Islam without Islamic law

copyright 1994 by Zeeshan Hasan. First published in Bangladesh in the Dec. 24, 1994 issue of the weekly Holiday.
The so-called "fundamentalists" of the Muslim world have in common their demands for an Islamic state governed by traditional Islamic law. Anyone who holds such a view has already assumed that the proper interpretation of Islam requires societal rather than individual adherence to religion; that there is necessarily an "Islamic law" which a good Muslim must accept and support. This is the view of Islamic law that conservatives often proclaim. However, a study of the primary Muslim scripture, the Qur'an, and of the coercive implications of law will allow us to see Islam as a purely personal religion. Such an interpretation of Islam will dictate an Islamic code of ethics according to which pious Muslims must conduct themselves; but it will not justify any kind of "Islamic law". A further investigation of the Bible and the Qur'an will be used to support this argument.

Let us look at the following verse of the Qur'an, whose anti-legal consequences have been overlooked by traditional Muslim scholars. It may be referred to hereafter as the "compulsion verse".

No compulsion is there in religion.
Rectitude has become clear from error.
{Surah 2 (al-Baqara), verse 256)

The above verse has traditionally been interpreted to be limited in applicability to Jews and Christians. The reasoning was simple: since these religious groups are held to be descended from God's revelations through previous prophets, they must be respected as "People of the Scripture" and not converted by force. It is important to note, though, that the verse itself makes no indication of having such a limited scope. It reads, quite simply, as a sweeping generalization. The implication of the compulsion verse is thus that Islam, in its ultimate form, must be free of coercion. The truest expression of the religion must rather be voluntary religious belief.

Now, let us ask a simple question: what is law? For that matter, what is the purpose of any institutionalized social regulation? The answer is obvious: coercion. Social constraints such as law exist for the purpose of suppressing the actions of individuals which are felt to be intolerable. A purely non-coercive code of behavior would have to consist not of law, but of a personal system of ethics which is not enforced by society.

As law is coercive, and if Islam must not be coercive, then there can be no "Islamic law". This possibility is ignored by both mediaeval Muslim scholars and modern conservatives. Once we realize that we have a choice between an "Islamic law" and an "Islamic ethic", a little thought will show the latter to arise naturally.

Islamic law begins with the assumption that society should be constrained to conform with a particular view of Islamic behavior. But who is to decide what is "Islamic" and what is not? Conservatives would insist that the only acceptable interpretation of Islam is that developed by centuries of "scholarly consensus" (ijma'). But this is unsatisfactory; Muslims are supposed to be faithful to the divine revelation of the Qur'an, not to any tradition of man-made scholarship. For a Muslim arguing from the Qur'an (and an argument from the compulsion verse is of course a Qur'anic argument), every aspect of such traditional scholarship is questionable.

Islam requires primarily that one be faithful to the divinely revealed truth of the Qur'an. But the Qur'an may be interpreted in an infinite variety of ways. At least one of these is completely non-legalist; but from a human perspective all are equally valid. Only God can know which of the potential interpretations is the correct one; and this information is out of humanity's reach. So it is impossible to resolve the differences between radically different interpretation of the Qur'an. In particular, no amount of argument will suffice to overcome the anti-legalism of the compulsion verse. But if a non-legalist Islam is possible, then "Islamic Law" loses its claim to being a fundamental part of the Muslim faith. To impose it would be to deprive Muslims of their rights as believers to choose the interpretation of the Qur'an which they believe in.

Conservatives may argue that Muslims must establish an "Islamic society" to clear each others' paths of temptations and help guide one another to moral lives. This objection is in error, as a person's religion is not just an outward obedience to rules and regulations, but also an inward, existential acceptance of them. People who are not sufficiently dedicated to Islam to adhere to its ethical standards of their own free will are not good Muslims, and forcing their adherence against their will remedies nothing. The objective of Muslims collectively must be to allow each to grow individually stronger in faith, not to force a hollow compliance on a hypocritical society.

There are a number of objections which the conservative Muslim would still raise to this argument. The first is that it encourages immorality, as the elimination of Islamic law would render all of the Qur'anic ethical requirements unenforceable. This is easily answered by the distinction between law and voluntary personal ethics. Even if there is no such thing as Islamic law, there is still the possibility of a non-coercive Islamic morality. One does not need a law to be moral; only the convictions of personal faith. In fact, the liberal can easily argue that a Muslim who behaves morally in the absence of "Islamic law" is superior in faith to one whose behavior is shaped by social pressures. An Islam characterized by ethics rather than law is of greater moral worth, not less.

Traditionally, Muslims have refused to accept non-legalist interpretations of Islam because they require the abandonment of many explicitly legal Qur'anic verses, as well as ignoring the practice of Muhammad the Prophet of Islam as described in the Hadith literature. Neither of these are insurmountable difficulties. The first can be handled by treating the problematic legal verses as having been overruled by the "compulsion" verse. The second can be solved through reference to the particular needs of Muhammad's community and his prophetic career.

With regards to the many legalist verses of the Qur'an, even traditional Muslim scholars developed theories by which certain verses could be modified or overruled by others. This was the religious science of "abrogation" (naskh). Traditional scholars, of course, never went to the extent of canceling all of the legal verses through the "compulsion" verse (although they did the equivalent in the case of jihad, claiming that the handful of verses commanding war on the Meccan and Jewish enemies of the early Muslims of Medina could be held to overrule the far more numerous Qur'anic commands to live in peace with non-Muslims). To do so would have been to undermine their own authority. The Muslim legal scholar has always been powerful precisely because of his ability to dictate law. In whatever form, "abrogation" is an incredibly powerful tool; it implies that individual legalist verses need not be accepted as ultimately significant to the Qur'anic message. As the eminent Pakistani scholar Fazlur Rahman was fond of pointing out, such individual verses can be overruled by whatever general principles we may find in the Qur'an. In the current case, we need only adopt non-legalism as our general principle outlined in the compulsion verse.

The objection of the Hadith is a more complex one; conservatives will always insist that Muhammad was the perfect Muslim and should be imitated in every way. This supposedly should include the laws under which he and his followers in Mecca and Medina were asked to live under. But all we need to overcome this is to question some common assumptions about the role of Muhammad as the leader of the early Muslim community. The fact that Muhammad's community was required to live under a religious law dictated by his personal decisions may simply mean that such a law was necessary at the time for very practical political reasons. The new Muslim community had to define for itself an identity separate from that of the pre-Islamic tribal order it was breaking away from; the obvious way to do this was with a new set of laws, distinct from the old pagan ways. These new laws would obviously emerge from the dictates of their leader. In that case, adherence to the practices which Muhammad instituted as the prophetic 'sunnah' (and the consequent embodying of the Hadith texts with almost as much legal weight as the Qur'an) simply misses the point. Since Muhammad's role was to found and lead the Muslim community, obviously his practices had to be considered normative at that time. Any deviation would have constituted a challenge to his leadership of the community and led to anarchy amaongst the early Muslims. But this does not imply that later generations of Muslims still have to follow the prophetic legal practices, as with Muhammad's death the issue of challenging his personal leadership ceases to exist. The above interpretation of Muhammad's role would make him the initiator of Islamic society, but not its model. Thus, later Muslim communities need not imitate the legal practices of their founder. The ritual and non-legal norms of Muslim behavior (for example the five daily prayers) may still be viewed as appropriate personal models nonetheless, since they are acts of individual piety rather than community law.

The legalism of Muhammad's early Muslim community can be disregarded totally in the light of the compulsion verse. It must be remembered that the Qur'an is the divine revelation of Islam, while the Hadith are the sayings and practices of Muhammad. Though even the latter may be assigned some degree of revelatory status, the Qur'an should never be allowed to be overruled by the Hadith. Although conservatives would object to such a dismissive attitude towards the practices of the Messenger of God, it is perfectly reasonable given the supremacy of divine over human authority. Islam defines itself as the religion of God, not as the religion of Muhammad. If the compulsion verse ultimately opposes legalism in the Qur'an, then no contrary argument from the Hadith can justify Islamic laws.

One final objection to a non-legalist Islam is that in focusing on ethics it ignores the fact that societies need laws for their preservation and stability. This is true, but irrelevant. Law does not need to have a basis in religion; only in usefulness. If society finds it useful to punish murderers, laws will be developed to punish them. There is no danger of lawlessness in secular society. The realization that societies can devise laws to govern themselves independent of religion was central to the social contract theories of John Locke and Thomas Hobbes, and forms the basis of Western secular democracy. Muslims are quite capable of living under secular law. A truly secular law will allow for freedom of religion, and no more is required from the state.

A useful example can be made here from the Qur'anic position on theft.

And the thief, male and female: cut off the hands of both, as a recompense for what they have earned, and a punishment exemplary from God...
{Surah 5 (al-Maida), verse 38}

Above is one of many explicitly legalist verses of the Qur'an. However, if we accept the non-legalist interpretation of the compulsion verse, then the above must be viewed as defining an ethic rather than a law. If there is no Islamic law, then the above punishment cannot be enforced. However, theft will remain an un-Islamic act, and those who commit it cannot be good Muslims. In this framework, Islamic law ceases to be active, but the legalist injunctions of the Qur'an continue to define the moral standards of the Muslim community. Of course theft will still be punishable by law, if society feels the need; but these laws can now be secular rather than Islamic, and be based upon the needs of the community rather than a particular verse of scripture.

Here it is worth noting that the barrier to an Islam focused on ethics rather than religion ultimately has few barriers from the perspective of Islamic scripture. The main arguments have all been dealt with above with little difficulty. Then why is Islamic law such a powerful idea amongst Muslims? There may well be a more basic psychological barrier at work which prevents the discarding of Islamic legalism; namely, the perception that the law is doing the work of God in society by punishing wrongdoing and encouraging morality. From this perspective, it is traditional Islpamic law that is the true successor of Muhammad, not any human ruler. As it does the work that Muhammad did of encouraging people to be better Muslims, Islamic law itself has acquired an aura of holiness, which prevents any attempts to discard it in favour of ethics.

There is an interesting historical way of analysing whether the law should actually be seen as the will of God being enacted in society. Such a view assumes that God continues to directly intervene in human affairs. This seems reasonable at first; after all, the appointing of Muhammad as a divine messenger is itself evidence that God does intervene in the earthly world of humans. However, the Biblical scholar Richard Elliot Friedman has examined the relevant Biblical texts on prophecy and argued against this in his book, "The hidden face of God". In his book, Friedman notes that over the course of the Bible, God becomes more and more remote. Adam is closest to the divine, literally walking nearby God in the Garden of Eden. Jacob literally wrestles with God one night, as a result of which he earns the name Israel ("one who struggles with god"). But as time goes on, the Biblical prophets become more and more distant from God. Moses first sees God only as the fire in the burning bush, though later he and seventy-four Israelites are actually permitted a vision of God. Most later Biblical figures never see God at all, but only angels bearing divine messages. Solomon is the last person in the Hebrew Bible to whom God is said to appear. Subsequent figures are generally said to hear, but not see, God; or they only hear or see an angel. Interestingly, this phenomenon of God becoming increasingly distant is explained at one point in the Biblical narrative. Among God's last words to Moses are: "I shall hide my face from them; I shall see what their end will be" (Deuteronomy 32:20). What are we to understand from this Biblical verse? It sounds very much like God intends to be less actively involved with human affairs, an interpretation which correlates very well with the increasing rarity of people seeing or hearing God after Moses.

Although Friedman's argument is only based on the Bible, the Biblical theme of the divine face being hidden away, and God being less directly involved in human affairs, has a strong Islamic parallel. It coincides well with the Muslim tradition that there will be no messengers of God after Muhammad, indicating that the period of human history which included direct contact with God is over.

What are the implications of God becoming more distant and less involved with humanity? One implication may well be that the laws of society are no longer required to be dictated by religion as they were during periods of prophecy. In that case, societies should now be free to formulate their own laws at their own convenience and as per the requirements of their circumstances. This is in agreement with the radical interpretation of the compulsion verse; in the post-prophetic period, Islam is about ethics, not law. There is no longer any need for Islamic law.

Given the dismal realities of most of the developing world, it is no surprise that religion becomes useful as a political rallying cry. People disgusted with the situation around them can find a much needed ideology for revolutionary change in radical Islamic parties and their utopian promises. But it is only a particular and avoidable interpretation of Islam which results in the "fundamentalist" idea of Islamic law. This ideology is thus not "fundamental" to Islam at all, and the term "fundamentalism" becomes something of a misnomer in its suppression of the possibilities for liberal Qur'anic interpretation.