"The Universality of Islamic Civilization with Sharī‘ah as its Constitution”

"The Universality of Islamic Civilization with Sharī‘ah as its Constitution” Prof. Dr. Hassan Ko Nakata Fellow CISMOR, Doshisha University Introduction The Islamic Civilization is characterized by its jurisprudence (Fiqh). The Islamic Civilization has kept its identity with the most stable and consistent system of positive norms (Aḥkām Fiqhīyah) among the past and present civilizations, deduced by Sharī‘ah, the Divine revealed law. In spite of its legal certainty, stability in more than 10 centuries and consistency in various climates like deserts in Arabia and tropical rainforests in South East Asia, Islamic legal norms are the man-made result of legal reasoning of the Islamic jurists, thus flexible and changeable, while the Sharī‘ah is the Divine Revealed law, thus infallible and unchangeable. In this presentation, first we explain the constitutional characteristic of Sharī‘ah, in the meaning that it is enough concrete and articulated as the practical guideline for the various fields of the human life and the conflict solving, contrary to the mere ethical principles, as well as enough sustainable to be unchanged and immune to arbitral human political interference under the name of legislation. Then we would like to clarify that Islamic Civilization is built on the ideal of “rule of law” and that actually the rule of the Sharī‘ah is the very “Rule of Law”, thus it enables the coexistence of various nations, ethnic groups, and religions inside Islamic Civilization. In conclusion, we would advocate the necessity to innovate new terminologies and style of discourse to explain the real universality of Islamic Civilization which is understandable to “the others” in order to establish the just order among the human beings under the “Rule of Law” of the Sharī‘ah. 1. Sharī‘ah and Fiqh as Constitution of Islamic Civilization 2. The Sharī‘ah is a divine teaching revealed in Qur’ān and Sunnah, and Fiqh is a jurisprudence whose role is to deduce norms of actions from this Sharī‘ah. The text of Qur’ān is fixed under the reign of the 3rd Caliph Uthmān around, 20 years after the death of the Prophet(s), while the major works for the compilation of the Prophetic Ḥadīth has been published till the 10th century. The Fiqh as a independent academic discipline came into existence in the 8th century and it has been completed till the 13 century and there has been little substantial changes after that, so it is said “the gate of Ijtihād (new juridical innovation) has been closed”, and the system of Islamic norms of actions (Aḥkām Fiqhīya) has been established and remained unchanged since then up to now. In terms of comparative laws, the Aḥkām Fiqhīyah or Islamic law is classified into the jurist’s law which has been developed by the jurists beside Roman law. But the sources of Islamic law is the Divine Revealed Sharī‘ah and there has been no room for Caliph’s intervention in Islamic law contrary to the Roman Law in which the opinions of the jurists become the law by the authorization of the Emperor. Therefore, the Islamic jurists Fuqahā’ have the autonomy independent from the political authorities, consequently the Islamic law have spread all over the world through the network of the jurists and kept the consistency and the stability independently from the disintegration of the Muslim world and political upheaval inside. Although the Islamic law is independent from the Caliph, the Caliph and his deputies have the authority to legislate the administrative rule, Qānūn, the word Arabized from the Greek “Canon”, within the limitation of the Islamic law. The Islamic law, or the Aḥkām Fiqhīya has been learned in Madrasah, or Schools, as the duty of the devote Muslims all over the Muslim world by the reading of the classical Arabic Fiqh handbooks up to now, while the Qānūn differs according to the place and the age and has never been included into the subjects of the Madasah’s curriculum. Now we would like to compare the Sharī‘ah, the Fiqh, and the Qānūn with the constitution, the constitutional law (distinguished from the constitution itself as C. Schmitt defined as Grundnorm), and the law. The Sharī‘ah is a set of the axioms which are ultimate, universal and unchanging, because it was divinely revealed to all the human beings from the time of the Prophet Muhammad(s) until the Doom’s day, which is similar to the constitution, especially the unwritten (uncodified) constitution of England. The Fiqh is closely related to Sharī‘ah, but it is human made after al,l while the Sharī‘ah is divine, more concrete and more articulated than the Sharī‘ah, thus changeable though it should be stable, rigid, and difficult to be revised, which is similar to the constitutional law which is the law after all but should be stable, rigid and difficult to be revised comparing to the usual law. The Qānūn is purely a human made administrative rule legislated by politicians according to the contemporary needs particular to the specified place and age, which is similar to the “law” in the Western sense. By comparing Islamic law system to the Western one, we have clarified the “constitutional nature” of the Sharī‘ah and the Fiqh as opposed to the Qānūn. Furthermore, we can say that the shared ideas in the constitutions of the Western countries are the human rights, which is ultimate and undeniable, and no laws legislated by the parliament should contradict them. Thus if we understand this “constitutional nature” of the Sharī‘ah and the Fiqh, it becomes clear that the legislation in Islamic law system should be done within the limits of the Sharī‘ah or “Sharī‘ah as interpreted and articulated in the Fiqh” and any law or Qānūn should not contradict it as is exactly same with the relation between the law and the constitution or the human rights in the Western law system. However, comparing to the constitution and human rights in the Western law system, the Sharī‘ah and the Fiqh in the Islamic law system is more stable and deep rooted among the people. As mentioned before, the Sharī‘āh is the divine revealed teaching, and as such, categorically immune to the interfering of the political powers, and the Fiqh is independent from the political powers because the Fuqahā’ has attained the autonomy from the political power through the development process of the Fiqh. Moreover, in the Islamic law, the validity of the law is guaranteed by the Divine punishment in the Day of the Judgement, not the punishment by the political power, contrary to the Western law system, therefore the authority of the Islamic law is not to be influenced by the political upheavals. The Sharī‘ah and the Fiqh are learned as a religious obligation by all the devout Muslims regardless of their nationality, ethnicity, race, and etc. We are eye-watching hundreds of millions of Muslims are observing Islamic norms of actions, or the Aḥkām Fiqhīyah, which are contained in Fiqh classics, without being forced by the state, rather in face of the oppressions by the anti-Islamic governments which try to force them not to observe the Islamic law in many cases. As the constitution is the general framework to decide the form of the state and its identity, the Sharī‘ah is the general framework to constitute the identity of the Islamic Civilization in the meaning that it makes the Muslims identify themselves with their fellow Muslims all over the world in terms of space, and also identify with their Muslim predecessors in the past centuries since the Prophet Muhammad(s) in terms of time, thanks to the common practices of behaviour based on its unchangeable norms shared among all the devout Muslims. We have clarified that Islamic law, or the Aḥkām Fiqhīyah deduced from the Sharī‘ah, is the strongest in the legal certainty among the world law traditions, because it is so stable that it is worth being called as the constitution or the constitutional law of Islam which enables the Islamic Civilization to have its identity and continuity, while the Qānūn, or the administrative rule made by the politicians, makes Islam adapt itself to various natural, geographical, and socio-political environments. 1. Ijtihād and Qānūn as Tools for Change Whereas the Sharī‘ah and the Fiqh are the constitution of Islamic Civilization which defines its identity and guarantees its continuity, the Ijtihād and the Qānūn are tools for its change or tools for its adaptation for changing situation. The Sharī‘ah is consist of the text of Qur’an and texts of Prophetic Sunnah. Although the text of Qur’an was fixed slightly after the death of the Prophet Muhammad(s), there has been room for its interpretation of its meaning. As for the texts of Prophetic Sunnah, the range of texts of true Sunnah has not yet fixed and the disputes over the authenticity of each Ḥadīth are still subject to study. Therefore, although the concept of the Sharī‘ah is clear and indeed there is a quite wide range of agreement among ‘Ulamā’, Islamic Scholars, over authentic texts of clear meaning of Qur’an and Sunnah, the understanding of the Sharī‘ah needs Ijtihād or effort of interpretation. As the result of the Ijtihād of the Fuqahā’, Islamic jurists, the Fiqh has become more articulated than the Sharī‘āh, as well as coherent and well agreed to the extent that it was said that “the gate of the Ijtihād has been closed”. But, however the Fiqh has become developed to be well agreed, there should happen need for the Ijtihād, when completely new situations arise. So, the Ijtihād still remains as a tool for changes for the Islamic Civilization which is now facing the new situations. The Sharī‘ah and the Aḥkām Fiqhīyah are constitutional in nature, namely, not detailed but generally instructive, which therefore can be applied to the Muslim peoples in various environments at different times. Therefore, any specific demands of a certain country or society should be fulfilled and their particular conflicts should be settled by the Qānūn suitable only for it. The Qānūn might be specific and detailed, and in order to be so, it should be flexible and easy to change. The Qānūn is a tool for adaptation by the Muslim society for the changing situations, which means that it is also a tool for transforming the Muslim society toward a certain direction. The Ijtihād is obligatory upon every Muslim according to one’s capacity. Recently, thanks to the rapid development of Internet technology, reference to the Sharī‘ah has become drastically easier than before, especially in the field of Ḥadīth literatures. But to deduce the consistent system of the norms for human behaviour from the text of Qur’an and Sunnah is not an easy task; thus the easy access to the Ḥadīth literatures not only makes it possible to understand the Sharī‘ah better, but also create the danger of chaos due to arbitral, inconsistent, and unbalanced interpretation of it on the other hand. So, Muslims should not abuse the Ijtihād. There is no room for Ijtihād in case of existence of obvious texts (Nuṣūṣ) of the Sharī‘ah. Also it is necessary for Muslims who dare do the Ijtihād, to master the Fiqh methodology and learn the past heritage of the classical Fiqh literatures. The Ijtihād is the right and the obligation at the same time for Muslim individuals according to one’s capacity, and every Muslim is responsible for his own Ijtihād in front of Allah. But it is not the case for the matters related to the governance, namely, Ijtihāds in the legislation of the Qānūn, because these Ijtihāds are binding not only on the legislators themselves but on the other peoples also, and there is nobody in the world who has the right to dominate the others except Allah. Rather it is an infringement on the prerogative of Allah, the sole Legislator (Shāri‘), namely, the most serious sin of the self-deification. Therefore, we should be so cautious that we might legislate no Qānūn contrary to the Aḥkām Fiqhīyah deduced from the Sharī‘ah, in order not only to infringe on the prerogative of Allah for the commandment but also not to violate the dignity and freedom of the others. In Sunni Islamic political thought, it is the matter of the fact that the Caliph is neither above the Sharī‘ah nor the ultimate authority for its interpretation, rather, he should obey the Sharī‘ah and the Aḥkām Fiqhīyah deduced by the Fuqahā’ just like other ordinary Muslims. This is the very concept of “Rule of Law”, furthermore, in Islamic “Rule of Law” not only the person of the Caliph but also the Qānūn, man-made rule, should not transgress the Aḥkām Fiqhīyah deduced by the Sharī‘ah, the very Law. The Islamic Civilization is based on the concept of the “Rule of Law”, consequently, it keeps its identity with the Sharī‘ah and the Aḥkām Fiqhīyah as its constitution, while it can change to adapt itself to the changing circumstances through individual Ijtihāds and the legislation of the Qānūn, but only within the limit of its constitution, the Sharī‘ah and the Aḥkām Fiqhīyah. 2. Universality of Islamic Civilization Islamic Civilization claims to be universal by nature, because Allah is the sole Lord of the universe, Rabb al-Samāwāt wa-al-Arḍ (Lord of the heavens and the earth), the Prophet Muhammad was despatched as the mercy for the worlds, Raḥmatan li-al-‘Ālamīn, and the Human being (Adam) is the vicegerent of Allah on the earth, Khalīfah Allāh fī al-Arḍ. Thus the Islamic Civilization is not only to survive but to be spread all over the world as the universal civilization. But it does not mean that Muslims should proselytize all the human beings into Muslims, but it means that Muslims have the responsibility to spread the “Rule of Law” all over the world, while they also should clarify that the true “Rule of Law” can’t be realized except with the Sharī‘ah. Islam never forces the faith of Islam upon anyone. However, the Islamic Civilization of the “Rule of Law” or Dār al-Islām (House of Islam), namely, the lands under the “Rule of Law,” should be spread all over the world, in order that the earth and human beings would be liberated from the unjust rulers who usurp the sovereignty of Allah. The governance of the Islamic Civilization must be expanded all over the earth, even by sometimes resorting to military power, because Islam means denying the power of all the things that rule over people beside Allah, thus in case there exists external rule enforced by violence, i.e., political domination, it is necessary to liberate the ruled people from the local rulers who enclosed the people within their domain in order to exploit them by tax collection, enforced labour and conscription etc., even by counter-violence or violent confrontation. This is shown clearly in Islamic rules of warfare, Aīkām al-Jihād. If only Non-Muslims pay the Jizyah tax, fighting is no more allowed, even though they don’t embrace Islam. But fighting becomes unavoidable when tax payment is refused. That is, the purpose of the Jihād was admission of the Islamic governance by tax payment, not proselytization of Islam. In other words, spreading the Islamic governance was the first priority which must be promoted even with military force. Although military confrontations are not rejected theoretically, it is matter of the course that the nature of Islamic “Rule of Law” should be explained before the military confrontation to avoid the unnecessary one. The Islamic Civilization is based on the “Rule of Law”, which guarantees the security of life, property, and dignity for all the inhabitants regardless of their race, language, ethnicity, religion, nationality, etc. Also it allows free movement of people, commodities, and money without any prevention or imposing tariffs inside Dār al-Islām where the Islamic Civilization is realized. Therefore Non-Muslims can co-exist with Muslims side by side in the Islamic Civilization, except that the political responsibility and authority are in the hands of Muslims who believe in the cause of the Islamic “Rule of Law” and they should commit themselves as “active citizens” with maintaining this Islamic governance, while Non-Muslims who don’t believe in the cause of the Islamic “Rule of Law” are not be forced any commitment with this Islamic governance and able to live in peace with justice enjoying the security as “passive citizens” only by observing outwardly the public rules of the Aḥkām Fiqhīyah common to Muslims and Non-Muslims. The Islamic Civilization or the Dār al-Islām can realize the co-existence of Muslims and Non-Muslims inside it as well as it can co-exist with other civilization outside in spite of its claim to be the universal civilization. In fact, the Sharī‘ah orders the spread of the Islamic “Rule of Law” all over the world even with resort to the force, however, it is practically almost impossible that the total war would happen between the Islamic Civilization and the others in the contemporary world, because the very Sharī‘ah, on which the Islamic Civilization is founded, strictly prohibits “collateral damages” or casualties of non-combatant women and children which occur inevitably in the inhuman cotemporary total war. Thus, the total war between the Islamic Civilization and the others in the contemporary world is quite improbable, although, to our sorrow, skirmishes might happen anytime as is usual in human history. Therefore, the Muslims should re-establish the Islamic Civilization by realizing the “Rule of Law” by themselves, then spread it from the Dār al-Islām all over the world under the banner of the Khilafah, the symbol of the uniqueness and integrity of the Islamic universalism. It is necessary for ‘Ulamā’ and Muslim intellectuals should sophisticate the choice of Aḥkām Fiqhīyah of Ahl al-Dhimmah (protectees) and Sīrah (international law) suitable for the contemporary complicated fragmentation of traditional religions, their denominations, and pseudo-religious ideologies and beliefs, to elaborate the legislation of the Qānūn for the autonomy of religious minorities and the international relations for sake of peaceful co-existence with Non-Muslims inside and outside, without relinquishing their claim for the universality of the Islamic Civilization. It means that we should make every effort to promote the true globalization, not the fake one which is nothing but a camouflage for the new American imperialism, to realize an ideal world without borders, as well as we should try to attract all freedom loving nations to be integrated into the Dār al-Islām. Meanwhile, we should also try to facilitate the emigration of Muslims who prefer to the Western cultures to the West. Conclusion The Sharī‘ah and the Aḥkām Fiqhīyah based on it are the “constitution” of the Islamic Civilization for defining its identity and guaranteeing its continuity. The Islamic Civilization is characterized by its “Rule of Law”, while the Sharī‘ah and the Aḥkām Fiqhīyah based thereon are the very “Law” which is in fact the most sustainable and well-known and well-observed law in terms of the legal certainty. Therefore, the changes in the Islamic Civilization should be under the “Rule of Law” or within the limits of the Sharī‘ah and the Aḥkām Fiqhīyah based thereon. The Ijtihād is the tool for the change at the individual level, while the legislation of the Qānūn based on the Ijtihād of the rulers is the tool for the change of the whole Muslim community, the Ummah. The Islamic Civilization is universal by nature, so it should be propagated to all over the world, after reestablishment of the Khilāfah and the Dār al-Islam by the Ummah itself, which are the symbol of the universality and unity of the Islamic Civilization. And it needs the innovation of the Qānūn to guarantee the autonomy of religious minorities and to settle the international relations for sake of peaceful co-existence with Non-Muslims inside and outside.