muslim engagement

Historical and evolutional perceptions of Islamic Law in a continually changing world

Mashood A Baderin clears up Western misunderstandings surrounding Islamic law
SLAMIC law remains one of the major legal systems in the world today. It is applicable in different forms as part of State law in countries of the Middle East, Asia and Africa, and also has strong inuence among Muslim communities in Britain and in the West generally. Yet it is probably the most misunderstood legal system in many parts of the world today, especially in the West. One of the major misunderstandings about Islamic law is the erroneous view that the system is completely divine, immutable, monolithic and inexible. That view is reected in the decision of the European Court of Human Rights (ECrtHR) in the case of Refah Partisi (Welfare Party) and Others v Turkey,1 wherein the Court expressed its (mis)understanding that the system is static and invariable. This view is engendered by the general perception of the Shara and Islamic law as synonyms, which can be misleading in the context of a proper understanding of the evolutional nature of Islamic law. For example, paragraphs 71 and 81 of the Chamber judgment in the Refah Partisi case showed that the Court was using the terms Shara and Islamic law synonymously, as is often done by many commentators on Islamic law, which frequently leads to confusion. In a critique of the Courts view in that regard, one author observed that one is left wondering from where the Court came by its understanding of the Sharia2 and further noted that the Court dogmatically characterised the Sharia by holding that it is static, monolithic, and lacking history.3 The rst step to a better understanding of the nature of Islamic law is to appreciate that Shara and Islamic law are not, technically, synonymous concepts. Rather, the Shara, strictly speaking, refers to the fundamental sources of Islam, namely, the Quran and the authenticated Traditions (Sunnah) of the Prophet Muhammad (peace be upon him), both of which Muslims consider to be divine and immutable sources from which Islamic religious, moral, social, economic, political and legal norms are derived. Thus, the Shara, in the context of these two divine sources, covers more than just law it is law-plus. Conversely, Islamic law refers to the law or rulings (Ahkm; singular: Hukm) that are derived from the Shara

There is abundant evidence to establish that Islamic law has responded and adjusted to the factors of time and circumstance since its inception

by Muslim jurists and applied by judges. Muslim jurists therefore normally talk of Ahkm al-Shara (singular: Hukm al-Shara), meaning Shara Rulings or Shara Law, ie rulings derived from the Shara, when referring to Islamic law as applied law. The Ahkm al-Shara or Islamic law are reached through the process of human juristic effort called Fiqh (which literally means understanding and technically means jurisprudence), based on the process of Ijtihd (legal reasoning). That is, human juristic understanding of the divine sources using different well-dened classical and post-classical jurisprudential methods and principles formulated by Muslim jurists over time. Thus, it was through the medium of Fiqh, based on the process of Ijtihd, that the early Islamic jurists transformed the Shara into applied law in the form of Ahkm al-Shara, or Islamic law. Ahmad Qadri has observed in that regard that the Islamic jurists were emphatic in saying that though God has given us a revelation He also gave us brains to understand it; and He did not intend to be understood without careful and prolonged study.4 Based on their human understandings of the provisions of the Shara through careful and prolonged study, the classical Islamic jurists compiled books of Fiqh (jurisprudence) containing the Ahkam al-Shara or Islamic law as derived by the different Islamic schools of law (Madhhib) that were consequently established around the 10th century, namely the Mliki, Hanaf, Sh and Hanbal Sunn schools of law, as well as the different Shah schools. These jurisprudential rulings by the classical Islamic jurists, unlike the Shara itself, are neither divine nor immutable, but have been accepted by Muslims as established legal treatises of Islamic law in different parts of the world today. In that regard, Islamic law as derived rulings from the Shara can be perceived either in a historical or evolutional sense. Perceived in a historical sense, Islamic law is often restricted to the traditional rulings of the classical jurists as if

JULY-AUGUST 2009 | THE MIDDLE EAST IN LONDON

The Shara, strictly speaking, refers to the Quran (above) and the authenticated Traditions of the Prophet Muhammad

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THE MIDDLE EAST IN LONDON | JULY-AUGUST 2009

those rulings were immutable, like the Shara itself. This creates a reductionist perception of Islamic law that is hinged on the disputed theory of the closing of the gate of legal reasoning (Ijtihd) around the 13th century. This theory is to the effect that Islamic law must be restricted to the legal rulings of the classical jurists as recorded in the legal treatises of the established schools of Islamic jurisprudence dating back to the 10th century, which, in essence, represents Islamic law as a system stuck in the past. Conversely, the evolutional perception of Islamic law is the opposite of the historical perception, and it is to the effect that, while the legal rulings of the classical jurists provide a rich source of jurisprudence, they do not stop the continual development of Islamic law based on modern jurisprudence (Fiqh) through the process of legal reasoning (Ijtihd). In essence, the evolutional perception represents Islamic law as a system that evolves in necessary response to the dynamic nature of human life. While there are Muslims and non-Muslim commentators who advance a strict historical perception of Islamic law, there is abundant theoretical and practical evidence to establish that Islamic law as Ahkm al-Shara (ie rulings derived from the Shara) through Fiqh has not actually been inherently static or immutable, but has responded and adjusted to the factors of time and circumstance since its inception. This is particularly so in respect of temporal matters pertaining to inter-human relations (Mumalt), which are more affected by the dynamic nature of human life, in contrast to matters relating to religious observances and acts of worship (Ibdt), which are more relatively stable. It is in the different aspects of human relations (Mumalat) that the evolutional nature of Islamic law has been well manifested in theory and practice over the years since its emergence in the seventh century. There are many relevant established jurisprudential principles and maxims of Islamic law depicting its evolutional and exible nature both in theory and practice. A relevant Islamic legal maxim in that regard is that Islamic legal rulings may change with relevant changes in time and place within the context of the Shara. Contrary to a strict historical perception, the evolutional nature of Islamic law is currently reected in the practices of most Muslim States and communities, as well as in the views of contemporary Muslim jurists and scholars in the Muslim world and among Muslim communities in Britain and the West generally. Professor Hashim Kamali illustrates this as follows:
In modern times legal interpretation or reasoning [in Islamic law] has occurred in the following three ways: statutory legislation, judicial decision and learned opinion (fatwa), and scholarly writings. Instances of legislative interpretation, which Noel Coulson referred to as neoijtihad, can be found in the modern reforms of family law in many Muslim countries, particularly with reference to polygyny and divorce, both of which have been made contingent upon a court order, and therefore are no longer the unilateral privilege of the husband. Current reformist legislation on these subjects derives some support from the jurists doctrines of the Maliki and Hana schools, but these reforms are essentially based on novel interpretation of the

Qurans relevant portions. Numerous instances of independent reasoning are also found in the views of the ulama [religious scholars], such as the collections of published opinions of Muhammad Rashid Rida in the 1920s and those of the late shaykh of Azhar, Mahmud Shaltut, in the 1950s. In the 1967 case of Khursid Bibi vs Muhammad Amin, the supreme court of Pakistans decision to validate a form of divorce, known as khula, that can take place at the wifes initiative, even without the consent of the husband, can be cited as an example of judicial ijtihad. Another example of ongoing reinterpretation is the scholarly contribution of the Egyptian scholar Yusuf al-Qaradawi, who validated air travel by women unaccompanied by male relatives. According to the rules of qh that were formulated in premodern times, women were not permitted to travel alone. Al-Qaradawi based his conclusion on the analysis that the initial ruling was intended to ensure womens physical and moral safety, and that modern air travel fullls this requirement. He further supported this view with an analysis of the relevant hadiths on the subject and arrived at a ruling better suited to contemporary conditions.5

While there are Muslim and non-Muslim commentators who do advance a strict historical perception of Islamic law, current trends clearly demonstrate that the humane objectives of the Shara can be better realised through the evolutional perception of Islamic law in a continually changing world, especially in the West.

1. (2003) 37 European Human Rights Review, 1 2. M A Ramadan, Notes on the Sharia: Human Rights, Democracy, and the European Court of Human Rights (2007) 40 Israeli Law Review, p. 156 at 158 3. Ibid, at 164 4. A A Qadri, Islamic Jurisprudence in the Modern World (New Delhi: Taj Co, 1986) p. 199 5. H M Kamali, Law and Society: The Interplay of Revelation and Reason in the Shariah in J L Esposito (ed) The Oxford History of Islam (Oxford: OUP, 1999) p. 107 at 118

Mashood A Baderin is a Professor of Law at the School of Law, SOAS

The Egyptian High Court of Justice in Cairo (above) Photo courtesy of Bastique