Principles of Islamic Jurisprudence by MH kamali

Textbooks on usul al fiqh almost invariably deal with


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Unformatted text preview: t invariably deal with a range of familiar topics and their contents are on the whole fairly predictable. This is perhaps reflective of the relative stability that the Shariah in general and the usul al-fiqh in particular has exhibited through its history of development, almost independently of government and its legislative organs. This factor has, however, also meant that usul al-fiqh has for the most part been developed by individual jurists who exerted themselves in their private capacity away from the government machinery and involvement in the development of juristic thought. Consequently, usul al-fiqh has to some extent remained a theoretical discipline and has not been internalised by the legislative machinery of government. The history of Islamic jurisprudence is marred by a polarisation of interests and values Principles of Islamic Jurisprudence ~ Kamali 6 between the government and the ulema. The ulema's disaffection with the government did not encourage the latter's participation and involvement in the development of juristic thought and institutions, and this has to some extent discouraged flexibility and pragmatism in Islamic jurisprudence. Note, for example, the doctrinal requirements of ijma', especially the universal consensus of the entire body of the mujtahidun of the Muslim community that is required for its conclusion, a condition which does not concede to considerations of feasibility and convenience. There is also no recognition whatsoever of any role for the government in the doctrine of ijma' as a whole. The government for its part also did not encourage the ulema's involvement and participation in its hierarchy, and isolated itself from the currents of juristic thought and the scholastic expositions of the ulema. The schools of jurisprudence continued to grow, and succeeded in generating a body of doctrine, which, however valuable, was by itself not enough to harness the widening gap between the theory and practice of law in government. One might, for example, know about qiyas and maslahah, etc., and the conditions which must be fulfilled for their valid operation. But the benefit of having such knowledge would be severely limited if neither the jurist nor the judge had a recognised role or power to apply it. One might add here also the point that no quick solutions are expected to the problem over the application of the Shariah in modern jurisdictions. The issue is a long- standing one and is likely to continue over a period of time. It would appear that a combination of factors would need to be simultaneously at work to facilitate the necessary solutions to the problem under discussion. One such factor is the realisation of a degree of consensus and cooperation between the various sectors of society, including the ulema and the government, and the willingness of the latter, to take the necessary steps to bring internal harmony to its laws. To merge and to unify the Shariah and modern law into an organic unity would hopefully mean that the duality and the internal tension between the two divergent systems of law could gradually be minimised and removed. Bearing in mind the myriad and...
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