Sharia and Civil Law: towards a methodology of harmonisation (PART 6)

The head of state or parliament may set up a council of experts in both the Shariah and civil law, within or outside the parliament, to consider the need for ijtihad, or any proposal concerning it, that are deemed conducive to harmonization. The Minister of Justice or some such responsible official may scrutinize the Harmonization Council's proposal and submit it to Parliament. The proposed amendment, or new legislation, can utilize any of the formulas discussed above, including takhayyur, talfiq, istihsan, and siyasah, or attempt a novel interpretation of the text that seek advice from academics, jurists, practicing lawyers, research bodies and institutions, as deemed necessary for the advancement of its work. The Harmonization Council may work as a parliamentary standing committee that is accorded considerable antinomy in the conduct of its affairs. The Harmonization Council is not a substitute for Parliament, and all of its proposed additions and amendments must therefore follow normal legislative procedures. The Council adopts decisions and legislative proposals that contemplate public welfare and partake in Shariah-based fatwa and ijtihad. The Council may perform these functions and make the practice of collective and consultative ijtihad a part of its commitments.

It is not anticipated that harmonization of the Shariah and civil law will necessitate a great deal of novel interpretation and ijtihad, for the prevailing legal status quo on both sides is taken as the basic framework for harmonization. If an attempt at harmonization offers prospects of greater coordination and uniformity in the law for the benefit of the people, it may be taken up on merit; otherwise it presumably will not be pursued.

One other ijtihad-related scenario may be mentioned here. If the existing fiqh rules are themselves deemed to be in need of adjustment and improvement, one may need to secure the correct position first and then attempt to harmonize it-if harmonization remains a viable option. As pointed out by Imad al-Din Khalil, a contemporary writer on Islamicization of knowledge, “there are lager numbers of alien materials which have infiltrated the Quranic sciences, the fiqh analyses of problems, and changes were brought by time in the fields of fiqh and legislation… not based on methodology but determined by personal taste. When this is ascertained to be the case, Khalil adds, the researcher may discard the doubtful material or rule that does not make a positive contribution and that may well relive him of a considerable part of his investigative burden.

Al-Qaradawi has noted that during the period of stagnation and taqlid (c.1000-1900 CE), fiqh became preoccupied with issues such as ritual ablutions, menstruation, lochia, fosterage, marriage and divorce, but ignored larger issues such as the ummah, its standing in the world community and its mission. He adds that the situation has not changed greatly in our own times. We may add here Muhammad al-Ghazali's observation that "relations between Muslim states and the wider international community are founded on pure human fraternity (al-ikha' al-insani al-mujjarrad). Muslims may only propagate da’wah (summons to the faith) based on evidence and reason that is not tainted by harboring ill-feeling ..." This message differs from some medieval scholastic fiqh positions that were influenced by the then prevailing patterns of international relations. One can add here some of the fiqh rules regarding the position of women in the family. As noted earlier, modern family law reform has to some extent ameliorated the situation of women and brought balance and perspective that is in greater harmony with the Quranic principles of justice. The point is that not all of the fiqh rules that are founded on speculative ijtihad can be taken at face-value.ss

20. Goals and objectives (Maqasid) of Shariah: As noted, maqasid al-Shariah offer a comprehensive reading of Islam and its Shariah that is particularly meaningful to harmonizing the Shariah with statutory law and the realities of social change. The traditional methodology of ijtihad as outlined in usul al-fiqh is beset with problems due to the burdensome techniques developed in the post-classical periods, which may have been suited to their time but which do not encourage legal reconstruction during period’s rapid social change. Whether one speaks of ijtihad in the form of qiyas (analogical reasoning) or of istihsan (juristic preference), or of legislation by general consensus (ijma), these doctrines are ill-equipped for modern legislative processes. When these doctrines are compared with the more open approaches of maqasid, the usul methodology of ijtihad may present initial difficulties that harmonization by itself cannot be expected to resolve. This, I submit, is why the maqasid al-Shariah, which encourages greater flexibility in ijtihad, is likely to offer a better prospect for harmonization of the Shariah and civil law.

Muhammad Rashid Rida (d.1935) emphasized the need of inform legislation and ijtihad with the spirit of the Shariah and its goals and purpose. Many people know what is lawful ad what is unlawful but they do not always know the underlying rationale and purpose of these rules. To act on a law, it is necessary to understand its reason and purpose and the interests they serve. Knowledge of the hikmah (wisdom, philosophy) and maqasid of Shariah and the insight they covey will contribute to the development of a more progressive fiqh. Rida stressed the importance of maintaining harmony and coordination between the ruling (hukm) of the law, and its goal and objective. When a gap develops between the law and its objective, the law loses is versatility, and rigidity is likely to set in.

The chief exponent of the maqasid, Abu Ishaq Ibrahim al-Shatibi (d. 790/1370), and more recently, Tahir Ibn Ashur (d. 1393/1925), have both emphasized that the jurist must have adequate understanding of the purposes of Shariah to avoid error in ijtihad ad to be sure that he avoids a mechanical approach to ijtihad. The fiqh rules may sometimes need to be reviewed in the light of the maqasid. For example, zakah is a duty under the Shariah, but the manner in which it is collected is subject to change. If one insists on levying the zakah on cereals such as wheat and barley in kind, especially in big cities, rather than allowing payment in monetary equivalents, the result will not be useful to its recipients and many even run contrary to its objective, which is to satisfy the needs of the poor in the best way possible.  

Maqasid al-Shariah emerged at a later stage (around the 8th/14th century) in the development of Islamic juristic thought. The earlier usul jurists refer to the knowledge of the maqasid as a complement to attaining qualification to the rank of mujtahid. Some have even subsumed the maqasid under the illah (effective cause) of analogy (qiyas), or else referred to the maqasid in their detailed discussions on custom and istihsan.

Muslim jurists have identified a scale of priorities for the maqasid which helps to ascertain their relative weigh and importance. Maqasid have been classified into three categories. The first category is that of the necessities (daruriyat) that every society needs to maintain as a matter of absolute priority. Muslim jurists have identified preservation and protection of the first values of faith, life, family, intellect and property. These are the recognized goals and purposes of Shariah, and all lawful measures that protect and promote them are by definition in harmony with the Shariah, even if no detailed ruling can be found in the existing Shariah. The second category, complimentary needs (hajiyat), supports and supplements the daruriyat. The third category, desirability (tahsiniyat), includes those things that bring beauty and elegance, and, although not essential in them, promote better ways and means of securing the higher categories of the maqasid.

Beginnings with Imam al-Haramyn al-Juwayni and his disciple al-Ghazali (d. 505/1111), Muslim jurists have identified the first above-mentioned values as the primary maqasid. Later Shihab al-Din al-Qarafi (d.684/1283) and the Taqi al-Din Ibn Taymiyyah (d.728/1328) tried to extend the range of maqasid and suggested that the essential maqasid are an open chapter that may include other values, such as human dignity and freedom and honoring one's contractual obligations. In modern times, one might add Research and Development and the idea of a welfare state. Modern Islamic thinking on the maqasid seems to favor this more open approach, which helps to make the maqasid more relevant to changing social needs across time and space.   

The question of how the maqasid may be identified in such a way as to avoid arbitrariness has been only partially answered by the earlier jurists. It is generally maintained that the nusus of the Quran and Sunnah provide a firm basis for identification of the maqasid. To this al-Shatibi added that the maqasid also can be identified through inductive reasoning (istiqra), i.e. by drawing general conclusions from the detailed observation of numerous incidents. A wide range of values can thus be identified from a general reading of Quran and Sunnah, even if on clear text can be found in these sources that declares them as such. This would enable identification of maqasid, outside the specified five, through one’s general knowledge of the values that are upheld in the sources.

To be continued