Monday, May 16, 2011

Toward a General Theory of Islamic Law (Work in Progress)

Islamic Law is one of my most cherished fields as a lawyer and during my 10 years experience in the art of law, I have done a lot of research and read hundreds of books on Islamic law. Nevertheless, until today, I have not found a general theory of Islamic law that can answer these ultimate questions in a satisfactory way:

  1. Are Islamic laws (specifically those stated in the Koran and Hadith) opened to any changes in the society?
  2. Should Islamic laws be applied as they are, without any consideration of the situation and condition?
  3. Suppose they can be changed in accordance with the situation and condition, what part of the laws that are immutable and those that can be considered as changeable?
  4. Are there any consistent methods of interpretation to be used in applying Islamic laws in accordance with the situation and condition?
In reality, there is no unity in the application of Islamic law in any part of this world except for certain undisputable items such as syahadat as the first requirement to enter Islam, 5 times a day prayer obligation, mandatory ramadhan fasting period, mandatory zakat payment, and hajj. You can call yourself a moslem if you perform those basic obligations, but I can assure you that there are many specific legal issues relating to such obligations that are still being disputed until today, and this is only for the Ibadah aspects. In muamalah aspects, you will see countless arguments and counter arguments on whether a law should be applied as it is or not. Different countries have different interpretation of the application of Islamic law, and most of the time, it is hard to assess whether the argument used to interpret the law in one case is consistent with the argument used to interpret another case. The actual implementation depends on many factors, such as political will, the applicable majority Islamic legal school, acceptance by the society, etc.

The above fact is very interesting. It is easy to find people out there who claim that good moslems must follow the Islamic laws as directed by God and the Prophet Muhammad. Some even going further by declaring those that oppose the implementation of Islamic law as followers of heresy. This is an absurd claim. As evidenced by more than 1,500 years of history, people are still arguing and will always argue on what laws to be followed. If you can't reach an agreement on the law to be applied, how can you force someone to follow such law?

It is my dream that someday I can build a general theory of Islamic law that will solve the problem of unity and consistency within the Islamic legal system and legal interpretation. However, in order to achieve such hard task, I refuse to use the standard deductive reasoning used in classical Islamic legal theories book (ushul fiqh). With new development in social sciences and abundant database of cases and precedents all around the world, this is the right time to build a whole new level of Islamic legal theory which will work in practice.  You would be surprised to find that for the last 1,000 years, there aren't many developments in the art of ushul fiqh.

Most books that I read still use the similar pattern: definition of ushul fiqh, the 4 main sources of Islamic law: Koran, Hadith, 'Ijma (the collective agreement of the ulemas), Qiyas (analogical reasoning). Then we go with some standards Islamic legal interpretation methods whose validity are still being debatable such as: istihsan (juristic preference), istislah/maslahah mursalah (application of law based on the needs of the society, similar to welfarism), 'urf (customary practices) and syar'u man qablana (the law of generations before Islam). Further, we will have some basic grammatical interpretation methods for the Koran, some basic sciences of Hadith, i.e. analyzing the validity of the Hadith through link of narrators, and simple methods to analyze cases where there are conflicting legal norms. Books that discuss these legal interpretation method in depth are very rare to find, at least that's my experience.

Some of you may think, why the hell a corporate lawyer like me would like to spend his time discussing Islamic laws? Well, to be honest, when I'm still an undergrad student, I focused my research on Islamic legal theories, specifically istislah. I wrote many papers using istislah as my basic legal theory, including my own thesis and a paper that won a national legal writing competition. So yes, I can say that I have sufficient exposures to say that there aren't many developments in the field of Islamic legal theories. I would welcome any different view on this particular issue though.

So what should we do about this? As I said above, it's my dream to build a general theory of Islamic law. The process should be started by first collecting the different trends of interpretation of Islamic laws used in various cases and countries around the world which is essential in knowing whether the laws are applied as they are or with any modification. Next, we need to find the reasoning behind those interpretations and analyze whether such interpretations have been used consistently for all similar cases. We would also need to analyze the effect of such laws to the society, i.e. does the law work? Does it promote the betterment of the society? Hopefully, from these various data, we can start to establish a general legal theory that will work across the world.

Some interesting samples worth to think about that I found during my research:

  1. Under classical Islamic laws, divorce is the right of men and can be done directly without having to wait a court order. This is not the case in Indonesian Islamic law as a divorce can only be done through a court process.
  2. Under classical Islamic inheritance laws, the existence of female children does not block the rights of the deceased's brothers and sister, and commonly, the rest of the inheritance assets will go to the father as an ashabah (since a female child only receive half of the assets) if there are no other family members. Under Indonesian Islamic law, children, female or male, close the rights of the deceased's brother and sister, and the remaining assets will be shared equally.
  3. An empirical research on the application of Pakistan criminal laws for homicide (see The Application of Islamic Law Criminal Law in Pakistan by Tahir Wasti) shows that such implementation does not reduce the crime rate, and in practice allows murderer to be free through diyat (blood money) mechanics, especially powerful people who can buy their freedom by paying the victim's family.
  4. Ever wonder whether slavery is strictly prohibited under the Koran? Yes, freeing a slave can be a way to purchase a seat in the heaven, but there is no verse in the Koran that declares slavery as an evil act or considers slavery as a criminal activity with penal sanctions. More on this after I finished my readings on various literature about Islamic law and slavery.
I must admit that I am on crossroads with my research focus, should I choose Islamic law as my primary interest instead of corporate law and law & economics? Whatever my final decision would be, this is still in my agenda, a work in progress. Currently, I'm still in the process of collecting the data. The plan is to spend some of my time in Chicago to finish the rough manuscript. I would expect that the process may take years before I can be satisfied with the results, so wish me luck :).

4 comments:

Anonymous,  Tuesday, May 17, 2011 1:58:00 AM  

Try to read the book: Son of Hamas.. Then probably you'll easily find answers for your smart questions.. Because if you're a really good lawyer, then try to look something not inside the box, but outside the box..

Pramudya A. Oktavinanda Wednesday, May 18, 2011 2:43:00 AM  

Thanks for the recommendation. The problem with Islamic law is, you need to find authoritative sources in order to be acknowledged, which exhausts most of the writers.

You need to look back to writings from 1,000 to 1,200 years ago just to say: "hey, look, some great figures have an opinion like this", although a simple logic would give the same result. Like it or not, this is the reality, to preach to the other side, one must speak with their "language".

Subhan Agung Thursday, June 23, 2011 11:58:00 AM  

The article was great and automatically deliver on our understanding of the fundamentals of Islamic legal theory. To the authors thank you very much, and continue working. If there is time to visit back to my crappy blog ... heeee ... Greetings Blogger

rumayya Sunday, April 26, 2015 2:50:00 PM  

i'm excited to see how this goes. any update will be great. cheers

My Recommended Blogs

  © Blogger templates The Professional Template by Ourblogtemplates.com 2008

Back to TOP