Is the Sharia all divine and immutable?
Before examining the proposition regarding the immutability of the Sharia, it is important to draw attention to a few cardinal aspects regarding the meaning, historical development and dynamism of the Sharia.
The word "Sharia" is derived from the root "shara". According to Ibn Arabi, shara is derived from the root "zahara" which means to "open, become clear, or visible".
EW Lane's well-established work, on the authority of reputed Arabic English lexicons, points out that the term Sharia applies to a watering place as is permanent and apparent to the eye, like the water of a running river, not water that is stagnant like one draws from a well with a rope.
The Lughat Al Quran (a dictionary of words and concepts in the holy Quran describes the word Sharia as "a place, quay or pond where people and animals come to drink or collect water, but the condition is that the water at the place should come from a constantly flowing spring which should be open and flowing at the surface of the land and easily accessible". On the other hand, accumulated water is called Kara'un not Sharia.
It also signifies a way or a road. In legal terminology, it is the canon law of Islam. In all its implications and meanings, its symbolises fluidity and movement and nowhere suggests the concept of being fixed, static and rigid.
It cannot be refuted that most Muslims regard the Sharia as a protective canopy over their lives, because it has played a principal and integral part in Islamic history, and as a means of bringing together heterogeneous groups of Muslims within a single socio-religious framework.
It encompasses as much spiritual, ethical standards as common, civil, and criminal law, family relations, crime and punishment, inheritance and disposal of property, and the economic system. "Fiqh" or jurisprudence is the legal branch of the Sharia. Some believe that the Sharia, inclusive of all its principles is "divinely inspired" and therefore, not liable to change by human beings. We also find a number of Muslim scholars and jurists who do not subscribe to this view. These scholars have arrived at their conclusion after reviewing the dynamic composition and historical development of the Sharia.
It is interesting to consider the perspective of Maulana Abul 'Ala Maududi on the subject. In response to the critics of the Sharia who have commented on the inflexibilities of the Islamic system as being rigid and antiquated, Maulana Abul 'Ala Maududi's commented:
"I doubt very much whether people who take this stand are conversant even with the rudiments of the Islamic law and possess even an elementary knowledge of it. Perhaps, they have heard from somewhere that the fundamentals of the Islamic law were enunciated more than 13,000 years ago, and they have assumed that this law has remained static since then and has failed to respond to the requirements of changing conditions of human life... Those critics fail to realise, however, that the laws propounded thirteen-and-a-half centuries ago, did not remain in a vacuum; they formed part and parcel of the life of Muslim society and brought into being a state which was run in the light of these laws. This naturally provided an opportunity of evolution of Islamic law from the earlier days, as it had to be applied to day-to-day matters through the process of "taweel", "qiyas", "ijtehad", and "isthihsan".
"Very soon, after its inception, Islam began to hold sway over nearly half the civilised world stretching from the Pacific to the Atlantic and, during the following 12,000 years, the Islamiclaw continued to be the law of the land in all Muslim states. This process of the evolution of the Islamic law, therefore, did not stop for a moment up to the beginning of the 19th century, because it had to meet the challenges of the ever-changing circumstances and face countless problems confronting different countries in different stages of history. Even in our India-Pakistan subcontinent, the Islamic civil and penal codes were in vogue up to the beginning of the 19th century. Thus, it is only for the last 100 years that the Islamic law remained inoperative and suffered stagnation."
Sayed Hossen Nasr, a well-known scholar of Islam, indicates that in the area of the juristic devices mentioned above, little interest has been generated in the procedure of codification and systemisation of the Sharia. "The study of orientalists, which are usually historical, have directed attention to the gradual process by which the Shariah came to be codified into the form in which the Islamic world has known it for the past millennium. It is, therefore, not without interest for us to consider how this process took place." This historical and sociological crystallisation is described by him in his 'Ideals and Realities of Islam' as follows:
"In essence, all the Sharia is contained in the Quran. The holy book, however, contains only the principles of all the law. It contains the law potentially but not actually and explicitly, at least not all the different aspects of the Sharia. There was a gradual process by which this law becomes promulgated in its external form and made applicable to all domains of life. This process was completed in about three centuries during which the great books of law of both Sunni and Shia sects of Islam were written, although the exact process is somewhat different in the two cases.
"The principles of law contained in the Quran were explained and amplified in the prophetic Hadith and Sunnah, which together constitute the second basic source of (Islamic) law. These in turn were understood with the aid of the consensus of the Islamic community 'ijma'. Finally, these sources of law were complemented by analogical reasoning, qiyas (analogical deduction), or ijtehad (creative interpretation). According to the traditional Islamic view, therefore, the sources of the Sharia are the Quran, Hadith, ijma, and qiyas, of which the first two are the most important and are accepted by all schools of law while the other two are either considered of lesser importance or rejected by some of the schools.
"It is interesting to observe that, of the sources of the Sharia specified in the above extract, only the Quran is divine in origin. The Hadith or Sunnah, traditions of Prophet Muhammed, constitute the second basic important source of (Islamic) law. But the other sources that contributed to the development of the law for more than three centuries, such as qiyas (analogical deduction), ijma (consensus), and others that consequently developed from these structures, are neither accepted by all Muslims alike nor claim to be immutable or have divine origin."
Further, Islam does not have a monolithic legal system. Over a period of time, it developed within its fold several schools and sub-schools of human thought. In the second century of the hijra (migration), great jurists arose who codified the Islamic law according to the needs of their time.
However, among the Sunnis, the four well-known schools - Hanafite, Malikite, Shafi'i, and Hanbalite - are by no means, as is popularly believed, the only schools in the history of Islamic jurisprudence. As stated earlier, Dr Mohammad Iqbal said: "From about the middle of the first century up to the beginning of the fourth, not less than 19 schools of law and legal opinions appeared in Islam. This fact alone is sufficient to show how incessantly our early doctors of law worked in order to meet the necessities of a growing civilisation."
As the law of Islam is dynamic not static and impartiality of the legal notions is central to Islam, a wealth of opinions surfaced for the exigencies that new situations demanded. However, with the course of time the doctrine of "taqlid", or to follow the decisions of a religious leader without necessarily examining the scriptural basis or reasoning of that decision, prevailed. This was not accepted by modern scholars, who wrote extensively on the importance of the use of reason in Islam.
Quoting the well-known Hadith relating to Ma'adh bin Jabal, when the Prophet appointed Ma'adh to the governorship of Yemen and he came to take leave of the Prophet, Ma'adh was asked how he would govern. Ma'adh said, according to the Quran. The Prophet thereupon asked what he would do if he did not find the solution to the problem in the Quran, to which Ma'adh said he would govern according to the Sunnah. But when the Prophet asked if he could not find it in the Sunnah also, Ma'adh said "ana ajtahidu" (I will exert myself to find the solution). The Prophet thereupon patted his back and told him he was right.
Modern scholars like Jamaluddin Afghani, Muhammad Abduh, and Dr Muhammad Iqbal, hence, revived the doctrine of ijtehad or creative interpretation and emphasised the use of reason-based understanding that is essential to Islam.
Further application of several juristic concepts as "takhayyur" (selection or preference) made it possible to choose principles not only of one school alone but a range from different schools. Similarly, "tafliq" or combining two conflicting juristic views on the same problem were foundational instruments employed to advance legal modification in Muslim countries.
To achieve this end, over the centuries, modern jurists in Muslim majority countries have further judiciously applied a number of other legal devices formulated by Islamic law to effect reform in the areas of penal laws, laws of evidence, obligations, family laws and so on for the welfare of Muslims. These include mechanisms formulated by Muslim jurists such as "maslahah mursalah" or public interest and "al-darurattubihu al-mahzurat" or the fact that necessities make permissible what is forbidden and the application of istihsan or discretion in reaching a ruling.
Further, "Siyasa-i-Shariya" or public good, or a state's legal policy, while requiring the government to be based on Sharia, leaves room for regulatory measures in the interest of public good. It has been employed in several countries to effect reform.
In India, where Muslims are a minority, the traditional Muslim law also underwent a series of reforms. Earlier, the Child Marriage Restraint Act of 1929 prohibited the marriage of girls younger than 14 and boys younger than 16 under fear of imposition of penalties. By the application of the doctrine of thakhayyur, the rules of the Maliki and Hanbali schools were made applicable instead of the Hanafi school. Similarly, the Dissolution of Muslim Marriage Act 1939 enabled women to file for divorce on several grounds, including cruelty, without the fear of losing a substantial part of their property. Earlier, before the enactment of this Act, Muslim women could not file an application for divorce. This Act has proved to be a boon for all Muslim women. The third piece of legislation was the 1986 Bill.
Prior to the early 20th century, the state left control over women and the family to patriarchal groups. In antithesis to its interventionist approach in Islamic civil, commercial, and penal law, it declined the enterprise of modifying personal status (that is marriage, divorce, and inheritance), or regulation of these laws. Later, several states used autonomy in pursuing their own agendas in this area. Hence several states broadened their base of support of enfranchising women, in the process, weaning them away from the patriarchal groups that traditionally held control over them.
Although attempts to codify Islamic law in several Muslim countries have been successful, such efforts faced initial resistance. Nonetheless, at a later stage after initial resistance, these laws were accepted and underwent reform.
For instance, in 1875, Kadri Pasha's draft code for Egypt dealing with the Hanafi law of family and inheritance was not accepted. Likewise in Tunisia, D Santillana's draft code on family law was not turned into a law (though his code on the law of obligations was enacted). Today, however, these laws are enacted. Several Islamic countries, by and large, have since affected reforms on penal laws, laws of evidence, laws of obligation, and family laws.
Areas of reform pertaining to the rights of women in family law have been neglected in India. It is interesting to note that not many of the provisions of the present Sharia laws practised in India are truly and strictly Islamic. Dr Tahir Mahmood in his The Muslim Law of India, states, "It is true that some of the original principles of Islam which apply to Muslims in India are subject to local modifications. The present law of the Indian Muslim cannot therefore in its entity be called the 'Law of Shariat'"
Further, he states, "The British rulers did, in the exercise of their legislative powers, curtail the Islamic law in this country. As regards the role of the British judges, they not only interpreted the law of Islam, they misinterpreted it too." The observations of Justice Krishna Iyer "that marginal distortions are inevitable when the judicial community in Downing Street has to interpret the law of Manu and Muhammad in India and Arabia." Despite this, the law has remained stagnant.
The necessity for the reform and codification of Muslim personal law in India had been articulated in pre-independence India by several contemporary modern Muslim scholars gaining further attention and impetus after 1947.
Distinguished scholars like the late Asaf Ali A Fyzee (1899-1981) neatly summarised the reform of Muslim personal law in a booklet written in 1971, entitled "The Reform of Muslim Personal Law in India"; Maulana Ashraf Ali Thanvi, who was instrumental in bringing into existence and codification of the Muslim Womens Dissolution Act in 1939. The triple divorce, in particular, needs to be replaced through the process of codification as it is known as "talak-i-bidat" or an innovation and "sinful" even by those who permit its practice.
As pointed earlier, modern exegesis and jurists in different Muslim countries have endeavoured consistently to effect reform in the area of family law within the parameters of Islam. The process has been long and strenuous but fruitful. The family laws in India can undergo a similar metamorphosis if the legal devices applied by different Muslim counties for the purpose of codification of Muslim personal law in India. To ensure justice, rulings in such countries can perhaps be extended as precedents. In the words of Justice Hidayatullah, "If the lead is coming from Muslim countries, it is hoped that in the course of time, the same measures will be applied in India also."