Lecture 8 -GISL 174

Adapting Islam to Modern Society: The Reform of Shari'a-Law

Islamic Law In the Pre-Modern Era

  • Development of Law: Bodies of law developed by Muslim jurists based on Qur'an and Sunnah.

  • Ijtihad and Usul al-Fiqh: Jurists deduce laws using ijtihad, regulated by usul al-Fiqh.

  • Fiqh vs Shari'ah:

    • Shari'ah: Transcendental law.

    • Fiqh: Human interpretation of that law; terms often used interchangeably.

Pre-Modern Scope of Islamic Law

  • Co-existence of Laws: Islamic law existed alongside statute laws (al-qanun) and customary law (al-‘urf).

  • Scope of Islamic Law: Governed private affairs (commercial transactions, family matters) but had theoretical public law provisions.

  • Regulatory Bypass: State and public finance regulations often bypassed Islamic law.

Introduction of European Legal Systems

  • Theoretical Replacements: Western law replaces Islamic law and limits fiqh's jurisdiction.

  • Practical Changes: Islamic law remains for community private affairs (e.g., family law), while secular principles dominate rules of evidence.

  • Marginalization: Legal education shifted to secular institutions; Islamic law lost control over legal systems.

Attempts to Islamise Positive Law

  • Islamic Revival: Encouragement for full implementation of Islamic law.

  • Muslim Brotherhood: Advocates for Shari'ah as the law; contrasts it with man-made laws (e.g., corruption vs. divine perfection).

  • Key Developments in Egypt:

    • 1971: Shari'ah recognized as a source of legislation.

    • 1995: Nasr Hamid Abu Zaid case emphasizes Islamic law over civil legislation.

    • 1990s: Reform of divorce law based on khul' from Islamic law.

Islamist Impressions on Shari'a-law

  • Characteristics of Shari'ah:

    • God-given, eternal, unchanging, universally applicable.

    • Must be strictly followed; provides comprehensive solutions for modern societal issues.

Counter Rhetoric I: Sayyid Ahmed Khan (1817-1898)

  • Education Initiatives: Founded Anglo-Indian College, advocated for Ijtihad to adapt Islamic law to modern realities.

  • Key Issues Addressed:

    • Outdated practices: Slavery, jihad (spiritual only), polygamy (unjustified).

    • Reforms in punitive measures (e.g., theft) and permissibility of interest (non-usury).

Counter Rhetoric II: Fazlur Rahman (1919-1988)

  • Modern Interpretation Calls: Emphasized contextual interpretation of the Qur'an and evolving needs of society.

  • Focus Areas:

    • Ratio Legis behind laws, female testimony, and male superiority concepts.

Counter Rhetoric III: Mahmoud Mohamed Taha (1909/11-1985)

  • Foundational Work: Engaged in theological developments (e.g., Islamic prayer theory, second message of Islam).

  • Legal Challenges: Faced trial for apostasy; executed in 1985 for advocating reformist ideas.

Counter Rhetoric IV: Mohamed Shahrour (b. 1938)

  • Education Background: Studies in engineering and Islamic jurisprudence.

  • Publications: Explored modern Islamic studies and called for new foundations of Islamic jurisprudence.

Conclusion

  • Pre-modern Flexibility: Islamic law demonstrated adaptability and flexibility.

  • Impact of Modernization: Traditional ideals were eroded; Islamism redefined Islamic law's role.

  • Call for Reform: Advocates urge a return to pre-modern flexibility and adaptability.

  • Current Trends: Notable increase in references to Islamic law in contemporary Middle Eastern legislation, though challenges remain with outdated aspects.