In a recent landmark article, senior Indian Muslim politician Arif Mohammad Khan called for a change in Islamic law to meet the emerging needs of modern times. Citing a number of changes in Islamic law brought by second Islamic caliph Umar ibn Khattab and other leading jurists of Islam, Khan argued: "[In] Islamic tradition, the law is not a rigid institution, but is very sensitive to the prevailing context. Historically, it can be said that Islamic law has displayed dynamic elasticity that it can positively face the demands and challenges of the changing times."
Arif Mohammad Khan is a leading liberal Muslim politician, Islamic affairs expert, author, and a former cabinet minister. His article – "Is There Any Scope For Change And Reform In Islam? – was first published in Tehelka, a Hindi-language magazine, and later translated and published by the magazine's sister publication of the same name in English. In the article, Khan quoted Islamic jurists, sayings and deeds of Prophet Muhammad and other sociologists and reformers like Ibn Khaldun and Sir Syed Ahmad Khan, to argue that change in Islamic law was intended by Allah.
In the article, he argued that several empirical factors, including economic and political, were responsible for changes in Islamic law brought about by Islamic rulers throughout history. Khan cited how the Koran prescribed that a thief's hand be cut off as a punishment, but this punishment was suspended by Umar, the second caliph, in public interest during a time of famine. "All the examples that I have given in this article are from the early period of the Muslim state, i.e. 7th-10th centuries," Khan later told a journalist in a comment accompanying the article. The following are excerpts from the article:[1]
"The Koran Wants Us To Comprehend This Process Of Change To Enable Us To Prepare Ourselves To Face The New Situations And Challenges Arising On Account Of Emerging Changes; It Says: 'Unless Ye Go Forth, He Will Punish You With A Grievous Penalty…'
"The questions related to reform and change in Islam can be answered in two parts. One part is related to the basic and abiding principles of Islam and the other to the subsidiary issues. As far as basic principles are concerned, which are everlasting according to the Koran and are common in all religious traditions, they are clearly beyond the scope of change or any alteration. The Koran says: 'The same religion has He established for you as that which He enjoined on Noah (prophet) – that which We have sent by inspiration to thee – and that which We enjoined on Abraham (prophet), Moses and Jesus: Namely, that ye should remain steadfast in religion, and make no divisions therein.' (Koran 42.13)
"[Islamic scholar, politician, and independent India's first education minister] Maulana Azad, in his commentary on the Koran titled Tarjuman-ul-Quran, asserts that the Koran came to distinguish religion from its outward observance. The former is called Deen [religion] and the latter is called Shar'a or Minhaaj [law]. Deen was but one and the same everywhere and at all times, and was vouchsafed to one and all without discrimination. In respect of outward observances of Deen, there was variation and it was inevitable. It varied from time to time and people to people, as seemed pertinent to every situation. Variation of this nature could not alter the character of Deen or the basis of religion. The Urdu term that Maulana [Azad] has used for this one and same spiritual order is 'Mushtarak Haq' [shared truth].
"Elsewhere, Maulana [Azad] holds that the teaching of a religion is two-fold. One constitutes its spirit; the other is its outward manifestation. The former is primary in importance and the latter is secondary. The first is called Deen (religion); the second is Shar'a [law], which has come to mean the law prescribed by religion.
"So it is clear that the basic principles of religion are of abiding value, but the laws that have a particular social, economic, or political context become redundant when the context itself undergoes a change. The Koran itself describes changes like alteration of day and night, changes that occur in a human body as a result of advanced age, variations of the color of skins and languages, etc., as signs of God, and emphasizes the need to apply one's mind to understand this phenomenon. The call to study this process of change makes one thing abundantly clear: the Koran wants us to comprehend this process of change to enable us to prepare ourselves to face the new situations and challenges arising on account of emerging changes. It says: 'Unless ye go forth, He will punish you with a grievous penalty, and put others in your place.' (Koran 9.39)"
Leading Islamic Jurists – "There Should Also Be Suitable And Necessary Changes In The Law, And It Should Take Cognizance Of Its Surroundings"; "The Laws Have A Context, And If The Context Undergoes Change Then The law Is Automatically Terminated"
"Constant change is a fact of our lives. If a non-living thing, like a stone, is protected from environmental impact, then it is possible that even after a thousand years it will stay the same. But anything that has life, whether human, animal, or vegetation, would either grow or diminish by the day. It cannot stay the same.
"Famous Muslim scholar Ibn Khaldun writes in his book Muqaddimah, 'The situation of the world and the habits of various countries are not always the same. The world is the name of the story of change of civilizations. Similarly these changes take place in humans, times and cities; in the same manner it happens throughout the world, through different ages and regimes. This process of change is the way of God which has always been underway among his creations [including among humans].'
"Dr. Sibhi Mahmasani, an expert in Islamic law, writes in his book Falsafa Shariat-e-Islam, 'There is no doubt that as a result of this variability of the world, man's lifestyle changes, [and] so does the paradigm of his welfare. Because the foundations of law are based on welfare of man, therefore it is imperative that along with the changes of time and society, there should also be suitable and necessary changes in the law, and it should take cognizance of its surroundings.'
"Another Islamic scholar, Ibn Qayyim al-Jawziyah, has underscored this point in unequivocal terms: 'Changes in the law are associated with changes in time and era, changing situations, and the change in human behavior.' He says: 'there is a relationship between mankind and law. A lack of appreciation of this basic principle has given rise to a misunderstanding that has resulted in limiting the scope of Islamic laws.' Ibn Qayyim further says that 'the Islamic law has attached highest priority to Masaleh Insaani (public welfare), and it has no place for such a narrow viewpoint.'
SUPPORT OUR WORK
"It is important to keep in mind that the nexus between law and public welfare [and therefore the need for change in law] was highlighted by Ibn Khaldun about 800 years ago, and 400 years later Ibn Qayyim had forcefully reiterated the same principle. This argument is embodied in Article 39 of Mujallatul Ahkamul Adaliya (Islamic law rules). It sates: 'la yunkir taghayyuril ahkam bit taghayyuruzzaman,' meaning it cannot be denied that with the changing times, laws also change. Other Muslim jurists, commenting on this legal maxim, have suggested to add: 'wabittaghayyural Askana wal ahwaal' (the rules change as a result of change of residence and change of circumstances). In this respect the observation of Maulana Alai, a leading jurist, is equally important. He says that the laws have a context, and if the context undergoes change then the law is automatically terminated."
Changes In Islamic Law: "Khiraj Is A Tax That Farmers Had To Pay… Imam Abu Yusuf Reduced These Rates With The Change Of Times"; "Ulema... Who Taught In Schools… Were Granted Large Estates… [But Jurists] … Prescribed That The Teachers Of Koran And Other Religious Books Are Not Permitted To Receive Any Salary"
"When we look at the history of Islamic law, we come across several instances where with the change in the context, necessary changes were effected in the provisions of the law. There are several examples:
"i) Khiraj is a tax that farmers had to pay. Its rates were fixed in the time of Hazrat Umar (the second caliph of Islam), but later Imam Abu Yusuf reduced these rates with the change of times.
"ii) Imam Shafi'i is one of the four Imams whose names are associated with the four Sunni schools of jurisprudence. He was an erudite scholar and travelled extensively. As a result of his travels he gave up several of his old beliefs (known as Iraqi Mazhab) and adopted new beliefs known as Egyptian School (Misri Mazhab).
"iii) During the initial days of Muslim rule, the Ulema (clerics) who taught in schools (madrassas) were granted large estates and stipends by the rulers. [Leading jurist] Imam Abu Hanifa and his colleagues took cognizance of this fact and prescribed that the teachers of Koran and other religious books are not permitted to receive any salary for their teaching job. Later, when grants and stipends were suspended, the Ulema of standing argued that this rule is no longer enforceable due to change in circumstances and issued a necessary fatwa [decree] to remove the ban imposed by Imam Abu Hanifa.
"The principle of changing laws due to the changing times and era is given full recognition in Islamic jurisprudence. But the examples cited above relate to laws based on the opinions and fatwas of juri-consults (Ulema and Muftis [those who deliver fatwas])."
Changes In Islamic Law Ordered By Second Caliph Umar: "[Muhammad] Used To Provide Financial Assistance To The New Converts … Umar Stopped The Payment"; "In Islamic Law, The Hand Of The Thief Is Cut Off… As Provided In The Koran… But Hazrat Umar, During The Time Of Famine, Had Suspended This Punishment"
"In addition to this, there are laws which are based on the provisions of the Koran and prophetic traditions. Since the Koran and prophetic traditions are the primary sources, it is believed that any law based on these two sources is unalterable.
"However, we have several documented instances in history, particularly during the reign of second Caliph Hazrat Umar, when changes were made in the laws based on the Koran and prophetic traditions. Famous Muslim scholar Shah Waliullah, in his book Fiqha-e-Umar, has discussed this subject in detail, and some of the cases he has cited are given below:
"i) There is a clear provision in the Koran about charity (Sadaqah): 'Alms are for the poor and the needy, and those employed to administer the (funds); for those whose hearts have been (recently) reconciled (to truth); for those in bondage and in debt; in the cause of Allah; and for the wayfarer: (thus is it) ordained by Allah, and Allah is full of knowledge and wisdom.' (Koran 9.60)
"As stated in the above verse, the Prophet [Muhammad] himself used to provide financial assistance to the new converts of Islam. Islamic commentator Imam Behiqui writes that in spite of this explicit provision of the Koran, Hazrat Umar stopped the payment and said that the prophet provided this financial assistance to help you to stand by Islam at a time that it was being attacked and persecuted. But now Islam is strong and there is no fear of persecution, and therefore there is no need to continue these payments.
"ii) According to Sahih Muslim (a compilation of prophetic traditions), Abu al-Sahba said to Ibn Abbas: 'Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one [necessitating the pronouncing of two more] during the lifetime of Allah's Messenger … and Abu Bakr [the first caliph]. He said: It was in fact so, but when during the caliphate of Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath).' – Sahih Muslim Book 009, Hadith Number 3493
"Considering the conditions and requirements of his time, Hazrat Umar implemented the views he deemed fit, but it is also true that a good number of Ulema did not agree with this view and even now in several branches of Islamic law, the three divorces pronounced in one sitting are treated as one. Sheikh Ahmed Mohammad Shakir, in his book Nizam-e-Talaq fi Islam, wrote that this decision of Hazrat Umar was based on the political exigencies of the time.
"iii) In Islamic law, the hand of the thief is cut off as punishment, as provided in the Koran: 'as to the thief, male or female, cut off his or her hands: a punishment by way of example from Allah for their crime.' (Koran 5.38)
"Prophet Mohammad had himself given this punishment for theft under this provision, but Hazrat Umar, during the time of famine, had suspended this punishment in the public interest. And this was widely accepted.
"iv) According to Islamic law, if an unmarried person commits adultery, then he is punished with 100 lashes and is banished for one year from that place. It is reported about Hazrat Umar that when he banished Rabia bin Umaiya, he went and joined the Roman forces that were fighting the Muslims at the time. On this, Hazrat Umar said: 'from now onwards I will not banish any person from the city.' Hazrat Umar had effected this change in the rule in the interest of the state as the times and context had changed greatly."
"Islamic Law Stipulates The Provision Of 'Khoon Baha'; According To This The Murderer Or The People Of His Tribe Were Required To Give A Specific Amount To The Family Of The Murdered; But Hazrat Umar Changed This Provision"
"v) Islamic law gives authority to the ruler to decide the punishment if there are no clear provisions in the law. But in one hadith [saying of Prophet Muhammad] it is clarified that in such cases, the punishment should not exceed 10 lashes. But Hazrat Umar punished a man, who had made a fake seal of the state treasury, with 100 lashes. Imam Malik, the first compiler of hadith, said that the punishment of 10 lashes was specific to the times of Prophet Mohammad and it is not applicable to later times.
"vi) In cases of murder, Islamic law stipulates the provision of 'khoon baha [blood money].' According to this the murderer or the people of his tribe were required to give a specific amount to the family of the murdered. But Hazrat Umar changed this provision. The reason was that when he organized the government and the army for the first time, the collective power shifted from the tribes to the government.
"Imam Sarkhasi, while praising this decision, said it cannot be said that Hazrat Umar's decision deviated from the traditions of Prophet Mohammad. Actually, it was in accordance with the same tradition because he knew that Prophet Mohammad had devolved this responsibility on the tribes, as at that time, they were the basic units of governance and power. But with the creation of the army, the power shifted to the armed forces and many a time the soldiers fought against their own tribe. On the other hand, Imam Shafi'i rejected this logic saying it was against the Prophet's traditions.
"One thing is clear from this argument: that in Islamic tradition, the law is not a rigid institution but is very sensitive to the prevailing context. Historically, it can be said that Islamic law has displayed dynamic elasticity that it can positively face the demands and challenges of the changing times.
"In this context, the argument given by [Indian Muslim reformer] Sir Syed Ahmad Khan (1817-1898) is very interesting and lucid. According to him, the Koran is the word of God and everything that we see in the world is the work of God. He said it is impossible to imagine any contradiction between divine word and divine work. If we perceive any contradiction, then it means that we have failed to understand the word of God. In such cases, we need to review our own understanding of the word of God and strive for a meaning that will establish total harmony between the two.
"The Koran appreciates the endeavor for establishing harmony and finding a solution to new circumstances and challenges and says, 'And those who strive in Our (cause) – We will certainly guide them to our Paths: For Verily Allah is with those who do right (Koran 29.69)"
[1] Tehelkahindi.com (India), February 18, 2013 and Tehelka.com, accessed February 28, 2013. The original English of the article has been mildly edited for clarity and standardization.
