Most Muslims regard Sharia as a perfect and divinely ordained religious-ethical-legal system. In their view Sharia relates a Muslim individual and society to God’s will and purpose by pronouncing wide-ranging edicts in both private and public spheres of human life in the matters that are between a person and God as well as those that are between a person and fellow humans.
The former actions are categorized as `ibadat (literally, "acts of honouring God", technically, God-human relationships) and the latter are known as mu`amalat (literally, "transactions", technically, inter-human relationships). Whereas the God-human relations have remained more or less immutable in the Sharia, the area of inter-human relationships demands repeated rethinking and reinterpretation of the normative sources like the Quran and the Sunnah (Tradition) to deduce new directives under changed social conditions. However, instead of treating it dispassionately as a legal system with complex processes and intricacies, the ascendant political Islam regards Sharia as a powerful symbol for Islamic identity. These puritanical activists use it as an effective tool to appeal to and rally popular Muslim sentiment, thus enabling them to exercise arrogant displays of power not only against non-Muslims but also against Muslims and especially women. Their mode of exegesis exaggerates the role of religious text and plays down the role of human intellect and reasoning in interpreting it. As Khaled Abou El Fadl, a renowned Islamic thinker who is a professor of law at the UCLA, explains in his book “The Great Theft”, according to these puritans God is manifested through a set of clear and precise legal commandments and human beings have no choice but to obey without indulging in reason-based moral or ethical speculative thought. Following from this, the average conservative Muslims also end up subscribing to a literalist method of interpretation without realizing that the laws and traditions formulated centuries ago often need to be reinterpreted to enable the faith to respond to the ethical and moral imperatives of the modern age. This approach frequently makes it difficult to reconcile Islam with the modern day challenges that call for the application of reason and rationality. Discussions of Islamic law tend to reflect only different degrees of conservatism as the Muslims with liberal tendencies prefer to delve into moral and mystical facets of Islam to find teachings or examples that can lead to more liberal interpretations. This getting around law or sidestepping it by focusing on ethics or mysticism is also not the answer to the problem. Instead a serious analysis of traditional jurisprudence and engagement with all its sources is required to develop a new jurisprudence that is in step with the present-day world and its culture and systems.
As the prologue of Dr. Tahir Wasti’s very useful book “The Application of Islamic Criminal Law in Pakistan: Sharia in Practice” rightly suggests, Sharia currently comes across as the most intriguing of all the prevalent legal systems. It is a composite concept that involves the complexities of both religion and law. Indeed, it will take humongous efforts to modernize a body of work that has seen little improvement for the last 1200 years. It is as if the development of Islamic thought flourished in 8th and 9th centuries and has been fossilized since then. All the five imams followed by different schools of thoughts in Islam existed in that period and there has been little modification in the body of work they left behind them. Imam Jafar as-Sadiq (702-65) was the first of these imams and his Fiqh is followed by the Shias. Imam abu Hanifa (699-767) and Imam Malik (715-96) were the founders of Hannafi and Maliki schools respectively and were both students of Imam Jafar as-Sadiq. Then came Imam Muhammad ibn Idris ash-Shafai (767-820), the founder of Shafai School, who was a disciple of Imam Malik. Imam Ahmed ibn Hanbal (780-855) was the last of these imams; he was a student of Imam Shafai and founded Hanbali School. Imam Hanbal is also renowned for leading the traditionalists in their debate with the rationalists (Mutazalites). While they rendered tremendous service in developing structure and institution for Islamic Jurisprudence and Laws, neither these Imams were ordained by God or The Prophet to be followed blindly for all times nor can we say that human knowledge, prowess, and intelligence reached its pinnacle in their time and thus the work left behind by them needs no further improvement and is adequate to fulfil the needs of all times to come. These jurists’ attempts to understand and develop Sharia jurisprudence (Fiqh) was shaped and limited by their specific belief and historical contexts. Hence the human element in the development of these laws cannot be overlooked. Among the jurists who followed the times of the five founder jurists, conformity with their specific school doctrine (taqlid) became paramount. Hence loyalty was placed above judgment and allegiance above initiative and the particular rules were imparted an air of inevitability rather than being questioned, reviewed, and modified with times.
As the Muslim world emerged from the colonial era the normative categories and moral foundations, no matter how flawed, that once set the course for Islamic law had fallen to pieces thus leading to the evaporation of the traditional institutions that once upheld the juristic discourse. This led to a relative anarchy where, for example, engineers and doctors with superficial knowledge of Islamic text and theology were able to position themselves as authorities on Islamic law. In countries like Pakistan, Islamic theology became the extramural pursuit of pamphlet readers and activists, leading to crass generalist indoctrination and a deterioration of Islamic intellectual culture. Thus faith is marked through a set of immutable legal commands that are supposed to cover all aspects of life and the sole purpose of human life is to faithfully implement this Divine law. The adherents of this school of thought insist that only the Islamic law determines morality and there are no moral considerations that exist outside the purview of determinable Islamic law. This legalistic code of life is considered superior to all others and it is the sole way to differentiate between the rightly guided and the misguided. Any deliberation that is deemed speculative or indeterminate even within the fold of Islamic thought is considered to be Satanic. Such an attitude has had devastating repercussions for intellectual and ecumenical orientations within Islam. We must be able to see the distinction between our understanding of history and Islam because our understanding of the history of Islam is not Islam itself. Therefore history and people’s understanding of it, as well as their understanding of Islam or interpretation of its texts, have no normative status in themselves.
The modernization of Islamic Jurisprudence can only take place if the Ummah addresses the task in an intellectual and dispassionate manner rather than using Sharia as a weapon in power struggles. And the interpretations have to be applicable to contemporary human society. Iqbal had tried to veer people’s thoughts in that direction –he, for instance, questioned the wisdom of corporal punishments now that we have prisons or wisdom in beheading when there are now better alternatives for meting out death-, but nobody really heeded. The law has to be equipped to be able to deal with all aspects of our lives including politics, economics, finance, contracts, corporate laws, internet, business, international treaties, crimes, civil disputes, family, medicine, hygiene, sexuality, social issues etc. Sharia, as it exists today, is nowhere near being able to handle and decide on all these issues. Not only has it to be toiled upon for years but then-in the context of a republic- has to be debated in the parliament and properly legislated. For this, we need to shake off the myth that scholarly interpretations (of the Imams or later scholars) are as sacred and above revision as the Quran or (once it is so accepted) Sunnah. As per these Imams themselves, Sharia is an interpretive law that is based on but is distinct from the immutable basic code embodied by the Quran and Sunnah. This means that, in addition to the Quran and Sunnah, Sharia also derives from other sources like Reasoning, Consensus, Polity, Local culture and customs, and Public Interest. Besides, all normative disciplines need to be continually contextualized. Currently the scholars do not even agree on the use of the Quran’s verses to frame Sharia laws. Instead, they cling to widely varying views on meanings and interpretations of most relevant verses. That’s why Muslim rulers have always used clergy to extract juristic conclusions from the Quran that have suited a ruler’s interest and regime thus making it obligatory for everyone to follow the authorized interpretation. Such absolutism has turned Sharia into an effective tool for political Islam against which no arguments are allowed. Such was not the intent of five Imams, who founded their respective schools of Fiqh, who were very tolerant of each other in respect of the contradictions and differences among their works. Besides all of these Imams kept their distance from the rulers of their time and all paid a price for not bowing to the political Islam. Imam Jafar as-Sadiq was poisoned to death, Imam Abu Hanifa was imprisoned and finally poisoned, Imam Malik was severely tortured, Imam Shafai was incarcerated, and Imam Hanbal was killed.
Hasan Mahmud, in his book ‘Islam and Sharia’ has raised some questions to which I have not yet seen any convincing answers. Tarek Fateh, in his remarkable book ‘Chasing a Mirage’, rightly points out that today’s Islamists demanding the implementation of Islamic Sharia law –not only in Muslim countries but also in places like Canada and Europe- are “either oblivious to the fact that no Islamic State, not even Andalusia, has ever been able to implement it, or they are deceiving their followers into chasing this mirage”.
As people like Iqbal and Shariati, who challenged the impoverishment of thought and spirit wrought by Muslim literalist exclusivists, have argued, Islam is rooted in justice and human rights but is not wedded to one political system or form of governance. Neither the Quran nor the forty thousand ‘Ahadith’ attributed to the Prophet (PBUH) deal in structure for a Muslim State or the rules of governance and succession. Iqbal appreciated the need to be innovative and rational in engaging with tradition and was highly insightful in understanding the challenge which the modern Muslim scholar has to tackle. In ‘The Reconstruction of Religious Thought in Islam’ (London: Oxford University Press 1934) he says: “The task before the modern Muslim is therefore, immense. He has to rethink the whole system of Islam without completely breaking with the past . . . The only course open to us is to approach modern knowledge with a respectful but independent attitude and to appreciate the teachings of Islam in the light of that knowledge, even though we may be led to differ from those who have gone before us.” Hence a history of practice cannot be taken as an unquestionable evidence for the authenticity of a law or a tradition. The enduring interpretation of a text or relevance of a law requires a continuous ratifying process of the successive generations of its subjects and a continuous application of the law in a state. That has not been the case here and much of the advocacy of Sharia that goes round these days is, in reality, an attempt to transform religious jurisprudence into an ideologically derived political discourse.
As a precursor to developing a jurisprudence that engages with the present times, we need to understand that Sharia can only be developed through the interpretations of scriptures made by jurists in an attempt to comprehend and implement God’s revealed law. These jurists are but human and are not infallible and therefore their work should continue to be revised with time. This can be seen in the approach of founder jurists (Imams) who while disputing and arguing over differing legal doctrines, would always state “And God knows best.” In fact these jurists invested a great deal of creativity in exploring multiple interpretive methods, exhibited a modernistic approach in the perspective of their times, and placed a lot of value on their specific social context which often led to their espousal of a very open-minded hermeneutics. For example some classical jurists reckon that causing injury to a wife by means of beating is a ground for divorce, despite the Quran’s often debated saying that a disobedient wife can be chastised. Similarly Imam Abu Hanifa sees no harm in non-Muslims entering the holy city of Mecca and argues that the Quranic passage that deems the polytheists to be unclean prevents them from entering Mecca was relevant to the early days of Islam when the sacred mosque had to be unmistakably dedicated to Islam and –with that purpose fully achieved- is not obligatory any more. I have always believed that, while the agreement of all Muslims on a unitary Islamic law is impossible, the attempts to modernize Islamic jurisprudence will either reconcile or make irrelevant a number of differences between different schools of ‘Fiqh’ thus reducing sectarian disagreements –to a great extent- to the matters of history. After all God is too great to be personified by a code of law. The objective of Sharia is to help Muslims achieve goodness in the conduct of their lives and societies in keeping with the Islamic values of justice, humanity, probity, mercy, and compassion. Therefore, where needed, the technicalities of law should be adapted or reinterpreted to serve the objective of the law. Similarly, details and specifics -about matters such as marriage, divorce, inheritance, criminal punishment, prisoners of war, women etc- narrated by the Quran have to be understood in regard to the historical and social circumstances that existed at the time these verses were revealed and their literal interpretation cannot take precedence over the moral and ethical objectives that the Quran promotes and which should play a pivotal role in the process of developing a legal framework based on these verses. It is essential to engage objectively with the weight of inherited traditions of interpretations and practices and –uneasy as it may be- to work through them with a critical approach in order to be able to modify or move beyond the interpretations that are now clearly dated.