The Way of Reading a Document

Just as sacred texts are subjected to tafsir, human-authored historical texts may also be interpreted through a similar process. Tafsir is a form of commentary, a particular way of reading, and what I seek to do with regard to the Medina Charter is precisely a kind of “tafsir.” If the text we are trying to interpret is a product of revelation, then the “divine intent” (murad) inherent in the divine address is sought, and the “purpose” (maksat) is explored in its rulings and propositions.

Just as I tried to interpret the Qur’an in the seven-volume work Qur’an Lessons after ten years of study, I also attempted a tafsir of the Prophet’s sīra (life and practice). I would argue that this approach differs from previous commentaries in significant ways. My conviction is that, by making use of a hermeneutic (a method of thinking) that is not at all foreign to the dynamic intellectual tradition which, up until the Abbasid “break” in the middle period, gave rise to a highly productive Islamic culture, we can overcome both the mental rigidity that followed that historical rupture and the modernity that now imposes itself on us with refined methods. I believe that this new reading of the sīra in the light of the Qur’an and the Sunna will, in time, lead to a fundamental change in how Muslims view the sīra, history, and contemporary events.

There is no single way to read doctrines that aim to guide human life. This is true both for humanist doctrines that leave no place for the divine, and for religious teachings that establish a bond between the human being and the sacred. Here we face a complex and in some respects paradoxical problem: How is it that religions which claim to express absolute truth can be read and interpreted in so many different ways?

This issue is related to debates conducted at the epistemological level. Just as Truth does not disclose itself in a single being or form, religions cannot be reduced to a single, exclusive interpretation. For this reason, Islamic teaching recognizes as a right the possibility that an individual may interpret that teaching in different ways. This right may be expressed under general concepts such as tafsir (exegesis), ta’wil (interpretive reading) and ijtihad (independent reasoning).

Ijtihad is a human and individual endeavor tied to cehd and mujāhada (effort and striving). Accordingly, there will be as many legitimate differences in religious interpretation as there are individuals who possess the requisite formation and competence to exercise ijtihad, and each of these differences rests on the legitimate exercise of a right. In Islamic history, the period when “official society” gained near-complete, if not absolute, dominance over “civil society” corresponds to the middle Abbasid period, which is also when efforts were made to close the “gate of ijtihad.” Until that time, the civil Islamic community defended itself vis-à-vis the official order through ijtihad and through independent civil mujtahids; it sustained its existence by means of institutions in law, education, science, art and literature, economics, trade and other fields that it had established on its own.

With the closure of the gate of ijtihad, the free spaces belonging to society were narrowed; the channels that enabled participation and carried social will and demands from below to above were blocked. In a setting where robust scholarly minds freely enter the “marketplace” and offer their products and works, their ideas and solutions find acceptance and demand to the extent that they possess high quality and genuine benefit, just as in a free (not necessarily capitalist) economic market. Ijtihad does something similar in the realm of law: it turns legal solutions and techniques into matters of free choice in all domains of human life. Here the decisive factor is not official society, but the free choices of individuals and the conscious society formed by those individuals. Consequently, both the individual and society are responsible for their own destinies, because they are the product of their own choices. (Qur’an 13:11) If, however, official society selects one among many ijtihadic views and turns it into the sole official position, or if it abolishes the very right of ijtihad, then individual and social freedoms disappear and totalitarian methods of coercion take the place of freedom.

At this point we must remember that we are treading on very delicate ground. When a community of individuals who have chosen to live according to the ijtihad or madhhab of a particular mujtahid, under the banner of ijtihad freedom, begins to expel others from the sphere of religion, to takfir them (declare them outside the faith) and thereby intimidate them, or to compel everyone to live according to the views of that selected madhhab, or to seek to control the state on behalf of their own madhhab or religious community, does this not risk the disintegration of social unity? How, in such a situation, can we secure both freedom and unity under conditions of safety?

As in the past, political authorities today are not keen to see the gate of ijtihad opened. For political power, the opening of ijtihad implies that government decisions and practices will be opened to deliberation and debate, and that avenues of oversight will remain open. At the same time, ijtihads, together with the lifestyles and attitudes based on Islamic interpretations, lead to the formation of a civil community for each mujtahid whose interpretations are taken as reference. None of this is to the liking of a state whose aim is to supervise society from above.

Undoubtedly, there will be those who read the doctrine from a totalitarian perspective and who will invoke the “harm” of difference in the face of such perceived threats. Yet if social preference manifests itself in a different direction, there is still nothing to fear. Even if, despite all libertarian interpretations, the general preference inclines toward totalitarianism, there is nothing more to be done at that stage; society will simply have to pay the price for that choice. One need only recall the price paid by the German nation, which brought Hitler’s National Socialism to power through democratic choices, and the price that today’s Muslim world, as if buried under a shroud of dust, is still paying.

At a general level, this has to do with how societies position themselves vis-à-vis the operative divine and natural laws. Yet, in the case of a contractual pact formed by social groups or sociologies that have expressed a will to live together, there is an urgent need for explicit provisions stating that individuals or groups (organizations, parties, communities) will under no circumstances be allowed to attack the right to life of others by declaring them unbelievers; and that if they do, they will face severe sanctions. Otherwise, individuals and organizations can easily claim the right to punish their opponents, or those who do not believe and live as they do, on the basis of their own “ijtihad.” We witnessed dramatic examples of this in the twenty-first century. Just as there cannot be more than one system of public law, so too, as the great theologian Hasan al-Basri (d. 728) and, much later, Max Weber (d. 1920) maintained, the penalty for any public crime can only be carried out by public authority. Individuals and groups have no right to impose or execute punishments either on members of their own inner structures or on others. The monopoly on the use of force belongs solely to the state, and only insofar as it acts in conformity with law.

On the other hand, there are also serious problems related to the state itself. Because the political domain belonging to public law was left to dynastic regimes; because the sources of legitimacy for ‘urfī (customary) law, which developed outside the shar‘ī legal framework, and for the ta‘zīr rulings whose scope was greatly expanded in the books of fiqh, were not critically interrogated, the Islamic world ultimately lost control even of civil life and came to deserve a heavy penalty. The Tanzimat Edict of 1839 drove the final nail into the coffin of the Muslim’s civil existence under the pretext of addressing these unresolved problems.

When we look at history from a bird’s-eye view, we see that during the authentic “Age of Felicity” (Asr al-Sa‘āda, 610–632), official and civil spheres both possessed a pluralistic character. This striking example shows that the opposition between official and civil society is not absolute; under suitable arrangements, official society can actually become an expression of the desires and will of civil society.

During the dynastic period of history, particularly after the thirteenth century, official society gradually evolved in an increasingly totalitarian direction and bequeathed these tendencies, as a deep-rooted legacy, to those contemporary intellectual arenas in which Islamic thought expresses itself using modern tools. If, in these arenas, totalitarian tendencies dominate over libertarian and pluralistic orientations, one reason is that the distinction between Islam as interpreted in the age of ijtihad and “historical Islam” as defined by official society in the post-ijtihad era has not yet been clearly drawn.

In broad outline, the general history of Islam can be divided into the following main periods:

1. A period in which the official and civil spheres were fully pluralistic. This is the short-lived Age of Felicity (610–632).
2. The first dynastic period, in which official society separated from civil society and acquired increasingly totalitarian and repressive tendencies, while civil society managed to preserve its pluralistic structure. This continues until the middle Abbasid period.
3. From that point on, we see official society growing progressively stronger vis-à-vis civil society, with law and education passing into the hands of the state. The first rupture in the legal sphere occurs when Abu Yusuf (d. 182/798) accepts the post of Chief Judge (Qādī al-qudāt) under the Abbasid administration (782 CE). The first break in the educational sphere occurs with the Nizamiyya Madrasas established by the Seljuk vizier Nizam al-Mulk (459/1067).
4. In order to secure itself fully, official society under the Seljuks and Ottomans separates itself from civil society; the sultan, who controls the caliph and later becomes caliph himself, also creates a class of scholars who will legitimize ‘urfī law and support it with fatwas. In this period, the civil sphere came to be associated with the Sharī‘a, while the official sphere was based on ‘urfī law.
5. The first step in the complete subjugation of the civil sphere by official society is taken with the Tanzimat and continues with the Second Constitutional Period, reaching completion with the proclamation of the Republic. The abolition of the Sharī‘a ensured that all civil initiatives and spaces were transferred to state control. From that point onward, the state sought not only to produce a class of wealthy individuals in its own greenhouse, but also to create civil-state organizations (so-called NGOs that are effectively state-controlled) in the civil domain.

In the Age of Felicity and, despite everything, throughout the dynastic centuries, the “civil sphere” managed to preserve its pluralistic character. Setting aside the partisan accounts of Abbasid historians and adopting a more objective view, the Umayyad period was in this respect better than the Abbasid period. Under the Abbasids, the rulers tried to protect themselves against the threats posed by dissenting mujtahids by attempting to close the gate of ijtihad and by declaring the Mu‘tazila to be the “official” theological school. Even then, however, they failed to establish a true legal foundation for this stance. The aforesaid “legal foundation,” which was in fact a merely statutory basis, would be realized only in the Ottoman period through the emergence and partial codification of ‘urfī law.

In the Ottoman order, public law and politics rest not on the Sharī‘a but on ‘urfī law. Presenting the Ottoman system as a model for modern times has had a dramatic consequence: it has led contemporary Islamic/Islamist movements to reproduce, in the language of modern political and social science, authoritarian models that are in fact contrary to the Prophet’s praxis and to the spirit of the Sharī‘a.

This historical trajectory of Islamic political experience has, in a broad sense, impeded the development of public law in Islam. One indicator of this is that questions concerning political machinery and forms of government (in the context of administrative and constitutional law) appear in works of fiqh (jurisprudence) and kalām (theology) only in a few lines and in very weak propositions. In neither discipline do we find satisfactory information, reflection, or analysis concerning public or administrative law. Since the ‘ulama did not themselves engage in politics, they did not treat these issues as part of the central agenda of fiqh. From time to time, works such as Ahkām al-Sultāniyya (al-Māwardī), Kitāb al-Kharāj (Abu Yusuf), Kitāb al-Amwāl (Abu ‘Ubayd) and, predominantly, the “mirrors for princes” (siyāsatnāma) literature were produced, yet these did not contribute to the formation of a socio-political system that would be compatible with the general ideals of Islam and with the spirit of the Prophet’s sīra and Sunna. Rather, they limited themselves to offering advice to sultans and caliphs, whose accession to power was often illegitimate from the outset. In these books, if the caliph or sultan happened to be good, society’s fortune was considered good; if he was bad, there was nothing to be done beyond offering him counsel. The mechanisms and institutions of shūrā (consultation), which signifies the effective and decisive participation of the governed, of the various social formations that make up society, in decision-making processes, and bay‘a (oath of allegiance), which, as a fully legal contract, ought to define the formation of political authority, were not implemented in any era after the martyrdom of ‘Alī (661 CE). Bay‘a functioned merely as coerced obedience enforced by the sword.

In the works of fiqh and kalām, what is discussed is not the nature of institutions and mechanisms that might allow a living politics to develop, nor the creation of a framework that, while not neglecting appeal to the ideal, simultaneously offers acceptable justifications for enduring the existing political order. Occasionally, a weak form of political philosophy is pursued, but only from a distance. Looking back, apart from the ideal state theory developed within the philosophical system of al-Fārābī (al-Madīna al-fāḍila, “the virtuous city,” or al-mujtama‘ al-madanī, “the civil community”) and Ibn Khaldun’s Muqaddima, which describes the forms of political formation on a historical and sociological basis, we find very little literature that can guide us today.

If totalitarian political tendencies dominate the contemporary Islamic world, one reason is the continuing influence of this “official” historical experience of Islam; another is the misfortune that Muslim scholars and intellectuals have had to form their political views on Islam under totalitarian and repressive regimes. We have not yet undertaken a serious critique of this legacy, because we lack the criteria and models that would enable us to evaluate our historical experience outside the paradigmatic influence of modern socialist and liberal political philosophies. The Medina Charter is the Prophet’s practice grounded in the revelatory authority of the Qur’an. It is, therefore, the embodiment in historical form of the Qur’an’s rulings on this subject through the Prophet’s Sunna and sīra.

The first generation of Islamic activists (1850–1924), who understood Islam as the revival, reform, and renewal of a collapsing world, based their movement on three fundamental principles: a return to the Qur’an and the Sunna; the reopening of the gate of ijtihad; and the awakening of the spirit of jihad. Their starting point was correct, and their goal was sound.