benefit in not revealing the laws for these new circumstances and then later tells us that you are obligated to follow these unrevealed laws (derived by the jurist), laws that we did not reveal in the Qurān or the ḥadīth, neither the Prophet (p) mentioned them, nor the Imams (a). What does it mean then for the Sharī‘ah to have been completed as mentioned in [5:3]? Why does the principle of barā’ah not apply in these circumstances like it does in any other place where we are unaware of a law?
In addition, if the end result of this theory is that the Sharī‘ah has some generic higher principles that a jurist has to use to come up with a temporal law for their circumstances, then how is this any different to what some of the critics of the comprehensiveness of the Sharī‘ah are saying? At the end of the day, the opponents’ claim is that the Sharī‘ah is not comprehensive and has not given us details on all aspects of our lives, rather humans have been granted permission by Allah (swt) Himself to legislate laws following certain guidelines (which will be discussed shortly), though they are not attributed to the Sharī‘ah, and practically speaking this is exactly what is being done in Shaykh Shams al-Dīn’s theory.
Finally, Shaykh Shams al-Dīn does not clearly elaborate on the probativity of the jurist’s derived rule in this situation, particularly as he is not claiming to be from the proponents of insidād. For example, proponents of the first theory will make the argument that prove the probative force of the rulings legislated by the Walī Amr, and though Shaykh Shams al-Dīn critiques the evidence for this position, he himself does not explain why and how the jurist’s opinion in an area where there is no naṣṣ, and the jurist is simply relying on their intellect and human experiences, albeit under the umbrella of some generic Shar‘ī guidelines, is probative. The problem is further complicated by Shaykh Shams al-Dīn’s own admission that we are unable to perceive much of the expediency and harms Allah (swt) considered when legislating laws.
In chapter three, the views of four prominent figures who reject the idea of the comprehensiveness of the Sharī‘ah are discussed and critiqued. The four personalities are Shaykh ‘Alī ‘Abd al-Rāziq (d. 1966), Mahdi Bazargan (d. 1995), Abdul Karim Soroush, and Muhammad Mujtahid Shabestari. The question these figures were essentially trying to answer is that if the Sharī‘ah is not comprehensive, then what are its limits and to what extent does it play a role in human life? What are we to do in cases beyond the limits of the Sharī‘ah? Ultimately, what is the role of Islam in our lives today and how can we continue to give Islam relevance if it does not have – nor claim – to have practical legislation for every single aspect of human life?
To follow in part two.