Reimagining Islamic Principles in Pakistan

By Yasser Latif Hamdani

One of the first things that will strike a student of law is that the English common law tradition, which informs the legal systems of India and Pakistan, is at variance with the established Roman law that informed much of the non-English-speaking Western world. At the same time, common law has parallels with the classical tradition of Islamic law as it developed in and around Al Azhar at the beginning of the middle ages. Like English common law, the Islamic equivalent relies largely on precedent and the legal opinions of jurists. Ijtehad, that is, reinterpretation; Ijmah, that is, consensus; and Qiyas, that is, analogy, form the basis of an opinion or decision. The last of these is not unknown to those who have practiced law in common law jurisdictions.

The question before us in Pakistan, which is so self-consciously aware of its Islamic identity as a state, is whether those early traditions of classical Islam can be reconciled with the institutions of English common law that we inherited from the British. A failure of imagination has, for the most part, stagnated the growth of reconciliation between these heritages in a country that under its present constitution is a self-declared Islamic republic and where no law that contravenes the dictates of the Quran and the Sunnah, the bedrock of Islamic legal tradition, can exist. To the modern legal mind therefore, Pakistan’s English legal system and Islamic heritage have worked at cross-purposes. By narrowly construing Islamic principles and straitjacketing liberty and freedom, the Ulema have slaughtered Islamic principles and reduced them to medieval laws that seem tragically out of place in the modern world. Unfortunately no real attempt has been made to formulate Islamic jurisprudence as a code of public conduct where jurists and not clerics cull universal principles from the Quran and the Sunnah, classify them, and expound them as a part of civil law or a criminal code. The efforts of the imams in the Eighth and Ninth Centuries have over time ossified and been cast in stone as the final word.

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