Islamic law today

Introduction

The history of the sharia^[1], or Islamic law^[2], has been one of permanent changes and challenges. It has been constantly subjected to influences from its social environment. Also today, in the current globalizing context, the question arises as to how Muslims can react to these structural changes, and how the sharia can be adapted to the new social reality.

In her paper ‘Muslim Women’s Rights in the Global Village’, al-Hibri suggests that “each individual has direct access to the Quran and hadith and is in principle entitled to engage in ijtihad, so long as she has the requisite knowledge. Thus not only countries, but also individuals are entitled to their own jurisprudential choices.”^[3]

This statement raises several issues that will be discussed in this essay.

As W. Hallaq states, “the success of any legal methodology hinges not only upon its intellectual integrity and sophisticated level of theorization but also upon its feasibility in a social context.”^[4] This statement will serve as a guideline throughout this essay, as I will examine al-Hibri’s statement from both a theoretical and a practical perspective.

I intend to argue that while al-Hibri’s approach offers a perspective for Islamic law in the North American context that is both apt to the social structure and able to emancipate women from the problematic adherence to the traditional schools, both the theoretical and practical examinations of her approach raise a number of questions. The key problem of her approach is the ill-defined middle position between modernist views and adherence to traditional principles, which make her approach neither theoretically convincing nor easily applicable.

To prove this thesis, I will put al-Hibri’s statement in a larger context in the first section. The second section will be concerned with theoretical questions. Here, I will show that her notion of individual ijtihad is questionable, and that while she mentions the principle of ijma as a source of law, her approach lacks a notion of community or systematic contiguity, and that the concept of individual ijtihad alone does not convincingly solve the problem of cultural influences.

Third, in a practical section, I will discuss both the applicability to the North American context and the transferability to Muslim states.

Finally, I will summarize the findings of this paper and suggest modifications of al-Hibri’s approach.

1. Al-Hibri’s Statement in the Framework of Islamic Modernism

The sharia is believed to be valid at all places, situations, and times. This belief requires that it is flexible, and can be adapted to new places and times^[5].

In the late 19th century, when the growing impact of Western ideas and modernisation processes led to a challenge of the Islamic world^[6], early reformists tried to synthesize the jurisdiction of the Sunni schools by selection (takhayyur) and combination (talfiq)^[7], and thus create a positivized version of the sharia. Their aim was the conservation of Islam and its immunisation against secular influences^[8].

Others demanded a more radical departure from traditional interpretations of the sources. Modernists like M. Iqbal in India^[9] suggested that the Quran and the sunna can and even should be interpreted “independently from prevailing opinions of the lawyers of the four madhhab s”^[10]. New interpretations of the principles revealed in the sources had to be found in order to find a way to adapt Islam to the modern context. Al-Hibri speaks in this tradition when she argues that the culturally influenced rulings of the jurists often suffer from inconsistencies, they become ‘outmoded’, and have therefore to be eliminated^[11]. Individual ijtihad may take their place.

The background of al-Hibri’s approach is the context of the North American societies. In the United States, where the modernist movement is especially strong, the community is argued to be in its “formative stage”^[12], and thus in a stage similar to the early Muslim communities, which had to develop specific approaches and methods to extract meaning from the sources. This argumentation is similar to that of Schacht, who examines the issues with which the jurists are confronted when transforming the sharia into state law^[13].

This reference to the early formative period addresses the notion of the ‘closure of the gate of ijtihad’. This term was used by traditionalists who insisted on the validity of the jurisdictional tradition of the four Sunni schools. As the scholars had established a consensus (ijma) – even if this consensus was local or only the agreement to disagree – ijtihad was only permitted in cases where the scholars of the schools did not offer a ruling. As these rulings were regarded as able to give answers to virtually all legal issues, there was no room for ijtihad. With their argument of the situation today being similar to that of the formative period, the modernists claim the validity of the principle of ijtihad, a direct access to the Quran and hadith^[14].

Khan, a modernist, argues for individual ijtihad in reference to a specific sura:

Those who listen to the Word (Al Quran) and follow the best meaning in it: those are the ones whom Allah has guided and those are the ones endued with understanding (39:18).^[15]

To extract this ‘best meaning’, individual interpretative effort (ijtihad) is required. The gate of ijtihad has therefore to be reopened^[16]. For al-Hibri, this ‘best meaning’ would be an interpretation of the sources culturally apt for a modern, globalised context.

Peters identifies the direct access to the sources as part of a “fundamentalist tradition”^[17] in Islam. An-Na’im rejects this terminology on etymological grounds and the fact that the term fundamentalist includes a wide spectrum of diverse groups^[18]. It is thus useful to recognise that the idea of direct access to the sources of Islam, the Quran and the hadith, is characteristic to a wide variety of movements within Islam, and is not specific only to the modernists.

While the rejection of the established legal opinions and the demand for a new ijtihad constituted a clear break with traditionalist views, it could to a certain extent be argued that the debates in and around reformism and modernism, and the way these debates were expressed, could be seen as “conditioned by tradition”^[19].

Al-Hibri seems very keen not to stray too far from traditional approaches. Her demand for a literalist approach is in part contradictory to her liberalist views on Islamic law, which focus on spirit and intention behind the sources^[20]. This tension between the integration of traditional views and the development of a modern approach to the sharia raises several theoretical issues, which I will discuss in the following chapter.

[...]

^[1] For reasons of readability, I will abstain from transliterating the `ayin and other sounds alien to the English language.

^[2] The term ‘law’ might be misleading if understood as law in a European sense. The word sharia literally means path and encompasses a much larger horizon than just provisions of what is allowed or prohibited. The term Islamic law is used here for purposes of simplification. Nevertheless, the sharia will be confronted with Western perceptions of law, as this is the context to which al-Hibri’s approach refers.

^[3] Al-Hibri (2000), p.44.

^[4] Hallaq (1997), p.254.

^[5] Cf. Shepard (1987), p.311.

^[6] Cf. Peters (1984), p.131.

^[7] Cf. Layish (1978), p.263.

^[8] This aim, however, had actually the opposite effect. Cf. Layish (1978), p.265.

^[9] Cf. Coulson (2003), p.202.

^[10] Peters (1984), p.131

^[11] Cf. Al-Hibri (2000), pp.41.43.

^[12] Khan (2003).

^[13] Cf. Schacht (1960). I will discuss the context of the codified sharia in section 3.2 of this paper.

^[14] Cf. Coulson (1996), pp.40-44; and Shepard (1987), p.311.

^[15] Khan (2003).

^[16] Cf. Shepard (1987), p.311. See also Hallaq’s article on the discussion about the closure of the gate of ijtihad; Wael Hallaq: "Was the Gate of Ijtihad Closed?"International Journal of Middle East Studies, 16, 1 (1984), pp. 3-41.

^[17] Peters (1984), p.131

^[18] Cf. an-Na’im (1996), p.3.

^[19] Cf. Peters (1984), p.131. Cf. also Shepard (1987), p.312.

^[20] Cf. Al-Hibri (2000), p.40; and Hallaq (1997), p.231.