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Islamic Sharia Laws ( 1 Sept 2021, NewAgeIslam.Com)

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Islamic Laws, Fatwas And Fiqhi Decisions Drawn From The Sharia For Dealing With Current Scenarios: Immutable or Flexible?

By Ghulam Ghaus Siddiqi, New Age Islam

2 September 2021

The Goals of Sharia [Maqasid Al-Sharia] Are To Serve All Humanity in Response to Time and Situation Demands

Main Points

1.    According to changes in time and location, rules and judgments based on customs and culture can be adjusted.

2.    Fatwas issued by Ulama in the past can be changed to resolve the present-day difficulties.

3.    The legal regulations were established by the notable authorities, such as Imam Abu Hanifa and others to match the changing circumstances of the time and location.

4.    Ijtihad must be practiced on a regular basis for Sharia to be useful to the Ummah.

5.    Carelessness in formulating a fatwa dealing with interpersonal relationships could result in devastation or even divisiveness.

6.    Fatwas should be based on facts while also emphasizing the principles of social justice and benefits to society.

7.    Before issuing a fatwa, Islamic scholars and "Ulama" must conduct a thorough assessment of current events taking place worldwide.

.....

 “The modification of the rules and judgments based on customs and culture according to the change of time and place,” is one of the most fundamental and significant Islamic maxims addressed by notable scholars of Shari'ah and Principles of Jurisprudence of the many Schools. They have thoroughly discussed it in their books and writings, laying out the rules, splitting it into sections, and applying it to many fields and situations. It is also one of the most significant principles of Islamic law that guides the development of rules and judgments for contemporary concerns in various branches and areas. However, due to rising backwardness in comprehending the Principles of Jurisprudence and Ijtihad, this maxim is frequently disregarded, resulting in a slew of serious difficulties for the common masses.

Theoretical and empirical evidence demonstrates that Islamic law, like Fiqh judgments derived from the Shari'ah, has not remained static or unchanged since its inception, but has responded to, and altered in response to the demands of time and situation. This is especially true when it comes to inter-human social connections (Mu'amalat), which are more affected by the dynamic nature of human life than religious devotion and acts of worship (Ibadat), which are more stable. The reason why rulings based on customs and culture must change as time passes is that needs of people vary with time. A law constructed to be static will impose hardship and constraint. The following is a classic example that is used to exemplify this concept:

During Hazrat Umar Ibn Khattab's Caliphate, the Prophet's (peace be upon him) supporters were anxious about what to do with the land they had acquired in the war after the conquest of Iraq. If they were to follow the Prophet's lead, a fourth-fifth of the land should be divided equally among those who participated in the war, with the remaining one-fifth going to the common welfare. On the other hand, Hazrat Umar had a different opinion. He stopped distributing the spoils of war as was previously done. Instead, he permitted the landowners to keep their properties as long as they paid a tax and the revenues were used to benefit the civilians and the government.

At first glance, Hazrat Umar's actions in this circumstance show up to be in violation of Allah's and His Messenger's instructions. Allah commanded in Surah al-Anfal, verse 41, that a fifth of the spoils of war should be set aside for Muslim interests, while the rest should be dispersed among Muslim troops who fought in the war. The question arose as to why Hazrat Umar's fatwa was different. Was he not concerned that he may be seen as someone who ventured to question and even amend the legal guidelines of Allah and His Prophet, and if he wasn't, what legal basis did he have for his decision? Had he understood the nature and real objective of the instructions of Allah and His Messenger [peace be upon him] meant for the welfare of humankind?

We have also received a slew of other inquires in this regard. Should the fatwas of prominent Ulama be viewed as irreversible? Is it possible to adjust them according to the demands of time and place? Sharia is widely held to be divine and unchangeable, with no human being having the authority to alter it. The notable authorities and Imams in Islamic jurisprudence such as Imam Abu Hanifa and others constructed the legal regulations to match the changing circumstances of the time and location. As a result, Sharia might be defined as a sincere human response to divine intent. When Imam Shafi'i moved to Egypt, it is well acknowledged that he altered his thinking about a variety of fiqhi (jurisprudential) issues.

In response to those concerns, Ulama who are experts in Islamic law have devised a legal method by which a fatwa issued in a specific circumstance might alter when time, place, perspective, and the surrounding conditions and needs of the area where the fatwa was issued change. Imam Shatibi elaborated on this in his work, Al-Muwafaqaat fi Usul al-Sharia.

Yusuf al-Qaradawi, a well-known and revered Arab scholar, has used the Islamic tenet of Ijtihad to support revisions in Fatwas. He believes Sharia can only benefit the Ummah if Ijtihad, which he defines in a variety of ways, is practised on a daily basis. It's crucial to remember that Sharia must remain dynamic and relevant to the period and location in which it's applied. The fundamental principles and values of Sharia cannot be changed, but the laws based on these principles and values must exchange from time to time to remain relevant and beneficial. As a result, traditional Sharia laws have been altered or codified in most Islamic countries to make them as beneficial as they once were.

Al-Qaradawi has supplied ten justifications for revising Fatwas, all of which are quite significant. To begin, he cites four reasons why Fatwas have to be updated: changes in time, place, situations, and what he refers to as "Urf" (social practices or traditions). The term Ma'ruf is also used in this context in the Quran. Then he goes on to list six more reasons why change is desirable: change in knowledge, change in people's needs, change in people's capabilities, spread of calamity (when an acute problem becomes widespread), change in collective political or economic conditions, and change in people's opinions or thoughts.

In truth, these ten bases encompass all feasible modifications that can occur in a particular community. This makes it very evident that Islamic jurisprudence is far from static or immovable, as is widely believed, but it does allow for change. It's a different matter if our present-day Ulama are inflexible or inept to do so. In reality, any rule that remains static will no longer be able to tackle the needs of society.

Based on such methods, it's reasonable to conclude that Hazrat Umar's policy or fatwa modifications were prompted by a specific circumstance. Hazrat Umar [may Allah be pleased with him] made the decision because he viewed the Islamic Ummah's future holistically. Islamic community can become stronger by placing a tax on land that was part of war spoils because it will be backed by a stable economy and a strong government. This suggests that the benefits need to be the primary consideration when enacting legislation.

Furthermore, in his book 'Ilm Usul al-Fiqh wa 'Alaqatuhu bi al-Falsafah al-Islamiyyah,' Sheikh Ali Jum'ah, the former Grand Mufti of Egypt, emphasized the importance of facts in Islamic laws that directly touch the interests of society. As a result, fatwas should be founded on facts while also emphasizing the principle of benefits for society and social justice. He additionally emphasized that a mufti ought to entirely comprehend the situation he is dealing with, and that if it entails a challenge about which he is unfamiliar, he should consult specialists in that field before issuing a fatwa.

Carelessness in drafting a fatwa might have a detrimental impact on the person who requested it (Mustafti), because if the fatwa deals with interpersonal relationships, it can lead to devastation or even divisiveness. Someone who was injured on a trip during the Prophet's time, for example, became ritually impure unintentionally during an evening. He then inquired of his co-workers and friends if he could simply cleanse himself with sand (Tayammum) as an alternative to the compulsory wash. His colleagues stated, without hesitation, that he nonetheless had to wash with water. The man died a few days later as a result of infections that developed in his wounds. When the Prophet [peace be upon him] learned of this, he grew enraged and labelled his friends as "murderers" of their own comrades.

Some so-called muftis sow tensions in the Muslim neighbourhood by designating someone or a group to be an infidel without first conducting a thorough and detailed investigation. As a result of the authority provided by a thoughtless fatwa issued by their muftis, such views may elicit wrath and violent action from parties that believe they are in the right. Imam Ahmad Ibn Hanbal has made it necessary for muftis to grasp the problems of society and its typology. This is to ensure that these muftis do not become caught by their own narrow-mindedness and deliver a judgment on a matter that goes against established norms for serving society.

Based on the foregoing analysis, it becomes essential for all parties to engage in introspection so that no one automatically blames others for their actions and what they do. It's likely that one side's conditions or scenarios aren't the same as what others are going through.

The preceding analysis reveals that all Islamic scholars and "Ulama" must conduct a thorough examination of current-day events and scenarios in which common people are unable to carry out fatwa rules resulting in hardships and difficulties. They must also concentrate on other Fiqhi maxims in order to deal with today's issues, such as 1) "Removing harmful things is more vital than receiving advantage." 2) “Necessity makes the forbidden things permissible.” 3) “If forced to pick between two evils, one should select the smaller of the two” (in order to avoid a worse situation). 4) “Hazards must be eliminated.” 5) “Difficulties necessitate assistance.” Only then can we conclude that Islamic legal practices are adaptive and capable of dealing with new challenges, as the purposes of Sharia [Maqasid al-Sharia] are to serve all people and bring them closer to Allah Almighty.

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 A regular Columnist with NewAgeIslam.com, Ghulam Ghaus Siddiqi Dehlvi is a Classical Islamic scholar and English-Arabic-Urdu Translator.

URL:    https://www.newageislam.com/islamic-sharia-laws/islamic-laws-fatwa-fiqh-sharia/d/125306


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