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Renewal of Ijtihād and Its Role in Enforcing View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by The University of Arizona 1 THE POSSIBLE STATE? RENEWAL OF IJTIHĀD AND ITS ROLE IN ENFORCING SHARIA THROUGH THE INTELLECTUAL PROJECT OF JAMĀL AL-DĪN ʻAṬĪYA by Muhammad El Fiky ____________________________ Copyright © Muhammad El Fiky 2019 A Thesis Submitted to the Faculty of SCHOOL OF MIDDLE EASTERN AND NORTH AFRICAN STUDIES In Partial Fulfillment of the Requirements For the Degree of MASTER OF ARTS In the Graduate College THE UNIVERSITY OF ARIZONA 2019 2 THE UNIVERSITY OF ARIZONA GRADUATE COLLEGE As members of the Master's Committee, we certify that we have read the thesis prepared by Muhammad EI Fiky, titled The Poss ibleState ? Renewal of Ijtihadand Its Role in Enforcing Shariah through the Intellectual J}/'oject� iil al-Dfn 'Atfya and recommend that it be accepted as fulfilling the dissertlio� �i ent for the Master's Degree. Date: -----5/7/2019 t Date: s/ro/f• ,' / I f-:) ?i f-· ,, ]tfo�7 {_u: _,-,<fr ':..L (_ . Date: 5/7/2019 /Scott Lucas Final approval and acceptance of this thesis is contingent upon the candidate's submission of the final copies of the thesis to the Graduate College. I hereby certifythat I have read this thesis prepared under my direction and recommend that it be accepted as fulfillingthe Master's requireffient. Date: 5/7/2019 Yaseen Noorani Master's Thesis Commi�u111 School of Middle Eastern & North African Studies 3 ACKNOWLEDGEMENTS I would like to express my gratitude to many people who have been crucial to the production of this thesis. I am grateful to my family who have shown a great deal of support and encouragement. I am indebted to my friends at Alexandria, especially Amira al-Sobky and Nihal abu al-Kheir, who were generous with their time to scan the necessary documents and books. I am grateful to my committee (Dr. Yaseen Noorani, Dr. Leila Hudson and Dr. Scott Lucas) for their valuable comments. I am extremely indebted to my advisor, Dr. Yaseen, for his advice and patience to review multiple versions of this thesis and his support on many occasions. I am also very grateful to Dr. Hudson for providing guidance, encouragement and perceptive comments. Dr. Hudson has been very generous with her time with me and with many students at MENAS. I am indebted to MENAS graduate students for providing incredible support and encouragement. I am particularly grateful to El-sayed Issa, Britany Elizabeth-Power and Lara Tarantini, for providing assistance to untangle the intricacies of academia and navigate it, almost, safely. 4 Table of Contents Abstract .......................................................................................................................................... 6 1. Introduction ............................................................................................................................... 7 1.1. Points of Reference .......................................................................................................... 15 1.2. Sharia and Modernity ...................................................................................................... 17 Chapter I: Limitations of Sharia Codification ......................................................................... 23 1. Functionality of Positive Laws ............................................................................................. 24 2. Anglo-Muhammadan Law ................................................................................................... 29 2.1. Drafting of the Anglo-Mohammadan Law ............................................................................................ 31 2.2. Limitations and Challenges ................................................................................................................... 34 3. The Mecelle ......................................................................................................................... 37 3.1. Organization and Content ...................................................................................................................... 40 4. Mashrūʻ Taqnīn al-Sharīʻah al-Islāmīyah ʻalá al-Madhahib al-Arbaʻa .................................. 43 4.1. Content and Methodology ..................................................................................................................... 44 4.2. Case Study ............................................................................................................................................. 46 4.3. Challenges and Limitations ................................................................................................................... 50 5. Conclusion ........................................................................................................................... 52 Chapter II: ................................................................................................................................... 54 Formation, Trends and Renewal of Ijtihād ............................................................................... 54 1. Ijtihād in the Formative Period ............................................................................................ 55 2. Modern Trends towards the Practice of Ijtihād .................................................................... 62 3. Ijtihād and the Modern Legal Structure .............................................................................. 67 4. Conclusion ........................................................................................................................... 78 Chapter III: ................................................................................................................................. 79 The Ijtihād Institution and Renewal of Maqāṣid ...................................................................... 79 1. Introduction ......................................................................................................................... 79 2. Biographical and Intellectual Background ........................................................................... 80 2.1. Literature Review .................................................................................................................................. 83 3. Ijtihād according to ʻAṭīya ................................................................................................... 86 3.1. The Ijtihād Institution ............................................................................................................................ 93 3.2. Ijtihād Institution, Judiciary and Executive Bodies ............................................................................... 99 4. Objectives of Sharia ( Maqāṣid al-Sharī’ā ) .......................................................................... 101 4.1. The Maqāṣid as They Pertain to the Individual ................................................................................... 105 5 4.2. The Maqāṣid as They Pertain to the Family ........................................................................................ 108 4.3. The Maqāṣid as they Pertain to the Umma .......................................................................................... 111 4.4. The Maqāṣid as they Pertain to Humanity........................................................................................... 114 4.5. Realization of Maqāṣid ........................................................................................................................ 117 5. Conclusion ......................................................................................................................... 120 Conclusions ................................................................................................................................ 122 Bibliography .............................................................................................................................. 125 6 Abstract Sharia has occupied the center of attention to Muslim and non-Muslim scholars alike. The term, Sharia, in itself, is controversial, sometimes is exaggerated and often misinterpreted. When it comes to the different ways in which Sharia is to be applied, we find many suggestions and methods emanating from within the Islamic parlance. But such approaches focus, for the most part, on the renewal of the Islamic sciences. There is paucity of literature that examines the integration of Sharia into the social and, more importantly, legal fabrics of the nation-state. In this thesis, I examine the different ways in which Sharia has been applied or proposed to be applied. I examine the integrative approach advocated by Jamāl al-Dīn ʻAṭīyah in institutionalizing collective ijtihād and the new classification of maqāṣid, and its role in the new Juristic system. 7 1. Introduction Application of Sharia has consistently been a highly controversial topic. According to a poll reported by Pew research center, a vast population of Muslims in many Muslim maJority countries firmly believe that Sharia should be applied. However, the surveyed participants expressed their concern about aspects regarding Sharia application, e.g. the penal code that includes flogging and amputation.1 These concerns resonate with the Western depiction of Sharia in media outlets as violent and raise similar concerns with religious minorities and the secular bloc in Muslim maJority countries. The predilection to apply the Sharia is coupled with various concerns, most notably two: content and structure.
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