Abstract
The idea of a divinely revealed Law1 has long been central to Muslim identity. As Islam developed and flourished for the vast majority of its history as the public religion of state power, doctrines of public law and political obligation, no less than matters of worship and ritual, have always been objects of intense practical concern. On this conception of religious morality, a political order is legitimate to the extent that it approximates an ideal legal order as expressed in the idea of shari’a, just as for a political liberal a political order is legitimate to the extent it approximates the terms of social cooperation as would be endorsed by parties contracting in ideal circumstances, whether something like the Original Position or an ideal speech situation.
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Notes
Yusuf al-Qaradawi, Al-Hulul al-mustawrada wa-kayfa janat ‘ala Ummatina [Imported Solutions and How They Have Wronged Our Nation] (Beirut: Mu’assasat al-Risala, 1971), 113–14. All translations from Arabic in this article are mine.
For a presentation of all of these views, see Khaled Abou El Fadl, “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries,” Islamic Law and Society 1 (1994): 141–87.
See Andrew F. March, “Islamic Foundations for a Social Contract in Non-Muslim Liberal Democracies,” American Political Science Review 101 (2007): 235–52; more generally, see Islam and Liberal Citizenship: The Search for an Overlapping Consensus (Oxford: Oxford University Press, 2009).
Jeff Spinner-Halev, “Cultural Pluralism and Partial Citizenship,” Multicultural Questions, ed. Christian Joppke and Steven Lukes (Oxford: Oxford University Press, 1999), 65–86.
Lucas Swaine’s proposal of “semi-sovereignty” for theocratic communities in liberal states is an exemplar of this model. See Lucas Swaine, “How Should Liberal Democracies Treat Theocratic Communities?” The Liberal Conscience: Politics and Principle in a World of Religious Pluralism (New York: Columbia University Press, 2006), ch. 3.
On the Indian case, see S. N. Balagangadhara and Jakob De Roover, “The Secular State and Religious Conflict: Liberal Neutrality and the Indian Case of Pluralism,” Journal of Political Philosophy 15 (2007): 67–92.
See, in particular, Swaine, The Liberal Conscience. See also: Nancy Rosenblum, Obligations of Citizenship and Demands of Faith (Princeton, NJ: Princeton University Press, 2000)
Robert B. Thigpen and Lyle A. Downing, “Rawls and the Challenge of Theocracy to Freedom,” Journal of Church and State 40 (1998): 757–73.
For a discussion of the potential legitimacy of global human rights regimes from Confucian and Islamic integralist (as opposed to theocratic) perspectives, see Joshua Cohen, “Minimalism about Human Rights: The Most We Can Hope For?” Journal of Political Philosophy 12 (2004): 190–213.
Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (New York: Oxford University Press, 2009). On Ramadan’s move from a more traditional legal perspective (referred to below) to a “post-legal” theological ethics, see Andrew F. March, “Law as a Vanishing Mediator in the Theological Ethics of Tariq Ramadan,” European Journal of Political Theory, 10, no. 2 (2011).
It is thus common to speak of orthodox Islamic moral theology as “voluntarist” or “subjectivist” as opposed to “objectivist.” Morality is voluntarist or subjectivist in the sense of being willed by God subjectively as opposed to objectivist in the sense of existing apart from God’s freely willed choices. On a voluntarist account, we simply do not know whether lying, for example, is bad. On an objectivist account, we assume that there are some acts that have an intrinsic moral attribute that even God cannot violate. See, for example, the essays in George F. Hourani, Reason and Tradition in Islamic Ethics (Cambridge: Cambridge University Press, 1985).
Ahmad al-Raysuni, al-Fikr al-maqasidi [Legal Purposive Thought] (Rabat, Morocco: Mansharat al-zaman, 1999), 129.
Jasser Auda, Maqasid al-shari’ah as Philosophy of Islamic Law: A Systems Approach (London: International Institute of Islamic Thought, 2008), xxii–iii, emphasis added.
Anas S. al-Shaikh-Ali, “Foreword” to Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law, trans. Nancy Roberts (London: International Institute of Islamic Thought, 2007), ix.
Rachid Ghannouchi, “Participation in Non-Islamic Government,” Liberal Islam: A Sourcebook, ed. Charles Kurzman (Oxford: Oxford University Press, 1998), 92.
Abd Allah Ibn Bayya, Sina’at al-fatwa wa-fiqh al-aqalliyyat [Producing Fat-was and the Jurisprudence of Muslim Minorities] (Jedda, Saudi Arabia: Dar al-Minhaj, 2007), 168–9, 181–2.
Yusuf al-Qaradawi, Fi fiqh al-aqalliyyat al-muslima [On the Jurisprudence of Muslim Minorities] (Cairo: Dar al-Shuruq, 2001), 36.
Taha Jabir al-Alwani, Towards a Fiqh for Minorities: Some Basic Reflections (Herndon, VA: International Institute of Islamic Thought, 2003), 13.
“The great responsibility of Muslims in the West is to give an adapted European shape to their identity … [k]eeping in mind … the three levels of maslaha, namely the [three levels of interests theorized to be the Purposes of Islamic law]…. Muslims, whether scholars or organization leaders, must provide European Muslims with the appropriate teachings and rulings to enable to protect and fulfill their identity”; Tariq Ramadan, To Be a European Muslim (Leicester: Islamic Foundation, 1999), 196.
See also Tariq Ramadan, Western Muslims and the Future of Islam (Oxford: Oxford University Press, 2004), 161–3.
Abu Ishaq al-Shatibi, al-Muwafaqatfi — Usuial-fiqh [Congruencies in Legal Theory] (Beirut: Darlhya al-Turath al-’Arabi, 2001), vol. 4, 23.
Abd Allah Muhammad al-Amin al-Na’im and Yusuf al-Bashir Muhammad, Maqasid al-shari’a al-Islamiyya [The Objectives of the Islamic Shari’a] (Khartoum: al-Markaz al-Qawmi li’l-Intaj al-Islami, 1995), 26.
Muhammad al-Yubi, Maqasid al-shari’a al-Islamiyya wa ‘alaqatuha b’il-adilla al-shar’iyya [The Objectives of the Islamic Shari’a and their Relationship to the Revealed Proofs] (Riyadh: Dar al-Hijra, 1998), 192.
Muhammad al-Tahir Ibn ’Ashur, Treatise on Maqasid al-Shari’ah, trans. Mohamed el-Tahir el-Mesawi (London: International Institute of Islamic Thought, 2006), 120.
Evidence for the capacity of maqasid-style reasoning to facilitate reforms of Islamic law, which we might justly refer to as “liberalizing,” can be found in two important areas: just war doctrine and treatment of the punishment for apostasy. In both cases, many jurists in the modern period have argued that the underlying purposes behind the traditional doctrines demonstrate that if those purposes can be achieved through other means, it is permissible to replace even doctrines that have grounding in revelatory texts. Thus, for many legal “modernists,” the underlying purpose behind the jihad doctrine was not the eradication of disbelief or the universalization of Islamic legal order but the preservation of Islam in a hostile world and the spreading of the Islamic mission (da’wa) to new communities. Such modernist jurists argue that in the contemporary period, Islam is no longer in danger of eradication, and that where the right to proselytize is protected, there is no need for aggressive warfare. Similarly, many scholars argue that the original purpose of the capital punishment for apostasy was solely to protect the community from outright armed rebellion (fitna). Where apostasy is merely a matter of private conscience and is not linked to a general rebellion against the state and the social order, there is no justification for executing the apostate. See, for example, S.A. Rahman, Punishment of Apostasy in Islam (New Delhi: Kitab Bhavan, 1973).
Kurt Baier, “Justice and the Aims of Political Philosophy,” Ethics, 99 (1989): 771–90 at 776–7.
For example, American Muslim writer and activist Maher Hathout offers a fully liberal account of religious freedom inclusive of non-Muslims, but he only mentions the five interests that form the maqasid as an afterthought once he has already proven his case via a long list of Koranic verses. Maher Hathout, In Pursuit of Justice: The Jurisprudence of Human Rights in Islam (Los Angeles: Muslim Public Affairs Council, 2006), 146.
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© 2014 Simeon O. Ilesanmi, Win-Chiat Lee, and J. Wilson Parker
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March, A.F. (2014). Theocrats Living under Secular Law: An External Engagement with Islamic Legal Theory. In: Ilesanmi, S.O., Lee, WC., Parker, J.W. (eds) The Rule of Law and the Rule of God. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137447760_7
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