A Way Forward Reforms

Till now it is well understood that Islamic Law contains ample scope for reform in itself which is evident from the fact that methodology of reform lies in the law itself. Professor Baxi, being a fervent advocate of human rights, has perceived the miserable position of women and the efforts to rid them of that situation.

To start with, besides the age-old process of ijma (consensus of jurists), qiyas (analogical deduction of rules), siyasashariyah (the principle via which the state can abandon a principle of the traditional law not by express suppression but by directing its courts that they shall not entertain cases based on such a principle and in course of time such a principle becomes obsolete) and ijtihad (evolving new legal principles on the basis of the old ones), methodology of reform now also includes new techniques like takhayyur (eclectic choice between the corre­sponding legal principles of the various schools of Islamic Law; enforcement of one of the conflicting solutions provided by various jurists in controversial cases, in supersession of all other solutions; and preference of an absolute or lesser- known legal opinion over generally accepted principle). Talfeeq (evolution of a new legal rule by harmonizing two conflicting juristic views) is one of the oft- used tools to carry out the reform. This methodology is generally adopted by the Islamic jurists in the development and reform of Muslim Personal Law in several Muslim countries. The doctrine of takhhayyur was applied in India a century ago by Indian Muslim jurists in order to emancipate Muslim women from their undesirable husbands.

In addition to the preceding methodologies, Prof Baxi also drew attention to the emergence of a new discourse on fiqh al-aqalliyyat in western liberal, secular and democratic polities.

Prof Baxi further says³²:

Islam as anti-rational and pre-modern as compared with any other major religion of the world is a sinister propaganda. It is possible to say with con­siderable confidence that Islam gave a much larger role to reason than some established world religions (say Judaism).

Referring to Mr Rodinson, Prof Baxi further states that:

Islam may support fundamental social change or contain it depending on the overall configuration of forces and relations of production. In this regard he referred a very thoughtful work, Rodinson’s book on Islam and capitalism.³³

Unfortunately, today the Indian Muslims have been suffering from the absence of real jurists unlike their predecessors. If our ulemahad applied the correct posi­tion of the law, then that would be in conformity with gender justice and those who question the Muslim Law in the name of Constitution and gender equality would have been satiated.

VII.