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Introduction to Islamic and Middle Eastern Law FS16Prof. Dr. Andrea Büchler

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Perspectives: Contemporary Approaches and Discourses 2

Contemporary Muslim Scholars

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Contemporary Muslim ScholarsFazlur Rahman

1919 - 1988, born in Pakistan

BA and MA in Arabic at Punjab University in Lahore; studies in Islam and philosophy at Oxford University

Director of the Pakistan Central Institute of Islamic Research

Member of Pakistan‘s Advisory Council of Islamic ideology until 1968; collision course with Pakistan‘s powerful religious establishment because of his modernist vision of Islam and critical view of the Islamic tradition

Exiled to the US, Professor at UCLA and University of Chicago

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Contemporary Muslim ScholarsFazlur Rahman: Critique on traditional Islam

Reasons why Islam cannot deal with modern problems

Islamic thought was replaced by a scholarship that is based on commentaries

Closing of the gate of ijtihad

Islamic methodology is based solely on taqlid

Denial of historical context to the revelation

Renewal of Islamic thought: Historical critique of the legal, theological and mystical developments in Islam

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Contemporary Muslim ScholarsFazlur Rahman: Hermeneutics

Double movement theory

First movement of juristic thought from the particular to the general

Exploration of specific Qur’anic cases in order to arrive at general principles

Second movement of juristic thought from the general to the particular

The general principles arrived at under the first movement are used to formulate laws relevant to modern times

Qur’anic message is the same for people of the time of revelation and today

Qur’an is a book of moral and religious principles not a legal text book

Multiple interpretations are essential to the survival of the religion

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Contemporary Muslim ScholarsFazlur Rahman: Islamic State

The concept of shura should apply to an Islamic state

When making important decisions an elected leader should be aided by a Legislative Assembly which represents the will of the people

Democracy

Justification: Qur’ans emphasis on equality and justice

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Contemporary Muslim ScholarsFazlur Rahman: The role of women

Qur’an proclaims relatively equal position of women

[24:31] does not oblige women to wear a veil

Women should be allowed to work outside of their homes

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Contemporary Muslim ScholarsFazlur Rahman: Extracts I“A historical critique of theological developments in Islam is the first step toward a reconstruction of Islamic theology. This critique … should reveal the extent of the dislocation between the worldview of the Qur’an and various schools of theological speculation in Islam and point the way toward new theology.” (Rahman, Islam and Modernity, Chicago 1982, p. 151-152)

„The Qur‘an puts forward the idea of a unique God to whom all humans are responsible and the goal of eradication of gross socioeconomic inequity” (Rahman, Islam and Modernity, Chicago 1982, p. 5)

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Contemporary Muslim ScholarsFazlur Rahman: Extracts II

“The teachings of the Qur‘an can be seen as „directed towards the creation of a meaningful and positive equality among human beings. As such the Islamic purpose cannot be realised until genuine freedom to human beings is restored and freedom from all forms of exploitation – social, spiritual, political and economic- assured.“ (Rahman, Some Reflections on the Reconstruction of Muslim Society in Pakistan, Islamic Studies 6, (1967), p. 103)

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Contemporary Muslim ScholarsAbdolkarim Soroush

Born in Tehran in 1945

Graduation in analytical chemistry, studies in history and philosophy of science in London

After the revolution in1979 he returned to Iran and became part of an effort to reform the educational system to make it more Islamic

In the 1990s he became the subject of harassment and state censorship following controversial articles on religious pluralism, hermeneutics, tolerance, and clericalism in the magazine Kiyan, of which he was co-founder. In 1998, the magazine was closed down by the direct order of the Supreme Leader of the Islamic Republic

Since 2000 he has been a visiting Professor at Harvard, Yale, Princeton, Georgetown and others

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Contemporary Muslim ScholarsAbdolkarim Soroush: Hermeneutics I

Distinction between religion (“as intended by God”) and temporal human knowledge of religion

Understanding and knowledge of the essence of religion by men is relative

One cannot make religion contemporary because religion, as it is comprehended by human beings, is contemporaneous. It is not Islam that must be changed, but rather the human understanding of Islam.

Human cognitive abilities are bounded by time and place

Humanity only grasps the (socio-temporal) existence of religion, not its (divine-absolute) essence

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Contemporary Muslim ScholarsAbdolkarim Soroush: Hermeneutics II

God has revealed religion. The moment religion enters human subjectivity it inevitably becomes particular, and culturally and historically contingent

Religious knowledge corresponds to other mundane knowledge. It is related to and inspired by non-religious knowledge.

Religious knowledge is progressive. Its progress depends on changes in human understanding of the physical world and on new shared values of human societies

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Contemporary Muslim ScholarsAbdolkarim Soroush: Islam and Democracy

Theory: Democratic Religious Government

The state is religious and democratic insofar as it reflects and realizes the general values and goals of the society

How should interaction between state and religion be?

Three main goals:

Reconciliation of people’s satisfaction with God’s approval

Striking a balance between the religious and the nonreligious

Doing right by both the people and by god, acknowledging the integrity of human beings and religion

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Contemporary Muslim ScholarsAbdolkarim Soroush: Human rights

Religion needs to be logical and ethical; but human rights and justice are extrareligious issues

Men possess human rights that are compatible with, yet not defined in, religion

An acceptable religion is just and justice entails respect for human rights

Only a democratic government can guarantee human rights and is based on the will/faith of the people

Conclusion: It is possible to democratize the state without diminishing the public role of Islam in society

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Contemporary Muslim ScholarsAbdolkarim Soroush: Extracts“What remains constant is religion [itself] and what changes is religious knowledge” (Soroush, The Theoretical Constriction and Expansion of the Shari’ah, Teheran 1995, p. 52)

“The modernity of religious knowledge is a description rather than a prescription.” (Soroush, The Theoretical Constriction and Expansion of the Shari’ah, Teheran 1995, p. 487)

“In any event, religious governments that are based on religious societies will be democratic only when they seek to combine the satisfaction of the Creator and that of the created; when they are true both to the religious and the extrareligious concerns; and when they equally respect prereligious and postreligious reason and morality. “(Soroush, The Theoretical Constriction and Expansion of the Shari’ah, Teheran 1995, p. 130)

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Contemporary Muslim ScholarsLeila Ahmed

Born in Cairo in 1940; received a doctorate degree from the University of Cambridge before she taught in Cairo and the United Arab Emirates and was later appointed to professorships first at the University of Massachussettes, Amherst, and later at the Harvard Divinity School, where she currently holds an endowed chair

Ahmed focuses in her work on issues of gender in Islam and stereotypes of Muslim women, both products of her personal experiences as a Muslim woman living in the West

In her work, Ahmed incorporates aspects of secular feminism from Egyptian feminists together with approaches from islamically-oriented feminism

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Contemporary Muslim ScholarsLeila Ahmed: Hermeneutics

Two central messages of the Qur‘an that are supposed to set the standard for the Muslim community

Justice and egalitarianism

Absolute moral and spiritual equality of men and women [33:35]

Ideals were forgotten or ignored after the time of the Prophet, especially during the ‘Abbasid period (750-1258)

Mohammad’s regulations were relating only to that particular society at that particular moment; they were never intended to be permanently binding for the Muslim community

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Contemporary Muslim ScholarsLeila Ahmed: The role of women I

Thesis regarding the development of misogynist practices within Islam

The practices sanctioned by Mohammad within the first Muslim society were “enunciated in the context of far more positive attitudes towards women than the later Abbasid society was to have”

“The decision to regard androcentric positions on marriage as intended to be binding for all times was itself an interpretive decision, reflecting the interests and perspectives of those in power”

“The social context in which this textual edifice war created was far more negative for women than that in Arabia”

(Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate, New Haven 1992, p. 67)

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Contemporary Muslim ScholarsLeila Ahmed: The role of women II

Three areas of life where women played an active role during the early Islamic times

Warfare: Free participation in community affairs

Marriage: Neither age nor previous marriage barred women from making socially prestigious matches and negotiate marriage terms acceptable to them

Religion: Active participation

The veil and veiling:

Veiling was in use before the rise of Islam

Qur’an does not explicitly prescribe veiling:

[33:53] the term hijab should be translated as curtain

[24:31] – [24:32]: Qur’an prescribes for women “to guard their private parts and throw a scarf over their bosoms”

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Contemporary Muslim ScholarsLeila Ahmed: Qur’an and Shari’a

Qur’an provides broad general and ethical propositions

Therefore, Qur’anic prescriptions are not a valid basis for formulating specific legal prescriptions

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Contemporary Muslim ScholarsKhaled Abou El Fadl

Born 1963 in Kuwait, professor of law at the UCLA School of Law where he teaches Islamic law, immigration law, human rights law, and international and national security law

Holds degrees from Yale and Princeton Universities and received formal training in Islamic jurisprudence in Egypt and Kuwait

Abou El Fadl is an advocate for basic Human rights and a staunch critic of Saudi-Arabia’s puritanical practice of Islam known as Wahhabism, especially with regards to women’s rights. He remains grounded in the classical tradition to the extent that he continues to inform his own work with discussions from classical Islamic scholarship and sees himself as “working from within the Islamic legal tradition” (Abou El Fadl, Speaking in God’s Name, Oxford 2001)

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Contemporary Muslim ScholarsKhaled Abou El Fadl: Hermeneutics

Need of overall restructuring of Islamic law in line with universal values of the Qur’an

Rather than reliance on existing school doctrines and hadith methodology

Islamic law should be a product of rational-critical analysis of the Islamic texts and enquiry into the historical circumstances of their authorship and reception

Five elements: honesty, comprehensiveness, reasonableness, diligence, self-restraint

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Contemporary Muslim ScholarsKhaled Abou El Fadl: Islam and Democracy

Islam is compatible with democracy and Islamic values can best be expressed in constitutional democracies that protect individual rights

In order for Islam to provide theoretical support for liberal democracy, it must make the case for the sovereignty of the people and the inviolability of individual rights

A government needs to establish a social order characterized by justice and mercy in order to implement the divine mandate

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Contemporary Muslim ScholarsKhaled Abou El Fadl: Human rights

Humanistic tradition in Islam has been systematically undermined and devalued

It is not enough for a government to be bound by Shari’a in order to guarantee human rights because rules can be manipulated. It is commitment of the interpreters of law in favor of such rights that is needed.

Five basic values of necessity should act as a foundation for a systematic Islamic theory of individual rights:

Religion, life, intellect, lineage, property

The primary moral responsibility of humans is the vindication of the rights of human beings

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Contemporary Muslim ScholarsKhaled Abou El Fadl: Extracts I

“democracy … offers the greatest potential for promoting justice and protecting human dignity, without making God responsible for human injustice or the degradation of human beings by one another.” (Abou El Fadl, Islam and the Challenge of Democracy, Princeton University Press 2004, p. 5)

“principles of mercy and justice are the primary divine charge, and God’s sovereignty lies in the fact that God is the authority that delegated to human beings the task of achieving justice on earth by fulfilling the virtues that approximate divinity.” (Abou El Fadl, Islam and the Challenge of Democracy, Princeton University Press 2004, p. 21)

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Contemporary Muslim ScholarsKhaled Abou El Fadl: Extracts II“as Muslims we have been charged with safeguarding the well-being and dignity of human beings, and we have also been charged with achieving justice…acting upon the duties of vicegerency on this earth, we must take the imperative of engaging in a collective enterprise of goodness seriously, and in doing so we must be willing to persuade and be persuaded as to what is necessary for a moral and virtuous existence on this earth.” (Abou El Fadl, Human Rights Commitment, p. 157)

“A commitment in favor of human rights is a commitment in favor of God’s creation, and ultimately, it is a commitment in favor of God.” (Abou El Fadl, Islam and the Challenge of Democracy, Princeton University Press 2004, p. 30)