Imran Ahsan Khan Nyazee
Islamic law, which has been dormant for almost five centuries, must grow if it has to solve modern problems that are faced by all humanity in general and Muslims in particular. During these five centuries or more, the law has grown but in a negligible or insignificant manner. One main reason for this lack of growth has been the absence of a methodology that can support the required growth. The second has been colonization due to which Muslims have had to deal with the greed and brutality of their then colonial masters. The third and most important reason, however, has been the rise of the state as a legal person. It is, therefore, significant that the arrival of the British in India coincides with the rise of modern states in Europe.
The last two reasons, mentioned above, arrested the growth of Islamic law. They took away the free environment in which the law could grow. The restrictive environment provided by the state prevented the free exchange of ideas. There was also no incentive for the exchange of such ideas as the state had monopolized all law making. This situation continues even after the end of colonization as it is now the state that has taken over all the functions of the colonial masters. In short, the natural environment in which Islamic law had grown in the first one thousand years of its existence has been taken away. This natural environment can now be restored with the shrinking of the world into a global village and with developments in modern technology and communications. It can be done without disturbing the existing structure of states and their authority.
In this blog, we will address three major points. The first point will be about the difficulties that Islamic law is facing within the environment provided by modern states. The second will take up the explanation of what exactly we mean by the emergence or reemergence of Islamic law at the international level. The third topic is about the way this reemergence will begin, that is, what are those priority areas in which Islamic law can first contribute at the international level. We will first take up for discussion the hurdles in the face of the free growth of Islamic law.
The state as an independent person is not owned by its citizens. It is the state that owns the citizens, just like it owns the territory under its jurisdiction as well as everything else that exists in that territory. The state makes its citizens work and contribute a part of their earnings to the state so that it can continue to perpetuate its existence. Any resources that the state allows its citizens to “own” and use can be taken back when the state needs them. In order to survive, the state defends itself against internal threats as well as against external dangers. The external goal of the state is survival, while the internal goal is growth. For these two goals, it makes the citizens strive and work to generate the resources that are sufficient for its survival and growth. These matters do not concern us here.
What does concern us here is that the state is a secular being. It can have no religion. The reason is that the state does not owe its birth to God, like man does. It cannot have the ‘ahd or covenant with the Almighty. Further, as Hans Kelsen says, the state is the law. This law can only be driven by two goals: survival of the state and its growth. Any other law, with different goals, will be viewed as a threat by this state and its law. In addition to this, the state works hand in glove with the concept of democracy, which is also a secular concept. Its primary duty is to ensure equality. Consequently, it will try to give equal rights and opportunity even to those who will work against what the Almighty requires, and who might try to demolish Islamic law and eliminate it altogether. The only “religion” the state will tolerate is one that is practiced within the confines of one’s bedroom or living room, and is taken occasionally to church.
Islam, however, is not a “religion,” it is a “deen” or a system. It does not know the difference between secular and religious, or the political and religious, or Caesar and the Pope. It has a complete law with a whole system of duties that cover every aspect of human life. It has come into this world to provide solutions to world problems, especially those of the poor. It will not “turn the other cheek,” nor consider poverty a sin but will react with an appropriate and effective response. It is not driven by the goals of some legal person, but by the maqāṣid al-sharī‘ah (objectives of the shari‘ah) that the Almighty has determined for this law and for those who have faith in this law. A system with these purposes is naturally seen as hostile by the creature called the state, whichever state that might be. The state may be one with a Muslim majority or one with a Muslim minority. This law, with the system it visualizes, will be seen by all states as hostile.
The legal person called the state has given birth to many new kinds of legal persons that support its existence. The most formidable of these is the multinational corporation or the multinational enterprise, also called the transnational corporation. These beings have the ability to move resources worldwide and they have grown bigger, in certain cases, than many small countries. This form of the legal person is no longer in need of territory, but it does own its employees from whom it demands a fierce type of loyalty. It will survive, even if the modern states disintegrate and dissolve into small communities. As compared to the state, it does not have to protect territory; if one territory refuses to grant it a home another one will. Islamic law is up against this form of legal person too as it will always view this law as hostile.
All this does not mean that Islam or Islamic law is against the idea of the state as a legal person, or even that of the corporation as a legal person. The requirement of Islamic law is that humans should ultimately bear all responsibility and be held liable for whatever the state or the corporation does. The only way this is possible is if the legal person is treated merely as an administrative tool or device, and is treated as an agent of the persons who own it. To illustrate a minor effect of this arrangement, we may notice the impact on those who direct the affairs of such agents who are legal persons. The officials of the state will lose all kinds of immunities from prosecution or litigation. They will be held personally accountable, unless the act they performed was purely for the Ummah and the community. In the same way, the concept of limited liability will have to be done away with and all the shareholders will be held liable for the debts and torts of the corporation, which is an agent of these shareholders . We need not dwell on these issues here.
In the meantime, Islamic law needs a free environment for it to grow. This environment is not available to it within the confines of the state, whichever state this may be. The reason as already explained is that by inherent design the goals of the state cannot be in line with the goals of Islamic law. Making Islamic law subservient to a legal person, and restricting it within the confines of such a person, is detrimental to the growth of this law. This is like granting authority to one group of people to take over the goals of Islamic law. This group will always attempt to impose its own goals over the goals of Islamic law.
Islamic law developed by the state will always be viewed with suspicion and will be considered as restricted and subservient to the goals and purposes of the state. If the state is compelled or swayed by the majority in a country to change its laws to the Islamic form, then the first thing it will do is to focus on the experts who will design and develop such law. The initial attempt will be to employ or engage those experts who are within the state’s control and will comply with its wishes. Usually, these will be those who are not qualified, or if they are qualified in terms of paper qualifications, they are those who have bartered away their abilities for worldly gains. This will alienate a large body of the experts in the country, some of whom are really qualified and who often have a considerable following.
Even when the ulama’, as these experts are called, are qualified in the traditional Islamic law, they lack the knowledge of modern institutions, instruments and transactions on the basis of which modern law operates. This is exactly what we mean by growth of Islamic law. It should be able to employ the fundamental principles of Islamic law, analyze modern laws, be able to absorb or Islamize them, or reject them and suggest substitute laws. This means a thorough knowledge of modern laws and modern practices. The ulama’, unfortunately, have been kept isolated for centuries first by confining them to their madaris, and then by introducing a subject of “Islamic studies,” which implies that Islam is merely a “personal affair.” All laws developed for the state, even by the leading experts, are subject to suspicion in the sense of being subservient to the goals of the state and not those of Islamic law.
As compared to the state, the law developed by groups that have their own axe to grind, or their own goals to promote, present a somewhat different problem. Their goals are driven by greed and the profit-motive and they succumb to the needs of the market, just like a state may succumb to political pressure. The foremost example here is that of so-called Islamic banks and financial institutions. They hire some ulama’, give them huge benefits, and then get the opinions they want. Stories abound as to how these institutions are using the services of experts for their own goals. The phrase “rent a sheikh” has gained considerable currency.
Even when an atmosphere of impartiality is created in this process, like the creation of standard setting institutions, it is the same experts who are serving the banks who are hired and they ensure that the interests of their parent institutions are secured. The income source of these institutions is dependent upon the Islamic banks, as is the sale of their products. We may cite the case of the State Bank of Pakistan. The qualification fixed for an expert is “Dars Nizami.” This certificate is barely equal to the US High school or equal to matriculation in Pakistan. What is the purpose of this qualification? It is obvious that such a person will not know anything about Islamic law either, besides some acts of worship and probably something about marriage and divorce. As for the complex banking transactions or those of commercial law and negotiable instruments, the person will have no knowledge. He will be more than happy to issue the desired rulings.
It is obvious that we cannot expect our ulama’ to act like the earlier Imams and jurists. In the early days, some of the leading Imams were brutalized and persecuted. Others like Imām al-Sarakhsī were locked away in prisons. He refused to issue a ruling in favor of the ruler and was kept in prison for 15 years where he produced his major works. They bore these pressures with patience and did not yield for they wanted to maintain the independence and impartiality of Islamic law. It is this independence of the law that was precious for them; it is this spirit that should be precious today: the independence and freedom of the law. The schools did not serve particular governments or rulers, they made law that would be applicable uniformly all over the Muslim world.
If it is assumed that the state may at times be directed by people who are sincere and truly wish to serve Islamic law and develop it, then the ulama’ should have no objection to cooperating with the state under these circumstances. This may be true, but the law will be state specific; it will not have that kind of universality that is expected from a school made law that is serving the entire Muslim world. Another problem in this case will be that the state will permit the development of only that part of the law that it needs and not the other essential parts that are needed to complete the law. The overall, systematic and comprehensive development of the law requires that it be developed in a free environment without the intervening needs of vested interests.
We have stated in what has preceded that the declarations, conventions and protocols issued by the United Nations have not adopted a single principle or rule of Islamic law . The that principles of Islamic law are also not acknowledged in the other sources of international law listed in Article 38 of the Statute for the Permanent Court of International Justice . These other sources are “international custom,” “principles” and “judicial decisions and teachings.” All these revolve around the Anglo-European-American systems and “civilization.” Whenever Muslim countries try to make a “reservation” on the basis of Islamic law, the other states, following the procedure at the UN say that you cannot rely on domestic law for making reservations. In simple words, it means if you wish to raise such objections just stay out. Thus, for example, Muslim states raised some objections to the CRC saying, among other things, that adoption was not allowed in Islam. They were forced to back down and as eyewash a rule for fosterage called kafalah in Egyptian law was referred to without having any bearing on the CRC. The rule for kafalat is not applied this way in Islamic law, that is, as it is applied in Egyptian law. The crux of the matter is that the structure of binding and non-binding sources of international law, as erected by the UN, is designed to keep out Islamic law, because that is the only legal tradition besides civil law and common law.
We have stated elsewhere that international law exists for facilitating trade in a peaceful manner and for sharing the resources of Earth with justice. One main purpose is the security of international transactions. This goal is so important that if business people find the rules set by nation states or by the United Nations to be too restrictive, they can brush aside those rules and follow the rules that they agree on. When a dispute arises out of their chosen rules, they usually provide that the matter will be taken to arbitration in tribunals of their choice. It is only as a last resort that the matter may be taken to domestic tribunals for enforcement where it will be settled according to the rules of private international law. There are some other matters too where domestic institutions come into play like the carriage of goods and payment systems.
It is generally acknowledged that one of the most remarkable developments on the contemporary legal scene is the emergence of an AUTONOMOUS LAW of private international trade, which is breaking through the barriers of national legal systems and is assuming a universal character. This autonomous body of law provides more effective solutions to the problems of international trade. The result is that it is increasingly replacing the conflict-of-laws approach that applies one of the many national systems of law, when this municipal or national system may be inadequate in the changed circumstances of modern international trade. The success of this autonomous body of law depends upon two things.
1. The first is the elective character of the law. The elective nature of the Law of International Trade exists because this branch of law is founded on the principle of the autonomy of the parties’ wills. Such relative freedom in tailoring contracts enables the parties to overcome the peculiarities of the various municipal systems of law, and to adopt rules more suitable to the requirements of their individual relationship. This new, autonomous law is being expressed in model contracts, standard clauses, general terms of delivery, commercial customs and trade usages. Most of the model contracts are being issued by the International Chamber of Commerce (ICC), which also issues the language that traders speak to make contracts, called INCOTERMS.
2. The second is the effective support, and the growing use, of arbitration in trade disputes. Experience has shown, however, that for the autonomous will of the party to a contract to be considered effective, it has to be complemented by an arbitration agreement. Parties willing to develop rules to govern their relationship apart from municipal laws do not wish to find themselves subject to municipal courts when disputes arise. They prefer arbitral tribunals where customs, usages, and business practices are more readily taken into account.
The principles of this autonomous law have been issued by UNIDROIT, which is an institute that came into existence at the time of the League of Nations, but is not a UN body. These principles are gradually gaining ground. The UN body that is occupied with a similar task of creating uniform commercial law is called the UNCITRAL, which has issued the convention on the sale of goods, called the CISG, but that is a UN binding document. It has been ratified by more than 60 states so far and is gaining more ground in Europe.
Our purpose here is only to indicate the existence of an autonomous law at the international level, which is a law that individual concerns may choose for themselves and support with a system of arbitration. The main purpose of this discussion is to show that ISLAMIC LAW HAS BEEN AN AUTONOMOUS LAW FUNCTIONING AT THE INTERNATIONAL LEVEL SINCE ITS BIRTH. As indicated earlier, the qāḍīs operated more like arbitration tribunals. It was only where the schools of law had imposed a duty upon the rulers that the public law was applied by these judges. The rulers too were free to choose the school that they liked for this purpose, that is, for the adopting the rules for ḥudūd and qiṣāṣ, for example.
What we mean by the emergence of Islamic law at the international level as an autonomous law is the following:
What is of crucial significance is that the law must develop free of all school bias. Further, this law must not focus on personalities, unless these are the earlier Imams, preferably those of the sixth century Hijrah and earlier. The entire focus should be on what the rule is and what is the evidence on which it is based along with the accompanying legal reasoning.
We may briefly list a few important areas that belong to the core law of Islam that contains measures that are likely to provide substantial benefit to Muslims all over the world. The priorities may, however, be changed if the Muslims so decide.
The Law of zakāt should be developed from the international perspective as a global system in the service of the Muslim Ummah. The law of ṣadaqāt (voluntary charity) should also be developed for the help of mankind in general.
Some of the major questions to be asked must be whether zakāt collected can be moved across the entire expanse of earth to fight hunger and poverty in the Muslim world. It should also be explored as to what kind of financial or other institution will perform the function of distribution of zakāt as well as ṣadaqāt. Institutions trying to perform these functions already must show that they are performing functions according to an acceptable uniform zakāt law. These institutions should also make their affairs more transparent.
The rules of ḥajj and ‘umrā should be refined and expanded in the light of modern issues faced by worshippers. Other issues from the other acts of worship may also be included, especially those related to timings and so on.
Scholars of Islamic law keep on addressing modern developments in the field of medicine, however, this entire research needs to be restated in the form of a law. The most important developments may be taken up first.
This is a crucial area that needs immediate attention, especially in the light of the growth and use of genetically modified foods. The rules must lay down the requirements for the food industry, halal food and so on. Medicines and drugs using prohibited matter may be included in this area. These matters should not be left to the countries where the relevant industries are based.
The discrimination contemplated here is based on clothing, acts of worship and religious practices, religious education or the other preferences of the concerned nations. Genocide of Muslims may also be included under this head if deemed necessary. Most of these issues will arise where Muslims are in a minority.
This is perhaps the most important area. Initially, the UNIDROIT principles and the CISG will first be analyzed from the Islamic perspective so as to find common ground with the rest of the world. In other words, an attempt will be made to Islamize these principles so that the United Nations realizes the requirements of Muslims living in this world and who will be rapidly moving towards a majority mark in world population.
The mechanism for setting up and implementing arbitration tribunals will also be explored.
Efforts will also be needed to analyze the payment systems so as to identify the changes that may be needed from the Islamic perspective. To this may be added the needs of banking and finance, if deemed necessary, as the mechanism set up will provide an unbiased and impartial analysis.
Matters of family law will be studied to develop a uniform law that can be followed by Muslims all over the world. Tribunals may be set up for meeting the dispute resolution needs of this vital area.
Gradually, Islamic law must step into every area that is being addressed by the United Nations, and give its ruling and analysis. Thus, for example, it can start by issuing the Islamic Declaration of Human Rights or even begin examining the Human Rights Declaration to see what needs to be changed. In either case, the effort must identify the principles that need to be recognized by the United Nations. If the current human rights are claimed to be universal and indivisible, they must incorporate Islamic principles. It may be pointed out here that Islamic principles are equally universal and indivisible. The declaration may or may not rely on the Cairo Declaration. Declarations should be issued whenever and wherever it is felt that the United Nations is ignoring certain fundamental principles of Islamic law. Declarations will be needed for the political and economic rights as well as on the rights of women and children.
The following organizations and institutions may be contemplated for future action:
It is suggested that Universities in the Muslim World, especially those departments that deal with law and international relations should encourage research in the above areas. There has been too much occupation with armed conflict and international humanitarian law; students must open their minds to other vital areas to see where the Muslims of the world stand on such issues.
The first question that will come to mind for most is about the multiple opinions on an issue within a school, and many more when the scope is expanded to include other schools. What then will the people follow? The response is that as the law is not being enforced through the state and its enforcement mechanism, much depends on what the people will choose for themselves.
In the case of acts of worship (ibādāt), people will follow the school they are following now. Any new issue taken up will be one that the school has not addressed. In such a case, following the rule in the new issue should not be a problem. For example, many new issues pertaining to purification, prayers, fasting, ḥajj and so on have already been addressed, even those that have arisen in the modern times. In the case of zakāt, the amount to be paid and other details may be the same as those addressed by the schools. The new issues will pertain to the collection and distribution from the international level and the possibility of permitting this.
In the case of marriage and divorce, people will continue to follow what the schools have said. Many new issues arising due to the domicile and school of the parties to a marriage contract are not new issues and have already been addressed by the schools. As for the new issues in this area, these will be those that have not been addressed by the schools, and will have no ruling within individual schools. It will be easy to follow the new rulings on new issues.
As far as international commercial law is concerned, it is only some fundamental principles that are of vital significance. There is not much difference among the schools between these fundamentals. The details developed by the jurists will be given new shape in any case in accordance with the needs of modern commerce, trade and financial transactions.
The bulk of the law will have to be developed in the light of the fundamentals of Islamic law according to the new methodology that is to be introduced in the next blog of this topic. These will be issues on which there is no ruling in the schools.
The above description shows that there is no serious issue about differing views of jurists and schools. The law at the international level will be much more flexible and vibrant as will be explained in following blogs.
. At the time of writing this, the European Court of Justice has ruled that a Muslim female’s services can be terminated by the corporation if she continues to wear the hijāb.
. Under Islamic law, not secular law.
. The term “declaration” is used for various international instruments. International human rights declarations are not legally binding; the term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. However, while the 1948 Universal Declaration of Human Rights for example was not originally intended to have binding force, its provisions have since gained binding character as customary law. A “convention” is a formal agreement between States. The generic term “convention” is thus synonymous with the generic term “treaty.” Conventions are normally open for participation by the international community as a whole, or by a large number of States. Usually the instruments negotiated under the auspices of an international organization are entitled conventions (e.g. the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in 1989). The term “protocol” is used for an additional legal instrument complements and adds to a treaty. A protocol may be on any topic relevant to the original treaty and is used either to further address something in the original treaty, address a new or emerging concern, or add a procedure for the operation and enforcement of the treaty—such as adding an individual complaints procedure. A protocol is “optional” because it is not automatically binding on States that have already ratified the original treaty; States must independently ratify or accede to a protocol. The Optional Protocols to the Convention on the Rights of the Child concern the involvement of children in armed conflict and the sale of children, child prostitution and child pornography. Theses paragraphs have been transmitted verbatim from the UN Treaty Reference Guide.
. Available at https://www.icj-cij.org/en/statute