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Islamic Law and Modernity:

Abdullahi an-Na‘im’s Proposal for Reform

By

Courtney Paige Erwin

Institute of Islamic Studies McGill University Montreal Canada

July, 2001

A Thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment ofthe requirements of the degree of Master of Arts

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1Courtney Erwin 2001

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Abstract

u

Author

Couitney Paige Erwin

Title:

Islamic Law and Modernity:Abdullahi an-Na‘im’s Proposal for Reform

Department:

Institute of Islamic Studies, McGill University

Degree:

Master of Arts

This thesis examines the state of Islamic law in the modem context as perceived by

the Muslim scholar Abdullahi an-Na‘im, assessing its suitability for contemporary society,

with particular emphasis upon its relationship to international human rights standards. The

first part of this work reviews the impact of the nation-state upon the current international

structure and then considers Islamic law as it was classically conceived and developed. The

focus of this discussion addresses the importance o f clear and definite texts in the Qur’an

and the roles of ijtibad and naskb in usulal-ffqb, exploring the dimensions of flexibility and

change allowed in this system.

The second part

involves an investigation o f the

development of international human rights standards and provides an appraisal o f their

authority and validity by which the SharTa is today judged. The areas in the Shari4a that are

seen to conflict with these modem standards, specifically the status of women and non-

Muslims, and criminal punishment, are examined. Finally, the methodology for the reform

of Islamic law proposed by an-Na‘im is then evaluated, with due consideration given to the

importance o f hermeneutics and historical context.

The value given to the difference

between the Meccan and Medinan verses for the construction of a new understanding o f the

Qur’an within the framework of legal methodology is presented, as are the methodological

tools that an-Na‘im employs for modem legal reform.

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111

+

Resume

Auteur:

Courtney Paige Erwin

Titre:

Modernisation et Droit Islamique: Le Propos de Abdullahi an-Na‘im pour une Reforme

Faculte :

L'Institut des Etudes Islamiques, University McGill

Grade :

Maitrise es Arts

Cette these examine l’etat du droit Islamique dans un contexte modeme, evaluant si ce

droit estconvenable pour notre societe contemporaine, avec une attention particuliere donnee

a sa relation avec les normes intemationales du droit de l’homme. La premiere partie de cette

these revoit l’impact des nations etat sur la structure intemationale actuelle et ensuite

considere le droit Islamique comme il l’a ete originalement con^u et develope.

Le point

principal de cette discussion adresse 1’importance de textes precis et bien definit dans le

Qur’an et les roles de ytibidetnaskh dans usuIal-Gqb, explorant les possibilites de flexibility

et les changements permis dans ce systeme.

Une examination de la formation des normes

international du droit de 1'homme permet une evaluation de son authority et sa validite, par

lequel le Shan‘a est juge aujourd’hui. Les sections dans le Shan‘a qui semble etre en conflit

avec les normes modemes, plus specifiquement le statut des femmes et des non-musulmans,

et la peine criminelle, sont examines.

La methodologie pour la reforme du droit Islamique

propose par Abdullahi an-Na‘im est done evaluee, prenant en consideration 1’importance de

la science de 1’interpretation et du contexte historique. L’importance donne aux differences

des versets de Mecca et Medina pour la construction d’une nouvelle comprehension du

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Qur’an dans l’encadrement de la methodologie legale est presente, ainsi que les outils

methodologiques qu’utilise an-Na‘im pour la reforme legale modeme.

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Acknowledgements

My passion for the study of Islam has culminated in this thesis. This passion was first

realized under the guidance and direction of Professor Maysam al-Faruqi of Georgetown

University.

Her introduction to Islam and the ensuing impact has been an enduring and

beloved presence in my life.

gratitude.

It is to her that I offer this work, accompanied by a debt of

I have experienced the rare opportunity of working with a scholar whose mark of

academic integrity and intellectual ardour will be imprinted upon my existence forever. My

academic advisor and thesis supervisor, Professor Wael B. Hallaq, has extended his support

and encouragement, and has relinquished endless hours of his precious time to field my

questions.

I am profoundly honoured to have been a student of a man of such perspicacity,

inspiration, and genuine warmth and understanding. I doubt I shall meet another like him.

I wish to proffer my thanks to Professor A Uner Turgay, Director of the Institute of

Islamic Studies, for his caring supervision, to Dawn Richard and Ann Yaxley for their love

and concern, and to my fellow colleagues in the Institute. They have provided endless hours

of intellectual stimulation in the front of the library, as well as much needed entertainment

and friendship.

I must also recognize my intricate network of friends that spans the globe,

always supportive and excited by my colourful interests. I am so lucky to have them all.

My parents have sustained my studies, even when not entirely convinced of my

pursuit

Their understanding of my nature and appreciation of my endeavour must be

acknowledged. I will never be able to repay them for all that they have given me. I can only

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offer my humble “thank you.” And finally, my sister, Kelsey.

her laughter and beauty. I thank her for everything.

I cannot imagine life without

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V]

it

-3

ii

Transliteration

Characters:

 

a j

 

l_J

=

b O"

=

«_J —

c

*

i =

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c =

kh

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J =

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Short vows Is:

 

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long vowels

Dipthongs

Article

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w

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q

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m

n

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h

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1

Vll

viii

A Note on the Transliteration

In writing this thesis, I have utilized the system of transliteration presented on the

previous page. The same cannot be guaranteed for the statements that I directly quote. My

presentation of proper names may also differ from the standard transliteration, for I have

preserved the recognized English

spelling.

For example, rather than write Mahmud

Muhammad Taha, I use the accepted form of Mahmoud Mohamed Taha.

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IX

Table of Contents

Abstract

ii

Resume

iii-iv

Acknowledgements

 

v-vi

Notes

vii-viii

Table of Contents

 

ix-x

Introduction

 

1

Chapter 1: The Modern International Structure, Human Rights Laws, and the Classical Understanding o f the SharTa

7

 

A.

The Modem International Structure and Human Rights

7

 

1. The Nation-State

9

2. Human Rights Laws

12

 

B.

The Classical Shan‘a

22

 

1.

The Shari‘a versus Fiqh

22

2.

Ijtihad and Naskh

28

Chapter 2:

Areas

of Contention

37

A. Women

39

B. Non-Muslims

57

C. Criminal Justice

71

Chapter 3: The Reform Methodology

88

 

A. Meccan and Medinan Verses

89

B. Hermeneutics and Historical Context

95

C. An-Na‘im’s Use of N tskh and Jjtihid

106

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x

Conclusion

116

Bibliography

121

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1

Introduction

Islamic law is woven into the fabric o f Islamic civilization and into the religion itself

It is both the instrument of orchestration and the reflection of Muslim society, assuming a

stature of such eminence that Joseph Schacht insists, “Islamic law is the epitome o f Islamic

thought, the most typical manifestation o f the Islamic way of life, the core and kernel of

Islam itself”1 The symbiosis between religion and law was established at the birth of Islam,

wherein Muhammad himself envisaged the law as inseparable fiom divine revelation.2 The

religion provided the system of belief and the law, necessarily presupposing this belief

conducted and regulated every movement ofthe believers. However, this intrinsic unity that

has been a persistent and pervasive presence for the entirety of Islam has suffered an

imposed disassociation wrought by European colonialism. A rupture in the traditional legal

system and its legal identity has bred a crisis.

If Islam and its law are inseparable, and yet

the classical formulation of the law, both the methodology and positive laws, has been

dismantled through an imperialist effort, can Muslims revive the Shari‘a in modem society?

This dilemma surpasses the tangible resuscitation of a legal system, but challenges

the ability of Islamic law to accommodate structural alterations in Muslim societies that

have effected, in many cases, an evolution o f values and standards.

The very philosophy

informing the Islamic legal system must be examined and assessed to determine its

capability and capacity to sustain the forces of modernity. Modernity arrived in the Muslim

1Joseph Schacht, Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 1. 2 S.D. Goilein, “The Birth-Hour ofMuslim Law," Muslim World 50,1 (1960): 29. This article contends that “he idea of the Shari'a was not the result of post-Qur’anic developments, but was formulated by Muhammad himself," refuting the claim held by Schacht that law fell outside of the sphere of religion until a century after the prophecy of Muhammad, at which time Muslim jurisprudence began. For this latter argument, see Joseph Schacht, The Origins o fMuhammadan Jurisprudence (Oxford: Clarendon Press, 1950).

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2

world through a confrontation with Western powers whose political, economic and military

supremacy dictated the course of modernization, influencing an intellectual and societal

reorientation among Muslims.3

While Islam has felt and continues to feel the impact o f modernity in every facet of

life

-

the advancements, devastating consequences, and perhaps most distinctly, the

unabashed and exhausting pace - the area of law provides a complex and problematical

predicament, abandoning Muslims to a state of uncertainty as to how Islam is to be

interpreted for modem life.

This critical task is manifest in the endeavors of Muslims to

appraise their legal heritage and formulate a system of Islamic law for contemporary society.

The eminent scholar Fazlur Rahman succinctly analyzes the situation confronting the

Muslim community:

When new forces o f massive magnitude - socio-economic, cultural-moral or political - occur in or to a society, the fate of that society naturally depends on how far it is able to meet the new challenges creatively. If it can avoid the two extremes of panicking and recoiling upon itselfand seeking delusive shelters in the past on the one hand, and sacrificing or compromising its very ideals on the other, and can react to the new forces with self-confidence by necessary assimilation, absorption, rejection and other forms o f positive creativity, it will develop a new dimension for its inner aspirations, a new meaning and scope for its ideals.4

The measure o f success ofthe Muslim response to modernity and the prospects for progress

largely reside in the ability to produce a cohesive and efficacious legal identity. However,

the recent history of this activity, replete with dissatisfaction and mostly unconvincing

attempts at reforming Islamic law, indicate the gravity and difficulty of this exercise.5

3 Fazlur Rahman, “The Impact of Modernity on Islam,” Islamic Studies 5 (1966): 114. 4 Fs2lur Rshmtn, Islamic Methodology in History (Karachi: Central Institute of Islamic Research, 1965), 175. 5 For a detailed history of modem reform of Islamic law and its inherent problems, see J.N.D. Anderson, Law Reform in the Muslim World (London: The Athlone Press, 1976); idem, “Law as a Social Force in Islamic Culture and History,” Bulletin o f die School o f Oriental and African Studies (1957): 13-40; idem, “Modem Trends in Islam: Legal Reform and Modernisation in the Middle East,” International and Comparative Law

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The notion of legitimacy pervades all discussions regarding Islamic law in the

modem context, for the law cannot truly take root if it is not accepted as valid by the

society it intends to regulate.

What is considered valid by the society must also exhibit an

authentic character free from subservience to external imposition and an oppressive

modernity. Robert D. Lee describes the cry for authenticity not as a rejection of modernity

itself but as a means to render it less arbitrary and more comprehensible.6 In the context o f

the struggle o f the Muslim community with

modernity, legitimacy predicated

upon

authenticity is

naturally bound

to

an

Islamic government grounded in Islamic

law.

However, the legitimacy regarded within the Muslim framework must also contend with

that which is deemed legitimate in the external realm. While maintaining what is perceived

to be an honest Islamic identity, the Islamic legal system that is proffered must earnestly

tackle the trappings of modernity, an enormous part of which entails a new dynamic in the

international sphere, notably in the area o f human rights. Thus, can the traditional Shari‘a

be implemented in contemporary Muslim societies or are there aspects inherent to Islamic

law that make it irreconcilable with international standards of human rights? And, if this is

true, is there a methodology for reform that effectively resolves this conflict?

The modem international organization is currently balancing the consequences of

globalization, delicately maneuvering between a desired unity based upon understanding and

acceptance, and the threat of uniformity produced by cultural and political hegemonies.

This reality creates the complicated relationship between respect for difference (culture and

Quarterly 20 (1971): 1-21. For a concise tnd more current analysis of the trends of tnd prominent contributors to modem reform of Islamic law, see chapter six of Wael B. Hallaq, A History o f Islamic Legal Theories: An Introduction to Sunni Usui al-Fiqh (Cambridge: Cambridge University Press, 1997). ^Robert D. Lee, Overcoming Tradition andModernity: The Searchfo r IslamicAuthenticity (Boulder Westview Press, 1997), 3.

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diversity) and the acknowledgement o f sameness (international human rights laws).7 The

international laws o f human rights cautiously operate in this intricate and precarious

domain, seeking to establish universal rules and values that are legitimate and followed by a

global community composed of a patchwork o f value systems and cultural traditions.

Muslims ate compelled to confront this dilemma through their desire to maintain

their own legal identity, tradition, and culture manifested in the Shari‘a while participating

as equal actors in an international system that demands the recognition o f and compliance

with, supranational institutions and laws.

If these international instruments are not

perceived as legitimate by Muslim nations, it is less likely that they will be observed and act

as effective agents and methods of securing stability, peace and understanding.

In fact,

divisiveness and discord may erupt, threatening to derail any progress made already

regarding communication and the pursuit ofcommon goals in the areas ofjustice and human

rights among nations. Conversely, the delicacy ofthe situation is enhanced when the law of

a nation is seen to contradict certain aspects of human rights standards, for this nation risks

being ostracized by other nations and excluded from fully participating in international

affairs. Abdullahi an-Na‘im8charges the Shari‘a of perpetrating this transgression, making

the possibility of a harmonious relationship between the two unattainable.

Abdullahi an-Na‘im has addressed the complex situation posed by the relationship

between international human rights and the Shari‘a and whether they can be reconciled. He

argues that there is no contradiction between Islam and human rights, saying, “

Islam itself

7 Richard Falk, “Cultural Foundations for the International Protection of Human Rights,” in Human Rights in Cross Cultural Perspectives: Quest fo r Consensus, ed. Abdullahi an-Na‘im (Philadelphia: University of Pennsylvania Press, 1992), 46. 8 Abdullahi an-Na‘im is a Muslim Sudanese scholar in Islamic law with a degree in Shari'a from the University of Khartoum and an LLJ3. and Diploma in Criminology from the University of Cambridge. He is an internationally renowned human rights activist who is currently the Charles Howard Candler Professor of Law at Emory University in Atlanta, Georgia.

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can be consistent with and conducive to the achievement o£ not only the present universal

standaids, but also the ultimate human right, namely the realization of the originality and

individuality of each and every person."9 However, he maintains that certain aspects ofthe

Shari‘a are inconsistent with cunent standards of human rights, and cannot be reformed

within the traditional framework and methodology ofthe Shari'a.

He offers a methodology for the radical reform o f the Shari'a which he avows is the

only alternative that allows Muslims to wholly implement a Shari'a that is both legitimate

internally as well as internationally, satisfying requirements of human rights laws.

The

methodology that an-Na'im proposes is that of his mentor Mahmoud Mohamed Taha,

founder of the Republican Brothers in Sudan.10 He believes that Taha’s methodology would

obviate the problem o f forcing Muslims to choose between their religion and law, and

standards that are enforced by the international community, allowing Muslims to retain their

religion while adhering to international standards without contradiction.11 He is convinced

9 Abdullahi an-Na'im, “A Modem Approach to Human Rights in Islam: Foundations and Implications for Africa,” in Human Rights and Development in Africa, eds. Claude Welch and Ronald Meltzer (Albany: State University ofNew York, 1984), 75. 10The Republican Brothers was formed by Taha in 1945 as a political party that fought for the independence of the Sudan against colonialist patronage. The group was transformed in the 1950’s from a political party to an organization promoting the spiritual orientation of Taha. Taha was executed as an apostate on January 18,1985 for opposing the Islamization program of then President Nimeiri For a history of the Republican Brothers and Taha see Paul J. Magnarella, “The Republican Brothers: A Reformist Movement in the Sudan,” The Muslim World 72 (1982): 14-24; Richard P. Stevens, “Sudan's Republican Brothers and Islamic Reform,” Journal o f Arab Affairs 1, 1 (1981): 135-46; Mahmoud Mohamed Taha, The Second Message o f Islam, trans. Abdullahi an-Na'im (Syracuse: Syracuse University Press, 1987), 2-19. 11Taha was an engineer with SuS training and discipline. His ideas do concern legal matters but they are more of a comprehensive vision of the message of Islam. It is an-Na'im who has structured the ideas and instilled a legal objective in them. Moreover, the nature of an-Na'im’s work with international human rights and his quite Westernized existence may lead some to assume that the ideas behind the reform methodology pander to a Western community (for they certainty accommodate it) and seek the Westernization of Islam. However, Taha

was not dazzled by die “progress” of Western civilization, and found that “present-day Western civilization is not a civilization at ad, despite all its material progress. It is not a civilization because its values are confused, in

This

that means are advanced while ends are retarded

readied the end of its development It has obviously failed to answer the needs of modem human society This failure of the present industrialized Western civilization is therefore due to the fact that its material development was not supplemented by proper moral growth that clarifies the confusion and places the machine in its proper

present-day industrialized Western civilization has

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ofthe legitimacy of a universal human rights project but believes it would be undermined if

forced to compete with a society’s value system.12 He describes his project as “an attempt

to promote the cultural legitimacy of human rights within the Muslim context.”13

This thesis comprises three chapters that examine the challenge that modernity,

through a contemporary international composition and the standard of human rights that it

has devised, poses to Islamic law and the methodology for reform proposed by Abdullahi an-

Na'im.

The

first

chapter evaluates

the

meaning

and

implications

of the

modem

international structure ofthe nation-state and assesses the human rights standards that the

international community has fashioned.

It also analyzes the traditional Shari'a and the

classical understanding of the liberties and limits of usul ul-Bqb (Islamic jurisprudence or

legal methodology) and its capability to adjust and accommodate change and evolution

within the law, with particular emphasis placed upon the legal tools of ijtibad (legal

reasoning and interpretation) and uaskb (abrogation). The second chapter explores areas of

contention between Islamic law and human rights, specifically addressing the legal status of

women and non-Muslims and the role of criminal justice.

Chapter Three explains the

“radical reform methodology” of Taha as championed by an-Na'im and discusses why he

maintains that this is the only option that allows Islamic law to coexist with human rights

standards.

place as the servant of man and not his master. spiritual progress.” Taha, SecondMessage, 52-54.

1 Abdullahi an-Na'im, “Toward an Islamic Hermeneutics for Human Rights,” in Human Rights and Religious Values, eds. Abdullahi an-Na'im, Gort, H. Jansen, and HM. Vroom (Grind Rapids: William B. Eenhnans Publishing Company, 1995), 230.

in Cross-Cultural Perspectives: Quest fo r Consensus (Philadelphia:

University ofPennsylvania Press, 1992), 427.

Material progress has unfortunately not been shored up by

13 Abdullahi an-Na'im, Human Rights

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Chapter One

The Modern International Structure, Human Rights Standards,

and the Classical Understanding of the Shari‘a

The feature of modernity described in this study is that of the international

composition and the human rights standards that it has created. The formation of peoples

into territorial entities, engaging in a high level of interaction, has concurrently bred a

particular mentality and understanding of humanity revealed in human rights laws.

This

mentality has permeated nearly every society, leaving a psychological impact upon its

individuals.

To partake in modernity is to necessarily participate in this adjustment of

thought.

However, the degree of internalization and resultant position are determined by

both the individual and the society. This decision is informed externally by an evaluation of

the validity and legitimacy of the perspective surrounding human rights standards.

And

within the Muslim context, an understanding of the traditional system of law and its

philosophy illuminates the level of compatibility and suitability it is able to maintain with

both the international framework and its accompanying state of mind. Moreover, this may

indicate the breadth of transformation needed to accommodate this relationship.

A. The Modem International Structure and Human Rights

International human rights laws have been perceived as an imposition of Western

values upon Islamic (and other) societies in an effort to guarantee a particular vein o f self-

interest or moral authority at the expense of the integrity and independence o f other

societies. The existing human rights standards and their methods of implementation have

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been attacked for their bias in favor of western interpretations of internationaland universal

rights, creating a dilemma for those nations who want to be active members in an

international community which they feel alienates them. Moreover, human rights are moral

rules and so it follows that when they are universalized, the threat of moral tyranny arises

and elicits trepidation.14 Some people challenge the universality of these human rights

norms, questioning whether they can be suitably applied to non-Westem societies.15 A

further predicament reveals itself when Western nations enforce international law and

human rights standards upon less powerful nations, while neglecting to abide by the rules

themselves. Ibrahim Shihata illustrates this quandary saying:

If a rule lacks the general conviction in the minds of those addressed by its letter as to its obligatory character, it is natural that such a rule, short of forced application will not stand. As a result, it is not illogical to look first at the rules in order to find a remedy for the problems of their application and

enforcement.16

However, it is necessary to go a step further and consider the institution that designed the

rules.

Thus, an assessment of the effects and ramifications of the nation-state and the

genesis and formulation of international human rights laws will provide the setting for the

complicated relationship between modernity and Islamic law.

14 For a discussion concerning the necessary mediation between cultural relativism and universalism, see Jack Donnelly, “Cultural Relativism and Universal Human Rights,” Human Rights Quarterly 6 (1984). 15Virginia A Leary, “The Effect of Western Perspectives on International Human Rights,” in Human Rights in Africa: Cross-Cultural Perspectives, eds. Abdullahi an-Na‘im and Francis Deng (Washington, D.C.: The Brookings Institution, 1990), 15. 16Ibrahim Shihata, “Islamic Law and the World Community,” Harvard International Club Journal 1,4 (1962):

101.

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9

1. The Nation-State

The reality of the nation-state as both the domestic and international model o f

organization has significantly and irreversibly changed the physical and mental composition

of society.

It is a concept and ideal that emanates fiom the West, nurtured and developed

within that context and later imposed upon non-Westem societies through colonialism or

post-colonial adoption and enactment.17 The nation-state is the formation of territorial

bodies into political states, imbuing the state with tremendous political authority and power

while instilling a unified national identity in its individuals.18

The classical Islamic

approach to an international community does not conceive of nation-states and certainly not

of an identity premised upon a national affiliation.

The

classical Islamic understanding o f

identity is predicated upon belief and it is this belief that orders the Islamic state’s relations

with other international entities. This is clearly expressed in the division of the world into

the territory of Islam {dir al-Islam), that which is under Muslim rule and Islamic law, and

the territory of war {diral-barb) which consists o f all the states and communities existing

outside the Islamic ambit and whose inhabitants are called unbelievers.19 However, this

international division of belief is deemed temporary due to the universal nature o f the

17Abdullahi an-Na‘im, “The Contingent Universality of Human Rights: The Case of Freedom of Expression in

African and Islamic Contexts,” Emory InternationalLaw Review

18 An important ideological aspect of the nation-state is its affirmation of self-determination, as guaranteed by

the Charter of the United Nations.

note is dial self-determination is bestowed upon territories and nations, thus binding the notion of autonomy to the construction of a nation-state, identifying and unifying that state by a common culture within its territorial bounds. See Ralph Emerson, “Self-Determination,” American Journal o f International Law 65 (1971): passim. For an interesting argument against this definition of self-determination and a proposal for an expansion of the concept to ensure the self-determination of all groups within the state, see Abdullahi an-Na'im, “The National Question, Secession and Constitutionalism: The Mediation of Competing Claims to Self-Determination,” in Constitutionalism and Democracy: Transitions in the Contemporary World, eds. Stanley’ N. Katz, Doug Greenberg and Steve Wheatley (New York: Oxford University Press, 1993), 105-125. 19Majid Khadduri, War and Peace in the Law o f Islam (Baltimore: The Johns Hopkins University Press, 1966), 53 and passim. See also idem, The Islamic Law o f Nations: Sbaybmi's Siyar (Baltimore: The Johns Hopkins University Press, 1966).

See Articles 1.2 and 55 of the Charter. However, even mote important to

10,2 (1997): 40.

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10

Islamic state seeking the subordination of the whole world under its law and religion.20 The

notion of univeisalism compels the law of Islam to “recognize no other nation than its own,”

as Majid Khadduri says, “in contrast with the modem law of nations, which presupposes the

existence of a family of nations composed o f states enjoying sovereign rights and equality of

status

”21

The nation-state disrupts the Islamic conception of an international framework

based upon belief for it must contend with the concrete reality, as Khadduri says “of a

transformation of the state from an Islamic (universal) state into a modem (national)

state.

,

.

” 22

The supremacy of the state is enhanced and supported by its control over the law,

“the national state becoming the unique source of all legislation.”23

The solid alliance

between law and government, a quality of the nation-state, is contrary to the nomocratic

Islamic state, the distinctive feature of which is the vigilant separation between the Law and

the State.24 Haim Gerber emphasizes, “Islamic law, by being jurists’ law, constituted an

autonomous institution that was not controlled by the state.

The law was part of the

central, core values ofthe society, yet was a jurists’ law, that is unrelated to the state and in

the position of not having to draw its legitimacy from it.”25 The appropriation o f the law by

the modem state is consolidated and fortified by the codification of those laws.

This

process is deemed necessary for modem national legal systems to

maintain greater

20 Khadduri, War and Peace, 44-5; Muhammad HamiduUah, Muslim Conduct o f Slate, 4* ed. (Lahore: Sh. M.

HamiduUah contends that the only enemies to the Islamic state are enemies of God:

polytheists, associatois and atheists and that the Muslims “wanted to conquer the world, not to plunder it, but peacefully subjugate it to the religion o f‘Submission to the Wfll of God’ ”

Ashraf, 1953), 145-46.

21 Majid Khadduri, “Islam and the Modem Law of Nations,” American Journal o f International Law 50 (1956):

358.

22 Majid Khadduri, The Islamic Conception o fJustice (Baltimore: The Johns Hopkins University Press, 1984),

201.

23Anderson, “Modem Trends in Islam: Legal Reform and Modernisation in the Middle East,” 18. 24Khadduri, Warand Peace, 14-18. 23Haim Gerber, Islamic Law and Culture 1600-1840 (Leiden: Brill, 1999), 147.

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consistency and efficiency in the law.26 The law is no longer independent nor is it applied va

society - it is the official law o fthe state, expressing its political will and enforced by it.27

Moreover, through the conjunction of the state and the law, the state becomes the master

regulator of society, directing everything ranging from personal status to institutions.

28

In the Islamic context, codification disrupts the traditional process of legal activity,

indicating the difficulty of establishing cohesion between a Western institution and concept

and an entirely different societal and legal system.

Ann E. Mayer contends that the

exposure to this Western notion of state and law leads Muslims to perceive “law” as rules

that emanate from and are enacted by the state in the form of statutes or codes, which then

allows the state to declare that “only the laws that it enacts in codified or statute form

constitute binding statements of the principles o f Islamic law on its territory.”29

The

authority of codifying Islamic law accords the state with the exclusive prerogative of

establishing what it constitutes as Islamic law.30

26Ann E. Mayer, “The Shari'ah: A Methodology or a Body of Substantive Rules?” in Islamic Law and Jurisprudence: Studies in Honor o f Farhat J. Ziadeh, ed. Nicholas J. Heer (Seattle and London: University of Washington Press, 1990), 180. 27Abdullahi an-Na'im, interview by author, May 11,2000, Washington, D.C. 28 A consequence of die modem nation-state is witnessed in the collapse of the infrastructure of traditional Muslim society. As Hallaq explains, “With the introduction of these codes [through codification] there arose the need to modify die infrastructure of die existing legal system in order to sustain these codes. In addition to the introduction of a western-styled hierarchy of courts, a new legal profession emerged. The training of modem lawyers who staffed these courts required the institutionalization of modem colleges of law, a feet which had a fundamental structural impact upon die traditional class of legal scholars. The role these scholars played in the judicial system was gradually phased out, with the concomitant result that they could no longer be conceived as an integral part of the legal system. Their traditional colleges of law lost the financial support of both the state and the private individuals, and the prestige of the social status of the traditional faqlb thus gave way to the emerging class of modem lawyers.” See Hallaq, Islamic Legal Theories, 259-260. What Hallaq describes is largely the result of the nationalization of waqfs (charitable endowments), a formerly private and independent institution that constituted the backbone of die Islamic legal system and economically sustained the society. For the history of the waqf and an analysis of its modem transformation and societal repercussions, see Henry Cattan, “The Law of Waqf” in Law m the Middle East: Origins and Development o f Islamic Law, eds. Majid Khadduri and Herbert J. Liebesny (Washington, D.C.: Middle East Institute, 1955), 236-278. 29Aim E. Mayer, “Law and Religion in die Muslim Middle East,” American Journal o f Comparative Law 35,1 (1987): 152-53. “ Mayer, “The Shari'ah: A Methodology or a Body o f Substantive Rules?' 197.

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12

However, this is opposed to the very premise of classical Islamic law.

Schacht

contends that traditional Islamic law is incompatible with codification, Islamic law being a

doctrine and a method rather than a code.31 Codification gives the state centralized control

over law-making, eradicating any diversity of legal opinions and juristic interpretation

which is a principal feature of Islamic law due to its methodological underpinnings.32 In this

sense, codification effectively severs the methodology for deriving laws (usa/a/-Sqb) from

the substantive laws themselves (fiiru \ thus corrupting and distorting the entire legal

system.33

The instrument ofcodification is a concomitant attribute ofthe modem nation-state,

dictating the course of law within the state as well as asserting the nation as the legal

identity.

But this national, legal and political entity operates within a larger and highly

interactive international community regulated by a supranational structure responsible for

international law, a facet of which are the laws pertaining to universal human rights.

2.

Human Rights Laws

The nation-state operates with a generous degree of freedom and independence yet

adheres to an overarching legal system in order to promote stability and maintain peaceful

31Joseph Schacht, “Problems of Modem Islamic Legislation,” Studia Islamica 12 (1960): 108.

32 According to Hallaq, “The transference of ‘law-making' from the hands of the traditional jurists to those of

the state constituted a major shift in legal theoretical Individual discourse ijtihid became, for all purposes and

intents, extinct, having been replaced by state legislation committees staffed mainly by modem lawyers. With the virtual disappearance of the traditional class of legists, and with the emergence of codification as an answer

to new social realities imposed by western cultural and technological domination, there emerged a new legal Weltanschauung that entirely rejected some of the elements of traditional theory, and which demanded that whatever was retained had to be drastically modified.” The relationship between the methodology and the law in traditional SharPa will be investigated in the second part of this chapter. 33Mayer, “The Shari'a: A Methodology or Body of Substantive Rules?” 198. The author asserts that the process of codifying Islamic law “may well have the effect of transforming the Shari'a from a legal tradition in which methodology is central to one in which certain principles in the substantive roles enacted into law by governments become its distinguishing feature.”

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13

coexistence and mutual responsibility with other states. The organization charged with this

task is the United Nations. The United Nations Charter was proposed by representatives of

the

United

States,

Great

Britain, the Soviet

Union, and China at

a conference in

Washington, D.C. in 1944 and was then drafted by these, as well as 44 other countries. It

was completed in only two months and on October 24,1945, after the Charter of the United

Nations was ratified by a number of signatories, the United Nations came into being. The

United Nations is considered “the pre-eminent international organization”34 and “a pivotal

organ ofworld government, and the most important o f all international institutions.”35 Soon

after its conception, the United Nations was compelled to address the consequences

produced by a national state, Nazi Germany during World War 0. thereby supplying

international laws with another legal instrument, that of human rights.

The atrocities committed by Nazi Germany upon humanity obliged the United

Nations to act in a manner that would ensure such tragedy would not be replicated.36 The

Universal Declaration o f Human Rights (UDHR)37 was drafted by the United Nations

General Assembly under the direction and responsibility of persons from Western Europe

34Ann E. Mayer, Islam and Human Rights: Tradition and Politics (Boulder: Westview Press, 1991), 40. 35 J.G. Starke, Introduction to International Law, 9th ed. (London: Butterworths, 1984), 601; Abdullahi an- Na'im, “Religious Minorities under Islamic Law and the Limits of Cultural Relativism," Human Rights Quarterly 9, 1 (1987): 6. All Muslim countries, or countries with a Muslim majority even if they are not identified as an Islamic state in the constitutional sense, are members of the United Nations and are thus parties to its Charter as a treaty, acknowledging and accepting the laws and their obligation to obey them. Moreover, in Article 1 (3), it explicitly declares its recognition of human rights, committing “To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” 36Mayer, Islam and Human Rights, 40-41. 37 The Universal Declaration of Human Rights is the first piece of international human rights legislation that comprises the International Bill of Human Rights. In addition to the Declaration (1948), die Bill consists of the International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil and Political Rights and its Optional Protocol (1966). While the Universal Declaration of Human Rights by itself is not a legally binding treaty, it has been incorporated into the subsequent covenants and other human rights treaties that are legally binding and have been ratified by a substantial number of Muslim countries.

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14

and the Americas as well as non-Europeans educated in the West.38 As Viiginia Leary

relates:

The initial draft of the declaration prepared by John Humphrey (director of the Division on Human Rights of the UN Secretariat) drew from proposed declarations submitted by a number of Western organizations and individuals, particularly from the Western hemisphere. Most ofthese declarations followed closely the French Declaration of the Rights of Man and of the Citizen or the

U.S. Bill of Rights

39

The Universal Declaration o f Human Rights was adopted by the unanimous agreement of

United Nations General Assembly40in December, 1948 as an international legal mechanism

to guard against abuses committed by nation states against human beings.

This foundational document establishing and codifying human rights norms is

noteworthy

for a number o f reasons.

It represents the acceptance by the international

community, comprised of a medley of different nations, of the concept of human rights as

well as confirms its distinctive position as contingent upon the nation-state and modem

Western notions of humanity 41

Human rights scholar Rhoda E. Howard contends, “Human

rights are a modem concept now universally applicable by virtue o f the social evolution of

38Leary, “The Effect of Western Perspectives,” 20-21. Leary relies upon Albert Verdoodt's account of the event in Naissance et Signification de la Declaration Universelle des Droits de I 'Homme (Louvain-Paris: Editions Nauwelaerts, 1963). He names Rene Cassin of France, John P. Humphrey of Canada, Eleanor Roosevelt of the United States. Heman Santa Cruz of Chile, Charles Malik of Lebanon, P.C. Chang of China, and Fernand Dehousse of Belgium as playing the most important roles in the drafting. Both Chang and Malik, the only non- Westerners in the group were educated in the United States at Columbia University and Harvard University respectively. Parenthesis mine. 3’Leary, “The Effect ofWestern Perspectives,” 20-21. 40Saudi Arabia, South Africa, and the Soviet bloc abstained. 41 M. Cherif Bassiouni, “Sources o f Islamic Law, and the Protection of Human Rights in the Islamic Criminal Justice System," in The Islamic Criminal Justice System, ed. M. Cherif Bassiouni (London: Oceana Publications, Inc., 1982), 40. The author states, “International conventions on the protection of human rights, and in particular the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights, establish minim um standards which reflect contemporary values. Their purposes ate unquestionably within the scope of Islamic law, though the general frame of references of all human rights convention is the western Judeo-Christian tradition. This may have been due to the fact that the Islamic legal system has since the Middle Ages produced no impact on international and comparative law, and consequently, its impact on the shaping of internal human rights law has been nil” As will be discussed in Chapters Two and Three, an-Na‘im does not regard traditional Islamic law and modem human rights schemes to be compatible.

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15

the entire world toward state societies.’'42 Human rights may be considered normative and

enjoy universal agreement in the international community (in theory, at least) because of

their ability to address moralabuses in the modem context o f considerably altered societies

and political and legal systems.

traditional society saying:

Jack Donnelly describes the transformation o f the

Traditional rulers usually faced substantial moral limits on their political power, customary limits entirely independent of human rights. Furthermore, the relative technological and administrative weakness o f traditional states and non-state political institutions provided considerable practical restraints on arbitrary abuses o f power. In such a world, at least some human rights - inalienable entitlements o f individuals held against state and society - might plausibly be held to be superfluous (in the sense that basic dignity was being guaranteed by alternative mechanisms) if not positively dangerous to well- established practices that realized a cultural conception o f human dignity 43

The checks and balances that a traditional society provided for moral comportment have

been compromised and in some cases completely dismantled, creating the need for an

appropriate means to guaranteeing human dignity and values against threats posed by

modem society and its institutions such as the nation-state.

Donnelly further argues, “To

the extent that

modernization or Westernization has

reached into, and transformed,

traditional communities, traditional approaches to guaranteeing

human dignity

seem

objectively inappropriate; traditional limits on political power are unlikely to function

effectively in modem conditions.”44 Thus, the human rights scheme reflects a concern with

the exploitation o f power by individual governments (emboldened by modem circumstances

42 Rhoda E. Howard, “Dignity, Community, and Human Rights,” in Human Rights in Cross-Cultural Perspectives: Quest fo r Consensus, cd. Abdullahi an-Na'im (Philadelphia: University of Pennsylvania Press, 1992), 81.

43Jack Donnelly, “Cultural Relativism and Universal Human Rights,” Human Rights Quarterly 6 (1984): 405-6. The author continues to say, “Such a world, however, exists today only in a relatively small number of isolated areas. And the modem state, particularly in the Third World, not only operates relatively free of the moral

constraints of custom but has far greater administrative and technological reach.

threat to basic human dignity, whether that dignity is defined in ‘traditional’ or ‘modem’ terms.”

44Ibid., 406.

It thus represents a serious

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16

and enhanced by the erosion of traditional safeguards)43 and guarantees unyielding legal

protection to all citizens.

The construction

and philosophical principles of the modem

moral authority

manifest in human rights, however, are inherently Western and are indifferent to other

traditions. It is important to recall that as the institutions of international organization and

enforcement were being formulated, a vast majority of nations could not contribute to this

process as they were suffering under repressive colonialist rale by the very same European

powers that were proclaiming the Universal Declaration of Human Rights at the United

Nations. It is also

significant that the elaboration and adoption of the declaration took only

a few years whereas the drafting of the two subsequent international documents regarding

human rights took twenty years. These later documents were the International Covenant on

Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political

Rights. Leary interprets the difference of time as a reflection of the increased participation

of non-Westem states in the ensuing years as colonialism began to crumble 46 During the

drafting of the declaration, the homogenous nature and perspective of the Western states

allowed for a relatively uncomplicated, thus expeditious, adoption of the declaration.

Whereas the two covenants were produced in the 1960’s when many new African and Asian

countries had become members o f the United Nations, incorporating their divergent

outlooks and experiences, challenging and confronting the West, into the fabric o f the

43 Donnelly, “Cultural Relativism and Universal Human Rights,” 413. The author contends, “In traditional cultures - at least the sorts of traditional cultures that would readily justify cultural deviations from international human rights standards - people are not victims of the arbitrary decisions of rulers whose principle claim to power is their control of modem instruments of force and administration. In traditional cultures, communal customs and practices usually provide each person with a place in society and a certain amount of dignify and protection. Furthermore, there usually are well-established reciprocal bonds between ruler and ruled, and between rich and poor.” 46Leary, “The Effect of Western Perspectives,” 25.

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17

further development of human rights.47

However, these new actors in the international

sphere were latecomers to an already established concept and framework that had become

normative.

They also lacked material and human resources, placing them in a position of

relative impotence as emerging poor and underdeveloped countries maneuvering within pre­

existing power-oriented systems of international law.48 The genesis of international human

rights certainly inhibit their legitimacy and authority as non-Westem states assert their

independence, influence, and enhanced participation in the international domain.

To augment this disparity, the very concept of human rights is European in origin.

The definition provided by Donnelly states, “Human rights are rights, not benefits, duties,

privileges, or some other perhaps related practice. Rights in turn are special entitlements of

persons.”49 The rights of the individual are paramount and are inherent in one’s humanity,

with no dependence upon God, the state or one’s actions (you cannot lose these rights

through

bad

behavior or criminal

activity,

for instance).

The emphasis

upon the

individualistic nature of rights and the guarantees o f life, liberty, and property go back to the

ideas of John Locke.50 This perception of human rights empowers the individual vis-a-vis

the community, the state, and even the family unit, which is a departure from the social

organization of many communities, especially those outside the Western sphere (i.e., many

tribal societies).

Such a construction of society redefines the relationship between the

individual and his/her community through the reformulation of individual human rights

47Ibid., 25. 48Abdullahi an-Na'im, “The Contingent Universality of Human Rights: The Case of Freedom of Expression in African and Islamic Contexts,” Emory International Law Review 11 (1997), 39. 49 Jack Donnelly, “Human Rights and Human Dignity: An Analytic Critique of Non-Westem Conceptions of Human Rights,” The American PoliticalScience Review 76 (1982), 304. 30 Ibid., 305; Mayer, Islam and Human Rights, 39-40. Mayer illustrates die intimate relationship between the Western Enlightenment philosophy and the current human rights laws affirming, “It was on these Western traditions of individualism, humanism, and rationalism and on legal principles protecting individual rights that twentieth-century international law on civil and political rights ultimately rested. Rejecting individualism, humanism, and rationalism is tantamount to rejecting the premises of modem human rights.”

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versus collective or communal rights and creates a distinct relationship between the

individual and the state.51 The modem human rights laws protecting the individual from

exploitation by the state predictably conceive the possibility of severe friction and

animosity between the individual and the state, an idea that is dissonant with the traditional

Islamic legal understanding. Theoretically, in the Islamic model, the state and the citizens

would both be responsible to the same God and laws, and equally seek to obey Him.52 Thus,

there would be no discrepancy between the interests of both parties.

Moreover, the

capability of the state to inflict egregious harm upon its individuals would be mitigated by

the legal system operating outside of state control

The emphasis upon individualism, a basic and integral mark of the Western notion of

human rights, elicits criticism concerning its modification of the role of the community. An

Islamic response by Ahmad Zaki al-Yamani argues that the West “is so overzealous in its

defense of the individual’s freedom, rights and dignity, that it overlooks the acts of some

individuals in exercising such rights in a way that jeopardizes the community.”53 This vein

of thought is very much alive today and leads to a conflict in Muslim societies that are asked

to elevate the importance of the individual at the expense of the community, contrary to

religious and traditional practice in which the individual is conceived of as the limb of a

51 N. J. Coulson, “The Stale and the Individual in Islamic Law,” International Comparative Law Quarterly 6 (1957): 49-60. The author asserts that Islamic law does not address this concern in the same tenns and does not recognize certain individual liberties, declaring that “the formulation of a list of specific liberties of the individual as against the State, in the manner, for example, of the American constitution, would in fact be entirely foreign to its whole spirit For Islamic religious law sees as its essential function the portrayal of an ideal relationship of man to his Creator the regulation of all human relationships, those of man with his neighbour or with the State, is subsidiary to, and designed to serve, this one ultimate purpose.” 52Ibid., 50-51. Coulson articulates this idea in his article, saying, “The stress, therefore, throughout the entire

Shari'a, lies upon the duty of the individual to act in accordance with the divine injunctions; and since the conscientious application of these divine injunctions is the declared purpose of the political authority, die jurists did not visualise any such conflict between the interests of the ruler and the ruled as would necessitate the existence of defined liberties of the subject” 53Ahmad Zaki al-Yamani, Islamic Law and Contemporary Issues (Jidda: The Saudi Publishing House, 1968),

15.

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19

collectivity.54

The human rights treatises afford civil and political rights that do not

consider communitarian or tribal structures and traditional societies,55but address the rights

and freedoms of individuals in modem nation states subject to the oppression and

dominance o f a centralized state.S6

modem response to modem problems:

Donnelly explains the human rights standards as a

The modem state, the modem economy, and the associated “modem” values tend to create communities o f relatively autonomous individuals, who lack the place and protections provided by traditional society. Furthermore, regardless of the relative degree of individual autonomy, people today face the particularly threatening modem state, and the especially fierce buffeting of the ever-changing modem economy. Rights held equally by all against the state, both limiting its legitimate range o f actions and requiring positive protections against certain predictable economic, social, and political contingencies, are a seemingly natural and necessary response to typically modem threats to human

54 Bassam Tibi, “Islamic Law/Shari’a, Human Rights and International Relations," in Islamic Law Reform:

Challenges and Rejoinders, eds. Tore Lindhohn and Kari Vogt (Oslo: Norwegian Institute of Human Rights, 1993), 87. According to Sayyid Qutb, Islamic law regulates the actions of both the individual and the community by establishing boundaries for each entity, rather than affording one (the individual) with a significantly higher proportion of rights against the other (the community). The freedom of the individual should not be allowed to encroach upon the general welfare of the whole society. Thus, he asserts that “the regulations lay down the rights of the community over the powers and abilities of the individual; they also

establish limiting boundaries to the freedom, the desires, and die wants of the individual, but they must also be ever mindful of the rights of the individual, to give him freedom in his desires and inclinations; and over all there must be the limits which the community must not overstep, and which the individual on his side must not

does not overlook the needs and the welfare of the society, nor does it forget the great ”

See Sayyid Qutb, “Social Justice in Islam,” in Islam in

Transition: Muslim Perspectives, eds. John J. Donohue and John L. Esposito (New York: Oxford University Press, 1982), 126. This is not to imply that Islam does not place a great deal of importance upon the individual and recognize his/her individual rights. This is true, for “Islam, like the other higher religious systems, sought to reform the social order and liberate the individual from lingering traditions that had subjected him to the group" yet “Islam did not deal with ‘human rights' merely as individual rights, but as rights of the community of believers as a whole (Q. m , 106).” Khadduri, Islamic Conception o fJustice, 233.

55 Donnelly argues, however, that grievances emanating from those representing the position of traditional societies are compromised by die rapid deterioration of such societies. He claims, “Even most rural areas have been substantially penetrated, and die local culture ‘corrupted,’ by foreign practices and institutions ranging from the modem state, to the money economy, to ‘western’ values, products, and practices. In the Third World today, more often than not we see dual societies and patchwork practices that seek to accommodate seemingly irreconcilable old and new ways. In other words, the traditional culture advanced to justify cultural relativism far too often no longer exists. In particular, communitarian defenses of traditional practices usually cannot be extended to modem nation stales and contemporary nationalist regimes.” See Donnelly, “Cultural Relativism and Universal Human Rights," 411. 56Ann Elizabeth Mayer, “Current Muslim Thinking on Human Rights,” in Human Rights in Africa: Cross- Cultural Perspectives, eds. Abdullahi an-Na’im and Francis Deng (Washington, D.C.: The Brookings Institution, 1990), 148.

transgress

Islam

achievements of individuals in life and society

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dignity, to basic human values, traditional and modem alike. In the Universal Declaration we can see a set of rights formulated to protect basic human - not merely cultural - values against the special threats posed by modem

institutions.57

Traditional Islamic society was able to achieve and preserve balance between its members in

accordance with its traditional infrastructure. The reconfiguration of society, however, has

created potentially damaging predicaments that require legal safeguards to guard against the

negative consequences of these modem intrusions.

The acknowledgement of the Western origin of modem human rights standards and

laws does not compel an-Na‘imto assert their inability to respond to non-Westem societies.

He cautions that Muslims (and others) should distinguish between the dominance of the

West and the universality of international standards of human rights.s8 He holds that it

would be detrimental to dismantle these institutions in favor of starting again from a more

inclusive platform.59 It is an-Na‘im’s contention that the current human rights standards are

to be maintained as universally valid because they reflect the normative framework of a

common human experience reflected in the realities of globalization and expanding state

37Donnelly, “CulturalRelativism and Universal Human Rights,” 415. 38 Abdullahi an-Na‘im, “Toward an Islamic Reformation: Responses and Reflections,” in Islamic Law Reform:

Challenges and Rejoinders, eds. Tore Lindholm and Kari Vogt (Oslo: Norwegian Institute of Human Rights,

1993), 113-114.

Mayer responds to the rejection of modem human rights standards and institutions of

demonstrable value by stating, “Some M uslims who are opposed to international human rights principles -and, indeed, to any ideas that come from the West - would tend to support the idea that die farther an “Islamic” position diverges from modern, Western norms or the more it resembles the views propounded by pre-modem Islamic jurists, the closer it comes to representing authentic Islamic doctrine. However, looking for what is maximally opposed to Western norms has not normally been die method U9ed in the Islamic legal tradition as the way to measure the validity of competing interpretations of Islamic requirements!” See Mayer, “Current Muslim Thinking On Human Rights,” 145. 39 Abdullahi an-Na'im, “Problems of Universal Cultural Legitimacy for Human Rights,” in Human Rights in Africa: Cross-Cultural Perspectives, eds. Abdullahi an-Na‘im and Francis Deng (Washington, D.C.: The Brookings Institution, 1990), 355. Moreover, he says, “I would therefore make the existing bill the foundation of future efforts to establish cultural legitimacy for human rights by interpreting the current provisions and developing an appropriate literature sensitive to the need for cultural legitimacy.” He proceeds one step further, insisting upon using die foundations provided by the current models as a platform to build a more truly universal substantive set ofhuman rights standards, which he believes is still needed.

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21

power, occurring in every part of the world today, which leads him to assert, “The human

rights idea is too powerful and popular now for any government to oppose openly.

International human rights laws have not been impervious to conflict with the

Islamic legal system.

The scholarly debate surrounding this topic exceeds purely legal

resolutions and addresses difficult questions that remain hotly contested.

The dogmatic

assumption that modem international human rights laws, representing Western principles,

are the final and ultimate position concerning the affairs of every individual is redolent of

cultural imperialism and the imposition of Western-inspired ideals.

When these laws

directly encounter, oppose, and then seek to influence the Islamic social, political, and

religious reality, they issue an audacious value judgment that presents their position as the

only valid standard, challenging a system that has its own vision of human rights affirmed

by God in the Qur’an,61 and as Riffat Hassan declares, “Rights created or given by God

cannot be abolished by any temporal ruler or human agency.”62 Yet to understand and

property investigate the incongruity o f the two systems and then initiate a resolution to this

discord, an inquiry into classical Islamic law is crucial.

“ Abdullahi an-Na‘im, “Human Rights in die Muslim World: Socio-Political Conditions and Scriptural Imperatives," Harvard Human Rights Journal 31 (1990): 16. According to Mayer, “The universal declaration has, since its adoption by the UN General Assembly, achieved great international renown as an authoritative statement o f the modem standards of human rights protections and is die single most influential international human rights document Acknowledging that there is not full academic or political consensus regarding the authority of aspects of the International Bill of Human Rights, one can nonetheless maintain that they are representative, if perhaps not ultimately definitive, statements of what a broad segment of international opinion believes that human rights entail. In addition, because of the general recognition of their validity in state practice - in which they are commonly treated as governing legal standards - many provisions of the bill have achieved the statute of customary international law and, as such, are binding on states regardless of whether they have ratified the individual conventions.” Mayer, Islam and Human Rights, 18. 61 For further discussion of the purely Islamic viewpoint pertaining to human rights, see Khalid M. Ishaque, “Human Rights in Islamic Law,” International Commission o f Jurists Review 12 (1974): 30-39; Ali Abdel Wahid Wafi, “Human Rights in Islam" Islamic Quarterly 2 (1967): 64-73. 62Riffat Hassan, “Religious Human Rights and the Qur’an,” Emory International Law Review 10,3 (1997): 83. The articulation of human rights emanating from the Islamic perspective achieves its legitimacy from God (as opposed to a presumptuous humanity), as Iana’il al-Faraqi avers, “The human rights and obligations which Islam recognizes constitute a humanism in which man is not the measure of all tilings as Protagoras had thought God, or His will, is indeed such a measure.” See Isma‘il al-Faruqi, “Islam and Human Rights," Islamic Quarterly 27 (1983): 20.

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22

B. The Classical Sharp a

The most salient aspect of Islamic law is its dependence upon a transcendental

authority.63 This naturally places it in opposition to any other legal system that professes no

association whatsoever with the Divine and yet assumes a position of superiority, as secular

international law does.

How does a Muslim approach his existence when it is sharply

divided between divine law and man-made, Western-inspired laws?

The character of the

divine nature and the extent of its presence in traditional Islamic law elucidate the

relationship between God’s eternal law and the jurist’s understanding and formulation of

that law.

The presentation of Islamic law as a legal system that is informed by divine

guidance but actually articulated by jurists divests it of an impenetrable armor encasing an

indisputable and rigid law that does not change and thus cannot be reformulated nor

reconciled with modem society and human rights laws. However, parts of the law are not

merely juristic speculation but clear and direct commands from God, explicitly stated in the

Qur’an and not subject to human interference or alteration.

An assessment of the

limitations to modification within the classical Islamic legal methodology indicates the

degree of reformulation required.

The methodological tool of aaskb is discussed at some

length since it is the lynchpin of an-Na’im’s methodology.

1. The Shan‘a versus Fiqb

An-Na‘im’s methodology of reform presupposes an understanding of classical Islamic

law that carefully depicts what is divine law and what is a human approximation of the

63 Fazlur Rahman addresses the consequences that can arise out of a legal system that is so closely associated with die Divine. “The fact that no real and effective boundaries were drawn between the moral and the strictly legal in Islamic law must have also contributed to the fact that law was regarded as immutable. But this argument can be pushed loo far and would not hold good for the early, creative phase of Islamic law.” Fazlur Rahman, Islam (Chicago: University of Chicago Press, 1979), 116.

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23

divine law.

This is wbat distinguishes the Shari‘a, the eternal will and law of God, from

Bqh, the juridical opinions of the jurist concerning that law.64 When the two aie confused, a

deification of human interpretation arrests the law, sanctifying it and impeding its flexibility

and any proposals for change. Orientalist scholarship has contributed to the creation of the

artificial symbiosis of the two, as exemplified by Noel J. Coulson in his Introduction to

Islamic Law.

In contrast with legal systems based upon human reason, such a divine law possesses two major distinctive characteristics. Firstly, it is a rigid and immutable system, embodying norms of an absolute and eternal validity, which are not susceptible to modification by any legislative authority. Secondly, for the many different peoples who constitute the world of Islam, the divinely ordained Shari‘a represents the standard of uniformity as against the variety of legal systems which would be the inevitable result if law were the product of human reason based upon the local circumstances and the particular needs of a given community.65

By insisting that everything emanating from the legal system is the final dictate ofGod and

not an extrapolation of the law from a divine source (the Qur’an), any attempt to adjust or

64 An-Na'im, “Towards and Islamic Hermeneutics,” 238-239. In response to this, Fazlur Rahman stales, “If the test of the distinction between secular and religious law is that the former is man-made while the latter is God- made, then classical Muslim law is already largely secular for it is clearly the work of Muslim jurists.” Fazlur Rahman, “Islamic Modernism: Its Scope, Method and Alternatives,” International Journal o f Middle East Studies 1 (1970): 332. <s Noel J. Coulson, Introduction to Islamic Law (Edinburgh: Edinburgh University Press, 1964), 4-5, 7, 8. Coulson recognizes that this rigidity of the law clashes with die demands of modem society and posits that modem reformers have been forced to reinterpret die theory of the law saying, “In its extreme form legal modernism rests upon the notion that the will of God was never expressed in term s so rigid or comprehensive as ”

the classical doctrine maintained

However, this position maintains that the classical jurists themselves and

the theory they produced conceived of law as “imposed from above and postulates the eternally valid standards

to which the structure of state and society must conform” and not as “

shaped

by the needs of society; its

function to answer social problems,” which is the modernist position and the position of this paper. See also idem, Conflicts and Tensions in Islamic Jurisprudence (Chicago: The University of Chicago Press, 1969). This conception of the traditional theory of Islamic law has led scholars to posit that there was a split between die theory and practice of the law. For further discussion emanating from this perspective and one that is far more obdurate, see Joseph Schacht, Introduction to Islamic Law; idem, “Problems of Modem Islamic Legislation,” Studio Islamica 12 (1960): 99-129, and finally, Schacht's criticism of Coulson’s slightly more accommodating posture regarding the rigidity of Islamic law, in Schacht, “Modernism and Traditionalism in a History of Islamic Lam," Middle Eastern Studies 1 (1965): 388-400.

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revise is excoriated and vitiated as an affront to God by man.66 The precarious balance

between the revelation itself and an interpretation o f that revelation is destroyed when there

no longer is a differentiation between the two, resulting in a delicate situation to which

J.N.D. Anderson responds, “to a Muslim, it has always been a far more heinous sin to deny

or question the divine revelation than to fail to obey it.”67 In other words, depending upon

how closely one identifies the opinions of the jurists with the text itself a Muslim might

construe the laws governing his/her temporal existence as the final and ultimate directive of

God, any infringement of such would be tantamount to heresy.68 One explanation for the

confusion surrounding the definition

‘Ashmawy:

of Shari’a

is offered by Muhammad

Sa’id al-

Shari‘a is defined as Islamic law as it has been interpreted by the religious scholars; Shari’a is mainly man-made and not divine, as is often

alleged

greater part of what is considered Shari‘a is not what has been

revealed in the Qur’an, but what the scholars have determined are legal rules based on their interpretation of Qur’anic texts. The original meaning of

[T]he

46Rahman, Islam, 115-116. The scholar describes the difficulty of differentiating and then approaching/fyA and

the Shari'a, saying, “But, surprisingly, little attempt was made to rethink and reformulate the actual body offiqh

- the earlier attempts at actual legislation by the representatives of the four schools of law. For this the main

reason seems to be that this law was looked upon as flowing necessarily from the principles of the Qur’an and the Sunna and was further consecrated by Ijma’." However, he later attributes the restriction of the concept of

the Divine Law and subsequent assault upon the prestige of the Shari’a legists with a growing rigidity in the classical system itself (the infamous “closing the gate of ijtihid and subsequent adherence to taqfid, or imitation). This theory has been proven inaccurate by Wael B. Hallaq who shows that until colonization the classical Islamic legal institution did not hold this understanding of the law and was certainly not rigid because

16 (1984): 3-

41. Thus, it is modernity that has created die conception of the classical system’s inability to suffer change.

67 Anderson, Law Reform, 36. Anderson contends that the power of ijma’ (consensus) proved to bestow such force upon a commonly accepted doctrine or opinion as to render it “an authoritative indication of the divine wilL” Ijma' renders certainty upon probability which in turn renders judgments irrevocable. This certainty would assist in consecrating a single opinion as the only interpretation and thus the divine law itself. For the classicaljuristic justification and meaning of consensus, see Wael B. Hallaq, “On the Authoritativeness of Sunni Consensus,” International Journal o f Middle East Studies 18 (1986): 427-454.

o fit See Hallaq, “Was the Gate of Ijtihad Closed?” International Journal o f Middle East Studies,

68 An example of the reluctance to touch what is perceived of as the Shari’a, but which is to a large extentfiqh,

is the first forays into modem reform, whereby “at that time it seemed to them [the reformers] preferable to keep

the Shari’a intact and inviolable (as die perfect law which had at one time, they believed, held absolute sway and which would no doubt come into its own again in the golden age which would eventually dawn), even if this

meant excluding vast sections of it from the hurty-burty of everyday life in favour of legislation of wholly different origins-forced upon them, as they felt, by the exigencies of the modem worid-rather than to submit the sacred law to any profane meddling with its immutable provisions.” Anderson, Law Reform, 35.

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25

Sbari'a, as path, method, or way, was lost after the first generation o f Muslims, and over time it came to mean the legal rules themselves rather than “the way” to conduct a good Muslim life.69

It is with this definition in mind that we speak of the traditional or classical Shan‘a: a blend

of divine and human interaction indicative of an organic relationship between the Qur’an

and human beings.

Such an understanding accounts for the reality of an historical

development of change within the classical Shan'a, as well as encourages and promotes

modem thinkers to fieshly examine the divine sources to elicit interpretations more in tune

with modem exigencies, a process that emulates the activity of the classical jurists

themselves.70

The classical composition of the Islamic legal structure accommodates change first

and foremost in its embodiment o f both methodology (usul al-fiqb)11 and substantive laws

(fu ru \

Usui al-Gqb is the theoretical and philosophical foundation for the law, providing

the optimal mechanisms and process for the jurist to derive what he perceives as the closest

approximation to the actual will of God contained in the Qur’an and Sunna.

The

methodology is inalienable from the law, given that laws are not legislated by man but God,

requiring man to discover the Qur’anic position through rnul al-Gqb. For as Bernard Weiss

explains:

69 Carolyn Fluehr-Lobban, ed

Against Islamic Extremism: The Writings o f Muhammad Sa 'id al-Ashmawy,

(Gamsville: University Press of Florida, 1998), 18*19. For another articulation of this concept see Ahmad Zaki

al-Yamani, “The Eternal Shari1*,” Mew York University Journal o f International Law and Politics 12 (1979):

205-212. In this article the author distinguishes between the non-binding Shan’a, which is comprised of the juristic enterprise, and the binding Shari’a, which is confined to the principles of the Qur’an, Sunna, and ijma'. For an interesting discussion regarding die conception offiqh and shan'a informed by social history and die impact of such a conception upon theory and practice, see Aziz al-Azmeh, “Islamic Legal Theory and the Appropriation of Reality,” in Islamic Law: Social and Historical Contexts, ed. Aziz al-Azmeh, (London:

Routledge, 1988): 250-265.

be more fully developed in the last chapter concerning historical context and hermeneutics.

71 For a detailed assessment of historical formulation of theories that comprised traditional usul sl-tiqh see Hallaq, Islamic Legal Theories.

/0 This will

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The distinction between law and its sources is carefully maintained in Islamic Jurisprudence. This distinction assumes that the Holy Law, as the aggregate of divinely-ordained rules, is not entirely self-evident from the sacrcd texts. If it were, the sacred texts would not be the sources o f the law, but rather the Law itself; they would constitute a divinely given code of law.72

The classical concept of the methodology clearly guards against any intimation that the

divine law itself is clearly given to humanity, for then an active methodology deriving the

law would be superfluous.

Since revelation is considered all-inclusive (everything can be found either directly, or

indicated by God, in the Qur’an which leads to the discovery of the law), Muhammad Ibn

Idris al-ShifiH (d. 204/820) affirms that both positive law and the methodology for deriving

that law must lie in the divine texts.73

Human beings are the agents employing that

methodology and it follows that their experience in society and the lens through which they

understand their religion colors their use of the methodology and the resultant rulings.

Hence, the various ideas and uses of the methodology as well as the extensive body of

juristic disagreement- (ikbtiliJ) pertaining to legal rulings indicate a vibrant and dynamic

relationship between God, man, methodology, and law.

disposition of the Islamic legal system:

Wael B. Hallaq confirms this

All other cases [those not subject to ijm i\ however, are open either to a fresh interpretation or reinterpretation. Those open for fresh interpretation are novel cases (naw izit, sing, aazila) that befall the Muslim community, and they are considered to be infinite in number. Those open for reinterpretation are older cases of law for which the jurists proffered one or more solutions, but on which no consensus has been reached. The latter group of cases falls within the scope

of juristic

new ways of legal reasoning.74

disagreement (kh iliG yyitikh tilif) and may therefore be subject to

72 Bernard Weiss, “Interpretation in Islamic Law: The Theory of Ijtibid," American Journal o f Comparative Law 26,2 (1978): 199. 73Hallaq, Islamic Legal Theories, 22. 74Ibid., 82.

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Hallaq’s comment

is

noteworthy because it demonstrates the

profusion of opinion

surrounding the juristic enterprise of discovering the law.

The one and only law may not

have

been

discovered,

but

a law was discovered based

upon

legal

reasoning

and

interpretation.75 Moreover, the law that was discovered for a particular case was a practical

solution to a legal problem reflective o f a certain age and society.

This latter feature o f classical Islamic law is vitally important for the re-evaluation

of the understanding of the ability of Islamic law to address its immediate socio-historical

context and accommodate change.

It is even more decisive, as Baber Johansen expresses,

“that the jurists consider their legal training as a tradition-in-change that ought to be

constantly reinterpreted and in which it is as important to preserve the early forms as it is to

adapt the tradition itself to new conditions.”76 Upon recognition of the vitality of the law, it

no longer remains entrenched in historical shackles nor is it conceived of as a religious ideal

utterly detached from actual reality, but is regarded as a juristic interpretation that is acutely

attuned with the vagaries of time and the conditions of society. The principal actor in this

enterprise is the jurisconsult

(m ufti) using the methodology (osiil al-Gqb) to issue a legal

opinion (fatwa) that contains the legal ruling that is incorporated in the body of substantive

75A fundamental element of the Islamic legal system, which ensures continuity and consistency within the law, is the establishment of the authoritative opinion, emerging from the wealth of juristic opinions. This authoritative opinion is formulated considering the needs and requirements of the present society, thus allowing for its later replacement by another authoritative opinion responding to ensuing societal fluctuations. For the development of this process, see Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge:

Cambridge University Press, 2001), chapters 5 and 6. 76 Baber Johansen, “Legal Literature and the Problem of Change: The Case of the Land Rent,” in Islam and Public Law, ed. Chibli Mallat (London: Graham & Trotman, 1993), 47. In this article the author demonstrates that change is an essential element of Islamic law. However, it is not a radical disposal of old solutions but a juxtaposition of different solutions to one and the same problem, while legitimating the introduction of new legal doctrine in judicial practice. This is accomplished by the classical jurists who refer to the social and economic conditions in the formulation of their opinions.

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28

law (furu<).77 This process occurs within the accepted view of the classical jurists that the

law must be commensurate with the nature of the society, which encompasses both new

laws and a re-evaluation of a previously established authoritative doctrine.

expounds this dictate:

7ft

It was commonly held that the particular circumstances of the m ustafli must always be taken into consideration and that changing conditions justify changing certain rules so as to bring them into conformity with the current needs of the society in question. In issuing his fatw is, RamG reportedly

referred to the doctrines that had been modified or “corrected (sabbaba) by the major jurists of the school on account of the changing times or on account of

the changes that the conditions of people have u n d erg o n e”( /a - a /if a ‘auba

ma sabbababu kibaru abb' al-madbbabi li-ikbtilafi al-‘asri aw U-tagbayyuri

abwabal-aas).19

bi-

Hallaq

The standard legal doctrine, expressed in the furv\ is continually updated and reflective of

the many interpretations and opinions offered by the jurists, all concerning their respective

societies and its particular needs. The methodological tool exercised by the human agent in

this process, ijtibad, will now be examined, as well as the role of naskb in this effort.

2. Ijtib a d and Naskb

Usui al-Bqb is the mechanism

for extracting the law from the texts that contain it.

The process of extracting legal rules from the sources of the law depends upon a human

authority (the jurist) employing the methodological principles and procedures in his

instrumentation of ijtibad, which literally means “endeavor” or “self-exertion”, and in

Islamic legal methodology refers to the formulation of a legal rule based on evidence found

77 Wael B. Hallaq, “From Fatwas to Furu1-. Growth and Change in Islamic Substantive Law,” Islamic Law and Society 1 (February 1994), passim. For a detailed example of this process see idem, “Murder in Cordoba:

Ijtihad, Ifti’ and the Evolution of Substantive Law in Medieval Islam,” Acta Orientalia, 55 (1994): 55-83, wherein the author shows that ijtibad was practiced in later centuries via the fatwi, which then was incorporated in the furu' and subject to die acceptance or rejection by thejurists. ^Hallaq, Authority, Continuity and Change in Islamic Law, 214. 79Hallaq, “From Fatwis to FtmFT 53.

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29

directly in the sources.80 Hallaq presents a fitting metaphor by the Shafi‘ite jurist Ghazafi

(d. 505/1111):

In his Mustasfa, Ghazafi depicts the science o f legal theory in terms of a tree cultivated by man. The fruits of the tree represent the legal rules that constitute the purpose behind planting the tree; the stem and the branches are the textual materials that enable the tree to bear the fruits and to sustain them. But in order for the tree to be cultivated, and to bring it to bear fruits, human agency must play a role.81

The jurist is the cultivator who breathes life into the legal process and whose activity

sustains the relationship between human society and divinely inspired laws, giving meaning

to this exercise.

Weiss contends that “ijtibad roughly corresponds to what in Westernjurisprudence is

called ‘interpretation.’”82 One must be careful to distinguish between interpretation and

invention, for ijtibad is not a way by which the jurist creates legal rules after consulting the

texts, rather it is an attempt to formulate rules which God has already decreed and are

concealed in the sources, as Weiss affirms, “These rules, which constitute the ideal Law of

God, exist objectively above and beyond all juristic endeavor.”83 Moreover, since these

divine rules and principles are not immediately known and thus demand the hermeneutical

exercise of the jurist, the outcome can only promise probability since it is an opinion of the

jurist and what he thinks to be the law of God.84

The opinion o f the jurist may be

authoritative but it is not absolutely definitive, for as an opinion it is subject to error. This

is not to diminish the weight of the opinion of the jurist, for in a legal system that posits the

80 Weiss, “Interpretation in Islamic Law,” 200.

not on the basis of evidence (daHt) not found in the sources, but on the authority of otherjurists.” 81Hallaq, Islamic Legal Theories, 117. 82Weiss, “Interpretation in Islamic Law,” 200.

“ Ibid., 200.

84Ibid., 203.

This is in contrast to taqSd which is “the acceptance of a rule,

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30

possibility of error, that opinion is decisive.85 What is most important about the role of

ijtibad in the Islamic legal methodology is that it recognizes, in no uncertain terms, the

substantial and significant human element in the formation of law, concretely presented in

the furu1, that govern the affairs of the mundane world.

The concept of ijtibad, as nurtured within the methodological structure, ensures that

the jurists engage in an ongoing and never endingstruggle to discover the inexhaustible law

of God, those principles which remain suspended just above the certainty of the jurist.86

Moreover, since it is a device of hermeneutics, it necessarily is influenced by the experiences

of the jurists applying it. The jurists will approach the sources from assorted perspectives

that rely upon historical and social considerations, and then derive laws that fit the

circumstances.

For the ability of a principle to be eternal and valid for all time, it must be

able to provide the material for a number of different and varied

applications. The systemof

Islamic law invites what Hallaq caUs “an ijtibadic pluralism,” that is “an epistemological

element that was integral to the overall structure of the law.”87

While the methodology and law itself accommodates a great deal of interpretation

and change due to its derivative character and the nature of ijtibad,\ it does so within an

epistemological framework in which the difference between what is probable and what is

certain is of paramount importance.

And since the law is textually based, this epistemology

is articulated in a linguistic methodology that determines the nature of the texts, be they

85Ibid., 205.

86For the definitive statement regarding the continuity of the ijtihad and the negation of any closing of its gate see Hallaq, “Was the Gate of Ijtihad Closed?” and idem, “On the Origins of the Controversy about the Existence

of Mujtahids and the Gate of Ijtihad” Studia Islamica 63

87Hallaq, Authority, Continuity and Change, 194. The author further elaborates upon the manner in which this pluralism was controlled in order to produce consistency through the elaboration of an authoritative doctrine.

(1986): 129-141.

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ambiguous or unambiguous, general or particular.88 The presumption of the classicaljurists

is that the language in the Qur’an is straightforward and their usage is real (haqlqa) rather

than metaphorical.89 It follows that great attention is accorded to a literal interpretation of

the Qur’an and the Sunna.90 This literal interpretation is facilitated by clear and definite or

unambiguous texts (nass, pi. nusus). Their meaning is so clear that it produces certitude in

the mind o f the jurist, obviating the need of discovering a different meaning.

In other

words,

they

are self-sufficiently clear and the certainty engendered by their clarity

disqualifies them from reinterpretation.91 The realm of ijtihidic activity does not enter their

purview since these texts are seen to unambiguously state the legal rules pertaining to an

individual

legal case.

The

implications

of this

are immediate,

for the

traditional

methodology leaves the rulings of these texts alone as objective statements by God

concerning certain matters.

To engage in any human effort of interpretation disrupts the

certainty of those texts and the literal reading of them.

This literal approach to the texts taken by the jurists encounters some friction when

two or more texts offer differing rulings regarding a particular case. If the jurists are unable

to harmonize them due to the severity o f their contradiction, then the jurists must have

recourse to abrogation (naskb), determining which text repeals the other.92 It must be said

that naskb is a complementary tool of rnul al-Bqb and is not a central instrument for

deriving laws. It does, however, facilitate the legal process by removing the confusion and

consternation that arises with two competing texts. Jurists employing ijtibadmv&i be aware

“ For a detailed analysis of this aspect of usuIat-Dqh see chapter two ofHallaq, Islamic Legal Theories.

89Ibid., 42. 90Ibid., 207. 91Ibid., 117. 92 The Qur’anic support for abrogation is derived from verse 2:106: “Any message which We annul or consign to oblivion We replace with a better or a similar one.”

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32

of those texts that have been subject to aaskb, and are not allowed to produce a ruling from

an abrogated text.93

Naskb does

inimitability of the

not

abrogate the text

itself

for that

would encroach upon the

Qur’an

and would

imply that God

had revealed conflicting or

contradictory texts, leading to an admission that one was false and that God had revealed an

untruth, a proposition that is inconceivable.94 For most jurists then, it is the ruling behind

the text that is repealed and not the text itself.95 In this case, it must be determined that the

two rulings are genuinely in conflict and cannot coexist.96 Since the Qur’an is believed to be

of divine authorship, it follows that all verses are equal in importance and authority and

none better than others.

The legal rulings behind those verses, however, can bejudged to be

more appropriate to a particular context, resulting in one overruling the other. The criterion

for determining which verses are to abrogate others is chronological and thus later texts

abrogate earlier ones.97

Defining aaskb can be difficult, yet the classical jurists have developed two

prevailing meanings. The primary and more literal definition, accepted by the majority of

93Majid Khadduri, tr., IslamicJurisprudence: 5Aa/77’sA/sa/a (Baltimore: Johns Hopkins Press, 1961), 79. 94Hallaq, Islamic Legal Theories, 69. 95 It is noted, however, that there are three distinct ‘modes’ of naskb. naskb al-bukm wa-Ltilawa, which is the suppression of both the ruling and the wording of the Qur’an, naskb al-bukm duna-I-ulawa, which is the

suppression of the Qur’anic ruling without suppressing the text, and naskb aktilawa dma-Ubukm, which is die suppression of the verse while retaining the ruling. The first and last inodes are not dealt with in the body of this study as only a minority of jurists espouses their usage. See John Burton, The Sources o fIslamic Law: Islamic Theories o fAbrogation (Edinburgh: Edinburgh University Press, 1990). 96 Mohammad Hashim Kamali, Principles o fIslamic Jurisprudence (Cambridge: Islamic Texts Society, 1991),

161. A close examination of the two competing texts may indicate that there is no real conflict and that, instead,

a specific text actually qualifies and compliments a general text. In this instance, abrogation is not the most appropriate tool and thejurist should resort to the exercise of specification (takbsls). Hallaq, Islamic Legal Theories, 69. Kamali emphasizes the importance of chronology in this endeavor, affirming that “in naskh it is essential that die abrogator (al-nadkb) be later in time than the ruling which it seeks to abrogate. There can be no naskh if this order is reversed, nor even when the two rulings are known to have been simultaneous.” Sec Kamali, Principles o fIslamicJurisprudence, 161.

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the jurists.98 renders aaskb as ‘obliteration’ (al-raT wa al-izalab). The Shafi‘ite jurist Fakhr

al-Din al-Razi (d. 606/1209) articulates this position by referring to the expression, nasakhat

al-rib al-atbar ‘the wind obliterated the traces’ and, according to John Burton, al-Razi

concludes that “the traces quite cease to exist (‘d in), just as in the expression aasakbat al-

sbams al-zill[the sun eliminated the shade], the shade quite ceases to exist and it does not

recur in some other location to give rise to any suggestion that it had migrated thither

(intiqat)

In

the two illustrations of secular usage, the wind did not take the place of the

traces, nor did the sun take the place of the shade.”99

Following this definition, the

application of naskb upon a text causes its ruling to be totally removed and legally

expunged.

The other commonly applied definition of naskb is that o f ‘replacement’. In order

to circumvent the danger of possibly engaging in acknowledging the mutability ofthe divine

will, al-Nahhas (d. 338/9S0) specifically defines naskb as “referring to something that had

previously been permitted, but has now become forbidden, or vice versa, due to God’s desire

to improve the situation o f His worshippers.”100 In this sense, abrogation does not require a

change in God’s will but elucidates His recognition of changing circumstances that

warrant

new and better instructions, entailing not the cancellation of a rule in the Shari‘a but the

discontinuance of the obligation that is dependent upon it.101 The act of replacing one

98Kamali, Principles o fIslamicJurisprudence, 149. 99 Burton, “The Exegesis of Q. 2: 106 and the Muslim Theories of Naskh: M iNaasakb Min Aya Aq Nansabi N a’ti B i Kbauin M inbi Aw M itbU bi”Bulletin o fthe School o fOriental and African Studies 48 (1985): 455. The author relates that to emphasize and legitimize his rendering of naskh as meaning ‘nullification' (ibtil,), al- Razi employs the Qur’anic verse 22:52, yansakb allib m iyu iq l al-sbaitm ‘God eradicated (azila) and nullifies (yubtil) what the Devil insinuates', whereby he “insists that the stem nskh refers solely to ib til‘nullification’.” 100David S. Powers, “The Exegetical Genre nisikb al-Qur’m wa-mansukbub,” in Approaches to the History o f the Interpretation o fthe Qur'an, ed. Andrew Rippin (Oxford: Clarendon Press, 1988), 124. 101 Ibid., 127. A variation upon this type of abrogation is referred to as badi’ naskb, or the abandonment of something that had been firmly determined. Al-Nahhas qualifies it as “the abrogation of a prohibition or command that God had meant to apply only during the lifetime of a certain prophet, or during a certain period of

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34

com m and with another implies that the occurrence of abrogation must be accompanied by a

different and better verse.1(0 Shafil states that if the Qur’an abrogates an imposition, it is

always followed by another revealed in its place:

“Thus God has informed men that the

abrogation or the deferment of any communication cannot be made valid save by another

[Qur’anic] communication.” 103

The great scholar Tabari (d. 310/922) also refers to the meaning o f aaskb as

replacement and infuses a progressive development and gradualism into its definition.104 He

emphasizes the concept o f the transfer o f an

obligation imposed upon the Faithful, rather

than the complete eradication o f the previous obligation:

The term aaskb is derived from nasakba al-kitab - its transfer from one exemplar to another, different exemplar (auskba). The aaskb of a ruling means its transfer (tabwil) from one legal category to another. God moves the ruling from category to category by transferring (aaqt) what He had said about the

ruling in an earlier utterance into a later, different utterance, touching the same

newly-revealed ruling by which the ruling o f the earlier

topic and ruling

verse has been replaced (mubdal) and to which the obligation imposed upon

men is now transferred (aaql) is the n isjkb .106

The

time, knowing from (be outset that this hukm paw or ruling] would remain in force until such a time as

This type of naskh indicates that some jurists

perceive of the rulings by God as particular to temporal circumstances of a certain age and time and that they may not be appropriate forever. Thus, later texts with rulings that contradict earlier ones address an audience later in time in a different context in which the former ruling may not be suitable, but do not explicitly and unequivocally denounce the earlier ruling. 102 Burton, “Exegesis of Q. 2: 106,” 454. Al-Qurtubi (d. 671/1272) advances the meaning of naskh as ‘supersession’ (tabdlf) by quoting the exegete and Arab philologist Ibn al-Faris’s (d. 395/1004) definition:

“(T]he repeal of a command hitherto acted upon; one replaces it with a second command. For example, a Qur'an verse revealed to convey a specific regulation is naskhed - Le. supplanted and replaced by another command.” 103 Khadduri, Islamic Jurisprudence: Sb iG l's Risila, 125. Kamali remarks that Shall‘l does not regard naskh as a form of annulment UIgba) but rather “a suspension or termination of one ruling by another. Naskh in this sense is a form of explanation (bayan) which does not entail a total rejection of the original ruling. Naskh is explanatory in the sense that it tells us of the termination of a particular ruling, the manner and the time of its termination, whether die whole of a ruling or only a part of it is terminated, and of course, the new ruling which is to take its place.” See Kamali, Principles o fIslamic Jurisprudence, 152. 104 An example of such progression involves the gradual prohibition of wine, whereby the Qur’an offers a number of verses that eventually lead to its total prohibition, rather than an initial, wholesale prohibition. 105Burton, “Exegesis of Q. 2. 106,” 458-459.

circumstances changed, and a new hukm would be required.”

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35

Tabari’s statement indicates that God does not eliminate the former ruling but transfers

what He had said about that ruling into a later, different utterance touching upon the same

issue.

The second ruling alters or replaces the first ruling through a divine transfer of

obligation.106

While aaskb does not challenge the text of the Qur’an, it exemplifies a concern of

the jurists with texts that seemingly offer contradictory rulings, a problem resulting from a

literal reading of the Qur’an.

As we have seen, a great deal of juristic disagreement

surrounds the meaning and usage of naskb, ranging from the absolute dismissal of a ruling to

the more lenient and less finite position that recognizes the prior ruling as having been

replaced by a later and seemingly better obligation.

This latter position proposes that a

ruling that was suitable at one time in a certain context may not be appropriate during a

different time.

Furthermore, in the classical understanding of the law, what is better or

worse, and thus legally applicable, is confirmed through chronology, which provides a

systematic and logical regulation of perceived inconsistencies.

The classical methodology of the Islamic legal system sustains an active and

effective

apparatus

readily

responding to

social variations, encouraging change and

modification within the body of its substantive laws. However, the rapport between law and

society ultimately is tempered by the establishment of authoritative doctrines,107 as well as

106 Ibid., 460, 462. Tabari interprets verse 2: 106 as, “Whatever verse We alter (taixGI) having revealed it to

you, We suppress {nubtify its ruling while We retain its wording in the musbaC or whatever verse We defer (jw 'akbkbirba, autji 'hisc.endorse), We do not alter (tagbyii) nor suppress (outfit) it, We shall bring one better than it, or similar to it” He then explains its meaning as, “The ruling may be better for you in this life, on account of its being easier to perform, where a previous obligation has been withdrawn, relieving you of the more difficult performance. For example, it had once been obligatory for the Muslims to engage in lengthy nocturnal prayers (Q. 73: 1). They were relieved of that burden (Q. 73: 20). That is an instance in which the nasikh was better for them in this life.”

107 Hallaq, Islamic Legal T h e o rie s 208-209. The author describes the necessity of such a normative

mechanism for the consistent application of legal doctrine saying, “The most efficient method developed and effectively harnessed in regulating the profession from within was a self-imposed criterion of what type of legal

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those literal and definite texts in the Qur’an that are largely unaffected by societal

movements and through their certainty, contribute both to stability and a degree of

conservatism within the law.

An examination o f these areas pertaining to women, non-

Muslims, and criminal justice elucidates their significance, scope, and impact within the

classical Shari’a as well as their functioning capability and practicality within modem

society and their level of cohesion with international human rights laws.

doctrine was deemed admissible and what was not Each school of law came to recognize a set of canonical works produced by, or attributed to, its founding fathers. With the passage of time, and with the cumulative

evolution of legal doctrine, some works by later authors acquired a canonical status, though in theory they were

never equal in prestige to those of the founding lathers

crucial for the efficiency, to say nothing of the survival, of the pre-modem legal structure. Simply put, without it, no law coukl be properly administered."

Preserving this system of control was positively

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Chapter Two

Areas of Contention

An-Na‘im proceeds from the premise that the Muslim peoples of the world are

entitled to exercise their right to self-determination which includes the application of

Islamic law, if they so desire, “provided that they do not violate the legitimate right of self-

determination

of

individuals

and

groups

both

within

and

outside

the

Muslim

communities.”108 He then declares that the classical Shari‘a violates this condition which

leads him to reject its implementation in modem society by proclaiming that it cannot

coexist with international human rights laws because it promotes discriminatory109 legal

edicts and attitudes.110

Rights states:

For example, Article 7 of the Universal Declaration of Human

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Any form of discrimination that threatens the legal equality o f the citizens of a state is

clearly denounced by this and other international documents.111

108Abdullahi an-Na‘im, Toward an Islamic Reformation: CivilLiberties, Human Rights and International Law (Syracuse: Syracuse University Press, 1990), 1. 109 Ibid., 166. An-Na‘im asserts, “The principle of non-discrimination does not preclude all differential treatment on grounds such as race, gender or religion, hi this respect, I would agree with the proposition that one has to judge the nature of differential treatment in light of its purpose. ‘If the purpose or effect is to nullify or impair the enjoyment of human rights on an equal footing, die practice is discriminatory.’ What is being affirmed here is that discrimination on grounds such as gender and religion violates human rights.” The author uses the definition of discrimination found in Vernon Van Dyke, Human Rights, Ethnicity and Discrimination (Westport: Greenwood Press, 1985), 194. 110An-Na‘im, Toward an Islamic Reformation, 8-9. 111 Further emphasis is afforded by the Charter of the United Nations in Article 55, Section C, which commits the United Nations to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”

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An-Na‘im asserts that while the classical Sharia may have been justified by its pre­

modem historical context, it is no longer justified in or sustained by

the context of present-

day society.112 Many difficulties have been generated by the reality of the nation-state and

the mentality that it has engendered.

According to an-Na‘im, “If the nation-state is to

conform to the standards of constitutionalism, as I believe it should, it must guarantee equal

rights of citizenship for its entire population, such as equality before the law and equal

participation in the government of their own country.”113

The laws he regards as objectionable in the corpus of the classical Shari‘a are not

confined to Sqh but extend to clear statements in the Qur’an. The areas of contention that

are the focus of this chapter are the status of women, the position of non-Muslims, and the

role and character o f criminal justice within an Islamic state.

An examination of these

sections of the classical Shari‘a elucidates his criticisms and measures the validity of his

indictments against the suitability of Islamic law in modem society.114 Since an-Na'im

accepts and recognizes the nation-state as a reality of modem domestic and international

organization and the body of international law produced by the United Nations as the most

adequate manifestation o f supranational governance, a comparison of the traditional Shari'a

and the modem human rights laws as articulated in the Universal Declaration of Human

112An-Na'im, Toward an Islamic Reformation, 170. m Ibid., 7. 114 The counter-argument, articulated by Bassiouni, claims that the two legal systems are compatible. He says “nothing in Islamic international law precludes the applicability of these international obligations [of the UN] to the domestic legal system o f an Islamic state,” but he completes his sentence with the condition, “provided these obligations are not contrary to die Shari'a.” He further conveys tension between the two and his ambivalence with another condition, namely “nothing in the spirit of Shari'a precludes the recognition of these rights. It is in their application that Shari'a law would differ from other legal systems (emphasis mine).” This statement, however, draws the line between the moral (spirit) and legal (application) dimensions of the law. See Bassiouni, “Sources of Islamic Law, and the Protection of Human Rights in the Islamic Criminal Justice System,” in The Islamic CriminalJustice System, ed. M. CherifBassiouni (London: Oceana Publications, Inc., 1982), 41.

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Rights (UDHR)11S will illustrate the tensions and conflicts between the two legal entities

that he argues must be addressed and resolved through the radical reform of traditional

Islamic law.116

A. Women

An-Na‘imdoes not denounce the whole of the Shan‘a as having a negative impact on

the status and rights of women.

He forthrightly asserts that in the early years of its

promulgation, it legally guaranteed women many rights and advantages that other legal

systems achieved only recently.117 An-Na‘im offers a qualifying remark and states, “These

theoretical rights under Shari'a, however, may not be realized in practice.

Other Shari‘a

rules may hamper or inhibit women from exercising these rights in some societies.” 118 He

finds that these initial rights and laws do not address the modem role of women in society

and while they may have been progressive in their time, they now obstruct further

development and advancement.

115 I will draw primarily from this document but I will also lode at other international human rights treaties formulated by the United Nations. 116Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder Westview Press. 1991), 83. The author contends there are two aspects in the Islamic tradition, “one egalitarian and the other hierarcha!,’' and “much depends on which aspect of the Islamic heritage, the hierarchal or the egalitarian, is taken to be more truly representative of Islamic values.” In Islam, the best person is the most pious person, yet there are explicit legal verses that challenge such moral equality. See Rahman, Major Themes o f the Qur’an (Minneapolis:

Bibiotheca Islamica, 1994), Chapters Two and Three. It must be recalled that an-Na’im distinguishes between criticizing the traditionally formulated Islamic law and Islam itself. Principles of equality and a fundamentally egalitarian philosophy are inherent to Islam and present in the Qur’an, but he contends these are found in the Meccan verses. The Medinan verses, from which the classical laws are derived, contain discriminatory legal rulings that are no longer applicable, and through his methodology, are to be legally discarded (see Chapter Three). It is not sufficient to proclaim that equality is guaranteed on a religious and inherently human level while allowing for temporal, societal, and legal inequalities to exist, affecting daily life. Thus, this chapter is concerned with the controversial body of legislation of the traditional Shari’a that «n-Na‘im claims promotes discrimination. 117 An-Na’im, “Human Rights in the Muslim World,” 39. For example, the Shari’a guaranteed women a legal personhood, allowing diem to own and dispose of property on equal footing with men, minimum rights in divorce, and inheritance rights.

1,8 Ibid., 40.

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The four areas concerning the status o f women that will be addressed are testimony,

marriage and divoice, inheritance, and the impact of qawitna, which can be translated as

guardianship, maintenance or authority. The first three subjects provide explicit Qur’anic

legislation, while the last concept offers not an explicit ruling, but, according to an-Na‘im,

provides the classical jurists with the basic material from which a variety of discriminatory

laws, practices, and attitudes result. The Qur’anic verse 4:34 provides for the principle of

qawarns and reads: “Men have qawama (guardianship and authority) over women because

they (men) spend their property in supporting them (women).”119 According to an-NaMm,

the classical jurists take this verse to sanction the exercise of authority by men over women

but never women over men, because “men as a group are the guardians of and superior to

women as a group, and the men of a particular family are the guardians of and superior to

the women o f that family.” 120 The notion that women cannot hold authority over men is

made legally binding by disqualifying women from holding general public office,121which

extends to their disqualification from holding any judicial office whatsoever, excepting the

Hanafi madhhab which allows women to be judges in civil cases only.122 Moreover, an-

119 An-Na‘im. Toward an Islamic Reformation, SS. The translation of this verse is controversial and the one quoted above is offered by an-Na‘im. In Muhammad Asad, The Message o f the Qur’an: Translated and Explained (Lahore: Maktaba Jawahar ul uloom Publishers and Distributors, Beginning of the 15thCentury of the Hijra), 109, the author translates 4:34 as: “Men shall take foil care of women with the bounties which God has bestowed more abundantly on the former than on the latter, and with what they may spend out of their possessions” Rahman gives yet another translation of the verse as: “Men are in charge of women because God has given some humans excellence over others and because men have the liability of expenditure (on women).” Rahman, Major Themes, 49. While these translations may differ, they all distinguish a division of roles premised upon gender that confers a station ofmaintenance ofmen upon and over('ala) women. An-Na'im, “Human Rights in the Muslim World,” 37. The classical reference that an-Na'im cites is the medieval ‘afim, commentator, and historian Ibn Kathir (d. 774/1373). 121Ibid., 37-38 (nl05). An-Na'im cites the Malilritejurist and commentator al-Qurtubi. 122An-Na'im, Toward an Islamic Reformation, 88. The Ilanafi position reasons that since women are accepted as competent witnesses in civil and commercial transactions (albeit with limitations), they may act as judges in similar cases.

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41

Na‘im asserts that this verse enforces notions of women’s inferiority that are ingrained in

the attitudes and mentality of both men and women from early childhood.123

An investigation into the verse and its pertinence to the traditional society it

addresses offers insight into the verse’s legal function and illuminates the nature of the

authority the verse lends to men, as well as assesses it’s relevancy in today’s society. The

historical economic disparity between men and women may have been taken for granted at

the time, but it is this financial relationship that dictates the parameters of authority given

to men. This authority, however, is conditional and this conditional state is reflected in a

number of ways.

As Rahman states, regarding verse 4:34, “This shows that men have a

functional, not inherent, superiority over women, for they are charged with earning money

and spending it on women.”124 The privilege of authority is granted so long as men are

financially responsible for women.

Reciprocally, a woman is charged with obedience in

return for financial maintenance {aafaqa), the husband necessarily providing adequate

material sustenance as loag as the woman is obedient.125

Social harmony, which is of

123An-Ni'im. “Human Rights in the Muslim World,” 39. This posture can be corroborated with the same verse, 4:34, whereby the verbfaddala (preferred) refers to the preference of men over women (“Men are [qawwamuaa

”), as well as

verse 2228 which concerns divorce and ends: “but, in accordance with justice, the rights of the wives [with regard to their husbands] are equal to the [husbands’] rights with regard to them, although men have precedence over them [in this respect].” The conservative rendering of these verses legitimizing the exemption of women from holding public positions of authority can be found in the work of Suftanhussein Tabandeh. According to him women are deficient in the intelligence needed for tackling big and important matters; they are prone to making mistakes and lack long-term perspective. For this reason, they must be excluded from politics. Sultanhnssein Tabandeh, A Muslim Commentary on the UniversalDeclaration o fHuman Rights (London: F.T. Goulding and Co., 1970), 31. Likewise, Abu’l A'la Mawdudi holds that women lack firmness, authority, strong willpower, and the ability to render unbiased, objectivejudgment Abu’l A’la Mawdudi, Purdah and the Status o f Women in Islam (Lahore: Islamic Publications, 1979), 120. For a detailed discussion concerning these verses, see Amina Wadud, Qur'an and Woman: Rereading the Sacred Textfrom a Woman’s Perspective (Oxford:

Oxford University Press, 1999), 62-90.

124Rahman, Major Themes, 49. 123AsafFyzee, Outlines o fMuhammadan Law ( Oxford: Oxford University Press, 1974), 212; Muhammad Abu Zahra, “Family Law,” in Law in the Middle East: Origins and Development o f Islamic Law, eds. Majid Khadduri and Herbert Liebesny, (Washington, D.C.: Middle East Institute, 19S3), 143; Dawoud S. El Alami. The Marriage Contract in Islamic Law (London: Graham & Trotman, 1992), 114-118. El Alami provides two cases in which maintenance may be forfeited or suspended: disobedience (nushui), or “withdrawing of

Wi) women, [on the basis] of what Allah has [preferred] (faddala) some of them over others

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paramount concern for the jurists, is thus promoted by establishing gender harmony, which

is realized through the maintenance/obedience dynamic within marriage.

Judith Tucker

remarks, “What was owed and what could be expected structured much of this discussion as

the material aspects o f the marriage arrangement were implemented.”126 The objective of

such an arrangement between man and wife is to guard against discord in the institution of

marriage that could then lead to greater social disarray, since marriage is seen as the

fundamental and basic unit of social organization and the recipe for social harmony.127 In

other words, bestowing authority upon the male in the marriage union creates a desirable

state within that relationship, an accepted equilibrium between the roles and duties of men

and women that directly contributes to a cohesive and smoothly running society for all its

members.128

The

legal edifice constructed by

the classical jurists that regulated the affairs of men

and women was responsive to the needs of a society functioning according to that scheme of

gender differentiation within the relationship.

As Tucker observes, “The idea that such net

differentiation ran the risk of fostering hostilities, of producing social rifts if not outright

obedience to the authority of the husband” as long as this authority is “in no way offensive to God” or apostasy of the wife. The Hanifite jurist Al-Quduri (d. 428/1037) says, “Support has to be given by the husband to his wife, be she a Muslim or an unbeliever, provided she submits herself to him in his house.” Mukhiasar, 34-35, cited by Herbert J. Liebesny, The Law o f the Near and Middle East (Albany: State University of New York Press, 1975), 132. 126Judith Tucker, In the House ofthe Law (Berkeley: University of California Press, 1998), 52. 127Ibid., 40. 128 Ibid., 66. Tucker illustrates the nature of the marital relationship envisioned by the classical jurists, saying, “The rights and obligations of a married couple heightened and ordered gender difference. A man was to provide; a woman was to consume. A man was to decide; a woman was to obey. The task of the legal thinker thus was not only to distinguish the male from the female, but also to elaborate on distinctly gendered rights, many of which privileged men but some of which worked to temper male dominance. As part of their responsibility for the welfare of the community, the muftis were pledged to harmonizing gender interests as much as possible and reducing what they termed abuses.” Following this line of thought, Amina Wadud equates the degree of superiority of the man with the importance of child-bearing for the woman, hi order to balance society and establish an equilibrium between die functions of men and women, die heavy responsibility of child­ bearing must be countered by an equally significant responsibility for men, and this is manifest in qiwimth, “seeing to it that the woman is not burdened with additional responsibilities which jeopardize that primary demanding responsibility dial only she can fulfill” See Wadud, Qur’an and Woman, 73.

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43

conflicts along gender lines, lurked between the lines of the legal discourse.”129

The

question is whether these social rifts that may not have been problematic earlier because of

both the nature of society as well as the adept legal maneuvering of the classical jurists are

now exploding due to changes incurred by modem circumstances. Do the laws that directed

the interaction between men and women that previously dissuaded social discord now

undermine stability?

Bernard Weiss details the necessary conditions for the cohesive

application of Islamic law:

Only the patriarchal extended family can function with optimal effectiveness as the cradle and safe haven of human life. Any restructuring of the family along other lines can be said most assuredly to be contrary to the spirit of Islamic law. Family life requires a hierarchy in which females and children are under the authority o f males, although males must exercise that authority responsibly and with kindness. Males are endowed with the mental and physical qualities that suit them for this role. The same qualities that make for success in earning a livelihood in the world outside the family equip males to provide leadership and direction within the family.130

This social vision animated the classical jurists but is now breaking down.

The expanded

integration and assimilation of women into the economic

sector131 as well as their

prominence in political and public affairs (and a subsequent accommodation by society of

their presence in these areas) have bluiTed clearly defined roles for men and women.

The

imprint of secularism upon Muslim communities, according to an-Na‘im, has increased

women's

access to

public

life and provided opportunities

for higher education

and

129Ibid., 66. 130Bernard Weiss, The Spirit o fIslamic Law (Afheus: The University of Georgia Press, 1998), 144*46. 131 S.D. Goitein, in his examination of Cairene society in the High Middle Ages (tenth through thirteenth centuries) through the Geniza documents, concludes that the extent of women’s participation in the economic

life in that traditional society was minimal since her share in it was restricted. The author explains that “she was not in the mainstream of the economy - the large-scale production and exchange of goods. Moreover, a married woman, so far as she did not possess means outside the common pool of the nuclear family, depended entirety on her husband, and, in his absence, on his male relatives, even her own sons, or his business partners or

friends.” See SX>. Goitein, A Mediterranean Society:

The Jewish Communities o f the Arab World as Portrayed

in the Documents o f the Cairo Geniza, Vol. Ill: The Family (Berkeley: University of California Press, 1978),

331-332.

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employment.132 The scope of male guardianship has diminished though the reduction o f

physical protection needed by women from individual men, this responsibility having been

appropriated by the state.133 The physical dominance of men is no longer relevant where the

rule of law prevails over physical strength and all criminal activity (that threatens the

family) is punished directly by the state. These circumstances have largely contributed to

the realization and reality of changes to the patriarchal organization of the society and the

family. An-Na‘im argues that the legal authority given to males is no longer applicable and

avers:

Because this (the security and economic dependence of women over men) is no longer the case in a society in which both men and women are dependent for their security on the rule of law and women are, as a general rule, more capable of being economically independent, the rational o f qawim a has been repudiated in practice.

Thus, he argues that the conditional quality of the verse, charging men with financial

responsibility in return for women’s obedience, must be reassessed through a re-evaluation

of the practices of men and women today. If in a relationship, the conference of authority

upon one partner and charge of obedience upon the other is no longer considered valid or

necessary for the preservation of social balance (a result o f a reconfiguration of roles,

responsibilities, and the meanings attached to them) and no longer accepted by one or both

132 An-Ni‘im, Toward an Islamic Reformation, 8. Rahman reasons, “if a woman becomes economically sufficient, say by inheritance or earning wealth, and contributes to the household expenditure, the male’s superiority would to that extent be reduced, since as a human, he has no superiority over his wife.” See Rahman, Major Themes, 49. 133 The charge of protection upon the male is reflected in the criminal justice system of the classical Shari’a as well (another indication of the highly integrated and balanced nature of Muslim society and law) through the law of penal retaliation (qisis). When fee security of fee family is endangered (by a murderer, for example) it is not fee state feat initiates public prosecution but, under the rubric of lex talionis, fee male agnates ( 'iqila) decide how to deal wife such an offence in their capacity as fee guardians of fee family. See Weiss, Spirit o f Islamic Law, 152-54. 134An-Na’im, Toward an Islamic Reformation, 99-100.

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45

parties involved, it can be seen as creating a negative asymmetry that impinges upon the

equality of the two.135

In respect to international law, legal authority vested in men which allows them certain

public privileges over women contradicts Article 21, Sections 1 and 2 o f the UDHR:

(1) Everyone has the right to take part in the government o f his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country.136

These statements entail the recognition of the equal participation o f men and women in the

public domain.

The classical position of the Shari'a that legally restricts the public

participation ofwomen was sustained by historical, sociological, and politicaljustifications,

which an-Na'im dismisses as no longer defensible today.137 He draws upon international

legal documents, such as the one cited above, as well as the altered relationship between

men and women (influenced by economic, social, and political movements), to support his

position that the classical rulings supported by qawim a are discriminatory and inimical to

the achievement of equality between the sexes.

The nature of a woman’s testimony offers another complication for an-Na'im. In the

classical Shari'a women are not regarded as fully competent witnesses, as Muslim men are.

133 Tucker, House o fthe Law, 70.

In discussing the classical discourse on marriage, Tucker remarks that “men

and women came to marriage as distinct people with asymmetrical rights and obligations reflecting innate biological difference. On such difference lay the foundation for a stable and harmonious relationship, one that was central to the overall good of the Muslim community. The jurists, in their recognition and elaboration of

gender difference, did not, however, countenance practices that translated this difference into unbridled male domination. The legal discourse existed, in large put, to regulate gender relations, to ensure that both males and females understood the proper parameters of their social roles, and to prevent abuses in gender relations, most of which occurred at die women’s expense.” Asymmetrical rights and obligations were not contestable as long as a division of roles and a concurrent understanding could be maintained. Contemporary society has dislodged the clarity between gender roles, jeopardizing the effectiveness of the traditional understanding of die parameters of these roles and the law that comfortably accommodates it. 136 In Article 7b of die Convention on the Elimination of AD Forms of Discrimination Against Women (CEDAW) it ensures that women are able “to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.” This also found in Article 25a and b of the International Covenant on Civil and Political Rights (ICCPR).

137An-Na‘im, Toward an

Islamic Reformation, 88.

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which restricts their testimony in a number of ways.

In criminal cases testimony from a

woman is inadmissible.138 Muhammad Iqbal Siddiqi explains this prohibition:

Al-Zuhri says, “During

Allah be upon him) and his two immediate successors, it was an invariable rule to exclude the evidence of women in all cases inducing punishment or retaliation,” and also because the testimony of women involves a degree of doubt, as it is merely a substitute for evidence, being accepted only where the testimony of men cannot be had. It is, therefore, not admitted in any matter liable to drop from the evidence of doubt.139

the time o f the Holy Prophet (peace and blessings of

While the exclusion of women from testifying in criminal punishment is based upon Hadith.

it is closely related to and affected by the explicit Qur’anic provision in verse 2:282

regarding testimony that states:

And call upon two of your men to act as witnesses; and if two men are not available, then a man and two women from among such as are acceptable to you as witnesses, so that if one of them should make a mistake, the other could remind her. And the witnesses must not refuse [to give evidence] whenever they are called upon.

This verse explicitly states that two women witnesses (where otherwise there would be one

man)140 are acceptable and necessary.

testimony

as acceptable in all cases

It is the jurists, then, that regard a woman’s

excepting those of criminal punishment.

The

explanation for this exclusion is due to the severity of the punishments and stringent

138 An-Na'im, Toward an Islamic Reformation, 90; Matthew Lippman, Sean McConviUe and Mofdechai

1988), 61.

Furthermore, the Malikite jurist al-Qayrawanl (d. 386/996) says, “The testimony of women is not admitted except in property cases.” Risile, 260-265, cited by Liebesny, The Law o f the Near and Middle East, 247. However, the opinion held by the ?ahirite jurist Ibn Hazm (d. 456/1062) contends that women (two women for each man) can testify in cases of adultery (and presumably all other criminal p unishment cases due to the seriousness with which adultery is perceived). See Ma'amoun M. Salama, “General Principles of Criminal Evidence in Islamic Jurisprudence,” in The Islamic Criminal Justice System, ed. M. Cherif Bassiouni (London:

Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York: Pracgcr,

Oceana Publication, Inc., 1982), 118; and also Safia M. Safwat, “Offences and Penalties in Islamic Law,”

Islamic Quarterly 26 (1982): 157, where the author presents a Sh?ah opinion similarto Ibn Itaon’s. 139Muhammad Iqbal Siddiqi, The PenalLaw o fIslam (Lahore: Kazi Publications, 1979), 44^5. 140Lippman, Islamic Criminal Law, 61. Al-Qayrawam states, “A hundred of them count for as many as two of them. Two women equal one man. The judge can thus decide on the basis of the testimony of one man and two ”

women or of two women and the oath of the plaintiff in cases where this method of proof is admitted 260-265, cited by Liebesny, Law in the Near and Middle East, 247.

Risila,

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standards of proof.141

Generally, however, the competence of women in all matters of

testimony is mitigated by the Qur’anic injunction that establishes a legal disproportion

between men and women.

Modernist explanations have been proffered for this law and revolve around its

function as pertaining to financial issues only. Muhammad Asad, in his commentary of the

Qur’an, insists that the stipulation in no way implies a deficiency in a woman’s moral or

intellectual capabilities, but, “as a rule, women are less familiar with business procedures

than men and, therefore, more liable to commit mistakes in this respect.”142Rahman places

this statement in a historical context, whereby women in pre-modem societies were not

accustomed to financial transactions, but upon becoming conversant in such matters, “with

which there is nothing wrong but which is for the betterment o f society,” the rationale for

the law would be rendered void, invalidating the law, thus permitting their evidence to be

equal to that of men.143 Now, however, the increasing participation ofwomen outside ofthe

home and their assimilation into previously male-dominated domains affords them with an

141 Siddiqi, The Penal Law o fIslam, 45. Siddiqi stales that “the Imam Shaft*! has said that the evidence of one man and two women cannot be admitted, excepting in cases that relate to property, or its dependencies, such as hire, bad, and so forth; because the evidence of woman is originally inadmissible on account of their weakness of understanding, their want of memory and incapacity of governing, whence it is that their evidence is not admitted in criminal cases.” 142Muhammad Asad. The Message o fthe Q ur’an, 63 (n273). Khadduri, S h ifiT s Rjssla, 246-247. The other side of this argument is that in cases pertaining to matters that deal with women’s issues (and presumably women are more familiar with these concerns), the testimony of women is more valid than that of men’s. When Shaft*! was asked how many witnesses would he require in “cases relating to vices affecting women?” He replied, “One woman.” However, what has been said of women above may be said about men, in that they participate more freely in provinces that were formerly relegated to females only. 43Rahman. Major Themes ofthe Qur'an, 48-49. However, the first wife of the Prophet, Khadija, was known to have managed her own business and women were actors in business matters during that time, albeit on a lesser scale. Amina Wadud offers yet another modernist explanation for this ruling, whereby she maintains that the two women do not equal one man in terms of testimony, but that they each have distinct functions, one is the witness while die other acts as a corroborator. Furthermore, she asserts that in traditional society women were easily coerced and forced to disclaim their testimony, but the presence of two women, supporting each other formed a united front against such corruption and maintained die integrity of that testimony. Wadud, Qur'an and Woman, 85-86.

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equal familiarity and knowledge with men in all matters (not only financial), making two

female witnesses superfluous, and according to an-Na‘im, discriminatory.144

An-Naim holds that the legal right for Muslim men to many non-Muslim women

(but only kitabiyya women, or those who prescribe to a faith with a scripture) accompanied

by the legal prohibition against Muslim women marrying non-Muslim men presents an

inequality between Muslim men and women in the area of marriage.145 No explicit textual

reference prohibits such marriages, rather the proscription is derived from the argument that

verse 4:34 (discussed above) entitles the husband to authority over his wife but since a non-

Muslim cannot exercise authority over a Muslim, this conflict is resolved through the legal

restriction placed upon Muslim women.146 Ann Mayer articulates this justification:

The assumption is that, just as Muslims are placed above non-Muslims, so men are placed above women, meaning that wives are necessarily subordinated to

their husbands. Therefore, the Muslim man who marries a female dbim m idoes not infringe the hierarchy of status, since by virtue of her sex the non-Muslim wife will be subordinate to her husband, who as a Muslim and a male ranks

above her on two counts.

In contrast, the Muslim woman who marries a

dbim m iviolates the rules of status, since as a wife she has lower status than

144 Moreover CEDAW states in Article IS (2), “States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.” 145An-Na‘im, Toward an Islamic Reformation, 176; Abu Zahra, “Family Law,” 136; El Alami, The Marriage Contract, 41-42. El Alami qualifies die permission for a Muslim man to many a kitabiyya by citing the Hanifis, the MaliIds, and the Shafi'is, all of whom validate the contract but consider it reprehensible and inadvisable, while the HanbaGs regard it as permissible. 146This is established by corroborating verse 4:34 with verse 4:141 that states: “God will never make a way for infidels to exercise lordship over believers,” negating the exercise of authority by non-Muslims over Muslims Another explanation for this ruling comes from verse 2221 which instructs: “And do not many women who ascribe divinity to aught beside God ere they attain to [true] belief: for any believing bondwoman [of God] is certainly better that a woman who ascribes divinity to aught beside God, even though she please you greatly. And do no give your women in marriage to men who ascribe divinity to aught beside God ere they attain to [true] belief: for any believing bondman [of God] is certainly better than a man who ascribes divinity to aught beside God, even though he please you greatly ” This verse prohibits both men and women from marrying non- Muslims. But verse 5:5, which allows: “And [lawful to you are], in wedlock, women from among those who believe [in this divine writ], and, in wedlock, women from among those who have been vouchsafe revelation ”

before your time

The specificity of

this verse does not, however, extend to Muslim women and they must continue to adhere to the more general Qur’anic ruling in this matter.

specifies the other verse, allowing men to many non-Muslim women.

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the man to whom she is married even though by virtue ofher adherence to the Islamic religion she should rank above him.147

Furthermore, this ensures that the Muslim faith of the woman is at all times respected and

never denigrated by a husband who may not share her belief148and that the children will be

raised in the Islamic faith.

However, if this authority and power of the husband within the marital relationship

no longer exists, and women ate regarded as equal partners with equal authority, then the

rationale no longer is tenable and the law no longer necessary, as an-Na‘im argues should be

the situation in a modem society. Moreover, the UDHR states in Article 16, Section 1:

Men and women o f full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.

Human rights laws do not permit obstacles to marriage owing to religious differences.

The permission of polygamy for the Muslim male is another dimension of family law

that

an-Na‘im contends

reinforces discrimination against women by allowing men a

privilege denied to women, which further disrupts an equal balance between men and

women.

The classical law permitting polygamy is explicitly stated in verse 4:3:

And if you have reason to fear that you might not act equitably towards orphans, then many from among [other] women such as are lawful to you - [even] two, or three, or four; but if you have reason to fear that you might not

147Mayer, Islam an d Human Rights, 139. 148Muhammad Asad, Message o f the Qur’an, 142 (nl5). In his commentary, Asad contends that since Islam enjoins reverence of all the prophets, while die other faiths reject some of them, “a non-Muslim woman who

marries a Muslim can be sure that - despite all doctrinal differences - the prophets of her faith will be mentioned with the utmost respect in her Muslim environment, a Muslim woman who would many a non-Muslim would always be exposed to an abuse of him whom she regards as God’s Apostle.” Beyond doctrinal factors, marrying

a man of the same religion could ensure respect for her family, way of life, and ideas due to a common and

shared rcligio-cultural experience. In other words, the family knows and understands whom their daughter is

marrying and he is familiar and comfortable with the ways of his new wife because they are his own. The

importance of promoting marital harmony through commonality is also extended to areas outside of religion. Tucker explains that the muftis “were very conscious of the rules ofkafa 'a, the legal concept of the suitability of the match in terms of lineage, legal status, social class, and moral standards, and they chose to enforce them. If

a marriage were to reinforce social harmony, it was important to avoid the instability attendant upon misalliance.

Clearly, the interests of the community would not be served by marriages that appeared to be inherently unstable

because of the disparate backgrounds ofthe bride and groom.” See Tucker, House o fthe Law, 41.

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be able to treat them with equal fairness, then [only] one - or [from among] those whom you rightfully possess.