According to Hanafi Law a child born within 2 years of dissolution of marriage will be considered legitimate. Meanwhile according to Maliki and Shafi laws this period extends to 4 years. So clearly under these Fiqhs the period of human gestation lasts any where up to 4 years maximum. Shia law is a notable exception in so much as it prescribes a period of 10 months which is obviously scientifically verifiable.
This is just one of the many areas where traditional Sunni schools of fiqh in Islam fail miserably in doing justice. In Family Law, the plight of those suffering under incomprehensible misinterpretation of Islam is overwhelming.
Two famous cases from India come to mind i.e. the Shah Bano Case and the Imrana Case which I’ll cover in future articles in some detail. Needless to say the Indian Muslim Law board, completely in the hands of Ulema from Dar-ul-Deoband of India who are sustained by that country’s rulers in the name of Muslim vote bank, has time and again shown the unwillingness of those calling the shots in matters of Islamic thought in India to move forward.
The situation in Pakistan is only marginally better because very early on it chose a rationalist Islamic scholar, Ghulam Ahmed Parvez, to draft its Muslim family laws. Whatever little gains for women’s rights and progress of Islamic law that we achieved, were squandered in the 1980s with the institution of Hudood Laws. Now 25 years on, no one has
dared to question the legitimacy of these laws which are like a sword of Damocles on every Pakistani Muslim’s head.
However one thing is certain: today more than ever before Islam needs a new Fiqh to implement its Shariat. Not many Muslims today appreciate the difference between these two very important and distinct terms. Shariat is a set of irrevocable and eternal principles of Islamic doctrine. Fiqh is the understanding of Shariat and the Jurisprudence that embodies that understanding. Classical Islamic Jurists especially the five major ones- Imam Jaffar Sadiq, Imam Abu Hanifa, Imam Malik, Imam Hanbal and Imam Shafi- lived in 8th and 9th centuries A.D. They were in main jurists who wanted to codify Islamic Law for both personal consumption and for the judicial system of the Abbassid Caliphate. Using the Shariat as understood from the Holy Quran, operating on the essential and acceptable moral principles, customs and ideas of the time as well as the ever expanding needs of a great global Empire, these jurists formulated a remarkable study of individual cases, precedents etc in the best of legal traditions- something which was to be followed much later in the formulation of English Common Law.
As jurists with open minds, these gentlemen probably never imagined that the painstaking hard work that they had put in would be useful beyond their time. Nowhere did they make their expositions of Islamic law compulsory on anyone especially posterity. I am sure as men of vision they understood that nothing is static and everything is subject to change. Which is why, we, the Muslims, have insulted their intelligence and ours by making a dogma out of their fiqhs, instead of studying them as pieces of history as we do Hammurabi’s tablets. The best way we can celebrate the work of these great pioneers of Islamic jurisprudence is by emulating their example and creating new understandings of Sharia, based on advancement in science, technology, medicine, philosophy and what not. Instead of doing so, we crystallized the whole process, banished those who protested and closed the door of Ijtehad forever.
The need for Ijtehad has been acutely felt in the Sunni Muslim world. Amongst the shiites Ijtehad has continued in their own way which has ensured that Shiite Islam is open to Modern ideas and thought. But within the Sunni Muslim world, lack of Ijtehad has seen two major revolts in opposite directions- Wahhabiism and Sufiism. Wahhabiism has sought to nullify all traditional Islam and return to very simple basics that suit the tough and arid desert conditions but not the lush green valleys and plains beyond. Sufiism on the other hand has emphasized spirituality over Law and in doing so has completely bypassed the whole debate. Therefore mystic Islam operates outside the boundaries of Islamic Jurisprudence or at the very least the mystics are not bothered by them.
This is why Sufi Islam is much more accepting of personal choices which might be a major no no within the Islamic tradition! Others like Afghani, Sir Syed, Iqbal and Pervez have called at times for a complete reconstruction of religious thought on the basis of Ijtehad and Quranic principles. Yet there has been no organized movement towards the formation of a body of eminent scholars that can undertake such an arduous task and formulate a new fiqh for the 21st century.
In my opinion, a body with Muslims extracted from all parts of the world and cultures should be formed. While a percentage of these should be experts of existing jurisprudences, a significant portion of this body should consist of eminent Muslims who have excelled in fields of science, technology, law, medicine, philosophy and even women’s issues. Each member should be the top most expert available in the field and each member should have an unimpeachable record of integrity and honesty. Most importantly, each one of them should believe in the mission of formulating a new fiqh for our times and should not be swayed by their own personal likes and dislikes.
This body should be left to deliberate for as long as possible, with the tab to be picked up by the oil rich kingdoms and republics of the Arab world. The final product should be a comprehensive database of all possible situations, cases and issues of the present time as well as the foreseeable future. A timeframe should be set for the body to meet every 50 years.
Footnote: Disclaimer: I am not a scholar of Islam nor do I fancy myself as one. However as a Muslim, I believe it is my duty to point out the need of the time and perhaps outline a plan of action. Above is a simple narration of facts and a plan of action required in my opinion to not only modernize the Islamic tradition of law but in doing so bring it closer to its true intent: to create a just and humane society here on Earth.
*Written before I came to view any attempt at reforming Sunni tradition as graft on deadwood.
*First published on Chowk http://www.chowk.com/ and reprinted in TAM with permission of the author.