By Muhammad Yunus, New Age Islam
06 June, 2014
(Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009)
This is an abridged and focused version of the following exhaustive article on the theme and is aimed at the Muslim jurists in India to remind them of their responsibility to work towards a much needed reform of the Muslim Personal Law, which in many respects stands in contradiction to the Qur’anic message (based on historic critical, gender neutral reading) and on the others inconsistent with the gender dynamics and economic realities of this era and India’s acclaimed inclusive society.
The Classical Islamic Law (Islamic Sharia Law) is NOT a Word of God!
The Classical Islamic Sharia Law is NOT a Word of God! (Part II: The Way Forward)
Broadly speaking, there are four major schools of law in Sunni Islam – Hanafi, Malaki, Shafi’i, and Hanbali and each Muslim is required to belong to one of these schools of law (Madhhab) or else he/she loses his claim to the faith of Islam. The title of the Law schools is based on the names of the most eminent jurists of early Islam who were renowned for their juristic erudition and Islamic knowledge: Abu Hanifah (80/699-149/766), Malik ibn Anas (97/713-179/795), Muhammad al-Shafi’i (150/767-205/821), and Ahmad Ibn Hanbal (164/780-240/855). The Shi’ite school of law, Ja’fari, was led by Imam Ja‘far as Sadiq (d. 148/765). But none of these Imams founded any school of law and there is probably not a single book in existence written by these imams except the Muwatta by Imam Malik, which has been transmitted in several versions. What the early Imams left behind was a wealth or collection of opinions (Rais) on the legal issues they encountered and their legal responses (fatwas) on sensitive issues of their times as reported by their followers in later generations. Thus, the Islamic Sharia Law that we call after their names, are nothing but an ever expanding corpus of rulings and opinions that the followers of the above mentioned imams issued or espoused in the successive generations after their death. In technical terms, therefore, the Classical Sharia law of Islam is a cumulative juristic tradition that encompasses the legal responsa (Fatwa) and opinions (Rai) of all the past jurists of Islam. Accordingly, it is shaped and informed by the customs, traditions, social and political conditions, juristic norms and the state of knowledge of the diverse historical points of Islamic civilization - dating from the founding Caliphate (632-661/10-40 AH) through the long centuries of the medieval era to the advent of colonization.
Though an epitome of justice for its era, and repository of countless noble principles and rulings, it entertains such notions as stoning to death for adultery, capital punishment for apostasy and blasphemy, slavery, discrimination and hatred against non-Muslims, temporary marriage, on the spot divorce, division of knowledge between Islamic and non-Islamic for example, that are antithetic to the Qur’anic message. Besides, political and intellectual decline in Islam in recent centuries has virtually eroded the base of Islam’s judicial system and institutional hierarchy. This has led to complete reliance on the literalist and often harsh rulings of the past jurists thus grouting Islam into the medieval era. Accordingly, Prof. Khaled Abou Fadl of UCLA states: “Sharia law refers to positive Islamic law or the Ahkaam, the positive legal commandments deduced and expounded through centuries of cumulative legal practice.” Therefore distinction between the noble rulings of the Sharia law and its rich heritage and its ignoble, harsh and barbaric rulings must be clearly understood today to avoid human rights violations, wanton terrorism, repression of women and minorities in the name Islam’s Sharia law.
At this juncture it is important to understand the distinction between the divine Sharia of Islam and its Classical Sharia Law that proponents of political Islam are keen to implement.
The Qur’an represents the divine Sharia of Islam (5:48). It uses the words Shira (technically Shir’ah) and Sharia (tech. Shari’ah) synonymously with the generic notion of a system or principles of law (5:48, 45:18). It expounds fundamental universal notions for just and harmonious governance of human society. These include, among others, justice, liberty, equity, good deeds, good neighborly and inter-faith relations, sharing of wealth with the poor, eradication of slavery, deliverance of women from various entrenched taboos, empowerment of women use of intellect (Aql) and rational logic (Fiqha) , striving for excellence – to cite some major examples. This is different from the Classical Sharia Law of Islam which is nothing but an endless list of jurists’ opinions and rulings. The jurists also privileged their own rulings over the Qur’anic commandments by declaring: “Any Qur’anic verse which contradicts the opinions of ‘our masters’ will be construed as having been abrogated, or the rule of preference will be applied thereto. It is better that the verse is interpreted in such a way that it conforms to their opinion.” [Doctrine of Ijma in Islam, by Ahmad Hussain, New Delhi, 1992, p.16.]
While we do not intend to blame the jurists of Islam for privileging and even sanctifying their views, for which there must have been strong existential grounds, we do blame the posterity to cling to their views and freezing the Classical Sharia Law of Islam at it medieval configuration
From the foregoing discussion it is clear that what we call Classical Sharia Law of Islam is a system of law that the Muslim jurists belonging to different law schools evolved based on their own opinions as informed by their Islamic knowledge, worldview and historical realities of the era. They drew on the limits set in the Qur’anic but were free to sidetrack or defy any clear Qur’anic dictate. The classical example is the appropriation of triple divorce despite declaring it sinful, or the Muta (temporary marriage) despite the Qur’an’s time-framing of divorce. Thus, technically, the Classical Islamic Law is oxymoronic as it is Cumulative Muslim legal tradition rather any law based necessarily on true Islamic principles.
This is merely a conceptual paper and does not discuss the issue of Indian Muslim Personal Law or other deep rooted applications of Sharia Law such as the division of knowledge (marginalization of universal sciences in the madrassa) in any detail. But one thing remains beyond any question. So long as the traditional madrassa education is not brought in line with civil education and the emphasis on and coverage of secondary sources is reduced, the Muslims in India will take their secondary sources as word of God, the televangelists and Mullas as the spokesmen of God and will lay down their lives to preserve the Personal Laws and any effort to bring any reform will boomerang.
The following articles discuss the issue of madrassa education that needs to be addressed as a precursor to any reform in Personal Law.
1. An Open Reminder To The Ulema: Rejecting Universal Knowledge As Un-Islamic Is Brazenly Un-Islamic And Kufr (Denial Of Truth)
2. The Opponents Of The Right To Universal Education (RTE) To The Muslims Are The Enemies Of Indian Muslims
Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. KhaledAbou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.
Dear Rafiq Lodhia Sahab,
I am grateful to you for speaking so highly of me and putting my name alongside
Dr. Fadl’s whom I cannot match in scholarship, breadth and depth of knowledge
and academic and personal accomplishments even if I were to live another lifetime.
He is God gifted and can learn, retain and transmit knowledge as an
intellectual giant, in gigantic strides, and I am but a minion and can hop
along in small steps and never ever reach anywhere near him though I am
grateful to God for my analytical skills and my passion to probe the essence of
our faith and to speak out without fear not like the mukire Qur’an who parallel
the Qur’an with the hadeeth though a great many of them contradict the Qur’an.
Coming to your comments about the
detractors of healthy debate, long ago I identified a category of commentators
in the following statement in an article referenced below – though as a human I
cannot be infallible:
"(There are) imposters and
agents of enemies who can barge into it (this website) with Hindu and Muslims
names in order to foil any healthy debate, block any reform in Islam, create
inter-faith hostility and strengthen the hands of extremists, terrorists and
fundamentalists – some of these are obviously on the payroll of the enemies of
Islam and India but as traitors and mercenaries, they can be of any religion
and assume any name."
Ref: Use and
Misuse of Freedom of Expression on this Islamic website (New Age Islam) and
need for a Clear Agenda.
The unrelenting effort of some of the brightest minds
on this forum to quote the weakest ahadith or to readily support any malicious
criticism of the Qur'an in the name of freedom of speech does worry me as in my
study of humans and research into the Qur'an I found them somewhat like the
hypocrites of the Prophet's era whom the Qur'an called rijz (spiritually unclean) (9:95), liars (9:42, 9:107, 58:18, 63:1) and deviants (fasiqun) (9:96, 9:67), hurled
divine curse on them (9:68, 33:73), charged them to being intense in kufr and hypocrisy (9:97, 9:101) and the most despised among the
Prophet’s followers, singled them
out as the comrades of Satan (58:19/20) and relegated them to the lowest depths
of the hellfire (4:145). I pray they look at the faith of Islam in an objective
manner rather than with a pre-conceived notion of malice and ridicule – as
their words betray and seek forgiveness of God, lest they may be losers.
want to keep our conversation through this forum as it may enable us to dispel
the misconception of some of its inveterate revilers who would have winked at
each other if they came across us in any public place like the arrogant Meccans
passing by the humble followers of the Prophet.
the way, may I request you to get my following joint publication through
Amazon.com as it is practically the source material for all that I write on
this forum. It is authenticated by Dr. Khaled Abou El Fadl in these words:
The authors do not offer a personalized view of their own
religiosity; they explain in a very straightforward and accessible fashion what
mainstream Muslims believe in and especially, what the Qur’an itself
teaches. Non-Muslims will understand why
well over a billion people call themselves Muslim and also how Islam inspires
Muslims to deal with and improve upon the world in which they live. Indeed this book manages to translate the
Muslim vision or the way that Islam heals the ailments of humanity in the
current age and every age. Readers who
wish to learn the theological and moral dogma of Islam will find this book
indispensable. But this book is not just
an informative tool for the fair-minded and interested reader. This book is an educational tool for both
Muslims and non-Muslims—it is an authoritatively reliable text to teach young
Muslims, or even Muslims who never had the time to study the Qur’an, or the
fundamentals of their religion. The book
is written with the kind of balance and fair mindedness that makes it equally
valuable for Muslim and non-Muslim students of Islam. The least I can say about this text is that
it was written by two ethically conscientious and principled Muslims in order
to share their religion with every ethically conscientious and principled
reader in the world. They must be heard.
Dr. Khaled M. Abou El Fadl
Alfi Distinguished Professor of Islamic law
UCLA SCHOOL OF LAW
you do obtain and read the book and feel the need to propagate it in America,
we can surely have e-mail communication on this special project.
I will revert on your query re verses 5:49/50 in my next comment.
Dear Yunus Saheb,
of all, aside from highly respecting your in-depth explanation of where things
went wrong in the accurate translation of the Islamic laws, I must candidly
inform you not to expect the younger generation of Muslims to take an interest
in your scholarly work. The reason being that the Muslim youths like all the
rest are more so focused on the smaller window of their iPhones and are busy
chatting away whatever is in their minds all day long. In short, reading is out
and texting is in.
speaking, comprehending your scholarly work will be extremely difficult for young
Muslims who were born and raised in the western world. You of all should not be
disheartened as it is not easy for many to digest the details of your narration
Islamic Law” versus the “Divine Sharia Law.”
is baffling to me is that in two of your articles, you gave reference to Sura 5
– Verse 48, but you did not mentioned Verse 49 nor 50 which translates as
Abul Kalam Azad
Sura 5 - Verse 49
“Wherefore do you
judge between them by that which God hath sent down and follow not their desire
and be on your guard lest they tempt thee away from any of the commandments
which God had sent down to thee. But if they turn back, then know thou that God
will let them fall into trouble for some of their sins and that a good many men
5 – Verse 50
“Desire they then
to revert to the law of the time of ignorance? What better law can there be
that God’s for a people firm in faith.”
5 – Verse 49
“Judge between them
by what God has sent down and do not be let by their desires. Beware of them lest
they turn you away from a part of that what God has revealed to you. If they
reject your judgment, know that God intends to punish them for the sins they
have committed. Indeed a larger number of the people are disobedient.”
“Is it pagan laws
they wish to be judged by? Who is the better judge than God for whose faith is
is imperative for ordinary Muslims be they young or old to be able to grasp the
meaning of the Verse 48. In my opinion, one must also fully understand Verse 49
and 50 in entirety in order to get a clear picture of why Verse 48 is highlighted,
whereas, Verse 49 and 50 are omitted in your essay. Though, as informed to you
earlier, I am not well versed about many of the rulings of “Classical Islamic Laws,” nonetheless,
how can you, or for that matter, all the leading Muslim scholars take a gigantic
leap from the Classic Sharia Law to Modern Islamic Law? As you well know, the
is considered as toxic by many in America. You mentioned that
Classic Sharia Law stands in sharp contrast to the realities of the modern era,
then what you and scholars like Khaled Abou El Fadl suggest we do?
Saheb, I am afraid in this forum, I doubt that many readers will be eager to
carefully analyze the progression of Islamic laws during the various stages of
Islamic history. Well, let’s say, only if one is a history buff. No doubt, your
scholarly comments are worth reading, but you should not be surprised if you
find that hardly any young Muslims find time to read about what you have been so painstakingly
trying to relay to many Muslim readers thus far.
if you recollect, I once requested for your personal email address. I feel that
any exchange of communication on this forum can be taken out of context,
whereby Sultan Shahin Saheb will remain helpless. Henceforth, when it comes to
raising some sensitive questions that can well be taken out of context by the
likes of “Hats Off” and “Secular Logic” and not to mention the “Ex-Tablighi,” it will be good to have a private exchange rather than openly display
it on the “New
Age Islam” forum. You have already witnessed what can happen, let
alone my little input that gets more or less discarded. Intellectual discussions
cannot be held in an atmosphere where a handful of commentators remain “Intellectually
Dishonest” throughout the entire debate.
Almighty Allah bless you and your beloved family members.
साहब आप की वेबसाइट newageislam मैं ने देखा। अच्छा
लगा। आप नए युग के इस्लाम की बात कर रहे हैं जैसा कि आपकी साईट का नाम ही यही है। मुझे
आप बताएं कि आप इस नए युग में कैसा इस्लाम चाहते हैं?
is a flexible religion that can be compatible with the changes and necessities
of the modern era. Any law that does not stand in contradiction to the Qur’an
and Hadiths but benefits Muslims (when talking about Muslim personal law) can
be amended, changed or abrogated either. The classical Jurists also did their
best to reach out to the exact meaning of the Qur’an and Hadiths, gauging the
then needs and passage of that time. But in this push-button age, our needs are
different from theirs. Therefore, we can change, amend or even abolish our laws
to such an extent indeed that they should not contradict the Qur’an and
Laws cannot be immutable. Only Quranic principles that should underlie our laws are immutable. As Yunus sb. says, these principles include, " justice, liberty, equity, good deeds, good neighborly and inter-faith relations, sharing of wealth with the poor, eradication of slavery, deliverance of women from various entrenched taboos, empowerment of women, use of intellect (Aql) and rational logic (Fiqha) , striving for excellence etc." Man's comprehension of such divine principles deepens as societies evolve. Hence the need to keep our laws up-to-date.