8/3/2019 Baderin_Historical and Evolutional Perspectives of Islamic Law

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ISLAMIC law remains one of the major legal systems inthe world today. It is applicable in different forms as partof State law in countries of the Middle East, Asia and

Africa, and also has strong in uence among Muslim commu-nities in Britain and in the West generally. Yet it is probablythe most misunderstood legal system in many parts of theworld today, especially in the West.

One of the major misunderstandings about Islamic lawis the erroneous view that the system is completely divine,immutable, monolithic and in exible. That view is re ec-ted in the decision of the European Court of Human Rights(ECrtHR) in the case of Refah Partisi (Welfare Party) and

Others v Turkey ,1

wherein the Court expressed its (mis)un-derstanding that the system is static and invariable. This viewis engendered by the general perception of the ‘ Shar ī ’a ’ and‘Islamic law’ as synonyms, which can be misleading in thecontext of a proper understanding of the evolutional nature of Islamic law. For example, paragraphs71 and 81 of the Chamber judgmentin the Refah Partisi case showedthat the Court was using the terms‘Shar ī ’a ’ and ‘Islamic law’ synony-mously, as is often done by manycommentators on Islamic law, whichfrequently leads to confusion. In a

critique of the Court’s view in thatregard, one author observed that ‘oneis left wondering from where theCourt came by its understanding of the Shari’a ’2 and furthernoted that the Court ‘dogmatically characterised the Shari’a by holding that it is static, monolithic, and lacking history’. 3

The rst step to a better understanding of the natureof Islamic law is to appreciate that ‘ Shar ī ’a ’ and ‘Islamiclaw’ are not, technically, synonymous concepts. Rather, theShar ī ’a, strictly speaking, refers to the fundamental sourcesof Islam, namely, the Qur’an and the authenticated Traditions(Sunnah ) of the Prophet Muhammad (peace be upon him),both of which Muslims consider to be divine and immutable

sources from which Islamic religious, moral, social, econo-mic, political and legal norms are derived. Thus, the Shar ī ’a ,in the context of these two divine sources, covers more than

just law – it is law-plus.Conversely, Islamic law refers to the law or rulings

( Ahk ā m; singular: Hukm ) that are derived from the Shar ī ’a

by Muslim jurists and applied by judges. Muslim jurists the-refore normally talk of ‘ Ahk ā m al-Shar ī ’a ’ (singular: ‘ Hukmal-Shar ī ’a ’), meaning ‘ Shar ī ’a Rulings’ or ‘ Shar ī ’a Law’, ierulings derived from the Shar ī ’a , when referring to Islamiclaw as applied law. The ‘ Ahk ā m al-Shar ī ’a ’ or ‘Islamic law’are reached through the process of human juristic effortcalled ‘ Fiqh ’ (which literally means understanding and tech-nically means jurisprudence), based on the process of Ijtih ā d (legal reasoning). That is, human juristic understanding of the divine sources using different well-de ned classical andpost-classical jurisprudential methods and principles formu-lated by Muslim jurists over time.

Thus, it was through the medium of Fiqh , based on theprocess of Ijtih ā d , that the early Islamic jurists transformedthe Shar ī ’a into applied law in the form of Ahk ā m al-Shar ī ’a ,or Islamic law. Ahmad Qadri has observed in that regard thatthe Islamic jurists were emphatic in saying that ‘though God

has given us a revelation He also gaveus brains to understand it; and He didnot intend to be understood withoutcareful and prolonged study’. 4 Basedon their human understandings of the provisions of the Shar ī ’a throughcareful and prolonged study, the clas-sical Islamic jurists compiled books

of Fiqh (jurisprudence) containingthe Ahkam al-Shar ī ’a or Islamic lawas derived by the different Islamic

schools of law ( Madh ā hib ) that were consequently establi-shed around the 10th century, namely the M ā liki , Hanaf ī ,Shā ’ī and Hanbal ī Sunn ī schools of law, as well as thedifferent Sh ī ’ah schools. These jurisprudential rulings by theclassical Islamic jurists, unlike the Shar ī ’a itself, are neitherdivine nor immutable, but have been accepted by Muslims asestablished legal treatises of Islamic law in different parts of the world today.

In that regard, Islamic law as derived rulings from theShar ī ’a can be perceived either in a historical or evolutional

sense. Perceived in a historical sense, Islamic law is oftenrestricted to the traditional rulings of the classical jurists as if

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Historical and evolutionalperceptions of Islamic Law

in a continually changing worldMashood A Baderin clears up Western misunderstandings

surrounding Islamic law

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O NThe ‘Shar ī ’a’, strictly speaking, refers to the Qur’an

(above ) and the authenticated Traditions of the ProphetMuhammad

There is abundant evidenceto establish that Islamic lawhas responded and adjusted

to the factors of time and circumstance since its

inception

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8/3/2019 Baderin_Historical and Evolutional Perspectives of Islamic Law

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those rulings were immutable, likethe Shar ī ’a itself. This creates areductionist perception of Islamiclaw that is hinged on the dispu-ted theory of the ‘closing of thegate of legal reasoning ( Ijtih ā d )’around the 13th century. Thistheory is to the effect that Islamiclaw must be restricted to the legalrulings of the classical jurists asrecorded in the legal treatises of the established schools of Islamic

jurisprudence dating back to the10th century, which, in essence,represents Islamic law as a systemstuck in the past. Conversely, theevolutional perception of Islamiclaw is the opposite of the historicalperception, and it is to the effectthat, while the legal rulings of the classical jurists provide arich source of jurisprudence, they do not stop the continualdevelopment of Islamic law based on modern jurisprudence(Fiqh ) through the process of legal reasoning ( Ijtih ā d ). Inessence, the evolutional perception represents Islamic law asa system that evolves in necessary response to the dynamicnature of human life.

While there are Muslims and non-Muslim commenta-tors who advance a strict historical perception of Islamiclaw, there is abundant theoretical and practical evidence toestablish that Islamic law as ‘ Ahk ā m al-Shar ī ’a ’ (ie rulingsderived from the Shar ī ’a ) through Fiqh has not actuallybeen inherently static or immutable, but has responded andadjusted to the factors of time and circumstance since itsinception. This is particularly so in respect of temporal mat-ters pertaining to inter-human relations ( Mu’ ā mal ā t ), whichare more affected by the dynamic nature of human life, incontrast to matters relating to religious observances and actsof worship ( Ib ā d ā t ), which are more relatively stable. It is inthe different aspects of human relations ( Mu’ ā malat ) that theevolutional nature of Islamic law has been well manifestedin theory and practice over the years since its emergence inthe seventh century. There are many relevant established

jurisprudential principles and maxims of Islamic law depic-ting its evolutional and exible nature both in theory andpractice. A relevant Islamic legal maxim in that regard is thatIslamic legal rulings may change with relevant changes intime and place within the context of the Shar ī ’a .

Contrary to a strict historical perception, the evolutionalnature of Islamic law is currently re ected in the practicesof most Muslim States and communities, as well as in theviews of contemporary Muslim jurists and scholars in theMuslim world and among Muslim communities in Britainand the West generally. Professor Hashim Kamali illustratesthis as follows:

In modern times legal interpretation or reasoning [inIslamic law] has occurred in the following three ways:statutory legislation, judicial decision and learned opinion( fatwa ), and scholarly writings. Instances of legislativeinterpretation, which Noel Coulson referred to as ‘neo-ijtihad ’, can be found in the modern reforms of familylaw in many Muslim countries, particularly with referenceto polygyny and divorce, both of which have been madecontingent upon a court order, and therefore are no longerthe unilateral privilege of the husband. Current reformistlegislation on these subjects derives some support from the

jurists’ doctrines of the Maliki and Hana schools, but thesereforms are essentially based on novel interpretation of the

Quran’s relevant portions. Numerous instances of indepen-dent reasoning are also found in the views of the ulama [religious scholars], such as the collections of publishedopinions of Muhammad Rashid Rida in the 1920s and thoseof the late shaykh of Azhar, Mahmud Shaltut, in the 1950s.In the 1967 case of Khursid Bibi vs Muhammad Amin , thesupreme court of Pakistan’s decision to validate a form of divorce, known as khula , that can take place at the wife’sinitiative, even without the consent of the husband, can becited as an example of judicial ijtihad . Another exampleof ongoing reinterpretation is the scholarly contributionof the Egyptian scholar Yusuf al-Qaradawi, who validatedair travel by women unaccompanied by male relatives.According to the rules of qh that were formulated in pre-modern times, women were not permitted to travel alone.Al-Qaradawi based his conclusion on the analysis that theinitial ruling was intended to ensure women’s physical andmoral safety, and that modern air travel ful lls this require-ment. He further supported this view with an analysis of therelevant hadiths on the subject and arrived at a ruling bettersuited to contemporary conditions. 5

While there are Muslim and non-Muslim commentatorswho do advance a strict historical perception of Islamic law,current trends clearly demonstrate that the humane objecti-ves of the Shar ī ’a can be better realised through the evolu-tional perception of Islamic law in a continually changingworld, especially in the West.

1. (2003) 37 European Human Rights Review , 12. M A Ramadan, ‘Notes on the Shari’a: Human Rights, Democracy, and

the European Court of Human Rights’ (2007) 40 Israeli Law Review , p. 156at 158

3. Ibid , at 1644. A A Qadri, Islamic Jurisprudence in the Modern World (New Delhi:

Taj Co, 1986) p. 1995. H M Kamali, ‘Law and Society: The Interplay of Revelation and

Reason in the Shariah’ in J L Esposito (ed) The Oxford History of Islam(Oxford: OUP, 1999) p. 107 at 118

Mashood A Baderin is a Professor of Law at the School of Law, SOAS

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The Egyptian High Court of Justice in Cairo (above )Photo courtesy of Bastique

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