What is Islamic law?

It may sound ironical to ask the question what is “Islamic law” in the 21st century when it is generally thought that the body of what constitutes Islamic law has already been crystallised and settled.

If indeed it has crystallised into a recognisable and unchangeable body, then it is logical that there would only be one universal Islamic law. However, an observation of Islamic law between various countries and even between various states in Malaysia would evidence the fact that the laws are not uniform.

It would seem that what is Islamic law is still developing, in a state of flux and diverse. Shariah, on the other hand is a separate concept altogether.

Every Muslim would agree that Islam is a simple religion. The pillars of Islam are said to be only five that is, declaration of faith or the syahadah, the daily five times prayer, fasting in the month of Ramadan, payment of the zakat and the performance of the pilgrimage by those who can afford it.

However, Islam is seen not only as a religion in the typical sense but also as way of life that is complete and encompasses every aspect of our life.

In other words, Muslims believe and accept that Islam provides the necessary guidance and imposes certain obligatory behaviour in order to achieve the pleasure of God in this life and the next.

It is this belief that has lead the scholars of Islam to discern principles, precepts and law affecting life from the scriptures and the Sunnah of the Rasul.

Thus, began the role of the jurists or scholars of law in interpreting and developing various legal, social, economic and religious laws, conducts of behaviour and so on for the Muslim. These active role of the jurists began some many decades after the passing of the prophet.

I believe they reflected the intellectual response to the needs of a growing civilisation to derive various legal principles and codes of conduct necessary to create an orderly society consistent with the understood commandments of Allah in the Quran and the injunctions of the Sunnah.

It is from such need and environment that the development of usul al fiqh or Islamic jurisprudence took place.

In Islamic jurisprudence history, the al madhahib or schools of law that became famous are the Hanafite, the Malikite, the Shafi- ite and the Hanbalite though there were also other schools in the history of Muslim jurisprudence.

It is important to pause at this stage to reflect and note that prior to the development of these schools of jurisprudence, the primary source then for Muslims was simply the Quran and the Sunnah of the Prophet.

With the development of the schools of jurisprudence, therefore, the primary sources of Islamic law expanded to become the Quran, Sunnah, Ijma’ (consensus of the jurists) and Qias (judgement upon juristic anology).

Later, other secondary sources of Islamic jurisprudence were developed. Hence, there clearly was liberalisation of the sources from which Islamic jurisprudence began to expand and develop.

Any modern lawyer will appreciate this development as law is considered to be a “living creature” that develops as life and its circumstances change and develop.

However, it is worrisome whether some conservative scholars today are fully aware that no human being’s interpretation of Allah’s will can be absolute because only Allah alone is the Absolute Interpreter.

If this point is correct and properly understood then “Islamic law” as developed and developing can be relevant to contemporary situations and the very understanding of what embodies “Islamic law” can undergo fresh perspective without departing from its fundamental adherence to the Quran and most authentic Sunnah.

In the history of Muslim jurisprudence, a study and consideration of what are the objectives of the Shariah also too place. From a modern perspective, this would be an inevitable development.

The great university professor and scholar of Islam Imam Al Ghazali identified five essentials of the maqasid or the objectives of Syariah namely, preservation of religion, human life, the faculty of reason, progeny and material wealth.

As to whether or not the objectives or the maqasid should be limited to five is a subject of vigorous debate among the scholars.

Later scholars have added on to these five for example, the attainment of justice. This debate is understandable and in fact encouraging because life is constantly evolving with new experiences, new sets of circumstances, higher levels of knowledge, information and technology and discovery of new facts.

Hence, the perception and understanding of life today cannot be limited to the experiences and perception of life by previous scholars alone.

After all, Muslims believe that the law giver is Allah and any scholar cannot have a claim to monopoly of interpreting Allah’s intent, however knowledgeable he may be acclaimed to be.

It can, therefore, be seen from the discussion that “Islamic law” is in a state of development as is the case with many other aspects related to Muslim thinking such as political Islam, Islamic economics and so on.

The field of Islamic law and jurisprudence has become a complex discipline and Muslims must be careful that the legalistic aspect of Islam does not overshadow the spiritual and moral aspect of the religion such that it stifles faith or creativity of the individual Muslim in particular and the society in general.

In the context of Malaysia, as a Muslim, it is my hope that contemporary Muslim scholars maintain an open mind within the principles of the Quran and the most authentic Sunnah when they discuss and try to apply the Islamic law as developed by classical jurists who, without doubt has made great and laudable efforts.

There is sufficient evidence in Muslim jurisprudence history that the classical jurists never claimed their interpretations and their views to be beyond criticism or rejection if it is not consistent with the Quran, most authentic Sunnah or not relevant to the times.

In this regard it may be helpful to realign our Muslim outlook, for example, to evaluate whether some of the legislation that has been passed by our Parliament are in fact consistent with the primary sources of Islamic jurisprudence and hence “Islamic”.

This may be a better and useful approach than trying to impose classical formulation of laws in contemporary settings which are different.

If my argument is correct, this may lead to a more holistic understanding of what Shariah is unlike the current trend that what is defined as “shariah laws” are the only ones that are “shariah.” With this approach, probably large segments of what is now classified as “civil laws” may qualify as “shariah.”

I opine that the government’s effort to introduce the idea of Shariah compliance is a step towards this direction in the long run.

* Jahaberdeen Mohamed Yunoos is a senior lawyer and founder of Rapera, a movement which encourages thinking and compassionate citizens. He can be reached at rapera.jay@gmail.com

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

- See more at: http://www.themalaymailonline.com/what-you-think/article/what-is-islamic-law-jahaberdeen-mohamed-yunoos#sthash.ypBpogXI.dpuf

Ramadan a month of self reflection

June 6 — The Ramadan month is here again as it does every year. Every Sunni Muslim knows that fasting is required during the month of Ramadan, it is one of the five pillars of his faith. He knows how to fast, when to break fast and what to do during the fasting month so that his fast fulfils the requirements of the fast.

This is the time when Muslims undergo disciplinary training of abstinence from food, drinks, lust and management of emotions for the love of Allah. The month is also filled with nightly ritual prayer of terawih, a special prayer which is much longer than the normal five times per day prayers.

Correctly practised, Ramadan is capable of being a month that transforms the caterpillar into a butterfly, change of bad habits into good ones. It can cause the hijrah or migration of  a person from a lower state into a higher state, a poor character into an exemplary one.

Whether Ramadan serves the purpose of transforming a person into a better human being or it only serves as a mere religious ritual depends on many factors, primarily how the individual Muslim sees it. It will be a sad state if good character emerges only for one month to be replaced by poor character for the next 11 months.

One of the significance of the Ramadan month is that Muslims believe the Quran was first revealed during this month. The first verse revealed was said to be the following in Surah Al Alaq: Read (O Muhammad!) in the name of your Lord who created (96.1). He created man from a clot (96.2). 

“Read, and your Lord is the Most Honorable (96.3) who taught with the pen, (96.4) taught man what he did not know.’’

Hence, the month of Ramadan is also a month of learning and relearning. In line with the first verse of the Quran, Muslims can use this month to revisit the contents of the Quran and to reach out to its messages. To read in the name of the Lord who teaches humans what they know not. This will be the best opportunity to evaluate how far we may have moved away from the teachings in the Quran and accepted other teachings of men as divine.

To the believer, there are many pearls of wisdom in the Quran and guidance for mankind in many areas of our life, particularly how to be a human being useful to His creations and to ourselves. The most basic and fundamental teachings of Islam comes from the Quran.

If a Muslim takes the trouble to allocate a mere one hour a day in the month of Ramadan to study the Quran, he may emerge more knowledgeable about Islam as contained in the Quran at the end of the Ramadan month.

Reading sincerely leads to self-reflection and hopefully, leads us nearer to Allah in our actions and we become useful human beings on earth so that those who do have the benefit of the Quran can see its mercy through our actions of kindness and industry. 

Reading the Quran will make us aware that there are many approaches of peace that Allah has taught us when we are faced with potentially hostile situations.

Reading the Quran also teaches us to preempt potentially aggressive or hostile situations in our dealings with other fellow human beings. As I mentioned earlier, reading the Quran will lead to self-reflection which is very important in life, like spring- cleaning our house or our cupboard. There could have been many mental cobwebs and dirt that may need to be dusted in our minds and our hearts.

Allah has clearly stated in the Quran that he will not change our state until we change what is within us. In other words, He requires those who want to improve to take stock of themselves — their diligence level, their mindsets, their thirst and quest for knowledge and so on.

I would invite my Muslim brothers and sisters to look inwards at ourselves during this Ramadan and see whether we are responsible for the state and condition that we are in. I find that too often we are busy blaming everyone from the Jews to anyone else who does not sound like us for our woes.

The story of Prophet Yunus in the Quran is an excellent example to critically evaluate myself when things go wrong. More likely than not, I must have erred in some way for me to receive “negative” response from the world.

“And remember Zun-nun (Yunus), when he departed in wrath: He imagined that We had no power over him! But he cried through the depths of darkness. There is no God but You: glory to You: I was indeed wrong! 021.088. So We listened to him: and delivered him from distress: and thus do We deliver those who have faith.” (Al Anbiya 87 – 88).

Salam Ramadan to all and may you each be blessed with what you sow.

*Jahaberdeen is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at rapera.jay@gmail.com.

** This is the personal opinion of the writer and does not necessarily represent the views of Malay Malay Mail Online.

- See more at: http://m.themalaymailonline.com/what-you-think/article/ramadan-a-month-of-self-reflection-jahaberdeen-mohamed-yunoos#sthash.TfLX3UGg.dpuf

Hadi’s Private Member’s Bill and its implications

Private Member’s Bill sought to be passed by PAS president Datuk Seri Abdul Hadi Awang, which the government graciously allowed to jump queue in the list of matters to be debated in Parliament.

First is the political dimension where PAS is clearly trying to achieve a political score with the Malay voters.  It has been widely publicising it is willing to work with anyone to achieve its “Islamic goal”.  In this case, if the Bill succeeds, PAS will have the “glory” in political history as the party which was responsible for “enhancing the status of Shariah courts” and for paving the way for further implementation of  Islamic criminal law.

If it does not succeed in passing the Bill, Umno MPs will be accused of being insincere and “opposed to Islamic laws”.  Clearly, in this game, PAS gets the credit either way with the general Malay voters.

Politically, Umno therefore is “snookered” unless it can bring the issue up to another completely different intellectual and political level which I am afraid Umno is incapable of due to misconceived fear and other reasons.

Secondly, the Constitutional dimension.  As a matter of parliamentary courtesy, it is admirable the government has given way to a Private Member’s Bill from the Opposition to be heard before government business, which always takes precedence. I believe this is the first time and as the Parliament speaker Tan Sri Pandikar Amin repeatedly tried to educate the opposing members from the Opposition, this is a precedent.

I respect and admire Pandikar’s patience in educating the opposition members on the clear provisions of the Standing Orders. It really baffled me the opposition members are opposing their own Private Member’s Bills being heard first. Painfully amusing.

Constitutionally, any Act can be amended or even repealed by Parliament in accordance with the law and the Constitution. Hadi’s Bill ostensibly seeks to amend the Shariah Courts (Criminal Jurisdiction) Act 1965 in relation to enhancing their punishment provisions.

Currently, under section 2 of the aforesaid Act, Shariah courts can only impose punishment with imprisonment for a term not exceeding three years or with any fine not exceeding five thousand ringgit or with whipping not exceeding six strokes or with any combination thereof. This is the so-called “356” punishments which Hadi’s Bill hopes to enhance. Obviously Hadi wants to enhance the penal powers of the Shariah courts to be able to implement Kelantan’s Shariah Criminal Enactment Code of 1993, through which they hope to impose hudud punishments. 

Hence, we are back to PAS’s version of hudud which they want to compel Muslims to follow by force of law. Put it another way, PAS’s “noble aim” of “serving Islam” is to ensure Muslims are subjected to greater punishments and despite what is provided for under the civil law system.

The long-term effect of enhancing the penal punishments will be to allow more criminal offences perceived to be offences against the “precepts of Islam” and within List II of the State List of the Ninth Schedule to the Federal Constitution to be passed. Hence, we will see a situation where there will be two sets of criminal laws for Muslims — the Shariah and the civil law system. Obviously, this will give rise to various complex constitutional issues such as equality before the law and so on. I believe even a challenge under Article 11(1) of the Federal Constitution may be mounted by a Muslim who does not want to be subjected to it though this would require a court which would decide without “fear or favour”.

I do not know why the government has never thought of evaluating whether the existing criminal laws under the federal laws are already consistent with the Quran and authentic Sunnah and hence “Islamic” or not. Surely, the federal government is not taking the position the existing criminal laws under the civil justice system do not achieve “justice” as enjoined by Islam and therefore, un-Islamic?

It truly baffles me why as a nation we are keen on creating two parallel legal systems in the country. Apart from the injustice which may ensue, aren’t the policy makers concerned this would lead to disunity and enmity between the Muslims and non-Muslims? I hope I am just being over worried about the fate of my country.

Thirdly, the faith and theological dimension.  Muslims, especially those who with knowledge and take their faith seriously, will not like imposition on their faith and servitude to Allah. There have been tremendous debate and differences of views, even among scholars, on what constitutes “hudud” and “takzeer”.  Despite the fact most scholars agree the term “hudud laws” refer to only those offences for which punishments are clearly prescribed for in the Quran, some other scholars and politicians insist on including various other offences as hudud offences even though they are not mentioned in the Quran. Furthermore the word “hudud” in the Quran does not even refer to any penal offences. It simply means “limit” and the relevant verses refer mostly to matrimonial matters.

Many notable scholars, including the renowned Prof Dr Hashim Kamali, are of the view for every punishment, the Quran also provides for forgiveness to the offender. However, this provision of forgiveness is absent in PAS’s version of hudud. There are many theological debates and issues concerning “hudud laws” that are still unsettled to this very day. I fear imposing such laws on Muslims, which are very tied to their faith and servitude to Allah, may give rise to disunity among the Muslims.

I would like to repeat my call to the government to seriously study the possibility of a “fused” legal system to maintain only one legal system in the country which can cater to the peculiar needs of each religious community while ensuring general justice for all Malaysians.

* An error in the print version of this article has since been rectified here.

** Jahaberdeen is is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at rapera.jay@gmail.com

*** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

- See more at: http://m.themalaymailonline.com/what-you-think/article/hadis-private-members-bill-and-its-implications-jaharberdeen-mohamed-yunoos#sthash.xwLVpfFI.dpuf

What does “protecting Islam” mean?

(This article was inspired by Kadir Jasin’s latest posting where he mentioned what is important is to “protect the future of UMNO. Malays and Islam..”  No fault of his.)

We often hear this phrase “protecting Islam”, “protecting the sanctity of Islam”, “memartabatkan kedudukan Islam”, “mempertahankan Islam” and so on. What do they exactly mean when they say that?

Firstly, I must confess that I as a Muslim do not know exactly which interpretation of “Islam” they are referring to though I know that there is no single interpretation. All the evidence is out there and in particular, globally, the Muslim world is theologically and politically divided in two major denominations - the “Sunni” and “Shia” Islam world.  The Shias and the Sunnis do not accept each other’s collection of hadiths (“saying of the Prophet”), notwithstanding the fact that each claims “authenticity” and academic verification of the same .

Even within the said denominations, there are diverse sects with their own interpretation of what constitutes “Islam”. In the Sunni world itself there are four main schools of thought namely, Maliki, Shafie, Hanbali and Hanafi equally diverse in views on many topics including those related to pure faith issues.

Fundamentally the divisions in the “Islamic” world arises due to the differences in the sources relied upon to build the structure of Islam.  While all of them claim to accept the Quran, much of the structure of Islam today is build not necessarily from the explicit injunctions of the Quran per se but mostly from the jurists or fuqahas efforts of exegesis. In simple words, derived from the reasoning and interpretation of the jurists.

In the Sunni world, it is “accepted” by their collective mainstream clergy that the sources of Islam in Islamic jurisprudence or usul al-fiqh is primarily the Quran, the Sunnah and hadith, Ijma’ (consensus of the scholars) and Qias (anology).  There are many other sources of islam that have been created to assist in addressing a particular issue such as istihsan, urf and so on.

Even the idea of maqasid al-syariah (objectives of the shariah) is a concept created by the jurists or religious scholars/clergy by way of deducing and inferring from the “accepted” sources aforementioned.

It is understandable that human beings will have to interpret, deduce, and infer from facts and evidence to arrive at a conclusion or to create a concept from which everything else is build. There is nothing unique about this process of thinking and is common to all aspects of our life. This is how values and systems of beliefs and behaviour evolve in societies.

The problem only arises when we deny our interpretative role and equate our ideas, concepts and conclusions to that of the Divine or God. Hence, criticisms and alternative interpretations become impossible and would immediately be cast as blasphemous or unthinkable.

This is what I call the confusion between the views of the Interpreter (“the clergy or anyone) and the actual intent of  the Giver of the Text (“Divine/God”).  Would not equating the views of the interpreter (clergy) absolutely with the intent of the Giver of the Text (“God”) equate the position of the clergy with the position of God?

So back to the question of “protecting Islam”, those who say this cannot and should not assume the serious reader or serious audience knows what they are talking about. They must specify which “Islam” they are talking about.  A generalisation in matters pertaining to Islam is completely unhelpful if they understand the realities of the situation and the diverse academic discussions on Islam and most importantly, the contents of the Quran itself.

Say for example, they were to say “protect the Shia Islam”, then it will be easy to make a choice whereby those who prefer the Sunni version can reject that call. And similarly if one was to say “protect the Sunni version”, then those in favour can support that call.  Even this however may pose a problem in a seemingly Sunni society because of the differences in the opinions of the four schools of thought.  

So, maybe it becomes clearer if the caller was to say “protect the Shafie views of Islam” and so on.

However, do we see this manner of calls as promoting unity among the Muslims? What then will those adhere to the Maliki or Hanafi view do? If you say accept all, then what do you do when there is a conflict of views?

Would it not be easier and more efficient for Muslims to make the call from one book which all of them do not dispute – the Quran?  And mean it too when the call is made and Muslims heed the call by adhering to the Quran. Otherwise, you will be guilty of causing further disunity among the Muslims.

Hence, be careful when you say you want to “protect Islam” for you may be doing the exact reverse by your futile call due to your ignorance of the complexities and the Quran.

Peace !

NOTE: THE AUTHOR DOES NOT REQUIRE NOR EXPECT ANYONE TO ACCEPT OR AGREE WITH HIS VIEWS STATED HEREIN. IN MATTERS OF ISLAM, THE AUTHOR WARNS THAT THE READER SHOULD CHECK WITH HIS OWN COPY OF THE QURAN AND MAKE UP HIS OWN MIND.