... Allama Iqbal's book is definitely worth a read and I will do so soon. Let me read it and get back to you on the topic.
Regards.
Iqbal said:
" ... I have no doubt that a deeper study of the enormous legal literature of Islam is sure to rid the modern critic of the superficial opinion that the Law of Islam is stationary and incapable of development.
Unfortunately, the conservative Muslim public of this country is not yet quite ready for a critical discussion of Fiqh, which, if undertaken, is likely to displease most people, and raise sectarian controversies; yet I venture to offer a few remarks on the point before us.
1) In the first place, we should bear in mind that from the earliest times, practically up to the rise of the Abbasids, there was no written law of Islam apart from the Qur’an.
2) Secondly, it is worthy of note that from about the middle of the first century up to the beginning of the fourth not less than nineteen schools of law and legal opinion appeared in Islam.
This fact alone is sufficient to show how incessantly our early doctors of law worked in order to meet the necessities of a growing civilization. With the expansion of conquest and the consequent widening of the outlook of Islam these early legists had to take a wider view of things, and to study local conditions of life and habits of new peoples that came within the fold of Islam. A careful study of the various schools of legal opinion, in the light of contemporary social and political history, reveals that they gradually passed from the deductive to the inductive attitude in their efforts at interpretation
3)Thirdly, when we study the four accepted sources of Muhammadan Law and the controversies which they invoked, the supposed rigidity of our recognized schools evaporates and the possibility of a further evolution becomes perfectly clear. Let us briefly discuss these sources.
(a) The Qur’an. The primary source of the Law of Islam is the Qur’an. The Qur’an, however, is not a legal code. Its main purpose, as I have said before, is to awaken in man the higher consciousness of his relation with God and the universe.
No doubt, the Qur’an does lay down a few general principles and rules of a legal nature, especially relating to the family
– the ultimate basis of social life. But why are these rules made part of a revelation the ultimate aim of which is man’s higher life? The answer to this question is furnished by the history of Christianity which appeared as a powerful reaction against the spirit of legality manifested in Judaism. By setting up an ideal of other-worldliness it no doubt did succeed in spiritualizing life, but its individualism could see no spiritual value in the complexity of human social relations. “Primitive Christianity”, says Naumann in his
Briefe über Religion, “attached no value to the preservation of the State, law, organization, production. It simply does not reflect on the conditions of human society.” And Naumann concludes: “Hence we either dare to aim at being without a state, and thus throwing ourselves deliberately into the arms of anarchy, or we decide to possess, alongside of our religious creed, a political creed as well.”
Thus the Qur’an considers it necessary to unite religion and state, ethics and politics in a single revelation much in the same way as Plato does in his
Republic....
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(b) The Hadīth. The second great source of Muhammadan Law is the traditions of the Holy Prophet. These have been the subject of great discussion both in ancient and modern times. Among their modern critics Professor Goldziher has subjected them to a searching examination in the light of modern canons of historical criticism, and arrives at the conclusion that they are, on the whole, untrustworthy!
Another European writer, after examining the Muslim methods of determining the genuineness of a tradition, and pointing out the theoretical possibilities of error, arrives at the following conclusion:
It must be said in conclusion that the preceding considerations represent only theoretical possibilities and that the question whether and how far these possibilities have become actualities is largely a matter of how far the actual circumstances offered inducements for making use of the possibilities. Doubtless, the latter, relatively speaking, were few and affected only a small proportion of the entire
sunnah. It may therefore be said that . . . for the most part the collections of
sunnah considered by the Moslems as canonical are genuine records of the rise and early growth of Islam (
Mohammedan Theories of Finance).
For our present purposes, however, we must distinguish traditions of a purely legal import from those which are of a non-legal character. With regard to the former, there arises a very important question as to how far they embody the pre-Islamic usages of Arabia which were in some cases left intact, and in others modified by the Prophet. It is difficult to make this discovery, for our early writers do not always refer to pre-Islamic usages. Nor is it possible to discover that usages, left intact by express or tacit approval of the Prophet, were intended to be universal in their application. Shāh Wall Allāh has a very illuminating discussion on the point. I reproduce here the substance of his view. The prophetic method of teaching, according to Shāh Wall Allāh, is that, generally speaking, the law revealed by a prophet takes especial notice of the habits, ways, and peculiarities of the people to whom he is specifically sent. The prophet who aims at all-embracing principles, however, can neither reveal different principles for different peoples, nor leaves them to work out their own rules of conduct. His method is to train one particular people, and to use them as a nucleus for the building up of a universal Sharī‘ah. In doing so he accentuates the principles underlying the social life of all mankind, and applies them to concrete cases in the light of the specific habits of the people immediately before him. The Sharī‘ah values (
Ahkām) resulting from this application (e.g. rules relating to penalties for crimes) are in a sense specific to that people; and since their observance is not an end in itself they cannot be strictly enforced in the case of future generations.
It was perhaps in view of this that
Abū Hanīfah, who had a keen insight into the universal character of Islam, made practically no use of these traditions. The fact that he introduced the principle of
Istihsān, i.e. juristic preference, which necessitates a careful study of actual conditions in legal thinking, throws further light on the motives which determined his attitude towards this source of Muhammadan Law. It is said that Abū Hanīfah made no use of traditions because there were no regular collections in his day. In the first place, it is not true to say that there were no collections in his day, as the collections of ‘Abd al-Mālik and Zuhrī were made not less than thirty years before the death of Abū Hanīfah. But even if we suppose that these collections never reached him, or that they did not contain traditions of a legal import, Abū Hanīfah, like Mālik and Ahmad Ibn Hanbal after him, could have easily made his own collection if he had deemed such a thing necessary. On the whole, then,
the attitude of Abū Hanīfah towards the traditions of a purely legal import is to my mind perfectly sound; and if modern Liberalism considers it safer not to make any indiscriminate use of them as a source of law, it will be only following one of the greatest exponents of Muhammadan Law in Sunnī Islam. It is, however, impossible to deny the fact that the traditionists, by insisting on the value of the concrete case as against the tendency to abstract thinking in law, have done the greatest service to the Law of Islam. And a further intelligent study of the literature of traditions, if used as indicative of the spirit in which the Prophet himself interpreted his Revelation, may still be of great help in understanding the life-value of the legal principles enunciated in the Qur’an. A complete grasp of their life-value alone can equip us in our endeavour to reinterpret the foundational principles.
http://www.allamaiqbal.com/works/prose/english/reconstruction/
