Flexibility of the Islamic Legal System

By: Dr. Ahmed Vaezi
Cambridge University, UK
The precise criticism introduced by this argument against the concept of an “Islamic state”, when we are confined to the juridical aspect, is that the Islamic legal system is incapable of coping with social transformations. Hence, because it is inflexible and unable to meet the juridical requirements of new circumstances, it cannot possibly satisfy the legal demands of human society.
In order to efficiently cope with the various societal relationships it will inevitably encounter, every legal system prerequires the existence of flexible elements in its methodology and basic foundations. Although the Islamic legal system does not contain these factors, it is essential that we realize that it has aspects that provide it with the capacity to meet and fulfil all the juridical requirements presented by the two aforementioned categories of social change.
The Islamic legal system is fully equipped to deal with the first category of social changes. Even though the historical advent of Islam occurred during a specific time and in a specific place, it is quite reasonable to extrapolate a universal, ahistorical and timeless legal framework for different aspects of social relationships. Many legal aspects of social alterations can, in fact, remain stable in spite of their formal changes. This enables Islamic law (Shari’ah) to form a general juridical framework for the various categories of social associations. In reference to different sections of Islamic law, there exist a selection of unchanging, absolute and general rules that, at any time and place, all Muslims are obliged to respect; they are required to harmonize their public and private relationships with these rules. For example, in commercial affairs there are some general rules as follows:
It is incumbent upon believers to fulfil their contracts and obligations:
O you who believe! Fulfil the obligations. [Chapter 5, Verse 1]
Some types of contracts and commercial agreements are prohibited because they include unlawful profit such as usury:
Allah has allowed trading and forbidden usury. [Chapter 2, Verse 275]
Lawful commercial and financial contracts and covenants must fulfil some general conditions such as mutual consent without coercion and must not be subject to false methods of attaining wealth, for example, gambling:
O you who believe! Do not devour your property among yourselves falsely, except that it be trading by your mutual consent. [Chapter 4, Verse 29]
These examples of obligations, prohibitions and conditions concerning one aspect of social life, even though they do not embrace all the Islamic edicts in this field, help us to confront developing models of contracts. New forms of contracts, whether they are altered versions of familiar and prevailing models or entirely original ideas without previous record, can be categorized as either lawful or unlawful according to these three principals and so on. For instance, “insurance” is an example of an entirely new contract, while purchasing books via an online bookstore is merely a new method of trading which, although formally different, is a continuation of a particular category of business. When all these new forms of contracts adopt and fulfil the framework that has been drawn by Shari’ah, they are considered lawful.
The other important aspect concerning the flexibility of Islamic law emerges when we take into consideration the role of covenant and promise in this context. Some verses of the Qur’an order Muslims to fulfil their promises when they enter into a covenant or agreement:
And fulfil the promise, surely every promise shall be questioned about. [Chapter 17, Verse 34]
This Islamic principle enables an Islamic state to enter into international conventions, in order to make use of their advantages, even though some of these conventions are concerned with completely new forms of social relationships, such as maritime laws or laws governing airlines and international trade, of which there is no previous record in the Shari’ah.
The doctrine of “Ijtihad”, which is the deduction of laws through reference to Islamic sources, enables a qualified Jurist (faqih) to deduce responses to both old and new questions. Every qualified faqih is free to issue new decrees with regards to subjects that have no previous record amongst other Imami jurists; thereby providing the Islamic legal system with a high degree of flexibility, which enables it to confront new situations and circumstances. This potential is reinforced in view of jurists who subscribe to a doctrine that advocates the absolute guardianship of the well-qualified faqih (Wilayat-a-mutlaqih). This doctrine insists that the trustworthy jurist, who is responsible for Muslim society, has the right to legislate according to specific conditions. This subject will be discussed further in the next chapter.

Rational Management versus Juristic Management
Misconceptions surrounding the implementation of Shari’ah and the role of fiqh (Islamic jurisprudence) in governing a state and it’s society, have given rise to two opposing groups, who erroneously come to the conclusion that the Islamic method of governance is completely incompatible with “rational management”, which prevails in most modern states. This group is divided into two categories; the first of which insists that Muslims in the modern world must submit to the organization of their economic, political, social and cultural affairs through rational and technical management. In this model of regulation, the human intellect, technology and the sciences have authority, while religion remains separate from worldly affairs. Therefore all public decisions and the organizing of the fundamental structures of society are fulfilled according to the rational form of authority.
The second group, however, advocates the total authority of religion and attempts to organize social affairs by presenting absolute “juristic management”. This model of management, according to them, ignores the role of humanistic sources of knowledge and instead insists that the solution to all problems must emanate solely from Islamic jurisprudence (fiqh). In other words, this school of thought endeavours to replace rationality and reference to scientific means, with religion and purely juristic solutions.
It was indicated previously that this misleading interpretation for the role of Islamic jurisprudence with regards to social management and the making of political or economic decisions, arises from a misunderstanding of the term “religious state” and “religious social order”. This misconception of a religious society and state grants a foothold to the critics who wish to portray the Islamic state as backward and ignorant of the demands of the contemporary world and who depict Islam as a system that denies human knowledge, rationality and progress.
Adopting the Islamic ideology and applying its laws and aims in order to harmonize different aspects of life is one thing, and ignorance of human knowledge and rationality is another. Drawing such a sharp and distinctive line between juridical and rational management is purely fictitious, as it overlooks any possible cooperation between these two methods, while incorrectly assuming that a religious state’s model of government does not overlap with that of a non- religious state’s in any way, shape or form (When in fact all states are burdened with similar responsibilities). Consequently, this third model would enjoy the advantages of both methods of management and combine rationality with respect to the ultimate authority of religion. The unusual, and irrationally narrow distinction between the two models of management, fails to provide any definite reason to suppose that the integration of religious authority and rationality is either impossible or incompatible. According to the history of Islamic thought, the Shi’a and Mutazali schools have always believed in rationalism. They endorse the role of the human intellect as a significant source of religious knowledge alongside Islamic evidence (Qur’an and hadith).
Rationality is included with Islamic sources and reasoning is taken into account as a part of religious knowledge.
It is necessary to emphasize that organizing social relationships, in its full scope, involves many facets. These include legislation, politics and policymaking as well as industrial-economic planning, social services and education. It is incorrect to suppose that, under an Islamic government, these functions and tasks would be undertaken exclusively by jurists and that all types of social, economic and cultural difficulties would be resolvable by jurisprudence.
In fact, the fundamental distinction between an Islamic state and a secular one should be based on the acceptance or denial of the authority of Islam in social affairs, rather than the denial of rationality and scientific knowledge. An Islamic authority would address the needs of a society according to the criteria laid down by Islam; the extent to which jurisprudence and Shari’ah influence this depends on the depth to which Islam has defined the subject matter. For instance, the role of Shari’ah is greater in legislation than in policy making or international politics. The various elements of an Islamic government must harmonize and adapt their functions, policies and decisions to the contents of Islam, though they are able to employ their reasoning and scientific knowledge wherever it is required.
In conclusion, the allegation that Islam is somehow unable to cope with social progress or changes to various aspects of human existence is false. Islam cannot be confined to a specific time or set of circumstances, as it has within it the capacity to guide humanity towards happiness at all times. However, Islam’s ability to adapt to the demands of various social formations and situations should not be taken to mean that Islam has a passive attitude towards alternative lifestyles. It is illogical to assume that every kind of cultural, social or economic relationship can be universally endorsed by Islam, for it has timeless rules, values and objectives that disagree with certain types of associations and lifestyles. This approach is not the product of essential links to a specific model of social formation or a particular social order. Rather, it is an active and dynamic attitude that emerges from a set of unchanging rules and principals that are not restricted to a specific age or generation.