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Divine Law Versus Man-made Law
By Mass L. Usuf

There is a vast difference between divine law and man-made law. Divine law takes superiority since the creator of man knows what he has created, and what his needs are. One of the attributes of the divine is that he is all knowing (omniscient). A simple illustration, at a human level, is the manufacturer of a car knows exactly what the car needs.

In contrast, since man lacks this omniscience, man-made laws change all the time, according to changing social attitudes and perceptions. Actions that were once regarded as ‘detestable’ and ‘heinous’ crimes (like abortion, suicide, prostitution, homosexuality and adultery in England) are now regarded as ‘legal’ and normal under the same laws. Some of these changes are sometimes called ‘progressive reforms’ because of short-sightedness or its reactive nature, may not be beneficial to man and society. When that is realised after a period of time, amendments take place again, in order to find solutions to the problems created by the original change.

Earlier, most Americans treated married women according to the concept of coverture, a concept inherited from English Common Law. Coverture was enshrined in English Common Law for several centuries and throughout most of the 19th century. Under the doctrine of coverture, a woman was legally considered the possession of her husband (chattel). Any property she owned became her husband’s on her wedding day, and she had no legal right to appear in Court, to sign contracts or to do business. Later, with women taking an active role in the Nation’s socio-economic arena, the status changed from being treated as chattels to those with basic rights. Such is the nature of law made by humans. Lawmakers cannot fully comprehend human nature or predict the future. It constantly keeps changing, so much so, that today’s law may not be valid tomorrow. sexy evening gowns
Based on a belief system of divine origin, Shariah, which is commonly acknowledged as Islamic law, envisages both a religious and social order. Islamic law, therefore, recognizes the liberty of human beings and provides legislations which are compatible with the ethical control of human actions, and, ultimately, of society.

It is rational and seeks to conform to the spirit of the law, which is known to prohibit what is harmful and to promote what is good for this life and for the hereafter. Ratio legis est anima legis, the reason of the law is the soul of the law. When compared with the doctrine of coverture, the unchanging principle laid down in divine law is that a woman has equal rights in relation to property, she is considered an independent person, and has guaranteed financial security.

Adoption of values

Society is built on collective consideration and for the general benefit of all the people. Therefore, what is best for the society as a whole, may not necessarily be the best for a person in that society. That person cannot demand preferences, to the detriment of the entire society. Hence, he or she must agree with the society’s view and get along. That is how human beings live in any society, developed or less developed.

Juxtaposing a broader notion to the above, there is at times a mistaken impression that progress and change in social conditions, especially in the West, must be taken as change or progress for the betterment of humanity. Of course, the West, through its university and education system colonises the intellect with the view of its superiority.
Innocent and unsuspecting young minds clearly fall prey to such one-sided influence. Without shifting the pros and cons of the newly obtained information, they become protagonists of change and progress in social thinking.

It is necessary to emphasise that everything from the West is not bad. However, the decision makers must have the capacity to choose between the good and the bad and, in doing so, consider the indigenous culture, tradition, religion and the ethos of the people. A bit of acculturation or a bit of assimilation occasionally is inevitable. There should not be a lack of appreciation to the distinctiveness in culture and religion, nor an obsession to superimpose or introduce values of one culture on another unique culture, or doing the same thing in matters involving religion, by not recognising the depth of religious knowledge.

Church power

In this sense, with regard to United Nations conventions, even governments should have the liberty to express their reservation, on matters which may not be compatible. The mere adoption of a document at the United Nations does not necessarily make all the content suitable for all countries. Any government, as an independent, sovereign Nation should be able to say, ‘no’ and opt out or accept with reservation.

In the Philippines, when family planning was being introduced by the United Nations Fund for Population Activities (now called the United Nations Population Fund), the powerful Roman Catholic Church opposed it.

For years, the church waged a bruising battle against government efforts to promote birth control, despite the country’s ballooning population. A religious group filed a case in Supreme Court, alleging that many of the Government-issued contraceptives were abortifacients (substances that induce abortion), and, therefore, should be banned. In June 2015, the Philippines Supreme Court issued a temporary order that prevented the Health Department from procuring, distributing, or administering contraceptive implants, a long-acting family planning method.

The age of consent in this deeply conservative Catholic country is just 12 years, one of the lowest in the world. Access to contraception was limited, and abortion is illegal even today. About 500 Filipino teenagers became mothers every day. No criticism was heard against the Church at a global level, although the country was reeling due to unwanted teenage pregnancies.

Neo-Ijtihad and MMDA

Ijtihad is ‘the logical deduction on a legal or theological question by a Mujtahid or learned and enlightened Doctor of Jurisprudence.’ Divine law is sacred to the Muslims, since it is derived from the Quran. The Quran contains the words of Allah (revelation). The primary source of Islamic law is, therefore, the Quran, along with several other subsidiary sources, thus forming the corpus Shariah law. We often read about the ‘progressive’ changes that were made to Muslim Family Law in countries like Turkey, Tunisia, and Morocco. The information that is lost in these references is the background to such changes.

Wael Hallaq, a leading scholar of Islamic law and Islamic intellectual history has succinctly captured the systematic annihilation of Shariah law by the British in India, and the French colonialists elsewhere. In this process of weakening the substantive Islamic legal system in countries where Islamic law was in practise, Wael observes, “The Islamic law of personal status (Family Law) was saved from the death blows dealt to other Shariah laws (except rituals) by virtue of the fact that it was of no use to the colonial powers as a tool of domination.” He further noted that the personal law culturally emerged as “the preferential symbol of Islamic identity,” because it represented what was taken to be the last fortress of the Shariah to survive the ravages of modernization.”

There were several devices used by the colonialists to weaken the application of Islamic law. “One such device is the so-called neo-Ijtihad, an interpretive approach that is largely free of traditional legal interpretation.
An example is the 1956 Tunisian Code of Personal Status, which prohibits polygamy on the grounds that the Quran explicitly predicated the permission to marry up to four wives on the man’s ability to treat them with complete fairness and justice, a requirement that was interpreted by modern lawmakers as essentially idealistic and impossible to achieve.” (Introduction to Islamic Law, 2009).
With regard to the Muslim Marriage and Divorce Act of Sri Lanka (MMDA), it is in no way pure divine law. Therefore, the entirety of it does not fall into the category of immutability and can be subjected to reform.

Its composition is a mixture of derived Islamic law and some provisions, which are alien to Muslim Family Law. When considering reforms, it will be wise not to jump at what has happened in other jurisdictions and obtain that as exemplary guidance. As mentioned above, we need to adopt what is suitable for our country. This adoption, of course, should be without undermining the rights that Islamic law grants to both men and women.

Today, the Muslim countries which lost the application of Islamic law, undermined during post-colonial periods, have only the personal law as a symbol of Islamic identity. For Sri Lankan Muslims, the MMDA is the preferred symbol of Islamic identity. So, be cautious when tinkering with it.