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Islamic Legal Theory within the R@H Project
Gender considerations are often not fully contemplated and theorised in the application
of maslaha. For maslaha to succeed as a policy directive it requires extensive remedial work.

On the other hand, it may well be that many jurists using maslaha are clandestinely rewriting some of the presumptions of Islamic law. This is what may be called reform by stealth. For instance, in the work of Abduh, Rida, Tahir al-Haddad, Fazlur Rahman, Soroush, Qaradawi, Subhi Mahmassani, and Subhi Salih, maslaha is invoked from time to time. The same may perhaps be said of Hojjat al-Islam Sa`idzadeh and, before him, Baqir al-Sadr, although the latter was more systematic and requires closer scrutiny. Some of their references to maslaha, for example their argument, in the case of laws applying to women, that the evidence of two women being equal to that of one man is no longer valid, are positive. Such use of maslaha does affirm women’s equality and effectively re-writes the law in this and other instances. However, it is redemptive rather than emancipatory.

Whether one takes the high road of a complete overhaul of Muslim jurisprudence or the low
road of piecemeal changes and adjustments, there is an unmistakable tendency to turn away from either taqlidi or ijtihadi approaches. And the search for contextually located social justice is an important part of this new trend. The training programme must be able to illustrate the struggle for a new way by honestly revealing the vagaries of different approaches. The realization of social justice can become both a broad based goal of social transformation, and a specific end of singular cases. The goal that law must deliver social justice. `Adl, justice, is not an optional outcome of Islamic law, but the essence of it. It may well be that the social justice outcome is negated by certain interpretations of Islamic law.

In the history of Islamic law there has been a tension between two almost opposing
approaches to the law. On the one hand, law is viewed as the command of the sovereign
Law-Giver, Shari`. Compliance to the will of this Law-Giver is essential. While this is a rather simplistic rendition of what constitutes Islamic law, the rhetoric of the supremacy of Godgiven law, with the emphasis on given, is extremely powerful and intimidating to lay persons.

One needs to point out the truth of the matter: that even those who advocate the position of law as the command of the sovereign have to admit that human mediation of the law is necessary. In many cases, the person or group that decides what is the divine law wields tremendous power.

The alternative approach, which is increasingly dominant within ijtihadi circles, is one in
which law is said to fulfil social ends and public interests (sing., maslaha, pl. masalih). While this approach has classical antecedents, in the modern period this approach is increasingly viewed as the legal philosophy of choice and viewed as the life-saving element of Islamic law.

In one respect, resorting to maslaha and finding solutions, albeit temporary ones, does make important interventions in the practice of law. In contemporary practice maslaha-based interventions provide relief in several spheres of Muslim practices, especially in the area of gender rights. Given the roots of this concept in classical sources it is at least partly supported by traditionalists who have some liberal leanings. Other traditionalists, of course, balk at its invocation, perhaps more out of conservatism than out of principle. Many
traditionalists argue that maslaha arguments pushed too far may abrogate the corpus of
Islamic law. If viewed as a transitional strategy towards re-thinking Islamic jurisprudence,
such a move is a healthy and productive one.

The current application of maslahi jurisprudence is ad hoc, unsatisfactory, and limiting. One needs a more far-reaching and systematic re-thinking of jurisprudence, which will upgrade juridical methodologies and absorb fundamental assumptions and major changes in human society into the body of the Muslim legal imagination. The complete reductionism of the entire corpus of Islamic law and legal theory to the purpose of maslaha is indicative of a larger problem: the refusal to re-imagine and innovate in the field of legal theory. It is
convenient to capitulate to earlier concepts, often in an expedient manner, rather than think critically. Thus it may bring short-term relief in law, but forecasts bad news for creative juridical thinking in the long term.

Current invocations of maslaha must be open to scrutiny and critique. Maslaha is used as a
blunt instrument to validate every practice, often in support of capitalism and liberalism.
Philosophically, this search for inspiration in past constructions also makes Muslim
jurisprudence seem backward-looking. This approach decapitates and negates critical
jurisprudence, impeding juridical interrogation and serious questioning. It reinforces the idea that the past holds the key to present and future salvation. Maslaha has become the rhetoric of a jurisprudence of complacency and an unquestioning subservience to dominant
ideological trends.

How is the public interest (maslaha) quantified? Who constitutes the group that determines
public interest? The invocation of maslaha is often left to traditional legal experts or
modernist experts who do not necessarily consult with constituencies to determine the
shape, form, and content of the public interest. In order for public interest to succeed as a policy directive of Muslim laws it requires greater sophistication, complexity, and theorisation to make it functional in a meaningful manner. Economics, development, and environmental For example, one major question that preoccupies students of Islamic law today is how to manage the transition of Islamic jurisprudence that is primarily based on constructions of status to a law based on the assumptions of rights. In pre-modern Muslim jurisprudence and contemporary formulations thereof, status remains the major presumption of the law. In other words, whether you were male, female, free person or slave, believer or unbeliever was decisive. The key question and challenge to revisionist scholarship is to explore whether Islamic jurisprudence can make the transition to a rights-based juridical tradition, with its own particularities notwithstanding, or whether there is a third way, beyond status and rights.

Social Construction of Muslim Laws

One particular dimension of the new thinking which illustrates the paradigm shift and takes itforward is the awareness that Muslim laws are socially constructed. The workshop demonstrated repeatedly that, just as Muslim laws respond to today’s societal and individual needs, earlier books and texts reveal that classical law responded to the needs of those
societies.

We need to point out to trainees that jurists and jurisprudence are part of social and historical milieus. Ideologies, individual tastes, subjectivity, customary and societal norms, state policies, economics and politics, in addition to several other factors, all contribute to the making of law.

One of the goals of this workshop was to guide trainees to the awareness of how pre-modern Muslim laws and jurisprudence were socially constructed. Our strategy was to emphasise the pre-modern period of law, mainly because it has an aura of authenticity. Citing Imam Shafi`i, al-Nawawi, Allama Hilli, or Ibn Taymiyya rings much more authentic to audiences than, say, the authority of Shaykh Yusuf al-Qaradawi, Ayatullah Khomeini, Baqir al-Sadr, or Shaykh al-Uthaymin, even though there is no doubt that the latter individuals also have loyal followers.

Whatever the choice of subject matter, the goal was to show the dynamic between societal changes and the manner in which laws were formulated and subsequently and repeatedly reformulated at work. Once this trend can be established in a convincing manner, the tendency among people to believe that law is revealed, unchangeable, and immutable may be challenged. In order to do so, exercises may be devised based on readings of classical texts.

The social construction of Islamic law is an important dimension of the new paradigm. It points to the human element in the formulation of Islamic law. It helps to uncover the ideological and political (ab)use of law, which is often presented as being divine in origin. The increasing awareness of this subjective element introduces the possibility of seeking a more positive and progressive understanding and implementation of Islamic law.

Social Justice We come now to the third dimension of our Advanced Training Programme, which is also connected to the paradigm shift. The particular implementation of Islamic law by some states over the last few decades has had disastrous consequences. Instead of producing a framework for better societies, the application of Islamic law has resulted in repression and authoritarianism. Most of these programmes have stressed the value of obedience to the law, and only paid lip service to other values.

Our programme was intended to demonstrate that, among other outcomes of the application of Islamic law, such as obedience to God, loyalty to the community etc., there is the central revitalisation; change usually occurs only by stealth and over a long period. This approach is often described as the taqlidi approach.

Many Muslim reformers, both modernist and traditionalist, criticise this method. Part of the criticism is aimed at the guardians of the taqlidi approach for failing to keep the juridical tradition alive in terms of intellectual creativity and innovation. Called the ijtihadi approach, the new school is less strict about maintaining the authority of interpretive traditions; those who adopt it feel authorised to have direct access to the source texts of Islamic law, such as the Qur’an and Sunnah, and make ab initio or new interpretations that can in turn supply new interpretations and practices of the law. This approach was at first widely advocated by the Salafi movement at the turn of the previous century (19th) century, and has become dominant in modernist, reformist, and revivalist movements. During the course of the twentieth century, the Salafi approach has itself become a new tradition, a new dominant way of reading and developing Islamic law. Many traditionalists now see this approach as desirable and are ready to abandon their previous, complex, tradition-based approach. The Salafi approach may be thought of a paradigm shift on its own. It has commanded allegiance and supporters in all parts of the world, and promises to deliver an enlightened and modern approach to Islamic law.

The practice and application of Islamic law in various countries over the last few decades has exposed the shortcomings of both the earlier taqlidi and the modern salafi frameworks. The shortcomings are the result of many different factors. For one, states have rushed to seize upon Islamic law as a form of legislature that can be implemented through the organs of national states. Islamic law has been exposed to the ambitions and decrees of politicians, who have engineered and justified coups, mobilised the masses, and launched election platforms in its name. In short, Islamic law has been rendered a political tool. State involvement has completely altered the meaning and nature of Islamic law, whether taqlidi or salafi approaches are adopted. Even the use of Islamic law as a collective noun for Shari`ah, fiqh, fatawa and ahkam exposes the way in which state terminology has affected how we think about our subject.

Another difficulty of the existing approaches has been exposed in the application of Islamic law in communities and societies. Societies have changed so dramatically that earlier assumptions and understandings of self, gender, history, rights, duties, society, and community are no longer appropriate. Many of these critical presumptions are neither
questioned nor taken into account in the application of Islamic law. Muftis often give verdicts, whether progressive or conservative, which are based on imagined models and assumptions.

An unfortunate effect of the existing approaches, even in this text as a whole, has been the use of binary pairs to speak about the trends. Some are called modernists while others are traditionalists; some are orthodox while others are heretical; some are progressive while others are reactionaries. These terms are misleading because most modernizers seek change in very limited spheres of Muslim life, such as insisting on the need for women’s education but neglecting to address other inequalities in social and political life. On the other hand, some figures branded as ‘traditionalists’ or ‘orthodox’ may propound social visions that are far more attuned to the spirit of modernity than those who claim to be modernist.

If we pay attention to the deeper structural transformation of our societies, then we will come to realise that a major re-think is needed, and is indeed underway. The Islamic law trainers in this workshop have explored ways to discuss the problems of the old, and the prospect of a new, emerging framework. We are confident that a new framework will take shape as a result of this reflection and open debate.

Outline of the Islamic Legal Theory Component of the Rights at Home Workshop,1 The following three themes constituted the core of the Islamic legal theory component of the Advanced Training workshop:
1. A Paradigm Shift
2. The Social Construction of Muslim Laws
3. Social Justice at the heart of Muslim laws

These three themes are interlocking and overlapping, and should be taken as a whole. Together they crystallise the challenges for thinking about Islamic law in human-rights contexts. They take into consideration some of the recent debates on the history of Islamic law, the place of ijtihad (independent extrapolation of law), and the need to implement just
solutions in communities and societies.

Paradigm Shift in the Study of Islamic Law

For some time now scholars of Islamic law have been grappling with questions of change and stability in Islamic law. Islamic law, it has been argued, does have in-built mechanisms for change commensurate with changes in society. However, the advent of modernity, the major changes in the experiences of Muslim people, especially in urban settings, the formation of the nation state, and supply-side capitalist economics and globalisation have all posed some major and unprecedented challenges to the theories, methodologies, and assumptions in Muslim juristic traditions. These challenges and changes have been
aggressively introduced through imperialism and colonialism.

Responses to changes made under the banner of modernity have been ambivalent; some Muslims welcome the advent of modernity and its instruments while others resent them. In between these polarities, others try to obtain the best of both worlds. On the one hand, they try to benefit from the positive features of modernity. On the other hand, they seek recourse in one way or another to positive elements in the inherited tradition.

Islamic law has been particularly exposed to the polarising tendencies in Muslim societies. Some have advocated a resistance to all change, while others have proposed radical and creative approaches to modify the tradition. One way of getting beyond the deadlock of oppositional groups is to speak of a new moment in the history of Islamic law. This new moment demands a new framework and novel disciplinary practices that approach Islamic law from a new angle. New questions may be formulated and new answers sought by changing the frame in which Islamic law is placed and the perspective from which we view it. We have called this a paradigmatic shift.

The paradigmatic shift can be schematically mapped against two alternative frameworks within contemporary Islamic law. That predominant among traditionalists – irrespective of whether they be Sunni or Shi`i – holds that the accumulated tradition of interpretation should form the backbone of the law. This approach is primarily based on textual traditions and authoritative interpretations of practicing jurists. From one generation to another, from one place to another, each reading or interpretation adopts and adapts a legal opinion according to the established rules of the game. In this approach the opinion of jurists and authorities counts more than the authority of a text, even though texts are crucial to the transmission process. However, the rules of the game are not revisited frequently enough for update and 1 The key ideas were developed at a pre-training meeting held in Cape Town in March 2004 with Cassandra Balchin, Prof. Khalid Masud, Ebrahim Moosa, and Abdulkader Tayob. Moosa then drew up a document which was also circulated to Ziba Mir Hosseini. Some changes have since been incorporated. The present text has been edited in 2004 by Abdulkader Tayob for the Training Manual and the web.
 
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