Syed Shahid Rashid
Jurisprudence literally means ‘wisdom of law’ or ‘understanding of law’. The central theme of jurisprudence is to study nature, content and purpose of law. Modern jurisprudence or what may be called as present legal thought emanates from four major schools i.e. Natural Law, Analytical Positivism, Historical School or Evolutionary theories and Sociological School. New schools of legal thought have also emerged like as Vienna School(pure theory), American School(Realism) etc. However, larger influence continues to remain of first four thoughts in one form or another. Allama Iqbal, who was one of the outstanding thinker and philosopher of 20th century and who lived in the times when modern jurisprudence was emerging and shaping its base in almost all the legal systems of nation states take its roots from Shariah and more importantly from Quran which he further progressed by strongly advocating Ijtihad. He developed a legal thought comprising of classical theological foundations and modern scientific interpretations. He attempted to bridge a gap between undiluted conservatism and uncontrolled modernism by advancing a legal thought founded on theological basis and polished with scientific outlook which can accommodate the emerging issues and challenges. Traditionally, Natural Law take its roots from reason, divine, morals, abstract, and universality of law. Naturalists see law as a higher ideal, the phenomenon of universality closely linked with reason. They consider law inextricable with morality, reasonableness and universality. However, this morality is not necessarily to be emanated from theological parameters. Natural Law emerged and expanded its ambit in the Greek, Roman, Christian, Medieval and Modern period. This school, however, remained more in idealism and failed to transform the thought into practice for a very long period of time on account of inconsistencies and lack of sound theological basis. The exploitation in the name of religion during the Christian period in Europe played a larger part in the degeneration and failure of natural law to emerge as a concrete legal thought. Iqbal believes that ‘Modern Europe, no doubt has built an idealistic system on these lines, but experience shows that truth revealed through pure reason is incapable of bringing that fire of living conviction which personal revelation alone can bring. This is reason, says Iqbal, why pure thought (reason) has so little influenced men, while religion has always elevated individuals, and transformed whole societies. The idealism of Europe never became a living factor in her life, and it resulted in intolerant democracies whose sole function is exploitation of poor in the interests of rich. Iqbal feels, Europe today is the greatest hindrance in the way of man’s ethical advancement. The idea of higher law based on revelation is the most fundamental element of Iqbal’s legal thought and philosophy which distinguishes it from law of nature or natural law. Analytical Positivism in England considered law as a process of observation and experiment; analysis and classification; command and coercion; state and power.
Iqbal’s legal thought is not only in the state of mobility and dynamism full of progress and evolution, but a synthesis between orthodox thought of rigidity and modern thought of rationality.
The main exponents of this school were Jeremy Bentham and John Austin who considered law as the command of the sovereign. The legal thought propounded by analytical positivism gave rise to the authoritarian and imperialistic attitude of law divorced from morality and ethics. This school promoted literalist approach of law i.e law ‘as it is’ and not ‘ought to be’ which ultimately leads to the stagnation of law nullifying essence and spirit in the letters of law. Iqbal, on the other hand, regarded ‘Law’ as an instrument of mobility, movement, consensus, essence, spirit, inclusiveness and interdisciplinary mechanism. Iqbal was not literalist or dogmatist but essentialist and dynamist. He condemned imperialism and imperialistic forces which the Analytical positivism tends to enhance by its definition of law. Historical School in Germany propounded by Carl Von Savigny strongly advocated the evolutionary process of law and considers law as ‘volksgiest’ i.e. it lies in the customs, history, language and national character of the people and these factors act as the core features in the structure of ‘law’. The school emerged in the backdrop of resisting foreign influence on the local character of law. Iqbal, no doubt, regard study of history as an important factor in determining the scope of law and also believed in the evolution of law. He expected modern ulema and preachers to be well acquainted with Islamic history, economics and social sciences besides the literature and idealism of their nation. Not only this, he even endorsed the need for discussions on questions relating to law and studying modern jurisprudence in order to avoid the erroneous interpretations. However, his legal thought promotes universalism and discards nationalistic tendencies in law promoted by Historical school. Iqbal’s legal thought allows to read and understand the constitutional theories of different legal systems in order to reconstruct the Islamic thought on the modern lines within the maintainable limits of the spirit of Quran unlike historical school whose approach of law is evolve legal process within the frame of nationalism and national creed only. Sociological school considers law as a social fact or reality strongly connected with society influenced by social and economic factors. The prominent jurists of this school are Ihering, Leon Duguit, and Roscoe Pound who propounded the theories of social interest, social solidarity and social engineering respectively. Muhammad Iqbal favored spiritual social order. He said: in His Reconstruction of Religious Thought “Let the Muslim of today appreciate his position, reconstruct his social life in the light of ultimate principles, and evolve, out of the hitherto partially revealed purpose of Islam, that spiritual democracy which is the ultimate aim of Islam.” He considered Islamic Law as an instrument of social change as a living institution. However, he appears to be of the view that the present condition of Shariah law and the way in which it was applied, was deplorable, and therefore, it required a complete reconstruction in the light of Ijtihad. In the words of Iqbal “Today Islam’s greatest need is the reconstruction of the Islamic law and its re-codification in such a way that it may provide the Islamic answer to the hundreds of thousands of new questions that have been posed by the modern economic, political, social, national and international developments.” He believed that the principle of movement in the structure of Islam is Ijtihad. According to him, Islamic law can be subject to moderation from time to time but within the unalterable cores of legal codes of Islam, which are obviously ethical and universal in nature. He veiled on this fact that Ijtihad was restricted, restrained and blocked for so many centuries. He enumerated various reasons for this intellectual attitude which reduced the law of Islam in the state of immobility like the rise of Rationalism or the Rationalist Movement, rise of Skepticism and emergence of Taqlid, rise and growth of ascetic Sufism (rahbaniyat) and on top of it the Destruction of Baghdad in 1258 which almost robbed of the Muslims from the intellectual heritage. But at the same time he warned against the misuse of Ijtihad. He does not believe in uncontrolled and unbridled exercise of opinion. He criticized the unregulated exercise of opinion and freedom which ultimately paved way for uncontrolled modernism and unregulated liberalism which has tendency of disintegration He says:
Azaadi afkaar say hai unki tabahi rakhtay nahi jo fikro tadabur ka saleeqa
Ho fikr agar khaam tou azadi afkar insaan ko hywaan banana kar tareeqa
So it can be concluded that Iqbal’s legal thought is not only in the state of mobility and dynamism full of progress and evolution, but a synthesis between orthodox thought of rigidity and modern thought of rationality.
(The author is a research scholar at Law Department Kashmir University and a practicing lawyer at Jammu & Kashmir High Court. Views are his own, [email protected] )