Regarding Reform in the Laws of Fiqh!
Regarding Reform in the Laws of Fiqh Of the blessings of Allah’s Sharī`ah on us is that the Divine Laws of Islam are suitable for all times and places. And because of this dynamism, the Sharī`ah has within it tools to modify or change or reform specific fiqh rulings, in accordance with guidelines and procedures known to all students of knowledge. Given the radical socio-cultural changes that have taken place in the last century, it is imperative that trained scholars, following the principles laid out in our own tradition, always keep the laws of fiqh (which are human-derived) relevant and realistic, and in accordance with the goals of the Sharī’ah. One simple example will help illustrate this point. According to all four schools of Sunnī law, a husband is not liable to take care of his wife’s medical expenses (that includes doctor’s fees, tests, medicines, etc.). Instead, if she does not have her own money, her father or brothers are responsible, not her husband. Imām al-Shāfi’ī writes, “A man is not responsible for…paying for a doctor for his wife” [Kitāb al-Umm 8/337]. And this explicit verdict is found in all the source-works of the Ḥanafī, Mālikī, and Ḥanbalī texts (note, as usual, that there are minority dissenting voices, from within the Mālikī school, but the standard and ‘relied upon’ opinion is as has been stated). Our traditional scholars, with our utmost love and respect to them, derived this fiqh ruling based on the cultural and social norms of the time. Given their contexts, this ruling made sense (it is beyond the scope of this FB post to explain how this ruling was derived – suffice to state that it is *derived* and not Quranic/hadith based).
Now, in our times, when it comes to fiqh, we are battling between two extremes, the one clearly more dangerous that the other, but both of which are detrimental to the Ummah. On the one hand, we have large groups of traditionalists who advocate absolute and uncritical adherence to one of the schools of law (taqlīd), and feel that any departure from an accepted school will inevitably lead to a destruction of the Sharī’ah (a version of the ‘flood-gate argument’). While these people are generally pious and respecting of the norms of Islam, their intransigence and refusal to acknowledge the dynamic realities of Islamic law brings much stagnation to our faith, and turns many people away. Tellingly, even as they give this fatwā (that husbands are not liable for health-costs), they themselves cannot and do not apply it in their own personal lives – a clear indication that this ruling just doesn’t make sense in our context.
On the other hand, we of course have the ‘progressives’ who really don’t care about the tradition, and whose goal is to conform with the values and rulings of our times, and then attempt to post-hoc justify an outright dismissal of the tradition in favor of the cultural norms of the environment they happen to have been born into. Generally speaking, such people do not demonstrate any sincere commitment to search for Allah’s rulings, and their lifestyles and views garner nothing but scorn amongst the masses of faithful Muslims. (As a side note, the fear of becoming ‘progressive’ is one of the main factors for the madhhab-based scholars to shut the doors of any new views).
But the best course of action is the middle one. We understand our earlier scholars were great people who operated in their environment, and we respect and love them, even as we see what aspects of our environment have changed and to what level we can reform the laws of fiqh.
Earlier in my life, I was sympathetic to a more ultra-conservative approach to fiqh, and felt that it was best to conform with past views. (I still respect such scholars who follow that paradigm, even as I disagree with them). However, for the last decade and a half, I have found myself much more in agreement with what I call forward-thinking traditionalists. These are scholars like Sh. Rashīd Riḍa (d. 1935) in the last century, and Sh. Qarḍāwī and many of the scholars who are involved with global fiqh councils in our times. Not surprisingly, they have all given fatwas that state that, in our times, a husband is in fact responsible for all reasonable costs associated with maintaining the health of his wife.
The rules of fiqh can, and must, be modified in every generation to make it relevant and practical, and keep it in line with the goals (maqāsid) of the Sharī’ah.
Now, if someone is a complete ignoramus in the fields of fiqh, uṣūl, and maqāsid, and on top of that believes that he is divinely and singularly tasked with defending ‘orthodoxy’, it is only natural that he will be totally unqualified to differentiate legitimate reform (tajdīd) from illegitimate reform. Hence, when such a person hears talk that Islamic laws needs to be reformed in light of the tradition, since this critic neither knows his own level nor apparently fears the Divine consequences of his actions, it is very easy to cause a ruckus and accuse such talk as being heretical and deviant, and a pathway to progressive Islam. This, despite the fact that no scholar or even student of knowledge would ever make such a facile accusation, since even the most basic student of knowledge would have learned rules such as العرف محكّم and تغيّر الفتوى بتغيّر الزمان. (As a side note, this is why those who are not trained in Islam should never take on the role of defending Islam because they will inevitably end up harming Islam more than benefitting it). Such accusations only betray either the compounded ignorance of the one who utters it, or an evil intent, or in fact both.
This is but one example of ‘reform’; many hundreds more can be given, in almost all areas of mu’āmalāt (i.e., dealings with others). And of course, as with all matters, one will find a spectrum of opinion. As long as such opinions are being offered by scholars whose track record speaks for itself, and whose views are based on the sound epistemological methods of Sunnī Islam, they should be respected, even if one chooses to not follow such an opinion.
My advice to all of you is to choose the scholars who resonate with you the most, and whose reputation is acknowledged by fellow scholars, and then follow them in these grey areas, while respecting the right of other scholars to have their opinion. And even safer than that is to follow larger groups of scholars, represented by various fiqh councils around the globe, as it is safer when a larger group of scholars issue a verdict rather than a single one.
Two of the councils that I personally benefit from immensely are: the European Council for Fatwa and Research (ECFR), and the International Union of Muslim Scholars (الاتحاد العالمي لعلماء المسلمين ). Both of these councils have many interesting and relevant fatwas on all aspects of our faith. There is also the Fiqh Council of North America (FCNA), which Allah has blessed me to be a member of.
In the end, Allah alone is the source of success, and we ask Him to guide us to what is correct.