By Cyril Anderson

Part 3 of 4

Through a process called ijtihad, which literally means, to strive or exert great effort, the religious scholars examine the old religious texts in the light of new evidence to provide moral guidance through the complexities of contemporary life.  This process of ijtihad is the vital spark that keeps Islamic law, the shariah, fresh and vital throughout the changing conditions under which Muslims live over the years.  For example, modern Islamic scholars have studied about modern reproductive technologies to better fulfill their duty of leading their followers through the minefield of the complicated issues associated with these technologies.    These scholars have published fatwas, or religious rulings, regarding abortion, stem cell research, in vitro fertilization, surrogate motherhood, and artificial insemination, among other things.  These rulings do not for the most part, represent, at least among the scholars of the Shia branch of Islam in which ijtihad is most practiced, simple “knee jerk” reactions of prohibition on any new technologies, but rather reasoned, nuanced positions based on careful research of the scientific facts of the matter.  Another example is in the context of the political developments and electoral process in Iraq over the last few years.  The Grand Ayatullah Ali Seestani, the highest ranking Shia cleric in Iraq, greatly influenced the process of setting the criteria as to how elections would be carried out through a series of important fatwas delivered to his followers, who make up the majority of the population of Iraq.  He did not simply shout simplistic, reactionary statements like “democracy is polytheism” and other such extreme and uncompromising statements, but rather made carefully reasoned recommendations based on careful research into political science and electoral processes in order to try to guide his followers in favor of a system that would provide the best possible outcome in terms of the representative nature of the resulting government.  He also issued fatwas instructing his followers to vote in the elections in order to maximize participation, thereby encouraging representation of his people and the stability of the country.

The religious scholars whose duty it is to derive religious law are required to develop deep knowledge of a range of different subjects, including math, science, logic, philosophy, history, psychology, sociology, economics, etc, with many scholars becoming specialists in particular areas of law, for example, laws of economics, finance and banking, laws regarding women, and laws for Muslims living in non-Muslim societies.

It should be noted that ijtihad does not mean a free for all where everything is on the table for revision.  The flexibility allowed by ijtihad does not imply any sort of moral relativism.  As said before, the law is based of certain fundamental principles of Islamic ethics.  Some major laws and these key principles are seen as timeless reflections of essential human nature, and as such, are not subject to change.  Alcohol is forbidden.  So are gambling, premarital sex, adultery, homosexuality, and a number of other issues.  The prohibition on such things remains even with changing social conditions, because it is believed that the harm of them to human society remains.  Other things, for example central aspects of the religion such as prayer, fasting, hajj and religious taxes remain obligatory.  The role of religious scholars is to decide such issues as whether, for example, the new developments of pornographic photographs and videos and casual internet chat between unmarried people of the opposite sex are forbidden activities, how one should conduct formal ritual prayers on an airplane, how long a Muslim living above the Arctic circle in 24 hour daylight or 24 hour sunlight should fast in Ramadan, or whether religious taxes are to be paid out of modern paper currency, or how a bank can function profitably in the modern world without paying or charging interest.

The classes of Islamic laws

It should also be clearly be noted that in the Islamic legal code, there are several different types of religious laws.  This same idea is seen in Western legal systems.  There are first of all in the West the basic principles of ethical and moral interaction amongst people, which, though not formally enforced, play a major role in regulating peoples behaviour and preserving order in society.  In addition to this are the formal legal frameworks, involving a number of different types of laws, including family, marriage, and divorce law, financial, trade, and commerce regulations, civil law for settling disputes between citizens, and criminal law to punish those who commit serious crimes against other people.  Islam similarly has several classes of laws encompassed under the umbrella of shariah:

1.     laws regarding how to practice the rituals of religion (managing relationship between believer and his Creator)

2.     Laws for civil matters, e.g. marriage, divorce, laws for contracts and businesses, etc.

3.     Criminal laws governing laws governing offenses against other people, or against society, e.g. adultery, rape, pre-marital sex, homosexuality, manslaughter, assault, murder, personal injury, theft, etc.

The first group of laws, those regarding the practices of the religious ritual, is not a matter to be enforced by police forces or courts.  As the Qu’ran says, “there is no compulsion in religion.”  The purpose of those laws is to allow the believer to know what is expected of him for these key rituals of the religion, and how to perform them properly.  Police cannot force someone, for example, to fast or pray.  The matter of whether these laws are followed or broken is a private matter between the believer and his Creator.  Law enforcement and the courts oversee only those laws whose violation affects negatively other people or society as a whole.  The only exception to this idea that basic religious ritual is only between the believer and God would be the religious taxes in an Islamic state, which are used for public benefit.  In this case, non-payment is in a sense taking away from the people, and so is punishable, just as “tax evasion” is in countries like Canada.

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