All societies differentiate between the “sacred” and “profane.” According to the French sociologist Emile Durkheim, even secular societies are “moral” at their core. Although morality may differ in one social context and another, all people agree that violations of particular social norms require some level of prosecution as a means to reinforce “orthopraxy.” As social standards, both orthodoxy and orthopraxy are not completely the result of objective or free dialogue and intellectual exchange. Certainly, on one level there is an appeal to rationality defining the moral basis of a given practice, policy, or norm. Very often, however, executive measures are employed to reinforce or discourage contravention of the accepted principles of orthodoxy and orthopraxy.
For example, the religio-political phenomenon of takfir (excommunication) often times led to the execution of men whose beliefs were deemed by the living Muslim representatives of orthodoxy to be a threat to communal solidarity and cohesion. Muslim scholars working closely with the political authorities exploited this position at times to imprison their enemies (e.g. Ahmad b. Hanbal and Ibn Taymiya) and sometimes to have them killed (e.g. Hallaj and Suhrawardi). In order for excommunication to work, a concept of binding consensus (ijma’) had to be created both in the area of doctrine and praxis. Anyone guilty of its contravention could receive the harshest form of excommunication (i.e. execution) or a milder form like social boycott (hajr) if the violation was a heresy (bid’a) falling short of the judgment of apostasy (ridda). This is not to suggest that all ideas are equal nor that lawlessness is laudable. For most would agree that unless certain crimes are punishable or at least rebuked, there would be little hope for achieving peace, justice, and an atmosphere of security. Those ideas aside, the reader may wonder if religious policing and compelling behavioral conformity are Islamically legitimate measures, especially in light of the kind of suppression one hears about in countries like Saudi Arabia, Iran, under Taliban rule, and today under ISIS-controlled territories.
The Qur’an lauds the Muslim community as “the best community brought out for humanity,” because “you enjoin the right, forbid the wrong, and believe in God” (Qur'an 3:110). And the Prophet Muhammad—God’s blessing and peace upon him—professed an inseparable connection between genuine faith and putting a stop to evil with one’s hand, tongue, and in one’s heart. Muslim jurists maintain that bringing society into conformity with the dictates of the revealed law, if within grasp, is a communal obligation. Accordingly, the Qur’an says, “Let there be from among you a faction calling to goodness; enjoining what is right and forbidding what is wrong. Those are the prosperous ones” (Qur'an 3:104). An important question, however, is how much and what role should, and can, compulsion—rather than conviction—play in realizing the ideal of a “virtuous community”?
Historically, under Islamic rule, non-Muslims were largely permitted to hold to and practice their religious convictions, often times even when those convictions contravened certain Islamic teachings. An example of this is the allowance for Christians and Jews to own and drink wine with the condition it be kept out of view of the public. Muslims, on the other hand, were banned from making any profit or use from wine; And if a Muslim was convicted of public drunkenness, he/she could be publicly flogged for it.
According to the Qur’an, “There is no compulsion in religion” (Qur'an 2:256). If this is true, it may seem contradictory or even unfair to criminalize an act if done by a Muslim and legitimize it for others. That such a distinction existed proves that Muslims from the classical period considered the “no compulsion” verse to mean that one may not force another to accept Islam or another religion. It also meant a fortiori that since faith is an action of the heart, it cannot take root therein via threats of punishment or execution. Rather, dialogue and dispassionate persuasion is the surest way to help another understand the divine reality. And if they do not accept or acknowledge God, they should be left to their own convictions. The Qur’an asks the Prophet Muhammad—God’s blessing and peace on him, “If your Lord so willed, all of those on earth would have believed. So, will you coerce people into belief, while it is not for a soul to believe save by God’s permission?” (Qur'an 10:99)
All things considered, the willful adoption of Islam or any other faith tradition constitutes a contract. It is a contract of both a personal and social nature. It is personal in that it solidifies a commitment between the person and God: an agreement to worship and serve God in exchange for Paradise. As for the social aspect of the contract, it entails the fulfillment of obligations toward the community of man: thereby securing them from the initiate’s potential harm even if the only way to do so is to endure physical punishment at times. For these reasons, not “wanting” to be punished is irrelevant in the face of the commission of a crime whose criminality has been acknowledged by the perpetrator. For such people, there does not exist anything called the “freedom to not be punished.” Such a principle would undermine the very demands of justice, the common good and societal order. It is for this very reason that secular societies hold to the principle that, “No one is excused for ignorance of the law.”
Despite this, one should not assume that every law when applied fulfills the goal for which it was legislated. Nor should one assume that every law necessarily is undergirded by a teleological concern. For as positivist ethics teaches us, laws can have very limited utilitarian value. Laws may often be viewed by the public as “right”, “good”, or “moral” simply because they are “laws.” This at times even applies to laws popularized in Islam as representative of orthodoxy, like the laws related to the abandonment of the canonical prayer (Salat). It is this aspect of positivist thinking which elicits moral outrage, especially when the positivists are Muslims of the Taliban or ISIL type. It is even more perplexing when the positive law is one not rooted in sound rationale or scriptural precedent, like “women cannot drive” or “women must wear the burqa when outside the home.” Similarly, when secular liberals impose the “acceptance” of irregular sexual mores upon dissenting populations without a persuasive rationale, the reaction of those committed to premodern ideas of morality will inevitably be resistance to the imposition.
According to the companion ‘Abd Allah b. Shaqiq al-‘Uqayli, “The Companions of Allah’s messenger—God’s blessing and peace on him—saw no act whose abandonment constituted unbelief other than the prayer (salat).” In other words, the Companions entertained no doubt that when a person decides not to pray regularly, the only way to interpret it is that the person’s heart has turned away from God. This is the essence of disbelief (kufr). As for executing or physically punishing people for abandoning the canonical prayer, evidence of this view among the Companions is hard, if not impossible, to unearth.
Nevertheless, the mainstream schools of Islam are in agreement that a Muslim who willfully abandons Salat is subject to being punished; the appropriate punishment being a matter of dispute. Malik, Shafi’i, and Ahmad each prescribed death for those who abandon prayer. The only difference between the three of them was that Imam Ahmad held that the Muslim being executed is labeled an apostate, while the other two Imams opined that his faith remains intact unless he denies that prayer is an obligation. Imam Abu Hanifa, on the other hand, prescribed imprisonment for the abandonment of prayer.
Each scholar’s aim was to reinstate the person into community life. It was also hoped that execution would discourage apostasy thereby safeguarding the faith of the populous or at least discouraging anyone from seriously entertaining the notion that Islam may not be God’s true religion. One has to admit, despite all of this, that as long as faith is an act of the heart, such a policy offers no guarantee from “repentance” being anything more than a hollow act of public appeasement, especially since God only accepts acts which are done willfully and sincerely for His sake. Therefore, such coercive policies face a legitimate challenge to their utility to both the person and the community.
The positivist might argue that “the law is the law.” What he overlooks, however, is that there is a difference between a “revealed” law which has an indiscernible ratio legis like the obligation to pray 5 times per day, and a law resulting from speculation, as is the case with most of Islamic jurisprudence (fiqh), like the obligation to “punish”, “imprison”, or “kill” one who abandons the prayer. Jurisprudence by its very nature can only have meaning when it conforms to “reasonable” characteristics that aim to realize “legitimate” goals. This is because the jurist “conjectures” and “speculates” about God’s intent. Unlike prophets, God’s intent is not “revealed” into the mind or heart of the jurist necessarily. This means that it is possible for a particular law to be unjust. And, as Saint Augustine stated, “An unjust law is not law at all.”
Consequently, modern jurists must ask whether or not upholding punishment for the abandonment of prayer serves any legitimate goal, in the past and present? This is especially in light of the fact that: 1) there are no more clear demarcations between “friendly” and “hostile” territories (Dar al-Salam wa Dar al-Harb), a matter of great concern in the old world due to fears of defection to one’s enemies; and 2) no matter what degree of compulsion one applies, human beings and God have ultimate control over the states of their hearts, so a profession of faith or conformity with a norm is no guaranteed way of preserving faith or the purity of the religion. In fact, such a policy is actually harmful to the image of Islam for both the individual being compelled to pray and the larger society. Though the Prophet—God’s blessing and peace upon him— himself spoke of his urge to burn down the homes of people who abandoned the communal prayer, he never realized that urge. He, furthermore, refused to execute known hypocrites in his community stating his concern that, “It will not be said that Muhammad kills his companions.” This places jurists and Muslims in general in a great dilemma over the definition of orthodoxy: is it what the jurists “say”? Or is it what the Prophet did or did not do?
As the pioneer community grew and expanded its administrative influence over more and more territory, the political office of hisba was eventually introduced. Hisba can be defined as “the office for regulating conformity with religious norms.” The muhtasib or regulator had jurisdiction over a number of spheres of social interaction, operating as both judge and enforcer in a number of matters, though not all. In particular, the muhtasib heard cases related to fraud in the marketplace and was charged with retrieving overdue debts from well-to-do debtors. He was also responsible for demanding that rights and obligations be fulfilled. For example, according to Shaykh Abu al-Hasan al-Mawardi,
“He takes slave owners to task for not fulfilling the rights of slaves and bondswomen, and that they not burden them beyond their capacity; He similarly does so with the owners of livestock, taking them to task for laxity regarding their fodder, and that they not burden them beyond their capacity [as well].”
Just as the muhtasib had the job of commanding what’s right, he was also charged with prohibiting what’s wrong in the areas of both ritual and civic transactions; This would include policing and correcting the forms of people’s prayers when he noticed that they excluded important aspects. The muhtasib had the authority to discipline wine drinkers and spill their wine containers whenever they drunk in public.
In general, the muhtasib was only allowed to encourage or forbid an act which was unanimously accepted to be lawful or prohibited according to Muslim jurists. Al-Mawardi says,
“As for things whose lawfulness and unlawfulness jurists differ concerning, he (the muhtasib) has no right to condemn such an act unless it is something over which there is inconsiderable disagreement and is a means to an agreed upon unlawful act.”
Notwithstanding the benefits produced by the office of hisba, not all common Muslims believed that its existence relieved them of the general duty to enjoin the right and forbid the wrong. Had they surrendered to that notion due to the existence of the official muhtasib, social change and the substitution of old orthodoxies for new ones, like the deposed Mutazilite orthodoxy, would have been unlikely. Plus, if common Muslims were not expected to correct wrong with the hand or tongue due to the obligation being fulfilled by the muhtasib, no one was exempted from looking disapprovingly upon a given wrong or evil in his/her heart with the condition that the good or evil be acknowledged universally as such.
Despite the fact that the “policing” of other people’s religious belief and morality are deemed by many today to be indicative of immaturity, backwardness, extremism, and intolerance, hisba was a very important religious office during its heyday. One undeniable benefit of it was that it helped common Muslims ignore one another’s public infractions in light of knowing that the local muhtasib undertook this responsibility. On the other hand, the role of this office gets distorted when it moves beyond the parameters for which it was instituted. In other words, when the muhtasib starts to enforce laws which conform merely to his specific morality and religious understanding, as is the case with ISIL and certain Islamic regimes, the true goals of hisba are no longer achieved. Rather, a distortion of what is deemed to be “normal” Muslim behavior occurs; not to mention the dissonance which ensues regarding the true representations of Islamic orthopraxy.
Islam endorses cooperation in goodness and piety. Sura 103 (Al-‘Asr) declares that “Verily, man is in ruin, save those who believe, work righteousness, counsel one another with truth, and counsel one another with patience.” It is a sura about which Imam Shafi’i is quoted as having said, “If people were to ponder this sura [alone], it would suffice them.” We at times may feel annoyed and even vexed by people who appear to have an obsession with policing our piety. Annoyance is an understandable reaction, especially if the person policing our actions is highly judgmental. We must, however, acknowledge that without those concerned with the well-being of society in general, justice and security will continue to fall victim to immoral impulses. This is despite the fact that many misinterpret and misapply the prophetic tradition which leads to confusion in the minds of both Muslims and non-Muslims over the true meaning and goals of Islam.
On the other hand, the utility of the office of hisba in our world today is worth questioning and reconsidering, especially when the laws being enforced are not universally accepted goods or evils. One may even question whether or not Muslims or any other society can flourish without such a function. Rather, there are clear indications that religious policing can be damaging. The Prophet Muhammad—God’s blessing and peace upon him—surely, did not employ religious police even though the rightly guided caliphs are believed to have exercised this function themselves. Hisba is viewed as an office which developed as a result of the increasingly widening administrative needs of the Islamic empire. Let us not forget, though, that the Prophet’s own ethos was persuasive, rather than coercive. Consequently, there were no houses burned down over people who refused to attend the congregational prayer due to hypocrisy or out of laziness. That was precisely because he desired every person to be rewarded by God for willfully choosing right over wrong.
By Abdullah bin Hamid Ali , 27 Jan 2017