Imran Khan (scholar)

Biography

Nyazee was born on 25 October 1945 to a conservative Mianwali family. His parents were from the Nyazee tribe and of Pathan descent. His father, Abdul Karim Nyazee was a lecturer at Government College Lahore and later joined the civil service. Following partition, he resigned his teaching position to practice taxation law. He was an acquaintance of Abdullah Yusuf Ali. Nyazee's mother, Farukh Sultan Nyazee, a religious person and also a teacher. Nyazee has a daughter and two sons. His eldest son is a politician. In his retirement, Nyazee writes and takes up occasional teaching assignments. He lives in Islamabad.

Education

Nyazee was educated at the Presentation Convent, Rawalpindi; Saint Mary's Cambridge School, and Cadet College Hasan Abdal. His tertiary education began at the American missionary run Gordon College. One of his contemporaries was Khalilur Rahman Ramday, a supreme court judge. Nyazee received a bachelor's degree in physics and mathematics from Punjab University. He then enrolled at the Punjab University Law College, Lahore where he graduated in 1969.

Legal career

Nyazee joined the chambers of Mawlvi Sirajul Haqq, Rawalpindi. In 1972, he was employed at the Investment Corporation of Pakistan and then the Dawood Group.

Academic career

Nyazee's academic career was inspired by the work of Sir Abdur Rahim. Nyazee enrolled in the LLM program in Islamic law offered by the Faculty of Shariah and Law at International Islamic University, Islamabad. His teacher was Hussein Hamid Hassan, an expert in fatwas for Islamic finance. He graduated from the program a university gold medallist and was offered an assistant professorship at the International Islamic University, Islamabad. He was later a research fellow at the University of Michigan Law School and Harvard University. In 2005, Nyazee retired from academe.

Theories

Some Western scholars suppose that Al-Shāfi'ī was the founder of Islamic legal theory and prior to his work, the Shafi'i theory, called uṣūl al-fikh or the 'common classical theory', Islamic law was based on personal opinion, that is, ra'y and Umayyad practice. Nyazee argues that the Shafi'i, championed by Al-Juwaynī, was accepted by Sunni schools of Islamic law but did not, however, determine their fiqh (positive doctrine or teachings). Rather, the fiqh dates to 132 Hijrah A.H., at least 50 years prior to the Shafi'i. Nyazee argues firstly, that due to its unique set of principles of interpretation, each school of Islamic law represents a theory of law unto itself. Secondly, he points out that Istiḥsān cannot be understood without understanding of the workings of qiyās. It is, therefore, difficult to accept that there was no system of interpretation before al-Shāfi‘ī’s time. Thirdly, he concludes that the uṣūl al-fiqh never existed. Furthermore, Nyazee describes beyond the individual fikh of each school of law, another theory of interpretation called maqāṣid al-sharī‘ah (theory for the purpose of the sharī‘ah) which was developed by al-Ghazālī.

Cooperating spheres

The fiqh was based on a rigid analogical, method which required casuistry to bridge the divide between theory and practice. With this difficulty, the state resorted to secular legislation. In considering this divide between theory and practice, Nyazee reasoned that the theories of the schools were designed to stay close to the meaning of the texts of the Qur'an and the Sunnah, a religious imperative. The mission of the jurists, especially those inclined to literal interpretation of their texts, was to develop a theory of law which would remain unchanged over the long term. The fiqh of 132 A.H. was seen as this theory. It was accepted that the state would manage any practicalities the fiqh did not address while respecting the corps of the fiqh. Nyazee describes this arrangement as a 'doctrine of cooperating spheres': a fixed sphere that would never change, and a flexible sphere that would change with time and circumstances.

Takhrij

Ijtihād is the interpretation of Islamic law in legal matters. It is a complex process and an anathema to the absolute jurist. The jurists of the schools of Islamic law were classified into different grades of ability and experience in using Ijtihad. Some would consider unresolved issues. Others, the aṣḥāb al-takhrīj would consider precedents. Nyazee argued that young jurists should aspire to use takhrij and masaqid, the theory of the purpose of law. This way, the reasonable, the cooperative and the pragmatic would be uppermost.

Banking and business

Nyazee has written and self-published on a number of aspects of Islamic law. Nyazee agrees with most Muslim scholars that strictly speaking, selling money (taking interest) is prohibited, according to Islamic law. Some point out a difference between the treatment of riba in the Qur'an versus the Sunnah but Nyazee the two approaches are actually one in the same. Nyazee also proposes that all loans (except those of a charitable nature without a fixed period of repayment) and therefore all banking is prohibited and unIslamic. Nyazee is equally intolerant of murabaha, the Islamic system of business where in-put costs and mark-ups are made transparent between vendor and buyer. He argues riba will inevitably enter such transactions. He extends the prohibition to the creation of wealth on the basis of debt and the fractional reserve banking system. These elements along with zakat (the system of alms-giving) he says, are the differences between Islam and capitalism. He advocates the use of the gold and silver dinars and dirhams as the currency of the Muslim community. Nyazee would also prohibit the corporation or 'legal personality' under Islamic law.

Rights

Nyazee conceives rights in three elements: those belonging to Allah and bestowed on all people (haqq); those related to the state, imam or a community of individuals (ḥuqūq al-‘ibād); and those of the individual (ḥaqq al-‘abd). He associates human rights and hudud with the rights of Allah and states those rights are integral to an Islamic community. Nyazee considers the areas of criminal law, ḥudūd, ta‘zīr and siyāsah in a similar fashion. The procedures used in conviction and sentencing relate to the three elements of rights.

Law schools

Nyazee emphasises that schools of Islamic law are not sects. They are bodies that teach one unified system of law as recorded in their mutūn or mukhtaṣars. They must have uṣūl al-fiqh, a theory of law; an hierarchy of jurists and authorities; an hierarchy of masā’il (precedents); and, sharḥ, mutūn and fatāwā, a system of texts. Nyazee raises concerns that these princliples are being lost in schools of Islamic law.