By Arshad Alam, New Age Islam
30 June 2021
The Only Way Out Is To Question the Sacredness Attached To the Sharia
Main Points:
• The Sharia is inherently discriminatory on the grounds of sex and religion.
• Muslims wrestle with such discrimination by bringing piecemeal reforms instead of questioning the very sacredness attached to the Sharia.
• Ijtihad cannot be done in matters of explicit instruction present in Quran and Sunna.
• In order to do comprehensive change, Muslims must get rid of the erroneous belief that Sharia is of divine origin.
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The Sharia law derives from the Quran and the Hadith. Muslims across the world have been governed by this law which was formed when the Islamic empire was expanding. Since Muslims were in a dominant position, there is very little in the Sharia which tells how they should conduct themselves when they are in a minority. Nevertheless, Muslim minorities have sought to regulate their lives on the basis of personal laws which is derived from the Sharia. In India for example, the All India Muslim Personal Law Board was established with the specific focus of protecting the Sharia.
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Whether in a minority or a majority, Muslims have continued to wrestle with the Sharia as it is impervious to change. Part of the problem has been the Muslim understanding that Sharia is a divine law which cannot be changed. However, historically certain provisions of the Sharia have been amended from time to time. At times it has been done at the behest of rulers who wanted to modernize their countries. At times, it was the result of middle-class movements (like in Pakistan and Indonesia) who wanted to reform overtly discriminatory provisions regarding women. Often, the argument in such campaigns have been that the ‘original’ Islam is not discriminatory and hence there is a need to go back to it. In India, for example, the campaign for Muslim women’s rights often uses such a tactic. So, whether one is reformist or revivalist, everyone wants to go back fourteen hundred years rather than look for solutions by marching ahead. Islam possibly may be the only religion where reform and revival mean the same thing.
That the Sharia is inherently discriminatory on the grounds of sex and religion somehow escapes discussion. Any reformist which does not question this basic premises on which Islamic law is based will only end up justifying the Sharia or making it an ideal source of law which should govern Muslims. Muslims need to question whether there is any reason to demand governance through the Sharia when clearly better codes of jurisprudence are available today.
In a Muslim majority state, religious discrimination within the Sharia derives from the fact that the Islamic law classifies people in terms of their religious beliefs and apportions civil and political rights accordingly. In this scheme, Muslims enjoy the full range of rights as citizens while non-Muslims do not. An unbeliever practically has no rights except under temporary license or safe conduct (Aman). Non-Muslim believers, especially the Christians and the Jews, may be offered a compact of protection (Dhimma) whereby they enjoy security of person and property, and a degree of communal autonomy in personal matters, in exchange for payment of a special tax (Jizya). Such a Dhimmi cannot hold all types of public offices nor can he or she testify in judicial proceedings, thus putting further limitations on their civic participation. Many interpretations of the Sharia make it amply clear that the dhimmis are to be treated contemptuously as second-class citizens by putting restrictions on matters of dress or the construction of their religious places.
When in minority, Muslims place special emphasis that they be guided by their personal laws. The personal law enables sexual discrimination by allowing a man the right to marry up to four wives as well as the right to divorce any of them at will. There is no need for him to comply with any procedural or substantive requirement or even to reveal his reasons. In contrast, a Muslim woman can only obtain a Khula (permission to be divorced) and that too by a judicial decree within very strict and limited conditions. She does not have the right to ‘divorce’ her husband as that right is reserved only for men under the Islamic law. Moreover, women under Sharia law suffer a variety of civil limitations, such as disqualification from holding certain public offices and from testifying in certain types of judicial proceedings.
Muslim apologists have largely argued that these discriminatory practices can be rectified by bringing piecemeal reforms through the exercise of Ijtihad. It has now become common place to argue that Muslims must engage in Ijtihad and that reform is possible through it. But deep down, they know that Ijtihad does not mean free thinking, rather it is itself subject to certain regulations. In particular, Ijtihad is not permitted in matters which are governed by explicit references in the Quran and the Sunna.
The hadith from which the notion of Ijtihad is derived is itself very clear in the matter of precedence. The tradition narrates that when the Prophet intended to send Muadh ibn Jabal to Yemen, he asked:
How will you judge when the occasion of deciding a case arises? He replied: I shall judge according to Allah’s Book. He asked: (What will you do) if you do not find any guidance in Allah’s Book? He replied: (I shall act) in accordance with the Sunna of the Messenger of Allah. He (the Prophet) asked: (What will you do) if you do not find any guidance in the Sunna of the Messenger of Allah or in Allah’s Book? He replied: I shall do my best to form an opinion and I shall spare no effort. The Messenger of Allah then patted him on the breast and said: Praise be to Allah who has helped the messenger of the Messenger of Allah to find something which pleases the Messenger of Allah [Sunna Abu Dawood, 24: 3585].
It is clear from the above hadith that one can seek recourse to Ijtihad only in the absence of an explicit instruction in the Quran or the Sunna. Sexual and religious discrimination is found mentioned explicitly in the Quran and the Sunna and therefore cannot be amended by individual or collective opinions. It follows therefore, that despite the best intentions of some reformist scholars, their claims of reforming the Sharia ring hollow. The only way therefore is to declare that the Sharia has become obsolete. And in order to do, Muslims first have to repudiate their erroneous belief in the sacredness of Sharia.
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Arshad Alam is a columnist with NewAgeIslam.com
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5:22 AM
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