Reformation in Islamic Law
by Liyakatali Nathani Takim
In recent times, there has been much debate in Muslim circles regarding the question of reformation in the Muslim world. More specifically, questions that have been posed include: how can a religion, which is believed to be immutable and constant, regulate and serve the needs of a changing community? How can a legal system that was formulated in the eighth and ninth centuries respond to the requirements of twenty-first century Muslims? Is there a need for reformation in Islam? If so, where should it begin and in which direction should it proceed? These are some of the most challenging questions facing contemporary scholars of Islam
Jurists who argue for the reformulation of Islamic laws also maintain that the interpretations of Islamic revelation were interwoven to the specificity of those times and places. They state that jurists can only pronounce general principles, not rulings that are to be enforced at all times and places. For the reform-minded jurists, it is essential that Muslims continue to review and revise the law in keeping with the dictates of their changing circumstances.
Scholars like Ayatullah Sanei, Ayatullah Jannati, Ayatullah Mohagheg Damad, Hujjatul-Islam Muhsin Sa‘idzadeh and Mohsen Kadivar have called for a reevaluation of traditional juridical pronouncements on many issues. As a matter of fact, in my discussions with some maraji‘, I detected a distinct silent revolution within in the seminaries in Qum. The views of the maraji‘ are, on many important issues, polarized. According to the contemporary jurist Ayatullah Mohagheg Damad, since civil rules are variable, Islamic laws must change accordingly. Thus, in our own times, Islamic legal rulings must be reinterpreted based on the principle of harm and benefits and other principles established in usul al-fiqh (the science of inferring juridical rulings from textual and rational sources). Stated differently, there is a need to enact laws that are conducive to the welfare of the community even though such laws are not found in earlier texts.
Based on such principles, jurists in Iran have proposed a wide range of revision in classical formulations. Scholars like Mohsen Kadivar have argued for freedom of religious thought and belief. He states that there is no Qur’anic basis for the killing of apostates (murtad) and the imposition of religion on infidels. Restrictions in religious liberty and the persecution of heathens, he argues, contradict the essence of freedom of conscience in the Qur’an. There is a need for freedom to enter a religion and leave it. The choice between a particular religion and death is tantamount to denying people their freedom. The Qur’an endorses the logic of freedom of religion and creed. Khadivar concludes.
Ayatullah Bojnourdi, a former member of the Supreme Judicial Council in Iran, advocates for a change in the Islamic penal code. He maintains that if the process for execution of penalty (stoning) results in the denigration of Islam and causes the people, especially the youth, to demean the religion, then the process should then be revised so that the image of Islam should not be tarnished. If flogging in the public arena creates a negative impression regarding Islam, such a practice should be abandoned. This is because the preservation of the dignity and prestige of Islam is the prime task and a duty that has priority over other obligations.
According to Ayatullah Sanei, “..since the subject [women’s situation] has changed, the framework of civil laws must change too. Our current laws are in line with the traditional society of the past, whereas these civil laws should be in line with contemporary realities and relations in our own society.” Sanei maintains that women can be judges, their testimony is equal to that of men, the blood money to be paid for killing of a woman is equal to that of killing a man, and that salvation is not restricted to Muslims. Another mujtahid, Ayatullah Jannati allows women to be not only mujtahids but also a source of reference (marji‘ al-taqlid) i.e., she can issue juridical rulings that both men and women can follow.
Sanei has gone further than most other scholars. In my discussions with him he allowed women to lead men in prayers, even in a public setting. Most maraji‘ have insisted that only men can lead other men in prayers. Sanei admits that there are petrified fossilized devout ignoramuses who prevent such reforms in the law to take place. It has to be stated that many other jurists disagree with the reform-minded jurists. Such polarization indicates that far from being monolithic, Islamic law is multi-vocal and that there are differing opinions on some of the most important issues in Islamic jurisprudence. Indeed, such ikhtilaf has been an enduring phenomenon in Islamic history.
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