For a
thousand years the Sunni ulama have preached that the Islamic Shari’a is the
unchangeable law of God sent to the Prophet Muhammad in the Arabic Quran to be
the perfect way of life for the Arabians of the desert as well as for all
mankind for all time.
This
article contends that certain Prophetic statements and sayings ought to make it
possible to modernize Shari’a laws by the agreement of a majority of Muslim men
and women in Muslim countries, or by the agreement of a majority of their
chosen representatives.
Democratizing
the process of law making in Muslim societies
According
to more than one canonical Hadith collection, the Prophet reportedly said: “My
community reaches no agreement that is an error” [The Six Books.The
Hadith Encyclopaedia, Sunan Abi Dawood, Hadith tradition 4253, p. 1532; and
Jame’ Al-Tirmithi, Ibid., Hadith tradition 2167, p. 1869; and Sunan Ibn Maja,
Ibid., Hadith tradition 3950, p. 2713]. This Hadith makes the truth in all
matters dependant on whatever the Muslim community agrees upon.
Why has
Consensus of the Sunni Ulama (see the “background” section below), not the
Consensus of the Muslim Community, become one of the four sources of Sunni law?
Why has the Sunni ulama succeeded in substituting themselves for the “community”
in the subject Hadith? The answer is that before the advent of electricity,
computers, telecommunications, and modern polling techniques the gauging of the
Muslim community’s opinion in its far-flung lands was impossible. Under such
conditions, the opinion of a caucus of religious experts was an acceptable
pragmatic approximation to the Hadith’s requirement. The ulama’s specialist
knowledge and relatively small numbers qualified them for the task. Indeed,
this Hadith could have been behind the development of the Consensus of the
Sunni Ulama concept, notwithstanding the weaknesses inherent in the selection
process of the appointees to such bodies—who would qualify for membership in
the caucus, who would select the appointee, etc.
In the
modern age, however, electricity, computers, telecommunications, and modern
polling techniques have made referendums on specific issues simple, just as
these technologies have made the election of community representatives easy.
Modern technology has rendered Consensus of the Sunni Ulama obsolete. On the
other hand, due to modern technology, the word and spirit of the Hadith: “My
community reaches no agreement that is an error” can now be observed more
faithfully than ever before.
The subject
Prophetic statement could have far reaching implications on law making in
Islamic communities. In this regard, four issues may be raised:
The first
issue relates to what constitutes the “community” in today’s world. Is it the
body of all Muslims in their 55 sovereign Islamic kingdoms and republics? Or,
is it the Muslims of each country separately? The answer is that since the
Muslim peoples at present live in so many states, speak scores of languages,
and belong to numerous ethnicities, pragmatism and realism suggest that until
such a time as the nation of Islam, or umma, becomes unified into one state the
word “community” ought to signify the Muslims of each Islamic country
separately.
The second
issue relates to who among Muslims in the “community” is eligible to vote or
run for office. The answer is that every Muslim man or woman should be eligible
to vote or run for office. In 16:97, God says in the Quran: “Whoever works
righteousness, man or woman, and has faith, verily, to him will We give a new
Life, a life that is good and pure.” In 40:40: “Whoever does right, whether man
or woman, and is a believer, will enter Paradise.” In 49.13: “Oh people, We
created you men and women… The most honored of you in the sight of God is the
most pious.” The Prophet has reportedly said: “All faithful in the sight of God
are as equal as the teeth of a comb.”
The third
issue relates to the degree of consensus needed to render an “agreement” valid.
Does the “agreement” require the approval of every member of the community? Or,
is the agreement of the community’s majority sufficient? In answer, the Prophet
has provided the answer to this question. In the later part of the
above-mentioned Hadith tradition (number 3950 in Sunan Ibn Maja’s
collection), the Prophet reportedly added the statement: “In the event of
disagreement, the opinion of the majority must prevail”.
The fourth
issue relates to the subject matter(s) that might be covered in the
“agreement”. Does “agreement” refer to a specific issue or to all issues in
general? The answer is that since the Hadith did not specify a particular
matter, nor did it exclude any, then the “agreement” may apply to any matter
imaginable–theology, law, and rituals as well as secular matters.
The above
four issues make it possible to conclude that the subject Hadith opens the door
in Islamic countries to the creation of legislative chambers akin to Western
parliaments, not parliaments under Islamist democracy (for the difference between the two types of democracies please see the "Background information" section below). It may be further argued that Muslim countries that hinder the
emergence of such legislative chambers would be in violation of the subject
Hadith.
The
legislative powers of the legislative chambers allow Muslim representatives to
enact laws that could evolve a different way of life from Shari’a laws.
However, if Islamists take control of their country’s legislative chamber,
Shari’a laws will remain intact.
Western
style parliaments are common in non-Arab Muslim countries. Populace Bangladesh,
Indonesia, Pakistan, and Turkey, countries representing more than 50% of world
Muslims enjoy democratically elected parliaments. Although, except in the case
of Turkey, peer pressure, caution, and self-interest have tended to limit law
making initiatives outside traditional Islamic thought and precedents, the mere
existence of democratically elected parliaments, let alone having, or having
had, women presidents and prime ministers in these countries provides a solid
platform for added momentum in modern law making in the future.
Arab
countries, by contrast, lack democratic elections and independent parliaments.To perpetuate their dictatorships, Arab rulers and palace ulama invoke certain
provisions in the Islamic creed that help strengthen their grip on the Arab
peoples. With Quranic verses and Hadith traditions that demand blind obedience
to Muslim hierarchical authority, Arab kings and presidents indoctrinate their
subjects into believing that blind obedience to Arab absolute rule is a form of
Islamic piety.
While
non-Arab Muslim countries possess important elements to modernize Islamic law
Arab rulers represent an obstacle in the way of progress into the laws of the
modern age.
Background
information
- To Sunnis,
the Islamic Shari’a has four sources from which and through which all likely
religious development may be derived. The first source is believed by Muslims
to be divinely inspired; namely, the infallible Quran. The other three Sunni
sources were man-made. They evolved during the first three centuries after the
death of the Prophet in 632. The three sources were constructed by the ulama in
the service of political rulers/benefactors. The first of these sources was the
making of the Sunna [purported sayings (Hadith) and actions (Sira) of the
Prophet] into a source of law equal to the Quran. The other two man-made
sources were Analogical Deduction (Qiyas) and Consensus of the Sunni Ulama
(Ijma’a).Through Consensus of the Ulama, important decisions were made,
such as bestowing a canonical status upon the attributed sayings and actions of
the Prophet, which were collected by six scholars—Al-Bukhari (d. 870), Muslim
(d. 875), Ibn Majah (d. 886), Abu Dawood (d. 888), Al-Tirmithi (d. 892), and
Al-Nasai (d. 915).
The Sunni
ulama preach that with these four Shari’a sources, and with the four Sunni
rites, or schools of jurisprudence, named after their founders—Abu Hanifa (d.
767), Ibn Hanbal (d. 855), Malik (d. 795), and Shafe’i (d. 820), traditional
dogma and all doctrinal and juridical requirements became forever complete.
Ever since that time the Sunni ulama succeeded in keeping the door shut on
forming a new religious opinion or further interpreting the Quran and the Sunna
traditions.
Because the
majority (about 85%) among the estimated 1.4 billion Muslims in the world are
Sunnis, this article has focused on Sunni law making. For completeness, it
ought to be mentioned that Twelver Shi’ites, the majority of Shi’ites today,
utilize three Shari’a sources—Quran, Sunna (Shi’ite version), and intellectual
reasoning (aql) of the senior Shi’ite ulama: the representatives, or deputies,
of the Hidden Imam (the twelfth descendant of Ali, the Prophet’s cousin, and
his wife Fatima, the Prophet’s daughter) uncovering for the masses what the
Hidden Imam would have ruled on all matters facing the Shi’ite
communities.
- Is Islamist parliamentary democracy consistent with Western parliamentary
democracy? The answer is no. Whereas sovereignty under Shari’a is to God alone,
sovereignty under Western democracy is to the people. The legislative parliament
in an Islamist democracy would not be the final authority in
lawmaking. Islamist parliamentary democracy would superimpose an appointed
Islamist constitutional court, similar to Iran’s Council of Guardians, on top
of an elected parliament to ensure compliance of all parliamentary legislation
with Shari’a.
Is the
Islamist constitutional court similar to Western constitutional
courts? Again, no, it is not. While the former adjudicates according to the
ulama’s interpretations of God’s law, the latter adjudicates according to man’s
law. In case of ambiguity, the Islamists would turn to the senior ulama for divine
inspiration; their Western counterparts would return to the parliament.
