Islamic law Its future course
http://nation.ittefaq.com/issues/2008/06/24/news0323.htm

 

Shah Abdul Hannan 

Islamic law research has progressed a lot and some laws on the basis of Islam have been legislated in various countries, though we can not say that the legislated laws are perfect and there are no lacunae. There has been major progress in the case of Islamic constitutional law and financial law in particular. Ulama and politicians for the first time in history agreed on the principles of Islamic constitution when in Pakistan they framed constitution in 1956 and then 1973 constitution. These were defining moments in the area of Islamic constitutional thought. Before that , because a kind of monarchy prevailed and later colianlism ruled the Muslim world, the political fiqh of Islam could not develop properly though some writings of Khaldun, Imam Gazali, Mawardi , Nizamul Mulk Tusi and other writers are available. But it was through Pakistan constitution for the first time and later through Iranian constitution we could formulate clear constitutional principles which are also suitable in the changed world of the current time.

The agreement was reached in these documents that the state would be a republic, sovereignty in the absolute sense belongs to Allah, government would be run by the people’s representatives elected by the people , there would be a list of fundamental rights which every citizen would enjoy, judiciary would be independent. These are the guidelines for future for Islamic jurists where ever they work for Islamic constitutional thought.

In the area of law making the Mazhab is no longer a primary factor, if we look into the constitutions as we have mentioned, OIC fiqh academy rulings and in the new manuals being made internationally or nationally by IDB, Islamic Banks and other Islamic institutions. The same principle has been followed in framing new Shariat Act of Pakistan where it has been laid down that the teachings of the Quran and Sunnah would be the guiding principles, the opinion of any scholar of the past or present may be alluded to if felt necessary.

There is a lot of mis-understanding about the depth and vastness of Islamic law. Lot of people think that Islamic law relates to some criminal matter only where as criminal issues in Islamic law is not even five percent of the totality of Islamic law. Islamic law covers also regulations regarding economics, business, finance, banking, constitutional law, moral and ethics, family law ,procedural law of various types.

I also feel that a lot of research lies ahead of us in all areas, particularly in the areas of finance, political thought , Hadood (criminal punishments clearly provided in the Quran and Sunnah.). In this regard some issues have been raised by Dr Tariq Ramadan and some other scholars. In Pakistan also , Hadood law came under scrutiny on the ground that some provisions are hurting the women interest in an unfair way .As far as I have understood the problem is not in the substantive part but in the procedural part of the law which is really based on British criminal procedure .British criminal procedure is very long-winded and can not do proper justice as we have seen in the matter of repepeated police remands and consequent torture.The modern judiciary has failed to solve the proble and urgent steps are necessary in this regard.

It should also be clarified what we mean by Islamisation of law.I have checked up most of the laws in Bangladesh and in ninety eight percent there is hardly any thing to change because these deal with procedure and the punishment , if any , provided in these also falls in the area of Taazir ( laws to be made by the state ).For instance all the university acts, all the finance acts, all the Municipality acts, traffic act, poison act etc.Only in some acts some sections have to be changed mainly involving interest and only some penal provisions( other penal provisions are in the area of Taziir and may remain ).

Islamic jurists are all committed to the development and application of the law of Islam in all branches of human life as Islamic laws are fully consistent with human rights ( Islam gives all human and fundamental rights to all citizens, Muslims and Non-Muslims,as seen from OIC declaratio of human rights agreed to by senior Ulama, thinkers and legal experts) .

(The writer is a former secretary of the Government of Bangladesh)

 

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