Maqasid book review

DATE DOWNLOADED: Tue Mar 22 20:48:32 2022 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. Felicitas Opwis, Maqasid al-Sharia and Contemporary Reformist Muslim Thought: An Examination, 23 Islamic L. & Soc'y 141 (2016). ALWD 7th ed. Felicitas Opwis, Maqasid al-Sharia and Contemporary Reformist Muslim Thought: An Examination, 23 Islamic L. & Soc'y 141 (2016). APA 7th ed. Opwis, F. (2016). Maqasid al-sharia and contemporary reformist muslim thought: an examination. Islamic Law and Society, 23(Issues 1-2), 141-146. Chicago 17th ed. Felicitas Opwis, "Maqasid al-Sharia and Contemporary Reformist Muslim Thought: An Examination," Islamic Law and Society 23, no. Issues 1-2 (2016): 141-146 McGill Guide 9th ed. Felicitas Opwis, "Maqasid al-Sharia and Contemporary Reformist Muslim Thought: An Examination" (2016) 23:Issues 1-2 Islamic L & Soc'y 141. AGLC 4th ed. Felicitas Opwis, 'Maqasid al-Sharia and Contemporary Reformist Muslim Thought: An Examination' (2016) 23(Issues 1-2) Islamic Law and Society 141 MLA 9th ed. Opwis, Felicitas. "Maqasid al-Sharia and Contemporary Reformist Muslim Thought: An Examination." Islamic Law and Society, vol. 23, no. Issues 1-2, 2016, pp. 141-146. HeinOnline. OSCOLA 4th ed. Felicitas Opwis, 'Maqasid al-Sharia and Contemporary Reformist Muslim Thought: An Examination' (2016) 23 Islamic L & Soc'y 141 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information ISLAMIC LAW AND SOCIETY 23 (2016) 141-160 IslamicLand Society brilI.com/ils BRILL Book Reviews Adis Duderija (ed.) Maqasidat-Sharza and ContemporaryReformist Muslim Thought.An Examination. NewYork: Palgrave/Macmillan, 2014. Pp. xiii + 270. Hardcover. ISBN: 978-1-13732385-9. $95. It is challenging to do justice to an edited volume in a review; space does not allow detailed discussion of all contributions, and uneven quality can compromise the value of the whole. Overall, the editor is to be congratulated for gathering a broad spectrum of current debates on maqasidal-sharta(the purposes or objectives of the law) and for including a wide variety of scholars in the field, from seasoned authors like Ebrahim Moosa and DavidJohnston to emerging young researchers such as Aydogan Kars and David Warren - though female scholars are conspicuously absent. The aim of the project, according to the editor, is to "examine the role and usefulness of maqasid a!-sharta as a philosophic-legal cum hermeneutical tool for the purposes of ... the contemporary Muslim reformist project...." (p. i). Discussions of the purposes or objectives of the law, also called the maqasid cur maslasha approach, ultimately revolve around the question of how to understand the eternal message of God's revelation and the legal system developed from it in light of the challenges posed by changing social, economic, and political environments of the modern period. Are there purposes behind God's revealed law, and, if so, should these purposes be the guiding criteria for Islamic law? In other words, are rulings revealed in the 7th century CE still relevant and binding for Muslims living today, or does the ethical message of the divine law have priority over the explicit rulings expressed in the Qur'an and the prophetic hadith? Should clear qur'anic and sunnaic injunctions be set aside if Muslims consider them incompatible with their sensibilities regarding equality, justice, and ethical conduct - values likewise anchored in Islamic scriptural sources? There are three types of chapters in the book: chapters 1, 2, 3, 6, and 7 present particular thinkers' interpretations of the purposes of the law; chapters 8 ( KONINKLIJKE BRILL NV, LEIDEN, 2016 1 DOI 10.1163/15685195-02312P06 BOOK REVIEWS and 9, both by the editor, offer a re-reading of the Qur'an's rulings on patriarchy and slavery in light of the maqasidapproach; and chapters 4 and 5 focus on the discourse of maqasid in Shi'i thought and in Turkey, respectively. The book's strength lies in its first part, namely, its analysis of the views of a broad spectrum of contemporary Muslim scholars on these questions. Common to all voices and opinions presented is a sense of the failure of previous Islamic jurisprudence adequately to integrate the purposes of the law into the law-finding procedure and the interpretation of the divine law. Contemporary scholars critique past jurists' reliance on hermeneutics that emphasize the literal and, in the words of Taha 'Abd al-Rahman, the trivial or extraneous aspects of exegesis (p. 181). By contrast, the maqasid cum maslaha approach is considered an authentically Islamic - that is, non-Western - solution to contemporary problems. Such a lowest common denominator among the multiple perspectives of contemporary Muslim legal thinking is not a bad thing. This volume brings to the fore that recourse to theories of maqasid (however defined) is not a panacea for applying the Shari'a in the modern world and that the usefulness of such an approach, in the final analysis, depends on the agenda of the interpreter. Chapter I, by Adis Duderija, engages with "Islamic Law Reform and Maqasid a!-Shart'ain the Thought of Mohammad Hashim Kamali." Duderija examines how Kamali employs the concept of maqasid to reform Islamic law. Kamali's aim is to renew Islam (tajdtd)by translating the objectives of the Shari'a into laws and institutions for contemporary society, with the proviso that the immutable norms and principles of Islam - i.e., the fundamentals of faith, basic moral values, clear .hala and haram injunctions, rituals, and specific rulings of family law - are not altered. Duderija values Kamali's articulation as a dynamic application of maqasid-orientedpolicies (legal and non-legal) that is able to evolve and accommodate changing notions of social justice, equality, human rights, education, and cooperation among nations. Yet, he also criticizes inconsistencies in Kamali's interpretation, e.g., his interpretation of the qur'anic punishment of amputation for theft in light of the purposes of the law implies that theft might be punished differently (p. 31), yet such an interpretation would alter a rule stated in the clear text of the Qur'an, a move that Kamali expressly rejects. Kamali is not alone in finding it difficult to articulate a coherent theory of legal change while retaining unambiguous textual injunctions. In chapter 2, David Johnston presents "Yusuf al-Qaradawi's Purposive Fiqh: Promoting or Demoting the Future Role of the culama?" He posits the question why Qaradawi adopts the maqasid legal methodology only late in his life, and whether the focus on maqsid undermines the authority of traditional scholars like ISLAMIC LAW AND SOCIETY 23 (2016) 141-146 BOOK REVIEWS Qaradawi in the long run. Johnston argues that Qaradawi's turn toward the maqatsidin the 199os fit his political posture as a scholar with clout in both the Muslim and non-Muslim communities. Turning to the maqatsiddid not alter Qaradawi's conservative outlook or infuse novel approaches into his legal thought. Rather, Qaradawi thereby sought to bolster the role of the duama'as guardians of knowledge (p. 59). As Johnston notes (pp. 46, 48), the crux of the issue when applying the maqatsidis the relationship between reason and revelation. Does the human intellect evaluate a purpose, such as justice (cadl), in the same manner as is intended by God? According to Johnston, Qaradawi leaves this problem unresolved or rather treats it inconsistently; sometimes he allows human reason to override a sunnaic injunction, but when it comes to the Qur'an, changes are off-limits (p. 59). Johnston concludes his chapter by arguing that the shift toward values as opposed to the literal meaning of the revealed texts is likely to strengthen the authority of the non-tulama' (p. 6o) - a trend that will only be enhanced by access to new media and the resulting democratization of knowledge. Yet, the trend toward marginalization of the culamat is, in this reviewer's view, also the result of their inability to reconcile the epistemology of the traditional usul alfiqh with that of the purposes of the law. A more radical departure from traditional Islamic law is advocated by Tariq Ramadan, as presented by David Warren in chapter 3, "Doha - The Center of Reformist Islam? Considering Radical Reform in the Qatar Context: Tariq Ramadan and the Research Center for Islamic Legislation and Ethics (CILE)." After arguing that the rise of Qatar as a center for reformist Islam was driven by security policies (and the desire to gain the approval of the West), Warren provides an analysis of Ramadan's position in his RadicalReform.There, Ramadan argues against an "adaptation reform" approach that tries to impose non-Islamic institutions and intellectual traditions on the Islamic world, instead proposing a "transformation reform" program. Ramadan, as presented by Warren,1 seeks to broaden the sources of ethical knowledge and of law and jurisprudence by approaching scripture and the sciences as "both interacting on equal footing" (p. 82). While for Ramadan the Islamic legal heritage is still an authoritative point of reference, the center of religious and legal authority has shifted toward non-tulamatspecialists in, e.g., medicine and economics who have acquired equal representation in articulating the objectives of the Sharica I Warren argues against Andrew March's interpretation of Ramadan's thought, comparing him with Edward Said (cf. Andrew F. March, "The Post-Legal Ethics of Tariq Ramadan: Persuasion and Performance in RadicalReform: Islamic Ethics and Liberation,"Middle East Law and Governance 2 [2010]: 253-273). ISLAMIC LAW AND SOCIETY 23 (2016) 141-146 BOOK REVIEWS (pp. 83, 87, 89). Like Johnston, Ramadan hopes that the ulamad themselves will participate in transforming the Shari'a into a framework of ethics rather than preserving it as a system of legal injunctions. Warren does not, however, address the implications of such a reform model for the understanding of the Qur'an as God's eternal word or how to deal with conflicting legal considerations - a common lacuna that, this reviewer believes, will be resolved only when contemporary Muslim scholars also "reform" the theology underlying the legal system. A voice seldom heard in the context of the purposes of the divine law is that of philosophers. In chapter 7, "On Reading Shatibi in Rabat and Tunis," Ebrahim Moosa remedies this situation by looking at how three North African philosophers interpret Shatibi's (d. 790/1388) theory of the maqasidal-sharfa.The Moroccan thinker Muhammad 'Abid al-Jabiri (d. 2010) re-reads Shatibi as turning from the explicatory reasoning (bayan) used by jurisprudents toward the demonstrative arguments (burhin)of the philosophers to find the moral purposes of the divine law. This higher form of reasoning allowed Shatibi to articulate universal postulates of the Shari'a that express the eternal spirit of the law. Moosa rightly criticizes Jabiri for his simplified view of Shatibi's project, dismissing the image of Shatibi as champion of demonstrative reasoning on the grounds that Jabiri ignores Shatibi's indebtedness to deductive arguments made by earlier jurists. Pushing Shatibi's theory of the purposes of the law further toward a theory of moral values is Taha 'Abd al-Rahman. As Moosa shows, he strives for epistemological coherence by arguing that all action is attached to moral values (p. 183). Law and morality are intertwined in so far as the moral aspect of law derives from the value, intention, and action associated with a legal incident that is embedded in the revealed rules. While 'Abd al-Rahman may be successful in presenting a coherent epistemology of moral theory, Moosa criticizes it as being too abstract and theoretical, failing to demonstrate its practical application (p. 187). The third philosopher Moosa discusses is the Tunisian thinker Abui Ya'rab al-Marzfiqi. Unlike others, Marzfuqi rejects the legal application of the purposes of the law, criticizing the presumption that human beings are able to know God's purposes definitely. He denounces purposive exegesis as political instrumentalism and utilitarianism that effectively repeals heavenly legislation (pp. 188, 190). Instead, Marzfi argues for separating the moral from the legal and making what he calls the "on-going normative work" (p. 189) a duty of the Muslim community as a whole, achieved with their participation and consent. In the view of this reviewer, such a proposal, if successful, may spell the end of Islamic law as a functioning legal system. In Chapter 6, "Maslahaand Rachid al-Ghannushi's Reformist Project;' Karim Sadek assesses how Ghanushi employs maslaha in his socio-political reformist ISLAMIC LAW AND SOCIETY 23 (2016) 141-146 BOOK REVIEWS project and whether his vision of the Islamic state can respect the freedom and equality of all its citizens (p. 152). Ghanushi argues that within a maqasid a!-shart'aframework the state treats all citizens as equals and ensures human rights, including the freedom of religion. Sadek challenges this argument by pointing out that it is based on the premise that non-Muslims must acknowledge the validity of the Islamic character of the state (pp. 164 f). Hence, Sadek sets out to modify Ghanushi's framework by positing that the aim of the state is to preserve maslaha as a requirement "without which life would be ruined" (p. 168). Such a raisond'6tre of the state shifts the commitment of citizens from upholding the textual basis of Qur'an and Sunna toward upholding a definition of public interest that is sufficiently minimal to constitute common ground and consensus. Sadek acknowledges that in a Muslim-majority state decisionmaking will remain in the hands of Muslims. This reviewer wonders how, without provisions for protection of minority views, such a state can avoid slipping into a tyranny of the majority. Following Sadek's lead in actively participating in the debate on the purposes of the law, Adis Duderija shows how the maqasid a! shartamay be applied to arrive at fresh interpretations of qur'anic texts. In chapter 8, "Maqasid a!-Shar'a, Gender non-patriarchal Qur'an-Sunna Hermeneutics, and the Reformation of Muslim Family Law," he re-reads several verses that traditionally have been interpreted to support a gender hierarchy; and chapter 9 does the same for patriarchy and slavery ("A Case Study of Patriarchy and Slavery: The Hermeneutical Importance of Qur'anic Assumptions in the Development of a Values-Based and Purposive Qur'an-Sunna Hermeneutic"). By placing verses pertaining to gender and slavery in their qur'anic and historical context, by highlighting the moral trajectory of revelation, and by emphasizing ethicolegal purposes (justice, righteousness, and fairness), Duderija reads the Qur'an as advocating symmetry and equality of rights between spouses and believers. Though not arriving at completely new insights, the methodology of these two chapters (chapter 9 was published previously in Hawwa 11 [2013]) strengthens the arguments of scholars like Amina Wadud, Asma Barlas, Nasr Hamid Abu Zayd, and Fazlur Rahman, to name but a few, in favor of understanding the wording of the Qur'an as a progression toward fulfilling the ultimate purposes of the Lawgiver. Rounding out the overview of contemporary voices on the maqasidare two chapters summarizing the discourse of maqasid in ShNi thought and in Turkey. In chapter 4, "Maqasida!-Sharta in Contemporary Shiui Jurisprudence," Liyakat Takim discusses the features of the reformation in contemporary Shii thought, which includes positing the Qur'an as the primary source of legal opinions, empowering reason to uncover the rationale and wisdom behind ISLAMIC LAW AND SOCIETY 23 (2016) 141-146 BOOK REVIEWS God's injunctions, and contextualizing revelation (p. 102). Iranian scholars turn toward the maqasid to justify changing the traditional interpretation of Islamic law to fit the changing environment and mastaha of humans. As in Sunni jurisprudence, values like justice are emphasized, the relativity of time and place acknowledged, and the Qur'an's ethical teachings often receive priority over .hadiths.The story in Turkey is slightly different. Aydogan Kars points out in chapter 5 ("Maqasidor at-Sharia?Secularism, Islamic Reform, and Ethics in Modern Turkey") that the Turkish discourse on the purposes of the law since the 1950s self-consciously positions itself as an authentic conservative voice defending the Islamic tradition and breaking with the secular nationalizing legal tradition of the Turkish state. Like other Sunni scholars, Turkish scholars focus on the ethical dimensions of Shari'a, which they understand as an ethical system that does not necessarily provide positive legal rules (p. 130). The breadth and depth of this edited volume are obvious. It provides a very good overview of different contemporary voices on the purposes of the law. Yet, a tighter coordination of the contributions would have ensured that common themes and unresolved issues in the maqasid at-shartadiscourses were addressed consistently, rather than being left for the individual authors to explore or ignore. Furthermore, had the various chapters been brought into conversation with one another, a final summary or analysis might have answered some of the questions posed in the Introduction (by Adis Duderija, pp. i-ii), such as the usefulness of employing theories of the maqasid in addressing the challenges of modernity. With the exception of a few contributions that stand well on their own, the book is best read as a whole in order to understand the complexities and the intellectual puzzles with which the articulators of theories of the purposes of the law struggle. Finally, the lack of consistency and mistakes in transliterating Arabic and Persian names and places in the text, notes, and bibliography are deplorable. Although the editor claims to follow IJMES rules, some authors did not follow these rules, including the editor himself, who routinely violates basic rules of consistency and the ability of correctly reverting transliterated words back into the original language. FelicitasOpwis Georgetown University [email protected] ISLAMIC LAW AND SOCIETY 23 (2016) 141-146