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Sharia and Civil Law: Towards a Methodology Of Harmonisation (PART 1)

Feb 11, 2011, 1:36 PM | Article By: MOHAMMAD HASHIM KAMALI

 In this essay I propose a new methodology for the harmonization of Shariah, based mainly on my experience teaching and researching Islamic jurisprudence over the past two decades. This is a new area of research that requires further elaboration and development. Inasmuch as I seek to provide criteria and guidelines for further development, the proposed methodology, of necessity, is open to scrutiny and refinement. The essay is presented in two parts. In Part I, I examine the meaning of harmonization both as a concept and as a method that seeks to bring greater coordination and consonance between the Shariah and civil law. In Part II, I articulate a set of methodology guidelines to simulate further contributions to the subject. The two sections are inter-related and both are concerned with articulating a methodology for the proposed area for research.

Harmonization of Shariah is primarily concerned with the law as it exists, less so with proposing new legislation. Its methodological tools, to be articulated below, are concerned with selection (takhayyur) of the relevant parts of the Shariah and civil law piecing them together (talfiq) with a view to harmonizing them into coherent and unified formulas. Both takhayyur and talfiq are familiar tools of usul al-fiqh which can be subsumed under the wider concept of siyasah shariyyah or Shariah-oriented policy. By using these and other tools and concepts, I seek to advance a perspective on developing fresh avenues of coordination and uniformity between Shariah and civil law. I also discuss ijtihad, fatwa and statutory legislation and the manner in which they can be used in our quest for harmonization of the two fields. The most important theme of this essay, however, is the broader effort to identify real or potential areas in which the goals and purposes of Shariah (maqasid al-Shariah) can be harmonized with those of civil law. My objective is to expound the manner in which the maqasid al-Shariah can be used as instruments of harmonization. Although the current project looks ahead to the future, the methodology proposed here takes account of the past as it seeks to rearrange and coordinate the existing body of Shariah and civil laws within a given perspective and framework. I begin by defining what I mean by harmonization.

I. Harmonization: Defining the Framework

1. In this essay, the term harmonization is used both as a substantive concept and as a method and procedure. The word presumes compatibility and concordance between two substantially different rulings of the Shariah and civil law, as there is no need to harmonize similar or identical positions. The dictionary defines the adjective "harmonious" as "justly proportioned," implying balanced attention to bringing coordination and consonance between two or more divergent and disproportionate positions. The typical dictionary example of "harmony" refers to musical concordance that is brought about "in accordance with the physical relations of sounds or bodies emitting such sounds". Collins Dictionary gives as example of harmonization, "the progressive introduction of norms and standards applicable in the EEC (European Economic Community) countries."

Three points are clear. First, harmonization presumes form the outset the existence of a degree of compatibility between two or more components. Thus, it cannot be applied to laws and concepts that are essentially incompatible. Second, harmonization applied both to physical objects, such as placing certain objects in a state of harmony with one another, and to abstract ideas, sounds and relationships, without, however, attempting to introduce new changes on either side. It is this latter sense of harmonization that is of greatest interest to us. Third, harmonization is an attempt to change the relationship between two or more objects, rules or ideas so as to bring them into a state of compatibility; it may also result in the introduction of new rules, norms and standards, as in the case of EEC, which seek to develop coordination and agreement.

2. The concept of Islamicization has been the subject of scholarly attention since the early 1970s. Harmonization differs from Islamicization, and it is therefore a new concept, at least in the context proposed here. "Islamicization of knowledge" has been viewed, especially by its non-Muslim critics, with circumspection, even suspicion, both with regard to the concept itself and its subject matter. For many commentators, Islamicization is a unilateral proposition and is therefore unacceptable. Islamicization of knowledge is basically a response to the pre-eminence of science and scientific reason, which precludes religious and metaphysical knowledge from is scope. Islamicization of knowledge seeks to rectify this by its inclusive approach to the metaphysical dimension of knowledge. With reference to subject matter, "Islamicization of knowledge" is too broad, lacking specificity and focus. Some Muslim scholars also have begun to use the alternative expression, "the Islamicization of the social sciences". Even with this adjustment, however, the concept is not devoid of weakness and critics have continued to question its basic premises, feasibility, and focus. 

The concept of harmonization should not evoke the same criticism that has been leveled at the "Islamicization of knowledge". The basic strength of the concept lies in its openness to reciprocity and compromise. Compared to Islamicization, harmonization of Shariah and civil law is theme-specific and better define in its purpose. Harmonization conveys the awareness that knowledge, whether knowledge in general, or knowledge of Shariah and civil law, is a cumulative and shared achievement of mankind. Harmonization thus seems to hold a better prospect of general acceptance as it is inherently inclusive and open to cross-fertilization of ideas.

If the Islamicization of knowledge seeks to integrate the metaphysical dimension of knowledge and the overriding authority of divine revelation, then this goal is already a component part of our conception of harmonization-minus perhaps the word islamiization, which in my view, is not particularly well-chose. Harmonization differs; however, form Islamicization because of its openness to reciprocity and exchange in the quest to establish harmony between two different legal rulings or legal traditions.

3. We use 'civil law' in the sense of positive law, i.e., the applied body of rules, ratified by the people's representation assemblies, away from the exclusive domination of charismatic monarchs who for much of history virtually dictated the law. Civil law is grounded in rationality and it is objectively enforced by the rational judgments of competent tribunals. Judges are the executors of this law and have themselves no claim to represent the charismatic authority of powerful individuals. Civil law is mainly a product of developments in 18th and 19th century Europe.

Civil law, which is based on Roman law, encompasses private rights and claims between individuals as opposed to criminal law and offences against the state. After the fall of the Roman Empire, the customs of the ruling tribes developed into customary law throughout most of continental Europe. Roman law was rediscovered in the 12th century and European jurists began to codify the existing legal systems, with additions from Roman law. The Corpus Juris Civil of Justinian I (6th century) played a special role in the evolution of these legal systems. The development of civil law was further enhanced by the Code Napoleon (1804), which gave France a unified national code. Other counties followed the France lead, both elsewhere on the continent and in Latin America. The France civil law tradition maintains that the elected legislature is the decisive arm of public opinion and should be the sole law-making authority in the land. Judicial decisions flow from this law, emanating from judges guided by the legal text, rationality and logic, not by the influence and authority of powerful rulers.

Muslim thinkers have found considerable common ground with the basic notions of civil law. Although the Shariah is admittedly grounded in the authority of both revelation and reason (wahy and 'aql), the notions of objectivity, rule of law, and impartial enforcement of the law by a competent court are also ingrained in the Shariah.

To be continued