Any law, regardless of its source, that does not violate the principles of God’s law can be considered Islamic.

MANY Muslims believe that society at the time of the Prophet was a utopian ideal and that no other society could improve upon its level of justice.

They argue that implementing laws, including hudud, in the same way as the Prophet will help bring our societies closer to this ideal.

However, retired Chief Justice of Malaysia Tun Abdul Hamid Mohamad posits that we can enact laws today that fulfil the intent of Syariah better than at the time of the Prophet – and that Malaysia has already made important steps in that direction.

He cites slavery as a powerful ex­­am­ple. Slavery is not explicitly outlawed in the Quran, but the Quran and the Prophet’s injunctions en­cou­raged the freeing of slaves and promoted equality, showing that their intent was the elimination of slavery. During the time of the Prophet, eliminating slavery could not be fully accomplished. Today, however, slavery is outlawed and – in most places – eliminated.

The laws to end slavery did not originate in the Quran and did not exist at the time of the Prophet. Would we contend then that outlawing slavery is un-Islamic? Would we say that a modern Islamic state must reintroduce slavery in order to be more like society at the time of the Prophet? Is that more Islamic?

Tun Hamid asked several Muslim scholars. Not one has answered yes.

He goes on to say, “Outlawing slavery is more Islamic than tolerating it, no matter how improved slaves’ lives are. It means that our present law can be different, better and at the same time more Islamic than the law at the time of the Prophet.”

The Syariah laws in Malaysia are another example of this.

After Malaysian independence in 1957, the Federal and State constitutions provided for establishing Syariah courts. Substantive and procedural laws that were Syariah-compliant had to be drafted, but the Islamic scholars and Syariah judges were unable to produce a draft that could be enacted by Parliament and the State Legislative Assemblies.

Among other reasons, they didn’t have a clear code of law from the Islamic tradition that they could draw upon.

Tun Hamid, then a State Legal Adviser, participated in the process of drafting these laws. Instead of starting from scratch, they used the laws of the common law courts as a basis for the Syariah court laws.

They removed or substituted anything that was contrary to the Syariah, added some missing sections, and then had them enacted as laws: the Syariah Criminal Procedure Act, the Syariah Civil Procedure Act, the Syariah Evidence Act, and so on.

“A graduate in law from any common law country reading the Syariah law of procedure in Malaysia would find that he already knows at least 80% of them,” Tun Hamid explains.

“On the other hand, a graduate in Syariah might find that he knows only about 20% of them.”

These laws have become “Syariah”, but similar provisions in the common law courts continue to be perceived as “secular” or “un-Islamic”, a misconception that Tun Hamid would dearly like Malaysians to correct.

Muslim jurists have stated that whatever is not explicitly forbidden (haram) in the Quran or the Sunnah is de facto permitted (halal) – and therefore Islamic. Therefore, Tun Hamid explains, any law, regardless of its source, that does not violate the principles of God’s law can be considered Islamic. Islamic law does not need to be limited to the laws one finds in the Quran or classical books of Islamic jurisprudence.

When the sources of Islamic law did not suffice for the circumstances, Malaysia drew from common law, harmonised it with Syariah principles, and adopted it as Syariah law, thereby improving the state’s ability to administer justice in a large, complex, modern society. In doing so, Malaysia created new Syariah laws that advanced the intent of the Syariah.

Adaptation and advancement of Islamic law using such ground breaking ijtihad has always been the best part of Islamic jurisprudence. Ijtihad, which means “effort”, is the Islamic juristic term referring to the effort to understand, interpret, apply, and advance the law.

“No rule of procedure can fit all times and places,” Tun Hamid explains. “So whatever rules that were developed by traditional legal scholars, or ulama’, were rules that suited their time. Over more than one-and-a-half millennia, better rules were made to cope with new circumstances.”

Could Malaysia adapt the Islamic penal code to make it better suited for today and more Islamic than at the time of the Prophet?

Perhaps Malaysia could: Just as it did in creating the Syariah laws of the state courts, Malaysia could consider merging its common law penal code and the Islamic penal code.

The common law punishments in Malaysia enforce punishment while providing the opportunity for criminals to repent, reform and redeem themselves. By incorporating these punishments into the Islamic penal code and reserving the hudud as maximum punishment, a merged penal code could reflect a more balanced and nuanced approach to justice.

This approach would reflect the various understandings that we have explained in this series of articles, including the imperative for mercy and the discretion to consider the reasons and severity of the crime

Using ijtihad, this harmonisation would pose no conflict with Syariah, and would also advance its express intent. It could also contribute to resolving conflict in laws, filling jurisdictional gaps, and reducing religious and racial tension in Malaysian society. A new, better, more Islamic penal code might satisfy the aspirations of Muslims for a more Islamic state and find broader consensus (ijma) among Muslims and non-Muslims alike. It would be an example that other Islamic societies could emulate – societies like Nigeria, Sudan, and Pakistan, which have implemented hudud on their own and have not achieved a higher level of justice.

Can – and will – Malaysia perform this ijtihad and show other societies the way? No doubt that Malaysia boleh!

Editor’s note: This article is the final in a special series for Ramadan, a month when Muslims are urged to deepen their understanding of their faith by reading and studying the Quran. In this spirit, this series is intended to help the reader fathom what hudud is and help reduce division between faith communities on this issue.

Link:

http://www.thestar.com.my/News/Nation/2014/07/28/Hudud-with-Harmony/