The question of how the law becomes known has occupied the minds of Muslim jurists for a long time. In the early centuries, the heated debates, and at times even hostilities, centred around the place and role of ethical principles and reason in the development of the religious tradition.

At one pole was the Mu'tazilis who argued that justice is knowable through human reason; at the other pole, the traditionalists (ahl al-hadith) argued that reason is necessarily whimsical and capricious, and that justice is only realized through revelation.

However, in modern times, this debate has formally subsided. Naturally, while there are liberals, like Muhammad Iqbal, who wish to give rationality and reason a far greater role in the articulation of Islamic law, there are also fundamentalists, like Al Mawdudi, who look to the law as the source of all morality and justice. The secularists exclude Islamic law from any public function.

But, whatever the nature of the debate that exists between these groups today, it is no longer phrased in terms of morality and law. The issue of Islamic law and morality has dropped from all consideration in the modern age. And so while my explorations in this article and the next are by no means original by traditional standards, it is novel by modern standards. I am here motivated by two considerations:

As a point of departure I accept that the Qur'an and the laws of God are binding, and that an Islamic theory has to be expressed within the framework of Islamic principles.

I maintain that if an Islamic state ought to exist at all, such a state must maintain the dynamism and vitality of Islamic law and morality, and that such a result is not possible without maintaining the liberty and innovative capacities of the individual.

Cantwell Smith once wrote, "Islam is today living through the crucial, creative moment in which the heritage of its past is being transformed into the herald of its future." Smith is certainly correct and what he says about Islam, as a faith and religion, also applies to Islamic law, as a legal system.

Here, I attempt to come to grips with a problem at the heart of the Islamic tradition and with an issue that will have a great impact on the role that Islamic law will come to play in the lives of Muslims in the present and future.

Justice as the path of Divinity: The nature of Islamic jurisprudence

"Lo, We offered the trust unto the heavens and the earth and the hills, but they shrank from bearing it and were afraid of it. And man assumed it. Lo! He hath proved a tyrant and a fool." The message conveyed by this verse is that humans accepted God's trust, and with it, they accepted a laborious test. Humans are to be held accountable for their decisions and actions here and in the final life. God's choice to trust humans was elicited by our gift of rationality, but, at the same time, it created a burden of accountability. The failings of humanity are its own, and the successes are its rewards.

This burdensome privilege is not confined to the trust God placed in humans. He also made human beings His viceroys. "We appointed you viceroys on the earth - that We might see how you behave." Humans in general and Muslims in particular, must meet God's expectations. The purpose of humans in life is to realize the righteous path of God, but this entails an everlasting moral struggle to attain that Divine path. The Qur'an speaks of this moral and righteous path - the path of Divinity itself - as an existing objective fact. It is as if the genuinely and truly moral and righteous are co-extensive and inseparable from the Divine.

The Qur'an often uses terms such as zulm (injustice), adl (justice) or salih (the good) in an objective fashion, as if they are ontological realities - independent and objective. The Divine is the very embodiment of all that is moral, ethical, good and right, and therefore, the presence of the Divine as an objective reality necessarily means the existence of ethical values such as justice and goodness as an objective reality.

Accordingly, it is meaningless for one to claim that God in fact does exist but that justice or goodness does not. Partial justice or partial goodness could be contextual, contingent and relative, but absolute and perfect justice or goodness are not. Absolute and perfect justice and goodness are attributes of the Divine because the Divine embodies all that is right and good. These Divine embodiments are objective and not subjective realities. The objective entails the absolute and Divine as the Divine is non-contingent and objective.

Critically, God knows the righteous path, but humans do not - they need God's guidance and revelation to reach out towards what the Qur'an describes as al-sirat al-mustaqim (the righteous path). In the sura that introduces the Qur'an, God exhorts Muslims to say, "[G]od show us the righteous path; the path of those whom thou hast bestowed Thy grace upon ..." But, God, alone, ultimately, knows what the right path is: "He knows who has wandered from His path, and He knows better who is rightly guided."

It might be important to point out that there is no formal church or priesthood to guide people in Islam. So other than the Qur'an and the teachings of the prophets, humans must rely on their own faculties in realizing the true moral path. Furthermore, according to the Qur'an, humans cannot escape responsibility or accountability by relying on customary practices or the teachings of their forefathers as an excuse for failing to seek the righteous path. They will not be excused for deferring to the commands of their superiors or for blindly adhering to the prevailing social mores or inherited religious beliefs and practices.

This does not mean that the technical rulings of Islamic law are to be known intuitively or that any conceited person with a delusional sense of jurisprudential acumen may pontificate as to the details of the law. We are not yet talking about Islamic law; we are only addressing the relationship of the individual vis-a-vis the righteous path as an objective reality.

In other words, we are talking about the basic moral and ethical precepts, and the responsibility of individuals to seek to live an ethical and moral life. The Qur'an insists that a person may not cite the moral irresponsibility or the immorality of others as an excuse for his or her own moral failures.

Ethical obligations in Islamic law

In this context, it is critical to differentiate between responsibility or obligation and accountability or liability. Each and every human being has a moral obligation or responsibility to seek out and recognize al-sirat al-mustaqim (the righteous path) or objective ethical precepts, which are inseparable from divinity itself. The Qur'an describes the realization or recognition of the path, which includes believing in God, as an act rising out of rational cognition or a matter of common sense.

The Qur'an describes itself as a book of remembrance (dhikr), and maintains that its most essential function is to remind people of the reality of Divinity - a reality that includes the presence of God and all that this presence implies. The Qur'an emphasizes repeatedly that the instruments for realizing or recognizing the truth is cognition (fikr), reason ('aql) and remembrance (dhikr). In this context, the truth is Divinity and Divinity is the truth, but recognition of Divinity necessitates the recognition of the values that attach themselves to the Divine - values such as justice, fairness, compassion, mercy, honesty and goodness.

The Qur'an intimates that many elements of the sirat - but not the whole integrated sum of the righteous path - are an innate part of the human mind. As God created humans, he inspired unto them an intuitive liking for the path of righteousness. "And so, set thy force steadfastly towards the [one ever-true] faith, turning away from all that is false, in accordance with natural disposition which God has instilled unto humans ..."

The Qur'an continuously prompts people to think, reflect and ponder as a way of reaching out towards the truth of God and His path. The necessity of such thought and reflection is affirmed by the Prophet's saying, "Thought of one hour is better than the prayers of a whole night." Elements of the righteous path - or, in other words, basic moral precepts - are accessible to human beings through the act of diligent remembrance and reflection or even by an honest willingness to open one's heart to the reprimands of a critical intuitive conscience.

It is worth noting that it is possible that a person might seek to realize elements of the righteous path while neglecting to pursue the righteous path in its entirety. It is possible to seek to be merciful, for instance, but neglect to properly reflect upon the demands of justice. But more importantly, it is possible that a person might seek to realize moral and ethical precepts while failing to seek out the Divine. The righteous path in its fullness is woefully incomplete and inadequate without believing in God.

The Qur'an does appear careful to emphasize that although many elements of the righteous path can be sought out through intuitive and rational faculties, the realization of the righteous path in its entirety and fullness needs something extra - needs an added power: it needs Divine bliss or grace.

To be possessed of true wisdom (hikma), where one fully understands the balance (al-mizan) or how all the elements fall into place to form the integrated whole requires spiritual and physical exertion and moral diligence, which in turn is rewarded by an act of grace (hidaya) that allows such a fortunate soul to realize the sirat al-mustaqim in its fullness.

The Qur'an describes the Divine as pure and unadulterated light, and it insists that those who deny God's existence are spiritually blind. Recognizing or believing in the Divine is as if making a decision to remove the blindfolds and if one does so, he enables himself to see the light that has been there all along unaffected by the heedlessness of the blind. Moreover, this Divine light has qualities and attributes that exist completely unaffected by the denials of the blind or the incredulity of the obstinate.

The precepts and values of ethics and morality are what I have been describing as the qualities or attributes of the Divine. Metaphorically, moral and ethical precepts are like luminous supernal elements within the light of God. It is possible to seek out and recognize these luminous elements while denying that the Divine or its light exists. From a theological perspective, this means that a person who does so is partially blind - he can see particular luminous substances but does not see the full celestial light.

All human beings have an affirmative individual responsibility and obligation to see or recognize as much of the light as possible. Effectively, this means that each person is obligated to be as religiously pious and devout and as moral and ethical as possible. However, accountability for the realization of this responsibility is an entirely different matter than the obligation itself. Conceptually, the fact that human beings are obligated to seek the path does not necessarily mean that they are accountable for failing to realize the path or even accountable for failing to seek it in the first place.

In Islamic theology, temporal accountability is entirely separable from Divine accountability. Divine accountability is something that is in the sole discretion of God - no one can tell God who to forgive or punish. Muslims are asked to believe that God is just in the most perfect sense. Therefore, while Muslims may believe that God, being perfectly just, will give each person his due, no one can presumptuously claim to know what the application of Divine justice will entail.

For instance, it might be that being treated cruelly by one's parents or that as a child one has suffered a cruel upbringing will be considered as mitigating factors when judging a person who has failed to realize the ethical precept of mercy. But other than believing that God will judge people with impeccable justice, human beings cannot pretend to know what God's judgment will be in the end. Temporal, as opposed to Divine, accountability is investigated through the instruments of Islamic jurisprudence.

Fundamentally, Islamic jurisprudence is concerned with investigating and establishing the obligations (takalif al-halal wa al-haram) and also the temporal accountabilities or liabilities of Muslims (al-mas'uliyyat al-jina'iyya wa al-madaniyya). Another way of understanding the functions of Islamic jurisprudence is to state: the quintessential role of Islamic jurisprudence is to search and establish the methodological tools for the exploration and realization of "rights" (huquq) - whether these rights belong to God or to humans. Rights, however, exist objectively - their existence is not contingent or conditioned on human recognition.

Furthermore, if human beings recognize a particular right (haq), it does not necessarily follow that people have the power to hold individuals liable for violating both the rights of human beings and God. Moreover, assuming that in theory a right is recognized or acknowledged, whether the state or a government has the jurisdiction or legal power to enforce such a right depends on a variety of factors that I will elaborate upon in my next article.

What is shari'a?

It is important to note that the powers of the state are not co-extensive with objective truths or rights. Put differently, just because there exists an objective righteous path, it does not logically follow that a government, which identifies itself as Islamic, has the legal power or jurisdiction to compel adherence to such a path.

According to Muslim legal theory, the purpose of Islamic law is to seek after the righteous path - to try to come as close as possible to it, and in doing so achieve the welfare of the people. In Islamic law, achieving the welfare of the people (tahqiq masalih al-'ibad) is a term of art that is intended to acknowledge that the pursuit of abstract values, such as justice, compassion and mercy, is supposed to translate into concrete and tangible benefits to be enjoyed by human beings.

Muslim and non-Muslim writers often refer to Islamic law as shari'a law, which is not entirely accurate. Linguistically, the word shari'a literally means the fountainhead that quenches the thirst of living beings or the way to goodness. Jurisprudentially, the shari'a is the revealed guidance of God - perfect, complete, incorruptible, immune and immutable. In a sense, the shari'a provides the skeletal ethical and moral norms of the Islamic legal system.

The main, but not exclusive, source of the shari'a is the Qur'an, which focuses on general ethical and moral principles and a few specific laws. Roughly, there are eighty verses in the Qur'an that might be seen as laws in the strict sense, but the Qur'an is mainly a book of ethical and moral teachings. The specific laws that are considered a part of the immutable shari'a must fulfil two criteria:

they must be stated by the Divine in a clear, specific and unambiguous fashion; and

the specific law must by its very nature fully embody the ethical principle that it is intended to articulate.

Examples of such laws would include the command to pray five times a day, fast during the month of Ramadan, or give alms, and the prohibitions against extra-marital sex, slander, or the consumption of alcohol and pork. Another example would include the Qur'anic command that all contracts be consensual and free from coercion, fraud, deception, or misrepresentation, and also that parties to a contract must in good faith make every effort to honour their promises.

Muslim jurists argued that laws such as these clearly mandated by God, are stated in an unambiguous fashion in the text of the Qur'an in order to stress that the laws are in and of themselves ethical precepts that by their nature are not subject to contingency, context, or temporal variations.

It is important to note that the specific rules that are considered part of the Divine shari'a are a special class of laws that are often described as Qur'anic laws, but they constitute a fairly small and narrow part of the overall system of Islamic law. In addition, although these specific laws are described as non-contingent and immutable, the application of some of these laws may be suspended in cases of dire necessity (darura). Thus, there is an explicit recognition that even as to the most specific and objective shari'a laws, human subjectivity will have to play a role, at a minimum, in the process of determining correct enforcement and implementation of the laws.

Some modern writers have argued that shari'a law, not just human interpretation of shari'a law, may be suspended if it is in the public interest to do so (al-maslaha al-'amma). Effectively, these writers erroneously equate public interests with individual cases of necessity and treat the two as having the same effect upon shari'a law.

The problem, however, is that this logic implies that public interest, however it may be defined, on a scale of shari'a values is the highest possible value that trumps all others. If public interest is equated with political interests or the greater attainment of happiness, this means that shari'a promotes a strictly utilitarian value system.

The claim of an exception based on necessity is of an entirely different nature than the suspension of shari'a laws on the basis of public interests. A claim of necessity is but a tool invoked in order to protect a moral principle or ethical value. But a claim of public interest is premised on the idea of the greater good or preserving the overall welfare of people. An overriding utilitarian exception would be inconsistent with the objectivity of the shari'a and to its claim of any absolute moral values.

There is no indication that the Qur'an intended to endorse unmitigated subjectivism or moral relativism as the foundation of shari'a law. I am not claiming that Islamic law does not recognize the incorporation of public interests in limited cases where such a reference does not conflict with the higher moral values of shari'a. I am also not claiming that Islamic law limits itself to the recognition of cases of individual necessity or that Islamic law does not recognize cases of public necessity.

In fact, because Islamic jurisprudence does recognize exceptions to the law in cases in which the necessity claimed is of a public nature, some contemporary jurists conclude that the difference between necessity and public interest is only a matter of degree - not fundamental in nature. This however is not correct - necessity suspends the application of the law in order to preserve a higher value, but claims that all laws could be altered in order to serve a general public interest (maslaha 'amma) renders the law subject to an overarching and overriding principle of general welfare or well-being.

With such an overarching utilitarian commitment it becomes difficult to defend the objectivity and absoluteness of any ethical or moral value. Every ethical or moral value becomes contingent on its ability to serve the general welfare or well-being of people, otherwise it is rendered invalid. This is exactly why modern jurists who relied on the concept of public interest as the save-all measure for Islamic legal reform have tended to create an unprincipled legal system that was made to endorse a very wide range of individualized and even idiosyncratic preferences.

The example of the hudud punishments

The invocation of public interests as a way of creating legal exceptions became a rather visible issue in modern times because of the nature and role of the so-called Qur'anic law, which is supposed to be a part of the immutable shari'a. Qur'anic laws or the special class of specific ethical commandments, although a small and narrow part of the legal system, are of considerable symbolic significance. This particular set of laws includes a group of criminal sanctions that are known as the hudud punishments.

Underscoring the significance of the hudud punishments is the fact that most of these laws implicate the mixed rights of God and human beings (huquq mukhtalita). I will comment at greater length about the complex issue of the rights of God and people, but for now it is important to note that the so-called hudud punishments, which include lashing, stoning to death and the severing of hands, are the most controversial aspect of shari'a law in the modern age.

For many Muslims, they have become the indisputable proof of the unique identity of the Islamic legal system and also the symbol for Muslim cultural and political autonomy. For many non-Muslims, however, hudud punishments are considered medieval, draconian and barbaric. Furthermore, many non-Muslim and Muslim scholars and writers, who are poorly informed about Islamic jurisprudence, treat these laws as if they are the very heart and core of the Islamic legal system. Consequently, many have come to the rather inescapable conclusion that shari'a law is fundamentally incompatible with modern conceptions of human rights.

There is no question that most medieval Muslim jurists considered the hudud punishments to be part of the immutable and eternal shari'a and therefore they rendered the hudud punishments not subject to change, modification, or abrogation. Whether intentionally or not, most medieval Muslim jurists created the impression that it is not possible to implement shari'a law without enforcing the hudud punishments and that, in general, the hudud are integral to the Islamic legal system.

Interestingly, however, hudud punishments were hardly ever implemented in Islamic legal history, for the most part because Muslim jurists made the evidentiary requirements and the technical pre-conditions for the enforcement of the hudud practically impossible to fulfil or because they admitted so many mitigating factors to the point that only a criminal who was most determined to be punished could be made to suffer the hudud penalties.

However, whether the so-called hudud crimes ought to be considered an immutable and permanent part of shari'a warrants re-thinking. As mentioned earlier, generally, the shari'a embodies the characteristics and attributes of Divinity, which consist of general ethical and moral teachings. However, Muslim jurists treated specific laws, which are explicitly commanded by God, to be a part of the eternal shari'a if these laws are in and of themselves ethical precepts that by their nature are not subject to contingency, context, or temporal variations.

Dealing with the hudud, Muslim jurists focused on the punishments and not on the behaviour or conduct that warranted the penalties. In doing so, they erroneously rendered some of the punitive measures mentioned in the Qur'an and Prophetic traditions sacrosanct and eternal. But there is no plausible reason to believe that the attributes or characteristics of Divinity or that the ethical precepts of Islam are embedded in specific punishments - whatever these punishments may be. If the Divine Will was to safeguard the hudud punishments, either as embodying the attributes and characteristics of God or essential ethical and moral values, it would be incongruous for such punishments to be contingent, contextual, or subject to mitigation.

In my view, the classical approach - which tended to sanctify particular punitive measures, and treat them as if part of the immutable and eternal shari'a - is quite unfortunate. What ought to be considered immutable and eternal are the values that the punitive measures were intended to safeguard, and not the punitive measures themselves. The severity of the punishments mentioned in the sources is an indication of the importance of a particular value to the shari'a.

Therefore, the punishments prescribed for fornication or stealing are powerful indicators of the value that the shari'a places on chastity and on not stealing. The punishments themselves, however, are contextual - they depend on a variety of factors such as mitigation; evidentiary certitude; the intent and purpose of the individual perpetrator; the reliability and accountability of the judicial system at a particular time and place; community standards; sociologically dependent and shifting notions of cruelty, barbarity and mercy; and the possible deterrence value of such punishments within the context of a certain age and place.

As already noted, the classical jurists were keenly aware that to the extent possible, an Islamic judicial system ought to avoid applying the hudud punishments. In fact, in a well-known set of traditions, the Prophet is reported to have taught that in criminal matters any doubt must be construed in the light most favourable to a defendant.

Moreover, in the case of hudud, the Prophet instructed, that Muslims ought to seek out the shadows of doubt in order to avoid having to inflict a hadd (singular of hudud) punishment against a defendant. According to the Prophet, if a person knows that someone has committed a hadd crime, it is better to help the criminal repent than to expose the criminal by turning him in to the authorities. Furthermore, bringing hadd charges against a suspect that ultimately the accuser is unable to prove might in some circumstances subject the accuser to punishment, and sneaking and spying is not a valid way of proving a hadd crime.

This principled recalcitrance and various safeguards against a wide application of the hudud is a clear indication that the hudud punishments themselves do not embody an ethical or moral value. The value is in the unethical and immoral behaviour that the hudud are intended to deter. Therefore, for instance, it is the ban against the consumption of alcohol that is immutable and eternal and a part of the shari'a, and not the punitive measure prescribed in the text for the commission of such an offense.

I do realize that accepting this argument would constitute nothing short of a radical paradigm shift in the way that Muslims think about the so-called hudud punishments. Nevertheless, I believe that this paradigm shift is critically important for the internal coherence of the shari'a system. It is reasonable to deal with the ethical and moral values of the shari'a as immutable, eternal and absolute, but any positive and context-based laws - such as the laws of kitaba relating to the freeing of slaves - are temporal and changeable.

The pursuit of the truth of Divinity

There is yet another aspect to understanding shari'a and its role that underscores the necessity of the paradigm shift I am advocating. Beyond ethical and moral principles and the specific set of laws that inherently embody an ethical or moral principle, there is another archetypal sense to shari'a law.

Shari'a is the Divine law as it exists in God's Mind, known with thoroughness and perfection only to God. The shari'a is Divine because it emanates from God and it exists only through God. Any human legal system sets in motion certain potentialities - a potential, for instance, for achieving justice, equity, fairness, security, safety and stability - but the ability of a legal system to pursue, leave alone achieve, any of these potentials is highly contingent.

The pursuits of a legal system are dependent on a set of complex socio-political and economic conditions as well as the sincerity, knowledge, intelligence and diligence of the typically large number of human beings who grease and turn the wheels of a legal system. The shari'a, however, is not only a possibility or potential; it is the fully realized and fulfilled just order possible only from and through God. The shari'a is Divine only because it is not contingent on the human element, but it is a utopian reality existing only in the realm of the Divine.

But, most importantly, the vast majority of Muslim jurists considered the shari'a - in its true sense, as the Divine verity, a utopian inspiration, the perfected ideal and as the achievement of immaculate justice and consummate moral existence - to be unattainable and unachievable by human beings.

As God's viceroys (khulafa' fi al-ard) entrusted with the preservation and caretaking of God's earth, human beings have been commanded not to corrupt the earth, to strive to follow the Divine path, and to act as witnesses on God's behalf by calling for what is moral and good and by resisting what is immoral and depraved (al-amr bi'l ma'ruf wa al-nahy 'ann al-munkar). The obligation to command the good and forbid the evil is fundamental to honouring God's trust and covenant with human beings as His viceroys and agents on the earth.

The elements of the Divine covenant or trust also identify the nature of the obligation owed by Muslims towards the shari'a. In order to discharge God's covenant or trust, human beings are commanded to engage in a process - the process mandates that there be a conscientious and diligent search or investigation for what is good and what is bad, and then engaging in the process of teaching, counselling and enforcing.

If Muslims had unobstructed and total access to God and God's knowledge, there would be no need to engage in the process of searching because the good and evil would become fully transparent. Although God is the perfect embodiment of goodness and the exact antithesis of all that is evil, human beings do not have access to God's knowledge - the most that human beings can claim on any specific problem, after a conscientious and diligent search, is a probability of belief that they have succeeded in finding the truth.

Hence, human knowledge cannot be equated with the truth of Divinity, but the very process of searching is morally praiseworthy even if human beings are capable only of approximating and coming close to the truth. Moreover, human beings may attain parts of the truth, but they can never embody the whole truth.

In my view, if a government, group, or people arrogantly claim that they are capable of representing the Divine truth or Will, then they have committed a grievous moral offense by associating partners with God.

Khaled Abou El Fadl is the Omar and Azmeralda Alfi Distinguished Professor in Islamic Law at the UCLA School of Law, where he teaches International Human Rights, Islamic Jurisprudence, National Security Law, Law and Terrorism, Islam and Human Rights, Political Asylum and Political Crimes and Legal Systems. He is the author of numerous books on Islam and Islamic law, including The Great Theft: Wrestling Islam from the Extremists and The Search for Beauty in Islam: A Conference of the Books.