The Islamic Law and·

Con8titution

By

SAYYfO ABUL A'LA MAUDUDJ

Translated and Edited by KHURSHID AHMAD

Islamic Publications (Pvt.] Ltd.:

1 alii!. Shall Atam Market~ LAHORE (Pakistan)

AUTR·ORiS PREFACE

.T. . HE firat edition oI thi. book ·w.u compiled. while I was in prison, Aa suea, uith8c could I add any thin g to the book

nor could IlI;Y auggeJtioaa .be &Ought i~ ita compila~oD.. No.~

..

the MOOU editiCD hal been prepared iD full cO·Daultation with

, .

in. and ccm.tains almolt all of my apeeOh. and articles rolating

~ the subjects of Islamic LaVol and Co-n6'titution. Mrt Khurahid

• .' : I •

Ahmad deserves my hea,rt .. felt thanks for t.he skill and ability

. .

with which be has tranalated. .nd edited the book,

I,'_ '. ." •

. A book like the present 'one, -which has not beea wzitten in the com·mon textbook· style •. ~y Dot cater to all the academic . need. :of a student of "Ialam"ic Law arid CoostitutiQn, who wants

. .

to . ·study the subjeCt· In 'all its multifarious details. but .. I do

hope, it will· prove of immense help to all th·OBO persons who

I

.. ant to study the nature of tbe Islamic State~· its theory, form

I _ •

and undar]ying principles, and who wish to understtl.ntI bow. the

ls:IaJnio Law.can us implemented in a. modern state. Today t'here &re many cou.ntri.es whose Muslim population is, a{~r attaining independence, ·naturally eagar to base its polity on those principles and traditi·ons of Islam which arc a demand of its faith and conscic-.Dce., T·be people want that the Islamic Law should be introduced· in ·their respective countries so that they may foHow a law·tQ·wh·ich they owe their honest and sincere ·allegiance. But,

nnfort1lnatoJy~ in almost all such countries the reins of power have been in the bands of those persona "rho not only did no*

The 1 &lam.ic lAw anti OO7lBtitY"oft

have even an elementary understanding of Islamic Law and Ooastitution, but had an their education and training for the run .. ning of Godlean secular states. T~erefor6 everywhere they are in a bad predicament because thoy are incapable of thinking except in terms of the nature and pa~tern of a state of tho Western secular type. They are not in a. position to wriggle themselves

. '

out of the Western modes of thinking and practice. The position'

of the Muslim masses is not very dissimilar in certain respects. No doubt they arc extrem ely eager to re .. est.ablish the Islamic

I

way of Iife and this urge oftheira is very real and sincere. Dut

tl1ey too are not clear about the nature and form of tho state

. .... .

whose establishmet ~hey. so sincerely urge, They also do not

know as' to what should they do to establish the state of their

.. '

dreams. Furthermore, We~tern tblnkere and policy .. makers whose opinions have begun to command immense importance in

. .

our timee, who are influencing most ,the destinies of the ~Iuslim

, ,

countries, and to whose opinions -w:~ too give due weight, har-

bour many a prejudice 'and suspicion about the nature and

.. . . ..

prospects of the Islamic State, I think that most of their sus-

picions and apprehensions are due to a lack of information and

understanding and not because ,of any msltce, a.nd as such they are removable. In .tho artfclee presented in this book r have made an humble attempt to serve all these sections. I wish that whatever. opinion is . formed about the Islamic State) should be . formed after o~e r.,s properly and thoroughly acquainted him-

self with its natureand .contont1 and not otherwise. The present book will, ·r hope. help .a. great deal tin understanding the variqu~ aspecte of an Islamic State. '.

I om thankful to a llt.hose persons who offered their com .. mcnts oIl: the first, edition of the book in Pakistani and foreign newspapers and journals. I have tried to benefit from their comments as much ns possible. Ldo not proposo to give ... in this preface, aryy·· rejoinder to. the 'objections particularly raised by tho W~storn reviewers Rnd pritics. But I would submit . that ,'.

: .

• •

va.t

there should be a limit to one's desire to see ovorytbing in accord with one's ownwishes. There can bo a people who mny have very basic differences with the \Vest in respect of human va Iues, ideals" cuI ture and ei viliza tion and t hoy 11 a. vo as in u ell 11- right to fashion their collective life in accordance with their own values andideals as tho West has to do aocording to i ts own. lfor a happy co .. existence, tho thru*~tillg, 0 f one's beliefs and doctrlnes on the other is as detrimental and injurious as is an honest endeavour to understand ono another's ideology in its true lights necessary and helpful.

ABUL A~l.A._ I~IAUDU])l Lahore ft~ 16th Oel o ber , 1960"

CONTENTS

,

--Why Muslims Want an Islamic State'

=-Historieal Background of Pakistan -The Ideological Problem

-The Movement for Islamjc Constitution

--About this Book

Page
••
'II .... VU
..... 1
"" .. 2
..... II
.... 16
...... 26
....... 33 PREFACE INTRODUCTION

PART I

,

ASPECTS OF ISLA!tfIC LA ~

Chapter 1 ,-The Islamic Law .... 39
,., 2~-LegisJatjon and ljlihad in Islam ..... 71
31-How to Introduce Islamic Law •
t:I In
Pakisben 1 .. II I 93
PART II
POLITICAL AND CONSTITUTIONAL
"" wW)UQSI''()P ISLA 1\1

ChaptDr 4.-Political Theory of Islam ... " 123
, :II 5 .. --Political Concepts of the Q~r"in ........ 153
, , 6.-~"'irst Pr ineiples of t"he Islamte Stato .... 201
t , 7 .. -Fundamentals of Islam""ic'Coaatitt;.tion ...... 253
J , 8~-Rights of Non .. Muslims ill t-Bbaaie Stato ·"f 273
u 9 ~·-Tl1e Problem of Electorate •• I 301
)j IO .. =-Some Constitutional Proposal, ...... 313 . . ....... Pap
. .
APPENDICES
Appendi-s I.-Dano Priaoiplea of I.Jamie Slate:
b, the. 'ulama of Paki.taa ....... 331
"I II.-tUfamiJa Am6Ddmeats to tbe B.P.C~
Report ."" ... 337
.. ,. I11.-Commenti on the Dral' Conetitlltion
(Itl-56) .. ~. 366
. , IV I-Comments on 1956 C4natitution ." . 383
u' V 41- White Paper OD the Problem of
Electorates ••• 389
. , VI.-Ab1l1 A'la Haududi : A "Biographical .
Sketoh-by 'Ae Bailor ..... 405
INDEX ..... 407 I

INTRODUCTION

ISL~M: today h p~8eiu,g tbr~ugh one .of its most oru~ia)

periods. In tho hrs·t half 01 the twentieth century, a widespread revi val of Isl~m has occurred ~ The chains of poll tiCAl servitude ha~e boon broken at JUany. pillce and oe&:-Iy eighteen Mwdim countries 11&V0 att.ined independence ·dllring the last

. two decades. Iu·tellootual and oul tUfal movements aiming at IBlam·ic reaaissence have emerged throughout the length and

brcadbh of the )Iutdim world and are g·r.dually gaining atnmgtht Although thoro have been ups and downs because of political exigoucies, tll{) overall movement for Islamic rovival hal.boon alowly wov ins ill tho upward crescendo. '1'he eutire world of

. ...

Ialam is humming wi~h a new ambition to.rehabilitate Islam and

revive its pristine.glory. Everywhere Kualims _reoD. ,the march,

MaslilDS are 011 tbe march e,ery~bere

But the new challenge to Islam also emerges from this very onward march o.f the Muslime, The course of events h~s put them on trial. It is to .. bo seen hew they. acquit themR)iv-ol of it .

..

T:ilO basic problem 'before the werld of Islam is how to re-

establish the Islamic ideology in the .w~rld ofthe.mid·twontieth . century.. Tbis problem poses & gre:lt ohalleage, becsase Islam is not it mere col locbion of dogmas ~nd rituals. It is • complete 'Way of lifo, It is tho embodiment of Divino Guidance for a11 fields of human lifo, rnay thoy be private or public, _politioal or economic, social or cultural, moral or legal And [udieial, Islam ip. an all .. ombracing ideology and the. problem that besots the Musli~ world, which Iias only rocently emerged from political s]a\",cfY ~ if'! of translating. this ideology into pr~ctice aud of reconat.rueting it.s soclo .. poli tical I ife ~ accordance u"ith it ..

l~ho movement for the introduct ion of the Islamic law and the oF-trahljalu:uont of thu Islamic State is & part and parcel of this OV.p.fld I movozuent for the re ~ ivaI and the rehabi libation of

2

The Islamic Law (lntl OOftstitulioft

Islam. Tho movement j·1J not afoot in more or less 01/cr\T Muslim

ill

country, partioularly in those countries which have recently

attained independence. Everywherepeople are presslng for the framing of an Islamic Constitution and for the introduction of the Islamic Il\W ~ Sudan. Indo nesia, Pskisten, Malaya, Somalia., etc .. all sre witnessing the same movement. The question arises why bB.8 one and theaame trend appeared in so many and so far off places' And why is tbe problem of Islamic State

becoming impo·rt~nt with the spread of political freedom 1 ~

Western obaervera and t·hoBe totally educated in. uhe

. '

Welltern tradition, often fail to understand, the phenomenon -. It

seems, therefore, advisable to cast a cursory glance over tho 0&86 of Muslims for the establishment of Islamic Sta.te.

II·

WHY MUSLIMS WANT,·A·N I·SLAMIC ST·ATE?

·The question why Mualims want an Ialamie State is ,a strange question ~ For 1ituslims should not and, as a matter of faet~ could not as )Illslims but wan t an Islamic Sta-tOt Tl1is is the only natural course for t116m. If they wanted anything· oj·;c,

, No' .' .•

thert· an explanation would perhaps be: called for; and not

in the case when they want i:t<r! , ... 7n_'~t because of a host of reasons 8"!'], explanation . to this effect has become necessary.

". .

. ' Firstly 1 the in tellectual ~nd rel igi nus baekgrou nd of the

world of Islam is very dift~erent from that of the West and ·as such it becomes difIlcuI"tt for tho We$tcrn and tho West .. oriented observors to grasp and appreciate .tile si t ua tion. It Is, therefore,

• • -r.11 .~

necessary· that the Is I a·info- ·C'oncept of religion nod the ~fu.glim·

outlook o~ .p6litic~ should be cleary understood at the very out .. set. Then alone can a better understanding of tho contcmpor .. ary' Muslito polit.ical thought be developed.

Secondly, the educated younger generatdons of the Muslnn world too have been estranged from their own cultural and int ellectua! tradition. Under the influence of \Vestorn educati on they hate imbibed the Western pohtrcal coucepts and are think ..

IntrOduction

3

. Jngof introducing them in the MusJiIil world without any regard for the Muslim tradition aa sueh.: ·And as .. through & cruel conspiracy of.circumstances, the reins . of power in many & country has passed from the hands ·of the erstwhile Imperialist powers

•

to this very class of West-oriented :M;uslims the need for Q.

precise presentation of the Islamic 'case has Inoreased manifold.

Islum holds that Allah has created the Universe and controls and govorns lt , He created roan and provided him with al l that J1S needs foJ" the progress and growth of life.. To fulfil his material needs He has endowed the world with all kinds of

. .... . .'

materlals and substances which man can· harness to his use.

To cater to his spiritual, cl;llt~u.l'a.t" and social requlrements, he

. .. . .

needs His revealed Guidance through His Prophets, It is the

Guidance which consti tu tes the religion of Islam.

. .

Life is a. unity'. It cannot be divided into water-tight com ..

, . .

partments. TIle fune tion of rel iglon Is to direct the a.ffairs of

life. Therefore ita domain is life In .its entirety ~ and not any specific asnect of i t. ~h.at is why it ~ot only gives an outlook on life and reali ty but also lays down the basic .prinoiples on which mau's relationships to his own self, to other men and society, and A1lah the Creator are to be reared. It looks upon

I .

life It its totality and provides guldance ' for every field of

aot.iv ity. The 'mission of a prophet, according to 181am J is not merely t~ ca tor to spirituel elevation. His mission i~ to purify the beliefs and ideas of man about RealitYt to purge his soul of aJ I impurities, to M~u.ken· his moral consciousness and to USe this moral force for the reconstruction of the. society and tho remoulding of tho flux of hiatory ,

.

. This has been tho mission of all the prophets of God and

Prophet. Muham mad (peacl6 be upon him) was the last of the prophets to whom God "s (}ui dance was revealed in its completcn oss and \'t h () e."; ta.h 1 j A]. od n n j don 1 ~cia.l order-a com P lote cl vi lizntion·-in accordance wi th this Guidance. It is this Guidance which is enshrined ill tho Qur9an and 8itnnakt the word of God and theexample of tho: Holy Prophet, and coustl .. tu tes the religion of Isl am.

2'14 [,_£0 ~ au Oon,ti',dion

Tho Qor'an explicitly ask. man to submit to God wit h 4- complete submisslon and to accept His Guidan(.~ in overy field of activity.. The call of.the ~r"an is :

HO ye who believe! enter into Islam wholly and follow not tho footstops of the Satan) verily' he is unto YOlI an ·onemy manifest" ~ (2: 20,,~)

The mission of the prophets, according t.o tht, t2ul,1nn js the ostablishmont of virtue and justice in accordunce wit h the

revealed guidance. .

u·'/,te verily s~·t Our messengers wit.h clear proofs, and .. revealed wi.th tJiem the Seri ptu~c and ti~~ Ba lance, (i ~O') the

. .

authol'ity to eBt&b~8h JU8tioo)~ that matooud may observe

tho rig.IlL measure ; aad He revealed ~.r:on (i.e., coercive powo.t), wherein is mighty pOW01" and (mall.Y) ~8e8 for mankind . and that Allah may know who holpeth Him and HiB messeagcrs, though unseen". (51..; ·2.5j .

. . '~He it is \Vho habh sent His messenger with the Guid-

• • I ~ • I"

. ance and religion o~ Trl1tb, th~t He ~ay l:Jlake jt .UpC6~C

over all other WAJ"S. however much idolaters may be averse" .

. '. . .... ~ .

(61 : 9)"

t, : -:I·hu~:ls].&m. w~t8 to f~bjo.n cae's entire Iife accor~g to

•• - .. I • • •

~I:J.e priD:9:jpl~ of indi vidual aud social behaviour revealed by

.G~d."4 does not :coniine itself. to the precincts of the private lifeof t.b~ ·i·ndivjdual alone. Politlos, on. the other hand, s~udies

. .1·.· .

the rela.t~:oD:ship of ~~n with t.hestabe and of man with mall. "In

] ~lam ·this too is t~·~·.~oma~~ of religion, which comprehends aH

as pee ts of Iife. . 1 sl a. in does no t ,:admi t of (t.n.)~ sepa r~ tiou bet ween religion and politic·s; i_t w~ts. to conduct politicd also in accordance with the guidauce,'· provided b~l· religicn and. to ~stl.the

•• •• • • I • 'I •

state as the serv.ant of the Lord t l"lu,· QL~I"'~n lays down ;that

Allah i~ tile Sovereign and tho Law-gi ver and ilis .r evealed Ian: mustbe adopted as ~he Iaw of thH land. According to tile Q1:1r~al1 ;

.. .

. .. ' ..

. U'.fho .commaod is for 'Done but' God: .He .hath com-

manded th~t Ye:· obey n . one but Him: that is the rjght 'pnth".

(12 : 40) . .

1 ntrodu etioft

: ... 'u

~~Vcrils, Hi~ is the Creation and His is tbe Law",

(7 : 54) ,~ J f a n v do fai 1 to (I'~ta 'bli g h an d d eci de bv w hat God ha t h

. .. ...

r ft. V ~ a fed t t h c. y n ret. h e U 11 be 1 i BV ers .... 4 • 4 •• t he un jus t ~ .... t ••• tin !

ev i l-docrs ". (5·: 44to 45,47)

Is1 am uses poli tica 1 power for the reform of the Eoeio1,y aJ:ld il()a~ not. lea ~rt it to degr-nerate into "tile. last resort of a 5(,"011 ndre I' . It. r(t thor makes the Prophet pray til 8· t the rulers be con verted to thf' rreerl and become ite S~PpOTt~·

"Say:. q my Lord ! Let my en try be by tho Gate of Trnth and Honour and likewise my exit by tho Gate of Truth and Honour ~ And grant. me from Thy presence a. rnlinf! autlH~rj"ty to aid mo". (17: 80)

J\Iaulana :\taududi, in his Tafsir., esplaina the above ,.ers~

n s fo 11ow8 :

UThn.t i~ either grant me power on earth or make any

ru lin g 8. U tho r i ty t a i1Y s ta t e, my su pport er.~ 80 that I ma.N ~ "Kith the force of the eoerci ve powers of the state, establi .. h virtue, ~rA.rli en to ev i If put an end to the sur~'ng tido of cor ..

•

ruption t V'U 19arity and sin t set at· right the disrupbion which

has en~\f lfed lif¥ and administer [ustice aecorning to 1."'- our

reveaJea law",

This is the roal meaning of the verse and this is. the inter-

pretation given by Jlt1~~a11· Ba81'i.~ Qatatla t Ibn Jari» and Ib1l K ntlii», Th is ,ien- 1s further supported by the haditl«:

" ",4" 11 a h th ron g h S tn te power pu ts an end to t.hn t w h a. t He does not eradi en te t.1~rou:,! h the Q.urianh t

. \

This 8110,,·s that reforms which Islam wants to bring about

. .

cannot be c~ rr ied out by sermons alone. Polit ical po\rcr is also

~s~ent inl to nell ievo thorn.l ~

Th ls is the a ppronch of Isla.n1. And t·110 lo~ r ca 1 consequence nr thi~ approach is t.hB,t· t he state must bo moulded on ],:la.mic 1101 ttcrns. th; s il!l. n dl ~t.:l tt} of t h o T \10. m ie f~ jth ant] eanflOt be di ~rr.?nrd~~~i. . The \V estern. concept of tho s~pttrution of l!elj giol'l

-~-------

1. Ab~r

6

from politics of secularism-is foreign to Islam andtheadoption of it would be tho very negation of the Islamic concept ~f polity.

This problem h as become very serioue with the spread of political freedom. .T n tho pa~t -. ~tu~Jjm~ were not free to fashion their polif iical Iife ao cor din g to the ir own Iikes and dislikes. They were under thA yoke of \'Vestern imperialism and hadno freedom to order their nffairs accordinz to. the Islamic

..... .

principles. But after t he attainment, of independence, they' are

free to, adopt whatever way of life they like. IfJ even after the attainment of 'trhis freedom, they do· not adopt the Islamic \\'8Y and "jnstead of enforcln g Islamic Jaw J choose to run their sta te on some other lines,' tJhis avoidance of Islam on their part would amount to no less tha.n a form of national apoetasv-c-something of which Muslims cannot conceive.

This concept of Islam, further supported bv 1 he practice of the Holy Prophet (peacebe upon him), of the Kbilajat-i-Itaskid«

and of the multitude of Muslim reformers. impels l\fuslims to strive for the establishment of Islamic State) Thif is w hv this

..

move IS spreading throughout tho world of Islam and has become

one of the most import.ant topics of our age.

. '

, .

A perusal of Islamic history. reveals that throughout the

long range of thirteen centuries, no ideal other than Islam has ever spurred Muslims to any ~Teat a·ction.. Islam is the very . breath of their life; it alone has moved them to accomplish

. .

great feats of glorY'4 j\ny con trary ideal has never caught thrir

imagination, has never movod them to sacri fice their enti rC;:II, existence, has never . won 8lly popular support amongst them.

. .

Professor Wilfred Srnit.h, \\'hile surveying tho problems of

nat.ionallsm in the Musllm wo rld4 adrui t s t h is unique pheno .. menon of Islamic history. He observes ~

1+ Here n clar Iflcati on is IH'''rhn ps . c~ 1 h.1• t for. Thl·l'll: i'-l n h{l"': ,c cl i fft.~ r enr-c hctw.~,Ln a ·!dusliln Sn t e" 0])(1 an 'I:·dau~il~ St~dC1. _~ "'\lu.~ljnl ~lntc is an;v

·~tatn wh ich is l"ul(l£\ bv )rn~ljnHi. Is lami« ,~t(\{(.oIt ·on t he ot her hanrl. i-.."

~

one \~'hieh opts to conduct itg Qffrt.ir~ in aecor dnncc \\ i t h the l"c,'cnl('cl

guidnuce of Ishun and accepts the- sov(~r€'igHt~· of AlInh tHIIl t h~ su pl'e~

, JllH.CY of His La.\ .. ·" and which devotes its rtrS·OUl·CC-'" to achlovo this end.

Introduction

'1

UNo Mualim people has evolved & national feeling that has meant a loyalty to or even concern for a community

transcending the bounds of.lsla~u <11 •

A lso that, :

~ ~ J n -the past I only Islam has provided for these people t.h is tY'I~(t of ~i sci pi ina, inspiration and energy" .2

This is a unique fes .. ture or Isla.mie history and the DlOVO of the :'tlllslim people towards the Islamic State ia the natural fune .. t ion of ~.belr history. . Any other move simply cannot succeed.

" .

Mor eover. ·the experiment of the Western countries with

.. secularism are in no way -encouraging. Separa.tion of politics from mora.li+y and religion has created more problems than it has solved r The result is that there is . sceptioism in thought., confusion in values, expediency in standards, vulgarity in behaviour cud oppcrtunism in diplcmaey, Politics has become out-and-out machia vcllian and this state of affairs has greatly impaired'[the poise nnd tranquillity of life. ~ha.t is why, in the words of a

,philosopher;f although "the modern man has °loarned teD fiy in the skies like the birds and .to swim in the oeeane Iike the flshes, but. lias failed -to learn to live ·on earth like human beings". Tha-t. is why the renowned historian, Arnold "I'oynbee is even doubting the value of secularism as an ideat. He says:

t ~ Perhaps it is j mpoaaible to attain. secular . happi ness for .t11C individual by pursuing this secular happiness as an u lt iniat.e end in' itself ; hut it is conceive ble t ha t secular IJ al':'111t:SS for the indi vidual may be .produced as au' incldcntu 1 by .. product if the iodiv idual is aiming' at something e lsc tha t is spi rl tualJy abo ve it and beyond it.. Secular hal)pin~8.8 nlay be a by .. product of trying to carr~" out the spirit ua l aims tllat aro common t.o all the higher religious ; the e~ort to take sides with what is good against ·,,·bat is eJil, and ihc ·effort to anal rr harmony witb Absolute Reality or

"'---------

1. 'VilfrC".I e. Smit·ht 'IBl~m in Moder~ lliBt~J' Princoton. 1957" P+ 77~ ~<I Ibid

..

8 "

Godt'l.

Iqbal has also very forcefully pointed out the real malaue

of the Western culture. He, says: I

"Both nationalism and atheistic sooialiBin, at least in the present state of human adjustments, must draw upon the psychological forces of b,&te~ suspioion and resentment which 'tend to impoverish' the soul of man and close up his hidden sources of spiritual energy~ Neither the tee)tniqu6 of medieval mysticism nor nationalism nor atLoist-ic social .. ism can cure tho il}~ of a despairing humanity t Sut'ely the present moment is one or great ,crisis in the history of modem culture. The modern world stanek in need of 'biological renewal. And religions, which in their ldghcr

manifestations are neither (logma nor rituaJ~ can alone ethically prepare tho modern man for the burden of the great responsibi lity which the adveneement of modern science necessarily involves, and restore to him that attitude of faith. which makes him capable of winning a personality here and retaining it hereafter.. It is only by rising to & fresh vision of his origin and future~ his whence and whither, tha t . man will eventually triumph over a society mcbivated by an inhuman competition, and a civili,+' zation which has lost its spiritual unity because of its imaer eonflfct ' of religious and 'polltiell VI lues' , .2

'In this e-ontext Iqbal's eall Will a8 ander :

, ,

uH.umanity needs three things ~da.y~-a spi'ritual in-

, ...............

I. Arnold 'I'oyr. bee. C Ari.tiun'.y among lAc Religion. ,oJ the l~·o rId,. Oxfci-d , University Press , Lond on, 'lO.5~J p. 662 (Empha.'. o'ttT.,) Speaking nt tho J amshed If o mor ia.! l1AIl, Karae!l i j Prof. Tovn h~ ~n i d :

, .

~~Religion was indis pensable for hu man bclngs, and w l thou t itt tho

ex Is tence of m.. u was not poss ible, Religion was essen t i.rl for so h .. ing:

•

the most eomplicat ed .problcms of ,trite individual and tho sociot.y. In

modern ,81!ientitio .ftd\~aUCerHcnt. ~ roligion has 8t,il1 to plu:.y' a bet tor {ual

• • I • •••• •

important role for i.he prc~ ervatton of tho petf.:!onali t y of mr c , H

Quoted in !rAe 181omi~ Reoieu»; London, Januu.ry 1900. 'P~ !'JOt

2. nlu hu mrnad Iq ba l, Re-eon".,truc £ion oj Religio';. 'l'1'Gugh~ irl I.Llml Lniore, lOJ.i1' pp~ 183-189 (Emplron. our')f'

t.orpretation of· the Uui ... erae, epiritual ama.ne1pation tit. the individual. and baaio prjn~iplee or·. universal import direct-· ing the evolution of human 800iety on • spiritual baail~~. ' B\liove me. Enrope today is the greatest hindrance in the way ofman's ethical adv~ncementt 1he ",)lu8Jim., OD the

other I land , is in.p088e88ion of these tiJtimutc ideas on the

. .,.

. basis of a. reveJ.tion.a.Let the Muslim of today appreciate

bla .. positio·n, reconstruct hie socia) life in tho light of ulti- ~ mate principlea. and evo)ve.oathat spiritu.1 demoeraoy whiob

is t.he ultimate alm of Islam 'Jl.

With this belief and this realisation, Muslims are trying to carve out their.own path and to sett by establishing a political order, on the moral principlea of Islam t an example before a world torn by Secularism, Nationalism and Communism.

. La.stly, they are .faced w~th the problem of· Communism. Communism has abaken the Weater.n world a·nd tbe spectre. is now haunting tho Mdslim East~ .Communism Iss sooi,&l philosophy, but in the last analysis, it is &n ideology whichis a product of seoularism and atheism a.nd Wllich .. emerged to fill the V8OUll~ created by the disintegrctlon of religion in the Weat •

. Poverty and social disorder there always hevo been, Commun-

.. .

ism appeared on the scene only when religion, the. hope of tho

people, was destroyed. It. il a product not mainly of poverty but essentially of materialism ~ and religion alone can meet its

challenge. R, N .. Crew ... Hunt rightly says that: ·

..

"It iSJ in the last'a.naIYsis, a body of ideas which hu

. filled the vacuum created by the breakdown of organised religion as 0. result of the increasing .seculartsceion of thought during the last three centuries, and it oaD be oom ... bated o;nly by opposing to it a conception of life based UpOD

wholly dj~ereut princi·plea".2 .

I. ·~Muhammad Iqbel, Rer-oR8truction. oj R~i;f1iou. TAought '" . 181tm1 ..

Lahore, J 91141 PP . .1 83.180 (BmpAtui.t DU'.) .

. 2. Bt.N .. Cro,,·-HuDt. 'EM TAreDrg and ·Practic, oJ Oomm,,"il'm, London, 1961, p. 8.

..

·10

. .

2"Ae 1 ,lam'c La", fJtId OoRafil"'ion

..

Doual.. ,·HYde, • former editor. 'of th:e. Daily Wo"k~r, London, .1idoraea the same analysis ... He ·writes :

, .. - 1t00mmuniam,··. ii ·not, .fin.t and foremost. a soeial or· ... PoJi.tiaal·probleril. It ia a .piritu.I. problemacd only if we ·understand.·· t~i., shal] .. we. see w.hy it haa spread in this ·.pn.rti~Ia.r···age and no other .. Its rapid ·growth would not have beenpoasfble Jn the ago with.8 faith .. Only in a pagan, fai~h1es8 age· was it possible for· ·s~cb & philosophy and way

.... .'

of life to apreeA to milliona of men .. ., u .. l

. .

I·Communism uses the very poor in . times of crisis or·

. '. .

when a revolutionary situation develops .. This is its main

.. interest in t>them .. · .Soolal ju·.tice is ·the· thing upon which ft feeds. ,It fl Dot tbe originator of Communism.tt.2 f~ The

. spread ot· pommuni~:in .n~ .O~mmuni8t Influences bas been Dlade po.lble by the spread of "rODI Ideas, wlong values, . mBg standards. Still more,. it haa been made possible by . .. :·the existen'oe ~r large.J;.llmbers of people with 0·0 staDdards, , : :····'.0 ,~ael, often aJl~but DO Ideas at all. "3

-. .. .: ffCommtinilm' j·a the expteasio~ of a' doep Spiritual iU.

. .... .. Th(jl·spre.~ .of . Communist' . influenCeoan, "in the long roo, .

~ .. only. .. i)~ .ootCftl.red by Cf,." sp_teatl 0/ tAe FaitA-t ~t' ·

. , . It~.iim:,· ·believe· that the gteatest bulwark against Oommun.. ·i1im 1, ·:r.l~~: .... r81a.~ is the faith ·and relig{on of over five bund .. : .~ ~inld~:.:·honia.n ·beings~s It i.B t~e force which has/ moved . them. fll··· .the pa.t· 'nd whioh is. the sheet-anehor of thoir present .. m8ton.~'~ .. It·i. aD., ideal-which inspires .. them and can ·move . th •.. ·· to·.·- ~tion·, effort ·a.nd saerlflee. It i~ :& social philosopby ·~bl.h< .• VrDd·8 for Justice and ·well .. being and bars a- [ust and ' .. ·.D;..9raJ.;·.·:'pr;titi~'J8:] , .. and economic Ideology of its own~8 Islam not

. .. . .: '. .. . .

. ,:, ·i~ .:. Dougi .. Hy'de·~· .f'At:. AtUIO,r.,1o OommuJli.mt London, 1951, p. 46.

. ! .. 16id.t· p. ·41t (E'mpAa..ri •. our.). . .

3~· IbU •• pt 4·0 (Bm"Aa,it o.vr,.).· ,. ·,Ibid., p, 50 (EmpluJ~·' OU1.)4

~). . See A Mullah AI .. )fas dna it ,M~hAi& ... e-Alam, Karacbi t 1938" p. 130

. 6. Prot .. Wilfred C. Smith, himself a-. ·former Soeialist~ admits in }1i.8

_. reoent beck, l,lam i~ Modam Hi._kJry ~ ~

. "Surely I:slamio··enterpris8 has baen the IDOSt serious a1ld sustained endeavour..ever· put 16.rwar.d to implement justi.ce among men ·a.nd '. until the rile of :Marsi'lm "as at! 0 t~e. largeat and most ambitious", It _ .. / .. ,. I.lam i·n Monkm.B',Jorti. 0,. oI't .. p. !Ut

. I .

~ .'

•

Inlr04f.tc'ioA

. .

only gives them an ideal to live and die for.· it also estalllishes a."'

soeia19rder in which equity~ justice and fair play reign. Such an ideology alone can cheek the onward march of Communism. The negative ideology of seeularism cannot cross the wav of t.1JP

. . .

positive movement of Communism , lfuslima Sf-a in the Islnmic

State the surest answer to Communlsm. The estnblishment 0 r

the Islamic State would not. onlv check the onward march of

..

Communism but would be a positive challenge to it. And that

i~ how Communism can be met on its own grounds.

This· is, in brief, the Muslims' case for a.n Islamic State and· herein lies it~ importance for the Muslims in ·particular and for the world at large in general,

III

HISTORICAL BAGKGROUND OF PAKISTAN

The Pakistan movement was an expression of Muslim India'e firm desire to establish an Islamic State. Tho movement was inspired by the ideology of Islam and the country was earved into existence solely to demonetrate the efficacy of the Islamio way of Iife, .

Islam came to .Indie through Muslim tradersr travellers and 8ufl8" With the spread ·of Islam, the desire to establish an Jslamio polity in the BU b-contirrent gained strength. Muslim mlers, in response to the aspirations of the Muslim masses} introduced Jslamio Law and established the Sha~air .. e .. I81am

. .

(Islamio Iqstitut,ions). Although there was monarchy and des-

potism, ~n9tl~utions ali,en to the letter and spirit of Islam, but the 84ari1ah'"\did constiiute the law of tho land and thero was no mass .. deviatl9n from Islam. This was not a very welcome situationt 'for Jst·am was not being enforced in its entirety" But there was also no movement ag'ins~ Isla.m and it was expected that through suatained effortt things would be corrected in the ' course of events. It was during the reign of Akbar that a calculated endeavour. was zqade to purge Islam from the socio ...

. political life and to evolve 8 new religion- ... a hotch-potch of

12

TAe 1, lami c Law a.nI Cou",,,,ioft

Itinduiam, Buddhism, Pag&nism and Islam-under the patron .. · age of the State-II This produceda stro~g reaotion among the people who revolted against this idca and· tho movement for the establishment of the Shari~ah emerged in full force, It was pioneered by ~halkk Ahmad oJ Sa1'hind, popularly known u JIv,ilJddid AlJ·i-Thani who propagated tho teachings of 181~m in

a systematic way, proclaimed the truth undeterred by threats, created public opinion (or social and political reforms I fought for Islam undaunted by the tempests of adversity and even suffered imprisonment in the historic G,walio(" Fort. It was as '" result of this movem·ent th&t the a nti .. Ialam l:oljry of Akba_r fizzJed out almost immediately after his death and gradually even the "L llughal emperors became Isln.m .. oriented, so mach. so that· history witness AUrangzeb who was an o.·rdent soldier of Islam

. an4. in whose reign oodifica.t ion and introduction of Ialamic law 'Was sccompliahed.

The torch whioh Mujadditl· .. 41/"I .. Thani lit w as kept burning by the later genera.tions and the movement progressed under the guidance of different leaders of thought and action. Shah Wcz" .. ullah of Delhi reconstructed the Islamic thought and laid the foundations of Islamic renaissance in the oountry. All the ~,~. formers of the nineteenth and twentieth centuries drew thelr

'. . \.

inspiration from this beacon of learning.

Shah 18mail ,9hfJ'h.;!l and SayyirJ Ahmad ShfJ.,hid waged amove- . ment for the el=Jtablishment of the Islamic State, They fought the Sikhs and the British imperialist.s and their ultimate objoetive was to establlsh Khil.7-!at ala minhaj ... t.K"~ilafat·t ... Ra8hidaA (Islamic State on the pattern of the State established by the Rightly .. quided Caliphs). In the -ord~ of ~<;ayyid Al,"~n;zd 8hahicl :

HThe only desire that spura me is that tho law revealed by the AlmightYt whioh we call the Shari'uit may La enforeed in all the l~nds and on all the pbOU1cs anti there should' remain no conflict or tussle in this respect. My objective is to, accomplish this task--this may be ac hicved through my hands or through anybody else's, What I want is.tha.t

. 1"'rOd.ction

13

this must be done. And I resort to all those means and devices which se~t'n~ to help in the &ohievement·ofthis endt1 Alth·ough Ra!lllid AAmacland hi. armiel could not succeed,

they ignit.ed a fire in the heart.s and loula or the people and tho

.Movement eonttnued oven .rtor their martyrdom.. This movement lett such indelible improslions· upon the minds of the

Indian Muslim·s that no amount of British repression could eWaoo them. The blocd-stalne at ·Balakote continued to inepire the ~ple and indeed the movemQDt hal lurvived in all its pristine

force up to the prea,nt day t ' .~~_.

. -. Bir 8411t1i~ AAmG4 Klan tried ~ strike a co~promil8 with W8Itern tboug~t but d~pite. his.aiJ;lcerity. moder~i.m eould not pin ground. Shibli Nu'maftll Abul KGZam. JlGulano M~am~md Alt. Iqbt;ll and MtJudud, all ropre.ent the /original renaissance

. :. .

~Qvement aad each one of .them gave a new impetus· to this. -

"

movement-I ·BAibli tried to inspire eoafidenee in Mu.lim culture

and. brought to light the historical role of· Islam and of the··· .

· Prophet of Ialaml Abul .Kala".. shook Baalim India from its , stupor and oalled it back to the original melsage of Islam. : .: ·~uAammad .All .. revived ~he MUslim interest in Iadisn politics,

. ItreDjthened the pan-Islamio fe·elings and ohampioned the KA,Ia!a't MDveml!11t whioh constittlt~8 the ·turning point in the modern political JlitJtory of Muslim· India. lqb~'~ through his poetry and prose, moved the Soul of the younger generations and ... insPired them to .re .. achieve the glory that is Islam. Mautludi-

· gav~ the revivaUst trends its new intellectual formula.tion aq.d

· organised the~ e forces into an &11 embracing movement.

This is the intellectual background in wbich the demand for Pakistan arose. rfha PakIstan movement was not the making of any·one individual.· !t was the natural ereseeado of hiatOry and it goes to the credit of Jqlxal and· Muhammad A~i JiHrw . ihat they grasped tho. slow ·whisper of history and piloted the

. .

~OVement on such lines that within a decade Pakistan became

. . ..

• reality" . .-

~. .lfGla.tee6 81uJh,.1~mail •. p .. :'tl qQQ~j by Ub.~h'LD R .\JJ!ot lll'hl·, 8eyyed . d.wad SkAid, Vol. I I f Labore I p~ :lda"

14

The Islamic LrJ,w and Oontditutio,,·

Tp~ idea of Pakistan owes its origin to the belief :that Muslims are u, .: nation;ll an ideologioal community, and it is a dictate or their faith to establish a, sta~e,. a society and a -culture

,

in the Jight of the principles given by the Qur'an and th:~ Sunnah~

• .' I

. Iqball while suggesting· the idea of Pakistan in his Presidential Address to the ·Annual Session of All-India Muslim League in 1930~ said that:

uffhe life of Islam 8S 0. culturalforce in this c·on·nuy very largely depends on its : centralisation in a specified

. territory, This oentralisation of themore living portion of the Muslims of 'tndia ... wi:ll eventually solve the problem of India as well as of Asia/'2

This was essential 80 .th&~ In4ian Muslim may become "entitled to full and free development on the lines of his own

. .

culture and tradition" 4''8

" 4,

1. To have an idea of how old this eoneept i,let us give a fe~. refereno6l~ (1) Al.B erun i wh 0 visited Tad o-Pakiltan Illb·contineub i Q th. ninth century writes:

~iThe Hindus entirely differ from U9 (1.8. the Mueiims).,.. iD. every

r8lpeot/~ Kitab aJ .. Hind. Tr. by s~ Sach.&u p. 17. .

i&'One might th i Ilk that they bad inten tionally changed. t·hem (i.e .. their cust~ms and ways of living) in to the oPPoBite, for OUl' CUR toms do no t resemb 19 theirs, but are the very reverae = and if ever a cus tom of theira resembles one ·of aura. it has certainly juat the cposite meaning. n (Ibid., p .. 197) .

. {:a) 8ir -Syed Ahm&d .aid in 1862 :

·'18 it. posaible that under these. circumstance. tuxJ na,ion,-the

. ,

. ~Iohammadan .. J.lld Hindua-could sit on the same throQe and remain

equal in power T lI6.t certainly not .. It is necessary that one or tbem . should conquer the other and t~ust it down. To hope that botb eould remain eq ual is to de sire. the l mpos!i bla and the inoonoei vab 18 .. "I (Qu oted by Richard Symoudt ~A.,. MCliing of Paki'''''11 London, 1961. p .. 31) ..

r

(3) 8ir l\Tilliam Hunter, ill his book TA. InditJn M~lGilmon., speaks of

.. 'I ust i 1 tJ ~ os.. c.omm uni ty,. & rae e ex hi bi t i ng oil. the ir old in wns e rtJ~l.ing of nationality/' (W. 'V. Hunter; I'M Indian. MM •• alm"".

Calcutta 19.·5 ed., pp .. 14:3.144). •

~,. ,

2. ~ruhamll.l&d Iqb&l~ SPUCASd and 81aIMnen'. 9/ Iqbal,. eo.tup·iled 1.,y "'Shamloo/~ Lallttet ]948 .. p. 18. .

3. tu«. p. lit

Inlfoduclion

ti'

..

~

Q~id .. e .. '~am 'based' his 'plea on the B&me, grounds. During

the Jinnah·Gaudhi,talks he said: '

, ..

i:'We elaun the'risht of 8~Jf .. determination as a 'nation

and Dot as a territorial unftu.l

In March 1944, while' elaboratiDg the concept of Pakistan he said:

".our bed-rook and sheet-anchor is Islam. We are one and we must move as one nation 'and then alone we shall be able to retain 'Pa'kiatanH'.2

,', In June 1945, he said:

, ,uThere is only one course opento us ; to organiee our

. . _...

nation., And it. is by our own dint of arduoue and lust&.ned

efforts, ,that we .csn create strength and 8,upport, our people not 'only to achieve our freedom and ~nd~p&nd~ce but to be a.ble to maintain it and live Bocording to IsIa~ic ideals and principles .

"Pakistan not only means freedom and independenoe but the M~slj~ Ideology which has to be preserved~ which

, '

haa come to us as a precious gift a.nd treasure &ad whioh we

hope others wIll share with U8~,·,.3

In Novembert 1945t he said:

,'''The M:usli~~ 'demand Pakistan, where they could rule acoordidg to their own code of life and aocording to their own cultural growth, tra.ditions and Islemic 1~w8 .. j1 •• j10ur religion,.' our culture and our Islamic ideals are our driving force ,to achieve our Independeace" ....

1io:' ... ,Mr. Lia.qual Ali Klan affirmed the same concept of Pakistan when, ",hile, moving' the Objectives Resolution. be said: '

UPakistan was founded because the Mu.lims of this sub-oonbinent want!d to build up th~ir lives in aooordance

, " , ..

I. Muhammad Ali JiIlDah, 'Jin.naJrGanclAi Tal/c';~ Delhi" 1944~ p. 20.

2. Muhammad Ali Jinnah. Bom. R"-,,,, ~~"ICM' cmrl Wrl"ng. oj My" JinMAi; Lahore. P'4 8.9 ..

140 16id4,. PP4 386 .. 67.

't tu«.

. .

.,;

18

rAt'l"''' r.. • .,., Qou.UtUota

_ith ~e teaohiDp 'aDd w.cIitiolLl of laWa, because tb.y

, , '

warDe4 to demon,trate to Ute world, that Jal~m' providel

, .. pan.oea to "be maD7 dieeuea whioh have crept into 'he Ufe of, humanity, ,toda," .1

TD..ia wu the real ~Doept 'of Pakistan. ' ~he above dis0U8Sion oloarly ahow8 that :

(0) Tho mov~en,t ro~ the eatabliahment of' Islamio State hae a gloriou~ background and the ltIllIlimat de~aild and aupport for ~aki8tan was & part of 'that very movem.entl:

,

(6) Tho idea behind Pakistan baa boon the eatablia_ent'

of a country w~ hlamo 8~te ud Islamio society

t could be .. tabU.heel"

I

, (c) The l~er .. of the movement. made' this very' promi86

with the' people whoMe .u~ and unbouud.ed· en,thuiasu;t for t'he demand waa wotiyaied by this '!ery I.1amic na~ure of the e.nterpri88.2

"

IV

, , .

THE ,IDEOLOGICAL PROBLEM

, ,

The real objeetive behind the oreation 'of Pakist.m.. &8 we

ha.Ye, dilQuiaed' earlier. was the establishment 'of .. 'oountry·

, ,

wherein the Ialamlo, ideology' 'could be implemented in ,ita

, ,

&&ill .. ,. :zII

- . . .

, 1~' ' CO,llStiW&l1t AIsCtlllbly of PakIstan. DebcalU_ VoL V. ,pa 3, Karab 7.,19'9

~~ 1wr8 wo ~U.Y aJ.~o qu~c,CJ 1'1'0( .. !;mlth Who in ilW book 'PHI."'" cu.em

l.lamio IJ lei".. ti~)"~ = , "

.. -In tho COlO 'of Pakiti tan t~ u.} whole nHlGft. el' e'ra 0 t the tIo t.o to i is Iijl.~ : it l", ,l'.lal~l .u.10l,lO ~Ilieh bultl~ it tog uiho r .. t~ W'jlJ'~d C. thni th,

Po_kgtan .. ,4ft.I.lamie 81a1.f; Lohore. lOM:JI PI .29 ..

In his recont buok l.lam in Moclfrn: Hi,ltJrg. he , • ..fa ;, '

... I t, 'itt 'Lh ts Ii:lIB mio natura of the state (qui t~ indo ponueh t; or j ts r or m) , that expl.iDH the 'j~you~ and dovo'Led loyalty that it. initially aeeused. , '.r he' e~ tabUs h meu tt of' J? W:t w tan was gr~e tad by i.. Mu 1:& 1i I u nl t,i zeur y , w.ftb a l''''~~naut ell~busi .. m. doapi.te tho ca.trophW terror "Lld ohao!:S

, ----ol iu early mouth.s. Indeed." without tbe staJoiD6,'and Jl)ofulo,puu.' liLted by re1iBioll::J rurvo~.. tlle' now dominiun wuuld hardly htl-v~ survived tbo c1uv~wticu,18 or iw first disordera.". W ilCrotl O. gmi~h, ,.' .:

"'T"':"":"-:-:--:o::-zr-____....._.........".~.....;' -- .,,1- ~

I.'om &11 AI oder}t lIN fij'lI t O)J. efT.'", j5. 2'12". ' -'" - ': ~ ,

r ,

<.:.' . :,~. -: .. ':" .. 1.,,..,___ ,,,. :: ~I;"~

. ~ - ,,:. -'. . . ." ... :,' :. - ", '. ... ."

. .

, •• _,. The IGfpOri ~. ,be , ... ria .. of.'~ l".OI'~ .~

" ... .'

- .'Iat 'or ,11m .objeati.n .ad lor DOtb.ioa else. The natural

dem.- o£ th~·ait .. tion .... that eJreotiv. atePa IIlOulcl have. ~_ &aid at the •• til' outlet to impleJDeot thi. ideology~ The' 'up~.r~ ad OD.operatio~ .of tho-. people who could re&lt., ' .

. pet. the GoV8I'1lmut in thi. proJ- ahollld han been enliatedjl Idaoatioo, J ..... adm.niltr.tiOa.. 00 .... aDd .1J otber lelda

- ~

.' .. ~r Dational life: .bo.llld have b~ oYerhaaled in ,he light of

, Islamic. prinoiples and to make a be,inaing. io this clireotioD; :·oon.titution.~aking should h&~ been ezpedited and eara.e.tlJr

. _rried on Iala .. ic linel. . But. unrortunately. noDe of these ~t.ep81r •• t_kent" The leadership failed to' come io grip. with the. ideological ~oblem. It could not giv •• Jead to the a.tioD iQ tliis dirOdtioD. It had fed the people on alOg.DI; bat when

! • .

.! the bo.ur· fO.r ihe i.pl~ment.tion came', it oould not deliver the

. '; good.. It w ... from this situation that the ideological oodict

, .

: arose.

'. People waited for lOme t.ime ... Bu' gradually they be,U

'. to become reatleaa.. Proteatl a.nd dam.Ddt began to pour in~ . Dil8&tilfaction and e~8Q. frll8trat!on began to moant. T~ •• II

·the ~ition. of the people, but the ~lerl on the other haud.' inatead of relpondi.t:'1 to their calli st~te4 di11y.d.llying taoiica. And •• the leadeJ1Jhip failed to solve evaD. the non-ideological problem.l •. the oonfidenoe.of the people 11'&8 .hakeD to' ita roota~ ~

. . ~. .

Their' mi~ionar1 ~eal bepn to eva~~~e-&Dd the lou or thi.

~irit haa beon' the greatut IoU which the ul:on hal 1Uffered.

. .

. ~" independlGee.

,

8Dpe~oi~1, J tho C)9Dtliot .u of • poJitiaal utue. Bat

.~ OD8'~ P"8P' b .... th ~~. aut(aee one Ind. that it .... NlI8D.ti·~, an .i·cl~lOlJioaJ.·. aDd • cul.tural collfliot' and O&D ~ . u.nderttOod.· G.nl, ,in a wider·per.~t.ive.·

.. " ',' .. .

. Aitholllb.~$be ~_t 9f.1.la. and ~h8 WeeHra. Ci,.ilization

.:be,.n,ia the' ~' .. ~Jl aeatuJ'l. it ._1'811·. cruoi~ 1IlIfe·~· .' 001, io' .ihe .. Din .... D.h '. _d. tweotleth. aeuturi.. . III ·'he •• Ji,ter : .

.. i~. 'he.polItio61 fip:IWrMOY. of &he ,Xulima ".. oa t ..

. ~,; or. K~i.;~orJd ....... ooqJllbi~ &t ", ragid pa_~, .

18.

the' .8noroaohDlenta of Western ilDperia1i8m~ Under the

.

"haltering care of imperialism·, Wo.atorn educatioa: al1d Weate.rn

t-oobnology were O~piDg into the world of IsJarn4> New id_· beg&n to fill the· air: n·ew techniques began to hold away.. Th_ thingl shook the old order to its roota. The MUlljllJ. world waa thrown into eonvulaion,

.. Two diametrically opposed reactions emerged in thil 888 of criaist One W&8 that of undiluted conservatism and the other of unbridled modernism. The conservatives sought refuge in

. .

tbe asylum of ·<;lld tr&d.itioDt The_' became rigid in their

outlook and approach. Every change, they thought. would be a ., change for the worse. So, iu their ",j tfW , the only way to 8ave the Islamic law. and culture, in that hour of chaos and eonfusion. WItS to stiok to the past stubbornly and guard the old order jealously.

The modernists, on. the other hand, were swept away. wieh the current of the tlme. ,They thought that the royal road to glory lay in the imit&tion of the W08tt . The Mllalim .reviva.l; in their view. could bo achieved only through adoptini Western technique, \Vestern law, Western education, W8ltern culture. and \Vestern modes of thought and beh .. viour, They law DO contradiction between Islam and the modern West and pleaded for the adoption of Western civilization 10 that Muslims could

<: •

also emerge. as & progressive nation.

A . 'third tre~d-tIiat of tho Renaissant Islam-had alao emerged and was gradually gaining Btrength4' Ita politic.~ and emotional manifestations were beeomlug more and more pronounoc«l but lacked. a proper intelleotual formation whioh to

. ··intonts and all purposes was givea by Iqbal and Kaududi.

After independence, . all these· three trenda became more cl rar and pronou need and the ideological oonftict w.a the product of the basic &tti tudes formed. by these . ditferent .ap.proaches to the problem. The modem.i.ta iDberited the rejDR ~.power from t~e erstwhile Britiah rtllera but thet8 people tataIJy failed. to uoder.t&hd the language of the· people. . Th~1

~ 8.i~v~ bir~h. to an. ideological. simi·.. th~ role of lI_dudi. in·,:"

/

: .... -:. . ... _ .. ...;......:I ............ .:..;..:._ .. ~ . .;. "'".:..: .. J •

. , ' -4~~ . ...,. -, ,--:~~It'., I I· .

the coDltit~tional a¢ ... politic~ -141.tq.rr pI. .. Pakiatua~ liM in . b,idging the ~i(. betweenthe~wo~~~ ~d in pyj. ol ... i~l I.I~i~ ~~o~,llt ~ ~~ fo~~~lat.aoa to: .• ~It the needB

of the mode~. lOoief;1 ~ . : .. :.. . .

. ~ _ Careful. rea~tiop ~8~~ •. t.bat, oei~~ oonHIT&ti~DI Dor

• I' • .... I I." • • • • •

moderDillD can delive~.~he.goo~l~ .

.. The conlM'r~atilt . l.pp·r.oa-chJ. "preaentod by _ ~he oriiiodu

Ulci~.l is ~~r~_I~lt~.e., ... I~.~ f~i.is . ~ . tak, no&4t of ~~e. (~t tb~t ,.life

is eve.roh."Qging. ~is~ory: .is, moving aJu,ad a~d t~e 8~i~y iJI: being moulded .into newer shapes.' New .uto.tiona ~r8 ari~nsT·--· new relations:hips ~ being formed ~&nd D~W pro~l,em8 are emergirig~ . Ii ·il. imperative to take note ot this ·oh~~ snd 800 how the· tenets··of I.lam caD be spplted to th88e ·now ·conditioDBIt

. . '

It would b8 .futile to try· to put Br·brah upon change. It· ~ould

b8 .till r more futile to ignora the change a1togeth~r· ~d do

·nothing to ·meet its demsade. The .. ~proBCh which faila tb grapple with the problema of the day is bomid to fail. It cannot but drive religion out of the tiux of lire and ooniiD.e it

to the sphere of private life. And wh~ an eatr~Dgement i. effected between religion and life, then ·even the private liCe oannot reman religion's preaerve.

Furthermore the oODlervaltive element. had. not; the full 1Jnde.rltanding of the .oonatitut4?nal .. politiOlJ, eeonomie and cultural pro blema of t~e day.. The r .. alt wu. that t~e1 oould DOt talk the IBngllage of to4ay ADd failed to 'impreal tho intelligentsia and the masles alike. They wer:e un_ble ·to give

a;1ead in the new ideological situation. ~ ~ ..

But in all faimeaa it muat. be said· that; the ooniervative elementS did reallle their weakn8l181 &Dd.' .tried ·to adopt them.elves to the movement of the Rmiaiuant IsJam.~ A new awakening had been among them and lOm.e l80tiQIlIJ from amoDS them had begun to gravitate to the 'middle eourse, They had t~eir limit.tion .. , bUt they did try 10 _jut to· the De;" .jtuatioD~

,The modernillt &pproaoht OD the other haUl hal bolD 'tin·· "_j.,~.Gre .b.llo", Qmrelliatio and ualaited t;o oar OODditio ...

'{ i. .... ,.

I!".:

. Thi •• ppro_ 'of the .,.OaUeCJ libenll ie. in faa Dot. •

reform mov.m_t~· bu.t & olo_ked departure frOID hi · ~u,

. Jaok *' aDder •• adi.q or Iel.-m. and try to i.por' aU 'beir id ••• aDd ooDoept. from the Weat.. Bllt AI 'hel.re~Dot. bold eDOUgh

. . .

to· IpIIi. 6heir ·a:UDd ope-nly aDd fraakly i tbey- Ky' kI: •• iDtain

the r ••• io terminology and twiat ita mew", to .1Gi~ ,heila ideu.· Byeo. • leadiog WOItern critio of lal •• , I'rot ••• or JOMph 8chaoht had to admit that what theee cprogreeli9W1 are driY(1II •• ia Dot Illam. bat the very antith.i. of it.. H. write. iD" NOiDt ."y:_,

"Tbe-lDetbod u_ by ~h. modernist . legislator. savours ot UDreltraioe:d' ealee~ioiB. ; "tth& 'Independent re&80DiDI' . ·that t~7 claim goei far beyond and that 1I'U praotiled.. i.~ . the ·~~,.ti~ period of.: MuJ:aammadan ·1 .... ; &07 OpiDion

. held.t lOme time i~ the past is likely to be tatea. out of

. .

iu GOD •• ud .vled .. NI arpmiDtlt On the. one hand th~'

,. moderni .. l8gillator •. are iDolined to deny.the nlfgiou

.

oharM1ter of the ~thl obapten of the -creel J." ;. on the

oiher. theY.fa apt toule.~~itrary~·foroed iDeeq,~tto_ of the Koran aad tr.ditio~ whenever 'it Illite tblir pu.rpoaa. :Materially. they are bold iDDova~n who 'want to be

• modem at all 00It8.; formally .hey tr)" to avoid the.

I6lDblal108 of interfering with _he •• ential conteD.ta- or ,he aao.red J.,,~ Their ideal. and their arga.~_. oo .. e from the ·Welt. but they do DOt. wilh to' rejeot the· '.aoied.' la~ ...

. . '

openly .. ~key hal donet-.1

We do ·not."1 ~hat all moderniat8' J~ed Ii~erity. . The .inoere· among them have been mauy. Bqt they have railed t~ rualise .that. the I.lamic ideology· is balioal17 ditrerent ftom Western 18C1l1.~ilm. ~oth' have·.riseD. out of cJitrerea.t Bituationa.·· . The appro8cb~ the ·t~oulli.t-pattern a~d the inatitutioDa.of.·$he. '. two a.re diiJet-eDt. An i~t&tioD of the W"!t, without reali.iDeita implications in the Huslim Eu' is boUDd to breed. ohaos aiad

--- -'-

1. J 08epb Sohi.obt.. 1'''' LaID, u." CmcI v.n. ... '" JI ... "", 0 .. '"_ .... _ . : - BeL. O. B .. VODOr~.bau.Dlt Uai .. ereity of CbiOAlo PrI •• ,llU. p. 8L

~~~.,,:

'''-_1 ..

-. _I

·,~h.lon~ "It .J. ··i~ , .. 0; ~Ii •• ti. ot th·.-'·. raot wUoIl

• • I .. ',I. •

.. mad. t~n "Ned or tile Dioderoiltta very,·:·muoh Akin to W.tUD

Becalari.. and the rNala .tbat their ide •• failed to mae· .,--"

. deep inroad iuto· Lhe t.hought and life or.the peo,Ie~1 ..

SecolNlly .. they do Dot reali" that the eoaditionl in the MUllidi. world today· t.re e.entiatJ,-. ditJ.ont rrom those that prev&iled in Europe during the perioda of Benaillance and ReformatiOD~ The hlatory, the traditio ... the poliiioo.l8Oial

,., .. ,

institution. and the oa.Itu,..1 1 baekgroUDd 01 &Jam. and the

modern West are totaUy different.. In .uoh a si'i=uation. how

can the secular WuteriJ., institutioDi work iD thil part of the world t

.'

TbJrdly, people here have no heart·lor the im~tation of the

We.t~ They wan.'to haY8 ~I •• and not W_te~sm. Their experience Qf the West 11&8 been bitter. The West b ..

.. .

humiliated. them·J rode rough.sh.od over them, subjugated them

and trampled their culture underfoot.:! They. ha.ve eeen Western imperialism and Western despotism in their stark nakedness and do not 'want anything .more from the West _in the. realm of values, oreed and culture. The modernist. have

. railed to evaluate this situa.tion and a.re following a course that

-

1. .. ~One major diMoulty lor the politician i, that hi. Wes tern eduoation

bu set a barrier between him and the common man.' ADd nowhere is this bMrier stronger than in the Sald ot mutual understanding of the e i In ifle&llCe or the reI i Ii on •• ' P .... i B tan i. ofl'ered \wo wid ely d i fFeren t

. interpretation of lslam. each el.imed to be propet ideological buil Qr the atate .. At one extreme the Islam of t.he politioi.ne .... d admini .. t.ratorB com ••. very elose to West.em Becul~sm~ ...... I~ Prof. Keith C all8rd~ PalMlaft,: A J-oUtiMI Hlady, ~on.don ~ IN7" p • .280.

2~ '~In the enoounter between tho world .• ~NW_tr that ~a.'9 been going {l.,Y now tor tout' or five hundred ·year., the WGrld~ not the 'V~t. is . party that. ~p to· now, has had the significant. esper-iena"-a It by not been the Weat that bas been hit by the world; ·it~i. the world that has beea hit-and hit hard by tho We9t .. j .... "h~ W.t (the world will say) l-~as been the arch-aggreesor of the modern 'imes. And certainly the world's jU~lernent on the West dO~9 laem to be jUlti&ed over a period or about four and.· half ceneuries endiDg i:a. 19&J."·

ArDold J. Toynbee, rM. World and ,At W.., (Reith Leetu.r •• ) .

~. LondOllt INa. p_p. l~· ~

·11

I one.i. ·fo~lDed to failure. ,·Not only. that noh •. ·P,liGy 18 bound-to fail but it Will.llo injure the aooJet.,.in many reIpIOU. F:or iut.nae :.

(a) Suob·. policy is incompatible with democracy. for t.he peOple·do not ooBlent to it. And if it· is to be carried o .. t .. it muat be accompanied by despotiem and high • . handeduMB.l

, .

(b) Ev~ if it i, impoaed from above, it will engender·"

lOCi a} sohiam in the society.· The relJOurees o~ the nation will be wasted in mutu .. l conflict, between the . rulers and tbe ruled and nothing great can be acbi6Ved

. .

by a people divided ag&iBlt themselves.

(e) It willlea~ to the disintegration of the community and will th.row the society in moral confusion snd : cultural convulsion .. Islam is the moral bali. of our

,. ,

society &nd culture and if it is weakened, the moral

basis of the 8o~iety will automati~lJy diaintegrate.

T~e modernists have no rea~aatiOD of all t~e.e grave problems"

"0II1't1l1y I the modernists are utterly con fused and their perspective is .totally blurred. There is DO agreement amoDg them as to what they want and bow they want to achieve that. Everybody has his own· interpretations and the ditrerences amongst them. are so aoute that DO one agreed. ideology can be formulated from ·their viewpoints.. Their mutua! disagreements

have ·weakened tbeir position beyond repair. ;

L •• tly, the, ha.ve not proved good administrators aDd polit~ciaD8 either. The administration of the oountry baa become more and more )ax. Corruption has mounted highjl

j

, The economy baa been tbroWil into ODe crisis after the other. '

Political instability· has inoreued. Even respect for law and

. .

1.. U! believe this is one t?' the r8aaODs why such Ia.w (ita Secular Law) usually hll8 to be pu t in firs t by a diet_tor. 4)1 t cannot oome in as a PlUS movement bec~U:8e the m..- aM in the old tradition"4

Dr. Pilmer 8. 0.. Northrop I ODUoru""" ott Z.lamio 0."."., -P.rinoetroD University PtMa. 19., p. 108._

'.

"_" A.

.• ,

':.J .. ,

. . .

. ihA ooDdihtloa of the eoa~try hp. dwindled·' to the lowaii .bti~ .' .

. All theae .-thingB and the way t'hat tbe, have agaiD an~ again

.: thrown to .lh. wind. the most aacred conltitutional ooDveniioIUJ

.. and mod .. of doing thinp. and tried to impoee by foree wbas

,

their people were not willing to accept through democratio

m·e&D.t-,h~.e (urtbar lowered the prestige of the ideology they

~

~D .. t.O muoh to impose. During. the last lew yean. all ty~

.. and brand. of the modernists and .1)· po.ible combinatioD8 o( tbem b.ve come to thtJ helm of tbe country's affairs &lid proved an attar f.i~a~e. Their proDounoementa might be of

. some value to a ~tion of foreign obaerve~ .. but th.e1 have utte~Jy failed to imprHB their people and sweep. them· to their aide. Moq,erniam has JOlt its shine and DavaUlt It is on the dooJine here, there and everywhere and i. bound to decline ~lIrther.l ... ~s a matter of fsct, it is no answer to the ideological challenge or our cou ntry . ·

. The creative response" to the new challenge came from

•

Islamic revivalist forces, the mainspring of whose guidance has

... .

been Abul A~la Ma1Uludi ..

The chief characteristiC. of tbis RenaiB8snt approach are .. fo1}owl : (0)

The renaiss.nce movement of I81am b .. &8 its objective· the establiahm~nt J;Jf the 181amic ,..ay of life in ita et)tirety (lqamat .. e .. din).

(b) It bu a comprehensive acbeme of reform and reconstruction before it and hal been Influencing life in every department6 It is trying to. reeonatruet the Muslim tbonght in the light of the Qur'an and 8'Unnah and to meet the intellectua.l. ohallenge of the West ..

,;.. I

I ...

I. ··'The Westernising middle elMs of Paki9~ has (.iled to evolve a aueeessfulideolORYt . It bas not. snooeeded in putting forward iD this realm anything winsome and (ea.sibie, eliciting the mtelleetual .. ssent, moral commitment,. and eonstrueblve energy of itS own member •• It has nob persl;ladecl tbe mMFt-8S that the programme 01 wh lch it hAS emb .... ked i. I ign iftean tly rela ted to thei I' Ob oonvioti OM ~ asp i ra t-l ona, Is ealoal.ted to fulfil tbeir hope.". Prof. Wilfred C. Smith, 1.,lam ,. " .... BNtoty • .". ~'t p. aaa~· .

_ ........

•

.,

+

~t I. tryiDI to ..,llft th.,iadfYic1a.laad t~ Ia hi. the oriliaa] r.l •• Jc -,irit. It is tryilll to refonit the ioaiety . aad ~bDi-ld it, on the .~fll.mio p.&tern~ It', trying to reooDat.ruot the poli~iOaI life in &ccordaDce with the priooiplel given by God and Hi. Prophet .

. ID short, it hu been trying to mould the ideu oftbe people a.a.d ,the· thought .. pattern of tbe COU D try , to . edue.te the ~H8e8 in the Islamic "'.Y of li"'e~ 'to mobilise their powers tor lOoi.l and politi .. 1 reforma. . ~pd to create gea.~1 conacioulnell to bring up • . leadership that au. carryon the task of I~I.lIlio tran8formation in the ooDDtry~

(c) It hal 'avoided the es:tremeil of oonaervatism and modernilm. It neither BufI'eD from narrow-mindedness nor from the inferiority .. complex which engenders servile imitation. The renaissance movement hal been

. ,

·moving ahead with self-eoatrol and aelf·conftdence.

It baa & clear vilion of its objecti.... It doee not

wsnt to break away from glorious r.Jamio tradition- .. It wanta to re ... eatab1iah real Islam in the world of the twentieth 06DtUry~ It present. the unaduJterated teachings of Islam in tho ·l&Dguage oC. to-day. It i. trying to apply the principle'S of Islam to the problems of our age and oI.ims that Islam is capable or meeting the cbaJJenge of every age and epooh.

(d) Ii has· been a non-sectarian movement and instead of looking upon the problems from the angle or ,thi. sector or that one, it. haa Jook.ed upon them from a broader a.ngle of vision aJ;ld haa avoi4ed .11 aectarian prejudicea~ Inatead or involviag itl8lf in petty tri'l'ialat it has been

\, devoted to the b .. io and fuDdamental problema and that is why the leaden of the various aobools of1} thought have lent their npport to it" This movem~t haa been Ratao., in the real .eale of the word ..

.. ," . (e) Ii h ... adopted dem~cratio and ooDstitutional meant to . ",.

· orgaa.iae the publio opini<m: and brjna abOu, ........ ~ .

;1:"

.....

p~re tt~ . the r~lett. to. eoneede to tbe people'l . demand. Public MUc&tion and nu.t via-lent agitatioD; .. free discussion and not civ'iJ ellsobedienee, ba110t .~d

. . ,.. . .

. not bnl1et have been its means ·of· work.

t

(I) There IlArS been a unlformlty of approach arid unity· of

thought among t,he Ieaders of this movement and on overy occasion they presented an agreed ideo]ogy.. In the Parliament! and outside it~ they presented the sa me vie\Vpoin~.- : .~he,. responded to the ~h&JIoo:g.~, of the rulers that· the ·ulama cannot give an agreed concept of Islamic State.. In 1951 the leaders of all the schools of lIusJim .tbought unnnlmoualy formulated the Basio Principles of an Is·Zamie State .. 3 In Janu·ary 1953 'again they almost unaul mouslv presented their comments "on toe Naz.imuddfn R!!port+' And in MaJ'~ 1960 they unanimously formulated thf'ir answers to the Questionnaire of tho Constitution· Commieaion.! This shows tho unity of thought and uniformity of approach of all tho revivalist groups.

(g) The platform of the renaissance movement has become the meet-ing ground 9r more or less all the sincere and enlightened sections of the country. Tho conservatives have slow J y bu t grad ua 11 y moved tow 8 rds itt a n d th{~ sincere from amongst tho modernista also are eoming

t

closer t.o 'It. It is becoming thenatural rendpzvoU8 for

the extreme groups. The conservatives are becoming lees eoneervatives, and lome of the medernists are

. .

becoming less modemist. A medium course is being

chalked out tty the renaissance forces of Islam.

--,-----

,. Reference i~ to M(ttllnntl SAnbbir A Am(~d UM1tan'~ M+P.

2"" i.~ .. the pu bl io m OY~ men t of M au l.ana M oududi and M aulnna A',h". Ali. 3. See Appendix I" .

4 See Appendix II.

.. li~. See AnsW'8r.s to the Ql18stionnn;re of the- ~Constitution Comrnlas icn by 19 Ulatna of Pakist,sn, Lahore MB)"t 1900t·

. :

The abo"e .. al,1II1 .howl that AI· fa, .. th. ideototioal problem is cono,erned. pone but· the Re~ .. nt I.l.m ean "aJiver the SOod.. Now let UI 80tt how th.,r.a~Nt popular Qlov,moat of the last twelve Y"Q-th. lDovemOllt for r.lamic Conltitution -Ire'" aJ\d developed .·od what· ~ead6rship the reoa.illance fOret\R pMvidAd in thiJ· rospeet, .

v

·MOVEMENT FOR ISLAMIC CONSTITUTION

As we have shown earlier, the present demaDd for the establishment of the r.lamic way of life has i f8 roots very' deep in the history of )J uslirn l:Qdi& from the. car Iy day. of seventeenth century down to. tbi. day. The establishment of Pakistan has only ..-lded & JlOW 'ervou~ and given &, pr .. ctical

. orientation to j t. That explain. why. the Atuslims sacrificed theJ~ hearths and homes .nd 8TeJ) their Jives for the .Iake of tllis homeland ·in. the ah .. pe of f'aki.taD ud regarded the d,wn of freedom .R tho dawn of a new lalMDio er.e.~ . Cona.equentlYt as 800n as the dust of civil disturb.Doal had Httled down and . , the storm of refugee problem had .abaided a bit, the question .

of eonatitutlon-making came to the forefront. With tbe

•

presentation nf this problem the domand for Islamic

Const itution eame uP' instantly.. Jlaulana .Shabbir Ahmad l!.$mani raised the iRSU& in the Parliamentt Maulalltl ... 4bul A·'a

JJ tTududi approached the people, obanneliaod the nation'. feelings and aspi rations as regard •. the objectiveI· of the state snd formule.ted the public domand in the form of a fourpoint formUra.. In 7ebruary~ 1948. be delivered an addresa at Law College, Lahore and presented thll demand which waS later on

moulded in the form of a resolution which was passed by the peop1e and sent to tho Goveenor-Genceel, the Prime liinister and the President or the C )nititu8nt A8aembly~ The resolution

was as follo ws : .

. ~

~'Where.. the overwhelming ~aJority or the citizenof Pak.istan firmly belie". ill. the prinoipl. of Islam ; aDd

: .... .: ... : .. ". . 1"'",,-- ..

. ...

where .. the .. tire straggle ad all;. the laeri6eee in the freedom movement for Pakiltan w~re for the sele purpo .. of .. t&bliahipilheae very Islamic principles in all fields of oar life:

Therefore now t .. fter the eatabliahment of Pakistan. wo . the Mualiml of Pakistan demaod that the Constituent Al8embly Ihou~d unequivocally declare :

(1) That the aove~gnty of the State or Pakistan Y88" in God Almighty and that the Government of Pakistan shall be only an agent ttl esecute the Sovereign'.

I

Will: .'

(2) That theJslamie Shnri'ah shall form the inviolabJe

.I

buic code for all legislation in Pakilt.an ;

(3-) That all existing or future legj~lation which may contravene, whether in letter or in spirit the Ialamic Sha,i4ah.. shall be null and void and be considered ttltra virt!i of the Constitution ; and

(4-) That the powers Qf the Government of Pakistan shall be derived from, circumscribed by and exercised within the limits of Islamie Sharifak alone,,1

AI this demand reflected the deepest aspiration of the people ~nd represented their general will, there were echoes

soon from all corners of the country and ihe demand for the acceptance of the Four Points spread like a wild fire. But the power .. drunk Wcstf"rnieed group at tho helm oi affairs refused to respond to the call of the natton, In spite of all their demo .. cratic pretensions, they did not care a jot for the voice of the.

· . people and cherished the illusion that by resort to methods of ~uppr~iOD and Impriacnment .. they _ould cool down the popu- r lar .. eathuaiasm. j[aududi. and Homo ~f hi. colleagues were put into jail. The Safety Act was moved against the 'newspapers and, [ournals .,·hic·h were very vocal in this campaign. But their hopes proved deceptive, and wit hin '" 3·ear of the initiation of this demand the Constituent -h"sse~ bly had to pass the Object-

.._ .-~----

~ .

t,j vee R680lution whlah embo4Jed" ali tbe 'pointe: for whioh ~" people of~akiatali, with MtJtuI,",~.t their helm, had ,b.la p~~ siJlS-:-& "crime" for whieh Maududi had to rot for t,WeDty

, "

months in jail under the Punjab Public .. Safet,y Ant-a I.",' 'where, ..

the imprisonment of a person il ordered hy the Provincial Exeeut ive ' without evenIettlng him to know the charge against ,bim.

, " With the passing of:ihc Objectives Resolution, the purpole

,:of the Sta.te of Pakistan was clearly defined and tllua'the first -round of the fight between the people and their rulers was won by the people. -~fter thst, e~erybody hoped quite na,turaUy that Constitution .. making would proceed smoothly.. Unfortunstely, however, there was pleuty of frustra tion still in atore

.

for the people, ,

When after waiting for an year and. half', tha Basic Principles Committee's Report came to light in September 1950t the people were snrpelsed to find that it was a gross and flagrant

, , ,

'betrayal of the Objectives Resolution.. They protested moat

, ,

vehemently again~t this betrayal. Afaud'udi toured the length

and breadth of West Pekiatan to mobilise public opinion ag8i~8t "it.] TAt Jarnia~t al Ulamfl"e~I,tam took up tllis work in B,ast Pakistan. And in a very short period such ahuge storm of

, opposition gathered on the political horizon that the report had to be withdra~"n-an event which forms a Iandmark in PakistlUl's hiBt~rYt "This meant the second defea.t for the Westerniaed ruling group ..

UDfortunBt~ly ~ the ruling group did not take the defeat ,in good grace, 'and, Instead of mending its ways~ it started a campaign of bla.c~mail and black-paint against the workers for Islam and also agaiustthe very concept of Islamic polity" It

was alleged that there was such a 8t!!vere conflict of opinions aIQong the different schools of Islamic thought that no una.nimOUI version of Islamic Constitution was ,possib1e, .and it was. therefore, utopian to talk of the establishment ,of an Islamio

" State,.

----- ...... -

,

. .

.... Obvioutly. it ·W" .6 chaU., •. ·to :~~. . The UlafM took it

up.and. ~aferen<!& or renowned aoholaia of·aU lohoou. of I s lami 0'· thought wu eenvened in Karachi in January t 1951. Wit~iD.three day. the CoDferen08 form.ulated u~6Ilimou81y the u~oipl.' of the Ialamio Staten in the form of U Articles .rid

brought to naught the allegation of the Weate1ni8od group.l - ..{..-

. . . . .

Then ·carne·& lull in the political &renal! A full eightecJl

. . . .

months ~ore off ,.ad nobody ever heard during thole days .~en a.

whisper about the Constitution. The people J>ecame im~iient and IUlpiaioD quite n&tllrally. beg.n . to ~ grow as .regard~ tho

. . .

int-entioDI of· th·e poUticalleaderl~ Conaequ·ently ~ MaWJudl.oncc

again .tOad up in.M'&y1952 to voice ·the HualilD8t seJli~men·tl!5. Ho oritici~· the ·dilly.dallying ~olio:y of the· QODstitutioIl"

. M&kers and ·put forward his ramou. dom&~d ·that the Constltu-

. .

tlon.ahould be framed before the end of 1952· And that it should

embody the following eight points:

'(1) That the Islamic Sharl'tlA shall form the law of the

land; . .

. (2). That there shall be no suoh legillatioD 88 would con ..

travene Any of the dict.tea or principles ·of the 8Aari'aA ;

. ,

(3)· ·That all sueh lawl B8 are in oondict with tho dietatea

or the principles of the Shari'ak sball be abrogated;

(4) That it shall be incum.bent upon the State to eradroate the vioea which .I.lam wanta to be eradicated and to uphold and enforce the yirtuea whioh Ialam requirel to be upheld and .foroed ;

(6) That none of the baaia oivio rilhtl of the peoplee-8Curity of lif~ and: p~rty. freedom or .peach and ezpreaaion. and freedom of u.ooi.tioD and movement

---lh.11 be forfeited es.cert wh:eo • Ct'tm.t'! haa been .. proved in an open court of l~w .Cter aWording due .. opportuni ty at defeQ;ce ;.

(6) Tb,a~.. the people aha)1 h~'''. the rightl to retort ~o • ~ oourt of I.&w againi'i tr.D8gte.ioD~ OD the part of . ~ .

-----...__ ,

I. See Appendiz I ... ,

.. ~

30.

legillative or the _eoutit'e machinery of the 8ta~; .(7) ~at the JQdi~1 ihall be immun. from .11 inter ... ference (rom the EZ80uti1"8;

(~) That it m.aU be the reepoDlibility of the State to Bee that no oitizeJi rem.iDS unprovided for in Ulpeet of

the basic neoel.ities of life, viz. £ood~ oJOthiDg, .helMrj medioal aid and education.!

Thia demand wal!l raised by people belonging to all .had. of opinion .. The voiee grew louder and louder and it .aa lI· echoed from every nook sad corner at the country. The re.ult was that KAt Nazim.ud .. dint the then Prime M.inister presented

. '

the Basic Principles Committee Report in December 1952. [t

embodied ~OB~ of the points of demand, but obviously not all of them, A Convention of the Muslim . scholars, representing .11

.eebccls of thought, was again convened in Karachi in January

. .

1953. and the Ulema decided to accept the repor~ with oert&in

~mendment8 unanimously formulated by them;!

The nation took up the Ulama' 6 amendment. and demanded fthe:ir. &ooeptanoe.8 But the movement was just gathering momentum when, like a bolt from the blue, came the Budden removal of Na~im .. ~·di" Ministry and the formstion of .• 'new Government under the premiership of our ex .. am bassador to

the .U.St4+J Mr. M&mmad Ali 0/ /Jogra.,

. ....

1. La.ter on a ninth po int about Qadianis was also included in his demand. This WI ~ done. to direct into constitutional channels tho growing publtc agit-alioD for the declalation of the Qadianis as a nODIfuslim mlnoeiby and to concen:brate the entire force or the people on the constitution problem ·80 that the People may no .. be $idetracked into subsidiary issue! ~ ",:aI the atte·mpt of tho high·ups. Tbe nintb point was as rollo~ =

,. That the Qadi.anis .~&ll be Inelu tied. iu ~he li=-,t of non .. Musli m

mi n01"itie~ and t b.~~ r seats Sh311 bo r"9pl" vorl a\."c o r ... Ii a g to thei r popu latiou, tJ II::0ll: ~ ~ l ~i..~ IhU'utc -ttlt!lc lu .. ·t(.t.o· t "

:!. See Appeudix II.

3.. ",\loqdudi' t'~it.in e xt e ns i voly tou]"~"l tho coantr~\- t-o ulobilile 'pu blie opinion. . For tht"' historil! -"!Jpooo~ he ~na.d,j, on. che oU~Mion., seo Abul A ilIa Maududi" f'fMla,.iA~I, Sup ple meu t too a ltif'4gla- e-RuAt Ka.rsuhi; July. 1953.

, .

..

11

..

With the .dyaD of the DeW lIiDi.try the Itunt of f'Pro,viaioD!t1 Constitution" ... put fot1tard,. reign of terror .&8 let 10018 and the workers of Ilia. were haraued, perteouted and imprisoned: Despite all thi. ahow of tyranny, boweyer. the tempo of the people-, demand oould Dot be &lowed down. Finally .. the .t~Dt of the Pro"'ilional Oo-.titutiOD proved abor ..

,

'tive and the wor~ or framing a Cull~8ed8ed Conatitation had to

be started.' The d8&dl~ OD 'fP&rit1'~ between the two wings of Pakistan was solved in the .h.pe of Jloiatnmaci .Ali'8 formula, which was adopted by the Constituent All6mbly.. Moat of the Ul~ma'8 amendments were incorporated in t~e 'Report during its adoption by the Constiiu8nt Alaembly, though some of the important ones were le~t out. ,The work progressed rapidly and the P~im~ )'fini~ter of Pakistan pro~iaed to ,give the, country a CODstitution _ by the end of 19544>' Ju;st at the I.at hour , however. the Oonstituent Assembly wu dissolved, obvioU8Jv to,

....

enable the Westernists to frame a ConBtitution of their choice.

Maududi and hig leading supportere were already in jail. Alaududi '9l$S sentenced to death on the fiimey pretext of writing u pamph16tt,nam~IYt uThe Qadiani Problem"; which itself was never banned! All artifices were used to crush the movement for Islamic Conatit~tioD and create confuaion amongst the pecple.! but to. no avail.

Mautludt had been put in jail In 1953 for fourteen years, bu t the struggle went on, In J 955 the new Conati tuent Assem bly , was formed and it &gain 8t&~ed the taak of oonatitotiob ,making. 1"h8 demand for Islamic Constitution again began to mount. Jlaududi who was released in the spring of J955 because of the nullification of the very law under which he oould be detained in jaiJ, now presented his detailed: comment! upon the draft Bill2

, '

and mohillsod the public opinion in favour of his plea. It was

in this context that Constitution of 1956 "'M formulated and W&ti pitoted in the Consembly ~ 04. MUAammiul Ali the then I)rime Mini9ter of Pakistan- It wu & compromise document, but

l. SI~O Ali Ah ~ad Kh..~,Ut Y~h ai.rilla"i~1l Kiw,,"' (lVhy the'i~ o.rte~Hs ?).

Xarach.i 195 S •

.2. See. Appendi!: 1114<

3S

. ,

did iD~pO~.te to balio ._ana. of tbe people and at leaat

. ..

4 pro:vided & ,good ground to stand upon arid move ahead. All

seetions of·opinion weloom.ed. it.1 It W'u hoped th.·t Pakiatau will now turn B new leaf in ita pol i tioal life.

But unfortunately those Velted interests which W8l'e del.BYing the framing of the Constitution now began to avoid ita implementation and tried to sa.botage it from witbio41 Two and a half years passed and they did not even hold the firs' gene.ra.l elections, much leal imploment ~t in it. entirety.. On the other head they tried every artifice to avoid its implement&tion~ And at last it was abrogated on 7th October, 1958 by the then Ptesideut Major General [8kander Mirza.1

Now the country is once,again trying to have a constitution. This movement for Isiamia CODBtitution has been a popular movement. Thou8&D.da of meetingl were held to ventilate the

. demand. Hundreda of proceaaionl were carried out in all the m&jor cities of the country. Killions ~f post-oardst letter. and telegrams were sent to the Prime Minilter and the ~peaker of the Consti.tuent Assembly in support of the demandt Hundreds of deputations met the mem.bers of the Constituent Assembly. The dema.nd became 80 preuing and 80 widespread that the rulers had to race it in every nook. and corner of Pakistan.3

This movement is unique in certain respects :

(n) IL was the first popular movement in Pakistan and WH carried out on purely demooratic Iinea. A very aritioaJ moment· came when oertain political intereata tried to aabotage it by faDDing agitation on the Qadia.i

L For Maudu.di's comments on it 8ee Appendi.x VI ..

2. Abul A'la )[~4udiJ .1.lomio Law Q.~ 001U'1'~"'ion .. E4" Kburshid

Ahrnud, Karoohit 1965" P. 204:~ .

3. Here it. may be' monttoued in pasaiq that t.he Euglish press, control- . led by the ultra.lDodero minority, toWly boycotted t.ltis mOVU[D~n~ OIld d L LJ nO t e ve u ;bad 1,. 110 ,g ~ 18 an d co~ienoe tr) re llurt it., 1 f an idea of t111-' oxtont aad popuJ&fi~y of .t,hb movemuat i. re be xn&do. :reZ!lOl'l. lD_lI be had to elle l'rdu ... I ... ·.~ .. arWcuJ.li.ly to 'l~b. Daily f'u.meeJII" Ltbon. ~rh~ UaiJy Ko4ifidllt It.w.lpiadi doDd Lilhote.. "1'11. Daily 2',",,_. l{.,.,&lllindj. 111'118 Uaily B~,1.ba.l. P_h ....... ~ f!'be Daily J...,." ]Car_hi. The Daily .. ¥uR. ~Mhi: _4 the D.i17 PClNa...., Daoca~

31·· . ,

, .:

.P"rob_ W. ov",.hadoW' ~bi.~ .. o,.ment, but the leader • . ~f ihe movement· v.ery wi"" added • Dell' point (the ninth polu.t) to the demand and tried to cauaUse the agitation on oonltihution&lliDeti. Although they- could not folly succeed ill that objeotive yet the movement lor .. I81amic Constitution continued to progreu on

purely democratic and constitutional Jines. _

(b) It was unique that the interest of, the muses waa· aroused on such a wide ~ca·le OD a debate about eon .. atitution. Perhaps it can be .sa.id without any fear of oontr.8dictioD ·that in no other eountry of the world did the masses take 80 muoh interest ill conltitutiu.Qm.a.k:ing't &8 was taken by theD;l in Pakist&Qt

(e) The movement was an cduca;tive:movemcnt and brought the people nearer tuthe Islamic ideology.r made thfm understand ita meaning and prepared them to achieve

it through sustained struggle.. .

(tI) The democeatie trad, tion .began to cryatallise iD tbe country, .

(t) . New literature was produced on the politicaJ and 000 ... . . 8titutional thought of IlJlam and the Ialamio concept wal presented with groa.ter clarity and precision.

In the present book our eoncera is mai.nly with thislaat point ADd we propose to pressn t i~ it some of the best writing. produced in this peziod,

VI

ABOUT THIS BOOK

Islamic Law and Oon.stitution is a collection of seme of

. . ......

those writiogs and speeches of abut Alta MtJududi wJpoh deal

with· the politioal and oonati ~uti?Q&1 thought. ot IslAm. Jfautl~, i. one of the I_ding thinkerd of tha world of Islam and his ide .. bave io.RIJ8aced a geDer.ti\l.3~ It w.ould be of ~Dter88t. and

. pro&t for .11 to .ee· wha.t he h&s to sayan the probJ@Dls and tho.

PlOIpeota of all Wamic St.t&t

Tit. cruel ooutributioll Qf Maududi is that he hAl devQt.ed

I'M lslomic Law ad OrJJlstitu'ion

. "_,..

..

himself to the 8Ooio.politico-cuJtural aspect of Islam and hu diaet1ued tho8.e problem. whioh the writers. Oll'I.I&m ~re avoidoa iog tor a long 'tiLDe in the reoent P"'~~~ He has tti6~ to meet the new in t·elfeofruaI cb~lleoge of the W dat and haa presented Islam in the language or today. In pollbioal ehought.. bis main con .. tributiou .i. that he has not only presented the teaohinga, of Islam in a olear; preelse, cogent audoonvruciog .way bot hu .110 interpreted. them for our timeR and has tried to Nuggest the/or".. whioh the JfI'~mio tenets can take to erystalllse in the world or twentieth, century. This has been ·a difficult task and he hat come to grips with it in an admirable way.

The editor compiled lome of his writingM on law and Con-

Rtitution in 1955 under the title of Islamic Law d1l.d Oon8tilutio1J.~1 Tbe book It''&S told· out wi thin one year, It Intlnenced the thinking of the Pakistani intelligentsia 'and· was again a.nd again

I

referred to e.vsu in the Assembly debates and tho psrby-meet-

ings. The need. of the eceond edition was pressing for a lung timo, but the, editor was 80 absorbed in other works that he

. . .

·could not find out suffioient time to devote to this work. He

"'&8 eager to revise the book thoroughly ~ because the firllt

,

edition was prepared while ho wa.s a. university student, He

was ocneclous of the dr&wbaoks of translation_and editing and wanted to improve t.he book to the b&st of hi. ability. He also wanted to make many addltione to it and thus make the volume truly representatdve of M ati.d"Udi~ 8 writings on political and con .. etitutional t.hought , Now .he has tried to do the entire work anew, The book bas increased twofold in volume and ho hopes that in the present form. it will prove much more valuable to the

students of Islamic politioa.l thooght.

The book is being presented with the hope that it will help the people in understanding the concept of IsJamic Cnn~titution and of Iala.lQic State. A Iarge number of our own people, who have acquired modern Western education and who are not well .. versed ill lilla.mio literaturo, have not understood properly the

-------- ,. .

I •. Abut A 011& Maududj. l.hm W Law and COR,ti,U.eiott.· Ed. Rhurabi d .lhm" s :

J[anoL.i.. 1866 .. p •. 21'.

-

.....

-real JL&ture aDd· meaai·aI··of .. : ···hla'!"la CoDItitaUoa.. . lIMy ·01 them harbour ,.1 .. DOtioIIa .D' 11l •• to po1ioy aDd It1 practioelt This boot caa help them ·iD ~piDI meani DB or the I.lamic

S .. te~

Then, ta. ideolOgical ohuaoter of Pakiltan baa .routed the

"iaterelt of ro~gn .tad.nie &lid .ohola,. and they are eager to kno." wbat an I.lainic eonltitution i.. Thi. book will enlighten

them on this question. "

M.oreover, t.hroughout t·be Ku.lim world ·there are move .. menta dem&nding the ~tablishment of the Ialamia 81uJ,j'o'A ; this book may act aa a guiding stat to them.

. It is hoped that this book may •• rve t.~. above outlined purposes. A nlari-flc"tio~ il. however. needed at this stage. Jakim-it; Law aM Con~'i'u'io,. is • eollecnoa of lOme of thoae writings and lpeechea ~r Abul ~'lG M4udutli whioh t~ro .. light 04 the problem8 of Wamic 1&" and polity. The e.aJl were penned from. tim.e to time and the lpeechel were delivered on ditTerent ocoasions and before dilf'eront typ81 or aadienoea.

. -

ranging from the uneduested maS888 to seleat ,atherin·g. of _

lawyers, legist. and students. In Ipite of that, ho .. ever, a oommon t~r_d tl1llS through them .11 and link. them into .• unity of purpole~~ The reader may find solDe repetition here

or there but tha' is quite natural in' a work or thi. kind.

In the preparation or thi. book seve.ral persona have helped me and I aD). th.ankful to them .11 for their laboar of JOV81t . I am p&rtioularly in.debted to MaKI(Jn,a Zalar A.hmcul .d.Jl.l:Clr •• former Seoretary, Board 01 Taleemat .. e .. IlIam.iah, CODltituent AI" l8m.bIy. Pakistao, 14rl ZaJar [,hag AMari. Lecturer ia I.Jamie History, University of Karachi and KhUNJj" Abd.~ WOMe4. ]~ditor, Al.IBlam) Karachi, for the immense a.8i.taa.ce they pro. vided me ia tr&D..l&tirtg and revising the· man1Uorlpt. :My thank. are also due to my brothers An~lI AAalll44 and JI .. 'im Baijad fot checking the reference. and verifying t.he quot&tioDi f~om the Qu.rtaD.~ AI,.. 81t~"zatl JltlAamnuul typed uogradgiD,l, my

. badly written manusoript again ahd again. I m.oat &110 ooafesa that tile book is 86eiD., the Ugh" of 'he d~y onl1 ~. or the

, " "

f'M ,I __ ·i" 1410 11M OOn.d"~ulion

~

Qever.failing endeavour of O,,-tulAri Ghulom Mulaa"mmtr4 Sa"'"

who hal been the main scurce of It~mulu.8 sud eoeouragem.ent;. ""~"

, "

The book is being presented "with the sole purpose of dis.

I8~Dati~8 the view-point of Islam before a .orid torn by eon .. tUcH nd deV&8tated by wa~."" Let it be h()p~" t.hat it .;trill be reoeived without any bias .

•

1. Ne,. Queen' Rood g~i J 14", July, 1960 "

KHUBSHID AHMAD"

PART I

.. t

, ASPECTS OF ISLAMIC LAW .

Chapter I

THE ISLAMIC LAW

At tbe strokeofmidnigbt" on • .\ugust 14. 1947, when the world ".. ..Jeep, Pakiatan wat born into a.s.is .. tenC8-PlkJitu the homel.ad of Islam" But the osta· blishment of .. (uJI.iledged I.lamie society remained ..

. ,

di8tant hope, be.1a.ul6 the road .-a8 strewn wi th hard ..

• hip'.. Minds were ·riddled l"ith many-a serious misun .. delat-anding And eonfusion. ,,"Jlatj in fact., is islamic Jaw' Is it practicable in the twentieth century 1 Would it not mar-· material progress 1 Such and tite )ik:8 questioDs were rlist.urbing many of our modern

..

educated peopJe. Jl/'Z1l1a.na Jlaududi realised the im-

port.nee of thue questions and did not Ileaitate to

· anlwar t·hem .. nd tAUA' mfut~ the mistaken notions of the IAdueated folk'. He delivered a speech on the . lw",ic lAw oft January 6, 1948 at the Law C-ollege~ . Labore, and deUneated tho real nature or I.lamie Law . .. :~._:~ following 1a the Engliah rerrdering of that apeeeh.

: - .. :-:- .

-Editor.

THE ISLAMIC LA W I

. This an irony of fate that, now-a-daya, the demand for the onforcernon t of Jelamtc La,\\T l~ ns become surrounded by sueh a thick mist of m i~gi vings that a mere reference to it" et'~n ,ft G

. . ,

..l.l' us! im COli'1 fry like Pakista D ~ raises a storm of critfcism. Thult for instan ~PJ the questions are askc d ~ Can a centuries .. old legal .ystem be adcqua te to fu 1ft! t.he requirements of out' modern state and sr-ciery 1 Is it not absurd to think that the taw, which h ad been framed under certain part icular circumstances in by-gone (111,Y~t (an hold geed in fl~ry age 00<1 every clime t Do you· seri Cl'~Jy propose to st art (hopping off the hands of t h ieves And flr,g~ing human beings in t his modern t enlightened age? . ,,'OJ 11 r)~r markets again a l.ound in staves and deal in the

sale ard purchase of human beings as chatf cls and playthings t l\''''b ie h pR rt i cnl ar sect' 8 legal system is going to be in trod ueed hero ? "'hat about the non .. Muslim minorities who will never tolerate "the dominance of the ~,r uslim religious la.w alld will resist it with all the force at their command 1 . One bas to' face a volley of such questions' while discussing the problem, and,

. .

~trangf:oly enough, not from non- l.IIl sli rnA .but from t he ~lu8lim

educa ted elito !

To he sure, these questions are not the outcome of any an-

,

tagonism towards Islam but mostly of sheer ignorance ,w hich

. .

mu~t quite naturally breed suspicion. And to our utter misfor-

tune, ignorancE:' abounds in our ranks. 'Ve have people who are otherwise educated but who know practically nothing about their great ideology and their glorious heritege. No wonder.

then, that they labour under strong prejudices ..

This state of degradation, however, has not come 89 a bolt

from t he blu« ; it iSJ ra ther ~ the culm Ination of a gradual procell of decay spread oyer many centuries. Commencing \1 ith stagna· tion in tho domains of knowlege and ]eamjDI!~ research and dis- :

(OTfJY and t l.cught and culture, it finally cu lminated in olit··:'

.··AI ~jOil"'··"'-kdb1f.Di .~filr' • ., ...... Ii .... ~ ... : ".ft· .

; ol~~~'_~P_:.iP'~.~~1t pq,"~A .: P9btfe&1 •• ~ ~ .. !

to •· •. ·:·il1t~rfol'i.ty .. ~ID.p1~z au ··.'the r~ltaDt Intellectual .. 1&0.

e ... -117 .wept t·he <entire MUltim world olr itl 'eet, .,~_ . 110 that &VeD th~~80 Mt1!11im rODDtriee '!Noh were ·.ble to retain .. t.heir political treedo~ could ~,q~ pacape it. A"il ialuenc8. The ultimate consequence ~f.( thiB evil lituation W'U tbat when.

. ·}fo.Jima 1VO~<~~9P l4g&in to th·e oa11 of progre., they were j .. p~ ~hle~of-'lookiDg at things fSCe-pt thrOugh the eo)oured: glallll,of Western Though·tl . Nothing which was ~t Western oould inspire. confidence in them.. Indeed, the adoption· of W8Itern Cu1tllre and Civilization alld aping the West eTeD in th. mOlt persona1 things became the.ir cr~ze .. Eventual11~ ~hey succumbed

totally to. the Il&yery of the Weat.· .

This trend towards We&tf"rDi~m ";81' also the r~,ult of the.

. .

dilappointment which came to the nation from the side of. the

Muslim religious leaders. Being them$olv81 tho victims of the .. ido.lpread degtn~ration that bad engulfed tile entire )[ualim w~rld they were incapable of initiating any oOBitructive move- . m8nt or taking any revolutionary ltep which could eombat the

, .

evil. afflicting .tbe Muslim so("iety. Quite ·naturally. thil di,lII.-

appnintment· turned the djacontented Muslim. towards that 'Yltem· of liCe which had the glamour of being successful in the modera world.. ThUll th.py succumbed to the onsleu ght. of modern thought; adopted the new eulture of tho Welt and begu to ape·. blindly ~(HItern modes and man~cr... Gradually. the

'religious leadiers were puahed i.nto the background and were ·mplaced., 81 regard! . power and control over the peoplet ·by men boreft of ~l k~owledg(l of their religion And imbued only ~ith the tpirit of modern thought and Weltern~ideal ... This ia why, we find that m.any a· .MlIslim country hut in the ~ent paatt either completely abroga.OOd t~~ Islamic Law or· confined its oper~tion u,. the ·domain of .pureJy. personal matters only-t·hat i8~ a po.i .. t~on coo·ferred on .the non ... Muliim8 in a truly Isl.mio ·State.1 .

J ~ Tbe Ant oountry ·",her. the altro.ation·of I.t.mie Law •• rted .... Inelia, a1thoUlh 1·h~ SM"~aA continued i~tol'(Je lon, .ftC""'t the Brit·i,.1tad oome

. .. . ~~

In all t ~ .. ·lIaItim eo1lD~, 1Jhksh ..treNd. from fONlaD. ·domination, the ··Je&denhip ~ polj~_ &ad ealtaral movemtate

fell into. the handl of tho" who "ere .horn of .11 Illamie ~ck. grouDd. ·~hey aaoPtefl:·.the oreed of N.tion&lia~J direoted their efforts tnward. the c&U!O of ulioRCll .independeace and proIIperity .• Iong teOular lin~ uad.tlied to c~py, ltep by step. the .ava-need. nations of this age. Conaequantly if these Plttlemoo feel .. exed ;'ith the demand for tal.mie ConltitutloD ~<LI81amiCi

. .

·u"., it ia quite natural for them.: It la al.o natural for them.

to lidetraok or .. ~ppreil the il8ue, &11 they are ignorant of even the A.B C .. of the Islamic 81a,i"a.A. Their education and intelle .. otu.l development. ·hM .alienated ·t~em 80 cOmpletely from the. epirit And t~e structure of IaI&pti~deology that· it is,. at leut for the. m'oment, very diffioult -_j,r..them t-o ~nderatan.d suoh dam.nda" .

.

. At regards the Mu·sliZQ· religion. leaderthip. it baa in DO

way fared_ bettcr:w because our relig~ou~ iQltitutions are. tried to the intellectual atmoepbere .. Gf~dha ·fifth o~ntury AID" .... eonsoquenee of wh ieh they haU_~Dot been able to produce such

_.

into power t So m.uch.eo that the penalty of .evering the .band of babt .. tually har dened thief WaB .waNed .. late .. 1"01 A,D. Thereafter the preeess of luppree~ion bepri.-t.ill .• t last by tbe middle of the nineteenth

century~ the whole of the ·6.'"A had been abrogated. excepting of COUr1I8 injunotions reg.rdinc_~ purely personal matters like m.&rri~ divorce. MO. Other ~tates··when Mll$lims themselvds were in power. took their cu.e from the MllIlim! of India and tl)e leadinJ part in th""

~ transi. tiQn WQ..~ taken by the :Muali m Native St. tag 011 ndia. fa 188'- 1!!gypt oha·nged Ow:r her OW~ IaWl to Cod. NlJ'Olean leavin, only matter or divorce... mar ri age 8 n i nb.p ri t.noe to the J uti 1J. diction ot. the Qadu" In .the twentieth century Turkey and Albania took a. further lead over. theit fellow Muslim st.t~.~ and no' only ptoolaimed themselves to be Qompletely :9eeu1nr State. and not only proclaimed tliemselves to be .,-ttem of those of ItalYt Franc, a.itberland and Germany .. makin. !Juch inroads OD 'llus]im porsonal 1 .... itself &8 DO non·MD91ini state ~ould dan do, AlbAni. led t·h. way by penaUzing polygamy a.nd ']'urkey

followed her by ehaDging tho mandatory p.roYialoD!I of the Holy QaP'im: -in res peot of- d.1vorOi an d . in'eri_'h.ae. TheN now reID ain ·001,. Af,haniltan and Saudi Ar.~i& wheft ~. SAGnloA i. a.oaepted M the

. Sta.te La .. t-hough even theta the .rU:it of the SAoritaA has 10D, linGe

dil&pp&Ilnd And the whole or 8Aar1'oA too ill no' beiDC' _'ort*i"

. .

,.-

. - .....

:; !..- •

rl.,"

1"'''' of I.l ... ic thOlllh~· ti..Ild:: .• etioia .... ·.Id be oapable of adminilteriog the .. train of • modena .... in the· light of I •• io priDoipleee This ia ·the .itu.tio~ Prev~UUDl· throughout the MumlD world &II~ i.. indeed, & nry real obataele faoing the &lamia countriM '·'n their ._~march toward. the goal of lilamio ftIJlAi .un oe ..

Notwith.'b&nding oertaiD 8imiiaritiel, the cue of Paki.tan i. not. however JI the I.me a8 that 01 other Mu.lim aountriea. ·This. i, 10 beeaule it haa been achieved ezoJu8ively with the objeot of becoming the homeland of Islam.. For the laat.tenl years. we have been C8U6)eDly fighting for the reCognition of the fact th,*lt W6 are· a leparate _tioD by virtue of our adherence to r.'Jam. W. have been proclaiming from house-tops that we have & distinct culture of our own, and that we poSseS8 a world'

· view; an outlook on life and • code of living fu_nd&mentally different from those of nOD-Xu.limlt; We have all al~ng been demanding & separate homeland tor the purpose of translating info praotice the idea1s envisaged by ~8Ipm, and at leotI after

a long and arduou8 .trup'gI8~ in which we Busta.ined a heavy .# J088 of life and property· and 8uifered deep humilfatlon in re8p~t

of the honour and ohastity of. large number of our womenfolk,

we ha!,e suceeeded in attaining our cherished goal-this country

, ,

of Pakistan. If, now, after all thels.preciou8 sacrifices.. we fail

to achieve the real and ul,imate objeotive of making I8h~m a pra·ctical~ social, polit.ioal 8 nd eonstltuttonal reality·a Jive foeoe to fashio~ a.11 facets of our Iife, our entire .truggle and all our"

.~~rifioea become fntile and meaning)ets. .

Indeed, .if instead of an lelamiot a secular and God16ls Con-

, . -

fJtitution .. _. to be introdnoed.- and if inatead of the Islsmie r

a~la'i.'aA1 the Br.itiah Civ:il and Criminal Procedure Codes had to be enforced, what was th8 sense in .11 this struggle for &

•

Meparate lluslim homeland' We could have had them without··

t~~ ~.~ Si~iJa-rIYlt if we simply Intended to. implement ~ny 80ciaJistic programme. ·we could: have done 80 in oollaboration

e- with tho Co~muniRt and the Sooi.liet parties of India without I~ a",membv that tllis fIIp.ltCh "88 deli .... lQ'ed in IN&-BditOr ..

44: Tk 1."'1c·:··,..· .. · • ., ~ .. ; ..

plUDging the· aatioa ,'nto"'" IlUMb~ .. 1Dd:._': ord_1. . . .... .:::

. '.': ... :

.. . .

The fact i. that we are alre&d1~committed before God .. 1I1Cl··!:

and History for the promulgation of lll~mio Constitution and ::: the· introduotion of Islamio way of lir~ in thia oou.ntry and DO .:: poing 1) aek on our words i. pOl8ibJe. Whatever the burdlee MLd .. ~ hOWlO8l'er Fat ~ey m&y be, we have to oontinue o~ marab ' toward. our goal of a fal1toftedged lal.mia State fn P~istan.

No doubt, there do esilt many b.rd.hips and djflicultfea in the way of achle1':ing this goa1. ~ut what grAat goal can be or has ever been achieved without facing difficulties boldly and intelligently' ~nd I must emphatica.lly say that the diflioulti.

'whleh impede our wa.y·are in no wa, Insurmcuntable. Indeed, none of them jR rf!GI except the diftiouliy that many among thole who hold the reins of pow8r are devoid of faith in the Afficaoy of the Ialamio ideology whicbt in ita tl1rn, is. not due to any defect in I.Jam but ·is p~rely a product of their 01m grOI •. ignOr&DCe of the I.larnic teaohiap.

The fint t:-aaki therefore. i. to esplain to our educated :: people the meaning aDd the.implioatiolll or Islamic law,-itl·· ..

. ~

. objectives. ita spirit, ita ,struoture. and its categorio&l aa.d·:

unchangeable injuDotions along wi~h the reasons for their per •.. m&nei:loe.. They ihoold also be informed of the dynamic element .~~ of Ialamio Law and how it guarantees t·he fulfilment of the ever· .: increuing neede of progrel'ive human sooiety in ev:ery·age. .:

T·hen, they 'should be enlightened in regard to the r.tioual· fOUDdatiolll of the 8"(Jri~aA.. Fia.lly it i. al,o needed to expose I the hollowneu of the vi~Qperativ"oritioi8m8 against Isl.m.nd .. :.~:

~ to remove. thereby the fog or lDinoderl'handings that shroud the: ~; iSlue. ~r o·noe we IUCoeed in aooompliahing this task and DOll-:} seql1entty gaining th 1 .apport of ·Muslim. intelligentsia, we wil1,~~ pave the wa.y for the establishment of an Islamio state and the;;: creation of an Iil.mio lO~iet' in Pakistan·. It is with 1hi-::~: iot8DtioD that I am m.ki~g thi •• peeob before tbe stud_fa~· the La.w Col1er~ .. :~-

. . ...

. . .

. .

46···

. :

. . ,

· ~ ~f:· .: .<: : ..

. ",

. .,

LAW AND L·lrE···· .

The term uLaw·· bean refercaoe to "he query: uWltat

...... 14 be die eenduet of ••• 11 ... ·ladfftdllal a. cond" Ufe!.tt The query presents itself td U8 in connecAoD with iJUlumerable .atterB. Bence its reply. oovera a very .. "ide raDI8 of topiest wider than what the term ,c'x..w·" teolmioally.igni6.el., It in ..

eludes our .,.tem of education and traiDiD,· in t.he 'light. o:f .

· which we 8ttlv~- to mould the ·charaoter of individuals; it c5in~henda our 8Ooi&1 system ~hioh'. regulates ~~r IOcial relationship.; it enoompa88ea oar "80000.10 order . ~~iD8 to ~h:i-ch we formu.la~ the principle. of prOdllCtioU, ,dis;trlbutio:n and 8sobange of wealth. TI1UI we polleaa a· vMt aYltem of rules which deserm ine our conduct in .arious walks of life .. Technically speaking, &11 these act's of rules are not' "Law".

The term U LawH is technically applied only to .uah of the rul. &I are enforceable by the the ooercivo power of the Stato. But, obviously} 110 ODe who wanta· to und·8f.taDd them) can afford· to conflDibi. attention to them alone. He must take - into eonsideratioD the ·entire aoheme of moral and loeitJ guidance prescribed. by & patt~cul.r ideology I beoaqle it is only

· tb~D that"he will be able to appreciate ·the· Ipirltt and objeotives of the ·~.cLaw" and to ,form a critical opinion about, ita mel-ita

aDd d8merita~ .

. It .h6uld not be diftioult to underat&nd that the principles

. ,

we reqommend relating to .. particular lyatem. or life ate bali ..

ci.lly d~rived-·froDi and are ~~p17 jD8Uelloed by our conoeptions about the 6Jlds of. human life aad .by our DQ~iolll of~· .right and . wrong. gopd and evil aud jllItioe and iDjll.tiOe -. OouequentlYJ the nat~·ol a lepl sy.tem depend. entirell' upon the ·.auree or ~uroe8·· from· w.hich it. i. deri m. ~Q.I'. the· diff.reD~ disoenh.ble in the :·J8pl and ·so"ial··.Yatema of ditrenDt·lOOietiee are··

t .. . .. . - . .

m~n)1 due to t'he differenON of thei~· ioaroea of· auid&D~ and

p ..' I •••••• •

IAlplration~: , ~. . . ... ..

T~ meaqa.that un,1_ we are prepared to·~ ~into· oonaid.,ration the qrigin.· a~d·· ·the ~aoJrlrouDd or···the whole ".tem·

.e.

I -. •

. of·life and of the lOOiety which·"i*' ·brlaga into-esi.tea.. ..4 ,,<

-i . .. .. -.:

.PPI'OOl.te ·the. oompJeio.:~.,... .ol tb-o d.eveiopment of thai.

. I.· .

• 'Item and·the 8v.olu.t.ioD or·t·bat aoci&tiy •. · we will not..be ablo to .

uad.r.t&~dJ: much· 1611- to oritlot.e on any rational "balla, ·the mandatorylegal.provilliona of the IYlto~ __ peci.lt1. when _-. howledla ·of thoa pro'9'jBio~ OOD.lil.t.. in tbo maiD, of he&n&,·:

.~ eoD·jea~ure~ . r •

.. I do. ,feel that • comparatIve oritical st.udy' of the ~Jlmi~· aDd. ttbe Western system of life would be the beat •• , to "plain and elucidate my vie ... point.. If the differences bet..~ the original sources and the basic p08tu.lates or both the .yat.8IaI.;

.: ~re kept .in mind, radically different schemes of life that both envi,s~ge C&~ be eaiily uedeestood. put .the pa.ucity of tilllD , at.mY'disposal does D.ot permi~ such a digresaion. aDd OO~ qu.ently, I .• hall COnSQ9 myself. at present .. to the. e:l.p08ition of.

th~ lslamJo S"ari~aA. only.. t

SoUrces of the Islamic. System ·of Life

The &rat source of tho Il1.mio ly8tem or life i •• book, or to be ·~ore ·exaot, "The Book··.· The· world recei.,..~d· a8V~·

~

edition. ·of it under the titl. of the Old fest&ment. the New.·

Testam.ent" the· P~1.m8, eto" the lub and the final edition beial~

.. .

the' one ,~nte~ to mankind under the name of t~e Qr".. "~ --

.. , :The seeoad -souree of this 8y.~ODl are the. person. to whoaii ~~e difere~t ·edltions of the Book were, reve.led and w~o, b~ their preaohi~gj and ~heir conduet, interpreted them to the

. , t .

~pla.· AA differont personalities, ·they bore the names of Noah,

Abraha.m, Hoses, Jeans and Muhammad (peace be on .h~ au)· but: &I the bearers . and upholders 0"( the· IUl8 million or Iii.::

.11 I~nd under tbe general title of ~.cThe KeI88ngor" • -:

ne IslalDie eouce,t or Life . . ...

The viow_'of Jife :Whioh III.m. has presented i. that ~hll~· univ~r8e ·of ours, whioh follow. & let OOUt"88 of law· .nd fa~.; tiona ~cOrding to ·all i_lltellilon~ _ and . well .. laid-out plan i. II· reali·ty . th~. Kingdolu of' Lh."; .. Ono G.od-Allah.· Iii i. He WM.·: crested ~t.· It, is, Ho Who ownS it. It is H~ Who go·Y«a it· The MJ't.h. on wlliah we !ivai. j1qlta IIDall part-.proviaoe . ~

". . ..

. . ~ '.. : .

":",,,,·; ... ;,. •• i~ •• :,;,:{,,: >':',',.

. . . . , ... . . .~ .

thlfi ... ,~ •• :,- '.. ':tla,-=\.;it,:",,{'ci .. .,:, tioDl·eo •. iWi;,i~.<:·1iQ4.r:·:1".·;~::.~ .~·.JII~,:~~··:·:·~·.:W·_·:~ __ ~: ... ouraeJvea i .. e- ...... :·h .... u· beiG.p~~. are no'ilUag 1bOrf/.; .... :, H·il f;~born .ubJeut."~· ·It·i.-·K. Who· ~ •• W ai, .~tai" ·BI··~ oa1l888 us ,tip lift~ ·Benoe. ev.ory· Doti.on. of oar . MIG'''' i_"pefll..a

. _""" i, nothing but. Iheer. deception ad .i.judgement. Qod eontrola every IJ,re of oar bei.ac and.·'_one a.11 el_pe Bis arip.

Every thinking m.ind il aware of tho fact tha~ • very large sector of our life il gov~ and direotiy oontrolled by l~ HiSh po.er aDd wit,h lOoh abeolateD~ &hat we are ,pr&etioiJIy help .. lea in r88paot. of it. Flom tho tilDe ... are ooooeived in tho· I

wombs of oue mothers till _he mulilent we breathe our .lut:, wo

. -

are subjeot to· God". inexorable Law. ofN&~ure to .uoh :&n e~tont

that we· 06UOt . claim to be free from their control .even for a.

. eiDgle.._momeDt. :

or OOut18 then is another sphere of our life in· which We

. po8l_I.a oertain am.ount of freedom. ~hi. i8 ~he ·.a:n0raJ and lJoci~l sphere of lif~ in whioh we·are be.towed with .~. fr~ .. wi·11 and iDdepeD~enoe of a hoi 08 in respect of individual al well· all oolJeotive .train and behaviou.r. But thi. Independenee can bardly·justify oQr Njeotion of ~h. Gllidance of.our <?~eator aDd .# Hi. Lan. It is onl)' to give ... ehoiae leadmg our JiveB ..• 1 the obedieo.t subject. of God an attitnde conaia_t ~it;h. the ·~"eal OM~ of tbiagl-or of beiDg dilregardful of Ria c~mD.l.._.~~ti

- . . .. _ .

• ad thus rebel ag •• DIIfi Him, AJld.~ur true natare_" .. :.~>. ,~

Otrv~ou8Jy, to the faithlill~ .~b.e Gtti~~· &D.~ .. ~~~ .~·'God ·i.i .b~kU-t .... d mo.' ·conai.ieD.t _""uda: {Qt· maakiDtt-~·~It set. ·the

- • • •• ~, oJ.

. ~Dd&rd for tile ord.RIy ·behavi01il.r ~. :mAll both individllally

I ~ {~I~~~i.~!!ly &ad in ~80~ of tile· bigl~t •• well· u· the

"~l81t t.lk. ~e· ~., ha·~8 to . lace., II&ving once -.pted the

. ·pbi~Opll~ of life .nIlDoi.ted ~1 ·'Bookti aad "The .· •• ~ ... r'1 .. t,h~.e.cDbodime.tit·ofBea1ityt ORe baa uo·Juti6oation loi: Dot obeyiug God'·, ro~e.led. Guid&D:~ in the ·.pbe.re of 0#8 ~~ioe -110 •. lod·oedli it i. bu t r4tioAl_ .that we IhouJd .dlD it' God··.

~"~ei'D'Y· in tibia· iphare ":II well jUlt as we ·~r e ·~o~ .. dQiilg~a~ e ~OJD.ja. of Ollr phlaioa1· li"~ .~.d W. nlQr·Ienr.1

r ....... ·:,. ..~, '.

48

. 11_11 the power .. d tIM orgau ttuoalh wbiah oar ·fl ·

.will fanatio~t are . sin. . f~ God and· Dot the r8I11It of }.)_~ .

own elroN. .

:-

Seco.I,. •. the indepeaclia.oe ·of eholoe i_if·haI been deleg ... •

ad to 118 by God and. not by u. through OUt personal endeavour.

Tblr4J1. all·t;h088 thine. in wh~h, oor free-will operatel .. are : DO. only the property but .1., the ore&tiOD of God.:

. 'aulllIY.1I the ·territ.ory in whioh W8 exerciae OUf independ_ae and freedom. i.~&.11O the territ9ry ofOod ..

. Flfthly, the harmoni •• Mon.of human life with the univer .. · d~ot.t611 tho D8C8isity of there being ODe Sovereign &Dd .oommon Souree of law for both the I apher~ of human aetivity-tho voluntary and the involuntary, or .in ot~er word. the moral and the .phyJlcal.· The separation of thele two ·8pherea into water·

· . .

: tight oo.rt~nta led to tho creation of ~ ir~llOilable con.

fliot whioh . 60.lly ~ lands not only the ~Ddi.,.idD.1a but even : biggeat·riati~l18· iD endleai trouble and diluter ...

The· . 'Final Book of God and .the Fill.1 Keaaengw .~d

: today a. th~. repoBitoriel of this tru.th. an~ they invi.te the whole of hiuDanity to aOoepl if; freelyalld withol,lt compulsion, - God Almighty bai ~owed mn with free~will in the moral· domain, and it· is to tbi •. fr.88-:will that this aoaeptanee bean reference .. Oonsequently, it· is· always an aet of volition ud not

of oompulsion.· WholO8Ver agree. that the eoneept or Reality 8.ta~.·b1 ~he' Ro~.,. P~phet and the .Holy Book is true.· it i. for

· him to 8~p forward .and 8arrender hi. will to the will." of, God ..

. . . . . '. .

. It i. this IUb·million "-bi"~h ie· called 11aI4.· ~d thOle who 'do

.0' i'.'1 thoae who.ort~r ,on.' free.will aooept God as their So~~ip .and ~urrender .to .Hi. Divine wiJI aad undertake to , ngulate their lives ·in ·acoordaDee with ~is- comtoandmonu. are

called 'M'" I i .. , , ~. ~ . I. •

_ All thoM penona ·wh·o tb.~. lurrender them961ves·to ~he will . of God at·e welded into. oommunity and that how the e')Jualim

· . .

. .

Sooiety~' Com. illt·o beiDa. Th .... this is aD. ide·ololia.I .. lOCliety

. .. &: BOCJ<ieiy r~i06ll .. v d.iffereat~·· &Om tth:OI8 whioh apring f.r08l

... ~ .

. . ~ideotil ui Oos~·· ao.lo_iir. of··oou.Dt.ry II. Tail aoGie'y il the.· r~.ia1t .. ~: ..

. .. . -.

. .

.: .' ':-:' .. : .. """::~.:' -, , AI ·a~ •. 'c",-h.,",::)., .. i:'/~;·"': . .. .• (1=

• ," • ~I. •

. , .

: ~ •. deIi""·ahoi_ aad eJfor$.;:-i',.'1 tM. ·odie, • ., ...•. ,.:"*- ..

,trMt'·,·:w:biR .akH pM be, ..... 11-: •• , ,*"".",.lII.ti,·: ,Oct.: tor~ , ThOM who ~_ ia,to··tihiA GODtra.ot uact .. tat. to reaopi.":

God: iii iUir 8OvereigD,ml Ouidano. ..... pre_a" &lid Hi. iD.Ja.li.otiom' .. _\»101.$8 law ~ Tlte, &180 ulMlertt.k. to aoeep~; without ·qia .. tioD, or doubt,· Hie olulilMtion of Good aad Bvil,' Bia~t and. Wrong, 'he ·Permillibl •• ad Prohibited.. In ahort, the Ill •• le 80018ty &,reea to Ii.it i~ yolit.ioD to tbe .... tent pre. Scribed by the AlloaKnowing God. In other words., " i4 004 ·.Nd nol JI .... W/aoa8 wiU i. 'A. Souro« oj LsII' in II .J/ .. Ji.8oclelp,.

- ' .

Wh6Q. .uoh • Booiety OOIDN into 8.zi.tenoe. tb,:Book and the

Mes&enget p~rib~ for it a ood~ ~f life olled.~ ·8Aari4.A, ItDd this ~le', is bouad to oonform. to it. by yirtue "of the oontraa .. into ".hiGh it hal . entered.. It is. thehCore, inOOJlOeif'"able that

, any' Mu8Iim Society ~orth' the Dame ~ deliber.teJy adopt .• 8Y1tem of life other thaD the 8uri'H. If it. doilJ 10, ita eoli. trao. is automaticaUy broken and the whole ~ety' become. {" an·I el.qio' ~ ~

. .

But we inust: clearly dist.iogui8h between the eyerydayaiDi'

~ . ~

of individuals and a deliberate rerolt .gaiDst the 8kri'ti~. The

former _Y Dot imply breakiag the oOlltraot,. while the latter

. would m-.n nothia.g I ... The point that ahould be. clearly 1IDderstood' here is that if a~ I.lamia society coniciolll:ly "reaolv8s· 'Dot to aooept: the 8"art.ctah and decides to enact ita own cooatitutioD aad lawa or bOrrow thezq. from ~ny other lIOuroe in diueprd of the 8Mr'~tJ" snob a .• ociety breaks ita oon&.raot with God and forfeits it! rigb t to be called. .. r~~mie;.

• J

III

THE OBJECrlVES AND CHARACTERISTICS OF TH·E B.HABl'AH :.

. .

La' UI now proceed to Ilader.t&nd:the aCheme of life envi-

sagod by the QA-J/'·ah. . To u1ld~E.t&Dd that, jt i. "eD.'i.t ''''at we should .t.rl; w.i~b. a,·-ole.lr OJIl'lepti)'4 of ,_ Objeouy_ and

the FundaDleo.t&la or tho SluMi$Gl,.

. _ ..... -.

':i de i ••• ic.:_ !.: liu :COfI.IIU..,io,.

• I •• •

. ~

. .

...... The",m,iu'obf_n"':of th.'·8_ri~aA il to conlinlci ·itJm .... :

life on the b •• il·:of·.it..·.,./tlI.·.(· .. i~~e • .) and to oleanse it ,of ·to·,: .. Vu.nbl~' (v.i~). Th·. term Jla'ru/aI, denote. .11 the rirtuel and good qualitiea·th .. t h.,,·& .1".Y8 been accepted u ,ugood'" by the human eonscienee. Conversely M""karGl denotes all the sins and evil, that have always been condemned by human nature as ~Hevilu. In allort, tbe Jla',.u/af are in harmony with human nature and its requirements in general and" tho M u nkara I, are just; the oppoaite. The SAari'a4' gives a o]ear view of thetis

. . ,

.Jlar~/a' and ~unfa:ra' and Btat~ them. as the norms to which.

the individual and Booial behaviour should oonform ..

The SAari~aA does not, howe-ver, limit ~t8 function to provid .. ing us with &~inventory o~ virtu8I.and vices ~ it 1ay8 dowh the entire scheme of life in such & m&nne~ that. 'virtues may. flourish and ~ice9 may Dot ~Dtaminate 'hllman- Iife,

To aohieve this end SAa"t.QU has embrseedin its leheme all the r&C.tors tb3.t ~ncou.r.ttthe iwwth of good and ha.a reeom .. mended steps for t~e remova.l of. Impediments that might prevent Its growth &nd·deveJopm.eott.Thia proceu gives rile to & subsidiary aeries of Ma'ru/fJ' oolUJiating of. the caul. and meaD. initiating and nurturing the good and further of Ma/ttifai oonaiating ofprohtbttlons of preventives to good. Similarly ~here i8

. subsidiary' liat of Mutika,al wbioh might iDit~.te or ~1~9W growth of evil ...

The Shari'aA shapes the Ialamio sQciety in -8 way conducive to the ullfetterad growth of good, virtue 'aad ~ruth in every

, .

'spbere ofhuman aotivi~y; a.nd gives full play to the forOei of.

good ill all· direefions, And .. t the samo time it removel .. 11 impedlments in the pat~ of·vittue. Aloogwith it') this attempts to '(Jradicato evil from ita 8Qoial scheme by prohibiting vicu, by

- ·~·bvi.t..iil.g the callses of its appo.r~noe, aud growth. by closing the inlet» th,·o~&h which it creep. into sooiety and by adopting diliervnt. ~ea.~ t~ oheok ita ooourrenoe41

. 1\.1. ~·IlIf. t .

Th~ 8~ri'a1 ol ... i6.ea Jl4'ru/tJI in", three oategoriea ~

. ' .

7;he Mandatory (Fard CI~ Waiib) .

=-

.:. :, .. ,.: .. :. _ , .. r~ l .. iq·£a ."

_:.. -. : ,j~., • :. ~ '. .'. • '. .1 '.' ••

.. : .. ', . .

• •• • I ... : _

:' "

" .' :' .. .

.·~.obli'"~ of tile mana.tory· (Ma'ftI/dI) ·iI· obligatory OD • II.~ .• aoai..,~ - the 8Aar'~GA. hu giVeD· e}e&t ud bind .. inCdineti~ .boat: thelall The noom.·endatory (M~'ru/tM) are thOll8 .. hioh the Skri·o wanta th.. • lIIa.-lim .Gaiety shcn Id ob • .n •• nd practi... Some of them ba .. 8 bee. oIear1y demanded

·of 118 while otben have been reoommended by implication and

I deduotJ.on from the Sayings' of the Holy Prophet (peace be upon him). Belides thi., .pecial arrangement. bave been made for the growth .D~ .eDcouragemont of some ~f the·m in the Boheme of life 8DaD.i.ted by the 81atJ,,'~aA.. Others .till have limply been rooommended. by the 8Aariid., leaving it .to the looiety 01" to its more Vi~UOD. eleilienta to look. to their promobion.

Thi.leavel ua with the p&rmiuible JlG'ru!aI. .Strictly· .pe.k~t aoOoNing, to the 8~ri.' M ~erythiDI which baa not beaD es:preuly prohibited by it i •• permi_ble· Ma·ru/at. It is.; O:ot at .... nee_tary that an expreH per.inion Ihould· exist about-it or that it ahould bvo been expreelly left to our ohoice. CODaequ8~tly ~h • .,~.or perm~"lble JI.i"'faI fa very wide, 80 mllOh 10 that except for a ~ew·thiD.JI IpeoULoally prohibited--

by the BAAricu •• ~erythiDC 18 permil.hle fQr. Muslim. ADd thia ie ez:aotl)" ~~ .phere w~re we have been si'ven freedom· .nd .. here· we aU leai11&te aooordini to ~r diIOretioB1 to, Buit the reqairem.- of ou age and ~itiona.·

Man.nt

The Jt.ai.,.Q, (o~ &he thiap prohibited. in.lIlam) have lMtm '.

IroaJlOd. ia.to two _teaori~·: Sara,. (i ..... thole .hi• ..hioh

. have been" prohibited ablolatel,) and Mu,..i (i.e.~· .hon thing.

which have been aimpl, di,liked). ·~t ba b. ~Jolned 0J1 'Muslim. by olear aad .au.d.torr i.ojuooliolll_ ~ .. ro&Uo. totaliy from ~erytbiag that has been deol.·red ., llft.~. Aa for· the· ~.Ma& the Bwi'Gi·.iglii6es· ita dillike ·ia lOiae· way ·or ·the othet. Le., ei"-er .sprullly or hi i.plioatioa· .• ,JiQ AI to the ·degree of .• oab diiIik~~ .For eQlBp18.~ .N_.Q.e Mtd:ttIAGI

• • •• • < ,.... , _

borderiDc on Bar ... ·,wlUlo: othen bfar ·.mDt.y. "ith· tho .ata,,.

•• I 1'-- •• _ I .-

.•..

whioh are permi.liblet' Oll,olir.e·, thelr ~.iI1w~:;-~.·'::·.*t·:·lar. ranging between the two nUemet· of pro hi·bitort ~ ltetDlilai ble act.ioaa. I(oreover. in 801B6 __ , ea:plioii meAI.reI h.Ye~beeD preeoribed. by ·the 8lttJri'GA for the ·prenn*,loD of Ar.,., .. while in other. suoh a'fraD~mentl havo. b •• n Ie~ to ,tile dil .. oretioB of the sooioty or to the individual.

ne Q .... eterlltlc 01 the 8AaT"ah-

. .

The 81tar'~ti'" thus preaorlbei directives for the reg.tion of

. .

oar individual as well a. eollectlve life. Theae direotiv., touch

sueh varied lubj~ts &S. religious rituals, personal oharacter, morals, habits, family relationships, social and eeonomle .• ifaira. admin;8~&tionl rights, and dutiea of citizens, judicial .ystemt 1awl of war and peace and int8r~ational nIi.tiona. Ia ahort, it embraces all the va ri 0: Us. departments of human lifet These directives reveal what Is good and bad, what i. beneficial and useful and what is injurious and harmful, ... hat are the Tirtuea

. . .

which we.h .. ve to cultivate and enoourage and w~.t are the

evils whioh we. have to 8UppresS and guerd against. what is the sphere of our volllntary, untr.mmell~, penon.1 and lOoi.l &otion and what are ita liraits. and fina.11" what •• y. and means we can adopt in ·establishing sueh .• dynamic order of eoclety &n~ wh&t ~6thods we should spurn, The BAcari'oA is a complete soheme ot liCe and .n all-embraoiog loci.l ord .. where

nothing is 8Uper811.0011 and nothing is l.~ki·ng. .

Another remarkable faot about the-SAar,'ai ia that it is an

. .

organic who18~ Tho entire aobeme of life propounded by Islam

i~. animated by the same spirit· and heaee any arbitrary division of the Icbemo is bound '0 harm the spirit. .. wen .. the .trllctore of the 8Aartia"·. Ill. thil respect it might be GO.pared to the ·human body which is all o~g~ic vh?ie. A le~ pulled out oC the body Cannot be called one-eighth or ooe·si.l:th mallt becaal6 a.fter its aepa.ratioa. from the living hll.:n&n body, the l~g oao. DO more perform .i.ti huma.n fUQutiODt ·NLlr caD. ·it be pI.oed iii: t.he body of lome ·oth6t animal with &ay hf}Pdpf .~king it hu.m.lI· to ~he

• I .. •

. .. .

~~teDt of the lim.b .. Like.i., we. O~Dot form .. oor.reot: opinion

about the utility, ·adllietloy .. ~d baa.:lty of th., hud, the 8yO or

..

' .• " ....

•• : I • '.

the .... of·. la_maD lJei.guparMelr. : ..... ~.I, jpJ"h·· .'.:.

-and ~~tioB within .liYing boGy. -: '.' '.' .. :,· · .: I/ ... ::;~:;·:

. The·lame ean be ~ in ro,.rd· to th, IOhulo 'Qf.liI.~~ JAgecl b)'. t.he 8Itori~aA·. . I,lam signiSeI tho .. tire 80hetae of:·.~fe

and not any .. : ilOJated part or part. thereof. CenleqaentlYt neither can it be appropriate to .iew the different, par-g. of ~ 8i4ri'aA in isolation from one a~ot,het uu1 wi.bou.t reprd..to:·*he whole, nor will it bo of any use to take Ul.1 particular ,.I.'.ad brackctit with any other "'i.mt~t The SAari'. can function smoothly and can domonstrate ita etlcaey' only if the entire system of life is practised in accordu08'with it and not; other-

..

Wlae~

'Many of the present .. day misanderstaPdinga about the

SAari'a" owe themselves to this faulty attitude in judging ita worth, namely, forming opiniona about ita dilrerent. aspect. "Aparately~ Some injunctions of it· are isolated from tho main

body of tho .Islamic Laws and thon thoy are considered in the prespective of modern civilization, or th~1 are viewed &8 if they were something completely self .. contained. Thu8t people take just one injunction of the Shari'ah at random. which be .. omee

~

maimed after it. removal from the coDtes.'. view it in the con ...

text of some modern legal .y.tem. and oriticise it on tbe 800n of ~ta inooDgruj~y with present-day oonoeptiou. But they fail to reali.e that it was never meant to be isolated for it forma aD. organic patt of a distinct and self-contained .ystem of Jjfe~

- There are some peoplewho take a few provisioDs of the Islamic Penal Code out of their contest and jeer at themf But they do not realize that those provilioD8 are to be viewed wilh t~e background of the whole 181amio "stem of life coveriDg the eeonomle, loei.1; political and edueaticnal spheres or actiyity. If all these departments are not working. then thole ilOl.ted proviaions of our Penal Code can certainly work no JDicaolest

For example, we all know~that 181am impo8&l the penalty of amput·ating the hand for the commitment of the~t. Bat thia injun~tion is .meant to be promuJga.ted in '. fu.ll.fledged Ialamio IOciety wherein the wealthy pay ZdtJJ to the Itate .. d tho

· .~te provide. r~r t~e baeio ileoe.iti. of the need, &Dd til- . ,:

I .

·w

I '. ': '_. ',. • :',..

4eMitote; w1terein evety to.ublp i.· -idiMd:· .. pia, .1tad to

.i.itora ~t ita own espeue lor • mild .... , pertiI of three daya ; wher&:in all citizens are prayjded with eq~. ·~priYj·Jegea and opportanitjee to seek economio livelihood; .heNID IDtnlOpOJilf;ic ieDdenciea are diacouraged; wherein peqple· ~ Qod.feuiDg ud aeek His pleasure with devotion; wherein th8 ririDel of paeroaity. helping t~e. poor, tr8atiag the aiok. proridiag for the needy prevail to the eatent that 8Yea & 1IID~11 boy i. ~_ to realize· bha t he i. DO~ • _ trUe II_lim· if he alIa.... h~ neighbour to sleep bUDgry while .he b .. tatea. bis meal. In other WOrdR, it i. not ..... t for the pr •• n • -d .. y MMJiety where yon cannot get ,& ainsle penny without ha'9~DI· to pay interest; :where in place of llait.l lIa' there ~ implicabJe moner-IendarB and banks which .. iDl:tead. of providing reUef aDd lhlooour to the poor and· 'the needy" treat them with.·caUoaa di8reaard. heart., .reru8~1 and brutal .contempt;· where the guidiag motto .is: f~'~v~rybody. ·.for himself and ·devil tak81 the hindmost·'.·; :where there·are great privilepl for the privileged ODM while others are deprived even of .heir leiitim&te right. ;. wbere the economio ayaiem., propelled by greed and pilo~ by esploitation. only lead. to the enrichDleD:t of the few at. the coat

O((CfUlbiDg poverty and illtolerable mile.." of th.8 ·~nYI and

. \ ,

where the politie&l system ae~es only to prop up iDj~.tjoe ..

eJ.,s"privilegel and di.treumg aeouo.itt diaparitieaa Under

. ,

,uc~ oondltions, it is doubtful if theft '.lhouJd be penaJieed. at

all, not to .peak of oattiDI off the thiefl. haDd. 1 Because to do BO would, &s· a matter of fact, .moant to protecting the ill.gotten wealth of 8 few blo~-lUoken r.ihet than awarding adequate punishm.ent to the pilty.l

1. H~~·it Blust not be misund_s'600d that lam· defelldlag t.heft or .. y other lorln of 1."les8Des8~ Not the lelAt I My iateDtion w aaly to ahothe va.t and radical dift'erenoes t ... t nip bet .... n tb. oon~zt iD .biab

~ rhe poaishment ~ ... and U .pplioable and the .tate of atrairs we .... today enveloped in, The oDly logical oonmlllliOD th .. follows is the need for .. cha.nge iD the entin 1)"8tem of lit... W.l:aen '·the _tire atrooture of laeiety is ehauged and • Dew way 01 lite ill if Iltabli8~. the ineobpuity between tb. injuDotion and t-'b. pre.eat oonten of "'ira would be oblit_6l a ted and the .YeDQ. for i •• ppl"liOil wo.dcl be opened~

..

"", 1 ••

. r '. On::Ihe·:'afher ··hnd,:··: 1,,*:. ·.t_:,:-·al. ~.~..,.;::... 1001",. ·jon

~ . . , ..

whioh none i • .,o~.p~ed by the r(t~.,pr~.~~cea to atealjt

For. i~;ihe Jll.mie 1001&1 :order~· .,.it'-·i .. ~jOlI¥· ft~·:".·.olUDt&ry help provided by individual •• · the .t&te'tQ.~ tho l>.aio necessltlel or ore .to .11.·, But, .fter ,roT~1aJ .• 11 . tbat, I.lam

:. enjoinl a severe and esemplary pl1niab.IIl~'· lor thole who commit theft, .a their &ation ahowl that the, are· anfit t:»1 live in· looh. juat* generous ~aD.d .he.lih, ~ aDd 'Would eau ••

greater harm to itt if left unohecked. . .

" . Si~i1ar i. t.he CUe of or' the puni.bment. 'for aduitery and fornioatiO'D~r .1~I.m prescribes a hundred stripes for the unma.rried and 8to~iDg to death .. f.Q~, the married partners in the erime, But, of oe.rae, it· applies to. eoaiety .. wherejp, every trace or luggestivenees has been destroyedJ where mixed gatherings of mon arid womon have been prohilliwd,.· where public sppearence of painted and pampered women ill completely non-existent, where m ... rriage has. been ma(le eMy, where virtue •

. : ·piety and -eharl ty are cu~rent coin. and where the remem brance of God .nd t.he, hereafter is keI,t ever fresh in ments minds and 4>b6&rts. ··!tlteae· puniahments are not meant for that filthy lOoiety wherein .autt&l exoitemoDt i~~1 napan·t~ wherein nude piotures, obloener1>oo·u'and vu1gar .. lIg •. h."e . ..1i1eeome common

recreations; wherein aeJ:ual pervetli:ona !have.."t-taken hold of the cinema and all otber plaees of ·amusement, wherein· mixed, lerni·nude parties are considered the ' acme of social progre8.8 and wherein economio eondtttons aDd lOCi.] custom I hav8 mad.e

marriage el:tremely difficult. II

IV

. ..

LEGAL ASPECfS OF mE SHARI4AH

From this diseuselon, I think. it hu beoOme fairly clea.r that -what we; at present, techni.l1y ".11 'I.lamic J,.a.w' is: only a pa.rt of a. complete .,o~~me of. life aad dOH· not have any, indepondeQt· existence in isolation from .. bat seheme.. Jt taD

.. nei~her be \lod.6t;ltool· nor enforeed 1Ei1*,.11. To enforce it

,

:,. ' ,:::':'.,;,::I. __ ,:)!,,,,,,:,. ' , ,,~,:,?';~: ~~: ~,:,: ,:,::, :,:' /. .:

, "

ee~ iWOiiut:ja ~,*." > ..... : ... :~ .... ,of .(he

Law'tGiY._ ':", , .. W-..t: ,j. -req1dred or p, • to ,:$r...a.-. __ ~' tbl:t entire I.lamia proarammo af life &ad DOt mweIJ. frapl8llt of it. Then aDd then .Jane ean the legal &Ipfd," be ~)y imp1emeatedl

This BOheme of the S1&Gri'u is. however, divided into maD7 parte. ' t There are .. peets of it .. hich do DOt need _1 utem&t force for their enforcement; they are and can be eD.foroed oDly by the ever·&"a,ke OODlcieuce kindled by hi. rajtb. in a Kbllim~ There aro other parts 'whioh are enforced by Ialam'• prop_mm. of edueatdon, trai:a.iDg,of man'. rharacter and the purification of ' hi. heart and hls moral.. To enforce certa~D otber par'tlt I.lam relorts to the use of the force 'or public opinion: the geuer.l will and pntlBUt"" 'of the BOciety. There are atill other part'

, ,

which have been la,notified by the tradltiODI and the conventions

of Muslim society. A very large par~ of the Islamic ey.tem of law, hOW8'fer, needa for ita enforcement .. in all ita det&il.,tbe coercive pow<,n and authority of the state. Political power is'

. '

els8nt.ial for protecting the Islamio .ylteQl 'o:t, lire from

deterioration and perTereion, for tbe eradicatioD of vioe and .. the eatablisbmerit of -virtue and. finally, for tbe enforcement or

all 'theae lawB that require the sanct.ion of the 8~.te and the j~diciary for their operation.

Speaking fro~ a purely juridical view .. point it is thi.laR part. out of the "hole Islamic Boheme of Iife, that the term ~'L.wl. ~ be appropriately applied. For" it il only 'hole injuDction. a.nd regula-tionl which are backed by political authority that are, in modern parlance, termed ~ uJaw". But

, ,

&8 far H the Islamic conception i. roncerned the entire BJ&a,.i'aA

stands aa 8ynonymoul witJi "law" t because the whole code of life haa been .deereed by the All.Powerful Sovereign ,of the universe .. However .. to a"oid confusion, we Iball apply the term ~·I8].mio La.n to, thOl8 portiona of the BAan'"" oaly w.hioJi demand the . "notion of,~ tho State-power for their ea.(orcem _'0.

The lslMnk Low MaJo~ Bra~be. at Islamle Law

15'1

The eatablilhmen·t of a politioal authority whi.ch may enforce I~laDlio Law requires a Constitutional L.", and the 81HJri'tIA baa. olea~ly I~d down ita fundamentals. The Shari'aA, haa provided answers. to the bssic questions of Co~atitution&l

. .

La~ ad h~ solved ill. funda~tal problems, viz., What is

the baste theory of the Stat;e·1 What is the source of the authority.of it. Ieg.ialatioD 1 Wh&t are the guiding principles of state..poli4Jy t W~at are the qualifia&tioDa. of the roles of an Islamic State' W~8t are the objectives of an Isl.mi.o. State 1 In whom· does sovereignty reside and' what are the differ~nt ,p.rg&M of the State' What i. the mode of the dJatri.butioD of po-wer between the d·ifFereD.~ organs of the State, vis., the

. .

Leg.i8Jat.u!'~.1 tll~ Exeoutive and the Judioi&ry' Wbat are the

OOD.di:tio1;18 for citizenabi.p' What are the rights and dll·ti:e1 of M.uslill) ci.tizen. 1 and What ~ the .rights of non. .. MUf$lim

oitizens (Zimmta), t. The guidance. which the S~ri'ah has provided in. respect to theae questioDs C0D8~itU~8B the

.constitution .• l1e..w of Isla:m.

:S.esides, laying· down the fundamentals of Constitu:~i,onaJ la .... , t~ $ AtJri'·qA. hu a,lsC? enuncieted the b~i'O principles of" AdmJ".tl¥8 La.,,~ Beaides tba.t, thero are p~C6~n:t8 i~ ad.:railliJtraiivo. ,~tic~. established by the Holy P~ophet himaeU (pe~Qe b. upon him) &~ the :6..rs~. four rightly .. guided Caliphs o( IsJaD;l. - For instance, the: nari'a/a. enumerates the souree of income permism.bJe for an Ialamio S~ate an~ those, which are prohibited. It alao prescrlbee the avenunes of expe~diture. It la.ys d·OWD rules of conduct for the Police, tho Judi·olar:Y -.ad the Admi;nistrativ.e m.acp,inery. It deb.,s ~~e respousi.bilities; of the ru.ler8 .'r~ard:it;tg the D)oral_ and :r;u.a.teri&l well-beiJ;lg of the citizen.8, laying particular emphasis on their obligatioD8 .s. rega~ds the suppression of vice and the establisb.m.ent o.f Vj.~tU8. It • lao. ape.oitlca.Ily B.tatea &s to wh.&t &:x:teD.t the St~te caD. i.nterfe~ with the .:£fa.ita of its oitiz8ns.

, In this oonn eotion , w:e fin .. d not only det~o~ive p~~ciples but .: alao many C8:tegol'i~1 injtmCtiop~ The. BAa,i'ali; bali' gi.voo '01

: ..... 'I.

. '

ri8

~ the broad framework of Admiuistrati"v8 Law-exactly in tllesame wa.y &R it has given the fundamentals or Constitutional Law and has left it to the dilcretion of the Muslims to build up the details in acoordanee : with the demands of the age or country in· whioh they live-subject, of course, . to the Jimits peescribed by the ShaTi'tiA~

L Proeeeding further. we find the Bharicak guiding ':18 in

connection with Publit as well .iI PersooaJ Law-which are e8lential for the a.dministra.tion of jU8tice~ Thls guidanoe coverl!l such an 8%tensive field that we. oan never feel the need of going beyond the 8htJ,.i~aA for meeting 'Our legislative requirements. Its detailed injuDctions are such that they can alw&ye fulfil the needs of hqJllan society in every age. and in

.. every oountry-provided, of course, that the entire Islamic scheme of Iife is in-operation. 'They are 80 eomprehensive that we can frame detailed. laws for every· emergency a.nd every fresh pro blem on their basis for whioh the legislature bu been

I given the right of legislation.. Aillaw8 th~8 frapted· are to be 'considered an integral part of the Islamic Law. That is why the laws framed by our jurists in the early days of I.lam for

+

the sake of "'Publio Goodt'~,; form a part and parcel of the

. Islamic Law.· - I·

....

Lastl,,. we have tba~ part of the L&w whioh ' deals with the

relations of' the Islamic State with. other states, i .. e., the latem.tlooal Law •. In this'·oonnectioDJ ·t-oo, the SAaJ"i'al gives us comprehensive regulation relating to war and ~, neutrality and allienee, etCe Where, however. no specift.o injunctions &ro to be found, the laws can be framed in the light of the general directi- .. ea 8S laid down in their behalf.

. .

P~rm.aDeDCe and Cbange iD Islamic :taw

This brief cIasaific&tioD and elucidation shows that ·the guidance of the Sharjfah extends to all the branches of law whioh have been evolved by the ingenuity and need of the humen mind 80 far. This is. st&n~ing teB~imony to the independence of the Islamic I .. &w aad its inherent potentialities. Anybody who take. ~be trouble of making a detailed study of

'!ri'

Tht lalamio-Law

the subject will be able to diBtingnish between the part of the Shari'ah which has a permanent and unalterable oharaoter and ill &8 sueh, ·extremely beneflcial for mankind, and that part whioh is t1exible and h:as thus the potentialities of meeting ~he ~ver-inorea8ing requirements of every time and age. .

The unalterable element~ of· Islamio Law may be classified under the fol1owing hea~s :

. .

(I) Thole laws that have: been laid down in explicit and

unambiguous terml in t~o_ Ql1r'a.n or the authentio ~raditions of the Prophet, like the prohibition of alcoholio drinks, iilterest and gambling the punishment

.

prescribed (or adultary and th·eft 'and the rules for

inheritance etc,

(~) The direotive principles laid down hi the Holy. Qur'an and auehentie TraditionBt e.g., prohibition of the use of intoxicants in general, or the nullification of all exQha~go transactions whioh are Dot the outcome of t~e free .. will of both the parties, or the prinoiple th&~ men are pro~tor. and in oharge of women.

(3)" The limitations imposed 'on human activity by ·the Qur'an ·and the Tradi.tioDS of the Prophet, whioh O&n never be tran~gre8sed) etg." th.1imitationln connection ~ith the plurality ofwiv8S where the max;mum number has been fixed at four, or the limitation th.t th~ nu~ber of divorces .. t·o a wife cannot exceed . three. or thelimitation imposed on & will, the amount of whioh

.. I

esnnot exceed one .. third of the total inheritance eto ..

"

It i8 ib.ea~ unalterable m8nda~ry provisions of the I81amio

Law whioh give a p~manent complexion to the Islamio Sooial Order and the c9araoteristio features to iti Oulture, In Caot, ODe oannot find 8 single culture in the entire-history of mankind which oan retain its separ&te entity and it. distinct eharacter .. ', without possessing an unalterable and permanent element.

If there are no permanent .ments in a culture and eve" part of it is subjeot to change, am.endment and modification, i~ ~. lI;ot an idependeat oultufo at all" It is jU$t Iik~ .. fiuid.

-

80

r

.. ~h.foh t"an take'.bY and eVfiry· shape ~nd OM\ &l".,..utfer tr ..... flguratioD .and metamorpho8is.

Moreover, a.. tho~ugh a.bldy or·these di·rectj.ves. injunctioJII. and limit.tioD8 will lead every reasoD&b.Je· DIan· to the eoneluaion

. +

that they h~ve been given to· us by the 8haii,'aJi. only for thOBe

matter .. where the human mind is likely to oom·mi",tJ. errors. and go· astray I On &l~ saeh OOoasioDS~ the SAMi'ali h~.IO. to a&Yt se~ the· 8ig-DPOSt~ by iuoing di-rectiT811 of making o~orioa.l pro~ hibitionB so ibat w~ may proceed along the rig·ht path~ -Aad, these signposts. far from, impeding .~he matoh of human propel". fLre me&nt to,keep,us ·&long the road and to 8&ve UI from skiddiq

.. r

. away. ·Im this qonnectioD., it mighi not b. out of place here to

refer to the la1J'& o-f the SAa.ri'tih governing marriage,. divorce and inheritanee whiob ·were the target of very bitter criticis1Il . in the rec~Dt i •• t. It. i. these .T.~ry law., however t to whioh the world is DOW turning lor guiWC6, tho.ugh after innu~rable bi ttef experiences I

The I8eOllQ par ~ of Islamio Law i. that whioh is aubi.eot to

. .

modiftc&tio~ according t.o, the need and requirement. of the

ehanging times and it is this· part, of the Islamio Law whioh endows it wi·th wid. ·po88ib~Iitie& of grow·th ud advancement - and m&kea it fully capable. of rnlfilli~g all the needs of ·an

ex p.llding· human lOOiety ·1D. every age.

'Tb..i8 pari.coD8iau of _he fo~ewing!-

. ,

. (a) Tta"wuf (la·terpret.-floD): It oonai.t8 in· probing, iDio

t.b& .~.Dg. of the inj.u·notioDI fo~~tl In· the- Qur"au ·amI the- S"'ft.l1aA~. A8. sueh, i·t baa alway.s OOQupied and~

, .

still O481Jpies a plsee of im~enae importance in Islamio ,

JuriSfradenee .. Whel1 tho~ eadowed with penetrating i·a8~ght au~ legal acumen ponder Qver the injuaetioDS of the- .Q1if.·an and the 8unnah,. they find that many of thelQ are ·open 'to, different fruitfut and valid interpret ...

tion·!a ·CoD88qu6ntly t everyone of them aoCeptB 80me partieQl&~ interpretation acoordiag to his 'ligAts Oil the meri'ta 0:£ th& case. In ttua way J t Ike .<loon. 0:£ di ffereD 08 , of opiai.ons. have alva,. been opell in the past, are open even· today .. and will ooutiDue to remain so in ~he ruture~

... .

·81.

(b) Qigas ·(De4uctfoa ttY Aualogy): It consists in applying to a ma··tter with ·respect ·to whioh there .il no clear '.guidance, a rule ·or .~D:juDotiOD a.vailable for some similar matter.

·Ce). IjlWul (DlaerpUaed ",",gmeat of IlIrJstl) : It .oonsists in

. legislating on ·matters for whioh neither an,. explicit· injunotions D·or even p:reMdente e.xi~tJ lubjel1t.,.. of course, to the genera.) prinoip·lea and ;Precepts of ·the 8Aar'~an..

(tl) IsfiAsan ("arlstle Prefereace) : It means fratirlng.ru~!8t if necessary, in non .. prohlbited matters in ooliformity with the spirit of the Islamio leg~ By.tam.

Any ODe ·who consider. the po8libiJiti~ iuh8l1mt in the abQve-mentio:Ded: four ways of le!f!slation. o~ 'Dever reasonably

. eDte~n a.ny misgivings as to the dynamism, adapt&bility ~ .progresai ve nature and powEtr of evolutionary· 8.rowth of the leg.lsystem of 18I~. Bot it should be remembered ~hat every Tom, Dick and Harry is not entitled to eurciso the right of Tatweel, Qilla8f IjtiW. 1,'ii,an .... Nobody hae ever recognised

-

the right of every pUler .. by to give v.reliot on pr(jbl~8 of

national ·importance. Undoubied·1Y:l. it requires profound leBai knowledge ·aad & trained m.~Dd to 8l1a:bJe one to speak with

authority on any legal matter t •

Similar is the~oaae with ~h8 .Islamio Law. Obviously. to achieve the ·status of a. jur~t one should. be fally oonversan·t with Arabio langu&g6 and literature. He should also have a complete grasp ~f:the rea·l. ·hi-storioal ·background of the injunotions of I,lam" "lie should have special insight into ·the QUrJaoic style of expr888ioD, He should ha.ve a. thorough knowledge of th~ . vast. literature oil t·be Traditions of the Holy Prophet al well a8 of

the Traditions themselves. .

In the special field of analogous deduction, a Muslim jurist is required ·to possess a keen B~eDse of legal judgment and tho requisite capacity for I iDt6rp~tati?J1 of facts on tho basis of analogy; otherwise it wo~ld not be possible for him to Bave him .. 861f.from fAlling iuto errors. As ·regards IjlihtMJ. or orisiaal

"

82

. -

The Ista.m'c Law aM Oonst.,.,lon

. ,

legislation, it requires th') jUrist to have nq.~ .~Dly & deep knowl-

edge of Islamic Law .but al80 a developed sense ·~f iDterpreting. matters in ·the true Islamio spirit. Similarly 8S regards loih8"

. .

. or the cODsider&tiOD of public good and legislation for th·at

purpose it calls for & oomplet_e understanding of the entire Islamic scheme of life as a180 a complete grasp of the spirit of Iel&m.so that he may adopt only those things whioh can be approp~&tely aBsimi~ated in the Ialamic Scheme and whioh do not amount to driving equare pegs in round holes.

And~ over and above all these intellectual accomplishments, there is another thing which is vitally essential, and tha.t is unstfnted devotion aDd loyalty to Islam- and a deep sense of accountability before God_. As regards those who oa.re little'for G()d and of the Fi~.~ Aooounta.bility. whose wa.tch-word in life is· sheer expedienoy,- and whoprefer the non .. Islamic values of culture and civilization to those given py Islam. they must be regarded 88 the last pe~eonB to whom the }yOrk of Islamic .legis'" l&tion oan be entrusted. For, in thoir h&Dds. the Ialamie Law will only suffer perversion and eormptdon. It will not grow,

. evolve and prospe~.

AN EX~MINATION .QF OBJECTIONS ON

.. "I I •

,ISLAMIC LAW· . .

...

. -

We shall now try to examine brieRy some .of the objeotiqns

Usually ~aiBea aga.inst the '. demaad for the introduotion and enforcement of Islamle Law in P.ki8.&n~ These objeo~ions are many but it would be an unnecessary W&Bt~ of time to mention all of them here, Tl;lerefore I propose to oonfloe to the exami ..

. nation of those objeotions only whioh are of & fundamenta.l ·natural

1. "lsI_otic Laws are Antiquated"

The 5.rst object-ion that is raised is that, as the· Islamio .Laws were framed thirteen oenturies ago in the light of the

. ,

requirements of a prlmibive society J they cannot be o.f any· .use

. .

for a modern 9~ate of our age.

I doubt very muoh whether people, who take this stand are

11M Islamio Law

conTersant even wlth the rudiments of the Iale.mic Law and poasees even an elementary knowledge of it. Perhaps. they hav~ heard. from somewhere that the fundamentals of the 181~io Law were eDuninated ·more than thirteen hundreds ye·ars ago, I and they h~ve Uaumed that this Law has remained statdo siD~ then and haa· 'failed to respond to the requirements of ·changing ·aonditioD.l of human .Iife, On this misconception

they have·further assumed that Islamio L&w "ill be unsuited

. to. the needs of the present .. day sooiety and will clog the wheels of progres ••. These ·critioa fail to realize, however, that ,the laws propounded thirteen and a half centuries ago, did not

. .

remain in a vaCuum ; they formed part and parcel of the life of

Musli~ society and brought into bemg s· 81aU which was run in the light of these laws.· This nat~ally provided. an opportuniby

. of frrolutio~ of Islamic Law fro~ the earliest days.,&8 it bad to

. . . .

be ~ppIied· to day-to-day lQatters through the pro0888 or Tatweel

. QiY41, IjtiAatl and l't'Asafl,~ . .

Very 800:r;L after it. inception .. -Islam. began to hold away Qver nearly ·half the ·o,vilized world s~retohiDg from the Paeifie> t~ the Atlantie and durlng the followi~g twelve hundred year •• the .Is1am-io Law continued· to be ·the ~law of the Iand in all .

. . . . ."

¥u~i~· .t&~~ ~hi. proo88B. 9£ the· evolution of Ialamie Lilw •.

th·~~~fore, did. nqt. itop for .. moment up to th~ beginning of th.8 "ni.netee!l.tb oentury,. beoause ·it had to meet the chaJlenge of the

. . .

ev.er-ohanging . oiromri8tanoos· .and f~ oountlees _problems con ..

fronting:different countries in diffe~t stages of history, Even ~ our Indo-Pakistan 8ub·oontioent, the Iel&mio Civil and Pen!'l Codes wen in' vOFI_e' up ··to 'the beginning of the .nineteenth

. _ .

~ntury . . .. , . ~ _ "' '-..._

ThusJ it is only for the ,las» . one hundred 1ea~8 that the hl.mio Law remained inopera.ti~e "a.nd BuJF~red 8tagIiation .. But. fir8tly. this period does not form _ big lap aJid we oen ' ea.sily

~ .

mako .up fo~ the· lOla :with lome amount of strenuous effort ;

s6condlY.··"8 poSses8 full recoras ·ofo··the· development of our

jurisprudence century by oentury and there can be absolutely no lround for flultr.tion or despondeney t .Oor path 9~' 181a1 pro-

._

..

'grea8 ;0, thu8, fUlly "illumined. .

". I •

~OD~ .we ~tf&ve gruped 'the "fundamental .. pri1lOipl.·· ... ~d· 'the ,

, blUiio ·fa. 'oonoerning the evolution of ·the lel.miD. system :6f

. Law, we canilot remain ·in doubt that thi'a law shan be'M 'r~pdiu.lve 'to the urges of • 'ptogreeaive sooiety in ·the prei6nt 'and ·the future. as it has been in "the past. Only those 'who sUffer from'ignoranoe can 'f&11 a prey to sueh nonsense, while"thoae who

'have a . grasp of Islam and th_ Isl&mio Law,' are aware 'o~ .it •

. potentiali'bi6a :of. progress and those who P088&1S even a .OOflOty knowledge'of't~e history of .its development. oan never SD.lpeot it 'of'beiq ~n 8.Iitiquated or". at.gnant .,stem of la,w. inoap.bl~ of k6epi'Q·g pace with the maroh' of history ~

2. ·"lsI.me ~'LlM. are ltelJg "!f Barb.ria." !

. .....

:The "second. moat commontbtj"ection-an. objeotion whioh is

·put "forward publicly only in • ·ro~d- •• boll' ,·Jiu.nner but which is·presented with. much vehemenoe a.ad venom in :private talk8~ is ~h'at Islam is 'just & relio of the 'Dark Ages'r Abd ··thoae 'W·ho &e.Y·80 &1sb'ar8'ne, with an air 0'£ h.ughtiaeal and 'arrogance, tn ••

. the "progressive. cultured and humane" outlook of the modern, enlighteaed age csn never tolerate luob ·'·oruei;t .penalt.iea as tho' cutting Of 'the ~and8t or tloggiDgt or stoDing to de'sth-

! . .

·pen&lti~ 'ilripo'sed by Ialam for oert&~·orime8 •

. This objeOtion arid this allegation, coming as it does. f~m tho ·.$Up~o·rter8, 'of"modern Western oivilization; makes one,~p '"9rith wonder. 'It is, indeed, amazing'to hear that' ·-the norm.1 'nlues of the :pre~ent age are .uadvanoedu ahd f~progittssiveu",

The heartlessness Ihown by ·t·he "enlightened;' man of today to his fellow' beings hardly finds a. parallel in the darkeet ages of history. He does not punish 'by atoning to' death, but he can kill people indi80rimina~ly with the 'atom bomb.. He d.oeet·.not ' merely .out off ·the h&nds· of the people but he al80 tears ·their

bodies into shreds. He is not content wi~h . floggingt he "ould Iiketo burn alive. tha poopJe en .,ma8se and manufaoture soap oat

. of the fat ~~tracted from their pead bodies.1 LeavinS' aside

" "

1.. ~rhi~ waa dono in GorInu.nYt one of tho most uprogre~sivet'll conntr ios in th. world-Bditort

r

, theM demontitrations of ;h-rtleemesl during 'the period of war ·wherei·n . everything ~. oonai~red fair ·no wd.ya, ·the modern man brutally ·'_.ti8es~and does it UB.8parillgly-the political u"ri~bin : the Gllegefl utraitora" to the ll·.tional cause ~d th.·riv. iil·the economia and poli·,i_l, :6.elda. The . highly· objeetimtable and inhu~1Wl modern methods of iDvttltiga.tioD and

. !

stortion of OODfeeaibn ·:em.ployed e"~f.I·b"Jore prol}i,."g:,1I; chargt8J

are. .ail. open s.earet. 'In view of ··theee fBOtB, it i. non-aensical to .ay that 'the moderp. man cannot tole~ate the punishments p:res ..

eribed by, l.lam for proved and ~liBW, ariinio..1. becanse he

. poI.8aaea • ·more refiD~ outlook ; and it dOH Dot lie ·in the month. of those whO. oan tolerate bloody ~.'purgeeU after eon-

COcted ooD~eiaioniJ .~d .phoJl.e,. traila ·and Who uphold political inquiljitkiiiJ, ·and aonoentration camps, to pone ;bo·t ·venom 'against

tlie~II1.Jilic Penal.Code.1 .

. The truth i. that it i·a Dot 'the severity of the punilbmenta

in laIaii1 ,.,hioh the upholders of modern·o_vilization abhor. for they r.ort to even more tt.rtuouB punishments theIll'l8I~es. The ·reason for their ·hysteric outbursts against this an~ed ~'b&rb.riam.·' Ii.· actually in the perverBi on of moral ·value-that is,· in ·the fact .that they do not tbiIik that oriQle8 like drunkenness and. adultery deaer·ve even a. wor·d of. repro~h, .. ha.t to speak of pa·u.rul p_i·sbm_ta. I Bad they. been opposed to theae ·punish .. m~ts OD ·humanit&r~an oonsiderations, they -W'oul~ ~ have likewise 'eondenmed the brutal puniahmen:ts given to people on fiimay political and economio grounds. They oomplain in respect of Islam. only beeause ·they do Dot at all d~m ae .. sin or orime many a thing condemned by it .

. "I would like to put a atraigbt question to these varieties. of .efmodernityi.: '·What are tbe values tha.t you believe in 1 Do

1. Pror~ E. ·F~ M. Durbin. artfu" narra.ting the callous and Inhuman t..reat. mont which iB boiQ..$· mated out in the mosb Uprog.ressivou states of . the world, eoneludes that = ""such larga.sca.le brutoJity haa .rarely been

. witnessed. I tl-Ul thaUkful to iiaY7· ill the previous his'tOllY of the world tt rrAe. Po~i"iu 0/ D&ntocmlk SoIiulMnI, 1948,. Pt 25) t

See a18o·· Xhurshid AJiw.ad. .rana 1ioNt. I I nlolerottee and I. lam_. . Islamic Publiaatlons Limited. Lahore.+·2nd ed .• 1960-liIdilo·r.

. . '. .

Q6.

....

a'A. 1alaM$0 lAw aM Oonltitution

_ .

... _

_ yOu believe in the. Islamic values of Iife and standards of morality or those of the modern civilizationn t If you have made your· choice and accepted some other values and eome di.fferent· standard of right and. wrong, of virtue and vice. of the perminibJe and the prohibited as against those envisaged by 1I1am. it is then a difference of a very fundamente] nature. It means that yoU: differ with And disbelieve io t~e Islamio ideology ·itself. In this caee you should have the COU~ag8 to

. .

declare, that you rejeot Islam outright. 18 it not foolish to

.1I.,ge faith in & GQd. WhOle I.wlt you. consider aa barbarous , Anyhow nobody can remain inside the pale of Iala.m after hold-

ing snoh· an opinion about t·he law of God.1 "

31 Tbe Bctgey of Se~.tarl ... Dllfereaeei

. We have dealt with two objeotions 10 far. The third

objeotion ia that there being m~y aohools of Islamle Jur,iaPrud~, . jt is not poa8ible to evolve &Il agreed codeof Jaw which ·might.be acceptable to all. th!, schools of Muslim

~ . .

thought. . It is ~his ~bjection on whioh ruts the ~.t h~ of

·tIle opponents of the I.lamio Law, and ·they a8em tofeel confident: that on this 0Qunt they wil.J be able to IOOre. point

r' . .

by· 4riviog ... & "edge am~g the' .. MualiD;L8. J4o~ve.r, th~

. . . . .! _ . .

prO~om &~ baffles ~anl .. lI.inOere people who ~ . loyal to I~l~m

ancl::who,· J;LOt ~ .. f~Y conversant. :1rith. itl .~hing., fail to ..

o I I • I •

-

. .._: - . . .

1. Here the I~arned· author is replying to those c:ritios .... ho olai. ·to ·tNi

Xq·~im8 b~t- UDder ·t~e spell 'of 8J.ien i.niIUQD-08S 'WaRt to atD8l1d. the basic· ~8. ~f I.law.~ withu'Qt any regard for the spi.r-it &nil id.~8 of Islamio id.eology~ . The', are apologetic in their attitude and wapt to

blow bet and oold in tl:I:e aame breath. '

As. to the question wIu-ther . the ·pullishme nts ate too harsh. or not. he has al~eady anaw"! red·i:n tile earli or part of the di8o~s8ion. Islam creates such .oonditions -.s may ensure the elimination of the oau.u

, .

of the commi8sio~ of cri1D:-6s.· But. if. in spite of it.· the. evi.l doers

com.mit thenit 191&~ punis __ · the oriminals in such a way that others ·may not ~e to ·do· . that 4 I" That .is why we 6Dd ~t ~~e:D these

panishments were in vogue, crimes were ex.tiuct while todayl' despite

. . ,.

all the clap .. trap. crimes are on the increase. and W6 hear voices trom

" DC ~al qu~ ta~s that ehe ata~d~r.d~ or puniah menU, Br.s .prov illg iD08.pable .of F,applins: wi.th the pro1:Hem.-J7d'ilGr. . ' '

'I

+.

•

. .

. frT~

underata.nd how the 4 complioation' can be removed. The fact ia that this oo'mp~ioation j·a merely & figmen~ of fertile im.agination, for I the existenoe of different schools of la.w· can

never become a.n obstaele in the way of the enforcement of Islamio Law I

. The first. point· to be understood in this oonnection is that the broad ou-tlines of Islamlc Law t consisting of mandatozy and unalterable commandments and fund&DlentaJ principles. and limItations ha.ve alw .. ys been accepted una.nimously by, all tho

. .

Muslim sehoola of thought.· Neither there ever .~as, nor there

is now, any con:lliot of opinion regarding thia portion of our L·1aw-a.. Whatever diff"enc88 had ever Brilon were alway. in eonneetion with the deta.ill ~that were to be framed th~ough iDterpret.tion~ deduotion and ljt ,had-a] I , of course, within

. . .

limits preacribed by Islam.

The nature of these differences can &lao be wlderatood by the faot tha~ rules derived by jurists ~hrough interpretation, deduction. Ijtihad or I.tiABan could iLever acquire the force of law without ·either being accepted unanimou8ly {li~') or having the approval of .the majority '. (Jamhotn)~ This u:p)aiD8 why the phraseS like t4 'JI ~. (anaWDlOI18 agreement). J".,~I ~ (majority . agreement) and ds_,:.&J1 ~ (adopted judgement) are appended to the ~xpre8aion of B.a! opiniODa by our jurists in. diBo~l8ing legal matter., ~d it aigni~ea that t~eir opinion had finally to obtain legal suotion in ·ord8l' to become & law for Muslims.

-

. .

These unanimous or m~jority deeisiona oan· be of two

.. kinds! . .

Firat,. t~o.e whio.h have .always been a~pted by the entire Huijim W·9r1d or by the majo~ty of ~uslims. '

. S8CDndly, those baled ·on t~e unanimo~ •.. a,ireemeut of the Muslims of a. paTticular oountry at ~ particular Period,. or of

their ma.jority_ '

Decision. coming under thQ first oategory, "if based on

. - .

unanimous agreement, are Dot 8ubject to review and should

" ·always be aooepted al part and parae} of.Mu8lim L~w. .. t!

68

Deoisions made by majority ag~8Itt ·oan be acoeptod &8 .

. .

law only if··the m·&jority of the Muslim. ,of <the, oountry -whereio ·

·they ~ .. ve to be .promuJgA.ted &1110 ."..pts ~em, as such. If

. ·the majority of'that Oountry ~pt8 theIttJ they will become a law lor'tbia OOUDtryl otherwise noe,

. .

So much about the paat, As for the future. t·he law. whioh

&16 acoepted unanimously ·by majority of the Ml18lim. of this . CO;1lD:try,. will be en&Oted here, In the past too. this hal been

, the. ,pra.otioe . aDd DO la.w used to operate without either the

-. .

nnllDimou~ appro-valor the approval of the majority of the

Malim... And it "il this method whioh ifJ praotiaable even today a ·1 do Dot think that any other prooedue can be preeor.ibed ·from the democratio point of .ieW either.

. ,A question·may be asked .& to what would be the posibion

of thOle -MarjliiD~ who might not agree wjt~ thi majority.1 They ·.re enti~1ed·to demand the enforoe~en, ~f their own Code 'in th~ir·-periIoDal mat~r.· ana ~hi. demaad of- theirs muat be aooepted~ But, of course,' the '··Law of the ~.' .haI1 be the one which haw the sanction of the majority I

I·am lure t~~ no .Mualim·of any aeot would ever adopt the foolish position of.preferriog ·the 001i6iDU&D08 of un-Islemte 1""8 in ·Pakiitan on the grodnd th·at he is ·.bot in agreement with the "1~1I ·or..the ·majority of M~.llm8 on oeriaill ·pointe: of Isla.mio Li;,,_, Obvioualy we oallDot disoard ·the Ial&m.·io wa-yof life· ·simply beOaWtB··we 6re not·unanimous oil all details of. i,. law. Has ·there ever been or O&n there·~vttr be ny law or IYStep:a of

. -,

life on all detaile of·which ·all its:·followers treN. are or o&D-ever

... . I

be unan-imoll:s 1 What do you say about the legal syatemll that

is in force in t;tae country at pJ8SeJit or anywhere elle t·

...... ------

1.· This objeotion waS blown up by the complete agreement of· the ·U~l of all schools of thought in the Convention'S held in 1961 aud 1953 at, Karacht In those Ocnvenbicna, the fU~' unani moualy formulated the Basic Principles of the Islamio State (see Appendix I} and .180 moved Amendments to the Basic Principles Committee!ls R~ort (see Appendix II}. 'l~his objeeli.otl; therefore~ has absolute1y

.. ;. . no iround.-lId'lor.

T-he Iltl.amic La.w

4~ The ProitlelD of NOII.Mnli. Mtaorltfel

The last import.nt objection ia this respect i. tl .. at there

• •

ia a &~bstafttial Don .. Muslilll8 minority living in Pakistan who

cannot ·tolerat. bein.g goveroed· by 'he religiouB law. of the MlII1itD8~

. This objection ie baaed o~ .. very superfioial observation aad shows a I.ok of proper QQ..lysis of the problem. For even

a little amoUD.t of cool tbinkiag can di8lipate the fog of this

nUsuoder.tandiDg 4t • .

The.law with whioh we have been uti are conoeroed here is

. the law of tit. laud· aDd BOt t~ personal law ~f any cOmmUnity.

In per80ual .. tten Bvery ooman·nity is welooZD.8 to adopt ita ·own. persoll·.ll.w·. IadetKl,. it is only islam. .hich. guarantees thia l'igh1J ill "h~ lU08t liberal manner to- all the miuoriti_ liviDg 1»,. all Ialap State 40 It is Iata81 whioh has taught to. the· D1O.del'D world; the rea, 1 diJferenoe b.twoeo. . the '1&. of the l"Dd'~ and the· 'perconallaw' and wb-loh. 6IlWlAli .• ted,. tb& principJ. that in & multinational stJate the personal atfairs· of a man should he

settled aoo.ording to hiB own Peraooal Law.. ~h.refore. u,o,

. .--

m.inority group. should fool afrsJd that "0 would th;tust our

own religious laws on thea In their persoll ... l m..attersj &Dd 'hall ... thua, violate aD inj:eotioa .... m.biguo1l8ly t.id down by Islam i_lf.

. ,

The ques.tiOD that DOW remaia.· to be. dealt with Is: What ..

should be our 'law of the I.ad; 1 I think it is the demand of justice and fairn.ess that the Law whioh oomOlanda. the approval

of the. maj.ofity alone has the right to beoome- .ae 14. of tho" ·L&lld:.

~'i~ie8 are entitled to demand ~ safegu.w. {Of their legi-ti •• te rights and in·terest8 and we are bound' to eoneede thi,. de~and as Islam itself enjotna us to do 80. But it is not fair far the mi-nQl'itiee to ask us to throw our ideology overboard and i.tro~e lAWS· whioh are against our con·Y'ipili'OD8 ~rely for th.e .&k~ af appeasi~g them. When we ·were"Jielpleaa because of forei!ln domination, we tolorated·~h8 supremaoy of ttn·Islamio· ~.y... ·Bu·t QQ.w !h.en we are •. lItera of OQ,l de&ual,.·we oaDDot

'0

,

replace Ialamio. Law. by those of any other type ~thont OOllICioul apostasy and betrayal of Islam: Are the minorities really entitled to uk· the majority· to give up: ita religion and ita way of IJfe 1 Have they the right to demand that the majority should give up the prlnciplea whioh it oonlidera right and adopt others whioh are against itA oonvictions 1 Orf i. it ~.lOna.ble tha.t in a multi· .. religit?118 country all the oommuni·ties ! should become irreligious 1 If tlte answers to all these qu~tion8 are in tho negative, Tflnd tao reason why -Islamio· Law' should not become the 'Law of the~LaDd' in a country where Mq)ims .. are in a predominant majority.l

-.

•

•

1. M~reover. the tI'u~ position :W tb.t the repn..-ntat:iVeB of the Chr.lati.&as in the Fint Oonstituent A.iemb1y of P&killtlaa and IQme of the leaden of the .,obeda.led outes,. who ror~ the !DOlt imppn.nt miDority .. ·h.V8 demrmdld the eatabliehment ot &II Islamic State,. for they hold that their right. cau be betier ..... egn.rded in .noh a It.te. They kD~W that an I,lamia State do .. Dot· permit any chum to e.xut between praoept and praotioe.. All Muslims are uDder an obli •• tion to do wh.' their religioD oomm&nds. ADd if they violate" th~y oaa do 10 onl,. at the cost of their q'WD reli,ipn-aa,; their 'Wtry faith an<! e:alvatiQQ.-lfdt'or. 4

Chapter 2

Leg islation and 'Ijtihad' in .Islam

MAULAN.A .ABU]; A'LA MA.UDUDI read &paper entitled 'R?le of IjliAad sad Soope of Legil1ation in Islam" at the Colloquium on I.l&mic Culture held at Lahore in January 1958. He was & delegate from

Pakistan and was ~llo .. member of the OrganiBihg Committee of the Colloquium. This paper oonstitutes . first section of the presenb ohspter. Its second section consists of the reply which he gave to the objections raised at his said paper~ The third and the Jut seCtion h.. been taken from a Dote of M au lana Maududi whioh he wrote in reply to a query and whioh

. .

was published in Ch;'graA.:e.l~. Islami Qa no 0 ft. Numbert

, .. ,~ .Vall II (Vol. 12 =_ N01l 1).-Etli'or.

LEGISLA DON AND 'In1H·~ IN ISLAM·

, .

Fo-a u .eq~ .... reoiation, of: t~ .. bjipot ~ dil!lC1l .. ion.

.: tlVO. b .. i~ ~. have to be Q1~ly born •. in miQ4 ... viz;

(i)- the So~Heipty 0(' God, ~.

(i~,) t.he f~o,hethQOd· of_~bu.mmad (peaoe·be,~pon.hjlll)~

. Ial.. adaita. of DO lOy~y 6S08pt that 01 Gocl~ snd, co .. ~uently, ,does. DOt ~i. any I,aw.g.iver other·,. th.u;t.

Him. l'h. Concept of tho unity of God., al advooate«. ", th. Qur'&~ •.. ia. not Hmit$d. t4 Ilia .• ing tb:e 8~1~ ob!eo~ of wonhip

. .

in the r~ou. ae~. aloDL Along with it., Be iI invested-

.. with oom.ple~. '·1$1&1 $Overeip.ty' J in the 8ease in which the ~m. ia un.deutood· in Juriaprtldenoo and Politi-cal Science~ This aapeot of the legaJ. IOnreignty of ·G.od is U lDuoh and &8 ole&rly·emph&.aised 'by the Qurl.n &8. trh~ OD8 pert4iaiDg w· His

. .

being the ,only dei·ty to be worsmpped. According to the

Qur'a.n theae twin faoets of the Divinity of God ~re the ft~ qua n~ of ~he Di~ine Entity and aro 10 vi",lly in.linked. that &. negation of either ipso facto infringes the- very c,onoept of Hi. di"i;nity. And 'be QQr'an lea.v.. no rOOID for the.

+

impreaaiou that the divino law may meaD: merely the law· of

n.tuN &ad nothing more, Oll, the 00 Dtrary I i' reara, the entire edifice of· its ideology OD. the ,basis that mankind should order the.affairs of it. eth.i~l aDd looial life in aooordana8 witb the law (SAMi'aA) that. God baa oommuniaated th.rough His Proph~tl!J (may ·HI. bJ888ing8 be on them). It is this .ubm.don to the revealed law od aurrender of one's frt)8dom to it that has been ~Bned the n&Dle of Islam (surrender) by the Qur'an .. It denies.in the ole&rst terms the ]igh~ of man to exercise any discretion in Boch matters as have been decided by ~Uah and

BiB Prophet (peac~ be upon him),

&'18 the Our' an : .

"It is not for the faithful, man or woman,. to decide by

th8D18el,,~ a- matter .tha~ baa. been decided by AI!ah.

72

Lt,i~lation (tftd Ijtiluuf in 1,la.

and His messenger!! and wh080eVt,r commits an a.ffront to Allah and HiA messenger is c~rtainJy on the wrong path ". (~:1:. ~fl)

I

PROPHETHOOD OF MUHAMMAD (pbub)

. The second point which is as fundamenta.l in ls1am as is

_ the Unity of God, is tho finality of tho Prophethood of :a.ruhammad {may God's blessings be on him). It is really because of this factor that the concept of the Unity of God transforms ittself from an abstract idea into a praetlcal system and the whole edifice of'the Islamic way of life is raised upon . t~lis foundation, According to this concept the toachings of all t.he' earlier messengers of Allah have been incorporated, with numerous important addiblons and alterations in the teachings of Muhammad (may God's blessings he on him). Hence t,hos€'! teachings constitute the only source of Divine guidance and law t BS .no further revealed guidance is to {:omtl

.to which it ma.y become necessary for mankind to t.u rn , It is this dispensation by Muhammad (may God's blessings IH~ U11_ him) that oonst.itutes the SUPREME LAW which represents the Will of God't the real Sovereign. This Law has heeu bequeathed to us by the Holy Prophet (peace be upon him) in two forms:

First: the Qur'an which embodiea, word. by word, the instruotion and commandments of God and is HiB unadulterated

. word. tJ

Second: the ideal conduct of Muhammad (may (Joel's blessings he on him) ~ that, is to .say Sunnah, which ela.riflos. explains and exemplifies the moaning of the Qur'an.

In fact tho Holy Prophet was not .merely the bearer of 3 1116saagellBving nothing more to do than transmitting the "'ol'd of God to mankind. He wa~ also the Divinely appointed leader, the ruler and the teaoher.! 7.'he duty .Iaid on him was to OXIJlain2

..

1.. AI-Ql1r~a.nj 61 : 9 ~ 3 : ]64 ; ·62 = 2-EdiIQr" .2. A l .. Q.ur' an, 16 ~ 4,1 und 64-t-.,Edt ttJr~

74

Th~ Islamic Law a.d 00.,"'''';0.

and illllstratA the law of God by his wordl and deeds, to make people understand its real import, to train individuals and form them into a dlsciplined body, and with their a.id to initiate a struggle for the recoDstmction of society, and finally, to mould the society into a reformed and reforming state and thus to demanatrate how an ideal civilisation, founded on .the principles of Islam, could be esbablfshed. This entire life .. work of the Holy Prophet, which was oompleted in iwenty .. three years of his prophethood, is the SunnaA which i~ conjunction with the QlIr'-an formulates and completes the Supreme Law. of .the real Sovereign and this IJ&W constitutes what is calle$! cfShtJ,.i'aA" ill Islsmie terminology.

SCOPE OF LEGISLATION

From what has been ata-ted heretofore one is apt to think that these fundamental fa-ots leave no room for human legisla ...

tion in an Islamic State. beC&U86 herein all legislative functions vest in God and the only funotion left for the MUBIi~g lies in their 0 bservanoe of the God .. made Iaw vouchsafed to them

through the agency of the Prophet .. The (act of the ma.tter,

.however, is that Islam does not totally exclude human legisI ... tion. It only limits its scope and gudies it on right Iines. Human legislation, according to Islam, is and should be subject to the Supremacy of·Divine Law and within the limits prescribed by it.

Now I prooeed to describe the scope and limits of. this legislation which, in Islam, t~kea the following four forms:

1. Iuterpretation

In certain matters the Qur'an and the 8uft.naA have laid down clear and categorical injunotions a.nd prescribed specific rules of conduct. In such matterl no jurist, j~dge, Iegislative body. not even the Ummah.a & whole, oa.n alter the specific injnnotions of the 8hari(ah or the rules of behaviour expounded by it. This does not mean. however, that there is no Roope left for legislation in this sphere, The funotion of human legislation in relation to such matters lies in

(a) finding ont,ex&otly and p~ilely what lh61~w is, its· Uatv.re _~<1 ~~tentl

..

~gi81ati(}n and' Ijtika4 in 1,10".

t ..

(h) determining its meani~ and intent,

(c) investigating the conditions for whioh it is intended and the way in which it is to be appljed to tho practical problems,

((1) working out minor detafls in the ease of such 1awB as are too brief for a .traightaway application in actual

life, and

(~) determining the extent of its applicability or non-

applioability in case of exceptional circumstances ..

2. Analogy

Then there are . those ·types of problema about whioh although no speeifle injunctions have been Iaid down in the SAari'a!, but provisions have been made about some analogous Aituations. In this sphere the funotion of the legislature would be to apply such injul~ctjon8~. after .& precise approcIation o~ the reesons and causes underlying them.. to all those matters wherein identical causal connections actually exist and to exempt all such cases from their appll oa tion wherein these conneotlona are non-exlstent.

~.

3. Inference

There is yat another oategory. ofhuma n ·aflairs about whioh the SAari-'aA has prescribed no specific guidanoe but has laid down broad principles or indicated the intenbion of the Lawgiver as to what is to be encouraged and what is to be discouraged. In r~gard to suoh ' affairs, the function of the legislature is to

. understand the principles of the SAari'ah and the intention of ·the Law-giver and - formulate such Jaws ·about the practical problems as .are baaed on these .peinoiplea and fulfil the intention

of the Law-giver.

4. Province of Independent LegIslation

•

Ap~rt from these, there is yet another vast range of human affairs about which the l~haTi{ah is totally silent. It has neither made any d ireot provision i~ respect thereo f nor i H there any guidance for identical or kindred situations 80 89 to enable us to draw ~n analogio&l inference therefrom, Tbis silence ii by itself

'0

'1' M Islamic Law tJ.114 Oonsti'ution

indioative of the faot that the Supreme Law .. giver has left it to human beings to decide such matters in their uwn discrebioa and judgement. Hence independent legi~l&tjion can be resorted

to in such eft·sea but it must be Inconsonance with the real BIVl'it of Islam and'-it., general principles and, wll.a.t i8 more important, should in no way hu repugnant to t.he general pat~ern and temperament of Islam. If must naturally and appropriately fit into the general scheme of the Islamic ideology.

IJTIHAD .

The whole of this 16gielative process which makes the legal system of Islam dynamic and makes its development and evolution in the changing eireumatances possible .. results from a part] .. eular type ofacademtc .:reaearoh and intelle~tual effort which, in the terminology of Islam .. is called IjtiAad. Literally the word ~ I.#fhatl means to put in the maximum of effort in performlng &: job but technioally it signifies 'maximum effort to a8r.ertain~ in '" given prob1em or issue, the injunction of Islam and ita real intent'. Some persons seem to be labouring under the erroneous impression that ljt-i-had meana completely independent use of one's opinion, But no ODe conversant. with the nature of the Islamic Law can imagine that there can be any place for this kind of independence in the legal system of Isla.m~ The real

law of Islam is the Qur'an and the Sun-nah. The legislation that, human being may undertake must essentially be derived from this Fundamental Law or it should bewithin t.he limite prescribed by it for the use of one's discretion or the exercise of one's opinion, . For Ijtihad that purports to be Independent of the t;ha·ri~(J,A can neither be an Islamic ljtihad nor is there any room for such an Incursion in the legal syatem of Islam .

. EsseD.tial Quali8eatioDs

It is clear from what has been said above tha.t the purpose and ob~ect of l}lihad ~B not to replace the Divine Law. by man .. made ·law. Its real object is to properly understand the Supreme Law and to i.npart dynamism to the legal system of Islam by

. ~

he·aping it in conformity with the fundamental luidanoe of the

-

Ltgi.lation and ijtihad in (,iam

'7

Boo.ri'ah and abreaBt of the oh.anging conditions of the world. In Tie:w of this beslc fsct, no h~&lthy lj'ihad is possible unless our law .. maker. are equipped with the following. qualifications:

(1). Faith in the Bhari'ah and oonvictioD of it, truthfulness; a sincere intention to follow it ; absenee of any desire to .at independently of it: and. the win to derive inspiration and aequire &11 obJ~otive., principles and values from it; and not from any other souree .

..

(2) A proper knowledge of the Arabic lang ual' , its

grammar and literatur~ because the Qurtan has been revealed in this langu&ge and the meaDS of BBCertaining the SURna" aI80 depend upon this medium.

(3) Such knowledge and insight in the teachings of tho Qur'an and the SunnaA as would enable one not onlv

.,.

to be conversant with the details of Islamic injunctions

and their application in actual practice but fully to appreciate the basic prlnelples of the 8harifan. and it~ _

objectives. One should know, on the one hand l' the Shari'ahi~ over .. all reform scheme from human life sud, on the other hand, the exact place of each aspect of life within the frame .. work of this eomprehensive scheme, the lines on which the Shar·i'ah. desires to

mould huma-n life and society and the objectivea underlying it. In other words, such knowleQge of the Qur1an and the 8unnah Js the sine q1.ta non uf I_jtiluJd as would enable one to grasp the kernel of the Shar·i{ant

(4) Acquaintance with the contrfbutione of tho earhor jurists and thinkers (M uj~a4itlin) of Isl am. Th 's i 9 neeeesary not merely for training in tho t{~chniq IJ e of

.. ljtiAt;t.d hut also for tho sake of ensuring oontinni tv in the evolution of Jaw 4 Of course it is not, 311d should not be, the purpose of Ij6ihiid that every generation vlay n eeessa ri 1y des troy or discard w hat previous gener'a.·' tions have built and thus try' to build the WiHlh·' atructure aJrelh~

. .

Tlie lsiq.mic lAw ana Consiitutlon

(5) Acquaintanoe with the problems and conditions of our

. .

ti~es-the new problems of life to which ~ 8nawer is

sought and th~ new conditions in whioh the principles . l,l.nd injunctions of the 8ha,.i~ah are to be applied 41 A corroot appreciation of the current problem is extremely . essential for the proper exercise of Ijtikud.

(6) Commendable character and conduct according to the Islamic ethical standard. Absence of this virtue is bound to affeot adversely the quantum of publle trust in the legislators. A law made by the Ijtihad of un-

•

worthy Indivlduele, devoid of good mora) character, Ie.

Dot likely to inspire respect and confidence in the Muslim· people.

The above description of the essential qualifications does not entail that anyone undertaking Ijti4aa should produce &. .

. .

certiJ,loa.te before the commencement of his assignment th8~ he

is fully possessed of them.. Rather the idea is merely to show tha.t a healthy . development of Islamic law on proper lines through ljtihad is possible only if the system of legal training and education starts producing learned men of such calibre and

qualifications. Any legislation undertaken without these requi .. - lites 'Would neither ft into t~e legal 8y8~em of Islam nor would

. it ever be palatable to the Muslim society to accept and digest it.

Technique of IJtihad

Just as ljtihad·-and any legislation based thereon depends for its popular aceepteaee on the ability of those responsible for it, similarly its BUOOe&S would, t6 a large degree, depend upon the employment of a correct method and proper technique. A MujtaAid, whether he is engaged in the interpret&tion of InjunotioD8 or is busy in analogioal reasQning or in drawing inferences, bas, in any event, to base his re8\soning on the Qur'&.n and .the .t..;JI·uHr"k. ·WV4jt~ while indulging in "independent legislation' iu t } h~ ~phe)~~~ of I .ermissi ble (M ubaJ.JCft) he m uat clearly oste bl i ~h fha.tl the QUf'au and the ~')un1lU/;. hav,,} llut laid do.wn any rule or

A>rdet . nor even have furnished a basis for an:r analogy for that _

'19

partiouJar issue, Furthermore, the methods adopted for putting construotion on the Qur'an and the 8unna1a should be reasonable and well .. recognised ... Whil,e arguing from the Qur'an it is imper .. UtiV6 to interprot the meaning of a verse in aecordsnce with the requirements of the language) i.e., Arabic lexicography J gramD?-3r and established usage which should fit into the context of the verse and may not be in conflict, w~th the observations made elsewhere in the Qllr'an on the same topic. In addirion to that,

of"

if i,t ~s not positively supported by word or deed of the Prophet,

at le&8t the 8unnaA be not contrary to such meaning. While drawing upon the Bun""h in consonance with . the considerations of Ienguage, its rules and the context, it is also eseentdal that

the tra.ditions whioh are relied upon about It partioular matter ~re authentie ones in accordanoe :with the principles concerning thia branch of knowledge (of Tre.ditioDS), that other relevant tra-

. .

ditiona are not ignored and no single citation (Khabar-e-Wahid)

is allowed. to hold its OWn against" 8unn..a1J .that ~ has been well. established on the strength of authentio sources. Any ljtihatl baBed on wishful interpretation and in disregard to these

.preeautdons even, if raised to the statuB of law by dint of polftioal power, will neither be accepted by the. collective eonseienee

- of the Muslim oom.~unity n~r can it form an integral part of Islamic syste1;ll of law. As soon the political power enforcing such 8 law disappears f~. the politioal areDa) such a law would bEfthrown into the d·utbiD:' , .

- How Qtihad attains die status of I.w

..

-

A. number of methods have been - recognised in the legal

. system of Islam ~h8reby an Ijtiluul acquirea the force of law.

Fi,..Btly, .eoneensua of opinion (ljma') by the learned m en of the

oo~munity. Seconaly ·the IjtiAad of an individual or a group of individuals may gain wide popularity and people may 8UO mota adopt their verdict, for instance, the .IjtiAad of the Hanafitet the Shafe'ite, t~e Malik·ite., and the Hanbalite schools of 1aw w~rf)

• •

volUlltarily accepted bylarge groups Q·fMuIlim tn&8R~S. T4irdl~lJ)

a Moslim government may adopt a partioular piece of iil,had

80

rAe 181amic. Law a"d ()OR8titution

as its law, as for example the Ottoman government ha~. adopted the Hanafi Law as the Law of the Land, Fo"r~hly, an institution may be oonstibutionally empowered in an Islamic State to legislate and it may enact &: particular piece of Jjtihad in th~ form of Iew, Ap~rt from these four methods, any Ijtihad performed by various Muslim scholars can be no more than a. verdict (/alu·a)~ As regards the judioial pronouncement of the judges (Qa.di~)~ they are enforceable as law only in respect of the partioular Qa80 in which a court may have pronounced them and they may also have the force of a precedent but they cannot be classifled as law in the true sense of the term so much 80 that even the [udiclal pronounoements of the Right Guided Caliphs ........... given by thorn in their judioial capacity 8S Qalli8~did Dot acquire in Jslam the force of law. The concept of the "judge .. made.·lawu i9 foreign to the legal system of Jalam.

II

THE PLACE OF SUNNAH IN ISLAMIC·LAW

. I will try to answer as briefly as possible the criticism that has bean offered on my paper on ~ 'The Role of ljtihad and the

Scope of Legislation in Ialsm .. "

1.· The first criticism relates to the status that has been assigned to 'Su1f.nah- along with the Qur'an.. In dealing with this Lshould like to mention a few points in a certain sequence 80 tllat the problem m&y. be clarified ..

(i) It is an irrefutable historioal fact that after reoeiving bhe prophetic assigument ; Muhammad (peace be upon him) did J not atop at the mere transmission of the Qurtan to the people but led an all .. comprehensi ve movement: which resulted in the evolution of an organised Muslim BOoiety,·. new system of civilizatiun and culture, and the establishment of a state. The question arises: Ln .what capauity did the Prophet perform those

r funf1tiona w hioh were in addjtion to t.he mere trausmisaion of the flUf' an 1 W ere til ~8e task s p~1rformed in Ilia proph e tic eft. paci t)t . in which Jl~ rei)ro~p.ntt~(l thn-ill 0..- (Jod j n the same wa.y ll-H j t is

:represented in the form of t.he Holy Book) Or .did his prophetic

Legislation and ljtihad in Islam

81

statUB end with the transmission of the Qur'an and thereafter he, merely acted like an ordinary Muslim individual whose words

I

and deeds did not poeseas in themselves any legal authority I If

the former, 'then there is no alternative but to accept the SunnaA 88 possessing legal authority along with the Qur'an. If th~ latter, then of course .there can be no ground for treating it as law ..

(ii) The Qur~an gives a very clear verdict in this matter by stating that' Mubmin&d, (peace be ora. him) was not merely a messenger but a. divinely-appointed leader; ruler and teacher as well, rendering obedience to whom is obligatory on the Muslims and whose life had been put forward by God as an ideal to be followed by the faibhful. Reason and intellect fail to conceive that 8 prophet is to be treated as such to the extent morely of transmitting the 'Word of God and, thereafter, he is reduced to the level of & common man, In 80 far as tho Muslims are concerned they have. from the advent of Islr m up t~j this day~ unanimously upheld, in every age and clime; that the Holy Prophet was an idesl to be imitated, and his' injunctions and ...

inhibitions were obligatory on 'the believers. £ ... ·60 & non-Muslim student of Islam cannot deny the fact that the Muslims .have always &&signed this position to the Holy Prophet and on this

....

Tery basis his 8unuah has been treated. along with tho Qur'ant

as .. source of law in the loga.! system of Islam, I cannot indeed imagine how anyone can challenge this legal aspoot of the Sunnah unless he takes up the position that the Holy Prophet was a propbet only in so far as ho tran8mitted the Holy Book and his' prophetic status ended with bhe performance of this duty. ' And jf anyone puts forward such a claitn he will, have to state whether he is a.ssigning this posi tion to. the Holy Prophet on his own or whother the Holy Qur"an itself bas assigned it to him. In the urst; ease his stand would be no concern of Islam at all, while in the second ease he "lill have to 'addu~a some proof'

, " ,(' ,

of his claim from the Holy Book. ' "

(iii) On accepting the Sunnah as a source 'of law, the question arises! 819 to how it can be ascertained. How can we ,find"

82

The Islomlo Law aoo Oonslitutio1t

out what 8unnah had been bequeathed by the Prophet who was raised so many centuries a.go' In thls connection it should be remembered ~hat this is not a problem with which we are eonfronted for the first time after the lapse of 1377 yearsa The

following two histori oal facts are incontrovertible.

The first one is that the commnnity and the sooiety which were formed on the basis of the teachings of the Qur'aD and the Sunnah of the Holy Prophet, on t~e very first day of the advent of Islam, has been continuously in existence; its life was not interrupted by a single day and its institutions have been working all the time without any break. The deep similarity whioh

·exists at present among the Muslims the world over in, .respect· of their beliefs, model of thinking, ethical sta·ndardB and values, acts of worship and mundane affairs and in their social concept and ways of life (wherein the elements of similarity~ are more

than those of dispa.rity a.nd whioh is the liargeet fundamental factor in keeping them ·together as _ an UmmaA despite being 9ca~tered aJI ~V6r· the surface of the earth) is ·a positive proof of the faot that this society was established on a BunnaA and that tradition has continued withoat interruption throughout these long centuries. There isno (f:missing link" for whioh we may

have to search in darkness. ..

The second historioal faot which is equally ~potent is that the Muslims have, in every age. after the dea.th of tho Holy Prophet, been endeavouring oonaistently to aaoert&in what. exactly his established 8unnah is. and whether any novel faa~r

(bid(a) was entering into their system of life through some forged means. :r~ey neither were nor could aft'ord to be careleee aboat inT6stigating and asoertaining the Bu •• aA because it had the status of law for them, it formed the basil of jiidioial ,deoi·· . sions in their law-oourta, and all thei.r affair., were ~ managed in. accordanoe with it. The means of this research and the results thereof have been- bequeathed to us 'from generation to generation, from the ti.me of the first Islamio Caliphate right, up to our own times, and the Jabours of each

. generation havebeen .fully preserved. If one understands theae

.

Leg.,lation and ljtihaa in I8lam

8S

two historical faots fully and properly and then make. a scientific study of tho means by which Sunn.ah is to be aseerbained, he will never fall a prey to any misgiving that he is faced with lome insoluble puzzle.

(itt) There is no doubt that there have been numerous differences in the matter of ascertaining and establishing the SU1Inah and such differences 06n also arise in future. But then similar differenoes have occurred, and many indeed will occur in future, even in the matter of interpreting a 'good many rules an.d injunctions of the Holy Qur'an .. If such differences cannot form an argument for giving up the Qur'a~ why should they be

. made an excuse for .gi.,.ing up the Sunnan. I T~e principle has been acoepted in the past (and even DOW there is no alternative but to accept it) that whoever puts forward anything as ·the in ... junotion of tho Qur'an or the injunotion of the Sunnah should produce his arguments in support of his claim. If his argument is sound, it will be acoopted by the learned men of the Ummah or at least by a large section of them and anything whioh would be devoid of convincing argument will itself fizzle out and will not be able to gain any ground, This is the prinoiple on the basia of whioh millions of Muslim8 in various parts of. the world have agreed.f.?z:1 a p artioular j u ria tic· school of" thought and 1 arge blocs of ·their populations have established t~eir social system on the strength of 8 partioular Interpretatdon of the Qur'anio injunctions and- a particular set of the proved Sunnah.

:Zjl The 8800nd criticism that haa been offered about my pa.per is th&t there is contradiction in it. A certain critio has BOught to point out .tha.t on the one hand I have stated that no one· baa the authority to change the olear BDd positive injuno .. tions of the Qut'an and Sunnah, and on the other I have said that in exoepblonel oonditions and circumstanoes ljtifuul can be utilised to ascertain the situations justifying devi&tions from these injuuctiQ-DI to auit the exigvncies of the time, I have not been able to apprecia.te the nature of the alleged contradiction. Every law in the world makes provision for exceptlons from the

general rules in abnormal and extraordinary situations. In the

TJUJ Islamic Law and Oonstilution

..

(Jur'an also there are numerous examples of such coneesaions

and from these the juri~ts have deduced tbe principles whioh have to be borne in mind in regulating the limits and oecasiona, for the·conCe8lioDSt e.g ... the dictum fneoessities make certain inhibitions legal' ;. or that "diffieultdes attract ooneeesions",

·34' The third eritdcism has been extended to all those who have mentioned some conditions for Jjtihad in their discourse and as J am also one of them, it is incumbent on me to answer it. I would ·respectfully submit that the conditions mentioned by me may be studied over again and then the particu]at eondi .. tion which is sought to be annulled should be pin-pointed. Is it desired to rule out the oondition that those undertaking Ijtihad should be sincerely desirous of .followiag the dictates of the l~haritah and not wanted to overstep its limits 1 Or the condi .. ·tJon that they should be conversant with the Ia.nguago of the Qur'an and the Sunnah ~ Or the condition that they should have made such a deep study of the Qurtan and the Sun-nah as would enable them to fully understand the system of the Skari'ah' Or that they should .be cognizant of the oontributions made by the pa.t M. ujta~idin t Or the condition that they should be conversant with the problems and affairs of the world t Or again that they should not be persons of bad conduct and devoid of Islamic moral standards 1 Whiohever of these conditions is considered to be unnecessary by the critic should be . specified preciaoly, To Bay that in the whole Islamic world not more than ten or twelve persons can be found who fulfil these conditions and come up to this standard, is, in my view, expressing a very poor opinion about the Muslims of the whole world. Per.ha.ps even our opponents do not consider us"to be so degraded .8 to think that we Muslims of the whole world cannot produce more than ten or twelve persons possessing such qualifications. Neverthelesa, if anyone wishes to dash the door of ljlihad wide opon for every Tom. Dick and Harry, qualified or unqualified for the job, he may do BOt But I shouM Iike to know how he will be able to make the Muslim publicswallow the results of ljlihad thus undertaken by men who are devoid of good conduct and

sound learning and whole mottves and sinceriby is looked upon ae doubtful and questionable i Can the 1jlihn.d performed hy such people over win the support, eonfidenee and Ioyalby or thu

people 1 ... t\nd if it cannot, as it is bound to; then of what value would it be (01' ns and the posterity 1

III

IJTIHAD. IJMA' AND SHORA

Outline:

. It 8ee.1ns that the people are going to the opposite extreme» in dealing u:i1h the nature and srope oj legislafinn in Islam. 80me lijay that ther« ia no scope Jor legislal ion in Islam f Law has been ref1ea.lttl by God and Hi8 Prophet and the j[uRlims are left only to follow the law in the prescribed [orm, Some other8 hold that there is unlimited. scope [or free le gi8latinn in Islam and they sa!! that the rulers are entitled tve·n to change or make amends in the forms oJ· worsh1:p (lbadaat) determined by tke. Boly Prophet. For instance ~ fhe!J

permit them to change the form of the prayer, of the fast and the like.

'Please let us know what i8 the real 8fOPC oj legi8lation tin

, .

Islam. and u~kat 'form can lefliBlation take in an Islam·ic Slate.

Please also let us know 1vha t is the legal .POB ition of the 1)e r tKJnal and co~sultatitJe verdicts oj the right .. guidtd Caliph8 and of the

opinions 0/ the legist8 01 the past.. .A 180 throw some ·ligh.t on. th~ concept» oj ljma' and 8hura.

Answer:

1. In Islam ~ there is no scope for legislation in the field of worships. Their forms have been laid and cannot be changed or amended. But in the field of individual and social affaIrs (Mu~amalat) there is 8. limited scope for legislation in matters about which the Qur'an and Sunuah are silent,

The basle principle which holds good in Islamic law is that in respect of worships, do what has been prescribed anddo not innovate; while in respect of th'e general affairs of life. follow that what has been commended. avoid that what has been forbidden, and where the Law-giver has not given any guidance

~1ie Islamic Law and Coft·stitu'ion

you are free to act on your own vision . and deoide accordingly. Sbatibi . in his book Al .. ['tMltm states this principle in the following words :

"The rule for worships is a. little different from the one

for general affairs of "life. In general affairs the law is that where the sovereign is. silent, the people a.re free

to a.ot on their own ViBiODt This is the field of permtsalblee. Bat oontrary.to this, in respect of matters of worship and prayer no such thing can be adopted

whioh has no basis in the Skari'ah. For 'ibadaat are directly related to ·the clear command and the will of God. The reason for this distinction is that in the

. .

general worldly matters we eurselvee may, with the

help of our own intelleot, discover the right path, but intellect oannot guide us in :t.be realm of worsbip, It

cannot tell U8 how to get nearest to the Lord".l

2. In the realm of the general affairs of life ()fucamalat) legislation 'can be made in four fields, viz!

(i) Iaterpretatlen, Le., the ascertainment of the intent and the meaning of the tUIS8 (a Qllr~8nic v~rS6or ~t&bli8hed tradition) in respect of matter a about which a command in the nature of order or forbiddance is available from the Law .. giver.

(ii) Ani.logy~ It consists in applying to a certain ease

. ~

about whiuh no specific guidance is provided, a command

whioh has been given by the Law-giver for a similar or like case. This is done by disoovering the reason or the effective cause (illah) of a c~rtain commandment and to a.ppJy it to oases where the lame effective cause is present.

(iii) Inference and ljtikad. This i. the application of the general principles of the Shari~ah to the ordinary 1 minor and day-to-day problems and an endeavour to formulate, on the basis of suggestions, indioatioll:a or

•

_--_1-- _

1. Shatibj. Al·I~ti«lmt Vol. II, pIlUS (~8tba· Mustafa Muhammad, Cairo)"

14gislation a-nd Ijtihad in Islam

8'1

implioations of tho in [unobiona of the 81i-ari'ak. an overall view of Iifo aF.; the I .. aw .. givor would] ike jt to bo.

(iv) New Legislation. To formulate, in respect of those problems about .whlob bhe Law .. giver has provided no guidance, new laws which are in conformity with tho ultimate objeotive of Jalam, and are capable of meeting

. the real needs of the people and thus are expedient and are not repugnant to the spirit, temperament and the overall system of Islam. Muslim legiste have called this t.MaRQleh Mur8(llah/ and ~IlJtih8an', By masaleh. mtt.tsalah are meant 'all those expediences which have been 1eft to our own choice and nothing has llCCU proscribed either way", 18tih8an~ on the other hand is, in a sense, a concept of equity, wherein although a. oerta.in

commandment is arrived at through analogy (Qiyat~). but because of greater and wider expediences admisslhlo . in Islam, the dictate of expediency is given preference over the apparent inference through analogy t

3. The concepts of interpretation .. analogy and inference do not need any further eluoldatton, but those of. masaleb mursalah. and istihsan do need some esplanatdou. Shatibi has discussed

. these problems in & masterly way.l He proves with Inoontrovort ..

ible arguments that legi818t~o.n under masaleb. mur!Jalah does not amount to totally independent and unfettered legislation. There are certain conditions' whloh must be fnlfilled and they are ~ .

(a) The-legislation so made should-be in conformity with the objectives of the 8kari'ah and not repugnant. to

them in any way.

(6) Th~t it should be intelligible and acceptable to the. people when presented before them.2

(c) That it should be made to fulfil any real and gonuino need, or to remove :any genuine difficulty~3

........ -_ ....... _---

1. Soo Sha.tibi~ Al-I~tiBam, op: cit ~

2. 'I'hia means that it should n ot b~ contrary tn tho generul notions of ro~l-:S"'H1S as accepted by thp Muslinl Sf)Clot,y- Editor.

3" Shn.·LilJi, AI-I""I.8't,:Im., Vo t II J VJl. 110-14 t

III

88

The 181amic. Law anei Ooftltitution

Sbatibi also discusses the principle of i8tihRa1l in detail~ According to him, istih8an consists in the rejection of Q.yalf and the acceptance of the diotate of equity and expediency in & case where an inference from Qiya8 leads to a situation which involves in the eyes of the [urist, any suoh tangible Inoonvenienee, discomfort or 10s8 which the Shari'ah wants to avoid} is against the express good of the people or is repugnant to an admil!l.8ihle OU8to~. Thus in case of i8tih8an~ the apparent dictate ofQi!JfJ8 can be rejected only if there is a genuine case of equity and there are strong arguments to support and establish it.!

... The opinion" /atu'a, or research of 8 legist or jurist, however high, [n respect of tbe above discussed four fields, wi]] at best be only an expert opin"ion or a. research conelusion, and will enjoy as much weight and respect 808 is commensurate with the strength of the argument and the academic position of the legistoa But such opinion will not amount to LAW. To give it the status of law it is essential that the legislative oounci'l of an

Islamic State~ consisting, as it must, of the men of authority and Ioarning,' should enact that interpretation, Qiga8. inference ijtihad, istihsan or i8ti8l~h into LA W, through ita ijmal [oonsen- 8U~) or majority deciaion.s I would like to Bubstantiate this point by Borne examples from the period of Khila/al·e-RashidaA.

(i) The Ql1r'an has .prohibited the drinking.of liquor. but no specific punishment has been prescribed for the offence in the Book. The Holy Prophet imparted different puntshments to different offenders ~ each suiting the speeifio case in which It was aw.arded. As such, he did not prescribe aoy specific punishment (kad~) for this offence. Abu Bakr and 'Umar gave the punishment of forty stripes to the offender but they too did not make any law to that effect.· During the reign of ~ Ullman, when the number of offenders increased, the problem was presented before the Majli8 .. i.Shura. In the meeting of this council, ·Ali

1. Shutibi, AI-I~ti8am, .. t pPt J 18-19; ~

2 I Rea Ills 0 Chapter N Q. V:I Ij'jr.t Princ*,ple, oj a1~ lslt.uuic 8f,(l~t ..

Ltglslation and Ijtihad in l,lam

89

made, a brief bubImpressive speech and suggested that ~ighty stripes be laid as· punishment for the crime .. They unanimously adopted this suggestion and through this ijmaC tho decision became law.1

. ~ .

. (ti) It was enacted during the KhilaJat·e.Rashidah that &.

worker or ms nufacturer was . responsible for the com ..

modity he had been given to work upon, and if that

. -'I..

commodity was destroyed while it wa, with him; he

would have to make good the Iosa, For instance, if some cloth hSfi been given to a tailor or a pieee of gold to 8 goldsmith and the commodity is destroyed while in his possesaion, he will ha.ve to make good the Iosa. This deeision too was made on the plea made by .cAli. Be argued that alt-hough, on the face ,of itt the worker or the manufacturer does not seem to be responsible for the 10s8 whioh is not the result of his own negligence,

but jf there is no such law of vicarious liabilitYt the workers will normally become negligent towards the

~

properbies of others snd this would Involve a g~eat6r

national .108s. Thus it is expediential to hold him responsible for the goods given to him. This law; too,

was made through ijm4i:.2

(iii) ~ Umar jU,diofa1ly decided that when in a. murder more than one person were involved} Qi&a8 should be derived from all t~e. accomplices. Malik and Shale'i have adopted this posibion, But. the decision of C Uma» has not been regarded as a pa.rt of the law, for it was a judicial verdict, and was not enacted into law by an

. ijmai or the majority of the Sh'U1'a,8

(iv) The question arose that: If a person whose where .. abouts were not known and whose .wife had. with the permission of the court, contracted & second marriaget

appears" . which~_ of the two husbands will have

---- ---

i. Shati bi, si:t- tiMmJ ~ Vol. II. p~ 101. 2, , Ibid .. , Vol. lIt p. 102" ' 3" Ibid •. II~ P ~;.

90

'rAe I8lamic Law ani OlJft8!itution

preferential right upon the wife' Kku!a/a.,.e.BasAidin gave quite different verdiots in auoh eases. But none

of the deeiaiona enjoy,. the statu! of law, for the problem was never presented before the Skura and no .i}fna" was ever arrived at on. the same.1

6~ The above dlsoussion alearly shows that the position given to the judicial verdicts in the legal system of Islam ~B quite different from the one given to them in the English law. In the English law the verdiots of the Judiciary. are precedents and

...

amount to law 81 such. But in Islam the decision of & judge,

. ,

which involves a certain interpretat.ion of a naB8 is the result

of & QtytlS or an Ijei.hadJ will deftnitely be enforced in the 0&S6 it deall with, but it win not become an integral part of the law as sueh. Similarly, a ju(1ge too is not bound by his own earlier judgments. He can 1ater on give a different deoision in a similar " ease, provided he hal chaDg~ his view8 on the 8U bject and has

realised that his earlier view was not correct.

6.. After the period of the KAilajat-eRaahidaht the institu .. ' tion of Skura disintegrated. During the later period different legiata and jurists formulated their corpUB juira. Thes codes C?f fiqA began to enjoy semiIegal statuB for the simple reason that the overwhelming majority of the people of different regions had voluntarily aooepted the fiqh. of a certaih Imam. For instance) Iraq and ,eastern provinces adopted the flqh of Abu Ha.nilaJ Spain aad North Afrie •• of Malik, Egypt, of skaJe'it etc 41 But the mere popularity of a certain ftqk· in a oertain region does not impart to it the statuI of law in the real sense .of tho word. If & certain jiqh has become law) it has become 80 only if a state has adopted it &8 its Jaw, and not otherwise",

There haa been some differences of opinion as to the exaot deftnition of ljma'. Acoording to Sha/8'i~ ijmtJc is "& complete Q_Qnaenlua of all the learned on a certain point of Iaw" ~ Accord ..

ing to him. there should not be & single opinion against ·the eensensus. Ibn Jarir , Al-Tabari and Abu Baler Al-Razi regard even a majority decision ·as ijmaf:. -«,he position of Ahmad ibn

--- ._. ....... .-

Legislation and Ijti1l.ad in I'~m

91

Ha.bal is t bat when he saya Uwe know of no ·oppolitioD to- this view" tl1at means that he regards that decision 88 ifina'.

All arp agrcrd that ijmaf is a final authority.. This means that when the ,jma~ has been arrived at ona cetain interpreta. tion of a ff·GaS or on a certain ijt1·hal, QiYa8 or expediential le~81ationt then such an ijlna~ jA binding on all and ~ust be followed, Difference" arlse only aq to tho question ·whether there has been an ijina/ on 1\ ecr+ain V~Jfal point or not 1 No ODe challenges the.authoriby of ijrna~ 3H such, The controversy hovers round the paint: whpthp'f it h·fl.8 bp~n a rrivrfl. tI. f or nut !

As far &£1 the period of the K.A;l"jnl·" .. l(.u .... ·hi,laJt is ooncerned, there is no difficulty in tinding ()U t tbe i,-jma- arri t'pd at in that period I The institution of Skura wall there ana &11 th~ Ocri5ion9 made through eonsensus or majority verdict are enshrined in the traditions. Such decisions can be depended upon 119 of t.ho unimpeachable authority. But BS to the Jatar perind~ when th~ institution of Skura disintegrated and when ther ..... was no proper machinery .for the aehlevement o~ the eonsensus, jt beeamo v,p,ry dtmcult to know whether there had been an ijmn/ on a certa.in

. point or not. That is why the ijmaC of the Khilafat-c.Rashidah

is indisputably accepted. But when anyone claims that there ~ haa been an i.jm(J' on a point in any later period. then all the:;~ 8oholars do not aocept the claim. In our own opiniol\i.ima· O&Q be found out only for· the period in which the politio~rihyste~ of Islam has been in operation: without thie, it is not possible to ascerta.in deolaively the existenoe of an ijma~.

There is a common misennoepbion that Skale~i, Ahmad ibn Hanba,z and some others do not believe in the exiaoonoo of ljma'. This miaeonoeptlon is the product of 8 faflure to appreciate the above-mentioned position. ~hen a person claimed that there had been an ijmat on a certain point and did not produoe any proof of such an ijma', these people refused to accept that claim .. Th~1 they did not dispV te the anthority of ijmaf as such; they only disputed the occurrence. 0/ ijma4 on tha' 8pecific iS8ue.

Shaf~'i has discussed this point in suffioient det&n. In hitt

92

flA. [,lamic LaID Bnd Oonsei'ution

hook tTami al·f nm he says that it has now become impossible to 8Rcertain all the opinions of the' Ulama. on minor and detailed problems beeause the world of Islam has spread far And wide, the • Ulama have dispersed and the close organisation of the community has shattered. In such conditions it is wrong to claim any ijma,c on points of d.etail.. But al to the basio principles and the major problems, it can be said t·hat there haa been ijma' on them; for instance, there has been ijma~ on the timings of the five prayers, or the conditione of fasting eto~ In the words of Ibn Taimiya :

'flj~a· meana, that all the 'Ulama of the UmmaA have agreed upon a certain point. And when it is eatabl'ished that there has been a consensus of the entire Umtnah on a certain legal point, then it is not rightful for any person to refuse to &ccept that .. · This is ao because the entire r!mmak cannot have conBensus on error.. But there are many problems about whioh people think that there is ijmaC on them. while in fact there is none. Rather in some cases even the opposite view is correot and is upheld" .1

The above discussion clearly shows that the ijma' and the . majority decision of the Ummah . on & oertain interpretation of na8.B or on a eertain qiyas, ijtihad or expedientiallegisla.tion do constitute law and are deemed to be authoritative in 8harifah~

. .

If such a. Iaw has been enacted by the men or learning and

authority in the world of Islam, it is binding on all the Muslims of the world and if it h~~ been enseted by t~o8e of anyone country or region, then it .. ill hold good for them alone ..

------

1. Tai miy&" Patoum. Vol ~ . T, p. 406.. ?t{a t ba· Kurd i g tBtn .. &1 .. I 1m i ah, Cai:r9t. 1~26 A.Ht

,.

Chapter 3

How to Introduce Islamic Law in Pakistan?

, '

WHENEVER there is a discusBion on Islamic Law. one of the most important questions that is passed is" How will it be inlrocluosd 1 And this question is. indeed, a .very import.-nt one. A changeover to Islamio Law cannot be made overnight. Theprobl8Dl in .. -Ives many & tricky eomplieetaon. And it is the du lJ' of the seho! .. rs and the administrator. to . give their bi, "; thought to the problem and Busgest and ad~pt practioa.l steps tp introduce the. Isla.mio Law in. 8 syatem&tio snd scientifio way.. M&~lana M&~dudi disoussed the problems involved in the introduotion ot Iel&mio Law in Pakistan in a speooh. delivered on 19th Februa.ry J 1948 in the Law College, Lahore, and also gave. some practioal sag,olltiona for its introductioo in Paki8tan~ The English translation of that speech is presented in the following ohapter. -Btl. tor ~

HOW TO 'INTRODUCE ISLAPtJIC LAW IN P A:l I STAN ?

IN my previous dis(!Ourse1 I had dealt with the spirit and the fundamental precepts of Islamio Law '&nd our duties and '" obligations in this regard.' I had also replied to the objeotions lhat are generally put' forward about the introduotion of IaJamh.l Law in modern tim98 $:nd to the oriticisms about its effioacya,s

. ' '

a legal system. That ,address of mine was of an introduotory

, nature. No~ I, propose to disouss this problem at greater length

and will explain tho,oourse tha.t should, in my view, be adopted for the enforcement of Islamic Law in our co~trJ.

I would like, a,t the very outlet, to dispel some of the doubts

'and misgivings whioh crowd into the minds of • coaslderable

seetion of OU~ people 88 BOon as they think of t;he enforoement of Islamic Law. .Many people on hearing of our intention ,to establish an Ialsmic State in Pakistan. which 'Would of course,

be governed by Islamio Law, begin to think that the very moment Pakistan is deolsrd an Islamio State, all the preSent laws will be repealed, and replaced by oorre.sponding Ialamio Laws without & minute's delay and all in one stroke.

, This misunderstanding is not oonfined to tb.e oommon folk only. It is found among perIODS of religious understand,ing 88 well. They seem to thiIik the day we, resolve to mould Pakist&n into &n Isl&m.ic Statet it should Also be the day of the praotical fulfilment of that resolution. Suoh people overlook the fact that the legal code of a oountry does not exist in a vacuum4> Rather, it i. deeply interlinked, with the ebhioal norma and the social, economic and politioal "order of the country .. T,hey do 'I:lot realise

- ,

that 80 long a8 the social set .. up of a oountry does not alter

radioallYt 'the legal system can undergo but little change, They also forget, tbat vita.l changes have been wrought in our lives

, during the" period of the British rule and that the entire mode, ,O'! our, living bas been de-Ielamiscd., It has been divested of its

, - ,

Bow to If&'r04u~ 1,lamic Law in Pa1riBltln , 95

. .

18)amj~ .~h&rBcter and is being governed by principles derived from sol1rces oth&r than Isl.~. ConsequentlYJ ·what i. required of us is to IsI.mise the entire system of our life. And this, in its turn, is an uphill task and demands an encrmoue amount of t. strenuous effort I

. H~viDg no idea of the praotJcal pooh-lema of modern life;

. these fervent but igDoran t Iovers of Islam take the task of revolutionising the collective life of &. nation very lightly and 8uperfioially. Hence they indulge in day-dreamiDg and crying for the moon. But snob an outlook aelves only the interests of those who are trying their beat to prevent the eatabJisment of an Islsmte State and provides them wit~ ground. to scoff at the . very idea o~ this venture.

I GRADUAL CHANGE

H we really wish to see our Ialam.ic ideal. translated into reality, we should not overlook the basic law of nature that all stable and far-reaching changes in the oollective life of people - come about gradually. The more Budden 8 ahaoge iI, the more

. .

short-Jived it generally turns out to be. For 8 permanent

ohange' it is necessary that it should be free from extremist bias ~. and unbalanced approaoh .

•

The best example of this gradual cha.nge is the revolution

brought about by the Holy Prophet (peace be upon him) in Azabia. One who is acquainted, even superficially, with the history of the Prophet's achievementa, knoWI that he did not enforce the entire. body of Islamio Lawall at onee. Instead of

'. that, the sOciety was prepared gradually for their enforcement., He started his efforts for reform by inouloa,ting belief in the fundamentals of Islam. viz, the unity of God, the Life after Death and the institution of Prophet .. hood and by i~ducing the people to Jive a life of righteousness and pietYe ~hoHe· who

accepted this message were tl¥"ined by him to believe ill' and praotdse the Islamic ~ay of life. When this wae aohjcvocl t~ ~ :il

" considerable . degree, the Prophet (peace be upon him) Wfjot a