Towards

the Reformation of Usul al-Fiqh for the Reconstruction of Islamic Principles of Governance and Human Rights RIDHWAN MOHD BASOR International Islamic University Malaysia

INTRODUCTION An Islamic state in its classical sense is to be distinguished from any other Muslim majority states existed today, as it is based on the concept of Tauhid (oneness of God), Risalah (Prophethood) and Khilafah (Gods vicegerents). Without any of these three distinct principles, an Islamic state cannot stand and function on its own. Allah is the unquestioned authority because He alone is the creator of everything. And (He has created) horses, mules, and donkeys, for you to ride and use for show; and He has created (other) things of which you have no knowledge. The ideal Islamic state is the one as depicted in the Al-Quran and Sunnah, and recorded in the medieval period of the Prophet Muhammad and his rightly guided companions. Concomitantly, the type of Islamic states, which existed today certainly pale in comparison to the majestic ideal one. The ideal Islamic state is one that emphasizes about the fulfilling of responsibilities towards God and between rulers and citizens; and recognizing and granting the rights that come with fulfilled responsibilities. Rulers are the vicegerents of God who carry with them the heavy responsibilities of guiding and protecting the people, and being accountable to God for it. Citizens help to run the state smoothly by observing their own responsibilities that are required of them. Ideally, the Islamic state is the epitome of stability and progress; with Divine laws by the ultimate sovereign as guidance and the ijitihad of wise scholars who seek nothing else but the blessings of God and the welfare of citizens.

 In our contemporary era, many Muslim states are not living up to the principles of governance in Islam. Instead, several of them are ruled by authoritarian regimes like Egypt and Sudan, some ruled under the monarchy system like Saudi Arabia and Jordon while other states subscribing to democracy and semi-democracy like Turkey and Malaysia. In many of these states, they generally claim to be following the principles of Islamic governance, especially Saudi Arabia and Sudan, while Malaysia declared itself to be an Islamic state. Nevertheless, to what extent they are following closely to the Islamic principles of governance remain contentious. On the other hand, there are those states that subscribe to principles of secularism and hence declared to be secular-states, like Egypt and Turkey. The closest is perhaps the Iranian government, which clearly put into practice some principles of Islamic governance in accordance to the Shiite tradition. However, to what extent can Iran be a model of Islamic state based on the principle of Islamic governance is also hitherto subject to various discourses. In the recent decades, there have an upsurge of Islamic movements launching political revolution to replace the secular regimes of their nation-states. The success of Iranian Revolution in the late 1970s brought hope to some Islamic movements for a plausible return of the Islamic Caliphate. For instance, Egyptian-based Muslim Brotherhood (Ikhwanul Muslimin) participates in the political process in Egypt and advocating the idea of the Islamic state, instead of the established secular governance. Similarly in Malaysia, the Pan-Malaysia Islamic Party (PAS) declared in its manifesto that ideally the establishment of Islamic State in Malaysia, which follows strictly to the Shariah law, as their ultimate political objective. At a global level beyond nationstate, the Hizb at-Tahrir calls for the formation of a global Caliphate system and they are actively promoting this idea in the West. Nonetheless, what exactly is the ideal

 model of an Islamic state? Is it just a form of governance that incorporates the Shariah law, which include stoning and chopping off hands or is the idea of an Islamic state in its actual sense is beyond that limited understanding? Over times, the model of an Islamic state is highly contentious and Muslims are divided in this issue. There have been several attempts among scholars and thinkers to reconstruct the principles of governance in Islam in the light of todays modern society. Some of the modernist Muslim proposed for the adoption of the secular nation-state form of governance and argued for the separation of religion from state affairs. They call for Muslim nations to accept the principles of democracy and universal human rights values, which largely based on Western political thought as the way forward. While some calls for the appreciation of the entrenched dogmas of the Western political philosophy and look for ways to make it compatible with Islam. Hence, in the effort of todays Muslim political thinkers and scholars to reconstruct the principles of governance in Islam, it is imperative to identify the guiding principles within the framework of Islam. This is to ensure that any serious such attempts are in accordance to the message and spirits of Quran and Sunnah. In this essay, I will first of all explore the classical model of an Islamic state as exemplified by the Prophet Muhammad and the Rightly Guided Caliphs (Khulafa ArRasyidun). This will provide us with a clear picture and serve as a historical model that demonstrates the ideal principles of governance in Islam. Secondly, this paper will critically discuss the importance of Usul al-Fiqh in the formulation and reconstruction of the Islamic law across time and space. While it is necessary that any attempts at the reconstruction of the principles of governance in Islam need to based on Usul al-Fiqh, this paper concur that there is also a need for the reformation of the Usul al-Fiqh framework in the light of todays context.. 3

 CLASSICAL ISLAMIC STATE The best model of an Islamic state that had clearly demonstrated the principles of governance in Islam can be traced from the medieval Islamic era. This Medinan phase in particular showed how Prophet Muhammad had successfully established an Islamic state, ruled in accordance to the percepts of Islam. It was a state where Muslims and non-Muslims were able to live harmoniously and progressively under the guidance of the Prophet. The Prophet played a pivotal role as the head-of-state handling the political affairs of Medina, the commander-in-chief joining the military expeditions in defending the state and also as a spiritual leader of the Muslim community. The example of leadership showed by Prophet Muhammad clearly demonstrates the fundamental principles of Islamic governance, where essentially there is no separation between the State and religious institution. It showed that Divine guidance is central in managing the state affairs and that the leadership of the state is an inclusive concept, where the head-of-state is both knowledgeable and have expertise in managing state and religious affair. This is after all, Islam need to be understood as Ad-Deen, a rather different concept from the understanding of the term religion from the western sociological construct. Essentially, Ad-Ddeen is defined as a way of life. It is a comprehensive system of living, a distinctive Weltanschauung or Tasawwur of its own. Ipso facto, it is a metaphysical survey of the visible and invisible worlds including the perspective of life as a whole (Al-Attas, 1993). The

comprehensiveness of Islam includes its own definitive political, economic and social system. The establishment of Islamic state during Prophet Muhammads era thus served as a mean for the realization of Islam as Ad-deen. The main principles of Islamic governance can be analyzed from the unprecedented document of the Charter of Medina (Sahifah Madinah). The key 4

 highlight from this Document is that the nature of relationship is to be based on Faith; one Ummah, where non-believers were regarded as minority (dhimmi), in the sense of numbers but equal protection and rights. In an analysis by Ramadan (2007), The terms of the covenants (Sahifah Madinah) were primarily based on the recognition of diverse affiliations and did not demand any conversion. The principles of justice, equality, and equal dignity for all the signatories (whether Jewish or Muslim, Medina natives or immigrants from Mecca, Aws, or Khazraj) were mentioned in it. (p.88) This clearly implies that the principles of governance as stipulated by the Prophet from this Constitution were not exclusively for the Muslims, but is extended to nonMuslims citizens of the state. This is after all, Medina, the model of an Islamic state was a cosmopolitan city with multi-religious societies. The Constitution also states that the Shariah laws to replace other laws in States affairs. The Political System is to be based on three pillars: Tauhid (Unity and Supremacy of God), Risalah (Prophethood; for Dhimmi, Prophet refers to Political Ruler) and Khilafah (Caliphate). While the Governing paradigm is based on the concept of Shura (Consultation) and while in doubt, refer to Allah and His Messenger. As a statesman, the Prophet had showed tremendous precedent while in office, where subsequent leaderships of the Muslim community should aspire to emulate. The Prophets way of governance can be analyzed from his seerah (history) and Sunnah. A critical reading of both his seerah and Sunnah will enlighten us with several values and principles greatly upheld and stressed by the Prophet in his leadership includes. Amongst these values and principles are, rule simply and humbly, rule as an amanah (duty) to God and as His Trustee, all human beings are equal; the only difference in the eyes of God is ones taqwa (piety), consult others (shura) on 5

 important issues of governance, stand up for Truth (haqq) and apply justice (adl) without fear or favor. Rule simply and humbly has been one of the many virtues of the Prophets leadership. He reminded the believers, No one should stand in ceremony upon my arrival. From his attire, foods, mannerisms, treatment against enemies it is obvious that simplicity and humbly has been his principle. Secondly, he emphasized that leadership is a duty to God and thus a leader act as His Trustee on earth (khalifah). He warned, Do not crave for glorification from other men. Thirdly, the Prophet stressed on the equality of all mankind, and that No Arab is superior to a non-Arab and vice versaEven if your leader is a black, noseless slave, obey him you must as long as he follows the Quran. Fourthly, the concept of Shura was clearly established in Prophets governance. In many instances, the Prophet had exercised Shura before making his decision on several matters. For example, during the battle of Khandaq (the Confederates), the Prophet had called for a meeting to discuss war strategy with his companions. Several deliberations had taken place, and finally the idea proposed by Salman al-Farisi, a former slave from Persia to dig trench was taken after the companions and the Prophet agreed to it. In the battle of Uhud, the Prophets proposal to stay inside Medina and wait for the enemy to attack was rejected by many of his companions. After several deliberations, the Prophets idea was not accepted, instead the proposal by his companion to go out of Medina and fight the Meccan Quraish was popularly accepted and agreed. Significantly, this shows that consultation and discussion is essential in Islamic governance. Although the Prophet was a leader, he did not ruled as an authoritarian leader, instead he preferred to listen to the views and suggestions of his Companions who were part of his military personnels and ministers. In fact, the Companions in many instances had voiced

 disagreements with the Prophets personal views that were not based on any direct revelations. In doing so, the Prophet had cultivated a culture of intellectual discourses amongst his Companions. He had encouraged them to go beyond mere blind obedience or mechanical, mind-destroying imitation (Ramadan 2007, p.103). In addition, the Prophet also accentuates the importance of establishing truth (haqq) and applying justice (adl) at all cost. The Prophet mentioned, The most excellent Jihad is to speak the truth in front of an unjust Ruler and I swear by God, if Fatimah should steal, I would have her hand cut off. The leadership of the classical Islamic state continued by the four-rightlyguided Caliphs (Khalifa Ar-Rasyidun) after the demise of Prophet Muhammad. Four different Caliphs who were amongst the closest Companions of the Prophet continued the legacy of Prophets principles of governance, however with different styles and ways in the light of their socio-political milieu. Nevertheless, they regularly make reference to the Quran and Sunnah that fundamentally served as the philosophische grondslag of their governance. The main principles of fearing and obeying God were highly upheld as mentioned in the Quran, He has ordered you to obey Him alone; that is the Right Way (12.40). They also continue to follow the Prophets teachings and practices as what God had instructed, We have indeed, in the Messenger of God, the best conduct for mankind(33.21). While in matter of disputes, they constantly refer it back to the Quran and the tradition of His Messenger. This is based on Gods reminder, If you are at variance on any matter, refer to Allah and His

Apostle(4.59). This clearly shows that their principles of governance are essentially based on Quran and Sunnah and this set a precedent that the principles of governance in Islam must not go against the guiding principles of the Quran and Sunnah.

 At the same time, new challenges faced by these Companions requires them to formulate new laws and initiate new policies for state and religious affairs. This is done through the principles of ijtihad. The Prophet after all had recognized the different needs of his ummah in staying true to his teachings, while adapting to different environments not experienced by the communities that he had lived with. Hence, when the Prophet appointed Muadh ibn Jabal as a judge to a new environment in Yemen, the Prophet had hypothetically asked him how he would judge on any matters arising in an environment that was greatly different from Medina. The Prophet asked, Through what will you judge? Muadh replied, Through the Book of God (Quran). He then asked, And if you find nothing in the Book of God? Muadh went on, I shall judge according to the tradition of the Messenger of God (Sunnah). The Prophet then asked, And if you find nothing in the Messengers tradition? Muadh then answered, I shall make a critical reasoning (ajtahidu) to reach an opinion and not be extreme with it. This satisfied the Prophet and he concluded, Praise be to God, who has guided His Messengers messenger to what satisfies Gods Messenger. Hence, this tradition of ijtihad was practiced by the Khailfa arRasyidin. For instance, the four Companions adopted different ways through their own ijtihad in paving the way for their Successors to be chosen. This indicates that there is no fixed system of succession in Islamic governance. Instead, succession plan are based on the wise ijtihad of the respective leaders to determine whats best for their era. Uthman added a second azan call for prayers for the Friday Prayers. Umar made a new ruling that divorce will only take place after three pronouncements of such intention (niyat) from husband, a revision of the law adopted during the Prophets time.

 Beside ijtihad, the Companions continue to practice Shura. However, Shura does not necessarily imply following majority opinion. For instance, the elections of Abu Bakr and Umar were discussed elaborately with a number of individuals and groups, but finally decided upon by a few trusted and pious aides. In addition to Shura, the Companions also exercise Bayah, the public declaration of allegiance. In Islam, consultation is obligatory but consults only people of expertise, and bayah ensures greater commitment and loyalty to the chosen one, as well as signals a leaders fear of Gods retribution if he later turns out to be treacherous. The Companions also established de-centralized governance as the territory of the Islamic expanded during their periods in office. When ruling a large territory, they showed us that it is better to de-centralize and devolve rule to local leaders, based on local sensitivities and cultures. Umar changed Governor Wali Mughirah of Basrah and Khalid ibn Walid, despite their big contributions to Islam, after serious complaints from the local populations. Uthman replaced Abdullah Abi Sarah with Muhammad Abu Bakr after special appeals from the people of Egypt. Viewed as a whole, the classical Islamic state as exemplified by Prophet Muhammad and his four rightly guided Companions laid the groundwork for the prototype of an ideal Islamic state. The principles of governance in Islam were essentially materialized in its practical form based on their execution and conduct of governance. Thus, the principles of Justice (Adl), Truth (Haqq) and the practices of Consultation (Shura), Public Allegiance (Bayah) and critical reasoning (ijtihad) became the fundamental of Islamic principles of governance.

 THE IMPORTANCE OF USUL FIQH The prototype of the classical Islamic state thus provides the later generations of the Muslim ummah with the principles of governance in Islam. However, throughout the eons of time, the Muslims ummah have been confronted with new challenges that require their intelligence to live as a faithful women and men in ever-changing environments. While the principles of governance in Islam had been clearly laid down by the Prophet and his four Companions, new challenges confronting new generations of Muslims living in the modern times, call for the reconstruction of principles of governance in Islam. After all, historical realization of Islamic past is essentially not the ultimate aim, instead it is the eternal principles of the Shariah that need to be realized given different localities. As exemplified by the Companions, the practices of ijtihad were thus vital in formulating new laws and policies given their changing socio-political milieu. Since Islam is a comprehensive way of life that is relevant across times and place, its principles are thus not static but are transformative in any era and societies. In doing so, the practice of ijtihad need to be continued in staying true to the two fundamental sources of Islamic law, the Quran and Sunnah. Nevertheless, to what extent can ijtihad be performed and who can exercise it is an important question that needs to be critically addressed. In our effort of reconstructing the principles of governance in Islam, there is a need to have a clear guideline in ensuring that we are staying through to the eternal principles of the Quran and Sunnah. Unlike a number of Western-oriented commentators who have called for fundamental reformation of Islam itself, this paper argues that the reconstruction of principles of governance in Islam in modern times must be based on Usul al-Fiqh and the teachings of Islam on human rights. The importance of Usul al-Fiqh as the framework for the formulation of Islamic law must 10

 not be neglected, instead it must be used as the guiding framework for any effort of reconstruction in the light of the modern era. First of foremost it is important for us to critically understand the concept of Usul al-Fiqh and its evolutionary since it was originally formulated by As-Shafiie. In its literal form, Usul al-Fiqh means the roots of Islamic law. It expounds the indications and methods by which the rules of Fiqh are deduced from their sources. According to Hashim Kamali (2002), Usul al- Fiqh is the science of the sources of Shariah which is developed with the purpose of providing a set of guidelines by which to regulate ijtihad (p. 2) Usul al-Fiqh thus provides standard criteria for the correct deduction of the rules of Fiqh from the sources. It is the principles of Islamic Jurisprudence, methodology or deriving Laws from the source of Islam and of establishing their juristic and constitutional validity. In this sense, Fiqh is the end product of Usul al-Fiqh. Based on this conception, Usul al-Fiqh is hence important and needed for the reconstruction of principles of governance in Islam. Primarily because, ideally Usul al-Fiqh will lay the framework for todays Islamic scholars to critically understand and identify the sources of Islamic law and their conditions. It is an important discipline that delineates methodological use of sources of Islamic law, like Qiyas (analogical reasoning), Masalahah Mursalah (unregulated public interest), Istihsan (juristic preference) and Sadd al-DarI (preventive measures) (Sayed Iskandar Shah, 2009, p. 52) Moreover, through deep understanding of Usul al-Fiqh, scholars will be able to distinguish between the Thawabit (fixed and unalterable rules of Islamic law) and Mutaghoyirat (alterable and not fixed rules of Islamic law), understand the Maqasid al-Shariah (objectives of Islamic law) and the general characteristic of Islamic law. It also provides a set of guidelines of ijtihad with the purpose mainly to 11

 encourage ijtihad in law and governance Muslim societies. (Kamali 2002, p.1) This will thus serves as the guiding framework for any serious attempts to reconstruct the Islamic principles of governance, across time and space. Nevertheless, scholars are divided whether Usul al-Fiqh is a fossilized discipline and a fixed framework or can Usul al-Fiqh be reconstructed and renewed (tajdid) in the light of todays modern era. Before elaborating further on the status of Usul al-Fiqh, it is paramount for us to perilously understand the term Fiqh, which was discussed above as the end product of Usul al-Fiqh. According to Wahbah Zuhaily, Fiqh was not developed as a technical term during the time of the Prophet. This is because during the time of the Prophet, there werent any separations between the disciplines of knowledge in Islam like we are seeing today, where Fiqh & Shariah (Islamic Jurisprudence), Usuluddin (Islamic Theology) and other disciplines of Islamic knowledge are distinguished in several faculties of Islamic Universities. This is due to the fact that the Prophet was the focal point for all the religious guidance and knowledge, and the Companions were directly trained by the Prophet in many areas of religious understanding. Fiqh in its literal form means, to understand and comprehend. However it became popularly understood to mean, a deep understanding of religious knowledge. This is based on a hadith recorded by Bukhari of which the Prophet had prayed for Ibn Abbas where he recited, Allahumma faqqihu fi al-din wa allimu al-tawila (O God, grant him deep understanding on matter of religion and bestow him with the ability to comprehend revelation). Gradually, argues Wahbah Zuhaily, Fiqh started to become a technical term after the demise of the Prophet and gained prominence during the era of the mujtahids. Al-Shafiie defined Fiqh as the knowledge (al-ilm) of the legal rules (ahkam as-shariah), pertaining to conduct (alamaliyyah al-muktasibah), that have been derived from their specific evidences

12

 (adillat at-tausiliyah). In a similar tune, Al-Kasani defined Fiqh as the sciences (al-ilm) of permissible and prohibited, and sciences of jurisprudence (syarai) and legal rulings (ahkam). On the other hand, Abu Hanifah, who is often known to be the founder of Fiqh, defined it in a more precise manner. According to him, Fiqh is the inner understanding (marifah) of the essence of an element, what it is for and what it is against. (Wahbah Zuhaily, p.19) It is the understanding of the details of a particular ruling including critical understanding of the reasons of why the law is as such. It is the ability, which scholars will have to acquire after they have they have master the wide-ranging methodology (qawaid). In short, Fiqh is the end product of this comprehensive study. Sikandar Shah explained in a much details the definition of Fiqh, which is by now had evolved into a more technical concept, specializing to the subject of Islamic law, and its legal system. He explained that Fiqh as a science devoted to the exposition of deduced practical legal rules construed from the Shariah evidence, however does not partake matters of aqidah. He also added, Fiqh is a body of human knowledge developed by human intellectual activities (ijtihad). Human reasoning to understand and interpret divine guidance (embodied in the Quran and Sunnah) in new and changed situations and to apply it to actual situations in life has yielded to this body of knowledge, called fiqh. Clearly from this understanding, Fiqh is indeed a human construct. It refers to human endeavor to understand and interpret Gods laws as embodied in the Shariah. Therefore, according to Sikandar Shah, it is important to distinguish between Shariah and Fiqh. While Shariah is considered as timeless and thus immutable (thawabit), Fiqh in its actual sense is indeed mutable (mutaghoyirat). He argued that, Shariah designating revealed texts of the Quran and

13

 authentic Sunnah associated with them is immutable but not their human understanding (fiqh), which is mutable. (Shah 2009, p.54) Since Fiqh is mutable and hence subject to renewal (tajdid), Usul al-Fiqh is thus can also regarded as a mutable jurisprudence. Similar to Fiqh, Usul al-Fiqh was not developed during the time of the Prophet and the rightly-Guided caliphs. This was primarily because there wasnt any pressing need for such methodology to be developed during those periods. It was Al-Shafiie who is popularly attributed as the father of Usul al-Fiqh as historically speaking it was he who developed this as a formal discipline and systemized its methodology for the formulation of Islamic law. Hence, both Fiqh and Usul al-Fiqh are thus part of human constructions in their attempts to understand the Shariah. This led some scholars like Tariq Ramadan and Hashim Kamali to open the doors for the prospect of reform (islah) and renewal (tajdid) of Usul al-Fiqh. In his argument, Hashim Kamali raised a serious question if Usul al-Fiqh as a methodology of legal reasoning has lost its capacity to stimulate originality in legal thought. In his assessment, he concluded that in its present state, Usul al-Fiqh has actually failed in initiating ijtihad. The gates of critical reasoning or ijthad were in fact declared closed by some scholars, followed by excessive uncritical following or taqlid of the main schools of Fiqh. The importance of ijtihad however cannot be denied in the formulation of Islamic law. After all, it is through this process, scholars like Abu Hanifah, Malik bin Annas, Muhammad bin Idris AlShafiie and Ahmad Ibn Hanbal were able to formulate their influential schools of Fiqh (madhahib). Through their rich intellectual heritage, their respective madhab serves as the guiding frameworks that are continuously being appreciated by many Muslims today. Nevertheless, decadence of the ummah started when the legacies of these great scholars were forgotten by many after their epochs. Subsequently this

14

 resulted into Usul al-Fiqh losing its role and purpose in the development of juristic thought and began to be studied as a theoretical discipline for its own sake. (p. 11) Instead of Usul al-Fiqh as a methodology being expanded and developed further from the periods it was formulated, scholars of today tend to work within the constructed framework by the classical mujtahids. Sikandar Shah opined that there is a need for the rejuvenation of the Islamic legal system to avoid contradiction between the ideals as Muslims and modernity and to steer clear of confusion in the face of revolutionary changes of our time. He suggesting that Muslims today need a paradigm shift from restricting Fiqh as a dead body and transform it into a corpus of discipline that deals with providing new answers for issues arising in our modern era. Accordingly, he argues that renewal of both Fiqh and Usul al-Fiqh is permissible based on a hadith that the Prophet had envisioned that, God will send this (Muslim) community, every hundred years, (someone/some people) who will renew (yujaddidu) their religion. (Sunan Abu Daud Vo. 4, p.109) He further argues, Muslim scholars have to rethink beyond the traditional way if they are serious of constructing a modern system of laws for contemporary Muslims. (p. 51). The numerous suggestions and prospect for reforms initiated by several scholars signify the need and the importance for the islah and tajdid of both Usul alFiqh and Fiqh. In the domain of human-to-human relationship, there is a need for the rethinking of the established methodology through which Islamic laws are being formulated. Issues of governance are therefore falls within this domain of human-tohuman relationship and clearly it requires for a developmental methodology of the Usul al-Fiqh. This is because, the methodology developed by Al-Shafiie and other scholars of the past were in the context of their socio-economic-political milieu. In 15

 todays modern epoch, we need to relook at our contemporary context and critically analyze the developments in many areas of disciplines. This is to help us to develop our own methodology of Usul al-Fiqh so as to formulates legal rules pertaining to human conduct that is line with Divine guidance, yet still in touch with modern society. However, there is a need to be cautious and careful in our attempts in enabling the reconstruction of Islamic principles of governance through the renewal (tajdid) and reforming (islah) both Fiqh and its Usul. In todays modern era, there have been some attempts to reconstruct Islam a whole, including the reconstruction of the Quran by questioning its authority as the word of God. While aspects of liberty and rationalism are part of the important aspects in the formulation of Islamic law, there are those who insist on excessive rationality and liberalism in the understanding and practicing of Islam. In general, they reject the traditional interpretation of Islam and expect a full adaptation to the Western way of life and opposed to any display of distinctive clothing that might be synonymous with seclusion or even fundamentalism (Ramadan, 2004). They champion secularization of Islam and essentially prefer to confine Islam to the spiritual domain. Hence for this group, they generally reject any distinctions between Islamic principles of governance and the secular system of governance, as for them the latter prevail and must be regarded as a universal system, although it is generally based on Western influence and construct. Definitely, this is not the kind of reconstruction that we should aspire, instead must be avoided. What is important are thus sincere attempts of renewal (tajdid) and reform (islah) in both Fiqh and its Usul that must be done with the objective of staying true to the Divine guidance of both the Quran and Sunnah. Although the established methodology of Usul al-Fiqh does not have the capacity to accommodate 16

 to the realities of todays context, it should not be discarded totally. Instead, Hashim Kamali proposed that its basic tools and methods, especially in reference to ijtihad and ijma, and nearly all of the sub-varieties of ijtihad should be retained. What need to be discarded according to him is formalism and unwarranted preoccupation with the technicalities of the conventional legal theory. Tariq Ramadan argued at length for the need to be careful in exercising renewal and reforms of Fiqh and its Usul. It is important to study the

methodological prerequisites, its conditions, and its possible limits in reflecting the legitimacy of the notion of reform, so as to ensure it conform and preserve the meaning offered by the Divine, to follow the Way (Shariah) (p.26) He warned that the task of reconstructing Islamic law and Islamic thought for modern times should not be democratized in the sense that every Muslims has the right to exercise their own ijtihad. (Ramadan 2009, p.23) This, according to him takes on a dangerous downward leveling that disqualifies the basic conditions associated with the legal understanding of a text and the elaboration of its possible interpretations. (p.23) Essentially, scholars who are qualified in exercising the task of both renewal and reform must be well trained in classical Islamic traditions and master the comprehensives understanding of Islamic thought as a whole. This includes the ability to comprehend the sciences and commentaries of Al-Quran (Ulum al-Quran and Tafsir), classifications of Prophetics traditions (Ulum al-Hadith), Prophets history (Sirah) and other disciplines of Islamic sciences. Nevertheless, the type of reform, which Tariq Ramadan proposed, is what he termed as transformative reform beyond a mere adaptive reform which are generally practiced today. Although adaptive reform serves certain purposes in providing legal guidance for contemporary Muslims to stay faithful to the message of Islam, however it falls short

17

 of providing proactive and over-arching critical responses to contemporary challenges as a whole. An example quoted by Tariq Ramadan is in the area of the economic output. He argues that Muslim scholars tend to take stock of the nature of the capitalistic order, then one adapts to it by creating banking or financial techniques that protect Muslim firms of individuals and by making some transactions more Islamic. According to him, this falls short of critically question the methodologies, objectives, and the consequences of the system. The unintended consequences of this approach suggest that the Islamic economic system is dominated by the larger system of Western capitalist system. Transformative reform on the other hand will ideally equips scholars with the different means to master all fields of knowledge, and to anticipate the complexity of the challenges faced by the contemporary society. In realizing this, the fundamental condition of acquiring deep knowledge of the context and fully mastering all areas of knowledge including the human and exact sciences must be fulfilled. However it is not easy for scholars to master all areas of knowledge, given the complexities and professional training needed in many disciplines. For instance, religious scholars are not expected to master all the knowledge of the exact sciences like the medical sciences. Hence, Fiqh councils regularly consult medical experts before they issue fatwas on anything to do with medical practice such as organ donation, abortion and stem cell research. This is due to the fact that the Islamic legal scholars that sit on such councils worldwide realize that they do not have the technical medical knowledge to be able properly decide what is the best ruling on any such issues despite their in depth knowledge of Islamic ethics, principles and historical approaches to the law. This proactive effort however is not being extended to other fields, such ecology, economics and issues related to domain of social and human science, which is clearly beyond the specialization fields of the Fiqh scholars.

18

 Therefore, Tariq Ramadan proposed for a new center of gravity of authority in the Islamic universe of reference. He emphasizes that Text scholars (ulam annuss) understandably to be scholars of Islamic sciences to sit down with Context scholars (ulam al-wqi), which is made up of social scientists, medical practitioners and experts of various fields pertaining to issues of human conduct. He also proposed for creating a room for the authority of scholars of the social sciences in dealing with issues of human conduct. At the same time, had added that there is a new geography of the sources of law in Usul al-Fiqh to include among others the context (al-waqi). This is of course does not partakes that all parts of the Islamic legal system need to go through this arduous process. After all, the fixed legal rulings involving matters of Creed (aqidah) and Worship (ibadat) must be exempted from this approach. This also includes legal rulings under the category of Thawabit (immutable) and Quranic injunctions that are regarded as Qati (clear-cut, explicit and definite), which leaves no scope for speculation as to its interpretation. What is emphasized here hence is reconstruction of Islamic legal rulings (ahkam) in the matter of muamalat (human relations and conducts). Ideally this proposal will transform Fiqh and Usul al-Fiqh into a dynamic bodies and methodology that continue to be relevance in modern times and serves as the actualization of the timeless Shariah The area of governance certainly falls within the category of muamalat as it deals with the sciences of human interactions and conducts. It is part of the disciplines of political science. Therefore, in the attempts of reconstructing principles of governance in Islam for modern times, both the Ulama Waqi and Ulama Nusus are needed. While Ulama Nusus have a comprehensive understanding and trained in the fields of Islamic sciences, especially in the classical tradition of Fiqh, Ulama Nusus 19

 who I would refer here to political and social scientists will compliment the formers expertise with deep knowledge of social and human sciences which is relevance in the understanding of governance and societies in modern times. It is also imperative for scholars to put into considerations knowledge of international relations, public policy, comparative politics and political theories in formulating legal rulings pertaining to Islamic governance for modern societies. The model of the classical Islamic states during the era of the Prophet and his four rightly guided Caliphs had clearly demonstrated the principles of governance in Islam. This thus serves as a model to be emulated for modern times, however it is not absolute imitation of the classical model that should be emulated for contemporary societies. Instead, the higher goals of the Shariah that should be considered as it can take in different forms and system of governance across times and space, however its values and goals are maintained. Hashim Kamali argued that indeed Maqasid alShari`ah or the goals and objectives of Islamic law, is an evidently important but yet a neglected theme of the Shariah. The theory of maqasid is popularly attributed to Abu Ishaq al-Shatibi, in which had come out with five ethical objectives the Shariah. This includes preservation of preservation religion, life, lineage, intellect and property. In the light of modern times, Tariq Ramadan had suggested for a reconsideration of the higher spiritual and ethical objectives (al-maqsid) of Islam. This suggestion may sounds radical to some, however if serious thought is given, it is indeed timely for such an approach to be adopted for the formulation and reconstruction of Islamic law for the contemporary society. In fact, medieval Islamic theologian and jurist, Taqi alDin Ibn Taymiyyah is believed to be the first scholar to have suggested that the notion of maqasid should not be confined to a specific number or type. He had revised the scope of maqasid and consequently opens the doors for further developments for the

20

 evolution of the maqasid in the light of the modern times. Hashim Kamali subsequently proposed for the prospect of the inclusion of prominence values in modern times, such as fundamental rights and liberties, the welfare state, and scientific research. (p. 16) Like Tariq Ramadan, he also emphasizes on goal-oriented approach in revitalizing the Usul al-Fiqh and our understanding of the Shariah. He analyzed that after all the Quran pays greater attention to values and objectives, such as justice and benefit, mercy and compassion, upright character and taqwa, promotion of good and prevention of evil, affection and love within the family, charity, camaraderie and other redeeming values. (p. 12) In todays modern times, different forms of governance may be adopted by Muslims which may not necessarily be the exact replica of the prototype of Islamic state in its classical sense. The approach of emphasizing on goal-oriented and reconsiderations of the higher ethical values of the Shariah as suggested by Hashim Kamali and Tariq Ramadan may eventually herald the attempt to reconstruct principles of governance in Islam in the modern times. By exercising both islah and tajdid of Usul al-Fiqh, it will thus be able to serve as a primary basis for the reconstruction of principles of governance in Islam. It is therefore important for Usul al-Fiqh to be continuously relevance and that it remained to be developed in the light of the modern times. This will then eventually act as a bulwark against any attempts to reconstruct principles of governance in Islam by using foreign elements and frameworks, especially by relying fully on Western and other traditions modus operandi of reforms, like that of the hermeneutical approach of Christians and Judaism reformists.

21

 CONCLUSION Throughout this paper, I have elucidated on the ways in which attempts to reconstruct the principles of governance in Islam can be explored. I have highlighted the importance of Usul al-Fiqh and Islamic teaching on human rights to be the primary basis for this attempt. Few themes have been developed throughout my argument. Foremost is to recognize the importance of Usul al-Fiqh as a significant framework for any effort to reconstruct the principles of governance in Islam. Arguments by scholars of Islamic law, from classical to contemporary on the status of Fiqh and its Usul, which showed to us that essentially both Fiqh and its Usul are human constructs. It is mens efforts to understand and interpret the timeless Shariah. This understanding then will open the door for the possibility of islah and tajdid of Fiqh and its Usul by making it more comprehensives and more inclusive by including both scholars of text and scholars of context This is of course must be done with cautious, so as not to go against the eternal principles and message of the Quran and Sunna. In doing so, Usul al-Fiqh can evolved into a more dynamic methodology, which take into considerations of todays modern times and uphold the practices of ijtihad. The arguments presented here are not excessive, as there are still many other issues that can be explored in discussing the issue of principles of governance in Islam and attempts for its reconstructions in the light of modern times. The point is however to emphasize that Usul al-Fiqh and the teaching of Islam on human rights ultimately must be used as a primacy basis for any attempts to reconstruct the principles of governance in Islam. Only then can be a real and sincere reconstruction being realized. This is important so as not to rely on fully on the Western elements of reform that may not nec essarily be in line with the message and principles of the Quran and Sunna.

22

 REFERENCES Abd al-Rahim, Muddathir, Human Rights in the Islamic Tradition. Westport and London: Praeger, 2005. Al-Attas, Syed Muhammad Naquib. Prolegomena to the Metaphysics of Islam. Kuala Lumpur: ISTAC, 1995. Al-Qaradawi, Yusof. Kedudukan Non-Muslim Dalam Negara Islam. Translated by Mat Saat Abd. Rahman. Kuala Lumpur : Jabatan Perdana Menteri, 1985. Asad, Muhammad. The Principles of State and Government in Islam. Kuala Lumpur: Islamic Book Trust, 1999. Eissa, Garoot Sulaiman. "Reformulation of Islamic Fiqh, Islamic State and Islamic Revivalism: Views of Hasan al-Turabi." In Contemporary Islamic Political Thought, edited by Zeenath Kausar, 311-334. Kuala Lumpur: International Islamic University Malaysia Research Centre, 2005. Inglehart, Ronald, and Pippa Norris. "The True Clash of Civilizations." Foreign Policy, 2003: 62-70. Kamali, Mohammad Hashim. Issues in The Legal Theory of Usul and Prospect for Reform. Kuala Lumpur: International Islamic University Malaysia, 2002. Kausar, Zeenath. "Mawdudi's Philosophy of an Islamic State, Government and Citizenship: An Exploration and a Critical Appreciation." In Contemporary Islamic Political Thoughy: A Study of Eleven Islamic Thinkers, edited by Zeenath Kausar, 113-153. Kuala Lumpur: International Islamic University Malaysia Research Centre, 2005. Mawdudi, Abul Ala. Human Rights in Islam. London: Publisher Islamic Foundation, 1983 Ramadan, Tariq. The Messenger: The Meanings of the Life of Muhammad. London: Allen Lane: 2007. ____________. Radical Reform: Islamic Ethics and Liberation. New York: Oxford University Press, 2009.

23

 Shah, Sayed Sikandar. Rethinking Islamic Law: Conceptual Premises and Strategic Framework, in Shariah Law Reports 4, 2009. Weeramantry, C.G. Islam and Human Rights. In Human Rights in Islamic Law, edited by Tahid Mahmood. New Delhi: Institute of Objective Study, 1993. Zuhaily, Wahbah. Usul al-Fiqh al-Islamiy. Vol. I. Damascus: Dar al-Fikr. 1998.

24