— Asghar Ali Engineer
The Malaysian Insider
Feb 02, 2013

FEB 2 — It is believed by millions of Muslims across the world that sharia laws are immutable and represent divine will. This is based on serious misunderstanding. Sharia is not and cannot be immutable.

Recently I was invited to the Jaipur Literary Festival to be part of a panel discussion on the book “Heaven on Earth” by Sadakat Kadri of London, which is on the application of sharia laws across the Muslim world. He has travelled to different Muslim countries and talked to various ulama and muftis about sharia as applied to their respective countries.

All of them were defenders of conservative sharia formulations and refused to admit any change. They maintained that sharia being divine cannot be changed. It is from this rigidity of our ulama that the misunderstanding among common Muslims arises that sharia is divine and hence immutable.

In fact our ulama forget that ijtihad was not only permitted but encouraged by the Prophet of Islam (PBUH) and the hadith pertaining to Ma’adh bin Jabal is well-known. When the Prophet appointed him to the governorship of Yemen and he came to take leave of the Prophet, Ma’adh was asked how he would govern. Ma’adh said, according to the Quran. The Prophet thereupon asked what he would do if he did not find the solution to the problem in the Quran, to which Ma’adh said he would govern according to the Sunnah. But when the Prophet asked if he could not find it in the Sunnah also, Ma’adh said “ana ajtahidu” (I will exert myself to find the solution). The Prophet thereupon patted his back and told him he was right.

All ulama accept this hadith and yet, while theoretically admitting the permissibility of ijtihad, refuse to engage in it or allow it, saying there is no one capable of doing it. In fact, what is unalterable are the principles and values underlying sharia i.e. usul al-fiqh. But laws based on these usul must undergo change in keeping with changes in the social and cultural context. In fact cultural context plays a very important role in the formulation of sharia. The Arab adaat (customs and traditions) form an important part of sharia formulations.

The late Abdurrahman Wahid, who headed Indonesia’s religious organisation Nahdlatul Ulama and also served as president of that country, told me once that there was great debate among the ulama of Indonesia over whether Indonesian customs and traditions can become part of sharia as applicable in that country; those who advocated Indonesian adaat ultimately won.

Let us remember that what was called the Muslim ummah (community) during the Prophet’s time was limited to Arabia only. But when Islam spread to different areas the ummah was no more confined to the Arabs alone; it also encompassed the Iranians, Uzbeks, Turks, Chinese, Indians and others. Thus there were various linguistic and cultural groups within the fold of Islam.

Sharia was influenced by these factors. Thus the ummah was no longer a homogenous group but comprised various cultural communities with their own age-old customs and traditions.

However, the values, maqasid (intentions) and masalih (welfare) of human beings, did not change. Maqasid al-sharia and masalih al-sharia do not change, but in order to keep these values, maqasid and masalih intact, the rules framed by the ulama must change. When Imam Shafi’i moved from Hejaz to Egypt, which was a confluence of Arab and Coptic cultures, he realised this and changed his position on several issues.

However, what I am saying does not apply to ibadaat i.e. matters pertaining to worship, the world hereafter, etc but only to matters pertaining to mu’amalat i.e. interpersonal relations like marriage, divorce, inheritance and many other similar socio-economic matters.

The most important, of course, among these is matters pertaining to marriage, divorce, etc. In Jaipur I spoke mainly on women’s position in sharia and women’s position in the Quran.

The fact that the venue was packed with people shows the interest women’s position in general and that of Muslim women in particular generates. I commented that the book referred to earlier deals with only the status quo and application of sharia laws of patriarchal and feudalised Islamic societies. It very much misses what I call the transcendental Quranic vision. The Quran gives absolutely equal rights to man and woman without any discrimination.

However, the Quran was revealed in a highly patriarchal society which later also became feudalised when the caliphate turned into a feudal empire. Thus patriarchy and feudalism completely distorted the fundamental Quranic vision of gender equality and women’s individuality and dignity.

Unless we understand these sociological and cultural aspects and relate them to the theological one, we will miss the very revolutionary role which Islam wanted to play in totally transforming women’s status.

However, it is highly regrettable that Muslim societies could not produce ulama with the capacity to relate sociology with theology. Even in modern and post-modern societies our ulama totally lack a transcendental vision of Islam. They have become prisoners of the past and have frozen Islam in a feudal, patriarchal state.

We need theologians with vision to fulfil the Quran’s mission of going beyond the present which is full of injustice. Our society is replete with gender injustices and the Quran’s central value is justice — justice in all areas of life. Gender justice is as emphatically emphasised as justice in social and economic matters.

In order to emphasise gender justice it is high time that we produced female theologians with profound knowledge of the Arabic language. Even the most conservative ulama cannot oppose the concept of female theologians. — dawn.com

* Asghar Ali Engineer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai.