Towards Complexity of the Islamic Jurisprudence in Contemporary Muslim Societies

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JJRS Vol . 22, 1-2: 2002

Towards Complexity of the Islamic Jurisprudence in Contemporary Muslim Societies

Farshid Delshad (Friedrich-Schiller University, Jena, Germany)

1. Preamble and Definitions Islamic Jurisprudence (al-fiqh al–islāmī) claims that it offers to the be-lievers (muʾmenūn) a comprehensive regulation for life valid for all times and for every sphere of life. Based on the Qurʾān and Sunna, Muslims have the guidance to address the problems encountered in human life and live a regulated and flourishing existence. For more than a millennium since the death of Muḥammad, the Islamic civilization has been this juris-prudence the corner stone of the private and public life of the Muslims. However, this fiqh gradually outdated and in the majority of cases seems to have not sufficient answers meeting the necessity of the life conditions of Muslims in the contemporary era, a rule which due to internal as well as external issues is quite unable to resolve most of the problems on their own and also incapable to even compete with the urbanized world.

Nowadays, Muslims have a lot of reminiscences of the magnifi-cent past and a huge body of Islamic legal data and codes that is now not compatible with the realities of the modern age. Even though it is main-tained that Islam is for justice, and it is true, many Muslims in their own societies are being sufferers of the load of legalistic injustice and insensi-tivity in the name of Islam. According ḥudūd law in Pakistan for instance, which was implemented by a military rule, many victims of sexual vio-lence are languishing in prison for the alleged offense of adultery (lawāt).

122 Japanese Journal of Religious Studies

南山宗教文化研究所 NIRC Nanzan Institute for Religion and Culture

Lives of so many Muslim women have been almost directly overwhelmed due to the traditional divorce laws or codes. Despite the provision of mahr–that is marriage dowry–women barely gain any financial safety through matrimony, an ill–mannered truth they become aware when they face the process of divorce. It is claimed that ribā ‘interest’ is forbidden because it covers interest and therefore, Islamic monetary system must be interest–free. Why then the goods and services designed and offered so far by the Islamic financial institutions merely mimic or shadow the conven-tional financial institutions?1 On may truly put the question on account of which fact is this lack between the existing Islamic laws and the reality in terms of solving troubles and keeping the Islamic values of justice and balance. What would be the main issue upon that the Islamic law, as pro-nounced by Islamic jurists–which are often claimed to be based on guid-ance from God for all time– constantly require rising the principle of żarurah (necessity) to expediently reinterpret for what is presented or claimed as the standard or norm? If this sort of law is a perfect and eternal one, so why a vast majority of Muslim women are revolting against some key facts in the traditional laws, and either diverting toward secular laws or challenging the traditional Islamic organizations to claim justice and seek a proper and dynamic executive of Islam? Why Muslims are looking for larger autonomy in their own societies, when Islam is claimed to be the front line of human self-respect and liberty? Why the Islamic societies are burdened with the difficulty of prevalent deficiency and hardship, obsolete education, and industrial backwardness? A significant issue to facilitate comprehending these factors is that the Islamic law lacks a me-thodical experiential establishment.2 However, a relevant examination about the corpus of Islamic laws is that it is text–oriented, not life–oriented. KHALED ABOU EL FADL uses the term ‘text–centered.’3 Still he uses this word in the context of fundamentalism and extremism, such text–orientation is a characteristic of Islamic law in a wide-ranging usage.

1 Cf. RAQUIBUZ ZAMAN and HORMOZ MOVASSAGHI. 2001, pp. 2428-2443. 2 To avoid a misinterpreting in this context the expression empirical (or experimental) has

been not used in the common sense of empiricism viz. the practice of relying on observa-tion and experiment especially in the natural sciences, where being empirical means ‘orig-inating in observation or experience’ or ‘referring to experience or observation only.’ The sense in which empirical is used here is discussed later in this paper.

3 Cf. KHALED ABOU EL FADL, 2001, p. 10.

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MAHMUD EL GAMAL, aptly articulates how through iǧtihād the dynamism of Islam is to be secured:

‘It must be emphasized that when we assert that Islam has a suitable solution for every difficulty emerging in any circumstance in all times to come, we do not mean that the Holy Qurʾān and Sunna of the Holy Prophet or the rulings of Islamic scholars provide a specific respond to each and every point of our social economic life. What we mean is that the Holy Qurʾān and the Holy Sunna of the Prophet have laid down the broad values in the light of which the scholars of every time have deduced explicit answers to the new situations arising in their age. Therefore, in order to reach an exact answer about a new condition the scholars of šarīʿa have to play a very significant role. They have to examine every question in light of the values laid down by the Holy Qurʾān and Sunna as well as in the light of the standards set by earlier jurists enumerated in the books of Islamic jurispru-dence. This exercise is called istinbāṭ or iǧtihād. The ongoing proce-dure of istinbāṭ keeps upcoming new ideas, concepts and rulings into the legacy of Islamic jurisprudence.’4

Nevertheless, all such juristic and scholarly analyses are to be guided mainly by the values laid out by the Qurʾān, Sunna and the works of Is-lamic jurisprudence. Obviously, there is not even a suggestion of any re-search based on the real world outside the texts or books in ‘deducing’ specific respond. There is also no linkage of any role for any inductive approach, studies or investigation. It is all texts and deductions. Such text–orientation is also reinforced by the outdated Islamic instruction. While the public school system teaches children to express themselves, give their views, and articulate their suspicions and hopes, the exact contradictory is found in some mosques and Islamic organizations. Here, one must be silent and listen: there is no room for debate, exchange or dispute, an harmful schizophrenia, in which they learn to utter on every subject with 'non–Muslims' and become hard of hearing when it comes to speaking about Islam or interacting with their teachers or religion. They deal with a kind of an education that has in fact outdated. If one considers what is usually offered today to generations of Muslim youths in the West, we become persuaded that what is called ‘education’ is de facto an ill–administered ‘instruction’, simply a handling on of knowledge based on

4 MAHMOUD EL-GAMAL. 2000, pp. 31-44.



principles, rules, duties, and prohibitions, frequently presented in a cold, inflexible, and strict manner, without essence of humanity. To make the Islamic supervision relevant and efficient once again, solutions require better comprehending of the difficulties, based on life–oriented education and empirical study. In this paper, several problematic areas are exmined for illustration, a case is made for the need for enhancing Islamic fiqh with a life–oriented, empirical foundation including some relevant sugges-tions.

2. Conceptualization of Islamic Laws: A Text-Centered Issue Islam is more than laws in common sense, and in any functioning society, quite obviously, there shall and would be progression of laws, codex and principles for constancy and structure. However, in divergence to the Is-lamic values and vision, over time legalism has plagued the Islamic socie-ties. That's why whenever the call for introducing šarīʿa is made and it is in fact implemented–as it happened in several Muslim majority countries in the 20th century–often it essentially amounts to a few rigid laws and penalties under totalitarian governments, without any reference to Islamic values and their initial codex. Text–centeredness has not only been deeply responsible for the failure of dynamism of Islam and its laws, but also non–Muslims studying Islam have been vulnerable to misunderstanding and misinterpretation of Islam as ANVER EMON mentions:

‘By approaching Islamic law reductively as a text–oriented tradition, colonialists could attempt to ‘understand’ the Muslim and Islamic experience by mere reference to texts, while ignoring the signifi-cance of context and contingency that is often taken into account in working rule of juridical systems.’5

Many colonialists had their prejudices, but even a Muslim can’t escape the feeling that traditional Islam is quite legalistic, and closed in layers of primary, secondary and tertiary texts, often detached from the realities of life. The structure of Islamic fiqh is mainly text–oriented. The first and principal foundation of Islamic fiqh is the Qurʾān. As a revealed text, if anything is found in the Qurʾān in maintain of or as regulation for some-thing, it supersedes all other sources. The next source of Islamic fiqh is Sunna, as preserved through transmissions of Ḥadīs ̱ . In most cases, the

5 ANVER EMON. 2001, p. 23.


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Qurʾān only lays out the principles or directives without referring to de-tails. Yet Islamic jurists turn to Ḥadīs for both definitions and details ̱ . There are disagreements about Ḥadīs within ̱ Muslims. While the majority of Islamic scholars insist that if there is any specific information in a Ḥadīs ̱ , especially ṣaḥīḥ (authentic) Ḥadīs ̱ , then its directive or directive is compulsory, the Muslim jurists themselves also generally acknowledge that Ḥadīs ̱ (ṣaḥīḥ or not) yields only approximate or probabilistic knowledge.6 There are an amount of Ḥadīs ̱ collections that are generally regarded as authentic or relatively more authentic. Six primary ones are known as Ṣiḥāḥ Sitta for the Sunnites while the Shiite ʿUlamā refer fre-quently to the Kutub al-arbaʿa (four books). Islamic scholars and jurists turn to these and other Ḥadīs ̱ collections for determining what is obligato-ry (żarūrī), permissible (mubāh), disliked (makrūh) and prohibited (mamnūʿ).

The third source of Islamic fiqh is iǧmāʿ (consensus). Essentially, it is an integrative source in the sense that if there is a consensus on an issue, it is regarded as authoritative, binding and incontestable. Regretta-bly, this is a truly outdated and misused concept and instrument, because there is no consensus on even the definition of iǧmāʿ per se. In fact, be-yond some of the broad values or dogmas and some basic rituals, there is hardly anything on which there is iǧmāʿ.7 Also, it lacks functionality in the modern time, because there is no way to achieve consensus in a strict, classical sense. However, in spite of the definition, since in ascertaining iǧmāʿ, the jurists still turn to the primary textual sources, the Qurʾān and Ḥadīs ̱ , even iǧmāʿ is text–oriented.

The last source of Islamic fiqh is qīyās. Qīyas is an application of known laws or codes to new situations. The function of qīyās is to discov-er the ʿilla (cause) of the revealed law so as to extend it to similar cases what we could define more or less as a creative precedent. Consuming alcohol, for example, is prohibited by explicit text. The cause for the pro-hibition is the intoxicating effect, hence in whatever this cause is found prohibition will become relevant. Since justification of qīyās is also main-ly dependent on textual sources, the entire structure of Islamic fiqh is also text–oriented. Iǧtihād– particularly in Shiite juridical system–is one of the key aspects of Islamic fiqh that allows for reanalysis and adjustments in light of the problems, but even such need for iǧtihād causes the jurists and

6 Cf. FAROOQ, 2001, p. 23. 7 Cf. FAROOQ, 2000, p. 49.



scholars to return to the texts to discover better or more suitable guidance. An essential lacking of Islamic fiqh is that while Islam is to guide its be-lievers to find resolutions to problems, there is no recognition of the ne-cessity to investigate, study and comprehend the nature and range of the problems, as if the difficulty is already known and sufficiently unspoken. Empirical research is not a process of education and experience of the Islamic jurists and scholars in general. Just as research or empirical works to know about a problem previous to formulae or ratify a law is almost absent in this context, there is also no retro-perspective research or empir-ical work to verify the effects and causes of particular formulations and enactment of laws. To illustrate the main theme of this essay, one should discuss several problematic areas, where the classical or traditional laws as textual corpus have now become incompatible to the pristine Islamic values and principles that do envisage justice and balance in approaching the issues of life and guiding individuals in finding solutions to their prob-lems. The traditional institutions of higher Islamic learning do not have any type of social studies or research as a module of the overall instruc-tion and curriculum. Even modern educated Muslims, who take Islam seriously, rarely take interest in empirical social research. Thus, it is no wonder that many Islamic laws turn out as linked with the traditional texts, but basically disconnected with the reality.

In 1979, under the military rule of late General Zia ul Haq, the Pakistani state decided to implement šarīʿa, in a very misinterpreted and misapplied concept.8 Ḥudūd (Sg. ḥadd), a few boundary limits for the lawful (ḥalāl) and unlawful (ḥarām) from God, the violation of which incurs penalty. The ḥadd penalties are specific, fixed punishments laid down by ‘Allah’ for particular transgressions or crimes. As part of that, a wide-ranging ḥudūd ordinance was ratified, which included the offence of zinā Ordinance in 1979. Zinā (adultery or fornication) is prohibited in the Qurʾān and it is a liable to be punished by offence. This ordinance defined zinā a lot more liberally, where zinā means adultery, fornication, prostitution and sexual violence. Thus, sexual violence became a type of zinā as zinā bil–ǧabr. Mixing up adultery and sexual violence, by categorizing sexual violence as a subcategory of zinā, created a frightening situation for so many women in Pakistan. Thousands of women, who claim to be victims of sexual violence, end up being prosecuted under the laws pertaining to adultery. These laws were

8 Ibid.


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formulated by simply referring to the religious texts, without any relevant research before or after the ratification. The miserable experience with the ḥudūd laws created chaos among the conscientious individuals, including many among those who take Islamic principles and values seriously. After ratifying the law, there was no research by either the religious organizations or educational institutions to have an analysis of the consequences of the laws. Traditional Islamic jurists were satisfied that the ḥudūd rule was precise, and thus, God's vocation had been fulfilled, which must be just and upright, because it is founded on the divine scripture of Qurʾān or revelation. Not only they did not carry out any effort to study and be informed about the consequences of the law, but also they turned a silent year to all disapprovals as well as results of social studies that were done. It took more than two decades on the part of Pakistani ʿulamā just to recognize that there are grave problems with the ḥudūd laws.9 Even though it is plainly opposing to the teachings of the Qurʾān and the Prophetic legacy, triple ṭalāq at one stroke is recognized by the classical fiqh as applicable and effectual. The motive it is considered valid is because the second caliph after the Prophet viz. ʿUmar al-Ḫaṭṭāb enforced it and, it is claimed, that since other close attendants of the Prophet did not oppose, there is a consensus on this, making it binding that the effectiveness and validity of triple ṭalāq is recognized. It is important to be familiarized with the fact that there is really no iǧmāʿ on this at all, and there can't be, when there is not even an agreed upon definition as to whose estimation is counted toward iǧmāʿ.10 But to approach this exclusively from the position whether there is an iǧmāʿ or not is merely a text–oriented regard. Yet a balancing, life–oriented approach needs that examining and revision be completed as to what kind of experiences women endure as a result of such triple–ṭalāq divorces. The truth is that, even though it is highly uncertain whether traditional Islamic laws have granted the right to divorce principally to men. A husband can divorce his wife at any time, using any possible means (verbal, written, and in the modern times by email, voice message, and so on.), under any circumstances (annoyed, drunk or coerced) – lacking being required to give any reason, view, motive to anybody for separation and without any obligation of witness. The only partial right women have in looking for a divorce is mainly through a structured legal

9 Ibid. 10 Cf. FAROOQ, op. cit.



process, subject to many circumstances and limitations, which many women find enormously cumbersome. Once a triple–ṭalāq is exercised, according to the traditional Islamic law–at least, some schools, including Ḥanafī and Šīʿī doctrines– it becomes an irrevocable divorce and the divorced wife is often homeless. In adherence to the Qurʾān and Sunna, triple-ṭalāq at one stroke should be regarded as prohibited, and Muslims should seek its complete banning. Unfortunately, there has never been any research study undertaken by the religious orthodoxy to study about what occurs to the lives of these divorced women and their children. Keep away from the ʿulamā, even Muslim intellectuals are often preoccupied with polemical Islamic legal texts, without undertaking any such research work. Whatever research work is accessible is typically by western scholars or secular investigators in the Islamic countries. There is a new type of Islamic feminist scholars as well as other western trained Muslim intellectuals particularly in Iran and Agypt who are stepping forward to make a difference to this issue. Nevertheless, the conventional religious institutions still do not recognize the necessity to integrate explorations and social studies a propos their curriculum.

There are also several complexities concerning the woman’s in-heritance. Classical inheritance law of Islam is fixed and largely inflexi-ble. The existing family members and relatives have fixed, designated shares, determined exclusively in orientation to the textual sources. There is no specific study on the consequences of practicing of such laws, par-ticularly on women, who generally constitute one of the most defenseless segments of the social order. It is all too well-known that men can easily walk away from family affairs and duties, but it is not so for women. Al-so, despite the idealized argues, after being divorced or widowed, except women with their own accumulated possessions and resources, cannot significantly count on any person. More notably, the Islamic orthodoxy does not even recognize the require or virtue of women's possible ability to be self–reliant, because it is simply argued that a woman will always have someone to take care of her, that might be a father, a sibling, a hus-band, a child or the government. Without pertinent empirical social stud-ies to know the nature and extent of the difficulty arising from the rigidity of inheritance laws, one cannot even begin to welcome the misery and vulnerability of many women, especially the ones from the deprived, rural milieu. The role of the jurists and scholars cannot be merely to live in the realm of texts and formulate and ratify laws. They also need to be familiar with the problems they try to tackle on and the result of the laws and


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codes they formulate and enact. It is not enough to claim that according to Islamic law, women are entitled to inherit and own goods, receive a dower (mahr) at marriage, and to administer their own asset and revenues. How-ever, they also need to learn what happens in fact, why is there a serious gap between the laws and the reality, and how to address the gap, instead of simply formulating laws and then taking a hands–off approach, as if God's work has been fulfilled.

A further difficulty is in regards to early age marriage in accord-ing the Islamic law. While the Classical Islamic law allows marriage of minors, the practice was merely inherited from the current customs in Arabia from the times even before the Prophet Muḥammad. Nevertheless, the marriage of the minor is in harsh contradiction with the liberty and human value of each individual, where a person is denied his own choice as an adult about one of the foremost decisions in the life of every indi-vidual. Imagining that marriage of children is allowed, with which as a Muslim and a human being cannot reconcile, Muslim jurists do not under-take any research to study the impact of early marriages on the affected minor's health, sanity and other relevant aspects. Indeed, often teenage years or puberty are regarded as marriageable age. Since the family con-stitution of most Islamic societies is such that the bride basically moves to the groom's family, the emotional and other problems for them to deal with are just enormous. An empirical study in the Islamic Republic of Iran in a particular tribe called Qašqāʾī found certain gynecological troubles more common, contributed by, among other aspects, early age at marriage and pregnancy.11

Islam allows divorce, but regards it tremendously objectionable. Based on that principle, divorce should consequently be complicated. Though, that is not so, to the extent that men’s right and privilege to di-vorce. But even more sarcastic is the fact that jurists and scholars also don’t like divorce, but they have no desire or urge to study what social and other factors contribute toward divorce and, if and how such factors can be dealt with to make matrimony more harmonious or functional and how the occurrence of divorce can be reduced. Since the phenomenon of divorce is considered as an anti-value and negative subject, consequently there are less methodical approaches in the Islamic law in order to facili-tate the process of divorce. When the fact of divorce has a negative con-notation so the objection why the Muslim jurists do not undertake the

11 Cf. BECK, LOIS. 1991, p. 78-81.



burden finding harmonious exits from the bound of the marriage seems to be dispensable.

The next issue is matters the birth control in Islamic societies. That the Islamic world has been experiencing a population explosion is not an understatement. Several Islamic countries, including Iran, Pakistan, Indonesia and Sudan, are among the countries with rather large population and poverty. For the vast majority of individuals, the quality of life is either stagnant at a miserably low level or, with exploding population growth, worsening. The religious institutions generally have been against any kind of birth control policy or program up to recent days. The only exception among the Islamic countries might be Iran where during the last years some measures have been undertaken in steps of birth control. But generally spoken any such policy or program is considered inconsistent with Islam, believing that life and death are determined by Allah, and human beings should not try to interfere or influence the reproductive chain. As much as the rhetoric of justice and humanitarianism (insanīyyat) is invoked, the reality is that the tolerability or prohibitive features of Is-lamic laws are firmed by whether it is supported or corroborated by Islam-ic textual corpus and not by considering of human factors. There is barely any attempt behalf on Muslim jurists–generally an exclusive male circle– to recognize what a woman undergoes during each pregnancy or how much proud it is for women to have a child–particularly a male one–almost every during the years of active reproductivity.

Some of the results or consequences are all too well known. So many pregnancies take a serious fee on the health of women as well as the children, because mothers cannot physically and emotionally attend to a horde of children, particularly in an environment where child–rearing is left solely the responsibility of women. A vast majority of families cannot come out of poverty because of large families. In many cases, infant mor-tality rate is high since quality of life seems to be not meaningful with too many children, where even basic needs cannot be sufficiently met. In Is-lamic jurisprudence there are certain principles that allow adjustments even to pronouncements in sacred textual sources: maṣlaḥat (public inter-est), istihsān (juristic preference), żarūrah (necessity) and so on. Each of these secondary methodologies have provided some dynamism to the process of iǧtihād. Yet, even with these additional instruments, the Islam-ic jurisprudence remained essentially unsuccessful in the matter of justice. In regard to the issue of birth control, according to the traditional religious thought, birth and sustenance belong to the domain of God. We as human


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beings must not hinder, and birth control or population policies are a form of intolerable and nonreligious interference.

Without burden of any real–life–oriented research, the legal deci-sions and prescriptions are deduced in a text–oriented way, where the arguments become obsolete not just with the authenticity of life, but also such urgings oppose some of the important wisdoms of the Qurʾān. First of all, Allah does not want individuals to marry unless they can support a family. Such individuals are still commanded to remain chaste until God makes them economically capable. ‘Let those who find not the where-withal for marriage keep themselves chaste...’ (24:33). However, the tra-ditional viewpoint against any plan or attempt to keep the family range reasonable, in correlation with the family's ability to supply, is equal to saying that Allah has put no duty on humankind’s wisdom or conscience in regard to his unrestrained reproduction. Secondly, the Qurʾān sets the model that mothers will care for their children for two full years (2: 2339). The physical and emotional advantage of such treatment for the infant is undeniable. However, if a mother is supposed to take care of a child for two years, the pregnancies have be at least two years apart. Obviously, these are once more text–centered arguments and evi-dence of the fact that even in being text–oriented; there are some serious lacks in certain aspects of traditional Islamic views. In fact, there seems to be essential confusion regarding the sources of Islamic knowledge and the relevant research methods.

Research, particularly focused on knowledge about and compre-hending the social reality, is completely missing from the attention of the Islamic jurists and juristic discourse. That the population’s acceleration is a serious problem for the entire society is barely recognized by the Islamic law. There is also no acknowledgment of or sensitivity to the reality that pregnancy takes a serious charge on the mothers at the micro-level. At one stage, Muslim jurists need to be aware of women's health and other rele-vant factors. At another stage, they need to take into reflection the largely negative effects of likely– to–explode population growth on the financial system and society, especially in a internationally competitive environ-ment. The final subject refers to the polemics of Islamic economics and finance. Islamic banking and finance structure has emerged as an obvious phenomenon in the Islamic countries as well as mainstream finance in the Western world. The whole movement began with the principle that mod-ern financial system is based on interest, and equating interest with ribā,



is regarded forbidden. Therefore, many within the revivalist forces want to see an interest–free financial system.

Of course, it would be an underestimation to utter that the due to the dichotomy between the religious and secular culture, the religious jurists are not sufficiently familiar with the contemporary economics. But that does not discourage them from issuing fatwā. However, they are sup-ported by a new generation of practitioners and academics from the field of finance and economics. These experts from the respective fields are serving the jurists to better comprehending the modern realities and pro-cesses. These experts are also undertaking pertinent empirical works. YUSUF AL–QARADAWI, one of leading Islamic jurists and scholars of the contemporary time, whose thoughts and views have a modernist tone, yet with a deep commitment to Islamic authenticity is an illustrative example in this case. He generally holds a moderate position on the majority issues of our time, and highly respected by the modern generation. He is highly sought after for his fatwā on various current issues, including finance and economy. His opus magnum The Lawful and the Prohibited in Islam is much admired among Muslims with contemporary perspective, in which he–among other issues– claims:

‘The harsh prohibition of interest in Islam is a consequence of its deep apprehension for the social, moral and economic welfare of humankind. Islamic scholars gave sound arguments explaining the wisdom of this prohibition, and current studies have confirmed their views.’12

Almost fascinating but not unexpectedly, there is no reference about those ‘current studies’ that ‘have confirmed their views.’ He cites not even a sole work. The claim of a position being ‘confirmed’ through stud-ies is a rather big claim. For sure Islamic finance is one of those fields that had seen many empirical works, but to claim that the wisdom has been confirmed through studies is a seriously exaggerated claim. Similar com-ments, without any corroboration, are made routinely in the traditional Islamic discourse. Once again, related to the statement by AL–QARADAWI, far-reaching statements are done about economies that permit interest, but without providing any corroboration. For sure there are empirical studies by the proponents of Islamic finance and banking. However, there are two

12 YUSUF AL-QARADAWI 2001, p. 265.


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major problems with these religious scholars and jurists in this view. Firstly they express positions in such a trustworthy manner that it leaves barely any room for an alternative option. There is neither iǧmāʿ, qīyās nor Ḥadīs ̱ or probabilistic knowledge which could affirm such statement and thus much of these fatwās are not like divine commandments. Rather, these are human assembles and have nothing similar with the Qurʾān and Sunna. Secondly, there is no recognition of empirical studies that counter the claims like the ones done by AL–QARADAWI. The point is that because they are not well-versed in the role of empirical works and their im-portance, the religious jurists are prone to make unstable statements, and frequently without any specific empirical evidence, as in the case of AL–QARADAWI. The another example is SAYYID ABUL A'LA MAUDUDI, who was one of the most influential Islamic figures of the 20th century and the founder of Ǧamāʿat–e Islamī, the Islamic political party in Pakistan. He is regarded as one of the founders of the global Islamic revivalist movement. Furthermore MAUDUDI was very significant in the emergence of Islamic finance and banking movement. His book Sood–originally written in Ur-du–made a zealous case for why interest is prohibited in Islam. In his work he affirms that the third category of debt relates to the public divi-sion. States sometimes have to acquire public debt, without any profit connection, to meet unexpected contingencies like in a war situation. In contemporary economies, such needs are almost commonly met through public debt, and, of course, through interest–bearing tools. Though, in an Islamic system, its complete opposite would be probable. As soon as the administration would inform the public about such needs, the public and the institutions would spontaneously donate from their means and income to the public funds. In a system that is interest–free, but also with zakāt–system, individuals would be financially so prosperous that they would be so burden–free that they won't vacillate to offer a part of their spare to the state. If the need of the government is still not met, the state can seek loan and the individuals would be willingly willing to offer interest–free loan in large amount. If the need of the state is still not met, the state can take any of the three following steps to efficiently address the need:

One. The state will use the resources from zakāt and ḫums. Two. Through a public verdict, the state will mandatorily ob-

tain a proportion of the deposits from the banks as loan. Just as the state has the authority and the right to oblige draft or conscription for military needs or acquire homes, vehicles and



other relevant articles of the individuals through requisition, it has the supremacy and authority to impose on the banks such obligation to extend loan to the state.

Three. The last option would be to print currencies according to the need of the state. It is equal to assuming debt on behalf of the public. Nevertheless, it would be a means of the last re-sort. If there is no other exit to meet the need of the state, only then this alternative must be used, because this option in-volves a long list of negative economic results.’13

Such a view is apparently outdated. It seems the author thinks still in the traditional cliché of ḫums as a source of acquiring public means. Unfortu-nately, even contemporary Muslim scholars don't see ḫums or war loots as a source of accumulation or acquisition of prosperity. Expecting the be-lievers to open up their reserves anytime the state wants may prove illuso-ry. Using zakāt for meeting state requirements, particularly when even the so–called Islamic authorities have been anything but Islamic, such options are quite naive. Requiring financial institutions to offer benefit–free loans to the state would be objected to even by the existing Islamic banking systems. For the last option, printing currencies and notes as desired is an effortless invitation to economic tragedy. Even as the last alternative, this must never be a choice. Also, in such opinions, there is a refusal of homo economicus, as supposed in modern finances as a logical and ‘self–interested’ performance. However, if the aforementioned views of MAUDUDI is an indication of homo islamicus, then there could be serious dilemma with this structure, because not only that there is no empirical foundation to hold it yet, but also, Qurʾān itself doesn't refuse the self–interest issue:

‘Whoever adopts the right path does so for his own benefit, and who-ever goes astray does so to his own detriment ...’. (17:15)

‘... And whoever purifies himself does so for the benefit of his own soul ...’ (35:18)

‘Whosoever worked righteously, worked for himself; and whosoever doth evil, doth against himself...’ (45:15)

Therefore, it is no surprise that empirically talking, one of the problems Islamic monetary institutions are facing is that ‘that homo islamicus does

13 Cf. SAYYID ABUL A’LA MAUDUDI, 1987, pp. 134-135.


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acting quite like homo economicus.’14 For this reason while mużāraba and mušāraka, based on the values of profit– and risk sharing, are supposed to be the modes of transactions that are form Islamic viewpoint most valid and suitable, the fact is that those are the least in the folder of the Islamic financial institutions.15 Certainly, the aforesaid religious scholars and ju-rists utter their position in a convincing manner. However, the empirical studies are in contradiction with these declarations of religious scholars. Undeniably, such muftis note in an authoritative way not just about their subject that is to say the Islamic fiqh, but also concerning economics about which they know and comprehend lesser. Under the topic ‘The basic difference between capitalist and Islamic economy,’ MUFTI USMANI discusses about the Capitalist economy: ‘gambling, profit, speculative transactions lead to concentrate richness in the hands of an oligarchy.’16 It is hard even to make any significant remark about such unconfirmed po-lemics. Surely the urbanized countries have high concentration of prosper-ity, but reasonably lesser compared to their counterparts. Nonetheless gambling, interest, and speculative transactions are not the actual or chief reasons for such concentrations of affluence. Claiming ‘One of the most significant specifics of Islamic financing is that it is an benefit–backed financing,’17 USMANI makes a daring claim: ‘[...] every financing in an Islamic system creates real property.’18 If the declaration were: ‘every financing in an Islamic system involves real property,’ it may have been a more justifiable assert or declaration. However, if his actual declaration is correct, then there will not be any trade financing, which may or may not create real properties. It is an ill-fated truth that the existing international financial institutions (IFI) are excessively involved in trade–financing, not real division financing to provide production and development.

According to USMANI, ‘The real and ideal instruments of financing in šarīʿa are mużāraba and mušāraka.’19 However, those two profit–loss sharing models are hardly ever practiced by the IFIs. Instead, cost–plus financing or mużāraba carry on to be the basis of Islamic banking. 20 USMANI seems to believe that it is purely a matter of

14 Cf. JERRY USEEM, 2001, p. 21. 15 Cf. FAROOQ, op. cit. 16 Cf. USMANI 2001, p. xiv. 17 Ibid. 18 Ibid. 19 Ibid. 20 Cf. USMANI, 2000, p. 113.



convenience, where individuals are less committed to the divine guidance. However, is it possible that here once again the supposed homo islamicus is behaving like homo economicus, basically because the behavioral postulations underlying homo islamicus could be problematic? Mohammad HASHIM KAMALI, a contemporary scholar of Islamic jurisprudence, remarks about the irresistible emphasis of IFIs on short–phrase financing that mainly deals with trade–financing, not manufacture–financing, which is opposing to the stated goals and premises of Islamic finance and economics.21 A vast majority of the Muslim jurists of the contemporary era believes that the profit–based financing does not inevitably create real assets, therefore, the supply of capital through the loans advanced by the IFs does not usually match with the real goods and services produced in the society, because the loans create artificial capital through which the quantity of money supply is increased, and sometimes multiplied without creating real assets in the same quantity. This lack between the supply of capital and production of real profits creates or increase inflation.’22 Unless some benefit of doubt is accorded for deprived articulation, there is no recognition that real shocks –resulted from production, technology and so on– would also cause inflation. This is the type of polemics, as showed above, that is observed as authoritative Islamic works about finance, banking and economics from legalistic and theological perspectives. It is no wonder that as zealous and committed as the Iranian individuals has been to the ethos of Islamic Revolution of 1979, the state finally came to comprehend that such expectations about people that they would contribute or plentifully offer profit–free loans to the state as needed is an entirely idealistic utopia. Yet, what the Islamic Republic of Iran performed is legitimize public bonds based on fixed rate of proceeds, rationalizing that such public loan is not supported by the exclusion of ribā (pers. rebā) which in the Persian neologism went to be coined as qarż-ol-ḥasaneh ‘lawful loaning’. A country that has openly and formally committed itself to profit–free economy and banking, ‘has decreed that ‘lawful loaning’ on the basis of a fixed rate of return from the nationalized banking system would not amount to benefit and would hence be permissible (mobāh).’23 To avoid the misunderstanding, the above articulation is not to suggest that there are no problems with profit.

21 Cf. MOHAMMAD HASHIM KAMALI, 2000, p. 104. 22 Cf. USMANI, op cit., p. xvi. 23 Cf. MOHAMED ARIFF. 1988, pp. 46-62.


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High interest rates, unpredictable interest rate fluctuations, credit dependent life styles, variable rate transactions, etc. can have serious long–phase implications; nevertheless, economists usually do not feature these troubles to interest itself.

3. Some Modern Views and Suggestions The harmonizing of text–centrality with life–orientation requires that one has to comprehend, explore and define social facts, processes and changes in a meaningful way. One of the most relevant observations in this regard was made by ALLAMA MUHAMMAD IQBAL

24 He referred to the empirical attitude particularly in the context of science. Though, notably, he also speaks about ‘the general empirical approach.’ Even though the ultimate way of knowing about the truths is via divine revelation. IQBAL also has recognized the role of human endeavor to know God during what he has made obtainable to us as āyāt (signs) in his creations and revelations. No-tably, IQBAL’s view had a mystical aspect:

‘There is no hesitation that the treatment of religious knowledge, as a source of Divine wisdom, is historically prior to the conduct of other regions of human experience for the same reason. The Qurʾān, rec-ognizing that the empirical approach is a vital stage in the spiritual life of humankind, attaches equal significance to all the branches of human experience as yielding knowledge of the ultimate reality which discloses its signs both within and without.25

Although empirical approach is mostly dominant in physical sciences, IQBAL also points out the role of Muslims in social sciences. With other words, not only that empirical regard in its appropriate extent was not unfamiliar or strange to Islam and Muslims, but also Muslims did play a revolutionary role in its significant development:

Ibn Hazm, in his ‘Scope of Logic’, remarks sense perception as a source of awareness; and Ibn Taimiyyah in his ‘Refutation of Logic’, shows that induction is the only form of dependable argument. Thus arose the system of observation and research. It was not a simply theoretical affair. Al–Biruni’s discovery of what we call reaction–

24 ALLAMA MUHAMMAD IQBAL. The Reconstruction of Religious Thought in Islam, India:

Kitab Bhavan, 2000. 25 Ibid, p. 51; 20–21.



time and al–Kindi’s innovation that sensation is proportionate to the stimulus, are instances of its application in psychology.26

Muslims do not need to approach the issue of empiricism from a philo-sophical point of view. Similar to all ‘isms’, empiricism is also another remarkable labyrinth in the area of human intellectuality. That’s why our interest in empirical approach relates to benefiting and valuing from our experience in all probable sense. Nevertheless, all the ‘ism’–centered sys-tems have their own strategy to what they hold dear and in this view Mus-lims do not have to welcome empiricism from the viewpoint of the ‘skep-tics’ to whom, empiricism is a conjecture which holds that the source of all information is sense experience. Compatible to Islamic standpoint, the empirical approach relevant to us is to be practically connected to the authentic world and balancing to the recognized Islamic basis.

4. Comprehending of Islamic Tradition and the Relevance of Empirical Approach Comprehending the Islamic tradition viz. the sunnat allāh requires that one complements his text–centered approach to Islam with a life–oriented regard. Inductive approach is vital in this issue. Centuries of accumulated knowledge of economics now yield a number of values or laws of eco-nomics. This has been possible through a combination of inductive and deductive methodologies. The branch of economics, like in other socio-logical approaches, progressed through seeking for some similarities to natural laws appropriate to societies. This is certainly relevant to so-called ‘positive economics’. Projected hypotheses have been theme to empirical researches over a long episode of time. Those theories that have devel-oped the empirical examinations of time are now predictable and utilized as laws of economics. Economic solutions demand improved compre-hending of the economic difficulties. However, with all their imperfec-tions, these laws relating to the behavior of homo economicus have been very functional for enhanced addressing financial problems. The subject of sunnat allāh can be the directive for Muslims to search for such com-prehending of laws highlighting many of the phenomenon or problems we meet. Contemporary Muslim jurists believe in the ribā–benefit balanc-ing.27 Since ribā is strictly forbidden in the Qurʾān, the balancing extends

26 Ibid, p. 52 ff. 27 Cf. FAROOQ, op. cit.


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the ban to interest. Nevertheless, one of the grounds given for such exclu-sion is that interest (ribā) is unjust and unequal, while profit (nafʿ / manfaʿa) is not. However, a closer examination shows that the traditional arguments for the ribā balancing empirically do not maintain. Fortunately, even if long forgotten by Muslims themselves, such theoretical and empir-ical approach is not new in the history of Muslims. In some respects, Mus-lims have at least partially pioneered in this issue. Ibn Ḫaldūn, the Muslim historian of 14th century is recognized by the modern West as the pioneer of sociology and historiography. Muslims slowly were more captivated by theology and law, and they almost abandoned the heritage of Ibn Ḫaldūn in sociology. The role of Ibn Ḫaldūn is precisely the sort of theoretical studies in the positive tradition appropriate to better comprehending of the sunnat allāh. Regrettably, incorporation of inductive method, as part of the whole methodological subject of Islamic dialogue, as well as ap-proaching iǧtihād from the perspective of philosophy of šarīʿa–including the field of fiqh–remained abandoned by the traditional Islamic discourse. If the heritage of Ibn Ḫaldūn had been taken to its logical result and its relevant possible was appropriately developed and explored in compre-hending sunnat allāh and more, the course of the history of the Islamic society might have been considerably unlike to how is seems to be today. It is no surprise that the following appearance of the Western civilization did not come out from burying heads into sacred texts, such as Bible, and restricting the dealing with the Holy Scriptures at the level of deduction. Instead, inductive methodology was explored entirely to use not only in the branch of science, but also from the perspective of natural laws. This was suitably supplemented with empirical view. For sure, traditionally, the renaissance came about through a rebellion against the text–centered authority of the religious institutions, and eventually religion was unsur-prisingly marginalized. In contrast empirical and inductive standpoint of Ibn Ḫaldūn, Al-Bīrūnī etc. were not through a rebellion against holy texts, but de facto to improved comprehension the significance, and relevance of the ‘intentions or religious law’ or maqāṣid al–šarīʿa.

5. Conclusion Many social dilemmas require sensibility at the level of humankind. Those who create and develop Islamic laws in the contemporary era should be appropriately defined as individuals with theirs typical errors. Curriculum of religious institutions should have research mechanisms that can contribute picture both the educators and students to comprehending



the nature and extent of the complexities about which they have to pro-vide religious directives. In this manner, there has to be teaching about problem–solving perspective and approach. At higher levels of investiga-tions, similar to modern education, there has to be comparable research apparatus, which should also contain some empirical aspects. For in-stance, scholars or students can interview a number of women in an Islam-ic populated region in order to comprehend about their experience with the inheritance laws. A student might observe for a period of time the everyday life of a Muslim woman with young children from a disadvan-taged milieu and share the significant experience and lessons. This is a curtail issue, which is definitely absent in the curriculum of institutes for Islamic and Middle Eastern Studies in Europe– and to be careful in esti-mating– at least in German speaking countries like Germany, Austria and Switzerland where the quantity of Muslim emigrants are really considera-ble. Before ratifying any decree, the religious jurists, muftis and scholars should either make attempt on their own, or draw on the proficiency of the relevant researchers to comprehend and learn about the difficulty in ques-tion. Since human unreliability must be taken into consideration, except a few things that are clearly legislated in the Qurʾān, all laws and juridical codes have to be treated as uncertain, because the knowledge of human-kind at the level of particulars is only approximate. Following accrediting or ratifying laws, there has to be a subsequent study of the consequences and effects of the applied laws. Furthermore Women have to be engaged and integrated into the religious dialogues at all levels, including the level of iǧtihād as s matter of competence–a branch of religious sciences which is unfortunately monopolized by men even in our contemporary time. The ethics of Islam is constructed on human nature (fiṭra) upon which every person is born on the good fiṭra. Now, it is significant that one would comprehend that nature of humankind is constantly in seeking and provid-ing guidance and solution. Such pursuit of accepting the nature cannot be all deductive–purely turning to the textual corpus. Empirical works, using experimental quantitative and qualitative methodologies are also crucial. The above proposals–as obvious they might be–could take in to consid-eration in order to contribute Islamic guidance stepping the methods which are more dynamic and efficient meeting the needs of Muslim indi-viduals in the contemporary time.


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著者について Farshid Delshad ファーシッド・デルシャッド博士博士号はイランで1972年に⽣まれました。彼は現在、イエナ、ドイツのフリードリヒ•シラー大学のアカデミックなメンバーです。彼はアラビア語とイランの言語学と言語学を研究している。彼は東洋言語学と述べた大学でイスラムとイランの研究の分野で教鞭を執る。

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Towards Complexity of the Islamic Jurisprudence in Contemporary Muslim Societies

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