13.5 The Qur’an as a source of law
Parwez makes a poignant observation:
In Islam obedience is essentially and basically due only to the Laws of Allah as embodied in the Qur’an. ‘Shall I (Rasoolullah) seek other than Allah for judge, when He it is who hath revealed unto you (this) scripture, fully explained[…?]’ (6:114). ‘[…] whoso judgeth not by that which Allah hath revealed: such are wrong-doers’ (5:45).8
Obedience to Divine Laws is not a thing belonging to the individual person in the sense that one might, of his own, consult the Qur’an, interpret it for himself and act according to his individual interpretation. The obedience has to be disciplined and orderly under an organised system (called ‘State’ in present-day terminology) controlled by a central authority, the first central authority being Allah’s Rasool. (4:80) ‘Whoso obeyeth the messenger, obeyeth Allah, and whoso turneth away: We have not sent thee as a warder over them’. (5:49) ‘[…]so judge between them by that which Allah hath revealed, and follow not the desires away from the truth which hath come unto thee[…]’
Baring a few exceptions, the Qur’an enunciates generally fundamental principles without touching on subsidiary laws. About these fundamental principles or permanent values the Qur’an says: (6:115) The basic principle revealed by the Nourisher has been made complete in truth and justice. There is none who can change His principles[…]9.
The question as to how subsidiary laws which have deliberately been left undetermined in the Qur’an, will be formulated in the light of the permanent values, is answered by the direction given in the Qur’an to the Prophet — to (3:159) ‘[…]consult them (the believers) in the affairs of (the society)[…]10
While he lived, the Prophet determined subsidiary laws in consultation with the Ummat. The question is as to what was to be done after his demise. The Qur’an answers the question by saying: (3:144) ‘Muhammad is but a messenger, messengers (the like of whom) have passed away before him. Will it be that, when he dieth or is slain ye will turn back on your heels[..?]’ It follows that the process of framing laws within the framework of Qur’anic principles, was not to discontinue after the death of the Prophet […]11. Had the institution of Khilafat on the pattern set by the Prophet continued, the process of legislation evolved by it would have continued to develop normally, making the law of Shariat a happy blending of permanence and change. It is a pity that the process came to a halt and with it ended the critical attitude with which subsidiary laws used to be formulated. It is true that for a time the various schools of Fiqh carried on the process, but theirs was an effort on the individual plane which very soon became rigid and fossilised.12
The all-important question confronting us now is that since the Khilafat on the pattern of our Prophet has long ceased to exist, what lines an Islamic State should follow for legislation. If the answer is that if a Khilafat in the pattern of the Prophet is impossible since personalities like Hazrat Abu Bakr and Hazrat Omar are no longer available to do the job then it would be tantamount to admitting that the Qur’an offered a code of life for a particular period of history only. This would be preposterous. The Qur’an has been preserved by Allah so as to provide mankind with a code for practical living from age to age and from place to place. On the basis of Qur’anic principles an organisation (Islamic State) was set up once. A similar organisation can be set up again now. But a change-over from the present to an ideal Islamic State cannot be brought about overnight. The organisation will, by stages, proceed towards its ultimate goal by normal process of evolution, ridding itself of initial short-comings at every step113
It must be borne in mind that the right to introduce changes belongs to the Islamic State and not to individuals whatever their mental development may be. Individuals can only initiate changes in the thought process but the effective action depends on the co-operation of whole society.
Mashriqi sums up the question well: ‘[…] the later exponents of Islam failed altogether to emphasise is that the jurists have taken up only that portion of the law from the Qur’an which has technical punishments or technical explanations attached to it, and have put no emphasis on various other crimes and sins which the Qur’an emphasises as having led nations to ultimate destruction, and concerning which the Qur’an emphatically says that their punishment is eternal Hell.’14
Proper fiqh, taken from the pages of the Qur’an and put into actual practice by the force of the belief of those who run Islamic society politically, is the main remedy for reviving Islam. Unless this is done under the auspices of those who read the Qur’an in its original spirit and know as well the practical administration of law in human society, Islamic fiqh cannot produce miraculous results. As a start, the Islamic Administrators of Law should take up those commandments of the Qur’an which will tend to construct the whole society on solid foundations. In this respect the Qur’anic dictum (3:104) that ‘there should be people among you who invite (people) to do good and order you to do the outstanding good (of remaining united) and prohibit you from doing the outstanding evil (of becoming dispersed into various sections) […]’, must be a portion of our progressive law15. The well-known Qur’anic verses: (3:103) ‘and hold fast, all of you together, to the cable of Allah, and do not separate […]’, and (6:160) ‘Those people who split up their programme (deen) and become divided into several sections, thou (Oh Prophet) art not to include thyself in them in any respect […]’, are some examples of the way in which the Qur’an enjoins on its followers to keep the commandments of Allah under all circumstances, and unless mandates of a general nature like these, are put into practice by the moral force of law and judicious legislation, no lawÂ of humans can organise a healthy society. It is thus the duty of the progressive Islamic fiqh to extend its domain of moulding the morals and actions of Muslims in such a way that the whole spirit of the law contained in the Qur’an is maintained.16