Title: Toward Our Reformation: From Legalism to Value-Oriented Islamic Law and Jurisprudence
Author: Dr. Muhammad Omar Farooq
Publisher: International Institute of Islamic Thought, 2012
It is an important work in analyzing approach to developing Islamic jurisprudence. It is a topic that was also taken seriously by Allama Muhammad Iqbal. While his poetry is celebrated in public discourse, there are not many takers of his thought provoking lectures on Reconstruction of Religious Thought in Islam.
This book shares Iqbal’s concern that there is a need for reformation in our approach to look at contemporary issues and matters. It critically analyzes the tendency of legalism and literalism which results in misapplication and inappropriate response on contemporary issues in the opinion of the noted author.
The author emphasizes the point that Islam places supreme emphasis on its followers being informed, educated, probing, discerning, and enlightened.
The author reiterates the fact that foundational sources of knowledge in Islam include Qur’an and Sunnah. The author contends that a law becomes Islamic when it meets all of the following conditions: (a) the formulation of the law must be rooted in the foundational sources of Islam, (b) it is derived with explicit attention to the Maqasid and values of Islam, and (c) the adoption and enactment of the law by the society occurs through Shura (consultation).
The secondary sources of knowledge like Ijma (consensus) and Qiyas (analogical deduction) involve an element of human understanding and hence, they must not be treated like divine sources of knowledge. On the scope, conditions and validity of Ijma, there are various views. Imam Shafi’i laid down strong conditions for Ijma and discusses examples in Ijma which are rather permanent matters in Islamic faith only. Likewise, on Qiyas, there is a variety of opinion from not allowing it at all to consulting it in deriving rulings on imaginary matters and preferring it over Akhbar-e-Ahad (solitary reports).
The author maintains that in Qiyas, illah (cause) should not be delinked with Hikmah (wisdom). For instance, in Islamic banking and finance, the products and services result in similar eventual outcome as in interest based banking. The extant literature in Islamic economics and finance before the advent of Islamic banking was unanimous and categorical about the rationale for prohibition of interest, i.e. negative effects on distribution of income, lack of egalitarianism and inequality in payoffs from the outcome of activities that are carried out from interest based loan. Qur’an mentioned the word ‘Zulm’ in condemnation of Riba. It is hard to reconcile it with equal or higher cost of finance in Islamic banking products vis-à-vis conventional banking products. Mudarabah and Musharakah are considered ideal modes of financing based on their inclusive, participative, genuine risk-sharing and egalitarian nature, but they are hardly used.
The author highlights that in many matters, Ijma is claimed, but it does not quite exist if stronger conditions of Ijma are kept in perspective.
On the other hand, the author thinks that excessive use of Qiyas can also lead to anomalous rulings as in i) Kafa’ (equality in marriage), ii) one-half rule concerning treatment and rights of slaves on the basis of ruling of one-half punishment in some crimes, and iii) regarding marriage as sale and lease, for instance.
The author thinks that from dowry to maintenance and from marital obligations to the conditions of divorce and its procedures, the emphasis is focused on contractual aspects rendering marriage a totally formalistic experience. According to some jurists, a sick wife who, on account of her failing health, is unable to discharge her marital duties has no legal right to maintenance by the husband.
In our curriculum of traditional religious schools, a concise booklet ‘Usool-ul-Shashi’ is used. It has plentiful examples of rare and innovative ways of divorce, but the guidance in Qur’an and Sunnah on overlooking mistakes of wives, focusing on positive aspects in personality of wives, fulfilling rights of wives humanely, and acknowledging their distinct identity and personality, is less focused upon.
The author notes that Hadith is one of the most important sources of guidance in Islamic sciences. However, much of it is transmitted in the form of Akhbar-e-Ahad. The author cautions that placing it at par with Qur’an is not appropriate.
Deriving the rulings from solitary reports which are not consistent with Qur’an as well as other Ahadith requires a revisit in the opinion of author. The author mentions the examples of i) women being discouraged to pray in mosque, ii) marriage of minor by guardian and iii) lack of reciprocal rights to women in separating from husbands. The author cautions that sticking to solitary reports alone without understanding them in the light of Qur’an and extant Hadith literature may turn out to be problematic.
The author is discontent with rigidity in Islamic thought which has rendered the understanding of Shari’ah as something mechanical and which makes deductive rulings of the past binding forever. The author is critical of legalism combined with an enforcement mentality. The author considers it erroneous to turn every aspect of Islamic guidance into law.
The book is thought provoking and deserves serious reading. It presents detailed references for all the arguments made. One of the unique aspects of the book is highlighting that how legalism and literalism had particularly turned out to be difficult for Muslim women and how it affected their rights and role in Muslim society through development of Islamic jurisprudence by exclusively male scholars.
Though, there may not be any deliberate mistake here, but sidelining one half of Ummah in any intellectual discourse even in matters of faith and practices related to women is something that requires a revisit. The author gives an account of how human exercise of comprehending and implementing jurisprudence can err as the example of Hudud laws in Pakistan shows. Some Fiqh books while listing guardians who can execute marriage contract on behalf of a lady on their own mention all male relations including step relations as eligible guardians before placing the mother of lady at eleventh.
The author argues that such juristic views unfounded in primary sources must not be presented and defended as divine to stop any discourse and appraisal for improvement.
However, in some places, it seems that criticism on particular attitudes of Muslims is misplaced on jurists alone. It must also be noted that deriving rulings from solitary reports and considering them at par or capable of overruling, extending or narrowing Qur’anic ruling is not a universal view in all schools of Fiqh. It will have been useful had the author explicitly given the Usul-ul-Fiqh of major schools of Islamic jurisprudence in a structured way.
As can be seen from the summary below, different classifications of Ahadith are acknowledged in Fiqh and literal knowledge is also complimented by secondary sources, such as Maslaha, Istislah and Sadd-e-Zariya. Part of the problem is not with the tools or differences in some rulings, but more with the trend of Taqlid (literal following) even in rulings that are based on secondary sources of knowledge or Ijtihad.
It deduces Islamic rules of jurisprudence from Qur’an, Mutawatir Sunnah including Mutawatir (transmitted successively), Mursal (transmitted with break in chain at upper level), Mashhur Hadith (transmitted by many narrators from second generation) and also Khabr-e-Wahid (transmitted without too many narrators in initial generations) in cases other than Umum e Balwa (everyday matter or unavoidable matter), Qaul-e-Sahabi (Asaar), Ijma e Fuquha, Qiyas, Istihsan (juristic preference) and Urf (custom). In Umum-e-Balwa, Qiyas is preferred over Khabr-e-Wahid. Ijtihad bil-Rai (Ijtihad through one’s judgement or opinion) is recognised by using Istihsan. Khabr-e-Wahid cannot extend or narrow the meaning of Qur’anic verses, but Mashhur and Mutawatir Hadith can. There are stricter rules for accepting Hadith which is compulsory to be acted upon. If Khabr-e-Wahid comes from a non-jurist narrator and goes against an apparent Qiyas, then Qiyas is preferred. Reason is that probabilistic attribution to Prophet Muhammad (pbuh) cannot be revisited once taken as valid, but Qiyas can be.
It deduces Islamic rules of jurisprudence from Qur’an, Mutawatir Sunnah and Mutawatir and Mursal Hadith, Ijma-e-Sahaba, Qaul-e-Sahabi (Asaar), Ijma-e-Amal-e-Medina, Khabr-e-Wahid, Qiyas, Istislah, Urf and Sadd e Zariya (blocking path to evil). If Khabr-e-Wahid goes against Amal e Ahle Medina, then the latter is preferred. Legal rulings of Khulfa Rashideen are also taken in tradition. Ijma of first generation of Muslims only or the second, third and fourth generation of Medina is preferred. Riwayat e Bil Lafz (narration in exact words) is preferred and there are stricter rules for accepting Ahadith.
It deduces Islamic rules of jurisprudence from Qur’an, Mutawatir Sunnat and Hadith (Mutawatir, Mursal), Ijma-e-Sahaba, Khabr-e-Wahid, Ijma-e-Fuqaha and Qiyas. Istihsan, Istislah and Urf are not used. Ijtihad bil-Qiyas is preferred over Ijtihad bil-Rai. Istishab (continuity) and Sadd-e-Zariya are used. Khabr e Wahid can extend or narrow the meaning of Qur’anic verses.
It deduces Islamic rules of jurisprudence from Nusus which include Qur’an, Mutawatir Sunnat and Mutawatir Hadith as well as weaker Hadith like Mursal and Gharib (transmitted with one person in chain at any level), Ijma of Sahaba, Ifta of Sahaba, Qiyas (initially wasn’t recognised and used, but later it was used in limited cases), Istishab, Maslaha and Sadd e Zariya. In this system of jurisprudence, Hadith can extend or narrow the meaning of Qur’anic verses. It has relatively less strict rules for accepting Ahadith. Initially, Ijma of Sahaba was given most credence, but later, it was extended to next generations too.
Furthermore, the author emphasizes on Maqasid-e-Shari’ah, but that too involves human understanding and judgement. For instance, Maqasid-e-Shari’ah is invoked to defend products like Tawarruq and sale and leaseback (saving oneself from Riba at least) in Islamic finance. At the same time, these Maqasid are referred in making case for increased use of Mudarabah and Musharakah.
The author calls for reconsidering inheritance laws in current times when there are nuclear families, lower family size and much less economic interdependence as compared to before. However, these laws are given in Qur’an. Therefore, Wasiyyah (will) and Waqf (endowment) can be used to meet circumstantial needs rather than revisiting clear guidance in Nusus (fundamental sources of Islamic knowledge).
In many cases, it is possible to reconcile apparent inconsistencies in Ahadith. But, the noted author wants to make a larger point that such instances at least prove that Hadith literature needs to be carefully understood in the light of Qur’an and must not be considered divine unless we have solid basis to prove their direct attribution to Prophet (pbuh) through Marfu, Mutawatir and Sahih Asnad.
However, it would also have been useful to elaborate the perspective and rationale of traditionalist view in more detail in the book.
In commenting on extreme rulings, it must also have been better that juristic differences are also acknowledged. Such comparison will show that in a broader sense, Islamic jurisprudence is not all at fault concerning some matters.
In the presence of rigid views in some matters, there can also be found less rigid and more practicable and applicable views.
Lastly, it would have been better that the revitalization of Ijtihad must also have been acknowledged in recent past which is enabling a dynamic response to the contemporary issues. Although, one may not agree with all such recent Ijtihads, nonetheless, the visible change in urgency must also have been acknowledged.