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

Apr 8, 2011, 3:37 PM | Article By: MOHAMMAD HASHIM KAMALI

Maqasid that relate clearly to daruriyat may be regarded as definitive (qati). Those that are identified by induction (istiqra') from that clear nusus may be added to this category. As for maqasid that cannot be included in either of these two categories, they may still be treated as definitive if there is a general consensus or clear legislation in their support. Additional maqasid that fall outside this range may be classified as speculative (zanni) and they remain in this category until they are elevated to the rank of "definitive" through consensus or legislation. In the event of a clash between definitive maqasid and speculative maqasid, the former will take priority over the latter. Among the definitive maqasid, those which preserve faith and life take priority over the other three, followed by protection of the family, and then by intellect and property. A similar order of priority applies to the essential maqasid, those deemed complementary, and those classified as desirability's (tahsiniyat).

Clearly, harmonization of Shariah and civil law can draw inspiration and support from the goals and objectives of Islam: harmonization will be worthwhile and desirable if it serves any of the valid objectives Shariah in the categories of daruriya, hajiyat, or values that are identified through inductive reasoning and ijtihad.     

There remains the question of how arbitrariness can be avoided in the identification of maqasid, which, like benefits (masalih), are open-ended. Methodological guidelines are needed to ensure unwarranted indulgence in personal or partisan bias. The skill and assistance of our proposed Harmonization Council may be utilized in this context. It certainly would be reassuring to secure the advice and approval of a learned council about a particular maqsad (singular of maqasid-a goal or purpose) that is identified for the purpose of harmonization. The Council itself may choose to adopt a specific procedure/methodology for he purpose of verifying the accuracy of is own recommendations.

21. Graduality (Tadarruj): Harmonization of Shariah and civil law should be gradual and piecemeal. A pragmatic approach is advisable since ready-made proposals and formulas for harmonization are not available and need to be worked out and refined. Harmonization may need to be tailored to the specific conditions of the society which decides to apply it. A staggered approach may take into consideration the idea of prioritizing certain areas and issues, such as commercial transactions, family law, and constitutional law. Graduality has both a quantitative and a qualitative dimension. Questions may arise as to how much of the Shariah or of civil law are to be harmonized in a particular area and whether the approach taken is pragmatic and feasible. Consideration of pragmatism may dictate compromises; some aspects of fiqh or civil law may need to be postponed, even left out, in order for the rest to be harmonized. This ad hoc approach will be reviewable at a later stage of development when a more advanced level of harmonization is feasible.

Graduality is firmly grounded in Islam, in the Quranic revelation, in the Sunnah and their approaches to social reform. It has many well-known advantages that are relevant to our proposed methodology of harmonization. A gradualist approach affords one with the opportunity for self-evaluation and correction. This is important because the effects of harmonization in particular cases and settings can best be known through implementation and over a period of time.

A gradual approach to harmonization is advisable in view of the decline of ijtihad and prevalence of taqlid, colonialism, the tide of secularity and so forth. Colonial rule in Muslim lands aimed at sidelining the Shariah and replacing it with Western laws in almost all spheres of public law. Only family law was spared, due to fear of popular resistance. The secularization of commercial law, constitutional law, criminal law and procedure were carried out with varying degrees of intensity and success in most of the colonized Muslim countries, Public education, the legal profession and the judiciary underwent similar changes. In most areas, Western laws and institutions replaced their Islamic counterparts. Only in some areas, such as education, has a certain duality and coexistence of Western and Islamic institution remained. 

In some cases the Western model and prototype has become entrenched so that even partial and gradual attempts to bring changes in them have proven to be problematic. In some Muslim countries such as Malaysia, Pakistan, and Sudan, public education, the legal profession and the judiciary are entrenched in Western models and subsequent attempts to bring Shariah-based changes and reforms in line with the demands of Islamic revivalism have bee ineffective.

The attempt to harmonize the Shariah with civil law is not necessarily premised on a balance between both in the same filed. One may sometimes be faced with situation in which the civil law almost totally dominates and others in which the Shariah is dominant. Harmonization can be attempted in these situations as well as in cases in which both the Shariah and civil law may be operative and a situation of duality prevails, as in the case of Islamic and conventional banking. Alternatively, each may be practiced in part, but otherwise stand in a state of disharmonized coexistence. This latter situation can be envisioned in the law governing public education in Muslim schools and universities where the concern has been to introduce Islamic approaches and concepts into an otherwise Western dominated model that has proven resistant to harmonization and compromise. A persistent duality between the madrasa and the modern state school still obtains, and the attempt to unify the religious and secular approaches to education has been ineffective after decades of efforts in the direction of uniformity and harmonization.


Since the proposed methodology of harmonization between the Shariah and civil law includes both parliamentary legislation and ijtihad, the most efficient way of achieving harmony is to try to attempt it in the spheres of legislation and ijtihad. The legislators should take care to approve Acts of Parliament that are in harmony with the Shariah. Likewise, the mujtahid should strive to ensure that his ijtihad is in harmony with statutory law. If the legislator and mujtahid consult with one another directly and reach an agreement over issues, or better still, if they sit together on a council, one may anticipate an efficient approach towards achieving harmony. The ideal situation would be for the legislator to possess the qualifications of a mujtahid, failing which the two sides should consult one another, or else avail themselves of the expert advice of the Harmonization Council.

This analysis takes for granted that the harmonization of Shariah and civil law, at the outset, or ex post facto, requires the necessary expertise in both the Shariah and civil law disciplines. Experts in the civil law and the Shariah can and to some extent do consult one other over issues, but the ideal situation, as noted, would be that the two areas of expertise are combined in one and the same person. This would require universities to develop curricula that combine a balanced knowledge of both Shariah and civil law. Some progress has already been made through the introduction of Islamic universities in Malaysia, Pakistan, and the Sudan. In other Muslim countries, universities combine both Islamic and modern educational methods and programs in their courses. The relevant programs must be continually revised, upgrades and enhanced with a view to training persons who combine expert knowledge in both the Shariah and civil law.