Maqasid al-Shari'a and Contemporary Reformist Muslim Thought

An Examination

A. Duderija

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN: 9781137323859
• eBook ISBN: 9781137319418
• Topic: Theology & Religion
• Subtopic: Comparative Law

It is the first study which comprehensively, systematically and critically examines the role and usefulness of the concept of Maqasid al-Shari'a (higher Objectives of Islamic Law) in contemporary Muslim reformist thought in relation to number of specific issues pertaining to Islamic legal philosophy, law, ethics and the socio-political sphere.

CHAPTER 1

Islamic Law Reform and Maqāṣid al-Sharīʿa in the Thought of Mohammad Hashim Kamali

Adis Duderija

Introduction

Mohammad Hashim Kamali is one of the leading contemporary scholars writing on the concept of maqāṣid al-sharīʿa as well as Muslim reformist thought. The purpose of this chapter is to closely examine his numerous writings on maqāṣid al-sharīʿa with particular focus on how he employs this concept for the purpose of reforming Islamic law. In the first section of this chapter, I describe the nature of Islamic reform in Kamali’s thought as encapsulated in the two terms he frequently employs: tajdīd haḍari (civilizational renewal) and siyāsa al-sharīʿa (maqāṣid al-sharīʿa–compliant method of governance). In the second section, I discuss how Kamali’s understanding of the nature and the delineating features of the Qurʾān, the Sunna, and the relationship between revelation and reason creates space for the reform of Islamic law. In the third section of this chapter, I focus on some specific methodological considerations Kamali discusses in rethinking existing premodern uṣūl al-fiqh mechanisms for reform purposes by linking them to the concept of maqāṣid. These include maṣlaḥa, istiḥsān, ijtihād, ijmāʿ, qawāʿid (legal maxims), ḥikma, ʿilla, and asbāb al-nuzūl. In the fourth section, I discuss the main arguments outlined by Kamali for the need for and the importance of maqāṣid-oriented Islamic law reform. I also describe his original contributions to the topic of the nature and the salient features of maqāṣid and their identification. Finally, I outline his proposal on the new methodology of maqāṣid and his views on the future tasks and challenges for maqāṣid-oriented uṣūl.

Brief Biographical Note

Mohammed Hashim Kamali was born on February 7, 1944, in Lalpur, Nangarhar, Afghanistan. He received his bachelor’s degree in law and political science from Kabul University in 1965 and his master’s degree in law (comparative law) and his doctorate from the University of London in 1972 and 1976, respectively. Most of his teaching career has been spent at McGill (Montreal, Canada) and the International Islamic University (Kuala Lumpur). He has been very active in a number of committees and has chaired several of organizations. He is the founding chairman and CEO of the International Institute of Advanced Islamic Studies, Malaysia, and editor-in-chief of its journal, Islam and Civilisational Renewal, that began with publication in 2008.¹

Nature of Islamic Law Reform: Tajdīd Haḍari and Siyāsa al-Sharīʿa

Kamali has been advocating for reform in Islamic thought and in Islamic law and legal theory, in particular, for well over two decades. His call for reform is framed under two important concepts, namely, the notions of civilizational renewal (tajdīd haḍari) and siyāsa al-sharīʿa. What underlies both of these reform-related concepts is Kamali’s acute awareness that for Islamic law reform to take place, it must be authentically grounded in Islamic legal theory (uṣūl al-fiqh) and in the broader Islamic intellectual and cultural heritage generally.²

Kamali’s conceptualization of this authentic reform is captured in two concepts that he employs regularly, namely, tajdīd haḍari and siyāsa al-sharīʿa, on which I shall elaborate next. All of his reform-related efforts must therefore be viewed through this larger prism of the need for authentic reform. The idea of tajdīd haḍari is often employed by Kamali in the context of defining and discussing another major concept in his thought, namely, Islam haḍari, or civilizational Islam, which has a strong Malaysian-specific context. Since the purpose of this section of this chapter is to shed light on the employment of the concept of tajdīd as a tool for Islamic law reform, I am interested in discussing the Islam haḍari concept only insofar as it is useful for us to understand the nature of tajdīd as a means of Islamic law reform in Kamali’s thought. In his discussion of the definition, nature, and scope of Islam haḍari, Kamali asserts that the idea of tajdīd, or renewal, is central to it because it is “germane to every aspect of Islam haḍari and is an entrenched aspect of Islam as we have known it.”³ Importantly, apart from noticing its value of “authenticity” as a concept that is firmly rooted in the history and the normative sources of Islam, Kamali defines tajdīd as an inherently open and contextual process that, unlike taqlīd and ijtihād, cannot be subject to a predetermined methodology and framework.⁴ He argues further that tajdīd is representative of “the need for renewal, interpretation and ijtihād”⁵ especially on issues that do not have a historical precedent in the Islamic tradition. Kamali defends the need for tajdīd not only on the basis of its embeddedness in the Islamic historical experience but also by asserting that Muslim communities have, over time, “lost touch” with the “original impulse and premises of Islam,” which have been diluted or even lost due to “taqlīd, colonialisation, and rampant secularism.”⁶

Significantly, Kamali, in the context of delineating the scope of tajdīd, links this concept with that of maqāṣid. Here he makes a distinction between two types of tajdīd, both of which he considers to be valid and authentic. The first type of tajdīd can be directly linked to, and is subsumed under, the five essential maqāṣid. The second kind of tajdīd does not need to be traced back to the five essential maqāṣid and is valid as long as it does not alter “the immutable norms and principles of Islam,” by which Kamali means the basic beliefs and pillars of Islam. In the case of this second type of tajdīd, Kamali believes that it is not necessary to provide affirmative evidence from the Qurʾān and Sunna in order to prove tajdīd’s acceptability.⁷ Finally, Kamali considers tajdīd to be a dynamic process/concept that is both specific and responsive to the prevailing societal circumstances to which it is being applied at any given point in time.⁸ Such a characterization and definition of tajdīd clearly permits Kamali to widen the scope of reform that is not bound by the legal methodologies inherited from the past.

The tajdīd haḍari approach to reform is closely linked to another important reform-related concept as devised and employed by Kamali, namely, that of siyāsa al-sharīʿa. Kamali uses this phrase to refer to a method of governance that is in accordance with the goals and objectives of al-sharīʿa. Siyāsa al-sharīʿa, according to Kamali, is a comprehensive doctrine and in its widest sense applies to all government policies—political, legal, social, civil, military, or administrative—be it in areas where the al-sharīʿa provides explicit guidelines or otherwise.⁹ Unlike previous twentieth-century “secular” approaches to reform in the Muslim world, siyāsa al-sharīʿa by its very name is suggestive of a sharīʿa oriented policy that, as an instrument of flexibility and pragmatism in al-sharīʿa, is devised to uphold the cause of justice and good government, especially when the rules of al-sharīʿa are found lacking in guidance or fall short of addressing certain situations or developments. Kamali repeatedly highlights that the policy measures that are taken in the name of siyāsa al-sharīʿa must be al-sharīʿa compliant, as “the purpose of it is to generally to facilitate rather than circumvent the implementation of sharīʿa.”¹⁰

Kamali, in his numerous writings, has unequivocally expressed his view of the need for Islamic law reform for a number of different reasons both internal and external to the religious tradition. In this context he remarks:

The increased isolation of sharīʿa from the realities of law and government in contemporary Muslim societies accentuates the need for fresh efforts to make the al-sharīʿa a viable proposition and a living force in society. Our problems over taqlīd are exacerbated by the development of a new dimension to taqlīd as a result of Western colonialism which has led to indiscriminate imitation of the laws and institutions of the West. The prevailing legal practice in many Muslim countries, and indeed many of their constitutions, are modeled on a precedent that does not claim its origin in the legal heritage of Islam.¹¹

Elsewhere he states that the recent Islamic revivalist thought has increased Muslim awareness of the need to renew links with their heritage and find their own solutions to the issues that concern them by returning to the al-sharīʿa as its mos...

Table of contents

• Cover
• Title
• Contemporary Muslim Reformist Thought and Maqāṣid cum Maṣlaḥa Approaches to Islamic Law: An Introduction
• 1   Islamic Law Reform and Maqāṣid al-Sharīʿa in the Thought of Mohammad Hashim Kamali
• 2   Yusuf al-Qaradawi’s Purposive Fiqh: Promoting or Demoting the Future Role of the ʿulamāʾ?
• 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)
• 4   Maqāṣid al-Sharī‘a in Contemporary Shī‘ī Jurisprudence
• 5   Maqāṣid or Sharī‘a? Secularism, Islamic Reform, and Ethics in Modern Turkey
• 6   Maṣlaḥa and Rachid al-Ghannushi’s Reformist Project
• 7   On Reading Shāṭibī in Rabat and Tunis
• 8   Maqāṣid al-Sharīʿa, Gender Non-patriarchal Qurʾān-Sunna Hermeneutics, and the Reformation of Muslim Family Law
• 9   A Case Study of Patriarchy and Slavery: The Hermeneutical Importance of Qurʾānic Assumptions in the Development of a Values-Based and Purposive Qurʾān-Sunna Hermeneutic
• Bibliography
• Notes on Contributors
• Index