Islamic Law: CHANGING OBJECTIVES

Article excerpt

How is Islamic law supposed to serve the average Muslim today, or the global Muslim community for that matter; or even the world at large? Answers to such questions are rarely addressed clearly by Muslims themselves, except perhaps as part of some discussion on particular legal issues besetting the community at any given time. But whereas the discussions that Muslims now engage in may well be issue driven, the underlying premises of their arguments clearly show efforts to impute new objectives to the law. To cite the most recent moon sighting controversy: while responses to ISNA's ruling went all the way from outright condemnation to unbounded praise, they all seemed based, nonetheless, on previously unheard of legal objectives. And this is important because objectives determine the rule and not vice versa.

Let's look at some notable opinions on legal objectives that still engage us to this day. Plato, for one, saw no real role for the law, let alone its objectives, and spoke instead, of a law-free utopia where the intellect of the philosopher king obviates the need for law. Karl Marx seemed to agree, albeit for different reasons: he spoke of a classless society where the absence of those factors that necessitate laws, money, entrepreneurs, and private property among them, would obviate the need for law. Both these utopias are predicated on the assumptions that human nature can indeed be permanently changed, and human beings could well be weaned of such hoary avarices as greed, gluttony, and self indulgence. The great Christian theologian, Thomas Aquinas (d. 1274), on the other hand disagreed, and spoke instead of the need for laws that embody the adage "good is to be done and pursued, and evil avoided".

Now to Islamic law: whereas previously we followed what jurisprudence calls the command theory of law, Muslim public opinion on issues of law and society now seems unwittingly inclined less toward the command theory and more toward pragmatic ones. The command theory's difficulty would seem to lie in the fact that the will of the sovereign is so overbearing that it trump all other objectives. Thus, any rule coming from a duly recognized sovereign authority must remain valid and enforceable even if it breaks a moral principle or confounds common sense. Caliph Ali ('radi Allahu 'anhu) alluded to this very fact when he said that if Islamic law was based on common sense then wiping of the feet in wudu, as substitute for washing, would have required that the bottom of the foot be wiped and not the top! So for Ali and for jurists thereafter, jurisprudence should do no more than determine the will of the sovereign. In terms of Ramadan, therefore, it should do no more than determine its beginning and end through moon sighting or through the reliable testimony of other witnesses. …