Why Islamic Law is not like Constitutional jurisprudence
An extract from Feisal H. Naqvi's excellent article on 3QD:
"How then is Quranic interpretation different from constitutional interpretation?
To understand how Islamic legal interpretation is different, take the oft-debated issue of the number of wives a man may have under Islamic law. As is well known, the Quran says that a man have up to four wives provide he treats them equally. The Quran then adds a further injunction that no one can treat their wives equally.
The traditional legal interpretation of this point is that a Muslim man may indeed have up to four wives. The Quranic statement that no man can treat all four wives equally is thus taken to mean that absolute equality is impossible and that reasonable equality of treatment is sufficient.
Compared to this, we have the modern day reformist perspective. The reformist argument is that when the Quran states that it is impossible to treat all four wives equally, it should be taken literally and that Islamic law only allows Muslim men to have one wife at a time.
The heated debate over this issue tends to hide the fact that both the reformist and traditional schools of interpretation assume that there can only be one truly Islamic law which is valid for all times. Thus, the traditional scholar argues that a Muslim man could have four wives in 611 A.D. and that he can have four wives in 2011. The reformist argues that a Muslim could actually only have had one wife back in 611 AD and that the same holds true in 2011. What neither school is willing to concede is that Islamic law in back 611 allowed for four wives at a time but that Islamic law in 2011 only allows for one wife. This is because neither traditional scholars nor reformers allow for the possibility of change in Islamic law: both approaches assume that what is true in Islamic law is true for all times – past, present and future. And it is in this sense that Islamic jurisprudence differs from constitutional jurisprudence. Constitutional jurisprudence has no problems stating that what was true yesterday is no longer true today while at the same time conceding that was true yesterday was indeed true yesterday. Islamic jurisprudence does not allow for that: either something is true for both yesterday and today or it is not true at all. There is no temporal variation permitted in Islamic jurisprudence.
To understand why this is so, one has to go back back into Islamic history and the debate over the createdness of the Quran.[...]"