Indeed, We Need a More Complex Understanding of Islamic Legal Theory

WordForPeace.com

By Zainah Anwar

My longing and the goal of my work for decades is for Malaysians to make a conscious decision to be civil, informed and fair-minded in managing our differences – particularly on matters of religion.

To threaten to rape or kill someone for just having a different opinion, to declare a group of eminent establishment figures who have and are still serving state and society with distinction as deviants, and threaten them with a fatwa indicates the depths of ignorance, misguidance and hysteria we have plunged into when talking about Islam.

Really, the only way one can shut up any public debate on matters of religion is for the government to decide to end the use of Islam as a source of law and public policy to govern our lives, in private and in public.

The stark reality, however, is that Malaysia is a country where in the name of Islam, we can be sent to prison, fined, lashed, shamed, fatwa‘ed and declared deviants and apostates. What are considered personal sins in the eyes of God have been turned into crimes against the state. And we are supposed to remain silent and be silenced while our fundamental rights and liberties are abused and rule of law is violated by some self-appointed God’s “soldiers” on earth?

But we still live in a democracy with the Constitution as the supreme law of the land. We do not live in a theocratic dictatorship that some of us seem to imagine. So let’s end this grandiose claim that we speak in God’s name and let’s stop invoking God’s wrath on anyone and anything different. We need to find ways to conduct a sane, constructive and productive discussion on Islam.

First, let us stop assuming that the so-called Islamic laws of this country are God’s laws and therefore divine, perfect and unchangeable. They are men-made laws, drafted by mere mortals sitting in government departments and passed by very flawed mortals sitting in Parliament and state assemblies. If they are indeed divine and perfect, why are they amended and continue to be amended, and why are they different from one state to another, let alone one Muslim country to another?

So let’s stop equating the Islamic family law, the Syariah criminal offences law, the hudud enactments of the states of Kelantan and Terengganu and all other laws, rules, fatwas made by human beings to be God’s law, God’s words and therefore divine and infallible. Such that to question them is to challenge God.

Perfection belongs only to God. These codified laws, policies, fatwas and other pronouncements are exercises in interpretation and political choice. To think that just because one invokes God’s name, one becomes the political embodiment of God and has the right to denounce anyone who disagrees with one’s pronouncement as deviant or apostate is tantamount to shirk – ascribing one as equivalent to God, a grave sin in Islam.

Second, let us understand a few key terms that are so bandied about freely and interchangeably. There are distinctions between Syariah, fiqh, hokum and qanun. Syari’ah literally means the way, the path. What we mean by Syar’iah, is God’s revelation to Prophet Muhammad as embodied in the Qur’an, encompassing ethical values and principles to guide humans in the direction of justice and correct conduct. No person nor institution has the authority to claim certainty in understanding the divine will. Only God possesses perfect knowledge.

This led to the development of fiqh, which literally means “understanding.” It is the process by which humans attempt to derive legal rules from the Quran and the Sunnah (practices) of the Prophet. The classical Muslim jurists developed rigorous methodologies and principles to establish a legal system that they believed could best reflect the divine will. And yet none of them ever claimed certainty over their opinions and rulings. Certitude belongs only to God. So while Syari’ah, God’s revelation, is immutable and infallible, fiqh is changeable and fallible. Much of what we call “shariah law” today is actually fiqh, a human construction.

Hukum are legal determinations, rulings in any given case. Qanun are codified laws and regulations enacted by a government.

So what we are actually talking about when we dispute over khalwat, moral policing, cross-dressing, hudud and family laws are actually qanun laws based on fiqh, our human understanding of God’s teachings. They change with time and circumstance. We are not talking about Syari’ah. We are deliberating over and questioning the role and motivations of human agency and the methodologies used in drafting and implementation of those laws that have led to injustice and conflict of laws in our constitutional democracy.

Perhaps the next time some self-appointed soldier of God tells declares you don’t have a right to question or have a different opinion, ask him: What is it, exactly, that you are not supposed to talk about – Syari’ah, fiqh, hokum or qanun?

And which category of laws that shouldn’t be questioned? Ibadat (rules that regulate the relationship between humans and God), where there is little room for disputation, or mu’amalat (rules that regulate the relationship of humans with one another)? Much of the debate that has been going on in Malaysia is about mu’amalat laws, where jurists of over 1,000 years ago have favoured human reason, human experience and discretion to serve the well-being of society, depending on time and place. Consider the famous example of Imam Shafi’i who changed his legal rulings when he moved from Iraq to Egypt, because different circumstances and social conditions demanded it.

If we are serious and sincere about wanting to use Islam to build a just Malaysian society, and to reform unjust and discriminatory laws, we can mine the Muslim legal tradition, packed with juristic concepts that make reform possible.

There are maslaha (public interest), ikhtilaf (differences of opinion), istihsan (choosing the best opinion in the interest of equity and justice), istislah (choosing the best opinion in the interest of public good) and, oh yes, the much bandied maqasid al-syariah – the objectives of syari’ah to preserve life, faith, progeny, property and intellect.

How do we apply these principles to solve the problems and contestations we face in the context of twenty-first century multi-ethnic and multi-religious Malaysia, to ensure that justice is done?

Islamic legal theory is complex and rich. Let’s not be simpletons when we talk and think about Islam. When you can’t debate those who challenge you, silencing them with threats and fatwa shows nothing but ugliness. This is not the way to maintain respect for your claimed authority nor the way to build love and confidence that Islam indeed does have the answers, as some people like to claim. Let’s build some pride and knowledge in our own legal tradition, instead of defiling it with shrill sloganeering that Islam is under threat, and that Muslims are under siege.

In the end, what we need to ask is: what is the purpose of Islam and what is the purpose of these so-called Islamic laws? We as Muslims make the effort to comply with the divine will for a purpose – to do good, to bring about justice, to contribute to the well-being of society.

The more I read and learn about Islam, the stronger is my faith in a God and a religion that is just. I am proud of the verses in the Qur’an that talk about men and women being each other’s protector and friend, that promote monogamy in order to prevent injustice, that advocate a relationship based on love and compassion. Who decided these egalitarian verses should be shunted aside, and who decided that verses open to be interpreted as men having authority over women and men having the right to four wives and to beat their wives be the only verses to govern a marital relationship? Where is the justice of Islam when in the twenty-first century we remain governed by a discriminatory legal framework that bears little reality to the lives of women and men and the family today?

Who decided that the Prophet’s marriage to Khadijah, a widow fifteen years older than him and who was his sole beloved wife until her death, should not be the model of marriage in Islam? Who decided that the Prophet’s marriage to Aishah should continue to be used to justify child marriage in Muslim society? Who decided that the part of the verse that talks about marrying two, three or four be used to justify polygamy as a God-given right in Islam? And that the verse that says to marry only one, and that will be best for you to prevent you from doing injustice, is ignored?

These are all human-made decisions. Not God’s.

Alas, the ugly truth is, too many of those in power abuse God and Islam to serve their own personal interest to remain in power, to enrich themselves, to remain privileged and protected.

As Malaysia descends into an Orwellian society where right is wrong and good is bad, and where Big Brother watches our every move, let those of us who believe in justice and reason take strength in one foundational idea in Islamic jurisprudence, attributed to Imams Shafi’i and Abu Hanifa: “We believe that our opinions are correct, but we are always cognizant of the fact that our opinions may be wrong. We also believe that the opinions of our opponents are wrong, but we are always cognizant of the fact that they may be correct.” And in our search for solutions, let us be resolute and be guided by the words of the fourteenth-century jurist, Ibn Qayim al-Jawziyyah:

“The fundamentals of the Shari’ah are rooted in wisdom and promotion of the welfare of human beings in this life and the Hereafter. Shari’ah embraces justice, kindness, the common good and wisdom. Any rule that departs from justice to injustice, from kindness to harshness, from the common good to harm, or from rationality to absurdity cannot be part of Shari’ah even if it was introduced by interpretation.”

In the end, only God knows best. So let’s lose the conceit that we can play God on this earth.

Source: http://www.abc.net.au/religion/articles/2018/04/06/4826637.htm

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