Dynamics of Islamic Approach
While the Qur’an and the Sunnah insist on use of ijtihad and achieving excellence, the secularized elite, unaware of this dynamic Islamic approach, often voice their unfounded fears about the Shari'ah and its implementation as introduction of centuries old law and fiqh.
The Qur’an and the Sunnah welcome differences of view, based on reason, logic and facts, in all areas of human life: 'aqi- dah (conviction), 'ibadat (devotions, worship), mu'amalat (transactions, dealings) and 'uqubat (penalties and punishments). It, however, does not allow distortion and concealment of truth.
Intellectual honesty is one of the basic principles in Islamic scholarship. Tampering with truth is seriously condemned by Islam. Based on analysis one may venture to disagree with certain aspects of the given knowledge, even legal formulations; but to follow a Eurocentric worldview is to succumb to a neo-colonialist interpretation of culture and its values. It is taqlid (imitation) of another culture, primarily because it is dominant, and not because it has proved a greater blessing for humans. Islam holds such a mind-set as poor and morally dishonest — a reflection of a dogmatic or jahili approach. There is also an inherent contradiction in the modernist position: on the one hand, they claim that the Qur’an is divine; yet in the same breath, they suggest that several of its legislations like punishment for theft, defamation and adultery are outdated, even “barbaric.”
Those who like to see secular common law — a leftover of the British colonialism — think it provides better protection to the rights of the oppressed gender. For example:
Before this ordinance (i.e. Enforcement of Hudood 1979), the law applicable was the Pakistan Penal Code 1898. Under this law fornication was not a crime. That is, wilful sex between a man and a woman who were both single was not considered a criminal act and was not punishable.
Adultery was essentially an offense against the husband. Under the Penal Code, it was a criminal offense only when committed by a man without the connivance of the husband of the female involved. When the husband allowed another man to have sexual intercourse with his wife, and the wife was willing, adultery was not punishable.
Since the British, who introduced the Penal Code (I860), as opposed to the Qur’an and Sunnah, did not regard adultery (with the husband’s consent) an offense, the supporters of the Eurocentric view of law feel uncomfortable with the Shari'ah. This also makes them think that the Code given by the colonizer is “modern” while the Qur’anic approach is “primitive.”
The supporters of the colonial legal system use common law as the criterion for legitimacy of any law. While claiming a “dogmatic” belief in the Qur’an, if not in the Sunnah, they find it difficult to accept the Shari'ah injunctions as valid to modern times.
Insisting on the women’s right to commit adultery, as recognized in the Penal Code of 1898, they, without any hesitation, also accept the philosophy behind this legislation. Common law in this respect assumes that a legal wife is a property of her husband. If the legal husband gives consent to a person to use this property, it is not adultery. But if a wife “enjoys this human right” without her husband’s consent, she commits adultery! The “feminist” supporters of secular common law fail to see in such legislation the presence of outrageous male chauvinism, and also the assumption of woman being a chattel owned by man.
Since the Shari'ah is not gender based or a biased legal system, it regards this “authority” of a husband on his wife as “exploitation,” inhuman and immoral.
However, Shari'ah has no problem with the adaptation of a law in agreement with its own philosophy. Adaptations allow room for evolution in a legal system. Such adaptations never cause any problem to the ’aqidah of a Muslim, rather they strengthen one’s conviction in the universality of the Shari'ah.
That the Islamization of society and state is tantamount to the rise and return of “fundamentalism” is a proposition questioned seriously by world statesmen like Dr Mahathir Muhammad, when he candidly mentioned, that if fundamentalism means adherence to the fundamentals of Islam, then every Muslim is a fundamentalist. It is also being questioned by a new generation of Western students of Islam like John Esposito" and Charles Kennedy.
Methodologically, to equate different models of Islamization (like the Sudan, Pakistan, Iran, Malaysia, or Algeria) in a monolithic way is academically unfair. These models, while sharing common concerns, represent different approaches to Islamization, reflecting creative responses to different politico-social contexts. Deeper analysis reveals even differences in priorities and strategies for social change, acceptable within the matrix of Islam. However, most discussions on Islamic resurgence and Islamization hardly differentiate between these models.
This confusion is further confounded by misgivings about the concepts of Shari'ah and fiqh. While the Qur’an insists on its being comprehensive and universal, the Shari'ah is often understood and talked about, by its critics, as a local tradition and custom assigned a normative status. Consequently, they refer to a centuries old fiqh as a “threat” to religious tolerance and liberty. The issue has been addressed by the Qur’an and the Sunnah at two different levels.
Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.