What is fiqh and how can Muslims derive fiqh rulings in contemporary times? Classical manuals of fiqh list a series of maxims that have stood the test of time as Muslim scholars of law and religion grapple with every new and evolving situations that confront Muslim communities. What follows are a few of the maxims that particularly struck a chord with me and my reflections thereof.
Punishments shall be averted by doubtful matters
Al-Hadd is a punishment specified by the Sharia, such as the punishments of adultery, fornication, theft, and drinking intoxicants. The root of this maxim is Prophetic hadith related by Al-Tirmidhi on the authority of ‘Aisha who said: The Messenger of Allah said, “Avert punishments from Muslims as far as you can, and if you find a way out, release the Muslim.”
This maxim resonated with me because as a Muslim apologist, I am constantly explaining to fearful audiences that sharia is not some monstrous law system that is out to get people. The principle of doubt overruling punishment means that these harsh penalties are more of a deterrent to crime rather than the goal of criminal law in and of itself. This aspect of implementing law with a spirit of compassion is often neglected or overlooked when discussing Islamic Law, so this maxim really captures the intent of the Law-Giver in revealing harsh penalties. For me, this shows the balance of God’s wrath and mercy in a practical way. That is to say, the consequence for committing these crimes such that there is no shadow of doubt is a heavy penalty and showcases God’s wrath and holy justice. On the other hand, the fact that these heavy penalties can be abjured in the case that the evidence is not so compelling or there is room for doubt showcases God’s mercy and forbearance.
Literality shall be bypassed in favor of customary signification
The maxim is simply rendered by Nasir (ibid) as: “In the presence of custom, no attention is paid to the literal meaning of a thing.” For example, … when one was to say, ‘By Allah, I will not step foot into my house,’ but he breaks his oath by entering his house riding. This is so since the expression ‘to step foot into’ is not understood literally in custom, rather it is taken to be synonymous with ‘to enter.’
This maxim is an interesting one, because it allows the jurist to really go above and beyond the texts in search of solutions to the community’s problems. I can think of many examples where the literal meaning of a phrase or even a sacred text is bypassed for customary understanding. Like the previous maxim, this shows a dynamism and flexibility that Islamic Law and fiqh intrinsically possess. It also refutes the simplistic accusation that Islamic law is harsh, rigid, and literal. On the contrary, this maxim shows that fiqh is a living enterprise that incorporates the spirit of the law and custom over the letter of the law. This flexibility is a great asset to fiqh and sharia and allows Muslims to find legal and judicial wisdom regardless of time or place.
The basic assumption is freedom from obligation
Evidence shall be by the claimant and oath shall be by the defendant. The maxim is vastly operative nowadays in the courts especially in dealing with civil and criminal lawsuits. Some instances in the contemporary jurisdiction can be seen in some legal provisions such as: 1. The defendant is deemed innocent until proven convicted. 2. Doubt shall be interpreted for the defendant’s interest, which stipulates that the judge must give the accused the benefit of the doubt, because the root or essence is the defendant is innocent of committing crime unless proven otherwise.
This maxim is very powerful and is the basis for many systems of law that emerged after contact with Islam. The presumption of innocence was actually only recently mainstreamed in Western culture. Medieval courts were known to resort to Trial by Combat or Trial by Fire or similar invocations of divine intervention to arbitrate their cases. As late as the 17th century, the Salem witch trials show how European courts often operated with the presumption of guilt as its starting point. For this reason, the codification and enforcement of the presumption of innocence was a huge step forward for human rights and justice systems everywhere. Even the idea that doubt shall be interpreted in the defendant’s interest is a revolutionary concept that clearly demarks modern legal theory from the pre-modern theory. It is humbling that the heritage of my religion has these concepts in them so early on in its history. It also saddens me that a heritage so rich and enriching has become overshadowed by rigidity and dogma in recent times.
