The Quran, in general, criticizes the behavior of some People of the Book, and says that the arrival of Jesus (sws) was meant in the divine scheme to instill the real spirit of the law among the Jews who had reduced Torah to a ‘collection of lifeless injunctions and spiritless rituals’. It mentions the behavior of a Jewish community who lived by the seaside (7:163). They were required to honor the restrictions of the Sabbath by not getting involved in any worldly engagements. It so used to happen that ‘on the day of their Sabbath, their fish did come to them openly holding up their heads but on the day they had no Sabbath, they came not’. It was too tempting a trial for some of them. However, in order to preserve the apparent sanctity of the Sabbath and yet to achieve their objective, some of them contrived a clever strategy of preventing the fish from disappearing on Saturday so that on Sunday, the day following the Sabbath day, they could catch them. Despite their lame attempt to preserve the apparent form of the law of Sabbath, however, they were condemned to punishment because the spirit of the law – to stay away from all worldly dealings on Saturdays in order to worship God – was totally lost.
Another reference in the Quran to a religious subterfuge contrived by a people to serve their worldly objectives is to the practice of intercalating a month (Nasi) by the pagan Arabs (9:36-7). They were required by their religious traditions to honour the sanctity of four months by enforcing complete halt to active hostilities against each other. The requirement was meant to enable pilgrims to visit the House of Allah inMakkahfrom all over Arabia. However, since the calendar was based on the lunar movement, it necessitated the shifting of months from one season to another. That was not acceptable to the business-minded people ofMakkah, because pilgrims were an important source of business revenue for them. They inserted a thirteenth month calledKabisahafter every three years to ensure that the months did not move around different seasons in different years. In short, instead of openly rejecting the arrangement of the lunar months, they resorted to a clever manipulation by retaining the apparent form of the law. The Quran has, however, condemned the whole exercise by calling it ‘an addition to disbelief’ (9:37).
The reason why religious subterfuges have been condemned by theQuranas additions to disbelief is that while simple disbelief is an open rejection of faith, such subterfuges are a cunning way of defeating the purpose of the Divine Law without taking the blame for rejecting it. In other words, those who indulge in it, attempt to deceive God by pretending to follow the apparent form while defeating its real spirit.
There have been examples in Muslim history too whereby religious subterfuges have been resorted to in order to retain the legal form of injunctions while trying to defeat their spirit. It is said, for instance, about a certain individual well versed in religious law that he used to transfer his wealth to his wife’s name after eleven months, and similarly back to his name after the same duration, to escape the obligation of paying the annual religious tax (zakat) on his wealth. Indeed zakat is, legally speaking, annually payable on the wealth one owns. That, however, is just a legal condition. The real objective God wants to achieve through its imposition is amelioration of the state of the poor and material sacrifice for the sake of God by the payer. The individual referred to managed to defeat both the objectives, although in the eyes of the worldly law, he was not guilty.
The question of the spirit of the law has been employed by Muslim jurists to legislate in areas which have not been dealt with in the Quran and sunnah. The process of ijtihad based on analogy (qiyas) employs this principle. It entails observation of the real basis of an Islamic injunction, and determines if the same basis is present in another arrangement. If in the opinion of the jurist, the basis in the original injunction is similar to the one in the later development, the jurist would declare on the basis of qiyas, that the same verdict holds true for both.
There is no general agreement on the bases (‘illal) of many Islamic injunctions. It is, however, generally agreed that there could be more than one basis for a certain Islamic verdict. The one reason which is considered to be the predominant basis of a relevant injunction is called ’illah while other less significant ones are called hikmah.
Irrespective of the difference in terms, however, both ’illah and hikmah are concepts which are based on the spirit of law. It is the real spirit of the injunction that is attempted to be captured and, on that basis, other areas of human activity are brought within the purview of Islamic law.
There is a difference of opinion of significant consequence amongst the four earlier schools of Islamic Jurisprudence with regard to the spirit of the law. The Malikites and Hambalites determine the validity or invalidity of a contract, apart from the obvious factors, on the grounds of whether it was inspired by proper motives or not, its apparent legitimacy notwithstanding. On the other hand, the Hanafite and, to a lesser extent, the Shafite schools of law consider that it is not the function of the courts to investigate what stands behind apparently genuine transactions, or to unveil their real inspiration. The obvious consequence of the latter’s principle was that a range of carefully contrived legal stratagems (hiyal) were developed which allowed the spirit of Islamic law to be flouted despite adherence to the apparent form in the lands where the latter schools of fiqh had more influence.
In this writer’s opinion, our scholar’s must do away with this approach. The spirit and form of a directive are equally important and each must be given the weight it deserves.