Written by Asghar Ali Engineer :
The Enactment of a uniform civil code is one of the directive principle of our Constitution. After twenty five years as an independent nation, this uniformity in civil code has still remained an unrealised goal. The parliamentary form of government has its own constraints and therefore it cannot be expected to force the pace of change in such a highly religiously sensitive matter. Moreover, parliament’s right to legislate is subject to the constitutional provisions guaranteeing certain fundamental rights to the minorities. Moreover, political and electoral considerations also deter the government to proceed with them. It is therefore desirable that the initiative to build up pressure for the reform should come from the intellectual leaders of the community.
The Muslim intellectuals in India regard any proposal to bring changes in the Muslim personal law as an attack on the rights of the minority and attribute ulterior motives to the reformers even when the cause for reform is pleaded by persons whose sincerity is beyond any doubt. A section of the Muslim intelligentsia even while conceding the reed to change does not consider it an urgent issue. The socio-economic problems of the Muslims, in their view, need to be tackled more urgently. While this argument has a certain plausibility, it ignores the real issue. Economic justice cannot be achieved without at the sane time ensuring social justice. Both are interlinked. Our religio-cultural norms should keep pace with the needs of modern age. We must come to grips with the modern realities and give up those decadent practices of a medieval religion which reflect feudal norms of behaviour. The Islamic law as evolved by the ulama of second and third century Higra needs to be further modified as to conform to modern normative concepts in the same way as it had conformed with the acceptable norms of the period when it was first codified.
The battle for reform began in India as well as abroad under the leadership of trail-blazing intellectuals inspired by the modern ethos. Mohammad Abduh of Egypt, a man of great religious learning, re-interpreted the Quran and concluded that polygamy and unilateral divorce cannot be encouraged as the Quran had laid down certain conditions which are most difficult if not impossible to fulfill. In India, too, the intellectuals of great eminence like Sir Syed. Ameer Ali, Khuda Bakhsh and Maulavi Chirag Ali vehemently argued for change. Maulvi Chirag Ali wrote: ‘Neither the four traditional sources of Muslim Law, nor the authority of the four Sunni schools of jurisprudence which make use of them can be regarded as legally infallible or immutable. Certain sections of Muslim, civil law require rewriting. The codification of Islamic jurisprudence was a reflection of the historical situation of the Islamic society in the 9th and 10th centuries. In such countries a new legal theory has to be evolved to effect thorough-going legislative changes in the inherited traditional law to eliminate outdated and by modern standards inefficient, unprogressive and inhuman features in legal institutions.”1
Dr. Iqbal’s commitment to Islamic fundamentalism is well known. But in view of the changed conditions, he also pleaded for structural reforms in the Islamic institutions which had been overlain by medieval accretions. He was deeply moved by the sincere attempts of the Turkish intellectuals to revolutionise the age-old Islamic practices. He legitimized this momentous development by investing it with the religious sanctity of jehad. He described ijtehad as the ‘principle of movement’ in the nature of Islam. As for the eternal principles, he says, ‘When they are understood to exclude all possibilities of change which, according to the Quran, is one of the greatest signs of God, they tend to immobilize what is essentially mobile in its nature’.2 So far as the concept of ijtehad (creative interpretation) is concerned, he believed in it. He writes, ‘The idea (ijtehad), I believe, has its origin in a well-known verse of the Quran. “And to those who exert. We show our path”.3 With the expansion of the Islamic empire and assimilation of new social influences ijtehad, as we shall see later, became an important instrument for codification of Islamic laws. Iqbal fully approved of the new theory of Mohammedan law as propounded by Halim Sabit which was grounded on modern sociological concepts.4
He appreciated Turkish attempts at reform and wrote ‘we (Indian Muslims) too one day, like the Turks, will have to re-evaluate our intellectual inheritance.5 He approved of the claims of the young generation of Muslims to reinterpret Quranic principles. “The claim of the present generation of Muslim liberals to reinterpret the fundamental legal principles in the light of their own experience and the altered conditions of modern life is”, he said, “in my opinion, perfectly justified. The teaching of the Quran that life is a process of progressive creation necessitates that each generation, guided but unhampered by the work of its predecessors, should be permitted to solve its own problems”.6
Islam, as it is claimed, is a revealed and divinely inspired religion. Its enactments and commandments a formulated and expressed in the Quran, are integral to this divine vision. They are intrinsically just since God cannot make anything otherwise binding on man. Inspired by the divine injunctions as revealed to the Prophet, the early followers of Islam tried to implement those within the time-space frame of that society. This was the first expression of the Islamic ideal as envisioned by its founder, Prophet Mohammed. The concretized expression of this Quranic ideal had, as is evident, situational constraints of the then existent society. Whenever a potentiality or an ideal is attempted to be actualized, the constellation of the historical forces play a very important role. What is important is the ideal rather than its concretization at a particular stage in the temporal flux.
The ulama of the second and third century of Islam undertook a great historical enterprise of establishing a just society based on the transcendental ideal of Mohammed’s prophetic vision. In this they were influenced by the prevailing norms. These norms or the Sunna of the people of the Prophet’s society cannot be integral to the concept of the islamic justice. As a concomitant of the historical changes, these norms can change. In fact the old norms in the temporal flux of history, can and do become injurious to the original ideal. ‘Whenever this happens there should he a shift from the existent to the essential as it is of vital import to the central concept which is the essence of that ideal. As W. C. Smith puts it, ‘For the Muslim, like the Marxist but unlike the Hindu, what happens here below is of inescapable and lasting significance, The building up of a proper community life on earth is a supreme imperative. Surely the Islamic enterprise has been the most serious and sustained endeavour ever put forward to implement justice among men; and until the rise of Marxism was also the largest and most ambitious’.7
The embodiment of the practice of polygamy, unilateral
divorce and the laws of inheritance was temporal rather than eternal. Islamic
jurisprudence was only a specific expression of the eternal ideal of justice in
the cultural milieu of that society. Progressive changes in it would be a truer
expression of the Islamic ideal of justice in the present circumstances. To
understand tile necessity for change in (lie Muslim personal law, it is
necessary to see it in proper historical perspective. In this section,
therefore, an attempt will be made to trace the historical growth of Islamic
jurisprudence.
The Islamic movement originated and grew in an essentially tribal society. Quresh, the predominant tribe had settled in Mecca and made it a centre of trade between China, India, South Arabia and the Roman empire. Because of its commercial activities, the Meccan community was being gradually transformed into an urban community. This inevitably caused the weakening of the age-old tribal structure and its morality. The community was on the threshold of a new society and ready to receive a new message that would provide it with a weltanschauung so very necessary for this proto-urban community. Max Weber’s brilliant analysis of the socio-economic factors which give rise to religious or ideological movements is of some relevance. As Bendix, summarizing Weber’s views, says: ‘This religiosity of bourgeois strata seems to originate in urban life. In the city a religious experience of the individual tends to lose the character of ecstatic trance or dream and to assume the paler forms of contemplative mysticism or a low-keyed, everyday piety. For the craftsman steady work with customers can suggest the development of concepts like ‘duty’, and ‘recompense’ as basic orientations towards life.’8
The urban
milieu of Mecca influenced the religious vision of the Prophet. To influence
his Meccan followers with an urban ethos, he had to develop a rationalism of
the practical sort. As Max Weber observes, ‘The contrast between warrior and
peasant classes, and intellectual and business classes, is of special
importance. Of these groups the intellectuals have always been the exponents of
rationalism which in their case has been relatively theoretical. The business
classes (merchants and artisans) have been, at least, possible exponents of
rationalism of more practical sort. Rationalism of either kind has borne very
different stamps, but has always exerted a great influence upon the religious
attitude.9
The business oligarchy of Mecca, in the absence of any state machinery, governed the Meccan community through a tribal council Economic prosperity and its contact with the more developed cultures of the world caused an intellectual ferment and made the Meccan Arabs acutely aware of lack of any socio-philosophical Ideology. The Prophet, with his gift of intellect, could perceive the lacuna and with his sense of pragmatism, evolved a comprehensive code of life to meet the political, social and legal challenges of his time. This code eliminated, as far as possible, all the abhorrent practices of tribal lite. Maxime Rodinson says in his book Mohamed, ‘There are those whose enthusiasm has rendered them incapable of seeing anything in the development of ideas beyond complete, perfect and well-ordered systems appearing mysteriously in place of others of the same kind. What I am trying to show here is that an ideology was, on the contrary, built up from the elements imposed on a man by his situation and adopted by a society by reason of its situation.”10
It would be interesting to note the situation in respect of tribal customs as it obtained in the 7th century Arabia. The revealed precepts dealt with among other things, marriage and family. These were vital matters for a small community. On the other hand, the new code did not conflict with any previous rules which had been firmly established and consecrated by the former systems. The tribal customs concerning domestic relations were in a state of flux in the 7th century Arabia. Some suggest the existence of matrilineal characteristics, especially in certain regions, such as Medina. Montgomery Watt has suggested that Arab society, which had been formerly matrilineal, was in the Prophet’s time in the course of changing to the patrilineal system, and was therefore, in the transitional stage associated with the general developments towards individualism. This view seems to Rodinson as well as to J. Henninger somewhat dubious. They feel there is evidence, in particular from tile so-called Thamudic inscriptions, that the patrilineal system predominated in Arabia from time immemorial.11
The Quran could, however, lay down only the nucleus and the foundational principles of Islamic jurisprudence around which was deftly woven the entire fabric of law by the ingenious casuistry of Muslim jurists of later centuries. The Prophet could hardly have had the time to work out an elaborate structure of civil as well as criminal laws. There was no large social surplus available then to maintain a class of theologians, jurists or scribes in Medina of the Prophet’s time. The little surplus that was available from the palm-groves of Khaiber and other Jewish settlements around Medina was badly needed in other areas. Even the Prophet who was by now head of a State had to live in a hut. This explains the absence of any priestly class in the early period of Islam. The main characteristics of the nascent Islamic community were, therefore, strict monotheism, puritanism, stress on scriptural revelation, egalitarianism between believers, absence of special mediation and consequently of any hierarchy, minimization of ritual or mystical extravagances, hence resulting in moderation and sobriety and lastly-which is quite Important from our point of view-stress on the observation of rules rather than on emotional states.12
Within a century after the death of Mohammed, the Arabs became masters of a vast empire embracing the more highly refined Greek, Syro-Roman and Persian cultures. This confrontation with the vastly superior feudal institutions gave rise to several bewildering problems. The original paradigm of the Islamic law, as formulated by the Quranie precepts was found inadequate to meet the complex demands of juristic nature in this new multi-cultural society and in a locale far from the Prophet’s Medina. This paradigm consequently had to be expanded to integrate into its fold the bewildering variety of these complex problems.
It was to resolve such problems thrown up by this hybrid society that a class of ulama, the learned or the ‘doctors’, corresponding to the scribes in Judaism, came into being. This now became possible as a considerable social surplus was available which could maintain this class of theologians. This surplus was, of course, made available partly by the exploitation of the peasantry from rural areas and partly from the considerable volume of commercial profits made from all over the vast Abbasid empire which now controlled all the important trade routes. These ulama now busied themselves with codifying the laws relating to crimes, matrimony and other civil and commercial matters. Obviously, the foundation of the entire corpus furls was built on the commands and prohibitions found in the Quran and also in the traditions.
Whenever points of law arose which were not covered by a clear statement in the Quran, the majority of the jurists had recourse to qiyas (analogy), ijma (consensus), and ijtehad (creative interpretation). ijma was, in practice, the most important of the bases of the Islamic religious law according to the classical theory (usul al-fiqh). It is in theory the unanimous agreement of the umma on a regulation (hukm) imposed by God. Technically it is ‘the unanimous doctrine and opinion of the recognized religious authorities at any given time.13 Therefore when a consensus of opinion was attained on any issue, further exploration or interpretation was as good as barred. This principle thus imposed retrogressive constraints on the rights of individuals to resort to ijtehad or creative interpretation.
In this way the decisions of the earlier ulama became irrevocable and the gates were shut once for all on the later generations to creatively interpret and suitably amend the code of Islamic laws, The Islamic framework of law was transplanted from the fresh, simplistic and unbiased environment of primitive Arabian society to the heartland of sophisticated culture with its inbuilt institutions and prejudices. The entire system drew its sustenance from the new soil and thus acquired its colour. This historical criticism lends a new dimension to our argument in favour of change in the decadent and now obsolete aspects of the Muslim personal law. Polygamy is an institution of bygone feudal ages and is repugnant to the concept of equality between man and women. The progressive Mu’tazalites who were under the influence of Greek rational thought, opposed it even then when the Muslim law was being compiled in the second and third century of Islamic era and they cited the Quran to corroborate their arguments. The Prophet of Islam had retained or tolerated polygamy as it did not militate against the contemporary norms of behaviour.
The Islamic law can be divided into categories: (1) obligatory, (2) recommended, but not obligatory, (3) indifferent, (4) disapproved but not forbidden, and (5) prohibited. Polygamy and unilateral divorce, I believe, fall in the fourth category. This is quite clear from the Quranic verse ‘and you shall never be able to do justice among women no matter how desirous of this you may be. So do not incline completely (away from one wife) leaving her suspended in the air.’ (4/129). As for divorce, the Prophet is reported to have said, ‘Curse of God rests on him who repudiates his wife capriciously,’ and ‘God created not anything on the face of the earth which he loved more than the act of manumission (of slaves) nor did lie create anything on the face of earth which he detesteth more than the act of divorce.’ Thus the Quranic verse and the tradition leave no doubt that polygamy and unilateral divorce were approved only very reluctantly and the faithful were warned time and again against following these practices. The orthodox opposing any change in Islamic jurisprudence should bear in their minds that the institution of polygamy was reluctantly approved and as such the doctrine of the immutability of the Quranic verses does not apply to it.
The Quran had also permitted sexual intercourse with the female slaves. But, as slavery has been abolished from all parts of the world, no Muslim can insist on this right because the Quran once permitted it. The practice of polygamy is also repugnant to our modern conscience, and as such should be abolished altogether. The practice of unilateral divorce also falls in the same category. Though the Quran has given the right to divorce to women also, it fell into disuse during medieval ages and lost its significance. it was the practice in the decadent feudal environment, rather than theory, which gave predominance to the concept of unilateral divorce.
It is claimed by the orthodox followers of Islam that the legal structure of Islam is based on the Quran, the Prophet’s Sunna and his traditions. As for the Prophet’s Sunna and his traditions, there are genuine reasons to doubt their authenticity. D. S. Margoliouth, in his Early Development of Islam maintained that (1) the Prophet had left no precepts of religious decisions i.e. had left no Sunna or Hadith outside the Quran; (2) the Sunna as practised by the early Muslim community after Mohammed was not at all the Sunna of the Prophet, but was the pre-Islamic usage as it stood modified through the Quran; and, (3) later generations, in the 2nd/3rd century, in order to give authority and legitimacy to this usage, developed the concept of the Sunna of the Prophet and forged the mechanism of the Hadith to shape this concept.
H. Lammense, in his Islam: Beliefs and Institutions, expresses the same view and declares tersely that the practice (Sunna) must have preceded its formulation in the Hadith, Thus one has to be very cautious in accepting the Prophet’s Sunna and his Tradition as an infallible source of Islamic jurisprudence. The extraneous elements-besides the Quranic precepts. Sunna and traditions-have got inextricably woven into the elaborate structure of the Islamic law. Hence the argument of divine immutability in order to oppose any change in its structure will not hold water.
The brief outline of the historical growth of Islamic law as sketched above makes it abundantly clear that in keeping with the Quranic spirit, the elaboration of the Islamic law was done to suit the specific conditions of that society. The practical expression of the Quranic ideals was an ambitious venture in which the ulama of that period participated with religious enthusiasm. However, since then human knowledge has progressed immensely. As a result, our past belief and practices have lost much of their relevance in our time and need to be thoroughly overhauled. Our systems of thought and value will have to be re-examined and re-constructed so as to conform to the norms of our own time. Our own generation is experiencing new tensions in the field of religion and its thought system.
To resolve these tensions, creative conscience, and not conditioned conscience, is needed. The liberal Muslims have kept this conflict unresolved by merely allowing the religious and modern thought systems to co-exist without creatively harmonizing them. One can be both a Muslim and a westernized liberal without attempting a creative synthesis. The new praxis must have a new theory. The present day Muslim intellectuals like the ulama of the 2nd century of the Islamic era, will have to participate in a new historic venture to find practical expression for the Quranic ideals in our own society. For Islam is nothing if not a practical expression in history. History moves and finds expression in new thought systems, in new ideas and ideals.
It has a transcendent dimension which, if integrated into historical praxis, tends to create a just society. Our own country is passing through a period of reconstruction in all the spheres of life. Outdated legal practices are being rejected in favour of those which better serve our needs. In the 18th century, the Islamic criminal code was abolished and a uniform penal code was enforced. In the 19th century the repugnant practice of sati was banned. But by the imperial policy to perpetuate religious differences various communities were permitted to retain their personal laws. The Muslim personal law remained in force not as a legal body of the divine commands-this should be noted carefully-but as a piece of legislation enacted by the legislature in British India. This was known as the Shariat Act of 1937. Again in 1939 an act known as ‘Dissolution of Muslim Marriages Act’ was promulgated.
Thus in British India, from 1772 onwards, Islamic law fell under the influence of English legal thought, and an independent legal system substantially different from Islamic law formulated according to Hanafi or Shii doctrine, came into being. This is properly called Anglo-Mohammedan Law.16 The continuation of Islamic law is, therefore, a matter of state policy rather than a divine act. The Indian Muslims have accepted it. So the argument that no change can ever be permitted in Islamic law as it is divine law, does not hold good. Moreover, the law is administered, not through Kazis, but, through secular courts. The Islamic law, then, can admit of change. To be sure many Muslim countries have long since brought about necessary changes-comprehensive in some countries and piecemeal in some others.
In India a common civil code is eminently desirable. But it may not be practicable to plunge right away and bring it into existence. The first step, therefore, should be to either ban or strictly regulate polygamy and unilateral divorce. As the nature of Muslim marriage is contractual, a clause restraining the Muslim husband from taking a second wife can he introduced in the marriage agreement. Suitable provisions can also be made in respect of divorce. Moreover, the good points of different schools of jurisprudence can he combined to give maximum benefits to women. This eclectic approach has respectable precedents also. A century ago the Shaykh-ul-Islam at Constantinople ruled that a marriage of a woman who had been deserted by her husband could be dissolved by the courts. This was in the face of a contrary ruling of the Hanafi school of the Ottoman empire. In 1915 a wife was permitted dissolution of marriage if her husband suffered from certain specific diseases.17
The followers of different schools should thus be given advantage of good points of other schools. The problem of inheritance of the children of a preceded son can be solved by the system of obligatory bequest as applied in Egypt, Syria, Tunisia and Morocco. According to this system the grandparent is compelled to make a bequest, in favour of such orphaned children, of what their deceased parent would have taken provided that this must not exceed the bequestable third; and these obligatory bequests, which are to be divided between the grandchildren on the principle of “double share to the male”, will take precedence over any voluntary bequests. If any grandparents fail to make such a bequest, moreover, the courts will act as though he had done so.18
The above changes in the Muslim Personal law are overdue and must be brought about as soon as possible. This would ultimately pave the way for the adoption of a uniform civil code.
REFERENCES
1.
Chirag Ali, ‘Proposed Reform, pp. 95-100
2.
Iqbal, Reconstruction of Religious Thought in Islam, pp. 149-50
3.
Ibid., p. 150
4.
Ibid., p. 153
5.
Ibid., p. 157
6.
Ibid., p. 169
7. W.
C. Smith, ‘Islam in Modern History,’ p.32
8.
Quoted in E. Gellner, “A Pendulum Swing Theory of Islma” in Ronald Robertson
(ed), Sociology of Religion, Penguin Books, 1969 p. 135
9. Max
Weber, ‘Major Features of World Religious’, Ibid P.33.
10.
Maximi Rodinson, Mohammed, English tr. By Anne Carter, p. 237
11.
Ibid., pp 229-31
12. E.
Gellner, op. cit., p.130
13.
Ency. of Islam, VIII Fascicules 55-56, article on ‘Ijma’
14.
Amir Ali, The spirit of Islam, p.69
15.
See Fazlur Rahman, Islam p.45
16.
Ency. of Islam, op.cit., p. 164
17. Alfred Guillane, Islam, p.171
18. J. N. D. Anderson, Islamic Law of T estate and Intestate Succession, p.2
Asghar Ali Engineer
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