Development of Islamic law in South Asia

The News, July 25, 2005
Development of Islamic law in South Asia
Feuilleton
Prof Khwaja Masud

Shah Waliullah (1703-1762) and his school of thought have been the predominant influence in the Sunni Muslim religions and intellectual life from the mid-18th century. Maulana Maudoodi has described him in Tajdeed-o-Ahya-i-Deen as "an independent-minded thinker and commentator whose thoughts have broken free of the limitations of circumstances and time."

Among Shah Waliullah's main contribution is the fact that he broke the shackles of taqleed (compulsory adherence to any one of the four main schools of Islamic jurisprudence), which has been the single biggest factor in the intellectual stagnation of Islam.

His main point of departure was the attempt to work out the social basis underlying the Qur'aanic injunctions. The Shariah, he pointed out, only aims at the reform of society. But no Shariah takes place in a vacuum. It develops in the context and on the basis of usage and customs of the society concerned. This is also true of the Islamic Shariah. The customs of the Arabs, and, among them of the tribe of Quraish, constituted the raw material of the Shariah of Islam.

Iqbal also took the same line. After giving a summary of the prophetic method as explained by Shah Waliullah in Reconstruction of Religions Thought in Islam, he says: "The Shariah values (ahkam) resulting from this application (for example, rules referring to penalties for crimes, are in a sense specific to those people, and since their observance is not an end in itself, they cannot be strictly enforced in the case of future generations).

Preceding Iqbal, Sir Syed Ahmad Khan independently discussed the principles of the exegesis of the Quran. He was dealing with the issue when the discoveries of natural sciences were sought to be rejected on the plea of being opposed to the Quranic text. Sir Syed argued for the word of God (revealed text) to be understood in terms of the work of God (i.e. nature); its meaning, he said, will have to be reinterpreted in the light of ever growing human knowledge and the latest discoveries of science. The word of God (revealed text) must go hand in hand with the work of God i.e. natural laws. Sir Syed applied the same principle of exegesis of the Quran in matters concerning social affairs.

Moulvi Chiragh carried forward Sir Syed's ideas in a more radical way. He says in Azam-ul-Kalaam fi Irtiqa-ul-Islam: "The most essential civil and political problems of Islamic Shariah said to be based on the Quran have been deduced from a single word or sometimes from a single phrase. Uncalled for insistence on following the letter, neglect of the true intent of the Quran has become a characteristic of our exegesists and our jurists. Of the six thousand verses in the Quran there are only about two hundred which relate not only to civil, penal, fiscal and political matters, but also to prayers and religious rites. It is obvious that these verses cannot provide definite guidance or specific rules about civil law."

About the traditions of the Prophet (PBUH) Maulvi Chiragh maintained that the Prophet, his companions, and successors had condemned the practice of compiling the traditions, thus denuding them of religions authority.

Maulvi Chiragh notes that none of the four schools of Sunni jurisprudence has claimed any finality for their conclusions.

Let us see what the Quaid-e-Azam had to say on the matter. On February 6, 1912, an amendment to the special (civil) Marriages Act was moved by Bhupendra Nath Basu in the Legislative Council. It sought to provide for the registration of civil marriages between persons belonging to different religions denominations. Till then, both the parties to such marriages had to declare that they belonged to no religion. The amendment was lost. But the 1912 amendment is memorable for Jinnah's speech on the subject.

When Mohammad Ali Jinnah rose to speak, the law member, Sir Ali Imam, drew his attention to the Quranic injunction prohibiting Muslim men from marrying women outside the people of the Book (Ahl-i-Kitab), and, of course the Muslims, and a Muslim woman from marrying any but a Muslim.

Jinnah, then, reminded the law member that it was the first occasion in India that the Council had either ignored or amended Islamic Law in such a way as to make it suitable to meet the requirements of the times. He cited many examples. The Islamic Law of contract was not recognised any more. The Islamic penal law which had continued to be in force even after the establishment of the British rule in India, had been completely abrogated. The Law of Evidence as set forth in the Islamic Law was nowhere prevalent in the country. Then there was the caste Disabilities Removal Act of 1854. Under the Islamic Law, a person in the event of apostasy lost all rights of inheritance. This, too, had been abrogated.

"I submit", said Jinnah, "that these laws are the precedence which we should follow in order to be able to meet the requirements of the times. For this many a precedence can be found in Islamic Law."

On August 4, 1955, a seven-man commission was appointed to study the existing laws of marriage, divorce, and family maintenance to determine whether these laws needed modifications in order to give women their proper place in society according to the fundamentals of Islam.

Dr. Khalifa Abdul Hakim, secretary of the commission, wrote in the introduction to the majority report: "Islam is not the name of any static mode of pattern of life; it is spirit and not body; it is an inspiration and not any temporal or rigid fulfilment. The essence of life is constituted of permanence and change. The ideal only is permanent; the changes or the regulations that with particular situations of a particular epoch can never assume the status of the ideal."

The trouble with the dogmatists and traditionalists as Khalifa Abdul Hakim sees it, had been that they confused the permanent ideal with the temporary regulations.As a result, Islam lies buried beneath the heap of retrograde legalism, its spirit smothered by centuries of obscurantism, clericalism and dogmatism.

Too often, too many people have been duped in the name of Islam. But obscurantism stands doomed, though the struggle is tough and hard.

The writer is a former principal, Gordon College, Rawalpindi.
Email: khmasud22@yahoo.com