Individual Thinking and the Shari'ah Based System of Governance


“I am a human being; if I order you to do something regarding your religion you must comply. But if I order you to do something on the basis of my opinion, well I am just a human being. You know better in matters concerning your worldly affairs.”[1] - Prophet Muhammad

Radical Islamist movements frequently argue that “Islam is the solution” to all the Muslim predicaments and that the “Qur’an is the [only] constitution.”[2] Following this line of argument, Sayyid Qutb often insisted it was imperative for the Muslim ‘umma to fully implement the Shāri’ah as the embodiment of the Islamic teachings, and that “Islam must be taken or rejected in its entirety.”[3] He also numerously warned us of “the danger of secularism that lurks insidiously in the interstices of rationalist discourse.”[4]  Coulson seems to further reiterate this argumentation and states, “The law is the blueprint to which the structure of society and State must … conform,”[5] as if Islam was a literal submission to all that was already set in stone. These views indicate a clear prejudice against the individual thinking among Islamists and call for a scriptualist application of the laws of Islam; a view often shared by secular or non-Muslim Western politicians, political scientists and the media.[6]

A thorough analysis of the jurisprudential heritage of Islam could, however, indicate the contrary and advocate for “defining the Shāri’ah primarily by its ‘empty spaces’”[7] open for engaging reason in the legislative process based on the fundamental values of Islam. This essay argues that the Shāri’ah law cannot be static or inherently against the individual thinking. Fyzee claims that “laws are like metals in the crucible of the time and circumstance.”[8] They evolve, change and transform according to historical and geographical requirements. And so does the Shāri’ah with its rich jurisprudential heritage spanning across the fifteen centuries of Islam. It will be maintained here that the dynamism and historicity are natural for the Shāri’ah, a system of law that holds the individual thinking in its core.

This argument will be defended by the assessment of two fundamental juristic tools of the Shāri’ah: the independent interpretation of law (ijtihād) and the scholarly disagreement (ikhtilāf). Moreover, the examination of the concept of public benefit or welfare (malaah); arguably the “embodiment of the spirit of Islamic law;”[9] will epitomise the central position of the individual thinking and the interest of humans in Islam. Shāri’ah, although somewhat limits the scope of individual thinking in the process of legislative change and governance, it does not preclude its existence, neither does it diminishes its importance. It will be argued here that reason is at the very centre of Islamic jurisprudence.
Abou El Fadl maintains, “Islam [is] defined in the first instance by [its] underlying moral values.”[10] These values originate in the Qur’an and Sunnah of the Prophet. They also constitute the core of the Shāri’ah law; in the form we know it today.[11] However, this is precisely the point, where the whole problem begins. How do we understand and interpret these values? How do we legitimately apply them to our human living? Is the letter of once written valid for all times? Ali has purportedly once explained that “The Qur’an is but ink and paper, and it does not speak for itself.”[12] So who speaks for Islam?



Initially, this dilemma gave rise to two opposing schools of epistemology and ontology: the Ash’arites and the Mu’tazilites. Their intellectual activities, to a large degree, were rooted in the fundamental dichotomy between reason and the revelation; a dichotomy, arguably, inherent to any revealed religion.[13] Opposing views on the nature of something morally good was the fundamental division between them. The Ash’arites argued that it was the God’s revelation that constituted one thing inherently good or bad. They also claimed that “the human intellect [was] incapable of arriving at moral knowledge”[14] independently. The Mu’tazilites, on the other hand, praised the human intellect and believed that acts are inherently good or bad and that humans are capable of recognizing these differences[15]. The historical ‘victory’ of the Ash’arite School is sometimes argued to be the reason for the demise of the Islamic civilization. Hasan Hanafi, reportedly, refers to it as a “tyranny” of irrationalism and an “authoritarian control over the Shāri’ah in the service of the ruling classes.”[16]

Assessing the space available for the individual rational thinking within the Islamic law and governance deems it also necessary to draw a fundamentally important distinction within the Islamic legal theory (uūl al-fiqh).  A distinction between the very core of Islamic law – the ‘divine’ revealed Shāri’ah; or the ideal of the Islamic law as it is sometimes argued;[17] and the positive rulings and laws – the fiqh – that one normally associates with the Shāri’ah. There appears to be a common consensus among all the jurists and the ‘ulamâ that “… fiqh is a rational endeavour, which does not command the same authority as that of the Shāri’ah.”[18] This very distinction has clear implications for our examination. It indicates that as the fiqh is a result of individual judgements of the scholars and the mujtahids[19], the individual thinking by essence is inherently imbedded in the very structure of that law. This argument could well explain the vast diversity of the juristic scholarship, a historical fact often utilised by the modernists to indicate the dynamism of the Shāri’ah. As Johnston would argue, “Shāri’ah is divine, but in everyday life we experience it as ijtihâd .”[20] Nonetheless, this distinction opens yet another door to a further dispute inherent to Islamic jurisprudence – one about the scope and limits of both the fiqh and the Shāri’ah.

These two notions are extremely difficult to delineate in the form of widely accepted limits and boundaries. Fyzee argues, “Shāri’ah is the wider circle, it embraces in its orbit all human actions; fiqh is the narrower one, and deals with what are commonly understood as legal acts.”[21] Some puritans take it even further and claim the fiqh to apply to “no more than 10 percent of all legally pertinent issues,”[22] thus leaving 90 percent of legal issues within the scope of the immutable divine letter of the Qur’an and Sunnah. Muhammad al-Ashmawi would perhaps agree with the Fyzee’s statement, however his understanding of the Shāri’ah would be distinctly different from those of Fyzee or Kamali. ‘Liberal’ modernists, like al-Ashmawi, insist that the Shāri’ah is predominantly “the way or method of Islam.” And that “in the Qur'an it does not mean either law (qānūn) or legislation (tashri’).”[23] Therefore, the Shāri’ah provides us with a set of fundamental values rather than any fixed juristic rulings applicable to all times. This assumption, although theoretically disputed by the radicals, such as Khomeini, is often implemented in the day-to-day practice of the Islamic law.[24] It also indicates significant potential for pluralism in the process of legislation and governance within Islam.

Furthermore, Kamali reminds of yet another principal division within the fiqh (or perhaps the Shāri’ah).[25] He notes, “The corpus juris of fiqh is divided into the two main categories of devotional matters (‘ibādāt) and civil transaction (mu‘āmālat).”[26] Due to the fact that Muslim scholars seem to attach different values to both categories, this distinction appears vital for our assessment. There seems to be a relative consensus on the divinity of ‘ibādāt and that the legal injunctions of the ‘ibādāt originate in the Qur’an and Sunnah. Krämer claims that: “While the ibādāt are eternal and immutable, the mu‘āmālat can be adapted to the changing requirements of time and locality.”[27] Therefore, it appears to be an agreed-upon fact that ‘ibādāt is not subject to ijtihâd.[28] Nonetheless Mahmoud Muhammad Taha argued that, notwithstanding the immutability of ‘ibādāt, “the laws relating to acts of worship might change.”[29] One could then argue that, although the centrality of the Muslim prayer (alāt) is indisputably enshrined in the Qur’an, the ways we pray may evolve according to various localities and historical circumstances.[30] Although, individual thinking is clearly restrained here, some scholars still manage to find the inherent ‘gaps’ available to reason and ratiocination.

Even, in case one accepts the immutability and untouchability of the ‘ibādāt, Shāri’ah still demonstrates a significant openness to individual reasoning.[31] “No relation whatever”, argues Mahmasani, “exists between Islam and matters of daily living, unless these are concerned with a principle of religion.” He then follows to call on the Muslims “to adhere to their religion and ethical code, [but] manage their ways of life according to the spirit of Islam and requirements of science and civilization.”[32] This direction clearly indicates an effort to disassociate oneself with the scriptualism of Qutb, radical Hanbalis or the historical Zahiris,[33] as well as the infamous longstanding tradition of imitation of the previously established rulings (taqlīd) so characteristic for the ahl al-sunnah (“people of the tradition”). One must also remember that the practice of ijtihâd was “considered the ultimate act of worship (‘ibādāh)”.[34] Hallaq even argues “the practice of ijtihâd to be a religious duty (fard kifāya) incumbent upon all qualified jurists.”[35] Therefore, as the historical data indicates, all groups that fiercely opposed the practice of legal interpretation were eventually expelled from the Sunni Islam or did not survive the test of history.[36]
The institution of ijtihâd is fundamentally and essentially inherent to the essence of the Shāri’ah. The Prophet is believed to have insisted that “every mujtahid [was] correct.”[37] In fact, every mujtahid is believed to deserve a reward for his attempt to come closer to the meaning of the God’s law. Imam al-Juwayni has even attributed the Prophet with the following: My command to my servants is in accordance with the preponderance of their beliefs. So whoever preponderantly believes that they are obligated to do something, acting upon it becomes My commandment.”[38] However, surely there cannot be more than just one objective truth. This dilemma indicates the importance of ikhtilâf (scholarly disagreement). Ikhtilâf could arguably constitute the reason behind a universal agreement on the legitimacy of four distinctly different schools of Islamic jurisprudence.[39] Moussalli argues that “difference, and not uniformity, has been the major characteristic of Islamic social and political organisation and thought.”[40] Ironically, the state of contemporary Islam appears to be quite different.[41]
The validity of the notion of ikhtilâf is extremely difficult to oppose. Its legitimacy is attributed to one of the ādīth of the Prophet. It argues that “the disagreement of my community is a source of mercy.”[42] Indeed, the history of Islamic epistemology indicates that active engagement in ikhtilâf facilitated a substantial growth of the Islamic civilisation. However, should there be any limits to this disagreement? A following quote from Shafi’i’s Al-Risāla could perhaps explicate the large extent of its applicability:
“Shafi’i: Imagine it is you and I, and we are both knowledgeable as to the means (of finding the Ka'ba). I say: this is the qibla; and you say something different. Which one of us must follow his companion?
Interlocutor: Neither.
Shafi’i: What must be done?
Interlocutor: If I say it is not incumbent on them to pray until they attain certain knowledge (iāa), (that is impossible) for they can never know for certain what they cannot see. Then, they must either neglect prayer, or the duty of facing the qibla is removed. But I cannot maintain either of these views. I see no alternative to asserting that each one may pray in whatever direction he considers right, and that they are not charged (taklif) with anything else.”[43]
It would then appear that ikhtilâf is limitless. The above example clearly relates to issues that fall into the category of ibādāt; one that is argueably immutable. Therefore, it is imperative for this discussion to mention that most of the ‘ulamâ who taught on the doctrines of heterogeneity of opinions in fiqh, often would also lecture endlessly about “the dangers of corrupt innovations (bid’ah), fitan, and the evils of intellectualism and theological disputations (‘ilm al-kalam).”[44] Although, ikhtilâf  is encouranged in Islam, one should consider the welfare of the wider community before its application. Qur’an warns: “Do not be like those who, after they have been given clear revelation, split into factions and fall into disputes: a terrible punishment awaits such people.”[45] Qaradawi also asserts that ikhtilâf, although being a Qur’anic principle, is now a matter of the past, as the ‘gate of ijtihâd (‘insidâd bâb al-ijtihâd) is closed.[46]
Last but not least, the notion of legal change that is fundamentally linked to the individuality predicament in the Shāri’ah is compellingly epitomised in the juristic concept of malaah. Opwis claims that the idea of public welfare first gained its importance in the fifth century of Islam, due to the works of al-Ghazali. It is believed to be “the embodiment of the purpose of the law” ever since.[47] Although, malaah is not a structural mechanism of the Shāri’ah, it certainly proved to be the facilitator of major legal changes[48]. It also gave rise to four distinctly varying schools of thought. The scholarship of these schools appears to embody the diversity of opinion relating to the legitimacy of individual thinking within Islam.

All four schools widely accepted the idea that Shāri’ah must always serve the purpose of attaining the highest possible level of individual and public welfare (malaah). However, they varied with respect to how much of the ‘unattested malaah’ may facilitate legislative change.[49] Al-Ghazali most notably argued against the puritan groups of his age that claimed “the best interests of humanity [were] served by strict application of the law to human conduct and behaviour. Using reason [was] thus absolute anathema.”[50] The Ghazali/Razi school recognised that the Shāri’ah is essentially dynamic but insisted that in order to legislate a new law that does not have a direct ratio legis in the established fiqh, ‘unattested malaah’ must constitute a pure necessity, which would then secure “one of the essential elements of human existence (religion, life, intellect, offspring, and property).”[51] Maliki jurist al-Qarafi, on the other hand, suggested that an established legal ruling may be changed when “undesired results would follow its application.”[52] Although, both these schools aimed at minimisation of the necessary legal changes, they actively used human reason and rational thinking to bring amendments to the previously recognized body of legislature.

The later two schools of a Hanbali jurist al-Tufi and a Maliki al-Shatibi were much more liberal in their position towards the Shāri’ah. Opwis notes that in the event of an unprecedented situation the “Al-Tufi’s model allows for legal change in all areas except worship.”[53] One can clearly notice a considerable move away from the Islamic scriptualism. Al-Shatibi generally followed the al-Tufi’s model, however he also advanced an even more controversial solution. He stressed the difference between the Meccan and the Medinan suras and the Sunnah. He argued that the latter stem from the values inherent to the former, therefore somewhat indicating the priority of the Meccan over the Medinan suras. This approach eventually gave rise to the tradition of contextualisation of the Qur’an and Sunnah characteristic to some of the Islamic modernists and even some Islamists.[54] Taha is certainly one of the most startling examples of such scholars. He stated: “The historical laws of the Medinan revelation, he maintained, not only lose their binding nature under changed circumstances, but should be changed when the implementation of the principal laws can be achieved.”[55] Such a controversial view would be quite certainly fiercely opposed by Khallaf or al-Buti, who emphasised that not only was the human intellect “incapable of … grasping the rulings laid down in the Shāri’ah” but also that a valid malaah may under no circumstances abrogate the Qur’anic or Sunnaic rulings.[56]
The above raised question of the (in)existence of any legitimate space for individual thinking in the Islamic Shāri’ah is in its essence a question about the nature of that legal phenomenon.. Fifteen centuries of Islamic jurisprudence seem to strongly indicate a clear presence of intense independent activities of the Muslim jurists. The fact that there is, indeed, no conclusive consensus on the exegesis of the law or its very nature, proves the intrinsic diversity surrounding the Shāri’ah. Moreover, the absence of any definite and clearly delimited canon of laws and regulations, as well as the existence of potentially four different interpretations of the law (each according to a different madh'hab) indicate, in my opinion, the Shāri’ah’s ability to adapt, change and accommodate the individual in their historical and geographical circumstances.

Nonetheless, it remains imperative that there are some certain limitations imposed on the individual thinking and reason. The divinity of some parts of the Shāri’ah, be it its inherent values extrapolated from the positive rulings suitable for particular circumstances or the arguably immutable ‘ibādāt, has never been widely negated among the Muslims. In fact, negation of that divinity would certainly, for the majority of Muslims, indicate an act of apostasy. However, the acceptance of the divinity of the Shāri’ah does not automatically preclude the application of reason or the individual thinking and disagreement within the Islamic law and governance. Classical Islamic legal tradition is “an outright normative pluralism”, as advanced by Oussama Arabi.[57] The pluralistic nature of the Islamic sciences brought about a large heritage of heterogeneity in the Muslim  ‘umma. Wael Hallaq best concludes this examination saying: “Admittedly, Islamic law cannot be said to have internal uniformity, since pluralism of opinion – the so-called ijtihâdic pluralism – is its definining feature par exellence.”[58]



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Bibliography
Abou El Fadl, Khaled M. And God Knows the Soldiers: The Authoritative and Authoritarian in Islamic Discourses. Lanham and Oxford: University Press of America, 2001.
—. Islam and the Challenge of Democracy. Edited by Joshua Cohen and Deborah Chasman. Princeton and Oxford: Princeton University Press, 2004.
—. The Great Theft: Wrestling Islam From the Extremists. New York: HarperSanFrancisco, 2007.
Akhavi, Shahrough. "The Dialectic in Contemporary Egyptian Social Thought: The Scripturalist and Modernist Discources of Sayyid Qutb and Hasan Hanafi." International Journal of Middle Eastern Studies (Cambridge University Press) 29 (1997): 377-401.
al-Juwayni, Imam al-Haramayn. Kitab al-Ijtihâd min Kitab al-Talkhis. Damascus: Dar al-Qalam, 1987.
Arabi, Oussama. Studies in Modern Islamic Law and Jurisprudence. The Hague, London, New York: Kluwer Law International, 2001.
Ayubi, Nazih N. Political Islam: Religion and Politics in the Arab World. London and New York: Routledge, 1991.
Bowen, John R. "Salat in Indonesia: The Social Meanings of an Islamic Ritual." Man (New Series) 24, no. 4 (December 1989): 600-619.
Calder, Norman. “Ikhtilâf and Ijmâ' in Shâfi'î 's Risâla.” Studia Islamica (Maisonneuve & Larose), no. 58 (1983): 55-81.
Coulson, Noel J. "The State and The Individual in the Islamic Law." The International and Comparative Law Quarterly (Cambridge University Press) 6, no. 1 (January 1957): 49-60.
Eteraz, Ali. “Beyond Islamic Enlightment.” The Guardian. 11 October 2007. http://www.guardian.co.uk/commentisfree/2007/oct/11/beyondislamicenlightenment (accessed December 01, 2009).
Fyzee, Asaf A.A. "The Reinterpretation of Islam." In Islam in Transition Muslim Perspectives, edited by John J Donohue and John L. Esposito, 151-156. New York and Oxford: Oxford University Press, 2007.
Griffel, Frank. “Introduction.” In Shari'a: Islamic Law in the Contemporary Context, edited by Abbas Amanat and Frank Griffel, 1-19. Stanford: Stanford University Press, 2007.
Haleem, M. A. S. Abdel, trans. The Qur'an. Oxford: Oxford University Press, 2005.
Hallaq, Wael B. Shari'a: Theory, Practice, Transformations. Cambridge: Cambridge University Press, 2009.
—. "Was the Gate of Ijtihâd Closed." International Journal of Middle Eastern Studies (Cambridge University Press) 16 (1984): 3-41.
Johnston, David L. "'Allal Al-Fasi: Shari'a as Blueprint for Righteous Global Citizenship?" In Shari'a: Islamic Law in the Contemporary Context, 83-103. Stanford: Stanford University Press, 2007.
Kamali, Mohammad Hashim. Shari'ah Law: An Introduction. Oxford: One World Publications, 2008.
Krämer, Gudrun. "Drawing Boundaries: Yusuf Al-Qaradawi on Apostasy." In Speaking For Islam: Religious Authorities in Muslim Societies, edited by Gudrun Krämer and Sabine Schmidtke, 181-217. Leiden: Brill, 2006.
—. "Islamist Notions of Democracy." Middle East Report (Middle East Research and Information Project), no. 183 (Jul-Aug 1993): 2-8.
Mahmasani, Subhi. "Adaptation of Islamic Jurisprudence to Modern Social Needs." In Islam in Transition: Muslim Perspectives, edited by John J. Donohue and John L. Esposito, 145-150. New York and Oxford: Oxford University Press, 2007.
Moussalli, Ahmad S. The Islamic Quest for Democracy, Pluralism, and Human Rights. Gainesville, Florida: University Press of Florida, 2001.
Niknam, Azadeh. "The Islamization of Law in Iran: The Time of Disenchantment." Middle East Report (Middle East Research and Information Project), no. 212 (Autumn 1999): 17-21.
Opwis, Felicitas. "Islamic Law and Legal Change: The Concept of Maslaha in Classical and Contemporary Islamic Theory." In Shari'a: Islamic Law in the Contemporary Context, edited by Abbas Amanat and Frank Griffel, 62-82. Stanford: Stanford University Press, 2007.
—. “Maslaha in Contemporary Islamic Legal Theory.” Islamic Law and Society (Koninklijke Brill NV) 12, no. 2 (June 2005): 182-223.
Shepard, William E. "Muhammad Sa'id al-'Ashmawi and the Application of the Shari'a in Egypt." International Journal of Middle East Studies (Cambridge University Press) 28, no. 1 (February 1996): 39-58.
Strathern, Andrew. Contesting Rituals : Islam and Practices of Identity-Making. Durham, N.C.: Carolina Academic Press, 2005.
Tibi, Bassam. "The Clash of Shariah and Democracy." The New York Times. September 16, 2005. http://www.nytimes.com/2005/09/16/opinion/16iht-edtibi.html (accessed December 1, 2009).



[1] This ādīth, as reported in Sahih Muslim, Book 30, Hādīth5831, is cited in: Subhi Mahmasani, “Adaptation of Islamic Jurisprudence to Modern Social Needs,” in Islam in Transition: Muslim Perspectives, ed. John J. Donohue and John L. Esposito, (New York and Oxford: Oxford University Press, 2007), p.149.
[2] Nazih N. Ayubi, Political Islam: Religion and Politics in the Arab World (London and New York: Routledge, 1991), pp. 230-238.
[3] Shahrough Akhavi, “The Dialectic in Contemporary Egyptian Social Thought: The Scripturalist and Modernist Discources of Sayyid Qutb and Hasan Hanafi,” International Journal of Middle Eastern Studies (Cambridge University Press) 29 (1997), p. 395.
[4] ibid., p. 387
[5] Noel J Coulson, op.cit., p. 50.
[6] For examples see: Bassam Tibi, “The Clash of Shariah and Democracy,” The New York Times, 16 September 2005, http://www.nytimes.com/2005/09/16/opinion/16iht-edtibi.html (accessed December 1, 2009), and Noel J Coulson, “The State and The Individual in the Islamic Law,” The International and Comparative Law Quarterly (Cambridge University Press) 6, no. 1 (January 1957): 49-60.
[7] Gudrun Krämer, “Drawing Boundaries: Yusuf Al-Qaradawi on Apostasy,” in Speaking For Islam: Religious Authorities in Muslim Societies, ed. Gudrun Krämer and Sabine Schmidtke (Leiden: Brill, 2006), p. 205. Gudrun Krämer follows in this instance the terminology coined by Malcolm Kerr.
[8] Asaf A.A. Fyzee, “The Reinterpretation of Islam,” in Islam in Transition Muslim Perspectives, ed. John J Donohue and John L. Esposito (New York and Oxford: Oxford University Press, 2007), p.152.
[9] Felicitas Opwis, “Islamic Law and Legal Change: The Concept of Maslaha in Classical and Contemporary Islamic Theory,” in Shari'a: Islamic Law in the Contemporary Context, ed. Abbas Amanat and Frank Griffel (Stanford: Stanford University Press, 2007), p. 62.
[10] Khaled M Abou El Fadl, Islam and the Challenge of Democracy, ed. Joshua Cohen and Deborah Chasman (Princeton and Oxford: Princeton University Press, 2004), pp. 4-5.
[11] The term Shāri’ah does not exist in the Qur’an in any of the legalistic meanings we have come to associate with it. In fact, Shāri’ah initially meant a ‘pathway to the source of water’, a ‘method’, or a ‘way’. Subsequently, with the passage of time, its meaning was more and more often associated with the growing body of Islamic legislature based on the original values epitomised in the Qur’an and the Sunna.
[12] Abou El Fadl 2004, op. cit., p. 8
[13] It could be argued that a similar dichotomy was at the foreground of the Christian reformation movement of Martin Luter, John Calvin and others. It was often stated that the Roman Catholic dogmatism and legalism were precisely the factors that cut people off from the Good News of the Christian Gospel. An argument that resembles some liberal modernist ideas that legalism and dogmatism of the Shāri’ah and fiqh cut the Muslims off from the ‘true’ meaning of the Qur’an.
[14] Opwis 2007, op. cit., p. 64.
[15] ‘Abd al-Rahman ‘Azzam supports this idea and maintains, “it is up to reason and experience to distinguish correct from incorrect action….” See Shepard, op. cit., p. 41.
[16] Akhavi, op.cit., p. 390.
[17] Abou El Fadl 2004, op. cit., pp. 30-31.
[18] Mohammad Hashim Kamali, Shari'ah Law: An Introduction (Oxford: One World Publications, 2008), p. 41.
[19] A term used for Muslim scholars engaging in the process of individual interpretation of the law (ijtihâd). There is a long and interesting debate on the necessary prerequisites of a mujtahid. Due to a limited scope of this essay, this issue will not be discussed here. However, it is important to notice that the notion of introducing very strict and demanding rules of becoming an mujtahid are believed to be one of the reason for the demise of ijtihâdic activity in Islam. For further details see: Wael B. Hallaq, “Was the Gate of Ijtihâd Closed,” International Journal of Middle Eastern Studies (Cambridge University Press) 16 (1984): 3-41.
[20] David L. Johnston, “'Allal Al-Fasi: Shari'a as Blueprint for Righteous Global Citizenship?,” in Shari'a: Islamic Law in the Contemporary Context (Stanford: Stanford University Press, 2007), p. 96.
[21] Fyzee, op. cit., p. 151. See also: Kamali, op. cit., p.100 for a similar statement.
[22] Khaled M Abou El Fadl, The Great Theft: Wrestling Islam From the Extremists (New York: HarperSanFrancisco, 2007), p. 151
[23] William E. Shepard, “Muhammad Sa'id al-'Ashmawi and the Application of the Shari'a in Egypt,” International Journal of Middle East Studies (Cambridge University Press) 28, no. 1 (February 1996), p. 43. For a similar argument see Hallaq, op. cit., p. 4. Hallaq normally speaks of indications (dalalaq) that lead to the causes (‘illa) of the legal rulings, as incorporated in the fiqh.
[24] Khomeini once argued, “Any law, which is incompatible with Shāri’ah is not a law.” This injunction, however, proved to be highly impractical for the Islamic Republic. Iranian realities forced the regime to implement subsequent emendations of the Islamic law. See: Azadeh Niknam, “The Islamization of Law in Iran: The Time of Disenchantment,” Middle East Report (Middle East Research and Information Project), no. 212 (Autumn 1999), p. 20.
[25] The question of locating this division in either of the two structures is somewhat problematic. As noted above the two notions are often used synonymously, thus proving it rather confusing. However, following the argument that the Qur’an and the Shāri’ah are essentially not legal structures, I will then assume here that this division falls into the scope of the fiqh.
[26] Kamali, op. cit., p. 42.
[27] Gudrun Krämer, “Islamist Notions of Democracy,” Middle East Report (Middle East Research and Information Project), no. 183 (Jul-Aug 1993), p. 4.
[28] In this essay, the notion of ijtihâd is employed as “the maximum effort expended by the jurist to master and apply the principles and rules of uūl al-fiqh for the purpose of discovering God's law.” See Hallaq, op. cit., p. 3.
[29] Opwis 2007, op. cit., p.208
[30] Diversity of rituals in the Muslim ‘umma appears to substantiate this argument. For further examination of this heterogeneity of rituals see: John R. Bowen, “Salat in Indonesia: The Social Meanings of an Islamic Ritual,” Man (New Series) 24, no. 4 (December 1989): 600-619. Ahmad S. Moussalli, The Islamic Quest for Democracy, Pluralism, and Human Rights (Gainesville, Florida: University Press of Florida, 2001), pp. 92-93. Also: Andrew Strathern, Contesting Rituals : Islam and Practices of Identity-Making (Durham, N.C.: Carolina Academic Press, 2005), specifically worth noting is the Rasmussen article on the African Sufi women and their role in the ritual change.
[31] ‘Ibādāt determines only issues related to the five pillars of Islam (the profession of faith, the prayer, the alms, the pilgrimage, the fasting) and the rules of inheritance. 
[32] Mahmasani, op. cit., p. 150.
[33] In terms of their epistemology and ontology, Zahiris argued for the restriction of reason and adherence to the letter of the revealed sources. Abou El Fadl cites their famous mottos: “Dominion belongs to God” and that “Qur’an is the judge.” See: Abou El Fadl 2004, p. 8.
[34] Abou El Fadl 2001, op. cit., p. 11.
[35] Hallaq, op. cit., p. 5.
[36] See Abou El Fadl 2007, op. cit., p. 152-153, and Hallaq, op. cit., pp. 8-9. Arguably, even the Hanbali school of jurisprudence (madh'hab), which often proved to be the safe haven for the proponents of taqlīd, faced a severe threat of extinction in the late 19th century. It is believed to have only survived through the efforts of the rising al-Saud family and their entrenched Wahhabism.
[37] Abou El Fadl 2004, op. cit., p. 24. This ādīth had, however, various interpretations. Two distinct schools of theology evolved in the process of explication of this particular ādīth: the mukhatti’ah and the musawwibah. The former claimed that there is a correct answer to every single dilemma, however this will only be revealed during the Day of Judgement. The latter, on the other hand, argued that there is no one correct answer. Otherwise, there would be no reason why God would not have revealed it in the Qur’an. For further details see: Abou El Fadl 2004, op. cit., pp. 86-87 and pp. 50-51.
[38] Imam al-Haramayn al-Juwayni, Kitab al-Ijtihâd min Kitab al-Talkhis (Damascus: Dar al-Qalam, 1987), p. 61.
[39] The number of madh'hab was much higher in the first few centuries of Islam, however only four survived till today. These are: the Hanafi, the Hanbali, the Maliki and the Shafi’i. This diversity has always been highly respected. In fact Malik refused the proposal of the Caliph al-Mansur to implement the Maliki law as the uniform law of the caliphate. He argued “that there is no exclusive claim over the Divine truth.” See Abou El Fadl 2001, op. cit., pp. 24-25
[40] Moussalli, op. cit., p. 97.
[41] Abou El Fadl supports this realisation and argues, “There is no doubt that there are tremendous pressures in contemporary Islam to deny and negate this complexity.” See Abou El Fadl 2001, op. cit., p. 28
[42] Kamali, op. cit., p. 117. This particular ādīth is often cited by various scholars. For further examples see: Abou El Fadl 2001, p. 25; Mahmasani, op. cit., p. 147 and Norman Calder, “Ikhtilâf and Ijmâ' in Shâfi'î 's Risâla,” Studia Islamica (Maisonneuve & Larose), no. 58 (1983), p. 67.
[43] Calder, op. cit., pp. 64-5.
[44] Abou El Fadl 2001, op. cit., pp. 25-26.
[45] M. A. S. Abdel Haleem, trans., The Qur'an, (Oxford: Oxford University Press, 2005), sura 3:105, p. 42.
[46] Krämer 2006, op. cit., p. 197. The idea of the ‘insidâd bâb al-ijtihâd is quite eloquently disputed by Hallaq in his 1984 article on the very issue.
[47] Opwis 2007, op.cit., p. 63.
[48] Frank Griffel, “Introduction,” in Shari'a: Islamic Law in the Contemporary Context, ed. Abbas Amanat and Frank Griffel, 1-19 (Stanford: Stanford University Press, 2007), p. 17.
[49] The notion of ‘unattested malaah’ refers to the rationes legis, which implementation is asserted to bring about or increase the ‘general good’ or ‘public interest’, but do not find their scriptural basis in the fundamental four sources of the fiqh, namely the Qur’an, the Sunnah, the consensus of the jurists (‘ijmā) or the juristic analogy (qiyās).
[50] Abou El Fadl 2007, p. 157 Abou El Fadl moves even further to recognise a startling similarity between these groups and the contemporary Wahhabi movement that understand the Shāri’ah to render such value as rationality, reasonableness and common sense “redundant and unnecessary”. The injunctions of the law are for them by definition rational and reasonable and therefore there is no need for individual thinking or a legislative change of any kind.
[51] Opwis 2007, op. cit., p. 67
[52] ibid., p.71
[53] Opwis 2007, op. cit., p. 69.
[54] It has even been argued that Osama bin Laden’s position on the mutability of laws or rather the need for creating completely new sets of laws would fit this characteristic. For details see: Ali Eteraz, “Beyond Islamic Enlightment,” The Guardian, 11 October 2007, http://www.guardian.co.uk/commentisfree/2007/oct/11/beyondislamicenlightenment (accessed December 01, 2009).
[55] Felicitas Opwis, “Maslaha in Contemporary Islamic Legal Theory,” Islamic Law and Society (Koninklijke Brill NV) 12, no. 2 (June 2005), p. 207.
[56] Opwis 2007, op. cit., p. 78.
[57] Oussama Arabi, Studies in Modern Islamic Law and Jurisprudence (The Hague, London, New York: Kluwer Law International, 2001), p. 194.
[58] Wael B. Hallaq, Shari'a: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), p. 368.


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