-Epitome
of Justice and Equity for a thousand years of Islamic civilization -
now a threat to Islamic civilization and World peace, warranting an
urgent paradigm shift in Islamic Juristic thoughts.
By Muhammad Yunus (Joint Author), Essential Message of Islam, Amana Publications, USA, 2009
The
caption is shocking indeed! The qualifying statement may, however, turn
the shock into posthumous glory, concern, and challenge. The essay
attempts to bring across the dichotomy between the Classical Islamic Law
and its divine Sharia (the Qur’an), and the incipient role of the
former in feeding Islamophobia and Islamofascism – the twin menace that
complement each other to reduce Islam to a violent, intolerant cult and provoke a clash of civilizations, threatening Islamic civilization and world peace.
1. The Divine Sharia of Islam – the Qur’an.
The
Qur’an uses the words Shira (technically shir‘ah and Sharia (tech.
Shariah) synonymously with the generic notion of a system or principles
of law (5:48, 45:18). The Qur’an further declares that it is a book of
wisdom (hikma, 10:1, 31:2, 43:4, 44:4) that is made clear and distinct
(12:1, 15:1, 16:64, 26:2, 27:1, 36:69, 43:2, 44:2) with
all kinds of illustrations (17:89, 18:54, 30:58, 39:27) to guide
humanity and bring it ‘out of darkness into light’ – an idiomatic
expression that connotes social, moral and ethical reform; and “to lift
from humanity the burdens and shackles that were upon them from before”
(7:157).
The
Qur’anic paradigms are eternal, free from any addition or alteration
since the revelation that was preserved orally as well as in various
indigenous writing materials (suhuf, 80:11-16). It lays a great emphasis
on the ‘constants’ of life – how a human being should behave regardless
of time and era. Thus, it encompasses a broad spectrum of universal
paradigms - justice, liberty, equity, good deeds, good neighborly and
inter-faith relations, sharing of wealth with the poor, eradication of
slavery, deliverance of women from various entrenched taboos, conjugal
oppression and dehumanization; good business ethics, fair payment for
goods and services, financial support to the needy, use of intellect,
striving for excellence – to cite some major examples.
2. The Classical Islamic Law - Contemporary Sharia Law of Islam.
The
Classical Islamic law is a cumulative juristic tradition that
encompasses the legal responsa (fatawa) and opinions (rai) of all past
jurists of Islam. Accordingly, it is shaped and informed by the customs,
traditions, social and political conditions, juristic norms and the
state of knowledge of the diverse historical points of Islamic
civilization - dating from the founding Caliphate (632-661/10-40 AH)
through the medieval ages to this day. Accordingly, it is a repository
of, among countless other rulings, such notions as stoning to death for
adultery, capital punishment for apostasy and blasphemy, punishment for
homosexuality, slavery, discrimination and hatred against non-Muslims,
demographic division of the world between the Muslims and non- Muslims,
division of knowledge between Islamic and non-Islamic, temporary
marriage, on the spot divorce, parental immunity against child abuse,
gender disparity and so on, that are antithetic to the Qur’anic message.
In historical perspective, these notions may not be out of line with
those of the other civilizations, but dwelling into that will detract
from the subject. The truth is, many of the fundamental notions and
rulings of today’s overgrown Classical Sharia stand in sharp stark
contrast to the realities of the modern era, as well as to the Qur’anic
message.
3. Historical roots and contributions of the Classical Islamic Sharia.
Islam
came at a time when the world was largely in a state of jahilliya –
ignorance, injustice, oppression and exploitation. The notion of
universal justice had yet to evolve. A suspect of a petty theft was
bound hand and feet and thrown into a pond. If he sank, his guilt was
established and punishment meted out. But if by any chance he floated,
he was deemed to being possessed, and burnt on the stakes. The slaves
were branded, chained, collared and dehumanized and remained slaves for
their lives. If they married and raised children, the whole family
became slaves. Women (wives) were sold as commodity - they could be
killed by their husbands if caught in the bed with a stranger, or burnt
alive with the corpses of their dead husbands as part of social norm.
The pariah and the underdogs of the society – the blind, crippled, and
mutilated, the lepers and the incurably diseased were regarded as the
accursed creatures of God. Condemned, lampooned and ostracized, they
were forsaken by their next of kin and forced to live in isolated
colonies. The criminals, and the prisoners of war were slaughtered,
pilloried and crucified; they had no legal hearing, nor any defense. The
aristocracy watched with excitement the live show of humans being torn
apart by wild beasts, or slaying rivals in vain bid for survival… The
animal instinct of man reigned supreme.
This
is but a part of the melodrama that was played as daily norm in
different parts of the world since the ancient times. The Qur’an came to
rid the world of this beastly heritage. Accordingly, among other
revolutionary reforms, it placed profound emphasis on justice (7:29,
16:90, 4:58), declared justice
as a harrama or binding obligation (6:152), asked humanity to give
witnesses truthfully – even if it concerned themselves, their parents or
relatives, the poor, or erstwhile enemies (4:135, 5:8), and to have
trained professionals to guide the judges for justice to prevail (7:159,
7:181). Consequently, since its inception, administration of justice
became the taproot of governance in Islamic state. This is amply
illustrated by the following proclamation of Caliph Umar (634-644)
issued to his governors (rendered from Arabic/Urdu):
“Administration
of justice is an essential duty after the praise of God. Treat people
equally, whether in your immediate presence, or in your court, so that
the weak do not despair of justice, and the guilty may not be hopeful of
your concession. One who makes a claim requires proving it. One who
denies must take an oath. Compromise is permitted, provided it does not
turn the halal (permissible) into haram (forbidden), and vice versa. If
you have to give a decision tomorrow, reflect on it carefully today. If
you have doubt on any matter not contained in the Qur'an or the
Prophet’s Sunna (example), deeply ponder over it, and take account of
similar instances and others’ opinions, and reflect over it
logically...” [1]
Thus,
the administration of justice with due witnessing and engagement of
trained people (fuqaha) occupied the central stage of civil
administration in Islam. This led to a high pitch of intellectual
activity in juristic fields – any detail of which will be too technical
for this exercise; but suffice it to say, that the first three centuries
of Islam saw a proliferation and flowering of learned fuqaha (jurists).
The names prefixing the Classical law schools (Hanafite, Shafi’ite,
Malakite, Hanbalite, Ja‘farite) are those of the most learned jurists of
the era [2]. However, more than a thousand years down the history,
today it does not represent the universal and non-partisan spirit,
juristic rigor, vitality, discipline, depth, wisdom, rationality and
Qur’an-compatibility of its early centuries. In fact in the hands of
extremists, radicalized elements, Pakistanis and Talibans, is an
overgrown, unmanageable juristic domain, that, as applied, represents a
cancerous version of its early counterpart – and the cancer is only
metastasizing as time goes by.
4. How the Qur’anic message has been subverted to evolve rulings contradictory to its message?
As
Islam entered new cultures and civilizations, it encountered customs
and juristic norms that contradicted the Qur’anic paradigms. To
accommodate them into Islam, the doctors of law declared: “Any Qur’anic
verse which contradicts the opinions of ‘our masters’ will be construed
as having been abrogated, or the rule of preference will be applied
thereto. It is better that the verse is interpreted in such a way that
it conforms to their opinion.” [3]
The
doctors of law extrapolated this contra-Qur’anic ruling from a number
of Qur’anic verses. Thus, the opening statement of the verse 3:110: “You
are the best community brought forth for humanity.” Disregarding the
historical context of the verse, they argued that as the leaders and
guides of ‘the best of community’, they could never fall into error,
even if their views conflicted with the Qur’an. The opening statement of
the verse 2:143, “Thus We have made you a justly balanced community”,
was cited to infer God’s special favor to Muslim community for all
times. The statement, “You who believe, obey God and obey the Messenger
and those among you in authority…” (4:159) was interpreted to imply the
infallibility of the judgment of the one in authority on the premise
that one whose obedience is commanded must be immune to error.
Dialectical methods were then applied to establish the infallibility of
the consensus (ijma) of the scholars – a core juristic doctrine. The
theologians came up with supportive ahadith [4] and the doctors of law
canonized the Hadith corpus as being indirect revelation that could
legitimize their juristic notions and doctrines. Accordingly Hadith was
canonized as the second source of law after the Qur’an – an ingenious
juristic notion that became a fundamental doctrine of Islamic
jurisprudence. This happened in the second and third centuries of Islam,
when juristic and theological activities were at their peak.
Armed
with these juristic rulings and doctrines, the jurists were free to
issue any legal ruling or fatwa, if barely a couple of them agreed on
it, and legitimize it by supportive traditions (ahadith). The floodgate
was opened and the Qur’anic message was subverted to meet the social,
political and historical realities and the aspirations of the ruling
elite and the vested interest of the era – a mammoth floodgate that
continues to discharge an endless stream of fatwas to this very day.
5. The fallouts of the Islamic Sharia Law at this historical juncture.
There
can be no doubt that, among other things, i) the Classical Islamic Law
entertains notions that are antithetic to the Qur’anic message as well
secular notions and universal values (2 above); ii) its application in
some of the Islamic countries –
Pakistan, Afghanistan and Iran for example has led to oppression of
women, gross human rights violations, stagnation of developmental
activities and authoritarianism, frustrating the democratic aspirations
and civil rights of their people, casting a long shadow over their
futures; iii) its gender bias handicaps the advancement and empowerment
of women in most Muslim countries; iv) its discrimination against
minorities and brutal apostasy and blasphemy laws are blatantly punitive
to the minorities in Muslim majority Sharia-compliant countries; v) its
barbaric criminal justice, excesses, hegemony and pan-Islamic
aspirations are fuelling Islamophobia; vi) its precedents of wanton
terrorism, such as those left by the Kharijites [5] and Qaramites [6]
are feeding radicalization and Isalmofacism; vii) its disregard, if not
abhorrence of popular sports, recreational and cultural activities, and
exclusivist underpinnings are conducing to alienation of Muslims from
the mainstream society in the Muslim-minority countries; viii) its
division of knowledge between Islamic and non-Islamic – such as still in
vogue in many madrasas is hampering the spread of universal education
among the Muslims and narrowing their intellectual horizons; ix) its
notion of wealth purification by giving only 2.5% of liquid assets
(nowhere the Qur’an puts this, or any figure) regardless of the
lawfulness of means is promoting corruption, widening income disparity,
and increasing the poverty levels in Muslim countries; x) its singular
emphasis on rituals and cold shoulder, if not a blind eye to the social,
moral and ethical tenets and intellectually stimulating paradigms of
the Qur’an is reducing Islam to virtually a cult incapable of making its
mark on the modern civilization; xi) its religion-centric political
orientation and division of the world between Muslim and non-Muslim
blocks is obsolete today when non-Muslim powers like India, America and
EU help the Muslims in their liberation wars (such as in the erstwhile
East Pakistan, Afghanistan, Libya) and the NATO attacks Yugoslavia to
save the Albanian Muslims from extinction - let alone the rising trend
of secularism across the world; and xii) it can potentially promote
sectarianism in Islam by accentuating the classical mathhab based
division.
In
consideration of the above listed points (that can extended), it is
high time that Muslim elite, educated class and intelligentsia take full
cognizance of the dichotomy between the Classical Islamic Law (Islamic
Sharia Law) and the divine Sharia of Islam – the Qur’an that does not
entail any of the noted fallouts and incongruities. A denial or tacit
oversight of this bitter truth will only exacerbate the problems they
are facing in both Muslim majority and minority countries by the
application or desired implementation of the Islamic Sharia Law or the
machinations of its petro-dollar showering champions and propagators. (To be concluded)
6.Way Forward
The
jurists of Islam can draw modern law (Sharia) based on broader social,
moral, ethical paradigms of the Qur’an and its emphasis on equity,
justice, wealth distribution and other liberating paradigms [1 above],
but without transgressing limits. They must consider the historical
context of the Qur’an, as many of its allusions like hunting animals to
catch birds (5:4), traveling to the Mecca for Hajj on lean mounts
(22:27), employing cavalry in battle (8:60), flogging for zina
(prostitution by married women) (24:2) and exemplary amputation
punishments (5:33, 5:38) accorded with the paradigms of the seventh
century Arabia. The Qur’an could in no way ask its audience to engage
the practices of later historical eras – let alone the 21st century
world. Therefore, a 21st century Sharia (system of law) of Islam must be
commensurate to its realities. The Qur’an allows a flexibility or
dynamism in the notion of Sharia by complementing it with the term,
‘minhaj’, or ‘an open way’ (5:48) that allows the diverse communities at
different historical locations to evolve their own Sharia “in
accordance with the exigencies of the time and each community’s cultural
development.” [7]
7.The Western secular laws stand more Qur’an-compatible than the Classical Islamic Law (Islamic Sharia Law).
Paradoxically,
except for some non-negotiable areas (gay rights and marriage,
extramarital sex, unqualified freedom of speech, ultra vires legislative
power of the consensual majority as well as the Head of State for
example), the Western secular notions are more attuned to the Qur’anic
message, that is, more Qur’an-compatible than those espoused by the
Classical Islamic law. This is no window dressing or turning coat to
appease the West.
More
than a hundred years ago, the Egyptian scholar, Muhammad Abduh, wrote
that the 19th century advancement of Europe commenced only after “Europe
began to throw off their bondage and reform their condition, reordering
the affairs of their life in a manner akin to the message of Islam,
though oblivious of who their real guide and leader was. So were
enunciated the fundamental principles of modern civilization….” [8].
Hasan
al-Banna (1906-1949), the Egyptian scholar and Islamic activist who
founded the Muslim Brotherhood extolled the merits the Western
civilization as the epitome of the Qur’anic message [9]. Shaykh Rifa‘a
Rafi‘ al-Tahtawi (1801-1873), a traditional Al-Azhar scholar and an
admirer of Western scientific advancement said upon his return from
France that he “found (in France) true Islam but no Muslims, while in
Egypt, he found many Muslims but no true Islam—meaning that in his view,
the civic virtues embraced by French society embodied a more true
representation of Islam than the Muslim societies of his time.” [10].
Thus the Muslim countries who are aspiring to build people oriented
democratic societies as in the West, may consider to take a Western
model, but not like Turkey’s Kemal Ataturk (1881-1938) who had expunged
the Islamic symbols (Arabic script, traditional dresses, hijab etc.)
from the social and political fabric of the nation and replaced the
Islamic Sharia Law of his country with Swiss and Italian based legal
system. Today’s Muslim countries must not cut their intellectual
moorings from Islam as it is inextricably ingrained in Muslim psyche.
8. Are the Western laws forbidden to Muslims as they are man-made?
The
bold statement in the concluding part of the preceding Section
seemingly carries a fundamental anomaly: Western secular laws are
man-made and therefore cannot be privileged over the Classical Islamic
laws that are derived from the Qur’an and thus represent God’s will. But
this argument is fallacious.
From
the Qur’anic perspective, all humans stand on equal footing as God’s
deputy on earth and recipients of some of God’s Spirit (15:29, 32:9,
38:72), and therefore all noble woks of man have their origin in God’s
Virtues, and human accomplishments in all fields including jurisprudence
and governance of a state are nothing but the result of God’s Mercy and
Grace upon humanity. Therefore, rejecting any so-called secular or
modern institution, just because its architects are not Muslims will be
as fallacious as rejecting all the good things of modern life that
characterize the Western civilization just because their origin is
non-Islamic. Thus, there could be no Qur’anic basis to forbid the
so-called secular laws and institutions, except those of them that
repudiate any of the explicit tenets of the Qur’an.
In
first century Islam, usul al fiqh (Principle of rational logic and
reasoning) was the primary vehicle of jurisprudence after the Qur’an and
was privileged over the Hadith [11]. This is an umbrella concept drawn
from the Qur’anic vocabulary (root FQH, verse 6:65…) and embraces such
notions as i) qiyas (parallelism), ii) ijma/ jama‘ah (consensus of the
scholar/ community) iii) ‘urf (established custom and practice of the
community), iii) islah (community good), iv) ijtihad (critical thinking
or independent intellectual probe), and v) istihsan (one’s best
judgment). Practically all these notions, drawn from the Qur’anic
diction, are consistent with and even identical to those employed by the
Western secular jurists and doctors of law in their jurisprudence,
except for terminological differences. Hence, regardless of whether the
Western doctors of law believe in the Qur’an or not, the laws they
developed are rooted in the Qur’anic universal notions, except those
that fall beyond its expressed prohibitions and permissible limits.
Furthermore,
the application of the Qur’anic principles can enhance the civil rights
of the individual that can be subverted by consensus in modern
democracy. As Muhammad Abduh records, Islamic law (drawn on the Qur’anic
principles), gave full right to a poor non-Muslim woman to refuse to
sell her small dwelling, at any price, to the local powerful amir
(governor) who wanted it in order to enlarge a mosque, and to a Jew to
have Caliph Ali summoned to the court and stand with him before the
judge for a legal hearing, and get a fair judgment [12]. The reverse
scenario – a poor Muslim woman in a non-Muslim majority country refusing
to dispose off or part with her land to meet the need or the desire of
the dominant community, or to bring a charge against the Head of the
State is possible only in theory.
Thus,
while there is a great deal of synergy between the paradigms of the
Qur’an and the articles of Western secular laws, there are some grey
areas, while the Qur’anic principles do not privilege community
consensus or state authority over civil rights. On the whole, there is
no Qur’anic or ontological basis to forbid the Qur’an-compatible Western
secular laws to the Muslims. The Muslim jurists should therefore have
no hesitation to adopt the Western laws, but eschew those statutes of
the Western laws that conflict with the message of the Qur’an. They must
also be ready to adjust the personal laws within the broader paradigms
of the Qur’an, like combining the Qur’anic decree on leaving a will
(2:180) with its inheritance laws (to adjust the inheritance ratios
among the children as merited) - rather than privileging the latter over
the former, extending maintenance for the divorced woman until her
remarriage or demise (2:241), entitling a believing non-Muslim widow to
full Islamic inheritance rights (as she is entitled to full dowry, 5:5)
giving equal rights to a woman as an individual (9:71), empowering her
as a full witness for business contracts (2:282 - the business world is
not fraught with hazardous and male occupied any more) – if not
venerating her (4:1), for example .
Conclusion. The
object of this essay is not to undermine the entire domain of the
Classical Islamic Law dating from its glorious formative period. Down
the centuries, it enabled the Islamic civilization to offer enormously
higher standards of justice, peace and security of life and property to
the common people than the other major contemporaneous civilizations. It
was also the bedrock of pluralism that enabled the minority to
flourish, live in harmony with the Muslims - such as in Spain, Egypt,
Syria, Iraq, India, and preserve its own heritage and language - Aramic
is still spoken in Damascus, the seat of the Umayyads (661-750) – the
first Islamic (dynastic) Caliphate. It was by far the best system of law
for almost a thousand years of human history as testified by the
highest echelon of Western scholarship [13]. However, with an endless
series of paradigm shifts in human civilization from the medieval era to
this day, many of the Classical Islamic Law’s rulings stand in conflict
with the modern secular values, creating a civilizational divide.
Besides, its application by the Islamists and extremist Muslim outfits
such as in Pakistan, Afghanistan, Sudan is pushing those countries to
anarchy and civil war. Most alarmingly, some of its preposterous rulings
and notions that remain buried in its exhaustive discourses feed
Islamophobia, Islamopathy, radicalization, Islamofascism, violent
sectarianism and international terrorism, demonize Islam and its
Prophet, and trivialize the entire global Muslim country in the eyes of
the rest of the world. Thus, any perceptive mind would conclude that in
the historical perspective, the domain of the Classical Islamic Law
(Islamic Sharia Law) has run out its course. However, the Divine Sharia
of Islam – the Qur’an is beyond history’s timeframe. Its compatibility
with the Western secular values and pluralistic, humanistic, gender
neutral, universal paradigms [1 above] crown it as the ideal alternative
to the Classical Islamic Law. However, the Qur’an must be probed in a
historic-critical, gender-neutral, intra-textual and universal manner
while its best meaning must be sought (39:18, 39:55). [14]
To
sum up, in a grand irony of history, the Western Islamophobic
protagonists are waging a Quixotic crusade against the Islamic Sharia
Law – a proxy war against an invisible enemy on behalf of those facing
the real enemy. It is time that the Muslim elite and leadership put
their act together to achieve a gigantic paradigm leap - from the
Classical Sharia Law of Islam to a Modern Islamic Law (Sharia),
accommodating Western secular values - within the broader framework of
the Qur’an. Their complacence and inaction may lend strong credence to
Khaled Abou El Fadl’s agonizing concern: "Is it possible that the day
will come when ours will be designated a "vanished civilization." [15]
There
is, however, no suggestion to consign the domain of the Classical
Islamic law into the archives. Far from it! The rich heritage of the
Classical Sharia Law of Islam must be studied as a technical subject -
as being currently done in some of the major universities of the world,
and its principles must be applied to broaden the scope of modern law
for the greater good of humanity.
Notes:
7. Muhammad Assad, The Message of Islam, Chapter 5, Note 66.
8. Extracted from John L.Esposito’s Islam in Transition, New York 1982, p. 27.
9. Cited by John Donohue and John Esposito, Islam in Transition, New York, 1982, p. 82.
10. Harvard Online International Journal, Vol. 52, April 2011, Note 19.
11. Yusuf Guraya, Origins of Islamic Jurisprudence, Delhi 1992, p. 29/30
12. John L. Esposito, Islam in Transition, Oxford University Press, USA 1982, p. 26.
13.
The following comments by Count Leon Ostrorog made during his
historical lectures in the University of London on the Angora Reform in
1927, bring across the point made by this author : “The Eastern thinkers
of the ninth century laid down on the basis of their theology, the
principle of the Rights of Man, in those very terms, comprehending the
rights of individual liberty, and of inviolability of person and
property; described the superpower in Islam, or Califate, as based on a
contract, implying conditions of capacity and performance, and subject
to cancellation if the conditions under the contract were not fulfilled;
elaborated a Law of War, of which the humane and chivalrous
prescriptions would have put to blush certain belligerents in the Great
War; expounded a doctrine of toleration of non-Muslim creeds so liberal
that our West had to wait a thousand years before seeing equivalent
principles adopted.” - Extracted from Outlines of Mohammedan Law, Asaf A.A. Fyzee, 5th Edition, 2005, New Delhi, p. 53/54
14. Essential Message of Islam, Amana Publications, USA, 2009, p.xxxix/xl
15. The Search for Beauty in Islam: A Conference of the Books, Barnes and Noble, USA 2006, p.209.
Notes:
1. 1. Shibli Noumani, al-Faruq, 1898, Karachi reprint 1991, p. 191/192.]
2. Abu
Hanifa (80 AH/699 CE -149 AH/766 CE), Malik ibn Anas (97-179 AH),
Muhammad al-Shafi’i (150-205 AH), Ahmad ibn Hanbal (164-240 AH). The
Shia Imam, Ja‘far al-Sadeq (83 –148 AH).
3. Ahmad Hussain, Doctrine of ijma in Islam, New Delhi, 1992, p.16].
4. i)
“My community will not agree on an error. When you see a disagreement,
you should follow the overwhelming majority;” ii) Follow the community
(jama‘ah) of the Muslims and their leaders;” iii) Whatever the Muslims
consider good is good in the eyes of God, and whatever they consider
evil is evil in His eyes.”
5. Kharijites
were a brutally fanatic sect who readily killed their opponents and
“caused rivers of blood to flow in the first three centuries of Islam.”
Philip K. Hitti History of the Arabs,
1937, 10th edition; London 1993, p. 247. Some of the sect members
justified the killing of the children of polytheists, their own parents,
and all the non-Muslims of the world. - Ghunit al-talebin, Urdu translation by Shahir Shams Barelwi, Arshad Brothers, New Delhi p.178-180.
6. The
Qaramites. Founded by Hamdan Qarmat, a power hungry Iraqi peasant,
around 860 (247 AH) (third century of Islam), the sect grew as a
Bolshevik style revolutionary movement “that developed into a most
malignant growth into the body of political Islam.” Qarmat’s successors
“founded an independent state on the western shore of the Persian Gulf
(286 AH), … from where they conducted a series of terrible raids on
neighboring lands,.. laid waste most of lower al-Iraq, became the terror
of the Caliphate … and kept Syria and al-Iraq drenched in blood.”
----
Muhammad
Yunus, a Chemical Engineering graduate from Indian Institute of
Technology, and a retired corporate executive has been engaged in an
in-depth study of the Qur’an since early 90’s, focusing on its core
message. He has co-authored the referred exegetic work, which received
the approval of al-Azhar al-Sharif, Cairo in 2002, and following
restructuring and refinement was endorsed and authenticated by Dr.
Khaled Abou El Fadl of UCLA, and published by Amana Publications,
Maryland, USA, 2009.
