Contemporary legal thought in Islamic jurisprudence

CONTEMPORARY LEGAL THOUGHT IN CONTEMPORARY LEGAL THOUGHT IN ISLAMIC JURISPRUDENCE By A. R. Akhtar, Advocate Shariah, Shariah Law and the Injunctions of Islam are being used synonymously to indicate the entire corpus juris of the present day Muslim Law. However, modern judicial thought tends to classify the differences in terms of their legal enforcibility and recognition by the State as against its conceptual validity. The important question that still remains unsolved is how to give the corpus a juridical base for formal incorporation of Shariah Law into the framework of national legal fabrics. This is a logical outcome of the concept of independent legislature in the contemporary legal thought in the field of functional jurisprudence. 10. PLD 1991 SC 1051; 1991 SCMR 1890; PLD 1986 SC 6; PLD 1982 SC 139; PLD 1981 SC 377; PLD 1973 Lah. 1; PLD 1969 Lah. 1087; 1989 ALD 272; PLD 1975 SC 32; PLD 1989 Lah. 175; 1990 CLC 645; PLD 1990 SC 926; PLD 1981 Jour. 19; PLD 1965 SC 690; PLD 1984 SC 95; PLD 1964 SC 536 and PLD 1989 Lah.142. In the realm of constitutionality this trend is, at the same time, not an evidence of negation of religious thought, or belief in the sovereignty of Allah, nor of the imperative nature of Sharjah for the Muslim Ummah, but a sophisticated exercise in legislation on the basis of norms of Sharjah. The Islamisation process adopted today is commendable; it demands enormous work, labour, and in formulation an extremely difficult contrivance of legislation by way of reference, as against the straightforward process of legislation by incorporation. This Constitutional mechanism chosen by the legislature however, tends to preserve the corpus juris of Sharjah in its original form, and delegates the task of recognition and enforcement of that part of the Injunctions of Islam (with some exceptions not requiring formal endorsement as law) to the State legislature and the judicial organs which would ultimately take shape of the Islamic legal orders. This duality in process preserves the concept of law, legal sovereignty, the immutability of Sharjah and its obligatory nature. In other words the process tends to redefine the term `law, so as to include Sharjah Law as well in its legal domain. The study as to what is Sharjah, Sharjah Law and the Injunctions of Islam is the principal question before the Muslim jurists today. The answer in the religious sense is stated to be not difficult, and needs no enquiry. As to Ulema, a simple reference to the corpus juris of Sharjah would suffice to define its scope, concept and its imperative nature. However, for the State, judiciary, and perhaps the State functionaries the task of Islamisation is enormously difficult and long, and needs formal incorporation in the Statute Book. The traditional legal thought recognises only what is certain as law for the time being in a given society, based on authority and commensurate with man's knowledge, will and power. On these premises law needs formal promulgation in a way which is legally valid, in a purely legal sense of validity. However, the Naturalist School of thought accords validity only, and only if taw derives its validity by its rational connection with natural law, so that it is found to be not materially unjust, either in content or on relevant circumstances of its position. The rational connection with natural law rights is a condition of necessity introduced in positivism to challenge its validity and enforcement, though not to the authority of the legislature to make the law. This is so because the present day study of formal law includes topics like logic, history, philosophy, political thought, anthropology, sociology, religion, etc. and on these studies, hypothesis have been built to redefine the functions of the modern jurisprudence All these studies in jurisprudence whether expository, censorial, analytical, sociological or functional, attempt to give a rational meaning to legal validity and obligatory nature of, and the scope and justification of law, State and the sovereignty howsoever functioning and whenever in force, if it is found to be just as understood rationally. It is far more important for the law to be a part of State Law, and to be legally recognised and enforced. Moreso in the case of Sharjah Law. Sharjah in its scope and content engulfs aspects of human thought, action, inaction relating to diverse and inter‑connected social needs, wants, desires and discourses. The subject surpasses normal bounds of strict legal relationship, and lays down norms of moral, ethical and societal values. Its application and enforceability rests mainly on religious belief and faith, As it is, no law takes upon itself the responsibility to enforce moral and ethical values, as it is not the function of law to prescribe and enforce these values directly. Morality and ethics originated from religious thought and in the course of history have developed as part of social values, cherished and respected by mankind, apart from religion as humanitarian values of justice and fairplay. The ethical imperatives have somehow become built in into the human nature, and therefore now reed no more enforceable moral code. However the cultural and social values, as against religious thoughts, must find recognition and establishment as a course of conduct, and form an integral part of "tehzeeb‑o‑tamadan", which is not formally enforced through law. The promulgation of some imperatives by law gives fixity to a part of social and cultural values, and its practice and enforcement by the State transmits these values to coming generations; that is law acting as a vehicle. of cultural transmutation from the past to the present and future. In order to understand the influence and effect of social and cultural values on the legal fabrics, the process of permeation and transmutation of these values to legal norms needs careful examination. This process is found to be more apparent and comprehensible in ideological societies which are formulated on Politico religious aspirations. It is therefore essential for these societies to create a base for minimum standard of behaviour as a course of conduct and interaction for the individual members of a society to formulate a pattern of conduct envisaged in a particular time, space and design complex. In Pakistan, it is believed to be truly laid down in the Holy Qur'an and Sharjah. The Sharjah clearly prescribe a pattern of individual and collective behaviour for all Muslims as a parimeter for socio‑cultural and the religio‑political values. Its obligatory nature is recognised by all believers as mandatory on their person as a part of religious duties, and faith. However, its enforceability at law strictly so‑called is still doubtful, though recent trend in judicial thought is beginning to recognise and gives the individual Muslims a right to order `maroof and an obligation to restrain `munkar' as part of his legal duties.' Modern students of Sharjah Law are faced with the problem of expression and terminology for 1. P L D 1986 FSC 200. articulation of its concept for the present day readers. Other researchers have strongly expressed need for Islamic epistemology,' i.e. knowledge on Muslim thought. in accordance with its teachings. For a lawyer, contemporary legal thought is easily comprehensible, and is base material to understand and even verify all other types of legal norms on its anvil. His difficulties lie in formulating legal theories apart from the present day legal thought. Evidently, environmental influence has immense effect on all knowledge, and concept of Shariah moreso, in the case of yearning for objectivity as understood in the present day. Therefore, for any legal theory to support Shariah as the law of land, it has to be necessarily wound around the contemporary legal postulates which are commensurate with the present day knowledge. This methodology for reshaping Shariah may have its own shortcomings and pitfalls, and at the same time, unavoidably the only course which could be followed. In these circumstances the imperatives essential for formal legislation, in order to be legally valid and acceptable in terms of contemporary legal thought, are inevitably the only method open for the enforcement of Shariah as the law in Pakistan. This notion does not accord credence nor the element of truth to all the present day knowledge nor conflict with theology. There seems to be more a problem of terminology in translation of Shariah knowledge rather than of acceptance of it as knowledge. According to one scholar in reality the crucial question was the notion' that all laws are basically legal custom, and that the lagislation had the function of clarifying and elucidating such customary law. It is important for law that obligations of its norms are firmly anchored in a conviction concerning the legitimacy of the authority which creates the law‑ whether it be God or any other act of the people. Such notions, concepts and cutomary beliefs are preserved, enforced and protected as norms originated as values of our people, and they stick to these values enforced and respected by the Courts of law. In fact the judicial interpretation of major instrument by which the governance of the entire country was controlled during a limited period, and within certain territorial limits would be preserved and the Courts would not like to change its views' There may be some divergent views, and that too for some time in judicial parlance, but it would not justify to deviate from the general principles consistent with the notions commonly understood and approved judicially How does law and culture amalgamate or in other words how the established norms embedded in cultural values take the shape of positive law. There may be two ways, the methodology and procedure being beyond human concept and legitimate planning i.e. either there is an abrupt political change beyond and above the existing legal framework to control, or there is a slow and progressive development originating from the existing norms, but in either case the propriety and legality of the new legal order must seek recognition and authenticity from protective covenant recognised and 2. Islamic Future by Ziuddin Sarda. 3. PLD 1968 SC 185 at p.211. 4. PLD 1973 SC 394 at p.405/H and PLD 1970 SC 373. enforced legally under the new order. Our political history has in the last several decades been victum of immature polity creating Constitutional crisis over and over again. These jolts have been gracefully absorbed by the judiciary‑‑always striking the balance and guiding the country out of Constitutional crisis. The reshaping of Constitution and the law in accordance with the Shariat is also at the judicial anvil, and the Judges with the maturity of thought and patience are trying to resolve the conflict of supremacy of Shariat over the Constitution. The Supreme Court, dealing with the question of validity of provisions of the‑ Constitution on the ground that it transgresses the limits prescribed by Allah Almighty, has observed that "such a question can only be resolved by the Majlis‑i‑Shoora (Parliament) which can if the plea is well founded, take the necessary remedial action by making suitable amendments in the impugned provisions (of the Constitution) in order to bring it within the limits prescribed by "Allah Almighty" This view is in consonance with recognised principles of jurisdiction of law Courts and the legal thought. The view does not negate the validity, enforceability and universality of Shariat. Yet on the .other hand it leaves the question of enforceability and supremacy of the Shariat wide opens Shariat as a source of law inspires Ummah in all aspects of "maamlat" in accordance with our current practices. According to Al‑Shatebi, non‑normative relationship between man and nature is a positive element in legal theory of Islamic Fiqah, separate and exclusive from theology, where very little work is available particularly on formal science of Usule‑Fiqah. The problems of social change in science, commerce and technology have been called non‑normative because of its existence, practice and discourse. in the time and place of occurrence. The rules of law particularly on civil and commercial obligations emerge over a long period of time, and are not normative in character. One cannot for instance at the present stage of history say we do not recognise banking practice and law presently in vogue in the commercial world: The present day legal thought needs study of Shariah as a source of law and seeks to separate theological and metaphysical modes of thought and Shairah's interpretation, and to give more stress in its application to observable phenomenon. It does not help the commercial and trading men of today with illustrations like, give coin for coin and silver for silver, or wheat for wheat as these have lost relevance and contractual obligations. The wisdom of the Holy Qur'an and universality of Shariah in its applicability to the problems of Ummah is to be discovered. in the development of Usule‑Fiqah rather than in the Fiqah itself. Muslim jurists understand and have taken up this challenge and what is required is the imperative need for the Judges to recognise the problem of social change, and give credence to the juristic thought, innovation, before evolving judicial dictum.