Syrian Islamic Fiqh and civil law scholar, teacher, author and legislator (1904-1999)
Synopsis
Mustafa al-Zarqa was preeminent in helping provide a vision and bases for reconnecting fiqh to academia and modern legislation. He made significant impact on how fiqh is now written and taught at modern universities, is codified for civil legislation, and interacts with conventional law.
He also was the major protagonist for producing a fiqh encyclopedia that makes fiqh accessible to groups beyond Islamic jurists, especially legal scholars, legislators and the educated public. He strongly favored “opening the gates” for group ijtihād through fiqh academies.
In the last decade of life, he became active in applied financial ijtihad through fatwas and papers to fiqh academies.
Background
Cultural dualism of his times
Mustafa al-Zarqa grew up in early 20th century in Syria, a Muslim society experiencing cultural dualism: Islam vs. the West, that only intensified under French occupation 1918-1944. Each viewed the other with askance. Proponents of Islam deemed themselves the guardians of a glorious old way of life and values, now threatened by Western colonialism and its protégés at home.
Proponents of the West, positioned themselves as a harbingers of enlightenment and progress to a backwards people. They criticized Muslim scholars as knowing little in life beyond rules of rituals and cleanliness, and being innocent of modern knowledge and science. Proponents of the West viewed Islamn’s traditional culture and values, and even religion itself, as a hurdle, or at best excess baggage, in the trip to progress.
That dualism weighed heavily on Mustafa al-Zarqa’s heart and mind, and the reconciliation of the two became the defining question of his career. His education, professional work, and academic writings express his response.
His dual education
Islamic traditional Quranic kuttab; Friar French school (Les Frères maristes); Al-Khusruwiyyah Fiqh High School, Aleppo; Regular national high School, both science and arts.
Syrian University (later known as Damascus University): School of Law, and School of High Literature, graduating in 1933 with top rank in both; intensive fiqh tutoring from his father Shaykh Ahmad, a prominent Hanafi scholar (d. 1938 CE); King Fuad (later Cairo) University, Graduate Diploma in Fiqh,1947.
This multicultural and multidisciplinary background (shariah, law, Arabic literature and French) distinguished Mustafa al-Zarqa from almost all shariah scholars of his time. He then went on to get practical experience practicing law in Aleppo 1934-43 at national and mixed (French) courts, in the Chamber of Deputies serving as Minister of Justice and Awqaf for two constitutional periods. He gained a cosmopolitan touch from academic travels to many countries, East and West.
Recasting of fiqh
In 1944 he was appointed Lecturer at Syrian University School of Law, later Professor and Chair of Civic Law and Islamic Shariah. He retired in 1965.
Majallah was then the prevailing Islamic civil law (except for personal status which had separate law) in all Ottoman countries including Syria. It was taught article by article, similar to Islamic fiqh since the early Abbasid period (750 C.E.), taught as a sequence of specific topics, contracts and issues , and with general principles stated where relevant. This is useful to those applying fiqh (courts and issuers of fatwa), but not to those learning it, who had then to study detailed fiqh rulings for extended periods before general principles emerged in their minds.
Furthermore, Fiqh treatises, the sources of Majallah, were typically written in the last few centuries in exceedingly terse style, accessible to fiqh specialists rather than legal or other scholars.
Mustafa al-Zarqa immediately set himself an ambitious goal: to teach Majallah and its supporting fiqh the way French civil code is taught at French universities;. structured around a general theory of obligations, proceeding from general principles and theories to single topics and contracts.
This required complete recasting of Islamic fiqh of private financial transactions, truly a group job of Shariah and legal scholars. Mustafa al-Zarqa had to undertake it single handedly.
Recasting fiqh thus, Mustafa al-Zarqa asserted in the introduction to the 1945 edition of his al-Madkhal al Fiqhi, was meant to achieve three objectives. First, effective fiqh education, imparting expeditiously to university students who lack prior fiqh, the general principles and theories, before they plunge into seemingly diverse fiqh rules and fatwas. Second, rewriting fiqh in a simple lucid style. And, third, easy access to fiqh by legal scholars, through structuring fiqh topics in parallel to corresponding legal ones. Legal scholars can then discover a marvelous heritage to draw on and compare with. Sharia scholars also can benefit in teaching and research from access to legal views.
Thus he wrote the series Al fiqh al- Islāmī fī thawbihi al-Jadīd (Islamic fiqh in its new attire) the first book of which al-Madkhal al Fiqhi (General introduction to Fiqh) quickly became the standard, highly praised by peers and widely imitated. The second book, Al-Madkhal ilā Naẓariyyat al-iltizām al-3āmmah fil fiqh al- Islāmī (Introduction to the general theory of obligations in Islamic fiqh), was cited in awarding Mustafa al-Zarqa the King Faisal International Prize in 1984.
Mustafa al-Zarqa was quite emphatic that recasting fiqh is meant to change only its structure, explication and style of presentation, while preserving its substantive content ( the do’s and don’ts) which are based on Divine Shariah. Re-interpretation of that content requires proper fresh ijtihad, which is a different goal. (al-Madkhal -, Vol.I, pp. 27-33)
The Majallah Controversy
After Syria’s independence in 1946, there were calls to replace Majallah by a European code, and populist counter calls, favored of course by Mustafa al-Zarqa, for writing a newer and better civil code drawing on all fiqh schools.
Husni Al-Zaim military coup d’etat ,1949, dictated the repeal of Majallah and its replacement by a copy of the Egyptian civil code (based on the French code).
Mustafa al-Zarqa strongly opposed this. Why displace one of the great legal systems of the world, deeply rooted in your history and culture, by a rootless foreign implant? This, he wrote, is an unjustified declaration of academic bankruptcy by heirs to a great legal system. He noted several international scholarly forums in Europe, lauding the value, rich heritage, flexibility and ability of Islamic fiqh to respond to requirements of modern life (La Semaine de Droit Musulman (( Islamic fiqh week)), 2-7… and The International Academy of Comparative Law. The Hague: 1937 Congress…).
This reversal only strengthened Mustafa al-Zarqa’s resolve to demonstrate the sensibility and feasibility of recasting fiqh in modern form, and drawing from it a modern civil code. ( Al-Madkhal, Vol. I, pp. 21-27)
Codification from fiqh
It is the right of every citizen to know in advance what rules are to be applied to their transactions. This is best achieved by codification, which Mustafa al-Zarqa strongly favored provided it draws on all schools of fiqh, choosing from their rich and diverse heritage the rulings most suitable under present conditions and closest to the objectives of Sharia. When needed, novel rulings could be formulated through group ijtihad ( Al-Madkhal , Ch.22, Appendix II).
These views were fortunately shared and applied in drawing three codes in which Mustafa al-Zarqa actively participated (one is cited in annotation to Al-Madkhal ilā Naẓariyyat al-iltizām al-3āmmah fil fiqh al-…).
Interaction with conventional law
In matters of structure and style of explicating fiqh, Mustafa al-Zarqa enthusiastically adopted modern legal forms.
However, adoption of substantive content from conventional law (what is permissible or prohibited) is permissible only when consistent with Sharia through ijtihad. Instances of this include:
1. Mustafa al-Zarqa approval (still a minority view) of commercial liability insurance as Sharia compliant;
2. his early approval of (naẓariyyat alẓurūf al- ṭāri’ah (theory of emergency [?], to judicially modify an existing contract); and the theory of abuse of rights (both now a majority view);
3. his strong rejection of the claim by few scholars that prohibition of Riba doesn’t apply to bank interest.
The Fiqh Encyclopedia
Mustafa al-Zarqa recognized the far-reaching importance of producing a fiqh encyclopedia, to facilitate access to fiqh by presenting it in modern format. This was a recommendation of The Islamic Fiqh week in Paris, which he had attended (Al-Madkhal, Vol. I, pp. 254-55 ). He chaired a committee that started preparatory work in 1956 at the College of Sharia, Syrian University. The Kuwait Ministry of Awqaf adopted the project in 1966, and asked Mustafa al-Zarqa to supervise it till 1971. The project (الموسوعة الفقهية) was completed by that Ministry in 2006, comprising 45 volumes with refereed articles by tens of Sharia scholars from many countries.
Fiqh Academies
Codification of fiqh, to succeed in a modern setting, requires drawing on all fiqh schools, and properly exercising fresh ijtihad regarding the many novel issues of today. Mustafa al-Zarqa was an early advocate for establishing fiqh academies as a proper venue for this (Al-Madkhal, Vol. I, pp. 248-51). He became an active member of Muslim World League Fiqh Academy, and the International Fiqh Academy, Jeddah (established respectively in 1978 C.E./ 1398 H; and 1984 C.E./ 1405 H).
Assessment of impact
Mustafa al-Zarqa impact is less likely to emanate from this or that of his fatwas. Rather, it comes from his helping build durable bases for:
1. effective fiqh education;
2. modern group ijtihad,
3. easier, so wider, access to fiqh, especially by the legal community, hence mutually beneficial interaction.
Noteworthy also is his effective demonstration of the desirability and feasibility of codification from fiqh in civil law and personal status.
Annotated Bibliography
The first three books below comprise a series Mustafa al-Zarqa designated: Al fiqh al- Islāmī fī thawbihi al-Jadīd (Islamic fiqh in its new attire), which recast fiqh in parallel to modern legal explications.
1. Al-Madkhal Al-Fiqḥī Al-3ām – Ikhrāj Jadīd (General introduction to fiqh- New format).2 Vols; 1159pp. Index. Second printing. Damascus: Dar al-Qalam; and Jeddah:Dar al-Basheer,1425 A.H./2004 C.E.
From 1944 to 1965, eight successively expanded and revised editions of Al-Madkhal appeared. The new expanded edition of 1997, had new structure comprising 83 chapters, hence the subtitle “New format” instead of the “9th edition”.Chapters most relevant to finance are: “theory of ownership” (Vol.1,pp. 347-376), “theory of contracts” (Vol.1,pp.377-647), and “fiqh maxims” ((Vol.2,pp.965-1091).
2. Al-Madkhal ilā Naẓariyyat al-iltizām al-3āmmah fil fiqh al- Islāmī: Ikhrāj Jadīd, ma3a ṣiyagha kāmilah li nuṣūṣ tilka al-naẓariyyah (introduction to the general theory of obligations in Islamic fiqh: new format, with full text of articles expressing that theory). 366 pp. Damascus: Dar al-Qalam, 1420 A.H./1999 C.E. All chapters are essential law and fiqh, relevant to research and product development in Islamic finance. The Appendix (pp.297-360) comprises Articles 1-433,covering the complete general theory of obligations in Mashrū3 Qānūn al-mu3āmalāt al-māliyyah al- 3arabī al-muwaḥḥad (Draft of unified Arab code of financial transactions). Mustafa al-Zarqa was a member of a committee of five , commissioned during 1981-1984 by the Directorate of Legal Affairs in the Arab League, to prepare the Draft based on Islamic fiqh.
3. Al- 3uqūd al- musammāh fil fiqh al- Islāmī : 3aqd al-bay3 (nominate contracts in Islamic fiqh: the Sale Contract). 176 pp. Damascus: Dar al-Qalam, 1420 A.H./1999 C.E.The original edition in the late 1940’s was an explication of Majallah, hence based exclusively on Hanafi fiqh. This fully revised edition adds, mostly in footnotes, brief comparisons to other fiqh schools. Very lucid, and relevant to Islamic financing contracts (such as murabaha , salam and isti ṣnā3) where a sale/purchase contract is an essential component.
4. Aḥkām al-awqāf (awqaf rules).2nd ed. 226 pp. Amman:Dar 3ammār, 1419 A.H./1998 C.E. This is revised from the 1st ed. of the late 1940’s. Very lucid but only the first part of the full book that remains incomplete. It covers only rules about the nature of waqf , conditions of its valid establishment, rules about the establisher of waqf, and extended discussion about validity of the different conditions the establisher may impose.
5. Nizām al-ta’mīn, ḥaqīqatuhu wal- ra’u al-shr3iyyu fīhi (The insurance system, its true nature and the Sharia opinion about it ). 4th ed. 200 pp.,index. Amman: mu’assasat al- risalah, 1415 A.H./1994 C.E. Comprises several papers and appendixes by Mustafa al-Zarqa and summary of extended fiqh debates about commercial insurance. His position (still a minority view) is that commercial (not only mutual) liability insurance and term life insurance are essentially Sharia Compliant. Full life insurance is not, unless savings go into Sharia Compliant investments.
6. Fatawa Mustafa al-Zarqa. Edited by Majd Ahmad Makki. 3rd ed.700 pp. Damascus: Dar al-Qalam, 1425 A.H./2004 C.E.Probably the most popular of the author’s books. The 1st ed. was issued in 1999 before his passing away. Nearly 290 pp. are on financial and financing issues. A 2nd vol., being prepared posthumously, is expected in 2012.
7. The Mejelle: Being an English translation of Majallatel-aḥkam-i-adliya and a complete code on Islamic Civil Law.Translated by C.R. Tyser, et.al. Lahore, Pakistan: Law Publishing Company,[1967?],327 pp.,49pp Index.
8. La Semaine de Droit Musulman (( Islamic fiqh week)), 2-7 July 1951. A conference held by the faculty of law, institute of comparative law of the University of Paris, and the oriental section of the International Academy of Comparative Law. For summary of its proceedings see “La Semaine de droit musulman”, Revue internationale de droit comparé. Vol. 3 N°4, Octobre-décembre 1951. pp. 631-663. [http://www.persee.fr/web/revues/home/prescript/article/ridc_0035-3337_1951_num_3_4_7999]
The International Academy of Comparative Law. The Hague: 1937 Congress.
Muhammad Anas al-Zarqa
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