#Article (Archive)

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

Feb 25, 2011, 1:18 PM

One may, in this connection, draw a distinction between the Shariah and figh: whereas the former is grounded mainly in divine revelation, the latter is largely a product of human reason, juristic interpretation and ijtihad. Fiqh is therefore capable of adaptation and, for this reason, more open to the demands of harmonization. Ijtihad is also a rational concept that applies mainly to civil transactions (mu'amalat) to the exclusion of devotional matters ('ibadat), and must therefore be based on proper grounds. The judge is required to expound the evidential bases of his decision in the issuance of judgments and the formulation of ijtihad. The Quranic concepts of ululamr (those in charge of community affairs), consultation (shura) and the related notion of ahl al-shura (those who are capable of giving counsel), and the fiqh concepts of siyasah sha’riyyah (Shariah-compliant policy), faqih and mujtahid also suggest that the laws of Shariah are applied by reasonable and knowledgeable persons who have the capacity to represent the community and the ummah-even if Muslim rulers historically have paid little attention to shura and participatory governance.

4. Harmonization involves a measure of Islamicization in the sense that what is being harmonized with the Shariah is also being made acceptable to Islam. Yet we have chosen to use the word "harmonization" in the title of this essay on the grounds of accuracy and caution: since we are concerned with the Shariah and civil law, the term "Islamicization" in reference to the Shariah would be redundant. Thus, had we called our essay "Islamicization of Shariah and Civil Law," this obviously would be inaccurate. The same may also apply, in part, to the other side of the equation, that is, civil law. To say that one attempts to Islamicize the civil law of a Muslim country such as Malaysia, Jordan or Pakistan, assumes that the civil law of that particular country is un-Islamic. In fact, however, a great deal of the civil and statutory laws of, for example, Malaysia, are in harmony with the Shariah and therefore do not require Islamicization. Moreover, as a discipline and branch of the behavioral sciences, law may require treatment different from that of other social and behavioral sciences. Defined in a positivist sense, as the command of the sovereign, law is normally issued by governments and is subject to close linguistic scrutiny, especially when dealing with sensitive issues. Legislative assemblies in Muslim countries are usually careful not to pass laws that may seem, or be seen as, un-Islamic. Instances of conflict between Shariah and civil law are thus infrequent.

5. As noted, harmonization is open to the mutual impact of both the Shariah and civil law on one another. Certain aspects of civil law can be made Shariah-compliant through amendment, either substantive or procedural, of an existing statute in accordance with normal legislative procedures. It has been suggested, for example, that, under the Pakistan Army Act 1952, the denial of appeal to defendants sentenced by court martial is contrary to Islamic law because the Shariah does in fact validate appellate review of sentences, especially with regard to crimes and penalties that require a high level of scrutiny. To harmonize this statutory ruling with the Shariah would require amending that Act through parliamentary procedures so as to open court martial procedures to appellate review.

Certain aspects of the Shariah in the sphere of civil transactions (mu'amalat) may be amended and harmonized with the constitution and other laws through a variety of methods, including ijtihad and statutory legislation (see below). Any gap between a ruling of fiqh and prevailing social reality may call for fresh ijtihad, both for its own sake and in the interest of developing greater harmony between Shariah and civil law. This is in line with the well-known Islamic legal maxim that fatwa rulings and ijtihad may change in accordance with changing times and circumstances: "it is undeniable that legal rules change with the change of times- al yunkaru taghyir al-ahkam bi-taghyir al-azman". Many of the mid-20th centuries family law reforms in the Middle East and elsewhere, introduced by statutory legislation, were instances of harmonization of Shariah and civil law. Some of these reform measures entailed the amendment of e.g. the laws of polygamy and divorce with a view to bringing them into harmony with the broader objectives of justice in Islam, the principle of equality under the constitution, as well as concern for the well-being of the family. Since the Shariah and civil law both advocate these objectives, the harmonization of these two bodies of law is clearly a feasible proposition.

The closing decades of 20th century witnessed a revival and adjustment of certain aspects of Islamic commercial law in relationship to Islamic banking and finance. Here we have seen a mixed development of harmonization of Shariah and civil law, whereby many statutory law provisions were brought into harmony with the Shariah. Certain aspects of the Shariah laws of partnership (e.g. sharikah, mudarabah) and finance (e.g. murabahah, ijarah) have been subjected to new procedures for the purpose of better management of transactions in Islamic banks and financial institutions. This process of harmonization through adjustment and reform in both Shariah and civil law is still operating through e.g. the introduction of new products and procedures in Islamic banks that seek to promote harmony in the financial system, especially with reference to the laws and procedures of Islamic banks and conventional banks.

One is temped to say that there is more harmony that discord between the two sectors of banking, due to the unmistakable similarity between many of the transactions and products that are practiced in both sectors. The central bank in most Muslim countries continues to supervise both conventional and Islamic banking operations, and there is a persistent concern to develop common standards and procedures in all banks, despite the recognition of basic differences between Islamic and conventional sectors.  The desire to develop common standards also favors the prospects of harmony between the applied laws and procedures of the two banking systems.

6. In the areas of dogma and rituals ('aqidah and ibadat) certain aspects of the Shariah are outside the scope of harmonization, because they stand outside the scope of statutory legislation and ijtihad. Harmonization of Shariah and civil law is concerned, in the initial stages, with civil transactions (mu'amalat), commercial law and finance, areas in which fresh interpretation, legislation and ijtihad are feasible and hold prospects of beneficial adjustments that can stimulate socio-economic development.

Notwithstanding the fact that changes have occurred in other areas of the law, such as family law, constitutional law, Islamic education (including the introduction of Islamic universities), commercial law and finance have attracted by far the greatest attention in recent decades.

When many Muslim countries of the Middle East and Asia introduced Islamic Family law reform in the 1950s and 60s, no one, it seems, spoke of either Islamicization or harmonization, although some of the laws that were introduced fit the description of both. However, it appears that most of the reforms in the areas of marriage, divorce and inheritance were in the direction of harmonization of Shariah with civil law principles rather than Islamicization as such. Thus it appears that harmonization of Shariah and civil law is not new to our experience, even though the word was not commonly used. Many commentators regarded those reforms as interpretations of the relevant texts of the Quran. The mid 20th century law reforms revisited the Islamic sources, especially the Quran, and introduced fresh interpretations through the modality of statutory legislation.         

7. In our discussion of the methodology of harmonization, we propose to utilize as tools certain aspects of the methodology of usul al-figh, albeit with adjustments (see below). Many verses of the Quran may need to be re-interpreted in the light of developments in the market place and in science and technology, and of new patterns of relations among nations, civil society groups and multinational institutions. We propose to include statutory legislation that is in harmony with the goals and objectives of Shariah (maqasid al-Shariah) in our methodology for harmonization, even though the legal theory of the sources of Shariah, the usul al-fiqh, and its methodology, do not, in fact, envisage statutory legislation.          

8. harmonization can be perceived either as a dogmatic and totalitarian activity that demands total harmony between its various components, or as an activity that admits of partial steps toward reaching an adequate level of concordance and coordination between aspects of Shariah and civil law.

To be continued