Here is the second part of the translation of Abū Zayd’s piece (Part I is here):
A New Interpretation of Maqāṣid al-Sharī`a
by Naṣr Ḥāmid Abū Zayd
Liberty as the Opposite of Slavery
The second universal principle [of Sharīʿa] is the principle of liberty as opposed to slavery. It is a principle that is tightly connected in its meaning to the principle of reason, because a free human being is essentially a rational human being to the extent that “reason” is the center of agency for human activity. Indeed, the thought and behavior of the intolerant human being are controlled by external elements. These latter have a hold over his mind and therefore prevent him from fulfilling his free agency. This is the source of true slavery, because while the source of social slavery is a social order, the change of which leads to the disappearance of that form of slavery, slavery of the mind is much more dangerous for its control of the essence of one’s humanity. This latter kind of slavery reduces the human being to the level of an animal whereas social slavery remains external. This is not a defense of systems of slavery; rather, it is an attempt to demonstrate how dangerous slavery of the mind really is. This leads me to insist on the intertwined character of the concepts of “reason” and “liberty” and on the connection in meaning between the two.
The propositional nature of this article prevents it from dealing extensively with or analyzing the textual sources that can be used as proofs to establish that liberty is a universal principle within the Islamic project. It is sufficient here to highlight that Islam is essentially based on the principle of absolute freedom of choice. The choice that the Muslim makes to embrace Islam as a religion cannot negate the original concept of liberty, given that a branch [farʿ] never cancels a foundation [aṣl] contrary to what is maintained by some who try to mislead the people. The conversion of a free, independent, and contented person to Islam does not transform him into a “slave” who lost his initial freedom and independent choice, in both of which reside his humanity.
Those who mislead the people regarding this issue confuse the pre-Islamic concept of slavery [ʿubūdiyya], which is connected to the social frame of slavery, with the concept of servanthood [ʿibādiyya] that the Qur’ān formulates for the relationship of human beings to God Almighty. The individuals who confuse the two concepts ignore that the plural of ʿabd [slave] is ʿabīd [slaves] which is not used in the Qur’ān, except in the limited context of rejecting that oppression can be a characteristic of God (3:182; 8:51; 22:10; 41:46; 50:29). The massively transmitted Qur’ānic use is that of `ibād [servants] and not ʿabīd [slaves], which stresses their difference in meaning in spite of their common singular form. This negates the relational concept of ʿubūdiyya [slavery] with all its negative connotations, a relation to the narrow walls of which some seek to limit the deeper relation between God Almighty and the human being. All of this occurs because of a near complete ignorance of the textual sources that discuss the dimension of reciprocal love between the powerful God and his servants.
One cannot oppose the universality of the principle of liberty based on the sterile argument according to which Islam did not terminate slavery from the domain of the social system. Despite that, discussing this argument shows the extent to which Islam respects the laws of reality and history, by avoiding the risk of circumventing and ignoring them. The religion that forbade khamr [grape wine] in three stages using gradualism in legislation and that abrogated some legal rulings to replace them with others, even during the period of revelation itself, is a realistic religion. It stresses that when the divine act is actualized in history, it happens according to the laws of history, laws that represent the universal rules that the Qur’ān calls the “way of God” [sunnat Allah] in which one finds no change. Perhaps this explanation frees the term “history” from the sterile connotations that some stick to it whenever it occurs in tandem with the term “revelation,” as is the case in this analysis.
Nevertheless, respecting the rules of history and reality does not mean that Islam had stood powerless in relation to them. Instead, the method of Islam is to embrace partial change that ultimately leads to shaking the pillars of the established and dominant social, economic, and political structures. This was Islam’s position on the social system of slavery. Accordingly, the call of Islam to the emancipation of slaves was spread over many texts, starting with the establishment of equality between the slave and the free person, in terms of legal rulings and the criteria of otherworldly rewards, and with the reduction of the worldly punishments for slaves (particularly in ḥudūd punishments), in consideration of the social pressures that they endure and that make them more amenable to commit errors.
In addition, in many of its legal rulings, Islam opened the door to emancipation, by making the freeing of a slave [ʿitq raqaba] one of the most important expiatory acts [kaffārāt] in many cases and legal rulings. More importantly, Islam made marrying a Muslim male slave preferable to marrying a free male idolater. In the same vein, it made marrying a Muslim female slave better than marrying a free female idolater. This means that Islam proposed a different measure of “value” than what was prevailing in society.
Initiating the Principle of Choice
All of these changes at the level of legal rulings were related to stressing a value frame that opens the door to liberty and emancipation from slavery exactly as the door was opened to emancipation from blind loyalty to relations of blood and lineage. But what is more important and more daring than this is Islam’s initiation of both the principle of freedom of belief and practice and the principle of freedom of choice. Moreover, Islam introduced the concept of a free and liberated humanity through presenting its message as the seal of all messages and as the last word of the heavens to the earth. This is an attestation that humanity had moved from a stage of pre-maturity that had required constant tutelage to a stage of full maturity.
This freedom, the vastness and depth of which some fanatics try to undermine, has its roots within Islamic discourse in the divine attribute of “justice” [ʿadl]. The meaning of this attribute is not limited to the negation of injustice; rather it extends to establishing justice as a universal principle in human existence. Indeed, it was the concern with asserting the divine attribute of justice that allowed the Muʿtazila to create an intellectual and philosophical foundation for the attribute of oneness [tawḥīd]. God Almighty is just because He does not seek a benefit and is not affected by need or utility unlike human beings who are pushed to injustice in order to keep some harm away or to obtain some benefit. Human obedience will not add anything to what God owns nor will human disobedience or unbelief diminish it. This absolute self-sufficiency is the essence of the concept of oneness that distinguishes between divine existence and human existence. It is also the essence of the concept of divine justice. Was it an exaggeration when jurists stated that, “wherever justice is found, God’s Sharīʿa is also found?” Was it also an exaggeration when they said that, “the just ruler is better and preferred to the unjust ruler even if the former was not Muslim and the latter was?” I do not think so for the jurists had looked in depth to the concept of divine justice that necessarily trickled into a universal principle in the Islamic project.
The Purposes of Sharīʿa
These three universal principles—reason, liberty, and justice—represent on one hand a system of unified and interrelated concepts and on the other hand encompass the five universal purposes that the scholars of uṣūl al-fiqh had derived. The protection of life, reason, religion, lineage, and property appear to be partial in relation to the three universal principles and thus can be subsumed under them. Furthermore, these principles encompass all the methods of ijtihād [effort to derive legal rulings] that the jurists developed like, istiḥsān [preference of the jurist], maṣlaḥa mursala [textually unattested benefit], istiṣḥāb al-ḥāl [considering the default position], ibāḥat al-ḍarurāt lil-maḥẓurāt [the principle of necessity], etc… Furthermore, these three principles represent universal frames that eliminate the known disagreements among the schools of jurisprudence over the legitimacy of some of the methods of ijtihād. These disagreements can become the object of analysis and study to discover their causes and reasons in order to further understand the history of past schools and ideas. However, given the above principles, we will not have to choose between this or that method.
It is certain that starting from the guidance provided by the three principles would lead us to a critical, careful, and contemplative pause vis-à-vis the historical context in which was elaborated the maxim of dar’ al-mafāsid muqaddam ʿala jalb al-manāfiʿ [preventing harms is prioritized over obtaining benefits]. It was the context of a situation of weakness, discord, and division that had befallen the structure of Arab and Muslim societies. If we are seeking to overcome that situation and catch up with the convoy of development and civilization, it is hard to accept such a maxim. In addition, this maxim contradicts the principles of reason, liberty, and justice which stand for the universal purposes of Sharīʿa. There is no doubt that every social, civilizational, and technological form of progress is connected to development in human consciousness and growth in human ability to discover natural and social laws. In other words, progress is nothing but a development in the activity of reason that represents the center of the Islamic project, contrary to jāhiliyya. But every form of progress has some negative ramifications that lead to some harms and that stand for a tax paid by humanity for the sake of progress. Then, if we embrace the maxim according to which “preventing harms is prioritized over obtaining benefits,” we would resist progress and stand as a hurdle in its path. Said differently, we would resist the development of reason and its progress and would thus violate a universal principle of Islam.
Surely, the study, understanding, and interpretation of religious textual sources through those three universal principles could guide us to develop additional tools of ijtihād to be added to the ones that have reached us from our intellectual heritage. And there is no fear from that methodology and its analytical applications on our beliefs and religion. The fear ought to instead be from stagnation and blind imitation that are the defense walls of traditional institutions. God Almighty has sent his messengers to people, carrying His message so that people can understand it. The process of understanding is not the prerogative of a certain time period, regardless of how committed are its people; it is rather a process in which participate all time periods, seeking to complete the light of God Almighty by highlighting the latent meanings in His Speech.