What Is Popularly Known As The Sharia Law Of Islam Is Actually The Cumulative Rulings Of Muslim Jurists With A Tag Of Islam, And Not Any Immutable Word Of God Or The Laws Of The Qur’an

 

 

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! 

https://www.newageislam.com/islamic-sharia-laws/the-classical-islamic-sharia-law/d/5714 

The Classical Islamic Sharia Law is NOT a Word of God! (Part II: The Way Forward) 

https://www.newageislam.com/islamic-sharia-laws/the-classical-islamic-sharia-law/d/5723

 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)

 

https://www.newageislam.com/islamic-sharia-laws/an-open-reminder-ulema-rejecting/d/5961

 

2.    The Opponents Of The Right To Universal Education (RTE) To The Muslims Are The Enemies Of Indian Muslims 

https://www.newageislam.com/islam-women-feminism/the-opponents-womens-equal-rights/d/14306 

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.

 

URL: https://newageislam.com/islamic-sharia-laws/popularly-known-sharia-law-islam/d/87378