Nature of Islamic Law and Practice
Unlike common law, Islamic Law is a jurist-made law and not a judge-made law. Muslims place their unwavering trust in their jurists; so much so that the verdicts issued by them (i.e.
the fatwas) carry for them much more weight than the highest court ofjustice in the country. It is so because there is no doctrine of judicial precedent in Islamic jurisprudence and all human element in the fabric of Islamic Law is jurist made, and not judge made. The tradition of having faith in the Islamic jurists for interpretation of complex laws revealed in the Holy Quran or the hadiths dates back to2 the times of Prophet Muhammad (PBUH) and is well documented in the Holy Scripture. In fact, ijma, which calls for consensus (amongst jurists) when no clear conclusion is derived from the Quran, Sunnah and Qiyas, which is analogical reasoning where a conclusion is derived through a process of deduction by comparing it with a particular situation in the past, are the sole domain of Islamic jurists. Ijtihad is a tool of law reform that can only be performed by Islamic jurists known as mujtahid, who must possess certain essential qualifications. The importance of the views, opinions and thoughts ofjurists in any given time in Muslim society, which has helped tremendously in shaping the Islamic legal history and in the evolution of the Islamic Law is quite evident when we go through the Islamic jurisprudence prevalent in Islamic countries around the world. The present form of Muslim Personal Law in contemporary Egypt, for instance, owes its origin and existence to juristic thought of Muhammad Abdu Rashid Rida and other luminaries ofJami-al-Azhar in Cairo. Muhammad Abdu left a deep impact on the modern movement in Egypt as also in other parts of the Muslim world. His basic contribution is the rejection of blind imitation ‘taqlid ’ and pleading for ‘ijtihad ’.He says3:
How far those who believe in taqlid are from the guidance of Holy Quran!. It propounds its laws in a way that prepares us to use reason and makes us people of insight.... It forbids us to submit to taqlid.
Anderson describes the jurists of Egypt in the following words4
Meanwhile, the reformers were equally, or even more active in Egypt where Qasim Amin published his book ‘The liberation of Women' around the turn of the century and where the dominant figure of Mohd. Abdu was at the forefront of the champions of progress.
Similarly outside Egypt, Sheikh Ali Tantavi in Syria, Sheikh Muhammad Juaitin Tunisia and other jurists in other Islamic countries have been the architects of the modern personal law in their respective countries. India, too, has had its share of Muslim jurists of international repute. Some of them have played a pivotal role in shaping and influencing the development of Muslim Personal Law in this part of the world and contributed to shaping its destiny. An in-depth study of the published and unpublished works of these jurists reveals a surprisingly rational view on several aspects of Muslim Law. Given proper attention and exposition, this approach can greatly contribute to the solution of many present-day problems of the Muslim Personal Law in this country.
In India, the most significant and indeed a formative period in the recent history ofMuslim Personal Law has been the first half ofthe present century. During this period, many Muslim jurists actively shaped the scope, extent and form of personal law. Mufti Kifayat-ullah, Maulana Hussain Ahmad Madni, Maulana Abdul Hai of Firangi Mahal, Lucknow, Mufti Abdul Aziz, ShibliNumani and Maulana Ashraf Ali Thanvi were prominent figures amongst them. They were profound thinkers, fully conversant with Sharia and they did a lot for the protection and development of Muslim Law in the country.5
Hanafi Law has a Pan-India application, and traditionally has deep roots in its present legal system.
Deviating from it and adopting an alien system (Maliki Law) that is recognized unanimously was not an easy task. But when Maulana Thanvi realized the victimization of the women of his community, eight decades earlier, he launched a movement for the emancipation of women from their undesired husbands and eventually got success. Staying away from politics of law reforms, Maulana did all his work with broad-mindedness in a systematic manner. His effort remains unparalleled to this date. It is only Maulana Thanvi who succeeded in securing important entitlements for Muslim women in this subcontinent for the first time in the form of dissolution of their marriage. In this way, his legacy has been to leave behind a creed of progressive scholars in his arena.Therefore, to say that Islamic Law is rigid and opposed to the scope of development and reform is an incorrect proposition of the highest order. The opposition, if any, is to the methodology of reform adopted by the state and the attendant politics that informs such reformative projects as it aims at bringing about attitudinal and value changes in the Muslim community via coercive means. The politics ofMuslim law reform in postcolonial India is replete with examples demonstrating that the calls for Muslim law reform have sprung from those who themselves have no locus standi in the matter, are non-observers of such a law and often pit human rights against Islam. One example of such an erroneous portrayal of Islamic Law is the general conclusion that Islam relegates women to inferior status and triple talaq, polygamy etc., which are tools used for subjugation of women. This half-truth is spread with venomous debates in the Indian media despite their existing equal rights of divorce for women in the form of talaq-e- tafweed and khula. To illustrate, the decision of the Supreme Court in Shah Bano judgement pertaining to the maintenance of Muslim women and consequently the enactment of The Muslim Women (Protection of Rights on Divorce) Act 1986 reflect a flawed understanding of the ground reality and the true position of law as the Quran itself says to not leave them destitute and to part with graceful departure.6 One reason for such prevalent misunderstanding is that since Maulana Thanvi and other legal luminaries of early twentieth-century India, the country has not witnessed Islamic jurists who can work in conjunction with the state in bringing about clarification pertaining to Islamic Law, dispelling false and malicious notions spread about it and aiding the state in effecting enduring changes in Islamic Law that are in consonance with the spirit of Sharia and with the changing times.
That Islamic Law contains ample scope of reform in itself is evident from the fact that methodology of reform lies in the law itself. Of course one has to be well versed with the laws and principles of Sharia to accomplish the task. Following is the discussion of some major issues which have been long targeted by opponents of Muslim Law as far as human rights of women are concerned.III.
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