Sample Chapter - Palgrave

Contents

List of Figures and Tables ix

Acknowledgments xi

Notes on Transliteration and Other Conventions xiii

Contemporary Muslim Reformist Thought and Maqāṣid cum Maṣlaḥa Approaches to Islamic Law: An Introduction 1 Adis Duderija

1 Islamic Law Reform and Maqāṣid al-Sharī ʿa in the Thought of Mohammad Hashim Kamali 13 Adis Duderija

2 Yusuf al-Qaradawi’s Purposive Fiqh : Promoting or Demoting the Future Role of the ʿulamāʾ ? 39 David L. Johnston

3 Doha—The Center of Reformist Islam? Considering Radical Reform in the Qatar Context: Tariq Ramadan and the Research Center for Islamic Legislation and Ethics (CILE) 73 David Warren

4 Maqāṣid al-Sharī‘a in Contemporary Shī‘ī Jurisprudence 101 Liyakat Takim

5 Maqāṣid or Sharī‘a ? Secularism, Islamic Reform, and Ethics in Modern Turkey 127 Aydogan Kars

6 Maṣlaḥa and Rachid al-Ghannushi’s Reformist Project 151 Karim Sadek

Copyrighted material – 9781137323859


viii ● Contents

7 On Reading Shāṭibī in Rabat and Tunis 177 Ebrahim Moosa

8 Maqāṣid al-Sharī ʿa, Gender Non-patriarchal Qurʾān-Sunna Hermeneutics, and the Reformation of Muslim Family Law 193 Adis Duderija

9 A Case Study of Patriarchy and Slavery: The Hermeneutical Importance of Qurʾānic Assumptions in the Development of a Values-Based and Purposive Qurʾān-Sunna Hermeneutic 219 Adis Duderija

Bibliography 247

Notes on Contributors 263

Index 267



MAQASID AL-SHARI‘A AND CONTEMPORARY REFORMIST MUSLIM THOUGHT Copyright © Adis Duderija, 2014.

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Maqasid al-shari‘a and contemporary reformist Muslim thought : an examination / edited by, Adis Duderija.

pages cm Includes bibliographical references and index. ISBN 978–1–137–32385–9 (alk. paper) 1. Maqasid (Islamic law) 2. Law reform. 3. Islamic law.

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Contemporary Muslim Reformist Thought and Maqāṣid cum Maṣlaḥa

Approaches to Islamic Law: An Introduction

Adis Duderija

The basic rationale behind bringing out this volume is that although many noteworthy works have been written on issues pertaining to Muslim reformist thought and the concept of maqāṣid al-sharī ʿa,

there still remains a need for a study that examines the role and the use-fulness of maqāṣid al-sharī ʿa as a philosophic-legal cum hermeneutical tool for the purposes of, what I broadly term here, “the contemporary Muslim reformist project” (as is briefly defined later). This book aims to accomplish this by, at times, critically examining how this concept is used in contem-porary Muslim reformist thought in relation to a number of specific philo-sophical, legal, ethical, social, and political issues.

Contemporary Muslim reformist thought is a complex and diverse phe-nomenon consisting of a number of discourses and actors with different reform agendas and priorities. Perhaps its lowest common denominator is the idea that various aspects of the inherited premodern Islamic tradition, especially aspects of Islamic law, with respect to its underlying worldview assumptions, episteme, and various methodologies underpinning this body of knowledge, are not adequately equipped or need serious reform/rethink-ing in meeting the many challenges Muslims are facing today, in the context of forming a majority versus Muslim minority society. These reformists dif-fer in the manner in which they conceptualize and employ the concept of maqāṣid al-sharī ʿa, and they assign to it different hermeneutical positions



2 ● Adis Duderija

in their overall approach to Islamic legal theory. This book specifically contributes to expanding our understanding of the role and usefulness of the maqāṣidi-based approach in contemporary Muslim reformist thinking, both Sunni and Shi ʿi, by examining the arguments espoused by some of the main contemporary theoreticians behind this approach.

This volume aims to answer two main questions and others related to them:

1. How exactly are the various proponents of contemporary Muslim reformist thought employing the concept of maqāṣid al-sharī ʿa for the purposes of their reformist agenda?

2. How useful or effective is the concept of maqāṣid al-sharī ʿa, under-stood as both a classical legal hermeneutical construct developed by premodern Islamic legal theoreticians as well as its contempo-rary reconceptualization/reinterpretation, in meeting the challenges Muslim reformist thought is responding and seeking to find solu-tions to?

Hermeneutical Employment of Maqāṣid cum Maṣlaḥa Approaches in Islamic Legal Theories: A Brief Outline of

Past and Present Efforts

According to Auda, maqāṣid al-sharī ʿa “is a system of values that could con-tribute to a desired and sound application of the Shari’ah .” 1 This concept has been employed as a legal hermeneutical tool in premodern Islamic law (or legal theory, uṣūl ul fiqh, 2 to be more precise) at least since the third century Hijri. 3 It is based on the idea that Islamic law is purposive in nature, that is, to mean that the law serves particular purposes (e.g., promoting people’s benefit and welfare and protecting them from harm) that are either explic-itly present in or can be derived from the fountainheads of the sources of Islamic law, namely, the Qurʿān and the Sunna. Maqāṣid al-sharī ʿa is also an umbrella term that includes many other concepts that have been closely linked to it in the premodern Islamic tradition, most notably the idea of pub-lic interests ( al masaliḥ al-ammah ) 4 and unrestricted interests ( al-masaliḥ al-mursala ), 5 as well as other principles such as istiḥsān (juridicial preference), istiḥsāb (presumption of continuity), and avoidance of mischief ( mafṣada ), all of which are considered to be directives in accordance with God’s will. 6

As ably documented by Auda, 7 past and present works that referred to or employed the maqāṣid (apart from those cited in this section) range from Al Tirmidhi Al-Hakim’s (d. 296/908) Al-Salah wa Maqāṣiduha , 8 Abu Zayd Al-Balkhi’s (d. 322/930) al-Ibanah ‘an ‘ ilal al-Diyanah/Masaliḥ al-Abdan



Introduction ● 3

wa al-Anfus , 9 Ibn Babawayh al-Qummi’s (d. 381/991) ‘Ilal al-Shara’ i , 10 and Al-‘Amiri al-Faylasuf ’s al-I’ lam bi-Manaqib al-Islam 11 to those classical works that deal with the concept of maqāṣid more systematically, such as Abu Al-Ma’ali Al-Juwayni’s (d. 478/1085) Al-Burhan fi uṣūl al-Fiqh , 12 Al-‘Izz Ibn Abd Al-Salam’s (d. 660/1209) Qawa’ id al-Ahkam fi masaliḥ al-Anam , 13 Shihab al-Din Al-Qarafi’s (d. 684/1258) al-Furuq , 14 Ibn Al-Qayyim’s (d. 748/1347) I’ lam al-Muwaqqi’ in , 15 and Al-Shatibi’s (d. 790/1388) Al-Muwafaqat fi uṣūl al-Shari’a , 16 to those maqāṣid-oriented works among modern Muslim scholars such as R. Rida’s (d. 1354/1935) Al-Wahi al Mohammadi: Thubut al-Nubuwwah bi al-Qur āʿn , 17 Ibn Ashur’s (d.1392/1973) Maqāṣid al-Shari’ah al-Islamiyyah , 18 Al-Qaradawi’s (b. 1926/1344) Kayf Nata’aamal Ma’a al-Qur āʿn al-‘Azim , 19 and T. Al-Alwani’s (b. 1935/1353) Maqāṣid al-Shari’ah . 20

The premodern jurists’ idea of maṣlaḥa was developed to ensure that the maqāṣid of Islamic law are preserved and protected when adjudicating legal cases. 21 Since both maqāṣid and maṣlaḥa are premised on essentially the same principle (i.e., the purposive nature of Islamic law) and ultimately serve the same purpose (promoting social welfare of the people), they are found to be acting in harmony with each other. 22 As such, interpretational models (manahij) that highlight the importance of these principles in reforming premodern Islamic law will be referred to in this volume as maqāṣid cum maṣlaḥa approaches to Islamic law.

Premodern Muslim scholarship recognized that neither in the Qurʿān nor in the Sunna do we find a definite list of all the maqāṣid or the masaliḥ. Premodern jurists, as a product of their ijtihad, have identified several maqāṣid (e.g., Al Ghazali has identified five such objectives, namely, pres-ervation of life, religion, reason, progeny, and property) 23 and have formed the opinion that the masaliḥ are potentially limitless and change according to time and context. 24

Importantly, the majority of premodern jurists restricted the scope of the maqāṣid to those falling outside the realm of ʿibādāt (worship rites) and some explicit and unambiguous Qurʿān–Sunna injunctions (muqadarāt) such as the faraʿid of inheritance, and the (corporal) punishments hudūd. 25 Additionally, although maṣlaḥa and maqāṣid have been recognized as legiti-mate and important principles in Islamic law by a vast majority of jurists, they have differed on the question of the scope and the hermeneutical posi-tioning of the maqāṣid cum maṣlaḥa approaches to Islamic law vis-à-vis the clear and decisive legal rulings found in the Qurʿān and the Sunna. 26

For example, the four main Islamic schools of thought differed somewhat on the issue of the scope of maṣlaḥa. Al-Shafi’i did not consider it as an inde-pendent source of law because it did not restrict itself to the basic religious



4 ● Adis Duderija

sources such as the Qurʿān and the Sunna and considered that maṣlaḥa was a pure product of reason. He was of the view that the Qurʿān and the Sunna were fully inclusive of all of the concepts and issues pertaining to people’s welfare. 27 Malik and Abu Hanifa considered maṣlaḥa as an independent source of law but restricted its scope only to cases in which there was an absence of clear Qurʿān and Sunna evidence and not when maṣlaḥa was going against the clearly (and decontextually) interpreted Qurʿān and Sunna injunctions. As far as Ibn Hanbal is concerned, he considered maṣlaḥa to be an auxiliary source of law and an appendage of the maqāṣid al shari’ah. 28 Thus, when it comes to incorporating the concept of maqāṣid al-shari‘a into the theoretical formulations of Islamic law, it is evident that among medi-eval jurists legal aims (maqāṣid) were not considered by any school of juris-prudence as a distinguished legal source similar to that of qiyās, istiḥsān, or maṣlaḥa mursala. 29

However, there have been some important dissenting voices among pre-modern jurists who have gone beyond these limits imposed on the maqāṣid cum maṣlaḥa approaches. One of the first premodern Muslim scholars who endorsed the concept of maṣlaḥa as the essence of and the ultimate purpose in interpretation and the very objective of the Qurʿān and the Sunna was Najmal-Din Al-Tufi (d. 716 ah ). For example, in Moosa’s examination of Al-Tufi’s work, he comes to the conclusion that Tufi considered maṣlaḥa as having a regulatory function over all other established sources 30 and gave it “a universal and humanist status in the [Islamic] law” by giving preference to public interest (maṣlaḥa) over a clear meaning of the text, thereby “subor-dinating the text to the divination of the universal intentions and purposes of the Shari’ah.” 31 Furthermore, Moosa maintains that in Tufi’s thought,

in terms of function and philosophy, the sources of law were actually representations of public interest . . . and stressed that ethical values and the priority of the sociological purposes of law over epistemology, [were] in line with the meta-purpose of law. 32

Al-Tufi was not alone in this. According to Moosa, Abu Hamid al-Ghaz-ali (d. 1111 ah ), another central premodern Muslim jurist and theologian, although at first not taking the principle of maṣlaḥa as one of the sources of uṣūl-ul fiqh, considered that in several instances the maṣlaḥa doctrine “secures the purpose of revelation (maḥafaza ʿala maqṣud al-shar).” 33 Moosa summarizes Ghazali’s approach to the question of maṣlaḥa by stating:

If one examines the primary sources—The Qurʿān and Sunna—carefully, he [Ghazali] said, one will find that maṣlaḥa is indeed implicitly and



Introduction ● 5

explicitly evident as the purpose of the law. Ghazali thus endorsed maṣlaḥa stealthily, progressing from disparaging it as “fanciful” at first, to viewing it later as the grounds of all legal pronouncements to be found in the canonical sources. 34

Al-Shatibi (d. 790 ah ), a thirteenth-century scholar from Muslim Spain, and one of the most systematic theoreticians behind the maqāṣid cum maṣlaḥa approach to Islamic law, considered al-maqāṣid to be “the fun-damentals of religion, basic rules of the law, and the universals of belief ( uṣūl al-din wa qawa iʿd al-shari aʿ wa kulliya al-milla ).” 35 For contemporary Muslim thinkers such as H. Hanafi (b. 1935–), M. Al-Jabiri (d. 2010), and N. Madjid (d. 2007), maqāṣid and maṣlaḥa dimensions of Islamic law are seen as the essence of the Qurʿān and that interpretations founded on these interpretational mechanisms can take precedence over clear Qurʿānic text. 36

However, these minority voices were too few and came too late to signifi-cantly shape the Islamic law. Kamali notices this dimension of the premod-ern uṣūl-ul-fiqh by stating:

Another aspect of the conventional methodology of usul , which mer-its attention, is its emphasis on literalism and certain neglect, in some instances at least, of the basic objective and the rationale of the law. The early formulations of usul have not significantly addressed this issue and it was not until al-Shatibi who developed his major theme on the objec-tives and the philosophy of Shari’ah (maqāṣid al-shari’ah). Al-Shatibi’s contribution came, however, too late to make a visible impact on the basic scheme and methodology of usul. 37

Echoing this sentiment is Muhammad Fathi al-Darini, a contemporary Syrian legal scholar, who maintains that there has been no inductive or logi-cal study of the philosophy and the purposes of the premodern Sunni Muslim jurisprudence in the discourse of law and legal theory. 38

Similarly, contemporary scholar Auda asserts that the premodern theo-ries of maqāṣid were studied as a secondary topic within uṣūl al fiqh under the category of unrestricted interests (al-masaliḥ al-mursalah) or as an appropriate attribute for analogy (munāsaba al-qiyās) and not as an inde-pendent discipline or as premised on the basis of forming a “fundamental methodology.” 39

Thus, an increasing number of contemporary Muslim scholars have become acutely aware of these lacunae in the premodern theories with regard to the hermeneutical employment of the maqāṣid cum maṣlaḥa approaches



6 ● Adis Duderija

to Islamic law that present an important avenue for their various reformist projects.

Modern and contemporary scholars have also broadened the scope of the five traditional maqāṣid. For example, Rashid Rida (d. 1935) included reform and women’s rights in his theory of maqāṣid 40 ; Muhammad Al-Ghazali (d. 1996) added justice and freedom to the premodern five maqāṣid 41 ;Yusuf al-Qaradawi (1926–) included human dignity and rights in his theory of maqāṣid; Ibn Ashhur included values such as equality, freedom, and order-liness, among others, in his as part of universal maqāṣid of Islamic law; 42 Taha Al Alwani 43 included the concept of developing civilization on earth (ʿimrān); and Attia identified 24 essential maqāṣid (in contrast to the classi-cal five as per Al-Ghazali) falling into four-level realms (individual, family, umma, and all humanity). 44

The works of these scholars are important contemporary contributions that aim to fill this hermeneutical gap left by the premodern maqāṣid cum maṣlaḥa approaches to Islamic law. This contemporary Islamic scholarship on the maqāṣid cum maṣlaḥa approaches to Islamic law not only builds upon the premodern but also, importantly, both expands the scope of the maqāṣid cum maṣlaḥa and, in fewer cases, elevates hermeneutically these approaches above the clear nuṣūs (texts) found in the Qurʿān and Sunna. More significantly, it also at times evaluates these efforts from a critically constructive perspective. The purpose of this volume is to bring to the fore-front some of these contemporary reformist discussions on the maqāṣid cum maṣlaḥa approaches to Islamic law.

Chapter Outlines

This book consists of nine chapters. In chapter 1 , I discuss Hashim Kamali’s scholarly engagement with the concept of maqāṣid al-sharī ʿa as a tool for Islamic law reform. I closely examine his numerous writings on the subject with a particular focus on how he employs it for the purposes of reforming Islamic law. I describe the nature of Islamic reform in Kamali’s thought as encapsulated in the two terms he frequently employs: tajdid haḍari (civiliza-tional renewal) and siyāsa al-sharī ʿa ( maqāṣid al-sharī aʿ , a compliant method of governance). I also discuss how Kamali’s understanding of the nature and delineating features of the Qur’ān, the Sunna, and the relationship between revelation and reason creates a space for reforming Islamic law. In addition to this, I focus on some specific methodological considerations (including maṣlaḥa, istiḥsān, ijtihād, ijmāʿ, qawāʿid [legal maxims], ḥikma, ʿilla, and asbāb al-nuzūl) that Kamali discusses in rethinking existing premodern



Introduction ● 7

uṣūl al-fiqh mechanisms for reform purposes by linking them to the concept of maqāṣid. Apart from these I also discuss the main arguments outlined by Kamali regarding the need for and the importance of maqāṣid-oriented Islamic law reform and describe his original contributions to the topic of the nature and the salient features of maqāṣid and their identification. Finally, I outline Kamali’s proposal on the new methodology of maqāṣid and his views on the future tasks and challenges for maqāṣid-oriented uṣūl.

In chapter 2 , David L. Johnston examines the contribution to and some of the reasons behind Yusuf al-Qaradawi’s late career interest in the maqāṣid al-sharīʿa approaches to Islamic law. In particular, Johnston asks a pertinent question whether such approaches to Islamic law are going to, in the long term, demote rather than promote the authority of traditional ulama like Qaradawi himself, something that Al-Qaradawi would find inimical to his own reformist agenda based on his well-known commitment to the prin-ciples of Islamic moderation (wasaṭiyya).

In chapter 3 , David Warren’s contribution provides us with an absorb-ing exploration of how Tariq Ramadan, in his capacity as the director of the Centre for Islamic Legislation and Ethics (CILE), has attempted to give shape to a new methodology of applied ethics in Islam, in the very particular context of Doha, Qatar. Warren argues that while at first it appears that the chosen location for CILE was based primarily on logistical and financial considerations, it might also be seen as an effort to facilitate CILE’s estab-lishment and link with the legal tradition, which in the end effect it aims to dissolve. Warren ultimately opines that this move represents both the marked ambition and the upcoming difficulties for CILE’s project, given that its apparent success depends in no small part upon those conservative “ ulamā ” who currently hold very different understandings of what the proj-ect entails to those who are heading it.

In chapter 4 , Liakat Takim examines the question of the employment of maqāṣid al-sharī‘a and maṣlaḥa in Shī‘īsm in general and in contempo-rary reformist Shī‘īsm in particular. Takim demonstrates that, historically speaking, in Twelver Shī‘īsm there are very few discussions on the objectives of sharī‘a rulings. He argues that this is probably due to the fact that Shīʿī jurists, not being involved in the political process or decision making of the state, were simply not required to rule on political maṣlaḥa . However, he further argues that contemporary reformist-minded Shīʿī scholars empha-size more rational approaches to Islamic hermeneutics that privilege the Qur’ānic core values over the ḥadīth, and he also adds that the employment of maqasid cum maṣlaḥa –driven hermeneutics is increasingly being resorted to among this circle of scholars.



8 ● Adis Duderija

In the fascinating chapter 5 , Aydogan Kars investigates how modern scholars in Turkey perceive and conceptualize the higher objectives of Islamic law. Kars identifies and discusses four distinct approaches with respect to how the concept of maqāṣid al-sharī ʿa is employed vis-à-vis the idea of “reform” of Islamic law, including: (1) the “traditionalists” or “renewalists,” who “define al-sharī‘a as having a comprehensive ethical-cum-legal flexible worldview that is capable of renewing itself with its authentic tools, one of which is the maqāṣid al-sharī‘a ”; (2) the contemporary academicians, who attempt to stay aloof from “reform versus renewal” discussions and contro-versial debates on various issues pertaining to religion and are engaged in production of highly specialized academic knowledge concerning various aspects of (maqāṣid) al-sharī‘a ; (3) the “revisionist” academicians, as labeled by Kars, who approach the concept of maqāṣid al-sharī‘a from their broader “revisionist” Qurʿān-Sunna hermeneutic that integrates scholarship on post-Enlightenment Western hermeneutics into classical Islamic hermeneutical thought; and (4) the “secularists,” who regard al-sharī‘a exclusively in legal or ethical terms and who consider “secularism” to be in harmony with the concept of maqāṣid al-sharī‘a .

In chapter 6 , Sadek critically assesses Rachid al-Ghannushi’s employ-ment of maṣlaḥa in his sociopolitical reformist project. He argues that Ghannushi’s understanding of how to preserve the Islamic character of the state ultimately undermines the gains he achieves through maṣlaḥa . namely, that the Islamic state treats all its citizens as free and equal agents. Sadek concludes with an interesting maṣlaḥa inspired solution for Ghannushi’s political model.

In chapter 7 , Moosa provides us with a fascinating discussion on the criti-cal rereadings of Al-Shatibi’s work among contemporary Maghrebi scholars, including the critiques of Al-al-Jabiri, ‘Abd al-Rahman, and Al-Marzuqi. Moosa asks how contemporary (uncritical) appropriations of Al-Shabiti’s work relate to the traditional practice of Islamic law and whether the former will eclipse the other over time.

In chapter 8 , I seek to demonstrate that one important component in developing a Qurʾānic hermeneutic, and thereby an Islamic legal one, is to take into account the Qurʾānic presuppositions evident in its text/content as well as in the preclassical nature of the Qurʾān-Sunna discourse, based on their hermeneutically symbiotic, dialogical, ethico-religious, and purposive nature. I use some aspects of male-female gender dynamics and slavery as case studies. In this respect I argue that this nature of the Qurʾān-Sunna discourse with respect to these sociolegal issues would seem to suggest that the deeply embedded contextual patriarchal and slavery practices not only do not form the inherent components of their worldview but also that the



Introduction ● 9

overall Qurʾān-Sunna principles premised on the alleviation of unjust prac-tices at the time of the Prophet mitigated these practices and paved the way toward their future complete abolition.

In chapter 9 , I outline in some detail a new, non-patriarchal, or gender-symmetrical, reinterpretation of Muslim family laws by making a synthesis between, and incorporating, new maqāṣid approaches to Islamic law and non-patriarchal Qurʾānic hermeneutics. I argue that based on contempo-rary maqāṣid approaches and gender-egalitarian Qurʾānic hermeneutics, new maqāṣid pertaining to Muslim family law can be derived, from which non-patriarchal Qur’ān-Sunna hermeneutics can be developed. This herme-neutical model can account both for the patriarchal nature of the classical manahij of the Qurʾān and the Sunna as not being inevitable, as well as pro-vide an important foundation, in addition to other hermeneutical methods, for the fostering of gender-symmetrical Muslim family laws.

Notes

1 . Jasser Auda, “A Maqasidi Approach to Contemporary Application of the Shari’ah ,” Intellectual Discourse , 19 (2011), 193–217, 194.

2 . For the purposes of this volume, I will use Islamic law and Islamic legal theory interchangeably although strictly speaking these two are not the same.

3 . See, for example, Imran Nyazee, The Outlines of Islamic Jurisprudence (Islamabad: Advanced Legal Studies Institute, 2000), 162–175.

4 . See Abdul al-Malik Ibn Abdullah, Al-Juwayni, Al-Burhan fi usul al-fiqh (annotated by Abdul-Azim al-Deeb) (Qatar: Wazarat al-Shu’un al-Diniyyah, 1400 ah ), 183.

5 . See Abu Hamid Al-Ghazali, Al-Mustasfa fi ‘ ilm ul usul , Vol. 1 (Beirut: Dar al-Kutub al-Ilmiyyah, 1413), 172.

6 . See Hashim Kamali, The Principles of Islamic Jurisprudence (Cambridge: Islamic Texts Society, 1991), 235.

7 . Auda, Y., Maqasid al-Shari’ah as Philosophy of Islamic Law (London: IIT, 2008). I have kept the spelling of the listed works as found in Auda.

8 . Ahmed Al-Raysuni, Nazariyyat al-Maqasid ‘ ind al-imam al-Shatibi , 1st ed. (Herndon: IIIT, 1992).

9 . See Muhammad K. Imam, Al-dalil al-irshadi Ila maqasid al-Shari’ah al-islami-yyah (London: Maqasid Research Centre, 2006).

10 . Ed. Mohammad Sadiq Bghar al-ulum (Najaf: Dar al Balaghah, 1966). 11 . Ed. Ahmed Ghurab (Cairo: Dar al Kitab al-‘Arabi, 1967). 12 . Ed. Abdul Al Azim al-deeb (Mansurah: Al-Wafa, 1998). 13 . (Beirut: Dar al-nashr, n.d.). 14 . Ed. Khalil Mansour (Beirut: Dar al-kutub al-‘ilmiyyah,1998). 15 . Ed. Taha Abdul rauf Saad (Beirut: Dar al Jil, 1973). 16 . (Misr: Matba’at al maktabah al-tujariyah, 1920).



10 ● Adis Duderija

17 . (Cairo: Mu’asasah ‘izz al-din, n.d.). 18 . Ed. El-tahir el-Mesnawi, Kuala Lumpur, Al-fajr, 1999. 19 . 1st ed. (Cairo: Dar al-Shoruq, 1999). 20 . 1st ed. (Beirut: Dar al-Hadi, 2001). 21 . Nyazee, Outlines of Islamic Jurisprudence , 134. 22 . See Al-Ghazali, Al-Mustasfa fi ‘ ilm ul usul (Cairo: Makba’at dar al-kutub al-

misriyya, 1997). 23 . Ibid. 24 . Kamali, The Principles of Islamic Jurisprudence , 235. 25 . Ibid. 26 . In relation to this question the maṣlaḥa categories developed by the premod-

ern Islamic jurists have been classified into (1) recognized maṣlaḥa ( maṣlaḥa mutabara ): the maṣlaḥa that has been clearly stated in the Qur’ān and the Sunna, or has gained the consensus ( ijmāʿ ) of the fuqahāʾ ; (2) nullified maṣlaḥa ( maṣlaḥa mulgha ): the maṣlaḥa that is in clear contradiction to the Qur’ān and the Sunna, and does not have the support of the fuqahā ʾ; and (3) conveyed maṣlaḥa ( maṣlaḥa mursala ): the maṣlaḥa that is not in explicit agreement or disagreement with the Qur’ān or the Sunna or the ijmāʿ of the fuqahāʾ . See Muhammad Shalabi, Talıl al-ahkam (Cairo: Matbaat al-Azhar, 1943), 281.

27 . Muhammad Al-Buti, Dawabit al-maṣlaḥa fı al-sharı’a al-islamiyya (Damascus: al-Maktaba al-Amawiyya, 1966), 377.

28 . Ibid., 369. 29 . Yasir S. Ibrahim, “Rashīd Rida and Maqāṣid al-Sharī’a,” Studia Islamica ,

102/103 (2006), 160. 30 . That is, Qur’ān, Sunna, ijmāʿ and qiyas . 31 . Ebrahim Moosa, “The Poetics and Politics of Law after Empire: Reading

Women’s Rights in the Contestations of Law,” UCLA Journal of Islamic and Near Eastern Law , 1 (2001–2002), 1–28, 11. Al-Tufi uses words that the maṣlaḥa is “qutb maqsud ash-shar”—the aim and the very pillar of religion.

32 . Ibid., 11. 33 . Ibid., 5 34 . Ibid., 10. 35 . Jasser Auda, Maqasid al-Shari’ah as Philosophy of Islamic Law (London: IIT,

2008), 21. 36 . Yudian Wahyudi, The Slogan “Back to the Qur’an and Sunnah—A Comparative

Study of the Responses of Hasan Hanafi, Muhammad Abid Al-Jabiri and Nurcholish Madjid , PhD dissertation (Canada: McGill University, 2002), 266, 285.

37 . Hashim Kamali, “Methodological Issues in Islamic Jurisprudence,” Arab Law Quarterly , 11 (1996), 5.

38 . M. Fathi Al-Darini, Khasa’ is al-Tashri al-Islami fi’ l Siyasa wa ‘ l Hikma , Damascus, 1987. Cf. Tahir Ibn Al-Ashur, Alaysa al-Subh bi Qarib? Al-Shakirah al-Tunisiyyah li-funun al-rasm (Tunis, 1988), 237.

39 . Auda, Maqasid al Shari’ah , xxv.



Introduction ● 11

40 . Rashid Rida, Al-Wahi al Mohammadi: Thubut al-Nubuwwah bi al-Qur aʿn (Cairo: Muʿasasah ʿizz al-din, n.d.).

41 . Muhammad Al-Ghazali, Nazart fi al-Qur’an (Cairo: Nahdat Misr, 2002). 42 . Ibn Ashur, Tahir. Maqāṣid al-Shari aʿh al-Islamiyyah , ed. El-tahir el-Mesnawi

(Kuala Lumpur: Al-fajr, 1999). 43 . Taha Al-Alwani, Issues in Contemporary Islamic Thought (Washington and

London: IIIT, 2005). 44 . Gamal Eddin Attia, Toward Realization of the Higher Intent of Islamic Law

(Maqasid al Shari’ah): A Functional Approach , trans. Nancy Roberts (Kuala Lumpur: IIIT, 2010), 116–151.



Index

abortion, 140Abd al-Rahman, Taha, 181, 182–7Abou El Fadl, Khaled, 210–11, 233–4abrogation. See nashAbu al-Qasim, ‘Ali Doost, 114Abu Hanifa, Imam, 4Abu Zayd, Nasr, 140, 208, 211, 213,

221, 225, 234, 235aḥkām al ḥadīth, 34al-aḥkām al-wilāyatiyya (civil rules),

119–20Al-Alwani, Taha, 6, 79, 234“Ankara School,” 141Ansari, Murtada, 111, 117‘aql

reason vs. revelation, 19–20, 225role in making ethical judgments, 225role in Shī‘ī reformist thought, 122

asbāb al-nuzūl, 28–9ʿAsh ʿarism, 45Attia, Gamal al Din, 6Auda, Jasser, 2–3ayāt al aḥkām, 34Ayatollah Bojnourdi, 104Ayatullah Damad, 105, 120–1Ayatullah Fadlallah, 102, 113–14,

117–18Ayatullah Khumayni, 102, 103, 104,

112–13Ayatullah Milani, 109

Ayatullah Mutahhari, 103Ayatullah Sanei, 102, 103, 105–6Ayatullah Shams al-Din, 115–17Ayatullah Shirazi, 106Al-Azhar University, 40

Barlas, Asma, 205–6bayān (explicatory reason), 179burhān (demonstrative reason), 179al-Buti, Sa‘id Ramaḍān, 190

comprehensive contextualization, 208–10, 220

Council for the Interest of the Islamic Order, 112

custom. See ‘urf

Dağ, Mehmet, 144–5Dalgın, Nihat, 133–4al-Darini, Fathi, 5divorce. See ṭalāq

equity. See insāfErdoğan, Mehmet, 133–4ethical objectivism, 45–6, 212

vs. ethical voluntarism/subjectivism, 229, 237–8

ethical voluntarism, 45–6ethico-religious values–based

hermeneutic, 212, 219–37



268 ● Index

faḍḍala, 197al-Faruqi, Isma‘il, 142

gender complementarity, 195gender dualism. See gender

complementarityAl-Ghazali, Abu Hamid, 3, 43–4Al-Ghazali, Muhammad, 6Al-Ghazali, Zainab, 198–9Görgün, Tahsin, 135–7Görmez, Mehmet, 142–3Gülen, Fethullah, 134–5

Al Haddad, Tahir, 234–5ḥadīth

hermeneutical relationship with Qurʾān, 226, 230

hermeneutical relationship with Sunna, 227, 230

al-Hakim, Muhammad Taqi, 110Hanafi, Hasan, 5hermeneutics, 237–8ḥikma, 28, 116ḥizb al-nahda (The Renaissance Party),

151–2ḥudūd, 235

Ibn Abi Talib, Ali (Imam Ali), 214Ibn Anas, Malik, 4Ibn Hanbal, Ahmad, 4‘idda, 232–3iḥsān, 209ijtihād, 27–8, 167–70iʿlla, 28, 117induction. See istiqrāʿinsāf, 199International Union of Muslim

Scholars, 77, 84, 88interpretation. See manhajIran, 111‘irfān, 179Islamic law

purposive nature of, 220isma, 197

istiḥsān, 26istiqrāʿ, 51–2, 207, 221

Al-Jabiri, Muhammad, 5, 178–80Jackson, Sherman, 140jam‘ (merging daily prayers), 145al-Jawziyya, Ibn Qayyim, 46–53Al-Jazeera TV, 40

Karabasoglu, Metin, 135karama, 202, 207Karaman, Hayrettin, 132–3Al Khattab, Umar, 226khilāfa, 202, 203, 204, 206, 209Kırbaşoğlu, Hayri, 143

Madjid, Nurkolich, 5manhaj

features of in classical Islamic law, 195–6

maʾruf, 202, 207, 225al-Marzuqi, Abū Ya‘rab, 187–90maṣlaḥa, 3–5, 25, 47, 48, 53, 54, 107, 151,

158–61, 163, 166, 168, 170, 183–4in Shi’ism, 109–21types of, 10

al-Misnad, Mozah, 77mitigation

as hermeneutical principle, 210–11, 235–6

Moosa, Ebrahim, 221moral trajectories, 210–11mufassirūn, 232Muslim Brotherhood, 40, 57Muslim family law

reform of, 193–213muwadda, 201, 209

nafaqa, 197nash, 223natural vs Islamic law, 20–1non-patriarchal-Qurʾān Sunna

hermeneuticsdefinition, 203



Index ● 269

hermeneutical dimension, 208–13methodological dimension, 207–8ontological dimension, 207

Nursi, Said, 134nushuz, 197

opinion. See raʿyOttoman Empire, 128overlapping consensus, 165, 168–70Öztürk, Yaşar Nuri, 145–6

Paçacı, Mehmet, 141–2patriarchy

in the Qurʾān, 232–4Pekcan, Ali, 139, 140penal code. See ḥudūdpost-Enlightenment hermeneutics, 141Presidency of Religious Affairs

[Diyanet İşleri Başkanlığı], 129, 130, 137

puberty (in girls), 105, 113

al-Qaradaghi, Ali, 88al-Qaradawi, Yusuf, 6, 78, 82–3, 87qawā iʿd, 28qisṭ, 202qiwāma, 197–8Qurʾān

hermeneutical relationship with ḥadīth, 226

hermeneutical relationship with Sunna, 223, 224, 226

raḥma, 201, 209ratio legis. See iʿllaratiocination. See ta lʿīlraʿy, 48–9al-Raysuni, Ahmad, 79reason. See ‘aqlreligious freedom, 162Research Center for Islamic Legislation

and Ethics, 82–3Rida, Rashid, 6, 53ritual sacrifice, 145

al-ṣaḥwa al-islāmiyya, 41sakīna, 201, 209ṣalāḥ (righteousness), 182–3secularism, 132, 145, 154

in sense of verweltlichung (this wordly-ness), 136

Shabistari, Mojtahid, 107Al-Shafi’i, Idries, 3–4, 141al-Shatibi, Abu Ishaq, 5shūra, 156–7, 163, 164, 170al-sīra al-‘uqalā’ iyya (custom of

reasonable persons)in relation to maṣlaḥa, 119

al-siyāsa al-sharī aʿ, 5–16, 46slavery

in Islamic law, 105, 236in the Qurʾān, 235–6

Soroush, Abdolkarim, 103Sunna, 223, 225

ḥadīthtification of, 228, 229hermeneutical relationship with

ḥadīth, 227hermeneutical relationship with

Qurʾān, 223–4, 226, 227

ta aʾ, 197Tabatabai, Muhammad Husein, 198tafsīr mawḍū īʿ, 33tajdīd haḍari, 14–15ṭalāq, 105–6, 197

its link with patriarchy, 209–10, 213

ta lʿīl, 22–3tamkin, 197taqwā, 202, 203, 209tawḥīd, 203, 204, 205–6tawḥīdic paradigm, 203–4al-Tufi, Najm al-Din, 4, 45Al-Tusi, Muhammad bin Hassan,

106

ʿulamāʾ al-nuṣūṣ, 82ʿulamāʾ al-wāqiʿ, 82Ūlū l-amr, 22



270 ● Index

ulūm ul ḥadīth, 202ulūm-ul-isnād, 229‘urf

role in relation to Marital laws, 118–19, 120–1

uṣūl al-fiqh, 24

veiling, 140, 145

Wadud, Amina, 203–4, 2011wasaṭiyya, 41, 50–1wilāya, 196–7, 199, 202wisdom. See ḥikma

Yaman, Ahmet, 138–9, 140

Al-Zamakhshari, Jar Allah, 197



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