What is Riba?  (A Critical Evaluation of its Understanding (1))

What is Riba?  (A Critical Evaluation of its Understanding (1))


Islamic Law

Dr. Khalid Zaheer / Razi Allah Lone

Abstract

This article attempts to cover the various issues critical to the understanding of riba. It concentrates on the controversial aspects of the debate on riba in the classical and, to a lesser extent, modern juridical writings. The understanding of riba, it is argued, has been unnecessarily made problematic by the methodological framework devised by the jurists, Imam Shafi'i being the architect of it, to deduce legal rulings on the one hand, and by the granting of an authoritative status to Hadith in supplementing – at times even supplanting – rather than complementing the Qur'anic text, on the other.

Building on the principle of centrality of the Qur'an – albeit seldom applied – in Islamic legal discourse, and highlighting the true scope and import of other canonical texts, chiefly, the corpus of Hadith and fiqh, it will be shown that, at least at the very basic level, the meaning and implication of the term riba are quite clear, notwithstanding the disagreements over its application; the alleged ambiguity associated with it is only an instance of reading the Qur'an as dictated by outside sources. It is argued that a linguistic and Qur'anic understanding of riba, as the word has not been qualified in the Qur'an, should be given priority over a juridical understanding based, primarily, on an incorrect reading of the related Ahadith. The problem with a juridical understanding is that it relies unhesitatingly on narratives that are either textually incompatible with the purport of the Qur'an or compromise – more precisely modify – the clear understanding derived from it. The concept of riba al-fadl is criticized as being the consequence of not reading the relevant Ahadithin conjunction with the Qur'an and other traditions on the issue. The resultant misunderstanding, it is argued, has crystallized in the form of riba al-fadl, a concept not only alien to the pre-Islamic Arabs but also to the Qur'an itself. The Ahadithare put in their proper perspective and their actual purport is explicated. This article then is an attempt to deconstruct, the term being used here in a very restricted sense, the understanding of riba with a linguistic and Qur'anic focus.

Introduction

The paper, before taking up the issue at hand, briefly summarizes our point of view on the sources of religion and what we see as the correct approach towards understanding them. It then provides a survey of riba in the primary and secondary sources and classical and modern writings before presenting our critique and analysis of the concept.

Foundational Sources

The Holy Qur'an

The starting point of any discourse on Islamic law ought to be the Qur'an. It is established, inarguably, that the legal content of the Qur'an and the Sunnah[1] is authoritative and has inviolable certitude insofar as the corroboration and transmission of these foundational sources are concerned.[2] In referring to the Qur'an, it has to be emphasized that it unmistakably confirms itself as "mizan", "furqan" and "muhaymin" (the Qur'an, 42:17, 25:1, 5:48). Predicated on these statuses are certain principles which issue as inevitable corollaries: that no alleged revelation outside the Qur'an, be it hidden or manifest, can alter or modify any of its directives, and everything in religion will be accepted or rejected on the basis of its unambiguous verses; that its words are unequivocally certain in conveying their intended meanings.[3] The true understanding it proffers is the one that its words naturally accept, and not the one that is superimposed, dictated by outside sources. An appreciation of this point, in our view, will define the correct approach towards understanding Qur'anic verses and deriving laws from them.

The purpose here is not to dwell on semantic rules for arriving at the intended denotations of Qur'anic words; juristic classification of words for deriving ahkam is a topic deserving a thorough treatment for which a separate paper or tome will be suitable. Our aim here is to argue for the internal clarity of the Qur'anic message, on the whole, and the specific legal rulings, which have been proffered with a careful choice of words and which, despite being open to linguistic interpretation and particularization within the framework of the natural rules, do not admit of any internal ambiguity. If not entirely descriptive at some instances of enacting laws, it is because the Qur'an presupposes knowledge or understanding of the terms and concepts key to the law or directive being introduced. These terms and concepts, it is taken as a given, were well-established and understood by the Arab addressees of the Qur'an. It can be argued that in some instances the Qur'an while using a term, otherwise well-understood, restored its original or pristine understanding either by adding to the ritualistic practices associated with that term or by expurgating the profane practices which over time had come to form part of its meaning. These alterations were then perpetuated, in their unalterable form, as part of the established Prophetic Sunnah. It cannot, however, be accepted that there is an inherent or intrinsic ambiguity in some of the words the Qur'an chooses for the deliverance of its message.[4] Thus we should be absolutely clear that the Qur'an was revealed in clear Arabic language with no ambiguity insofar as the message and the laws it promulgates are concerned. It is conceded, nonetheless, that, like any other text, the Qur'an lends itself to differences of interpretation, by virtue of the fact that this exercise is a human endeavour. These differences should not be treated as lack of clarity in the Book itself, otherwise, the claim, which the book makes, of being easy in the Prophet's tongue (44:58, 19:97), is rendered suspicious if not meaningless. In dealing with the issue of the alleged ghara'ib al-Qur'an[5] (strange or difficult to understand words of the Qur'an), Farahirightly points out that the Qur'anis clear of any such words for it stands to reason that the Book whose purpose is to deliver the truth and to call towards it cannot be but clear and unambiguous.[6]

Shari'ah and Fiqh

We also need to differentiate clearly between the terms Shari'ah and Fiqh. These are the two most misunderstood terms in the Islamic legal context and unless posited rightly in their respective spheres, we shall continue to treat human attempts to understand Qur'anic laws as infallible pronouncements of divinely inspired individuals. Hallaq while referring to the "turning point in the Prophet's career" wherefrom the bulk of Qur'anic legislation took place writes: "This is not to say, however, that the Qur'an provided Muslims with an all-encompassing or developed system of law. What the Qur'anic evidence... does indicate is a strong tendency on the part of the Prophet toward elaborating a basic legal structure."[7] Put differently, the Qur'an has not given any comprehensive "system" of law but only legal principles and those too in matters where, generally, human intellect was prone to error or misguidance. With this basic legal structure and foundation in place, and the Sunnah – the normative practices established and propagated by the Prophet amongst the entire Muslim community[8] – playing the elaborative role, these two together, immutable and unalterable in content and form, came to eternally govern Muslims. It is this body of law that holds supremacy over the affairs of Muslims as God's shari'ah. However, a perusal of the works on Islamic law shows that the treatment given to the shari'ah is not that exclusive and it is identified with the interpretations of classical Islamic jurists as well. Nayazi, while stating that the terms shari'ah and fiqh are frequently used interchangeably, gives a definition that hardly makes any substantive and, thus, practical distinction between the two. He writes: "The term shari'ah includes both fiqh as well as the knowledge of the tenets of faith, that is, the 'aqa'id. The real distinction between shari'ah and fiqh, however, is that shari'ah is the law itself, while fiqh is a knowledge of that law —its jurisprudence."[9] Weiss suggests a definition that again is highly generalized, if not vague: "it is the totality of divine categorizations of human acts."[10] In our opinion, shari'ah, strictly, is the totality of the legal directives contained within the Qur'an and the established Sunnah of the Prophet. As for fiqh, it is the interpretation or ijtihad of our esteemed earlier jurists and we can in no way disregard it while formulating our own interpretations and opinions. This, however, should not drive us to confer divine status, that of shari'ah, to their interpretations. This body of law called fiqh is open to revision and possible correction.

The Role of Hadith

While Shafi'i brought the authority and formative influence of Hadith to bear upon the development of Islamic legal tradition, his identification of the sources of law and the acceptable methods of interpreting them paired with his broad understanding and application of Hadith are not without problem. The significance Hadith achieved in Shafi'i's al-Risalah was entrenched by later articulation of the legal import it was deemed to have; a significance that still persists and is well attested to in the uncritical discourse on Islamic law and legal theory. While there is no gainsaying the fact that the Prophetic words, if reasonably established as such, hold natural authority in the realm of theological and legal interpretations, there still exists the need to determine the authoritativeness of Hadith vis-à-vis Qur'an and the Prophetic Sunnah. That is to say, the question of the role Hadith can play as an additional source of law or as a source of law at all is to be addressed. Since Sunnah as a repository of "Prophetic law" is used interchangeably with Hadith, we attempt here to first demark the two.

Shafi'iwhen discussing knowledge argues on three different planes. The first is the kind of knowledge "which admits of error neither in its narrative nor in its interpretation".[11] This to him is found "textually in the Book of God, or may be found generally among the people of Islam".[12] It is this Sunnah, in practice "among the people of Islam", which renders absolute knowledge by virtue of being transmitted from generation to generation, i.e., through the same (practical) tawatur[13] that establishes irrefutably the authenticity and authority of the Qur'an. The doctrine found in Awza'i is similar in that it too consecrates Sunnah as the "uninterrupted practice of Muslims, beginning with the Prophet and maintained by the early caliphs and later scholars".[14] It is important to note that Awza'i refers to the practices of the Prophet without adducing Hadith to establish them. Quite recently, Ghamidi has listed these practices (Sunan) which in totality, according to him, can be defined as "that (living) tradition of the Abrahamic faith which the Prophet, after reinitiating and reforming and making certain additions to, disseminated amongst his followers as a religious praxis".[15] On the second plane, Shafi'iargues that there are duties and rules "concerning which there exists neither a text in the book of God, nor, regarding most of them, a Sunnah. Whenever a Sunnah exists [in this case], it is of the kind related by few authorities, not by the public, and is subject to different interpretations arrived at by analogy".[16] It is this Sunnah[17] (Hadith) that is to be treated in distinction from the apodictic Sunnah or the tradition of the Abrahamic faith. While Shafi'iapparently admits of difference of interpretation and lack of sufficient number of transmitters for this Sunnah, and also enumerates for it three categories, he and most other jurists in application elevate it decidedly to a level not restricted to mere interpretation of the two unassailable sources. According toHallaq, "it is clear to Shafi'ithat nothing whatsoever in the Sunnah contradicts the Qur'an; the Sunnah merely explains, supplements or particularizes the Qur'an."[18] However, it is in this realm of application that Hadith assumes an authority no less than an independent material source of law in Shafi'iand his successors, going beyond the scope of interpretation by analogy, thereby evincing their true position on the authoritativeness of Hadith.[19] Recent scholarship has shown that the overriding importance of Hadith in Shafi'idid not gain currency immediately and it was much later after Shafi'i's death that Hadith, like the Qur'an, became the exclusive material source of law.[20] Later, it was in Ibn Hazm that we find the true culmination of the authoritative status granted to Hadith.

We here argue for an approach towards the understanding of Hadith which delimits it to the explication of the religion contained within the Qur'an and the Sunnah. In this sphere, it expounds the law and affords a picture of the model behaviour of the Prophet for acting upon the faith. In this sense, Hadith is a desideratum but since whatever knowledge we gain through it cannot be, in legal parlance, necessary or immediate and hence does not yield epistemic certainty,[21] it, ipso facto, cannot and does not add to the content of religion in terms of belief or action.[22] This view on Hadith and Sunnah, propounded by Ghamidi, finds a somewhat fuller treatment in Iftikhar.[23] Thus in our opinion, while it is true that the Prophetic Ahadith seek to expound the intended meaning of Qur'anic prescriptions, the Qur'an is to be understood first on its own terms, using the linguistic resources and historical facts that are established with tawatur. Hadith then should be used, most of which is not mutawatir, to elaborate the Qur'an but not to derive any fundamentally new teaching or law.[24]

The Status of Ijma'

While ijma' as a source of Islamic law was introduced fairly early, the authoritativeness granted to it had a laborious historical route. Hasan mentions the orthodox positions as oscillating between the ijma' of the community and that of the scholars. What was earlier the ijma' of the community was restricted to essentials, owing to, inter alia, the fragmentation of leadership in the political and religious domains, while the ijma' of the scholars came to dominate the legal sphere.[25] Since this is not the occasion to delve in details, we sum up the orthodox view of ijma' as the unanimous agreement of the community or of the scholars. Owing to the fact that the results of qiyas are at best probable, the application of ijma' to such results transfers them from the "domain of juristic speculation to that of certainty".[26]This certainty then establishes the judgment as irrevocable, not to be challenged or reinterpreted by later generations. Both the Qur'an and Hadith have been used as source material by jurists to substantiate the authoritativeness of ijma'. We find the reformulation of the arguments presented over time by legists in A%midi. He adduces Qur'anic verses and Hadith in continuation and affirmation of the dialectics propounded by such authorities as Shafi'i, Jassas, Asad 'Abadi and Ghazali. Even after having argued at length, though tendentiously, to articulate the "true" interpretation of the Qur'anic verses[27], he acknowledges that the "totality of these verses does not lead to certain knowledge which is required in consensus".[28] Thus he sees it necessary to introduce 16 traditions[29] and, even after admitting that they are a%had(isolated), argues in the same vein as Ghazali did: that they in totality result in certain knowledge because they aremutawatir bilma'na (concurrent in meaning). Interestingly, we find that A%midi, while arguing in favour of the orthodox stand that the disagreement of a single competent scholar invalidates ijma'[30], quotes several instances of disagreement with the majority opinion from the time of the Companions, not least of which is IbnAbbas' opinion about riba al-Fadl. He also concedes that the minority opinion might sometimes be correct by citing AbuBakr's opinion to fight with the tribes who refused to pay zakah.[31]

Our reasons for taking issue with the orthodox stand on ijma' lie in the fact that the epistemological certitude arrived at by virtue of the meaning of the words is itself, in turn, dependent on the certitude with respect to the traceability of those words to the Prophet. Since such is not the case, the authoritativeness of ijma' becomes an insoluble quandary, a petitio principii.[32] Thus in our opinion, Ghamidi rightly points out that it is the Qur'an and the established Sunnah that are infallible as the two primary sources of religion. Whereas the importance of ijma' cannot be denied, any interpretation or ijtihad, even if based on ijma', is by no means infallible and cannot be elevated to the level of a textus receptus.

(to be continued)




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