Updated: Monday August 11, 2014/AlEthnien
Shawwal 15, 1435/Somavara
Sravana 20, 1936, at 09:38:43 AM
The Basis of Legislation in an Islamic
State
by G.
A. Parwez
INTRODUCTORY
Wherever he
be, man likes to act as he pleases and have full freedom of action. Were he by
himself, he could do so with equanimity. In society, however, individual
freedom has to be circumscribed to avoid conflict with the freedom of action of
others. Individuals have, therefore, to abide by certain voluntarily accepted
restrictions, the formulation of which pertains to the sphere of legislative
action.
Two questions arise at once,
namely,
·
Who should formulate these
restrictions ? and
·
Whether the restrictions once
formulated will apply for all time to come, or they will be susceptible to
change from age to age?
The first question falls within
the domain of
"Constitution making" and is outside
the scope of the present discussion. We are here concerned with the second
question of law-making in a
The foremost essential which a people must
determine and define in law-making is the concept of life. As is the concept of
life of a people so will be its law. Broadly speaking. two concepts of life,
which have come down to us through history, are prevalent today, and have a
direct bearing on the point under discussion.
One concept sees man only as a physical body,
endowed somehow with consciousness, living according to certain
chemico-physico-biological laws and then dying under the operation of these
very laws. With his physical death man, like other animals, ceases to exist.
This concept is known as the materialistic concept of life. Laws or rules of
conduct framed under this concept of life are based on expediency and admit of
no permanent or unchangeable values. Changes, abrogation’s, or amendments in
the laws are also governed exclusively by expediency. Governmental machinery
set up by people subscribing to the materialistic concept of life is called the
"Secular" form of government, whether its pattern is democratic or
dictatorial.
There is another concept of life which is
propounded by the Holy Quran. Man, according to the Quranic concept, is a
combination of a physical body, which is changing, changeable and liable to
death, and a Personality which does not change, but develops and is capable of
self-integration and becoming immortal. The aim of life, according to the Holy
Quran, is the development of Personality. Human Personality is not static but
is potentially capable of developing and expanding. Its development can,
however, take place only in a social order called the Islamic State. The Islamic
State provides the ways and means for the proper development and progress both
of Body and Personality. Since man is according to this concept of life, an
integrated composition of permanence and change, laws governing the social
order wherein his development takes place, should also be a combination of
permanence and change. This point has been elaborated beautifully by Iqbal in
his sixth lecture in the series on the Reconstruction of Religious Thought in
Islam. He says:
"The ultimate spiritual basis of all life,
as conceived by Islam, is eternal and reveals itself in variety and change. A
society based on such a conception of Reality must reconcile, in its life, the
categories of permanence and change. It must possess eternal principles to
regulate its collective life; for the eternal gives us a foothold in the world
of perpetual change. But eternal principles when they are understood to exclude
all possibilities of change, which, according to the Quran, is one of the
greatest "signs" of God, tend to immobilise what is essentially
mobile in its nature".
Man has been endowed with "Intellect"
which gives him superiority to other animals. Human intellect functions,
however, within the limits of Time and Space and is, consequently, capable of
handling only that aspect of man's life which is subject to "change",
i.e. the physical aspect of human life. It cannot peep over the boundaries of
"change" into the supra-physical, or the realm of "permanence'
to which human Personality belongs. In that realm, things reveal
themselves to human intellect (to Messengers of God) and are not discovered
by it. Revelation is Divine, and Divine Guidance alone provides permanent
values or unalterable fundamental principles, otherwise known as "Divine
Precepts," or the "way or Practice or Allah". Law or rules
devised by human intellect need change with the change in time and space; but
permanent values admit of no such change. In the words of the Holy Quran,
"There is no changing in the Words of Allah" (10/64) and "you
will find no change in the way of Allah" (33/62)
Body and Personality cannot, however, be divided
into two mutually exclusive compartments, nor also can the laws pertaining to
the realms of permanence and change. A combination of permanence and change. A
combination of "permanence and change" can be achieved if in framing
laws, human intellect keeps itself within the boundaries of eternal values
revealed by God. The laws so framed will be applicable to man as a whole and
satisfy the requirement of both Personality and the physical body of man.
THE
PRINCIPLE OF DIVINE GUIDANCE.
Man has been the recipient of the Divine Guidance
ever since he began living a corporate life. In earliest stages the guidance
concerned itself not only with permanent values but also with matters which
could be determined by human intellect alone. For instance, about Noah the Holy
Quran says. "Then we guided him, saying: Make the ship under our
supervision and Guidance". (23/27). This shows that in the age when Noah
lived man depended on Revelation for learning processes like those of
boat-making. As human intellect began to grow in maturity, the need for the
Divine Guidance in respect of the changeable details diminished. The divine
Guidance in its final and complete form has now been preserved for all time to
come in the Holy Quran. It has been made clear that henceforth the subsidiary
laws will be devised by men by mutual consultation among themselves in the
light of the given permanent values. Rasoolullah (PBUH) was directed,
"to consult the people in the conduct of affairs" (3/159) and after
him the believers were also to determine their affairs by mutual consultation
(42/38)
This brings out clearly the co-mingling of
permanence with change in life and stresses the need for rules of conduct providing
both for its permanent aspect as well as for its changeable subsidiary aspect.
The basic problem in the matter of legislation in an Islamic State is the
demarcation of the sphere of permanent provisions as distinct from the sphere
of provisions liable to change according to changes in requirements. Before
stating the Quranic position as I understand it, I feel I should explain
briefly the views which various schools of thought in
One view is that all the laws that an Islamic
State requires are already laid down in the corpus of Islamic "Fiqh"
which is permanent and unalterable. It is, therefore, unnecessary to embark
upon fresh legislation. When ever a fresh situation arises, all that the State
has to do is to ascertain from the "Ulema-e-Fiqh" the conclusions
already reached on the point at issue and then to enforce it. A representative
of this school of thought offered this very view before the Punjab Disturbances
Enquiry Commission, whose report (P.211) on the point reads as follow:-
"Since Islam is a perfect religion
containing laws, express or derivable by Ijma or Ijtihad,
governing the whole field of human activity, there is in it no sanction for
what may, in the modern sense, be called legislation. Questioned on this point,
Maulana Abul Hasanat, President, Jami'at- ul-Ulema-i-Pakistan, says:-
Q. Is the institution of
legislature as distinguished from the institution of a person or body of
persons entrusted with the interpretation of law, an integral part of an
Islamic State?
A. No. Our law is complete and
merely requires interpretation by those who are experts in it. According to my
belief, no question can arise the law relating to which cannot be discovered
from the Quran or the Hadith.
Q. Who were
Sahib-ul-hall-i-wal-aqd? Who were Sahib-ul-hall-i-wal-aqd?
A. They were the distinguished Ulema
of the time. These persons attained their status by reason of the knowledge of
the law. They were not in any way analogous or similar to the legislature in
modern democracy. They were the distinguished Ulema of the time. These
persons attained their status by reason of the knowledge of the law. They were
not in any way analogous or similar to the legislature in modern democracy.
"The same view was expressed by
Amir-i-Shari'at, Sayyed Ata Ullah Shah Bukhari, in one of his speeches reported
in the ‘Azad’ of 22nd April, 1947, in the course of which he said that our din
is complete and perfect and that it amounts to Kufr to make more
laws".
This view is, however, not shared by all those
who belong to the "Fiqh" school of thought, and an exponent
has characterised it as "soulless religiosity" whereby "the
Islamic jurisprudence has been reduced to a fossilised mass of 'Shastras'. For
centuries the door of Ijtihad has been securely shut, with the result that
Islam, instead of being a live movement, has been relegated to the limbo of a
movement in ancient history only".
In regard to Ijtihad, his criticism is
that "however erudite a mujtahid may be, he cannot transcend the
time-spatial limitations, nor can he have the breadth of vision encompassing
the broad canvas of all time and experience. Therefore, his Ijtihad
cannot hold good for all ages and circumstances" (Abul Ala Maudoodi).
Iqbal has also commented at length in his sixth
Lecture already referred to, on the view that "Fiqh" is
unchangeable. Says he: "The theoretical possibility of this degree of Ijtihad
is admitted by the Sunnis, but in practice it has always been denied ever since
the establishment of the schools, inasmuch as the idea of complete Ijtihad
is hedged round by conditions which are well-high impossible of realisation in
a single individual. Such an attitude seems exceedingly strange in a system of
law based mainly on the ground work provided by the Quran which embodies an
essentially dynamic outlook on life". He goes on to say: "Turning now
to the ground work of legal principles in the Quran, it is perfectly clear that
far from leaving no scope for human thought and legislative activity the
intensive breadth of these principles virtually acts as an awakened of human
thought. Our early doctors of law taking their clue mainly from this ground
work evolved a number of legal systems: and the student of Muhammadan history
knows very well that nearly half the triumphs of Islam as a social and political
power were due to the legal acuteness of these doctors. `Next to the Roman',
says Von Kremer, `there is no other nation besides the Arabs which could call
its own a system of law so carefully worked out'. But with all their
comprehensiveness, these systems are after all individual interpretations, and
as such cannot claim any finality. I know the Ulema of Islam claim finality for
the popular schools of Muhammadan Law, though they never found it possible to
deny the theoretical possibility of a complete Ijtihad. I have tried to
explain the causes which in my opinion, determined this attitude of the Ulema:
But since things have changed and the world of Islam is today confronted and
affected by new forces set free by the extraordinary development of human
thought in all its directions, I see no reason why this attitude should be
maintained any longer. Did the founders of our schools ever claim finality for
their reasoning and interpretations? Never. The claim of the present generation
of Muslim liberals to reinterpret the foundational legal principles, in the
light of their own experience and altered conditions of modern life is, in my
opinion, perfectly justified. The teaching of the Quran that life is a process
of progressive creation necessitates that each generation, guided but
unhampered by the work of its predecessors, should be permitted to solve its
own problems".
TRADITIONALISTS
As against "Ahl-e-Fiqh", there is
another school of thought, commonly called the Traditionalists (Ahl-el-Hadith).
They maintain that it is not "Fiqh" but the sayings of Rasoolullah
(PBUH) which should be enforced as they are, since they contain
fundamental and unchangeable law. The school holds that "after due
scrutiny Hadith occupies the same position and authority as the Holy
Quran does, and a denial of Hadith would affect one's faith and honesty
in the same manner as the denial of the Holy Quran itself will do.
Notwithstanding differences in interpretation, the Holy Quran is the Word of Allah
and an undisputed authority in Shara (Law). Likewise, Hadith, even
though it is open to scrutiny, is Revelation from Allah and, next to the
Holy Quran, of like authority in religion". (Muhammad Ism’ail Al-Salafi).
The above excerpt acknowledges that the authority
ascribed to Hadith is secondary to that of the Holy Quran, but what
follows will show that the acceptances of the postulate is in principle only,
since in practical application of the principle and in making deductions
therefrom, it is held: in our view Hadith is revealed and whatever it
says was conveyed to Rasoolullah (PBUH) in the same way as was
the Holy Quran......the angel Gabriel came with the Holy Quran as well as the Sunnah
and conveyed Sunnah to Rasoolullah(PBUH) in the manner he
conveyed to him the Holy Quran. We do not approve of discrimination in
Revelations and hold both the Holy Quran and Sunnah as concurrent
authority" (Ibid).
In regard to the two anthologies of Hadith,
namely Bukhari and Muslim, the school holds that:-
"By consensus of opinion, Muslims acknowledge
that the agreed Ahadith in the two anthologies are valid and that their
veracity is absolute". (Ibid).
This view also is not shared by all those who
consider Hadith as the basis of Shari’at Law, as would appear from the
following comment:-
"Ahadith have come down through a
chain of narrators, one person passing the information verbally to another. In
its very nature the process can at best be viewed as conveying probability and
not certainty. It is unthinkable that Allah would leave believers in the matter
of faith in a position in which they should determine their course of action on
the basis of material passed on by word of mouth". (Maudoodi)
He goes on to say:-
"The material may be useful as a help in
ascertaining the practice of Rasoolullah(PBUH) and the doings of his
Companions (God may be pleased with them) but it is not a thing which could
claim complete reliance".
Further on he says:-
"The claim that the text of all the Ahadith
in Bukhari should be accepted as correct without critical appreciation
is untenable".
He adds:-
"Regarding Mandatory Laws, the Holy Quran
generally mentions the basic principles only and in most matters leaves out the
details. Rasoolullah (PBUH) applied the Quranic Laws to the practical
affairs of life and provided the requisite details both by word and deed. Some
of these details are too definite to admit of fresh interpretation and they
must be accepted as they are, as for instance the commands pertaining to
worship (Ibadat). There are other details the principles underlying
which help in making further deductions, e.g. Civil Laws of the time of Rasoolullah
(PBUH)".
In accordance with the above excerpt, the
doctrine propounded by the Traditionalist school of thought concedes to the
present generation the right to determine subsidiary Civil Laws by Ijtihad
in accordance with the principles deducible from the Civil Laws promulgated by Rasoolullah
(PBUH).
To quote their own words:-
"It is an incontrovertible truth that for
the observance of his directions the law-giver has, with infinite wisdom and
knowledge, laid down mostly such conditions as would achieve the purpose in
view in all times, all places and all circumstances. In spite of this there are
numerous details in which changed circumstances demand corresponding changes.
It is not necessary that conditions in every age and country should be what
they were in
The position advocated in the preceding extract
is not an innovation. Imam Abu Hanifa and Shah Waliullah Muhaddith of
"For our present purposes, however, we must
distinguish traditions of a purely legal import from those which are of a non
legal character. With regard to the former, there arises a very important
question as to how far they embody the pre-Islamic usage’s of
The foregoing will shoe that while there is a
school of thought in Pakistan which holds that whatever has come down to us in
the name of Fiqh or the Traditions, is unalterable and should be
enforced as such, there is another school of thought also which considers that
for meeting the requirements of the present time, we can formulate our own laws
in the light of the permanent and the unalterable principles given by the
Quran.
QURANIC
ARGUMENTS
This view is supported abundantly by the Holy
Quran. The Quranic arguments may be summarised below:-
1. In Islam obedience is essentially and
basically due only to the Laws of Allah as embodied in the Holy Quran.
"Shall I (Rasoolullah, PBUH) look for a judge other than Allah. He
who has revealed to you a book defining things clearly"? (6/115).
2. He who does not adjudicate in
accordance with the Holy Quran is not a Muslim (5/44).
3. Obedience to Divine Laws is not a thing
belonging to the individual plane in the sense that one might, of his own,
consult the Holy Quran, interpret it for himself and act according to his
individual interpretation. The obedience has to be disciplined and ordered
under an organised system (called State in the present day terminology)
controlled by a central authority, the first central authority having been Allah's
Rasool. Obedience to the central authority is obedience to Allah. Says the
Holy Quran: "One who obeys the Rasool obeys Allah" (4/80), the Rasool
adjudging everything according to the Holy Book (5/48).
4. Barring a few exceptions, the Holy
Quran enunciates generally fundamental principles without touching
subsidiary law. About these principles or the basic provisions, the Holy Quran
says: "The Kalema (basic principle) revealed by the Nourisher has
been made complete in truth and justice. There is none who can change His
principles (6/116).
5. The reason for leaving out subsidiary
laws from the Holy Quran has been explained thus: "Ask not for things
which if revealed would inconvenience you, and if you ask for them while the
Quran is being revealed, they will be disclosed to you....Before you a people
(the Israelites) did ask for them and then disbelieved (and defied) them".
(5/101-2). In elucidation of the above verses, a Hadith is cited which
says: "Allah has placed on you certain obligations, do not violate them.
Some things have been forbidden, do not go near them. Some limitations have
been imposed, do not transgress them. Some things have been left unspoken of
without being overlooked, do not probe into them".
6. The question as to how details, which
have deliberately been left undetermined in the Holy Quran, will be formulated
in the light of the Quranic principles, is answered by the direction given in
the Holy Quran to Rasoolullah (PBUH) to "consult them (the
believers) in the affairs (of the Society)" (3/158).
There are numerous instances recorded in
Traditions showing how Rasoolullah (PBUH) consulted his Companions in
the day-today affairs. This process of consultation was not confined to any
particular sphere but covered all matters in which details were not given in
the Holy Quran. For instance the Holy Quran mentions the "Call for Salaat-ul-jum'a"
(62/9), but does not prescribe the manner for making the call. The way this was
decided upon has been recorded in Mishkat, as follows, in the chapter on
Azaan:-
"Abdulleh b. Zaid b. Abd Rabb states that
when Rasoolullah (PBUH) gave the orders for blowing the conch for
calling the faithful to Sal’at I saw a man in a dream who had a conch in
his hand. In my dream I enquired from this man whether he would sell the conch.
He asked me what I would do with the conch. I answered that we would use it for
calling people to Sal’at. He said, may I not tell you something which is
even better? On my replying in the affirmative, he asked me to repeat Allah-o-Akbar,
Allah-o-Akbar etc. and likewise he taught me Takbir. With the
dawning of the morn I hastened to Rasoolullah (PBUH) and narrated my
dream. Rasoolullah (PBUH) said, `Verily this dream is true and
indicative of Divine'. There upon he ordered me to stand along-side Bilal and
repeat to him what I had been told in my dream so that he (Bilal) may make the
call(Azaan) since he is `loud-throated'. I did as commanded and Bilal
called the Azaan. Abdullah further states that when Umar b. Khattab
heard the Azaan at his place, he hurried out, dragging his covering, and
said to Rasoolullah I swear by Him who has sent you with Truth, that I also
have seen a dream similar to that of Abdullah'. Rasoolullah thereupon
said, ` All praise is for Allah'. (Abu Dawud, Darmi, Ibn-e-Maja).
7. While he lived, Rasoolullah
determined subsidiary laws in consultation with the Ummat. The question is as
to what was to be done after his demise. The Holy Quran answers the question by
saying, "Muhammad is but a Rasool. there have been several Rasool
before him. Will you turn back on your heels if he dies or is slain?"
(3/143). It follows that the process of framing laws within the frame-work of
the Quranic principles was not to discontinue after the death of Rasoolullah
but was to go on as before. Therefore, after his demise, the first thing the
Companions did was to elect a Successor so that he could carry on the process
of determining subsidiary laws and enforcing Divine Principles as did Rasoolullah
himself. "One who obeys the Rasool obeys Allah" now
took the form of "One who obeys the Rasool's successor obeys Allah".
Rasoolullah himself is reported to have said: "You have to follow
my practice and the practice of my mature and rightly guided Successors",
(Mishkat chapter on adherence to Book and Sunnah). The Holy Quran
directed Rasoolullah to "consult the believers in determining the
affairs of the people" (3/158); it guided his successors by saying
"and they determine their affairs by mutual consultation" (42/38).
"Mutual consultation" within the ambit of the eternal and inviolable
Laws given in the Holy Quran is the "way of the believers" (4/115)
which should never be given up.
8. There is material available in the
record of traditions of Rasoolullah and the doings of his Companions to
show how subsidiary laws were formulated under the Khilafat-e-Rashida.
The procedure followed was:
a) Where subsidiary law had not already
been framed it was formulated by mutual consultation. For example no punishment
was prescribed for drunkenness in the time of Rasoolullah. Hazrat
Abu Bakr prescribed for it forty stripes, which Hazrat Umar later
increased to eighty.
b) If a subsidiary law once enacted needed
no amendment or change it was retained intact, just as any constitutional government
would continue to enforce the laws of its predecessors until the need for a
change arose.
c) Subsidiary enactment’s, which needed
amendment in consequence of a change in circumstances, were duly modified.
Since they were not prescribed initially by Revelation, it was not necessary
that they should undergo changes through Revelation. Here are a few instances:
i) Rasoolullah had fixed the amount
of ransom for prisoners of war at one Deenar per head. Hazrat
Umar fixed different amounts for different parts of the State.
ii) Rasoolullah (PBUH) did not
prescribe rates of Zak’at for different varieties of produce of land. Hazrat
Umar did so.
iii) For Taleef-i-Quloob, Rasoolullah
used to give financial assistance from the State Exchequer. Hazrat Umar
discontinued the practice.
iv) Rasoolullah distributed among
the fighters the land acquired in certain conquered areas. Hazrat Umar
abrogated this system.
v) Rasoolullah allowed maintenance
allowance at uniform rate. Hazrat Abu Bakr continued the practice. But Hazrat
Umar re-fixed the rates in proportion to the services rendered by
recipients.
vi) Rasoolullah did not realise Zak’at
on tradable horses and the produce of the sea. Hazrat Umar did it.
vii) Hazrat Umar decided that the
scheduled punishment for offences should be made light for belligerents and
that the punishment of manusection for theft should not be inflicted on the
famine-stricken.
Instances of this kind can be multiplied if those
measures are taken into account which Hazrat Umar introduced initially.
Their number, according to historians, ranges between forty and fifty. This
number, however, is not the issue. The real issue is that the rightly guided
Successors of Rasoolullah accepted and worked according to the principle
that the decisions taken during the time of Rasoolullah could be
modified, if the changed circumstances so demanded. They extended the principle
to the decisions taken among themselves, and a Successor felt no hesitation in
amending the decisions of his predecessor.
IMAM
ABU HANIFA
The verses of the Holy Quran coupled with the
evidence provided by traditions and history, reproduced above, support fully
the view that it is the fundamental law of the holy Quran which is
unchangeable. In the case of subsidiary laws formulated under it, the Islamic
state constituted on the pattern of that of Rasoolullah, can affect
changes to suit its current requirements. In the excerpt from his Lectures
noted above, Iqbal has pointedly mentioned Imam Abu Hanifa and Shah
Waliullah, Muhaddith of
SHAH
WALI ULLAH
This incident illustrates the position of
Imam-e-Azam. In his book Hujat-ullah-il-Baligha, chapter on types of
Revealed Knowledge, Shah Waliullah has quoted a saying of Rasoolullah:
"I am a human being. What I tell you about DIN adopt it; when I
express my personal opinion, then, I am but a human being". Shah Waliullah
says that the matters to which Rasoolullah referred were those
unconnected with the propagation of the revealed message, and adds that akin to
this type of "matters" were those subsidiary directions which, though
related to the Quranic principles, conformed directly to the conditions then
prevailing and ceased to operate as and when those conditions changed. The Ummat
was not bound to observe them as permanent injunctions. In the same category
are included those decisions of Rasoolullah regarding home and social
economics, politics, etc., which were couched in general terms and omitted to
specify practical details.
In elucidating Shah Sahib's view, Maulana
Ubaidullah Sindhi, who is acknowledged as an authority on Waliullah, wrote as
follows:-
"It should be understood that the
enforcement of the basic law is preceded by the formulation of introductory
subsidiary laws bearing directly on the prevailing conditions of the people
concerned.
The basic law is unchangeable but introductory
laws change with the change in attending circumstances. The introductory laws
which Rasoolullah and his three immediate Successors formulated in
consultation with the Central Council of advisers , are termed
"Sunnah". The system whereby decisions were reached by consultation
broke down, however, after Hazrat Othman. The "Sunnah"
embraces, according to the
IQBAL
Discussing the Traditionalist and the Fiqh
schools of thought, Iqbal observes in his Lectures on the Reconstruction of
Religious Thought in Islam, (page 169): "But contrary to the spirit of his
own school the modern Hanafi legist has eternalised the interpretations of the
founder or his immediate followers much in the same way as the early critics of
Abu Hanifa eternalised the decisions given on concrete cases".
My own position in this respect is that I
subscribe to the views of the
OPPOSITION
Those who subscribe to views other than these are
bound naturally to oppose these views. Iqbal anticipated this opposition and
observed, on page 156 of his Lectures:
"And I have no doubt that a deeper study of
the enormous legal literature of Islam is sure to rid the modern critic of the
superficial opinion that the Law of Islam is stationary and incapable of
development. Unfortunately, the conservative Muslim public of this country is
not yet quite ready for a critical discussion of "Fiqh" which, if
undertaken is likely to displease most people, and raise sectarian
controversies; yet I venture to offer a few remarks on the point before
us".
The opposition from the orthodox section is
understandable. But the tragic part of it is that a difference of opinion is
allowed to generate violence in expression and to condemn the opponent as an
apostate. Even Imam-e-Azam was not spared. In Vol. XIII of his book on history
Khatib Baghdadi gives following details:-
"Imam Malik b. Anas says that the peril of
Abu Hanifa to the 'Ummah' is no less than that of Satan (Iblees) both
with regard to his doctrine of revocability of divorce and the rejection of Ahadith.
Abd-al-Rahman b. Mahdi says that the peril of Abu-Hanifa is more dangerous than
the peril of Dajjal. Salman b. Hassan Halbi says that he has often heard Imam
Auzai complain that Abu Hanifa has destroyed one by one all the wings of Islam.
Fazari relates that both Sufian and Auzai say that a more inauspicious person
than Abu Hanifa was never born in Islam. Imam Shafi calls him the worst among
the despicable. Abu Ubaid says I was once sitting in the Jami Mosque of Rusafa
with Aswad b. Salam. In discussing something I mentioned the view of Abu
Hanifa. Aswad reprimanded me severely for mentioning even the name of
Abu-Hanifa in the mosque and for this lapse on my part he was so annoyed with
me that he never spoke to me thereafter till his death'".
Similar intolerance in opposing views continues
unfortunately to plague our society to this day.
WHAT
SHOULD BE DONE NOW?
Let us return to our main theme. Historically,
the position during Khilafat-Rashida was that whenever a change in
circumstances needed a change in subsidiary laws the change was affected by
mutual consultation. Had the institution of Khilafat on the pattern set
by Rasoolullah continued, the process of legislation evolved by it would
have continued to develop normally, making the law of Shari’at a happy
blending of permanence and change. It is a pity that the processes came to a
halt and with it ended the critical attitude with which subsidiary laws used to
be formulated. It is true that for a time the various schools of Fiqh
carried on the process, but theirs was an effort on the individual plane which
very soon became rigid and fossilised. We need not go into the historical why
and wherefore of the change, which Iqbal has already discussed at length in his
Lectures. The all important question confronting us now is that since the Khilafat
on the pattern of Rasoolullah has long ceased to exist, what lines an
Islamic State should follow for legislation. The answer is fairly clear. Revive
Khilafat on Rasoolullah's pattern and adopt the system which he
and his associates had established. But, is such a revival possible? Some say,
No, since personalities like Hazrat Abu Bakr and Hazrat Umar are
no longer available to do the job. This No is cry of frustration and is based
on a serious misconception. If the cry were listened to, it would be tantamount
to admitting that the Holy Quran offered a code of life for a particular period
of history only. This would be preposterous. The Holy Book has been preserved
so as to provide mankind with a code for practical living from age to age and
from place to place. On the basis of the Quranic principles an organisation
(Islamic State) was set up once. A similar organisation can be set up again
now. The way to do it is this: The State should first take firm decision that
it shall remodel the society on the basis of the inviolable principles
preserved in the Holy Quran. Then it should take stock of the literature
dealing with Islamic laws with a view to (a) adopting, in its original form,
what would with due regard to the Quranic Principles, meet present
requirements; (b) amending what needs a change; and (c) formulating new
provisions to satisfy fresh situations, the whole thing being processed with
the help of the representatives of the Ummat by mutual consultation.
This is how an organisation based on the Quranic Fundamentals can be brought
into being. But a change - over from the present to an ideal Islamic State
cannot be brought about overnight. The organisation will, by stages, proceed
towards its ultimate goal by the normal process of evolution, ridding itself of
initial short comings at every step. This is the Sabil-ul-Momineen, the
way of the Believers, which the Holy Quran has stressed. An important point to
note is that until an Islamic State has been established, the Ummat
should continue its present course without any change, since the right to
introduce changes belongs to the social order (the Islamic State) and not to
individuals whatever their mental development may be.
ITS
IMPORTANCE
The foregoing explains the broad principles and
the basic way for the exercise of legislative effort in an Islamic State, the
way to which Iqbal referred in his Lectures. He indicated the way in 1928, but
the question had already swayed his imagination so much that in a letter
written long before he said: "My conviction is that whoever undertakes a
critical appreciation of modern jurisprudence in the light of the Quran and
establishes the inviolability of its principles, will be the arch revivalist (Mujadid)
in Islam, and the greatest benefactor of humanity....It is a pity that the
contemporary doctors of Islamic jurisprudence should be either completely
ignorant of modern trends or else be steeped in rack orthodoxy.......It seems
to me that Islam is, as it were, being tested at the moment on the touchstone
of Time, a situation which perhaps never before arose in the history of
Islam". (Iqbalnama-volume I, page,50).
Referring to what had happened in Turkey, Iqbal
said in his Lectures (on page 154): "The question which confronts him (the
Turk) to-day, and which is likely to confront other Muslim countries in the
near future, is whether the law of Islam is capable of evolution, a question
which will require great intellectual effort, and is sure to be answered in the
affirmative; provided the world of Islam approaches it in the spirit of Omar,
the first critical and independent mind in Islam who, at the last moments of
the Prophet , had the moral courage to utter these remarkable words; "The
Book of God is sufficient for us". He concludes his Lectures with these
words (pages 170):-
"In view of the basic idea of Islam that
there can be no further revelation binding on man we ought to be spiritually
one of the most emancipated peoples on earth. Early Muslims emerging out of the
spiritual slavery of pre-Islamic
If the Islamic world succeeds in re-establishing the
Universal Democracy of Islam by recasting Islamic jurisprudence on the basis of
the Quranic Fundamentals, the leadership of the world of political thought will
be theirs. If, however, they fail in the discharge of this delicate but vital
duty, the other nations will regard their failure as the failure of Islam and
on the evidence of that failure would declare that Islam was successful only in
a particular period of history but that thereafter it exhausted its dynamism
and is no longer capable of keeping pace with the growing needs of the times.
It should then be extremely painful for them to be adjudged guilty at the bar
of humanity of a crime of such immense magnitude and severity.
CONCLUSION
It will follow from what has been said above that
within the circumscribed limits of the permanent fundamental principles of the
Holy Quran, the Islamic society is free to formulate its subsidiary laws in
accordance with the need of times. While the subsidiary laws will be
susceptible to change in accordance with the changing needs of times, the
Quranic fundamentals shall remain unchangeable. This happy blending of
permanence and change will enable the Millat to attain its ultimate
destiny in life.
Posted on August 11, 2014
Go to Index | LL. B. – I | LL. B. – II | LL. B. – III | LL. B. Directory | Laws | Home