Tag Archives: Islamic Law

Post Colonial Pakistan And The Distortion Of History

By Yasser Latif Hamdani
An impartial history of the Pakistan Movement and the rise of the Muslim Nationalism in South Asia shows that the main engine behind it – the Muslim Bourgeoisie – was entirely drawn from the modernist educational tradition of Aligarh and other Muslim educational institutions founded and run by pro-west Muslim reformers like Sindh Medressah (which was a school modelled after British tradition, name notwithstanding), Anjuman-e-Himayat-e-Islam schools and colleges as well entirely secular institutions like the Government College, Punjab University and Peshawar University. In comparison the religious and scholarly class – i.e. Ulema- largely stood either aloof or in opposition to the the Pakistan Movement. Darul Uloom Deoband, the most important Islamic seminary in all of India, was as much an arsenal of pro-Congress Muslim Ulema after the Khilafat Movement as Aligarh was that of Muslim Nationalism. As the independence movement progressed, the pro-Western Aligarh Muslim University came to be associated more with Muslim minority’s cause and was denounced as “reactionary” by Congress as a whole. Pro-Congress Muslims created their own parallel Jamia Milli in Aligarh which was alter shifted to Delhi. Today it is the premiere Muslim institution in India, whereas Aligarh has been decaying. Continue reading

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The Contradictions of the Khilafat Movement

I first came across the writings of Mr. Hamza Alavi in College. This piece in particular shaped my ideas about South Asian history more decisively than others.  It was therefore a pleasant surprise to see this up on Red Diary.  Enjoy.  YLH 

by Hamza Alavi

The ‘Khilafat’ Movement of 1919-24, is probably quite unique inasmuch as it has been glorified with one voice by Islamic ideologists, Indian nationalists and communists alike and along with them by Western scholars, as an anti-colonial movement of Muslims of India, premised on the hostility of the British to the Turkish Sultan, their venerated Caliph.1 Little attempt has been made to examine the premises on which the movement was founded, the rhetoric of its leaders being taken at face value. On closer examination we find extra-ordinary paradoxes and contradictions behind that rhetoric. Continue reading

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Alive and Gay in Pakistan

(The views expressed in this article do not reflect those of Pakteahouse)

By NICK SCHIFRIN

It wasn’t until she was 16 years old, when she’d left her Pashtun family in Peshawar for an elite school where the teachers were nuns, that Minot realized she was gay.

“I found out when I dated my literature teacher [a nun],” she said. “I got an A.” Continue reading

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Islamic law ushers in reign of terror in Pakistan’s Swat valley

By Saeed Shah  | McClatchy Newspapers

MINGORA, Pakistan — Two weeks after the Pakistani government capitulated to Islamist demands and imposed Islamic law throughout the Swat valley, armed militants are patrolling the streets of the district capital and masked gunmen have taken control of outlying districts, where they’re terrorizing residents and using intimidation to close girls’ schools. Continue reading

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Filed under Citizens, human rights, Islam, Islamism, Taliban, Terrorism

The Unconstitutional and UnIslamic Ehteram-e-Ramzan Ordinance

Our Blue Law: The Unconstitutional and UnIslamic Ehteram-e-Ramzan Ordinance

By Yasser Latif Hamdani

The United States of America had till a few decades ago a curious legal creature called the “Sunday Closing Law” also known as the “Blue law” on statute books of many of its constituent states.  On Sunday, that day being the “Christian Sabbath”, it was forbidden to carry out any business or for grocers to sell anything except necessities.  The law applied across the board and was thus an instance of a religious law.  Ultimately most states were forced to repeal this law for being ultra-vires to the US constitution which promises freedom of religion and freedom of conscience. Enshrined in the US constitution is the first amendment which forbids the state to either establish religion or forbid the practice of it. Thus freedom of religion was a fundamental constitutional right and the basis of the repeal of the Blue Law in most states.

 One of the promises expressly made by the founding fathers of Pakistan was religious freedom for all.   Jinnah promised in about two dozen speeches before and after partition that there would be no discrimination based on faith in Pakistan. His was a vision of a secular democratic state informed by Muslim cultural life the same way US is influenced by Christian values and secular India embodies the ethos of its Hindu majority on a civic level.   The constitution of 1973 however sought to establish Islam as the state religion within the framework of a federal democratic republic. Nonetheless this constitution gives Pakistanis “the right to the right to profess, practise and propagate his religion” (Article 20) and further ensures that “all citizens are equal before law and are entitled to equal protection of law” (Article 25)  and “in respect of access to places of public entertainment or resort not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of race, religion, caste, sex, residence or place of birth” (Article 26).  

 

Pakistan, despite being officially christened as the “Islamic Republic”, did not have any such blue or green law for the first 30 odd years of its existence.  Continue reading

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Dynamics of Change in Islamic Law (III): Grundnorm, a cosmological myth

by Aasem Bakhshi

Please refer to part 1 and 2 for the background.

To effectively address the original Weberian objection i.e. normative pluralism is substantively irrational, it is mandatory to reformulate the problem in concise terms, starting point being that change in Islamic law takes place by means of some interpretive mechanism called Ijtihad. What exactly constitutes it: Is it the interpretation of the textual source ab initio; is it merely a pseudo-clandestine thought experiment to seek out verdicts on issues on which there is no past consensus among jurists; or is it merely a different solution to an old problem, but one which is in sync with contemporary social reality?

Irrespective of the particular theoretical inclination favored, there is no doubt that multiple norms will be generated in any interpretive undertaking; a fact which is amply observed by the term ta’addud al-ahkam in traditional Islamic literature. That this multiplicity of norms gives an irrational character to the law is the contention I am presently trying to analyze.

In my view, basis of this contention can be traced back to Islamic legal history and literature with some effort. After the post-recognition phase of Madhabs (the schools of Islamic Law), Muslims jurists increasingly found it hard to espouse the concept of Ijtihad “proper” through the medium of ifta’a, thereby limiting the response of an independent jurist to the ambit of his own juridical school. At times, some of these jurists resorted to quasi-artificial casuistic methods in order to achieve equity between presumed universality of complete legal paradigm, i.e. Sharia’h, and its practical manifestation when it comes to application of law to facilitate the functions of a society. Most of these casuistic developments – for instance Istihsan (Juristic Preference), Istishab (Presumption of Continuity), Urf (Custom) – in medieval times were arguably instigated by the desire to achieve a rational character of the law, thereby circumventing an almost subjective and probably mistakenly understood and emphasized universality of norms. And if all these developments and the enormous literary genre evolved from them achieved a kind of “practical wisdom” in line with social reality of times, it seemed rationally inconsistent to a modern critical mind.

But there is more to this discourse than casuistry acquiring a contemptuous nuance in Islamic law. Continue reading

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Dynamics of Change in Islamic Law (I): Normative Pluralism

by Aasem Bakhshi

In my view, the most important crisis that Muslim society miserably failed to handle during Islam’s sojourn into modernity is diversity. By diversity, I mean religious heterogeneity in any form, may it be the pronouncement of legal injunctions, opinions regarding societal norms or something as personal as individual religious practices.

Therefore, whether it is the abundance of contradictory fatwas on issues as diverse as women leading prayers to Muslims attending Christmas celebrations to Islamic prohibition of images to what constitutes death, Pakistani brothers arguing about the bare heels of a Chinese sister during Hajj or my grandma’s queasiness while watching me pray in a manner other than our family’s religious school, there is an invisible urge to see a kind of religious monism; a CONSENSUS based on an almost Utopian unity of intelligibility, opinion and action.

Continue reading

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