[Reader-list] "The frozen solution"

[Kshmendra Kaul]

It is with an amused smile I am going ahead with this posting.
 
Just a few days back, starting from a conversation with Venugopalan, I expressed myself on how the Muslims  need to "go back to the basics" so as to ultimately "find a new understanding of what a true Muslim is that will not make them suspect in the eyes of everyone else."
 
I received comments suggesting "what business is it of yours to lecture to Muslims". 
 
The reproduced piece by Nadeem F Paracha to a very large degree echoes the thoughts I had expressed. His of course is a far superior and well referenced commentary.
 
EXTRACT:
 
"""""" The shariah is a man-made construct that came into being almost two centuries after the emergence of Islam; this is a fact that usually gets lost on most everyday Muslims to whom the shariah is erroneously propagated (by Political Islamists and fundamentalists)  as being a wholly divine law.""""""
 
Kshmendra
 
 
"The frozen solution"
 
Posted by Nadeem F. Paracha in Featured Articles, Pakistan on 06 4th, 2009 
 
According to a March, 2009 report on DawnNews, a majority of people in the troubled Bajaur area wanted the implementation of the shariah law.
 
The same report then suggested that more than 70 per cent of the people residing in Bajaur are illiterate.
 
Now the question is how is one to respond to a demand made by an illiterate majority?
 
Of course, one cannot ignore the fact that the draconian laws prevailing in the tribal areas have continued to frustrate the inhabitants, but the shariah alternative is a somewhat simplistic and rhetorical answer.
 
The issue is encapsulated in a simple (but pertinent) question that is asked by those advising caution in this matter: ‘What shariah?’
 
There is not one form or version of the Islamic body of laws. The four major schools of Sunni Islamic jurisprudence – Hanafi, Maliki, Shafii and Hanabali – have their own variations of the shariah, especially on issues that are not clearly ordained by the Quran. [1]
 
When the Islamic empire started to expand, the Arabs came into contact with various other cultures and religions. They faced a whole new set of issues on which the Quran is silent. So, beginning in early 9th Century, ulema and caliphs started devising a body of laws derived not only from the Quran but the hadith as well.
 
Eventually the hadith became one of the primary sources of the shariah. But there was a reaction by some Muslim scholars who claimed that that the hadith are not entirely unquestionable because they were being reported by men who were not alive during the time of Prophet Muhammad. [2]
 
In an attempt to answer hadith critics like the Mu’tazili philosophers who emphasized the usage of reason and logic in matters of Quranic law and interpretation, leading ‘hadith scientists’ like Imam Bukhari (d.870) and Muslim Ibn Al-Hajjaj (d.875), started devising a mathematical way to decipher the correct hadiths from the false ones. Nevertheless, the Bukhari method (considered to be the most reliable by a majority of Muslims), managed to clear a mere 2, 062 as correct hadiths out of a mammoth 300,000 or so hadiths that were in circulation. [3];[4]
 
Thus, a number of modern Islamic scholars, especially in the 20th century, advised a cautious approach in using the hadith in the formation of Islamic Law. Some have described the practice as an off-shoot of how the hadith were used by the Abassid caliphs (750-1258), to ‘bolster their genealogical credentials’, and to ‘Islamize’ their rulings. [5]
 
The shariah remained a hotly debated topic between scholars and ulema until the reign of the tenth Abassid caliph, Al-Mutawakkil (847), when the orthodox ulema began to gain an upper hand.
 
Scholars believe that this victory of the orthodox ulema against the rationalists was due to the fact that Muslim history was at the peak of its expansionist phase, and conservative fiqh incorporated the logic of Muslim imperialism in its discourse.  However, the orthodox victory put an intellectual freeze on matters like ijtihad (independent interpretation of the legal sources), and by the 11th century the shariah laws had stopped evolving. [6]
 
Beginning in the 19th Century, the overriding arrangement - in which the Muslim caliphate remained tentatively secular and the shariah operated more as a theory - started to be questioned by a number of ‘reformist’ movements in the Muslim world.
 
The dominant reason behind the springing up of these movements was the gradual disintegration of Islamic empires in the face of the rise of Western powers.
 
Movements that put the non-implementation of the shariah in Muslim societies as the reason behind the empire’s downfall, eventually evolved into the varied expressions of the political Islam and militancy of the 20th Century. [7]
 
However, whereas violent 20th Century groups like the Ikhwan, the Muslim Brotherhood, and the present-day Taliban/Al-Qaeda belong to the ultra-conservative Hanabali school of jurisprudence, most non-militant radical groups who use evangelism to propagate the enforcement of the shariah usually belong to the Hanafi and Maliki fiqh.
 
Thus, outside the confines of what is considered to be ‘timeless and unchangeable’ in Islam, no two Islamic schools of jurisprudence agree on a single blueprint of the shariah, especially regarding the shariah’s rulings on modern-day issues, or on issues on which the Quran is silent.
 
One cannot convincingly produce a clear example of a singular version of shariah in history. Offering the example in this context of the system being practiced during the time of the ‘Khalifa-Rashideen’ is also largely a rhetorical gesture because the institution of the documented hadith - of which much of the shariah is made of - did not fully appear at least 200 years after the demise of the Prophet.
 
Today, the demand for the implementation of shariah laws is mostly based on a concocted memory of a ‘golden of age of shariah’.
 
A concoction that ever since the Abbasids has largely been used to gain and maintain political influence and power.
 
It is a rhetorical (as opposed to practical) solution because the shariah of any fiqh stopped evolving from the 11th Century onwards. Therefore, its modern-day implementation will only create tense dichotomies between assorted Muslim sects and encourage ‘religiously-ordained’ violence and crimes– especially in a pluralistic society like Pakistan. 
 
The shariah is a man-made construct that came into being almost two centuries after the emergence of Islam; this is a fact that usually gets lost on most everyday Muslims to whom the shariah is erroneously propagated (by Political Islamists and fundamentalists)  as being a wholly divine law.
 
In fact, till less than a hundred years ago, most Muslim leaders and scholars were largely in favour of completely reforming the shariah in an attempt to compete and exist affectively in a fast changing and modernizing world.  [8]
 
According to a number of Islamic scholars across the centuries, the only thing entirely divine in Islam is the Quran; and on issues that are not addressed in the Quran, the ulema are required to reach a consensus through intellectual and legalistic deliberations, keeping well in mind the religious, traditional and psychodynamic culture of the place and society where an Islamic Law has to be enacted.
 
Harking back to a largely mythical tradition of hundreds of years ago to interpret and devise shariah in a modern setting is an act that can only spell socio-political and cultural disaster – plus, according to the scholars, this intransigent practice and propagation actually goes against the intellectual and evolutionary spirit of law-devising in Islam. �

 
Resources:

   [1]  Rethinking Islam: Ziauddin Sardar (http://www.islamfortoday.com/sardar01.htm)

   [2]  Liberal  Islam: Prospects & Challenges: Charles Kurzman (http://meria.idc.ac.il/journal/1999/issue3/jv3n3a2.html)

   [3]  Islamic Law and the Use and Abuse of Hadith: Dr. Mohammad Omar      (http://www.globalwebpost.com/farooqm/writings/islamic/law_hadith.doc)

    [4]  The Koran & Hadith: Kenneth Garden (http://www.mideasti.org/files/Library-Resources/Koran-and-Hadith-Bibliography.pdf)

   [5] God’s Caliph: Patria Crone & Michael Hinds [Pgs: 58-97]:  (http://books.google.com.pk/books?id=Ow-mV50c2TUC&dq=patricia+crone+god’s+caliph&printsec=frontcover&source=bn&hl=en&ei=sN8j
SpeSIYKCkQXtvJicBQ&sa=X&oi=book_result&ct=result&resnum=5#PPA58,M1)

  [6] Untangling the Complex Web of Islamic Law: Maliha Masood (http://books.google.com.pk/books?id=Ow-mV50c2TUC&dq=patricia+crone+god’s+caliph&printsec=frontcover&source=bn&hl=en&ei=sN8j
SpeSIYKCkQXtvJicBQ&sa=X&oi=book_result&ct=result&resnum=5#PPA58,M1)

  [6] Untangling the Complex Web of Islamic Law: Maliha Masood (http://www.hahmadi-persia.com/links/saudi%20arabia%20and%20the%20militant%20islam.pdf)

   [8] What Made The Gullen Movement Possible: Mustapha Akyol (http://www.gulenconference.org.uk/userfiles/file/Proceedings/Prcd%20-%20Akyol,%20M.pdf)
 
http://blog.dawn.com:91/dblog/2009/06/04/the-frozen-solution/