It is probably fair to say that, outside specifically worship-related issues, civil matters constitute perhaps the majority of Islamic jurisprudence; things like business dealings, marriage, inheritance, and so forth. But the question is, to what extent are these types of rulings enforceable by the state? To what extent should they be? This is a crucial question that must be answered by the Islamist movement.
Generally speaking, the Qur’an does not provide for enforcement in such matters, while we can find examples in the Sunnah where disputes were brought before the Prophet and he explained the way they should be dealt with. But do those case-specific decisions constitute precedents that have permanent applicability?
Also, it is worth noting that the Qur’an says that disputes should be brought to the Prophet for resolution if the parties involved cannot come to a resolution on their own.
“O you who believe, obey Allah, the Messenger, and those in command among you. If you disagree about something, refer it back to Allah and the Messenger, if you believe in Allah and the Last Day. That is the best thing to do and gives the best result.” (Surat an-Nisa`: 59)
There is no prohibition against resolving matters through mutual negotiation without taking the matter to the Prophet. These would be, essentially, man-made solutions, guided by Islamic beliefs, but without reference to any religious authority for enforcement. In fact, it can be plausibly argued that this is the preferred approach; to refer matters to an Islamic authority only when the dispute cannot be otherwise resolved.
I do not deny that we have 14 centuries of legal scholarship, and that this is of enormous value. However, it is important to keep in mind that none of this is binding. It is not revelation; it is not, technically speaking, “Shari’ah”.
All of Fiqh is man-made; it may be right and it may be wrong; and its correctness or incorrectness is always going to be largely determined by time and circumstance. That does not mean that we dismiss past scholarly opinion, it just means that we understand it within its context.
Islam does not provide a totalistic comprehensive system; it provides a handful of laws and a multitude of guiding principles which can be interpreted and implemented in any number of ways. So, to what extent do these interpretations have a right to be enforced by the state?
Even the ayaat that talk about referring disputes to the Prophet and accepting his decision, do not mention any penalty in the Dunya for whoever does not accept. So if even these decisions were not enforceable by the state under the Prophet’s leadership, what about states today? Is it the state’s responsibility to ensure that people do not make decisions that put them at risk of punishment in the Akhirah?