Democracy, Human Rights and Law in Islamic Thought

Mohammed Abed Al-Jabri

• Publisher: I.B. Tauris
• Year: 2012
• ISBN:
  9780857737557
• Edition: 1
• Topic: History
• Subtopic: Middle Eastern History
• Index: History

Throughout the Middle East, and in the west as well, there has been much discussion concerning the notion of Islamic rule and the application of shari'ah by the state. Central to these debates are the three key themes that Mohammad Abed al-Jabri looks at in this book: democracy, human rights and law. Jabri, one of the most influential political philosophers in the contemporary Middle East, examines how these three concepts have been applied in the history of the Arab world, and shows that they are determined by political and social context, not by Islamic doctrine. Jabri argues that in order to develop democratic societies in which human rights are respected, the Arab world cannot simply rely on old texts and traditions. Nor can it import democratic models from the West. Instead, he says, a new tradition will have to be forged by today's Arabs themselves, on their own terms. Through analysis of contemporary Arab ideology, its doubts about democracy, whether human rights are universal and the role of women and minorities in Islamic society, he expounds on the most pertinent issues in modern political philosophy. This lively interrogation of the building blocs of western conceptions of a modern state is a classic text and is vital for all students of modern Islamic political thought.

VOLUME I

RELIGION, STATE AND THE APPLICATION OF ISLAMIC SHARĪʿAH

Introduction

1.

There has been much discussion in recent years concerning ‘religion and the state’ in Islam, and the ‘application of Islamic sharīʿah’. In most of the works on the subject, regardless of their authors’ different approaches, motives or points of view, there has been a noticeable belligerent tone, explicit in some, implicit in others. This belligerent discourse is usually motivated by a desire to invalidate the rival opinion more than anything else. It is a discourse of equivocation and refutation, which ultimately attains no new knowledge and proves no fact. Some authors have tried to avoid open controversy and have sought instead a ‘new point of view’ or a ‘contemporary reading’. In so doing, they mostly start from hypotheses with no basis in the religious texts or in the historical Arab-Islamic experience, or they resort to a far-fetched interpretation of some texts.

Some of these controversies and readings ignore, intentionally or otherwise, the difference between the cognitive and the ideological; between historical facts and mere whims or personal desires, whether in their own discourse or in that of the opponent; in the discourse of creeds, sects, ‘intellectuals’ or mujtahidūn (jurisprudents who derive legal rulings through the interpretive process of ijtihād), both past and modern.¹ This is a serious methodological fallacy. The subject of religion and state, and the application of the Islamic sharīʿah, is influenced by politics and its related needs and logic. It may be said most authorities referred to by contemporary scholars have been geared, one way or another, to suit their modern political situations. When the scholar has certain political persuasions to affirm, the truth will certainly be lost in a labyrinthine political wilderness of the past and the present.

My aim from these cursory remarks is to emphasize the necessity of establishing an authority more advanced and credible than sectarian authorities or those which were basically formulated as a point of view in support of a certain political stand. The most advanced and original of all authorities, in the historical Arab-Islamic experience, is the conduct of the Companions at the time of the Rāshidūn (Orthodox) Caliphs. Just as the texts of the Qurʾān and sunnah did not legislate for the concerns of government and politics, nor did they address the relation between religion and state in the same clear-cut and precise manner as they did other matters, such as marriage and inheritance. It follows that the basic authority, if not the only one, in the field of the relation between religion and state, and the application of the Islamic sharīʿah, is based on the conduct of the Companions. It was they who practised politics, established the state and applied al-sharīʿah on the basis of a genuine understanding of the spirit of Islam, prior to all other types of understanding which accompanied the various types of contention in the history of Islam, beginning with the one which flared between ʿAlī bin Abī Ṭālib and Muʿāwiyah. It may be said that the era of the Rāshidūn was not free from conflicting politics and opinions. This is true as no conduct is free from differences. Yet differences and their solutions form a basic factor in what I call ‘the conduct of the Companions’.

To adopt the conduct of the Companions at the time of the Rāshidūn as a basic authoritative referent (marjaʿīyah)² – or the only one when necessary – does not condemn as incorrect or devious all other authorities established by the mujtahidūn who enjoyed a high degree of knowledge, fairness and objectivity. Rather, what is needed now is to view these men as having established for themselves certain authoritative referents to address the new developments in their ages, on the one hand, and, on the other, to regulate ijtihād and define its rules. Since our own age is greatly different from the previous ages, with all the new problems and developments that could never have occurred in the time of the early mujtahidūn, the need calls for a return to the original source, when it was open to the laws, and not restricted by them, before the ‘surge of conflict’ and the rise of creeds and sects, namely, as it was at the time of the Rāshidūn Caliphs.

The rules and foundations of the uṣūl (the source principles or ‘origins’ of Islamic law and interpretive jurisprudence, e.g. uṣūl al-fiqh) laid down by the mujtahidūn to regulate the discipline of ijtihād in their times were a useful, probably necessary means: first, to initiate jurisprudential knowledge (in both religion and politics); and second, to protect such knowledge from confusion and subjectivity. But should those rules and principles be taken as necessary and useful at all times? Like all methodological rules, the rules and principles which regulate knowledge are, generally, no more than means. If such means do not match the development of learning and knowledge, they become impediments which fossilize that knowledge, thus fostering imitation (al-taqlīd) and killing the spirit of ijtihād.

To illustrate this point, we may look at two rules of jurisprudence which recur in common discussions these days. One states: ‘Reliance is on the general [meaning of the] term, not on the particularity of the cause’; the second states: ‘Rulings depend on their causes (ʿillal), not on their legal consequence (ḥukm).’ These are two methodological rules laid down by jurisprudents and fundamental savants of religion which we do not challenge under any circumstances. However, I would view them as they are in reality: namely, as related to the method laid down by the mujtahid for himself, and not as a part of religion itself. Nonetheless, as methodology is a matter of choice, some mujtahidūn have chosen methods which do not adhere to these two rules. The Companions did not abide by any such rules, nor were these terms known in their times. The concepts of the particular (al-khāṣ) and the general (al-ʿām), and the distinction between the cause (al-ʿillah) and the [legal] consequence (al-ḥikmah), were logical terms unknown to the Arab-Islamic culture before the first ‘Abbasid era, when tradition was put on record. It is true that one may find in the ‘conduct of the Companions’ what may appear as applying one rule or another, yet it is also true that the Companions did not always abide by any one rule. The only principle they observed consistently was the public good (al-maṣlaḥah) above all else. Therefore, we often see them acting in accordance with the dictates of that good, irrespective of the text, no matter how decisively clear-cut it is, when special circumstances demand a deferment of the text, as we shall see below.

Our present age has its own needs and concerns, different from those which dictated to the early fuqahāʾ (Muslim jurisprudents, scholars of al-fiqh) and uṣūlīyūn (scholars of the original sources – al-uṣūl), their rules and methods. To address these concerns and problems, we need to relinquish the restrictive methods which shackled the religious knowledge in the past and handle them instead with flexibility, while looking at those methods from a relative and historical perspective. I am calling for the deferment of previous interpretative judgments and for resorting directly to the ‘conduct of the Companions’, because the subject under discussion is of a religious nature, in the first place, which makes it mandatory to return to the ‘source’, and secondly because the ‘conduct of the Companions’ in this field was characterized by relativity and historical perspective. This rendered their action open and inspiring, making room for renewal (al-tajdīd) and ijtihād, as shall be made clear by the examples that follow.

2.

I have spoken of the necessity of rebuilding jurisprudential authority by referring to the conduct of the Companions as the guiding line. By the ‘conduct of the Companions’ I mean the whole of their political and legislative practices, whether oral or applied, on every...

Table of contents

• Cover
• About the Author
• Title Page
• Copyright Page
• Contents
• VOLUME I: RELIGION, STATE AND THE APPLICATION OF ISLAMIC SHARĪʿAH
• Introduction
• Part One: The Question of Religion and the State
• 1 Religion and the State in the Authoritative Cultural Referent
• 2 Religion and State in the Renaissance Authoritative Referent
• 3 Religion, Politics and Civil War
• Part Two: The Question of Applying al-Sharīʿah
• 4 Awakening and Renewal
• 5 Traditionalism (al-salafīyah)...or The Historical Experience of the Nation?
• 6 Extremism: Right and Left
• 7 Extremism Between Creed and al-Sharīʿah
• 8 For the Procession of Ijtihād
• 9 The Rationality of the Rulings of al-Sharīʿah
• 10 Rulings and Dependence
• 11 Every Age has its Special Needs
• 12 ‘Avoid the Ḥudūd Penalties when in Doubt’
• 13 Concerning ‘Complete Application of al-Sharīʿah’
• VOLUME II: DEMOCRACY AND HUMAN RIGHTS
• Introduction
• Part One: Democracy: Its Historical Role in the Arab World
• 1 A Demand in the Arab World
• 2 Al-Shūrā and Democracy are not One and the Same
• 3 The Difficult Birth
• 4 Partnership in Human Governance
• 5 Democracy and the Right to Speak
• 6 No Way Out Except Through a Historical Bloc
• Part Two: Democracy and the Current Arab Reality
• 7 The Problem of the Transition to Democracy
• 8 Objective Situations Conducive to Democracy
• 9 Contemporary Arab Ideology and its Doubts about Democracy
• 10 Dispersing the Doubts about Democracy
• 11 The State that Swallows up Society
• 12 Civil Society and the Elites in the Arab Nation
• 13 Elites Fear Democracy
• 14 Democracy, a Necessity
• Part Three: Cultural Implantation of Human Rights in the Contemporary Arab Conscience
• 15 Human Rights: Particularity and Universality
• 16 Universality of Human Rights in the European Point of Reference
• 17 Universality of Human Rights in the Islamic Authoritative Point of Reference: Reason and Innate Nature
• 18 The Universality of Human Rights in the Islamic Authoritative Point of Reference: Covenant and al-Shūrā
• 19 Philosophy of Human Rights and Religion
• 20 Freedom is One Thing, Apostasy Another
• 21 Women’s Rights in Islam: Between the Fundamental Principles of al-Sharīʿah and its Particular Rulings
• Part Four: Enhancing Awareness of Human Rights in Islam
• 22 The Concept of the Human Being in Modern Thought
• 23 The Concept of the Human Being in the Qurʾān
• 24 The Right to Life and its Enjoyment
• 25 The Right to Freedom of Belief, Knowledge and Difference
• 26 Al-Shūrā between the Qurʾān and the Circumstantial Interpretations
• 27 The Right to Equality and the Question of ‘Preference’
• 28 Slavery and the Rights of Women
• 29 The Right to Justice: The Strength of the Qurʾānic Text and the Vacillation of the ‘Advisory Discourse’
• 30 The Rights of the Weak Oppressed: The Right of the Poor to the Wealth of the Rich
• 31 Social Security in Islam: Necessity of Development
• 32 The Rights of God, the Rights of People: Application of al-Sharīʿah
• Notes