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Is a new fiqh possible?

Updated Jul 12, 2013 08:17am


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ISLAMIC fiqh is divided in two broad domains of legal studies. The part which deals with theoretical and conceptual foundations of Islamic law is known as usul-al-fiqh.

The other part is concerned with concrete interpretations and applications necessitated by the changing historical and social circumstances of the Muslims living in different parts of the world.

There is no doubt that the framework for legal reflections and interpretations started with the Prophet Muhammad (PBUH) himself and then was followed by his companions and the scholars of the later ages. The Prophet showed a very simple methodology to formulate sound opinions about difficult and new matters faced by the Muslims.

There is a well-known hadith of the Prophet about arriving at legal decision-making and opinion-making in general. While appointing Muaz bin Jabal as administrator of Yemen, he asked Muaz how would he decide among the people. To which Muaz replied that he would decide on the basis of revealed commands of the Quran.

The Prophet asked what if he did not find relevant insight from the Quran. To which Muaz replied he would decide on the basis of his knowledge of the Sunnah (the Prophet’s practice and conduct). The Prophet asked him what if he did not find an answer from the Sunnah? Muaz said he would look for guidance from the ijma (legal consensus, opinions and agreements) of the Prophet’s pious companions in order to decide on matters of public concern.

Lastly, the Prophet asked Muaz what he would do if he did not find an appropriate answer in the lives of the companions, to which Muaz replied he would use his own qiyas (conjecture, reason) to respond to the needs of the people.

Based on this hadith and Quranic instructions, Islamic jurists from the times of the pious companions down to the colonisation of Muslim territories in the 18th and 19th centuries have identified four sources of Islamic law. These are: Quran, Sunnah, ijma and qiyas.

But what is found in the books of fiqh is mostly concerned with the theological disputes, ablution and bathing, purity and impurity and problems related to belief and unbelief. The theological crust has grown heavily over the body of Islamic fiqh. The use of ijma and qiyas became confined to the legal opinions of the individual imams of the leading fiqh mazahib (schools of thought).

This has proved detrimental to the dynamic growth of Islamic civil law spanning the last seven centuries or so. The Muslims stopped applying social principles of consensus and reason in an institutional and collective manner. They stopped following the practice of the Prophet and his pious companions who would always hold council (shura) to arrive at common legal opinions.

The Muslims became oblivious of this wise practice because of peculiar political hegemonies of Muslim kings and sultans for many centuries. History does provide us individual examples of juristic endeavours, but hardly any proof of institutional and collective efforts needed for the evolution of fiqh for an ever-changing Muslim society.

Society and culture moved on, faced with new and dynamic forces of internal and external change, while fiqh remained firmly rooted in the epistemological imperialism of the middle and late Middle Ages. This legal and cultural stagnation is characterised by a deep and complete silence towards the contemporary social, economic, cultural and political needs of Muslims across the globe.

The spirit of fiqh articulated by the Quran, the Prophet and his pious companions became hostage to a historical illusion of Muslim imperial domination of the world.

According to new historical conditions of Muslims, particularly in the modern world, the juristic authority must shift from the hands of a few self-styled muftis of madressahs to the broader institutions of lawmakers who are due representatives of the public. These lawmakers must reinterpret and apply the rules of the Quran and Sunnah to the evermore complex social and cultural circumstances faced by the Muslims.

These new reinterpretations can vary from Asia and Africa to Europe and North America. The lawmakers should spend more time on the study of new developments in economics, sociology, genetics, mathematics, business and information technology, in order to arrive at the new codification of Islamic civil law for the smooth and orderly functioning of complex modern social systems.

Similarly, civil codification of law must be separated from the theological classifications of fiqh connected to the domain of Muslim beliefs and rituals.

There are certain areas which require urgent new legal codification of Islamic civil law. For example, is the new knowledge economy managed by electronic financial transactions permissible? Can individuals get themselves insured when the state is not ready to provide them risk cover if they become sick, jobless and fall victim to accidents? Is biological research on infant stem cells permissible in order to enhance the quality of human life? Can a retired lady teacher deposit her pension in a bank to receive a secure income on a monthly basis when she has children and a family who are dependent on her income?

Who can reinterpret fiqh — an individual mufti of a traditional madressah, a nominated council or the elected representatives of the public? Who should hold political authority over Muslims — an elected body based on adult franchise, or a hereditary king? What is the Islamic legal position on stocks and share markets and investments?

These questions are the product of new cultural practices and require new answers.

The writer is a social scientist based at the University of Management and Technology, Lahore.

The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.

Comments (45) Closed

Agha Ata Jul 12, 2013 08:25am

It is not possible. We can't change our modern needs according to the Fiqh, and we can't change the Fiqh according to our needs.

Munir Varraich Jul 12, 2013 10:22am

The questions asked by the author are being posed by the younger generation in Europe and America.

However, the Ahmadiyya Muslims have a central source - the office of their Khalifa tul Masih to get their answers to such questions.

SK Jul 12, 2013 10:32am

"But what is found in the books of fiqh is mostly concerned with the theological disputes, ablution and bathing, purity and impurity and problems related to belief and unbelief. The theological crust has grown heavily over the body of Islamic fiqh. The use of ijma and qiyas became confined to the legal opinions of the individual imams of the leading fiqh mazahib (schools of thought)."

Has the author ever read a classical book of Fiqh? Has he learned the Arabic language? It seems that he has done neither because he doesn't even know what those books contain. All major works of all the different schools contain chapters on contracts, business organization, criminal law and international law. Theology is a completely separate discipline with completely different types of books and traditionally books of Fiqh were confined to the domain of pure law. Which is why jurists like Ibn Rushd who did not follow traditional Sunni theology were able to write highly revered books of Islamic Law based on the four schools of thought like the Bidayat al-Mujtahid.

Kaleem ullah Leghari Jul 12, 2013 11:28am

I agree with the writer regarding the status of 'Fiqah' in Islam.We need to open a debate in this regard if we want to get out of the state of stagnation of Islamic jurisprudence.Dr Mohammad Iqbal has initiated this debate in his famous lectures in Allahabad which has been published entitled as 'The Reconstruction of Religious Thought in Islam'; the title of which speaks for itself.

Muhammad Ashraf Jul 12, 2013 11:28am

Islam does not restrict anybody in becoming FAQUIEH. One can become a doctor by studiying medical sciences, similarly to become a Faquieh, one should have thorough knowledge of Quran, Sunnah, and principles of Fiqa. He may be anybody, a Mufti from a Madrassah, a member of a Lagislative Body.

gohar Jul 12, 2013 11:43am

the hadith Quoted by Writer does not have ijma option to mauz bin jabal , there was no ijma at time of prophet (SAW) as it was time of revelation , he received direct instruction from Allah. mauz bin jabal replied to prophet (SAW) that he will fallow firstly Holy Quran then Sunnah lastly he will do his best by exercising his judgement , kindly rectify it..

Abdul Wahid Jul 12, 2013 11:55am

Do you think the current public representatives, who mostly have minimal or even no knowledge of teachings of Islam, can decide on matters related to Islam? This also negates from the hadith quoted by you, which allows the shura of pious people to decide on such matters. The persons to be eligible for election for this shura should first be screened thorugh some eligibility criteria regarding knowledge and practice of Islam. Many of current economic matters like banking and insurance, as stated by you, are being researched and resolutions are provided by prominent Islamic scholars that are being practised in many countries including the western ones and are very popular.

Salah Uddin Jul 12, 2013 12:20pm

Sir, thanks for highlighting the "ibadaat" part of Islamic jurisprudence, or Fiqh. Nevertheless, I would like to mention that fiqh also covers other aspects of life, social, political, legal, economic and international relations. Please read a very good book written on Ijtihad by Prof. Imran Ahsan Khan Niazi, titled "theories of Islamic law: The methodology of Ijtihad". You may read Almawardi's books on politics, Justice Taqi Usmani's books on Islamic banking, Prof. Munir's work on Islamic law related to armed conflicts. Ijtihad is an ongoing process, but one needs to have the legal/ jurisprudential knowledge to understand it. Above all, the supreme court of pakistan is constantly involved in this evolutionary process.

Imran Jul 12, 2013 01:19pm

Another Fiqah? No............please spare us.

Parvez Jul 12, 2013 02:41pm

Excellent article................anything is possible if the will to do it is there.

Rihat Jul 12, 2013 02:43pm

Oh what a brilliant article Ahmad Raza bringing the salient issues to the fore.

Another important issue on the agenda should include birth control and appropriate contraception methods.

On the lighter side, here in UK we have some Pakistani outfits selling "halal" insurances. So there are ways around to deal with similar problems !!!

Pakistani Jul 12, 2013 03:15pm

All the questions the writer is asking have been aptly answered. One only need look in the right venues, and seek the right teachers, rather than relying on self study, specially in the case of pursuit of religious knowledge. Without the right framework, we are left to our own interpretations of Quran and Sunnah, which, however sincere, is a risky path to follow.

afroze fatemah Jul 12, 2013 03:21pm

why are you so baised ? dont like a healthy deabte ?

Farooque Jul 12, 2013 03:57pm

Excellent article with valid point on fiqh & this most certainly possible but alas it will never happen.

Afzaal Khan Jul 12, 2013 04:15pm

JazakAllah for such thought provoking and timely article, this was much needed. The divide between state and imam's continue this day. Legislative body (preferably elected) is the only answer.

Afzaal Khan Jul 12, 2013 04:16pm

@Agha Ata: Fiqh is opinion, a legal one but not binding. I am not bound to accepted even a Imam's personal legal opinon i.e fatwa, unless Islamic state adopts it. Fiqh i.e legal interpretation can always be changed as per times and new evidence. Sole criteria is Quran & Sunnah

Muslim Jul 12, 2013 04:25pm

Islam is not the religion only; it is complete code of life. Islam is complete and all the questions asked by the novice writer are answered direct in Quran and Sunnah. One should put efforts to study the deen

Kian Shahid Mehmood Jul 12, 2013 04:50pm

In a planned way the institutions like Ijma and Qayas were discouraged by the vested interest of Mullah, they want have their control over the thinking process of common Muslims. The remedy for progressive deduction of Islamic Fiqah is, discourage Mullah and encourage enlightened jurists.

Tariq Jameel Jul 12, 2013 05:05pm

@Muslim: so what does quran say about genetic engineering?

NK Jul 12, 2013 05:18pm

@Pakistani: This dude means; dont think and go back to the mullah.

NK Jul 12, 2013 05:26pm

Excellent thought provoking article. We can not fool ourselves by believing that there are efforts for evolution in fiqh in shape of books etc. What good is a fiqh if it does not translate itself into a vehicle for developing and sustaining healthy societies? Today, unfortunately, most of the our (Muslim) societies around the world are sick and ailing. If there is good thought, it is sidelined and holds little influence. The bigger your stick and beard, the bigger your influence. We need intentional interventions to reduce the influence of fundamentalists on our societies through presenting the true liberal face of Islam.

Syed Ahmad Jul 12, 2013 06:18pm

Mr. Raza this article was nothing but intellectual diarrhea.

Rafay Bin Ali Jul 12, 2013 06:26pm

A well written article. To address the question raised by the article, I think, a new fiqh is impossible solely in Pakistan's context. This need, may however, be fulfilled by more enlightened Muslims societies such as those based in the West or elsewhere; certainly not in Pakistan because of the growing volatility and conservatism found in the society. However, yet, there is an urgent need to explore Islamic jurisprudence in the light of the changing world - most important, with the advent of technology.

There is just one question, if the author may please clarify. When the author cites an example quoted ", is the new knowledge economy managed by electronic financial transactions permissible? " This is somewhat unclear to me. Going solely by what the example reads, I see no reason where an economy that is managed by e-transactions is not permissible. Can the learned author please clarify?

Thanks, Rafay

Mohammad Bajwa Jul 12, 2013 06:27pm

The gap between various schools is narrow. No one has ever tried to close it. Take for instance the timing of "sehri/Iftari". There is ten minutes difference between Jafferia and Hanifia. If the purpose of fasting is to cultivate piety,or even feasting, then ten minutes difference is not going to make any difference,

Ishtiaque Husain Jul 12, 2013 06:27pm

Fiqa e Jaffaria already have solution to all modern issues and on any new issues scholars of Islam get the solution on be basis of Quran, sunnah, hadith, if any solution is not against Islam fundamental pillars then it is acceptable. We call it " Ijtehad" and only mujtahid can do this as he is expert in the feild of Islam. We do not allow Moulvi of Masjid to do this as his knowledge is limited. Mujtahid is like PhD in Islam. Once he get that degree then he can practice that. We also have grand Ayatullah and we follow him on any new issues. You can check Ayotullahs Seeshtani , he has written so mnay books on many issues, so instead of developing new fiqa based on represtentatives it is better to study Fiq e Jaffaria. Many scientist are produced from Imam Jaffer e Sadiq school, in the feild of Chemistry, medicine, Phyics etc.

Bilal Jul 12, 2013 08:02pm

How about ditching the religion all together and coming up with laws that suit this age?!

Haseeb Jul 12, 2013 08:57pm

@Agha Ata: then u are not believer. u needn't worry about anything bro.. :)

Shakeel Jul 12, 2013 09:02pm

Review of fiqh should be a continuous process. It is not necessary to create a new school of thought but it is necessary to have a constant review process of ijma and Qiyas in accordance to dynamic new environments and problems as well as the light of Quran and Sunnah.

I envisage 2 main obstacles; 1. Qualified resource. 2. Institutions

Qualified Resource: This brings up the question of who is responsible for this review? I don't trust politicians or lawyers to be responsible for it. I don't really trust a lot of our modern "ulema" either. There is a major lack of adequately educated individuals to be able to carry out this process. We need people who have scholarly levels of knowledge in Islam, as well as individual wordly matters, such as a branch of science, or finance etc. We need experts to help this process along, not elected or selected representatives. There are some individuals who are knowledgeable to help start up this process, but the multi skilled talent is severely lacking. An alternative is to have teams of experts working together, religious experts working alongside subject matter experts in worldly matters, to try and bring about answers. If you look back at the great scholars of Islam, they were educated in more than just religion, which allowed them to have an impact on society.

Institutions: As a process that should be carried out by institutions not individuals. We should look to establish ethics boards, boards for the review of legal rulings and judgements, experts who are embedded within industries and government departments working together on a day to day basis feeding into a central legislative body. Take Dr Tahir Ul Qadri (or any other educated molvi), he's a controversial figure, politically motivated at times, tainted by people's opinions on his public stances on matters. However he is an educated individual, he knows about the legal system and he knows about Islam, it's fair to consider him a subject matter expert in both. When he makes a decision, it carries no weight with anyone but his followers. Whatever institution is established must be able to have genuine influence and be able to feed into the administrative and legal pillars of our society.

As Muslims we find ourselves at a cross roads. Those of us lucky enough to be educated should stand together and take ownership of our country and our religion. We can't let our ship be steered on the whims of politicians and molvi's with tunnel vision.

Ali K Jul 12, 2013 10:12pm

@Munir Varraich: Almost all Muslims have such sources. It is not specific to Ahmadiyya only.

Ali K Jul 12, 2013 10:16pm

Ironically, we hail Allama Iqbal and read his poetry with ferver, but we are not aware that he authored a study titled "The reconstruction of Islamic thoughts". In this study he laid down the requirements for a modern Islamic government to re-interpret or elaborate the Islamic constitutions to address modern and innovative issues the wold would be faced with in near future as today. Alas, like the teachings of Quran and Prophet (PBUH), we Muslims, particularly Pakistanis, have limited our practices to a very very superficial understanding of Islam.

ZULFIQAR HAIDER Jul 12, 2013 11:33pm

Does not the answer lie in IJTEHAD?

Zafar Jul 13, 2013 03:10am

Perhaps the writer is not aware of the intellectual discourse taking place in the Muslim world. The discussion on the matters raised, and many others, are topic of discussions at many different levels. Sometimes these discussions are part of more "modern style" councils, and other times they come from traditional seats of learning.

However, sometimes the answers are not to our likings. For example, Riba is not Halal, no authority based on Qura'n and Sunnah can make it Halal. So the thing to do is to establish institutions which eschew Riba. Notwithstanding that, individual circumstances may dictate a person to rely on RIba based support networks, and in Islam there is well established precedence for that.

Badar Jul 13, 2013 04:39am

A good article...but some of the suggestions should be reconsidered.

Ijmah and Ijtehad should be performed should not be performed by lawmakers. Do members of Pakistan's assemblies have the intellect for the same? Look at how they make laws for the country ...often without debate..more by raising hands..or in other cases by shouting at each other.

Another issue is Muslims being divided in so many different sects and schools of thoughts. That was not the case during earlier decades of Islam.

Anyhow, it better be done by establishing bodies where individuals well versed in religion, law, Islamic history and sociology should perform intellectual discussion before reaching conclusion both on the basis of Quran and Hadith as well as norms of current society. A balanced approach is always the best approach

lodhi Jul 13, 2013 07:59am

@Muslim: What is the solution of loadshedding problem?

G.A. Jul 13, 2013 08:14am

It's a 'fiqh'ment of your imagination.

Abdus Salam Khan Jul 13, 2013 09:45am

@Munir Varraich: May I add that Ahamdis generally follow the Hanafi school of Fiqh, but their Mufti, the head jurist, can exercise Ijtihad in cases where Hanfi school is silent, or not in conformity with the Quran and the Sunnah,or it is an entirely new issue. For instance, genetic engineering is not covered by the Hanafi code, so the Mufti, with the help of other senior scholars, shall have to confront this new issue using Ijtihad and Qiyaaas.

Rehan Jul 13, 2013 09:56am

Atleast first do Ammal on the usul-e-fiqh pertaining to Emaan, Aqaid and Purification, then move on to the other part. Always complaining, at least act on that which is the fundamental truth? Or you want to reform that as well ?

Islam can not be manipulated in order to please the public.

Abdus Salam Khan Jul 13, 2013 10:11am

In his Madras lectures Allama Iqbal suggested that eventually the National Assembly shall have to deal with the development of Fiqh as new issues confront us. in this context may I suggest that certain number of seats should be reserved for the learned Faqihs( jurists). The rest of the House should be guided by these Faqeehs.

sodium11 Jul 13, 2013 10:23am

Muslims must set aside certain commandments in the Qur'an when they no longer fulfill the larger need to act justly and fairly toward all people. FOR EXAMPLE: the Qur'an says that male heirs receive twice the inheritance of females. This is no longer compatible with justice

iqbal carrim Jul 13, 2013 02:54pm

If not Ijma or Qiyas,where can we decide whether excessive profits on essentials (especially those consumed by the poor) are as equally disdainful as usury?

Muslim Jul 13, 2013 09:04pm

@Tariq Jameel: Genetic Engineering per say is a length of a subject...what actually you want to know.....will you elaborate.

Syed Nazim Jul 13, 2013 11:52pm

Quran says: Muslims, Jews, Chritians and sabins who so ever believes in God, last day of judgement and do good deeds will be rewarded by God and they will have no fear or regrets. THIS IS A MISSION STATEMENT. We should judge ourself in this light. Because of our deeds we are left behind in this world and also suffering. it is doubtful we will be rewarded on the day of judgement either. Fiqah or no fiqah we must collect best doctrines and practices that will lead to peaceful God fearing society, free from exploitation and injustices. Good deeds comes first then any thing else.

waseem Jul 14, 2013 01:12am

@Syed Ahmad: Well, intellectual diarrhea is one million times better then constipation of ignorance. So open some doors and let some freshness reach your intestine. (You don't need anything for your head as there is nothing over their)

Omer Jul 14, 2013 02:47am

Trust Dawn to let a liberal novice explain Deen. Mr. Ahmad Raza has not read the history of Fiqh or the History of Islam and it clearly resonates from this article. For anyone wanting to learn Islam, Dawn is hardly the source for it. I read Dawn for the liberal horse shit they want us to believe in

gee Jul 14, 2013 03:57am

Mr. Syed Ahmed you are right on this articles is nothing but insult to intellect. Being the master of my own destiny I will use my own head; no outmoded books or people with unscientific mind needed.