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-Shariam
 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.


 *The text of Dr. Yamani's speech was published in Pakistan Link on February
5,
 1999
  >>

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