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Debate and Discussion in Islamic Law


By Dr Muhammad Maroof Shah

28 Dec 2017

Every educated Muslim should read at least introductory texts on important facets of Islamic Tradition written by scholars capable of critical thinking.

The tragedy of the Muslim world consists, generally speaking, in refusal to think and reflect and outsourcing these tasks to those who haven’t been trained to review the state of art of different disciplines and master the art of thinking and conceptual apparatus required at the highest level. At certain level and on more general problems, all Muslims are required to know basics and think over them. In the name of Islam it has been the case that on certain issues one could be misled, misinformed and needlessly opinionated and judgmental. Self esteem, relationships/family life, job prospects, respect for reason, authority of conscience, faith in God/Islam all have been negatively impacted due to misconstrued views one has interiorized.

Every educated Muslim should read at least introductory texts/review articles on important facets of Islamic Tradition written by scholars capable of critical thinking to be able to reflect or think for themselves on them (becoming a professional jurist or theologian isn’t required from all and sundry but reflecting on revealed  Word for making informed choices is). Let us read today one such text on Islamic Law – Krause’s abridgment of Mohammad Omar Farooq’s Towards Our Reformation: From Legalism to Value-Oriented Islamic Law and Jurisprudence published by one of premier think tanks for the Muslims International Institute of Islamic Thought.

Are Islamic Laws Divine?

 “If the Shariah is equivalent to Islamic law (Fiqh) then it cannot be considered divine. Fiqh or Islamic law is, after all, mostly a human construct. Even though one of the Usul (source methodologies), the Qur’an, is divine, the other sources – Hadith, Ijma (consensus) and Qiyas (analogical deductions) – are not sacred. Thus, in the sense that the Shari’ah is commonly used, where the details of the laws are not derived from a divine origin, but instead from less divine (Hadith) and human derived (Ijma and Qiyas) sources – it is not divine.”

Are All Problems Resolved And All We Need Is Implementation?

“The Shari’ah is often thought to provide clear and unambiguous guidance over the entire spectrum of life. This is a simplistic view.” “Islam is not a manual dealing with every contemporary problem or issue that Muslims may encounter. It stands to reason that if, indeed, all the problems and solutions were known, or easily deducible, the condition of the Muslim world would not be so miserable and deplorable. A fundamental pitfall of Muslim thought has been its over-reliance on its sacred texts. Such rigidity in Islamic thought has led to sterility and stagnation in Muslim thought.”“Ablution, prayer, fasting, etc. are not legal matters at all. Turning every aspect of Islamic guidance into law is therefore inconsistent with Islam.” Equating “the Shari’ah to Islamic Law is simply erroneous because Islam, in the comprehensiveness of its guidance, not only covers law but also values, principles, rituals, etc. Therefore, not all aspects of Islam are enforceable by human authority. .. The Prophet’s mission was no more than conveying the message. If, indeed, he is not the manager (Musayir) of people’s affairs, then his followers cannot assume a duty larger in scope.”

What can Muftis Say?

Fatawa we seek are human and thus fallible and not absolute revealed edicts. They may be retracted or changed or contested by other jurists. They don’t become binding by themselves or for all eternity. Besides this there are other problems, in much of Ifta discourse, such as “Text-centeredness or text-orientation” meaning too readily, atomistically, invoking chapter and verse or solitary Hadith reports (which ever remain probabilistic) or opinions of classical jurists on any issue and often betray inadequate attention to factors such as history or context or contestable choice of interpretative framing involved besides lack of humility in speaking in a tone as if unqualifyingly on behalf of God or His Prophet (SAW). There are certain qualifications that should have been considered before we give/seek to impose this or that verdict in God’s name. One needs to ask such questions as:

Why Reduce To Legal Terms Certain Purely Religious Or Ritualistic Notions As Our Author Asks?

Why not honour silence of the Lawgiver and refrain from issuing opinions/Fatawa in a given case? (The Prophet SAW discouraged asking too many questions regarding this and thus leaving much to conscience or proper use of reason).

How come one is sure if one’s chosen rigid view doesn’t affect the spirit of religion or Maqasid (purposes) informing particular views, especially welfare here and hereafter as otherwise one could embrace alternative views?

Why limit to one theoretically fallible view of one’s Fiqh school/chosen scholar/jurists of particular/previous age?

Has there been done comprehensive review of all available opinions till date and research on, mostly missing, empirical  aspect and consulted all stake holders  employing principle of Shura as our verdict impacts lives one might otherwise treat in abstraction?

Caution in using Hadith as Source of Law

Consider what our author states: “Almost the entire Hadith literature is composed of Ahad (non-Mutwattir) narrations that yield probabilistic knowledge and, as such, do not yield certainty of knowledge. Additional circumspection is a must when utilizing these to formulate laws, codes and dogmas. Yet, the majority of the Islamic scholars hold the view that Ahad Hadith can be used to derive binding laws or codes.”

Is there a Consensus on Consensus (Ijma)?

The author summarizes various problems in Invoking Ijma as a Source of Law: “ Not only does no Ijma(consensus) exist about the definition of the term itself, there is hardly any aspect of ijma about which any consensus arises. Many legal verdicts, for which an ijma is advanced, reflect a unique socio-historical context going all the way back to the time of the Prophet and his Companions, even though the particulars or details of any aspect of law may not be universally applicable throughout time.” “The process of ijma cannot be elitist and people whose lives are going to be affected by any decision or policy must be consulted in establishing an Ijma. Of course, it would be impractical for the entire Ummah to be directly involved in such a process of approval. But this is precisely where the principle of Shura becomes relevant.”

What Can And What Can’t Be Disputed?

“In fact, the systematization of laws and codes has contributed toward rigidity and intolerance at the inter-Mazhab level. For instance, although according to the HanafÏs a marriage between a HanafÏ male and a Shafi’ female is valid, according to the Shafi’ school it is invalid.” How far this is from a religion that allowed marriage with women of Ahl-e Kitab! Islamic principle of dignity of labour, as our author notes, has been forgotten and we find certain professions downgraded in Hidaya, a classical legal manual. Historically retrograde, rigid absolutist, patriarchate, pro-State, pro-feudal and then pro-capitalist readings of Islamic law have prevailed over more open and egalitarian ones. Dissenting voices of individual scholars critiquing prevalent opinions/methodologies and established scholars who spoke for giving due place to principles, rationale, public interest, women, other religions, against rigidity and hegemony of particular schools and received human interpretations have been marginalized. Few know today wide latitude or diversity of opinions from classical to postmodern times on almost every issue we have to choose from as otherwise we are defenceless against disturbing conclusion of the author.

“Elements of Islamic laws and codes have become inconsistent not just with the contemporary era, but also with the very principles and values of Islam that such laws and codes are supposed to uphold.” From triple Talaq to rulings on hijab and banks and to interfaith marriages to choosing diverse careers we have a range of opinions to debate and choose from without being guilty of defying Islam or what Asad calls “true Shariah.” What is wrong with legalism may be understood by taking a look at its history – Chinese, Judaic, Christian and other traditions that fought war against it.

      “Due to the dichotomy between religious and secular education, few Muslim jurists and scholars are not adequately familiar with the field of modern economics and finance. This shortcoming apparently does not deter them from issuing Fatawa (juristic opinions from a religious perspective) on the subject, nonetheless.” This applies to many other areas, including women’s rights treating religious other as empirical foundations for views are lacking. “The received corpus of Islamic law does not possess an empirical foundation, and the vital role of research, concerning the pertinent matters required to understand and analyze a problem both before and after the formulation and enactment of a law, is currently absent.”

      What is indisputable is the authority of the Shariah as far it is Divine Writ (all Muslims, regardless of sectarian affiliations, have stood fast to it as noted by translator of al-Mawardi’s classic Al-Ahkam al-Sultaniyya) that Fiqh seeks to embody in concrete cases. What has been ever disputable is the claim that a given Fiqh position is the only/final/indisputable embodiment of Divine Writ. What is human in our understanding of Shariah can be interrogated and refined by humans and what is divine – the Word – and unproblematically given – Muhakkamat – can’t be. Wisdom lies in not confounding the two and resisting meaning closure supposedly enacted in fiqh manuals. It remains to be shown that a supposed verdict of Islamic Law is truly Islamic. It may or mayn’t be. God has no officially recognized spokesperson or position on countless issues on which His authority is invoked. We must ever strive to clarify or unearth “true Shariah” that is “almost hidden in the maze of scholastic views and deductions,” to approximate divine intention and there might well be many positions equally near or far from the Centre and thus relatively valid.