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We may conclude that while historical shari`a recognized the capacity of non-Muslims and women to enjoy certain civil and political liberties, it managed, nonetheless, to curtail these liberties on social and rational grounds. The degree of limitation on the exercise of civil and political rights also varied across historical periods and legal schools. And hence while our observations give us reasons for optimism about the capacity of Islamic values and ideals to promote human rights, they point to the inability of classical legal system to promote human rights in modern times, and to the urgent need for undertaking legal reform of traditional Islamic law.
THE IMPERATIVE OF RATIONAL
MEDIATION OF ISLAMIC SOURCES
Shari`a law was historically developed by Muslim jurists by applying human reasoning to revealed texts with the aim to develop a normative system capable of regulating individual actions and social interactions. Early jurists relied primarily on the Qur’an and the practices of the Prophet to elaborate the rules of shari`a, and referred to the process through which shari`a rules were elaborated by the term ijtihad (intellectual exercise). Recognizing the imperative of rational mediation for understanding the rules of shari`a, early jurists exerted a great deal of time and energy to define the grammar of interpreting the divine texts and the logic of reasoning about their implications. The differences in
Methodological approaches led to the differentiation of the various schools of jurisprudence. Because the Qur’anic texts were given in a concrete form, whereby the Qur’an commented on the actions and interactions of the early Muslim community, and directed early Muslims in concrete situations, the jurists applied legal analogy (qiyas) to expand the application of the Qur’anic precepts to new cases. The qiyas technique, widely accepted by the schools of jurisprudence, requires the jurists to identify the efficient reason (‘illa) of a specific Qur’anic statement, and to use this reason as the basis for extending the application of the Qur’anic precept to new cases. For example, early jurists extended the prohibition of wine to all intoxicating substance on the ground that intoxication was the reason for the Qur’anic prohibition of wine. Early jurists also utilized the statements and actions of the Prophet and his companions as a means to arrive at better understanding of the revealed texts. The practices of the Prophet and his companions became known as the Sunna and were captured in the hadith narrations. Early jurists did not feel that the Sunna has an authority independent from the Qur’an, and hence did not hesitate to reject a hadith narration whenever it was in a clear contradiction with a Qur’anic statement.
Ijtihad took a decisive turn when Muhammad bin Idris al-Shafi‘i produced, in the middle of the second century of Islam, the first work in Islamic Principles of Jurisprudence (usul al-fiqh) under the title al-Risala (the Message). In his Message, Shafi‘i declared that the Sunna was an inviolable source of law on par with the Qur’an, and insisted that it enjoyed an independent authority. Furthermore, Shafi‘i confined ijtihad to legal analogy (qiyas), declaring all other legal reasoning to be arbitrary. The restrictions on ijtihad were further extended by Ahmad bin Hanbal, who insisted that legal analogy has to be used only as a last resort. He therefore required that even a weak hadith has to be given priority over legal analogy. The other two major schools of jurisprudence of the Sunni branch of Islam, the Hanafi and Maliki, were able to escape the severe restrictions on ijtihad imposed by Shafi‘i and Hanbali schools by employing the techniques of istihsan and istislah respectively. Istihsan meant that the jurist was not bound by the apparent reason of a particular rule, but could utilize other reasons of shari`a whenever deemed more relevant. Istislah, on the other hand, allowed the jurist to base the rules of shari`a on public interests and utility, rather than confining them to ‘illah (efficient reason).
The desire of Hanafi and Maliki jurists to overcome the literalist approach that equates ijtihad with qias (à la shafi`i), or with linguistic explication of the Qur’an by reference to hadith (à la Hanbali), has inspired them to develop methods aimed at prioritizing shari`a rules and principles. Methods such as al-qawa`id al-fiqhiyyah (juristic rules) or al-maqasid al-Shari`iyyah (shari`a purposes) aim at the systematization of the shari`a rules by eliminating internal contradiction, and constitute what is referred to today as maqasid approach.
By its emphasis on meaning, reasoning, and purposes the maqasid approach provide a powerful tool for reforming historical shari`a, because it rejects the literal reading of statements apart from their rationale, and insist that those rationale cannot contradict basic Islamic values. The definitive exposition of this approach can be found in the work of the Andalusian jurist Ibrahim bin Ishaq al-Shatibi, Al-Muwafaqat. The maqasid approach expounded by Shatibi can be summarized in the following points: (1) Shari`a rules purport to promote human interests; (2) Shari`a consists of a hierarchy of rules, whereby the particular rules (ahkam juz’iyyah) are subsumed under universal laws (qwanin kulliyyah); (3) General rules must be modified to accommodate – whenever possible – particular rules; (4) Particular rules that contradict general rules should be rejected or ignored; (5) The various rules and laws of shari`a aim at advancing five general purposes: the protection of Religion, life, reason, property, and progeny.
I wish, in the remainder of this paper, to undertake a fresh interpretation of the Islamic sources on the moral positions women and non-Muslims enjoy, and the rights and obligations assigned to them. I propose to employ a methodology rooted in the maqasid approach, and based on the following five principles:
Principle 1: Rights and obligations cannot be established on the basis of individual statements of the Qur’an and Sunnah, but have to accord with the totality of relevant statements. Therefore, a jurist is required, according to this principle, to consult all relevant texts before rendering a specific ruling.
Principle 2: The multiplicity of Qur’anic rules must be reduced into a coherent set of universal principles. The universal principles should be used to ensure the systematic application of shari`a in modern context. Such systematization should prevent an application of a specific (khas) rule in violation of a general ( ‘am), or a particular (juz’i) in violation of a universal (kulli).
Principle 3: Because the generalization of a rule presupposes that the reason for its enactment is clear, no rule should be generalized unless its reason has been explicated. This principle requires that Qur’anic rules relating to social actions and interactions should be understood fully, and systematized with other rules. If this requirement is met, the literalist application of shari`a would be eliminated.
Principle 4: Because the universalization of a principle requires that the conditions of its application be identical, regardless of time and space, no principle can be declared universal if the particularity of the context for which it was intended is evident. This principle complement Principle 3 by requiring the jurist to examine the extent to which a specific statement or rule is directly connected with the socio-political context in which it was revealed.
Principle 5: Qur’anic statements take priority over Prophetic ones. Hence, in the case of conflict and real contradiction, Qur’anic precepts override Prophetic ones.
Utilizing the methodological framework outlined above, I turn now to examine the extent to which religious restrictions on religious freedom and the rights of women and non-Muslims are rooted in the attitudes and practices of historical Muslim communities, and how far these restrictions can be attributed to revealed texts.
FREEDOM OF CONVICTION
There is ample evidence in the Qur’an, both the Makkan and Madinan, that individuals should be able to accept or reject a particular faith on the basis of personal conviction, and that no amount of external pressure or compulsion should be permitted: “No compulsion in religion: truth stands out clear from error.”(2 : 256) “If it had been the Lord’s will, they would have believed – All who are on earth! Will you then compel mankind, against their will, to believe!” (10 : 99) By emphasizing people’s right to freely follow their conviction, the Qur’an reiterates a long standing position, which it traces back to one of the earliest known Prophets, Noah:
Not only does the Qur’an recognize the individual’s right to freedom of conviction, but it also recognizes his/her moral freedom to act on the basis of their conviction. The principle that the larger community has no right to interfere in one’s choices of faith and conviction can be seen, further, in the fact that the Qur’an emphasizes that the individual is accountable for the moral choices he or she makes in this life to their Creator alone.