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Sharia and Civil Law: Towards a Methodology of Harmonisation (Part 2)

Mar 4, 2011, 12:17 PM | Article By: Mohammad Hashim Kamali

Since harmonization is grounded in reconciliation and compromise, it should be open to piecemeal approaches that will establish partial assonance between Shariah and civil law notwithstanding the existence, in particular case, of basic differences between them. It will be noted, however, that a satisfactory answer to the question can best be determined on a case-by-case basis. There may be instances in which two positions are not in total conflict, in which case the door to harmonization, whether basic or otherwise, remains open. Instances of such harmonization can be found in the family law legislation introduced by many Muslim countries in the second half of the 20th century. The Shariah laws of polygamy and divorce were changed in some respects but retained in others. A level of harmony has thus bee achieved, notwithstanding certain differences in the legal status of husband and wife that exist in the Shariah law of personal status.

9. Harmonization cannot be entertained between two diametrically opposing positions, e.g. the two different positions of Shariah and civil law on banking interest (riba), one prohibitive, the other permissive. One cannot have an Islamic bank that practices riba, or a conventional bank that does not practice interest. To attempt harmonization on this basic position would be unrealistic, which is why there is duality and separation, rather than uniformity and merger, between Islamic banking and conventional banking. Yet we are not taking a dogmatic approach on this subject and we do not say that the two institutions are in conflict in every respect. For, as noted earlier, there are instances of harmony between them in other respects. Note, for example, that al-wadi ah (deposit accounts) or sharikah (partnership) and certain other Shariah-based products that are now available in conventional banks, many of which have opened Islamic banking windows.

Another example of conflict in the area of mu 'amalat, not necessarily related to Islamic banking, is the  notion of caveat emptor in common law and the option of defect (khiyar al- 'ayb) in Shariah law. The former entitles the seller not to declare existing defects in the object of sale to the buyer, whereas the latter denies him that right. Islamic law requires the seller to disclose defects in his goods, even if he is not specifically questioned about them. The two positions are in conflict, although one might imagine some level of compromise between them if one were to look into their basic rationale and objective. Briefly, khiyar al- 'ayb is grounded in considerations of equity and fair dealing and introduces a moral element into the fabric of the law that may not be totally devoid of all subjectivity and doubt.

English common law, on the other hand, attaches greater value to freedom of contract and considerations of clarity, certainty and consistency in the law. English courts have thus sided with positivism, which, in turn, is grounded in the separation of law and morality. It may now be possible, as demonstrated by some court decisions in the United States, Germany and elsewhere, to observe the basic rationale of positivism, certainty and consistency even in decisions that uphold considerations of equity. The two sets of objectives that are upheld in the Shariah and common law, respectively, are not necessarily in conflict.

We noted that the determination of harmony and conflict may sometimes be focused on specific rules and principles, just as, at other times, it may contemplate the basic objective and rationale of those rules. The latter approach is line with the maqasid-oriented approach of the Shariah, as explained below, and both Shariah and common law would seem, in this case, to offer wide prospects for harmonization and compromise.

One of the juristic positions maintained by fiqh scholars is that the clear injunctions of Shariah, particularly in the sphere of prohibitions, are not open to the more philosophically-oriented approaches of maqasid al-Shariah. This would mean, for example, that one cannot open the prohibition of riba to the maqasid debate with a view to harmonizing this position with that of its opposite; with the result that riba would be declared permissible. However, one may advance the argument that interest is conducive to more effective monetary control and advances people's welfare.

Yet in the absence of a clear textual prohibition, rulers that may appear to be in conflict with one another but which share similar goals and objectives can be harmonized at the level of maqasid. Suppose, for example, that two legal rulings propose two different prison terms for the same offence, say two and three years, respectively, and therefore may be said to be in conflict. Yet when judged by their objective--both seek to penalize the offence in question even if they propose different punishments for it--they may also be seen to be in basic harmony it. Similarly, with reference to the scale of five values in Shariah, an act may be classified as reprehensible (makruh) by one madhhab and prohibited (haram) by another: this is clearly a case of conflict. But since both madhhabs share a negative and disproving attitude toward the act in question, the conflict between them may be seen as one of potential harmony.

10. In their discussion of conflict and preference (al-ta 'arud wa'ltarjih), the 'ulama' of usul al-fiqh have not paid much attention to the maqasid al-Shariah and have tended to take a textualist approach to the understanding and interpretation of the Quran and Hadith. They have paid more attention to the linguistic particularities of words and sentences than to their goals and purposes. Although we propose to follow the basic premises of their discourse, as a firm grasp of the language of the text is undoubtedly important, our approach to the evaluation of harmony and conflict differs somewhat form the linguistic approach of the scholars of usul.

One reason why Muslim jurists have paid greater attention to the language of the text is because they operate within the legal framework of Shariah, which, admittedly, is dominated by the divinely revealed text. But when one compares provisions of the civil law with those of Shariah and tries to harmonize them, one is no longer operating within this unitary framework. In this case, one is less concerned with comparing one text with another, and more concerned with basic provisions, ideas and approaches. As a result, one may be inclined to take a broader view of the legal landscape, and in doing so, one may need to pay greater attention to goals and objectives as well as to the language and nuances of the text.

11. In their identification of conflict between two fiqh rulings, Muslim jurists have tended to be expansive, highlighting almost all instances of conflict, including cases of minor discordance, exception (ta'arud) and particularization (takhsis). In their attempt at reconciliation (jam') and preference (tarjih), however, they avoided conflict (ta'arud) and abrogation (naskh) on the assumption that the divine Shariah could not entertain conflicting propositions. On the whole, it was considered preferable to retain both of the two divergent fiqh rulings, or at least one, if not both, and in this way to avoid or minimize the prospects of suspension and abrogation of Shariah injunctions.

Since our task in identifying instances of harmony or discord between Shariah and civil laws consists mainly of ascertaining basic position, ideas and principles, we are not concerned with the technicalities of usul al-fiqh in the areas of conflict and preference (ta'arud wa tarjih), nor with its meticulous details on the general and the particular, the absolute and the qualified ('amm, khass, mutlaq, muqayyqd). As we are not operating exclusively within the Shariah framework, we are mainly concerned with the comparison of rules and principles of modern law with those of Shariah, rather than with the textual analysis of Shariah laws.

12. Harmonization of Shariah and civil law may sometimes pose a question of language and style of presentation, without involving substantive legislation or ijtihad. This may mean presenting a certain aspect of the Shariah in a new way that highlights its commonality and concordance with civil law. It also may mean taking an approach to the exposition of Shariah that seeks to bridge a gap between Shariah provisions and the demands of real life situations, as illustrated below.

With reference to fiqh terminology on weights and measure, for example, the Arabic terms (e.g., sa, wasq, qullah, diyah, dirham, and dinar) found in the fiqh manuals may be converted into their modern equivalents. Technical expressions found in conjunction with zakah (legal alms), especially with regard to the technical Arabic terms used for zakah on different types of livestock, as well as Arabic words used for different age categories of camels, may need to be converted into their modern equivalents-indeed, sometimes into monetary equivalents, if the rules of zakah are to be harmonized with contemporary economic conditions. Simple conversions can help make the fiqh provisions easily comprehensible and, at the same time, highlight, as far as possible, aspects of harmony or equivalence between Shariah and modern laws.

To be continued.