The Qur’an, in general, criticizes
the behavior of some People of the Book and says that the arrival of Jesus
(sws) was meant in the divine scheme to instill the real spirit of the
law among the Jews who had reduced Torah to a ‘collection of lifeless injunctions
and spiritless rituals’. It mentions the behavior of a Jewish community
who lived by the seaside (7:163). They were required to honor the restrictions
of the Sabbath by not getting involved in any worldly engagements. It so
used to happen that ‘on the day of their Sabbath, their fish did come to
them openly holding up their heads but on the day they had no Sabbath,
they came not’. It was too tempting a trial for some of them. However,
in order to preserve the apparent sanctity of the Sabbath and yet to achieve
their objective, some of them contrived a clever strategy of preventing
the fish from disappearing on Saturday so that on Sunday, the day following
the Sabbath day, they could catch them. Despite their lame attempt to preserve
the apparent form of the law of Sabbath, however, they were condemned to
punishment because the spirit of the law – to stay away from all worldly
dealings on Saturdays in order to worship God – was totally lost.
Another reference in the Qur’an
to
a religious subterfuge contrived by a people to serve their worldly objectives
is the practice of intercalating a month (Nasi) by the pagan Arabs
(9:36-7). They were required by their religious traditions to honor the
sanctity of four months by enforcing complete halt to active hostilities
against each other. The requirement was meant to enable pilgrims to visit
the House of Allah in Makkah from all over Arabia. However, since
the calendar was based on the lunar calculation, it necessitated the shifting
of months from one season to another. That was not acceptable to the business-minded
people of Makkah because pilgrims were an important source of business
revenue for them. They inserted a thirteenth month called Kabisah after
every three years to ensure that the months did not move around different
seasons in different years. In short, instead of openly rejecting the arrangement
of the lunar months, they resorted to clever manipulations by retaining
the apparent form of the law. The
Qur’an has, however, condemned
the whole exercise by calling it ‘an addition to unbelief’ (9:37).
The reason why religious subterfuges
have been condemned by the Qur’an as additions to unbelief is that
while simple unbelief is an open rejection of faith, such subterfuges are
a cunning way of defeating the purpose of the Divine Law without taking
the blame for rejecting it. In other words, those who indulge in it attempt
to deceive God by pretending to follow the apparent form while defeating
the real spirit.
There have been examples in Muslim
history too whereby religious subterfuges have been resorted to in order
to retain the legal form of injunctions while defeating the real spirit.
It is said, for instance, about a certain individual well versed in religious
law that he used to transfer his wealth to his wife’s name after eleven
months and similarly back to his name after the same duration to escape
the obligation of paying the annual religious tax (Zakah) on his
wealth. Indeed Zakah is, legally speaking, annually payable on the
wealth one owns. That, however, is just a legal condition. The real objective
Allah Almighty wants to achieve through its imposition is amelioration
of the state of the poor and material sacrifice for the sake of Allah by
the payer. The individual referred to managed to defeat both the objectives,
although in the eyes of the worldly law, he, perhaps, was not guilty.
The question of the spirit of the
law has been employed by Muslim jurists to legislate in areas which have
not been dealt with in the Qur’an and Sunnah. The process
of Ijtihad based on analogy (Qiyas) employs this principle.
It entails observation of the real basis of an Islamic injunction and finds
out if the same basis is present in another arrangement. If in the opinion
of the jurist the basis in the original injunction is similar to the one
in the later development, the jurist would declare on the basis of Qiyas
that
the same verdict holds true for both.
There is no general agreement on the
bases (‘Illal) of many Islamic injunctions. It is, however, generally
agreed that there could be more than one basis for a certain Islamic verdict.
The one reason which is considered to be the predominant basis of a relevant
injunction is call ‘Illah while other less significant ones are
called Hikmah.
Irrespective of the difference in
terms, however, both ‘Illah and Hikmah are concepts which
are based on the spirit of law. It is the real spirit of the injunction
that is attempted to be captured and, on that basis, other areas of human
activity are brought within the purview of Islamic law.
There is a difference of opinion of
significant consequence amongst the four earlier schools of Islamic Jurisprudence
with regard to the spirit of the law. The Malikites and Hambalites determine
the validity or invalidity of a contract, apart from the obvious factors,
on the grounds whether it was inspired by proper motives or not, its apparent
legitimacy notwithstanding. On the other hand, the Hanafites and, to a
lesser extent, the Shafites schools of law consider that it is not the
function of the courts to investigate what stands behind apparently genuine
transactions or to unveil their real inspiration. The obvious consequence
of the latter’s principle was that a range of carefully contrived legal
stratagems (Hiyal) were developed which allowed the spirit of Islamic
law to be flouted despite adherence to the apparent form in the lands where
the latter schools of fiqh had more influence.
In this writer’s opinion, our scholar’s
must do away with this approach. The spirit and form of a directive are
equally important and each must be given the weight it deserves.
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