| This is an educational site about Sharia, as such you find both criticism and appreciation of parts of the Sharia. Please read the Genesis of Sharia first

Friday, July 24, 2009

Shariah Industry

Sharia industry has been built with strong fortifications to the point that many a Muslims are caused into believing that it is divine. Justice is one of the core values of Islam and Sharia should be looked from that lens and not vice-versa. Isn't Islam a simple religion? Do we need the clergy? When did we employ them to create their own industry?

Why would we want to call them scholars or ulema when they cannot think independently and keep chasing their own tails? Instead we should call them parrots. The Medieval Ulema may have been right in their times well suited to the dictatorial monarchial environment existed then, but that was not the environment Islam came into being and that is not the environment that exist today. The interpretations ought to suit the needs of people with boundaries based on justice.

The following article "Ijtihad in the Light of Maqasid al-Shariah" by Maulvi Waris Mazhari is translated by Yogi Sikand, who has been bringing out tremendous work to the light, that which was written in Urdu.

Mike Ghouse is a speaker, thinker and a writer committed to Pluralism, Pluralism in Islam and coexistence in civil societies. His personal website www.mikeghouse.net lists all his blogs and sites.

Muslim Women’s Rights: Ijtihad in the Light of Maqasid al-Shariah

By Maulvi Waris Mazhari
(Translated by Yoginder Sikand)

Prejudices against women are a universal phenomenon, found in almost every human society. When such prejudices are sought to be given religious sanction, it becomes much more difficult to do away with them. Lamentably, certain views and prescriptions contained in the corpus of traditional Muslim jurisprudence or fiqh do indeed militate against women, and even go against the spirit and teachings of Islam, a religion that stresses women’s rights and equal status.

Things, however, are beginning to change today. Some Muslim scholars, based in certain Arab countries and in the West, are developing a contextually-relevant fiqh for women, or what is called fiqh al-nisa. One of the leading scholars in this regard is the well-known Allamah Yusuf al-Qaradawi, an Egyptian alim who is now based in Qatar. He has issued numerous fatwas related to women’s issues that depart, in significant ways, from traditional fiqh prescriptions. For instance, he argues that it is not prohibited for a man to shake a woman’s hand as a customary greeting, for a woman to take up employment outside the home and even to become the head of state of a country. He engages in contextual ijtihad or personal reasoning based on the principal sources of the Islamic tradition—the Quran and Hadith—to come up with such novel views.

Let me clarify his interesting way of reasoning with the help of an example. It is reported that, in the context of the death of the Emperor of Persia, who was succeeded by his daughter, the Prophet mentioned that a people who were ruled by a woman would not succeed. This hadith report has been taken by most ulema to imply that a woman should never become the head of state of a country.

Allamah al-Qaradawi engages in a contextual analysis of this report to come out with a fiqh prescription that is precisely the opposite of what most traditionalist ulema uphold. He argues that this report has to be understood in the backdrop of the context that the Prophet was addressing. That was a time when many countries, such as Persia, were ruled by male monarchs, some of whom claimed to be divinely-appointed. They enjoyed dictatorial powers, and could do just as they pleased. There was no concept of democracy then. That was the context in which the Prophet had made his remark. Today, Allamah al-Qaradawi argues, the political context is totally different. Most countries today are, at least in theory, no longer ruled by dictatorial monarchs, and pay at least lip-service to democracy. Today, a single person cannot decide the fate of an entire country. Rather, governance has now become a vastly complicated affair. There is a whole system or apparatus for this, a set of formal rules, a massive bureaucracy, parliaments, courts and so on. Hence, Allamah al-Qaradawi argues, in today’s context it is indeed permissible for women to become the head of state. He backs this conclusion by pointing to the reference in the Muslim tradition to Bilquis, Queen of Sheba, who was permitted to rule by the Prophet Sulaiman or Solomon. Since Muslims believe that Solomon was a divinely-appointed Prophet and that all prophets must be respected and their example followed, obviously the practice of Solomon in allowing Bilquis to rule cannot be considered to be un-Islamic.

Personally, I agree with Allamah Qaradawi’s reasoning and conclusion. If you see the countries that have had women heads of state, such as India, Bangladesh, Ireland, Pakistan and Sri Lanka, you will have to admit that these women did not rule any worse than their male counterparts before or after them. These countries did not decline just because they had female rulers.

Sadly, we have few ulema of the calibre of Allamah al-Qaradawi in South Asia who are seeking to evolve contextually-relevant understandings of women with regard to fiqh-related issues. Take, for instance, the All-India Muslim Personal Law Board, which sees itself as the apex body of the Indian ulema with regard to Muslim personal law issues, including, and especially, those related to women and family matters. The vast majority of the members of the Board are very traditionalist-minded. I personally feel that the Board must include more ulema, as well as Muslim social activists, who are better aware of the contemporary social context and demands, including the many problems faced by Muslim women, and who are able to engage in ijtihad with regard to a number of problematic issues. Sadly, there are very few such ulema in the Board, and their views are silenced by the conservatives, who are averse to ijtihad and insist on taqid or blindly following the prescriptions of the medieval ulema of the different maslaks or schools of Muslim jurisprudence.

Take the case, for instance, the issue of three talaqs in one sitting, which the Board has yet to resolve. This practice has led to literally thousands of Muslim women being arbitrarily divorced by their husbands. Most traditional jurists are of the view that three talaqs in one sitting constitute an irrevocable and final divorce. But, there are others today, as well as in the past, such as Ibn Taimiyah, Ibn al-Qaiyyim, Allamah Showkani and so on, and the ulema of the Ahl-e Hadith and Shia Jafari schools, who take this as one, revocable talaq. There are also statements of the Prophet to back their argument. The traditionalists refuse to listen to their claims, however, because they are wedded to the doctrine of taqlid. I think that one way to win them over is to consider the issue in the backdrop of the spirit or aims of the shariah, whose basic thrust is establishing justice. When the matter is understood in this way, and if the ulema can be convinced that the practice of triple talaq in one sitting is resulting in a gross violation of justice, the fundamental principle of the shariah, by causing such great suffering to divorced women and their children, it might make them change their views or cause them to allow for talfiq, or resorting to the opinions of other schools of Muslim jurisprudence, in such matters. I think there is a desperate need for our Indian ulema, including those associated with the Board, to expand their thinking about these issues, and to give particular attention to social realities, needs and problems, rather than advocating rigid taqlid.

In such matters, taqlid can amount to ignoring the aims of the shariah (maqasid al-shariah). Sadly, the issue of maqasid al-shariah is not given much attention to in the madrasas where our ulema are trained. This is a reflection of the fact that our madrasas, and traditional Islamic thought more generally, have remained stuck in a narrow framework defined by medieval fiqh. Today, however, some Muslim scholars, in Egypt and America, for instance, are trying to revive the tradition of articulating fiqh prescriptions in the light of maqasid al-shariah, and this is also reflected in some of their fatwas on women-related issues. Some of them resort to, and freely take from, other schools of Muslim jurisprudence, not being bound by the opinions of just one school that they might find too strict or inappropriate as regards issues related to women, for instance. Others advocate what is called fiqh us-sunnah, that is approaching the Quran and the genuine Hadith directly, instead of being bound by the prescriptions of the established schools of fiqh. In other words, and this is an approach I personally agree with, they take what they find useful in the established fiqh but abandon what they might feel is against the Quran and Prophetic Sunnah. In this way, they have been able to open up new spaces and opportunities for Muslim women and to uphold their rights, as given in the Quran, which may have been overshadowed, neglected or suppressed in the traditional corpus of fiqh.

This approach is in accord with the established principle in usul al-fiqh, the principles of Muslim jurisprudence, that changing conditions and times might necessitate changes in some ahkamat or juridical rules. This principle validates new solutions to new social contexts and social problems, and is related to the wider issue of ijtihad. The noted eighteenth century South Asian Muslim scholar, Shah Waliullah Dehlawi, advocated the same sort of approach. He critiqued taqlid and argued that only those prescriptions of the corpus of medieval fiqh should be accepted that were in accordance with the Quran and the genuine Hadith. He was also open to the idea of ulema of one maslak borrowing from other maslaks where the need so arose.

Ironically, although all the major Sunni traditions in South Asia, including the Deobandis, Barelvis and Ahl-e Hadith, claim to follow in the tradition of Shah Waliullah, they have not shown the same broadmindedness as he in the matter of ijtihad and fiqh. The Deobandis and Barelvis still insist on rigid taqlid of Hanafi jurisprudence, some aspects of which clearly militate against women’s rights, even those that are granted to them by the Quran. In this context, I would appeal to our ulema to learn from the example of Shah Waliullah, whom they hold in high esteem, and to adopt a less rigid and more expansive approach to the question of taqlid versus ijtihad, including on some very problematic issues concerning women.

A graduate of the Deoband madrasa, Delhi-based Maulana Waris Mazhari is the editor of the monthly Tarjuman Dar ul-Ulum, the official organ of the Deoband Madrasa’s Old Boys’ Association. He can be contacted on ws_mazhari@yahoo.com

Yoginder Sikand works with the Centre for the Study of Social Exclusion and Inclusive Social Policy at the National Law School, Bangalore