Shari’ah and quest for legal pluralism (3)

Photo: icna

Photo: icna


Tariq Ramadan, a distinguished scholar of Contemporary Islamic Studies at Oxford University, writes in his ground breaking work – Western Muslims and the Future of Islam – that “In the West, the idea of Shari’ah calls up all the darkest images of Islam….It has reached the extent that many Muslim intellectuals do not dare even to refer to the concept for fear of frightening people or arousing suspicion of all their work by the mere mention of the word.”

Yet Marcel Boisard stated in his published article in International Journal of Middle East Studies in 1980 that “It was above all the very high ethical standard of Islamic law that impressed the medieval West and provoked the development of a more refined legal thinking. This aspect is undoubtedly the most durable merit of Muslim influence, as illustrated by the administration of justice. Until the Crusades, legal procedure in the West consisted of “God’s judgments” by boiling water or by duel, or by “ordeal” during which people were burnt with red-hot irons or boiling oil and, if they survived, declared “not guilty.”

In contrast, we have only to quote the instructions given by Caliph Omar in the seventh century to the Muslim judges to show what a chasm separated the two conceptions: “Only decide on the basis of proof, be kind to the weak so that they can express themselves freely and without fear, deal on an equal footing with litigants by trying to reconcile them.”In fact, Islam under the Khilafah System (Islamic Caliphate) was renowned for its principles which exemplified justice, respect for law, equality, and the rule of law.

Unarguably, Shari’ah law contributed to the development of English Common law and International law. Count Ostorog, a French jurist observed that Islamic thinkers “expounded a doctrine of toleration of non-Moslem creeds so liberal that our West had to wait a thousand years before seeing equivalent principles adopted.” Contrary to the popular view in Western legal scholarship, which often refers to the 16th/17th-century Dutch jurist, Hugo Grotius (1583-1645), as the “father of international law”, Islamic legal scholarship identifies Muhammad Al-Shaybani as having preceded Hugo Grotius by some eight centuries with the compilation and systemization of the rules of Islamic International law under a specialized subject area of Islamic law termed al-Siyar, which covers the laws of war and peace according to the Shari’ah. Muhammad Al-Shaybani dealt with both public international law as well as private international law and formulated the code by which war is conducted and how its participants are treated (jus in bello) and the factors that warranted war (jus ad bellum). These tenets were eventually codified in the Geneva Convention.

Al-Shaybani derived his inspiration from the Glorious Quran, Hadiths and teaching of rightly guided Caliphs. In the early 7th century, the first Caliph, Abu-Bakr (RA), whilst instructing his Muslim army, laid down the following rules concerning warfare: “Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy’s flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.”

Again, the Glorious Quran declared: O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: For Allah can best protect both (Q4:135). This verse was posted on Harvard University’s Words of JusticeMarble in 2013 alongside St. Augustine and Magna Carta, describing the verse as one of thegreatest expressions for justice in history.

Reviewing one of Al-Shaybani’s main works on the subject in 1827, Joseph Freiherr von Hammer-Purgstall, a 18th/19th –century Austrian diplomat and pioneer orientalist, described him as the Hugo Grotius of the Muslims. In a more recent work, Christopher Weeramantry, a former judge and Vice President of the International Court of Justice (ICJ), identified Al-Shaybani as the author of the most detailed early treatise on international law, observing that al-Siyar was a precursor for the development of modern international law and that Hugo Grotius’ work on international law might have been influence by earlier Islamic scholarship, including the works of Al-Shaybani, on the subject.

This, unarguably, makes Al-Shaybani the “grandfather of international law.” He was a great 8th/9th-century Islamic law jurist and the most acclaimed contributor of his time to the systemization of the rules of international law from an Islamic legal perspective. His writings on the subject continue to influence Islamic legal thinking and scholarship on international law up to modern times. Also his juristic works continue to serve as primary jurisprudential authority of the Hanafi School and influence some important jurisprudential work of the Maliki School, two schools of law followed in a large part of the Muslim world today (see The Oxford Handbook of the History of International Law, edited by Bardo Fassbender, ‎Anne Peters – 2012). Therefore, it is no surprise that in recent years, ICJ judges have turned to Islamic law in their separate (concurring or dissenting) opinions.

Above all, Archbishop Williams’ remarks at the end of the lecture referred to a suggestion by a Jewish jurist that there might be room for “overlapping jurisdictions” in which”individuals might choose in certain limited areas whether to seek justice under one system or another.” He concludes his lecture with the comment: “if we are to think intelligently about the relations between Islam and British law, we need a fair amount of ‘deconstruction’ of crude oppositions and mythologies, whether of the nature of Shari’ah or the nature of the Enlighten

Obviously, the burden of deconstruction of crude oppositions and mythologies associated with Shari’ah in Yorubaland lie with the Muslim Ummah in the region through education and public enlightenments.

Engr. Dauda Olayinka Ayanda (MNSE), wrote from Ibadan. 

No Comments yet