Implementation of Islamic Law in Modern Times
by Sheikh Zaki Ahmed Yamani
[The following is the whole text of Sheikh Yamani's speech delivered at the Islamic Information Service's Outreach Award ceremony, held on October 3rd, 1998 in Beverly Hills. Without any editing or changes. This was an extempore speech,so please do not expect it to have an absolute grammatical coherence. Thetopic of his speech was: "The Implementation of Sharia in Modern Times." Tapes of his speech are also available from IIS. The number to call is 626-791-9818.]
I am very grateful for this honor awarded to me and know there are so many people who derserve this far better than myself. But, I am lucky person so here I am.
I thank my brothers and sisters. The subject they want me to talk about is "How to Apply Islamic Law". Of course, we all know that back home in all the Islamic countries there is real desire and demand to apply the Islamic law. Of course, most of the people asking for it they don't know what kind of Islamic law they want. They just want Islamic Law. And there are those, of course, the opponents of Islamic Law. They answer back: you want to cut hands, lashes and capital punishment?
What is this old-fashioned system that you want to apply now?
Of course, Islamic law is not really lashes, cutting hands, and capital punishment. It's a very beautiful system. I cannot tell you about it tonight. It takes hours and hours at least.
Human rights in Islam is something so unique and so advanced that you don't even compare it with the UN Charter of Human Rights about fifty years ago. Because applied in the city of Madinah 1500 years ago. I had a chance to in Geneva. There was a convention or a symposium about human rights in Islam. I was one of those who participated. And people were amazed. If you are liberal.If you back only to what's in the Quran and Sunnah and applications in the 30 years after our Prophet passed away, then you know what is real human right in Islam. You know what equality between men and women. You know the state of non-Muslims in Muslim society. That is human rights in Islam.
The first democratic system applied in the world was in the city of Madinah centuries ago. Democracy is not on the paper, it's in real application. What is called Shura means there is no one-man rule. It's the rule of the majority. And that's another area of Islamic law.
Social justice in Islam: It's something unique and there is no other system that attracts social justice as Islam. I give you a small little example: There was a famous jurist from France who came to a law school in Egypt and became the dean. It's Prof. Dukey. He studied the Islamic law there with the community. While he was the dean and went back and he wrote a theory "Social Justice". It's a copy of Al Madhab Al Maliki, a copy of the Maliki School of Thought in the area of ownership and description of ownership in Islam. And so on. It's a very famous theory for those who studied it and it's a beautiful thing.
When Lenin found out he cannot apply Communism the way he wanted to and he wanted to make changes he called on Prof. Dukey to talk to him about what is called NEP, the New Economic Plan. For those who studied Soviet law they will find that so many articles are taken on the basis of his theory that is from the Maliki School of Thought in Islam. This does not mean we are communist or socialist. No. It's a unique system. I don't have the time to sit down and explain it to you. But this is Islam.
But back to how we apply Islamic Law in a modern society, a Muslim society? It's an important issue because first we have to distinguish between Al-Sharia and Al-Fiqh al Islami-Islamic Law and Islamic Jurisprudence. Al-Sharia or Islamic Law it's what written in the Quran or in the Sunnah. This is obligatory, so to speak. The oher part, Al-Fiqh al Islami, is a huge volume of legal opinion. That's something we study, we look at, but it's not obligatory because within the same school of thought, the Madhab, we find sometimes on the subject, five, six, ten different opinions. Which one not to apply and as you know we have the four schools of thought and then we also have the Shia Athna-e-Asri, the Jafri. In Saudi Arabia they apply Hanbli, In Iran they apply Jafri, in Yemen they apply a blend of Zaidi and Shafa'i. And so on. That is not really the Islamic Law.
What we applied 10 centuries ago or 15 centuries ago it cannot be really applied today at a time when camel was the only means of transportation.
And now with the internet, the jet with all these means of communication how can we apply that with the banking systems, with the currencies, with the type of economy, how can we apply the Islamic law at the time when barters and only use of silver at the currency. There is the Islamic jurisprudence in Usul al-Fiqh. A rule everybody believes in it.
And it says "You cannot object or deny a change in the law because of the change in time." That's one rule. Not only this. I give you one example: The great Imam Al-Shafai, the founder of the Shafai School of Thought. He was in Baghdad and he studied the situation there and founded his Madhab in Baghdad.
And then he went to Egypt. Thereafter, he changed a great deal of his opinions. And those who studied Al-Madhab AL-Shafai will see that this is the Old Opinion and this the New Opinion. The man is the same man.
The Quran is the same, the Sunnah is the same. What is the change? It's the change of environment. It won't be the change of time because it was in the short period of time that he changed his opinions. So, I wanted to tell you tonight in a nutshell that we have to look at the Islamic Law seriously.
Of course, we study this beautiful work of the jurists. It is really something unique. I remember when I was a student in Harvard there was an old man, very famous jurist in the history of this country, called Rusco Pound. And he studied in the Sorbonne [this word was not very clear in the speech] with the famous British scholar in Islamic Law, Ahmed Ibrahim, he is very famous. And they were together as friends.
Ahmed Ibrahim also got one of his PhDs from the Sorbonne. And he knew so much about the Islamic Law, about Islamic Jurisprudence. He knew there is an Arab in the Law School and he called me and he said, "I want you to go to be=85well, there is in the Hanafi Al-Mabsoot, see volume so and so, page so and so, translate that for me." So I go and I translate it for him. And I come and he started asking me to do this every now and then. Then one day, he looked at me and he said, "You Muslims don't deserve this law." I never forget this. He was right. We don't deserve this law because we are not really abiding by this law.
This beauty of this system is something forgotten. We have the tribal traditions prevailing everywhere.
In Afghanistan, you have those Taliban. So ugly picture they paint for Islam. In my own country, unfortunately, we are not following Islam as it should be.
Everywhere Islam is different. Islam is human rights, social justice, democracy. This comes first. Then afterwards, you look at other things.
We have changed a great deal.
Let me come now to see what we do when it comes to the text provided in the Holy Quran or authentic Sunnah. How we look at it? In a few studies of Islamic jurisprudence you find there are two schools of thought. This is regardless of the Madahib. But there are two approaches. One approach is to deal with text. Take it as it is, blindly. A good example of this is Al-Madhab Al-Zahiri. We take the apparent meaning of the text. And to a great extent Hanbli. Another school of thought is, take the objective of the rule, of the law of the text. You go a little bit deeper, you dig inside and see what is the objective? Maqasid al-Sharia al Isalmi. Of course, let me give you a little example, a historical one. After Ghazwat al Khandaq, the famous war, when all the tribes guided by a Jewish tribe called Bani Khuraiza, they came to Madinah to destroy the new state and this prophet. Of course, they failed. I am sure most of you know the story.
And when the Prophet came back to Madinah, started going to Bani Khuraiza because he had a treaty with them that they will never work against him and he will defend them. It's very well-known. So he went, but before going he told the Muslims, "No one should pray al Asr, the afternoon prayer, except in Bani Khuraiza. Of course other Muslims have to wash and get ready and follow him. In the way, the time for that prayer was about to come to an end. So they, some of them, said the Prophet told us not to pray except in Bani Khuraiza-that is the text. The others said, no, what he wanted to say to us to hurry up and arrive in Bani Khuraiza early. Some of them prayed, the others went to Bani Khuraiza and prayed al Asr after the time allocated for that prayer.. And they came to the Prophet ad told him what they did. The Prophet said , well, both of you are right. Of course, this shows, 1) that in Islam you can differ in opinion,it's accepted, it's even encouraged. And as long as you base your opinion on something , you are right. And other is to show different schools of thought.
Now the Prophet left us. And after him there was a great jurist, a man of a very special mind, Umar bin Khatab, the second Caliph. He was the founder of the second school of thought, the Maqasid al Sharia. And he made a lot of changes in the rules even in the Quran. I have counted thirteen different cases where Umar bin Khatab changed what is supposed to be the law in the Quran and the Sunnah. It's not Umar to change. He did not change. He applied Maqasid al Sharia al Islami, the objective of text in the Quran and Sunnah.
One example. Since we don't have much time. If you read the Quran about the treasury, about the Muslim treasury, one of them is Mualuf al Quluban. Who are these Mualuf al Quluban? Chiefs of tribes, newly converted to Islam. And, of course, if you know the Arab thinking of that time; if the chief of the tribe becomes Muslim the whole tribe becomes Muslim. And the state of Madinah, the first Islamic state, was so weak that the Prophet and God needed the help of those people. They had an annual share from the treasury to give it to them to please their hearts. They were giving it during the life of the Prophet and during the life of the first caliph, Abu Bakr. Then during the time of Umar already we conquered Egypt, Persia, the northern party of Arabia, Syria, so on. The Islamic state became so big, so huge, so strong. They came to Umar and said give us our allocation. Umar said, "no, I'm not going to give you." They said, 'no you cannot. It's written in the Quran." Umar said, "Islam is now strong." It means Umar looked at the objective of that text in the Quran. He did not ignore the text; no, he applied the objective of the Quran. And Umar did so much in that area.
So it is the objective that we have to look at.
One example, which is to some extent contemporary. In the Quran in what we call Ayattud Dane; when someone wants to borrow at that time and they are really outside. They have to write a contract of loan and they have to have two witnesses. Two men witnesses. [Quoting the Quran in Arabic and then translation] "If there are not two men witnesses one man and two women, maybe one will forget so other will remind her." This was during the time when in the peninsula women were not really involved in business, only men. And, therefore, to bring a lady to be a witness in a transaction sometimes it might be complicated so they need two. So the Muslims, thereafter, said two women equal to one man and it became a rule. We called it analogy, qias. Umar Bin Khattab, looking at the objective of a witness, what is the objective?
The objective is reaching the truth, to find the truth. All right? So during his life time, when it came women affairs, Umoor al Nisa, this lady got pregnant and that time delivered in the day, she was nursing till that day-all their little affairs relating to women, Umar said, "no, look, we don't need men there. We only need women and their testimony is higher that to testimony of men. That's the deviation from the text in the Quran. OK. With this, now let's come to what is prevailing today. Not only in matters of women. Today to have ladies with MBA, graduating in business. They are running companies, they are doing a lot in banking. You want to tell me that a Bedouin in the desert, his testimony comes before the testimony of this lady. If Umar Bin Khattab is here with us today, he will definitely change that and she becomes first, before a man like that.
In this area of Maqasid al Sharia there is a huge wealth. There is a lot of change that you can do. Imam Malik is the only founder of a madhab, school of thought, who belongs to the Madhab and he is not the real founder of the madhab. Why? The real founder if Umar Bin Khattab and after him his son Abdullah Bin Umar, and then later Saeed Bin Mosaib and so on. The Muslim jurists who applied what we call Maqasid al Sharia.
And then Imam Malik came and applied their opinions. That's why you find in the Maliki school of thought Maqasid al Sharia. And he has what is called Amral Ahlal Madinah established as a source of legislation. And he established Al-Masalah Al-Mursala, the public interest of the Muslim community, as a source of legislation in Islam. It's a beautiful madhab.
If someone can study it and lately, about three centuries ago, there is a very great Maliki school, Imam Shaqlibi. He wrote about 12 volumes in Sharia. The second volume is allocated to Maqasid al Sharia and right now we have so many scholars, Maliki scholars, who are writing about Maqasid al Sharia and if you study you find a great departure from what is known as Islamic law.
There is not Islamic law. If we want to apply the objectives and not the text as it is, this is one area jurists must embark on it and must work very hard.
I am happy to say that I will have a seminar very soon from eminent jurists from the Muslim world in the city of Makkah to study over a few days Maqasid al Sharia and we are going to publish this. And there are so many efforts in this direction right now.
But let me give you another method, so to speak, of how to really update, I can't say renovate Islamic law. It is the capacity, the various personalities of our prophet. Imam Al Kharafi, a very famous jurist about seven centuries ago. He wrote a best book. He said that the Prophet has so many capacities or personalities. He is a Prophet, and as such whatever he says is definite. It's revelation from God. But, he is also the head of the state. And what he does accordingly is based on his capacity as head of state is to be changed any time later by another head of state. He is also a judge and he also said,"Maybe someone is more able to explain his case better than the others. If, I base my judgment and it is wrong than he is really getting a piece of fire in his stomach." And he is a mujtahid, he is then a human being.
And what he does there is not binding. This is very important area. An example in the Quran you find sometimes that God is addressing the Prophet not as a Prophet, as a head of a state. "Why did you give them a permission. (Quran)" is a head of a state. Also, as head of a state, he was obliged to consult with people and apply the majority opinion. He can't really decide by his own opinion. One example: when the tribe of Quraish after being beaten in Badr, they came next year to revenge. The Prophet knew about that and he brought all the Muslims and he said in my opinion we don't leave Madinah and fight them here. If they come here and our families will be behind us. We will be more courageous because we are defending our children and wives. The Muslims said no, It's a sign of weakness. We like to go outside and fight. This was the opinion of the majority. So he said all right. "I abide by your opinion". He went inside and changed. During his absence they said what's wrong with us? We wanted to oppose him. We change our minds. .
When he came outside, they told him we are to change our minds. He said, no, decision is taken. This is democracy. And he went. And you know what happened. The Muslims were defeated. They came back to Madinah. The Muslims said because we did not listen to him God is punishing us. So God revealed to his Prophet a text, talking to him as head of state not as prophet, "Mercy from God that you have this lenient character because you are not so; you are tough, harsh they will leave you. So forgive them and pray for them and consult with them."
Because as a prophet he cannot consult with them, but as a head of state he is obliged to consult wit them. His cousin, Ali Ibne Abi Talib, said to him, "What is al-Azma al-azm Ya Rasulallah?" He said, "Ittehadul amari ba'adal mashwera, You decide after consultation." And then he said to Ali that if you have something after me happening and you don't have the law for it, bring the majority of the people who know and you don't ever apply a one-man opinion. Take the opinion of the majority. So this is democracy. This was applied in Madinah then and it's not applied today in Islamic countries. So the capacity of the prophet when he is the head of the state is very important. And in Islamic jurisprudence, for those who studied Islamic jurisprudence they know what is the difference. The Prophet said: "If you go and develop a piece of land which is not owned by anyone you will have the ownership of that land." So, if you plant trees, dig a well or whatever it is you will become an owner by virtue of that development. After that in the Fiqh you have two different opinions. The Hanbali, for instance, they took it as if he said that as Prophet. So it is binding. So this is why in the Hanbali school of thought if any goes and develops a land he becomes the owner. In the Maliki, in the Hanafi, they said, "no, it is the imam who will say that." Imam Malik said, "It is the imam, the head of the state who will decide, it's the law, which can be changed, and so.
There are so many areas that you can apply, for example, someone, a Muslim, leaves Islam, converted. The Prophet said: "Arabic". That was when the city of Madinah was small. As you in Islam it is forbidden to ask someone, to force someone to become Muslim "La Ikra'h fid deen" You cannot. But if he becomes Muslim by his own wish and will then he has to say because the state was very weak at that time. Later on, it became very strong, it didn't matter. And Umar Bin Khattab, again I come back to him. A ruler in Syria, there was Muslim who deserted Islam so he killed him. When he came to Madinah and told Umar. Umar said to him "Why did you kill him?" "Then what you do to him," the ruler asked. "You just put him jail," Umar said. I don't kill him. This means that ridda'h is not really hadd. This is what the Prophet decided to do as the head of the state in the same period of time. And there are so many areas in Islamic law that could be also looked at in the light of the capacity of the Prophet. There are so many other areas. I do not want take more of your time.
But Islamic law is something beautiful, dynamic, something rich. If you know it, you study it, you fall in love with it. But as Ruscoe Pound said it, unfortunately, we don't deserve this law. Thank you very much.
Unless you see the cause of 'Seen' in something that transcends the 'Seen', you will never get to truth.