Introduction
Having sought the consent of states through treaties, International Human Rights Law (IHRL) is devoted to achieve its universal scope and jurisdiction. Muslim States are well behind from the others in showing their adherence to fully preserve the spirit of IHRL treaties. Critics blame the arguable rigidity of Islamic law and its mixture with patriarchal culture being a suggested reason for the failure of Muslim States in adopting domestic legislation in order to protect and promote the international standard of human rights. Islamic scholarship pursues this debate in variant ways. Modernists stress on the evolution of Islamic law to be taken as a tool of reformation in that regard. Traditionalists accept the progressive nature of Islamic law in principle however remain stuck with the classical positions. The institutionalization of Ijtehad, as I deem it a new mode of ‘Islamic theory of legislation’, seeks an articulation of the eternal principles of Islamic law for law making on one hand while on the other elicits for the restoration of the role of scholars/jurists in process of main stream legislation tacking place in the legislatures of the contemporary Muslim States. The work in hand attempts to bring both legal and historic evidence in order to establish the very progressive nature of Islamic law that is inherently capable of reflecting any development on the ground. After sketching a brief account of background of Islamic Law in first section, the second section evaluates a state of human rights in contemporary Muslim World and invokes the treaty obligations on states seeking domestic legislations to rescue international standards of human rights. Third section portrays the picture of legislative mechanism taking place in different stages of the history of Islam. Sections four and five co-relate the modern principles of legislation with theory of the higher objectives of Shariah. Section six gives an account of the qualifications set for the legislators while section seven consists of my suggestion how Ijtehad can be institutionalised and what variables are available for adopting a contemporary ‘Islamic theory of legislation for a modern Muslim state’.
Having sought the consent of states through treaties, International Human Rights Law (IHRL) is devoted to achieve its universal scope and jurisdiction. Muslim States are well behind from the others in showing their adherence to fully preserve the spirit of IHRL treaties. Critics blame the arguable rigidity of Islamic law and its mixture with patriarchal culture being a suggested reason for the failure of Muslim States in adopting domestic legislation in order to protect and promote the international standard of human rights. Islamic scholarship pursues this debate in variant ways. Modernists stress on the evolution of Islamic law to be taken as a tool of reformation in that regard. Traditionalists accept the progressive nature of Islamic law in principle however remain stuck with the classical positions. The institutionalization of Ijtehad, as I deem it a new mode of ‘Islamic theory of legislation’, seeks an articulation of the eternal principles of Islamic law for law making on one hand while on the other elicits for the restoration of the role of scholars/jurists in process of main stream legislation tacking place in the legislatures of the contemporary Muslim States. The work in hand attempts to bring both legal and historic evidence in order to establish the very progressive nature of Islamic law that is inherently capable of reflecting any development on the ground. After sketching a brief account of background of Islamic Law in first section, the second section evaluates a state of human rights in contemporary Muslim World and invokes the treaty obligations on states seeking domestic legislations to rescue international standards of human rights. Third section portrays the picture of legislative mechanism taking place in different stages of the history of Islam. Sections four and five co-relate the modern principles of legislation with theory of the higher objectives of Shariah. Section six gives an account of the qualifications set for the legislators while section seven consists of my suggestion how Ijtehad can be institutionalised and what variables are available for adopting a contemporary ‘Islamic theory of legislation for a modern Muslim state’.
Conclusion
The 21st century is dedicated to human rights, declared to be universal for every human regardless of his creed, cult, region, race and nation. An achievement of the stated objective of the regime of international human rights would certainly be considered the greatest triumph of this century. The human rights discourse finds almost common precepts of human interests across the nations and regions therefore some elements of its universality can never be simply overruled. However the manner, in which such common interests of humanity have been addressed in international human rights treaties, has invited different reactions from the prevalent theologies, civilizations and politics in different communities of the world. Particularly in the Muslim world, on one hand the states have joined the treaties and rendered their alliance for the preservation of human rights therein while on the other these rights continue to suffer resistance in their smooth application on account of religio-cultural pluralism embedded in the Muslim civilization. Islam, a fourteen hundred year aged religion that occupies one fifth of entire human population, is capable to provide its followers a complete code of life through its ever growing legal system. The doctors of Islamic Law however vary while approaching international human rights, particularly the provisions dealing with gender equality, freedom of religion, minorities’ rights and prohibition of corporal punishments. Diversity in legal thought of Islam is not unique to the current century rather it has been an ongoing process right from the beginning. This is why the Prophet of Islam (PBUH) described such a pluralism not to be harmful for his community but a source of blessing from the Almighty. Islamic literature as a whole and Islamic legal tradition in particular is therefore very much capable of adaptability and development. Unlike other religions, Islam never leaves its subjects unguided whatever situation they are confronted with.
Until medieval times, the Muslim intellect adherent to the cause of Islam openly accepted every challenge of the time and put their best of endeavour in interpreting the eternal principles enshrined in divine texts and maintained the growing momentum of Islamic sciences. However, by the end of medieval age of Islam, due to various ex-factors, some of which have been discussed in this study, Islamic law became stagnant. Ijtehad, the “principle of movement in the structure of Islam” could keep itself alive only in letter but not in finest practice.
The century we are living in, poses the challenge of human rights before the world of Islam. The human rights regime as indicated in this study can be rightly termed as an advanced phenomenon of democracy. Democracy is a system of government that embodies the rule of the “general will” through social contract between the rulers and the subjects. Such a system in the current world is dynamically practiced in a “nation-state”. Islamic principles such as, Ra’y ul jamhoor/majority opinion, Consensus of community/Ijma’ or Shura, the community of Islam/Ummah, are taken by Islamic Modernists as parallel to the idea of democracy and nation-state only subject to ‘divine will’. Despite of many differences between scholars, the majority of Muslim States have generally accommodated these two vital philosophies in their respective polities in order to pursue the political fate of Islam. However, the state of law has not been brought out of slumber yet. The current abuse of public and private rights throughout the Muslim world, therefore, is worst demonstrated in the whole history of Islamic legal regime. Though, by the virtue of the divine mandate, the Islamic State had to be most efficient and dynamic in protecting human honour.
The “Islamic theory of legislation” needs to articulate the principles of Islamic jurisprudence to govern the legislative process functioning in modern Muslim nation-states. In my opinion, by restoration of the traditional role of the scholars/jurists in mainstream legislation provides the only efficient and workable way-out in order to achieve the necessary reformation in all social, political, religious and legal institutions of contemporary Muslim world. This will help modern Islamic thought to absorb and “Islamicize” the notion of democracy, pluralism and human rights.
The 21st century is dedicated to human rights, declared to be universal for every human regardless of his creed, cult, region, race and nation. An achievement of the stated objective of the regime of international human rights would certainly be considered the greatest triumph of this century. The human rights discourse finds almost common precepts of human interests across the nations and regions therefore some elements of its universality can never be simply overruled. However the manner, in which such common interests of humanity have been addressed in international human rights treaties, has invited different reactions from the prevalent theologies, civilizations and politics in different communities of the world. Particularly in the Muslim world, on one hand the states have joined the treaties and rendered their alliance for the preservation of human rights therein while on the other these rights continue to suffer resistance in their smooth application on account of religio-cultural pluralism embedded in the Muslim civilization. Islam, a fourteen hundred year aged religion that occupies one fifth of entire human population, is capable to provide its followers a complete code of life through its ever growing legal system. The doctors of Islamic Law however vary while approaching international human rights, particularly the provisions dealing with gender equality, freedom of religion, minorities’ rights and prohibition of corporal punishments. Diversity in legal thought of Islam is not unique to the current century rather it has been an ongoing process right from the beginning. This is why the Prophet of Islam (PBUH) described such a pluralism not to be harmful for his community but a source of blessing from the Almighty. Islamic literature as a whole and Islamic legal tradition in particular is therefore very much capable of adaptability and development. Unlike other religions, Islam never leaves its subjects unguided whatever situation they are confronted with.
Until medieval times, the Muslim intellect adherent to the cause of Islam openly accepted every challenge of the time and put their best of endeavour in interpreting the eternal principles enshrined in divine texts and maintained the growing momentum of Islamic sciences. However, by the end of medieval age of Islam, due to various ex-factors, some of which have been discussed in this study, Islamic law became stagnant. Ijtehad, the “principle of movement in the structure of Islam” could keep itself alive only in letter but not in finest practice.
The century we are living in, poses the challenge of human rights before the world of Islam. The human rights regime as indicated in this study can be rightly termed as an advanced phenomenon of democracy. Democracy is a system of government that embodies the rule of the “general will” through social contract between the rulers and the subjects. Such a system in the current world is dynamically practiced in a “nation-state”. Islamic principles such as, Ra’y ul jamhoor/majority opinion, Consensus of community/Ijma’ or Shura, the community of Islam/Ummah, are taken by Islamic Modernists as parallel to the idea of democracy and nation-state only subject to ‘divine will’. Despite of many differences between scholars, the majority of Muslim States have generally accommodated these two vital philosophies in their respective polities in order to pursue the political fate of Islam. However, the state of law has not been brought out of slumber yet. The current abuse of public and private rights throughout the Muslim world, therefore, is worst demonstrated in the whole history of Islamic legal regime. Though, by the virtue of the divine mandate, the Islamic State had to be most efficient and dynamic in protecting human honour.
The “Islamic theory of legislation” needs to articulate the principles of Islamic jurisprudence to govern the legislative process functioning in modern Muslim nation-states. In my opinion, by restoration of the traditional role of the scholars/jurists in mainstream legislation provides the only efficient and workable way-out in order to achieve the necessary reformation in all social, political, religious and legal institutions of contemporary Muslim world. This will help modern Islamic thought to absorb and “Islamicize” the notion of democracy, pluralism and human rights.
This is the introduction and conclusion of the article published in the JOURNAL OF LAW AND SOCIAL POLICY, Vol 1, Issue 1, January 2012, 13-56
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