A Government, sincerely trying to pay heed to the desires of its people, has to chalk out a comprehensive programme of Islamizetion of the existing neo-colonial institutions.

First of all it has to seek the whole-hearted support of the members of the legislature, judiciary, bureaucracy and other agents of change.

It has to redefine the role of these institutions, and regulate their functions which will lead gradually to the establishment of a more Islamised Society.

It has to review the existing policies of the educational institutions for the purpose of bringing them into line with Islamic educational objectives.

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One such attempt was made recently by the International Conference on Islamic Education organized by the Organization of the Islamic Countries (OlC), especially the first world conference held in Saudi Arabia in 1977 the structure of the economic system should also be reviewed to re-establish an equitable distribution of wealth on Islamic lines.

To eradicate poverty and insecurity in the society through the establishment of a welfare State along Islamic lines, to introduce the institution of Zakat to eradicate usury from the society.

The role of the mass media should also be reviewed. Films, press, radio and television must be stopped from representing the Western permissiveness and violence of the west.

But the most important of all these reforms is the Islamization of the existing legal system because it is in the words of H.A.R. Gibb “the most farreaching and effective agent in moulding the social order and the community life of the Muslim people” (Gibb 1961).

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The influence of law is felt in almost all aspects of social and economic life as well as in all branches of literature. Now the question arises as to who should take up this responsibility Courts, ‘ulama or legislature?

Courts

So far as our Courts and lawyers are concerned they, at present, do not possess the expert knowledge of Islamic Law to administer it in all its various branches such as criminal law and procedure, commercial law etc.

The courts cannot be considered as being capable of adopting the rules of the early codes to the changing conditions of the modern society.

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‘Ulama’

‘Ulama (singular ‘Alim means a religious scholar and a follower of one of the various schools) believe that the laws in Islam are supreme and have long been finally settled by the great Imams that is the founders of the various schools.

They are most reluctant to give authority to any organ or body including them to depart from the opinions of the Imams.

They believe that other considerations, whether economic or social, must adapt themselves to such laws instead of the other way round: The gate for further Ijtihad was closed long ago.

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Now the duties of ‘ulama have come to collecting, memorising, comparing, explaining and implementing the decisions of the Imams Independent interpretation of the Qur’an and Sunnah have been totally prohibited.

It is not known whether the ‘ulama have any ulterior motives behind this stand or not but it is clear that once the jurisdiction is handed to the courts by the legislature to interpret the early islamic laws, fiqh, according to the changing situations in the society.

Then the laws will have to be substantially changed and will acquire a form and content with which the ‘ulama will find themselves unfamiliar.

The ‘ulama in clarification of their stand, state that there is general consensus among the various schools of law on the main points, and the differences occur only in points of detail.

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These differences, ‘ulama further state, are over-emphasised only to avoid the implementation of Islamic laws.

If the permission to allow fresh interpretation of the sources and rules of law, is given to any person or body, it will result in the total destruction of the edifice of Islam.

The scholars of Islamic law, some of them educated in the modern institutions, believe that the restrictions imposed on the development of Islamic law by closing the gate of Ijtihad must not be maintained any more, and that there is no justification for these restrictions.

They believe that a society is an organism in evolu­tion, constantly changing and developing as it moves from its beginning to its end.

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The social, economic, educational and political conditions at the time of the destruction of Baghdad had changed considerably from those of the period of the great Imams, which led to closing the gate of Ijtihad.

The present day social, economic and political conditions of the Muslim society are also entirely different from the circumstances of the earlier periods and require considerable changes in social, economic, political and legal codes to meet these requirements. For such a situation, the great Imams had a rule, to follow.

It says: “It cannot be denied that laws change to accord with the change of time and age.” According to Ibn Khuldun:

“The conditions, customs and sects of the world and nations do not continue according to any specific pattern of stable program. There is always change from time to time from one condition to another.

In as much as this applies to persons, times and provinces; it applies likewise to countries, ages and states. Such is God’s Order among his creatures.” (Ibn Khaldun 1966, I: 29)

Islamic law is compared to a flooding stream. It stops when the dam is closed, and flows again as soon as the dam are opened, bringing forth all kinds of fruits, vegetables and foodgrains necessary for the existence of life and body.

The permission of application of Ijtihad within the framework of the Qur’an and Sunnah must be allowed. Abu Hanifah and other Imams, in their period, were also discouraged from applying independent reasoning.

But they did not surrender, and believed that they had a right to do so as the earlier Muslims did. They said: “they were men, and we are also men.”(Khallaf, 1968: 102)

Modern scholars accept the opinion of Imam Malik, when he said that:

“It is up to a person to acceptor reject the opinion of the other, except one, namely the Prophet. (Khallaf, 1968: 102)

The scholars believe that with the n.odern facilities for study and research and exchange of information, it is easier now to go deeply into the letter and spirit of the revealed sources and the wisdom of the great Imams, and to apply them in the present-day situation.

According to the Qur’an and Sunnah, this is the duty of the Muslims in every time and place to practice Ijtihad to meet the changing needs of their time. As Iqbal says:

“From about the middle of the first century up to the begin­ning of the fourth, not less than nineteen schools of law and legal opinion appeared in Islam.

This fact alone is sufficient to show how incessantly our early doctors of law worked in order to meet the necessities of a growing civilization.” (Iqbal, 1954: 165)

The ‘ulama, do not agree on many points raised by the modern scholars, and believe that the modern scholars have accepted the sway of secularism which will take away religion and morality from the lives of the Muslims.

The ‘ulama also believe that the modern scholars have come to regard expediency as the only obligation to which public affairs should be subjected, and if given the authority to change law, they will change even the fundamental principles, in which the unity and existence of the Muslim Ummah is rooted. (Asad, 1961: 51)

The ‘ulama, however, agree most reluctantly to allow talfiq, which is to patch pieces together and involves adopting an opinion from among those of the other three major schools as a possible alternative to the already adopted opinion of the fourth school.

But in the case where the school did not provide any legal opinions at all the ‘ulama have brought in the theory of al siyasah al shar ‘iyah which refers to the power of legislation vested in and considered legitimate for the Muslim king or ruler to enforce his decision, even though it has no clear grounds in the Qur’an anc Sunnah.

This is allowed by the ‘ulama in the interest of the public “in order to maintain unity in the community and to keep it under the rule of shar’iah and its ethical principles including justice and equity” (Bin Qadi, 1953 iv: 309-310)

The modern scholars accept the concept of Talfiq only to the extent of the matters related to family and property, but in public affairs, they totally reject the application of Talfiq and the theory of al-siyasah al-shar’iyah, on the grounds the Qur’an accepts God alone as lawgiver.

The Qur’an is the will of God, explained by the Prophet. If the Qur’an and Sunnah require further interpreta­tion, or are silent on some particular point.

Then the sources of Qiyas and Ijtihad are required to be applied by the expert jurists of outstanding knowledge of the revealed sources and methodology, and of established position and high respect in public.

Who are well aware of the modern social, economic and political needs of the society (Mawardi 1973, 1: 618-644). The opinions of these jurists will not assume the position of law until they pass through the Institution of Ijma’ for its final sanction and ratification. Ijma’, opinion of the Muslims, is mention in the Qur’an as Sabil al- Mu’minin (IV: 115).

The prophet described it as the collective opinion of “my community” (Bukhari, K, al-Maghazi and K- al- Ahkam). Shafi’i explained it as the collective opinion of both the ‘ulama and the Muslims.

Malik, however, confined the concept to “the agreement of the immediate companions of the Prophet”. Later on the concept was mixed up with the concept of ijtihad and came to be known as “the agreement of the mujtahids of any period”. (Ahmad Hasan. 1982)

This later concept was accepted and put into practice in Pakistan. The Government, especially the present Government, assigned the function of taking collective decisions for social and legal reforms in the country, to the Council of Islamic Ideology, represented, directly or indirectly, mostly by the ‘ulama.

The Council has now been in existence for a period of 40 years. Most of its recommendations have been described in a recent study as retrograde and anti-modernization, and are either rejected or kept in abeyance by the authorities.(Ahmad Hasan, 1982).

The modern scholars believe that the failure in introducing a comprehensive social order along Islamic lines to replace the existing one is partly because of the restriction the ‘ulama have imposed on themselves by following the rule of Taqlid.

This rule is unsatisfactory in meeting the needs of a modern society, and in fact is not a source of law at all; rather it is against the basic sources of Islamic Law.

They, the ‘ulama, should not become slaves to their past, and should not surrender their initiative at the altar of that which at one time was found to be feasible by the followers of the great Imams.

We are not to be tied down by their decisions. What are binding upon as are the injunctions of the Qur’an and Sunnah, which contain principles and guidance for all times? We have to do precisely as the ‘ulama of the past did.

The Government wants to introduce Islamic reforms, but the ‘ulama insist adherence to the Taqlid of the schools.

The modern scholars believe that no reform can be permanent and fruitful unless ijtihad is exercised, and the outcome is adopted by the representatives of the Muslims.

The attitude of the ‘ulama, says Iqbal, “has reduced the law of Islam to a state of immobility.

Since things have changed and the world of Islam is today confront­ed and affected by new forces set free by the extraordinary develop­ments of human thought in all its directions, I see no reason why this attitude should be maintained any longer.”

He further says, “The claim of the present generation of Muslim liberals to re­interpret the fundamental legal principles in the light of their own experience and the altered conditions of modern life is, in my opinion, perfectly justified.” (Iqbal, 1954: 166-168)

Legislature now legislature in the Muslim countries has taken the place of Mujtahids.

“Indeed, the only way the Ijma’ can be utilised as a source of law in modern times is through its institutionalised vehicle, that is, through the parliament of the nation. How else is the agreement among the followers of the Prophet to be evolved in our day?

If we can thus view the growth of various schools of Muslim law as being no more than bye- laws which the mujtahids of those times, having regard to their own conditions, had to make in order to carry into effect the basic business for which law exists.

It is easy to explain not only the differences which are discernible in the texture of these bye-laws, but what is vastly more important, also to reach the conclusion that each community of believers would in principle be entitled, may bound to evolve its own set of bye-laws with a view to reorganise the business of the state in the light of the two basic sources of Islamic Law?” (Brohi, 1970)

Iqbal also considers the codification and reform of Islamic Law the responsibility of the legislature. (Iqbal, 1954: 175)

The present record of the performance of our legislative assemblies does not create any great hope for the evolution of the Islamic Law through the legislative institutions. The legislators have a tremendous task before them.

Besides fresh legislation to meet the new requirements of the changing circumstances, the whole of the large body of existing law is also to be revised so that it should conform to the injunctions of the Qur’an and Sunnah.

The efficiency of the legislators in this respect is questionable. To meet this deficiency, a committee of the legal experts has to be established to assist the legislators.

This is merely a temporary measure, as other far-reaching reforms are essential in the structure of the existing legislature for permanent results.

The Islamic legislature should consist of two houses: The House of jurists and the house of professionals. The main concept behind this dualism is to combine the secular and the religious positions in one unique character, that is, Islam.

Kurdi puts forward this idea in his work: “The Islamic State A study based on the Islamic Holy Constitution” and states ‘A human being has both a body and soul and needs certain direction lest one faction gains control over an­other Equilibrium between these two aspects in indispensable (Kurdi, 1973: 78).

In fact, the legislature is the major structure of the Islamic State which combines the secular and the religious positions in one unique character: “in safeguarding religion and managing the worldly affairs” as Al-Mawardi mentions in his book “Al-Ahkam al-Sultaniyah.”

Thus, the most effective branch in the Islamic States, the legislature, should not consist only of an immediately religious structure or a solely secular one.

The jurists will present religion and the professionals, who specialize in different fields of social sciences, will represent the secular side of Government. (Kurdi, 1973: 78)

The legislature should constitutionalize all areas which are uot covered by the Qur’an and Sunnah. And it could be amended if there is an urgent need to do so. (Kurdi, 1973; 77)

The legislature shall be given power to create statutes in all areas not covered by the Qur’an and Sunnah.

The legal decisions of the companions of the Prophet and the great Imams should be considered only if the existing situations are similar to their. (Kurdi, 1973:77).

These new statutes, however, must be confined to the spirit of the Qur’an and Sunnah, conform to their terms of justice and equity, and susceptible to change and development according to circumstances. (Kurdi, 1973:76)

This action is proposed to work on permanent basis. Mean­while there is a great need to introduce Islamic reforms both in the modern educational Institutions and in the traditional religious schools, to avert the threat posed to Islamic institutions by the ‘modern’ social sciences.

Dissemination of the knowledge of Islamic Law in our Universities would certainly help to face this threat. “Islamic Law”, says Joseph Schacht “is the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself.

Apart from this, the whole life of the Muslims, Arabic literature and Arabic and Islamic disciplines of learning are deeply imbued with the ideals of Islamic law; it is impossible to understand Islam without under­standing Islamic Law.” (Schacht, 1964: 175)

So necessary step should be taken for well-planned programme to give proper place to the study of Islamic Law, in the syllabi prescribed for legal education in our colleges and universities.

Since most of the politicians and legislatures have always been drawn from the legal profession, so it requires immediate attention.

Iqbal says “The effective remedy for the possibilities of erroneous interpretations of the basic sources of Islamic Law is to reform the present system of legal education in Mohammedan Countries, to extend its sphere, and to combine it with an intelligent study of modern jurisprudence” (Iqbal, 1954: 168)

A change of outlook in our political parties is also desirable, because a great deal of improvement can be effected if they nomi­nate only such persons as their candidates who have a genuine interest in the implementation of Islamic Law and also possess necessary qualifications for discharging their duties as legislators.

Codification of the Islamic Laws related to family and property on the basis of the concept of Talfiq should also be con­sidered.

This will require strong public opinion in favour of this unification of the Islamic Law on a non-sectarian basis, as no change can be considered permanent unless it has full support of the public.