Untangling the Complex Web of Islamic Law: Revolutionizing the Sharia Maliha Masood

The Fletcher School Online Journal for issues related to Southwest Asia and Islamic Civilization Fall 2003, Article 4 Untangling the Complex Web of Islamic Law: Revolutionizing the Sharia Maliha Masood The Foundation of the sharia is wisdom and the safeguarding of people’s interests in this world and the next. In its entirety, it is justice, mercy and wisdom. Every rule which transcends justice to tyranny, mercy to its opposite, the good to the evil and wisdom to triviality does not belong to the sharia although it might have been introduced therein by implication. The sharia is God’s justice and mercy among His people. —Ibn al‐Qayyim al‐Jawziya, Medieval Muslim Jurist Seeking knowledge is mandatory for every Muslim. —Prophet Muhammad (PBUH) hotly contested decisions. Therefore, the The Concept of Law in Islam peculiarity inherent in Islamic law is its dual When scholars, politicians or lay observers nature as both divine law and jurists’ law. speak of “Islamic law,” it is presumed that they It is important to keep in mind that the sharia are referring to “the sharia.” However, as becomes law through the process of interpretation, 2 demonstrated in this analysis, there is a subtle, codification and legislation. This is the but important, distinction between these two fundamental goal of Muslim jurisprudence: to terms. The sharia is the totality of divine reach an understanding (fiqh) of God’s categorizations of human acts as laid out in the articulations (sharia). Consequently, Muslim legal Quran and the Hadith, constituting issues of both theory is referred to as usul‐al‐fiqh or the sources 1 3 legality and morality. While there is no dispute of understanding. The word sharia itself is regarding its divine origin, sharia, in and of itself, derived from the Arabic root shar, simply 4 does not exist as a ready‐made body of law to meaning straight path. In Islamic tradition, it is administer. Or in other words, while sharia is under the heading of fiqh not sharia, where the God‐given, its application and interpretation is rules and regulations applied in courts and man‐made and therein appears the principal enforced by the state actually reside. According to dilemma taxing Islamic legal history for over British legal scholar Noel Coulson, “Islamic fourteen centuries: law is proposed by God, yet jurisprudence is a speculative essay to 5 disposed by ordinary mortals. Between the comprehend the precise terms of Allah’s law.” original divine proposition and eventual human By extension, the sharia becomes a sort of Platonic disposition appears an extensive field of ideal that Muslim jurists endeavor to formulate intellectual activity, differences of opinion and and codify in the science of fiqh, however © Al Nakhlah – The Fletcher School –Tufts University 160 Packard Avenue – Medford, MA 02155-7082 USA – Tel: +1.617.627.3700 2 Al Nakhlah imperfectly and infallibly. While there is no with complete subordination to sacred 12 contesting the primary sources of fiqh law, the revelation. However, this process did not occur Quran and the Sunnah taken together comprise in a water‐tight closet, but rather in an organic the regulatory framework of a legal system which cultural, social and political context. is juristically derived by Muslim scholars 6 (mujtahids) and judges (qazis). Law, in the sense “The person who does not understand of a body of precisely articulated rules, is thus not the divergence in doctrine readily presented in Islam; it must be unearthed has not caught the true scent of by the jurists who become the necessary jurisprudence” mediators of the divine law. This constant tension —An old Arab proverb between God’s will and human agency is a natural consequence that emphasizes Islam’s “Difference of opinion within my premium on human reason and intellect. As community is a sign of the bounty of Bernard Weiss eloquently stated, in The Search for Allah” God’s Law: “God in his wisdom has chosen to —Prophet Muhammad (PBUH) engage human beings—the mujtahids—in the toilsome task of ferreting out the law from a Divergence in Jurisprudence plethora of indicators, or articulating what he Throughout the development of Islamic legal 7 himself has not precisely articulate.” theory, there has been wide‐spread divergence in the interpretations of the Muslim jurists qualified The Development of Law in Islam to expound God’s sharia. This captures the tension Islamic law has been evolutionary in its between unity and diversity in Islamic legal growth phase. The first 150 years of Islam were doctrine which goes to the very core of Muslim characterized by an almost untrammeled level of jurisprudence. As divine revelation is a fixed and individual freedom in legal reasoning based on constant element and human reason the variable divine revelations; when new circumstances and fluctuating factor, an inevitable rift occurs posed challenges, the expression of personal between the ideal and the profane state of affairs. 8 opinion, known as ra’y, was widely acceptable. This was crystallized in the four different schools or versions of sharia law (Hanafi, Maliki, Shafi Law then occupied two separate spheres of divine 13 ordinance and individual decision which did not and Hanbali). Their stabilizing force was combat each other. However this pragmatic essentially the doctrine of consensus or ijma, attitude soon became victim to the increasing which addresses the paramount question of legal 14 sophistication of theological and philosophical authority in Islam. 9 inquiry and the political rifts in Islam. Therefore, the whole process of Muslim Among the growing body of scholars rose jurisprudence, from the definition of the sources the conviction that the legal sovereignty of God of law to the derivation of substantive rules, was 10 was all embracing. To allow human reason to an exploratory effort of the human intellect. When formulate a legal rule—whether by continued an individual jurist reached a judicial conclusion, recognition of a customary law or by juristic it was considered more of a conjecture; however, speculation on a new issue—was tantamount to when the ruling was the outcome of a more or less 11 unanimous consensus, it became an heresy. In other words, human interpretation 15 could not “compete with Allah.” A compromise incontrovertible statement of the divine law. solution was to devise a method of reasoning to Hence, ijma provided an umbrella authority for operate within the parameters of divine will. This the variant doctrines of the different schools. appeared in the form of a human legislative Where Muslim jurists could not agree, they authority whose function was harnessed to the agreed to disagree. It is important to appreciate implementation and development of the sharia the significance of ijma as a candidly pluralistic © Al Nakhlah – The Fletcher School –Tufts University Fall 2003, Article 4 3 aspect of Islamic law which recognizes that no concerned with universal, moral and individual opinion can claim, against other philosophical issues. It is this which embodies the variants, a unique authority. By extrapolation, it is eternal message of Islam. Undue emphasis on the apparent that Islamic law emphasizes collective legislative aspect of Islam is to lose sight of its rather than individual action in the temporal spiritual context, which is precisely what sphere. happened in the over zealous application of the Hudood Ordinances in Pakistan. Rethinking Sharia within Islam The modern Islamic judge Muhammad Sa’id The divine nature of law in Islam has posed al‐Ashmawi further argues that Islam is basically multiple complexities: is the sharia simply the a message of compassion and morals with 19 manifestation of supernatural revelations or is legislation occupying a secondary place. Of the there room for social and contextual grounding? Quran’s 6,000 verses, fewer than 700 deal with Are the words of God immutable or adaptive? A legislation and only 200 of these are directly majority of disagreements among Western and concerned with regulation of social matters (the Islamic circles have stemmed from the failure to remaining passages are devoted entirely to 20 distinguish the nuances between the sharia and regulation of worship). If this is the case, the fiqh. A broader definition of the sharia is: “those argument can be taken further to advocate the institutions which Allah has ordained in full or in idea of adapting the social precepts of seventh essence to guide the individual in his relationship century Islam to the contemporary age. to God, his fellow Muslims, his fellow men and 16 the rest of the Universe.” The means by which Stretching the limits: Sharia in Evolution? Muslims attempt to follow the guidance of the While men and women entail some Quran and Sunnah is the most comprehensive differences in rights in Islam, they are considered assessment of fiqh, which is essentially Islamic law equal in terms of spiritual status. This in practice with its own rules of engagement and fundamental equality applies to the level of protocols for disagreement. Part of the beauty punishments and certainly to hudood or criminal of—as well as a source of frustration in—Islamic matters, which must be identically enforced law is the plethora of positions and towards both sexes, according to the Quran. The interpretations in jurisprudence. This underlying problem is when the custodians of sharia are in precept adds to the confusion: while Islamic law political power, as in the case of General Zia’s attempts to moralize legal actions and formalities regime. A conflict emerges between the by placing them in the context of religion and contradictory aims of the national agenda to morality, it tends to discourage the formalization establish an authentic “Islamic” state and the or legislation of the religious and moral staunch preservation of a traditional, patriarchal 17 precepts.

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