What constitutes Islamic law (Shari’ah)?Is reforming an allegedly Islamic law equal to criticising Islam itself?


Every time, someone is accused of committing blasphemy, voices for reforming the blasphemy laws surface. This time, the clergy has accused Shaan Taseer — the son of late Salmaan Taseer — of committing blasphemy and condemned him to death after he requested prayers for blasphemy victims, Aasia Bibi and Nabeel Masih, in his Christmas message. The reason why voices for reforming the blasphemy laws are equated with committing blasphemy is because the religious right believes that blasphemy laws are Islamic. Hence any critique of the blasphemy laws or reforming them are considered equivalent to criticising Islam itself.

Is criticising or reforming an allegedly Islamic law equal to criticising Islam itself? Therefore, it is worth pondering as to what constitutes Islamic law.

In Sunni theology, Shariah laws are the embodiment of three sources. If any issue arises, its solution is sorted out through the Holy Quran. If there is no explicit guidance about the issue in the Holy book or it is silent, then traditions of the Prophet (PBUH) are looked into to figure out the solution. If traditions are silent too then Ijma or consensus of the Muslim scholars is the third source of guidance to seek remedy. If there is no guidance about the issue in the Ijma either then Qiyas, the employment of deductive analogy by a jurist, is the last resort to look into the matter.

Seen in this way, within the Sunni theology, there are fundamentally two sources of law.

First, the primary sources of law are the Holy Quran and the traditions of the Prophet (PBUH). Allah is the law-giver. His commandments are enshrined in the Holy Scripture, the Quran. On the other hand, the authentic traditions of the Prophet (PBUH), comprising his sayings and the accounts of his practice, are compiled primarily in the six authentic books sihah sitta. These are Sahih Bukhari, Sahih Muslim, Sunan al Nisa’I, Sunan Abu Dawood, Jami al-Tirmidhi and Sunan Ibn Majah. The traditions of the Prophet (PBUH) are in the nature of the exegeses and practical demonstration of the Holy Quran.

Secondary source of law is Ijtihad. Literally meaning an effort, ijtihad is a jurist’s exertion of his mental faculties to find a solution to human problems in an ever-changing world, of course within the all encompassing confines of the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Ijtihad is bifurcated into two parts. These are Ijma and Qiyas. Ijma is the collective consensus among the jurists of a particular time on a specific issue or range of issues. It is the ijma of the first three generations of Muslims that takes precedence over all other generations. These are the ijma of the companions of the Prophet (PBUH) called as Sahaba followed by those Muslims who were the contemporaries of the companions or at least saw them called Tabi’in and succeeded by those Muslims who were the contemporaries of the latter or at least saw them known as Taba’alTabi’in.

To illustrate, the consensus of the four pious caliphs, from Abu Bakr to Umar to Usman and Ali, on a particular issue serves as an ijma for the next generations. Qiyas is the expert opinion of an individual jurist on an issue or issues. For the mainstream Sunni schools of thought, Barelvi and Deobandi, there are four schools of jurisprudence. These are Hanafite, Malikite, Shafite and Hanbalite named after Abu Hanifa, Malik Ibn Anas, Muhammad al Shafi and Ahmad bin Hanbal respectively. For Barelvi and Deobandi ulema, subscribing and adherence to anyone of the four fiqhs or schools of jurisprudence is necessary for guidance.

In the penultimate analysis, the Holy Quran and the Sunnah of the Prophet (PBUH) are the two infallible and unalterable sources of any Islamic law. The Quran is the word of Allah, the law-giver, creator, and all-wise. About the Prophet (PBUH), Allah says: “He does not speak of his own desire; it is but a Revelation which is sent down to him.” Ijtihad, either collective (Ijma) or individualistic (Qiyas), is exercised by people who are fallible in their capacity as human beings irrespective of the fact how men of impeccable integrity they may happen to be. After all, they are not divine guided.

Two examples are worth mention.

Within the Sunni theology, the most revered person after the Prophet (PBUH) is Abu Bakr. In his maiden speech after his elevation to rule the Muslims, Abu Bakr said: “If I do well, help me, and if I do ill, then put me right”. For Abu Bakr, the ultimate source of salvation was the Holy Quran followed by the Sunnah of the Prophet (PBUH). In the same speech, he said, “obey me as long as I obey Allah and His apostle, and if I disobey them you owe me no obedience.” Within the Barelvi and Deobandi sects among the Sunnis, Nauman Ibn Thabit, popularly known as Imam Abu Hanifah, is the most revered of the four imams. The imam is reported to have said that if any of his fatwa (religious edict), contradicts either the Holy Quran or the Hadith of the Prophet (PBUH), “throw it against the wall.”

In a nutshell, both the companion and the imam underlined the likelihood of their fallibility.

Aside from the Holy Quran and the traditions of the Holy Prophet (PBUH), all other laws, being human made, are susceptible to fallibility and hence reforming them from time to time just becomes a necessity. Laws made either by parliament, no matter how much they embody collective wisdom, or decreed through a presidential ordinance, are human made legislations. In essence, Pakistan’s blasphemy laws are a hangover from the colonial past. Pakistan Penal Code’s articles 295, 296, 297 and 298 are a continuation of the British laws introduced in 1860. Section 295-A was added subsequently in 1927. Under Ziaul Haq, five sections, 295-B, 295-C, 298-A, 298-B and 298-C were added to PPC from 1980-86.

The mandatory death sentence for a blasphemer as enshrined under article 295-C of PPC falls within the ambit of human made laws. In October 2015, Supreme Court, in its ruling in Salmaan Taseer murder case, held that “any call for reforming the blasphemy law (Section 295-C Pakistan Penal Code)…ought to be understood as a call for introducing adequate safeguards against malicious application or use of that law by motivated persons.”

Source: http://tns.thenews.com.pk/constitutes-islamic-law/#.Wm29dJ_hXqB

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