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To Modernize Shari'a Laws, Democratize Islamic Law-Making
  
 
 
 
Introduction
 
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 in a democratically elected parliament.

 
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? 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. It may be further argued that Muslim countries that hinder the emergence of such legislative chambers would be in violation of the subject Hadith.

Western style parliaments are common in non-Arab Muslim countries. Populace Bangladesh, Indonesia, Pakistan, and Turkey, countries representing about 60% of world Muslims enjoy democratically elected parliaments, let alone having, or having had, women presidents and prime ministers.
 
Arab countries, by contrast, lack democratic elections and independent parliaments. To perpetuate their dictatorships, Arab rulers and palace ulama invoke 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. In Wahhabi Saudi Arabia, representative parliamentary democracy is made anti-Islamic.
 
 
The dashed hope in Egypt to modernize Shari'a laws
 
That the Muslim Brotherhood embraced free elections and representative democracy, that Mohammad Morsi was democratically elected as president of Egypt in 2012 represent cataclysmic events in Sunni Arab history. This argument is grounded in the belief that to accelerate Egypt’s economic and social developments, the Muslim Brotherhood’s majority in parliament would enact modern laws compatible with modern interpretations of Islam. Muslim Brotherhood’s religious scholars, especially in Islam’s oldest center for learning, the eleven-century old al-Azhar University, would articulate impressive reasoning and references in support of the Islamic nature of the new laws. salafists and jihadists would assail such laws as being un-Islamic. The confrontation would energize a lively debate around the Arab and non-Arab Muslim worlds in academia, the media, and Web social networks over subjects considered taboo in Islam for generations.
 
However, the Al-Sisi coup in 2013 prevented Egypt from instituting an Islamic parliamentary democracy that could have modernized the one thousand year old Shari'a laws. In the al-Sisi coup, the world lost an opportunity to tame the ideology and way of life behind salafism.

 
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.

 
 
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