16 March 2013

Mohammad Farooq on Reforming Islamic Law

Written by 
Head of Centre: Islamic Finance and Head of Research Head of Centre: Islamic Finance and Head of Research http://www.bibf.com/2012-bibf-annual-report/inside_pages/management_team.php

Islamic law in this new century is in a state of flux. Granted, venerable institutions that are a millennium old don’t change overnight. As it turned out, the recalibrations made out of necessity in many nineteenth-century Muslim countries were not enough to stem the tide of secularization in the postcolonial period. Though each of the fifty six member states of the OIC (Organization of the Islamic Conference) have taken different paths to incorporate at least some elements of traditional Islamic law, the attacks on American soil in 2001 seem to have jolted many to rethink key issues, including legal theory.

I say this, only because of the dramatic and unprecedented international agreements made by Muslim leaders and scholars from all traditions between 2005 and 2006. Under the aegis of the Jordanian crown, the Amman Message movement produced a consensus document signed by Sunni, Shia, Ibadi, and Sufi luminaries on three foundational questions: Who is a Muslim? Can a Muslim declare another Muslim an infidel (the act of takfir)? Who is qualified to pronounce a legal opinion (fatwa) and what counts as adequate qualification?

The last question, of course, is about how Islamic law is supposed to function. The longer statement recognizes eight schools of law and sets up minimum training standards for becoming a legal expert, and in this case, a mufti.

You’re probably thinking this was aimed at the bin Laden types who issue controversial fatwas without any qualification. You’re right. But there’s much more to this. It’s also about 1) boosting the role of the ulama (traditional Islamic scholars who were jurists but much more too), whose status has been dramatically eroded in the last two hundred years; 2) stemming the tide of revolutionary change advocated by more progressive intellectuals.

So the issue of reformism (islah) is in the air once again. First used in the nineteenth century, and most famously by the great Egyptian reformer Muhammad Abduh, islah could also be translated “reformation.” Post 9/11, of course, many westerners have called for an “Islamic Reformation – referring to the 16th-century Protestant Reformation. But nowhere in the world do people like outsiders telling them they need to set their house in order.

A recent book, by contrast, was written by an insider telling other insiders (Muslims) that Islamic law needs serious revamping – a weighty charge that faces an extra hurdle from the fact that he is not one of the traditional ulama, the gatekeepers of Islamic jurisprudence. Mohammad Omar Farooq earned a PhD in economics at the University of Tennessee, taught in the US for more than a decade and is now the Head of the Centre for Islamic Finance at the Bahrain Institute for Banking and Finance.

Farooq’s book is entitled Toward our Reformation: From Legalism to Value-Oriented Islamic Law and Jurisprudence.

Let me say from the onset that the publisher is a conservative Muslim think tank, the IIIT (The International Institute of Islamic Thought) in Virginia, with branches in London, Kuala Lumpur and elsewhere. They know this is controversial material, but they obviously believe this is a message that needs to get out.

Besides, the IIIT has bent over backwards to solicit eight “testimonials” at the end of the book (or “endorsements” by recognized scholars), a Foreword by a pioneer of Islamic finance, Mohammad Nejatullah Siddiqi, and a substantial Preface by one of the most respected legal theorists within the “Islamization of Knowledge” movement of which the IIIT is the leading light. This book is important to them.

So why the need for reformation? Farooq’s answer is all the abuse, misapplication and distortion of the Islamic Shari’a on the part of states and individual ulama alike. As a result, the Shari’a “is being used to rubber stamp extremist, violent behavior, the abuse of women, and the unfair control and imprisonment of human beings” (p. 16). Speaking of South Asia in particular, he writes that the following are “prevalent”: “[t]he torture and persecution of brides over their dowry, the throwing of acid onto girls who do not either want to accept a proposal of marriage or to concede to extramarital sex, the practice of honor killings and so on …” (p. 86).

Yet Farooq reserves his most stinging criticism for what he sees as the root problem – the general tendency in Islamic legal circles over the centuries toward “legalism and literalism,” that is, a focus on rules and regulations based on texts to the detriment of a consideration of the values promoted by the texts which will necessarily find different expressions in different times and climes.

Perhaps the most damning case is about slavery. Though the Qur’an in many places expressly promotes the unconditional dignity of every human being under God, “[t]he classical orthodox position erroneously argues that the Prophet never specifically or categorically prohibited the practice [of slavery]” (p. 193). Thus, the clear injunction forbidding the enslaving of freemen was turned on its head to mean that people already enslaved or captives of war were meant to remain in that condition. In turn this attitude led to the preposterous position of Imam Malik that the hadd penalty for drinking wine was reduced to half for a slave and to the Hanafi rule that a slave could marry up to two wives. In essence, a slave is worth half the value of a free person.

In light of these and many more rather egregious applications of Islamic law, Farooq broaches the topic of reformation in four steps. The first three (chapters 3 to 5) consist of dispelling long-held and deeply cherished Muslim myths about the uses of hadith, ijma’ (consensus) and qiyas (analogical reasoning). In other words, out of the four traditional sources of Shari’a only one is “divine” and therefore entirely reliable. He insists again and again that the Prophet’s Sunna is absolutely essential to the proper guidance of the Muslim community. Yet less than a dozen ahadith are mutawatir (containing a reliable chain of transmission; nearly all prophetic reports are in fact ahad). This means that the second source of knowledge for the Shari’a is “probabilistic.”

As for the two sources of jurisprudence that involve more direct human involvement, ijma’ and qiyas, their reliability turns out to be very shaky in his eyes. If even the most reliable of ahadith cannot be seen as “divine” (only the Qur’an is God’s direct word), how much more so these human tools which are so tentative by definition. Leaning as he does throughout the book on a number of scholars (with a number of block quotations that is so high and voluminous as to recall a dissertation), Farooq agrees with Abdulhamid AbuSulayman that “the simple, traditional concept of Ijma is no longer suitable for a non-classical social system” (p. 164). In fact (now quoting from Ziauddin Sardar), the early “democratic spirit” of the Islamic community was soon hijacked by “the clerics and religious scholars” who “removed the people from the equation” – with the result that “authoritarianism, theocracy and despotism reigns supreme in the Muslim world” (p. 163).

Just as with many other domains of human knowledge, law progresses largely on the basis of analogical reasoning. So there’s no denying that qiyas has played a key role over time in the development of Islamic law. Still, as Farooq deftly demonstrates, Muslim scholars disagreed about many aspects of this tool. For instance, what constitutes the ‘illa, or the reason for a particular command or prohibition in the first case? And on what basis can one extrapolate it from the text? Then what is the relationship between the original case (asl) and the new case? How many conditions must be present for that connection to be established? In the end, no clear consensus existed about any of these issues.

That said, the main problem with the way both ijma’ and qiyas were used by the ulama was that they came to be seen as infallible means of discerning God’s will for humanity. Worse yet, their tunnel vision reduced Islamic jurisprudence to texts and the mechanics of deriving new laws from them without any reference to the divine intentions behind them. “Text-centeredness” engendered the kind of legalism that has reduced the “application of Shari’a” in several Muslim countries to “a few harsh laws and punishments under authoritarian regimes devoid of reference to broader Islamic values and principles” (p. 225).

Farooq’s positive strategy, therefore, or his fourth step toward renewal, is laid out in his last chapter, “Islamic Fiqh (Law) and the Neglected Empirical Foundation.” To be fair, his first step was already anticipated in the second chapter under the heading, “Value-Orientation” (pp. 63-90), where he offered thirteen values emanating from the Qur’an and the “Prophetic legacy.” The last one could have served as a transition to the last chapter: “Embracing Life-Experience As Part of the Collective Learning Curve.”

Indeed, as the Qur’an urges its readers to “observe, think and reflect” on the world around them, Islamic law will remain stultified and irrelevant unless it incorporates not just the values stemming from the Divine Will but also a keen and curious exploration of the various phenomena surrounding us, whether in the physical world or the dynamics of human society, as Ibn Khaldun did long ago. And in particular, Farooq the economist pleads with his readers to learn from the social sciences. If they do, he argues, they will understand that the prohibition of riba in the Qur’an is meant to curb exploitive practices that bear down on the poor. But research shows that if all kinds of interest are banned, it is unlikely any economy can be grown and inflation tamed.

At bottom, this book is promoting a new usul al-fiqh – though without starting from scratch. The author’s antagonists are the “traditionalists” or “puritans” (see his very long quote from Khaled Abou El Fadl, pp. 62-3) for whom the medieval consensus of the four Sunni schools of law is “Shari’a” and therefore sacrosanct.

Farooq, obviously in the company of many other specialists (along a spectrum running from conservative to much more progressive), is advocating a fresh legal philosophy and methodology with

(a) the Qur’an as the only reference point;

(b) an approach that shuns traditional ijtihad in favor of diligent research into real life conditions of society; and with a firm moral compass calibrated with the values and purposes of Allah as revealed in the Qur’an.

Interestingly, he is also no longer in favor of using the term “maqasid al-Shari’a,” since it’s a jurisprudential term vulnerable to legalistic “takeovers.” Farooq would rather use the more theologically meaningful term “maqasid al-Islam,” or the higher purposes of Islam.

This last point also highlights one of the work’s weaknesses. Farooq raises many important questions and in my estimation makes an excellent case for rethinking Islamic legal theory. At the same time, there is much ambivalence and ambiguity in the solutions he proposes. A central issue revolves around the word “Shari’a,” conspicuously absent from the title. Perhaps his indignation over the abuse of this word in so many countries of late has led him to leave it aside and just focus on “Islamic law.” In any case, at times he uses it as God’s Will writ large in contradistinction to fiqh, the human-driven application of that will in the jurisprudence of the various schools of law. Elsewhere he writes that “the Shari’ah is essentially a human construct” (p. 93).

And then about the hudud penalties, he rails against the way they are applied in some places, but for someone who so emphasizes human solidarity and universal values he nevertheless implies they still need to be applied.

Let me point out, however, that he takes Yusuf Qaradawi to task (see my recent blog on him and my paper on him in Resources) on the issue of suicide bombers inside Israel and capital punishment for apostasy. Still, Farooq needs to state his position on the hudud more clearly.

Understandably, as Farooq has raised a host of far-reaching questions, he can only go so far in solving them in one book. As all of his quotations and all the endorsements included in the book amply attest, many others are moving in similar directions. Rethinking – or “reforming” – Islamic law in the present context is, after all, a collective enterprise.