The Classical Islamic Sharia Law is NOT a Word of God! (Part II: The Way Forward)
By Muhammad Yunus, New Age Islam
October 14, 2011.
(Joint Author), Essential Message of Islam, Amana Publications, USA, 2009
6.Way Forward
The jurists of Islam can draw modern law (Sharia) based on broader social, moral, ethical paradigms of the Qur’an and its emphasis on equity, justice, wealth distribution and other liberating paradigms [1 above], but without transgressing limits. They must consider the historical context of the Qur’an, as many of its allusions like hunting animals to catch birds (5:4), traveling to the Mecca for Hajj on lean mounts (22:27), employing cavalry in battle (8:60), flogging for zina (prostitution by married women) (24:2) and exemplary amputation punishments (5:33, 5:38) accorded with the paradigms of the seventh century Arabia. The Qur’an could in no way ask its audience to engage the practices of later historical eras – let alone the 21st century world. Therefore, a 21st century Sharia (system of law) of Islam must be commensurate to its realities. The Qur’an allows a flexibility or dynamism in the notion of Sharia by complementing it with the term, ‘minhaj’, or ‘an open way’ (5:48) that allows the diverse communities at different historical locations to evolve their own Sharia “in accordance with the exigencies of the time and each community’s cultural development.” [7]
7.The Western secular laws stand more Qur’an-compatible than the Classical Islamic Law (Islamic Sharia Law).
Paradoxically, except for some non-negotiable areas (gay rights and marriage, extramarital sex, unqualified freedom of speech, ultra vires legislative power of the consensual majority as well as the Head of State for example), the Western secular notions are more attuned to the Qur’anic message, that is, more Qur’an-compatible than those espoused by the Classical Islamic law. This is no window dressing or turning coat to appease the West.
More than a hundred years ago, the Egyptian scholar, Muhammad Abduh, wrote that the 19th century advancement of Europe commenced only after “Europe began to throw off their bondage and reform their condition, reordering the affairs of their life in a manner akin to the message of Islam, though oblivious of who their real guide and leader was. So were enunciated the fundamental principles of modern civilization….” [8].
Hasan al-Banna (1906-1949), the Egyptian scholar and Islamic activist who founded the Muslim Brotherhood extolled the merits the Western civilization as the epitome of the Qur’anic message [9]. Shaykh Rifa‘a Rafi‘ al-Tahtawi (1801-1873), a traditional Al-Azhar scholar and an admirer of Western scientific advancement said upon his return from France that he “found (in France) true Islam but no Muslims, while in Egypt, he found many Muslims but no true Islam—meaning that in his view, the civic virtues embraced by French society embodied a more true representation of Islam than the Muslim societies of his time.” [10]. Thus the Muslim countries who are aspiring to build people oriented democratic societies as in the West, may consider to take a Western model, but not like Turkey’s Kemal Ataturk (1881-1938) who had expunged the Islamic symbols (Arabic script, traditional dresses, hijab etc.) from the social and political fabric of the nation and replaced the Islamic Sharia Law of his country with Swiss and Italian based legal system. Today’s Muslim countries must not cut their intellectual moorings from Islam as it is inextricably ingrained in Muslim psyche.
8. Are the Western laws forbidden to Muslims as they are man-made?
The bold statement in the concluding part of the preceding Section seemingly carries a fundamental anomaly: Western secular laws are man-made and therefore cannot be privileged over the Classical Islamic laws that are derived from the Qur’an and thus represent God’s will. But this argument is fallacious.
From the Qur’anic perspective, all humans stand on equal footing as God’s deputy on earth and recipients of some of God’s Spirit (15:29, 32:9, 38:72), and therefore all noble woks of man have their origin in God’s Virtues, and human accomplishments in all fields including jurisprudence and governance of a state are nothing but the result of God’s Mercy and Grace upon humanity. Therefore, rejecting any so-called secular or modern institution, just because its architects are not Muslims will be as fallacious as rejecting all the good things of modern life that characterize the Western civilization just because their origin is non-Islamic. Thus, there could be no Qur’anic basis to forbid the so-called secular laws and institutions, except those of them that repudiate any of the explicit tenets of the Qur’an.
In first century Islam, usul al fiqh (Principle of rational logic and reasoning) was the primary vehicle of jurisprudence after the Qur’an and was privileged over the Hadith [11]. This is an umbrella concept drawn from the Qur’anic vocabulary (root FQH, verse 6:65…) and embraces such notions as i) qiyas (parallelism), ii) ijma/ jama‘ah (consensus of the scholar/ community) iii) ‘urf (established custom and practice of the community), iii) islah (community good), iv) ijtihad (critical thinking or independent intellectual probe), and v) istihsan (one’s best judgment). Practically all these notions, drawn from the Qur’anic diction, are consistent with and even identical to those employed by the Western secular jurists and doctors of law in their jurisprudence, except for terminological differences. Hence, regardless of whether the Western doctors of law believe in the Qur’an or not, the laws they developed are rooted in the Qur’anic universal notions, except those that fall beyond its expressed prohibitions and permissible limits.
Furthermore, the application of the Qur’anic principles can enhance the civil rights of the individual that can be subverted by consensus in modern democracy. As Muhammad Abduh records, Islamic law (drawn on the Qur’anic principles), gave full right to a poor non-Muslim woman to refuse to sell her small dwelling, at any price, to the local powerful amir (governor) who wanted it in order to enlarge a mosque, and to a Jew to have Caliph Ali summoned to the court and stand with him before the judge for a legal hearing, and get a fair judgment [12]. The reverse scenario – a poor Muslim woman in a non-Muslim majority country refusing to dispose off or part with her land to meet the need or the desire of the dominant community, or to bring a charge against the Head of the State is possible only in theory.
Thus, while there is a great deal of synergy between the paradigms of the Qur’an and the articles of Western secular laws, there are some grey areas, while the Qur’anic principles do not privilege community consensus or state authority over civil rights. On the whole, there is no Qur’anic or ontological basis to forbid the Qur’an-compatible Western secular laws to the Muslims. The Muslim jurists should therefore have no hesitation to adopt the Western laws, but eschew those statutes of the Western laws that conflict with the message of the Qur’an. They must also be ready to adjust the personal laws within the broader paradigms of the Qur’an, like combining the Qur’anic decree on leaving a will (2:180) with its inheritance laws (to adjust the inheritance ratios among the children as merited) - rather than privileging the latter over the former, extending maintenance for the divorced woman until her remarriage or demise (2:241), entitling a believing non-Muslim widow to full Islamic inheritance rights (as she is entitled to full dowry, 5:5) giving equal rights to a woman as an individual (9:71), empowering her as a full witness for business contracts (2:282 - the business world is not fraught with hazardous and male occupied any more) – if not venerating her (4:1), for example .
Conclusion. The object of this essay is not to undermine the entire domain of the Classical Islamic Law dating from its glorious formative period. Down the centuries, it enabled the Islamic civilization to offer enormously higher standards of justice, peace and security of life and property to the common people than the other major contemporaneous civilizations. It was also the bedrock of pluralism that enabled the minority to flourish, live in harmony with the Muslims - such as in Spain, Egypt, Syria, Iraq, India, and preserve its own heritage and language - Aramic is still spoken in Damascus, the seat of the Umayyads (661-750) – the first Islamic (dynastic) Caliphate. It was by far the best system of law for almost a thousand years of human history as testified by the highest echelon of Western scholarship [13]. However, with an endless series of paradigm shifts in human civilization from the medieval era to this day, many of the Classical Islamic Law’s rulings stand in conflict with the modern secular values, creating a civilizational divide. Besides, its application by the Islamists and extremist Muslim outfits such as in Pakistan, Afghanistan, Sudan is pushing those countries to anarchy and civil war. Most alarmingly, some of its preposterous rulings and notions that remain buried in its exhaustive discourses feed Islamophobia, Islamopathy, radicalization, Islamofascism, violent sectarianism and international terrorism, demonize Islam and its Prophet, and trivialize the entire global Muslim country in the eyes of the rest of the world. Thus, any perceptive mind would conclude that in the historical perspective, the domain of the Classical Islamic Law (Islamic Sharia Law) has run out its course. However, the Divine Sharia of Islam – the Qur’an is beyond history’s timeframe. Its compatibility with the Western secular values and pluralistic, humanistic, gender neutral, universal paradigms [1 above] crown it as the ideal alternative to the Classical Islamic Law. However, the Qur’an must be probed in a historic-critical, gender-neutral, intra-textual and universal manner while its best meaning must be sought (39:18, 39:55). [14]
To sum up, in a grand irony of history, the Western Islamophobic protagonists are waging a Quixotic crusade against the Islamic Sharia Law – a proxy war against an invisible enemy on behalf of those facing the real enemy. It is time that the Muslim elite and leadership put their act together to achieve a gigantic paradigm leap - from the Classical Sharia Law of Islam to a Modern Islamic Law (Sharia), accommodating Western secular values - within the broader framework of the Qur’an. Their complacence and inaction may lend strong credence to Khaled Abou El Fadl’s agonizing concern: "Is it possible that the day will come when ours will be designated a "vanished civilization." [15]
There is, however, no suggestion to consign the domain of the Classical Islamic law into the archives. Far from it! The rich heritage of the Classical Sharia Law of Islam must be studied as a technical subject - as being currently done in some of the major universities of the world, and its principles must be applied to broaden the scope of modern law for the greater good of humanity.
Notes:
7. Muhammad Assad, The Message of Islam, Chapter 5, Note 66.
8. Extracted from John L.Esposito’s Islam in Transition, New York 1982, p. 27.
9. Cited by John Donohue and John Esposito, Islam in Transition, New York, 1982, p. 82.
10. Harvard Online International Journal, Vol. 52, April 2011, Note 19.
11. Yusuf Guraya, Origins of Islamic Jurisprudence, Delhi 1992, p. 29/30
12. John L. Esposito, Islam in Transition, Oxford University Press, USA 1982, p. 26.
13. The following comments by Count Leon Ostrorog made during his historical lectures in the University of London on the Angora Reform in 1927, bring across the point made by this author : “The Eastern thinkers of the ninth century laid down on the basis of their theology, the principle of the Rights of Man, in those very terms, comprehending the rights of individual liberty, and of inviolability of person and property; described the superpower in Islam, or Califate, as based on a contract, implying conditions of capacity and performance, and subject to cancellation if the conditions under the contract were not fulfilled; elaborated a Law of War, of which the humane and chivalrous prescriptions would have put to blush certain belligerents in the Great War; expounded a doctrine of toleration of non-Muslim creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted.” - Extracted from Outlines of Mohammedan Law, Asaf A.A. Fyzee, 5th Edition, 2005, New Delhi, p. 53/54
14. Essential Message of Islam, Amana Publications, USA, 2009, p.xxxix/xl
15. The Search for Beauty in Islam: A Conference of the Books, Barnes and Noble, USA 2006, p.209.
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. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.
URL: https://newageislam.com/islamic-sharia-laws/the-classical-islamic-sharia-law/d/5723