The following is a guest post by Tariq Ahmad, a foreign law specialist in the Global Legal Research Directorate of the Law Library of Congress. Tariq has previously contributed posts on Islamic Law in Pakistan – Global Legal Collection Highlights, Sedition Law in India, and FALQ posts on Beef Bans in India, Proposals to Reform Pakistan’s Blasphemy Laws, and Physician-Assisted Suicide in Canada.
On December 8, 2015, the Law Library of Congress, along with the Library of Congress African and Middle Eastern Division (AMED), observed Human Rights Day with a panel discussion on “Perspectives on Islamic Law Reform.” The session was moderated by Jane McAuliffe, who is a distinguished scholar of Islamic studies and director of the Library’s National and International Outreach Division. The discussion explored new avenues and perspectives on Islamic law reform with a particular focus on reform within the framework of Islamic jurisprudence.
The panelists included Sherman Jackson, King Faisal Chair of Islamic Thought and Culture at the University of Southern California; Issam Saliba, foreign law specialist at the Law Library of Congress; and from Harvard Law School, Intisar A. Rabb, professor of law and co-director of the Islamic Legal Studies program, and Kristen A. Stilt, professor of law and co-director of the Islamic Legal Studies program. Roberta Shaffer, Law Librarian of Congress, opened the program, which was held in commemoration of the anniversary of the Universal Declaration of Human Rights.
The first speaker, Issam Saliba, began his formal remarks by noting that Islamic law is a legal system with special characteristics that differs from that of western legal systems. He noted that Islamic Law regulates acts of worship and religious rituals (ibadat), as well as acts of regular transactions (muamalat). Dr. Saliba explained that the purpose of his presentation was an inquiry into whether reform of the law of muamalat, rather than the law of any particular Muslim state, is possible within the Islamic legal theory itself. Dr. Saliba explained that Islamic legal theory is based on moral imperatives of right and wrong under which the law mandates the performance of what is “good” and forbids acts that are “bad.” He noted that the majority of Muslim scholars, which comprise the various schools of thought or Madhahib, contend that human reason on its own could not gain knowledge of the law because the determination of goodness and badness of acts is relative and subject to change.
Dr. Saliba also enumerated the primary sources of Islamic law, including the Quran and the Sunna, and–the process by which religious scholars derive readily identifiable legal rules from these sources–a specialized discipline of study, known as Ilm al-fiqh. He noted that, despite its amazing record of accomplishment, the Islamic legal tradition has been “stagnant for a long time.” He also noted that some of its rules are now seen as incompatible with modern norms. In order to address his original inquiry, Dr. Saliba concluded by posing three questions: Is Islamic law immutable? Can Sharia support new interpretations compatible with modernity? And who has the authority to reform Islamic law?
Professor Stilt’s presentation focused on Islamic family law. She began her remarks by noting that “family law in Muslim-majority countries has undergone tremendous change over the past century, and that this process continues today with intensity and controversy.” She then discussed how change can come in many forms and be driven by a diverse set of factors. She focused on how activists, monarchs, and legislators want to change family law with the intention of improving the rights of women and children. She noted that in most Muslim- majority countries the change process is presented as being internal to Islamic law, where changes and modifications are justified as compatible with Islamic law, rather than something external to it.
Professor Stilt discussed what is gained or lost when family law “is seen as the exclusive domain of Islamic law.” She stated that “if an advocacy organization sees a social need for change they have to try to justify it in Islamic terms, and if they can the social acceptance of the change can be much higher.” However, she also cautioned that the need to publicly acknowledge that family law is in fact Islamic law can also “limit the possible arguments that can be used to advance their claims.” She then addressed two changes in the area of polygamy and marriage contracts, and how these were justified.
In terms of polygamy, Professor Stilt observed in both Morocco and Jordon the Quranic injunction to treat all wives equitably is used to take away the power of the husband to marry a second wife and assign that discretionary authority to a Judge. With regard to marriage contracts, she highlighted another strategy and described it as “encouraging the permissible.” This approach encourages the inclusion of additional clauses or stipulations in a marriage contract—with the aim of enhancing the rights of women—which are permissible but are not required under Islamic law. Professor Stilt concluded by posing four rhetorical questions: What is gained and what is lost when family law in a particular country is seen as the exclusive domain of Islamic law? What is gained and what is lost when Islamic arguments on family law are particularly relevant in a society? How can international human rights-based arguments become persuasive where they have not been persuasive in the past? How can international human rights norms and Islamic law work together – can they be mutually reinforcing?
Professor Rabb’s lecture focused on Islamic criminal law. She noted that the doctrine of doubt, or shubha, is a significant feature of Islamic criminal law and is key to a process that she described as “internal critique,” which “pervades Islamic law at a meta level.” Internal critique, she contends, is a process through which Muslim jurists “critically assess the rulings and application of Islamic law” and has typically occurred in particular historical moments of crisis.
Professor Rabb stated that this doctrine of doubt, which encompasses factual, legal, and moral uncertainties, was developed over a long period of time; however, at its core it is “based on Islamic values of fairness and justice.” She claims that “Muslims made doubt and avoidance of punishment on its basis a central pillar of Islamic law and they expressed in a legal maxim.” This she called “the doubt canon,” or the need to “avoid criminal punishments in cases of doubt.” Professor Rabb then discussed the relevance of this application in current practice, where there has been some “internal criticisms” amongst Muslims about Islamic criminal laws that appear to be “applied in ways that promote injustice rather than justice.”
Recently, new criminal codes based on Islamic law have been drafted in Iran, Brunei, and the Maldives. In Iran, where Islamic criminal law was first codified in 1983, the rise of executions led to a debate among Muslim jurists with some considering that there was not enough emphasis on procedure in the code. They therefore incorporated the doubt doctrine for the first time in the new draft code. Professor Rabb concluded that the history of the doctrine of doubt in Islamic criminal law is important because judges and jurists tend to appeal to concepts of Islamic law drawn from its foundational texts and, like other legal systems, Islamic law is tradition bound.
Professor Jackson began by addressing the important distinction between reform as an attempt to edit, correct, update, improve or even add to the enterprise of Islamic law as opposed to something akin to the Protestant Reformation. The latter implies that a problem rests “fundamentally with the basic structure, institutionalized understandings and interpretive methods, through which Islamic law traditionally negotiated social, political, economic and cultural reality. On this understanding meaningful reform requires a whole scale scraping or at least marginalization of the classical tradition and its replacement with a brand new set of modern methods, institutional structures, and points of departure.” Professor Jackson contends that this is not the most useful approach to reforming Islamic law. If something other than Shari’a were to replace Islam as an “authority broker,” it would take centuries for such a substitution to take place and would result in massive instability and dislocation.
Professor Jackson’s preferred approach, therefore, “proceeds on the understanding that reform is most effectively achieved by engaging rather than jettisoning the classical tradition.” He noted, however, that this raises its own problems. There are many contemporary issues that the classical tradition never contemplated; however, those that it did seek to address “cry out for reconsideration.” The fear is that that engaging in the Islamic tradition will either “blind us to contemporary reality” or “entrap us in forms of thinking about arranging society from which we desperately seek to escape.”
Professor Jackson then discussed certain features of the Islamic tradition that may help Islamic law deal with some of these challenges, for example, Ijtihad, which he defined as “fresh, unmediated interpretation of the sources.” This, however, takes us back to the problem of “authority”: the classical tradition will likely retain much more authority than any contemporary individual or movement is likely to be able to muster. Furthermore, we are not guaranteed that new rules will be better rules, as we have seen in the case of extremist groups today. Professor Jackson believes, nonetheless, that the authority wielded by the classical legal tradition does not necessarily bind us to the perspectives of classical jurists because there is an important distinction between “their statements of law and their assessment of fact.” Since classical deliberations were not simply theoretical but also practical, an admixture of law (jurists’ interpretations of the sources) and the facts (the practical circumstance that they were seeking to adjudicate), many so-called “rules in the books” could be seen as obsolete and inapplicable to a “modern set of circumstances.”
Another facet of the classical tradition is its recognition of the limits of Islamic law: the law itself was not intended to address all issues. Therefore, “beyond the scope of the sources jurisdiction other forms of deliberation, including those that rely on reason, science, practical experience, spiritual epiphany, could be legitimately invoked.” This notion, which Professor Jackson called the “Islamic secular,” means that an area beyond Shari’a may be perfectly “Islamic,” “even if it was not based on Shari’a in the strict sense.” Professor Jackson concluded by referring to an outstanding problem: with the marginalization of this juristic legacy in modern times, the entire record of juristic opinion can be accessed, particularly by Islamist movements. In doing so, rules that have long been discarded or discredited can be “treated as the going opinion.” Professor Jackson stated that Islamic law has a rich and pluralistic tradition that is highly valuable; yet, this “very access itself poses real problems and even potential dangers.”
The second hour of the program included a moderated discussion between Jane McAuliffe and the speakers. The discussion touched on topics such as the right to reconsider interpretations of the sources themselves, including the Quran. A video of this discussion and the formal presentations of the speakers will be posted on our YouTube page, as well as in this blog, once it becomes available.