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Is Sharia immutable?

IT is believed by millions of Muslims across the world that Sharia laws are immutable and represent divine will. This is based on serious misunderstanding. Sharia is not and cannot be immutable.

Recently I was invited to the Jaipur Literary Festival to be part of a panel discussion on the book Heaven on Earth by Sadakat Kadri of London, which is on the application of Sharia laws across the Muslim world. He has travelled to different Muslim countries and talked to various ulema and muftis about Sharia as applied to their respective countries.

All of them were defenders of conservative Sharia formulations and refused to admit any change. They maintained that Sharia being divine cannot be changed. It is from this rigidity of our ulema that the misunderstanding among common Muslims arises that Sharia is divine and hence immutable.

In fact our ulema forget that ijtihad was not only permitted but encouraged by the Prophet of Islam (PBUH) and the hadith pertaining to Ma’adh bin Jabal is well-known. When the Prophet appointed him to the governorship of Yemen and he came to take leave of the Prophet, Ma’adh was asked how he would govern. Ma’adh said, according to the Quran. The Prophet thereupon asked what he would do if he did not find the solution to the problem in the Quran, to which Ma’adh said he would govern according to the Sunnah. But when the Prophet asked if he could not find it in the Sunnah also, Ma’adh said “ana ajtahidu” (I will exert myself to find the solution). The Prophet thereupon patted his back and told him he was right.

All ulema accept this hadith and yet, while theoretically admitting the permissibility of ijtihad, refuse to engage in it or allow it saying there is no one capable of doing it. In fact, what is unalterable are the principles and values underlying Sharia ie usul al-fiqh. But laws based on these usul must undergo change in keeping with changes in the social and cultural context. In fact cultural context plays a very important role in the formulation of Sharia. The Arab adaat (customs and traditions) form an important part of Sharia formulations.

The late Abdurrahman Wahid, who headed Indonesia’s religious organisation Nahdlatul Ulama and also served as president of that country, told me once that there was great debate among the ulema of Indonesia over whether Indonesian customs and traditions can become part of Sharia as applicable in that country; those who advocated Indonesian adaat ultimately won.

Let us remember that what was called the Muslim ummah (community) during the Prophet’s time was limited to Arabia only. But when Islam spread to different areas the ummah was no more confined to the Arabs alone; it also encompassed the Iranians, Uzbeks, Turks, Chinese, Indians and others. Thus there were various linguistic and cultural groups within the fold of Islam.

Sharia was influenced by these factors. Thus the ummah was no longer a homogenous group but comprised of various cultural communities with their own age-old customs and traditions.

However, the values, maqasid (intentions) and masalih (welfare) of human beings did not change. Maqasid al-sharia and masalih al-sharia do not change, but in order to keep these values, maqasid and masalih intact, the rules framed by the ulema must change. When Imam Shafi’i moved from Hejaz to Egypt, which was a confluence of Arab and Coptic cultures, he realised this and changed his position on several issues.

However, what I am saying does not apply to ibadaat ie matters pertaining to worship, the world hereafter etc but only to matters pertaining to mu’amalat ie interpersonal relations like marriage, divorce, inheritance and many other similar socio-economic matters.

The most important, of course, among these is matters pertaining to marriage, divorce etc. In Jaipur I spoke mainly on women’s position in Sharia and women’s position in the Quran.

The fact that the venue was packed with people shows the interest women’s position in general and that of Muslim women in particular generates. I commented that the book referred to earlier deals with only the status quo and application of Sharia laws of patriarchal and feudalised Islamic societies. It very much misses what I call the transcendental Quranic vision. The Quran gives absolutely equal rights to man and woman without any discrimination.

However, the Quran was revealed in a highly patriarchal society which later also became feudalised when the caliphate turned into a feudal empire. Thus patriarchy and feudalism completely distorted the fundamental Quranic vision of gender equality and women’s individuality and dignity.

Unless we understand these sociological and cultural aspects and relate them to the theological one, we will miss the very revolutionary role which Islam wanted to play in totally transforming women’s status.

However, it is highly regrettable that Muslim societies could not produce ulema with the capacity to relate sociology with theology. Even in modern and post-modern societies our ulema totally lack a transcendental vision of Islam. They have become prisoners of the past and have frozen Islam in a feudal, patriarchal state.

We need theologians with vision to fulfil the Quran’s mission of going beyond the present which is full of injustice. Our society is replete with gender injustices and the Quran’s central value is justice — justice in all areas of life. Gender justice is as emphatically emphasised as justice in social and economic matters.

In order to emphasise gender justice it is high time that we produce female theologians with profound knowledge of the Arabic language. Even the most conservative ulema cannot oppose the concept of female theologians.

By Asghar Ali Engineer : The writer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai:
Islam being a complete code of life (Din) covers all aspects including social, economic, political, military and other aspects of human life, hence the Islamic law, spells out the moral goals of the community, where state and religion are not separate entity. Total and unqualified submission to the will of Allah  is the fundamental tenet of Islam: Islamic law is therefore the expression of Allah's command for Muslim society and, in application, constitutes a system of duties that are incumbent upon a Muslim by virtue of his religious belief. Known as the Shari’a (literally means path leading to the watering place). The Jews flouted the law: “The likeness of those who are entrusted with the Law of Moses, yet apply it not, is as the likeness of the ass carrying books. Wretched is the likeness of folk who deny the revelations of Allah. And Allah does not guide the wrongdoers.”(Qur’an;62:5). Allah say: “And unto thee have We revealed the Scripture with the truth, confirming whatever Scripture was before it, and a watcher over it. So judge between them by that which Allah hath revealed, and follow not their desires away from the truth which hath come unto thee. For each We have appointed a divine law and a traced out way.”(Qur’an;5:48). The Jews and Christians have been commanded to follow Prophet Muhammad (peace be upon him) and Qur’an: “O people of the Book (Jews and Christians)! Now Our Messenger (Muhammad) has come to you to reveal much of what you have concealed from the Holy Books and to pass over much which is no longer necessary. There has come to you from God a new Light and a clear Book (Qur’an), with which God will guide to the ways of peace all those who seek His good pleasure and bring them out of the depth of darkness into the light of His grace and guide them to the Right Way.”(Qur’an;5:15-16). In Islamic society, therefore, the term law has a wider significance than it does in the modern secular West, because Islamic law includes both legal and moral imperatives. The Islamic law constitutes a divinely ordained path of conduct, that guides the Muslim toward a practical expression of his religious conviction (rituals) and all aspects of life (social, economic, political etc) in this world and the goal of divine favour in the world to come. For the same reason, not all-Islamic laws can be stated as formal legal rules or enforced by the courts. Much of it depends on conscience alone. The Shari’a duties are broadly divided into those that an individual owes to Allah (the ritual practices or 'ibadat) and those that he owes to his fellow men (mu'amalat). It is the latter category of duties alone, constituting law in the Western sense, that is penal law. The other laws include; offenses against the person, homicide, law of transactions, family law, succession law, procedure and evidence etc. The Qur’anic revelations laid down basic standards of conduct for the first Muslim community established under the leadership of the Prophet (peace be upon him) at Medina in 622 C.E.  The Qur’an is the book of guidance for the believers; it also lay down the parameters of legal code. The Qur’an contains about ninety verses directly and specifically addressing questions of law. Islamic legal discourse refers to these verses as Allah's law and incorporates them into legal codes. The remainder of Islamic law is the result of jurisprudence (fiqh), human efforts to codify Islamic norms in practical terms and legislate for cases not specifically dealt with in the Qur’an and Sunnah, through Ijma, (agreement among scholars) and Qiya, (analogical reasoning).
Beginning in the mid eighth cen­tury, the four major Sunni schools of legal thought (madhhabs) Hanafi, Maliki, Shafii, Hanbali and the Shi’a Jafari madhhab (Twelvers) emerged. They were named after the great scholars Imam Abu Hanifah (699-767 C.E),  Imam Malik ibn Anas (715-795 C.E), Imam Al-Shaf’ie (767-820 C.E), Imam Ahmad ibn Hanbal (780-855 C.E) and Imam Jafar al-Sadiq (699-748 C.E) respectively. These schools differ in their methodologies, which help them to arrive at verdicts to questions that are put to them. All Sunni schools use systematic reasoning to deal with areas of law not directly covered by the Qur’an or Sunnah. They differ primarily in their emphasis on textual authority or analogical reasoning, but each school recognizes the conclusions of the others as being perfectly legitimate and within the framework of orthodox Islam. Imamah is one of the core beliefs of Shiite Islam, which separates Shiites from other Muslims. Imamah is the belief that, in every time and place, there must be an infallible, divinely appointed guide who preserves the religion exactly as it was revealed by the Prophet Muhammad (peace be upon him). The person who bears the duty of guarding and preserving the Divine message after it is revealed and is chosen by God for this function is called the Imam; in the same way that the person who bears the prophetic spirit and has the function of receiving Divine injunctions and laws from God is called the Prophet. It is possible for the Imamate and Prophecy (Nubuwwat) either to be joined in one person or to be separate. Shi’a Muslims, believe that Prophet Muhammad's (peace be upon him) religious leadership, spiritual authority, and divine guidance were passed on to his descen­dants, beginning with his son-in-law and cousin, Ali ibn Abi Talib, his daughter, Fatimah, and their sons, Hasan and Husain.  Sunnis and Shi’a differed in their understanding of ‘who held the power to inter­pret Shari’a’. Shi’as initially believed that only an infal­lible Imam could interpret Shari’a. When the line of appropriate descen­dants ended, this tradition was reinterpreted to grant judicial authority to the fuqaha as the Imam's representatives.  The Sunnis, consider that the competent scholars of religious sciences can conduct Ijtihad, which means ‘independent reasoning’ as opposed to taqlid (imitation). In the absence of direct guidance from Qur’an or Sunnah for a given situation, the exercise of rational judgment by a competent authority is termed as Ijtihad. It is a unique and important component of Shari’a. Ijtihad  started during the life of the Prophet  (peace be upon him) in the far flung areas. The rules of Ijtihad were framed by Abu Bakr, the first Caliph. Ijtihad, being human generated legislation is considered fallible; since more than one interpretation of a legal issue is possible: it is open to revision. The term Shari’a is sometimes applied to all Islamic legislation. Modern scholars have however challenged this claim, distinguishing between Shari’a and fiqh and call­ing for reform of fiqh codes in light of modern conditions. [Extract from eBook:  Legacy Abraham: ]

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