Can Islamic Law Evolve?
In The Reconstruction of Religious Thought in Islam, Allama Muhammad Iqbal suggests that laws presented in hadiths may be changed if the situation requires it, but shies away from saying the same about Quran, while the reason he gives for dismissing hadith should, logically, also be applicable to Quran. The following are extracts from the sixth lecture The Principle of Movement in the Structure of Islam, and they would explain to you what I am talking about.
- ... during the course of history the moral and social ideals of Islam have been gradually deislamized through the influence of local character, and pre-Islamic superstitions of Muslim nations. These ideals today are more Iranian, Turkish, or Arabian than Islamic. The pure brow of the principle of Tauhâd has received more or less an impress of heathenism, and the universal and impersonal character of the ethical ideals of Islam has been lost through a process of localization. The only alternative open to us, then, is to tear off from Islam the hard crust which has immobilized an essentially dynamic outlook on life, and to rediscover the original verities of freedom, equality, and solidarity with a view to rebuild our moral, social, and political ideals out of their original simplicity and universality. Such are the views of the Grand Vizier of Turkey. You will see that following a line of thought more in tune with the spirit of Islam, he reaches practically the same conclusion as the Nationalist Party, that is to say, the freedom of Ijtihad with a view to rebuild the laws of Shari'ah in the light of modern thought and experience.
- The question which confronts him today, and which is likely to confront other Muslim countries in the near future is whether the Law of Islam is capable of evolution - a question which will require great intellectual effort, and is sure to be answered in the affirmative, provided the world of Islam approaches it in the spirit of 'Umar - the first critical and independent mind in Islam who, at the last moments of the Prophet, had the moral courage to utter these remarkable words: 'The Book of God is sufficient for us.
- I now proceed to see whether the history and structure of the Law of Islam indicate the possibility of any fresh interpretation of its principles. In other words, the question that I want to raise is - Is the Law of Islam capable of evolution?
- Unfortunately, the conservative Muslim public of this country is not yet quite ready for a critical discussion of Fiqh, which, if undertaken, is likely to displease most people, and raise sectarian controversies.
- The primary source of the Law of Islam is the Qur'an. The Qur'an, however, is not a legal code. Its main purpose, as I have said before, is to awaken in man the higher consciousness of his relation with God and the universe. No doubt, the Qur'«n does lay down a few general principles and rules of a legal nature, especially relating to the family - the ultimate basis of social life.... The important point to note in this connexion, however, is the dynamic outlook of the Qur'an.
- Our early doctors of law taking their clue mainly from this groundwork evolved a number of legal systems; and the student of Muhammadan history knows very well that nearly half the triumphs of Islam as a social and political power were due to the legal acuteness of these doctors....But with all their comprehensiveness these systems are after all individual interpretations, and as such cannot claim any finality.
- The claim of the present generation of Muslim liberals to reinterpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified. The teaching of the Qur'an that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems.
- [About Hadith] we must distinguish traditions of a purely legal import from those which are of a non-legal character. With regard to the former, there arises a very important question as to how far they embody the pre-Islamic usages of Arabia which were in some cases left intact, and in others modified by the Prophet.
- The prophet who aims at all-embracing principles, however, can neither reveal different principles for different peoples, nor leaves them to work out their own rules of conduct. His method is to train one particular people, and to use them as a nucleus for the building up of a universal Sharâ'ah. In doing so he accentuates the principles underlying the social life of all mankind, and applies them to concrete cases in the light of the specific habits of the people immediately before him. The Sharâ'ah values (Ahkam) resulting from this application (e.g. rules relating to penalties for crimes) are in a sense specific to that people; and since their observance is not an end in itself they cannot be strictly enforced in the case of future generations. It was perhaps in view of this that Abu Hanifah, who had, a keen insight into the universal character of Islam, made practically no use of these traditions.
- On the whole, then, the attitude of Abu Hanifah towards the traditions of a purely legal import is to my mind perfectly sound; and if modern Liberalism considers it safer not to make any indiscriminate use of them as a source of law, it will be only following one of the greatest exponents of Muhammadan Law in Sunni Islam.
- The transfer of the power of Ijtihad from individual representatives of schools to a Muslim legislative assembly which, in view of the growth of opposing sects, is the only possible form Ijma' can take in modern times, will secure contributions to legal discussion from laymen who happen to possess a keen insight into affairs.
- Can the Ijma' repeal the Qur'an?... There is not the slightest justification for such a statement in the legal literature of Islam. Not even a tradition of the Prophet can have any such effect.
- But supposing the companions have unanimously decided a certain point, the further question is whether later generations are bound by their decision.... I venture to think, on the authority of Karkhi, that later generations are not bound by the decision of the companions.
- The fourth basis of Fiqh is Qiyas, i.e. the use of analogical reasoning in legislation.... Qiyas, as Shafi' rightly says, is only another name for Ijtihad which, within the limits of the revealed texts, is absolutely free; and its importance as a principle can be seen from the fact that, according to most of the doctors, as Qadi Shaukani tells us, it was permitted even in the lifetime of the Holy Prophet.