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Is a new fiqh possible?

Updated July 12, 2013

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. ahmadelia@gmail.com