An Introduction to Islamic Law (36 page)

The persistence of the 1961 Ordinance is a marker of the modest extent to which substantive Islamization took place in Pakistan. No less is it a marker of the political uses the founding fathers and subsequent politicians made of the Shari
a. But the few changes that have occurred in this sphere during the last several years are indicative of a larger trend, as we
shall see shortly. The FSC declared that as of March 2000, section 4 allowing orphaned grandchildren to be represented in
inheritance would no longer have effect, and delegated to the legislature the task of finding a solution for those grandchildren who, with this decision, were left to fend for themselves
.

The Court agreed with the proposal of the
Council of Islamic Ideology that a requirement be placed upon the aunts and uncles of orphaned children to provide and care for them as members of their own families. But the social and moral conditions, the Court agreed, were not yet ready for such an obligation to be imposed. Although
a moral community does not require external interference (one form of which is a legislative enactment), there must exist at least an elementary form of this community for such an enactment, first, to be accepted, and second, to have a constructive effect on the emergence and full formation of the moral community. In its decision, the Court wrote: “If the piety which is a prerequisite of an
Islamic Social Order had been prevalent, it [viz., imposition of obligation upon uncles and aunts] could well have been a good solution but in the situation in which we are placed, we are of the view that the better solution would be the making of a Mandatory will in favor of the
orphaned grandchildren.”
³

The Court’s imposition of a mandatory will, and not a duty of care upon relatives, appears to be grounded in the conviction that with the
modernizing changes in society and the virtual non-existence of a moral community, a duty of care will end in failure, and will meet with stiff popular resistance. This view, echoing
Sayyid Qutb’s ideas, rests on the assumption that the social order must first develop its moral character before it is ready for the implementation of Shari
a. Whether or not the Court articulated the moral–legal ramifications of the case in these terms, its decision certainly demonstrated that at least it arrived at an intuitive understanding of the functional and organic interdependence between and among the moral, communal and legal spheres
within
the Shari
a
. But the tenacity of the 1961 Ordinance and the entanglement of Pakistan’s ruling elite in “
modernizing” policies – in good part dictated by international hegemonic powers – have carried the day, effectively leaving the Court
, the Islamists and the ulama
, however differently they articulate Islam, in a minority
position
.

As noted in
chapter 7
, significant changes to the Shari
a did not take place until
Reza Shah Pahlavi assumed power in 1925. With the assistance of the British, and in a bid to centralize his rule, the Shah subdued the
tribal chiefs (who nearly incapacitated the
Qajars), and embarked on a project of weakening the
ulama and their institutions. He confiscated their
waqf
s and placed their administration in the hands of the
Ministry of Education. Any ulama retained as administrative or educational personnel were now paid by the government, depriving them of their traditional independence. This was a victory for the state that lagged behind its Ottoman counterpart by about three-quarters of a century.

Very much in line with changes the Ottomans had long since effected, the Pahlavi regime immediately introduced two new and important enactments: the
Code of Judicial Organization and the
Principles of Civil Procedure (both in 1927). A new
state system of courts was thus established, with judges and prosecutors as civil servants. In 1931, the
Act of Marriage was promulgated, implementing changes that reflected – as we saw in the previous chapter – the increased interest of the state in the reengineering of
family life. This Act was the result of preparatory work conducted by a commission composed of ulama and European-trained lawyers. The rest of the legislation on
family law,
including inheritance and gifts, was enacted in 1935. The years 1967 and 1975 witnessed two further waves of changes to family law, the latter year having introduced the
Family Protection Act, the hallmark of which was the abolishing of the husband’s right to
unilateral divorce. Needless to say, the sphere of family law
was the only reserve of the Shari
a, however thin it had become. To all intents and purposes, the rest of the law and legal system were of entirely Western inspiration, the
French influence manifestly dominating.

The monumental
Iranian revolution of 1979 produced colossal political and conceptual ruptures, within Iran and outside it no less. Yet, interestingly, the sphere of law, the supposed hallmark of the Islamic Republic, experienced a relatively small, indeed nominal, measure of Islamization for years after the Revolution took place.

In
chapter 7
, we had occasion to speak of the distinctive
Shi
i theory which holds the
Imam to be the lawgiver and the inspector of its application. But since the Imam is in hiding, and since law must continue in operation, several functions that the Imams would have fulfilled must now be dispensed – by proxy – by the
Jurist-in-Charge. This delegation of duty has become known as
Vilayat-i Faqih, the theoretical foundation of governance in the new Islamic Republic
.

Building on three centuries’ worth of
Twelver-Shi
i doctrine, but simultaneously charged with intense anti-colonialist sentiments,
Ayatullah Khomeini (the charismatic leader and theorist of the Revolution) expanded on this theory and argued that, as long as the Imam remains in hiding, the Jurist-in-Charge, the
MARJA
-TAQLID
, must fulfill the role of political and religious ruler, representing the Imam’s functions in all worldly and spiritual affairs. This doctrine became formally enshrined in the
1979 Constitution of the new Republic, where Article 5 states that the Jurist – or a group of such Jurists – who has fulfilled the qualifications of
ijtihad
(mastery of the law) is entitled to exercise leadership, provided the Imam continues to be absent. The extension of the Jurist’s powers to the political, military and other secular realms was justified, in Khomeini’s discourse, by reasoning to the effect that, for an Islamic state to be run in genuine compliance with the Shari
a, it must be supervised and administered by the ultimate expert in the law, the Marja
-Taqlid.

Khomeini’s position, it must be noted, represented an expansion on the doctrine he elaborated during the decade or so before the Revolution. In that earlier version, the Marja
-Taqlid assumed a supervisory role – very much like that prescribed by the
1906 Constitution – whereby the Jurist or Jurists evaluate(s) all legislation in order to ensure that laws stand in conformity with the rules of the Shari
a. As we just saw, this position was revised shortly before 1979 so that governance, including the supreme exercise of political power, might rest exclusively in the hands of the Marja
-Taqlid. In both versions of the doctrine, the Marja
is responsible for exercising
ijtihad
in those unprecedented cases that may befall the community and its state, but otherwise the Marja
is to regard and treat the established law of the Shari
a, at least in its broad outlines and foundational principles, as unchangeable. This permanency of the law as structure and principles constituted the essence of the Islamic rule of law, a feature that continues to be advocated and cherished by the majority of Islamists today.