Tajdeed

Can Islamic Law Change Based on Time, Context and Custom? –

Introduction

This article is an academic response to the controversial subject of the changeability of Shari’i injunctions and certain rulings being based on the custom of the people of that time rather than the ruling being applied universally in all times and places. To prove this, some have cited verse 8:60 to show the flexibility in methods of Quranic injunctions. They argued that similar to verse 8:60 mentioning the relevance of war horses during war in that historical context, he argued that the Hudood punishments are also confined to that particular context of Arabia (like the description of war steeds). 

In turn, this suggests that the methods of punishment should always reflect the day and age in every culture. The particular injunctions of the Qur’an are not always universal, so Muslims should not imitate the exact measures ordered by Allah in the Qur’an and they should develop their own methods. This would mean that these laws are descriptive instead of being prescriptive universally. Accordingly, we should change these Quranic laws over time in order to fit the dynamic changing contexts and customs of the worlds in an applicable manner to tackle the societal problems the Qur’an was addressing. 

For instance, instead of lashing the fornicator, or amputating the hand of the thief, different measures should be used in the modern context which suit the people in order to tackle the mentioned issues.

The Proof for the Flexibility of Shari’a

As mentioned, the main verses used to support this is

وَأَعِدُّوا لَهُم مَّا اسْتَطَعْتُم مِّن قُوَّةٍ وَمِن رِّبَاطِ الْخَيْلِ تُرْهِبُونَ بِهِ عَدُوَّ اللَّهِ وَعَدُوَّكُمْ وَآخَرِينَ مِن دُونِهِمْ لَا تَعْلَمُونَهُمُ اللَّهُ يَعْلَمُهُمْ ۚ وَمَا تُنفِقُوا مِن شَيْءٍ فِي سَبِيلِ اللَّهِ يُوَفَّ إِلَيْكُمْ وَأَنتُمْ لَا تُظْلَمُونَ

“And prepare against them whatever you are able of power and of tethered horses (ribāṭ al-khayl) to strike terror into the hearts of the enemies of Allah and your enemies…” (8:60)

Sahih International

And prepare against them whatever you are able of power and of steeds of war by which you may terrify the enemy of Allah and your enemy and others besides them whom you do not know [but] whom Allah knows. And whatever you spend in the cause of Allah will be fully repaid to you, and you will not be wronged. (8:60)

The argument put forward is that since Allah tells the Muslims of the time to bring their war horses to incite fear into the hearts of their enemies, this then proves that not everything commanded by God in the Qur’an is universally applied because the wars of today are achieved by modern warfare and advanced technology which means that Muslims cannot fulfil this commandment coherently or practically.

The answer to this is that this particular command is not the same as the other prescribed laws in the Qur’an, in fact this is not even a law, whereas Hudood punishments or inheritance rules in the Qur’an are a part of Divine law. The texts need to be read carefully to solve this so-called dilemma.

Is this Verse Descriptive or Prescriptive?

In contrast to the Hudood laws, this imperative in verse 8:60 of the war horses is descriptive, it is not prescriptive as other injunctions. The key evidence to prove this is the first phrase which commands Muslims “And prepare against them whatever you are able of power”. After God commands the Muslims to prepare whatever they can from their abilities, He then mentions the preparation of the war horses because the steeds were amongst the most, if not the most useful tool in war which terrified the enemies during that period. Since modern people have technology that is more terrifying than war horses, this proves that Muslims are then commanded to utilise these modern tools in order to fulfil the obligation of terrifying their opponents as commanded by God in the verse (8:60). 

The Effective Cause of the Command

This is because the aim or the علة (effective cause of the ruling) of the command is to scare the aggressors and the means to this objective is to do whatever one can from their abilities in order to fulfil the aim of spreading fear. What this means is that this particular command can be rationalised, so it is ta’qulli and ta’lili (تعقلي وتعليلي), it is not a ta’buddi ruling. This means that the effective cause of the command in the verse can be rationalised and understood due to the reasoning of the command being explicitly mentioned in the verse.

As agreed by all sane minded people, this means that war horses of old are insufficient and they do not fulfil the required obligation of “And prepare against them whatever you are able of power” because modern people can prepare more than war horses and if they do not, they will not fulfil the obligation of terrifying the enemy. Therefore, the mention of the steeds of war are descriptive of that time and context, it is not a prescriptive universal law or ritual. Instead, the universal part of the commandment is to terrify the enemies with whatever method is available (as the verse states).

Since we have proven the general command of inciting fear against the enemy with whatever means possible from the ability of the Muslims, now we need to analyse the verses of the Hudood and other key laws of the Qur’an in contrast to this verse of war horses. 

Inheritance Laws in the Qur’an

To start off with the inheritance laws prescribed in the Qur’an, the verse of inheritance laws is concluded with this:

لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًا ۚ فَرِيضَةً مِّنَ اللَّهِ ۗ إِنَّ اللَّهَ كَانَ عَلِيمًا حَكِيمًا

you know not which of them are nearest to you in benefit. [These shares are] an obligation [imposed] by Allah . Indeed, Allah is ever Knowing and Wise. (4:11)

This wording is a clear distinction to what is mentioned in 8:60 about war horses. Evidently, the general obligation in 8:60 is to use whatever means you have to terrify the enemy forces, which establishes the changeability of the means to reach the end, whereas inheritance laws are clearly detailed with the particular method or the means to give inheritance to the heirs. So, in the first instance there is freedom in the methods of terrifying the enemy, whereas in the latter example, God informs us and commands us how to divide the inheritance.

After mentioning the method of division, the Legislator emphasises that these laws are an obligation from Him and that people do not know who is the most deserving of inheritance, so God intervenes and determines and prescribes how the inheritance will be distributed as an obligation from Him. So, the question then arises, how can inheritance laws be open to changeability if it is a law of obligation from God?

This is especially relevant since Allah is emphasising on one of the causes of the origin of the prescription which is that the human mind does not know what is the best in such a scenario. So, the question then arises, how can the human being centuries later speculate that men and women should now get equal shares due to the change of culture? Where does the Qur’an point to this changeability? Without a doubt there are certain parts of the Sharia that are flexible like the command of bringing war horses into battle but in these instances the Law giver has given the علة (effective cause) for the changeability and the wording of the phrase opens the door to flexibility. So, the flexible rulings are open to changeability due to تعقل or تعليل. (ta’aqqul and ta’leel means to rationalise and to point to the effective cause of the ruling).

The example cited in this instance to prove flexibility is the phrase “And prepare against them whatever you are able of power” in verse 8:60 which establishes flexibility and changeability because the wording clearly points to that. Yet you cannot see this indication in the verse of inheritance. On the contrary, the wording of the verse closes change and instead shows the universality of this Divine obligation, so one cannot reduce it to historicism or the context of Arabia during that time. 

There is more proof that the inheritance rulings prescribed in the Qur’an are very different from the descriptive explanation of war horses in 8:60. Ponder over how the clearly Qur’an describes the Divinely prescribed laws of inheritance

Hudood: Sharia & The Limits of God

تِلْكَ حُدُودُ اللَّهِ ۚ وَمَن يُطِعِ اللَّهَ وَرَسُولَهُ يُدْخِلْهُ جَنَّاتٍ تَجْرِي مِن تَحْتِهَا الْأَنْهَارُ خَالِدِينَ فِيهَا ۚ وَذَٰلِكَ الْفَوْزُ الْعَظِيمُ

Sahih International

These are the limits [set by] Allah , and whoever obeys Allah and His Messenger will be admitted by Him to gardens [in Paradise] under which rivers flow, abiding eternally therein; and that is the great attainment. (4:13)

The Qur’an explicitly establishes that these rulings are the limits set by Allah and that these laws need to be obeyed. So, how can one compare such a law from God, with the example of God saying “And prepare against them whatever you are able of power and of tethered horses (ribāṭ al-khayl) to strike terror into the hearts of the enemies of Allah and your enemies…”?

These are two very different things, as mentioned bringing horses in battle is not even a law or a ruling, the only law is to fight the aggressors who show enmity and in order to subdue them, you need to incite fear during battle. This command is not the same as the explicit command of lashing a fornicator 100 times.

To continue with the evidence that the Hudood punishments prescribed by God and the inheritance laws obligated in the Qur’an are incomparable to the Qur’anic description of tethering horses during war are seen in other passages as well.

الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِّنْهُمَا مِائَةَ جَلْدَةٍ ۖ وَلَا تَأْخُذْكُم بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ إِن كُنتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۖ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِّنَ الْمُؤْمِنِينَ

Sahih International

The [unmarried] woman or [unmarried] man found guilty of sexual intercourse – lash each one of them with a hundred lashes, and do not be taken by pity for them in the religion of Allah (Deenillah), if you should believe in Allah and the Last Day. And let a group of the believers witness their punishment. (24:2)

The first thing noticed in this verse is that unlike the description of tethering horses in battle to bring fear into the hearts of the enemy in 8:60, this particular verse establishes a particular ruling prescribed directly by the Almighty, hence why the verse says “do not be taken by pity for them in the religion of Allah”. This wording of “the Deen of Allah” proves that this is a law of God and the law of God does not change based on culture, custom or the change of time. 

The question the people of criticality need to ask themselves is, did Allah say bringing horses into war is the religion of God? Of course not because it is merely descriptive of the scenarios of that context. The only Divine obligation in the verse (8:60) is using whatever means from the best of one’s abilities to bring fear into the hearts of the enemies, so since Allah says “do whatever you can from your abilities“, this does not confine the method or means of inciting fear to bringing war horses to battle. 

Since Muslims have the ability to use greater means like modern technology to bring fear, then it becomes obligatory to use them instead of horses of old in order to complete the duty put forward in the verse. Therefore, the bringing of war horses is rendered merely descriptive, rather than prescriptive like the Hudood punishments or laws of inheritance which are openly described as the Deen (law) of Allah and the limits set by God as an obligation from God.

So how can something described as an obligation, or the Deen (law of God) be compared to the description of horses in 8:60? Moreover, how can something described as an obligatory law set as a limit to be obeyed by God be subject to change without definitive proof and mere speculation?

وَمَا يَتَّبِعُ أَكْثَرُهُمْ إِلَّا ظَنًّا ۚ إِنَّ الظَّنَّ لَا يُغْنِي مِنَ الْحَقِّ شَيْئًا ۚ إِنَّ اللَّهَ عَلِيمٌ بِمَا يَفْعَلُونَ

Sahih International

And most of them follow not except assumption. Indeed, assumption avails not against the truth at all. Indeed, Allah is Knowing of what they do. (10:36)

وَلَا تَقُولُوا لِمَا تَصِفُ أَلْسِنَتُكُمُ الْكَذِبَ هَٰذَا حَلَالٌ وَهَٰذَا حَرَامٌ لِّتَفْتَرُوا عَلَى اللَّهِ الْكَذِبَ ۚ إِنَّ الَّذِينَ يَفْتَرُونَ عَلَى اللَّهِ الْكَذِبَ لَا يُفْلِحُونَ

Sahih International

And do not say about what your tongues assert of untruth, “This is lawful and this is unlawful,” to invent falsehood about Allah . Indeed, those who invent falsehood about Allah will not succeed. (16:116)

Changing the Deen?

Further to this, we understand how war horses will be replaced to fulfil the objective of terrifying enemy combatants, but how would one replace the punishment of 100 lashes by doing justice to the punishment and bringing something equivalent and suitable? We will be certain that having tanks or missiles instead of war horses in a modern context will further fulfil the obligation of “doing whatever one can from their ability” in order to “terrify the enemy” but how can one replace the 100 lashes with certainty? When dealing with the crime case of fornication, how would one find the modern equivalent to lashing? For those who say financial penalties, what similarity or likeness do financial penalties have with lashing the body 100 times? This is especially important since financial punishments do not damage the very rich, unless you prescribe an unreasonable financial punishment to the rich based on speculation. Yet, evidently, 100 lashes is a corporeal punishment that universally punishes all criminals.

Also, it is very important to pay attention to the key detail of 100 lashes because the particular number is significant, the prescription of a certain number makes the prescribed ruling a Ta’buddi law (تعبدي), very different from rulings which are ta’leeli (تعليل).

Ta’buddi vs Ta’leeli

In contrast to laws that have Ta’lil (rational or effective cause for the ruling), the number 100 is not given a rationale, so it is similar to the units of prayer or being obliged to pray at 5 different times of the day. There is no effective cause given for the 3 units of Maghrib Salah and 4 units of Isha Salah, so these are fixed and not subject to change because the rationale is not even given to us by the Legislator. Likewise, since Allah obligates 100 lashes, we know that 90 or 80 lashes do not fulfil the obligation because they do not fulfil the clear command of 100 lashes. Additionally, as the Qur’an shows, 80 lashes is the punishment for another crime which is further proof that the method of punishment is different based on the crime, so the 100 lashes become necessary to determine the particular punishment of the specified crime. The punishment for zina is 100 whereas the punishment for qadhf is 80.

وَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمَانِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا ۚ وَأُولَٰئِكَ هُمُ الْفَاسِقُونَ

Sahih International

And those who accuse chaste women and then do not produce four witnesses – lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient (24:4)

The punishment for accusing (qadhf) innocent women of fornication without the necessary requirement of proof is 80 lashes. Therefore, one cannot give 90 or 80 lashes for a fornicator, it needs to be 100 to meet the mentioned requirement otherwise it will resemble another crime. If God commands 100 lashes then this is something specific, which needs to be obeyed and implemented in the way that the verse says. The numbering of the lashes to a particular number shows that we do not know the exact rationale or the ratio legis (علة) of why it is 100 and why 90 lashes will be insufficient even though it is close in number. This demonstrates that this hukm (ruling) is completely ta’buddi (obeyed without knowing the rationale/ratio legis) because God did not reveal the rationale for the numbering of the lashes, like he refrained from mentioning the reason for the units of Salah in the different times of prayer.

Since it is proven that these Hudood punishments are very specific and detailed in their methods (e.g. 100 lashes is required, 90 is insufficient) which makes these rules ta’buddi, without them being given a legal reason or effective cause. Then the question arises, how can one change these Divinely prescribed laws if the rationale for their key details is unknown to man? It is evident that ta’buddi laws cannot change due to not knowing the effective cause of the ruling. 

The Legislator emphasises on the number of 100, so if one believes the method to punish zina to be flexible, then the number 100 must remain due to it being established. So, how will one replace this with financial penalties? Will those judges punish them with a $100 dollar fine or 100 days in prison? Of course these examples are blunderous, and the cause of this blunder is conjecture and speculative thought on a matter that is clearly established and definitive in the Qur’an. More importantly, how can these Divinely ordained laws like the Hudood change since they are clearly described as the Law of God in the Book of Allah?

If someone wants to change this ta’buddi law of 100 lashes, then they can speculate and say I feel closer to God through meditation instead of Salah, so imagine someone replacing Salah with meditation due to them arguing that this is what brings them closer to God. The truth is that Salah is the particular way God wants you to reach the objective. Therefore, the Law of God is for us to reach God-consciousness through the ritual Salah and the way to punish fornicators is through the implementation of lashing the fornicator 100 times publicly.

It is From Allah, not Arabia

وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّهِ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ

Sahih International

[As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah. And Allah is Exalted in Might and Wise. (5:38)

In this verse, the punishment of amputation for the thief is described as an “exemplary punishment from Allah”. Similar to the Hadd punishment of 100 lashes for fornication being described as the Law of God (Deenillah) in Surah Nur. Likewise, this punishment is described as an exemplary punishment from God. The keyword here is the preposition من (translated to mean ‘from’). Therefore, this punishment prescribed by God is not merely the punishment method of the Arabian people of the time due to their customs, rather it is a punishment that is an “exemplary punishment from Allah”. The punishment being from God proves that it is prescriptive, instead of being descriptive of the Arabian context and custom of the particular time the revelation was revealed in.

إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَن يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُم مِّنْ خِلَافٍ أَوْ يُنفَوْا مِنَ الْأَرْضِ ۚ ذَٰلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا ۖ وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ

Sahih International

Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment, (5:33)

In this verse, we see a list of punishments for the crime of Hiraba. The punishment is not only one method like that of zina, qadhf or sariqa, but instead there are a few options given and this is the restriction of punishments. If there were more options of punishments, the verse would have mentioned it or the verse would have informed the Believers that the punishment can change based on time and context. This would have been relevant since there are already a variety of ways to punish the crime of Hiraba. However, the verse does not say that the punishment can change despite mentioning the limited, varying options or methods of punishment. What this means is that these are what the Muslims are limited to. This list is the way Muslims are supposed to deal with those who wage war against God and His Messenger after they have accepted the system of God (Islam) as the legislation.

Conclusion

To conclude, it is known that there are certain injunctions in the Qur’an & Sunnah that are changeable or flexible due to the wording found in the text about that particular matter and the rationale or effective cause of the ruling is given which makes it dynamic (تعليل وتعقل). 

In contrast to this type of ruling, other laws are تعبدي which means that they need to be obeyed in that particular way as worship towards God in full submission and obedience. As proven, the wording of inheritance laws, and Hudood punishments demonstrate that these Divinely prescribed laws are universally applied in all times and cultures due to them being described as the Law or Religion (Deen) of Allah that is to be embraced and implemented. 

Moreover, there are particular details of the rulings of punishment for qadhf or zina that prevent us from rationalising their details which reveal that the mentioned hukm is actually ta’buddi in of itself. For instance, we cannot give 80 lashes for zina and 100 for qadhf. 

Lastly, in the example showing the changeability of certain methods mentioned in the Qur’an, like that of bringing steeds or horses to war in verse 8:60, we come to understand that this changeability is not only allowed by the text, but it is obligated from the wording of the text itself in verse 8:60. Yet, there is no indication to show the changeability of the inheritance laws, or the Hudood punishments of the Shari’a. On the contrary, the phrasing of the verses of Hudood are drastically different to be compared, which proves that these are fixed rulings for the Muslim Ummah forever. So then, how can one change the Law of God (Deen/Sharia) based on speculation and assumption that is not dependent on certainty or evidence that is definitive? Everyone is obliged to ponder over the signs and verses of God’s final revelation to humankind.

أَمْ لَهُمْ شُرَكَاءُ شَرَعُوا لَهُم مِّنَ الدِّينِ مَا لَمْ يَأْذَن بِهِ اللَّهُ ۚ وَلَوْلَا كَلِمَةُ الْفَصْلِ لَقُضِيَ بَيْنَهُمْ ۗ وَإِنَّ الظَّالِمِينَ لَهُمْ عَذَابٌ أَلِيمٌ

Dr. Ghali

Or even do they have associates (with Allah) who have legislated for them as the religion that which Allah has not given permission? And had it not been for the Word of Verdict, indeed it would have been decreed between them, and surely the unjust will have a painful torment. (42:21)

وَإِن تُطِعْ أَكْثَرَ مَن فِى ٱلْأَرْضِ يُضِلُّوكَ عَن سَبِيلِ ٱللَّهِ ۚ إِن يَتَّبِعُونَ إِلَّا ٱلظَّنَّ وَإِنْ هُمْ إِلَّا يَخْرُصُونَ

“And if you obey most of those upon the earth, they will mislead you from the way of Allah. They follow nothing but conjecture (ẓann), and they do nothing but guess.” (6:116)

وَلَا تَقُولُوا۟ لِمَا تَصِفُ أَلْسِنَتُكُمُ ٱلْكَذِبَ هَـٰذَا حَلَـٰلٌۭ وَهَـٰذَا حَرَامٌۭ لِّتَفْتَرُوا۟ عَلَى ٱللَّهِ ٱلْكَذِبَ ۚ إِنَّ ٱلَّذِينَ يَفْتَرُونَ عَلَى ٱللَّهِ ٱلْكَذِبَ لَا يُفْلِحُونَ

“And do not say about what your tongues assert falsely, ‘This is ḥalāl and this is ḥarām,’ to fabricate lies against Allah. Indeed, those who fabricate lies against Allah will never succeed.” (16:116)

• By Abul Hasan al-Shaddadi