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Democratizing Islamic Law making

May 2009
 
 
The Sunni ulama have for more than a thousand years preached that the Islamic Sharia is the unchangeable law of God sent to the Desert Arabians through the Prophet Muhammad as the perfect way of life for mankind; as suitable to today’s living as it was in the seventh century. The Sunni ulama preach that with four Sharia sources and four schools of jurisprudence, or rites, (see below) traditional dogma, and all doctrinal and juridical requirements are forever provided for. Consequently, the Sunni ulama succeeded in keeping the door shut on forming a new religious opinion or further interpreting the Quran and the Sunna Traditions [the reported sayings (Hadith) and actions (Sira) of the Prophet)]. For the Muslim rulers, this story has perpetuated their absolute authority over their subjects. Upon the ulama class, the story has conferred lucrative careers and privilege.
        This article contends that Sharia dictums are changeable. Because the great majority, 85%, among the estimated 1.25 billion Muslims in the world today are Sunnis, the article focuses on Sunni law making. The article starts by describing the Sunni Sharia construct. Then, it outlines a democratic process for Sharia law making.

The Sunni Sharia construct
To Sunnis, the Islamic Sharia has four sources from which and through which all likely religious development may be derived. The first source is divinely inspired: "God’s word" in the Holy Quran. The other three sources were made by the Sunni ulama and their political ruler/benefactors during the two and a half centuries following the death of the Prophet in 632 A.D. The most significant development has been the success of the ulama, notably Al-Shafei (d.820), in enshrining the attributed Prophetic Sunna Traditions as a source of law equal to "God’s word" in the infallible Quran, although the Quran has not made the Sunna a source of Islamic law and despite “God’s attestation” in the Quran that the Quran contains every thing mankind needs to ever know (in 6:38: “Nothing have we omitted from the Book,” and in 16:89: “We have sent down to thee the Book explaining all things”). By the ninth century, hundreds of thousands of Traditions circulated around the Muslim world, a big proportion of which was spurious. To separate the true from the false, Sunni scholars judged that a few thousand Traditions were genuine. The work of six specialists was especially notable that their compilations became recognized by later Sunni Muslims as authoritative. These unique Sunna books bear the names of their authors: 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 other two man-made Sunni sources were Analogical Deduction and Consensus of the ulama. Through the Consensus of the ulama important decisions and Fatwas (religious opinions or rulings) were reached; such as, elevating the six unique Sunna Tradition books to canonical status (to Shiite Muslims, Analogical Deduction and Consensus of the ulama are of no use; replaced by the personal philosophical reasoning (Aql) of the senior Shiite ulama).
        Sunni Muslims may follow any one of four rites: the relatively liberal Hanafi rite, named after Abu Hanifa (d. 767); followed in West and Central Asia and in the Indian subcontinent, the Maliki rite, named after Malik (d. 795); followed in North and West Africa, the Shafei rite, named after Al-Shafei (d. 820); followed in East Africa, South Arabia, and the Malay Archipelago; and the extremist Hanbali rite, named after Ibn Hanbal (d. 855); followed by the tiny Wahhabi minority (2% of world Sunnis) of Saudi Arabia and the Talibans of Afghanistan. Each of these Sunni rites encapsulates for its adherents all they need to know about the Islamic way of life.

Democratizing the process of Sharia law making
An indication from the Prophet on the role of the Islamic community in law making could reflect Islam’s attitude towards evolving the Islamic Sharia with the changing times. The Prophet reportedly said: “My community reaches no agreement that is an error” [attributed by the Hadith compilations of Ibn Maja, Abu Dawood, and Al-Tirmithi.
        This prophecy was the foundation upon which the Consensus of the ulama became one of the four sources of Sunni Law.
        Why has Consensus of the Sunni ulama, not the consensus of the Sunni community, become a source of Sunni law? The answer may be found in the success that the ulama achieved in positioning themselves in the Prophetic saying as the representatives of the Sunni community.
        Such success is not surprising. Before the advent of electricity, computers, telecommunications, and modern polling techniques, gauging the opinion of the Muslim community in its far-flung lands was a practical impossibility. So, a caucus of religious experts was needed. The ulama were the obvious choice. Their specialist knowledge qualified them for the task.
        In the modern age, however, electricity, computers, telecommunications, and modern polling techniques have made referendums on specific issues simple just as they made the election of community representatives easy.  Modern technology has rendered the consensus of a narrow and un-elected caucus like that of the ulama obsolete. In its place, the consensus of a regularly and periodically elected body, to be called, for example, Religious Parliament, would be more consistent with the word and spirit of the Prophetic Tradition. It may be said that modern technology has enabled the prophecy: “My community reaches no agreement that is an error” to become a reality.
        In the Prophetic Tradition, the word “community” raises three questions:
        The first relates to what constitutes the “community.” Is it the body of world’s Muslims? Or, is it the Muslims of each country separately? The answer is that since the Muslim peoples today are divided into many countries around the world with dozens of different languages and ethnicities, then the word “community” signifies the Muslims of each country separately.
        The second question is concerned with who among the Muslims is eligible to vote in the referendums or run for office in the elections for the Religious Parliament. The answer is that every Muslim is eligible; the ulama as well as the lay people. The Prophet was reported as saying: “All faithful are as equal as the teeth of a comb in the sight of God.” In 49.13, God says: “The most honored of you in the sight of God is the most pious.”
        The third question relates to the degree of the required consensus. Does consensus mean the agreement of every member of the “community”? Or, is it the agreement of the majority of the people in the “community”? In answer, since a unanimous consensus of all the people is a practical impossibility, consensus must mean the agreement of the majority in a referendum, or in the Religious Parliament. Further, the Prophetic statement, according to Ibn Maja, specified that in the event of disagreement, the opinion of the majority must prevail. Indeed, the Prophetic statement did not specify unanimous agreement. Moreover, the existence of four different Sunni rites may be regarded as a pragmatic response to the impossibility of achieving full agreement.
        Replacing the consensus of a non-elected caucus like the Sunni ulama by the consensus of the majority of the elected representatives of the Sunni community would solve the weaknesses inherent in selecting caucus members; like, who appoints members of the caucus and who among the ulama may qualify for membership? Allowing the Muslim community to elect its representatives removes the political influences that typically dominate the nominations of caucus members.
        It may be concluded that the Prophetic Hadith signifies that: 1) The truth lies in whatever the majority among the members of the Religious Parliament agrees upon. 2) Sunni Laws may be changed by the consensus of the majority members on the Religious Parliament.
        The Religious Parliament would deal with a wide range of issues; spiritual, theological, and ritual, in addition to matters of historical significance such as the historicity of the Quran and the Sunna. The Religious Parliament would have no legislative powers. That would be the prerogative of the legislator, the national assembly. When the Religious Parliament issues a Fatwa of a legal nature, it would be referred by the government to the legislative national assembly, which might or might not enact it into law.
        A Religious Parliament may represent the Sunnis of one Muslim country, or a number of Muslim countries, or all Muslim countries. Likewise, the Sunni immigrants to non-Muslim countries may have their own Religious Parliament(s), individually or collectively. There might even develop a single Religious Parliament for Sunnis worldwide.
        Each Religious Parliament would address the issues it considers important to its particular local conditions. The Religious Parliaments would replace the government appointed Fatwa Councils, which exist in Muslim countries today. No one outside the Religious Parliament would be authorized to render a religious opinion.                                        
        If Sharia Law is to evolve with the changing times, a new rite needs to evolve; namely, Parliamentrite.
 

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