An opinion piece by Syed Mumtaz Ali
Like a legal system of any civilized community, the Islamic legal system comprises of two kinds of legislation (i) a rigid set of laws called a Constitution – theoretical first principles (Shariah in Islam), and (ii) a set of detailed laws (jurisprudence, Fiqh) derived from the Constitution.
Like other legal systems, this theoretical aspect of rigidity of Shariah (analogous to a legal Constitution) in practice becomes elastic in Islam, to permit Muslims to adapt themselves to changing circumstances.
Is it also true that Shariah is more rigid than other constitutions. I will address why later.
I explained how elasticity is brought about in practical terms during a radio interview broadcast live from the women’s protest rally in Toronto on Sept. 8. Here is a verbatim excerpt:
“The whole corpus of law, which is called jurisprudence [Fiqh], evolves [from Shariah]. And that evolves according to the consistency of the values of each country where it is being applied In Canada, we will apply it according to the Canadian values. That’s all. That’s how you see all those differences. The beauty of this system of Islamic law is that you evolve. You evolve the law according to the needs and changing circumstances of the country you happen to live in all parts of the world.”
The evolving corpus of Fiqh fills volumes, whereas the Shariah (principles) comprised of about 250 legal injunctions issued in the Qu’ran and the Prophet’s Sunnah, read no more than 10 pages.
Now, what other Muslim countries do or do not do about women’s rights and criminal law (“hudud”) punishments is their business. Islamic values are modified and adapted by Canadian Muslims and are quite consonant with Canadian values. When in conflict, Canadian law and values supercede Muslim law provisions.
Consequently, if women’s equality rights, family support, custody of children and inheritance conflict with Canadians values and laws, Muslim tribunals will accept Canadian values and decide cases according to Canadianized Muslim Personal/Family law. These tribunals are also institutional tools designed to uphold, not suppress women’s rights. Proponents of these tribunals are in fact champions and supports of Muslim women, not their enemies.
Now, because Islamic law adapts itself to the Canadian law with regards to Muslim women’s equality rights, Muslim women will not get anything less than other Canadian women through Muslim Arbitration and Mediation tribunals. It is thus clear that inequitable treatment of Muslim women becomes impossible. Their equal rights are guaranteed to the fullest extent.
I promised to explain why the Shariah is more rigid than other constitutions. In fact, this segment of Islamic law, believed to be Divine in origin, is unchangeable. Let me elaborate:
“The laws promulgated by an authority can only be abrogated by itself or by a superior authority, but not by an inferior one. So a Divine revelation can be abrogated only by another posterior Divine revelation. Similarly, the directions of the Prophet can only be modified by himself or by God, but not by any of his disciples or an other person
An inferior authority will not change the law, yet it may interpret it. The power of interpretation is not the monopoly of any person in Islam because every man who makes a special study of the subject has the right to do that . . . to construct a house, one does not consult a surgeon, but instead consults an engineer. In the same way, for legal questions, one must study law and perfect one's knowledge of the subject for the opinion of persons outside the profession will only be speculative. The interpretations of the specialists show the possibility of adapting even the Divine law to circumstances. Since Muhammad (being the last of the prophets), there is no more possibility of receiving a new revelation from God to decide problems in the case of divergence of interpretations. Inevitably there must be a divergence of opinion on matters, since all men do not think in the same manner. Judges, jurisconsults or other experts of law are all human beings, and if they differ among themselves, the public will follow the one who appears to be more authoritative. In a judicial litigation, the judge is obeyed, whereas in other cases, the schools of law obtain priority in the eyes of the adherents of their respective schools. (From Introduction to Islam, by Dr. M. Hamidullah, chapter “Judicial System of Islam,” paragraph 318.)
Finally, remember that the Jewish
and Christian Scriptures serve as theological and legal - not just chronological
- preambles to Islam.
Syed Mumtaz Ali is a retired Barrister & Solicitor. He is the president of the Islamic Institute of Civil Justice and the Canadian Society of Muslims.