13. LAW-MAKING IN ISLAM
13.1
Introduction
The
sources of Islamic jurisprudence are of two kinds. The first is drawn directly
from the primary sources of the Qur'an and the Traditions. The other is
secondary and includes ijma or unanimous agreement of jurists by analogy
drawn from precedent. To this may be added the source of equity and custom
which was the basis of the Hanafi and the Maliki schools. The study of these
sources was the subject of a special science called Ilm Al-Usul.
It gave rise to what is called ijtihad, i.e. the effort or endeavour to
interpret legal sources and to discover proper solutions for religious and
legal cases. Ijtihad was thus an important factor in Islamic legal
history, in adapting rules to the need of civilisation, and was one of the
causes of the florescence of Islamic jurisprudence in the Abbasside period. But
after the fall of Baghdad in the 13th century, Islamic civilisation began to
fade, and orthodox or Sunni jurists agreed that the four well-known Sunni
schools, i.e. the Hanafi, Maliki, Shafi and Hanbali were sufficient.
They thus agreed upon the closing of the door of ijtihad. As a result,
new interpretations were prohibited, and consequently unconsidered and slavish
imitation (taqlid) became general.1
The
above four groups i.e. the Hanafi, Maliki, Shafi and Hanbali can be classed
together as Ahle-fiqh. A later development of another Sunni group
is the Ahle-hadith. The Shias similarly had developed into separate
sects i.e. Kais'ania, Zaidia, Im'amia, Ism'ailia and, lastly, Ghali (now
extinct).
13.2
The development of jurisprudence (ahle-fiqh)
The
books dealing with law-making (fiqh) were written before there was any
such literature called Ahadith (plural
of Hadith). The
cause of this was plain. Law and the treatises of law were a necessity for the
public and thus were encouraged by the State. The study of traditions was on
the other hand less essential and was more of a personal and private nature.2
Malik
ibn-Anas (d.179 A.H.) was a forerunner of the four Sunni schools of law.
Malik was a lawyer who gathered traditions not for their own sake but to use
them in law. Abu Hanifa (d.150 A.H.) who died earlier than Malik, was more
interested in developing theoretical principles which could be used as a basis
for the development of law. He relied little upon tradition and preferred to
take the Qur'anic texts and develop them in detail. It was two of his immediate
pupils, Quadi Abu Yusuf (d. A.H. 182) and Muhammad Ibn-Hasan (d. A.H. 189), who
converted his theoretical principles into codes of law. The third school is
that of Al-Shafi (d. A.H. 204). His system was based on four sources: the
Qur'an, Traditions, analogy and 'agreement'. All the schools have practically
accepted Al-Shafi's classification of the sources for legitimate thought. The
last of the four schools is that of Ahmad ibn Hanbal (d. A.H. 241). He was a theologian and made no claim as a
lawyer. His masnad is an immense collection of 30,000 hadiths.
These were not arranged for legal purposes. He suffered terribly for his
orthodox faith under the Khalifa Mamun. After his death his disciples drew
together and established the fourth school. His school reduced the influence of
agreement and analogy and tended towards literal interpretation.
13.3
Influence of the Hadiths as a source of law (ahle- hadith)
The
four schools of thought (law) as discussed in section 13.2 are generally
classed together as Ahle-Fiqh. In Muslim eyes they are all equally valid
and their decisions equally sacred. The believer may belong to any one of
these, but he must choose one. The liberty of variety in unity is again due to
agreement. However, the conflict in the application of the law between the
followers of the various schools has also caused sectarian division among the
Sunnis. The Hanafi school has the largest following. The next in order of size
of following are the Shafi and the Maliki schools while the smallest is the
Hanbali school which is followed by the Wahabite state of Saudi Arabia.
There
is another school of thought, commonly called the Traditionalists (Ahle-Hadith).
They maintain that it is not Fiqh but the 'sayings' of the Prophet which
should be enforced as they are, since they supposedly contain fundamental and
unchangeable law. This school holds that after scrutiny, Hadith occupies the
same position and authority as the Qur'an, and a denial of Hadith affects one's
faith and honesty in the same manner as the denial of the Qur'an itself will do
– i.e. beyond the pale of Islam.3 They also believe:
In our view Hadith is revealed and whatever it says was conveyed to Rasoolullah in the
same way as the Holy Qur'an. The (angel) GabrielA1 came with the
Holy Qur'an as well as the Sunnah and conveyed Sunnah to Rasoolullah
in the manner he conveyed to him the Holy Qur'an. We do not approve of
discrimination in Revelations and hold both the Holy Qur'an and the Sunnah
in concurrent authority.4
In regard to the two anthologies Bukhari and Muslim, the school
holds that: 'By consensus of opinion
Muslims acknowledge that the agreed hadiths in the two anthologies are
valid and their veracity absolute.'5
The
above view is not shared by all those who consider Hadith the basis of Islamic
Law (Shariat), as would appear from the following comment by Maudoodi:
'Ahadith has come down through a chain of narrators, one person passing
information verbally to another. By its very nature the process can at best be
viewed as conveying probability and not certainty. It is unthinkable that Allah
would leave believers in the matter of faith in a position in which they should
determine their course of action on the basis of material passed on by word of
mouth.' He goes on to say: 'The material may be useful as a help in
ascertaining the practice of Rasoolullah and the doings of his
companions, but it is not a thing which could claim complete reliance. The
claim that the text of all the Ahadith in Bukhari should be accepted without
critical appreciation is untenable'.6
13.4
The legal system of the Shi'ites7
Among
the Shi'ites the true legal authority lies with the doctors of religion
and law called Mujtahids. They seem to have in their hands the teaching
power which strictly belongs to the Hidden Imam (see below). They thus represent
the principle authority which is the governing concept of the Shia. The Shi'ites
also utterly reject the idea of the various Sunni schools of law, and
the idea of unity in diversity
The Shia
sect originated from Hazrat Ali, purely for political reasons. There were
people who believed that Hazrat Ali should have been the rightful Khalifa
after the death of the Prophet because he was the son-in-law of the Prophet.
Like the Sunnis the Shias are also divided into five
groups, of which one group, called the Ghali, is now extinct. The main sect -
the Imamia sect - has 12 Imams. The Shias regard the Imams as the
representative of Allah. The Imams are therefore infallible. Laws are then
developed depending on what the Imam says. Their main sect, as well as the
sub-sects, start from Hazrat Ali. Incidentally, Hazrat Ali is also highly
regarded by the Sunni Muslims as he was the fourth Caliph. The last Imam
of the Imamia sect (the12th Imam) disappeared without trace from a cave.
The Shias say that Allah has concealed him, and sometime later, when the
time is right, he will reappear to save the world. That is the philosophy
behind the disappearance of the Imam. As far as the other sub-sects are
concerned, they originate from the main sect, which does not agree with this
line. One sub-sect is from Hazrat Ali's other wife Hanfia who gave birth to a
son named Muhammad bin Hanfia. The people who follow him are a sub-sect called Kais'ania,
but here again his followers believe
that in spite of his death he is going to come back to make sure that
everything is put right. At present, he is supposedly being kept concealed by
Allah. There is another sub-sect which is called the Zaidia. They
believe up to the fourth Imam (Imam Jainal Abedeen) and after him they follow
Imam Zaid. Finally, there is the Ism'ailia sub-sect. They are a small
community, but very wealthy. They follow up to the 6th Imam (Imam Jafar Sadiq),
and thereafter Imam Ismail. They are very secretive, but recently a member of
that that group published a book revealing some of their activities. The Shias,
as such, do not believe in the Sunni Schools of Laws.
13.5
The Qur'an as a source of law
Parwez
makes a poignant observation:
In Islam obedience is essentially and basically due only to the
Laws of Allah as embodied in the Qur'an. 'Shall I (Rasoolullah)
seek other than Allah for judge, when He it is who hath revealed unto you
(this) scripture, fully explained[...?]' (6:114). '[...] whoso judgeth not by
that which Allah hath revealed: such are wrong-doers' (5:45).8
Obedience
to Divine Laws is not a thing belonging to the individual person in the sense
that one might, of his own, consult the Qur'an, interpret it for himself and
act according to his individual interpretation. The obedience has to be
disciplined and orderly under an organised system (called 'State' in
present-day terminology) controlled by a central authority, the first central
authority being Allah's Rasool. (4:80) 'Whoso obeyeth the messenger,
obeyeth Allah, and whoso turneth away: We have not sent thee as a warder over
them'. (5:49) '[...]so judge between them by that which Allah hath revealed,
and follow not the desires away from the truth which hath come unto thee[...]'
Baring a few exceptions, the Qur'an enunciates generally
fundamental principles without touching on subsidiary laws. About these fundamental
principles or permanent values the Qur'an says: (6:115) The basic principle
revealed by the Nourisher has been made complete in truth and justice. There is
none who can change His principles[...]9.
The question as to how subsidiary laws which have deliberately
been left undetermined in the Qur'an, will be formulated in the light of the
permanent values, is answered by the direction given in the Qur'an to the
Prophet -- to
(3:159) '[...]consult them (the believers) in the affairs of (the society)[...]10
While he lived, the Prophet determined subsidiary laws in
consultation with the Ummat. The question is as to what was to be done
after his demise. The Qur'an answers the question by saying: (3:144) 'Muhammad
is but a messenger, messengers (the like of whom) have passed away before him.
Will it be that, when he dieth or is slain ye will turn back on your
heels[..?]' It follows that the process of framing laws within the framework
of Qur'anic principles, was not to discontinue after the death of the Prophet [...]11.
Had the institution of Khilafat on the pattern set by the Prophet
continued, the process of legislation evolved by it would have continued to
develop normally, making the law of Shariat a happy blending of
permanence and change. It is a pity that the process came to a halt and with
it ended the critical attitude with which subsidiary laws used to be formulated.
It is true that for a time the various schools of Fiqh carried on the process,
but theirs was an effort on the individual plane which very soon became rigid
and fossilised.12
The all-important question confronting us now is that since the Khilafat
on the pattern of our Prophet has long ceased to exist, what lines an Islamic
State should follow for legislation. If the answer is that if a Khilafat
in the pattern of the Prophet is impossible since personalities like Hazrat Abu
Bakr and Hazrat Omar are no longer available to do the job then it would be
tantamount to admitting that the Qur'an offered a code of life for a particular
period of history only. This would be preposterous. The Qur'an has been
preserved by Allah so as to provide mankind with a code for practical living
from age to age and from place to place. On the basis of Qur'anic
principles an organisation (Islamic State) was set up once. A similar
organisation can be set up again now. But a change-over from the present to an
ideal Islamic State cannot be brought about overnight. The organisation will,
by stages, proceed towards its ultimate goal by normal process of evolution,
ridding itself of initial short-comings at every step113
It must
be borne in mind that the right to introduce changes belongs to the Islamic
State and not to individuals whatever their mental development may be.
Individuals can only initiate changes in the thought process but the effective
action depends on the co-operation of whole society.
Mashriqi
sums up the question well: '[...]the later exponents of Islam failed altogether
to emphasise is that the jurists have taken up only that portion of the law
from the Qur'an which has technical punishments or technical explanations
attached to it, and have put no emphasis on various other crimes and sins which
the Qur'an emphasises as having led nations to ultimate destruction, and
concerning which the Qur'an emphatically says that their punishment is eternal
Hell.'14
Proper
fiqh, taken from the pages of the Qur'an and put into actual practice by the
force of the belief of those who run Islamic society politically, is the main
remedy for reviving Islam.
Unless this is done under the auspices of those who read the Qur'an in its
original spirit and know as well the practical administration of law in human
society, Islamic fiqh cannot produce miraculous results. As a start, the
Islamic Administrators of Law should take up those commandments of the Qur'an
which will tend to construct the whole society on solid foundations. In this
respect the Qur'anic dictum (3:104) that 'there should be people among you who
invite (people) to do good and order you to do the outstanding good (of
remaining united) and prohibit you from doing the outstanding evil (of becoming
dispersed into various sections)[...]', must be a portion of our progressive
law15. The well-known Qur'anic verses: (3:103) 'and hold fast, all
of you together, to the cable of Allah, and do not separate[...]', and (6:160)
'Those people who split up their programme (deen) and become divided
into several sections, thou (Oh Prophet) art not to include thyself in them in
any respect [...]', are some examples of the way in which the Qur'an enjoins on
its followers to keep the commandments of Allah under all circumstances, and
unless mandates of a general nature like these, are put into practice by the
moral force of law and judicious legislation, no law of humans can organise a healthy society. It is thus the duty of
the progressive Islamic fiqh to extend its domain of moulding the morals and
actions of Muslims in such a way that the whole spirit of the law contained in
the Qur'an is maintained.16
13.6
Application of Shariat laws in modern times
The
point that must be emphasised is that the modern Shariat laws are
basically laws derived from the Hadith literature. The Qur'an has very little
part to play in it.
In fact, the laws made with reference to the Qur'an, in some cases, are used
without proper research of the Arabic text or the context in which they are
used. A good example is the punishment for theft (see section 8.1). The law
used in other cases, such as the stoning to death for adultery, has its origin
in the Hadiths and has nothing to do with the Qur'an (see section 10.3
selection no.1). The sad irony is that many
people, including the Talibans in Afghanistan, think that this law comes
from the Qur'an. In reality, the Talibans are totally ignorant of the Qur'an
and their teaching comes from the Hadiths, and this is why they practice such a
barbarous law.
In
practice, the effect of a law can be judged by its application. For instance,
Sudan has applied their interpretation of Shariat laws and failed.
Pakistan is another example where so-called Shariat laws were imposed
under army rule. Its political turmoil clearly shows that it too has failed.
Saudi Arabia, which is ruled by an autocratic kingship, maintains its grip by a
strict interpretation and application of the Shariat laws for its
ordinary people, while its vast riches are enjoyed by only a handful of people
who squander a lot of their wealth in many un-Islamic activities abroad. We
have already stated that the Shariat law of the Saudis is based on the
Hanbali School and as such the importance of the Qur'an in its legal system is
minimal. Some of the other Muslim states have found that it is almost
impossible to apply what they percieve to be Shariat Laws under the
present conditions. They have therefore adopted a number of Western codes of
law (civil code and criminal code) along with some 'Islamic' law. It is not
difficult to see that the Shariat law, because of its antiquated and
extremely rigid nature, cannot be applied in the present situation with any
degree of success. One aspect of such a Shariat is the conflict it
creates between the various schools of law when judging cases involving people
belonging to these different schools. The jurists are swift to gloss this over
by saying that one can belong to any of these schools and still be a Muslim.
The fact remains that it has created the very sectarian division of Islam which
is strictly forbidden in the Qur'an, as already indicated. The only way to
overcome these problems is to base the Shariat laws on the Fundamental
Principles of the Qur'an.
This
cannot be fully achieved without a true Islamic State. And in the formulation of such laws we
should always consider the Qur'anic Principles of fairness and justice first
and foremost, if we are to hope to produce a society which is both morally
strong and beneficial to those who live in it.
References:
1.
Modernisation of Legal System in Muslim Countries, summary of an introductory address included
in ref: no. 9, by Dr. Sobhi Mahmassani.
p. 7.
2.Development
of Muslim Theology Jurisprudence and Constitutional Theory by Duncan B.
Macdonald. p. 77, second paragraph. Published by Premier Book House, 4/5
Katchery Road, Lahore, Pakistan. p. 77.
3. The
Principles of Law-making in Islam, by G.A. Parwez. Meezan Publications:
27-B Shahalam Market, Lahore, Pakistan. p. 54.
4.
Ibid., p. 54, 55.
5.
Ibid., p. 55.
6.
Ibid,. p. 55, 56.
7. Conspiracies
against the Qur'an, by Dr. S.A. Wadud. Khalid Publishers, P.O. Box 4190,
Lahore - 54600, Pakistan
8. The
Principles of Law-making in Islam, by G.A. Parwez. Meezan Publications: 27-B
Shahalam Market, Lahore, Pakistan. p.61.
9.
Ibid,. p. 62, 63.
10.
Ibid,. p. 63.
11.
Ibid,. p. 66.
12.
Ibid,. p. 77.
13. Ibid,.77-79.
14. Quranic
System of Law, by Allama Enayatullah Mashriqi. Akhuwat Publications,
Rawalpindi, Pakistan. p. 10.
15.
Ibid,. p.12.
16.
Ibid,. p.12,13.
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