Sharia / Fiqh / Islamic Law

     Analysis &  Autocriticism

  

Dr.Yusuf Ziya Kavakci*

 

 

Sharia recently became a hotly debated subject. Archbishop of England made a statement at the middle of many statements, that has given the opportunity of Islamic law and Shari to be discussed and debated by westerners and some times the discussion apparently was taken out context. It is, as I believe, a fact that Sharia, Fiqh in its early stages got established and developed in the wide area of the world, mainly where Roman Law was dominant. Roman Law (the law applied in Byzantine Empire was  Roman Law)  developed in the Beirut, Istanbul (Constantinople) centuries long before Islam. Fiqh was established, acted upon and developed to answer the needs of people embracing Islam in Syria, Iraq, Jordan, Palestine, Saudi Arabia, Central Asia, Iran, Egypt North Africa where Roman Law was dominant for centuries. Actually the relation between these two laws were made subject to theories and  researches, as Fiqh’s relation with Judaic tradition and law was done. There was a Roman Law text in Arabic at 5th Century AD applied in Syria where Islamic Law later applies, the relation between these two laws also made specifically subject to comparative studies not too long age, unfortunately in Turkish only. Actually the researcher compared the Arabic text of this Syrian Roman Codex, edited by German orientalists more than a century ago,  with al-Majmu fi 'l-Fiqh by Zaid b, Ali (circa d. 120 AH), which was edited By Griffini, of which original manuscript is in Milan, Italy. The comparison is made in terms of systematic, subjects, forms and contents.

 

Abu Hanifa himself was not really an Arab, lived out side of Medina and Mecca, that is in Kufa, a city south of Iraq, and Baghdad. His grave is in Baghdad which is not well taken care of nowadays. He is the one who really established Fiqh, Sharia, I may say, as codified by his teaching, his two students, among thousands, Imam Abu Yusuf and Imam Muhammad al-Shaibani are the ones who wrote down and took notes and put into book forms the teachings of their ustad. These two taught and transferred their ustad's teaching to Muhammad b. Idris al-Shafi'i. So Shafii is the student of the students of Abu Hanifa.

 

A few decades ago we have had strong orientalists like L. Massignon, Ch. Pellat (France), Bertold Spuler (Germany), M. Watt (Edinburgh, UK) and Bernard Lewis (England, USA). Before  there were strong caliber  orientalists like Carl Brockelmann, I. Goldziher, Snouck-Hugronje, and  Wensinck,  one of the important piece of  Islamic literature being  “Concordance” edited by his team, in whose time also first edition of  Encyclopedia of Islam in French, English and German is produced.  Annemarie Schimmel (Germany, US), Graef and Hans Kruse and Walter Hinz (Germany). Now second edition of EI is continuing to be published only in English and French. But the fact is that not many of the orientalists were specialized in Islamic Jurisprudence and  Fiqh area, there were a few of them only in the West, definitely not many in America. American universities were not that much interested in producing and educating  specialists in Islamic Jurisprudence. Perhaps they were more pragmatists in approach. One needs to appreciate Brockelmann's GAL, Dr. Sezgin's GAS, also Concordance de La Tradition Musulmane (Mu'jam al-Mufahras li-Alfaz al-Hadith al-Nabawi), all being published by Brill at The Haque (Lahaye,  Leiden). These are extremely important manuals  Islamic Scholars can not afford not referring to, if we intend to raise  research oriented western standard-type academic scholars among Muslim scholarship. George Sarton's chapter on Muslim Period in his magnificent book Introduction to the History of Science also deserves to be noted at this point.

 

The most important western Orientalist in Islamic Law was/is J. Schacht,  who was here in USA but originally from German tradition. Dr. Schacht worked in Sharia and Fiqh area more than half century. His article on Ikhtilafat was published in 1926. His book Origins of Mohammedan Jurisprudence was one of the books yet has to be superseded, albeit criticized from the Muslim perspective. Dr. Sezgin with his Buharinin Kaynaklari must have added and corrected many of the presumptions made by Schacht in his works.  His book Introduction to Islamic Law is more general, covering almost all areas of Islamic Law, but briefly with no details. Dr. Hamidullah had a lot of points in his lectures and classes as well in his writings, correcting the basis of Hadith literature. Dr. Mustafa Azami also worked a lot in early Hadith literature. He, too, stands  criticizing and correcting  many points against Schacht's and the likes' theories.

 

The Lebanese origin Majid Khadduri in US, also wrote in the field of Islamic law. Dr. Vogel, at Harvard, in the field of Law, managed to get a good amount of financing at Islamic Studies area from mainly Saudi sources. John Esposito is also very prolific author in Islamic Studies field  in US.

 

We have In the US, as Muslim scholars and academicians,  Dr. Akbar Ahmad, Dr. Mauzzammil Siddiqi, Dr. Ingrid Mattson, Dr. Laila Ahmad, Dr. Mervat Hatam, Dr. Hussain Nasr, Dr. Ali Mazrui, Dr.Sulaiman Nyang, Dr. Zahid Bukhari, Dr. Abdullah Idris and  Dr. Jamal Badawi (Canada). I must specifically mention Dr. Muhammad Hamidullah (France) and Dr. Fuat Sezgin (Frankfurt, Germany), both being my teachers, are to be considered giant scholars in Islamic Studies, Hamidullah being in Islamic Law. I don’t think we have today many people in his caliber in Islamic Law area.

Of course, Arabic department of Ann Arbor, Chicago Middle eastern and Islamic Studies, Harvard's related branches, Hartford Seminary's lately caring about Muslim Chaplainry and Islamic Studies programs are to be appreciated. Ann Arbor's Arabic grammar and middle eastern studies and what George Maqdisi and their colleagues did  and are doing have to be appreciated.  Georgetown University's Arabic teaching and American University's efforts in the field are modern efforts not to be ignored.

 

When we see the works of Minosrski, Fluegel, Ahlward,  Kaziimirski and the likes, we really appreciate them today more than we may do the Islamic countries’ specialists, working as patchy and as culturists or historians. In U.K. Anderson and Coulson were in Islamic Law area. They also have works and articles on Islamic Law, but they seem more interested in generalities, application thereof in English Muslim colonies.

 

The west always was interested in the east, they have had relations with each other. Orientalism developed because of western interest in the east. East, middle east, gave divine texts, Towrah, gospels, Qur’an to whole world, including the west. East gave prophets, messengers such as Abraham, Noah, Moses, Jesus and Muhammad to the west and the whole world. But I must say, at no university and no place there is a real and at the same time strong Islamic Law program in US, may be in the entirety of the west, Nobody is teaching Tafsir, Hadith, Fiqh, Usul al-Fiqh, Khilafiyyat together with strong classical Arabic. In US, many Islamic Law specialists are having a little training in general Islam, Muslim countries, history of Islam. They have never past any exam in real Islamic Law and Sharia branches in their life. Their Sharia and Fiqh  education is some what cosmetics, just colored with glittering words. None of them have mastery of Qur'an. They never memorized it, they do not know how to read and recite Qur'an properly with rules and regulations. Qur'an is the source of Sharia together  with Hadith/Sunnah  and Ijma, Qiyas al-fuqaha, ijtihad and others. How can any body claim any authority in Sharia and Fiqh without mastering them? For all fairness, it is true that today's Sharia specialists in the West may  not have half of the back ground in Islamic sciences of a middle level imam who is trained in a Madrasa we all criticize.

 

Dr. Khalid Abou 'l-Fadl is one of the most qualified ones in US, of course so far what he writes shows that he is more philosophical, perhaps not generally fitting to traditional Islamic jurist category. Dr. Abdullah al-Naeem, in Atlanta, is more in criminal area. Knowing him from PhD days from Cambridge, UK, I can say that he seems to be more at odds with traditional approach to Islamic Law, even perhaps he is part of a reform trend, a trend which is representative of heretic Muslims. But with due respect to all, I must say that many of the orientalists who are writing in Islamic Law, Fiqh and  Sharia today and  who are considered in one way or another specialized in Sharia, had no education in basic Islamic studies and specifically in Fiqh field even at a Saudi high school level, or al-Azhar 's high school level. They are generally slipped away from Arabic, or history  fileds to Islamic Jurisprudence field. They never studied Usul al-Fiqh, Multaqa or ahkam of al-Qur'an. They do not know how to recite Qur'an either. They have never passed any serious exams and have no ijazah in traditional sense at all. Yet they opine and write in Islamic Jurisprudence with extreme sense comfort.

 

The late  Ismail alFaruqi was a strong scholar at Temple University. Dr. Ayyub has also contributed to Islamic field and its teaching. There were  several attempts to establish Islamic universities here in the United States, but I do not see much academic work and establishment other than recruitment efforts or certifying already existing talents, and shaping them or forming them. Of course, I believe that this is patchy education, like distance education. There is no real talim and tarbiya and  face to face teaching and instructing lasting for months, if not years. They never made an imam who is unable to recite Quran with tajwid rules able to do it, or did not know basic Fiqh educated them well enough. That education is not, in my opinion, real talim and tadris and tarbiya. Of course what Zaituna Institute is doing and attempting to do more is appreciated, but I think that it is not satisfactory at the moment for ummah's need. It needs to be developed more.

 

However the experience of IQA, IANT Quranic Academy and its Suffa Islamic Seminary in Dallas, Texas worth to be noted. The Quranic Academy was established 5 years ago. In this elementary- high school level school, the students are taken at 5 years of age at KG, and are educated all the way up to 10th grade. At the moment, it has 200 hundred students. Mission is to raise Muslim scholars, both male and female, here in US. They memorize Qur'an, study Arabic, Qira'a, Tajwiid rules, and practice them in the masjid, together with all core and  secular subjects taught in public schools. There is also Alim program, where the students of Quranic Academy study. In this program, students study Aqida form al-Fiqh al-Akbar by Abu Hanifa, Aqida of Tahawi, Aqaid al-Nasafiyya from Arabic original texts, Fiqh from Nur al-Idhah, Tafsir from Qadi Baidhawi. 17 of the students have already completed their hifz. The school is fully accredited as exemplary school. IQA is a whole year academic school, that is to say that, students have only a few weeks of vacation time in the summer. Even during this period they must continue to study under the observance of their parents. Students also lead the prayers in the mosque as traing on the field, they lecture and do presentations for the congregation. Approximately 60 % of the school’s weekly education focuses on  Arabic, Qur'an, Qira’ah, Tafsir, Hadith and  Fiqh while 40 %  in on other core subjects. At the moment 70 % of the students are honor roll students and they are at the top quarter at the national level core subjects exams. There is no intention of compromising academic and core subjects with less education. The core subjects, however, have to be connected to Islamic sciences and must be delivered in relation to Islam so that then students  may not be confused or left with no guidance in the wilderness of ideas or chaotic ways of thinking.

 

Ummah needs leaders with strong personalities who are well educated. That is what the Ummah is lacking for some time. This is a unique school in the two Americas, there is no any other school similar to it. The hopes and prayers are that we can have a few buildings with hostel facilities, research supports, places to have students from other countries. This school must not be confused with other general Islamic Schools where 90  % of school program and curriculum is public school core work where academic subjects are managed privately by Muslims to provide a safe environment to the Ummah’s youth.

 

The education in IQA is and always must be mainstream Islam based on traditional scholarly texts with no indoctrination. The students are freely educated to be “lions and lionesses” of truth, justice and honesty in public sphere for the Ummah and whole humanity. It is planned that after they finish the IQA students may be educated at Suffa Islamic Seminary all in Arabic, in Islamic Sciences like Tafsir, Fiqh, Hadith, Sira, Usul al-Fiqh, Usul al-Hadith, Balagaha, Bayan and Badi with full authority and in the sciences like sociology of religions, psychology of religions, socio-psychology, Latin, Greek, Hebrew with a good deal of history of Christianity, Judaic traditions so they may be able to understand and address accordingly the roots of the Western civilizations in the proper context and act accordingly, and address the needs of Ummah and serve to humanity.

 

The Muslim scholarship must come up to a level  that it may  answer the western civilizational challenges, for that a strong education is necessity no doubt. What decades ago Osmania University had to plan in Hyderabad Deccan under Nizam, namely, to raise Muslim scholars well in Arabic, Islamic Studies and well in English didn't work properly. Otherwise we could have had today scholars who could address the western mind fairly well. Now, we the Muslims in the USA have this opportunity, to do some thing dramatic for humanity here in the West of the West, America.

 

It has been seen that so called scholarly papers, even theses prepared here in the west for example in Ottoman History without knowing Ottoman Culture, language, without visiting Ottoman Archives, based on the sources  by simply picking up from here and there. Also some of the Islam's Orientalists are speaking and writing on Islam, advising the governments, guiding them in Sharia, Islamic law, democracy vis a vis  Muslims and Islamic countries without having any strong academic education and knowledge, which is leading to no good results, even harming our country the USA, tarnishing the image of America and the West. This is only making things worse.

 

We must look at the commonalities and move forward from there. History is replete with evidences attesting to the interactions between  east / Islam and the west. The army of the Alexander the Great went to Afghanistan. Napoleon visited Cairo and Azhar, French, English, Germans, Italians, Holland, Dutch, had centuries-long relations with the Muslim peoples. They colonized Muslim lands. The British administration had relations with the Ottomans and their administration. English and thereof American common law appears to be similar to the Ottoman system of administration and legal system in terms  of functioning.  The Napoleon Code civil of 1804, which is the  mother civil code in the west in terms of continental and European legal system had a lot of commonalities with Islamic Jurisprudence. There are books comparing the Napoleon Civil Code with Islamic Law article by article and establising the differences and commonalities. Contrary to what common men may think there are more commonalities between western laws and Islamic law, namely Sharia.

 

When we say Sharia we must not confine our minds to cutting hands, stoning the adulteress, having four wives, letting women have half male’s share of inheritance. Islamic law is so wide, it covers the entire life of a person. A few needs to be explained type of issues may not even amount to 1/10000) of Fiqh. The amir (Imarah system) or Kahlifa (khilafa) has the immense right and authority of legislating as tazir  in the Penal Code of Islam which could be usually more rigid field than any branch of law. There is only a few hudud, 5-6 of them, which are strictly defined and criminalized in Qur'an and Sunnah with a lot of strings and conditions attached in terms application  thereof in justice and fairness. Surprisingly there is free bargain in American System if desired by the authorities. Actually the differences between the western laws and Islamic Law, Sharia law are not too rigid or too strict. I may dare to say that sometimes the difference in western codes of law as France, Germany, English or American legal sytems represent, are bigger than their differences with the Sharia laws of Islam. The differences in America among the states are at times so wide that one may wonder are all of these a part of one legal system as it is the case in alimony where it changes from on state to another, or the case of same sex marriages being recognized in one state while it is rejected in others.

 

It is known that Turkey adapted Swiss civil code which was based on Napoleon Code Civil and put aside Majalla-i Ahkam-i Adliyya of Ottoman Empire. This Majalla was prepared under the leadership of Ahmet Cevdet Pasha, a prominent historian and lawyer, together with a committee. It has been worked well by my colleagues in Turkey, mainly by Osman Ozturk as his PhD topic. This code is really marvelous in its content, great work, similar to Justinianus Code Civile or Napoleon Code Civil. Unfortunately, Majalla’s  English translation does not reflect att all its Ottoman legal context to the readers. It has a lot of mistakes which necessitates the need of new translation thereof. This has been well stated in the lecture series given in the subject (www.iant.com/link Majalla). The preparation of  Majalla came after the attempt of translating of Napoleon Code Civil into Ottoman language and legalizing it at the time of Rashid Pasha in the middle of 19^th century. Rashid Pasha is known as a western type of pasha, even allegedly  affiliated with the Freemason. Ottomans, as we know already had accepted earlier  the Italian penal code as their Ceza Kanunnamesi, their penal code. Also there was Qadri Pasha in Egypt who had developed Qanun al-Ahkam al-Shakhsiyya (Code of Personal Rulings) as answer to western system in terms of codification of laws.

 

It is interesting to see the similarities between legal systems even during the early periods of Islam. As stated above Islamic Law developed mainly in lands and areas under the jurisprudence of Roman Law, areas such as Beirut, Syria, Palestine, Egypt, Istanbul etc. Roman Codex Civile and Novellaes and  edictums  were commented, annotated by early glossators with their glossas, and later same texts were edited by postglossators with additional glossas, which is almost same method used by Muslim faqihs (jurists) when they commented and annotated the works Abu Hanifa, Imam Malik, Pazdawis, Kasani, Marghinani, Sarakhsi  and their and fatwas by sharh (comment,commentary), by hashiya (footnote/side note/notes on margins) or notes between spaced lines as qaid / muqayyad Fiqh books, which are called in some literature fawaid and hawashi. Sometimes one may have in one bound volume three-four authors’ notes, comments and works, may be centuries difference in their lives. Of course human being always had relations with each other, civilizations, no matter what, had borrowed a lot from each other. Languages are clear examples of that borrowing. German language is structured as Persian, cut must be related with Arabic qat', mosque must be englishized form of Masjid, the place of sajda (prostration), mixer must have come from kasr root, to break into pieces.

 

Institutions and systems also had that type of relations in the past as they have today. Arabic is a very important source in Islamic Studies, hence for Sharia Law too. Therefore in Islamic Studies Sarf and Nahw, parts of Arabic grammatical studies, are very important tools to study higher desciplines, such as Tafsir, Hadith, Fiqh, Usul al-Fiqh etc. These higher sciences are called al-Ulum al-'Aliyah. Tools and instruments are called al-'Ulum al-Aliyah. This last group comes first in education, the ones who don't have mastery in this tool group may not reach and climb to  high levels. Therefore Arabic with its Ma’ani (semantics), Bayan and  Badi’ (as literary arts) are very significant. They are sine qua non.

 

The Usul al-Fiqh, which is Methodology of Islamic Law, or Sharia Law has a lot of innovative service content. Muslim jurists and scholars were very innovative. They innovated signs of Arabic letters, dots (nuqta), harakats and ashkal almost 100 years after the death of Prophet Muhammad (pbuh). They invented grammar, they invented Usul al-Fiqh, to answer to the questions like how to understand the divine texts, conflicts of laws, letters, meanings, semantics, special words, general words, contents. They also pondered upon questions such as is answer a part of question, is the case for which revelation came down a part of the text in terms understanding, is opposite of imperative ordered too? Is mentioned text covering meant but not mentioned? Is there any cancellation or abrogation  in the the Scripture and Sunnah and is there any modification thereof too? Can a verse or an imperative be understood independently from any other texts related to the same subject? I must say the rules like lex specialis derogat lex generalis as Latin rule were there before Islam too as a part of human wisdom.

 

In Turkish, there is a proverb which means reason has one way, wisdom gives same one way.  This type of maxims (al-qawa'id al-Kulliyya)  are very much favorably taken as the first 100 articles of Majalla mentioned above. This Majalla worked well and included written commentaries by Ali Haidar in Ottoman Turkish and taught by Abul Ula Mardin (Mardinizada Abu Ula) in Istanbul University during las decades of Ottoman Empire as well as in Modern Turkish Republican era. Dr. Sharif Mardin who is well known academician in the west gets his last name from this Abul Ula Mardin, though I am not sure how much the efforts of Abul Ula is appreciated by him in his works and the works of others today. With due respect to all of colleagues and scholars, I must say that I see so much chronic  ignorance especially in the Islamic Law field, if not fear of unknown and perhaps resistance to know more. The Islam 101 level favorably sought for courses by universities and academics and firms working in Muslim countries are insufficient.

 

Sharia and Fiqh have strong flexibility by the institution of Ijtihad in the governance and administrative Law. There are very few limitations and defining verses in administration, management of the state in Qur’an and Sunnah. The khalifa/ amir has enormous authority and flexibility to form the rules and regulations, indeed, in fairness, truthfulness,  justice and honesty, even when it comes to in Penal Code. I doubt today any legal system may  have in our modern world in the east or the west that much flexibility and discretion for thekhalifa. Khalifa has a very wide authority and freedom of doing and acting for the larger benefit and interest of the people (ra'iyya), people under his care. He is ra'i, the one who has to attend, to care and  to shepherd others in fairness, honesty, justice and integrity.

 

Ijtihad has legal ground for khalifa/leader’s authority, as long as mujtahids are qualified enough to sanction the leadership’s rulings and legislatures.  The  Islamic governance and Public Law area, as we all know Islamic legal and state management system is very much similar to American presidential system where presidency has authority, secretaries (ministers)  are just his representatives who get their authority from president’s original authority, much more different than French, German systems for example. Ijtihad, as said, may legalize new administrative initiatives as long as they are well established. The door of Ijtihad is theoretically at least wide open, its door is munsad as we say it, it is not masdud, which means it is closed by itself because of lack of qualified  mujtahids, it is not closed by some other force. It may open any time when conditions meet. There are many individual issues in Islamic Law. One may speak about  women’s equality in shares of inheritance. But each law and legal system must be evaluated in its entirety within a context of the bigger picture. These issues have been studied by the author of this paper and found that these rules are not necessarily against the interest of woman. Woman is cared for by the father, the guardian before marriage. After the marriage, she is cared for by her husband financially etc. She does not need to spend her own money for her own food, dress and shelter too. Her guardian has to provide food, shelter and dress, as it is called nafaqa in Islamic Law terminologies. Woman is like the queen in Islamic legal system.  There are many explanation written and said in this context.

 

As to the issue of witnessing of the women, there are cases where only one woman is enough for testimony. There are many witnesses in courts today but still the truth is not easily found by judges and juries. Where there is no fear from the Creator, a fear he/she will  definitely be  questioned by Him in the hereafter, nothing may work. Humanity is still struggling to find a humanly and secular way of establishing equality, justice and fairness in this world.

 

There is also an inherent collective Ijtihad like ijma (consensus) and qiyas al-Fuqaha (analogical analysis and synthesis done by Muslim Jurists) which add another dimension to the adaptability of Islamic Law. Therefore reform in the real sense is not the issue in Sharia Law. Ensuring that the system of Ijtihad functions well is sufficient. 

 

The  qazf crimen, one of the 5 hudud crimes in Qur'an, is uniquely interesting sanctions  for the protection of woman from slandering, backbiting, accusing her with indecency acts. This crime  is unique to Islam. It adds  a lot to her honor, nobility, dignity, and integrity.

 

Yes, it is true that Sharia and Islamic Jurisprudence have to have faith and belief in Allah, in Muhammad as His messenger, has to fear from hereafter, has to have taqwa, khawf, khashya, piety, religiousness, and isitqamah to help  Muslims have strong inner control on themselves in obeying Allah, not falling into sins and wrongs that may lead them to Jahannam (hellfire), in the hereafter. That is only good for everyone, this type of snction does not exist in modern secular legal systems. Thus, they have to have laws above laws, controls above controls with thousands ever changing institutions checking and supervising each other.

 

 

* Kavakci  (yzk@iant.com), Ex-Professor of Islamic Law and Dean, College of Islamic  Studies, Ataturk University, Erzurum/Turkey. He memorized Qur'an when he was 10 years old, passed national exams for Waiz (preacher) when he was 15 years old, Mufti exams when he was 18 years old. He studied at High Islamic Institute of Istanbul and College of Law of Istanbul University. He completed his PhD on the History of Islamic Law and Jurists at the time of Qarakhanid period in Central Asia. He is a board certified attorney in Turkey. He moved to USA for the purpose of providing education to his three daughters freely with their hijabs, when they were denied attending schools with their Islamic head-covering. He currently is a scholar-in-residence with the Islamic Association of North Texas (www.iant.com). He is the founder & teacher of Quranic Academy  (www.quranicacedmy.org)  and the founding dean & instructor of Suffa Islamic Seminary (www.suffa.org). He is a member of Shura of Islamic Society of North America, and a member of Fiqh Council of North America. He is on the list of  speakers  for US Department of State.

 

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