Is it permissible for a Muslim to study Common Law or any law other than Islamic Law?
When Muslims live in any place that is governed by laws that are not guided by Islamic teachings, as they did in Abyssinia (Ethiopia) or in Makkah (after the treaty of Hudaibiyyah) during the time of the Prophet, they are to work within the existing legal system and peace treaty agreements (sulh) to bring about better changes.
Even the King (Negus) of Ethiopia at that time who had embraced Islam was not in a position to implement any other laws other than the customary law of the land. The Prophet (pbuh) instructed Muslims and their leadership to always honour and stand by the agreements they make: “Al Muslimun inda shurutihim!” (Muslims are bound by the conditions they accept), and all believers are characterized in the Qur’an as those “who are faithful to their trusts and to their pledges”. (Qur’an 23:8)
During the “Makkan Period” and within the legal and administrative system of the “Jahiliyyah society” of Makkah the Prophet (pbuh) joined a group known as the Hilf al-Fudul. This was a group of upright individuals in Makkah who would stand to protect the rights of any victim of oppression in Makkah. Even after Islam was well-established, the Prophet (pbuh) recounted his involvement with the Hilf al-Fudul, and according to Talha ibn Abdullah, he said that “if he was to be invited again to join such a group now in the time of Islam, he would respond and join them”.[1]
According to Ibn Hisham, “They (members of Hilf al-Fudul) promised and pledged that they would not find any oppressed person among their people or among anyone else who entered Makkah except that they would support him. They would stand against whoever oppressed him until the rights of the oppressed were returned.”[2] The Prophet (pbuh) was reported by Ibn Abbas as having said, “Every pact (or treaty) from the Time of Ignorance (Jahiliyyah) is not increased by Islam except in strength and affirmation.”[3]
Scholars have concluded from this that Muslims, even where they do not control the government or laws of the land, are expected to enjoin right and forbid wrong (as instructed by the Qur’an 3:104) to the best of their abilities (Qur’an 64:16) within the existing societal restrictions. Allah says Muslims should “Cooperate in righteousness and piety, and do not cooperate in sin and aggression” (Qur’an 5:2)
Muslims must always have, as a social obligation (fard kifayah), those amongst them who will defend the legal rights of other Muslims and victims of abuses and injustice in societies where Islamic law has no jurisdiction. This has most effectively been done through the legal system giving rights to minorities and indigenous people, in the movement to abolish slavery, the Civil Rights Movement for African Americans in the United States, and for the Native Africans in South Africa under the Apartheid Regime, and many other countries seeking Independence from various colonialists.
While this approach can, and has been frustratingly slow for many, it appears to have been the most effective, sustainable and successful.
It is therefore important to have Muslim Lawyers and Judges at the highest level to protect the oppression and abuses against the Muslim community and others where Islamic law does not exist. Muslim participation in all the sectors of the economy and governance generally is therefore also a protection against tyranny and domination of Islam and its people. Failure to do so has always resulted into sidelining and oppression of Muslims in all aspects of life, governance and justice. The study and practice of laws other than Islamic laws in these societies is therefore at least a “lesser evil” in the greater public interest of Muslims (Maslahah) at least.
A Muslim should never turn away from an opportunity to do good or correct wrong in any context wherever possible. According to the great jurist Al-Izz bin Abd al-Salam, “When you study how the purpose of law brings good and prevents mischief, you realise that it is unlawful to overlook any common good or support any act of mischief in any situation, even if you have no specific evidence from the script, consensus, or analogy.”[4] This is at the heart of Islamic revival, renewal and reform (Islah and tajdid).
All legal reforms in any society are made by law experts of the highest qualifications. This in turn requires Muslims to take the study of law to the highest level. (The same applies to the study of finance and the popularization and legalization of Islamic Finance, etc.)
Even if some laws are wrong and unjust, they need to be studied in order to be identified, understood, challenged and changed by competent legal experts[5]. Muslims are required to study not only knowledge of what is halal in order to follow it, but also knowledge of haram in order to prevent, avoid or change it. In a well-known supplication (du’a), that Muslims are taught to pray to Allah to “Show us the truth (and help us identify it) as truth, and give us the ability to follow it; and show us falsehood (and help us identify it) as falsehood, and give us the ability to keep away from it”.[6] It is also reported that the Companion of the Prophet (pbuh), Hudhaifah bin Al-Yaman said that, “people used to ask the Prophet (pbuh) regarding what was good (al-khair), and I used to ask regarding evil (sharr) so as not to be a victim…”[7]
Not all aspects of Common Law or Customary Law are contrary to Islamic Law. There are many existing laws that do not contradict Islamic law and are acceptable under ‘Urf (good custom), Istishab (the presumption of continuity), maslahah (public interest), ta’zir (discretionary punishments by a judge), and ijtihad (juristic reasoning), etc. There is therefore the need to be specific regarding what particular laws actually contradict Islamic Law, and how to bring about the necessary changes.
Sheikh Justice Ahmad Muhammad Shakir is often quoted as being critical of Common Law (in Egypt) where he pushed for many reforms. It should however be remembered that to do so effectively, he had to study law and even become a respected judge in the Egyptian legal system where he worked until his retirement.
[1] Sunan Al-Kubra, no.12114; Al-Dala’il fi Gharib al-Hadith, 243
[2]Ibn Hisham, Sirat an-Nabawiyyah, 1/123; Al-Dala’il fi Gharib al-Hadith, 243
[3]Musnad Ahmad, 2904
[4] Al-Izz bin Abd al-Salam, Qawa’id al-Ahkam fi Masalih al-Anam, vol.2, p.160; Cited in Jasser Auda, Maqasid al-Shari’ah: A Beginner’s Guide, IIIT, London, 2008, p.19
[5]Al-Shaikh Ibn Baaz, Majmoo‘ Fataawa, Maktabah al-Shamilah, vol.2, p.326
[6]Tafsir Ibn Kathir, vol.1/310; Tafsir Ruh al-Bayan vol.8/386; Al-Wasit li Sayyid Tantawy vol.1/366, 1623)
[7]Sahih Bukhari and Sahih Muslim
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The Da’wah Institute of Nigeria fully support the efforts to pressure the relevant authorities in respecting the hijab wearing needs of Muslims in every field, institution and profession.
May Allah bless all those who strive in His cause to the best of their ability.
