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By Prof. Mohammed Rafi FRIDAY FEATURE LAW is generally defined as a body of rules, regulations and principles that govern the affairs of a country. It is enforced by a political authority in conformity with an established legal system.
As Islam makes no distinction between religious and social values, its laws cover not only the ritual, but every aspect of life. Four main sources of Islamic law include the Quran, as the supreme source, Sunnah or the life of the Prophet (SAW) as an example, the consensus of the Muslims (Ijma) and reasoning by analogy (Qiyas). Another important source which seems to have been forgotten is `ljtihad’ or the process of making a legal decision by independent interpretation of the legal sources in the context of prevailing circumstances.
One of the fundamental features of modern resurgence of Islam is the call to restore Sharia or Islamic law. This has generated Islamic movements in many Muslim countries. It is tragic that an independent study of the history of Islamic law remains unexplored in the Muslim as well as nonworld. Most of the Western thinkers like Dawkins, Hitchins, Davies and Pipes have not been able to go beyond Mohammedanism as Islam.
In the olden days, Islam was preceded by the existence of three empires: the Byzantine in the NorthWest, the Sassanid in the North-East and Yemenite in the South (an ally of the Eastern Roman empire). Between the Byzantine and the Sassanid empires, existed a vast area inhabited by the Arab Bedouin, who, according to Wael Hallaq (The origins and evolution of Islamic law) were called ‘camel nomads’. These people had embraced Islam. The Arab society had two sets of laws; those dealing with agricultural and commercial needs and those governing nomadic tribal conditions.
The Yemenite kingdom had a trade code and a set of laws dealing with foreign traders. The early system of appointing Qazis reflects an important step in the Islamic legal system. They were appointed by Muslim rulers and were confined to the garrison towns. They also collected taxes.
The Sunnah of the Prphet is the second most important source of Islamic law. In pre -Islamic Arabia, a person renowned for his ethical and moral behaviour was taken as a role model within his clan and his Sunnah as guide. Caliph Omar declining the invitation of the Patriarch to pray inside the Church in Jerusalem constituted a Sunnah which was later emulated by the Muslims.
It was customary to refer to the Nabi’s life and events as his Sirah’ and constituted a normative exemplary model. The difference between the practice based on Sunnah and Hadith (tradition) is that the majority of the former was prophetic authority mediated by the practices of the companions, whereas the latter conveyed Prophetic authority through the documented chain of transmitters. Later, the status of the two became equal. Different sects of Muslims have their own set of Sunnah and Hadith and is usually a basis of the sect’s alienation from other sects.
The expansion of the Islamic world brought masses into direct contact with the Christians (mostly Arabs) and Jews and led to the developments within the judicial system. Due importance was given to the Law of Evidence and witnesses were appointed by the Qazis and not the litigants. Judicial decisions had to be determined on the basis of Quranic principles.
The genealogy of the Islamic legal system (Usoolgoes back to the conflict between the Rationalists (Ahland the Traditionalists (Ahli-Hadith). By the end of the third century, we see a compromise between these two schools of thought.
Another important source is ‘Istihsaan’ or reasoning that departs from the revealed text but leads to conclusions different from ‘Qiyas’. Blind following has been responsible for retarding the growth of Islam as a dynamic system of life. The system also gave birth to the jurisconsult or Muftis whose legal opinion was always respected, but later this school degenerated due to exploitation, greed and ambition of some people.
It is sad to note that the dynamic Islamic legal system has taken the back seat after restrictions on the contemporary practice of ljtihad were imposed by religious establishments and by repressive governments in Muslim countries. Freedom of inquiry and expression is essential to the practice of ljtihad and to the successful reconciliation of Islam and modernity. Revolutionary reforms in the Muslim educational system are also necessary.
According to Shah Waliullah, the prophetic teachings were meant to train one particular people and to use them as nucleus for building a universal Sharia. Those Sharia values cannot be enforced strictly in the future generations and can only provide the data and background for development of the Islamic legal system in line with the teachings and injunctions of Quran.
It was mainly because of this reason that Imam Abu Hanifa, who had a deep insight into the universal character of Islam, made particularly no use of these traditions. The fact that he introduced the principle of ‘Istihsan’ (juristic preference that necessitates a careful study of actual conditions in legal thinking) throws further light on the motives which determined the attitude towards this source of Islamic law.
In Islam obedience to the Divine Laws has to be disciplined and ordered under an organised system called the state in present day terminology. It is controlled by a central authority. The first central authority being Muhammad (SAW). Obedience to the central authority is obedience to Allah. Quran says, ‘One who obeys the Rasool (messenger) obeys Allah’ (4:80). The Rasool adjudges everything according to Quran (5:48).
Barring a few exceptions, Quran gives fundamental principles without touching subsidiary laws. There is Hadith which says that Allah has placed certain obligations, fulfil them; there are some restrictions, do not violate them, some have been left unspoken of without being overlooked; do not probe them unnecessarily.
Quran calls upon the Muslims to consult among themselves in the affairs of society (3:158). While he lived, Muhammad (SAW) determined subsidiary laws in consultation with his companions. After his death, the process had to go on. Quran says, ‘Muhammad is but a Rasool (messenger) there have been several Rasools before him. Will you turn back on your heels if he dies or is slain’ (3:143).
The enforcement of the basic laws is preceded by the formulation of introductory subsidiary laws bearing directly on the prevailing conditions. These basic laws are unchangeable but introductory laws change with the change in circumstances. New subsidiary laws have to be deduced to satisfy fresh social, political and economic developments.
According to Allama lqbal, ‘the question which confronts the Muslims today and in the near future, is whether the Law of Islam is capable of evolution, a question which will require great intellectual effort and is sure to be answered in the affirmative.
While Islamic laws are meant to ensure the dignity of human being, people are afraid of these laws as they feel that their freedom will be restricted in a theocratic system which is against the basic Islamic legal system. Perhaps that is why we do not see this system in operation in any of the fifty-seven Muslim countries.
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