By Professor Mashood Baderin
Historical and Evolutional Perceptions of Islamic Law in a Continually Changing World
Islamic law remains one of the major legal systems in the world today. It is applicable in different forms as part of state law in countries of the Middle East, Asia and Africa, and also has strong influence amongst Muslim communities in the West generally, such as in Britain. Yet, it is probably the most misunderstood legal system in many parts of the world today, especially in the West. One of the major misunderstandings in Britain about Islamic law is the erroneous view that the system is completely divine, immutable, monolithic, inflexible, and that it is diametrically opposed to British law. These ideas have gained particular prominence over the past few years, and as such it is essential they be addressed.
The first step to a better understanding of the nature of Islamic law is to appreciate that “Sharī’a” and “Islamic law” are not technically synonymous concepts. Rather, the Sharī’a, strictly speaking, refers to the fundamental sources of Islam, namely, the Qur’an and the authenticated Traditions (Sunnah) of Prophet Muhammad (peace be upon him), both of which Muslims consider to be divine and immutable sources from which Islamic religious, moral, social, economic, political and legal norms are derived. Thus, the Sharī’ah, 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 (Ahkām; singular: Hukm) that are derived from the Sharī’a by Muslim jurists and applied by judges. Muslim jurists therefore normally talk of “Ahkām al-Sharī’a” (singular: “Hukm al-Sharī’a”), meaning “Sharī’a Rulings” or “Sharī’a Law”, i.e. rulings derived from the Sharī’a, when referring to Islamic law as applied law. The “Ahkām al-Sharī’a” or “Islamic law” are reached through the process of human juristic effort called “Fiqh”. That is, human juristic understanding of the divine sources using different well defined classical and post-classical jurisprudential methods and principles formulated by Muslim jurists over time. These legal rulings of the classical Islamic jurists, unlike the Sharī’a itself, are neither divine nor immutable, but have become accepted by Muslims as established legal treatises of Islamic law in different parts of the world today.
In that regard, Islamic law as derived rulings from the Sharī’a can be perceived either in a historical or evolutionary sense. Perceived in a historical sense, Islamic law is often restricted to the traditional rulings of the classical jurists as if those rulings were immutable, like the Sharī’a itself. However this is not how Muslims understand Islamic Law; for them, it can and does change in accordance with the needs of society. This evolutional perception of Islamic law is the opposite of the historical perception, and it is to the effect that while the legal rulings of the classical jurists provide a rich source of jurisprudence they do not stop the continual development of Islamic law based on modern jurisprudence (Fiqh) through the process of legal reasoning (Ijtihād). In essence, the evolutional perception represents Islamic law as a system that evolves in necessary response to the dynamic nature of human life. Thus many legal scholars, Muslim or otherwise, see no problem in the incorporation of elements of Islamic civil law—those aspects relating to resolving marriage disputes, or those prohibiting transactions based on interest or usury—from being incorporated into the laws adhered to by Muslims in the West. In fact this is already happening, and has happened in the case for Jewish civil law—which is very similar, if a little more rigorous than Islamic civil law—many years ago.
At the same time, there are Muslims and non-Muslim commentators on Islamic law who advance a strict historical perception of Islamic law. There is, however, abundant theoretical and practical evidence to establish that, Islamic law as “Ahkām al-Sharī’a” (i.e. rulings derived from the Shari’ah) through Fiqh has not actually been inherently static or immutable, but has responded and adjusted to the factors of time and circumstances since its inception. There are, indeed, many established jurisprudential principles and maxims of Islamic law depicting its evolutional and flexible nature both in theory and practice. A relevant Islamic legal maxim in that regard is that Islamic legal rulings may change with relevant changes in time and place within the context of the Sharī’a.
Contrary to a strict historical perception, the evolutional nature of Islamic law is currently reflected in the practices of most Muslim States and communities as well as in the views of contemporary Muslim jurists and scholars in the Muslim world and amongst Muslim communities in the United Kingdom and the West generally. While there are Muslim and non-Muslim commentators who do advance a strict historical perception of Islamic law, current trends clearly demonstrate that the humane objectives of the Shari’ah can be better realised through the evolutional perception of Islamic law in a continually changing world.
In the coming years, it is imperative that we seek to understand these ideas, and engage in the critical study of the Islamic legal system. By doing so we can hope to achieve a better appreciation of the nature of Islamic Law as a system that is not dated, rigid and directly opposed to British law but as one that is evolutional and adaptable to changing times.
Professor Mashood Baderin is Professor of Law and Head of the School of Law at the School of Oriental and African Studies (SOAS), University of London, a Barrister and Solicitor of the Supreme Court of Nigeria and co-founding editor of the Muslim World Journal of Human Rights. He holds an LLB (Hons) in English Common Law and Islamic Law, an LLM in Public International Law and a PhD in International Human Rights and Islamic Law. He is specialised in the areas of Islamic Law, Human Rights and International Law, and has published extensively in these fields.
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