Recently there was a conference in Abuja, Northern Nigeria on Islamic penal and family laws and human rights to which I was invited as a resource person. The conference was convened after a woman Amina Laval was sentenced to death by stoning in Northern Nigeria for the offence of adultery. This sentence had attracted world-wide protest from human rights groups.
In this conference convened by the International Human Rights Law Group, Nigeria, not only modern scholars but also a large number of traditional 'Ulama also participated. It was a useful dialogue. What was a pleasant surprise to me was that the Nigerian 'Ulama could speak English fluently and some of them were also fully conversant with the modern academic jargon.
Number of papers were presented from both sides and were followed by heated but not acrimonious debates which generated as much light than as heat. The issue at stake was whether there was need for change in Islamic penal and family laws. Most of the 'Ulama, of Maliki persuasion (Maliki madhhab) resisted change (with few exceptions, of course) while modern scholars of Islam pleaded for it. I was also invited for a live T.V. discussion on Islamic penal laws with an 'Alim from Abuja.
The modern society has thrown up new problems which need to be tackled within the framework of Qur'an and hadith. The great jurists of early Islam also experienced various problems and they tried to tackle them in the light of their own experiences and social background. The early jurists were as much a product of their own society as we are of our own. The early jurists tried to tackle problems they were confronted with reference to the Qur'an and Sunnah of the Prophet (PBUH). Thus an element of human interpretation of the divine word and Sunnah of the Holy Prophet was definitely involved.
The 'Ulama hesitantly accepted this fact in all discussions. Thus it was established that the Shari'ah was based on human understanding of the divine sources in the light of their socio-cultural experiences. It is true that the society remained stagnant for long throughout medieval ages and no need was felt for change until nineteenth century when colonial rule in most of the Muslim countries created conditions for social change. Most of the modern movement thus started in this century. The great thinkers and reformers like Jamaluddin Afghani, Muhammad Abduh and others began to stress need for change.
In the post colonial period the nation states came into existence and these nation states undertook programme for modernisation and nation building which included programmes for spread of modern education. The spread of modern education both among men and women brought much greater awareness of social, political, cultural and religious rights. The women also acquired higher education and modern skills and began to demand their rights. All this created need and social pressure for change.
However, the 'Ulama in general, with few exceptions, refuse to take notice of any change and maintain that no change is needed. They want to follow the Shari'ah laws as evolved by the great Imams, the founders of various madhahib (schools). It is said that in the early period of Islam there were more than 100 schools of which only four in Sunni Islam survived. All the imams maintained that it is their opinion and their disciples differed from them on many issues. Thus there always was space for interpretation and re-interpretation.
The principle of ijtihad is of course accepted by all without exception but the conservative 'ulama do not permit anyone to do ijtihad saying no one is qualified to do ijtihad. Of course every one cannot be permitted to do it unless one has profound knowledge of Qur'an, sunnah, fiqh (Islamic jurisprudence), and history of evolution of Shari'ah. No one without such knowledge would ever claim right to do ijtihad. The Nigerian 'ulama too raised such objections and maintained no one including themselves are qualified to attempt ijtihad.
In fact the question is not so much of qualification as of willingness. Unless one is ready to open ones mind to modern conditions and use divine sources to reinterpret issues in penal and family laws, it will not be possible to explore the richness and comprehensiveness of the Qur'anic teachings.
The 'Ulama in Nigeria also expressed their apprehension that this re-interpretation may lead to what is called tafsir bi' al-ra'i (i.e. basing the Qur'anic meaning on ones own opinion) and they quoted a hadith that one who attempts tafsir bi' al-ra'i his place is in hell. This hadith is undoubtedly true but this was meant for those who tried to use the divine injunctions to suit their selfish desires and were swayed by their own interests. No one can be permitted to use the Qur'anic injunctions to suit ones personal interests.
But an honest and sincere attempt to interpret a divine source to meet the given conditions cannot be equated with tafsir bi' al-ra'i. If it is so equated then everyone, including the founders of various schools of jurisprudence, will also be exposed to that charge i.e. doing tafsir bi' al-ra'i. One must distinguish between an honest sincere attempt and being swayed by personal desires (what the Qur'an calls hawa').
The Holy Prophet permitted ijtihad even if there is likelihood of committing error unconsciously. He said that for those who do ijtihad and commit error would be singly rewarded and those who do so correctly will be doubly rewarded by Allah. The Prophet was well aware that his ummah will continue to face new situations and ijtihad (utmost intellectual exertions to understand) will be very much needed. But with the decline of Muslim power with sack of Baghdad in 13th Century the 'ulama became extremely apprehensive and closed the door of ijtihad ever since.
Now the political situation has radically changed and nation states generally tend to be democratic and a large number of Muslims live in Diaspora in many non-Muslim countries. Each nation-state has its own problems depending on level of its development, composition of population, spread of literacy and awareness of people. What is to be borne in mind that though the Qur'anic principles and values are universal, but their application is situation specific. The early jurists tried their best to apply these values and principles according to their situation and we have to apply them according to ours.
One clarification is highly necessary here. The Shari'ah has two distinct aspects: 'ibadat and mu'amalat i.e. one aspect pertaining to matters of worship and beliefs about tawhid (unity of God), risalah (Mohammad being messenger of Allah and other previous prophets), qiyamah (Day of Resurrection). These are most fundamental beliefs ('aqa'id) and cannot be subject to any debating much less any change. There is naturally no question of any ijtihad as far as these beliefs are concerned. This also includes prayers, fasting, haj and so on.
However, it is the other aspect i.e. mu'amalat which is under discussion for likelihood of change. This was made abundantly clear to the 'ulama in Nigeria also. Mu'amalat pertain to interpersonal relations, family laws ahwal al-shakhsiyyah), crime and punishments, etc. Here too the Qur'an has laid down certain basic principles and values which are not subject to any change.
It was pointed out by me that most stressed values of Qur'an are justice ('adl), ihsan (benevolence), rahmah (compassion), hikmah (wisdom) and human dignity. These values cannot be compromised in any law and if any law violates these values would be Islamically unacceptable. All the 'Ulama accepted this unanimously and here was a meeting point. This was stressed in final declaration also.
It is also important to note that these values could not find their fullest _expression during medieval ages. The Qur'anic values were far ahead of their time and the concept of justice in democratic society is qualitatively different from that in a medieval society. What was considered just then cannot be considered just now in a democratic society. This will have to be kept in mind by the law -makers today. This becomes the main point of contention between those who resist any change and those who advocate change.
The modern concept of justice is rights-oriented and not merely duty-oriented. This is great difference. Also, modern discourse gives centrality to freedom and liberty whereas medieval society and traditional 'ulama stress 'aqa'id, constancy of epistemology. Mr. Sanusi Lamido Sanusi, a modern Nigerian Islamic scholar pointed out, "One point needs to be made before we proceed with a discussion of modernist epistemologies. Traditional Muslim thought rejects completely the principles of modernism including "western" conceptions of liberty were alien to Islam. In most instances the rejection is based on the source of these theories and their root in Judeo-Christian and/or secular paradigms."
The democratic discourse considers liberty as quite central and no democracy can survive without its centrality. However, no one can seriously argue that liberty or libertarian critique can ever ignore values mentioned above. Freedom can never transcend limits set by these fundamental values. Modern human rights discourse is entirely based on certain values. Freedom should be contraposed to authoritarianism and not to values. What it means is that there is no single authoritarian interpretation of divine source but there can be multiple interpretations.
It is interesting to note that right from the early period of Islam multiple interpretations of the Qur'an have been in vogue. It is not later day development. Many eminent commentators wrote commentaries on the Qur'an having significant differences. Also, in Shari'ah formulations imams not only relied on different ahadith but also on different interpretations. A lot has been written on this. In nineteenth century too when colonial rule began in the Muslim countries, reformists, inspired by new vision, began to reinterpret earlier sources.
In the early Islamic period differences of interpretation were mainly a result of personal inclinations. Now the differences between the orthodox and conservatives arise more on account of modern situation and new developments. The reformists today see much better chances of unfolding of the Qur'anic values and seeing various issues in the light of unfolding of these values.
Today in a democratic social structure civil society plays an important role due to its enhanced awareness and greater empowerment. The 'expert view' is also subject to much greater scrutiny today. The doctrine of ijma' (consensus) was limited to only 'ulama in those days. Today the doctrine could be extended to ummah as a whole, which was the real intention behind ijma'. In those days civil society did not exist nor even a section of it could intervene in such matters. Thus ijma' remained confined to the experts (i.e. 'ulama) only.
Today the concept of human rights has quite significant role to play. One cannot dismiss human rights merely as 'western concept'. They have come to be accepted universally and most of the Muslim countries are also signatories to the declaration issued by the UNO in 1948. The universality of human rights is such that many Muslim countries and their organisations are not only accepting them but also examining them in the light of teachings of Islam. Today we have Islamic declaration of human rights.
Thus we see that Organisation of Islamic Conference adopted a declaration of human rights in Islam in Cairo on 5th August 1990. There are twenty-five articles in all in this declaration. In fact numerous Qur'anic and Shari'ah pronouncements are quite compatible to human rights concept today. In fact these pronouncements preceded human rights declaration by centuries. Unfortunately the authoritarian Muslim regimes right from medieval ages until today never allowed these pronouncements the centrality they ought to have been accorded.
Many of the Shari'ah formulations based as they were on human endeavour to apply divine injunctions in their own times were also affected by medieval ethos and thus would certainly serve divine purpose better if they are rethought and reformulated afresh, especially those about which there are is no unanimity in ummah. We would also like to deal with issues of crime and punishments.
Take punishment for adultery, for example. The Shari'ah punishment for adultery in shari'ah is stoning to death. This punishment has not been mentioned in the Qur'an. In Qur'an the punishment for zina is hundred flogs. The Qur'an says, "The adulteress and adulterer, flog each of them (with) a hundred stripes, and let not pity; for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement." (24:2)
It is to be noted here that in Arabic the word zina is used for fornication, rape and adultery. There are no separate words for these acts in Arabic. Thus he word zinai in this verse includes adultery as well as fornication and rape. The punishment for both fornication as well as adultery thus will be flogging and not stoning to death. The shari- 'ah does prescribe stoning to death for adultery. But there is no basis for this in Qur'an. Even its basis in sunnah is subject to controversy.
Stoning to death was, in fact, a Jewish punishment and we find reference to this in Bukhari (23:61). According to Bukhari the Prophet (PBUH) had given this punishment to a Jew and a Jewess according to their religious tradition. And to the Muslims it was given before revelation of this verse. That the Qur'an never intended to accord stoning to death for adultery becomes clear from the verse 4:25 wherein it is specifically mentioned that the punishment for married slave-girls is half that of free women. How the death punishment can be halved? Since it is specifically mentioned married slave-girl what is intended is a punishment for adultery and not for fornication.
Also the following verse i.e. 4:3 also make it quite clear that punishment for adultery could not be stoning to death. According to this verse an adulterer can marry only an adulteress or an unbeliever and vice versa. To marry an unbeliever has been mentioned as he/she did not really strongly disapprove of such relationship in the Arab society of that time. Thus a Muslim adulterer or adulteress was considered closer to an unbeliever than to Muslims. Where is then the question of stoning to death?
The Seceders (Khawarij) never accepted stoning to death as punishment for adultery arguing on the basis of the verse 4:25. Thus one has to seriously re-think the punishment for adultery in Islam. Amina Laval's case has made it all the more urgent. Amina is a divorcee and was in fact deceived by a man who promised her to marry. She confessed to illegitimate relationship without knowing the implications. No one informed her of the implications of her confession. She is an illiterate woman from rural background.
It should also be borne in mind that a large number of Muslims live in non-Muslim countries and hence are not subject to Shari'ah punishments. In India where second largest number of Muslims in the world live, there is common secular criminal code. Shari'ah laws regarding crime and punishment do not apply to them. The British rulers enforced secular criminal code in early twentieth century and the Indian 'Ulama accepted it unanimously. In fact Maulavi Nazir Ahmed, an eminent 'alim of the time translated this secular criminal code into Urdu and was awarded the coveted title of Shamsul 'Ulama (Sun of Islamic theologians) by the British.
It would be in keeping with the Qur'anic spirit to abolish stoning to death as a punishment for adultery. It is also important to note that the Qur'anic outlook for crime and punishment is reformatory and not merely punishment-oriented. Punishment is an ultimate measure failing all other efforts to reform an offender or a criminal. Tauba (sincere repentance) is a measure recommended by the Qur'an repeatedly and many verses on punishment like the one on theft are followed by the ones on repentance and reform. Thus the verse 5:38 prescribing punishment for theft is followed by 5:39, which says, "But whosoever repents after his wrongdoing and reforms, Allah will turn to him (mercifully). Surely Allah is Forgiving, Merciful."
Thus it is quite clear that emphasis is as much on repentance and reform as on punishment. One cannot inflict ultimate punishment without giving chance to reform. In connection with these punishments it also has to be borne in mind that before appearance of Islam on the scene the moral conditions of the Arab society during the period of Jahiliyyah (ignorance) was far from healthy. Various crimes sometimes not considered crimes at all) like zina and inter-tribal raids etc. were widespread and had to be brought under check. And thus certain punishments had to be prescribed which appear harsh to check those crimes.
These punishments have to be seen in the then prevailing social conditions in Arabia. Only hardened criminals refusing to repent and reform could be awarded these punishments. In general emphasis is on repentance and reform. Punishments are means and not ends. Unfortunately those not aware of social conditions, social changes taking place and philosophical ends, rigidly insist on punishments and miss the baby for bath water.
Even the punishment for flogging for zina (fornication or adultery) appear quite harsh to us as we do not keep social conditions then prevailing into mind. Also, the way today this punishment is inflicted is not the way it was inflicted in the Prophet's period or the period immediately following his period. The provision for a party of believers witnessing the act of flogging (24:2) suggests that it was not so much bodily punishment as disgracing that was intended.
In early period whip was not used for flogging but either stick or hand or even shoes. The intention was disgracing rather than injuring. The offender was not even asked to remove all clothes unless he wore very thick clothes. However, later on rigorous rules were laid down and intention changed from disgracing to physically torturing.
Today when, unlike medieval society, emphasis is on human dignity and right to life as sacred right (the Qur'an also emphasises right to life) one has to rethink the concept of punishment as less corporeal and more as reformatory unless all efforts to reform an offender fail. Also, one must exercise ones wisdom in assessing the circumstances, which compel one to commit a particular offence. Justice otherwise cannot be done.