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Overview of Shari’a, Sunnah and the Science of Hadith  - Part 7

Evolution of Sharia’h and Differences of Opinions

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Evolution of Sharia’h and Differences of Opinions

Islamic social philosophy is based on the belief that guidance is given in Holy Quran and Sunnah for all spheres of life and the values described therein must be thoroughly imbued. This does not imply Theocracy, although religious authorities have had considerable political influence in some Muslim societies. Islamic law, called the Sharia, spells out the moral and ethical standards of the community as well as the laws for dispensing justice. Shariat is not only Islamic law but it includes both legal and moral standards, remedies and penal code.

During the first centuries of Islam (7th century to 10th century), its law and theology, the basic orthodox Islamic disciplines, were developed. The 700s and 800s saw the emergence of the first major Islamic theological school, called the Mutazilites, who stressed reason and rigorous logic. As rationalists, the Mutazilites maintained that human reason is competent to distinguish between good and evil, although it may be guided by revelation. They were opposed by the orthodox school and overwhelmed by the 900s by  the opposition  led by the orthodox philosophers who maintained that moral truths are established by God and can be known only through revelation. This view gradually became dominant in Sunnite and orthodox, Islam. 
 

Dr. Israr Ahmad says that the best way to implement the Islamic Shari'ah in modern times  is  through  the cooperative  efforts  of  the  higher judiciary and the parliament. 

In the process of evolution Sharia different interpretations were given by different scholars in different times and in different context to the verses of Holy Quran and sayings of the Holy Prophet (sws). And due to difference of opinion about not only applicability but also recognition and authenticity of different collections of Hadiths different sets of Sharia laws have emerged in different sects and countries. Considerable variations are found among the laws practiced in Saudi Arbia, Africa, Emirates, Libya, Iran and Pakistan. And Pakistan appears to be more liberal.

Although the formal legal doctrines and definitions of different schools of thought  emanated from the same sources, considerable variations emerged in practices and rulings that were influenced by the rulers or the bigots. From second century of Islam the gates for Ijtihad and Ijma remained almost closed. In such matters of as appointment of Qazis and the law enforcement officials, the rulers continued to exercise full authority and control. They even heard appeals against the decisions of Qazis. The appointment of Qazis was generally based on the personal likes and dislikes of the rulers rather than expertise in Sharia’h. However, many Caliphs patronized the scholars of Hadith and Shariaah and encouraged them to run schools and often consulted them in hearing appeals or issuing guidelines to Qazis. Generally accused persons pleaded their own case as services of lawyers and adovcates were not available or allowed. In courts appearance of witnesses was, however, allowed but not that of a pleader to defend the accused. 

As the number of courts and Qazis continued to increase,  it became a common procedure to submit a summary of any important case to a qualified jurist for his opinion. Such an expert was called a Mufti appointed by the Caliph or King and his reply was embodied in a fatwa or statement of the legal issues. In the beginning the Muftis enjoyed full independence of the State administration, but in the Ottoman Empire Muftis and Qazis were graded in the official hierarchy and the Chief Mufti of Constantinople, who was given the title of ‘Shaikh al-Islam’, was the highest authority on Sharia’h  in the Empire. 

The collections of fatwas by such eminent jurists thus became a much more important source for the study of legal usage and development than the books of the madhahib in which many issues were not found. The collections of fatwas reflect how the broad principles propounded in earlier work on Sharia’h were modified or applied to changed circumstances and varied situations but all within the broad principles laid down in Holy Quran.. 
 

Although the formal legal doctrines and definitions of different schools of thought  emanated from the same sources, considerable variations emerged in practices and rulings that were influenced by the rulers or the bigots. From second century of Islam the gates for Ijtihad and Ijma remained almost closed.
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Sharia’h and Modern Courts

Holy Quran stresses the need for rendering jusitce without discrimination. In his book Dr. A. Rahman I. Doi, Professor of Ahamadu Bello University of Nigeria entitled "Non-Muslims Under Shariah" points out that every non-Muslim enjoys security, protection, rights and equal justice under Shariah and can follow personal laws (marriage, divorce, inheritance etc.)  according to his own faith.

In his book entitled "Islamic System of Justice" the eminent Egyptian Jurist Abdul Qadir Audah shaheed observes that Shariat is the base of constitution of Muslim. As such the laws which are in consonance with would be lawful those in conflict with it void. The constitution of Islamic Republic of Pakistan also provides al that all its laws would be in  consonance with Quran and Sunnah. But it is sad that even after lapse of 55 years our legislators have not been able to repeal those laws which are repugnant to Quran and Sunnah. On the contrary through Ordinances many such Financial and other laws have been enforced which are not in consonance with the principles laid down in Quran and Sunnah.

Holy Quran is not a book of law. It is a book of guidance that Muslims are required to adhere to in accordance with the teachings of the Holy Prophet. Only broad principles are laid down for a happy, prosperous and progressive society based on the principles of morality and justice. The rights and obligations of the individuals to achieve these ends are prescribed and the need for acquisition of knowledge, truth and justice has been emphasized upon time and again. We have to frame detailed laws, rules, plans and practices within those parameters. But it is a sad fact that those parameters were obscured due to misinterpretation by the Muslim rulers who took reign after Khulfa e Rashideen (The first four rightly elected Caliphs). Bigotry of certain scholars and Mullahs and their greed for selfish ends continued to widen the gaps between understanding of Sharia among different groups and paved the way for division of Ummah in about 71 different sects within first few hundred years of Islam.

The concepts of repentance and mitigation are unique in Islam. Under Western Laws a murderer may not be able to escape capital punishment but under Islamic fiqah in case of sincere repentance and on being forgiven by the blood relatives of the victim, a murderer can escape that to a lighter punishment.

It is our religious duty to effectively check the evils of adultery, nudity, prostitution, wife-swapping etc. spreading in society. In most secular states the laws were framed much after Sharia’h had dealt with such issues. 

The Sharia’h is not in a modern codified form. In it ethical standards and religious pratices and obligations are also covered. Wide differences exist among different sects. Under such circumstances  it is preferable to inject the principles of Sharia’h and Holy Quran in our laws with the approval of Parliament. Progress in this regard is very slow. Hudood Ordinance was a step in this direction but it needs to be modified with the approval of the parliament and much more remains to be done. 
 

Wide difference of opinions exists about Blasphemy law and Hudood Ordinance based on penal code of sharia for various crimes. There is a general misconception that the extreme punishments are the only ones prescribed whereas in actual fact most of them are meant for serious cases of incorrigible individuals. For instance severance of hand is not prescribed for every type of theft. It is to be applied in incorrigible cases of serious nature.

"Realizing the harm done by a rigid approach and indiscriminate
blind adherence to the juristic doctrine of only one of the famous
jurists, the Maulana has strongly advocated and emphasized 
the need for resolving juristic diversities and conflict through
a critical choice of a view in determining in a spirit of intellectual freedom its proximity to and closer harmony
with the foundational principles."
 
This was written  by Mohammad Afzal Cheema, Judge, Supreme Court of Pakistan in the foreword to the book of Maulana Amin Ahsan Islahi That was translated in English and published in 1977 by S. A. Rauf under the title "Islamic Law – Concept and Codification"

 

The constitution of Islamic Republic of Pakistan stipulates that all its laws are to be based on Holy Quran and Sunnah. The highest court in Pakistan is the Supreme Court, while a Federal Shariat court administers Islamic laws and resolves the differences of opinion on different sharia issues. 

Interest or Usury: The Shariat Appellate Bench of the Supreme Court has set aside its earlier judgement in which it had directed the government to eliminate Riba  from economy by June 30, 2002. The bench remanded the case back to the Federal Shariat Court for a fresh decision. This decision has delayed implementation of Interest Free Banking System. The government had sought reversal of the judgement which the FSC had delivered in 1992, declaring all forms of interest-based banking un-Islamic. Pakistani bankers maintain that the Riba as mentioned in  verses of Holy Quran mean 'usury' and the modern banking interest cannot be termed as usuary and it is more like a compensation for loss of purchasing power of the currency.

In this regard see the article "Nature of Riba". As explained therein the prohibition relating to Riba applies to banking interest also but abolishing Banking interest before modifying the monetary system would be like putting a cart before the horse. An Islamic state must have a currency based on gold or other commodity to keep an effective check on the purchasing power of the fiat money.

Islamic System: Some politicians talk about enforcing the Islamic system without providing any tenable description of what their perceived system is. Holy Quran and Sunnah lay down broad principles for moral and social issues relating to various aspects including trade and finance and  details have to be laid down.

The fact is that the laws of Pakistan with certain exceptions have been molded according to Islamic ideals. But the politicians including those in religious parties as well as the people at large have not adopted Islamic ideals of conduct and have not inculcated the spirit of Islamic brotherhood. Few of us fulfill our duty and obligations to Allah and our fellow human beings as enunciated in the Holy Quran. After all these commandments and the laws of the land are meant to help us distinguish between right and wrong and what is better in life against what is worse. By itself, the law can never create anything better. Establishing respect for the law does not automatically ensure a better life for that, after all, is a job for people and not for laws and institutions.

In Pakistan there has been considerable debate about adoption of Sharia
but views differ vastly how and what exactly can be done. Dr. Israr Ahmad opines that the best way to implement the Islamic Shari'ah in modern times  is  through  the  cooperative  efforts  of  the  higher judiciary and the parliament.  He  said  that  there  is no bar on framing laws according the needs of modern times in a modern Islamic state. The only restriction is that no law can be formulated that is  repugnant  to the teachings of the Qur'an and Sunnah. In  Pakistan,  the  implementation  of  the  Shari'ah can be achieved only by way of properly  activating  the  Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court, and by withdrawing the limitations imposed on  the  former  concerning  the Constitution of Pakistan, Muslim Personal Law,  and  the  Procedural  laws.  The Federal Shariat Court should examine the  existing  laws  and declare as invalid any law that it finds to  be  repugnant  to  the  Qur'an and Sunnah; the Parliament and the Provincial Assemblies would work side-by-side to make new laws in order to  replace  the  un-Islamic  ones.  In  this  way the       Islamic Shari'ah can be codified and implemented in a gradual manner. 

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