Pragmatism in Islamic Law. A Social and Intellectual History
PRAGMATISM IN ISLAMIC LAW – Book Sample
Introduction – PRAGMATISM IN ISLAMIC LAW
Tn may 2011, ‘Abd al-Mun‘im Abū al-Futūh, an Egyptian presidential candidate and former member of the Muslim Brotherhood (MB), surprised many Egyptians when he unequivocally rejected the Islamic legal punish-ment for apostasy.1 Although Abū al-Futūh is seen as a progressive ﬁgure within the MB, many of his supporters and opponents were shocked at his disregard for premodern Islamic substantive law. Almost simultaneously with Abū al-Futūh’s announcement, a recorded sermon by a Muslim ˙
preacher associated with the purist Salafī movement in which he called for jihad as a solution to the country’s economic problems, went viral on the Internet.2 According to this famous and controversial preacher, the booty taken from enemies, including prisoners of war, could give a boost to Egypt’s economy although it would entail legalizing slavery again to bring back this lucrative trade.3
Despite the sensationalism and politicization with which the media covered the circulating video, these episodes highlight the points of tension between general conceptions of modernity and notions of cultural purism.
Such oscillation between the embracement of modernity and its dis-courses, on the one hand, and a purist rejection of such discourses, on the other, has characterized the debates among diff erent factions seek-ing to deﬁ ne Islam in a post–Arab Spring Egypt.
The fall of the Mubarak regime in 2011 heralded a new era, which gave momentum to the debate about the reinstatement of Islamic law. Modern purists (known as Salafīs) called for a million-person demonstration in Cairo’s Tahrir Square to demand the restoration of Sharī‘a.
According to them, Egypt’s 2011 Revolution presented a golden opportunity to end the centuries of persecution that had started with Mehmed Ali’s reign (r. 1805–48).4
The demonstration sent shock waves through liberal circles and even within al-Azhar, which views purist legal interpretations with scorn. Despite the toppling of the Muslim Brotherhood’s President Mohamed Morsi and the heavy crack-down on the Islamist (and non-Islamist for that matter) opposition to the new order, Islamic law remains an important point of contention in post-Morsi Egypt.5
I use “Islamic law” to refer to furū‘ (substantive law), usūl al-fi qh (legal ˙
methodology), and ﬁ qh (jurisprudence), but with the caveat that the sub-
ject matter of “Islamic law” includes doctrines related to ethical values and ritual practice that do not fall within the purview of law in the strict sense in British or Continental European legal systems. My use of “Islamic law” should therefore be understood to refer to ethical, ritual, and legal doctrines, as well as to legal methodology and the link between the two in which legal methodology is applied to gain an understanding (ﬁ qh) of substantive law. The word Sharī‘a is most often used in the primary sources to mean simply substantive law, but sometimes (especially in the modern period) a clear distinction is drawn between Sharī‘a, which is divine law as lodged in the mind of God, and ﬁ qh, human approximations and understanding of the divine ideal.6 Owing to the complexity of the term Sharī‘a and its little understood evolutionary path into modernity, I will generally avoid using the Arabic word unless I am citing the primary or secondary sources.
In the early twentieth century, the eff orts made to codify personal status laws across the region were largely aimed at accommodating mod-ern notions of equal citizenship and the nuclear family. Some reform-ers viewed Islamic legal doctrines, juristic interpretations, and laws as discriminatory toward women and minorities. Their project aimed to create laws that were “modern” while maintaining Islamic authenticity by remaining committed to the Islamic scriptural sources. The modern architects of reform used both ijtihād (individual legal reasoning), which refers to “the interpretation of scripture directly with no intermediate authorities standing between the sources and the individual jurist,” and doctrinal eclecticism to achieve these objectives.7 This eclecticism was a process in which the doctrines of the four Sunnī schools were drawn upon to select the least stringent juristic opinion (known in the primary sources as tatabbu‘ al-rukhas or takhayyur), or where two juristic opinions were combined in the same legal transaction (known in the primary sources as talfīq).
I place the three terms (more on them below) associ-ated with this phenomenon under my conceptual category pragmatic eclecticism, for they all denote the eclectic utilization of legal pluralism to achieve pragmatic objectives.8
The term pragmatic and its derivatives such as pragmatists or darūra-pragmatists are not intended to refer to an author’s weltanschauung, but simply to his position on this particular issue. In other words, al-Subkī (d. 683/1284) and al-Zarkashī (d. 794/1392) might be seen as taking a pragmatic approach on legal pluralism, but a nonpragmatic approach on another issue.
A case in point is al-Ghazālī (d. 505/1111) and al-Shātibī (d. 790/1388), who, despite their famous opposition to pragmatic eclecticism, were the champions of the theory of public weal (mas a).9…
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