By Izeth Hussain –

Izeth Hussain

A point to be noted and emphasized is that the hadiths came to be questioned not only after the four schools of law – those of Abu Hanifa, Shafi, Malik, and ibn Hanbal – were adopted as integral parts of orthodox Islam. They were questioned by one of the four legists whose systems were given canonical status. Abu Hanifa, whose school of law is the most widely prevalent in the Islamic world, did not use the hadiths at all as one of the bases of his system, because he regarded only 17 of them as authentic – according to Morteza Mutahhari in his book Jurisprudence and its Principles. That means that Islamic law can be formulated without any recourse to the hadiths. The corollary of that would be that any law can be regarded as Islamic provided that it is consonant with the spirit of Islam as enunciated in the Koran.

I come now to the third source of the Sharia on which I wrote as follows in my seminar paper: “The third source ijma (consensus) was regarded by Iqbal as perhaps the most important legal notion in Islam. Evidently that was because he had in mind not the ijma of the ulemas (religious scholars), but of the people, in accordance with Shafi’s view and the hadith ‘My people will never agree upon an error’. The ijma of the people might usually have been conservative, but all the same, and whatever the ulemas and the rulers may decree, the ijma of today will have to change with the ijma of tomorrow. The Muslim liberal apparently saw in ijma a potential for change, in combination with Ijtihad (independent reasoning)”. On the fourth source of the Sharia, namely qiyas (analogical reasoning) I will not say anything as it is not relevant to my argument in this article.

The above part of this article gives in broad outline the liberal critique of the sources of the Sharia. I will now give indications of how that critique views the Sharia as a whole. I quote from my seminar paper: “The above observations on Islamic jurisprudence raise questions about the validity of the Sharia as Divine Law. Liberal Muslims also raise common sense questions about the Sharia. The so-called ‘closing of the gate of Ijtihad’ means that there was consensus in the Islamic world on the canonical status of the four legal schools of Sunni orthodoxy. Iqbal points out that there was no written law up to the time of the Abbassids, and before the closure of the gate of Ijtihad there were nineteen schools of law. Were the Muslims who lived before the enunciation of the Divine Law un-Islamic?”

The following is a further quotation from my paper: “The liberals would argue that the founders of the four schools never claimed infallibility, or that they had formulated an eternally valid Divine Law. Iqbal asked ‘Did the founders of our schools ever claim finality for their reasoning and interpretations? Never’. So far from claiming finality, the Hanafites seem to have fully acknowledged that laws have to change with time and place and changing circumstances. Santilana in the Legacy of Islam, 1931 edition, quotes the Hanafites as saying, ‘The legal rule is not unchangeable, it is not the same as the rules of grammar and logic. It expresses what generally happens, and changes with the circumstances which have produced it’ “.

I will now provide some details about the actual practice of the Sharia in the predominantly Muslim countries. A reader has sent me an article which points out that only about 80 of the Koranic verses amounting to 6,236 are about specific legal injunctions. The article cites Professor Jan Michiel Otto of Leiden University in Holland who divided legal systems in predominantly Muslim countries into three categories. The first has classical Sharia systems under which the sharia has official status or a high degree of influence on the legal system. The important point is that the countries in this category are in a minority in the Islamic world. The second category, mixed systems, is the most prevalent: the Sharia covers family law while the secular courts cover everything else. The third category consists of secular systems in which the Sharia plays no role at all. The Professor mentions 17 countries in this category, including Turkey. That might seem surprising because the Ottoman Empire of Turkey prided itself on the strict observance of the Sharia, far stricter than in the earlier Arab Empires. Probably Kemal Ataturk after 1922 identified the Sharia as one of the factors that kept Turkey in a backward condition and decided to jettison it. The paradox is that Turkey has remained an intensely Islamic country, its present leader Erdogan is basically a fundamentalist, and yet it has no place for the Sharia. The details in this paragraph serve to show that in the greater part of the Islamic world the Sharia is practiced only to a limited extent, and sometimes not at all.

Before proceeding further I must declare that I am not unmindful of the fact that the intellectual brilliance shown in the formulation of the Sharia, and the profound Islamic humanism informing it, has earned encomiums from eminent non-Muslim scholars of the order of Ostorog and Hamilton Gibb and in our time Weeramantry. It remains however that the Sharia is today virtually a term of opprobrium among non-Muslims. The reason is that its perversely selective practice in a few parts of the Islamic world has projected an image of the Sharia as a legal system that is characterized by barbaric brutality and the subjugation of women. Saudi Arabia, which has its own peculiar notion of a Sharia that absorbs pre-Islamic practices, affords the spectacle every Friday of decapitated heads rolling in the dust.

As an example of the subjugation of women I pointed out in my seminar paper of 1990 that Pakistani women who complained of rape and could not prove it were brought to trial for adultery because in making the rape charge they had confessed to having engaged in sexual intercourse outside marriage. I quote: “The case of Safia Bibi is most interesting for revealing curious psychological processes at work among some Muslim traditionalists. A blind girl, Safia Bibi who complained of rape and could not prove it, was brought to trial for adultery and jailed. She escaped lashing only because she was pregnant. The case acquired international notoriety, the judgment was reversed, and Safia freed”.

My main purpose in this article has been to establish that there is no such thing as the Divine Law, and the provisions of the Sharia cannot therefore be regarded as immutable. That has been shown not only at the theoretical level but by the practice of law in the predominantly Muslim countries for over a thousand years. That means that we can have wide latitude in reforming Muslim personal laws in Sri Lanka. I take as just one illustrative instance the problem of child marriage. It is outrageous that the marriageable age in Sri Lanka should be as low as 12 years whereas it is much higher in the predominantly Muslim countries in South Asia, and also in India which has a huge Muslim population.

In the first part of this article I stated that I would focus also on the underlying reason for which the reform of Muslim personal law has proved to be so difficult: the reform movement started by Jamaldin al Afghani in the nineteenth century has been checked first by conservative Muslim despots and since the 1970s by the spread of Wahabism. That is a complex subject that requires a separate article. In the meanwhile I will bring some facts to the notice of the reader. Extremist Muslims are estimated to be no more than 0.05% of the world’s Muslim population of more than a billion and a half. Wahabism that is not of an extremist dangerous type is certainly more widespread. But orthodox Islam still prevails among the great majority of the Muslims, and that orthodoxy is much influenced by liberal Islam. In fact in recent years there has been a revival of the movement for liberal Islam. It will prevail. (Concluded).