Redesigning Sharia Law in the Recent Technology Development[1]
Ahmad Hidayat Buang
Department of Shariah and Law
Academy of Islamic Studies
University Malaya
Email: ahidayat@um.edu.my
1.
The idea that the Sharia Law is subject to
change is anathema to the spirit of Islam, since God’s Law is immutable and not
subject to any alteration, at least in the Sunni theology. The term redesigning
here is to mean renewal or tajdid /islah of religious ideas that may
have been diluted or swayed through believer’s neglect or laxness over a period
of time. The hadith in fact decrees that at the turn of every century there
will be a mujaddid, a reformer who will renew the faith. As such tajdid
or islah is a theological consequence of human nature. In fact, the
mission of Prophet Muhammad be peace and blessing upon him, is a renewal of the
earlier mission of the Prophets before Him. As such the term renewal, reform
and redesign would have a similar meaning and connotation except that the term
reform is largely used in legal sense. For this presentation therefore these
terms will be used interchangeably.
2. The application
of Shariah or fiqh on the other hand is supposed not to be the subject of
this theological renewal since the nature of the law by itself subject to
change. Nonetheless, one should bear in mind that, in contrast to Civil or
Common Law, the idea of law reform in those systems of law is quite different
from Islamic Syariah although on the outward, both systems appear to have
similarities one way or another. The term “law reform” particularly in Common
Law system denotes that the law could be archaic or obsolete with the progress
if time and hence needing a review. The majority of Muslim believe that this is
not the case in Islamic law, at least to its cardinal principles and pillars to
what is considered as obligation (wajib) and prohibition (haram) from
the clear and definitive texts of the law i.e. Quran and Sunnah. It has been a
slogan echoed that Shariah is suitable in and to all climates and times (al-Shari‘at
Salihatun li kulli Zaman wa Makan).
3. Although
application of Shariah can be subject to renewal, with the imposition of taqlid in the third century Hijrah,
particularly after the formation of Sunni Mazhab, making independence reasoning
or investigation on the points of law had been restricted or limited. It was
accepted that the opinion or view of the masters of the mazhabs must be
followed and recognized by all believers and hence the beginning of taqlid or imitation era. The views of
these masters had been further declared as valid explanation of the law from
the texts. Indeed taqlid had its own
merits at that point of time as means of believer’s unification in the era of political
and theological turmoil, but over a period of decades and centuries some of its
important legal position posed an obstacle to the progress of the law. Many
modern scholars started from Afghani, Abduh, Iqbal, Rida and others progressive
Muslim thinkers and leaders advocated the return of ijtihad or independent reasoning by which renewal of the
application of Shariah is possible.
4. Theological
credential of tajdid in matter of
faith is used to initiate program of renewal of Islamic law, to borrow the term
used by Muhammad Sadr al-Baqir, as justification. Indeed there was a strong
objection from the traditional circles during the early period of this renewal
as the initiative mostly came from the political elites of Muslim community who
were viewed with suspicion by the Muslim public as corroborators or vassals of
the western colonial powers. Tajdid
was therefore a strong defense against the jurisprudential invalidity of the
renewal propagated by traditional circles. The essence of tajdid which is the renewal or return to original spirit and
teaching of Islam taken directly from the sources. In the application of the
Shariah, an addition to this is both jurisprudential methods and precedence or
view of the past scholars, are used to innovate new approaches in finding legal
answers or solutions.
5. Mazhab in its
traditional form is actually capable to offer solutions to most of modern day
problems; an argument that have always been maintained by the traditional
circles. In fact views of the mazhab are still used even by the most sophisticated
and complex Islamic financial institutions. Applying the recognized
jurisprudential methods and tools of a particular mazhab, solution is given to
a given particular problem. This is known as ijtihad tanzili that is to say ijtihad
on the new problem which has no prior answer using methods of jurisprudential
within the mazhab, or even sometimes combination between schools of law or talfiq. This is an addition to the use
of legal stratagems or hilah which is
recognized by the Hanafis and Syafi‘is and thus known to them as hiyal syar’iyyah but nonetheless to the contempt
of the Hanbalis in particular.
6. The problem is
not with the mazhab, as usually being said and portrayed, but it is with the
traditional scholars who are reluctant to accept new innovative approaches of
legal solution as proposed by the reformers. The so-called neo-ijtihad, as identified by Coulson, was the attempt by the early
reformers to introduce the reform. This kind of ijtihad is different from the above ijtihad tanzili, as it proposes to offer fresh interpretation of
the texts differently from the understanding of mazhab even the view that was
confirmed through consensus of the scholars (ijma‘ mujtahidin).
7. The impetus for
such a brave proposals from the reformers was an attempt to reconcile the
provisions of the Shariah with modern demands of the state and society. The Middle
Eastern countries affected by modern political, educational, economic and
cultural system and influence mainly through diplomatic ties, trades and later
on western political colonialization of the Muslim lands, seek to develop their
countries according to western/modern standards. This planning received support
from the progressive Muslim intelligentsia including reformist scholars on the
argument that the downfall of Muslim political and economic that was then affecting
the Muslim community and state was the result of refusing reasoning and
scientific advancement in learning and knowledge.
8. Mohammad Hashim
Kamali observes that although ijtihad
has been articulated strongly as the way forward to reclaim the Muslim’s loss,
later development shown no attempt has been made to actually operationalize or
apply it in reality. Apart from few examples in Algeria, Egypt, Pakistan and
India, the remaining Shariah law reform was basically done by employing broad
principles of traditional jurisprudence especially from the Maliki mazhab, in
particular the principle of Maqasid
and to certain extend reference to scholars that advocated the use of basic
nesseccity (daruriyyah) public
interest (maslahah) in law such as
Juwayni, Ghazali, Izz al-Din and Ibn al-Qayyim. Likewise the strict application
of qiyas, such as formulated by Amidi
and Suyuti, was abandoned to the preference to a more broad use of qiyas of the Malikis.
9. Indeed, the
renewal of the Shariah in the Muslim lands, if this can be accepted, started
from the introduction of system of government through the introduction of
state’s constitution which follows the constitution patterned through the
France and American’s model on separation of powers, people’s liberty,
democratic process of government etc. We saw the first parliament established
in Ottoman Empire and Iran. The rest of the Middle Eastern countries and
Pakistan follow suit except Saudi Arabia (despite this in the seventies joined
the UN). The Muslim scholars either in the al-Azhar including those of the
Shiites in Iran and the Muslim Brotherhood or Ikhwan considered the democratic
setting up of the government as Islamic and the constitutions many these
countries adopted Islam as state religion and Arabic or other native tongue as
national language (although some of these countries because of the cold war
inclined towards socialist system). Perhaps the most radical change in this
respect was the Republic of Turkey who abolished the Caliphate, but despite
this was not opposed politically by Said Nursi, the spiritual leader of Turkish
Risalah al-Nur. The rest of the scholar of the Muslim world issued a fatwa
prohibiting the abolishment and this fatwa later on was forgotten.
10. Similarly, the
economic system of many of the Middle Eastern countries was transformed into
open free market economy with the adaptation of the western banking system
based on interest. Surprisingly, the first countries to open such a bank was
Ottoman and Iran while these two empire and dynasty were considered as Islamic
state at least theoretically. The use of interest in banking system was subject
to many debates in the Middle East. It was not universally prohibited by the
ulama in the Ottoma and Iran. Similarly, on the introduction of commercial
insurance. We saw in Ottoman and Egypt, papers and articles were published to
support the use of interest in banking system and the use of insurance in
business by scholars like initially by Abduh and Rida, and later vehemently by Ibrahim
Zaki Badawi and Abd Razzaq al-Sanhuri. Later
on, in the modern times scholars like Khafif, Zarqa’, Duwalibi, Tantawi and
others.
11. Certainly, the
idea of interest in the banking/finance system was not accepted by many other
scholars whose opposed of the using broad maslahah in the law which led
partially into allowing bank’s interest. Scholars like Ramadan al-Buti wrote a
thesis limiting the use of maslahah and his view was accepted generally
on the parameters how to deal with maslahah in a particular given case. Similarly,
before him on the meaning of riba where bank’s interest was declared as
a kind of riba and therefore as unlawful and non-permissible by Abu
Zahrah and other handful of al-Azhar’s scholars. The Muslim Brotherhood or
Ikhwan, especially by writers like Mawdudi and Qaradawi, denounced bank’s interest
as riba and part of the western capitalist system with Zionist conspiracy
attempting to dominate the world economy. Because the issue of bank’s interest
has a close relation and similarities with prohibition of riba in the
Quran and Hadith, compounding by the failure of Muslim elites and political
leaders to bring stability and prosperity to the state and Islamic awareness of
self-rediscovery of Muslim identity especially by young Muslim professionals,
the view the bank’s interest is prohibited riba was accepted and now
became the basis and raison d’etat of the modern Islamic banking/financial
system.
12. Renewal or
reform (and for this matter redesigning) of Shariah also happened in other
areas of Muslim lives particularly in education. The traditional system of
Islamic education in theology, law and language was transformed following the
changes in career profession in the modern Muslim states. Modern subjects such
as science, engineering, medicine, technology, mathematics as well as social
sciences subjects such as western law, economics, accountancy, literature, philosophy,
foreign language primarily France and English have been introduced and at the
end have diluted and weakened the dominance of traditional Islamic subject both
in the content, pedagogy and institution. The result of these reforms in
education have made Islamic studies graduates find themselves out the prospect of
job careers and prestige which they once held high in the past.
13. Education and
literature primarily that of a free press and publication of novels have
resulted in the resurgence of awareness among Muslim public. Together with it came
the ideas of progress including that of western influence. Initially the debate
on the equal rights of women and their fair treatment. Many views of the
traditional laws on women were considered male biased and even discriminatory.
Examples that normally quoted were the absolute rights of husband to divorce
his wife through talaq, the rights of husband to enter polygamous marriage,
underage marriage, the rights of father to enter forced marriage of his female
ward and so on. Because of this the Muslim political elites wanted to introduce
some reform so that the Muslim family may suit the modern world. Laws were
introduced to curtail or even sometimes abolished the rights of husband talaq
and entering additional marriage such as in Tunisia. Some of these reforms have
reached other eastern Muslim lands such as Indonesia and Malaysia in the
eighties.
14. The same issue
faced in the area of property law, normally succession and land (particularly
wakaf). The ideas of traditional law of male dominance and perpetuation of private
property in the hands of private individuals and family in these areas of law
were reformed through legislation in making them compatible with modern ideas
of succession and property which is to serve the benefit of immediate family
members and public. Thus as example a wife has full right of her late husband’s
estate under the doctrine of radd in case the husband has no male
relatives and the state will only receive the deceased’s estate in case of es
cheat. Wakaf of property for individual purposes (waqf dhurri or ahli)
is prohibited and for those with welfare purposes (waqf khayri) is
limited to 60 years or two generations. In Egypt most of the private wakaf was
nationalized but this policy was more on the idea of socialist economy that
dominated the political regime at that time than a pure Islamic law reform. But
the most intriguing reform in the law of succession was the allowance and
execution to bequeath to one’s legal heirs up to one third of the estate which
is in fact a direct opposition to the traditional law. This reform is clear
attempt to protect the interest of the immediate family members as it is in the
case of modern law of succession.
15. Some of the reform
in Muslim family affairs were through administrative policy of the state,
especially in curbing abuse of marriage and false claims of marriage, bequest
and wakaf. Thus the requirement that every marriage should be registered and
registration is only allowed if the applicants fulfilled certain conditions
namely the bride and groom are not a minor. The consequence of non-registration
was that no application/petition of maintenance or divorce or succession is
allowed making the parties have no legal recourse to the courts and thus
achieving the objective of discouraging child marriages. In respect of bequest
and wakaf, it was declared that no court of laws will entertain the claim of
bequest and wakaf unless it was made through documentary instruments endorsed
by public notary. This administrative requirement made verbal wakaf and bequest
as a matter of the past.
16. It is noted by
now that the motivation behind of these transformations had been influenced and
aspired of having and building a modern, prosper and stable society and state
which is equal or even better than in the West. Some these reforms were outright
and blunt as in case of Turkey where Islamic law including that of family law,
except in the case of public wakaf, were categorically abolished. However in
the rest of the Muslim worlds these reforms are designed with the support from
Islamic jurisprudence. I have shown the use of talfiq, hiyal, siyasah
(as in the case of marriage registration) and occasionally fresh ijtihad
(in case of abolishment of husband’s right of talaq) in these reforms. It is to
say that although the reforms might have abandoned the view of traditional
mazhab, but the justification for the reform is within the tradition of Islamic
jurisprudence based on the overall and over-arching principle of Maqasid
and Maslahah.
17. The challenge
of modernity and ideas of human liberty and freedom continue to challenge the Muslim
scholars to find solutions. As I have noted above the idea of modern state and
economy has already been adopted by Muslim states and community and to certain
degree in family and personal property. While in the area of Islamic
banking/finance the idea of traditionalists remain strong as result of
oil-money economy of the gulf-states which are traditionally salafi-dominated
stronghold that provide the resources and capital. This also explains on the
lack of progress of Islamic banking/finance in other Middle Eastern countries
especially in Egypt despite being the centre of learning in the Arab world. Aside
this the direction of the modern Islamic banking/finance have shown evidence of
redesigning itself by adapting modern banking practices as financial
intermediaries which concern only in the business of finance that is different
from the original philosophy of Islamic banking of profit and loss sharing
concept. This can be seen in the heavy use of debt financing techniques namely tawarruq
and murabahah in banking and financing and investment products that bear
close similarities with conventional finance and banking.
18. In the post-modern
era emerges new challenges as the result of globalization and technology
advancement especially the internet and social media. As world societies now
become much closer than ever before, the challenges have shifted to issues such
human rights and personal choice. These challenges are far more controversial
because they are in direct collision with fundamental aspect of Islamic
teachings. Issues like freedom of religious choice, pluralism, mixed marriage, the
abolition of capital punishment such as hudud and death sentences, same
sex marriage and many others. And in Malaysia issues such as minor choice of
religion based on guardian’s religion and parentage of illegitimate child are
some of the examples. All these challenges have yet to be addressed properly
and satisfactorily.
19. In the interest
of time and place, I am not able to elaborate these points. However it can be
noted here that the exponents of these seemingly un-islamic ideas of modern
progress and technology advancement are not only using the modern narrative
based on western values and cultures to support their pleas, but also employing
evidence from the Islamic sources to make their point. And the same time is to
outplay and beat the traditional circles arguments by repudiating their legal
methodologies, especially the ijma‘ of the scholars and strict qiyas
as well as restricted use of maslahah and maqasid. Once the
traditional methodologies are declared fallible and even sometimes flawed,
these “progressive ideas” would be declared as having an equal footing with the
traditional mazhab; as an human effort to seek God’s will. Example of this
technique or approach has been used before especially in the context of less
controversial issues such as bequest to one’s legal heir, payment of zakat to
non-Muslim, women’s choice not to cover their hairs etc.
20. The final
analysis of these challenges of recent modern technology is that whether the
current jurisprudential methodologies are equipped to face these challenges.
The answer was given by some modern Muslim thinkers such as Fadzlurrahman and
the early reformists who argued that the understanding of the text and teaching
of Islam must be sought from the context and world view of the Muslim
community. The fallible of the traditional Islam/mazhab according to them was the
perpetuation of the Arab practice of Sunnah or precedence that led into the emergence
of Shariah Law of the Mazhab and later on became doctrinaire. Whether the
proposal suggested by Fadzlurrahman is suitable or not in finding solutions to
the modern and contemporary questions that are dominated by modern technology,
it is up to the contemporary Muslim scholars and students to decide with it or
otherwise. It is clear therefore the way to move forward in Islamic law to face
the challenge of post-modern world and to enter the era of IR4.0 is to redesign
its legal methodologies as envisaged above.
Thank
you
[1] Keynote
Address at 3rd International Conference on Law and Justice, Academy
of Islamic Studies, University Malaya, Kuala Lumpur, Malaysia, 5-7 November
2019.
