(Reflections on Book 14: The Halal and Haram)
The focus of the ihya is the individual. In reading and studying it, it is hoped that the Muslim will inculcate the lessons of the ihya within. Not only does the treatise attempt to affect the actions of the reader, but also their psychology. It is not enough just to do; one must have the right outlook as to the purpose behind actions.
So the Ihya is not a book of laws to be wielded by the state as a means to regulate society. The state, as a legislature, has authority to constrain individuals through passing laws that define expectations, and enforcing them through punishment. Law, as the legal theorist Hans Kelsen averred, is a series of rules whose consequence for contravention is punishment.
Accepting this definition for the moment, then the question for religions is “is it law, when there is no punishment”. The immediate answer is that God is the judge and will punish accordingly, but there is no certainty that he will. God’s mercy is above his wrath, as the Prophet said; and there are countless stories from the hadith of criminals pardoned by God; for instance, the genocidal prince that sought God’s mercy, or the prostitute that gave water to a dog. The crime was not so large that God could not forgive.
However, imposing western jurisprudential thinking onto Islamic legal thought has its flaws. Islamic law was never formulated in the corridors of power or from a body corporate; instead it evolved from within communities – Islamic law is bottom up, while western law is top down.
What this means is that individuals are primarily responsible for upholding the law. A body corporate is not required for its continuance or enforcement. Indeed, by assuming that Islamic laws are dependent on a legislature, it would disembody the law of purpose, permanence or meaning.
Fundamentally, Muslims are expected to inculcate the laws within themselves. There is a risk in following the law, the person alienates others. There can be great variation in how one actualises the law in their lives. Conservative individuals can be too judgmental, while liberal minded individuals ignore the sacredness of the law itself.
Ghazali recognises that people have levels of caution when following the law. The law can be broad for some; nevertheless, the law acts as an anchor to how people act. A conscious Muslim, regardless of how liberal they are, should be mindful of law and the objectives of it. Muslims might take out bank loans, but in the back of their minds they know interest is impermissible; they may have sexual relations, but they know that sex before marriage is prohibited.
Consequently, the law acts as an internal regulator for the Muslim. It cautions the individual, and even when a forbidden act is executed, it limits his/her from going further. Of course this is not a hard and fast rule, but in learning and studying, the Muslim is always growing in his religion, even if he/she does not live up to all its demands.