The Relevance of Ikhtilaf to Family Law (2/2)

ii. Fiqh as a Social Construction of Shari‘ah

From the above overview, it must be noted that the diversity in jurists’ opinions and the rise of different schools was geographical in origin; the difference was caused essentially by local practices and customs. This suggests that fiqh was a social construction of Shari‘ah. In the beginning, the term fiqh was used in its literal meaning, namely the understanding of Shari‘ah. This understanding was informed by social thought categories, either in the sense that the Shari‘ah was revealed in a particular social context or that institutions were built to make Shari‘ah socially acceptable. In a theoretical sense, social construction meant harmonising social and legal norms.

As mentioned above, classical fiqh scholars sought to explain diversity and difference of opinion as due to varying language usages or different interpretative methods. What is important and missing in these explanations is the social context of these differences. Languages and interpretative differences are closely associated with social norms and institutions, indicating the different social contexts of the speakers. The understanding of certain words even in the same language may differ in different areas where people speak that language simply because language is a social phenomenon. Jurists speak about two types of customs: usage of language (‘urf qawli) and social practice (‘urf fi’li /amali). Both are called ‘urf, meaning socially constructed practices.

This distinction between words and actions is used particularly in reference to diversity in family laws. For instance, cases of dower (mahr) disputes about the amount and mode of payment, or whether specific words connote the meaning of dower, are settled on the basis of the practice in a community. However, the ikhtilaf literature usually explains this disagreement as different meanings of a word understood by the jurists.

The social construction of laws is evident from the disagreement among jurists with regard to the matter of apportionment of inheritance for sisters and uterine relatives, namely relations on the maternal side.

The Qur’an says that if a man was survived by only one sister, she would inherit half of his estate as inheritance (Surah An-Nisa 4:176). According to some jurists, she will also inherit the other half as residue if there was no agnate relative. Shafi‘i disagreed with this view: ‘Have you not given her the entire estate as a sole survivor, while God prescribed for her only half of it whether she survived alone or with others?’ [1] Other jurists cited the Qur’anic verse about uterine relatives (Surah Al-Anfal 8:75), but Shafi‘i disagreed and dismissed the argument, saying that that verse related to a period soon after the Hijra when inheritance was distributed on the basis of faith relations. The distribution of inheritance was no longer regulated on faith relations after clear verses about succession were revealed. Shafi‘i maintained, ‘The husband receives a larger share than most uterine relatives. So if you permit people to inherit according to uterine relationship, the daughter would be on an equal footing with the brother, and all the uterine heirs would be entitled to inherit and would have a greater claim than the husband, who enjoys no uterine relationship.’[2] Shafi‘i argued that this disagreement arose due to differing interpretations of the two Qur’anic verses. Shafi‘i historicised the verses and argued that the verse that related to uterine relatives was no longer applicable. As to the residue, it went to the tribe if there were no agnate relatives.

I suggest that this disagreement may also be explained in terms of different perspectives held by the jurists on patriarchal and matriarchal social structures. Shafi‘i seems to be favouring patriarchy and arguing that the opposing opinion would compromise this principle. If we look at the pre-Islamic practice, women and uterine relatives were not given any shares in inheritance. The Qur’an introduced women’s shares and explicitly allowed one half of the estate to be given as share to a daughter and to a sister, if the latter was the only survivor. The Qur’an does not say anything about the residue in this case. In the pre-Islamic practice, only the agnate relatives inherited the estate if the deceased died childless. Shafi‘i’s position appears to maintain the pre-Islamic patriarchal practice; he replaced tribe with Muslim community.

Another instance of the social construction of fiqh relates to Imam Shafi‘i’s example regarding the disagreement relating to the meaning of quru’ that was mentioned previously. Shafi‘i, Maliki and Shi’i jurists define quru’ as a period of purity. To Hanafi and Hanbali jurists, it refers to the time of menstruation. Shafi‘i explained the disagreement as different meanings of the term. His justification for his view, however, suggests practical difficulties in accepting other views. Shafi‘i refers to three possible ways of calculating the waiting period: by lunar month, period of purity or onset of the menses. He explains that calculating by the lunar calendar cannot be considered normative as months vary between 29 and 30 days. He suggests that it is more accurate to count from the period of purity. The Hanafi and Hanbali jurists take the onset of menses as the starting point for calculating because it is a clear sign and therefore it is easy to begin counting from thereon.

In the pre-Islamic Arab society, the waiting period after divorce was apparently counted in terms of lunar months. The Qur’an also mentions three months in case of doubt (Surah At-Talaq, 65:4). In these explanations, again local practice is ignored. Ibrahim Fawzi[3] studied the pre-Islamic practices and the Qur’anic reforms in family laws and placed jurists’ debates in this comparative context. He concluded that in the pre-Islamic Arab practice, the waiting period referred to the period of purity. A husband would divorce his wife in the period of purity and the waiting period ended with the beginning of the next menstruation, as it indicated that she was not pregnant. Islam affirmed the practice of repudiation during the period of purity but extended the duration of waiting from one to three periods of purity in order to give the couple more time to reconsider the matter of repudiation. Shafi‘i’s position is again a continuity of Arab customs. This perspective, which is relevant to family laws, is often missing in the ikhtilaf literature.

The family is a social institution that regulates relationships between humans. When the Qur’an speaks about the family or about relationships between men and women, it certainly takes the social setting, customs and institutions into account. As Shah Waliullah explains, the material source of Islamic law, especially about family relations, is the pre-Islamic social customs. The Qur’an and the Sunnah examined pre-Islamic Arabian practices and customs, reformed those which were unjust, and adopted those which were fair-minded.[4] Shah Waliullah advises that to understand Shari‘ah, one must examine its material source as well as the method used to implement reform.

Referring to the reforms in family law, Shah Waliullah explained that Islam adopted the following pre-Islamic Arab practices and amended those which harmed the rights of women, especially with reference to divorce, dower and inheritance: engagement before marriage, marriage guardian, marriage ceremony, wedding feast, dower, prohibited relations, fosterage, marital rights, divorce and its various types, the waiting period and succession.

When the Prophet introduced reforms to the patriarchal practices, some of his Companions found them difficult to accept.[5] For instance, the verses relating to women’s shares in inheritance were viewed as strange by some of the Companions as they said women did not take part in wars and did not bring in any booty, so how could they be allotted shares in property.[6] Examples like this reveal the social context of these reforms and indicate how the patriarchal society reacted to these changes. We cannot appreciate the reforms introduced in the Qur’an and the Sunnah without relating them to the social context when they were introduced. The jurists also interpreted the Shari‘ah with reference to their social contexts. Today, when the social context has again changed, we need to reinterpret the Shari‘ah in these new social contexts.

Often, diversity (and the concomitant disagreement) is taken as a negative development; some historians of Islamic law (e.g. Joseph Schacht) describe it as a conflict between theory and practice. I have tried to present it as a dynamic principle in the development of fiqh. In summary, the key points so far are:

1. Diversity in fiqh reflects the process of the social construction of the Shari‘ah.

2. Diversity justifies the continuous need for ijtihad, harmonizing legal and social norms.

3. Diversity legitimises the quest for new methods of interpretation.

4. Diversity recognises multiculturalism and legal pluralism.