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  • Contents

    List of Figures and Tables ix

    Acknowledgments xi

    Notes on Transliteration and Other Conventions xiii

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

    1 Islamic Law Reform and Maqid al-Shar a in the Thought of Mohammad Hashim Kamali 13 Adis Duderija

    2 Yusuf al-Qaradawis Purposive Fiqh : Promoting or Demoting the Future Role of the ulam ? 39 David L. Johnston

    3 DohaThe 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 Maqid al-Shara in Contemporary Sh Jurisprudence 101 Liyakat Takim

    5 Maqid or Shara ? Secularism, Islamic Reform, and Ethics in Modern Turkey 127 Aydogan Kars

    6 Malaa and Rachid al-Ghannushis Reformist Project 151 Karim Sadek

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  • viii Contents

    7 On Reading Shib in Rabat and Tunis 177 Ebrahim Moosa

    8 Maqid al-Shar a, Gender Non-patriarchal Qurn-Sunna Hermeneutics, and the Reformation of Muslim Family Law 193 Adis Duderija

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

    Bibliography 247

    Notes on Contributors 263

    Index 267

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  • MAQASID AL-SHARIA AND CONTEMPORARY REFORMIST MUSLIM THOUGHT Copyright Adis Duderija, 2014.

    All rights reserved.

    First published in 2014 by PALGRAVE MACMILLAN in the United States a division of St. Martins Press LLC, 175 Fifth Avenue, New York, NY 10010.

    Where this book is distributed in the UK, Europe and the rest of the world,this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS.

    Palgrave Macmillan is the global academic imprint of the above companiesand has companies and representatives throughout the world.

    Palgrave and Macmillan are registered trademarks in the United States, the United Kingdom, Europe and other countries.

    ISBN: 9781137323859

    Library of Congress Cataloging-in-Publication Data

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

    pages cm Includes bibliographical references and index. ISBN 9781137323859 (alk. paper) 1. Maqasid (Islamic law) 2. Law reform. 3. Islamic law.

    I. Duderija, Adis, 1977

    KBP442.M368 2014340.5911dc23 2014003108

    A catalogue record of the book is available from the British Library.

    Design by Newgen Knowledge Works (P) Ltd., Chennai, India.

    First edition: September 2014

    10 9 8 7 6 5 4 3 2 1

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  • Contemporary Muslim Reformist Thought and Maqid cum Malaa

    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 maqid al-shar a, there still remains a need for a study that examines the role and the use-fulness of maqid al-shar a 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 maqid al-shar a, and they assign to it different hermeneutical positions

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  • 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 maqidi-based approach in contemporary Muslim reformist thinking, both Sunni and Shi i, 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 maqid al-shar a for the purposes of their reformist agenda?

    2. How useful or effective is the concept of maqid al-shar a, 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 Maqid cum Malaa Approaches in Islamic Legal Theories: A Brief Outline of

    Past and Present Efforts

    According to Auda, maqid al-shar a is a system of values that could con-tribute to a desired and sound application of the Shariah . 1 This concept has been employed as a legal hermeneutical tool in premodern Islamic law (or legal theory, ul 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 peoples 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 Qurn and the Sunna. Maqid al-shar a 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 masali al-ammah ) 4 and unrestricted interests ( al-masali al-mursala ), 5 as well as other principles such as istisn (juridicial preference), istisb (presumption of continuity), and avoidance of mischief ( mafada ), all of which are considered to be directives in accordance with Gods will. 6

    As ably documented by Auda, 7 past and present works that referred to or employed the maqid (apart from those cited in this section) range from Al Tirmidhi Al-Hakims (d. 296/908) Al-Salah wa Maqiduha , 8 Abu Zayd Al-Balkhis (d. 322/930) al-Ibanah an ilal al-Diyanah/Masali al-Abdan

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  • Introduction 3

    wa al-Anfus , 9 Ibn Babawayh al-Qummis (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 maqid more systematically, such as Abu Al-Maali Al-Juwaynis (d. 478/1085) Al-Burhan fi ul al-Fiqh , 12 Al-Izz Ibn Abd Al-Salams (d. 660/1209) Qawa id al-Ahkam fi masali al-Anam , 13 Shihab al-Din Al-Qarafis (d. 684/1258) al-Furuq , 14 Ibn Al-Qayyims (d. 748/1347) I lam al-Muwaqqi in , 15 and Al-Shatibis (d. 790/1388) Al-Muwafaqat fi ul al-Sharia , 16 to those maqid-oriented works among modern Muslim scholars such as R. Ridas (d. 1354/1935) Al-Wahi al Mohammadi: Thubut al-Nubuwwah bi al-Qur n , 17 Ibn Ashurs (d.1392/1973) Maqid al-Shariah al-Islamiyyah , 18 Al-Qaradawis (b. 1926/1344) Kayf Nataaamal Maa al-Qur n al-Azim , 19 and T. Al-Alwanis (b. 1935/1353) Maqid al-Shariah . 20

    The premodern jurists idea of malaa was developed to ensure that the maqid of Islamic law are preserved and protected when adjudicating legal cases. 21 Since both maqid and malaa 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 maqid cum malaa approaches to Islamic law.

    Premodern Muslim scholarship recognized that neither in the Qurn nor in the Sunna do we find a definite list of all the maqid or the masali. Premodern jurists, as a product of their ijtihad, have identified several maqid (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 masali are potentially limitless and change according to time and context. 24

    Importantly, the majority of premodern jurists restricted the scope of the maqid to those falling outside the