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Sharia and Civil Law: towards a methodology of harmonisation (PART 3)

Mar 11, 2011, 12:39 PM | Article By: MOHAMMAD HASHIM KAMALI

The language of the law and the way it is expounded and articulated can also help bridge a gap between fiqh and modern law. Writers/researchers should make an effort to avoid using obsolete aspects and formulations of fiqh and to focus instead on those aspects that are more relevant to people's needs. When discussing the fiqh rules on partnership, for example, one should try to relate them to contemporary commercial practices, instead of indulging in lengthy analyses of forms of partnership that are obsolete or no longer in vogue. By being selective and relevant and speaking the language of the day, one may help to highlight the common features of Shariah and contemporary law.

13. According to one commentator, Islamicization is a "response to Western political and economic domination and seeks to gloss over the weakness of contemporary Muslims vis-à-vis the onslaughts of modernity..." Harmonization is not grounded in such an attitude. The two major components of harmonization that are under discussion here are Shariah and civil law, the latter consisting mainly of the applied laws and statutes of Muslim counties that have been duly ratified by their legislative assemblies. The process envisioned here is not to civilianize the one or it Islamicize the other, but to harmonize the two, whenever such an effort offers an opportunity to unify and integrate the laws of a particular Muslim country. The basic goal of harmonization is to integrate the discordant laws within a given legal system and to overcome the entrenched problem of duality between Shariah and civil law that persists in the existing laws of these countries.         

Different areas of the law pose different challenges. In Muslim countries, family law is, broadly speaking, Shariah-oriented and has only partially been amended and reformed so as to bring it into harmony with constitutional principles and some of the values of democracy and human rights. In many Muslim countries additional civil law principles have been adopted into a basically Shariah-dominated sphere of personal status. Registration formalities pertaining to marriage and divorce are instances of the positivist demands of civil law that have been adopted by the majority of present-day Muslim countries. On the other hand, in most Muslim countries, other areas of the law, such as commercial law and criminal law, have undergone changes that embody the wholesale introduction of European commercial and criminal procedure codes, which still dominate. Only in recent decades has the Islamic law of commerce (mu'amalat) begun to make inroads in a field dominated by civil law to Western origin. The wholesale adoption of European commercial codes was, to a large extent, a legacy of colonialism, and the law in these areas may require revision so as o bring it into harmony with the Shariah.

In the commercial sphere attempts to harmonize Shariah and civil law may initially entail identification of areas of harmony and conflict between them. Wherever harmony obtains, no further action will be needed. But instances of conflict also need to be identified and assessed. If the conflict is total and leaves no room for any harmonization, two possibilities can be envisioned: one is to leave matters as they are and accept the duality, as in the case of Islamic banking and conventional banking, both of which co-exist; the other is to push for fundamental changes, as in Sudan, Iran and Pakistan, where a uniform system of Islamic banking has been introduced. An attempt to harmonize instances of conflict may be feasible in situations of partial conflict and in case where the existing rulers, even if different in their specific formulations, are reconcilable in their broader goals and objectives.

II. Methodology of Harmonization

14. Two points need to be made at the outset. First, methodology often consists of a measure of generalization in the interest of developing uniformity and standardization. In the social sciences and humanities, methodology is not expected to lay down fixed laws and formulas. Social science methodology often consists of inductive generalizations that do not apply to all possible instances that fall within their ambit. A legal method is not, in other words, a scientific formula that can be applied universally, but rather a broad guideline that may or may not be inclusive of all of its possible applications.

Second, no methodology operates in vacuum, nor is it expected to be devoid of objective and purpose. A methodology that is concerned with revealed law and text will differ from one that contemplates juristic opinion and man-made legislation. As noted, in their formulation of the methodology of legal reasoning (usul al-figh), Muslim jurists were guided by certain objectives, such as their unquestioning reverence for the revealed text. Thus, they were inclined to preserve, as far as possible, rather that strike out and reject, one or both of a given pair of conflicting texts of Quran and hadith. We follow their lead. We too are concerned with Shariah texts, and our goal is to bring Shariah and civil laws closer together rather than to focus on their differences. In the event that one can identify common grounds and objectives between two seemingly discordant positions, one can either attempt to minimize their differences or take the opposite route of maximizing them. We propose to take former approach, without, however, overlooking or disguising instances of genuine disharmony and conflict. The basic purpose and guideline is to realize the maslahah (benefit) ad welfare of the people and bring the Shariah closer to the realities of law and government in Muslim societies.

15. The methodology of harmonization proposed here differs from Islamicization with respect to the information that is acceptable or unacceptable to the two concepts. The Islamicization of knowledge, as depicted in the formulations of its proponents, for example, those of the Virginia-based International Institute of Islamic Thought, marks a total departure form the traditional Shariah methodology of usul al-figh and ijtihad. In an article entitled "Methodological Issues in Islamic Jurisprudences, noting that the tools of usul al-fiqh do not have to be totally discarded."

In my view, proponents of the Islamicization of knowledge have not offered a well-defined methodology and they often concern themselves with general themes that lack focus. Abu Sulayman has proposed an engagement with two readings, one of the texts, the other of social reality: reading the Book of God, and reading the creation of God (qira atayn: qira at al-wahy wa qira'at al-kawn). The suggestion is that Islamicization of knowledge should not be a text-bound reading that tends to narrow the scope of interpretation. Abu Sulayman has engaged in extensive criticism of Western methods that tend to exclude aspects of reality that are not reducible to scientific enquiry and observation. Metaphysical reality, religious knowledge, and revealed knowledge are thus excludes from the scope of "scientific" knowledge. It is here that the secularist approaches come into conflict with the Islamic worldview. Western methods have been criticized but the literature on Islamicization of knowledge has not offered a well-defined methodology of its own. Moreover, the claim to originality and independence from the rich resources of usul al-fiqh made by the advocates of Islamicization is questionable. By contrast, the present attempt to suggest a tentative methodology for harmonization draws on the existing data of usul al-fiqh, insofar as they are found to be relevant and useful. Thus we shall utilize the usul formulas such as selection (takhayyur), piecing together (talfliq), Shariah-oriented policy (siyasah shar'iyyah), goal and objectives of Shariah (maqasid al-shari'ah), as well as fatwa, istihsan, and ijtihad.  

However, we shall adopt only those aspects of these methods and procedures that we find useful. As for the precise content of harmonization, in particular cases we propose to rely not only on the resources of fiqh and usul al-fiqh but also those of statutory legislation. By including statutory legislation in our methodology of harmonization, we introduce a new dimension to both takhayyur and talfiq. I shall presently turn to a brief discussion of these methods and explain how we propose to use them as our tools for harmonization, and where we may be able to introduce a new dimension or addition to one or the other of the methods under review. We shall also include "graduality" (tadarruj) in our proposed methodology. This is in line with pragmatic fiqh principle of implementing that which is easy to implement (tatbiq ma tayassara) of both the Shariah and civil law.

To be continued