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Review of "Islamic Law - Theory and Interpretation" by

Summary

23 March 2012

I first encountered the author's name when I read his paper "Islam and Voting: The Case of British Muslims” which was published in May 2010 by the Cordoba Foundation around the time of the British general election. It was needed because some Muslims, for example the organisation Hizb ut-Tahrir, contend that taking part in democratic elections is un-Islamic. The author’s paper rebuts that proposition very convincingly. It is so well written that his name was fixed in my memory.

The author

Michael Mumisa is a PhD candidate and Special Livingstone Scholar at Trinity Hall, University of Cambridge. He was classically trained and earned an 'Ijaza Alimiyya' with distinction. He also holds a BA Honours degree (with distinction) and an MPhil research degree. He has lectured at the University of Birmingham, University of Cambridge's Institute of Continuing Education, Newman University College in Birmingham, Markfield Institute in Leicestershire, the Centre for the Study of Muslim-Jewish Relations, and has taught and supervised undergraduates at the University of Cambridge. He is author of a number of studies in Islamic Law, Classical Arabic grammar, Hermeneutics, Theology and Philosophy. He is a regular broadcaster and commentator on radio and other media and he provides advice to BBC Drama and other TV programmes.

A few months later when I attended an event at the Woolf Institute in Cambridge, I fortuitously found myself sitting next to Michael Mumisa at dinner! A little while later I discovered that back in 2002 he had written this book on Islamic law and bought a copy. I recently finished reading it.

Overview of the book

The book covers essentially the same ground as "Principles of Islamic Jurisprudence" by Mohammad Hashim Kamali. However it is much shorter (only 193 pages of text) and written in a less formal style than Kamali's classic textbook.

Table of contents

The quickest way to get an overall impression of the book is to look at the table of contents. The chapter headings are:

  1. Definition, Rationale and Methodology of Usul al-Fiqh
  2. The Primary Sources of Islamic Law: The Quran and Sunnah
  3. Ijma: General Consensus
  4. Chapter 4 is divided into four parts:
    1. Al-Masalih al-Mursalah
    2. Other Subsidiary Juristic Devices
    3. Urf, Adat: Usages and Customs
    4. Masalih and their Ever-changing Society
  5. The Taqlid Regime and the Sunni Schools of Fiqh
  6. Toward a New Methodology of the Study of Fiqh

I have not attempted to summarise the book but below have touched upon some of the points that I found particularly interesting.

Definition, Rationale and Methodology of Usul al-Fiqh

Usul al-fiqh is the process by which Islamic law (fiqh) is derived from its sources.

Throughout the book the author repeatedly returns to his concerns about the challenge to Islam presented by modernism.

"Our approach in this book of referring matters directly to the sources of Islam rejects the modernist approach, that thinly-disguised plan to compromise Islam so as to make it fit with modern society. Instead, we want to make Islam more relevant and more applicable to [sic] contemporary society of today. Recognising that the contemporary world is dominated by a discourse and a civilisation that are inimical to Islam, this book concedes that it is the modern (or post-modern) world whose terminology must be engaged in order to avoid being subsumed in its worldview and sophisticated discourse. In fact, in order to ensure that our contemporary discourse is Islamic, we must understand and meet the challenges of this dominant discourse. This is so because the dominance of the modern Western idiom is such that the scholar of Islam [the alim] must now conduct not merely a traditional discourse, but also a discourse cognisant of modernity. To fail to do so would invite the unseen or unacknowledged penetration of ideas quite probably alien to Islam."

The author points out the detrimental impact upon Islamic thinking of attempts to defend Islam from modernism by retreating from the modern world.

"The other [reaction to modernism] is the 'conservative' or traditionalist element which mistrusts any attempt at addressing problems which arise in the context of occidental philosophy and considers this development a serious departure from orthodoxy and orthopraxy. To the proponents of traditionalism there is no other alternative but a strict and rigid adherence to the interpretations of Muslim classicists. The interpretations done by the classical juristconsults are seen as the final and only true meaning of the Quranic and Prophetic texts."

The Primary Sources of Islamic Law: The Quran and Sunnah

The author distinguishes between two different approaches to understanding the text of the Quran. He called these "historical criticism" and "Islamic liberation theology".

Historical criticism

This approach believes that there is a single correct interpretation of the text which is fixed for all time.

"The understanding of the Companions of the Prophet of the Quranic text, by virtue of having learnt interpretation directly from the Prophet himself is considered as the true and final meaning of the text, and hence Allah's intention.… The task of the contemporary reader is to search and recover the original audience of the Quranic text, along with its original message and intention. This kind of reading is informed by an operative though implicit theological principle to the effect that what comes earlier is better.

The model of historical criticism has a strong positivistic foundation and orientation. The understanding of the Quranic text derived from the Companions of the Prophet is regarded as univocal and objective, and thus it can be retrieved if the proper methodological tools, scientific in nature are rigorously applied. The meaning disclosed is for all times and cultures. In other words, the meaning of the text, properly secured and established, can dictate the overall boundaries of parameters of the Muslim's life everywhere and at all times.

… This is a pedagogical model of learned impartation and passive reception, highly hierarchical and authoritative in character, with strong emphasis on academic pedigree (who studied under which scholar or shaikh) and schools of thought."

The author points out that the problem with the historical critical model is that it fails to successfully address emerging new questions, concerns and challenges.

Islamic liberation theology

The author briefly mentions the underlying concept of liberation theology and the way that it was developed in Latin America by Christian theologians. He also looks at the importance of thinking about liberation in an Islamic context and reminds us that in apartheid South Africa many Muslim scholars supported apartheid as a way of protecting Muslims from mixing with non-Muslims. He then goes on to explain how liberation theology approaches the understanding of the Quran.

"The universality of Islam is in its being open, dynamic and subject to re-interpretation. It is important to understand that we are not dealing with a closed text, tafsir [the interpretation of the Quran] is contingent upon the historical context, the cultural situation and level of development, and the philosophical presuppositions of the period in which the tafsir is effected. It is not static, but is in constant state of flux, change, and development. What all this means is that there is nothing such as the 'final and absolute' interpretation, what we may consider to be the correct meaning of Allah's word may be contingent upon numerous factors. What was a correct tafsir in the classical period may be incorrect and dated in the contemporary period and what we may regard correct today may be incorrect in the future."

Of the two alternatives, it is clear that the author favours Islamic liberation theology.

Ijma: General Consensus

The key point addressed in the author's discussion of ijma is the question of who should be included in assessing whether an ijma exists.

The author's view, following al-Ghazali, is that the entire Muslim community must be included in assessing whether there is an ijma. This is consistent with the generally anti-elitist tone in his book. Indeed he even suggests that non-Muslims living within a Muslim society might be includible in assessing whether there is an ijma. However he does not address the question of how you measure the consensus, and whether a single dissenting Muslim individual (since the entire community is being considered) is enough to prevent the existence of an ijma.

The alternative view which is favoured by Kamali is that only appropriately learned Muslim scholars need to be taken into account in assessing whether an ijma exists, and in Kamali's view it requires unanimity amongst such scholars to establish an ijma.

Ijtihad

The author does not have a separate chapter on ijtihad [original legal analysis from the funamental sources] but instead treats it as a subsection of the ijma chapter.

Can one deviate from the actual text of the Quran?

The most important point addressed here is whether in appropriate circumstances one can properly reach an Islamic legal decision which differs from the actual text of the Quran. He gives a concrete example:

"During his Caliphate, Umar used ijtihad so much that he would at times seem to be going against the direct text of the Quran.

There is a famous incident mentioned by scholars regarding Umar's ijtihad. It was the practice of the Prophet to give alms to the former enemies of Islam who were converted en masse after the conquest of Makkah as an appeasement act. This was done after a verse had been revealed ordering the Prophet to give them a special portion from the zakah [obligatory alms collection] even though most of them were very wealthy: 'The alms are only for the poor and the needy, and those who collect them, and those whose hearts are to be reconciled [al-mu’allafat qulubuhu].' (9:60)

This practice was carried over by Abu Bakr during his reign but when it was Umar's period he refused to give them anything saying, 'we are a people whom Allah has honoured and empowered with Islam (Islam is no longer in need of your moral support, you either enter into Islam unconditionally or you are free to remain as non-Muslims).'

Umar's argument was that the cause and reason [illat al-hukm] of the decision to grant them alms in the initial stage was the need to win their moral support at a time when Islam was still weak, and since this reason and need no longer existed in his time, he gave a ruling against the practice of giving alms to non-believers.

The ijtihad of Umar emphasised on [sic] what became known in Islamic law as illat al-hukm (cause and reason for the law to be passed). It became a principle in Islamic law that al-hukm yadur ma’a al-illah adaman wa wujudan, ibahatan wa haraman (the law is subject to, or will always be attached to the cause and reason. At times when the cause and reason no longer exist, the law will also cease to exist).

After understanding this general principle, it becomes easy to interpret law in Islam. For instance, what was the cause and reason for deciding to grant women less [sic] the share of men in the inheritance laws of Islam mentioned in the Quran? Does the cause and reason [illah] still exist? If it does, we will have to continue giving them less, and if it has ceased to exist, we will have to reinterpret the verses of inheritance laws."

The author’s proposition is of critical importance. Many Muslims argue that whatever is clearly written in the Quran (for example the inheritance laws which are clearly and unambiguously written) must be applied without change for all time. If the author has presented the facts correctly, even one counterexample, such as that of Umar above, is sufficient to disprove the assertion of unchanging application regardless of circumstances.

The Taqlid Regime and the Sunni Schools of Fiqh

Taqlid means imitation.

In this chapter, apart from his wider exposition, the author profiles the jurists who founded the schools of fiqh, namely Abu Hanifah, Imam Malik ibn Anas, Imam Shafi and Ahmad ibn Hanbal.

When writing about ibn Hanbal, the author’s critical thinking appears to desert him. He twice repeats the story that ibn Hanbal had memorised 1 million hadith without reflecting upon the numerical realism. Firstly, I understand that all of our present collections of hadith combined add up to less than 20,000 hadith. The Wikipedia article states that ibn Hanbal died at the age of 77. Even if he had memorised hadith every day of his life from the day he was born until the day he died, he would have had to memorise 35 new hadith each day to reach 1 million. It is simply not realistic to believe that he could have found 35 new hadith by talking to people each day of his life while also continuing the rest of his work.

I have laboured this point because repeating such inflated legends about scholars from the past does nothing to enhance their reputation while making the person repeating the legend look silly.

Toward a New Methodology of the Study of Fiqh

In his concluding chapter, the author stresses the need to have an approach to usul al-fiqh that is independent of mediaeval Arab socio cultural influences. He writes:

"Classical books of fiqh do not always provide the answers to contemporary social realities. Not because the writers of these books did not possess enough knowledge of the Shariah and society, but because we cannot expect them to exercise some unearthly power and speak to us from their graves. We should not force the Imams to deal with issues that did not concern them in their societies, nor to ask them questions that they never asked themselves."

Concluding comments

The book is very easy to read and I would recommend it to anyone who wants a short and easy introduction to the way that Islamic law (fiqh) is derived from its sources.

However the treatment is not as clearly structured as it is in "Principles of Islamic Jurisprudence" by Mohammad Hashim Kamali, which is a much longer book and specifically designed for academic teaching. Conversely Mumisa’s book holds the reader's attention better!

 

Kindle edition above

 

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