IJTIHĀD AND ITS RELEVANCE
Thesis submitted to Charles Sturt University
for the award of
Doctor of Philosophy
by
Rawaa El Ayoubi Gebara M.A. (Syd), M.Admin. (USEK), Dip.Pract.Mgmt. (UNE)
School of Theology
Faculty of Arts
Charles Sturt University
July 2015
TABLE OF CONTENTS
CERTIFICATE OF AUTHORSHIP ...... 5 ACKNOWLEDGEMENTS ...... 7 EDITORIAL ASSISTANCE ...... 9 TRANSLATION AND TRANSLITERATION ...... 11 GLOSSARY OF KEY TERMS ...... 13 ABSTRACT ...... 17 1 INTRODUCTION ...... 19 1.1 Background ...... 19 1.2 Review of Existing Literature ...... 20 1.3 Statement of the Problem and Significance ...... 36 1.4 Objectives of the Study ...... 37 1.5 Limitations of the Research ...... 37 1.6 Methodology, Sources and Thesis Structure ...... 39 2 THE SIGNIFICANCE OF IJTIHĀD IN ISLAMIC JURISPRUDENCE ...... 45 2.1 Introduction ...... 45 2.2 Historical Development of Sharīʿah ...... 46 2.2.1 Primary Sources and Importance of Sharīʿah ...... 46 2.2.2 Evolution of Islamic Jurisprudence ...... 57 2.3 The Meaning and Foundations of Ijtihād ...... 63 2.4 A Contemporary Approach to Ijtihād and Maqāṣid ...... 68 2.5 Ijtihād and Fatwah: The Duality of Islamic Jurisprudence ...... 72 2.6 The Relevance of Ijtihād for Muslims to the Contemporary Social Needs ...... 79 2.7 Conclusion ...... 86 3 CONTEXTUALISING THE MUSLIM PRESENCE IN AUSTRALIA ...... 89 3.1 Introduction ...... 89 3.2 Islamophobia ...... 92 3.2.1 Islamophobia in Context ...... 92 3.2.2 Islamophobia in Australia ...... 96 3.3 History of Muslims in Australia ...... 101 3.4 Challenges faced by Muslims in Australia ...... 107 3.4.1 General Challenges ...... 107 3.4.2 Specific Challenges ...... 113
1 3.5 Conclusion ...... 119 4 IDENTITY FORMATION OF MUSLIM WOMEN IN AUSTRALIA ...... 121 4.1 Introduction ...... 121 4.2 The Challenges facing Muslim women in Australia ...... 122 4.2.1 Challenging Identities in the Australian Multicultural Context ...... 126 4.2.2 The Challenges of Being a Muslim Woman among Stereotypes and Feminism Critiques ...... 146 4.3 Conclusion ...... 171 5 ISLAM AND MODERNITY ...... 175 5.1 Introduction ...... 175 5.2 Modernity and Religion ...... 176 5.3 Islam and the Challenges of Modernity ...... 189 5.3.1 Liberal Reformists ...... 194 5.3.2 Traditional Reformists ...... 198 5.3.3 Modern Reformists ...... 202 5.4 The Way Ahead in the Australian Context ...... 208 5.5 Conclusion ...... 211 6 WHEN ISLAM AND DEMOCRACY MEET ...... 215 6.1 Introduction ...... 215 6.2 The Notion of Democracy ...... 219 6.3 The Constitution of Medina ...... 224 6.4 Muslim Scholars and Democracy ...... 228 6.4.1 Liberal Muslims ...... 229 6.4.2 Moderate Muslims ...... 233 6.4.3 Traditionalist Muslim ...... 241 6.5 Maqāṣid as a Scheme for Human Rights ...... 246 6.6 The Struggle for Democracy ...... 252 6.7 Islam and Democracy in Australia ...... 256 6.8 Conclusion ...... 259 7 A PLACE FOR ISLAMIC LAW IN AUSTRALIA’S LEGAL SYSTEM ...... 263 7.1 Introduction ...... 263 7.2 The politics of democracy in Australian legal discourse ...... 265 7.2.1 Liberal Secularism and Australia’s Constitution ...... 265
2 7.2.2 Does Democracy Demand Secularism? ...... 271 7.3 The Recognition of Islamic Legal Principles in Liberal Democratic Societies ...... 276 7.3.1 Legal Pluralism ...... 276 7.3.2 An International Debate about the Recognition of Islamic Law ...... 281 7.4 Why are Islamic Legal Principles Important for Muslims? ...... 289 7.4.1 The Higher Objectives of Sharīʿah and the Bifurcation of Territories into Abodes ...... 290 7.4.2 The Place of Islamic Law in Australia ...... 298 7.4.3 A Need for Ijtihād ...... 303 7.5 Conclusion ...... 311 8 CONCLUSION ...... 315 8.1 Introduction ...... 315 8.2 The Nexus between Ijtihād and Maqāṣid al-Sharīʿah ...... 317 8.3 The Development of Muslim Identity in a Modern Multicultural Society ...... 322 8.4 Modernity and Democracy in the Australian Muslim Context ...... 324 8.5 What about Muslim Women? ...... 326 8.6 The Issue of Accommodation of Islamic Law in Australia ...... 328 8.7 Pioneering a Better Future ...... 329 BIBLIOGRAPHY ...... 333
3
CERTIFICATE OF AUTHORSHIP
I hereby declare that this submission is my own work and that, the best of my knowledge and belief, it contains no material previously published or written by another person nor material which to a substantial extent has been accepted for the award of any other degree of diploma at Charles Sturt University or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by colleagues with whom I have worked at Charles Sturt University or elsewhere during my candidature is fully acknowledged.
I agree that this thesis be accessible for the purpose of study and research in accordance with the normal conditions established by the Executive Director, Library Services or nominee, for the care, loan and reproduction of theses.
Rawaa El Ayoubi Gebara
July 2015
5
ACKNOWLEDGEMENTS
As we express our gratitude, we must never forget that the highest appreciation is not to utter words but to live by them. John F. Kennedy
The writing of this thesis has been an amazing journey that has led me to explore the beauty of Sharīʿah and enormous potential of ijtihād. It has been an almost overwhelming experience exploring the challenges facing the Muslim community in
Australia. It has also been a time of intellectual growth fostered by a mixture of intensive reading and learning from others at United Theological College and Charles
Sturt University.
To fellow students, staff members, lecturers and the librarians at the Camden
Theological Library, I would like to extend my sincerest thanks and appreciation to those who accompanied me on this journey and assisted with my research. Especially, I would like to thank Professor William Emilsen, my Principal Supervisor, for his support. He has guided me from start to finish over the past three years and I have felt extremely privileged to have him as my supervisor. He believed in the importance of this research and, despite the many challenges on the way, never let me give up. I am also appreciative of the support and counsel from my co-supervisor, Dr Recep Dogan, who particularly helped to nurture my ideas in the beginning of the thesis.
There were many others along the way who generously shared their wisdom and knowledge, though three deserve special mention for their wise counsel and expertise and to whom I am greatly indebted: Professor Kevin Dunn from the University of
Western Sydney who generously gave and updated me with recent surveys about
Muslims in Australia; Dr Jan Ali also from the University of Western Sydney and Dr
Ghena Krayem of the Faculty of Law at the University of Sydney for the constructive
7 feedback they provided for this research. I would also like to acknowledge the exceptional guidance and assistance of the Grand Mufti of Australia, Dr Ibrahim Abu
Moḥammad for giving freely of his time and answering my questions about Sharīʿah and ijtihād. His constructive ideas and support have been an inspiration.
Even more thanks goes to my good friends: Ahlam Ibrahim, whose wonderful support was significant, for standing by me and offering me wonderful encouragement when I most needed it; and Mona Makki for her fantastic ideas of how to keep up with the stress and challenges, for her encouragement and prayers for me.
Special gratitude and love goes to my family for their unfailing support. To my adorable daughters, Asmaa and Fatima, you have been an incredible support through your encouragement and sincere feedback and advice. To my lovely sons, Nasser and
Kassem, you were the most welcoming interruption one could wish for. I love you all beyond words. I also thank my lovely husband Albert who provided constant support during my research.
I would like to express my deep gratitude to my sisters, Ṣafaa and Ghania, for their prayers and faith in me. Much heartfelt thanks to my aunt Salima who always prayed for and supported me. Also, my appreciation goes to my brothers, Maḥmoud and
Ṣafwan, for their ongoing support and encouragement.
A unique appreciation goes to my parents, who taught me how to work hard to achieve my goals. Mum and dad, you are the inspiration behind this thesis. I can never repay you for what you have done for me. I am honoured to have you as my parents.
The completion of this thesis further confirmed to me that we can never accomplish great things alone, but through the grace of God and love ones, we will succed.
8 EDITORIAL ASSISTANCE
I acknowledge with gratitude the dedication and editing skills of Vicki Snowdon in the preparation of this thesis.
9
TRANSLATION AND TRANSLITERATION
Translation of Verses from the Qur’an
All verses from the Qur’an have been taken from The Holy Qur’an: English Translation of the Meanings by Abdullah Yusuf Ali (Saudi Arabia: King Fahd Holy Quran Printing
Complex, 1987), accessed
Transliteration of Arabic Words
In this thesis I have adopted the system of transliteration as represented by the tables below. This is known as the Alt Latin system (Roman transliteration of Arabic script), which is a utility application that supports the transliteration of text from Arabic into
English.
Table 1: Transliteration of Consonants Arabic Roman Arabic Roman ṭ ط b ب ẓ ظ t ت ʿ ع th ث gh غ j ج f ف ḥ ح q ق kh خ k ك d د l ل dh ذ m م r ر n ن z ز h ه s س w و sh ش ʾ ء ṣ ص y ي ḍ ض
11 Table 2: Transliteration of Vowels Arabic Roman Arabic Roman an ًى ا ً a َ◌ un ٌو u ُ◌ in ٍ◌ ي i ِ◌ aw َ◌ ْو ā ى َ◌ ا َ◌ ay َ◌ ْي ū ُو unw,ū ُ◌ ّو Ī ِ◌ ي iyy,ī ِ◌ ّي
12 GLOSSARY OF KEY TERMS
Ahl al-ḥadith People of ḥadīth Ahl al-raʾy People of opinion Akhlāq Ethics and morality Al-dalāla Meaning Al-daruriyāt al-Khamsah The five essentials Al-barāʾah aṣliyyah Original absence of liability Al-furuʿ Branches or subsidiaries, as opposed to roots and sources (al-uṣul) Al-maḍār wa al-mafaṣid Harms and corruptions ʿAqidah Creed, faith and belief ʿAql Rationality Ayah, pl. Ayāt Sign, indication; a verse of the Qurʾan Awqaf Private endowments Faqih, pl. fuqahāʾ Jurist who understands deeply the sciences of law and jurisprudence Fasik Corrupt Fatwah, pl. fatāwa Specific legal verdicts Fiqh Islamic law and jurisprudence; the knowledge of the practical rules of Sharīʿah Fiqh al-aqalliyat Fiqh of minorities Fitna Temptation or sedition Fitrah Natural disposition Ḥadīth, pl. aḥādith Reported and authenticated elaboration and tradition about Prophet Muḥammad Ḥadith mutawatir, qatʿi al- Ḥadith with indisputable origin thubut Ḥajj Pilgrimage Ḥaq, pl. Ḥuquq Rights Ḥujjah Proof Ḥukm, pl. aḥkām Ruling Ḥuquq al-ʿibād The rights of humans
13 ʿIbādāt Devotional matters; it encompasses the sphere of worship under the umbrella of Sharīʿah Ijmaʾ Consensus of theʿulamāʾ Ijtihād The effort accomplished by a jurist to extract a law or ruling from unexplicit scriptural sources or in the case of the absence of texts of reference; independent legal reasoning Ijtihād istiṣlāhi Ijtihād with consideration of public interest Ijtihād qiyāsi Ijtihād which works by analogical reasoning Ikhtilāf Disagreement among the ʿulamāʾ ʿIllah The actual cause of a specific ruling Istinbāṭ Way of inference, which can be inductive or deductive of an implicit or hidden meaning of the text Istiṣḥāh Consideration linked to general interest Jahiliyyah Ignorance era, which was just before the revelation of Islam Juzʾ A section in the Qurʾan, there are 30 juzʾ in the Qurʾan Madhhab, plur. Madhhāhib The legal juridical schools Maqāṣid al-Sharīʿah Higher objectives of Sharīʿah Maṣlaḥa, pl. maṣāliḥ Consideration of public interest Mufti A mujtahid who has been employed by the state to formulate legal rulings Mujtahid Jurist competent to formulate independent reasoning Mukhtasar Legal treatise Mutaghayyirāt Norms subject to change Muʿāmalāt The domain of social affairs Naṣṣ zanni al-dalālah Speculative text Niqāb or khimar The veil Pbuh Peace be upon him; a phrase that Muslims say after saying the names of Prophet Muḥammad or other prophets Qaḍāʾ Judicial ruling Qanun Laws promulagted by Muslim scholars Qaṭʿi Definitive meaning; free of speculative content Qiyās Analogical reasoning
14 Salat Prayer Saliḥ Righteous Shahada The testimony of faith through the formulation of “I bear witness that there is no god but God and that Muḥammad is His Prophet” Sharīʿah The corpus of general principles of Islamic divine teaching; the path to religion of Islam Sunnah The teachings and sayings of Prophet Muḥammad Tafsīr Exegesis Tajdid Renewal Taqlid Imitation; following the opinions of previous scholars Tawatur Continuous testimony Tawḥid Faith in the oneness of God Taʾwill Allegorical interpretation Thawābit Immutable norms Uṣul al-fiqh The principles of Islamic jurisprudence Waḥy Divine revelation Zakah Obligation charity to give to the poor ʿUlamāʾ Muslim scholars Ummah Muslim community ʿUrf Custom
15
ABSTRACT
In recent times, especially with immigration and large-scale movements of refugees, the existence of Muslims in Western secular societies has forced them to revive ijtihād in the face of new problems. Australian Muslims have had to endure challenges associated with migrant settlement and to adapt to problems resulting from how their faith is perceived in a predominantly secular society.
This thesis undertakes a study of some important challenges faced by the Muslim community in Australia and the way in which ijtihād can assist in resolving them.
Ijtihād or independent legal reasoning is an important process for deriving the laws of
Sharīʿah from its sources. Ijtihād is an activity, a struggle and a process of endeavouring to deduce the divine laws of Sharīʿah from the texts (the Qurʾan and sunnah) and apply it to new situations and problems. Yet, for centuries, due to several reasons that will be discussed in this thesis, the neglect of this dynamism, or Muslims’ inability to employ ijtihād, has left a number of unattended problems and urgent challenges in the Muslim community.
This thesis draws upon the essential writings of three Muslim scholars⎯Tariq
Ramadan, Khaled Abou El Fadl and Nilüfer Göle⎯using the inductive-analytical method in the crafting of ijtihād in the modern world. Also, their attempts to adjust their social and intellectual positions to their societies will be analysed. In particular, it draws upon the solutions used by these scholars to overcome the challenges that Muslims face in their societies. In order to overcome the urgent challenges facing the Muslim community in Australia, it will require a total commitment to ijtihād from Muslim scholars. This is a slow process that will eventually lead to a new and authentic
Australian Muslim identity, neither completely dissolved in the Australian environment nor reacting against it, but rather resting on its own foundations according to its own
Islamic sources. In this sense, ijtihād continues to be the main instrument of interpreting the divine message and relating it to the changing conditions of the Muslim community.
17
1 INTRODUCTION
1.1 Background
When I was preparing my Masters thesis in Islamic Studies at the Sydney University, one of my classmate asked me about the title of my thesis. When I answered that I was preparing a thesis titled Sharīʿah and its relevance to Muslims in the West, she opened her mouth and said in a shocked voice: “Why do you Muslims want to bring your bad
Sharīʿah everywhere?”
This event was an incentive for me to conduct further research about Sharīʿah, to personally learn about it and to help clear up some misunderstandings in the minds of others. As a Muslim, I was at the beginning of developing my understanding of
Sharīʿah principles. From my experience and the discussions that take place in the media and academic fields, I noticed, when the term Sharīʿah is mentioned, a dark image of Islam comes up in people’s minds about physical punishments, the repression of women and other similar negative comments. Sharīʿah has become a controversial topic in Western eyes and its manner of representation has been infuriating for Muslims.
It has reached the extent that many intellectual Muslims are ashamed to mention the term “Sharīʿah” and usually replace it with “Islamic law”. However, this is a mistake because Islamic law is just a small entity under the large umbrella of Sharīʿah, which I will clarify in my thesis. In many respects, this thesis has mirrored my journey, both as an individual and a researcher, to further findings.
As a practising Muslim woman living in a modern secular society, I noticed the difficulties faced by some Muslim women in navigating their way through actualising
Sharīʿah in their daily lives, which represents their faith and identity, while living as good Australian citizens. Specifically, I was aware of their desire for some change and
19 the suggestion that there was a need for official accommodation of some aspects of
Sharīʿah in Australia. This challenge takes on another dimension when one is also a student and a researcher. There is no doubt that various aspects of my identity have played a significant role not only in my choice of thesis topic but also in how my research is presented and conducted.
1.2 Review of Existing Literature
Sharīʿah literally means a way to the watering-place or a path leading towards felicity and salvation.1 According to the Muslim scholar Khaled Abou El Fadl, Sharīʿah: “is about a process, methodology and morality. At the core of this morality is the value of beauty. Human understanding of the law (fiqh) engages the process and searches the various normative values of Sharīʿah, but human understanding can never be the embodiment of God’s beauty”.2 Also, Sharīʿah fulfils the criteria of justice and legitimacy, and binds the governed and governor alike, because it is based on the rule of law and thus deprives human beings of arbitrary authority over each other.3 Since
Sharīʿah is a path to religion, it is primarily concerned with the set of values that are essential to Islam and the best manner of its protection. The constructions of both fiqh and Sharīʿah have over time held different meanings in past and present Islamic discourse. While Sharīʿah bears a strong affinity with revelation, fiqh is mainly the product of human reason.4 The manner of worshipping God is expounded in the part of
Sharīʿah that is known as ʿibādāt (devotional matters), namely belief in God, ritual prayers, fasting, the pilgrimage (ḥajj) and giving to the poor (zakah). Then there is the
1 Mohammad Hashim Kamali, Shari’ah Law: An Introduction (Oxford: Oneworld Book, 2008), p. 2. 2 Khaled Abou El Fadl, The Search for Beauty in Islam: A Conference of the Books (Lanham, MD: Rowman and Littlefield, 2006), p. xix. 3 Khaled Abou El Fadl, Islam and the Challenges of Democracy (Princeton, N.J: Princeton University Press, 2004), p. 3. 4 Mohammad Hashim Kamali, “Law and Society,” in The Oxford History of Islam, ed. John L. Esposito (Oxford: Oxford University Press, 1999), p. 108.
20 concern for justice, which is a major preoccupation of Sharīʿah. Justice is concerned with the manner in which God wants creatures to be treated, expounded mainly under the general heading of muʿāmalāt (civil transactions).5 One of the primary concerns of
Sharīʿah is protection of the five essentials (al-daruriyāt al-Khamsah): life, intellect, religion, progeny and property.6 Where Sharīʿah is conveyed mainly through divine revelation (waḥy) contained in the Qurʾan and ḥadīth (elaboration by the Prophet), fiqh is defined as the knowledge of the practical rules of Sharīʿah and the corpus juris that is developed by the legal schools (madhhāhib), individual jurists and judges by recourse to legal reasoning (ijtihād) and issuing of legal verdict (fatwah).7 Ijtihād means striving or exertion by a competent scholar who is capable of deducing a rule of law from the principal sources of Sharīʿah.8
Some scholars have attempted to interpret the rules of Sharīʿah as frozen rules, others have accepted the view that Sharīʿah is subject to ongoing re-evaluation according to the principles of independent legal reasoning (ijtihād), which adapt Sharīʿah to changing societal circumstances. Ijtihād has a rich and debatable history that is worth examining to understand the issues surrounding it and to find out the gap to illuminate the route for this research.
The works of the British-German scholar of Arabic and Islam, Joseph Schacht (1964),9 and Goldziher (1981),10 who was a Hungarian scholar of Islam and the founder of modern Islamic studies in Europe, represent the first generations of modern Western
5 Kamali, Shari’ah Law, p. 3. 6 Ibid. 7 Ibid. 8 Mohammed Hashim Kamali, “A collective ijtihad for solving society’s problems,” Common Ground News Service, March 14, 2006, accessed May 2015
21 scholarship on Islamic law and theology, but their works contain no discussion of
Islamic legal thought for Muslim minority communities, especially those living in the
Western world. Schacht’s materials were built upon Goldziher’s (d.1921) work and the pioneer in the scientific study of Islam, the Dutch scholar Snouck Hurgronje (d.1936).
Writing almost simultaneously, Goldziher and Hurgronje focused on the development and role of Islamic law in Muslim societies and the issue of Islamic origins, more specifically on the concept of the Prophetic example (sunnah) found in the literature that collated Prophetic traditions (ahādīth). Hurgronje and Goldziher examined Islamic law as historians not as jurists, thus they alleged that Islamic law is immutable and incapable of evolution.11 As an Orientalist, Hurgronje selected Islam as his field of study early, and in this field there were three problems that particularly engaged his attention. The first two have become the central problems in the study of Islam, and it was he who first posed them: (1) How was the Islamic legal system established? and (2)
What is the significance of Islam in the daily life of its believers? A third problem, which contains a strong practical element, might be formulated as: How should one govern Muslims to smooth their way towards modern times and, if possible, gain their co-operation in the realisation of the ideal of a universal civilisation?
Taking a contrary position to Hurgronje and Goldziher, Al Sanhūrī (d. 1971), the
Muslim Egyptian scholar, sees the “remoulding” of Islamic legal doctrines as rejuvenation via their adaptation to modern economic and social conditions. He does not
11 Oussama Arabi, Studies in Modern Islamic Law and Jurisprudence (The Hague: Kluwer Law International, 2001), p. 66.
22 hold the common opinion of most other Orientalists about Islamic law being radically fixed and incapable of renewed life and development.12
Mohammed Iqbal’s (d.1938) vision of new Muslim individuals constituting a new
Muslim society created a bridge between Islam and the West. However his dream, as a
Muslim philosopher, of bringing into being a “new world”, could not be realised without the use of “penetrative thought and fresh experience”.13 In his determined quest for the “reconstruction” of Islam, he declared the closing of the door of ijtihād is pure fiction. Thus, Iqbal is strongly in favour of ijtihād and argues that every generation of
Muslims has the right to attempt ijtihād according to the conditions of their time.14
The formation of the four legal schools (Ḥanafi, Shāfiʿī, Māliki and Ḥanbali) and the recognition of their opus helped to craft and establish the main contour of fiqh, which therefore left no room for ijtihād afterwards. Jurists would then follow the authority of one of the four legal schools (taqlid), rather than practise their independent ijtihād.15 It is further argued that the authoritative consensus (ijmāʿ) of previous jurists transmitting from the four schools was binding on jurists, and further limited the scope of ijtihād. It is in this context that Shacht maintains that Islamic law became increasingly rigid and set in its formal mould.16
The key figure in the history of Islamic jurisprudence—according to Schacht—was al-
Shāfiʿī (d.820), who created a methodology for the discipline known as uṣul al-fiqh
(principles of Islamic jurisprudence). A century after al-Shāfiʿī’s death, however, the
12 Abul Razzak Al-Sanhūrī, “Le Droit Musulman Comme Élément de Refonte du Code Civil Egyptians,” in Introduction à l’Étude du Droit Comparé (Paris: Librairie Générale de Droit et de Jurisprudence, 1938), 2: 622. 13 Ali Engineer Asghar, Islam in Contemporary World (Okhla, New Delhi: New Dawn Press, 2007), p. 95. 14 Ibid. 15 Nadirsyah Hosen, Shariʿa and Constitutional Reform in Indonesia (Singapore: Institute of Southeast Asia Studies, 2007), pp. 40–41. 16 Schacht, An Introduction to Islamic Law, p.75.
23 gates of ijtihād, were believed to be closed. The early nineteenth-century Ḥanafi jurist,
Ibn Abidin (d.1836), thus stated the position of the school in the following terms:
A jurist of the later ages may not abandon the rulings of the leading imams and ulamāʾ of the School even if he sees himself able to carry out ijtihād (independent reasoning), and even if he thinks that he has found stronger evidence. For it would appear that the predecessors have considered the relevant evidence and have declared their preference.17
Therefore, it was considered necessary to follow the doctrine of taqlid (the practice of following past precedents); people were no longer to develop new principles from studying the Qurʾan and ḥadīth or use their independent reasoning. This was called
“Closing the Gates of Ijtihād”.18
Abou El Fadl, a prominent Muslim scholar, took a contrary view. He did not agree that the gates of ijtihād have been closed, though he is fully aware of the attempts to do so:
“while one finds in Islamic sources assertions about the closing of the doors of ijtihād by the fourth/tenth century, this was nothing more than a rhetorical device employed to resist the chaotic proliferation in Schools of thought and legal opinions”.19
It is very useful here to mention the work of a University of McGill professor in Islamic studies, Wael Hallaq, who has not only charted the textual space relating to the history of uṣul al-fiqh in the 500 years between al-Shāfiʿī (d.820) and al-Shaṭibi (d.1388), but his work also centres on the literature of the predecessor of Islamic legal studies in the twentieth century: Joseph Schacht. Hallaq concurs with Abou El Fadl that the gates of ijtihād were never closed and thus he refutes Shacht’s claim. He further argues that
Muslim societies continued to produce mujtahid (scholars who engage with ijtihād) until the tenth century/sixteen century CE, and the availability of works on legal opinion
17 Kamali, “Law and Society,” p. 126. 18 Jamila Hussain, Islamic Law and Society (Leichhardt, NSW: Federation Press, 1999), p. 36. 19 Cited in Abou El Fadel, Islam and the Challenges of Democracy, p. 38.
24 (fatwah) supports his position.20 Hallaq puts the case that the activity of fatwah in dealing with new issues proves that the gates of ijtihād were never closed; hence, the space is open for Muslim scholars to exercise their legal reasoning.21 Although his arguments against the stagnation of Islamic legal thought in the historical period are well known, Hallaq shows that Islamic law was never a mechanism:22 “Islamic Law did not emerge out of the machinery of the body-politic, but rather arose as a private enterprise initiated and developed by pious men who embarked on the study and elaboration of Law as a religious activity”.23 Hallaq considers Sharīʿah as an untenable reality in the modern world, seeing disconnection between traditional Islamic legal theory (uṣul al-fiqh) before, during and after the colonial period.24 Finally, Hallaq has shown that new and creative juristic ideas were produced by muftis (scholars who formulate specific legal opinions) in the centuries following the alleged closure of the gates of ijtihād and these new ideas were incorporated into later legal doctrine through the vehicle of fatāwā.25 According to him “the dismantling of Islamic Law and the religious legal institutions during the nineteenth and early twentieth centuries automatically meant the decimation of whatever rule of law there was in that traditional society”.26 It means that the entire traditional legal culture, with its educational trusts, personnel, systems of education, and the very communities that Islamic law was serving for centuries, went down in a total collapse, and all that is left is the law of personal
20 Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009); Wael B. Hallaq, "Was the Gate of Ijtihad Closed?" International Journal of Middle East Studies 16 (1984): 3. 21 Wael B. Hallaq “From Fatawa to Furuʿ: Growth and Change in Islamic Substantive Law,” in Islamic Law and Society 1, no.1 (1994), p. 29. 22 Wael B. Hallaq, “On the Origins of the Controversy about the Existence of Mujtahids and the Gate of Ijtihad,” Studia Islamica 63 (1986): 129. 23 Hallaq, Shari’a: Theory, Practice, Transformations, p. 204. 24 Wael B. Hallaq, “Can Shari’a be Restored?” in Islamic Law and the Challenges of Modernity, ed. Yvonne Y. Haddad and Barbara P. Stowasser (Walnut Creek CA: Altamira Press, 2004), p. 22. 25 Hallaq, “From Fatawa to Furuʿ,” pp. 17–56. 26 Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), p. 205.
25 status in Muslim countries today. Hence, the separation of Islamic law and the religious legal institutions was a reality, which meant the obliteration of whatever rule of law there was in that traditional society. This is due to the breakdown of traditional authority structures.27
According to John Esposito at Washington’s Georgetown University, there are three approaches to the place of Islamic law to be found among Muslims.28 The first maintains that religious law is outdated and incompatible with modern needs. The second asserts that what is needed is a more literal restoration of the classical legal tradition. The third seeks to use the tools or methods of Islamic law to reinterpret and apply Islamic principles and values in developing new legislation to address the needs of a modern society.29
Mohammad Hashim Kamali, unlike Hallaq, writes with an insider’s perception and seeks to deal with the challenges of modernity. His style of writing is refreshingly unconventional, yet his work remains well-founded and in close contact with the Arabic sources of his discipline. He makes frequent comparisons with the concepts and principles of Western jurisprudence.30 His works, Shariah Law: An Introduction,
Principles of Islamic Jurisprudence and Maqaṣid Al-Shariah are especially pertinent to this study as many modern juristic scholars draw heavily on his writings.
In the same wave, Muslim scholar Tariq Ramadan goes beyond adaptation to envision bold and creative solutions. He proposes a new geography of knowledge that redefines the sources and spiritual and ethical objectives of the law, creating room for the
27 Ibid. 28 John Esposito and Natana J. Delong-Bas, Women in Muslim Family Law (Syracuse: Syracuse University Press, 2001), p. x. 29 Ibid. 30 Mohammed Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2008).
26 authority of scholars of social and hard sciences. His ideas are useful for this study and so is his conviction that Muslims, in our days, urgently need contemporary fiqh, distinguishing what in the texts is immutable (thābit), such as the creed and worship, and what may be changed (mutaghayyir), such as daily civil transactions. This is a new reflection based on the main classical instruments offered by the fundamentals of law and jurisprudence (uṣul al-fiqh): critical and autonomous interpretative reasoning
(ijtihād), the public interest and common good (maṣlaḥa) and detailed fatāwā.31 In other words, Ramadan highlights the importance of using ijtihād, maṣlaḥa and fatāwā to keep pace with the changing needs of society. He describes a tolerant Islam that promotes a new understanding of the Western context. Thus, he argues, is “what all Muslims have done throughout history: to integrate whatever there is in the culture where they live that does not contradict what they are and what they believe”.32 The basic idea is to distinguish the timeless and universal teachings and principles of Islam from the cultural layers of interpretation often placed over these teachings and principles.33
Taha Jabir al-Alwani, president of Cordoba University, can be viewed as the predecessor of the Islamic minority legal institutions and the philosophical theories that
31 This approach is been used in Tariq Ramadan’s book: Tariq Ramadan, To Be a European Muslim (UK: The Islamic Foundation, 1999), p. 101. 32 Tariq Ramadan, Western Muslims and the Future of Islam (Oxford: Oxford University Press, 2004) p. 216. The first emigration in Islam was in 615-620, when Prophet Muhammed advised his followers to migrate to the country of the Christian ruler, Negus of Abyssinia (Ethiopia), who was reputed to be just and kind-hearted. These Muslims had to leave their countries because they were persecuted by their countrymen and live in different country as citizens and respect the laws and rules as the Prophet advised them to do. The Muslim emigrants in Abyssinia did not abandon Islam nor did they cease to practice their faith. See Ali Khan and Hisham M. Ramadan, Contemporary Ijtihad (Edinburgh: Edinburgh University Press, 2011), p. 218; Muhammad Husayn Haykal. The Life of the Prophet, trans. Ismail Raji al-Faruqi (Malaysia: Islamic Book Trust, 2008); Charles Kuzman, ed., Modernist Islam (Oxford: Oxford University Press, 2002); Tariq Ramadan. In the Footsteps of the Prophet: Lessons from the Life of Muhammad (Oxford: Oxford University Press, 2007), p. 59. 33 Mehmet Ozalp, Islam Between Tradition and Modernity: An Australian Perspective (Canberra: Barton Books, 2012), p. 109. The first ijtihād in Islam was when the Prophet sent Muadh ibn Jabal as a judge to Yemen. The Prophet asked him about the sources on which he would base his judgements and approved of his intention of “putting all his energy into formulating his own judgement in cases where he could find no guidance in the Qur’an and the Sunnah.” See Muhammad Khalid Masud, Islamic Legal Philosophy: A Study of Abu Ishaq al-Shatibi’s Life and Thought (New Delhi: International Islamic Publishers, 1989), p. 367.
27 operate them. His doctrine of Muslim Minority Jurisprudence presents terms and concepts that are similar to Ramadan's. The uniqueness of al-Alwani's endeavour is in mastering both the fields of Islamic minority legal institutions and its philosophical theories. He not only initiated these legal institutions but he also created “Muslim
Minority Jurisprudence” as a theoretical doctrine upon which these bodies base their actions and form their legal opinions.34
It is important to mention here that the relationship between legal theory and legal practice usually happens through the process of ijtihād. By the time Islamic legal theory documented its classic form, the discussion about the question of ijtihād became one of its major components.35 Ideally, the primary goal of a legal theory is to elucidate the guidelines that inform and regulate the legal process. It is therefore necessary for this theory to explain the relationship between the law and the social reality to which it applies.36 So custom (ʿurf or ʿādah) and maṣlaḥa in its various senses and applications play a significant role in the development of ijtihād.37
Muslim jurists from the classical period considered the problem of the influence of customary law on Islamic law.38 Although they did not recognise custom as an independent source of law, some jurists recognised the efficacy of custom in the act of
34 Taha Jabir al-Alwani, Islamic Jurisprudence: Usul al-Fiqh al-Islami (London and Washington: The International Institute of Islamic Thought, 2003). 35 For example, al-Ghazali divided his famous al-Mustsfa into four main parts, each addressing one of the main areas of uṣul al-fiqh: rulings (aḥkām), sources (maṣādir), means of extracting rulings, and qualifications of the person who should undertake the process. This final part has traditionally been designated to ijtihād, which was devoted to the theoretical discussions dealing with ijtihād, including new or novel cases that are not covered by the texts, as well as the guidelines the mujtahid should refer to when performing ijtihād. This was the general format already in place even before al-Ghazali, especially in the Shāfiʿī rational school of jurisprudence as evident in the works of al-Basiri, al-Shirazi and al- Juwayni. Al-Ghazali helped further consolidate this classic format, which most legal theorists since his time have adopted. 36 Ayman Shabana, Custom in Islamic Law and Legal Theory (USA: Palgrave Macmillan, 2010), p. 147. 37 Custom was one of the important tools that jurists used to construct their opinions and ensure they were applicable to real-life circumstances. 38 See, for example, Ahmad ibn idris al-Qarafi, Sharḥ Tanqiḥ al-fussul fi ikhtiṣār al-Maḥsul fi al-uṣul (Cairo and Beirut: Maktabat Wahbah, 1393/1973), p. 337.
28 interpreting the law. In Islamic legal methodology (uṣul al-fiqh), custom is accepted as one of the sources developed from raʾy (opinion) in addition to qiyās (analogy), istiḥsān
(juristic preference), and istiṣlāh (consideration of public interest). In other words, customary law has a place in Islamic law as long as it does not transgress the divine sources, i.e. the Qurʾan and ḥadith.39
One of the significant debates confronting early juristic Muslim culture focused on the nature of dalil or adillah (indicator or indicators). God communicates Sharī’ah through indicators which could manifest through reason and rationality (‘aql and raʾy), intuition or natural disposition (fitrah), custom and practice, or the text (naṣ). Some scholars, such as Schacht, have speciously argued that early Muslim jurists were initially not interested in the naṣ, and were much more prone to use custom and reason.40 According to Abou El Fadl, one can observe a much greater reliance on custom, practice and unsystematic reasoning in the first two centuries of Islam.41 Some jurists, such as Ibn
ʿAbidin (d. 1836) and al-Shaṭibi (d. 1388), integrated custom as a source of law; however, reason, custom, equity or public interest became concepts fettered and limited by the juristic method.42 Accordingly, jurists may render opinions on whether local customs and case holdings are compatible with the basic code of Islamic law.43
Bassam Tibi, an emeritus professor of international relations at the University of
Göttingen in Germany, raises some important issues about the notion of an Islamic collective identity, which is based on the fact that Islam is a universal faith that has generated a cross-cultural civilisation. Then he posits that religion can be reformed and
39 See Jalal al-din ‘Abd al-Rahman al-Suyuti, Al-Ashbah waal-Naza’ir (Cairo: Isa al-Babi al-Halabi wa Shurakah), pp. 99–103; Kamali, Principles of Islamic Jurisprudence, pp. 283–96; Ahmad Fahmi Abu Sinnah, al-‘Urf wal-‘Adah fi Ra’y al-Fuqaha (Cairo: Matba’at al-Azhar, 1947). 40 Schacht, An Introduction to Islamic Law, pp. 37–48. 41 Khaled Abou El Fadl, Speaking in God’s Name (Oxford: Oneworld Publications, 2003), p. 35. 42 Ibid. 43 Khan and Ramadan, Contemporary Ijtihad, p. 51.
29 culture can change.44 One is reminded of the Qurʾanic verse: “Allah does not change a people's lot unless they change what is in their hearts.”45 This is an authentic idea that authoritatively allows Muslims to engage in changing themselves and in making their culture consonant with modernity while being faithful to Islamic teachings.
Surprisingly, this view can also be found in the work of the foremost Muslim revivalist, al-Afghani (d.1897), who was one of the most prominent Islamic political leaders and philosophers of the nineteenth century.46 He introduced a broad notion of rationalism to the interpretation of Islamic sources and emphasised the importance of striving.47
Muhammad ʿAbduh (d.1905), a disciple of Afghani’s, was a religious scholar, jurist and liberal reformer who embraced a similar position. He led the nineteenth−century movement in Egypt and other Muslim countries to revitalise Islamic teachings and institutions in the modern world. His main concern was preservation of society’s moral fabric.48 To achieve this goal, ʿAbduh concluded that it must be demonstrated that the changes “were not only permitted by Islam, but were, indeed, its necessary implications if it were rightly understood”.49 Methodologically, Abduh criticised taqlid, the practice of imitating earlier scholars (ʿulamāʾ), and, instead, emphasised ijtihād and reliance on fundamental sources: the Qurʾan and sunnah.
This type of reform and inspiration is similarly promoted by Fethullah Gülen (b.1941), an Islamic reformist who reformulates Islamic issues dealing with new questions in a secular world. Also, he seeks to escape the minority status and isolation of Muslims in
44 Bassam Tibi, Islam’s Predicament with Modernity: Religious Reform and Cultural Change (USA and Canada: Routledge, 2005), p. 153. 45 Qurʾan 13:11. 46 On the anti-imperialism dimensions of Afghani’s ideas and personality; See Nikkie R. Keddie, Sayyid Jamal ad-Din “al Afghani”: A Political Biography (Berkeley, CA: University of California Press, 1972), p. 11. 47 Ibid. 48 Mohammad Abduh, al-Islam wa al-Nasraniyya bain al-ilm wa al-madaniyya/Islam and Christianity between Science and Civilization, new printing (Cairo: Dar al-Hadatha, 1983), p. 2. 49 A. Hourani, Arabic Thought in the Liberal Age (Cambridge: Cambridge University Press, 1962), p. 139.
30 Western societies. Beside Gülen’s positive approach to reformulation and a new way of understanding Islamic interpretation, he outlines some of the impediments as to why ijtihād has been forgotten or lost: “political oppression, inner struggles, the misuse of the institution of ijtihād, an extreme trust in the present legal system, the denial of reform, the blindness caused by the dominant monotonous present system of the time.”50 He also maintains the door of ijtihād has never been closed.
The status of Muslim minorities residing in the West has been the subject of juristic debate at least since the eighth century.51 The immigration of Muslims to Europe,
America and Australia over the last hundred years, particularly during the second half of the twentieth century, has created an unprecedented situation: large Muslim communities living under non-Islamic Western rule, often seeking to redefine their
Islamic identities in non-Muslim societies and shatter the negative images and stereotypes that have proliferated since 11 September 2001. For them, the challenge is to articulate processes of re-Islamisation that effectively address their unique religious needs, respond to the challenges of contemporary life and demonstrate the extent to which Islam is compatible with modern life and society.
Nowadays, large Muslim communities live under non-Islamic Western rule and in
Western culture. Ahmad Rawi, chairman of the Union of Islamic Organisations in
Europe,52 estimates that approximately 15.84 million Muslims live in Western Europe and comprise 4.43 per cent of its total population. In France alone, there are 5.5 million
Muslims in a population of almost 56.6 million; and in Germany, 3.2 million out of 79.1
50 See Fethullah Gülen, Islam and Democracy (New York: Tughra Books, 2004). Also cited in, Ihsan Yılmaz, “Ijtihad and Tajdid by Conduct,” in Turkish Islam and Secular State, The Gülen Movement, ed. M Hakan Yavuz, John L. Esposito (New York: Syracuse University Press, 2003), p. 17. 51 “Khaled Abou El Fadl,” accessed March 25, 2012,
31 million. The Council on American Islamic Relations (CAIR) puts the number of
Muslims in the United States at 6−7 million.53According to the Australian Bureau of
Statistics, in 2011 Muslims in Australia, constituting 2.21 per cent of the total population.54 Of course, there is an important difference between habitually indigenous
Muslim communities and contemporary Muslim minorities due to migration. It is the latter that is the concern of this thesis.
An Australian Muslim sees him or herself in a multiplicity of ways beyond merely being a person who takes on an Islamic identity and is referred to as a Muslim. Muslims might describe themselves using terms such as nominal, practising, secular, non- practicing or pious.55 Although often spoken of as a homogenous group, the Muslim community in Australia is disparate and consists of several sub-communities, with more than 67 countries of birthplace, speaking 55 languages.56
The main conflict for Muslim immigrants with the law of host nations has occurred in relation to family law⎯especially matters of marriage and divorce.57 Further, there are specific adaptation problems resulting from how their ethnicities and, in particular, their faith is perceived in a predominantly secular society. Ideally, Muslims live according to
Sharīʿah as embodied in fiqh (jurisprudence). Shaykh Muhammad al-Mukhtar al-
Shinqiti, director of the Islamic Centre of South Plains in Lubbock, Texas, answers questions about fiqh for Muslim minorities on the “live fatwa” sessions on
Islamonline.net. In explaining the relationship between Sharīʿah and fiqh, he said
53 CAIR, accessed April 2012,
32 “Sharīʿah refers to the revealed religion as a whole, while jurisprudence refers to how the rules of Sharīʿah are to be applied from the points of view of jurists.”58 Therefore, there is a need for a special branch of fiqh necessary to facilitate the relationship between the Muslim minority and non-Muslim majority. It is also necessary to unify the
Muslim communities and enhance their particular identities vis-à-vis the majority.
Issues that call for attention include Islamophobia, democracy, modernity, family law, women's rights and the status of Muslims living in non-Muslim countries, which present new challenges and thus need considerable scope for innovative ijtihād. Also, the scholarship on Islamic law and theology has been represented by the first generations of modern Western scholars, but their work contain no discussion of Islamic legal thought for Muslim minority communities, especially for those living in Australia.
Unfortunately, there are no specialised works in existence discussing contemporary ijtihād in Australian society as envisaged in this study. This thesis seeks to fill this apparent gap.
The essential writings of three contemporary intellectuals—Tariq Ramadan, Khaled
Abou El Fadl and Nilüfer Göle—are drawn upon for the present research. Their selection is based on three factors: they mostly write in English or French targeting
Western educated Muslims and non-Muslims; they are qualified religious scholars and/or academics in Islamic law; and they have international reputations.
This thesis attempts to discuss and chart a movement of reform for Muslims who experience daily problems that arise from living in Australia. It also seeks to resolve
58 Islam Online, accessed April 2012,
33 conflicts with the values of the host societies from within the framework of Islamic jurisprudence.
A brief description of the scholars selected for this study follows. The first is Tariq
Ramadan. He is the HH Sheikh Hamad Bin Khalifa Al Thani Professor of
Contemporary Islamic Studies at Oxford University, a senior research fellow at
Doshisha University (Kyoto, Japan), and the president of the European think-tank,
European Muslim Network (EMN) in Brussels. He was formerly professor of philosophy at the College of Geneva and professor of Islamic studies at the University of Fribourg in Switzerland. Tariq Ramadan is a public intellectual known worldwide for his work on Islam and modernity, and a noted scholar-activist.59 He is the author of numerous works, including: Islam le Face a Face des Civilizations: Quel Projet pour quelle Modernite? Les Deux Rives (1998); To be a European Muslim (1999); Islam, The
West and the Challenges of Modernity (2001); Western Muslims and The Future of
Islam (2004); In the Footsteps of the Prophet (2007); The Messenger: The Meanings of the Life of Muhammad (2008); Radical Reform (2009); What I Believe (2010); The
Quest For Meaning: Developing a Philosophy of Pluralism (2010); Islam and the Arab
Awakening (2012); The Arab Awakening: Islam and the New Middle East (2012); and
On Super-Diversity (2012), Al-Islam Wa al-Hurriya (2015), De L’Islam et des musulmans: Réflexions sur l'homme, la réform, la guerre et l'occident (2015),
Introduction À L’Étique Islamique (2015).
The second is Khaled Abou El Fadl. He is one of the world’s leading authorities on
Islamic law and Islam, and a prominent scholar in the field of human rights. He is the
Omar and Azmeralda Alfi Distinguished Professor in Islamic Law at the UCLA School
59 “Tariq Ramadan,” accessed April 2012,
34 of Law where he teaches international human rights, Islamic jurisprudence, national security law, law and terrorism, Islam and human rights, political asylum and political crimes, and legal systems. He also holds the Chair in Islam and Citizenship at the
University of Tilburg in the Netherlands.60 He is the author of numerous works including: And God knows the Soldiers: The Authoritative and the Authoritarian in
Islamic Discourses (1997); Speaking in God’s Name: Islamic Law, Authority and
Women (2001); Conference of the Books (2001); Rebellion and Violence in Islamic Law
(2001); The Place of Tolerance in Islam (2002); Islam and the Challenge of Democracy
(2004); The Great Theft: Wrestling Islam from the Extremists (2005); The search for
Beauty in Islam: A Conference of the Books (2006); and Reasoning with God:
Reclaiming Shariʿah in the Modern Age (2014).
The third is Nilüfer Göle. She is a director of studies at the École des Hautes Études en
Sciences Sociales (EHESS) in Paris, and formerly Professor of Sociology at Boğaziçi
(Bosphorus) University in Istanbul. A prominent Turkish scholar, Professor Göle is a leading authority on the political movement of today’s educated, urbanised, religious
Muslim women. Her works examine the complex relationships between modernity, religion and gender relations. She is the author of numerous works including: The
Forbidden Modern: Civilization and Veiling (1997); Interpenetrations: L’Islam et l’Europe (2005); Islam in Public: Turkey, Iran and Europe (2006); Islam in Europe:
The Lure of Fundamentalism and the Allure of Cosmopolitanism (2010); and Islam and
Public Controversy in Europe (2014).
60 “Khaled Abou El Fadl,” accessed October 27, 2012,
35 1.3 Statement of the Problem and Significance
The aim of the present work is to evaluate how effectively ijtihād has been in resolving the problems of the Muslim community in Australia. This activity requires research and study into the texts (the Qurʾan and sunnah) and the objectives of Sharīʿah. This process will help people to have a better appreciation of ijtihād and identify the role of ijtihād which it might play in the legal processes of a modern society, and help facilitate the accommodation of Sharīʿah in the face of changing conditions.
Australian Muslim identity can be viewed as a constructed identity; it is a mélange of cultural and ethnic associations, and theological and ideological positioning. How then does one respond to the question of a modern Australian Muslim identity? And how does the Muslim community in Australia respond to the role played by modern Islam in a secular society?
For people to understand Muslim identity, this study intends to show that ijtihād, as an important instrument of deducing the laws of Sharīʿah from its sources, holds the tenets through which Muslims can face contemporary problems and find appropriate solutions.
The problem confronting Muslims in the West nowadays is their concern with survival in a modern society while preserving their Muslim identity. Hence, this study attempts to illustrate the elements of Muslim identity that are based on religious principles.
Beginning with analysing the concept of ijtihād as an important tool for deducing the rulings from the sources of Sharīʿah, this study will investigate the subject of ijtihād that can give momentum from inside Sharīʿah as a movement of reform and integration into new environments. Muslims in the West have to restore ijtihād in the face of new problems in order to live in harmony with modern secular society. This task will be
36 carried out by discussing and analysing Sharīʿah to delineate what is unchangeable
(thābit) from what is subject to change (mutaghayyir).
It is expected that the findings from this research will help further instruct a process for
Muslim religious leaders through the Australian National Imams Council to benefit from solutions that allow Muslim identity to blossom in the society in which they live and encourage them to engage fully with respect to its legal framework.
The study is significant because it addresses the question of a Muslim identity in
Australian culture and fidelity to Islamic sources. It is also significant for it attempts to promote common ground and mutual understanding, especially on moral issues between
Australian culture and Islamic values.
1.4 Objectives of the Study
This thesis will study select Muslim intellectuals, religious scholars and their respective approaches to ijtihād, and discuss the negotiable elements in modern Islamic religious thought and Muslim identity, which allow the religious tradition to remain relevant in diverse societies in which Muslims live. Furthermore, this research will explore the relevance of ijtihād to Australian Muslims and demonstrate a link between ijtihād and the higher objectives of Sharīʿah (maqāṣid al-Sharīʿah). Finally, this thesis will investigate how ijtihād can bridge the gap between Sharīʿah and modern social conditions in order to preserve Australian Muslim identity⎯how some Islamic values might be compatible with some Australian values.
1.5 Limitations of the Research
There are some limitations that exist in this research and they need to be identified. In
Islamic jurisprudence, there are many schools of law (madhāhib) that are classified
37 under two categories: The sunni and shiʿi schools of law. I have decided to limit the scope of my research to sunni jurisprudence because of the extensive literature on this subject. Admittedly, there is a need for a similar study in the field of shiʿi jurisprudence.61
It also needs to be acknowledged that the Muslim community in Australia is extremely diverse with different cultural backgrounds and different levels of religiosity, so I have focused on practising Muslims in the community in terms of the challenges they face.
Furthermore, the way the community deals with matters is dynamic and changeable.
While I have been mindful of this when conducting this research, I have made every effort to investigate different kinds of challenges faced by Muslims mentioned. The situation of the community is always changing and developing, and it is difficult for a research project conducted in a limited amount of time to capture all this change.
One final limitation of this research that needs to be appreciated relates to the methodology adopted in regard to research in the field of Australian law. While I have used primary sources as references for clearly investigating the principles of Sharīʿah and demonstrating the role of Islamic law, I have chosen to rely on some secondary sources in terms of investigating the Australian legal system, as I do not have a legal background. I also thought the scope would be too broad to fully explore different types of democracy and secularism in a thesis of this nature although, as will become evident
61 For those who are interested in shiʿi ijtihād, they can consult the following references: Said Amir Arjomand, Authority and Political Culture in Shiʿism (Albany: State University of New York Press, 1988); Seyyed Hossein Nasr, Hamid Dabashi and Seyyed Vahi Reza Nasr, Shiʿism: Doctrines, Thought, and Spirituality (Albany: State University of New York Press, 1988); Linda S. Walbridge, The Most Learned of the Shiʿa: The Institution of the Marjaʿ Taqlid (Oxford: Oxford University Press, 2001); Ashk P. Dahlén, Islamic Law, Epistemology and Modernity: Legal Philosophy in Contemporary Iran (London & New York: Routledge, 2003); Hamid Enayat, Modern Islamic Political Thought (London & New York: I. B. Tauris & Co, 2005); Farhad Daftery, A History of Shiʿi Islam (London: I. B. Tauris & Co, 2013); Hamid Mauani, Religious Authority and Political Thought in Twelver Shiʿism: From Ali to Post- Khomeini (New York: Routledge, 2013).
38 from the last chapters of the thesis, I have sought to identify the existence of different views on certain key political issues as they arise in the discussion.
1.6 Methodology, Sources and Thesis Structure
This study uses the inductive-analytical method in investigating representative samples of the writings of major jurists whose work has helped shape and transform modern
Islamic legal tradition. An analysis of the writing processes of those jurists engaging in the crafting of ijtihād in the modern world and their attempts to adjust their social and intellectual positions to their place in society is urgently needed. This research aims to fill this gap, and will do so through an analysis of the writing of the three contemporary scholars mentioned earlier: Tariq Ramadan, Khaled Abou El Fadl and Nilüfer Göle. In addition, the different techniques used by these scholars have been equally examined, and accordingly, tried to find solutions to contemporary problems from the Qurʾan and sunnah via ijtihād.
Some of the primary sources for this thesis will be multimedia⎯primarily their websites⎯and other sources such as archived television or audio interviews, from which I have gained insight into their methodology. Also, since most of the well- recognised works of authority on ijtihād are in Arabic and some of the books by the scholars chosen in this study are in French, I have made translations into English where necessary.
The first stage of the present work aims at explaining the requirements of ijtihād, outlining its history from the time of the Prophet (pbuh) to the twenty-first century and displaying the approach to ijtihād of contemporary scholars living in Western countries.
The second stage involves a study of some ways of overcoming the gulf between
39 Islamic principles and teachings, and how these principles can be practised by
Australian Muslims living in a modern state. This also involves a study of a thus far neglected field of Islamic jurisprudence literature, that of the genre of efforts accomplished by mujtahids (scholars who engage with ijtihād), either to extract a law or ruling from inexplicit scriptural sources or to formulate a specific legal opinion in the absence of reference texts. It expresses the methodologies of mujtahids in bridging the gap between Islamic religious sources and the reality in which they and their communities live.
This thesis consists of eight chapters. The first chapter is an introduction to the thesis which is devoted primarily to justifying the research. Accordingly, a background, review of existing literature, statement of the problem that motivated the conduct of this research, the significance of the study, general objectives of the study, limitations of the study, methodology and thesis structure are the major issues treated in this chapter.
Chapter two introduces the reader to the historical evolution of Sharīʿah and fiqh and distinguishes between Sharīʿah and Islamic law. It correspondingly examines the meaning of ijtihād linguistically and technically, and discusses how ijtihād can provide
Muslim communities with an appropriate framework and a set of specific and adequate rulings fitting their new situation. The key question in this chapter is how to relate the situation of Australian Muslims to Islamic religious texts, and how to use these sources to provide binding guidance in term of engagement in the societies they live while remaining faithful to Islamic teaching.
Chapter three introduces the characteristics of the Muslim community in Australia and establishes a theoretical framework for the thesis. It begins by underlining the prejudices against Muslims and Islamophobia, which is not just a challenge for Muslims
40 but for the whole Australian society, and points out the contemporary challenges faced by Australian Muslims. This chapter also introduces the structure of the following chapters in terms of analysing the key points of the research. After that, the study pursues the importance of ijtihād and its relevance for building Muslim identity in
Australia and this will be done through the lens of three contemporary Muslim scholars living and working in the West by applying their ideas to the Australian context.
In chapter four the discussion focuses on the contemporary problems faced by female
Muslim migrants in Australia’s diverse multicultural society. This chapter is about
Australian Muslim women who choose an Islamic revivalist path in the context of a
Western secularised society and the strategies⎯based on ijtihād⎯they employ to obtain their Islamic rights within that particular context. This argument helps analyse the challenges Muslim women have as they come to terms with their own identity in the
Australian context, if women’s rights given by Islamic law are capable of preserving
Muslim identity in a modern society, and if women are able to stay engaged and contribute to the broader Australian society while simultaneously tailoring their own religious identity. The discussion in this chapter begins by examining the notion of identity in general, then multiple identity, and then explores the core elements of the
Muslim identity traced by Tariq Ramadan. This chapter also introduces the concept of multiculturalism in the Australian context and how it can be a challenge for the
Australian Muslim woman. Finally, the chapter considers the critiques of feminism and whether it is challenging the identity of Muslim women.
Chapter five examines the notion of modernity in a Western Muslim context by proposing a specific social, political and economic management that is linked to ethical values. Since modernity refers to a philosophical concept of certainty that relies on
41 reason rather than religion, it thus raises the significant question “are religions in general and modernity incompatible and irreconcilable?” This question leads to the next element of the theoretical framework of this thesis. To do this, I explore an objective reading and understanding of Islam through its sources, which will show that Islam is not averse to modernity. I will argue that some aspects of Islam emphasise the importance of reason. Also, its significant reference to people and their rights make compatibility between Islam and modernity possible, and hence the compatibility of
Islam with Australian values. To achieve this outcome, I will document the three divisions of Muslim responses, which I group under three headings: liberal reformists, traditional reformists and modern reformists.
Chapter six addresses the considerable debate as to whether Islam is compatible with democracy and human rights. This chapter discusses three questions: How can a democratic conception of people’s authority be reconciled with an understanding of the socio-political elements of Islamic law? How do Muslims understand (and practise) democracy? And how does Islam and democracy co-exist in Australia? Different responses to this will be investigated including the views of the liberal, moderate and traditionalist Muslim scholars. Also, an analysis of the respective works of the chosen scholars, views, methodologies and thoughts, will be compared and discerned. After that, the chapter will explore human rights through the lens of maqāṣid al-Sharīʿah, and the struggle for democracy in the Muslim-majority countries and Australia. Moreover, the chapter discusses how basing democracy and morality on human’s interests is a risky affair because of the relative and temporary nature of human’s values, and whether democracy and morality should be based upon religious principles. In this context the
Medina state model of Prophet Muḥammed (pbuh), which continued to be considered a source of guidance in the governmental sphere, will be explored.
42 Chapter seven focuses on the issue of the Muslim minorities living as citizens in
Australian society. This chapter examines the juristic discourses on the degree to which a Muslim is obliged to follow Sharīʿah in Australia. This question will be addressed by considering the obligation for Muslims to follow Sharīʿah in a non-Muslim country, describing the conditions under which these laws should be followed. Particularly, relying on the higher objectives of Sharīʿah and the views of leading classical and contemporary scholars, I will demonstrate that, in secular countries, Muslims are only obliged to follow certain aspects of Sharīʿah. The chapter turns to discuss how a government can build a democratic polity that includes citizens with strong faith commitments. This part of the study concentrates on the practical application of some reflections on Australian society concerning Islamic family law, approaching the subject from spiritual, social and legal perspectives. It also examines the issue of the official accommodation of Islamic family law in liberal democratic states that have minority
Muslim communities. The chapter considers the international debates that have happened in Canada and the UK concerning Sharīʿah, and the unofficial family dispute resolution processes in Australia.
Chapter eight is the conclusion of this thesis; it serves to tie the findings with the objectives of the thesis. It concludes that ijtihād can assist Muslims in Australia to tackle the problems facing their communities. This chapter concludes from the gathered information that ijtihād, practised by competent scholars, can enable the social, cultural, political and intellectual adaptation of Sharīʿah to new surrounding circumstances.
43
2 THE SIGNIFICANCE OF IJTIHĀD IN ISLAMIC JURISPRUDENCE
2.1 Introduction
Many Western educated Muslims have begun to search for something within Islam that would allow them to think freely, and engage and embrace the positive elements of their culture. A key question for Australian Muslims, who practise their religion, is how to relate the Islamic religious texts to everyday living and how to use these sources to provide guidance in terms of engagement in the societies they live while remaining faithful to Islamic teaching. I want to broach this issue by answering the following questions: How does ijtihād work? How can it be used to address the needs of Muslims in non-Muslim societies in the twenty-first century? And how should Muslims adapt to changing societal conditions, needs and priorities?
This chapter considers these questions by focusing on the importance of ijtihād as an essential instrument to derive the laws of Sharīʿah from their sources. Also, ijtihād is one of the salient elements and defining features of Islamic law. It presents itself not only as legal reasoning, but also as a creative impulse. The process of ijtihād has enabled Muslims to be flexible and to learn from other cultures and civilisations. Islam teaches that no one owns the truth, true believers are always in search of truth and wisdom, and wherever it can be found, they follow.1 In Islam, it is human intelligence that deduces and determines the universal at the heart of the scriptural source.2 Guided, and sometimes limited, by the nature of the sources, whether immutable or changeable, reason has the task of establishing rules and methods of reading the text to identify and
1 The Prophet (pbuh) insisted his disciples acquire all manner of useful knowledge, as he said: “A word of wisdom is the lost property of the true believer, wherever he finds it he takes it” (Ḥadith, Al Termizi 51/5, Ibn Majah 1395/2). 2 Ramadan, Western Muslims and the Future of Islam, p. 22.
45 distinguish the essential principles (al-uṣul) from secondary injunctions (al-furuʿ).3 The purpose of this work is to determine how much room in Islam is available to respond through ijtihād to the contemporary needs raised by new social realities.
To discuss the history and significance of ijtihād, it is relevant to start with a synopsis of key aspects in the evolution of Islamic jurisprudence from its traditional context. Then, I will highlight the concepts of ijtihād and fatāwa (legal verdicts) in modern times, which are both instrumental to relating the resources of Sharīʿah to contemporary issues. More specifically, ijtihād is required, but how do scholars exercise their intellectual faculties to resolve the current divergence between the modern world and a traditional presentation of Islamic law? This is done through discussing the foundations, conditions and methodology of ijtihād.
2.2 Historical Development of Sharīʿah
To assess the historical evolution and aspects of Sharīʿah and its continuity in the modern world, it is necessary to examine first the definition, sources and importance of
Sharīʿah.
2.2.1 Primary Sources and Importance of Sharīʿah
In Islamic scholarship, Sharīʿah means broadly the way to well-being or goodness and the fountain or source of nourishment.4 Also, it means the path to be followed for
Muslims⎯the path apparently to felicity and salvation.5 This journey leads to God
(Allah), but the way for Muslims has been shown by God, the Creator, through the
Prophet Muḥammad (pbuh). Thus, it is only Sharīʿah that liberates humankind from
3 Ibid. 4 Khaled Abou El Fadl, Reasoning with God: Reclaiming Shariʿah in the Modern Age (Lanham, Boulder, New York, London: Rowman& Littlefield, 2014), p. xxxii. 5 Mohammad Hashim Kamali, Shari’ah Law: An Introduction (Oxford: One World, 2008), p. 14.
46 servitude to gods other than Allah.6 Sharīʿah offers two principal categories for measuring religiosity: “righteous” (ṣaliḥ) and “corrupt” (fasik), roughly equating to observant and non-observant. In practice, most Muslims measure religiosity in slightly more subtle terms, recognising degrees of observance between these two alternatives.7
The Islamic scholar Ibn al-Qayyim al-Jawziyya (d.1350) argues that any injustice that might occur from the application of God’s law must be ascribed to a faulty interpretation of the text.8 A faithful and accurate interpretation cannot, and should not, lead to an injustice, so he summarises the position of Sharīʿah as follows:
The principles and fundamentals of the Sharīʿa concerning the injunctions and the good of humankind in this life and the next are all based on justice, mercy, the good of men (sic), and wisdom. Every situation in which justice succumbs to tyranny, mercy to cruelty, goodness to corruption, wisdom to foolishness, has nothing in common with the Sharīʿa, even if it is the result of an allegorical interpretation (taʾwill). For the Sharīʿa is the justice and the mercy of God among His creatures, His shadow upon His earth, and His wisdom, which is both the proof of His own existence and the best witness to the authenticity of His Prophet.9
Since Sharīʿah concerns the good of humankind in this life and the hereafter, it is primarily related to a set of principles that guide Muslims in their lives. Therefore,
Sharīʿah refers to guidance, beliefs, commands, prohibitions, laws and principles that
God addressed to humanity relating to their conduct in this world and salvation in the hereafter.10
The rules of Sharīʿah are classified in the four main categories of creed (ʿaqidah), devotional matters (ʿibādāt), morals and ethics (akhlāq), and civil transactions
6 Abdur Rahman Doi, Sharī’ah: The Islamic Law (Kuala Lumpur: A.S. Noordeen, 1984), p. 2. 7 Mark Sedgwick, Islam & Muslims: A Guide to Diverse Experience in a Modern World (Boston: Intercultural Press, 2006), p. 42 8 Ibn Qayyim al-Jawziyyah, Al-Turuq al-Ḥukmiyyah fi’l Siyāsah al-Shariʿiyyah, ed. Muḥammad Ḥamid al-Faqi (Cairo: Maṭbaʿat al-Sunnah al-Muḥammadiyyah, 1993), p. 7. 9 Ramadan, Western Muslims and the Future of Islam, p. 42. 10 Kamali, Shari’ah Law, p. 2.
47 (muʿāmalāt). ʿAqidah is to believe in God, God’s names and attributes, angels, the
Books, destiny and all the messengers of God. The most important part of ʿaqidah is the oneness of God in worship (tawḥid). ʿIbādāt comprises rules that regulate the relationship of men and women with the Creator.11 ʿIbādāt concerns the pillars of Islam
(testimony of faith, prayer, fasting, charity and pilgrimage), which are obligatory for all
Muslims. Failure to fulfil these obligations calls for moral advice in this world and punishment in the hereafter, but they are basically not adjudicated by courts.12
Muʿāmalāt is concerned with relations between human beings.13 The laws of Sharīʿah in the sphere of muʿāmalāt seek to regulate relations among individuals, and between individuals and government. They constitute the primary concerns of government and the judiciary, and are binding under Islamic law.14 They also represent the legal character of Sharīʿah and have been described as “God’s commandments related to the activities of man.”15 The rules of the last sphere that come under the umbrella of
Sharīʿah are related to ethics and are classified under akhlāq.
Generally, the rules of Sharīʿah in the sphere of ʿaqidah and ʿibādāt are not changeable.
However, if the rules are concerned with worldly transactions, as in the spheres of muʿāmalāt and akhlāq, the majority of jurists have held that these rulings are open to interpretation and ijtihād; therefore, Islamic law can be found in the fiqh of these two spheres.16 This distinction is essential: in the two spheres of ʿaqidah and ʿibādāt are the immutable teachings and beliefs determined by the divine texts of Sharīʿah, in which
11 Ibid, p. 17. 12 ʿAbd al-Raḥman al-Ṣabuni et al., Al-Madkhal al-fiqhi wa Tarikh al-Tashriʿ al-Islāmi (Cairo: Maktabah Wahbah, 1982), p. 27; Maḥmut Shaltut, Al-Islam: ʿAqidah Wa Sharīʿah (Kuwait: Maṭābih Dār-al-Qalām, 1966), p. 405. 13 Kamali, Shari’ah Law, p. 17. 14 Ibid. 15 Ibid, p. 15. 16 Ibid, p. 26; Yusuf al-Qaradawi, Shariʿat al-Islam: Ṣaliḥa lltaṭbiq Fi Kuli Zamān Wa Makān (Cairo: Maktabath Wahbeh, 1997), pp. 75-76; Yusuf al-Qaradawi, Madkhal ldrāsat al-Sharīʿa al-Islāmiyah (Cairo: Maktabath Wahbeh, 1997), pp. 271-276; Wahbeh al-Zuḥaili, Al Wajiz Fi Uṣul al-Fiqh (Beirut: Dār al-Fikr al-Muʿāṣr, 1995), p. 231.
48 human reason can change nothing without relying on a verse from the Qurʾan or
ḥadith.17 In the sphere of muʿāmalāt, scholars established a rule, which is basically the opposite of that concerning ʿaqidah and ʿibādāt: here everything is allowed, except that which is clearly forbidden by a divine text or by scholarly consensus.18 The basic principle in social affairs is permission (al-aṣl fil-ashyāʾal ibāḥa) unless there is a text that prohibits it, hence the “opening to humankind the fields of rationality, creativity and research”.19
Since the sine qua non of Sharīʿah is the oneness of God (tawḥid), every discussion of rulings whether under the spheres of muʿāmalāt and akhlāq, or under ʿaqidah and
ʿibādāt, must proceed from this article of faith (tawḥid).20 Therefore, ʿaqidah and
ʿibādāt are inseparable, in principle, from morality, economics, politics and daily civil transactions. Thus, Sharīʿah regulates all human obligations, including legal and non- legal matters, and “provides moral guidance for human conduct in general.”21
Consequently, it has a double message: faithfulness to the core of Islam, which is the oneness of God (tawḥid), and consistency between the essential axis of tawḥid and contemporary societal needs.22
With the above context in mind, from the perspective of the Grand Mufti of Australia,
Ibrahim Abu Moḥammed, although Sharīʿah has divine sources, its objectives and goals pertain to the benefit of human beings. The means of Sharīʿah are classified in immutable norms (thawābit) and norms subject to change (mutaghayyirāt). While thawābit are embedded in the divine texts of the Qurʾan and sunnah, mutaghayyirāt
17 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (Oxford and New York: Oxford University Press, 2009), pp. 20−21. 18 Ibid, p. 21. 19 Ibid. 20 Kamali, Shari’ah Law, p. 17. 21 Ibid, p. 18. 22 Ramadan, Western Muslims and the Future of Islam, p. 113.
49 represent the ability of jurists to understand the texts and the level of agreement and disagreement between one jurist and another. That is how the juristic schools of law
(madhāhib) have been created.23 Madhāhib are the schools of fiqh that are referred to bodies dedicated to the study of Islamic law and jurisprudence. They play a significant role in the interpretation of Sharīʿah.
It is important to differentiate between Sharīʿah and Islamic jurisprudence (fiqh).
Sharīʿah bears a stronger affinity with revelation, whereas fiqh is mainly the product of human reason,24 which discovers Sharīʿah and relates its general directives to the pursuit of finding solutions to particular or unprecedented issues. Fiqh is a rational endeavour and largely a product of speculative reasoning. It may be defined as knowledge of the practical rules of Sharīʿah.25 Whoever chooses to be affiliated with one madhhab, they must remain faithful to the immutable principles of Sharīʿah.
To derive fiqh from the indications that are provided in the sources is the objective of the principles of Islamic jurisprudence (uṣul al-fiqh).26 The main difference between uṣul al-fiqh and fiqh is that the former is “the science of the source and the methodology of the law”, and the latter is concerned with the knowledge of the detailed rules of
23 I translated from Arabic the above information about Sharīʿah from the weekly lectures delivered by the Grand Mufti of Australia, Dr Ibrahim Abu Moḥammed, Sydney, May 2015. 24 Mohammad Hashim Kamali, “Law and Society: The Interplay of Revelation and Reason in the Shariah,” in The Oxford History of Islam, ed. John L. Esposito (Oxford and New York: Oxford University Press, 1999), p. 108. 25 Classical scholars have defined fiqh as “the field of knowledge that is concerned with the actions of the faithful.” It is understood to represent the outcome of human endeavour to apply the rule of Shari‘ah (Islamic law) in a given social milieu. Shari‘ah, on the other hand, denotes the precepts embodied in the Islamic revelation. It is not simply a legal system, but rather a composite system of law and morality. That is, Islamic law aspires to inform various aspects of human activities, not only those that may entail legal consequences; See, Louay M. Safi, “The Creative Mission of Muslim Minorities in the West: Synthesizing the Ethos of Islam and Modernity,” in Rethinking Islamic Law for Minorities: Towards a Western-Muslim Identity, ed. Jaser Auda (London: International Institute of Islamic Thought, 2008), pp. 44-45. 26 Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 2003), p. 2; See, Ann Black, Hossein Esmaeili & Nadirsyah Hosen, Modern Perspectives on Islamic Law (Cheltenham, UK: Edward Elgar, 2013), p. 3.
50 Sharīʿah in its various branches, including worship, contracts and law.27 While uṣul al- fiqh provides the standard criteria of how to deduce the rules of fiqh from the sources of
Sharīʿah, fiqh is the profound knowledge of Islamic instructions and realities. Fiqh came to be especially applied to the understanding of Islamic teachings in the following three spheres: ʿibādāt, muʿāmalāt and akhlāq. Under each sphere, there are the different kinds of fiqh, which are related to it. For instance, scholars have divided the different kinds of fiqh rulings into three parts – worship, civil transactions and laws – which are related to the lives and actions of humankind. A chart representing Sharīʿah and its various spheres is represented in the figure below.28
27 Ibid. 28 This figure has been formed after a thorough reading through the books of Sharīʿah, especially Principles of Islamic Jurisprudence and Shari’ah Law: An Introduction by Mohammed Hashim Kamali; Sharīʿah: The Islamic Law by Abdur Raḥman I. Doi; Shariʿat al-Islam: Ṣaliḥa lltaṭbiq Fi Kuli Zamān Wa Makān, Madkhal ldrāsat al-Sharīʿa al-Islāmiyah by Yusuf al-Qaradawi; and Al Wajiz Fi Uṣul al-Fiqh by Wahbeh al-Zuḥaili. Also, support and consultation was sought from the Mufti of Australia, Dr Ibrahim Abu Moḥammed, who holds a PhD in Islamic studies from the College of Uṣul al-Din of al-Azhar University. He freely gave his time and knowledge to complete this chart.
51 Sharīʿah
ʿAqidah ʿIbādāt Muʿāmalāt Akhlāk
Uṣul al-fiqh Uṣul al-fiqh Uṣul al-fiqh
Fiqh of: Fiqh of: Fiqh of: • Prayer • Buying and selling • Family and • Fasting • Liability society/ • Charity • Peace/war social life • Pilgrimage • Jihād • Manners • Cleanliness • Partnership • Morality • Funerals • Commerce and the • Marriage and divorce spiritual • Hunting and system of slaughtering Islam • Agriculture • Property • Trust • Lending • Inheritance • Arbitration • al Waqiʿ/minorities • Testimony • Governing/the political system • Punishments • Retaliation Figure 1: A Chart of Sharīʿah
The injunctions of the Qur’an and sunnah provide the nucleus of Sharīʿah.29 So, the primary sources of Sharīʿah are the Qurʾan, sunnah and forms of juristic independent reasoning.30 There is one passage in the Qurʾan where all the principal sources are indicated: Surat al-Nisaʾ states, “O ye who believe! Obey Allah, and obey the
Messenger, and those charged with authority among you. If ye differ in anything among yourselves, refer it to Allah and His Messenger, if ye do believe in Allah and the Last
Day: That is best, and most suitable for final determination.”31 “Obey Allah” in this
29 Kamali, “Law and Society,” p. 108. 30 Ibid, p. 118. 31 Qurʾan 4: 59.
52 verse refers to the Qurʾan, and “Obey the Messenger” refers to the sunnah. Obedience to “those charged with authority among you” is held to be a reference to ijmaʾ
(consensus) and the last portion of the verse, which requires the referral of disputes to
Allah and the Messenger, authorises qiyas (analogical reasoning). For, qiyas is essentially an extension of the injunctions of the Qurʾan and sunnah.32 The rationale
(ʿillah) or effective cause of qiyas may be clearly indicated in these sources or identified by way of inference (istinbaṭ).33 In either case, qiyas essentially consists of the discovery of a ḥukm (ruling) that is already indicated in the divine sources.34 The primary sources of Sharīʿah are of two types: revealed and non-revealed. There are only two revealed sources: the first is the Qurʾan, which literally means “reading” or
“recitation”.35 It may be defined as “the book containing the speech of God revealed to the Prophet Muḥammad in Arabic and transmitted to people by continuous testimony, or tawatur. It is the inimitable speech of God, and it is recited in prayer (ṣalat)”36. The
Qurʾan was revealed to Prophet Muḥammad gradually, over about twenty-three years, through the meditation of Archangel Gabriel: “With it came down the spirit of Faith and
Truth. To thy heart and mind, that thou mayest admonish”.37 The Qurʾan is divided into thirty equal divisions, called juzʾ in Arabic. There are 114 chapters of varying length.38
The chapters revealed before the migration of the Prophet to Medina are called Meccy,
32 Kamali, Principles of Islamic Jurisprudence, pp. 11-12. 33 Ibid. 34 Abu al-ʿAynayn Badrān, Uṣul al-Fiqh al-Islami (Alexandria: Muʾassasah Shabab al-Jamiʿah, 1984), pp. 51-52. The jurists used to apply legal analogy (qiyas) to extend the application of the Qur’anic precepts to new cases. The qiyas technique, widely accepted by the schools of jurisprudence, requires the jurists to identify the efficient raison d’être (‘illa) of a specific Qur’anic statement, and to use this reason as the basis for extending the application of the Qur’anic precept to new cases. For example, early jurists extended the prohibition of wine to all intoxicating substances on the grounds that intoxication was the reason for the Qurʾanic prohibition of wine. Early jurists also used the statements and actions of the Prophet (pbuh) and his companions as a means of reaching a better understanding of the revealed texts; See, Safi, “The Creative Mission of Muslim Minorities in the West,” p.45; Louay M. Safi, “ Islamic Law and Society,” American Journal of Islamic Social Sciences 7(2) (1993), p. 177. 35 Kamali, Principles of Islamic Jurisprudence, p. 16. 36 Ibid. 37 Qur’an 26:193-194. 38 The longest chapter is Al-Baqarah consisting of 286 verses and the shortest chapter is Al-Kawthar consisting of three verses only. The whole Qu’ran has 6,238 verses.
53 whereas those following the migration are called Medany.39 The Meccy chapters generally stress the unity and majesty of Allah, denounce idol worship, promise paradise for the righteous, punishment to wrongdoers in hellfire, confirm the prophethood of Muḥammad (pbuh), and remind humanity of the past prophets and events of their time.40 The Medany chapters, on the other hand, are lengthy and concerned with the ritualistic aspects of Islam, such as paying dues to the poor (zakah), fasting (ṣawm), pilgrimage (ḥajj), moral and ethical codes, criminal law, social, economic and state policies, and guidelines for foreign relations. The Medany also contain descriptions of some of the early battles of Islam, condemn hypocrites, emphasise the unified basic message of all the past prophets, and confirm that the process of prophecy and revelation is complete. In this respect, revelation affirms that
Muḥammad (pbuh) is the last prophet, and God‘s religion is, therefore, complete through the Qurʾan. Thus, God uses the text to exhort the followers of truth to make the
Qurʾan their only guide for living a righteous life.41
The second source of Sharīʿah is the sunnah of Prophet Muḥammad (pbuh), including his saying, acts and tacit approval of the conduct of his companions.42 Muslim scholars, the ʿulamāʾ, concur on the fact the sunnah is a source of Sharīʿah and its rulings stand on the same footing as the Qurʾan.43 The sunnah of the Prophet, a proof (ḥujjah) for the
Qurʾan, testifies to its authority and enjoins Muslims to comply with it, so it is regarded as the best example of how to live by God’s decree on earth. The Qurʾan states, “He
39 M. Ibin-Othaimeen, Interpretation of Qu’ran (Mecca: Shaikh Bin-Othaimeen Charity Press, 2000), p. 7. 40 Ibid. 41 Ibid. 42 Kamali, “Law and Society,” p. 118. 43 Kamali, Shari’ah Law, p. 23.
54 who obeys the Messenger, obeys Allah: But if any turn away.”44 Thus, the sunnah is widely considered divine in nature.45 In many places in the Qurʾan, some commands of obedience to the Prophet can be clearly seen and eventually a duty of the believers to submit to his judgement and authority.46 The Islamic scholar Abu Ḥāmid Al-Ghazali
(d.1111) writes that some of the divine revelation the Prophet received constitutes the
Qurʾan, whereas the remainder is sunnah. All the rulings of the Prophet, especially those that correspond with the Qurʾan and corroborate its contents, constitute binding law.47 Moreover, Al-Ghazali explains the purport of these rulings of the divine revelation, which the Prophet received.48 The aḥādiths (pl. ḥadith) of the Prophet comprise the sunnah which in principle commands obedience. All the rulings of the
Prophet, especially those which relate and corroborate its content with the Qurʾan, constitute binding law.49
Mohammed Hashim Kamali maintains the sunnah, as a source of Shariʿah, ratifies its rulings in three capacities: Firstly, it may confirm a ruling that originates in the
Qurʾan.50 Secondly, the sunnah may elucidate and clarify the Qurʾan.51 Thirdly, the
44 Qur’an 4:80. Messengers of God convey God’s message and commands to the people, and warn them of the day of reckoning and of His signs. Thus, obedience to messengers is an indicator of one’s obedience to God. Obedience to the messengers of God is one of the most important acts of worship that God commands believers in the Qur’an. Also, disobedience to the messenger of God is a direct disobedience to God and His religion. 45 “Nor does he say [aught] of [his own] Desire. It is no less than inspiration sent down to him. He was taught by one Mighty in Power. Endued with Wisdom: for he appeared [in stately form]. He does not speak out of his own fancy” (Qur’an 53: 3-6). 46 “…So take what the Messenger assigns to you, and deny yourselves that which he withholds from you…” (Qur’an 59:7). 47 Abu Ḥamid Al-Ghazali, Al-Mustaṣfa min ʿIlm al-Uṣul (Cairo: Al-Maktabah al Tijariyyah, 1937), p. 83. 48 Ibid. 49 Kamali, Shari’ah Law, pp. 24−25. 50 All ḥadith pertaining to the five pillars of Islam and the six pillars of faith and such other topics regarding creed reaffirm the Qur’anic principles on this subject; See Kamali, Shari’ah Law, p. 24. 51 Some ḥadith pertaining to the explanations of how to practice some pillars of Islam, like ablution, prayer, pilgrimage, etc.
55 sunnah may comprise rulings on which the Qurʾan is silent, in which case these rulings originate in the sunnah.52
The non-revealed primary sources of Sharīʿah are generally founded through juristic reasoning (ijtihād). This reasoning may take a variety of forms, including general consensus of the learned (ijmaʿ), which basically originates in ijtihād and provides a procedure by which a ruling of juristic reasoning can acquire the binding force of law and analogical reasoning (qiyas).53 Kamali maintains “the main difference between ijtihād and the revealed sources of the Sharīʿah lies in the fact that ijtihād is a continuous process of development whereas divine revelation and prophetic legislation discontinued after the demise of the prophet.”54 The pursuit of better solutions lies at the very heart of ijtihād which, according to uṣul al-fiqh, must never be discontinued.55 The essential unity of Sharīʿah lies in the degree of harmony that is achieved between revelation and reason; ijtihād is the principal instrument of maintaining this harmony.56
The non-revealed sources of Sharīʿah serve the purpose of enabling the qualified scholar to find fair and reasonable solutions to problems as they arise.57 Tāhā Jābir al-
ʿAlwānī, the president of the Fiqh Council of North America, discusses ijtihād in a number of his English works, most notably in his book Issues in Contemporary Islamic
Thought. In the chapter titled “The Role of Islamic Ijtihād in the Regulation and
Correction of Capital Markets”, he makes a salient point that “we need to reconstruct the concept of ijtihād itself so that it can become a methodological tool capable of responding to the challenges and questions of our time and future generations. Ijtihād
52 For instance, the prohibition regarding simultaneous marriage to the maternal and paternal aunt of one’s wife, the right of pre-emption and the grandmother’s entitlement to a share in inheritance all originate in the Sunnah as the Qurʾan is silent on these points; See, Kamali, Shari’ah Law, p. 25. 53 Kamali, “Law and Society,” p. 118. 54 Kamali, Principles of Islamic Jurisprudence, p. 468. 55 Ibid, p. xix. 56 Ibid, p. 468. 57 Ibid, p. 496.
56 need not to be a closed tool to be used only within a specialised methodology.”58 This is the position regarding ijtihād found in most modern critical studies. However, al-
ʿAlwānī further remarks the reconstructing of ijtihād needs to take note of the following: First, in its fiqhī dimension, ijtihād is limited to the genius of a scholar who can formulate the appropriate question, given the event(s), and go to the text of the
Qurʾan and sunnah for a ruling. If they cannot find a direct answer, they must look for an answer in the rulings derived from ijmaʿ (consensus), qiyās (analogy) or articulate their own considered legal principle. But in our time, the unprecedented and ongoing increase of knowledge and communication has made this difficult, so it is necessary to establish strong connections between the social sciences (as a tool for understanding events to formulate relevant ethical question) and fiqh (as the science according to which these formulated incidents have moral value and meaning).59
2.2.2 Evolution of Islamic Jurisprudence
Shariʿah has a short history. Its development began and ended in just over two decades during the Prophet’s mission in Mecca and Medina. In reality, Islamic legal history is the history of fiqh (Islamic jurisprudence) rather than Shariʿah.60 This history revolves around six historical periods that Kamali has identified. First, there is the prophetic period (610-632 CE) when the Qurʾan was revealed and the Prophet explained and reinforced it through his teachings and practice, the sunnah. At this time, there was no need for speculative legal reasoning (ijtihād) because the Prophet provided definitive
58 Tahir al-‘Alwānī, Issues in Contemporary Islamic Thought (London: The International Institute of Islamic Thought, 2005), p. 132. 59 Ibid. 60 Kamali,“Law and Society,” p. 110.
57 rulings on issues when they arose.61 These precedents are essentially the sunnah of the
Prophet and provide the substance of Islamic traditions.62
The second period of the development of fiqh⎯the era of the Prophet’s companions
(632−661 CE)⎯is one of interpretation and supplementation of the textual subject matter of Shariʿah. The companions of the Prophet frequently resorted to personal reasoning and consultation in the determination of issues. The first four caliphs⎯Abu
Bakr, ʿUmar ibn al-Khattab, Uthman ibn Affan, and ʿAli ibn Abi Talib, collectively known as the “rightly guided caliphs”⎯are particularly noted for their interpretations.
In this period fiqh and ijtihād find their historical origins.63
The third phase in the development of fiqh is known as the “era of the successors”⎯it began with the Umayyads coming to power around 661 CE and ended with that dynasty’s demise in 750 CE.64 During this era, the customary law of pre-Islamic Arabia continued to be applied with regard to many matters, but this was obviously insufficient to deal with the varied and intricate problems that arose in the new provinces.65 Thus, this period was marked by the emergence of two schools of legal thought that left a
61 Ibid. 62 After the rise of Islam, the term sunnah came to mean the sayings, acts, and decisions of the Prophet. Later on, the substance of the sunnah, in addition to the authorities who transmitted it, was called ḥadith. See I. Goldziher, Étude sur la Tradition Islamique, trans. Leon Bercher (Paris: Adrien Maisonneuve, 1952); and Alfred Guillaume, The Traditions of Islam (Oxford: Oxford University Press, 1924). When the Prophet first introduced Islam, he was denounced as a violator of the sunnah of his ancestor for attacking traditional idolatry, but when Islam was established, the Prophet, as the founding leader of the community, was cited to provide guidance for legal decisions. After his death, Prophet Muḥammad’s sayings and decisions became precedents on the strength of which jurists made decisions. The golden rule of the Arabs was bound by tradition and precedent. In this idea of precedent of sunnah, the whole conservatism of the Arabs found expression. The idea of sunnah presented a formidable obstacle to every innovation. However, Islam, the great innovation that Arabia saw, had to overcome this opposition. But, once Islam had prevailed, even among one single group of Arabs, the old conservatism reasserted itself; what had shortly before been an innovation, now became the thing to do, a thing hallowed by precedent and tradition, a sunnah that became one of the central concepts of Islamic law. See Wael B. Hallaq, The Formation of Islamic Law (UK: Ashgate, 2004), p. 35; See, Kamali, “Law and Society,” p. 112. 63 Kamali, “Law and Society,” p. 112. 64 Ibid. 65 Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul Al-Fiqh (Uk: Cambridge University Press, 1997), p.13.
58 lasting impact on the subsequent development of fiqh: the Traditionists (ahl al-ḥadith), centred in the holy cities of Mecca and Medina, relied mainly on textual authority and were averse to the use of personal opinion (raʾy); and the Rationalists (ahl al-raʾy), active in the Iraqi cities of Kufa and Baṣra, were inclined, in the absence of a clear text, toward a more liberal use of personal reasoning.66
The fourth phase in the history of fiqh is known as the era of independent reasoning
(750−950 CE). This phase saw major developments that were later manifested in the emergence of the four legal Sunni schools (madhāhib) and one legal Shiʿī school that have survived to the present: the Ḥanafi, Maliki, Shafiʿī, Ḥanbali and Jaʿfari.67 Several centres for legal study developed, but the two principal centres, which radiated their influence to other parts of the empire, were those of Irāq (Kūfa and Basra) and the Hijāz
(Medina and Mecca).68 The Irāqī jurists won a reputation for exercising personal reasoning more than the Hijāzī jurists, and its leading exponent, Abū Ḥanīfa (d.767), as well as his followers are credited with the liberal use of analogy as the basis for their legal reasoning.69 They had a tendency to imagine hypothetical cases to determine their solutions. Also, they had a flair for scholasticism and technical subtlety. The Hijāzī jurists were averse to abstract speculation: they were more pragmatic and concerned themselves with concrete cases.70
It is important to mention here that Malikī, with their pioneering work on the compilation of Islamic jurisprudence, opened the way for all later writers to follow a
66 Kamali, “Law and Society,” p. 112. 67 Ibid. 68 Majid Kadduri, Al-Risāla Fī Usūl al-Fiqh: Treatise on the Foundations of Islamic Jurisprudence (Cambridge: The Islamic Texts Society, 1997), p. 5. 69 Muhammad b. al-Hassan Shaybani, al-Kitab al-Asl. ed. Chehata (Cairo: Al Maktabah al Kubra, 1954), pp. 650-54. See also Joseph Schacht, “Pre-Islamic Background and Early Development of Jurisprudence” in Law in the Middle East, vol I, ed. M. Kadduri and H. J. Liebesny (Washington, D.C.: The Middle East Institute, 1995), pp. 45−46. 70 Shaybani, al-Kitab al-Asl, p. 47.
59 similar path.71 Malikī’s Muwattaʾ is considered to be the first book of reliable ascription that was circulated widely within the Islamic world and has been passed down from generation to generation to the present.72 Despite its traditionalist leanings, however, the
Malikī school, over time, embraced a number of important doctrines that are inherently versatile and its jurisprudence is in many ways more open than that of the other legal schools.73 Muhammad ibn Idris al-Shafiʿī (767−820 CE) is a leading figure in the
Traditionist camp, but he tried to strike a middle course between Traditionist and
Rationalists in articulating a new methodology of uṣūl al-fiqh74.
The fifth phase in the history of fiqh began around 950 CE. This period is characterised by the institutionalisation of the dominant schools, with emphasis not on new developments but on following precedent or accepting of past patterns of behaviour
(taqlid) unchallenged. This period lasted for about nine centuries. It was characterised by a period of stagnation in regard to fiqh, and thus, is sometimes described as the
“closure of the gate of ijtihād”.75
The sixth and final phase in the development of fiqh began at the turn of the twentieth century. It has been marked by the revivification of fiqh employing ijtihād as a means to accommodating the prevailing needs of a modern society. This development is generally seen as an important component in the rise of Islam in recent decades.76
71 See Imam Malik ibn Anas, Al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law, trans. Aisha Abdurrahman Bewley (London: Kegan Paul International, 1989), p. xxvii. Malikī’s opinion was based on local practice; the tradition concerning Khiyār al-majlis, however, might have been circulated after his death; See Joseph Schacht, Origins of Muhammadan Jurisprudence (Oxford: Oxford University Press, 1967), pp. 159−60. 72 Muhammad Abu Zahra, The Four Imams: Their Lives, Works and their Schools of Thought, trans. Aisha Bewley, ed. Abdulhaqq Bewley and Muhammad Isa Waley (New Delhi: Millat Book Centre, 2005), p. 70. 73 Kamali, “Law and Society,” p. 113. 74 Ibid, p. 114. 75 Ibid, p. 115. 76 Ibid.
60 Khaled Abou El Fadl emphasises that the evolution of Islamic jurisprudence happened through a cumulative, evolutionary and often dialectical process. Importantly, in terms of this development, the adjudications or regulations of rulers had no precedential value as far as the jurists were concerned.77 A jurist within a certain legal guild would write a commentary on a text or systematically extract principles and rules from a specific text.
Other jurists would write a commentary on the work of their predecessor, but in doing so they would incorporate the latest opinions and adjunctions of other prominent jurists within the same guild or even from outside the guild.78 This evolutionary process would continue with each successive generation until a jurist, quite often the most learned and prominent within a guild, would write a legal treatise (mukhtasar) synthesising and summarising the development of the law up to that point. This treatise would then be used as an aid and ready reference for judges and students of the law. Later still, jurists would write commentaries on the hornbook incorporating the latest evolving law, and the process would commence all over again.79
Abou El Fadl also states Islamic jurists do not play the same function of mediation in the contemporary age that they did in the past. There are a variety of reasons for the disintegration of the traditional dynamics of Islamic jurisprudence. The most important of these are the increasing centralisation of state power, the nationalisation of the private endowments (awqaf) that traditionally supported and funded the law guilds, the adoption of civil legal systems in a large number of Muslim countries, the development of enormous hegemonic state bureaucracies that co-opt and transform many jurists into
77 Abou El Fadl, Khaled, Speaking in God’s Name (Oxford: One World Publications, 2001), p. 16. 78 Ibid. 79 Ibid; The hornbook is a legal book in which Muslim scholars used to summarise the development of Islamic law in order to use it as a reference to judges and students of law.
61 salaried employees, and the experience of colonialism that often methodically dismantled the traditional institutions of Islamic law under the guise of modernisation.80
Although, Sharīʿah historically developed into a jurist law, it might just as well have developed into a codified law.81 For instance, the historical example of a high government official, Ibn al-Muqaffa (d.759 CE), who, in the eight century, perceived the merits of codification and proposed the caliph should codify Sharīʿah so there would be one, uniform, official version of Islamic law. This would have given the ruler centralised control over law-making and would also have precluded the proliferation of diverging juristic interpretations of Sharīʿah requirements that followed the death of the
Prophet in 632 CE, and the development of the distinctive doctrines of the classical schools of Islamic law.82 Of course, this early proposal for codifying Sharīʿah was rejected. Not until the nineteenth century was there any further serious attempts to codify Sharīʿah. There were, of course, the Ottoman’s laws (qanuns), but these did not constitute a realisation of Ibn al-Muqaffa’s ideal of codification. Qanuns covered very limited subject matter and did not challenge the theoretical supremacy of juristic interpretations of Sharīʿah requirements and were not treated as definitive statements of
Sharīʿah. Instead, the qanuns only served for elements of Sharīʿah in areas where it was relatively weak.83
By the fourth phase mentioned earlier, not only had the law become more comprehensive in its coverage, but also jurists had begun to develop their own legal assumptions and methodology. Teaching and debate within scholarly circles sharpened methodological awareness, which led jurists to defend their own, individual conceptions
80 Ibid. 81 Nicholas Heer, Islamic Law and Jurisprudence (Washington: University of Washington Press, 1990), p. 179. 82 Ibid, p. 180. 83 Ibid.
62 of the Law.84 It is important to clarify that many interpretations of Islamic jurisprudence are possible within the context of the sources of Islam. Having more than one interpretation brings immense flexibility to the practice of Islam, which can be seen clearly in the saying of the Prophet that “disagreement in my community is a source of mercy”.85 There is significant tolerance of disagreement (ikhtilāf) among the ʿulamāʾ over juristic issues, so much so that Islamic law is often described as “diversity within unity”.86 The doctrine of ikhtilāf is the opposite of ijmaʿ.87 The difference between ijmaʿ and ikhtilāf is that the former embodies the collective conscience of the Muslim community, their agreement and undivided consensus over the correct interpretation of the text.88 Whereas, for ikhtilāf to be accepted, there are two basic requirements: one of which is that each of the opposing views is based on valid evidence, and the other is that none of the opposing views is unfeasible or unrealistic. Disagreements, which fail to meet these criteria, have no credibility and should be abandoned.89 Such practice not only confirms the freedom of speech that was enjoyed by generations of scholars since the advent of Islam, but also eliminates coercion in presenting multiple views to the greater Muslim community.90
2.3 The Meaning and Foundations of Ijtihād
Literally, the Arabic word ijtihād is defined as “striving, exerting” and, in the jurisprudential sense, “the capacity for making deduction in matters of law in cases to
84 Ibid, p. 153. 85 Kamali, Shariʿah Law, p. 117. 86 Ibid, p. 99. 87 Kamali, Principles of Islamic Jurisprudence, pp. 168−169. 88 Kamali, Shariʿah Law, p. 101. 89 Jabir ʿAlwani, Adab al-Ikhtilāf fi-l-Islam (Riyad: Maʿhad al-ʾḥlam li al-fikr al-Islami, 1992), p. 104. 90 Mehmet Ozalp, Islam in the Modern World (Turkey: Journalist and Writers Foundation Publications, 2004), p. 110.
63 which no express text or rule already determined by ijmaʿ is applicable”.91 However, it is also described as “rethinking” or “independent reasoning.”92 The opposite of ijtihād is taqlid,93 which the ʿulamāʾ define as one’s “acceptance of another’s madhab without knowing the other person’s justification.”94 In its technical legal connotations, Kamali defines ijtihād as “the total expenditure of effort make by a jurist in order to infer, with a degree of probability, the rules of Sharīʿah from their detailed evidence in the source.”95 Some ʿulamāʿ have defined ijtihād as “the application by a jurist of all his faculties either in inferring the rules of Sharīʿah from their sources, or in implementing such rules and applying them to particular issues.”96 Therefore, ijtihād consists of an inference (istinbāṭ) that amounts to a probability (ẓann), thereby excluding the extraction of a ruling from a clear text.97 It is necessary here to mention the general principle that asserts: “there can be no ijtihād when an explicit text exists in the sources
(lā ijtihāda maʿa al-naṣ)”.98 This means, if there is an explicit Qurʾanic verse (qaṭʿi al- dalala) or an authenticated ḥadith (mutawatir, qatʿi al-thubut) whose meaning is obvious, unambiguous and leaves no room for any explanation or clarification, there is no need for the exercise of ijtihād.99 Although the Qurʾan is authenticated in itself and of indisputable origin (qaṭʿi al-aḥkām), most of the verses containing legal judgements
91 Abdur Rahim, The Principles of Muhammadan Jurisprudence According to the Hanafi, Maliki,Shafi and Hanabli School (London, Madras: Luzac & Co, 1911), pp. 168-169. 92 Fazlur Rahman, “Post-Formative Developments in Islam,” Islamic Studies 1(4) (1962); Joseph Schacht, An Introduction of Islamic Law (Oxford: The Clarendon Press, 1964), p. 69. 93 Taqlid is the opposite of ikhtilāf which explains the plurality of opinion in Islamic law known as ijtihād. Each case may extract two or more opinions that are equally valid. However, one of these opinions must be viewed as better than the other(s) and hence it is chosen by the jurists to be the authoritative opinion to be applied. Other opinions which are considered weaker are subject to verification or revision. See Hallaq, The Origins and Evolution of Islamic Law, p. 130. 94 In this definition, madhab includes everything that falls within the purview of ijtihād; See Sayf al-Dīn Āmidi, Al-Iḥkām fi Uṣūl al-Aḥkām, vol. 4 (Beirut: al-Maktab al-Islami, 1982), p. 221; Abu Ḥāmid Muḥammad al-Ghazāli, Al-Mustaṣfa min ʿIlm al-ūṣul, vol. 2 (Cairo: Al-Maktabah al-Tijariyyah, 1937), p. 387. 95 Kamali, Principles of Islamic Jurisprudence, p. 469. 96 Muḥammad Abu Zahrah, Uṣul al-Fikh (Cairo: Dār al-Fikr al-ʿArabi, 1958), p. 301. 97 Kamali, Principles of Islamic Jurisprudence, p. 469. 98 Ramadan, Western Muslims and the Future of Islam, p. 43. 99 Ibid.
64 (ayāt al-aḥkām) are open to analysis, commentary and interpretation (ẓanni al-dalala), and this is also the case with aḥādith (pl. ḥadith), most of which leave some room for speculation concerning meanings.100 Correspondingly, Kamali divided the evidence found in the Qurʾan and sunnah into four types: 1) evidence that is decisive both in respect to authenticity and meaning; 2) evidence that is authentic, but speculative in meaning; 3) evidence that is of doubtful authenticity, but definitive in meaning; and 4) evidence that is speculative in respect to both authenticity and meaning.101 Ijtihād does not apply to the first category, however, it does apply to the other three.
It is useful, at this stage, to recall the distinction between the four spheres of which
Sharīʿah constitutes: creed (ʿaqidah), devotional worship (ʿibādāt), social affairs
(muʿāmalāt), and morals and ethics (akhlāq).102 Notwithstanding the inextricable association between law and morality in Sharīʿah, Muslim jurists differentiate between devotional worship (ʿibādāt) and social affairs (muʿāmalāt)⎯or, in the vocabulary of
Islamic law, the rights of God (ḥaq Allah) and the rights of humans (huquq al-
ʿibād)⎯and hold that only the latter may be subject to legal sanctions, as mentioned earlier. ʿIbādāt includes purely religious activities pertaining directly to the spiritual relationship between a human being and God, which do not have, for the most part, any
100 Ibid, p. 44. 101 Kamali, Principles of Islamic Jurisprudence, p. 470. 102 The professor of Islamic studies at Oxford University, Tariq Ramadan, states the Qurʾan contains approximately 228 verses with legal contents (constitutional law, penal and civil laws, international law and economic order...); Tariq Ramadan, Islam, the West and the Challenges of Modernity (Leicester, UK: The Islamic Foundation, 2008), p. 14. The counting of legislative verses depends on the degree of interpretation made at the time of their reading. Thus, jurists have different opinions on this subject. The James McGill professor in Islamic law, Wael Hallaq, explains that, according to Muslim jurists and scholars, the Qurʾan contains some 500 verses with legal content. In comparison to the overall bulk of Qura’nic material, the legal verses appear exiguous, giving the erroneous impression the Qur’an’s concern with legal matters is merely incidental. Hallaq, A History of Islamic Legal Theories, p. 3. Also see Fazlur Rahman, Major Themes of the Qur’ān (Minneapolis, Chicago: Bibliotheca Islamica, 1980), http://islam-and-muslims.com/Major-Themes-of-Quran-Fazlur-Rahman.pdf. A unique position is put forward by the scholar and the theologian Said Nursi who believed that 99% of Shariʿah deals with the individual and refers to the etiquettes and norms of worship and prayer, and that only 1% deals with political and social matters. Yavuz Hakan, Secularism, Sharīʿa, and Political Islam in the Light of Risale Nur (Reno: USA Nevada), p. 3.
65 social consequences. In this situation, the individual is accountable to God for fulfilling them, not to society.103 Muʿāmalāt, on the other hand, encompasses those patterns of behaviour that have social consequences, ones which have a direct impact on society’s ability to maintain public law and order, and their regulation may be legally enforced by the state.104 The distinction between ʿaqidah,ʿibādāt, muʿāmalāt and akhlāq is essential because no ijtihād can occur in the first two spheres of Islam (ʿaqidah andʿibādāt), which are undergirded by the immutable teachings and foundational principles determined by revelation and prophetic tradition.105 For instance, there is no scope for ijtihād concerning the creed, the five pillars of Islam, the six pillars of faith and the forbidden things to eat and drink.106 On the other hand, the confusion between the changing and the immutable principles of the Qurʾan clearly has major consequences for contemporary Islamic thought, and effectively any reform of the reading and understanding of the text, which is valid for ijtihād.107
It must be stressed, however, that Muslim scholars set strict conditions on the practise of ijtihād and determine a framework that one should adopt when applying it in reform.
The legal foundations of ijtihād are founded on the well-known ḥadith concerning
Muʿadh ibn Jabal, who was sent as a judge to Yemen by the Prophet (pbuh).108 When
Muʿadh was about to set out on his mission, Prophet Muḥammad (pbuh) asked:
“According to what will you judge?” He answered: “According to the Book of God.”
103 Louay M. Safi, “The Creative Mission of Muslim Minorities in the West.” 104 Ibid. 105 Ramadan, Radical Reforms, pp. 20-21; Wahbe al-Zuḥayli, Al wajiz Fi Ūṣūl al-Fiqh (Damascus: Dār al-Fikr, 1995), p. 232. 106 In the area of devotional worship ʿIbādāt, Shariʿah has permitted the sick or the traveller, through either the verses of Qurʾan or Sunnah, to not observe the fast and shorten their prayers. These concessions (rukhaṣ) are aimed to preventing hardship. The Prophet (pbuh) is quoted to have said: “God loves to see that His concessions are observed, just as He loves to see His strict laws are obeyed”; See, Kamali, Principles of Islamic Jurisprudence, pp. 352−356. 107 Ramadan, Radical Reforms, pp. 23−24. 108 Mogamad Faaik Gamieldien, Ijtihad in the Time of the Khulafa Al-Rashidun: A Review of Selected Case Studies (unpublished MCL thesis, International Islamic University of Malaysia, 1993).
66 “And if you find nothing?” the Prophet asked. “According to the sunnah of God’s
Prophet.” “And if you find nothing?” “Then, I shall exert myself (ajtahidu) to my utmost to formulate my own judgement,” Muʿadh answered. The Prophet then exclaimed: “Praise be to God who guided His Messenger’s messenger to what pleases
His Messenger.”109 The Prophet’s third question is of meticulous interest because it specifies Muʿadh will be confronted with new situations in Yemen, where he will unable to find guidance in the Qurʾan or sunnah.110 This example has two major implications: firstly, it is not always possible to find direct answers for all issues in the revealed sources of Sharīʿah, since some verses of the Qurʾan refer to general principles and immutable rules. In those cases, the scholar’s own critical intelligence determines practical requirements according to different situations and times.111 The second implication is linked to the geographical, cultural and legal changes in society, which require the scholar, in order to remain faithful to the teachings of Islam, to produce a reflection towards obtaining ijtihād.112
This process of ijtihād constitutes a bridge between the divine injunctions and the specific requirement of different times and places; it is the means by which Islamic scholars can interpret and adapt to new and changing circumstances. While a Muslim has to remain faithful to the essential and immutable principles of Islamic jurisprudence
(uṣul al-fiqh), it is necessary though to take into account the public interest (maṣlaha) of the surrounding society. Consequently, there is a need for a renewal (tajdid) in the classical Islamic tradition: this is the practice of tajdid and ijtihād. Such a process will take place through the higher goals or objectives of Sharīʿah (maqāṣid al-Sharīʿah),
109 Ḥadith reported by Abu Dāwud, Ahmad, al-Tirmidhi et ad-Darami. 110 Ramadan, Radical Reforms, p. 24. 111 Ibid. 112 Ibid, pp. 24−25.
67 which are the purposes that permit innovative approaches to Sharīʿah and contemporary issues for the present and future generations.
2.4 A Contemporary Approach to Ijtihād and Maqāṣid
Writers on the principles of Islamic jurisprudence (uṣul al-fiqh) have used maṣlaha almost interchangeably with maqāṣid. The early pioneers of maqāṣid, such as Abu
Ḥāmid al-Ghazali (d.1111), ʿIzz al-Din ʿAbd al-Salam (d.1262) and al-Shāṭibi (d.1388), have generally concurred with the analysis that almost all of the rules of Islamic law fulfil the purpose of Sharīʿah.113 Contemporary Muslim scholars have a very similar understanding to the classical scholars on the purpose and objectives of Sharīʿah. For example, Muḥammad al-Tahir Ibn ʿAshur (d. 1973) and Muḥammed Allal al-Fasi
(d.1974) define the general objectives of Sharīʿah as the deeper meanings (maʿāni) and inner wisdoms (ḥikam), as well as the hidden meanings (al-asrār) that the lawgiver has considered in the enactment of all of the Sharīʿah ordinances.114 Al-Qaradawi also noted “maqaṣid al-shariah consist of the attraction of benefits (al-maṣāliḥ) to the people and the repelling of harm and corruption (al-maḍār wa al-mafaṣid) from them,”115 pointing out that Sharīʿah has been revealed to bring happiness and prosperity to humanity and there is consensus among the ʿulamāʾ that the laws of Sharīʿah have as their underlying cause the realisation of the public welfare (maṣlaḥa). A similar position is put forward by the scholar Muḥammad al-Zuḥayli, who described maqāṣid as “the ultimate goals, aims, consequences and meanings which the Sharīʿah has upheld and established through its laws, and consistently seeks to realise, materialise and achieve
113 Mohammed Hashim Kamali, Maqāṣid al-Shariah, Ijtihād and Civilisational Renewal (London and Washington: The International Institute of Islamic Thought, 2012), p. 6. 114 Muḥammad al-Tahir Ibn ʿAshur, Maqṣid al-Shariah al-Islamiyyah, ed. Muḥammad al-Tahir al- Messawi (Amman: al-Basha’ir li al-Intāj al-ʿIlmi, 1998), p. 171; Muhammed Allal al-Fasi, Maqaṣid al- Shariat al-Islamiyyah wa Makārimuha (Casablanca: Maktabat al-Waḥdah al-ʿArabiyyah, n.d.), p. 3. 115 Yusuf al-Qaradawi, Fiqh al-Zakat, vol.1 (Beirut: Mu’assasatal-Risālah, 2000), p. 31.
68 them at all times and places.”116 Thus, maqāṣid is mostly about the goals for which
Sharīʿah has been promulgated to realise the common good and interests for human beings (maṣlaḥa).
In recent times, there has been a renewed emphasis on the goals and objectives of
Sharīʿah, with the express purpose of departing from the restraints of literalism in the direction of a more goal-oriented and comprehensive understanding of the text.117 This emphasis is obviously designed to restore the balance between the letter and spirit of the text that once existed in the early phases of the development of uṣūl, but subsequently disturbed and remained in a state of disequilibrium throughout the centuries of taqlid.118
Uṣūl al-fiqh provided an effective mechanism for ijtihād during the early period, but became increasingly weak until both ijtihād and uṣūl al-fiqh came to a standstill. Then, uṣūl al-fiqh changed direction and its resources began to be used in the service of conformity and taqlid.119
However, according to Kamali, this fresh emphasis on maqāṣid is evidently a step in the direction of opening up the outlook and horizon of uṣūl al-fiqh and releasing it from the rigidities of literalism and imitation. It does not necessarily signify a move, as it were, to abandon uṣūl al-fiqh altogether.120 The new trend is also indicative of the desire to rejuvenate ijtihād: a grasp of the doctrines of uṣūl al-fiqh is not only helpful but necessary for the revival of ijtihād to enable Muslim jurists and legislators to contribute to the ongoing search for better solutions to social issues. It will hopefully also indicate that Sharīʿah, as well as providing limitations and laws, possesses significant flexibility
116 Muḥammad al-Zuḥayli, Maqāṣid al-Shariah Asas li- Huquq al-Insān, Kitāb al Ummah, series no. 87 (Doha: Ministry of Awqāf and Islamic Affairs of Qatar, 2003), p. 70. 117 Kamali, Principle of Islamic Jurisprudence, p. 515. 118 Ibid. 119 Ibid. 120 Ibid.
69 and resources for accommodating social change.121 Al-Afghānī (d.1898), ʿAbduh
(d.1905) and Muhammad Rashīd Riḍā (d.1935) called for the revival of ijtihād and a return to the sources of Islam, and therefore helped to raise awareness of the challenge.122
The Egyptian intellectual Muhammad ʿAbduh (d.1905) is considered to have laid the foundations for modern ideas of reform. Strictly speaking, he did not articulate any proposal for a new legal methodology. Rather, his contribution lay in crafting a new vision that was necessary for restricting and revitalising legal ideas. He consistently sought to remain within the traditional sunnī mainstream, and argued for harmony between sound reason and revelation, which he thought could never stand in conflict.123
Since ʿAbduh, a new trend has been opened up by Ibn ʿAshur, the twentieth century author of the landmark work Maqāṣid al-Shariʿa al-Islāmiyyah. He has observed that knowledge of maqāṣid is indispensable to ijtihād in all of its manifestations.124 The majority of Muslim scholars agree with him: knowledge of maqāṣid al-Sharīʿah is instrumental for any scholar who practises ijtihād when interpreting speculative text
(naṣṣ zanni al-dalālah) whose precise meaning is not self-evident and when no textual ruling exists in the first place.125 In both of these situations, the mujtahid needs to verify the maqāṣid al-Sharīʿah as an aid to textual interpretation and ijtihād. Moreover, to ascertain more probable meanings of a text, the mujtahid needs to be knowledgeable of the higher objectives of Sharīʿah.126
121 Ibid, p. xxii. 122 Kamali, Shariʿah Law, p. 267. 123 Hallaq, A History of Islamic Legal Theories, p. 212. 124 Ibn ʿAshur, Maqṣid al-Shariah al-Islamiyyah, p. 5. 125 Khalifa Ababakr al-Hasan, Falsafah Maqāṣid al Tashrik fil-fiqh al-Islāmi (Cairo: Maktabah Wahbah, 2001), p. 38. 126 Ibid.
70 With its emphasis on meaning, the maqāṣid approach provides a powerful tool for interpreting text, because it rejects its literal reading when the rationale contradicts basic
Islamic values. The definitive exposition of this approach can be found in the work of the Andalusian jurist al-Shāṭibi’s Al-Muwafaqāt, which can be summarised briefly as:
• The Sharīʿah rules purport to promote human interests. • The Sharīʿah consists of a hierarchy of rules, whereby the particular rules are subsumed under universal laws. • General rules must be modified to accommodate⎯whenever possible⎯particular rules. • Particular rules that contradict general rules should be rejected or ignored. • The various rules and laws of the Sharīʿah are designed to achieve five general purposes: the protection of religion, life, reason, property, and progeny.127
Thus, the general feature of maqāṣid al-Sharīʿah, which is important for ijtihād, is the attention a mujtahid must pay to the end result and consequences of their ruling, for a fatwah (legal verdict), otherwise ijtihād would be deficient if it fails to contemplate its own consequences.128 This feature sheds light on the Islamic rules of law per se: mujtahids must at all times ensure the higher objectives of Sharīʿah determine the modalities of their possible implementation.129 The following example illustrates the use of ijtihād by Caliph ʿUmar, who applied a moratorium on the Islamic punishment for theft during the famine of Medina.130 Most of the people were stealing out of necessity due to hunger, poverty and drought. While this contradicted a verse from the Qurʾan,
ʿUmar justified his decision by stating the principles of justice and fairness were
127 Abu Isḥāq Ibrahim al-Shāṭibi, Al-Muwafaqāt fi Uṣul al-Shariʿa, ed. Shaykh ʿAbd Allah Diraz (Cairo: al Maktabah al Tijariyyah al-Kubra, n.d). 128 Kamali, Maqāṣid al-Shariah, Ijtihād and Civilisational Renewal, p. 42. 129 Ramadan, Radical Reform, p. 75. 130 Ibid; See also, Mohammad Biltaji, Manhaj ʿUmar Ibn al-Khaṭtāb fī al-Tashrīʿ, 1st ed. (Cairo: Dār al- Salām, 2002), p. 190
71 supreme.131 Literal implementation of the punishment would have run against the higher objectives of Sharīʿah. Another example is ʿUmar’s decision to include horses in the types of wealth covered in the obligatory charity of zakah, despite the Prophet’s previous clear instruction to exclude them.132 ʿUmar’s reasoning was that horses, during his time, became more valuable than camels, which the Prophet included in zakah.
Therefore, the purpose of ʿUmar’s decision was the understanding of zakah in terms of social assistance that is paid by the wealthy for the sake of the poor regardless of the type of wealth that was prescribed in the time of the Prophet.133 Hence, putting the laws in the light of their objectives is the sine qua non condition of faithfulness.134
2.5 Ijtihād and Fatwah: The Duality of Islamic Jurisprudence
Since ijtihād derives its authority from divine revelation and since its propriety is measured by its harmony with the Qurʾan and sunnah, the duty of a mujtahid is to provide guidance to those who do not know the solution for the contemporary challenges, but they must always consult the sources.135 This is the purport of the
Qurʾanic verse, which enjoins those who do not possess knowledge: “…ask of those who possess the Message”.136 “Who possess the message” in this verse refers to the ulamāʾ who have the ability and knowledge to deduce the appropriate answer. The aim of this type of ijtihād is to analyse the text (naṣṣ) to draw from it a ruling and its ʿilla
(the effective cause of this specific ruling): this allows an adequate understanding of the
131 United States Institute of Peace, Ijtihad: Reinterpreting Islamic Principles for the Twenty-first Century (Washington, DC: United States Institute of Peace, 2004), accessed November 2014
72 text and consequent analogical reasoning (qiyās) in light of the historical context.137
According to Tariq Ramadan, there are at least three types of ijtihād: firstly, ijtihād qiyāsi, which works by analogical reasoning and takes into consideration the effective cause (ʿilla) of a ruling drawn from the sources. Secondly, ijtihād ẓanni (speculative), which operates when there is no effective cause; this type of ijtihād is often linked with ijtihād istiṣlāhi (consideration of public interest). Thirdly, ijtihād istiṣlāhi is based on maṣlaḥa and seeks to deduce rulings in light of the general objectives of Sharīʿah.138
These three types of ijtihād come under the category of individual independent reasoning.
Adopting a different approach, Al-ʿAlwānī explains that, due to the difficulty of individual ijtihād, it is necessary to observe the principle of collective or institutional ijtihād embracing diverse disciplines and specialists outside of the current framework of fatwah committees or fiqh councils, despite their continuing importance. Ijtihād should be undertaken within the framework of establishing qualified research institutions featuring dedicated scholars from all fiqhī and uṣūlī schools of law, ḥadith and tafsīr
(exegesis), as well as social scientists, linguists and community leaders. This does not negate the individual’s role in ijtihād; rather it gives it direction.139 Whenever such ijtihād develops, according to Al-ʿAlwānī, the Sharīʿah’s characteristics and the nature of its universal textual proofs will have to be conferred first.140
Accordingly, Al-ʿAlwānī argues that the precise relationship between the Qurʾan and sunnah will become apparent if we consider the Qurʾan as the only originating source of law and the sunnah as the only clarifying and binding source. Such a relationship does
137 Ramadan, Western Muslims and the Future of Islam, p. 45. 138 Ibid. 139 Tahir al-‘Alwānī, Issues in Contemporary Islamic Thought, pp. 132−133. 140 Ibid, p. 133.
73 not allow one source to be separated from the other; in addition, it calls for understanding the nature of bayyinah (evidence).141
Kamali agrees on the need to adopt a collective ijtihād. He explains that ijtihād needs to be combined with the Qurʾanic principle of consultation (shurah), and to make ijtihād a consultative process.142 In this, he shows himself to be the heir of Muhammad Iqbal
(d.1937), who suggested in his Reconstruction of Religious Thought in Islam that the power to carry out ijtihād and ijmāʿ should be vested in a Muslim legislative assembly.
The substance of this proposal has since been echoed by numerous other commentators who have spoken in support of the institutionalisation of both ijmāʿ and ijtihād within the fabric of modern government.143
Thus, if ijtihād is so practised, the next question is: who can be a mujtahid? Al-Shaṭibi in his opus al Muwafaqāt differentiates between the nature of ijtihād and its instruments. According to him, ijtihād is attained when two qualities are present: 1) a deep understanding of the objectives of Sharīʿah (maqāṣid al-Sharīʿah); and 2) a real mastery of the various methods of deduction and extraction (instinbāṭ) based on knowledge and understanding.144
Numerous ʿulamāʾ have proposed various classifications of the qualities required and the conditions needed to be met for a scholar to be considered a mujtahid. I will summarise the efforts of Abu al-Ḥasan al-Baṣri’s (d.728) Muʿtamad fī Uṣul al-Fiqh and ibn al Qayyim al-Jawziyya’s (d.1350) Ilam al-muwaqqiin an rabb al-ʿalamin on this point: the mujtahid must possess specialist knowledge of Arabic, the science of the
141 Ibid. 142 Kamali, Shari’ah Law, p. 164. 143 Ibid. 144 Abu Ishaq Ibrahim al Shaṭibi, al-Muwafaqāt fi Uṣūl al-Aḥkam, vol. 4, ed. Muhyi al-Din Abd al-Hamid (Cairo: Matba’at Ali Subayh, 1970), p. 477.
74 Qurʾan and the ḥadith that enable them to understand the Qurʾan and sunnah correctly.145 Ramadan expands on these requirements with his own list. He sums up the seven points a mujtahid must possess:
1. A knowledge of Arabic, which enables him to understand the Qurʾan and sunnah correctly 2. A knowledge of the sciences of the Qurʾan and ḥadith, which enable him to understand and identify the evidence (adillah) contained in the texts 3. A thorough knowledge of the objectives (maqāṣid) of the Sharīʿa, their classification, and the priorities they imply 4. Knowledge of questions on which there was ijma 5. Knowledge of the principle of the analogical reasoning (qiyas) and its methodology 6. Knowledge of his historical, social, and political context, that is to say the situation of the people living around him 7. Recognition of his own competence, honesty, reliability, and uprightness146
The above seven points cover the most important qualities needed by a mujtahid.
Although some ʿulamāʾ recognise that these characteristics are demanding, they are required for a qualified mujtahid in order to practise ijtihād.147 This is how the majority of scholars justified the declaration of the “closure of the doors of ijtihād”. However,
Muslim scholars like Tariq Ramadan and Khaled Abou El Fadl do not agree that the concept of ijtihād has been abandoned. In fact, Ramadan goes as far as to claim in
Western Muslims and the Future of Islam that “the doors of ijtihād have never been closed; no scholar would have the right to make such a decision in the name of Islam
145 Al Shaṭibi was very demanding in this particular condition: he thought that no one could attain the true level of ijtihād without a deep knowledge of Arabic. Also, the knowledge of the sciences of the Qur’an and ḥadith, which enable one to understand and identify the evidence (adillah) contained in the text and deduce the judgments from them; knowledge of the objectives (maqaṣid) of Shariʿah, their classification and the proprieties they imply; knowledge of questions on which there was ijmāʿ; knowledge of the principle of the analogical reasoning (qiyās) and its methodology; knowledge of the historical, social and political context, that is to say, the situation of the people living around one (aḥwal al nasṣ), the state of their affairs, traditions and customs; and recognition of one’s own competence, honesty, reliability and uprightness. See Ramadan, Western Muslims and the future of Islam, p. 48. 146 Ramadan, Western Muslims and the Future of Islam, p. 47. 147 Ibid, p. 48.
75 because a declaration, such as this is, by its very nature, against Islam.”148 Echoing
Ramadan, Abou El Fadl announces that “not only were the doors of ijtihād never closed, but more fundamentally, there were no doors that could be closed, and no one had the authority to close these proverbial doors.”149 He also claims that the “closure of the doors of ijtihād” is just a myth about Islamic law developed by orientalists since the tenth or eleventh centuries.150
In order to apply a new ijtihād, the Egyptian scholar Jamāl al-Dīn ʿAttiyyah has suggested a revised structure of ijmāʿ and ijtihād. This scheme is among the important themes of uṣūl al fiqh in which he proposes to divide the sources of Sharīʿah into the five main headings of: 1) the Qurʾan and sunnah; 2) regulations of the jurist, which includes ijmāʿ and ijtihād; 3) the existing conditions or status quo of custom (ʿurf) and the presumption of continuity (istiṣḥāh); 4) rationality (ʿaql) in areas where ijtihād may not be necessary (the day-to-day rulings of government departments, for example, that seek to ensure good management of affairs may be based on rationality alone); and 5) original absence of liability (al-barāʾah aṣliyyah), which presumes permissibility from liability as the basic norm of Sharīʿah in respect to acts and transactions that have not been expressly prohibited.151
Kamali is critical of ʿAttiyyah’s scheme because it ignores the fatwah of the companions.152 Similarly, Abū Zahra (d.1974) stresses the role of the companions. In
148 Ibid. 149 Abou El Fadl, Reasoning with God: Reclaiming Shariʿah in the Modern Age, p. 188. 150 Ibid, p. xLv. 151 ʿAttiyyah’s scheme relies totally on conventional uṣūl al-fiqh and proposed in his second headings a revised structure for ijmāʿ and ijtihād. These are undoubtedly among the most important themes of the methodology of uṣūl al-fiqh, and bringing them under the umbrella of the ordinances of ūlū al-amr (persons in charge) offers the advantage of linking this classification directly to the Qurʾan, on the one hand, and taking an affirmative stance on government participation in the conclusion of ijmāʿ and ijtihād on the other. See Jamāl al-Dīn ʿAttiyyah, Al-Naẓariyyah al-ʿĀmmah li al-Sharī ʿah al-Islāmiyyah (Cairo: Maṭbaʿah al-Madinah, 1988), p. 189ff; Kamali, Principles of Islamic Jurisprudence, p. 509. 152 Kamali, Principles of Islamic Jurisprudence, p. 509.
76 his book Uṣūl al-Fiqh, he concludes the four Sunni imams of jurisprudence have all, in principle, upheld and followed the fatāwā (pl. fatwah) of the companions and considers them to be authoritative, although some of their followers have held different views.153
Abū Zahra then remarks that the four leading imams consider the fatwah of companions to be a persuasive source of guidance in that it carries a measure of authority that merits careful consideration, and commands priority over the ijtihād of other mujtahids.154
However, it is mistake to confuse fatwah under contemporary law with the original conception of fatwah practised by classical jurists. Fatwah is literally a response given by a qualified person (muftī) who expounds the ruling of Sharīʿah on a particular issue that is put to him by a person or group.155
Historically, fatwah began as a private activity that was independent of state intervention and control. The ʿulamāʾ who acted as muftīs responded to people’s questions on various issues and gave fatwah as a service to the community. They set their own professional standards usually without government intervention. The muftīs acted as legal advisors and counsels in much the same way as professional lawyers do today. They provided valuable guidance and advice on detailed issues of Islamic law in legal disputes and in court cases for those who were not in a position to consult the law books.156 The ruling that is arrived at through fatwah is often based on an interpretation of the Qurʾan or sunnah and the other sources of Sharīʿah. In the absence of any evidence in these sources, an Islamic scholar (muftī) may formulate judgements,
153 Abū-Zahra, Uṣūl al-fiqh, p. 171. 154 Ibid. 155 Al-Qaradawi. Al-Fatwā Bayn al-Inḍibāṭ wa’l Tasayyib, p. 11. 156 Kamali, Shariʿah Law, p. 174.
77 enlightened by a general knowledge of Sharīʿah and the mores and customs of society.157
According to Kamali, a fatwah that is based on the interpretation and personal opinion of the muftī is normally not binding. This is the main difference between fatwah and a judicial ruling (qaḍāʾ).158 This train of thought was developed further by al-Qaradawi, who considered the difference between ijtihād and fatwah. In the latter, matters may have been regulated by decisive evidence or a mere indication in the Qurʾan and hadith.
Ijtihād, on the other hand, does not proceed on matters that are covered by decisive evidence in these sources.159
Moving from theory to practice in his major work, Speaking in God’s Name, Abou El
Fadl examines a number of fatāwa from the Saudi Arabian Fatwah Authority, noting that “if one speaks about the sunnah or ḥadith in the contemporary age, one is necessarily speaking about a symbolic construct that obtains its meaning and normative power from the juristic culture”.160 Abou El Fadl repeatedly confirms two key points: firstly, the “jurists” in question rely on “factual” and cultural assumptions outside of their field of specialist training and expertise (fiqh and ḥadith), which are not fully disclosed in their fatāwa or explanations therein. Second, the jurists (fuqahāʾ) in question are extremely selective in their disclosure of evidence, which does not fulfil the requirements of juristic investigation and diligence.161 Also, Abou El Fadl engages in a reformulation of the conditions of juristic authority. The classical texts go into detail regarding the skills and grades required to be a muftī. Abou El Fadl categorises the conditions under five categories: honesty, diligence, comprehensiveness, reasonableness
157 Ibid, p. 175. 158 Ibid, p. 174. 159 Al-Qaradawi, Al-Fatwā Bayn al-Inḍibāṭ wa’l Tasayyub, p. 12. 160 El Fadl, Speaking in God’s Name, p. 88. 161 Ibid.
78 and self-restraint.162 If these conditions are not fulfilled, the questioner should be cautious that the person who is giving the fatwah is not competent.163
Kamali laments that a certain dislocation in the roles of fatwah and muftī occurred after the spread of Western-style laws and legal education in Muslim-majority countries in the post-colonial period. Since fatwah is meant to keep Sharīʿah in tandem with social reality, it should be open and flexible.164 Therefore, Kamali proposes to integrate the fatwah procedure into the mainstream procedure for legislation and subject it to ratification by a legislative assembly and parliament, which may choose to set up a standing committee of Sharīʿah experts to report on the proposed fatwah.165
2.6 The Relevance of Ijtihād for Muslims to the Contemporary Social Needs
Perhaps the leading figure in the twentieth century was the Egyptian scholar
Muhammad ʿAbduh, who called for the restoration of the original Qurʾanic norms to the modern era. Discussing ʿAbduh’s vision of ijtihād the Lebanese scholar and professor of contemporary Islam in the American University of Beirut, Oussama Arabi, writes:
The construction of a new Shariʿa that would be receptive to the objective human and social reality, and would not be bound by the shackles of the past, is the means to realize an efficient and uniform Islamic judicial and political structure. Creative legal thinking, or Ijtihad, is ʿAbduh’s cause at the close of the nineteenth century; it is that of independent and objective Muslim thought against the imitation, taqlid, of authoritative tradition. The renaissance of Islamic civilization is construed as a total process of political, legal and scientific renovation of Muslim societies, in which religion and spirituality must become natural allies of modern scientific and critical thinking.166
162 El Fadl, Speaking in God’s Name, pp. 54−56. 163 Ibid. 164 Kamali, Shari’ah Law, p. 177. 165 Ibid. 166 Oussama Arabi, Studies in Modern Islamic Law and Jurisprudence (The Hague: Kluwer Law International, 2001), p. 24.
79 ʿAbduh emphasised the importance of custom (ʿurf) and social conditions in the conduct of ijtihād.167 Also, his licence for human reason to invade the domain of
Sharīʿah in such a radical fashion has not been applied for over 900 years.168 His work is essentially informed by what he perceives to be a harmful discrepancy between, on the one hand, the Qurʾanic ideals of freedom, equality and justice and, on the other hand, the actual socio-political norms operative in Muslim societies that are enforced by legal codes that supposedly rest on Qurʾanic foundations.169
A common theme in modernist discourse is therefore the need to re-establish the vital link between social practice and legal norms that initially informed the law; in other words, to rediscover that the normative basis of Sharīʿah should always lie in the social norms of the time and place of its application.170
Echoing ʿAbduh, Al-Ợaraḍawi remarks that Sharīʿah cannot be applied successfully in modern times without a return to ijtihād.171 At the same time, as Sharīʿah has the theoretical potential to cope with the problems of development, there are several issues that must be resolved before it is possible to provide a viable framework for a just and prosperous society.172 Furthermore, he maintains that to revive juristic reasoning does not mean Muslims must deny their legal heritage, but Muslims must have a broad picture of the knowledge of earlier generations to take special note of the ideas and legal methods of the companions and early generations of Muslims.173 Then they will be in a
167 Kamali, Shariʿah Law, p. 172. 168 Christopher Melchert, The Formation of the Sunni Schools of Law, 9th-10th centuries C.E. (Leiden: Brill Publishers, 1999), p. 13. 169 Yvonne Yazbeck Haddad and Barbara Freyer Stowasser, Islamic Law and the Challenges of Modernity (Oxford: AltaMira Press, 2004), p. 8. 170 Muhammad Khalid Masud, Muslim Jurists Quest for the Normative Basis of Shariʿa (Leiden: International Institute for the Study of Islam in the Modern World, 2001), pp. 4−5. 171 Al-Qaradawi, Madkhal, p. 275. 172 Al-Ợaraḍawi, Islamic Law in the Modern World (Riyadh: King Faisal Centre for Research and Islamic Studies, 2000), p. 142. 173 Ibid.
80 position to know how this knowledge can be applied to problems today and how it can be used to achieve the goals of Sharīʿah. Therefore, they should return to the sources, to the solid evidence of the Qurʾan and sunnah, and finally they should renew their efforts to confront issues and situations that jurists of the past did not have the opportunity to address, and produce suitable rulings on them.174
Kamali concurs with al-Ợaraḍawi on the fact that ijtihād is a method of finding solutions to new issues in the light of the goals and principles of Islam. He also offers a clearer definition for ijtihād with a view to overcoming the challenges and making it an integral part of the contemporary legislative process:
Ijtihād is a creative and comprehensive intellectual effort by qualified individuals and groups to derive the juridical ruling on a given issue from the sources of Sharīʿa in the context of the prevailing circumstances of society.175
This definition incorporates the traditional definition of ijtihād, but it also emphasises two other points: creative thinking and the prevailing conditions of society. However, the gap between theory and practice grew wider because private jurists followed the concept of taqlid (imitation).176
It should be noted that the stagnation of ijtihād for a long period has had extremely pernicious ramifications for Muslim societies. According to Imam Hassan Qazwini, director of the Islamic Center of America, this fact has resulted in chronic intellectual stagnation, as thousands of potential mujtahids and scholars have been prohibited from offering solutions to contemporary emerging problems. Muslim thinkers have become captive to rules that were made long ago, leaving little scope for liberal or innovative
174 Ibid. 175 Kamali, Shariʿah Law, p. 165. 176 Kamali, Principle of Islamic Jurisprudence, p. 503.
81 thought.177 Many of the governments in Muslim-majority countries today are corrupt and thus greatly benefit from the absence of ijtihād. Moreover, they help keep the doors of ijtihād closed to control the religious establishment. Also, the domination of religious establishments by secular governments has been so powerful it has made religious authorities incompetent.178 The first step toward opening the door of ijtihād, according to Qazwini, should be the liberation of religious establishments from the influence of political regimes. Religious authorities should dissociate themselves from political regimes so they can independently issue and interpret religious law authentically.179
Ramadan responds to these fears and problems concerning the exercise of ijtihād by proposing a model of “reform,” which consists of a balanced methodology to the need for a rereading, understanding and implementations of the divine texts in the light of the various contexts in which Muslim communities or societies exist.180 The majority of the modern-day scholars agree on the importance of the rereading effort (tajdid) and the tool of critical interpretation of texts (ijtihād). These two mechanisms are indispensable for Muslims facing contemporary challenges.181
A unique approach to ijtihād was introduced in the 1990s by two prominent Muslim scholars: Ṭāhā Jabir al-ʿAlwani, president of the Fiqh Council of North America, and
Yusuf Al-Qaradawi, founder of the European Council for Fatwah and Research, for the purpose of providing Muslim minorities in the West with Islamic guidance. These two scholars pioneered a new dimension in the regulation of the affairs of Muslim minorities, especially those residing in the West. This new domain of fiqh is called fiqh
177 United States Institute of Peace, Ijtihad. 178 Ibid. 179 Ibid. 180 Ramadan, Radical Reform, p. 13. 181 Ibid, p. 25.
82 al-aqalliyyat or the jurisprudence of Muslim minorities.182 The first books of fiqh al- aqalliyyat were published in 2001.183 The theory of fiqh al-aqalliyat is based on two fundamental premises: the principle of ʿalamiyyat al-islam (Islam as a global religion) and the juristic principle of maqāṣid al-Sharīʿah (ruling according to the intentions of
Islamic law).184 Even though they have different perspectives, al-Qaradawi and Al-
ʿAlwānī’s intentions in creating fiqh al-aqalliyyat was not only to find a system of jurisprudence, but also to give Muslim minorities a tool for increasing their internal social bonds and enhancing their social influence within the general public.
Al-ʿAlwānī views fiqh al-aqalliyat not only as a simple system for answering personal questions in jurisprudence, but also as a framework for social interaction between the majority and minority populations in non-Muslim lands as well as within the Muslim society. He openly calls for the exercise of maṣlahah and for a concrete example of a necessary legal verdict (fatwah) in fiqh al-aqalliyyat.185
In taking up the ideas of al-Ghazali, ibn al-Qayyim and al-Shāṭibi, al-Qaradawi, in The
Jurisprudence of Muslim Minorities, states that everything found in the Qurʾan and sunnah is in harmony with “the good of humankind” in general, and thus, it is within the scope of Islamic teachings to provide facilities for Muslims who are guided by revelation.186 Al-Qaradawi insists that moderation is the correct path that will lead the
Muslim ummah to its ideals of attaining material and spiritual success: “it is divinely ordained moral and humanitarian mission of the Muslim community to pursue all its
182 Auseef Ahmad Parray, The Legal Methodology of “Fiqh al-Aqalliyyat” and its Critics: An Analytical Study, Journal of Muslim Minority Affairs, 32(1) (2012): 88−107. 183 Tahir Al-‘Alwānī, Towards a Fiqh for Minorities: Some Basic Reflections (London and Washington: The International Institute of Islamic Thought, 2003); Yusuf Al-Qaradawi. Fi Fiqh al-Aqalliyat al- Muslimin Wasat al-Mujtamaʿat al-Ukhra (Cairo: New Vision for Translation and Culture, 2008). 184 Al-‘Alwānī. Towards a Fiqh for Minorities. 185 Ibid. 186 Al-Qaradawi. Fi Fiqh al-Aqalliyat; Yusuf Al-Qaradawi, Al-Fatwā Bayn al-Inḍibāṭ wa’l Tasayyub (Cairo: Dar al-Ṣaḥwa, 1988), pp. 66−77.
83 goals through moderation. I also believe that deviation from the path of moderation brings nothing but destruction and loss.”187 Al-Qaradawi supports compassion for members of Muslim minorities in non-Muslim countries because he views such groups, unlike Muslims living in Muslim-majority countries, as being in a condition of disadvantage.188
Although Ramadan acknowledges the ideas in the jurisprudence of Muslim minorities as fundamental and necessary, he laments that there is an encouragement of a victimised mind-set on the behalf of Muslims in this new jurisprudence. Muslims, Ramadan argues, should rethink their presence in the West more comprehensively.189 Even more importantly, he maintains that the methodology of “reform” needs to enable jurists
(fuqahāʾ) and scientists to work together and formulate adequate opinions through the formation of councils of jurisprudence.190 According to Ramadan, the members of these councils should be formed from Sharīʿah experts (men and women) and scholars as consultants and advisers from diverse fields such as medicine, astronomy, economics, social and political sciences, and the law. Even non-Muslim scholars who are sympathetic and objective may be invited to contribute to these councils, which are directed by mujtahids.191 The councils should not only issue rulings, but also provide the evidence and methodologies behind their rulings. They should strive to build consensus as much as possible: “Equal-representation ethical committees must be the places where the union of the two kind of ijtihād (in texts and in wider social contexts), must be thought through in a concrete, realistic, and pragmatic manner, on all levels and
187 Yusuf Al-Qaradawi, “Min al-Ghuluw’ wa ʾl-Inḥilal ila ʾl-wasatiyyah waʾl-ʿItidal,” in, Mustaqbal al- Islam fiʾl Qarn al-Hijri al-Khamis alʿAshar (Amman: Muʾassa al-Bayt, 2004), p. 294. 188 Al-Qaradawi, Fi Fiqh al-Aqalliyyāt., p. 78. 189 Ramadan, Western Muslims and the Future of Islam, p. 53. 190 Ramadan, Radical Reform, p. 158. 191 Ibid.
84 in all the categories of contemporary Islamic ethics”.192 Ramadan’s methodology is presented figuratively in his book Radical Reform: Islamic Ethics and Liberation and is shown in the figure below.
Ijtihād in texts Ijtihad in social and human contexts
(Respecting and taking into account (Respecting and taking into account the immutable and the changing) the immutable and the changing)
Critical reading, interpretations, and Critical reading, interpretations, and strategies in the legal field strategies in the practical field
Common (collaborative, specialized) ijtihād of applied ethics
Common legal and practical studies in various areas of specialization aiming to determine ethical rules, the scope and modalities of their application, and the stages of their implementation
Figure 2: Methodology of Ijtihād
Thus, Ramadan’s idea is to return to the sources of the fundamentals of law and jurisprudence (uṣul al-fiqh) and question the original methodologies. This process of ijtihād, which leads to development, will take time and should guide Muslims to a creative transformational reform. But what issues should be subjected to ijtihād?
The following questions facing Muslims in Australia will be addressed in the following chapters:
192 Ibid, pp.143−144.
85 • How can Muslims integrate and participate in Australian society? To what
extent are Islamic values compatible with modern aspirations? To what extent is
Muslim identity being reshaped by living in modern Western societies?
• What are the specific challenges facing Muslim women living in Western
societies? Are women’s rights given by the principles of Sharīʿah capable of
preserving Muslim identity in a modern society? Are women able to stay
engaged and contribute to the broader Australian society while simultaneously
tailoring their own religious identity?
• How can a democratic concept of people’s authority be reconciled with an
understanding of the socio-political elements of Islamic law? How do Muslims
understand (and practise) democracy? How can Islam and democracy co-exist in
Australia? Should a liberal democracy like Australia adjust its legal code to
accommodate a religious tradition like Islam? Should Muslims follow Shariʿah
law in a non-Muslim country or should they follow the law of the land?
2.7 Conclusion
The primary sources of Sharīʿah play an instrumental role in negotiating the currents of reformist thought and ijtihād, in particular, can become a more engaging prospect if it is anchored in a suitable Sharīʿah jurisprudential framework. Also, the higher objectives of Sharīʿah (maqāṣid al-Sharīʿah) serve to provide this framework. Maqāṣid are the goals and purposes that look to the future and permit innovative approaches to Sharīʿah and contemporary issues. Moreover, Muslim scholars have observed that knowledge of maqāṣid is vital to ijtihād in all of its manifestations. Thus, knowledge of maqāṣid al-
Sharīʿah is instrumental for scholars (mujtahids) who practise ijtihād when they can use it as an aid to textual interpretation.
86 Faced with many challenges, Australian Muslims are aware that society has changed.
Cultural homogeneity is a thing from the past, the question of integration and their own identity has become a complex question.193 This sense of instability, combined with faithfulness to a religion, has given rise to some fears and questions that are perfectly normal to ask: Are Muslims capable of living in secularised societies? Are their values compatible with those of modernity and democracy? Can they explain the shocking behaviour exposed in some form of terrorism, female circumcision, forced marriage and the like?
The most effective ways of responding to all of these questions is firstly to go back to the original text and to know deeply and understand the sources of Islamic law.
Secondly, the Muslim community through its ʿulamāʾ should be fulfilling the fundamental duty of ijtihād, which remains the most important instrument towards an adaptation to the times and different contexts.
The following chapters will attempt to answer the above questions through an understanding of the message of Sharīʿah via the vital instrument of ijtihād.
193 Tariq Ramadan, What I Believe (Oxford: Oxford University Press, 2010), pp. 124−125.
87
3 CONTEXTUALISING THE MUSLIM PRESENCE IN AUSTRALIA
3.1 Introduction
Much scholarly attention in recent years, especially since 11 September 2001, has focused on the issue of Muslim minorities in the West.1 The formulation “Islam in the
West” advocates an encounter between two incompatible and homogenising cultures: one religious and the other secular.2 Islamic religious values, beliefs and practices are viewed as being in conflict with the organisation and rhythms of public life in the West.
The Islamic presence produced by immigration continues to be viewed as “other”, something that is essentially culturally incompatible and opposed to becoming part of national societies in the West.3 A debate about whether Muslims should be allowed to migrate to Australia seemed to emerge among a small number of Australians.4 On the basis of September 11, former National Party Senator John Stone said he has the
“gravest” fears about further Muslim immigration because Islamic culture is incapable
1 Fouad Ajami, The Arab Predicament: Arab Political Thought and Practice since 1967 (Cambridge: Cambridge University Press, 1981); Bernard Lewis and Cleveland E. Dodge, Islam and the West (Oxford: Oxford University Press, 1993); Michael Tompson, Islam and The West (Oxford: Rowman & Littlefield Publishers, 2003); Ron Geaves, Islam and the West (Burlington: Ashgate Publishing Limited, 2004); Alwi Shihab, Examining Islam in the West: Addressing Accusations and Correcting Misconceptions, trans. Dr. Ralph B Brown, Rumtini (Jakarta: Gramedia Pustaka Utama, 2011); Shireen T. Hunter, The Future of Islam and the West: Clash of Civilizations or Peaceful Coexistence? (Westport: British Library Cataloging, 1998); John L. Esposito and Francois Bourgat, Modernizing Islam: Religion in the Public Sphere in the Middle East and Europe (New York: C. Hurst & Co. Publisher, 2003); John L. Esposito, Islam and the West (Oxford: Oxford University Press, 1990); John L. Esposito, The Future of Islam (Oxford: Oxford University Press, 2010); John L. Esposito, The Islamic Threat: Myth or Reality? (New York, Oxford: Oxford University Press, 1999). 2 Michael Humphrey, “An Australian Islam? Religion In The Multicultural City,” Muslim Communities in Australia, ed. Abdullah Saeed & Shahram Akbarzadeh (Sydney: UNSW Press, 2001), p. 33. 3 Humphrey, “An Australian Islam?,” p. 33. 4 The rapid increase in the Muslim population has raised an alarm over Muslim immigration, which can be seen as xenophobic either because Australians are unfamiliar with the Islamic culture or because the immigrants were viewed as a threat to the majority culture and security. Some social analysts have argued that people of different racial backgrounds encounter discrimination because of their different culture, others have proposed the ignorance and fear are generated from various international factors and the media; for more details see: P. Essel, Understanding Everyday Racism (London: Sage Publications, 1991), cited in S. Castles, “The Racisms of Globalisation,” in E. Vasta, and S. Castles, ed., The Teeth are Smiling: The Persistence of Racism in Multicultural Australia (St Leonards, NSW: Allen and Unwin, 1996), pp. 28−9.
89 of assimilating into Australia’s basically Judeo-Christian culture.5 Also, heated debate in the media, including talkback radio about the presence of Muslims in Australia and the threat of global terrorism, have often made it more difficult for Muslim citizens in
Australia to gain acknowledgment and respect for their faith and religious practice.
Some argued it is time to take a hard look at Islam and the potential threat it poses to
Australia, its society and its values.6 In this debate, Muslims are often put on the defensive. Their basic beliefs, values and religious organisations suddenly become the focus of the media and even Australian security services.7 “Islam” and “Muslim” have become problematic labels.
This judgment about Muslims has come from people with an Islamophobic view in politics, in the media and among the general public.8 These people have persisted in their attempts to justify the resentment and prejudice against Muslims in Australia, as in other contemporaries Western societies, with arguments that attribute terrorism, crime and misogyny to all Muslims.9 The rise of Islamophobia depicts Muslims as foreigners, assigns them an ambiguous and vague status, and deems them as not accepted as real
5 John Stone, “We only want those Prepared to be Like Us,” The Australian, November 26, 2001, p. 15. See also Tony Abbott, “No Shame in doing the Right Thing, The Australian, January 7, 2002, p. 11. John Stone’s views were criticised by some readers immediately after the publication of his article in the letter page of The Australian. 6 Abdullah Saeed, Islam in Australia (NSW: Allen & Unwin, 2003), p. iv. See also: Benjamin Isakham, “Orientalism and the Australian News Media: Origins and Questions,” in Islam and the Australian News Media, ed. Halim Rane, Jacqui Ewart and Mohamad Abdalla (Melbourne: Melbourne University Press, 2010), p. 16; John Esposito, Darrel J. Fasching and Todd Lewis, Religion of the West Today (Oxford: Oxford University Press, 2009), p. 219. 7 Young Muslim men have been viewed as constituting a “problem group” by the media, politicians, the security services and criminal justice agencies. They have become the predominant targets of anti- terrorist legislation and counterterrorism surveillance policing in Britain and other countries such as Australia. For more details see, Basia Spalek, “Policing Within Counter-Terrorism,” in Counter- Terrorism: Community-Based Approaches to Preventing Terror Crime, ed. Basia Spalek (New York: Palgrave Macmillan, 2012); Scott Poyting and Mason V., “‘Tolerance, Freedom, Justice and Peace?’: Britain, Australia and Anti-Muslim Racism since 11th September 2001,” Journal of Intercultural Studies 27(4) (2006): 365-92; Andrew Blick, T. Choudhury and S. Weir, The Rules of the Game: Terrorism, Community and Human Rights (York: Joseph Rowntree Foundation, 2006). 8 Alice Aslan, Islamophobia in Australia (Sydney: Agora Press, 2009), p. 1. 9 Ibid.
90 Australians, despite the fact they have been part of Australia for many generations.10
The anthropologist Alice Aslan explains, according to this vague status:
Muslims are neither completely foreigners nor really recognised as Australians, their uncertain status and place in Australian society leaves them vulnerable to discrimination and racism: they are generally marginalised as un-Australian, and also paradoxically blamed for not integrating into Australian society. And when international conflicts break out, their loyalty to Australia is constantly questioned, and they are either described as a fifth column and intimidated, or just tolerated.11
The sociologist Tariq Modood suggests the only way to overcome the challenges of
Islamophobia is through social policy for culturally diverse societies that goes beyond discouraging racism.12 He further argues the positioning of minorities or immigrant cultures has to be respected and publicly supported through multiculturalism policy.13
Moreover, the respect and support of the minorities will lead eventually to acknowledging and negotiating the difference between the diverse cultures and ethnicities. But how can individuals from different ethnicity background live together?
On what common ground can diversity be discussed? And how does the leading view accommodate the views of the minority groups?
The discussion in this chapter aims neither to label Australia as a racist society nor to victimise Australian Muslims, rather to underline that Islamophobia is not just a challenge for Muslims, but for the whole Australian society and to prove the fact that this society can become more ethical and just through the fair treatment of minority groups. To address this argument, it is important to understand the current image and
10 Muzammil Quraishi, Muslims and Crime: A Comparative Study (England: Ashgate, 2005), p. 60. 11 Aslan, Islamophobia in Australia, p. 2. 12 Peter Gottschalk and Gabriel Greenberg, Islamophobia: Making Muslims the Enemy (Lanham: Rowman and Littlefield Publishers, 2008), p. 5. 13 Tariq Modood, “Anti-Essentialism, Multiculturalism and the ‘Recognition’ of Religious Groups,” The Journal of Political Philosophy 6(4) (1998), pp. 378−399.
91 representation of Muslims in Australia, and before pointing out the challenges faced by
Australian Muslims, it is important to analyse the prejudices against Islam and Muslims.
3.2 Islamophobia
The American professor of international affairs and Islamic studies, John Esposito, affirms that Islamophobia has long and deep historical roots and did not suddenly come into being after the events of September 11.14 Islamophobia has been triggered by the influx of Muslims to the West and the late twentieth century acts of terrorism.15
Nowadays, Islamophobia disfigures the image through which Muslims are viewed internationally and nationally: In the Unites States and Europe, domestic security has been offset by the abuse of anti-terrorism legislation, random arrests and imprisonments that compromise Muslims’ civil liberties.16 In Australia, for most Muslims, the unjust and unjustified counterterrorism laws announced by the Abbott Government in August
2014 inflamed the hatred in certain segments of the community and produced a rise in abuse and discrimination against Muslim Australians.17
3.2.1 Islamophobia in Context
The Oxford English Dictionary suggests the term Islamophobia was first used in print in a 1991 American periodical, Insight. Other sources and literature indicates it was first used in France by Etienne Dinet and Silma Ben Ibrahim, when in 1925 they wrote,
“accès de délire islamophobe”.18 It has also been suggested that a Muslim researcher at
14 John L. Esposito, foreword to The Islamophobia Industry: How The Right Manufactures Fear of Muslims, by Nathan Lean (London: Pluto Press, 2012), p. x. 15 Ibid. 16 Ibid, p. xi. 17 Louise Yaxley, “Tony Abbott Announces New Counter-terrorism Measures,” ABC News, August 5, 2014, accessed November 2014,
92 the Policy Studies Institute coined Islamophobia in the late 1980s.19 Then, the Hyde
Park Christian Fellowship recorded this term in 1997 when an independent research and social policy agency in Britain, Runnymede Trust, published a report entitled “
Islamophobia: A Challenge for Us All”.20 According to this report, Islamophobia means, in its most simple terms, “dread and hatred of Islam” that leads “to the fear of
Islam and the dislike of all Muslims.”21 Through the Islamophobic lens, Islam is not seen as a genuine religion, rather it is viewed as an aggressive political ideology that is against democracy and the West. Also, Muslims are seen as “barbaric, irrational, primitive and sexist” people who are inferior to Westerners and have no rights to criticise Western values and practices.22
Accordingly, the report highlights that discrimination against Muslims reinforces an anti-Muslim hostility, and may result in the exclusion of Muslims from mainstream
Western societies where they are minorities. They may also suffer discrimination at work, schools, universities and other institutions. In addition, they may face prejudice against them in the media and everyday life that can manifest as verbal abuse, physical assault and vandalism of property.23
The visual summary of the Islamophobia report is presented in Figure 3, which I have reproduced from the Runnymede Trust Report.
19 Chris Allen, Islamophobia (UK: Ashgate, 2010), p. 6. 20 Runnymede Trust, Islamophobia: A Challenge for Us All: Report of the Runnymede Trust Commission on British Muslims and Islamophobia (London: Runnymede Trust, 1997). 21 Ibid. 22 Ibid. 23 Runnymede Trust, Islamophobia: A Challenge for Us All: Summary (London: Runnymede Trust, n.d.), accessed November 2014,
93
Figure 3: Islamophobia, a visual summary
The Runnymede Trust Report is a policy document, which has the objectives to raise awareness, to influence and assist policy and decision-makers, and to provide a substantial and informed resource for those working in the field of justice.24 Despite the important information and awareness raised by this report, it reduces Islamophobia to a phenomenon that is simplistic and largely superficial, which is defined more by the characteristics of the victims than the motivation and purpose of the perpetrators.25
Since the Runnymede Report Trust’s publication, discussions about Islamophobia have increased, specifically after 11 September 2001 and in light of the murder of Theo Van
Gogh in the Netherlands, the Madrid and London bombings, the debate about the
Prophet Muḥammed cartoons, and debates about Islam and freedom of speech. In 2005, another Council of Europe publication, “Islamophobia and its Consequences on Young
People,” referred to Islamophobia as “the fear of or prejudiced view point towards
Islam, Muslims and matters pertaining to them, whether it takes the shape of daily
24 Allen, Islamophobia, p. 55. 25 Ibid, p. 80.
94 forms of racism and discrimination or more violent forms, Islamophobia is a violation of human rights and a threat to social cohesion.”26
The focus of all the reports and debates was on the definition and application of the term
Islamophobia, whereas the European Monitoring Centre on Racism and Xenophobia explores “the manifestation of Islamophobia broadly based on the definition of racism and discrimination”.27 The objective of the centre’s report is how to avoid stereotypical generalisations, reduce fear and strengthen cohesion in the diverse European societies while defying discrimination and marginalisation on the basis of race, ethnicity and religion.28 Furthermore, this report affirms that discrimination against Muslims can be attributed to Islamophobic attitudes as well as racist and xenophobic aversion.29
Therefore, racism, xenophobia and Islamophobia become hostility against Muslims in the context of a general climate of hostility towards migrants and ethnic minorities.30
Although there are different opinions on the phenomenon of Islamophobia in Europe and the Unites States, the common objective remains to develop, reinforce and evaluate policies aimed at delivering equality and non-discrimination for Muslim communities, particularly in the fields of employment, education and access to services and goods, and thereby to create an enabling environment for the West’s diverse Muslim communities to participate fully in mainstream society.
26 See USA-based NGO Human Rights Watch report on “A History of Backlash Attacks against Arabs and Muslims in America”:
95 3.2.2 Islamophobia in Australia
After the events of 11 September 2001, the situation for Muslims deteriorated in most
Western countries: the civil rights of numerous citizens or residents of the Muslim faith were restricted or infringed upon. Replicating the sentiments in many Western countries, Australian society came to develop a fear of Islam. This is the situation that tends to confirm in the mind of Muslims that they are not at home and there is no willingness to consider them as such.31 By linking Islam with extremist ideologies,
Dutch politician Greet Wilders said in Melbourne on Tuesday, 19 February 2013: “I am here to talk about the Islamisation of Europe, if you think what happened in Europe will not happen in Australia you are totally wrong.” He described Prophet Muḥammad
(PBUH) as “a warlord, terrorist and paedophile” and urged Australians to ban the
Qurʾan and all migration from Muslim countries: “All Muslims should renounce their religion immediately in favour of Christianity or atheism ─ it would be better for them and for everyone else”.32
The “Muslim question” has become a key issue of public debate in Australia because of the controversial cases of Salman Rushdie’s Satanic Verses in Britain, the slaying of the
Dutch filmmaker Theo Van Gogh, the Prophet Muḥammad cartoons in Denmark, the banning of wearing head scarves at state schools in France, the 2005 Cronulla riots in
Sydney, and the former mufti of Australia’s crude comments about immodestly dressed
31 Ramadan, Western Muslims and the Future of Islam, p. 239. See also, Immigration Worldwide: Policies, Practices, and Trends, ed. UMA A. Segal, Doreen Elliott, and Nazneed S. Mayadas (Oxford: Oxford University Press, 2010), p. 162. 32 Barney Zwartz, “Change religion, politician tells Muslims,” Sydney Morning Herald, February 21, 2013, accessed
96 women inviting sexual attacks in October 2006. Also, in 2000, fourteen young
Lebanese-Australian men were prosecuted for forming a rape gang in Sydney and assaulting a number of “white Australian girls”.33 In September 2006, Prime Minister
John Howard communicated precisely the “Muslim question” when he singled out
Muslims in his call for migrants to learn English, embrace Australian values and “fully integrate by treating women as equals”.34
In August 2014, Prime Minister Tony Abbott announced some new counterterrorism laws. One of the major proposals of these anti-terror laws is “making it an offence to travel to a designated area where terrorist organisations are conducting hostile activities unless there is a legitimate purpose.”35 In other words, anyone who travels to any country in the Middle East will be guilty until they prove their innocence. This is a complete reversal of the burden of proof and a scandal of the highest order.36 Since the provocative anti-terrorism laws through which Muslims think they are the major targets, there has been a wave of hate crimes and an increased atmosphere of fear and bullying
33 Fethi Mansouri and Vince Marrotta, Muslims in the West and the Challenge of Belonging (Melbourne: Melbourne University Publishing, 2012). 34 Richard Kerbaj, “PM tells Muslims to learn English,” Australian, September 1, 2006, p. 1. 35 Corey Oakley, “Anti-terror laws attack basic freedoms,” Redflag, Newspaper of Socialist Alternative, August 11, 2014, accessed November 2014
97 against Australian Muslims.37 As a result, Islamophobia has been made an even more dangerous reality.
All these incidents have left impressions as to whether Muslims can be successfully integrated into Australian society. Islamophobia has increased in Western societies due to the linking of all members of the Muslim faith with the small numbers of violent
Islamist movements. Some researches argue that many Australians are ignorant of, or have a partial knowledge of, Islam and low levels of contact with Muslims. Kevin
Dunn, professor in human geography at the University of Western Sydney, states in his report of 2005 that only one-fifth of respondents had a reasonable or better knowledge of Islam, and half knew a little about Islam.38 Thus, research demonstrates that knowledge of Islam, and more especially contact with Muslims, can have positive effects on Western Islamophobia and tolerance.
The problem is also aggravated for Muslims by concerns over the infiltration and dismantling of the Islamic intellectual heritage by Western values and foreign systems of thought.39 However, it has been argued by some, most notably Edward Said, that the denigration of Islamic civilisation associated with Islamophobia is central to the concept of Western civilisation.40 He argued the ousting and marginalising of Islam marks the
37 Heath Aston, “Dozens of anti-Muslim attacks as Islamic leaders warn community fear,” National, The Sydney Morning Herald, October 9, 2014, accessed June 2015
98 debut of “Western” civilisation and, thus, explains the depth and longevity of Western
Islamophobia:
Islam was a provocation in many ways. It lay uneasily close to Christianity, geographically and culturally. It drew on the Judeo-Hellenic traditions. It borrowed creatively from Christianity─it could boast unrivalled military and political successes. Nor was this all. The Islamic lands sit adjacent to and even on top of the biblical lands. Moreover, the heart of the Islamic domain has always been the region closest to Europe... Arabic and Hebrew are Semitic languages, and together they dispose and redispose of material that is urgently important to Christianity. From the end of the 7th century to the 16th century, Islam in either its Arab, Ottoman, North African or Spanish form dominated or effectively threatened European Christianity. That Islam outstripped and outshone Rome cannot have been absent from the mind of any European.41
Moreover, links could also perhaps be drawn between media headlines throughout the
English-speaking world and attacks on Muslim citizens in Australia. As Nahid Kabir, professor at Edith Cowan University in Perth, concludes in her study of the representation of Islam and Muslims in the Australian media from 2001 to 2005:
Contemporary media representation of Islam and Muslims focuses on Islamic militants, effectively demonising all Muslim people, and does not counter this with balanced coverage. There does not seem to be any likelihood that this approach will be reassessed and tempered in the future either: the media’s commercial motivation appears to favour irresponsible journalism that does not acknowledge the negative impact that such a focus has on moderate Muslims, but rather exploits anti-Muslim feelings with a barrage of reports and references that keep Islam as the focus of topical discourse.42
Muslims in Australia have not been resistant to prejudice and exclusion from a wider
Australian society at this point. The sweeping and antagonistic generalisations about
Islam that are made by Orientalist scholars, Western media and Western policymakers
41 Edward W. Said, Orientalism (UK: Routledge & Kegan Paul Ltd, 1978), p. 74. 42 Nahid Kabir, “Representation of Islam and Muslims in Australia Media, 2001─2005,” Journal of Muslim Minority Affairs 26(3) (2006): 326.
99 are tackled by Edward Said who explains the dangerous consequences for inciting hatred and distrust towards Muslims:
The deliberately created associations between Islam and fundamentalism ensure that the average reader comes to see Islam and fundamentalism as essentially the same thing. Given the tendency to reduce Islam to handful of rules, stereotypes, and generalisations about the faith, its founder, and all of its people, then the reinforcement of every negative fact associated with Islam ─ its violence, primitiveness, atavism, threatening qualities ─ is perpetuated.43
Furthermore, Said challenges the “clash of civilizations” theory exemplified by Western scholar Samuel P Huntington, in which Islam is portrayed as a “single, coherent entity” that is forever inevitably on a path towards violent conflict with “the West”. Huntington argues in his theory that, in the new era, the conflicts in global politics stem from cultural differences between major civilisations. He classifies nations into several large civilisations, including Western, Islamic, Latin American, Orthodox, Sinic (Chinese),
Hindu, Japanese and African, ignoring the fact that each nation in these civilisations has diverse cultural, socio-economic and political characteristics.44 He brands Islam as the most dangerous civilisation:
So long as Islam remains Islam (which it will) and the West remains the West (which is more dubious), this fundamental conflict between two great civilization and ways of life will continue to define their relations to the future even as it has defined them for the past fourteen centuries.45
Huntington’s words seem to be echoed in the commentaries provided on the Sydney protest in September 2012, sparked by the film Innocence of Muslims, which was produced in the United States and portrays Prophet Muḥammad (PBUH) as madman,
43 Edward W Said, Covering Islam: How the Media and the Experts Determine how we see the Rest of the World (London: Vintage Books, 1997). 44 Edward W Said, “The Clash of Ignorance,” Nation, October 4, 2001, accessed November 2014,
100 fraud and womaniser: “It should serve as a wake-up call to the naive and just plain foolish who are in denial that a significant problem is emerging in Australia” said
Australian Senator Bernardi.46 At the same time, the violence in the protest and children holding signs that encourage violence provide an added dimension to Huntington’s
“clash of civilisations”.
This climate of hate and cultural exclusion has provided a fertile soil for Islamophobia to flourish, and Muslims who are regarded as outsiders have become the targets of hostility and blame that they do not accept Australian values and reject integration into
Australian society. All these negative attitudes toward Australian Muslims need to be viewed in the light of interconnected factors, including media representations, social policies as well as the influence of Orientalists on the perception of Islam. One of the important problems originating from the media and public discourses that has been generated since September 11 is the crude over-generalisation of Muslims and Arabs who come from diverse linguistic and cultural background.47
3.3 History of Muslims in Australia
Muslims have been resident in Australia since the 1860s and the arrival of Afghan cameleers. A Muslim settlement in Australia only began after World War II as a mass of
46 BareNakedIslam, “Australian MP Suggests Removing the Child Jihadists-in-training from their Muslim Families,” September 17, 2012, accessed February 23, 2013,
101 people left behind conditions of economic or political hardship in search of a better life.48
The long distance between their home-countries and Australia encouraged many of them to take Australia as a promised second home with a fresh start. Despite the fear of
Islam, Islamic people have lived peacefully in Australia, with the Muslim population doubling to its current 2.21 per cent.49 Australian-born Muslims presently constitute 36 per cent of the Muslim population; they have come mostly from countries in the Pacific and South-east Asia. Others came between 1970 and 1990 from Lebanon and Turkey.
More recent migrants have come from countries on the Indian subcontinent: Iran, Iraq,
Bosnia and Afghanistan.50 Altogether, Australian Muslim migrants come from more than 70 different countries; they speak languages including English, Arabic, Turkish,
Persian, Bosnian, Chinese, Vietnamese, Serbian, Tamil, Italian, French, German, Greek,
Croatian, Thai, Spanish, Russian, Maltese and Hungarian. Thus, the Muslim population in Australia is ethnically diverse.51 With this comes diversity in religious understanding and practice. Most Muslim migrants belong to the Sunni tradition that encompasses the four schools of jurisprudence (madhāhib). Shiʿi tradition has three branches: the
Twelver, Ismaʿili and Zaidi.52
48 Abdullah Saeed and Shahram Akbarzadeh, Searching for Identity: Muslims in Australia (Sydney: UNSW Press, 2001), p. 1. 49 Australian Bureau of Statistics 2011, Religious affiliation and non-belief, 2006 and 2011, Census Community Profiles, Australia and Sydney. 50 Gary D. Bouma, “The Settlement of Islam in Australia,” Social Compass 44(1) (1997): 71−82; C. Joppke, “Are “Non Discriminatory” Immigration Policies Reversible? Evidence from the United States and Australia,” Comparative Political Studies 38(1) (2005): 3−25; S. Poynting and V. Mason, “The Resistible Rise of Islamophobia: Anti–Muslim racism in the UK and Australia before 11 September 2000,” Journal of Sociology, 43(1) (2007): 61−86. 51 Kevin Dunn, N. Klocker and T. Salabey, “Contemporary racism and Islamophobia in Australia,” Ethnicities 7(4) (2007): 564−589. 52 Nadirsyah Hosen and Richard Mohr, Law and Religion in Public life: The Contemporary Debate (New York: Routledge, 2011), p. 223. According to Pew Forum on Religion & Public Life of 2009, less than 10% of the Muslim population is Shiʿa; for more details, see
102 The way Muslim migrants have related to their new home is a reflection of their diversity. The vast majority of Muslims live in Sydney and Melbourne.53 Some have found it easier to adapt to a new life in Australia than others; practical co-operation between Muslim migrants is somewhat controlled by their social and ethnic diversity.54
The assumptions about the social and ethnic background of Muslims have often led to a neglect of their diverse social and ethnic heritage, which has reinforced the idea that there is a single Muslim community with uniform requirements and objectives.55
Furthermore, according to Michael Humphrey, professor of the University of
Queensland, the most obvious indication of the ethnic diversity of Australian Muslims, or pluralisation of Muslims in Australia, is manifested by the retention of ethnic designation in their titles, such as the Lebanese Muslim Association of Sydney or the
Bangladesh Islamic Centre Incorporated in Sydney.56 Thus, Australian Muslims share an experience of immigration and an expression of a representational identity and ethnic entitlement.57
It should be noted here that Muslim immigrants from different ethnic backgrounds sought to build a degree of unity among members of the Muslim community: leading
Muslims such as Fehmi Al Imam, Abdul Khaliq Kazi, Ibrahim Dellal and many others established the Australian Federation of Islamic Societies in 1964. At the same level, a two-man delegation from Saudi Arabia, consisting of the adviser to King Faisal Ali
Kettani and Abdullah al-Zayed, arrived in 1974 to investigate the needs of the local
Muslim community. A new approach to national organisation was encouraged by
53 Saeed, Islam in Australia, pp. 1−3. 54 Ibid, p. 2. 55 Ibid. 56 Humphrey, “An Australian Islam?,” p. 40. See also, Nahid Kabir, Muslims in Australia: Immigration, Race Relations, and Cultural History (New York: Routledge, 2010), pp. 151−152. 57 Ibid, p. 40.
103 Kettani to overcome the ethnic divisions that were causing grave concern among the religious leadership, and to address the desire to amalgamate the Muslims of all states under one umbrella. The majority of the Muslim community accepted Kettani’s four recommendations, but still anticipate full implementation. They were:
1 The gradual elimination of Islamic societies based on ethnic, national language, racial or sectarian grounds. 2 The establishment of Islamic societies on a purely geographical basis in each state or territory. 3 The formation of an Islamic council in each state or territory to represent the entire Muslim population of that state or territory 4 The association of those state or territory councils into a federation at national level.58
Unfortunately, only the last two recommendations have been brought into effect. Ethnic pride still separates the community despite the existence of second and third generations of Australian-born Muslims.59
The above approach subsequently opened the way to the formation of the Australian
Federation of Islamic Councils (AFIC) in 1976 to celebrate its ethnic diversity as part of its organisational distinctiveness. Borrowing directly from the Australian’s axiom on multiculturalism, AFIC describes Islam in Australia as a “unity in diversity” while maintaining “diversity within the unity of Islam”.60
58 Abdallah Mograby, “Muslim Migration and Settlement: The Australian experience,” in Islam in Australia, (Sydney: Middle East Research and Information Section, New South Wales Anti- Discrimination Board, 1985), p. 27. 59 Bilal Cleland, “The History of Muslims in Australia,” Muslim Communities in Australia, ed. Abdullah Saeed and Shahram Akbarzadeh (Sydney: UNSW Press, 2001), p. 27. 60 Mary Lucille Jones, ed., An Australian Pilgrimage: Muslims in Australia from the Seventeenth Century to the Present (Melbourne: Victoria Press, 1993), p. 101. See also, Humphrey, An Australian Islam?, p. 40. AFIC is the national umbrella organisation for Australian Muslim organisations. AFIC has a three-tier system with local societies at the grassroots level spread throughout the continent. These have formed, at the second level, the ten state Islamic councils, which co-ordinate the activities of all the local Islamic societies of a state and have formed the national organisation, AFIC Inc. The unity of the 250,000 Muslims of Australia under the AFIC system is an extraordinary achievement considering the diversity and multi-ethnic nature of this community that has emigrated to Australia from the world.
104 In Australia, the general view has increasingly put the Muslim presence as a challenge to the liberal secular state and condemns the liberal multicultural state.61 The concept of multiculturalism in Australia has been able to strike the right balance between emphasising an attachment to Australia, the nation with all its universal values on one hand, and the capacity to retain elements of heritage culture that does not transgress domestic laws on the other.62 However, it may be important to note that multiculturalism is blamed for encouraging cultural doctrine and social segregation, and for propagating confusion about appropriate tolerable boundaries.63 It is hard to believe that less than a decade ago multiculturalism looked to be secure and to have won the day despite the calls for its abolition and demise heard every week: in early 2007, the
Howard Government erased the term from the federal government’s lexicon and the word “multicultural” was dropped from the portfolio, which was renamed the
Department of Immigration and Citizenship in January 2007. The Rudd Government retained the purge at a ministerial level. The Gillard Government deleted even this remnant of “multicultural affairs”.64 This change echoes a gradual decline in enthusiasm for “multiculturalism” over the years and the simultaneous rise in emphasis on an inherent commitment to “citizenship” and its close association with a set of Australian values.
Accordingly, Australia has shifted from multiculturalism to social inclusion, which entered the Australian lexicon and acquired an important place in policy agenda since
61 Janet Albrechtsen, “With Confident Traditional Values comes Strength,’ The Australian, June 21, 2006; Melanie Philips, Londonistan (New York: Encounter Books, 2006). 62 Abdullah Saeed and Akbarzadeh Shahram, “Searching for Identity: Muslims in Australia,” in Muslim Communities in Australia (Sydney: UNSW, 2001). 63 Samina Yasmeen, Muslims in Australia: The Dynamics of Exclusion and Inclusion (Melbourne: Melbourne University Press, 2010), p. 30. 64 Raimond Gaita, Essays on Muslims and Multiculturalism (Melbourne: National Library of Australia, 2011), p. 21.
105 the election of the Rudd Government in 2007.65 The vision embodied by the Social
Inclusion Board in 2008 demonstrated both perceptual and objective elements of citizenship with references to ensuring all Australian citizens “feel valued” and “have the opportunity to participate fully in the life of our society”.66 Although a core aspect of multiculturalism and social inclusion is that they are primarily driven by economic needs and concerns, multiculturalism encompasses social inclusion and civil peace, identity and recognition, equality and justice, autonomy and liberty, and economic and public goods.67
The introduction of multiculturalism 25 years ago was to provide opportunities for the endorsement and recognition of the ethnic and religious diversity of the population.68
The activation of the multiculturalism policy coincides with the period of Muslim settlement in Australia. This policy promoted a greater acceptance of the ethnic and religious diversity of Australia’s population and provided an avenue to recognise and validate migrant identities.69 Gary Bouma argues that the experience of multiculturalism in Australia has provided Australian Muslims with a design for multicultural Muslim identity.70 This raises one pertinent question: Are Muslims in Australia expected to live closer to the ideal of Muslim unity (ummah) and what challenges do they face?
65 Samina Yasmeen, “Muslim in Australia: Promoting Social Inclusion,” in Muslims in Australia: The Dynamics of Exclusion and Inclusion (Melbourne: Melbourne University Press, 2010), p. 300. 66 For more details, see Australian Social Inclusion Board, “Social Inclusion,” Commonwealth of Australia, accessed March 2013
106 3.4 Challenges faced by Muslims in Australia
Although Muslims have lived and worked in Australia for over two centuries, it was only after 1945 that major settlement in Australia began.71 Australian Muslims have had to put up with challenges related to migrant settlement in general, but also specific adaptations to problems such as how their ethnicities and faith were perceived in a predominantly Western milieu. Many current polarised debates around the globe, including in Australia, give the impression the current tension surrounding Muslim migrants is essentially linked to the perceived incompatibility of Islamic values with the values of the liberal secular democratic society like Australia. To provide Australian
Muslims with an appropriate framework and a set of specific and adequate rulings fitting their new situation, in this research, it is important first to outline the challenges faced by Muslims in Australia under two groups of challenges: general challenges related to the public sphere and specific challenges related to the private sphere.
3.4.1 General Challenges
Muslims have faced considerable obstacles in their attempts to fully assimilate into
Australian society. These obstacles have made the integration of Muslims more challenging in a political climate dominated by security, media and terrorism concerns.
In Australia, scholarship on Islam and Muslims arose primarily from an investigation into integration of recent waves of immigrants into Australian society. However,
Muslim immigrants are judged as having failed the national “integration” test. In
September 2006, the Australian Prime Minister, John Howard, stated: “There’s a small section of the Islamic population which is unwilling to integrate and I have said
71 Saeed, Islam in Australia, p. 3.
107 generally all migrants...have to integrate.”72 Integration here is used as a measure of migrant “performance” in becoming Australians. But what is the measure of integration being applied to Muslims’ participation in Western societies and especially in
Australia?
According to the European Islamic scholar Tariq Ramadan and the Turkish scholar
Fethullah Gülen, to understand the concept of integration we have to differentiate between culture and the principles of Islamic teachings. Gülen’s discourse outlines the moral values to the fulfilment of Muslim’s morality through the formation of ethical principles, thus the main aim is to develop the inner life of integration of all Muslims in the society they live.73 Ramadan states that:
The principle of integration has taught us to integrate into our identity and our culture everything humankind produces that is not in contradiction with a prohibition: we can find mountain of works that meet this criterion in the various literatures. It is impossible to be a European or American Muslim without integrating at least part of the world of that culture’s imagination...74
Ramadan stresses that Muslims who are living in the West are extremely diverse.
Muslims in Australia are ethnically different and heterogeneous in language, race, skin colour and culture. The only key element they have in common is Islam. Nevertheless, most Muslims feel this strong bond with the broader Islamic community (ummah) and have a constant desire for greater Islamic social unity.75 Consequently, with regard to
72 AAP, “Howard: Muslims must integrate,” SBS news, September 1, 2006, assessed June 2015,
108 belief, they have in common the same pillars of faith (ʿaqidah) and practice (ʿibādāt).76
Thus, Islam is one and unites all traditions (Sunni and Shiʿi) on the basis of Sharīʿah, which sets the common principles and framework.77 Ramadan, nevertheless, admits there are two levels of diversity: firstly, there is a diversity of reading the texts and interpretations by trends and legal schools; and secondly, the diversity of culture.78 This challenge of diversity requires practical solutions and compels citizens, intellectuals and religious representatives to develop a balanced critical mind, always open to evolution, analysis, empathy and of course self-criticism.79 For instance, Muslims in Africa or Asia have largely maintained their habits and traditions while following the principles of
Islam.80 Ramadan stresses:
The point is not to create a new Islam but to reconnect Islam with its original dynamism, creativity, and confidence, which enabled the faithful to observe and integrate positively all that was good and positive in the cultures they encountered while remaining critical and selective when those cultures could result in insularity, in questionable behaviour and usage, or in systematic discrimination. All cultures, whether Arab, Asian, or Western, require a critical and self-critical mind apt to assess habits in light of principles because habits often erode or blur principles. One should therefore be both open and critical: always remain curious and seek what is beautiful and good, and always remain cautiously alert in assessing what is negative and unfair.81
Accordingly, to integrate in a secular democratic society like Australia while following the values of Islam, it is necessary for Muslims to develop a framework that allows for a conceptual linking between the processes of Australian Muslims’ identity constructions and their social integration toward the broader society. This framework is a twofold work of deconstruction of the bad habits/culture and reconstruction of the positive
76 Ramadan, What I Believe, p. 41. 77 Ibid. 78 Ibid. 79 Ibid, p. 13. 80 Ibid. 81 Ibid, p. 43.
109 elements of Western culture while remaining faithful to Islam’s principles. The socio- religious identity of Australian Muslims is based both upon religious identity and the broader socio-cultural society. Several studies confirm this assertion.82 For example,
Nadia Hashmi, who investigated the identity dynamics of second-generation Muslim youth at universities living in Europe, affirms “we cannot talk about identity without referring to the society in which the individual live and to which he/she relates.”83
In January 2013, the Grand Mufti of Australia, Ibrahim Abu Moḥammed, in an interview with Egyptian television about how Australian Muslims can maintain their
Muslim identity, stated,
Muslims in Australia should learn about their religion in the first place from authentic sources and be faithful to Islamic teachings, then seek knowledge and do their best to excel in their work; the most important thing is to act morally with both Muslims and non Muslims, because morals and ethics (akhlāq) are a universal language.84
Following on with the above idea, the Qurʾan asserts:
O ye who believe! stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be [against] rich or poor: for Allah can best protect both. Follow not the lusts [of your hearts], lest ye swerve, and if ye distort [justice] or decline to do justice, verily Allah is well-acquainted with all that ye do.85
82 Nadia Hashmi, From Ethnicity to Religion: The Shifting Identities of Young Muslims in Britain and France (Florence: European University Institute, 2003); Jocelyne Cesari, When Islam and Democracy Meet: Muslims in Europe and the United States (New York: Palgrave Macmillan, 2006), pp. 183−184; Hasan Kaplan, Relationship Between Religion and Identity Development: A Study of the Second Generation American Muslim Adolescents (Syracuse, New York: Syracuse University, 2005), p. 111; Reem Meshal, “Banners of Faith and Identities in Construct: The Hijab in Canada,” in The Muslim Veil in North America: Issues and Debates, ed. Sajida Alvi, Homa Hoodfar and Sheila McDonough (Toronto: Women’s Press, 2003), pp. 72−155. 83 Hashmi, From Ethnicity to Religion, pp. 22−23. 84 “The interview of Mona Khalil with the Grand Mufti of Australia Dr. Ibrahim Abou Moḥammed Fi al- Din ll ḥayat,” YouTube video, 35:15, posted by “Tarek emam,” January 10, 2013, accessed March 2, 2013,
110 So, to believe in God and bear witness to His message before the whole of humankind means holding the fundamental values He has revealed, such as honesty, faithfulness, fairness and justice. In reflecting on the demand of justice, the juristic argument about human diversity and co-operation is especially important as the Qurʾan states God created people differently and set them into nations and tribes so they would come to know one another.86 Muslim scholars explain the expression “come to know one another” indicates the need for social co-operation and mutual assistance to achieve justice. Accordingly, the perception of Islam today raises vital questions in terms of how Muslims understand and practice their faith. Thus, the challenge for Muslims is to re-examine their conception of Islam in the context of contemporary societies; to develop an agreeable methodology for interpretation; and to recapture the essence of
Islamic teachings as a faith principally concerned with fulfilling the will of God through social justice, human dignity and the overall well-being of humanity.87
So, the question of identity is a vital one for Muslims living in Australia. If the message in which they believe is universal, they must remain faithful so they can preserve their
Muslim identities in the broader society.88
Juxtapositions of Islam with Australia’s values, such as Islam with modernity, are questions relevant to a country with an expanding Muslim minority.89 Muslim views on modernity are grouped under the rubric of these categories: modernist or progressive
Muslims see no incompatibility in incorporating modernity with an Islamic flavour, while traditionalist Muslims view modernity as undesirable.90 This thought maintains
86 Qur’an 48:13. 87 Yasmeen, Muslims in Australia, p. 5. 88 Ramadan, Western Muslims and the Future of Islam, p. 77. 89 Gabrielle Marranci, Muslim Societies and the Challenge of Secularization: An Interdisciplinary Approach (Singapore: Springer, 2010), p. 228. 90 Ibid.
111 the integrity and relevance of Islam based on the Qurʾan and the primary sources, while allowing Muslims to respond constructively to the challenges of modernity and democracy.
Furthermore, the current debate in the West about Islam and democracy, and the ability of Western democracies to incorporate significant Muslim minority communities, is a major challenge for Muslims in Australia. This raises an important question: How can a need for group-differentiated rights be justified in a liberal democratic setting? It is in this context that the work of Will Kymlicka, professor of philosophy at Queen’s
University, Ontario, becomes very relevant. He identifies three forms of group rights and I will explore one of them for the purpose of this discussion, which he calls
“polyethnic rights”.91 These rights go beyond simply protecting minority groups from discrimination, to integrating group-specific measures that are “intended to help ethnic group and religious minorities express cultural particularity”, such as the demands by some groups for the public funding of their culture practices, and exemption from laws and regulations that disadvantage them.92 For example: Sikh men not wearing motorcycle helmets or different animal-slaughtering legislation for Jews and Muslims.93
It should be noted here that, according to Kymlicka, such rights are intended to promote integration into the larger society, not self-government by different groups.
The question of whether Islam can give rise to human rights and democracy is a deep concern for policymakers, and it lies behind questions currently raised about Islam and
“Australian values”.94 Is Islam compatible with modernity? A related question is also
91 Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), p. 127.The other forms of group-differentiated rights are self-government rights and special representation rights. 92 Ibid, p. 31. 93 Ibid, p. 97. 94 Sayed Khatab and Gary Bouma, Democracy in Islam (New York: Routledge, 2007).
112 asked: Is Islam compatible with democracy? I will discuss that in the forthcoming chapters.
3.4.2 Specific Challenges
The process of migration influences the sense of belonging and attachment experienced by Muslims in different places. Furthermore, Muslim identities also interrelate with other identifications, based on, for example, economic development, religious conditions, political circumstances and cultural changes, which highlight a number of significant questions.
These challenges relate to the private sphere of their lives, such as dietary rules, religious education, the building of mosques, the issue of veiling, gender relations within the family especially polygamy, other traditional practices such as honour killing and bank interest (riba). Also, issues related to religious practice, including daily prayers, especially in workplaces, the problem of exclusive cemeteries for Muslims and animal sacrifice during the celebration of eid-al-adha at the end of the pilgrimage (ḥajj).
These issues may be grouped into three categories: culture, family law and women.95
The distinction of Islamic practices points to a mechanism that has withstood the test of time, for example, the Islamisation of culture. This process entailed the replacement of pre-Islamic customs with Islamic practices or their reformation in line with Islamic beliefs.96 It should be noted here that, before this process takes place, one should differentiate between good culture and bad culture on the basis of Islamic teachings, as I mentioned earlier. By examining the sacred texts, scholars can discern and discontinue bad cultural practices within their families and the wider communities.
95 Claude Salhani, Islam without a Veil: Kazakhstan’s Path of Moderation (Washington DC: Potomac Books, 2009), p. 249. 96 Saeed and Akbarzadeh, Searching for Identity, p. 2.
113 Consistent with this idea, Islam is not a culture; the essence of Islam is religious. This principle provides the particular quality that makes it possible to distinguish between
Islamic “religion” and Islamic “civilisation”.97
In the twenty-first century, Muslim minority communities have become a global and permanent phenomenon. If some religious leaders continue to counsel emigration from non-Muslim territories back to Muslim lands, many others have redefined the conditions under which Muslims can live permanently as loyal citizens in their new homelands while preserving their faith and identity.98 However, the main conflict of laws for Muslim immigrants has occurred in relation to family law matters of marriage and divorce; this is largely because in their countries of origin the jurisdiction of
Sharīʿah was restricted to matters of family law⎯a legacy “of European colonisation and National constitution making”.99
In most European countries, including Belgium, France, Germany, the Netherlands and the United Kingdom, it is simply a legal fact that religious marriage ceremonies, for example, are not officially recognised, unless they are registered officially. Australian law in this regard “is much more liberal than the law of many other countries, including the United Kingdom, where a civil ceremony is mandatory”. In Australia, “the marriage
Act requires notice, proof of age and capacity to marry, but imposes no stringent requirements as to the form of the ceremony. Any form of ceremony recognised by the religious body to which the celebrant belongs is sufficient.”100 Due to the various levels
97 Ibid. 98 Ibid. 99 Michael Humphrey, “Islam, Multiculturalism and Transnationalism: from the Lebanese Diaspora (London: Centre for Lebanese Studies with I. B. Tauris, 1998), p. 4. 100 Jamila Hussain, “Family Law and Muslim communities,” in Muslim Communities in Australia, ed. Abdullah Saeed and Shahram Akbarzadeh (Sydney: The University of New South Wales Press, 2001), p. 167.
114 of identity and diverse social and cultural situations, Western Muslims find themselves in an exclusive position.
Ann Black, associate professor of law in the University of Queensland, used a comparative method to appreciate and evaluate Islamic law. In December 2012, at the
Shariʿah Law Symposium, which was sponsored by the National Centre of Excellence for Islamic Studies and the Council of Imams of Queensland101, Black stated in an article, titled “Can Islamic family law be reconciled in non-Muslim countries?
Challenges and Solutions”, that Australia formally remains a “one for all” nation, at the private and personal level there is freedom to voluntarily comply with many aspects of
Islamic family law and many Australian Muslims choose to do so either exclusively or in conjunction with Australian law. However, while this may have some advantages, it also gives rise to some challenges both for Muslims trying to comply with two legal regimes and also for Australian judges tasked with resolving family disputes brought to court by Muslims married under Islamic marriage law, or brought by spouses one of whom is Muslim and the other is not.102 Accordingly, for Muslim minorities, Islamic family law is a vehicle by which a shared Muslim identity can be maintained within the larger entity of the secular nation state, and it also allows for interconnectedness with the wider community (ummah).
Correspondingly, Jamila Hussain of the University Technology of Sydney notes there are not as many conflicting differences between Islamic and Australian family law as many people would assume.103 She said the Australian system has become more like the
101
115 Islamic system in the reconciliation process between couples “to reach agreement on solutions that appear to work best for them”.104 Also, Australian family law now recognises the importance of the grandparents in the lives of children, as has always been the case in Islamic family law, and gives them the right to be consulted in court proceedings.105 She further posits that some changes should be considered, on one hand, regarding the matters of divorce in Australian family law and, on the other hand, regarding the responsibilities of religious scholars and imams.106
Black and Hussain are both critical of the authority of Muslim religious leaders for not establishing a national Islamic family law council or committee, and they should revisit some of the older interpretations of Islamic law, particularly those that discriminate against women, “to take account of modern circumstances and the fact of living as a minority in a non-Muslim country.”107
The question that mostly concerns Australian Muslims is to what degree is Sharīʿah compatible with Australian law? And whether it is possible still to follow Sharīʿah and live peacefully as an Australian citizen at the same time. This will be illustrated and discussed in chapter 7.
The most significant challenge, particularly in issues concerning Muslims in Australia is the problem of Muslim women who feel persecuted and judged by society because they represent a culture that is considered backward, inferior and misogynous, especially those Muslim women who wear the headscarves (ḥijab) who are at the front of a
104 Ibid. 105 These changes were brought about by the Family Law Amendment (Shared Responsibility) Act 2006. 106 Hussain, “Muslim Family Law in Australia,” p. 223. 107 Ibid, p. 224.
116 “culture war”.108 The anti-ḥijab argument often emerges from within and is based on the false assumption that the ḥijab, which is applied by Sharīʿah, is a symbol of oppression and the exclusion of Muslim women from social life.109 Sharīʿah is associated in the common mind with the oppression of women and a fear that any recognition of a role for it would introduce unacceptable perceptions and relegate Muslim women to a lower status, denying them rights, which they now enjoy under Australian law.110 Another form of ḥijab, the most controversial, is the full-length burqa that is common in parts of
Afghanistan, Pakistan and the Arabian Peninsula.
Since for most observant Muslims the obligation to follow the Sharīʿah is an essential part of their personal and religious life, the above statement places many Australian
Muslims in a dilemma.111 Even politicians have informed the Australian public that
Sharīʿah has no place in Australia: “Anyone who wishes to live under Sharīʿah has no place in Australia”.112 The concept of Sharīʿah is much “wider than the Western definition of law as it encompasses the rules that govern the day to day life of a
Muslim”.113 For many, such a term conjures up horrific images of a vicious, harsh and
108 Shahram Akbarzadeh, “The Challenge of Being Muslim,” in Challenging Identities: Muslim Women in Australia (Melbourne: Melbourne University Press, 2010), p. 1. 109 Ibid. 110 Hussain, “Muslim Family Law in Australia,” p. 205. 111 Ibid. 112 Prime Minister Julia Gillard angered Australian Muslims on 26 November 2012 by saying she supported spy agencies monitoring the nation’s mosques: “Immigrants, not Australians, must adapt…take it or leave it. I am tired of this nation worrying about whether we are offending some individual or their culture. Since the terrorist attack on Bali, we have experienced a surge in patriotism by the majority of Australians,” Rafiq A. Tschannen, “Australian Ex. Prime Minister Julia Gillard’s message to Muslims in Australia (Post is reported to be a hoax, but we leave it on TMT as the reactions are in fact quite interesting),” Muslim Times, November 26, 2012, accessed March 2013,
117 inhuman legal system, characterised by amputations, oppression of women, beheadings and death by stoning.114
Another highly controversial issue that has been a regular theme in negotiating Muslim identity, and is simply fitted with the established image of the veiled Muslim woman as oppressed by Islamic tradition, is female circumcision or “female genital mutilation.”115
Although there is no reference to circumcision at all in the Qurʾan, there is a well- established tradition of male circumcision in Islam as a “sunnah” act. In the Abrahamic tradition, this act is understood as a fulfilment of a covenant with God, and there are numerous health reasons for the practice. There is no mandate at all for female circumcision, however, in the Qurʾan, the traditional reports (ḥadith) or in medical theory.116 It is also strongly rejected by Islamic organisations as a religious practice.117
Female circumcision became the subject of investigation by the Family Law Council of
114 Ghena Krayem and Haisam Farache, “Grim Picture of Shari’ah Hides Its Useful Aspects,” Sydney Morning Herald, February 18, 2008. 115 Saeed and Akbarzadeh, Searching For Identity, p. 45. 116 Imad al-Dean Ahmad, “Female Genital Mutilation: An Islamic Perspective,” Minaret of Freedom Institute, MFI Pamphlet #1, 2000, http://www.minaret.org/fgm-pamphlet.html. Also, see, Muslim Women’s Shura Council, “ Female Genital Cutting: Harmful And Un-Islamic, “ The Digest, A statement of the WISE Muslim Women’s Shura Council, July, 2010, accessed June 2015,
118 Australia in 1994. It was seen as a human rights issue addressing the situation of migrant women from cultures that still practised female circumcision.118
The status of gender issues in public discussions of Islam in Australia has forced
Muslim women to deal with a “double responsibility” that arises in their interface with non-Muslims, as Muslim women not only have to address “women’s issues” such as the
ḥijab, but also play a major role in defending Muslim men, because when Muslim men are accused of misogyny, women are regarded as the more trustworthy spokespeople.119
Australian public discourse on Islam and gender has tended to focus on Muslim women as victims and Muslim men as perpetrators.120 It is important to note that the experiences of Muslim women in Australia are quite diverse. They are not all vulnerable to oppression and excessive pressure, and they can make informed choices about what is in their best interests. Different Muslim women’s experiences will be discussed in chapter 4.
3.5 Conclusion
As this discussion has demonstrated, the Muslim community is extremely diverse.
However, despite this diversity, there seems to be an identifiable and emerging
Australian Muslim identity, which unifies the wider community (ummah). The experience of multiculturalism in Australia has provided Muslims with a design for a multicultural Muslim identity. This Australian Muslim identity has been formed through a balance of the national identity and the Muslim identity, and comprises an affinity of
118 Saeed and Akbarzadeh, Searching For Identity, p. 45. 119 Shakira Hussein, “Double Bind and Double Responsibility: Speech and Silence among Australian Muslim Women,” in Challenging Identities: Muslim Women in Australia, ed. Shahram Akbarzadeh (Melbourne: Melbourne University Press, 2010), p. 159. 120 Ibid, p. 163.
119 conscience that unites those identities around a body of principles that must be just, sincere and loyal.
The September 11 events provided a vital example of the vulnerability of minorities in the face of global conflicts. As a result, Australian Muslims feel they have been put under a general suspicion of terrorism and have a sense of being double victims: first of
Islamophobia and then of policy responses to the terrorist attacks.121 Security measures are needed, but they must be assessed against their effect on all communities and their human rights implications. Also, the perception of Islam today raises vital questions in terms of how Muslims understand and practice their faith.122 Thus, the challenge for
Muslims is to recapture the essence of Islamic teachings in the context of contemporary societies as a faith principally concerned with fulfilling the will of God through social justice, human dignity and the overall well-being of humanity.123
There is a need for more dialogue, social inclusion and non-discrimination policies in support of minority groups, which will eventually have benefits for the entire society.
Moreover, multicultural accommodation of minorities is a mutual process that is based on equal respect and equal dignity. Lack of recognition of minorities in establishing rules and institutions in society “can create two tiers of citizenship, those who are at home with the rules etc, and those who are all at sea, drowning in a culture of misfit and misrecognition”.124 Thus, equal respect and recognition are very essential for a healthy multicultural society, and for the integration of minorities as equal Australian citizens.
121 Yasmeen, “Muslims in Australia: Promoting Social Inclusion,” p.5. 122 Halim Rane, Islam and Contemporary Civilisation: Evolving Ideas, Transforming Relations (Melbourne: Melbourne University Press, 2010), p. 5. 123 Yasmeen, “Muslims in Australia: Promoting Social Inclusion,” p.5. 124 Aslan, Islamophobia in Australia, p. 161.
120 4 IDENTITY FORMATION OF MUSLIM WOMEN IN AUSTRALIA
4.1 Introduction
In classical Islamic societies, women’s identity is usually shaped according to the surrounding culture of the society, state ideology and the practice of Islam.1 In a secular multicultural, liberal-democratic society such as Australia, the context is very different;
Muslim women have to negotiate their identity in a very different context with very different sets of values and influences. Australia’s diverse multicultural society poses challenges for Muslim women who often feel misunderstood by Australian society because they represent a culture that is judged as backward and misogynous.2
The negative portrayal of Muslim women has long been one of the most predominant images of Islam in the Australian media.3 Images of Muslim women are regularly used as a metaphor for Islam’s oppression of women and as a way of identifying those who do not share “Western” values.4 This simplistic depiction often ignores the voices of
Muslim women who choose to wear a ḥijāb, which is for them a symbol of authenticity and pride, and a signifier of identity.5 Muslim women believe Islamic law elevates the status and dignity of women and is capable of preserving their identities as Muslims in a modern society.6
1 Yvonne Yazbeck Haddad, Jane I. Smith and Kathleen M. Moore, Muslim Women in America: The Challenge of Islamic Identity Today (Oxford: Oxford University Press, 2006), p. 108. 2 Abdullah Saeed, Islam in Australia (NSW: Allen & Unwin, 2003), p. iv; Shahram Akbarzadeh, “The Challenge of Being Muslim,” in Challenging Identities: Muslim Women in Australia (Melbourne: Melbourne University Press, 2010). See also, Abdullah Saeed and S Akbarzadeh, “Searching for Identity: Muslims in Australia,” in Muslim Communities in Australia (Sydney: UNSW, 2001). Muslim women who wear ḥijāb report discrimination in the workplace. See Steven Greenhouse, “Muslims and Rising Tensions,” New York Times, September 24, 2010, p. B1, B4. 3 Saeed, Islam in Australia, p. 158. 4 Nilüfer Göle, Islam in Europe: The Lure of Fundamentalism and the Allure of Cosmopolitanism (Princeton: Markus Wiener Publishers, 2011), p. 123. 5 Yvonne Yazbeck Haddad, “The Post-9/11 Hijab as Icon,” Sociology of Religion 68(3) (2007): 253−267. 6 ʿAbdur Raḥman I. Doi, Sharīʿah: The Islamic Law (Kuala Lumpur: A. S. Noordeen, 1984), p. 117.
121 Despite the challenges they face in defining their own identity, Australian Muslim women see themselves as Muslims who hold multiple identities, including being
Australians of Islamic heritage. This chapter is about Australian Muslim women who choose an Islamic religious path in the context of a Western secularised society. Also, it explores the strategies⎯based on independent reasoning (ijtihād)⎯they employ to obtain their Islamic rights within that particular context. Therefore, in pursuing the role of ijtihād and women’s rights, it is necessary to consider the following questions:
1. What are the challenges Muslim women face as they come to terms with their
own identity in the Australian context?
2. Are women’s rights given by Islamic law capable of preserving Muslim identity
in a modern society?
3. Are women able to stay engaged and contribute to Australian society while
simultaneously tailoring their own religious identity?
4.2 The Challenges facing Muslim women in Australia
Muslim women have often been the victims of prejudice and hostility, especially in the post 9/11 years.7 Some Australians are persuaded that Muslims are guilty of treating
7 Haddad, Smith and Moore, Muslim Women in America, p. 4. The European Network Against Racism (ENAR) 2011/2012 Shadow Report on racism in Europe includes a special report on Muslim communities especially after 9/11. The findings are based on data and information from ENAR’s national Shadow Reports, prepared by ENAR members in 26 European countries. Muslims are experiencing discrimination in employment, education, and access to goods and services. For instance, “in Ireland, preliminary findings of a study on anti-Muslim racism in Ireland demonstrate that over a third of participants reported they have experienced some form of anti-Muslim hostility. Muslim women were almost twice as likely to be targeted as Muslim men. In Germany, Muslim pupils, in particular Muslim girls wearing headscarves, reported facing harassment from teachers. In France, some doctors or other healthcare workers have refused to treat patients because of their ethnic origin or religion; and in some cases doctors have required ethnic minority patients (usually Muslim men with beards and Muslim women wearing the headscarf) to wear “neutral clothing”. Muslim women and girls are most affected, in particular in the fields of employment and education, and face double discrimination on the basis of both their religion and their gender. In France, women are the main victims of Islamophobia, with 85% of Islamophobic acts targeting women. In Italy, a Bill was introduced to ban the wearing of veils because it
122 women as inferior to men. This negative image comes from the treatment and oppression of women in some Muslim-majority countries.8 As a result, Muslim women who wear headscarves (ḥijāb) face many challenges in Australian society since they are recognised as Muslims by their Islamic dress.9
One of the main challenges faced by Muslim women in Australia is that of wearing the
ḥijāb, because it is the most visible way a woman can affirm her identity in Islam. The
is considered oppressive to women. In the Netherlands, some employers have banned the veil in the workplace, arguing that the ban is justified under equality and human rights laws. In Poland and Spain, Muslim women who wear the hijab are often rejected for public-facing jobs or asked to remove the hijab when dealing with clients”. European Network Against Racism, ENAR Shadow Report 2011/12 on Racism in Europe: Key Findings on Muslim Communities and Islamophobia, accessed June 2015,
123 Muslim woman in Australia is portrayed as a veiled victim who is in need of being rescued from the oppression of Muslim men. For example, before he became the
Australian Prime Minister, Tony Abbot supported the views of the Liberal candidate for the Western Sydney seat of McMahon, Ray King, a former Liverpool-based police commander, who is reported to have commented that Muslim women’s dress is oppressive and may have links to criminality.10 Such statements imply that Muslim women’s dress is “not Australian enough” to be accepted by the general public.11 Also, the increasingly strident debate and rules against Muslim women’s dress has stirred unease within the Muslim community in Australia.12 For example, the 2014 counter- terrorism raids in major Australian cities, and raising the national terror alert to “high”, resulted in increased discrimination and abuse against Muslims, especially women wearing the ḥijāb.13
10 United Muslim Women Association, “Muslim women shocked at Mr Abbott’s attacks on religious dress,” August 31, 2013, accessed October 2013,
124 Moreover, the influence of imperial feminism has made the chasm between secular and practicing Muslim women wider.14 Muslim women who do not wear the ḥijāb are the preferred “other” in a post-9/11 environment. On the one hand, there are some secular
Muslim women who are highly critical of pious women. On the other hand, some practising Muslim women are inclined to consider secular women to be not Muslim enough.15 Of course, Muslim women who do not wear the ḥijāb may not necessarily be non-practising and a Bangladeshi study revealed it is possible for pious women to believe in and engage in secular politics.16
Critical research and debate on the homogeneity of Muslim women persist in how intersectionalities of culture, race and religion post-9/11 silence Muslim women through a combination of binary stereotypes.17 These stereotypes obscure and distort the diversity of Muslim women and limit their civil liberties; Gayatri Spivack argues that binaries that are “alibied in the name of women” affect the everyday lives of Muslim women, creating multiple factions of oppression within the community. He declares:
Something called terror is needed in order to declare a war on it⎯a war that extends from the curtailment of civil liberties to indefinite augmentation of military self-permission. Without the word terror, this range of things, alibied in the name of women, cannot be legitimized.18
In respect to articulating their identity, Muslim women face two main challenges: the first is to maintain a sense of self-determination and integrity through a hybridisation of
14 Fauzia Erfan Ahmed, “Empire, Subalternity, and Ijtihād: Two Muslim Women’s Leadership Models in the Post-9/11 US,” Hartford Seminary (Oxford: Blackwell Publishing, 2011), p. 501. 15 Ibid. 16 Fauzia Erfan Ahmed, “Secularism in Rural Bangladesh: Ijtihād and Lower Middle Class Women,” Journal of Comparative Studies of South Asia, and Middle East 31(3) (2011): 124−132. 17 Sunaina Maira, “‘Good’ and ‘Bad’ Muslim Citizens: Feminists, Terrorists, and US Orientalisms,” Feminist Studies 35(3) (2009): 631−656; Mitra Rastegar, “‘Managing’ American Islam: Secularism, Patriotism, and the Gender Litmus Test,” International Feminist Journal of Politics 10(4) (2008): 455−474. 18 Gayatri Chakravorty Spivak, “Terror: A Speech After 9−11” Boundary 31(2) (2004): 81−111, p. 91.
125 an Australian identity and an Islamic heritage. The second is to contest Western feminist stereotypes without stereotyping non-Muslim women.
This chapter attempts to make two theoretical contributions: first, it seeks to demonstrate how Muslim women can hold an Australian identity without losing their heritage, and secondly, it shows how Western images of Muslim women have been distorted by the public, the media and feminist critique.
4.2.1 Challenging Identities in the Australian Multicultural Context
The question of identity is a vital one for Muslims living in Australia. While emotional ties to ethnic and cultural identities are generally respected, many affirm their dual orientation as both Muslim and Australian, with the understanding these identities are mutually supportive rather than exclusive.19 This means navigating a combination of socially constructed and religious identities.
This section begins by discussing the notion of identity and examining its importance and multiplicities. The second part introduces Muslim identity and explores its fundamental elements. The third part discusses general studies of Muslims in Australia,
Australian multiculturalism and its challenges for Muslim women in Australia.
I will touch here on the central question of identity by exploring the fundamentals of
Muslim identity through the lens of Tariq Ramadan, who explains there is a fundamental distinction between the religious principles that define the identity of
Muslims and their cultural beliefs.20
19 Samina Yasmeen, Understanding Muslim Identities: From Perceived Relative Exclusion to Inclusion (Australia: Department of Immigration and Citizenship, Australian Commonwealth Government and the Office of Multicultural Interests, Government of Western Australia, 2008), pp. 51−52. 20 Ramadan, Western Muslims and the Future of Islam, p. 82.
126 In recent times, scholars have become interested in the process of belonging to different environments as migration and mobility bring individuals into contact with different collective identities. Their studies point to a reformation of an individual’s sense of belonging.21 In the same way, Australian Muslim women see themselves not so much as
Muslims who hold other identities, but as Australians who belong to an Islamic heritage. In making this argument, I rely on a Turkish scholar, Nilüfer Göle, who argues that Muslim women are claiming different identities; therefore, women have multiple affiliations that need to be taken into account, their cultural and religious affiliations being among them.22 Her discussion then turns to the challenge of multiculturalism for
Muslim women in Australia. In particular, it is argued this challenge lies in projecting the voice of Muslim women and their views so that religion does not oppress them.
4.2.1.1 The Notion of Identity
The identity of an individual or group of individuals is described by the set of characteristics that make them different or unique.23 These characteristics, which render an individual or group as distinctive, include their core values, beliefs and convictions that structure their lives. These distinctive attributes form a core personality that gives meaning to a person’s self-understanding in various contexts.24 Mahmood Monshipouri, of San Francisco State University, and Erik Erikson, an American psychologist, agree
21 Ruthellen Josselson and Michaelle Harway, Navigating Multiple Identities: Race, Gender, Culture, Nationality and Roles (Oxford: Oxford University Press, 2012), p. 5. 22 Göle, Islam in Europe, pp. 111−117. See also Margaret Wetherell and Chandra Talpade, The Sage Handbook of Identities (London: Sage Publication, 2010), p. 252; Ayelet Shachar, Multicultural Jurisdictions (Cambridge: Cambridge University Press, 2001), pp. 78−85. 23 Celina M. Chatman, Jacqueline S. Eceles and Oksana Malanchuk, “Identity Negotiation in Everyday Setting,” in Navigating the Future: Social Identity, Coping, And Life Tasks, ed. Geraldine Downey, Jacqueline S. Eceles and Celina M. Chatman (New York: Russell Sage Foundation, 2005), p. 118. 24 Ali Abdi and Ratna Ghosh, Education and the Politics of Difference: Canadian Perspective (Toronto: Canadian Scholars Press, 2004), p. 26. See also, Amin Maalouf, In the Name of Identity (New York: Penguin Books, 2003), p. 13; Michael Merry, Culture, Identity and Islamic Schooling (New York: Palgrave Macmillan, 2008), p. 182.
127 that identities create a measure of inclusion and exclusion.25 Therefore, identity involves compatibility between personal meaning and meaning to others, at both reasoning and emotional levels. In defining identity in psychosocial terms, Erikson and Monshipouri attempt to formulate the links between the outer and the inner. This is to say, identities combine the personal or inner world with the collective and cultural realm.26
Identities, therefore, relate to self-understanding, self-confidence and self-reflection on the one hand, and how others understand, analyse and interpret that self-conception and its manifestation on the other hand. Consequently, people are constantly adjusting and redefining their identities in relation to context.27 Thus, identities are constructed and developed within the process of communication and everyday interaction. As they are situated in a context that is dynamic, identities are always in the process of shifting and becoming rather than being stable or fixed.28
Charles Taylor considers identity not only as an inner component of our personal characteristics, but as a major contributing factor that shapes our perception of both self and the world.29 Identity is what constitutes a person’s self-perception as an individual and also as a member of a group. Taylor introduces the notion of the “politics of recognition”, which could be viewed as a complement to and consequence of identity.30
It means that recognition of the varied identities of individuals and groups is what makes liberal multicultural societies unique, because of the way they treat minorities
25 Mahmood Monshipouri, Muslims in Global Politics: Identities, Interests and Human Rights (Philadelphia, Pennsylvania: University of Pennsylvania Press, 2009), pp. 244−246. See also, Erik Erikson, Identity, Youth and Crisis (New York: Norton, 1968), pp. 216−221. 26 Ibid; See also, Merry, Culture, Identity and Islamic Schooling, p. 182. 27 Maryam Jamarani, Identity, Language and Culture in Diaspora: A Study of Iranian Female Migrants in Australia (Victoria: Monash University Publishing, 2012), p. 2. 28 Stuart Hall, “Cultural Identity and Diaspora,” in Identity: Community, Culture, Difference, ed. J.Rutherford (London: Lawrence and Wishart, 1990), pp. 222−37. 29 Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge: Harvard University Press, 1989), pp. 28−30. 30 Charles Taylor, “The Politics of Recognition,” in Multiculturalism: A Critical Reader, ed. David Goldberg (Oxford: Blackwell Publishers, 1994), pp. 25−73.
128 and the rights they grant them.31 Taylor further asserts that any culture that provides meaning for diverse individuals with different needs and aspects over a long period of time deserves appreciation and respect, even if this culture contains certain elements that others may oppose or disagree with. Moreover, he claims individuals and groups of people have the potential to form and define their own identities by the cues that societies give to them.32
4.2.1.2 Multiple Identities
Immigration, whether permanent or temporary, results in a separation from home and familiar social frames.33 Leaving a familiar social environment can be a confusing experience and perplexing change, which may have a significant impact on an individual’s life. This change can result in the emergence of questions of identity, values and priorities in the life in an individual. It forces people to re-tailor their identities and re-evaluate different aspects of their behaviour, plans and communication styles, as well as many other aspects of their social and individual lives.34
Changing one’s social environment frequently necessitates a re-evaluation of ethnic, social and individual values. This process of acculturation means learning about a new culture⎯with its customs, traditions and appropriate behaviours⎯that is different from the one in which a person was born and raised.35 The process of acculturation is defined according to the American psychologist John Berry:
31 Ibid. 32 Charles Taylor, “Introduction,” in Secularism, Religion and Multicultural Citizenship, ed. G. Levey and T. Modood (Cambridge: Cambridge University Press, 2009). 33 Jamarani, Identity, Language and Culture in Diaspora, p. 16. 34 Ibid. 35 John W. Berry, Cross-culture Psychology: Research and Application (Cambridge: Cambridge University Press, 2002). See also, John W. Berry, “A Psychology of Immigration,” Journal of Social Issues 57(3) (2001): 615-31. See also, John W.Berry, “Immigration, Acculturation and Adaptation,” Applied Psychology: An International Review 46(1) (1997): 5−34.
129 Culture change is initiated by the conjunction of two or more autonomous cultural systems. Acculturative change may be the consequence of direct cultural transmission; it may be derived from non-cultural causes, such as ecological or demographic modification induced by an impinging culture; it may be delayed, as with internal adjustments following upon the acceptance of alien traits or patterns; or it may be a reactive adaptation of traditional modes of life.36
Berry proposes a two-dimensional acculturation model and argues the first dimension is determined by whether immigrants consider their cultural identity and customs valuable enough to maintain within the host-country’s culture. The second dimension relates to whether relationships with other people or groups in the host society are considered sufficiently valuable to be regarded as a model of acculturation.37 Putting the answer yes or no in a matrix (Figure 4) produces a model with four possible acculturation attitudes adopted by migrants. For instance, if it is not considered important for an individual or a group to maintain its culture, while at the same time trying to maintain a relationship with members of the mainstream culture, then that person or group would be categorised as belonging to the assimilation category. But a person or group who does not consider it important to maintain either its heritage culture or relationship with the larger society would fall into the marginalisation category.38
36 John W. Berry, “Acculturation: Living successfully in Two Cultures,” in International Journal of Intercultural Relations 29 (2005): 697−712. 37 Berry, “Immigration, Acculturation and Adaptation,” in Applied Psychology: An International Review 46(1) (1997): 5−34. 38 Ibid.
130 Maintain home culture
YES NO YES
Develop relationship with Integration Assimilation larger society
Separation Marginalisation NO
Figure 4: Berry’s Acculturation Model
Expanding on Berry’s model, Will Kymlicka argues that once in a different environment, individuals are able to switch on their native culture routine and adjust it to the host culture to cope with the new situation.39 Furthermore, he includes a discussion of “the role of cultural membership in people's self-identity,” concluding that
“cultural membership provides us with an intelligible context of choice, and a secure sense of identity and belonging.”40 Kymlicka then clarifies his previous arguments by adding that “considerations of identity provide a way of concretizing our autonomy- based interest in culture,” so “identity does not displace autonomy as a defence of cultural rights, but rather provides a basis for specifying which culture will provide the
39 Kymlicka, Multicultural Citizenship, p. 89. 40 Ibid.
131 context for autonomy.”41 Moreover, he argues that cultures are valuable because they provide a context of choice, and people need access to their own culture because “even where successful integration is possible, it is rarely easy.”42 This strategy necessitates balancing and managing between their home country and the host country, and incorporating elements of past and present, home culture and host culture.
An individual in this situation is in a condition of hybridity. Hybridity is constructed through a negotiation of difference. For an immigrant who is faced with elements of both home and host-country culture, hybridity provides the basis for the juxtaposition of different cultures and places.43 Hybridity can thus be seen as the melting point of past and present. In this case, the hybrid identity adjusts its home culture to the different aspects and elements of the new context.
It should be noted that immigrants have brought to Australia a diversity of religions. For instance, Prussian and later German Lutheran immigrants, who migrated to Australia in the early nineteenth century to escape persecution, established Lutheranism.44 The immigrants from Turkey, Lebanon and Egypt came to live and work in Australia after
World War II increased the Muslim population.45 Dutch immigrants strengthened the
Catholic and Presbyterian churches.46 With Muslim immigrants came mosques, with the
Germans and Greeks churches and with Hindus temples.47 This growing religious
41 Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford: Oxford University Press, 2001), p. 55. 42 Kymlicka, Multicultural Citizenship, p. 85. 43 Halleh Ghorashi, Ways to Survive, Battles to Win: Iranian Women Exiles in the Netherlands and United States (New York: Nova Science Publishers, 2003), p. 126. 44 Gary D. Bouma, Australian Soul: Religion and Spirituality in the Twenty-First Century (Cambridge: Cambridge University Press, 2006), p. 52. See also Ian Breward, A History of the Australian Churches (Sydney: Allen & Unwin, 1993), pp. 38−39. 45 Gary D. Bouma, Mosques and Muslim Settlement in Australia (Canberra: BIMPR, 1994). 46 Gary D. Bouma, “The Religious Contribution of Dutch Migrants to Multicultural Australia,” Australian Religious Studies Review 14(2) (2001): 59−68. See also Henk Overberg, “The Dutch in Victoria 1947- 1980: Community and Ideology,” Journal of Intercultural Studies 2(1) (1981): 17−36. 47 Bouma, Australian Soul, p. 52.
132 diversity in Australia has increased awareness among people of the many different religions throughout the world and increased familiarity with the enormous variety of religious beliefs and practices.48
Muslims represent and symbolise key elements of Australia’s religious diversity. They have not been passive recipients in the process of religious diversity; they have been active in the negotiation of the very character of Muslim identity in Australian society.49
Undergirding this active participation, the Qurʾan highlights the salience of religious diversity in addressing all humankind—all races, colours and communities—reminding them that they all share one origin and informing them the purpose of their diversity is to respect one another and live peacefully.50
4.2.1.3 Muslim Identity
Literally, the word Islam means peace and submission. The religion of Islam is a comprehensive faith that carries within itself a global understanding of humanity, creation, life and death.51 This faith embodies the Islamic principles of creed (ʿaqidah) and behaviour. It also encompasses the sphere of worship (ʿibādāt), the domain of social affairs (muʿāmalāt), ethics and morality (akhlāq).
To understand Muslim identity, I will adopt the perspectives offered by Tariq Ramadan as a starting point, especially his distinction between the fundamentals of Muslim
48 Gary D. Bouma, Being Faithful in Diversity (Adelaide: ATF Press, 2011), p. 19. 49 Gary D. Bouma, Joan Daw and Riffat Munawar, “Muslims Managing Religious Diversity,” in Muslim Communities in Australia, ed. Abdullah Saeed and S Akbarzadeh (Sydney: UNSW, 2001), p. 53; Religious identity is reinforced by affiliation with a religious community and religious education: it is important to mention here a particular example of active participation of religious communities that have promoted healthy interfaith relations and dialogue since the 1970s as a direct result of the efforts of Muslim organisations associated with the Gülen movement⎯The Australian Intercultural Society in Melbourne and Affinity in Sydney⎯thousands of Australians have been getting together for dinner with Muslims over the course of the last 20 years. 50 “O mankind! We have created you all out of a male and a female and have you into nations and tribes, so that you might come to know one another. Truly, the noblest of you in the sight of God is the one who is most genuinely God-fearing; God is all-Knowing, all aware” (Qur’an 49:13). 51 Tariq Ramadan, To be a European Muslim (Leicester: The Islamic Foundation, 1999), p. 3.
133 identity and Islamic cultures.52 But first, I will examine the meaning of “Muslim identity” by outlining its four foundational pillars, according to Ramadan.
The first and most important foundation of Muslim identity is “faith,” which is the meaning of the central concept of tawḥid⎯faith in the oneness of God⎯to which the shahada (testimony) affirms and testifies.53 According to Ramadan, the shahada takes two imperative forms.54 The first means the testimony that everyone who wants to become a Muslim, or be recognised as a Muslim, has to pronounce before God and the whole of humankind. The second form is associated with the responsibility of Muslims to society.55 The two meanings of shahada bring together the essential elements of
Muslim faith: recognition of the core elements of Muslim identity via faith in the oneness of God and His last revelation to Prophet Muḥammad (pbuh), and a God consciousness that reminds Muslims to act responsibly with best manners in society.56
In brief, the concept of shahada unites identity and social responsibility in the light of the principles of Islam.57
The second foundation of Muslim identity, according to Ramadan, which follows immediately after faith, is the responsibility of Muslims to combine an “understanding of the Texts (Qurʾan and ḥadiths of the Prophet) and the context” to determine how to stay faithful to the principles of Islam. This combination of understandings is distinguished by “an active and dynamic intelligence that needs knowledge.”58
52 Ramadan, Western Muslims and the Future of Islam, p. 73. 53 Shahada is the profession of faith and its testimony through the formulation, with the heart and intelligence, of “I bear witness that there is no god but God and Muhammad is His Prophet.” It is the foundation, axis and determination of ‘being Muslim’. See Ramadan, Western Muslims and the Future of Islam, p. 79. 54 Ramadan, Western Muslims and the Future of Islam, p. 73. 55 “Thus We have made you the community of the middle way, so that you may stand witness before humankind…” (Qur’an 2: 143). 56 Ramadan, Western Muslims and the Future of Islam, p. 74. 57 Ibid, p. 75. 58 Ibid, pp. 80−81.
134 Knowledge and understanding of the texts are two-fold: firstly, awareness of God; and secondly, to act in conformity with the teaching of Islam, when making choices between what is good and what is bad to please God in any environment Muslims live.
The third foundation of Muslim identity is an effective expression based on “educating and transmitting” knowledge of the principles of Islamic teaching.59 It is an essential responsibility of parents to transmit religious education to their children so as to offer them the choice of what they might become as a responsible persons in society.60 This responsibility entails inviting people to the knowledge of the presence of God and a true understanding of His teaching.61
The fourth foundation of Muslim identity is the articulation of faith through action and participation in society.62 To be Muslim is to act according to the teachings of Islam no matter the surrounding environment. There is no contradiction between Muslim identity and nationality. If someone is Australian, then Australia is their home and they will follow the law of the land provided it does not force citizens to commit sins, which for most Muslims would include lying, stealing, drinking alcohol or usury.63 Importantly, this law of the land does not prevent Muslims from carrying out their religious obligations or being good.
In summary, the core of Muslim identity is faith in the oneness of God, followed by the expression of this faith through engagement with society. The greatest responsibility of
Muslims in the West, according to Ramadan, is “to dress these four dimensions of their
59 Ibid, p. 81. 60 “…Whatever wrong any human being commits rests upon himself alone. No one shall be made to bear the burden of another. In time, to your Lord you all must return; and then He will tell you the truth of all that over which you were in dispute” (Qurʾan 6:164); “And warn your nearest kindred” (Qurʾan 26:214). 61 Ramadan, Western Muslims and the Future of Islam, p. 81. 62 Ibid, p. 82. 63 Ibid.
135 identity in a Western culture while staying faithful to the Islamic sources.”64 To reach this objective, Muslims in the West, including Australia, have to distinguish between the principles of Islamic teachings and culture. Awareness of this distinction, according to Ramadan, will enable Muslims to integrate all that is good and positive of their cultures, while at the same time remaining selective and critical. Muslims need to know the principles of their religion to differentiate between religion and culture.65
Although there is no culture without religion and no religion without culture, culture is not religion.66 However, Islam allows Muslims to adopt aspects of their culture, as long as they do not oppose a prohibition specified by their religion. Thus, Muslims living in a new country have to define Muslim identity by distinguishing it from the culture of their new society. After developing an understanding of the new contexts in the settler society, Muslims may integrate whatever does not contradict Islamic teachings in the new culture where they live.67 The idea “is not to create a new Islam, but to reconnect
Islam with its original vitality”, which enables faithful Muslims to integrate positively all that is good in the culture of the new environment while remaining critical and selective when this culture results in prejudice, prohibition or discrimination.68
64 Ibid, p. 83. 65 Ramadan, What I Believe, p. 42; The Qurʾan commanded Prophet Muḥammad (pbuh) to adhere to people’s sound customs and usages, and take them as a fundamental reference in legislation: “Accept (from people) what comes naturally (for them). Command what is customarily (good). And turn away from the ignorant (without responding in kind)” (Qur'an 7:199), The Qurʾan also states, “Hold to forgiveness; command what is right; But turn away from the ignorant” (Qurʾan 7:199). Although Islam removed certain aspects of the Arabian culture that contradicted Islamic principles, it also adapted and encouraged other traditions of this culture. By filtering and adjusting, Islam paved the way for integrated cultures and identities. 66 Ramadan, Western Muslims and the Future of Islam, p. 214. 67 Ibid, p. 216. 68 Ramadan, What I Believe, p. 43.
136 4.2.1.4 Multiculturalism
Muslims living in Australia today comprise the most diverse community in the history of Islam.69 They are immigrants and native-born Australians representing most of the races and cultural groupings of the world.70 They speak a wide variety of languages and represent a range of cultural, economic, educational, sectarian and ideological positions.71
In the post-World War II period, the Muslim population in Australia grew markedly.72
In the 2011 Australian census, there were 476,291 Muslims in Australia, representing
2.21 per cent of the total population.73 The demographic growth of the Muslim population is the result of immigration and natural increase.74 This Islamic presence continues to be viewed as “other”, something that is culturally incompatible, unchangeable and resistant to becoming part of national society in Australia. This is due to the challenge caused by the Muslim practices of prayer, fasting and veiling, which oppose the conformity expected in a public space.75
Yet the immigration policy initiated in Australia in 1947 was not designed to create a culturally and religiously diverse society:
69 According to the 1996 census, nearly 36 per cent of Australian Muslims were born in Australia, 13.5 per cent in Lebanon, 11.1 per cent in Turkey, 3.5 per cent in Indonesia, 3.3 per cent in Bosnia- Herzegovina, 2.6 per cent in Iran and 2.2 per cent in Fiji. The rest were born in Albania, Sudan, Egypt, Palestine, Iraq, Afghanistan, the Indian subcontinent and many other countries in Asia and the Pacific; See Saeed & Akbarzadeh, Muslim Communities in Australia, p. 1. 70 Saeed, Islam in Australia; Saeed and Akbarzadeh, “Searching for Identity”; James Jupp, The Australian People: An Encyclopedia of the Nation, its People and Their Origins (Cambridge: Cambridge University Press, 2011), p. 564; Kathryn M. Coughlin, Muslim Cultures Today: A Reference Guide (Westport: Greenwood Press, 2006), p. xiii. 71 Yvonne Yazbeck Haddad, “The Globalization of Islam: The Return of Muslims to the West,” in The Oxford History of Islam, ed. John L. Esposito (Oxford: Oxford University Press, 1999), p. 608. 72 Saeed and Akbarzadeh, “Searching for Identity,” p. 1. 73 Australian Bureau of Statistics, 2011, Religious Affiliation and Non-belief, 2006 and 2011, Census Community Profiles, Australia and Sydney. 74 Saeed and Akbarzadeh, Muslim Communities in Australia, p. 1. 75 Michael Humphrey, “An Australian Islam? Religion in the Multicultural City,” in Muslim Communities in Australia, ed. Abdullah Saeed and Akbarzadeh (Sydney: UNSW, 2001), p. 33.
137 During the 1940s and 1950s in Australia, assimilation was the dominant approach to newly arrived migrants, followed, in the 1960s, by integration. During the assimilation period it was thought that newly arrived migrants ought to attempt to blend into mainstream society as much and as quickly as possible, removing the traces of their former identities to become like other Australians.76
The immigration policy initiated in Australia in 1947 was supposed to be an instrument of development and nation building to guarantee integration into Australian society.77 It assumed migrants would, within one or two generations, leave their original cultural identities behind and dissolve into the settler society.78
However, by the 1970s, Australia adopted a more tolerant approach that acknowledged the differences of the diverse groups that had become part of nation.79 On 17 February
2011, the Hon. Chris Bowen MP, Minister for Immigration and Citizenship, launched the government’s new multicultural policy The People of Australia. The policy draws upon recommendations made by the Australian Multicultural Advisory Council April
2010 report. The People of Australia policy recognises the diversity of Australian society and reaffirms support for a culturally diverse nation. It also enhances respect and support for cultural, religious and linguistic diversity.80 This approach is referred to as
76 Department of Immigration and Citizenship, The People of Australia: Australia’s Multicultural Policy, accessed November 10, 2013,
138 “multiculturalism,” which stems from the acceptance that migrants should be given group-differentiated rights.81
In this sense, Kymlicka defines multicultural policies as those that: “Go beyond the protection of basic civil and political rights guaranteed to all individuals in a liberal- democratic state, to also extend some level of public recognition and support for ethno cultural minorities to maintain and express their distinct identities and practices.” 82
Aiming for a more definitive clarification of the term, the sociologist Tariq Modood provided this definition:
Multiculturalism is where processes of integration are seen both as two-way and as working differently for different groups. In this understanding, each group is distinctive, and thus integration cannot consist of a single template … refers to the understanding that the groups in question are likely to not just be marked by newness or phenotype or socio-economic location but by certain forms of group identities. The latter point indeed suggests that a better, though longer, term might be ‘pluralistic integration’. In the perspective of multiculturalism, the social requirement to treat these group identities with respect leads to a redefinition of the concept of equality.83
This definition rejects assimilation and proposes a process of integration in which both the settled and the settlers nudge their identities as they adjust to each other.
Expanding on this idea, Zain El-Abedin, the founder of the Institute for Muslim
Minority Affairs in Saudi Arabia, argues the considerable challenge Muslims face in the
West is the loss of identity in a different social environment and a new ideological context.84 For him, the West becomes a laboratory where a new modern identity is to be fused and used to foster a common language, distinctive customs and traditions and
81 Krayem, Challenging Identities, p. 108. 82 Will Kymlicka, Multicultural Odysseys (Oxford: Oxford University Press), p. 16. 83 Tariq Modood, Multiculturalism (Cambridge: Polity Press, 2007), p. 48. 84 Zein el-Abedin, “The Study of Muslim Minority Problems: A Conceptual Approach,” in Muslim Communities in Non-Muslim States (London: Islamic Council of Europe, 1980), p. 21
139 recognisable styles of dress and food, among other cultural distinctions.85 For immigrants, the struggle of maintaining their identity and preserving it from assimilating into Western culture is an ongoing undertaking.86
Since multiculturalism acknowledges and respects cultural and communal diversity, accommodation to the new environment may bring social benefit in terms of cultural enrichment and progress.87 Yet, this accommodation does not entail obliterating cultural diversity, but it means the terms of accommodation need to be adjusted in the way of limiting disturbance and enabling benefit to the nation as a whole.88
Thus, multiculturalism may be seen as the promotion of dialogue between the various cultural groups in the nation; the performance of equal rights for minority groups; and the exclusion of discrimination against those groups. Some have further contended there should be active celebrations of the differences that emerge as each of the cultures promotes its specific features.89 But multiculturalism has always been the subject of passionate controversy. When the then Australian Prime Minister Julia Gillard in 2012 coined the term “true multiculturalism” in her criticism of the concept and practice of multiculturalism, she condemned the rioters who took part in a violent protest over an anti-Islamist video as “extremists”: “What we saw in Sydney on the weekend wasn't multiculturalism but extremism,” she said in a speech to the Australian Multicultural
Council. “True multiculturalism” had a very different face (to the riots), she said:
85 Ibid. 86 Haddad, “The Globalization of Islam: The Return of Muslims to the West,” in The Oxford History of Islam, ed. John L. Esposito (Oxford: Oxford University Press, 1999), p. 639. 87 Max Farrar et al., “Islam, the West and Multiculturalism” in Islam in the West: Key Issues in Multiculturalism, ed. Max Farrar et al. (NY: Palgrave Macmillan, 2012), p. 2. 88 Ibid, p. 4. 89 Max Farrar, “Multiculturalism in the UK: A Contested Discourse,” in Islam in the West: Key Issues in Multiculturalism, ed. Max Farrar et al. (NY: Palgrave Macmillan, 2012), p. 7.
140 It was the face of a new migrant studying hard in an English language class, working two jobs to put their kids through school or lining up to vote for the very first time. True multiculturalism includes, not divides, it adds more than it takes. In the end, multiculturalism amounts to a civic virtue since it provides us with a way to share the public space, a common ground of inclusion and belonging for all who are willing to “toil with hearts and hands.90
While the first principle in Australia’s multicultural policy values the benefits of cultural diversity for all Australians within the broader aims of national unity and community harmony, Gillard appeared to be focusing on aspects of multiculturalism that are not just the ability to maintain diverse backgrounds and cultures, but also as
“the meeting place of rights and responsibilities where the right to maintain one's customs, language and religion is balanced by an equal responsibility to learn English, find work, respect Australian culture and heritage, and accept women as full equals.”91
Although the context of her speech was condemning those who demonstrated against the American film, the then Australian Prime Minister ended her talk by advocating for
Muslim women’s rights. This appeared to be based on the common perception that
Islam is an oppressive regime that denies women basic rights. So, what is it like to be a
Muslim woman in Australia?
4.2.1.5 The Challenges of Being a Muslim Woman in a Multicultural Society/ Australia
Although Muslim women in Australia come from many different cultural, ethnic and linguistic backgrounds, they are united by their identification with a faith that many
90 Gillard defends national diversity: Saturday's protest in Sydney, one of many worldwide, was sparked by the film Innocence of Muslims, which was produced in the United States and portrays the prophet Muhammad as a fraud, womaniser, homosexual and madman. Ross Peake, “Gillard defends nation's diversity,” Sydney Morning Herald, September 20, 2012, accessed October 5, 2013,
141 assert is contrary to women’s rights.92 Muslim women in Australia may or may not choose to publicly identify themselves with Islam as a religion and a way of life. Yet all of them, in one way or another, are faced with the questions: How do they understand themselves as Australians? And how do they define themselves so they can be understood by their fellow citizens.93
To answer these questions, it is important to note that, on the one hand, Muslim women are required to find a balance between the particularities of the culture to which they relate and their faith, which is a common bond among Australian Muslims. On the other hand, Muslim women are required to focus on the common values between their culture and the host culture. Muslim women have to think about these identity questions, which, in itself, results in a shift in the process of identity redefinition.
Some cultures and traditions that are not Islamic affect this process of redefinition and help clarify for the public that Muslim women are not oppressed. Unfortunately, the image of a Muslim woman oppressed by her religion and culture has reduced her to a stereotype.94 Too often Muslim women are used as pawns to justify Western
92 Krayem, Challenging Identities, p. 108. 93 Yvonne Yazbeck Haddad et al., Muslim Women in America: The Challenge of Islamic Identity Today (Oxford: Oxford University Press, 2006), p. 9. 94 Lila Abu-Lughod, “Do Muslim Women Need Saving? The Western Crusade to Rescue Muslim Women has Reduced them to a Simplistic Stereotype,” Time, November 1, 2013, accessed June 2015,
142 imperialism, colonialism and militarism.95 In fact, Muslim women have been reduced to a ground on which a war of politics, ideas and identity is being waged.96
While many Muslim women would argue that Islam is not an oppressive religion, there are horrific practices against Muslim women where religion is used as justification for violence against them. For instance, honour killings, bans on education,97 forced marriage and female genital mutilation are all rejected as Islamic practices by most
Muslims.98 However, there are many factors other than religion⎯like culture⎯that have led to the abuse of women’s rights, and many Muslim leaders and feminists would argue that critiquing Islam is a naïve answer to a multifaceted issue. Zaleha
Kamaruddin, the Muslim scholar who became the first female rector of the International
Islamic University in Kuala Lumpur, argues there is an increasing prevalence of
“honour killings” in Muslim states across the world.99 This practice, which is completely hostile to the principles of Islam, has significantly damaged the image of
Islam as it is regularly represented by the media, particularly social media, as being a traditional Islamic practice.100
95 The Bush administration used Muslim women as a pawn to justify its imperialist “War On Terror,” and once the invasion began, Muslim women fell by the administration’s proverbial wayside. In a statement for women’s Equality Day in August 2002, then US president George W. Bush was credited for “restoring fundamental human rights to Afghan women” by toppling the Taliban, who “used violence and fear to deny Afghan women access to education, health care, mobility and the right to vote”. Cherie Blair, wife of British Prime Minister Tony Blair, reinforced the first lady’s sentiments, telling the Guardian “the women of Afghanistan have a spirit that belies their unfair, downtrodden image. We need to help them free that spirit and give them their voice back”; Waleed Aly, People Like Us: How Arrogance is Dividing Islam and the West (Sydney: Pan Macmillan, 2007), pp. 125−126. 96 Aly, People Like Us, p. 133. 97 The recent story of Malala Yousefzai, the Pakistani schoolgirl who nearly lost her life fighting for her right to have access to an education. However, we have to appreciate, for many Muslim women, their struggle remains in seeking basic human rights that we all take for granted. AFP, “Pakistani Taliban- targeted girl Malala Yousafzai speaks publicly,” The Australian, February 5, 2013, accessed June 2015,
143 There is nothing more challenging to Muslim women than being able to combat oppressive practices by demonstrating they have no basis in religion. Muslim women should speak out to redefine their traditional social roles and responsibilities.101 This requires Muslim women to be aware of their rights according to Islamic teachings and understand the difference between bad cultural practices and what is religious practice.
As suggested by Kamaruddin, Muslim women place value in adhering to Islamic teachings. She strongly encourages the necessity of a further education for Muslim women on the interpretation and practice of Islamic law.102 A key advantage to this approach is to pave the way to educated Muslim women to engage, in the near future, as female Muslim scholars in the process of ijtihād. To achieve that end, a programme of action has to be set in order to make some efforts to eventually dismantle some cultural practices that are alien to the principles of Islam. The change and improvement one can now witness in the Muslim community in Australia is that Muslim women are becoming more confident in their own religious identity and not allowing their faith to be misinterpreted or misused as justification for them not receiving their rights.103
Australian Muslim women see themselves as Australians who hold multiple identities and who have an Islamic heritage. Nilüfer Göle posits that claiming differences in the
101 Humphrey, Muslim Communities in Australia, p. 48. 102 Zaleha Kamaruddin, “ Islamic Family Law in Malaysia: An Overview,” in Zaleha Kamaruddin ed., Islamic Family Law: Issues 2000 (Kuala Lumpur: Research Centre, International Islamic University, 2001), pp. 1−30; Liz Gooch Nov. 21, 2011, In Malaysia, Reality TV With a Feminist Twist, The New York Times, accessed July 2015 < http://www.nytimes.com/2011/11/21/ arts/21iht- MALAYMUSLIM21.html?_r=0>. 103 In this context, for instance, Muslim women are taking control, using their faith to articulate their rights and thereby exercising agency in how they experience their faith as Australian Muslim women. For example, Muslim Women Support Centre (MWSC) has been in operation from 1988. Muslim women leaders in the community set up this project. This service emphasises the right of Muslim women to have access to information and be aware of their rights from both Australian and Islamic legal perspectives; United Muslim Women Association, “Muslim Women Support Centre,” accessed June 2015,
144 public sphere empowers identity for Muslim women.104 She further argues the presence of Islam within the West concerns the sharing of the common space, which is defined as the public sphere.105 This presence raises the question of difference in the most central domains of Western culture.106 For this reason, the public sphere not only refers to the rights of citizens and a common space, but also the plural notion that covers the cultural diversity of citizens.107 Muslim women are involved in cultural or religious identity, exhibiting personal practices and investing the public space, hence acquire visibility.108
In the same vein, Monshipouri maintains that identity can be an empowering tool in situations where minorities face adversity. “For some Muslim women who reside in the
West”, he continues, “practicing their religion can be an empowering statement of individual and collective Islamic identity”.109 Similarly, Australian Muslim women can define identity as an aspect of self-determination and self-definition. According to interviews conducted by Ghena Krayem in Islamic Family Law in Australia: To
Recognise or not to Recognise she found that most Muslim women benefit from living in Australia where they feel they are respected and allowed to live their lives according to Islamic principles.110 Also, Muslim women leaders from across Australia spoke of how Australia promotes gender equality and full participation of women in all aspects of community life. They saw no incompatibility with the rights given to women in
Islamic law.111
104 Göle, Islam in Europe, p. 123. 105 Ibid, p. 43. 106 Ibid, p. 48. 107 Haddad et al., Muslim Women in America, p. 123. 108 Nilüfer Göle, The Forbidden Modern: Civilization and Veiling (Michigan: University of Michigan Press, 1996). 109 Mahmood Monshipouri, Muslims in Global Politics: Identities, Interests, and Human Rights (Pennsylvania: University of Pennsylvania Press, 2009), p. 6. 110 Ghena Krayem, Islamic Family Law in Australia: To Recognise or not to Recognise (Victoria: Melbourne University Press, 2014), pp. 59−69. 111 Ibid.
145 To sum up, Muslim women do not have to choose between their Muslim identity and their Australian identity; they can embrace both. Thus, identity can provide solidarity and strength when Muslim women translate their right to be heard into national and religious language. Indeed, one of the greatest challenges facing Muslim women in
Australia is having more space for their voices to be heard and the diversity of their experiences valued.112 The idea is that Muslim women in Australia have to build public awareness of who they are—their needs, interests, problems and aspirations.
4.2.2 The Challenges of Being a Muslim Woman among Stereotypes and Feminism Critiques
Most of the time, Muslim women have been a focal point of Australian public efforts to understand the Islamic faith. They have been a hot topic of conversation in the Western media for hundreds of years.113 Nevertheless, the images of Muslim women have often been unclear and distorted.114 The difference between Islam and the West has often focused on the status of women in the Muslim-majority world. The image of a Muslim woman in the media appears to many Australians as a stark contrast to the freedoms offered to women in democratic countries.115
The portrayal of Muslim women has largely been formed by negative media stereotypes; images that usually have little to do with real life, and may have been designed to attract more viewers, sell more products or gain support for someone’s political agenda.116 In addition, feminism has presented Muslim women with another
112 Krayem, Challenging Identities, p. 114. 113 Susan Carland, “Muslim women and the Australian media,” ABC Religion and Ethics, June 4, 2012, accessed June 2015,
146 challenge. From the perspective of protecting women’s rights and equality, Western feminists⎯whether they are Muslims or non-Muslims⎯persist in their attacks on
Islam.117
4.2.2.1 Persistent Stereotypes
This section begins by discussing the various stereotypes of Muslim women that have held sway in the Australian imagination, then it investigates the popular cultural view that the veil is oppressive for Muslim women and highlights the underlying patterns of power behind this constructed image of the ḥijāb. The second part of this section draws on feminist methods of using women’s experience as a base of knowledge. Many feminist writers have argued this position as demonstrated by Fatima Mernissi’s analysis of the ḥijāb, which is based on a personal reading of Islam.118
Prejudice against Islam in Australian society is associated with public attitude. Muslims are predominantly viewed as Arabs. Yet, Muslims in Australia belong to different cultures that trace their origins to 67 different countries, “making them one of the most ethnically diverse religious groups in the country”.119 Neither are all Arabs Muslims; nevertheless, the dominant image of Islam comes from the Middle East with descriptions of men in white dress with long beards and uneducated women with ḥijābs
troops, for example, to Afghanistan because they have interests in this country; See Aly, People Like Us, pp. 125−126. 117 Sherene H. Razak, Casting Out: The Eviction of Muslims from Western Law and Politics (Toronto: University of Toronto Press, 2008), p. 157; Wallach J. Scott, The Politics of the Veil (Princeton, NJ: Princeton University Press, 2007), pp. 161−163. 118 Katherine Bullock, Rethinking Muslim Women and the Veil: Challenging Historical & Modern Stereotypes (London: The International Institute of Islamic Thought, 2002), p. 136. 119 Bouma, Mosques and Muslim Settlement in Australia, p. 23.
147 and burkas. These unflattering portrayals come from television programs, newspapers and magazines, and ignore the diversity of Islamic practices among Muslim people.120
The media depicts Muslims and Islam as the “other” who needs to be managed or tolerated in Australia. Kevin Dunn claims the “social constructions of identity are given life through their articulation.”121 This means language such as “Islamic terrorism” and
“Muslim fanatics” used to describe Islam and Muslims can come to be the portrayal of all Muslims. It is essential to mention that these descriptions are gendered: dominant stereotypes portray men as local terrorists or extremists, whereas women are constructed as repressed ḥijāb wearers who need to be liberated from patriarchal oppression and violence. Increasingly, Muslim women are seen as representatives of the suspicious, forever foreign “terrorist other” in our midst.122 These Western perceptions also suggest
Muslims are intolerant of other religions and Western cultures.
Since the terrorist attacks in New York in 2001, Muslims in Australia have experienced alienation, racism and vilification. The racial stereotyping of all Muslims as Arabs and all Arabs as Muslims during the Second Gulf War (2003) led to a series of physical
120 Shahram Akbarzadeh and Bianca Smith, The Representations of Islam and Muslims in the Media: The Age and Herald Sun Newspapers (Melbourne: Monash University, 2005), p. 15. 121 Kevin Dunn, “Representations of Islam in the Politics of Mosque Development in Sydney,” Tijdschrit voor Economische en Sociale Geografie 92(3) (2001): 291−308. 122 “Before Sept. 11, Muslim women who wore head scarves in the United States were often viewed as vaguely exotic. The terrorist attacks abruptly changed that, transforming the head scarf, for many people, into a symbol of something dangerous, and marking the women who wear them as among the most obvious targets.”; John Blake, “Muslim Women Uncover Myths About Hijab,” CNN, August 19, 2009, accessed June 2015,
148 attacks, racial insults and negative stereotyping of Muslims in Australia.123 Stories of abuse were widespread: assaults on women wearing headscarves, bomb threats against mosques and Islamic centres, and verbal abuse of Muslim women and children in public. Dunn has analysed these events in terms of “racism” as “anti-Muslim” feeling.124 He suggests that Australia has an accumulated history of Islamophobia beginning with the Malay pearlers and Afghan cameleers who were seen as dirty and a danger to white women to the 1970s migrants from Turkey and Lebanon who were described as sexist and backward. Later constructions depict Arab Muslims as violent.125
The media plays a significant and predominant role in Australian society in shaping people’s opinions. There is also a nexus between international events and domestic issues in terms of how Muslims and Islam are represented. As Dunn claims, “in
Australia, local and national representations of Muslims are mutually reinforcing, and predominantly negative…there is an intertexuality between the local and national discourses, knitted together in a symbolic web.”126 For example, in the 1980s and
1990s, the media in Australia questioned the veiling of Muslim women and carried stories about the genital mutilation of girls in Africa. As a result, Dunn claims “Muslims are one of the groups that have suffered from a worrying degree of racist violence in
Australia,” which has led to a sense of vulnerability of Australian Muslims.127
123 Asmar, Christine, “The Arab-Australian Experience,” in Australia’s Gulf War, ed. Murray Goot and Rodney Tiffen (Melbourne: Melbourne University Press, 1992), pp. 57−82. 124 Kevin Dunn et al., “Constructing Racism in Australia,” Australian Journal of Social Issues 39(4) (2004): 409-430. Kevin Dunn, “Islam in Sydney: Contesting the Discourse of Absence,” Australian Geographer 35(3) (2004): 333−353. 125 Dunn, “Representations of Islam in the Politics of Mosque Development in Sydney.” 126 Ibid. 127 Ibid.
149 The theme of “gender,” mentioned earlier, contributes to the reproduction and recreation of negative stereotypes and misinformed understandings of Islam and
Muslims. The issue of “women in Islam” continues to make news in the media in complex ways. Muslim men are generally depicted as fanatics, extremists and terrorists from Middle Eastern backgrounds, women are depicted in various ways that may demonise Islam or generate sympathy for Muslims depending on the context of the story.
Muslim women often find themselves on the frontline against Western media campaigns. France’s war against the veil was pursued under the guise that the veil threatens cultural identity.128 The ḥijāb that marks a Muslim woman’s religious identity has been the subject of much discussion between Muslim and non-Muslim women and men alike.129 A significant number of Western feminist women in particular have questioned the use of the veil and argued it is oppressive. Many Muslim women describe their use of the veil as non-oppressive and empowering, a view that now seems to be “tolerated” or accepted by the broader community more generally. It is interesting to note the number of Western women converting to Islam is on the rise.130
128 Ibrahim Abu Moḥammad, The Woman Between two Civilisations (Cairo: Maktabat al-Kilani, 2007), p. 59. 129 Leila Ahmed, A Quiet Revolution: The Veil’s Resurgence from The Middle East to America (Yale: Yale university Press, 2011); Marnia Lazreg, Questioning the Veil: Open Letters to Muslim Women (Princeton: Princeton University Press, 2009); Joan Wallach Scott, The Politics of the Veil (Princeton: Princeton University Press, 2007); Fadwa El Guindi, Veil, Modesty, Privacy and Resistance (Oxford: Oxford International Publishers, 1999); Facing History and Ourselves, What do we do with a Difference? France and the Debate over Headscarves in Schools (Brookline: Facing History and Ourselves Foundation, 2008); Theodore Gabriel and Rabina Hannan, Islam and the Veil: Theoretical and Regional Contexts (London: Continuum International Publishing Group, 2011); Elizabeth Bucar, The Islamic Veil (Oxford: One World Publications, 2012); John R. Bowen, Can Islam be French: Pluralism and Pragmatism in a Secularist State (Princeton and Oxford: Princeton University Press, 2010). 130 “Despite family misgivings, more Australian women are turning to Islam … Susan Carland can trace her forebears to the First Fleet. But strangers tell her ‘go back to your own country’. ‘It's quite hilarious,’ says the 23-year-old youth worker, who has encountered this response from strangers since she donned a hijab (scarf) after converting to Islam in her late teens. ‘What country do you want me to go to?’ … The latest census figures showed a 40 per cent increase in Australian Muslims to more than 285,000 (1.5 per cent of the population) in five years. It is not known what proportion are converts. But the president of the
150 Despite the negative ramifications of reports from overseas associating Muslims with terrorism and violence, it is fair to mention that some Australian journalists and quality newspapers contribute to counter-constructions of Muslims and Islam at home. This means some print and television media are able to draw a distinction between Australian
Muslims and non-Australian Muslims; therefore, some articles distinguish between
“extremist” and “moderate” Muslims. Such articles emphasise the peacefulness of Islam and integration of law-abiding Australian Muslim citizens. Some news headlines disclose an effort by the media to contravene the negative stereotypes of Muslims and
Islam, and illustrate the Muslim community’s active role in calling for religious tolerance and unity in multicultural Australia.131
With this context in mind, one may conclude there are degrees of ignorance in the
Australian community concerning Muslims and Islam. The negative image of Islam and
Muslims portrayed in the media has had the greatest impact, but there are counter- voices in the society.132 It is essential that sensitive issues are investigated properly and
Islamic Council of Victoria, Yasser Soliman, says it appears to be more common among women”. See, Larry Schwartz, “When Conversion Leads to Confrontation,” The Age, December 22, 2002), accessed June 2015
151 represented faithfully. Professional and unbiased reporting can promote good public relations and informed debate about Islam and Muslims in Australia.
4.2.2.2 Feminism
In some Muslim circles, the word “feminism” raises a tension that immediately conjures images of dominating, angry, family-hating women. However, like other images⎯including the images of the oppressed woman that often comes to mind when one hears the word “Muslim”⎯this intuitive reaction is based on feminist allegations that Islam is a hostile and oppressive religion in regard to women, countering the popular Islamic rhetoric that associates the liberation of women with the coming of
Islam over 1,400 years ago.
To examine feminist critiques of Islam, it is important to summarise their arguments pointing to the oppression of Muslim women. This will be done by exploring the factors that led to the formation of “feminism” in the world. Thus, I will shed some light on the impact the interrelations of the philosophical, cultural and political legacy of old civilisation exert in the production of unequal gender relations. The next part of this section considers the classification and definitions of feminism. I have engaged in a process of deliberation on whether it is possible to find a common mind between
also focused on these tendencies; See Nancy B. Jackson, “Arab Americans: Middle East Conflicts hit Home,” in Images that Injure: Pictorial Stereotypes in the Media, ed. P. M. Lester (Westport, Connecticut: Praeger, 1996), pp. 63−69; Gul J. Jafri, and Afghan Women’s Organization, The Portrayal of Muslim Women in Canadian Mainstream Media: A Community Based Analysis (Canada: The Multiculturalism Program, Department of Canadian Heritage, 1998), pp. 1−52; Media Awareness Network, Anti-Islam in the Media: An Executive Summary of a Six-month Case Study of Five Top Canadian Newspapers October 20, 1997 - April 20, 1998 (Canada: Canadian Islamic Congress, 2002); Marie Parker-Jenkins, K. F. Haw, et al., Career, Culture and Closing Doors: The Experience of Muslim Women (Unpublished manuscript, 1998), pp. 1−13; Myfanwy Franks, “Crossing the Borders of Whiteness? White Muslim Women who Wear the Hijab in Britain Today,” Ethnic and Racial Studies 23(5) (2000): 917−929; Farzana Shain, The Schooling and Identity of Asian Girls (Stoke-on-Trent, UK & Sterling, USA: Trentham Books, 2003).
152 feminists from different ideological backgrounds. The discussion then turns to the challenges of feminism and their allegations in regard to Islamic law.
Centuries of theories and practices in ancient civilisations have defined what it is to be female. Positioned as inferior to men and differentiated from men not in kind but in degree, a woman was defined in terms of lack: she was less perfect, less divine, less rational, less moral and less capable of being appointed to decision-making positions.133
Describing the status of woman in Hindu civilisation, Anant Altekar in Position of
Women in Hindu Civilization provides an idea of the status of women in its broad spectrum from the ancient world:
Woman was placed in the fancy of society in a position of much absolute dependence upon men…the daughter was regarded as the root of all misery and source of unending trouble by the average household...134
In Athens, women were no better off than the Indian or Roman; Athenian women were always minors, subject to their father, brother or other male kin. Her consent in marriage was not generally thought to be necessary and “she was obliged to submit to the wishes of her parents, and receive from them her husband and her lord, even though he were stranger to her”.135
Aristotle was the first to provide a systematic “scientific” explanation for women’s imperfection. In his view, a woman was a misbegotten man; she was not only physically weaker, but did not possess the same faculties of deliberation.136 Professor of philosophy Nancy Tuana argues that Aristotle distinguished women from slaves, though
133 Nancy Tuana, The Less Noble Sex: Scientific, Religions and Philosophical Conceptions of Woman’s Nature (Bloomington and Indianapolis: Indiana University Press, 1993), p. xi. 134 Anant S. Altekar, The Position of Women in Hindu Civilization (Delhi: Motilal Banarsidass, 1959), pp. 1−8. 135 Jamal A. Badawi, The Status of Women in Islam (Plainfield: Islamkotob, 1980), p. 2; Emory A. Allen, The History of Civilizations vol. 3 (Ohio: General Publishing Home, 1889), p. 444. 136 Tuana, The Less Noble Sex, p. xi.
153 he presented the relationship of husband and wife as that of the “ruler and the ruled,” writing, for instance, that “the courage of a man is shown in commanding, of a woman in obeying.”137 Aristotle’s views later influenced Western monotheistic religious discourse. Aquinas’ theology is an example of the reinforcement of woman’s subordination to man as conceived by Aristotle.138 Aristotle also influenced European philosophies, like Rousseau, Hobbes and Locke, whose egalitarian social politics did not include equality of men and women.
The Christian portrayal of woman, as less perfect than man, has had a strong influence on Western culture. Tuana illustrates such theoretical defamation of female conceptual and ethical creativity when she writes, “Theorists interpreted women’s inferior moral and rational capacities as precluding her ability to govern herself or society wisely; the conclusion was that a woman must always be under a man’s control.”139 Thus, women were subject to control by her father, husband, son or other male relatives, and for the most part her role was limited to that of wife and mother.
Another factor in the subjugation of women in the medieval period was the teachings of
Judaism and Christianity derived from patriarchal interpretations of the Bible. The biblical story of creation says God created Adam first then created Eve from Adam’s rib, which most theologians saw as a sign of women’s inferiority: the fact woman was created second was seen as a significant sign of God giving primacy to men.140 This view was fortified by the story of original sin, in which Eve submitted to the temptation
137 Ibid, p. 21. 138 Ibid. 139 Ibid, p. xi. 140 Kristen E. Kvam at al., ed., Eve and Adam: Jewish, Christian and Muslim Readings on Genesis and Gender (Indiana: Indiana University Press, 1999), p. 4.
154 of the snake, which was considered to be the devil in disguise, and persuaded Adam to eat from the forbidden fruit, which led to their exile from paradise.141
Tertullian, a famous second-century Christian thinker accused women of
“destroying…God’s image in man” and being “a devil’s gateway,” meaning that through their alluring appearance women tempted men to sin.142 Thus, all the blame was placed on women who were supposed to pay off Eve’s sin by exhibiting virtues like obedience to their husbands, as indicated in the Bible:
Women…should learn by being quiet and paying attention. They should be silent and not be allowed to teach or tell men what to do. After all, Adam was created before Eve and the man Adam wasn’t the one who was fooled. It was the woman Eve who was completely fooled and sinned. But women will be saved by having children, if they stay faithful, loving, holy, and modest.143
While this chronicle of events illustrates the inferior position of women during the classical and medieval periods in Europe, the position of women in Arabic traditions in the pre-Islamic era was no better off than other civilizations. “Patriarchalism occupied the greatest importance in Arabic habits. A male child, in their points of view, has a status the female does not have”.144 Some practices of the pre-Islamic era, which is known as the ignorance era (jahiliyyah), were: Female infants were buried alive for fear of poverty or shame; women had no say in marriage or divorce and were treated like a material possession; and women were not allowed to inherit property. In fact, some tribes were so disgusted with the birth of a female child that they considered her a great shame. Parents of a female child had two options: accept her with shame and
141 Ibid, p. 131. 142 Ibid. 143 Timothy 2:11−15. 144 Abu Muhammad, The Woman Between Two Civilisations (Cairo: Maktabt al-Kaylani, 2007), p. 16.
155 humiliation or bury her alive. This understanding was predominant in the standard values about women at that time.
With the revelation of the Qurʾan a new era started, carrying within it signs of a radical change to the predominant traditions that humiliated woman, despised her humanity and insulted her dignity.145 The Qurʾan elevated the role of women in society by giving them spiritual, social, economic and political status.
Spiritually, the Qurʾan states women are equal with men in the sight of God in terms of her rights and responsibilities, and righteousness is the only criterion for judgement:
“Whoever works righteousness, man or woman, and has faith, verily to him will We give a new life that is good and pure, and We will bestow on such their reward according to their actions.”146 Thus, sex, race, colour or wealth do not make a person superior. Also, according to the Qurʾan, the woman is not blamed for Adam’s mistake, they both shared culpability in their disobedience to God, both repented and both were forgiven.147 In fact, in one verse, Adam is specifically blamed.148 In terms of religious obligations, such as daily prayers, fasting, giving charity and pilgrimage, women are not different from men. In some cases, women have certain advantages over men on account of their physiological and psychological differences.149
145 Ibid, p. 17. 146 Qurʾan 16:97, 4:124 and 3:195. 147 Qurʾan 2:36 and 7:20−24. 148 Qurʾan 20:121. 149 Women are exempt from the daily prayers and fasting during menstruation and for 40 days after childbirth. They are also exempt from fasting during pregnancy and when breastfeeding if there is any threat to her or her baby’s health. If the missed fasting is obligatory, which is during the month of Ramadan, she can make up the missed days whenever she can; she does not have to make up for the prayers missed. Although women can go into the mosque and attend prayers, the Friday congregational prayer is optional for women while it is mandatory for men.
156 In terms of social rights, the Qurʾan forbade female infanticide, which was practised among certain Arabian tribes. The Qurʾan considers it a crime like any other murder.150
Also, Islam grants social rights to women: the right to be educated, as the Prophet
(pbuh) stated, “seeking knowledge is mandatory for every Muslim”.151 The right to decide about her marriage:152 she has the right to decide whom she will marry and to divorce her husband.153 Marriage in Islam is based on love and mercy; the Qurʾan clearly indicates, besides perpetuating human life, marriage is a sharing between the two halves of society: “And among His signs is this: That He created mates for you from yourselves that you may find rest, peace of mind in them, and He ordained between you love and mercy. Lo, herein indeed are signs for people who reflect.”154 Moreover, the
Qurʾan has a special recommendation for the good treatment of mothers, considering kindness to parents next to the worship of God.155
In terms of economic rights, Islam decrees to women the rights of independent ownership and inheritance.156 According to Islamic law, a woman’s right to her money, real estate or other properties is fully acknowledged. She retains full rights to buy, sell, mortgage or lease property.157 Since a man in Islamic law is fully responsible for the maintenance of his wife, children and, in some cases, needy relatives, especially female
150 Qurʾan 81:8−9 and 16:58−59. 151 Narrated in Al-Bayhaqi and Ibn-Majah, quoted in M. S. Afifi, Al-Mar'ah Wa Huququha Fil-Islam (Cairo: Maktabat Al-Nahdhah, 1988), p. 71. 152 Harris Zafar, Demystifying Islam: Tackling the Tough Questions (USA: Rowman & Littlefield, 1979), p. 129; Ekaterina Yahyaoui Krivenko, Women, Islam and International Law: Within the Context of the Convention on the Elimination of all Forms of Discrimination Against Women (Geneva: Martinus Nijhoff, 2009), p. 125. 153 Qurʾan 2:229, 2:231 and 33:49. 154 Qurʾan 30: 21; Prophet Muhammed (pbuh) said “the best of you is the best to his wives and I am the best to my wives.” See, Imām Ḥāfiz Abu ʿEisā Moḥammad Al-Tirmidhi, Jāmiʿ Al-Tirmidhi, vol. 6, Kitāb al-Manāqib, trans. Abu Khallyl (Riyadh: Darussalam, 2007), hadith no. 3895, p. 502. 155 Qurʾan 17:23, 29:8, 31:14 and 46:15. 156 Qurʾan 4:7. 157 Hammudah ʿAbd Al-Ati, Islam in Focus (Plainfield: The American Trust Publications, 1977); Mustafa Al Sibaʿi, Al-Alarʿah Baynal fiqh Walqanoon (Halab, Syria: Al-Maktabah Al-Arabiah, 1966); Jamal Badawi, The Status of Women in Islam, accessed October 2013,
157 ones, a woman’s share in inheritance is equal to one-half of the man’s share, with no implication she is worth half a man.158 Furthermore, there are some cases when the share of the female inheritor is equal to the share of the male inheritor and some cases when the share is greater.159 This brief examination of inheritance laws within the overall framework of Islamic law reveals not only justice, but also an abundance of compassion for women.
In regard to political rights, Islam gave women the right to vote and participate in public affairs and law-making: “Both men and women are allowed and should participate in public affairs in the interest of society.”160 Thus, through the revelation of the Qurʾan and Sunnah of the Prophet, Islam liberated women from unacceptable conditions that prevailed in the tribal society of pre-Islamic Arabia and granted women⎯in
158 Qurʾan 4:7. 159 Qurʾan 4:11−12; It is known that Islam has freed women from financial responsibilities in the household without compromising her rights to possess and mange her wealth. In Islam, gender does not determine or modify the share of each inheritor. Rather, it is determined by the closeness of the inheritors to the deceased, regardless of their gender. Also, this part of the verse mentioned is not a general rule that applies to every male and female inheritor. Rather, it talks only about how to work out the share of the children of the deceased and not all the inheritors. The shares of the remaining inheritors are decided later in this verse and other verses. Here some examples where the female inheritor has the same and sometimes more than the male: 1) If the inheritors consist of the children of the deceased and his or her parents the shares will be as follows: The mother of the deceased will get a sixth, and the father of the deceased will get a sixth; 2) If the inheritors consist of a maternal brother and a maternal sister, the shares will be as follows: The maternal brother gets a sixth, and the maternal sister gets a sixth; 3) If the inheritors consist of a number of maternal brothers and sisters (more than two sisters), they will all get an equal share of one-third of the inheritance; 4) If the wife died and left behind her husband and one daughter, the daughter will get half the inheritance and the husband will only get one quarter (in other words, the female gets more than the male); 5) If a man died and left behind a wife, two daughters and a full brother, the shares will be as follows: The wife gets an eighth, the two daughters get two-thirds and the full brother will get what is left (in other words, the daughters will get more than their uncle). 160 Qurʾan 58:14, 60:10-12 and 9:71: “Both men and women are allowed and should participate in public affairs in the interest of society.” Both in the Qur’an and in Islamic history are examples of women who participated in serious discussions and argued even with the Prophet and caliphs. During the caliphate of ʿUmar Ibn al-Khattab, a woman argued with him in the mosque, proved her point and caused him to declare in the presence of people: “a woman is right and ʿUmar is wrong”. During ʿUmar’s sermon against the practice of settling large sums as mehr (dowry), a woman from the back of the mosque objected, giving a Qurʾanic reference. She said none has the right to introduce this: “When Allah has not put restrictions on the dowry (Mehr) then who are you to put restrictions to it.” In political terminology, the women’s objection was to the breaking of the law of the constitution, as the Qur’an is the constitution for Muslims.
158 general⎯rights and status in society. But, in modern times the status of women has been challenged, hence the birth of the feminist movements.
The ideals of the women’s movements and the concept of feminism are interchangeable.161 It is common to discuss women’s movements in terms of three waves: the first wave of feminism constituted during the eighteenth century and the beginning of the nineteenth century by the suffragette movement that sought political and property rights for women.162 Western women could not vote, be elected or attend any political assembly.163 In this context, one might propose that the French Revolution
(1789−1799) marked a crucial historical moment for women because, at about that time women began to question their position in relation to men and demand more rights.
When women’s rights activists realised that marginalisation severely disadvantaged reformatory efforts, they became determined to rectify this injustice. Following this argument, women and men are, at least in legal terms, equal in all respects; therefore, to deny women the vote was to deny them full citizenship.164 Thus, the first wave of feminism highlighted women’s innate moral capacity, which developed simultaneously in Europe and the United States and shared the modern Western political framework of enlightenment and liberalism, anchored in universalism. From this point of view, patriarchy was understood as a fiasco that was both non-rational and non-profitable and thereby illegitimate.165
161 Chris Barker, The Sage Dictionary of Cultural Studies (London, California, New Delhi: Sage Publications, 2004), p. 208. 162 Ibid. 163 Jennifer N. Heuer, “Family Bonds and Female Citizenship: Émigré Women under the Directory,” in Taking Liberties: Problems of a New Order from the French Revolution to Napoleon, ed. Howard G. Brown and Judith A. Miller (Manchester: Manchester University, 2002), p. 54. 164 Karlyn Kohrs Campbell, Man Cannot Speak for Her: Key Texts of the Early Feminists (Westport, CT: Praeger Paperback, 1989), p. 14. 165 Ibid.
159 One of the earliest liberal first-wave feminist actions in Europe was the publication of
Mary Wollstonecraft’s A Vindication of the Rights of Women in 1772. This book gave impetus to the women’s movement because it gave the idea that women should receive the same treatment as men in education, work opportunities and politics, and the same moral standards should be applied to both sexes.166
This first wave of feminism had an enormous effect on the movement for women’s rights to vote. New Zealand gave women the right to vote in 1893, followed shortly after by South Australia in 1895, Western Australia in 1899, and New South Wales and the Australian Commonwealth in 1902.167 American women did not gain the right to vote until 1920, when the 19th amendment was endorsed.168 British women were given the right to vote in 1928 and Switzerland did not grant women’s suffrage until 1971.169
One of the central controversies of feminists in this century was the emphasis on inequality through gender, such that women were the subordinate sex in many dimensions of social, political and economic life.170 The goal of this wave was to open up opportunities for women, with a focus on suffrage.
The second wave of feminism refers mostly to the period of the women’s liberation movement in the late 1960s and early 1970s, and it extends through to the 1990s. This wave coincided with the massive anti-Vietnam War demonstrations and Civil Rights movement in America, and the growing self-consciousness of a variety of minority groups
166 Mary Wollstonecraft, A Vindication of the Rights of Women (New York: Cosimo, 2008), pp. 123−129. 167 Belinda Brassil and Dimity Brassil, Excel HSC Legal Studies (NSW: Pascal Press, 2001), p. 33, accessed June 2015,
160 around the world.171 In this phase, a wider range of social issues was engaged, such as male violence, representation of women, exclusion of women from positions of economic and political power, equality of pay and abortion rights.172 Also, sexuality and reproductive rights were dominant issues, and much of the movement’s energy was focused on passing the
Equal Rights Amendment to the American Constitution guaranteeing social equality regardless of sex.173 Many feminists of this period were inspired by the ideas of writers such as Kate Millett (b.1934), Simone De Beauvoir (d.1986) and Betty Friedan
(d.2006), whose major publications encouraged women to understand aspects of their personal lives as deeply politicised and reflective of a sexiest structure of power.174
Millett insisted on women’s right to their own bodies and a sexuality of their own⎯disconnected from the obligations of marriage and motherhood. Her book, Sexual
Politics, lay the foundations for the development of radical feminism known as the second wave. The second wave was increasingly theoretical, based on a fusion of neo-
Marxism and psycho-analytic theory, and began to associate the subjugation of women with broader critiques of patriarchy, capitalism, normative heterosexuality and the woman’s role as wife and mother.175
In the Muslim-majority countries context, identity feminism took, in the beginning, a similar direction to Western feminism’s stance, as expressed by Fatima Mernissi, Leila
Ahmad and Nawal el-Saadawi in their writings.176 While the term “Muslim feminist”
171 Martha Rampton, “The Three Waves of Feminism,” Pacific University Centre for Gender Equity, October 23, 2014, accessed January 2015,
161 may sound paradoxical to many as a result of the media’s tendency to portray Muslim women as victims, some Muslim feminists see the term as the focus of their identity.
The Muslim feminist view is really more in keeping with the feminists of the second wave who have since been branded as “essentialist” because they saw their femininity as central to their identity.177 For Muslim feminists, feminism is the umbrella term for all those who advocate a different discourse outside the purview of the veiled Muslim woman.178 It is probably not surprising to find that many Muslim feminists who consider themselves more traditional in their interpretation of Islam tend to follow the path of their secular sisters. This is often due to the discourse concerning women’s rights and Islam, and the position of women in Muslim-majority societies as well as the stereotypical image of Muslim women in non Muslim-majority countries.
For example, the feminist Moroccan scholar Fatima Mernissi, considered a foremother of Muslim feminism, was one of the first Muslim women to write about using the resources within the Islamic tradition to bring about change for contemporary women in
Addison-Wesley Publishing, 1994). Leila Ahmed has described an historical mistrust of feminism, which she attributes to the development of colonial feminists in the Middle East. She has described how colonials tried to import an identical feminism to that which they were trying to suppress in Britain as a means of disrupting Muslim societies in Egypt. Therefore, the outcome of the history of colonial feminism in the Middle East has been the connection of feminism with imperialism by many Muslims. It should not be a surprise that most Muslim feminists derive their mandate not from the Qur’an, but from the conviction that Islam is a patriarchal and misogynist religion. For instance, Nawal el-Saadawi, the well-known Egyptian novelist, wrote that the Qurʾan advocates stoning to death for adultery, which it does not; in fact, the Qur’an does not prescribe stoning in any context; See, Haddad et al., Muslim Women in America. Stoning for adultery is not mentioned in the Qurʾan. The practice was common in the Middle East because it is the prescribed punishment in both the Jewish Torah and Christian Bible in Leviticus 20:10 and Deuteronomy 22:22. The Qurʾan is clear on the punishment of both the man and woman, but made the conditions for applying the punishment very difficult. It is very difficult to prove the case of adultery; also, it is difficult to have unanimous agreement on the occurrence of an act that results in flogging: “The woman and the man guilty of adultery or fornication, flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment” (Qurʾan 24:2). The Islamic punishment for accusing a woman of adultery without proof is almost as bad as the punishment for the crime: “And those who launch a charge against chaste women, and produce not four witnesses [to support their allegations], flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors” (Qurʾan 24:4). 177 Myfanwy Franks, “Islamic Feminist Strategies in a Liberal Democracy: How Feminist are they?” Comparative Islamic Studies 1(2) (2005): pp. 197−224. 178 Haddad et al., Muslim Women in America, p. 153.
162 Muslim-majority countries. She tackled some issues like possible interactions between early interpreters, their cultural environment and social structures in several of her books, particularly Beyond the Veil: Male-Female Dynamics in Modern Society and The
Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam.179
Mernissi analysed questions that may be debatable or challengeable, such as the relationship to scriptural sources, which remain relevant on the issue of women’s status and the Muslim psyche.180 She became convinced it was crucial for women to participate in creating Islamic knowledge to meet the demands of the twenty-first century through independent legal reasoning. Her understanding of ijtihād is about seeking justice, ending discrimination and promoting reform in shedding light on possible converging views about socio-political and cultural issues.181 Nevertheless, the personal trauma Mernissi experienced growing up in a harem is never absent from her writings.182 In both her books, Mernissi argues that the veil is a symbol of unjust male authority over women and a sign of oppression of men over women. During World War
II, she grew up in a harem that was guarded by a man at the gate and from whom she had to ask his permission to leave.183 She recalls the painful way she was taught the
Qurʾan by her male teacher.184 As a result of her personal experience, she makes the mistake of equating twentieth-century Moroccan society, and by extension, all Muslim- majority countries, with seventh-century Arabian society. Rather than exploring and endeavouring her ideas in the way of understanding what the divine texts refer to and which issues are involved with the cultural environment. She states:
179 Fatima Mernissi, Beyond the Veil: Male-Female Dynamics in Modern Society (Bloomington, Ind.: Indiana University Press, 1987); Mernissi, The Veil and the Male Elite. 180 Ramadan, Radical Reform, pp. 340−341. 181 Ibid, p. 209. 182 Bullock, Rethinking Muslim Women and the Veil, p. 136. 183 Mernissi, Dreams of Trespass, p. 21. 184 Fatima Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam, trans. Mary Jo Lakeland (Reading, Mass: Addison-Wesley Publishing, 1991), p. ix.
163 The Prophet’s religious vision, his personal experiences, and the structure of society he was reacting against all contributed to the form Islamic society took. The assumptions behind the Muslim social structure⎯Male dominance, the fear of fitna, the need for sexual satisfaction, the need for men to love Allah above all else⎯were embodied in specific laws which have regulated male-female relations in Muslim countries for fourteen centuries.185
Besides this ahistorical view of Islam, there are two are important criticisms of
Mernissi’s writings: firstly, she fails to distinguish between culture and religion. She simply accepts most of the cultural practices in Muslim-majority countries as truly
Islamic ones without any interrogation. Secondly, she fails to understand the authentic meaning and understanding of the head covering in Islam and the difference between the veil (niqāb) and head covering (ḥijāb) as stated in the Qurʾan.
The question of ḥijāb in the Qurʾan stems from the focus on modesty, which is a requirement for both men and women. They are both enjoined to cover certain portions of their bodies to facilitate spiritual and social development in a balanced manner.186
There are three verses in the Qurʾan in which Almighty God provides guidelines on the
ḥijāb, dress code and principles for both men and women:
Say to the believing men that they should lower their gaze and guard their modesty: that will make for greater purity for them: and Allah is well acquainted with all that they do. And say to the believing women that they should lower their gaze and guard their modesty; that they should not display their beauty and ornaments except what (ordinarily) appear thereof; that they should draw their veils (khimars) over their bosoms and not display their beauty except to their husbands, their fathers, their husbands' fathers, their sons, their husbands' sons, their brothers, or their brothers'
185 Mernissi, Beyond the Veil, p. 82. 186 Muslims believe the message of the Qurʾan is universal and timeless, because the Qurʾan is God’s guidance and commandments to humankind; See, Mehmet Ozalp, 101 Questions You Asked About Islam (Sydney: Brandel & Schlesinger, 2004), pp. 255−257. One of the female group that Myfanwy Franks interviewed for the sake of her research, explained the reason she wears ḥijāb: “We understand our purpose to worship our creator and wearing the hijab is one of the many acts of worship, which we will be rewarded for in our next life inshallah…so wearing the hijab is about acceptance that Allah is our creator and thus abiding by his laws, because if we accept him as our Almighty Creator, then we should follow his laws in obedience, and accept our accountability if we sin but ask forgiveness and he our Creator will forgive.” Myfanwy Franks, “Islamic Feminist Strategies in a Liberal Democracy,” pp. 197−224.
164 sons, or their sisters' sons, or their women…And O ye Believers! Turn ye all together towards Allah that ye may attain Bliss.187
Some women choose to cover their face as an expression of greater piety. Cultural customs are also the cause of such a practice in countries such as Iran, Afghanistan and
Saudi Arabia where this practice is more prevalent. It is true the verses widely consider mandating the ḥijāb in explaining it is for women’s protection. But it also explains the prescribed dress code is designed so Muslim women will be “known”. This indicates the Islamic dress code is introduced as a means of Muslim identity; thus, wearing a
ḥijāb for a Muslim woman is not coercion, but about choosing an identity, and expressing piety and modesty through their mode of dress. Thus, ḥijāb is a symbol of religion that treats women as persons, rather than sex objects.188 This is the exact opposite conclusion to a common feminist argument that the ḥijāb is a symbol of oppression.189
One can find a similar idea to ḥijāb in the case of Judaism and Christianity. For example, the apostle Paul chastises the Corinthian women for not covering their heads when praying and prophesying:
… every woman praying or prophesying with her head uncovered disgraces her head, for it is the same as if she were shaven. For if a woman is not covered, let her be shaven. But if it is a disgrace for a woman to have her hair cut off or her head shaved, let her cover her head. For a man indeed ought not to cover his head, forasmuch as he is the image and glory of God: but the woman is the glory of the man. For the man is not of the woman: but the woman of the man. Neither was the man created for the woman; but the woman for the man. For this cause ought the woman to have power on her head because of the angels.190
187 Qur’an 24:30−31 and 33:59. 188 Bullock, Rethinking Muslim Women and the Veil, p. 3. 189 Hilal Elver, The Headscarf Controversy: Secularism and Freedom of Religion (Oxford, New York: Oxford University Press, 2012), pp. 160-161. 190 The First Epistle to the Corinthians, chapter 11, verses 3−10.
165 Right up until the 1960s, it was obligatory for Catholic women and many Protestant women to cover their heads in church.
The third phase of feminism began in the mid-1990s and was inspired by post-colonial and post-modern thinking. In this phase, many concepts have been undermined, including the notions of “universal womanhood,” body, gender and sexuality. An aspect of third wave feminism that confounds the mothers of the earlier feminist movement is the readoption by young feminists of the very lipstick, high heels and low cut necklines the first two phases of the movement identified with male oppression.191 The feminists of the third wave have moved onto the public stage as strong and empowered, avoiding victimised mind-sets and defining feminine beauty for themselves as subjects, not as objects of patriarchy.192 This is in keeping with the third wave’s celebration of ambiguity and a refusal to identify themselves as “feminists” at all.193 They also recognise the different aspirations of women living in diverse societies around the world.
Among third-wave feminists are women who call themselves “Islamic feminist,” as feminist Margot Badran of Oxford University has defined them, “a discourse of gender equality and social justice that derives its understanding and mandate from the Qur’an and seeks the practice of rights and justice for all human beings in the totality of their existence across the public-private continuum.”194
These Muslim feminists are engaged in a liberation movement through Islamic teaching and promote “Islamic feminism”. They are striving for recognition of their status,
191 Rampton, “The Three Waves of Feminism.” 192 Ibid. 193 Ibid. 194 Margot Badran, Feminists, Islam and Nation: Gender and the Making of Modern Egypt (Princeton, N.J.: Princeton University Press, 1995, p. 207.
166 equality and the right to work and learn, but at the same time they are not neglecting their faith.195 The idea of Islamic feminism, though specifically meant to provide the
Islamic alternative to the modern feminism discourse, tends to focus more on the emancipation and empowerment of women. This implies a refutable presumption that women in Islam are subjugated and considered second-class citizens.196 Yet, to believe that nothing in the message of Islam justifies discrimination against women is one thing, but to justify it is another.
Islamic feminists scholars challenge patriarchal and other feminists’ assumptions about
Islam through scholarly writings, public advocacy and independent reasoning
(ijtihād).197 One of the pioneers in reinterpreting verses of the Qurʾan dealing with women is Pakistani-American scholar Riffat Hassan. She recognises that most Muslims simply find it obvious that woman are unequal to men and have never been challenged to reconsider that supposition by Qurʾanic interpretation. She bases her argument on three passages in the Qurʾan that she believes have been incorrectly interpreted: (1) that
God’s primary creation is man, and woman came from man’s rib—Hassan challenges this interpretation by saying man and woman are created from one soul and the rib story has no Qurʾanic basis: “It is He Who hath produced you from a single person, here is a place of sojourn and a place of departure, We detail Our signs for people who understand”;198 (2) that woman is primarily responsible for the fall from heaven—she challenges this assumption in maintaining that Adam and Eve were equally responsible;199 and (3) that not only was woman created from man, but also her
195 Ramadan, Western Muslims and the Future of Islam, p.142. 196 Zaleha Kamaruddin, Abdul Haseeb Ansari and Umar A. Oseni, “Equality Clause of Modern Constitutions, Women and Islamic Law,” Journal of Islamic Law Review 8(1) (2012): pp. 33−63. 197 Linking independent reasoning (ijtihād) to personal responsibility is an important leadership task for Islamic feminists. 198 Qurʾan 6:98, 31:28. 199 Qurʾan 2:36, 7:20−24.
167 existence is for man—she challenges this assumption by saying man and woman were created to be companions to each other and woman was not made for service to her husband, but they have complementary roles.200
Another Islamic feminist is American scholar Amina Wadud. Her widely-read Qur’an and Woman argues strongly for the importance of women becoming directly involved in what she calls the “crucial strategy of identity development,” meaning an alternative exegesis of the Qurʾan.201 While Wadud challenges men who are engaged in the exegesis of the Qurʾan, she confesses that women have traditionally been voiceless in the task of tafsir (Qurʾan interpretation), which has left a big gap in their knowledge and understanding of Islam. To close this gap, she argues for a new approach employing the principle of ijtihād.202 Continual reinterpretation of the Qurʾan sustains, according to her, the integrity of Islamic views especially concerning “women”.203 Although Wadud understands such a task will not be easy, as it must include the contextual interpretation of the Qurʾan, she highlights the importance of ijtihād in her quest for human rights.
She maintains that ijtihād is intrinsic to a fundamental and constant rethinking of the
Qurʾan and Sunnah.204
Asma Barlas, a Pakistani scholar of Ithaca College, has taken up the challenges raised by Amina Wadud in her “Believing Women” in Islam: Understanding Patriarchal
Interpretations of the Qurʾan, which covers the scriptural basis of sexual equality in
200 Riffat Hassan, “The Role and The Responsibilities of a Muslim Woman in the Universe,” Al-Itehad (Idianapolis) 13(3) (October/November 1976): 1−4; Riffat Hassan, Women’s and Men’s Liberation: Testimonies of Spirit (New York: Greenwood Press, 1991); Riffat Hassan, “Human Rights in the Qurʾanic Perspective,” in Windows of Faith, Muslim Women Scholar-Activists in North America, ed. Gisela Webb (Syracuse, N.Y.: Syracuse University Press, 2000), pp. 241−248. 201 Amina Wadud, Qur’an and Woman (Kuala Lumpur: Fajar Bakti, 1992), pp. 94−95. 202 Amina Wadud, “Alternative Qur’anic Interpretation and the Status of Muslim Women,” in Windows of Faith: Muslim Women Scholar-Activists in North America, ed. Gisela Webb (Syracuse, N.Y.: Syracuse University Press, 2000), p. 20. 203 Ibid. 204 Ibid.
168 Islam.205 While Barlas refutes the notion that Islam is a patriarchal religion, she borrows the definition of patriarchy from her colleague Zillah Eisenstein, who defines patriarchy as a politics of sexual differentiation that privileges males by “transforming biological sex into politicized gender, which prioritizes the male while making the woman different (unequal), less than, or the ‘Other’”.206 Acknowledging that the scripture was revealed in the context of traditional patriarchy, her approach is to discover if the text supports this kind of patriarchy. She comes to a number of conclusions about the
Qurʾan: (1) while the Qurʾan addresses patriarchy, it does not condone it; (2) it does not see men as ontologically superior to women because God created humans from a single self; and (3) while the Qurʾan makes distinctions between men and women with respect to some particular issues, it does not establish them as unequal.207 Therefore, Barlas refers the challenges of patriarchal interpretation to the male interpreters, who sometimes are biased and partial in their interpretations because of the influence of the cultural context on the reading. Thus, she encourages female scholars to become exegetes who can perform ijtihād and be involved in the interpretation of the Qurʾan, and thus provide a female point of view.
From the intense discussion and multifaceted positions put forward by most scholars, there seems to be distinction between Western and Muslim feminists. Nevertheless, it may be possible to discover a connection between all feminists, which is the encompassing of differences that have until now not generally been admitted under the feminist umbrella. By using Parvin Paidar’s definition of feminism as “aiming to
205 Asma Barlas, “Believing Women” in Islam: Understanding Patriarchal Interpretations of the Qur’an (Austin: University of Texas Press, 2002), p. 27. 206 Zillah Eisenstein, Feminism and Sexual Equality: Crisis in Liberal America (New York: Monthly Review Press, 1984), p. 90. 207 Barlas, “Believing Women” in Islam, p. 12.
169 increase women’s rights, opportunities and choices within any ideology or context,”208 one can see clearly that the first and second waves of feminists challenged the patriarchal state and men’s cultural hegemony. In doing so, feminists promoted division between the sexes. For example, Maryam Jameelah in Islam and Western Society, wrote that feminists “demand the abolition of the institution of marriage, home and family, assert complete female sexual freedom and that the upbringing of children should be public responsibility.”209 But their efforts have often fallen into the trap of embracing some of same attitudes against which they struggled.210 However, Muslims acknowledge natural disposition, which is the fitrah, as inherently good, the remembrance of God is the only necessary sacrament, and the Qurʾan and Sunnah are the principal sources of Islamic law. Thus, it is mistaken to confuse an Islamic principle with the way it has been expressed in a given culture.211 Nonetheless, if one’s reference is to be the authentic sources of the teachings of Islam, then it is necessary to study and question the readings produced by classical scholars to discover if there is a possibility for scope of interpretation that the new context may need.212
Muslim feminists during the third wave have continued the struggle for recognition of difference and created new discourses about multiplicity based on the Qurʾan and
ḥadith. They have decided it is time to deviate from Orientalist arguments and ill- informed accounts that see Islam as the problem. Muslim feminists, rather than turning from Islam as an oppressor, are turning to Islam as a means of obtaining their Islamic
208 Parvin Paidar, Women in the Political Process in Twentieth Century Iran (Cambridge: Cambridge University Press, 1995), p. xi. 209 Maryam Jameelah, Islam and Western Society: A Refutation of the Modern Way of Life (Delhi: Adam Publishers and Distributers, 1996), p. 5. 210 In February 2005, an Australian trade union urged Toyota to provide female staff with 12 days’ annual menstrual leave to accommodate those who suffer seriously during their monthly cycle. In response to this news, the internet discussion under this topic was a defeat of feminism because women were admitting they were different from men, perhaps even physically weaker. 211 Ramadan, Western Muslims and the Future of Islam, p. 139. 212 Ibid, p. 140.
170 rights over customary law, which is integral to Islamic teachings. Islamic feminism is only needed when Islam is not being implemented properly and when Muslims do not follow its authentic teachings, which includes giving women their prescribed rights and status in society. If they did, there would be no need for feminism.
4.3 Conclusion
I have outlined in this chapter that identity can be an empowering tool for Muslim women who reside in the West. In this context, Australian Muslim women define identity as an aspect of self-determination and self-definition. Therefore, they do not have to choose between their Muslim identity and their Australian identity, they can embrace both. Thus, identity can provide solidarity and strength when Muslim women translate their rights to be heard into national and religious language. The rights of
Muslim women require their voices to be heard, both within the community and also within the wider Australian community. Consequently, new generations of Australian
Muslim women are strong participants in the process of the re-affirmation of Muslim identity. In contrast to the socio-geographical identities of the first generation of feminists, rising generations construct multiple socio-cultural identities through the adoption of cultural features both from their Muslim communities and the wider society.213 Muslim women are increasingly discussing their multiple identities through the affirmation of the authentic teaching of Islam, which can become a liberating strategy for cherishing an environment for general debates.
It is clear there are considerable degrees of ignorance in the Australian community about Muslims and Islam. The negative image of Islam and Muslims portrayed in the media, especially after September 11, has left behind a negative impression in
213 Claire Dwyer, “Negotiating Diasporic Identities: Young British South Asian Muslim Women,” Women’s Studies International Forum 23(4) (2000): 437.
171 Australian society and fostered a repugnance of Islam among non-Muslims. To avoid the adverse effects of Islamophobia in Australian society, it is essential that news on sensitive issues be investigated carefully and represented accurately so the fabric of
Australia’s generally harmonious multi-cultural society is not undermined.
Young Muslim women born in Australia oppose Islamophobia and stereotypes, but also disagree with some of the cultural interpretations of their parents’ teachings. From positions of knowledge, there is a rising generation of Muslim women who are creating a space in which to claim their rights and challenge patriarchal interpretations of Islam.
Accordingly, women are becoming the leaders of change, not necessarily through the rejection of Islamic structures, but through a re-animation of the sources of their faith in their hearts and societies. It is clear there are convincing Islamic arguments from the sources of Islam, as mentioned earlier in this chapter, against most misogynist practices of the Muslim world. Although it is very important to clarify the oppression faced by
Muslim women is a product of culture rather than religion, one may acknowledge a considerable portion of this misogyny is perpetrated in Islam’s name.
Muslim women leaders have to set a programme of action by which they can make some efforts to dismantle these cultural practices. To achieve that end, the programme must first follow the proper and authentic principles of Sharīʿah, and second, it must stress the Qurʾanic foundation for the demand of women and actively encourage female
Muslims scholars to engage in the process of ijtihād. To implement a real change, this suggested programme of action is based on the fact Muslim scholars strive to follow the principles and values of Islam based on maṣlaḥa and maqāṣid al-Sharīʿah. For example, to obtain ijtihād on a specific matter, it requires normally the examination of the text based on ʿillah. Therefore, the re-examination of the text on contemporary problems is
172 imperative, since ʿillah change with time and circumstances. Similarly, the concept of maṣlaḥa has played a major role in the development of Islamic law⎯as mentioned in chapter 2⎯because the purpose of the divine law is to advance maṣlaḥa. Thus, jurisprudence analysis requires that scholars must ensure this divine purpose is preserved. In other words, a process of ijtihād must avoid harm and serve the public interest, which includes, for example, the interest of women and hence reclaim women’s rights according to Sharīʿah. Nevertheless, there is popularity for Islamic feminism in the West, which renders problematic the patriarchal control of Islamic interpretation.
The future of Islamic feminism may be seen as a support for Muslim women and an end to sugar-coating and patriarchal apologetics, but most importantly, it may be seen as a revival of female scholarship in Islam that engages the sacred texts, ḥadith and ijtihād to continually seek justice alongside their male counterparts. If this is the direction Muslim women are heading in, then the future is bright. As the Qurʾan states “Allah does not change a people's lot unless they change what is in their hearts.”214 So, women will be unable to change anything, until they begin by changing what is in their hearts and opening them to the truth, and indeed, the best among human beings is the one who is more pious.
214 Qurʾan 13:11.
173
5 ISLAM AND MODERNITY
5.1 Introduction
The nineteenth and twentieth centuries witnessed a major transformation in the history of Islam. It was a time of colonisation and humiliation, independence and revolution, resurgence and reformation.1 The colonisation of Muslim territories began with the rise of the European empires, the conquest of the Middle East and India, and the scramble for Africa in the nineteenth century. It ended after World War II when colonised
Muslim-majority countries negotiated the withdrawal of colonial powers.2 Nevertheless, the legacy of colonialism continues to shape and reshape, economically, politically and ideologically, the societies of Muslim-majority countries.3 It was against this backdrop of European expansion of the Near East and India that modern Islamic thought emerged.
The emergence of Islamic modernism was tantamount to a call for a reformation of
Islam. Muslim reformers were open to change and assimilation and wished to produce a new synthesis of Islam with modern life.4 They attempted to reconcile the Islamic faith with notions of democracy, human rights, reason and progress. Muslim reformists, while responding to the challenges posed by European colonialism and modernism, made the trumpet call to “go back to the Qurʾan and [to] go forward with ijtihād”.5 They focused on a central question: How can Muslims be true to the enduring values of their own past while living in the modern world? Embracing the ideas of iṣlah (reform), tajdid (renewal/revival) and ijtihād, reformists promoted Muslim unity and resistance to
1 Esposito, “Contemporary Islam,” p. 644. 2 S.V.R. Nasr, “European Colonialism and the Emergence of Modern Muslim States,” in The Oxford History of Islam, ed. John L. Esposito (Oxford and New York: Oxford University Press, 1999), p. 552. 3 Ibid. 4 Esposito, “Contemporary Islam,” p. 647. 5 Robert Rozehnal, “Debating Orthodoxy, Contesting Tradition: Islam in Contemporary South Asia,” in Islam in World Cultures: Comparative Perspectives, ed. R. M. Feener (Santa Barbara, California: ABC- CLIO Inc, 2004), pp. 111−12.
175 Western cultural hegemony by adopting the fruits of science and technology while examining Muslim educational, legal and political institutions.6
In this chapter, I will argue that some aspects of Islam emphasise the importance of reason and imply the compatibility between Islam and modernity. To assess this compatibility, I will first discuss the conceptual definitions of religion and modernity from the perspective of Western and Muslim intellectual thought. The discussion then turns to the challenges of modernity for Islam. In particular, I will argue that these challenges lie in projecting the voices of Muslim reformists and their views and positions on modernity. How do Muslims respond to the continuous change of the world? How do they maintain the legacy of the past in the religious tradition and integrate change into society? Are Islamic concepts compatible with modern aspirations? To what extent has Muslim identity been reshaped by living in modern
Western societies? These are some questions that trigger and produce the discussions on the relations between Islam and modernity. This chapter, therefore, examines the various points of view surrounding Islam and modernity, and also seeks to address the above questions.
5.2 Modernity and Religion
The birth of modernity is usually traced back to the publication of René Descartes’
Discourse on Method in 1637.7 More generally, the advent of modernity is considered to be the outcome of the intellectual movements of the late seventeenth and early to mid-eighteenth century known as the Enlightenment or the Age of Reason.8
6 Ibid. 7 Shireen T. Hunter, “Can Islam and Modernity be Reconciled?” Insight Turkey 11(3) (2009): 1−12. 8 Peter Gay, The Enlightenment: An Interpretation, vol. 2 (New York: W.W. Norton, 1969), p. 567.
176 The modern way of knowing is rooted in the Enlightenment and positivist philosophy, and is dependent upon a reasoning individual.9 Hence, the Enlightenment’s idea of progress is about an individual capable of reasoning and self-development. Such an idea of progress is central to modernity because, prior to the Enlightenment, the dominant worldviews were based on tradition and religion.10
There is a basic tension between religions that rely on revelation as their primary source of knowledge, dependent on God’s revelations as the source of law and ethics, and modernity, which privileges reason as the main source of knowledge and considers the source of laws and ethics to rest with human beings. According to Max Weber, societies become modern as they become “disenchanted,” or when rational thought replaces religion as the guiding principle of life.11 He also argued that some religions are more compatible with modernity than others. According to him, Protestantism was more compatible with modernity than Catholicism because of the latter’s abomination of materialism and its emphasis on the non-material aspects of life.12 His views on Islam and other Asian religions were even harsher as he believed these religions were irreconcilable with modernity, and not just in its material dimensions, but because they considered the world remained a “great enchanted garden…no path led from the magical religiosity of the non-intellectual classes of Asia to a rational, methodical control of life.”13
Modernity in the twentieth century has brought rapid change to the world. Tension is often caused when a traditional society is faced with challenges posed either by the
9 Kenneth Allan, Contemporary Social & Sociological Theory: Visualizing Social Worlds, 3rd ed. (California: Sage Publication, 2013), p. 8. 10 Ibid. 11 Hunter, “Can Islam and Modernity be Reconciled?” 12 Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcot Parsons (London: Unwin University Books, 1974), p. 42. 13 Max Weber, The Sociology of Religion, 5th ed. (Boston: Beacon Press, 1969), pp. 263−65.
177 outside world or by decisions to modernise within.14 The dilemma for many religions is how to integrate change. Should change be rejected or embraced? This question has been combined with the widespread opinion that the process of globalisation and modernisation would ultimately lead to a reduction of the role of religion in public life everywhere.15 What is modernity and can modernity be compatible with religion in general?
The Oxford Dictionary of Sociology defines modernity as “a term used to characterise the stage in the history of social relations, dating roughly from the end of eighteenth century, that is characterised by the democratic and industrial revolutions.”16 The term
“modernity” is generally used to mark a historic watershed or transition that had a profound impact on most European norms ranging from technology to religion.17
Welker defines modernity as “an epoch of history that is characterized by the emergence of nation states that build on the political loyalty of their citizens, develop standardizations of the law, and establish legal institutions and bureaucratic forms of administration.”18 A common understanding of modernity is a period covering the previous two centuries that emerged in Europe and became, more or less, worldwide in its influence.19
The initial interest in the concept of modernity was inspired by a sense of a deep rupture afflicting European society; that society had irrevocably departed “from a path it had
14 Derek Hopwood, “The Culture of Modernity in Islam and the Middle East,” in Islam and Modernity: Muslim Intellectuals Respond, ed. John Cooper, Ronald L. Nettler and Mohamed Mahmoud (London, NewYork: I. B. Tauris Publishers, 1998), p. 2. 15 Johan Meuleman, Islam in the Era of Globalization: Muslim Attitudes towards Modernity and Identity (New York: Routledge, 2002), p. 4. 16 J. Scott and G. Marshall, A Dictionary of Sociology (Oxford: Oxford University Press, 2009). 17 Reuven Firestone, An Introduction to Islam for Jews (Philadelphia: The Jewish Publications Society, 2008), p. 72. 18 Michael Welker, “Modernity,” in Encyclopedia of Science and Religion, vol. 2 (New York: Thomson Gale, 2003), p. 579. 19 Peter Wagner, Modernity: Understanding the Present (Cambridge: Polity Press, 2012), p. 4. Also, see Anthony Giddens, The Consequences of Modernity (Cambridge: Polity Press, 1990), p. 1.
178 followed for millennia and was approaching something fundamentally different from the past, an entirely new form of societal organisation that bore little resemblance to anything known before”.20 Thus, “modernity” may be thought of as the socio-political transformation of Europe that accompanied scientific and technological developments ensuing from the Enlightenment.21 Following on with this idea, modernity has been attributed with liberating and providing ideals, movements and institutions that could repair cultural and structural disorders that have plagued social life.22
Yet, to say modernity has been only an endeavour to escape religious and political tyranny and authoritarian traditionalism would be telling a one-sided story. Inside the culture and structure of modernity, good and evil are intensely intertwined.23 This modernity, according to Welker, “brought forth aggressive nation states characterised by chauvinism, imperialism, colonialism and ecological brutality”.24 Equivocation over the blessings or curses of modernity is rooted in a structural conflict within modernity.
This conflict is usually portrayed by the duality of “modernity” and “postmodernity,” and by the discussion of whether the latter is merely an extension of the former.25
Postmodernity is a term used to differentiate between late modernity and the modernity of the Enlightenment era. For the postmodern mindset, society must welcome diverse approaches and cultures, and embrace pluralistic contexts.26 For the modern mindset, however, the autonomous “human subject” is guided by reason and universal morals.27
Achieving an adequate understanding of modernity is a useful step to obtain a durable
20 Robert Nisbet, Emile Durkheim (Eaglewood Cliffs: Prentice Hall, 1965). 21 Shireen Hunter and Huma Malik, Modernization, Democracy, and Islam (Wesport: Greenwood Publishing Group, 2005), p. 65. 22 Jeffrey C. Alexander, The Dark Side of Modernity (Cambridge: Polity Press, 2013), p. 140. 23 Ibid. 24 Welker, “Modernity,” p. 580. 25 Ibid. 26 Ibid. 27 Ibid.
179 framework for continuing exchanges or significant scholarship.28 Yet, modernity refers to the cultural conditions that set the terms for all thought and actions in a particular culture. Its values complement the value of the theoretical “human subject” and its autonomy, freedom and rational self-control, but it fails to address the actual unique individual.29 Rather, modernity addresses the standardised person of the bourgeois value system, which is guided by reason and universal morals.30 Thus, religious beliefs cannot be unaffected and religion remains a cultural reality of modernity.31 Whereas all traditional cultures derived their certainties from revelation, modernity developed its own from a specific intellectual philosophical construction.
Tibi subdivides modernity into two interrelated segments: cultural and institutional. The former is discussed from a philosophical discourse based on norms, values and a rational-secular view of the world, and the latter means power underpinned by the tools that emerged from modern science and technology.32 However, modernity has rightly been called the institutionalisation of doubt and choice, which apply rationality, debate
28 John W. Wilson, “Modernity and Religion: A Problem of Perspective,” in Modernity and Religion, ed. William Nicholls (Ontario: Wilfrid Laurier University Press, 1987), p. 9. Modernity began in Europe with industrialisation and commercialisation, basically economic processes where society had to accept new methods of production and distribution and abandon traditional mode of economic relations, which lead to innovations. Modernisation does not, however, require westernisation, But what is the definition of modernisation? Modernity attempts to identify the social variables that contribute to social progress and development of societies, and seeks to explain the process of social evolution. The Dictionary of International Relations explains: The term modernisation is used to identify certain processes of social change that historically first occurred in Western Europe and which have subsequently become global. Modernisation as a type of social change is not specifically political in character. Rather the argument is that as societies become more modern these antecedent conditions will produce demands for increases in political participation which will be met by changes in the structure and function of their polities. In particular modernisation will produce demands for increases in political participation which will be met by changes in the character and availability of political institutions. Modernisation is indeed a multi- faceted process involving, in addition to politics, changes in economic, cultural, technical, psychological and intellectual aspects of human relation. See Graham Evans and Jeffery Newnham, Dictionary of International Relations (London: Penguin Books, 1998), p. 335. 29 Welker, “Modernity,” p. 582. 30 Ibid, p. 580. 31 John Wilson, “Modernity,” in Encyclopedia of Religion, 2nd ed. (Macmillan Reference USA: Thomson Gale, 2005). 32 Tibi, Islam’s Predicament with Modernity, p. 6.
180 and discussion.33 Moroccan philosopher Mohammed Abed al-Jabri (1936-2010) seems to present a different kind of “modernity” as a modern method and a modern vision of tradition:
Modernity … is not to refute tradition or break with the past, but rather to upgrade the manner in which we assume our relationship to tradition, the level of what we call “contemporaneity”, which for us, means catching up with the great strides that are being made worldwide.34
Following up with the above idea, Canadian philosopher Charles Taylor asks:
is there a single phenomenon here, or do we need to speak rather of ‘multiple modernities’, the plural reflecting the fact that other non-Western cultures have modernized in their own way, and cannot be properly understood if we try to grasp them in a general theory which was originally designed with the Western case in mind?35
Given this, the question of new modernities may be examined on various axes that highlight the differences. One interesting approach has been bricolage modernity, referring to a mélange of East and West, old and new, indigenous and exogenous.36 This is particularly an important question for Nilüfer Göle who notes that "we need to decipher the nature of confrontation, the disruptive effect of Islam in secular modernity and the conditions under which the confrontation does not lead to exclusionary dynamics but to mutual borrowings and creative metamorephoses."37 Viewed in terms of these critiques, Taylor notes modernity can be seen not as a “negation of tradition,” but rather as a “transformation of culture”.38 A cultural theory of modernity, for Taylor, would characterise the rational and social transformations issued by the West as the rise
33 Hopwood, “The Culture of Modernity in Islam and the Middle East,” p. 3. 34 Mohammed ʿAbed al-Jabri, Arab-Islamic Philosophy: A Contemporary Critique, trans. Aziz Abbassi (USA: Library of Congress, 1999), p. 2. 35 Charles Taylor, Modern Social Imaginaries (Durham: Duke University Press, 2004), p. 1. 36 Jan Nederveen Pieterse, Globalization and Culture (Lanham, MD: Rowman & Littlefield, 2003), p. 121. 37 Göle, “Introduction: Islamic Controversies in the Making of European Public Spheres”, pp. 16−17. 38 Charles Taylor, “Two Theories of Modernity,” Public Culture 11 (1999): 153−174.
181 of a new culture, and its adoption by other nations no more than a projection of cultural power.39
In my view, a more considered perspective of modernity could be the product of a modern vision of tradition and an expression of universal modern values. Modernity can also represent the will to remain faithful to a religious tradition, values and ethics at the heart of modern times, otherwise modernity and religion will be in ongoing conflict.
It is important to mention that the concept of modernity was not accepted fully by the
West and there are also counter-movements, sometimes quite violent, that represent negative reactions to the anxieties brought about by modernity.40 American anthropologist Mark Woodward argues that modernity has posed a radical threat to “the entire Christian world view” because modernity in “the Christian West” has led to secularisation, disenchantment or fundamentalism. Giving the example of Indonesian
Muslims who accept modernity without disrupting cohesion within their society, according to Woodward, modernity has led only to social controversies among
Muslims.41 Therefore, the basic problem of modernity from the Christian point of view is “cosmological”, but for Muslims it is primarily “sociological”.42
Overall, the Islamic discourse on modernity focuses around the fundamental issues of rationalism, secularism and democracy. Islamic attitudes towards secularism and democracy will be discussed in the next chapter of this thesis.
39 Taylor, “Two Theories of Modernity,” p. 193. 40 Firestone, An Introduction to Islam for Jews, p. 73. 41 Mark R. Woodward, “Modernity and the Disenchantment of Life: A Muslim-Christian Contrast,” in Islam in the Era of Globalization: Muslim Attitudes towards Modernity and Identity, ed. Johan Meuleman (New York: Routledge, 2002), p. 94. 42 Ibid.
182 From a Western perspective, modernity is another name for “the process of liberation” or “the product of resistance to tradition” that has failed to allow its members to conform to their human prospective because it was indebted “to a religious hierarchy and moral norms”.43 It is the developments and advances in industry, sciences, economic and political hegemony of European societies. When philosophers, sociologists speak of modernity, they see it as an affirmation not only of reason but also for progress, scientific method and democracy.44 According to the description given by
Alain Toraine, a prominent French sociologist who thinks things should be judged not according to tradition and revelation but according to reason and human experience, modernity means the diffusion of rationalism in all spheres of life and the consideration of reason as the valid source of knowledge and the criterion for value.45 But, what is commonly known in the West as rationalism? It is “the idea that society is the sources of values, that the good is what is useful to society and evil is what harms its integration and efficiency, is a basic element of the ideology of modernity.”46
For a general definition of the term, rationalism in the West claims that sense perception provides the data upon which reason operates to provide knowledge of the world around us.47 In this way, rationalism seeks to avoid the uncertainties of mere opinion and also seeks to eliminate fallacies taught by religious authorities. As such, it can be seen as a reaction to a pre-modern order in which religion had political authority.48 Because of
43 Tariq Ramadan, The Quest for Meaning: Developing a Philosophy of Pluralism (London and New York: Penguin Group, 2010), p. 147. 44 Ibid. 45 Alain Toraine, Critique of Modernity (Oxford: Wiley-Blackwell, 1995), pp. 21−23. 46 Ibid, pp. 25−30. 47 Hunter and Malik, Modernization, Democracy, and Islam, p. 65. 48 Ibid; The history of the separation of church and state can be traced back to the seventeenth century and the brutal European religious wars born of the insistence on parallel religious-political loyalties, which eroded the hegemony of the Roman Catholic Church and destroyed Western Europe. This politicised religious authorities who tried to maintain their main position by denying the validity of any truths other than those propagated by the church. The rationalists were seeking a basis of certainty where human
183 this, rationalism is often judged to be antireligious and therefore lacking in morality.
However, rationalism did not seek to replace religion, much less the morality that comes with it.
Danièle Hervieu-Léger notes the prevailing interpretation of the relationship between religion and modernity is they are “mutually exclusive”.49 According to her, early modernity lead to the decline of religion, while in late modernity, the various forms of religious renewal “are in harmony with modernity, especially in respect to the private and individualistic character of their beliefs and the fluidity of their organisational forms”.50 However, “mutually exclusive” has been construed in different ways according to the context of religion to which it has been applied. To assess the accuracy of this statement, it is important to explain religion from Western and Islamic perspectives.
In his Introduction to the Science of Religions, German-born philologist and Orientalist
Friedrich Max Müller (1823-1900) has given religion the following definition:
Religion is a mental faculty or disposition which enables man to apprehend the Infinite under different names and varying disguises. Without that faculty, no religion, not even the lowest worship of idols and fetishes, would be possible; and if we will but listen attentively, we can hear in all religious a groaning of the spirit, a struggle to conceive the inconceivable, to utter the unutterable, a longing after the Infinite.51
According to his definition, Müller attributes religion to a mental faculty that enables man to apprehend the Infinite under different names and disguises, and, without that
beings could argue authoritatively against those authoritative powers that used religion to justify their control. 49 Danièle Hervieu-Léger, De la Mission à la Presentation: L’évolution des Étudiants Chrétiens 1965−1970 (Paris: Cerf, 1973), pp. 158−203. 50 Ibid. 51 Friedrich Max Müller, Introduction to the Science of Religion (New Street Square, London: Spottiswoode, 1870), p. 13.
184 faculty, no religion could be possible.52 For Emile Durkheim (1858-1917), the well- known French sociologist, religion consists of a system of beliefs and practices that are as profound to the senses as they are to reason. Religion would be defined, according to him, in terms of its objects, “which would always be the same and this object would be the mysterious, the unknowable, and the incomprehensible”.53 He also predicted, while religion played a necessary role in social evolution, it would be increasingly shifted by modernity.54 Religion was seen as bound up with archaic ways of seeing and being in the world. Such definitional usage has had its opponents in the West, as an attempt was made to shift the emphasis from the conceptual to the intuitive in defining religion.
In a very influential statement, the German theologian Friedrick Schleiermacher (1768-
1834) defined religion as “a feeling of absolute dependence”.55 Echoing Sheiermacher,
American theologian Reinhold Niebuhr (1892-1971) agreed that religion is a sense of the absolute, which is usually imagined in terms of a human being’s own highest ethical aspirations.56 Furthermore, he maintained the hopes and expectations of an ideal society, through the development of the moral capacities of individuals have resulted from, and been supported by, the religious and rational idealist at the same time.57
52 Ibid, p. 17. 53 Emile David Durkheim, Durkheim on Religion: A Selection of Readings with Bibliographies, vol. 1 (Oxford: Routledge & Kegan LTD, 1975), p. 76. 54 In his book The Division of Labor in Society, Durkheim rejected the notion that religion could constitute a source of solidarity in modern society. See, Emile David Durkheim, The Division of Labor in Society (New York: Free Press, 1964 (1893)). In stark contrast to the above statement, Durkheim in The Elementary Forms of Religious Life conceives of religion as a major of solidarity and cohesion in any type of society, “primitive” and “modern” alike. He defines religion as a “unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden─ beliefs and practices which unite into one single community all those who adhere to them”. See, Emile David Durkheim, The Elementary Forms of Religious Life (New York: Free Press, 1995 (1912)). Since Durkheim’s time, sociologists have redefined their methods of analysis, but still maintain the essential Durkheim view. 55 Friedrick Scheiermacher, The Christian Faith, 2nd ed., ed. H.R. Mackintosh and J.S. Stewart (Edinburgh: T&T Clark, 1928), p. 3. 56 Reinhold Niebuhr, Moral Man and Immoral Society: A Study in Ethics and Politics (London and New York: Charles Scribner’s Sons, 1942), p. 52. 57 Ibid, p. 51.
185 With the rise of the sociological and anthropological disciplines, it has been argued that religion is never an abstraction of ideas, values or experiences developed apart from the total culture form and many religious beliefs, customs and rituals can be only understood in reference to this system.58 The modern period can be understood as a veritable religion of modernity because its participants collectively sacralise the long- standing modern value of individual liberty. Thus, nowadays spirituality claims a cultivated form of sociality that celebrates the modern values of individual freedom in a collective fashion.59
Despite modernity having enriched human life with progress and material things, it has also inflicted the human soul “with the restlessness that comes from the loss of purpose and lack of certitude”.60 Therefore, the optimistic end that religion plays a positive role in mitigating the disorders suffered in modernity and it can “provide a much-needed anchor”.61
My viewpoint is that religion comprises a set of rules and principles that unite belief, effort, discipline and education together to attain happiness and success in this life and the hereafter. Religion also involves submission to devotional and ritual observances sent by a divine power. This submission could be directed by the heart and enlightened by a rational vision to understand. Thus, intellect is the light and the heart is the direction. Religion is not only a spiritual and intellectual necessity, but also a social and
58 Ibid. 59 Olav Hammer, Claiming Knowledge: Strategies of Epistemology from Theosophy to the New Age (Leiden: Brill, 2001); See also, Charles Chandler, “Durkheim and Individualism: A Comment on Messner,” in Social Forces 63(2) (1984): 551−573; See also, Dick Houtman and Stef Aupers, “The Spiritual Turn and the Decline of Tradition: The Spread of Post-Christian Spirituality in Fourteen Western Countries (1981−2000),” in Journal for the Scientific Study of Religion 46(3) (1984): 305:320. 60 Abou El Fadl, Reasoning with God, p. 369. 61 Ibid.
186 universal need.62 It is not to humiliate a human being but to elevate their moral nature. It is not to dispossess people of anything useful or burden them, but to open for them boundless treasures of sound thinking and right actions.
However, religion with its reliance on faith in the unseen, seems to clash with the scientific method and its insistence on empirical data.63 Yet, no such clash exists in religion from an Islamic perspective. Islam has made reason the ultimate judge in everything; in the Qurʾan, God links disbelief to the refusal to use reason.64 Reason and understanding then are meant to strengthen belief and fortify faith.
Muslims believe the Qurʾan is the last and final revelation of God. It is not a book of science, but a book of signs as the verses in the Qurʾan are called āyāt, which means signs. Nevertheless, it conveys scientific knowledge, which is the criterion that instructs man concerning the signs of creation.65 In the Qurʾan, God calls upon humans to look into the universe and discover its construction and structure and eventually the investigation of the organisation of the universe will lead them to the belief in the oneness of God, which is the cornerstone of the Islamic faith.66
62 Hammudah ʿAbd Al-Ati, Islam in Focus, p. 67. 63 Niebuhr, Moral Man and Immoral Society: A Study in Ethics and Politics, p.54. 64 Qur’an 2:171. 65 Over 1000 verses, out of 6236, in the Qur’an deal with core scientific facts. For example: Qurʾan 21:30 suggests the discovery of an expanding universe, commonly called the Big Bang Theory, was revealed by illuminating inspiration long before it was discovered by scientific scholars such as Edwin Hubble and Alan Guth: “Do not the unbelievers see that the heavens and the earth were joined together (as one unit of creation), before we clove them asunder?” The Qur’an is full of scientific explanation, including verses that describe the spherical nature of planets, the nature of their orbits, human embryology, and the fundamental role water plays in life on earth. These and many other subjects have been explored by many authors, notably Maurice Bucaille (1920−1998), a French medical doctor, in The Bible The Qurʾan and Science: The Holy Scriptures Examined in the Light of Modern Knowledge (Paris: Seghers, 1989). 66 Qur’an 2:164: “Behold! In the creation of the heavens and the earth; in the alternation of the night and the day; in the sailing of the ships through the ocean for the profit of mankind; in the rain which Allah Sends down from the skies, and the life which He gives therewith to an earth that is dead; in the beasts of all kinds that He scatters through the earth; in the change of the winds, and the clouds which they Trail like their slaves between the sky and the earth; [Here] indeed are Signs for a people that are wise.”
187 Philosopher and theologian Abu Ḥamid al-Ghazali (1058-1111), in his Reviving the
Religious Sciences (Iḥyāʾ ʿUlum al-Din), argues that revelation and reason play a twin role in discerning the path of righteousness and establishing normative obligations in a social context:67
Al-ʿaql (reason or intellect) is the source and fountainhead of knowledge as well as its foundation. Knowledge sprouts from it as the fruit does from a tree, and as lights emits from the sun, and as vision extends from eyes. How then could that which is the means of happiness in this world, and in the Hereafter not be most noble or how could it be ever doubted?68
In another work, al-Ghazali offers an illustration for the mutual support of revelation and reason:
The best fields of knowledge are those which combine the methods of revelation and reason, and that integrate reasoned judgment with textual authority. The science of jurisprudence (uṣul al-fiqh) is one such field of knowledge because it relies on sound reason and revelation equally. Its determinations are not derived from reason alone without validation from revelation, and such determinations are not dependent on simple imitation without the critical assessments of reason. Reason and revelation are bound together⎯one cannot work without the other.69
In the same vein, theologian Bediuzzaman Said Nursi (1878-1960) maintains that Islam relies on reason and reasoned proof, and in Islam, science and religion should complement each other: “Philosophy without religion is a sophistry divorced from reality and an insult to the universe.”70
67 Abu Ḥamid al-Ghazali, “Book of Knowledge,” in Iḥyāʾ ʿUlum al-Din, trans. Nabih Amin Faris (New Delhi: Islamic Book Service, 1962), p. 213. 68 English translation in Dennis Morgan Davies Jr., “Al Ghazali on Divine Essence: A Translation from Iqtisad fi al-Iʿtiqad (PhD diss., University of Utah, 2005), p.73. For a thorough examination of Ghazali’s nuanced arguments about reason, causality and revelation, see Frank Griffel, Al Ghazali’s Philosophical Theology (Oxford: Oxford University Press, 2009), pp. 111−122, 147−173. 69 This was quoted by Abou El Fadl, Reasoning with God, p. 354. 70 Bediuzzaman Said Nursi, The Words: On the Nature and Purposes of Man, Life and all things, trans. Şükran Vahide (Istambul: Sözler, 2008), p. 145.
188 In summary, religion and reason should be seen as two complementary spheres in human life, just as Einstein wrote: “Science without religion is lame, religion without science is blind”.71 Yet this point has never been adequately clarified and the social sciences generally assume religion is withdrawing into the private sphere and will eventually becoming insignificant altogether.72
If Islam is compatible with reason, then why has Islam been challenged by modernity?
To understand the relationship between Islam and modernity, I will redirect the general assessment of current Islam and examine the responses to the challenges of modernity.
5.3 Islam and the Challenges of Modernity
Before illustrating the range of Islamic responses to modernity, it is important to briefly survey the background that gave rise to modernity in Muslim-majority countries. It is generally asserted, as mentioned earlier, that the roots of modernity as a philosophical discourse can be traced back to the Enlightenment in the eighteenth century.73 David
Harvey, American professor of anthropology and geography, asserts, “Enlightenment thought embraced the idea of progress, and actively sought that break with history and tradition witch modernity espouses. It was above all, a secular movement that sought the mystification and desacralisation of knowledge and social organisation in order to liberate human beings from their chains.”74
For almost ten centuries, from the seventh to the seventeenth, Islam provided a divinely inspired social, intellectual, educational, religious and political system and
71 Alfred Einstein, Ideas and Opinions by Albert Einstein (New York: Bonanza Books, 1984), p. 46. 72 Reimon Bachika, Traditional Religion and Culture in a New Era (New Jersey: New Brunswick, 2002), p. 20. 73 Ibrahim Abu-Rabiʿ, “Contemporary Islamic Thought: One or Many?” in The Blackwell Companion to Contemporary Islamic Thought, ed. Ibrahim Abu-Rabiʿ (Oxford: Blackwell Publishing, 2006), p. 17. 74 David Harvey, The Condition of Post Modernity: An Enquiry into the Origins of Cultural Change (Oxford: Blackwell, 1989), pp. 12−13.
189 comprehensive worldview, which gave direction and meaning to Muslims. From the seventeenth century onwards, a long process of Western intervention and presence challenged this worldview. As gradual colonial economic control gave way to political and military dominance in the nineteenth century,75 these complex challenges became more intense. I will explore how Muslims responded effectively to those challenges posed by modernity, and the main responses to modernity formulated over the past century.
By the nineteenth and early twentieth centuries, a large part of the Muslim-majority world had begun to lose much of its cultural and political sovereignty to Western colonisation. There was a large shift of power due to the decline of the Ottoman Empire, which led to an essential subordination of Muslims because of Western technology and modernisation.76 This subjugation led majority Muslim countries to question their beliefs as well as their aspirations and wonder whether the success of the Western occupation was due to the inferiority of their Islamic ideals.77 This situation raised profound questions of identity for Muslims. What had gone wrong with Muslims? Was the Islamic way of life capable of meeting the demands of modernity?
As a reaction to this soul-searching inquiry and the penetration of Western capitalist modernity into all aspects of Muslim societies from the Arab world to South-east Asia,
Muslim intellectuals began to develop the general outlines of a new intellectual project that is often referred to as “Islamic modernism”. 78
75 John J. Donohue and John L. Esposito, Islam in Transition: Muslim Perspectives (New York, Oxford: Oxford University Press, 2007), p. 3. 76 John L. Esposito, Islam: The Straight Path (New York: Oxford University Press, 1998), pp. 126−127. 77 Esposito, Islam, pp.126−127. 78 In the Arab world, Iran and the late Ottoman period was represented by Jamāl al-Dīn al-Afghānī, Muḥammad ʿAbduh, Muḥammad Rashīd Riḍa, Bediuzzaman Said Nursi and a host of other religious scholars and thinkers. In South Asia, the project of Islamic modernism was represented by Sayyid Ahmad
190 There are many ways of defining “Islamic modernism”. For instance, American professor of sociology Charles C. Adam defined it as a religious reformism dominated by theological considerations to free Islam from the rigidity of Islamic orthodoxy and show Islam as a religion that is adaptable to the demands of modern life.79 Charles
Kurzman, a professor of Sociology at University of North Carolina, described the
Islamic movement that began in the first half of the nineteenth century as “not simply modern” (a feature of modernity), but also “modernist” (a proponent of modernity).
According to Kurzman, “Activists (of modernist Islam) describe themselves and their goals by the Arabic terms jadid (new) and muʿāsir (contemporary)”.80
Accordingly, the emergence of Islamic modernism corresponds with what has come to be called the Arab Nahda (renaissance or awakening), which seeks to revive Islamic thought by affirming continuity with the past and assimilating what they see as the
81 achievements of modern Europe.
In addition to the notion of Nahda, Islam, from its earliest days, possessed a rich tradition of reform: the concept of renewal (tajdīd) and reform (iṣlāḥ) are fundamental components of the Islamic worldview, rooted in the Qurʾan and Sunnah of the
Prophet.82 Renewal (tajdīd) is based on a tradition of the Prophet: “God will send to this
Khan, Amir Ali and others. In South-east Asia, the project of Islamic modernism was represented by the Muḥamadiyyah organisation and its founder, Muḥammad Dahlan. See Aziz Ahmad, Islamic Modernism in India and Pakistan 1857−1964 (London: Oxford University Press, 1967); Mushirul Hasan, Islam is the Subcontinent: Muslims in a Plural Society (New Delhi: Manohar, 2002). 79 Adam used the term Islamic modernism commonly in his book Islam and Modernism in Egypt, and he also referred to it as Mohammadan modernism. See Charles C. Adam, Islam and Modernism in Egypt: A Study of the Reform Movement Inaugurated by Muḥammad ʿ Abduh (New York: Russel and Russell Publications, 1968), p. 1. 80 Charles Kurzman, Modernist Islam 1840-1940: A Source Book (Oxford: Oxford University Press, 2002), p. 4. 81 Gerald Gaus and Chandra Kukathas, Handbook of Political Theory (London: Sage, 2004), p. 368. 82 Gabrielle Marranci, Muslim Societies and the Challenges of Secularization: An Interdisciplinary Approach (London, New York: Springer, 2010); Mohamad Abdallah, Islam and the Australian News Media (Melbourne: Melbourne University Press, 2010); Muhammad Khalid Masud, Armando Salvatore and Martin Van Brunessen, Islam and Modernity: Key Issues and Debates (Edinburgh: Edinburgh University Press, 2009); John L. Esposito, The Future of Islam (Oxford: Oxford University Press, 2010);
191 ummah (Muslim community) at the head of each century those who will renew its faith for it”.83 The newer reformists (mujadid) of Islam are believed to be sent at the beginning of each century to restore Islamic practice and rejuvenate a community that has a tendency to drift from the straight path over time.84 The meaning of tajdīd, as expressed in the Prophetic tradition, is to “re-form” constantly in the name of faithfulness.85 This is also the meaning of the concept of “iṣlāḥ” that appears several times in the Qurʾan and Prophetic tradition conveying the ideas of repairing, reconciling, improving, purifying and reforming.86 Both concepts (tajdīd and iṣlāḥ) entail a call for a return to the fundamental components of Islam (Qurʾan and Sunnah).87
In the late nineteenth century, Muslim reformers developed ideas and strategies to face the crisis of European colonialism by drawing upon the concept of ijtihād in their efforts to meet the demands of modern life.88 Thus, it was during the emergence of
European colonial expansion that modern Islamic thought emerged.89 Islamic modernism is primarily an intellectual movement, though it did not produce a unified movement or enduring organisations. However, its influence on the Muslim community’s development and attitude towards the West was substantial. Islamic
John O. Voll, “Renewal and Reform in Islamic History,” in Voices of Resurgent Islam, ed. John L. Esposito (New York: Oxford University, 1983). 83 Sunan Abu Dawud, Book 37: Kitab al-Malahim [Battles], 4278. “Mujaddid: Renewer. Person who initiates tajdid (renewal). According to ḥadith, a mujaddid is to come at the beginning of each century to renew the faith and correct the practice of Muslims… back to the Islam of the early community as they interpret it, rejecting as innovations any later added practices or customs.” Esposito, The Oxford Dictionary of Islam, p. 213. 84 Esposito, The Future of Islam, p. 91. 85 Ramadan, Radical Reform, p. 13. 86 Ibid. 87 Islāh is a Qurʾanic term used to describe the reform preached and undertaken by prophets when they warned their sinful communities and call on them to return to God’s path; Qur’an 7:170, 11:117, 28:19. 88 Esposito, The Future of Islam, p. 91. 89 Esposito, The Islamic Threat, p. 78.
192 modernism reinterpreted and reformed a modern ideological interpretation of Islam capable of adapting to modern Western socio-political reform.90
Most reformists make efforts to reconcile differences between traditional religious teachings and secular rationalism, between unquestioning faith and reasoned logic, and between continuity of Islamic tradition and modernity.91 Thus, the position of Muslim reformists is two-fold: firstly, they interpret the principles of Islam in a rational and liberal manner by emphasising the basic ideals of Islamic brotherhood, tolerance and social justice. Secondly, they emphasise the dynamic character of Islam in response to the intellectual and scientific progress of the modern world.
Hisham Sharabi, professor of history at Georgetown University, contrasts Islamic modernism with Islamic traditionalism. He divides Muslim responses to modern thoughts into two broad trends: modernism and traditionalism. He maintains:
Modernism is to be understood as a positive attitude toward innovation and change and toward Western civilization generally; while traditionalism is to be viewed as a negative attitude toward all types of innovations and toward the West. Modernism, thus, represents a dynamic outlook, essentially pragmatic and adaptable; while traditionalism is a static position, fundamentally passive and hardly able to react to external stimuli.92
From this explanation, it is clear that Islamic modernism is contrary to Islamic traditionalism in its basic characteristics. The latter attempts to slow the compatibility of
Islam with modernity and minimise the need to rejuvenate the Muslim community.
According to Sharabi, Muslim modernists regard the attitude of traditionalists, those who oppose all forms of borrowing Western ideas, not only as negative, but also dangerous to the very existence of Islamic society. Unlike conservative traditionalists,
90 Ibid; See also, Esposito, The Future of Islam, p. 88. 91 Esposito, “Contemporary Islam Reformation or Revolution,” pp. 644−645. 92 Hisham Sharabi, Arab Intellectuals and the West: The Formative Years 1875-1914 (London: The John Hopkins Press, 1970), p.6.
193 modernists are aware of and react to external cultural, social and political challenges presented by the West.93
Within this general description, there are three broad categories of Islamic responses to modernism: liberal reformists, traditional reformists and modern reformists.
5.3.1 Liberal Reformists
Born out of the influence of Western thought during the colonial period, liberal reformists advocate modernity, secularism and thus, the separation of religion from the state. They view appeals to Islam in politics as retrogressive or inappropriate to modern political and social realities.94 Hence, they limit Islam to the private sphere, not unlike the supporters and defenders of Kemal Ataturk’s secularisation project in Turkey.95 This project required modernisation, rapid Westernisation and the secularisation of Turkey.
Most of the reforms enacted by Ataturk were directed at social and cultural institutions, which would effectively remove all signs of Islam and strike at the root of popular culture.96
Liberal reformists challenge the concept of theocracy upon which the medieval caliphate rested and call for the separation of the political and spiritual.97 One of the most thoughtful liberal Muslims in the first half of the twentieth century, Egyptian
93 Majid Fakhry, “Philosophy and Theology: From the Eight Century C.E. to the Present,” in The Oxford History of Islam, ed. John L. Esposito (Oxford: Oxford University Press, 1999), p. 299. 94 Ramadan, Western Muslims and the Future of Islam, p. 27. 95 Ibid. 96 Ataturk understood modernity as a comprehensive project as there can be no separation between its cultural and political aspects. For him, secularism is an integral process that means liberalising the individual Muslim mind from attachment to Islamic norms. The program of the Republican People’s Party (RPP) founded by Ataturk and the ideological basis of the state, nationalism and secularism were the most rigidly enforced. The intention was to eliminate all religious identities, and create a uniform secular, nationalist identity. See Şükran Vahide, “Bediuzzaman Said Nursi’s Approach to Religious Renewal and its Impact on Aspects of Contemporary Turkish Society,” in The Blackwell Companion to Contemporary Islamic Thought, ed. Ibrahim M. Abu-Rabiʿ (Oxford: Blackwell Publishing, 2006), pp. 57−58. 97 Fakhry, “Philosophy and Theology,” p. 300.
194 scholar Ali Abd al-Raziq (1888-1966), argued that Islam is essentially a religious call to the whole of humankind and, as such, a purely spiritual religion. In his classical work,
Islam and the Principles of Government (1925), he states the Qurʾan, ḥadith (saying of the Prophet) and ijmāʿ (consensus of Muslim scholars) concur in affirming the spiritual character of Islam and the consequent separation of religion and politics.98 In support of these claims, Abdl al-Raziq quoted a number of Prophetic traditions arguing it was the duty of Muslims to rely on reason and common sense in the management of their worldly affairs, rather than on divine revelation, which legislated exclusively for spiritual matters. According to him, the separation between the spiritual and temporal is clearly recognised by Islam.99
Echoing Abd al-Raziq, Khālid Muhammad Khālid (d.1996), a fellow-graduate of al-
Azhar University in Cairo, pursued and defended this secularist thesis more radically in
From Here we Begin (1950). He maintained there is a distinction in Islam between the truly spiritual, which is universal and timeless, and the temporal, which is susceptible to constant change or modification.100 Khālid further argued in his work, Citizens not
Subjects (1951), that secularism would be preferable given the danger of linking religious and political power too closely.101 His argument against Kahana Islamiyya
(Islamic theocracy) concludes in the following clear commitment:
We should keep in mind that religion ought to be as God wanted to be: Prophecy, not kingdom; guidance, not government; and preaching, not political rule. The best we can do to keep religion clean and pure is to separate it from politics and to place it above politics. The separation
98 Ali Abd al-Raziq, Al Islām wa Uṣul al-Aḥkām [Islam and the Principles of Government] (Beirut: Maktabat al-Ḥayāt, 1966), p. 20; See, Fakhry, “Philosophy and Theology,” p. 300. 99 Abd al-Raziq, Al Islām wa Uṣul al-Aḥkām, p. 301. 100 Khālid M. Khālid, Min Hunā Nabdaʾ [From Here we Begin] (Cairo: n.p., 1950). 101 Khālid M. Khālid, Muwātinūn lā raʿayā [Citizens Not Subjects] (Cairo: n.p., 1951); See also, Khālid M. Khālid, Al Dīmuqratiyyah Abadan [Democracy for Ever] (Baghdad: Maktabatu’l-Muthannah, 1958).
195 between religion and state contributes to keeping religion free of the shortcomings of the state and … its arbitrariness.102
The reformist position was also advocated by a group of Indian intellectuals. They, too, endeavoured to assimilate Islam with modernity. For instance, Indian scholar Sayyid
Ahmad Khan (1817-1898) laid down what he termed the “Conformity to Nature” criterion for judging the contents of various systems of belief and concluded that Islam justified itself on this principle.103 Being influenced by nineteenth century Western rationalism and natural philosophy, he argued that Islam was a religion of reason and nature. The Qurʾan, he insisted, must be interpreted in accordance with reason and nature, and the legal and moral code must be based on nature.104 Furthermore, Khan believed, when there appeared a contradiction between a scientific fact and revelation, the latter must be reinterpreted according to scientific evidence.105 The most controversial element in Khan’s thought was his dismissal of Islamic law as having any relevance to Muslims in modern India. Impressed by Khan’s foundation of a new
Islamic theology (kalam), Fazlur Rahman (1919-1988), a Pakistani scholar, developed
102 Khālid M. Khālid, Difāʿun ʿani ‘ldimoqrātiyyah [In Defence of Democracy] (Cairo: Dar Thabit, 1985). It is very important to mention that Khālid renounced all of his earlier positions in a book published in 1989. He was convinced Islam is a unity of religion and state (din wa dawla), and called for declaring the message of Prophet Muḥammed the basis for an “Islamic world government” encompassing and uniting all humanity; See, Bassam Tibi, The Challenge of Fundamentalism: Political Islam and the New World Disorder (California: University of California Press, 1998), p. 106. 103 Fazlur Rahman, Islam (Chicago: Chicago University Press, 1995), p. 218. 104 Jamal al Din al-Afghani saw it as a new expression of a way of thought that had threatened the religion. For al-Afghani, Ahmad Khan seems to be too materialistic. He reflected this in his largest work, al-Radd ‘alā al-dahriyyīn [The Refutation of the Materialists]. Al-Afghani lamented the influence of nineteenth century Western materialism in Sayyid Ahmad Khan. He said, “Materialists like Sayyid Ahmad Khan are even worse than the materialists in Europe for those in Western countries who abandon their religion still retain their patriotism and do not lack zeal to defend their fatherland, while Sayyid Ahmad Khan and his friends represent foreign despotism as acceptable”. See J. M. S. Baljon, The Reforms and Religious Ideas of Sir Sayyid Ahmad Khan (Lahore: Shaikh Muhammad Ashraf, 1964), pp. 117−119. 105 R. Hassan, “Islamic Modernist and Reformist Discourse in South Asia,” in Reformist Voices of Islam: Mediating Islam and Modernity (New Delhi: Pentagon Press, 2009), pp. 159−86.
196 Khan’s ideas into a scientific theory.106 Rahman favoured the complete adoption of
Western culture and a total break with traditional Islam. He states:
In building any genuine and viable Islamic set of laws and institutions, there has to be a twofold movement: First one must move from the concrete case treatment of the Qurʾan⎯taking the necessary and relevant social conditions of that time into account⎯to the general principles upon which the entire teaching convergences. Second, from this general level there must be a movement back to specific legislation, taking into account the necessary and relevant social conditions now obtaining.107
According to Rahman, the fundamental challenge for Muslims in the modern world is to take into consideration the contexts of their sacred text, which is based on the context of the seventh century, to their contemporary circumstances, needs and realities. Rahman stresses that a lack of understanding of the composition of the Qurʾan, and different methodologies of interpretation, has left Muslims with two unacceptable choices: to admit the Qurʾan is largely irrelevant to meet the contemporary social, political and economic challenges of modernity or to ignore the realities of the modern world, reject progress and even attempt to turn back time.108
Another major work of Rahman’s is his Major Themes of the Quran. In this book, he highlights the necessity for reading the Qurʾan as a whole and identifying the Qurʾan’s main themes, including God, individual in society, nature, prophethood and revelation, eschatology, Satan and evil, the Muslim community and other religious communities.
The overriding theme of the Qurʾan’s contents is social reform.109 Based largely on repeated calls in the Qurʾan for commanding good and forbidding evil, establishing prayer and paying zakat, Rahman maintains “there is no doubt that the Qurʾan wanted
106 Ziauddin Sardar, “What do we Mean by Islamic Future?” in The Blackwell Companion to Contemporary Islamic Thought, ed. Ibrahim Abu-Rabiʿ (Oxford: Blackwell Publishing, 2006), p. 566. 107 Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (Chicago: University of Chicago Press, 1982), p. 20. 108 Ibid, p. 2. 109 Fazlur Rahman, Major Themes of the Quran (Kuala Lumpur: Islamic Book Trust, 1989), p. 47.
197 Muslims to establish a political order on the earth for the sake of creating an egalitarian and just moral-social order”.110 In sum, Rahman’s work encourages a revolution in
Islamic thought that rejects literalism and advocates interpretation based on contextualisation.
In a nutshell, supporters of liberal reformism esteem modernity and support the adaptation of Muslims to Western ways of life. Reformists believe in the convergence of Islamic and universal ethics, and seek to introduce them into their own societies.
Also, they are open to non-Islamic ideas and practices if these are considered beneficial to the progress and prosperity of Muslim societies. They believe that tolerance for diversity and a willingness to adjust rapidly to a changing environment contributes to the “emancipation of the individual Muslim and to the progress of Muslim societies”.111
When it comes to norms and behaviour, the Qurʾan and Sunnah are not taken as points of reference and reason is set as the criterion for social conduct.112
5.3.2 Traditional Reformists
Traditional reformists, unlike the liberals, usually reject modernity. They reject secularism and emphasise the complete self-sufficiency of Islam. They propose that
Muslims need only to look at Islam’s sources to find the answers for today’s society.113
They see modernity as the root cause of many troubles. They also oppose the inclusion of manners and customs in the inventory of items borrowed from the West.114
Traditionalists fear that blind imitation of European ways might lead to the erasure of
110 Ibid, p. 62. 111 Mir Zohair Husain, Global Islamic Politics (New York: HarperCollins Publishers, 1995), p. 110. 112 The liberal reformists are a minority in the majority Muslim world and they support dictatorial regimes, as in Syria, and the old regimes of Egypt and Tunisia. See Ramadan, Western Muslims and the Future of Islam, p.28. 113 John L. Esposito, Islam and Politics (New York: Syracuse University Press, 1998), p.317. 114 David Commins, “Modernism,” in The Oxford Encyclopedia of the Islamic World, vol. 4, ed. John L. Esposito (Oxford: Oxford University Press, 2009), p.27.
198 Islam.115 For them, Islam offers a sense of identity, fraternity and cultural values that counterbalance the psychological disorder and cultural threat of their environment.116
They believe any adaptation of Islam to changes in modern society is an innovation or deviation (bidʿa) from Islamic tradition.117
There are many scholars who claim the social and legal structures developed during the early days of Islam ought not be altered.118 Their major hallmark is the rejection of ijtihād (independent legal reasoning) and belief in the dogma of taqlīd (imitation).
Traditional reformists suggest the Islamic turāth (heritage)⎯the Qurʾan and
Sunnah⎯are not affected by changing circumstances and point to the existence of an institutionalised juridical tradition (ʿilm al-fiqh) as the protector of the religion that has always existed.119 This movement started in the nineteenth century under the slogan
“Islam is the solution” (al Islam huwa al-ḥall) and called for a return to the forefathers
(al-salaf)⎯from whence comes the name of the Salafiyya movement.120
The most important historical figure for this trend in Islam is Syrian jurist Taqiy al-din ibn Taymiyya (1263-1328). His methodology was based on strict adherence to the
Qurʾan and Sunnah. He believed these two sources contained all the religious and spiritual guidance necessary for Muslims and a revival in the Islamic world. In his most famous work al-Siyāsa al-Shariʿyya (Governance According to Islamic Law), ibn
Taymiyya emphasises the necessity of government and leadership in all societies as a
115 Ibid. 116 John L. Esposito, ed., “Islam,” in The Oxford Encyclopedia of the Islamic World, vol. 3 (Oxford: Oxford University Press, 2009), p.73. 117 Osman Bakar, “Muslim Intellectual Responses to Modern Sciences,” in Tawhid and Science (Kuala Lumpur: Secretariat of Islamic Philosophy and Science, 1991), p. 220. 118 Sharabi, Arab Intellectuals and the West, p.6. 119 Esposito and Donohue, Islam in Transition: Muslim Perspectives, pp. 256−257. 120 Ibid.
199 way of avoiding strife.121 He developed theories for what Muḥammed Iqbal (1877-
1938), a Pakistani scholar, later called the “reconstruction of religious science”.122 Ibn
Taymiyya suggested a revised theory of politics should restore the Islamic message as formulated in Sharīʿah, rather than relying on the authority of the person in charge of
Islamic polity.123
The traditionalist point of view is perhaps best exemplified in the eighteenth century
Arabian movement known as the Wahhabi movement after its founder Muḥammad Ibn
Abdul Wahhab (1703-1793).124 He, too, accepted only that which was found literally in the Qurʾan and Sunnah. Its extreme literalist approach to these sources meant he rejected qiyās, the analogical method of reasoning. Primarily, Ibn Abdul Wahhab advocated an independent and closed system of belief that had no intention of engaging with other trends. This closeness manifested in his writings, which were reproduced by
Muslim intellectuals following the Islamic movement.125 It was reproduced in Sayyid
Quṭb’s (d.1966) assessment, which is an elaboration on the idea of jahiliyya (the time of ignorance) that existed prior to God’s message to Prophet Muḥammad (pbuh) to describe a condition that can exist at any time when human beings do not live up to
God’s plan.126 Thus, according to him, the contemporary age is one of ignorance, godlessness and perplexity; hence, Muslims must withdraw from the jahiliyya society,
121 Taqiy al-din Ibn Taymiyya, Sharḥ Kitāb al-Siyāsa al-Shariʿyya (Beirut: Dār ibn Ḥazm lil-Ṭibāʿa wa al-Nashr wa-al –Tawziʿ, 2004). 122 Muḥammad Iqbal, The Reconstruction of Religious Thought in Islam (Lahore: Ashraf Co., 1951). 123 Ibid. 124 See the general principles of the Wahhābī movement in Wilfred Cantwell Smith, Islam in Modern History (Princeton: Princeton University Press, 1977), pp. 42−44. Muḥammad Abdul Wahhab was born in central Arabia to a family of teachers attached to the Hanbali school. He was trained in the strictest of the Sunni schools of law and then went to Mecca and Medina for more education. Through his studies in Medina, he had been influenced by the thought of Ibn Taymiyyah; See Albert Hourani, Arabic Thought in the Liberal Age: 1798−1939 (Cambridge: Harvard University Press, 1983), p. 37. 125 Abou El Fadl, Reasoning with God, p. 231. 126 Sayyid Qutb, The Characteristics of the Islamic Concept, trans. Abdul Karim Shaikh (Delhi: Hindustan Publications, 1984), p. 110; Also see Sayyid Qutb, Social Justice in Islam, trans. John Hardie (Kuala Lumpur: Islamic Book Trust, 2000), pp.113−126; Sayyid Qutb, Milestones (New Delhi: Islamic Book Service, 2001), p. 45.
200 establish a truly Islamic social order (al-nizam al Islāmī) and, ultimately, reconquer the ignorant order (al-nizam al jahīlī).127 Qutb’s thought contained an innovation that proved to be a particular connotation for the Islamic thinkers he inspired. He asserted that, not only non-Islamic governments, but also governments led by Muslims could be considered to exist in a state of jahiliyya; hence, he gave sanction to Muslims’ opposition to governments that ruled them.
Wahhabism has influenced many Muslims to adopt what may be called the “tyranny of the text”.128 According to this paradigm, the text is the only participant in the search of
God’s law.129 They oppose ijtihād and regard it as an innovation (bidʿa) because, according to them, the reactivation of ijtihād would open the gateway to innovative and dynamic thinking in the modern world. Thus, they go back to the original sources, not to perform ijtihād, but to confirm what they already believe to be the one and only correct law of God.130
ʿAli ʿAbd Allah al-Qusaymi (d.1996) insisted that all rules of Sharīʿah are eternal and valid for every time, place and circumstance, and cannot be changed or interpreted with shifting circumstances. He believed the text has but a single meaning.131 This belief coupled with a conviction that the rational premises and outcomes of Sharīʿah are not achievable through the text because, according to him, rationality and reasonableness are not enabled and empowered by this text.132 However, many intellectuals in the late nineteenth and early twentieth century were attracted to the ideas of Wahhabism
127 Qutb, Milestones, p. 45. 128 Abou El Fadl, Reasoning with God, pp. 222−223. 129 Ibid. 130 Ibid. 131 ʿAli ʿAbd Allah al-Qusaymi, Al-Thawra al-Wahhabiyya (Cairo: al-Matbaʿa al-Rahmaniyya, 1936), p. 131. 132 Abou El Fadl, Reasoning with God, p. 223. 132 Ibid.
201 because of their rhetoric views about reactivating ijtihād by returning to the original sources. Influential scholars such as Ghulam Rasul (d.1831), Rashid Rida (d.1935) and
Hafiz Wahba (d.1967) played a significant role in advocating the cause of Wahhabism.
But a careful reading of their writings shows the only aspects of Wahhabism in which they were interested was its rejection of superstitious and social customs that they considered opposed the spirit of Islam.133
The traditional reformists, therefore, restrict interpretation and make it difficult, if not impossible, to interpret Islam for contemporary society. They fail to distinguish between the Revelation that is immutable (thābit) and that which may subject to change
(mutaghayyir). By failing to distinguish between the immutable and the changing, traditional reformists generate confusion for both the individual and society. This differentiation is important to draw a fundamental difference between principles and models. Principles can be immutable and eternal, but their implementation over time is changing and in constant adaptation. 134
5.3.3 Modern Reformists
Modern reformists take a medium position between the liberals and traditionalists. They emerge as a compromise between secularly based advocacy of Western ideals and religiously motivated rejection of these ideals. This group of thinkers is aware of the circumstances surrounding Muslims to present Islam as a universal and practical religion.135 Their main concern is how to reconcile Islam with the challenge of Western modernity. The major features of modernism are: 1) the revival of Islamic traditions; 2) finding solutions to the challenges faced by Muslims living in Muslim-majority
133 Ibid. 134 Ramadan, Radical Reform, p. 19. 135 Hourani, Arabic Thought in the Liberal Age: 1798−1939, p. 37.
202 countries and, in the West; 3) embracing the philosophical and scientific features of modernity; 4) constructing new academic and religious institutions to meet the challenges of modernity; 5) the revival of Arabic language and acceptance of foreign languages as well; and 6) the revival of the science of theology (ʿilm al-kalam).136
Modern reformists try to strike a balance between flexibility in dealing with modernity’s unique challenges and the need for religious authenticity.137 The earliest modernists came from Egypt during the Ottoman period, the first Muslim land to initiate reforms of bureaucratic and military institutions along European lines.138 In the
1860s, leading Egyptian scholar Rifāʿah al-Ṭahṭāwī (1801-1873) visited Paris and, upon his return, praised Western habits such as punctuality, academic freedom and a sense of civic duty.139 Al-Ṭahṭāwī described them as Islamic “civilising” values that lead to social and economic advancements. For him, the adoption of these values by Muslims would compel them to be at the forefront of modern countries and, hence, set a powerful moral examples for others.140 Furthermore, al-Ṭahṭāwī called for educational reform, especially for the provision of primary education for girls. He argued that educating
136 Ibrahim Abu-Rabiʿ, “Introduction,” in The Blackwell Companion to Contemporary Islamic Thought, ed. Ibrahim Abu-Rabiʿ (Oxford: Blackwell Publishing, 2006), p. 8. 137 Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists (New York: Harper One, 2007), p.175. 138 In North Africa, a high minister in the reforming autonomous regime of Tunisia, Khayr al-Dīn al- Tūnīsī (1810-1889) advanced modernist ideas as high officials in modernising states. The modernist movement known as the Young Ottomans in Istanbul who agreed with the Tanzimat programs designed to rationalise administration in order to enable the Ottoman Empire to fend off European invasion. Given the opposition of the Young Ottomans to wholesale adoption of European ways, they justified the introduction of liberal political principles by claiming they were part of Islam. Therefore, Mehmet Namik Kemal (1840-1888), their leading writer, interpreted the Islamic concepts of shura (consultation) and bayʿa (oath of allegiance) to mean an elected parliament and popular autonomy. See, Commins, “Modernism,” pp. 27−28. 139 When al-Ṭahṭāwī visited Paris, he was extremely impressed by the city, he noticed Paris was clean, well-organised, and beautiful and the Parisians were hardworking, punctual, well-educated and productive. Upon returning to Egypt, al-Ṭahṭāwī made a comment that became famous but controversial. He said: “In Paris, I saw Islam but there no Muslims, but in Egypt, I see Muslims but there is no Islam.” Al-Ṭahṭāwī’s statement illustrates a tension in the thought of moderates who believe there are certain Islamic values, such as justice, equity, honesty, diligence, creativity, productivity and punctuality that are universally desirable and honorable. See Abou El Fadl, The Great Theft, p. 177. 140 Abou El Fadl, The Great Theft, p. 178.
203 girls would benefit society because educated women make better wives and mothers. In respect to Islamic law, he urged religious scholars to exercise ijtihād.141 Al-Ṭahṭāwī saw no conflict between religion and patriotism and, in fact, viewed Islam as the basis of
Arab nationalism in general and the foundation of Egyptian nationalism, in particular.142
Many modernist ideas were taken up by Muslim thinkers in the late nineteenth and early twentieth centuries.143 A leading figure was Muḥammad ʿAbduh (d.1905). He asserted the harmony of reason and Islam, and sought to demonstrate that all rational knowledge, including modern science, accords with Islam. For example, according to him, the prohibition of alcohol accords with modern medicine’s assertions about alcohol’s damaging effects on health.144 ʿAbduh tried to reinforce the scriptural sources (the
Qurʾan and Sunnah) and stressed the importance of ijtihād, thereby safeguarding the integrity of Islam. ʿAbduh argued the best way to re-strengthen the Muslim world was through the study of their religion to bring out its true meaning. He particularly sought to demonstrate the suitability of Islamic law for modern government. He also emphasised the reform of religious practice and beliefs in advocating return to the original sources of Islam and the reinterpretation of the Qurʾan to meet modern
141 Commins, “Modernism,” p. 27. 142 The concepts of fatherland and patriotism were new to Muslim thought. Al-Ṭahṭāwī appears to have been the first to introduce them into Arabic, see Rifāʿah al-Ṭahṭāwī, Kitāb al-Murshid al-Amīn lil-Banāt wa-al-Banīn [The Faithful Guide for Girls and Boys] (Beirut: Arab Foundation, 1973); Also, see Rifāʿah al-Ṭahṭāwī, Qalaʿid al-Mafakbir fi Gharib ʿAwaʾid al-Awaʾil wal Awakbir [Delineations of the Manners and Customs of Various Nations], G.B. Depping, trans. Moeurs et Usage des Nations (Cairo: Bulaq Printshop, 1833); Rifāʿah al-Ṭahṭāwī, Takhlis al-Ibriz fi Talkhis Bariz (The Golden Essence of the Parisian Trip), ed. M. F. Hegazi (Cairo: General Egyptian Book Organization, 1834). 143 These include the well-known names of Jalāl al-Dīn al-Afghānī (1839−1897), Muḥammad ʿAbduh (1849−1905), Said Nursi (1878−1960), Abu Aʿla Mawdudī (1903−1979), Ḥassan al-Banna (1906−1949), Sayyid Qutb (1906−1966), Muḥammad al-Ghazali (1917−1966) and Ali Shariati (1933−1977). 144 Muḥammad ʿAbduh, The Theology of Unity, trans. Isḥaq Musaʿad and Kenneth Cragg (London: n.p., 1966), p. 64.
204 demands.145 To bridge the gap between modernity and Islam, he maintained that
Muslims had to accept the need for change based on the principles of Islam.
In more recent times, Egyptian scholar Muḥammad al-Ghazali (d.1996) has asserted that certain elements of the West were to be accepted, but warned of philosophical views that were unacceptable to Islam.146 In From Here we Learn (Min Hunā Naʿlam)
(1950), al-Ghazali argued that Islam is a “comprehensible program” meant to regulate all facets of human existence, including the political and social realms of human life.147
He further maintained a return to Islam was a necessary requirement for a revival in the
Islamic community.148
This practice of engaging modernity is evident in two major strands of Islamic thought in contemporary Turkey and both are a response to Kemalism.149 The first stems from the thought of Bediuzzaman Said Nursi (d.1960), a leading theologian of world renown who wrote the magnum opus Risaleh Nur (The Rays Collection) and founded a
145 Charles Kurzman, Liberal Islam: A Source Book (New York: Oxford University Press, 1998), p. 9; also see, David Commins, Islamic Reform: Politics and Social Change in Late Ottoman Syria (New York: Oxford University Press, 1990), p. 32. 146 Basheer M. Nafi, The Rise and Decline of the Arab-Islamic Reform Movement (London: Crescent Publications Ltd, 2000). 147 Muḥammad al-Ghazali, From Here we Know, trans. Rajʿal-Faruqi (Selangor: Islamic Book Trust, 2011). 148 The purpose of From Here we Learn was to refute the ideas of ʿAbd al-Raziq and especially Khālid’s From Here we Begin to which al-Ghazali dedicated his work. Al-Ghazali stressed “written by Muslim ʿalīm (scholar) in this critical period of Islamic history, the book has a most evil effect,” and he said “freedom of opinion does not necessarily imply the protection of error, yet we shall accept the doubts, questions, criticisms and oppositions and allow these to work freely until we can bring them face to face with the truth and refute them all”. See al-Ghazali, From Here we Know, p. xxi. 149 “The ideas and principles of Mustafa Kemal Atatürk, the founder and first president of the Turkish Republic, are termed Kemalism; Kemalism constitutes the official ideology of the state, and endured publicly unchallenged until the 1980s. Kemalism proper is symbolized in the six points enumerated in the Republican People's Party (Cumhuriyet Halk Partisi, or CHP) Statutes of 1935; these were incorporated in the constitution of 1937, which remained in effect until 1961, then only to be reformulated with slight modifications. These six principles are republicanism, statism (in economic policy), populism, laicism, nationalism, and reformism. Together they represent a kind of Jacobinism, defined by Atatürk himself as a method of utilizing political despotism in order to break down the social despotism prevalent among the traditionally minded Turkish-Muslim population, for which he blamed foremost the bigotry of the ulema (men of religion; Ar., ʿulamāʿ )”. See, Mete Tunçay, “Kemalism,” in The Oxford Encyclopedia of the Islamic World, accessed July 2015,
205 community known as the Nur (light) community.150 Nursi’s objective was to rejuvenate belief through developing new teaching methods. He tried to reconcile science and
Islamic faith, and employed modern scientific perspectives to prove the existence and names of God from the universe and nature.151 He was distinguished from other religious leaders in the majority Muslim world by his seeking to reverse the decline vis-
à-vis the West, not through political struggle or the establishment of an Islamic state, but through the revitalisation of faith or belief (imān).152 In his writings, Nursi maintains that loss of belief arose from ignorance; thus, he tries to present Islamic faith through rational and convincing arguments.
The second strand is an educational Islamic movement represented by an apostle of
Nursi, Turkish theologian Fethullah Gülen (b.1941). Similarly, Gülen searches for a middle way between modernity and Muslim tradition. He accepts the Qurʾan as the eternal and perfect words of God, while recognising the role of reason in understanding and interpreting the Qurʾan.153 Gülen stresses the Islamic understanding of revelation, which seeks a balance between spiritualism and materialism, is far from dogmatic. He maintains the Qurʾan clearly opposes scholasticism, rumour and irrational imitation, while attaching great importance to reason, thinking and interpretation.154 On the issue
150 Vahide, “Bediuzzaman Said Nursi’s Approach to Religious Renewal and its Impact on Aspects of Contemporary Turkish Society,” p.72. 151 Ibid. 152 Nursi identified the gravest threat to ‘the edifice of Islam’ as coming from the decay of its intellectual foundation, which had been undermined over the centuries by currents of alien thought and materialistic philosophy. As a popular work, Risale Nur performs the primary function of tafsīr (Qurʾanic exegesis or explication), ʿAqidah (doctrine), usūl al-dīn (the principles of religion) and kalam (theology) in which he has been credited with carrying out a genuine renewal (tajdīd) in his field. See Vahide, “Bediuzzaman Said Nursi’s Approach to Religious Renewal and its Impact on Aspects of Contemporary Turkish Society,” pp. 55−60. 153 Majeed Javed, “Nature, Hyperbole, and the Colonial State: Some Muslims Appropriations of European Modernity in Late Nineteenth-Century,” in Islam and Modernity: Muslim Intellectuals Respond, ed. John Cooper (London and New York: I.B. Tauris, 2000), p. 121. 154 Fethullah Gülen, Understanding and Belief: The Essentials of Islamic Faith (Izmir: Kaynak, 1997), p. 233; Fethullah Gülen, Towards the Lost Paradise (London: Truestar, 1996); Fethullah Gülen, Criteria or the Light of the Way (London: Truestar, 1996), pp. 44−45; Fethullah Gülen, Prophet Muḥammad: The Infinite Light (London: Truestar, 1995), pp. 118−119.
206 of the relations of modernity and Islam, Gülen struggles with this dichotomy: he tries to end the Western monopoly on modernity and aims to add an Islamic set of meanings to it. Gülen tries to domesticate excessive rationalism with Sufism and love, and to reconcile individualism and religion.155 Also, Gülen, like Nursi, emphasises the necessity of seeking a balance between the constant and changing aspects of Islam.
Among the most prominent modern reformists addressing the issue of balancing between reason and revelation is Tariq Ramadan. He is a leading Muslim intellectual in breaking this dichotomy between living in the West and being Muslim.156 The relationship between Islam and the West is a primary focus in his books: To be a
European Muslim (1999), Islam, the West and the Challenge of Modernity (2001),
Western Muslims the Future of Islam (2004) and What I Believe (2010),157 and
Ramadan addresses the challenge of being faithful to Islamic principles while living in the West. Also, he highlights the importance of preserving Muslim identity in a
European context using the concept of integration. Using evidence from Islamic sources, he encourages Western Muslims to rectify their understanding of Islam on the basis of authentic understanding of not only the rules of Islam, but also the meanings of
Sharīʿah. Ramadan maintains the principles of Islam have the capacity to respond to the challenge of modernity and to live a harmonious life in a modern democratic society.
Sensitive to the difference between the immutable and changeable in the Islamic sources, Ramadan emphasises the necessity of rereading the Qurʾan with reference to the European or Western context. In Radical Reform: Islamic Ethics and Liberation
155 Gülen, Prophet Muḥammad, pp. 118−119. 156 Rane, Islam and Contemporary Civilisation, p. 69. 157 Ramadan, To be a European Muslim; Ramadan, Western Muslims and the Future of Islam; Ramadan, Islam, the West and the Challenge of Modernity.
207 (2009), he advocates an approach of interpretation of the Qurʾan based on the scheme of the maqāṣid al-Sharīʿah.158
It is clear the responses of Islamic modern thought to modernity come from different approaches. Refusing any contact with modernity or accepting it blindly are two extreme positions; hence, they are not suitable for most Muslims living in the West because they are not able to offer any real solutions for contemporary Islamic thought.
Modern reformists, however, have made profound contributions to contemporary understandings of Islam in bridging the divide between Islam and the West. Their engagement is about addressing a balance between reason and revelation, and advocating reform. An even more significant factor is that “reform” for them is not about correcting Islam, it is about better serving the trust that has been given to Muslims by God.
5.4 The Way Ahead in the Australian Context
The major challenge for most Muslim reformists is the difficulty of balancing and drawing connections between modern changes and Islamic beliefs and tradition. The reasons for this challenge are twofold: firstly, the different levels of education the
Muslim reformists have received; and secondly, the socio-political conditions of almost all countries with a Muslim majority that are under the oppression of regimes.159 These regimes are mostly in agreement with Western powers.160 Alternatively, and since the majority of them are immigrants, Muslims in the West lack clear reflections that
158 Ramadan, Radical Reform. 159 Ramadan, Islam, the West and the Challenge of Modernity, p. 320. 160 Ibid.
208 distinguish between what they should reject and what they want to accept, between the rejection of Western interference and the domain of possible exchanges.161
Consequently, the legitimacy of Islamic reformist thought hinges on three obligations:
1) the education of Muslim scholars⎯as much as possible about Islam and
Sharīʿah⎯so they can protect their religion from misaligned interpretations and disinformation; 2) the commitment of Muslim scholars to Islamic law, and 3) an awareness of contemporary reality in the world and the modern changes and particularly the problems in Australian society.
Many Muslim scholars, however, are offended by the idea of reform because they wrongly believe this indicates Islam is faulty or incomplete. However, reform is not necessarily about correcting the principles of Islam; it can be about obtaining an authentic understanding of Islam.162
Islam emphasises that Muslims are to be aware of their future and should actively shape their future. The Qurʾan repeatedly asks Muslims to change themselves from within and constantly strive to change the world so it becomes a more just, impartial and peaceful abode for all humanity: “That man can have nothing but what he strives for. That [the fruit of] his striving will soon come in sight. Then will he be rewarded with a reward complete”.163 This is why the principle of ijtihād, which is concerned mainly with changing and with shaping and reshaping the future, can be found at the core of
Sharīʿah. Therefore, to transform the world proactively, religion, technology and science must be engaged at fundamental levels: at the level of principles, values and ethical concerns. It is very important, however, to distinguish between immutable
161 Ibid, p. 322. 162 Ibid. 163 Qur’an 53:39−41.
209 (thābit) and that which may be subject to change (mutaghayyir).164 Many contemporary scholars find space for reform by maintaining the Qurʾan permits everything except what is explicitly forbidden by a revealed text or by scholarly consensus, as mentioned in chapter 3.165
Islam may be seen not just as a faith or a religion, but a holistic teaching that unites belief, effort, discipline and knowledge together to attain happiness in this life and the hereafter. Those who hold this view believe Muslim scholars may interact with contemporary reality through an integrated matrix of Islamic values. Thus, contemporary problems and challenges are to be analysed and examined with ethical and value concepts according to the higher objectives of Sharīʿah. When this happens,
Sharīʿah is transformed from a body of rules and injunctions that are imposed on
Muslim societies into a multidimensional problem solving process via applying the methodology of ijtihād.
What remains essential in this discussion is for Muslims to be both faithful to the creed as such and understand the questions raised by the modern world. Only within this frame of reference can the meticulous implementation of ijtihād through tajdīd
(renewal) and iṣlāḥ (reform) be effective and beneficial. As Ramadan puts it:
Faithfulness to principles cannot involve faithfulness to historical models because times change, societies and political and economic systems become
164 The principles of justice, equality, rights and human brotherhood that guided the Prophet of Islam remains the principles beyond history. Also, there is a sharp distinction between obligations to God or worship (prayer, fasting, almsgiving, pilgrimage) and laws that govern social and human affairs (marriage, divorce, inheritance, contracts, bank interest, mortgages) that can be changed in response to new circumstances. 165 Yusuf al-Qaradawi, an Egyptian scholar, claims everything is acceptable (ḥalal) unless proven forbidden (ḥaram) by an explicit Qur’anic or Prophetic text. See Ramadan, Western Muslims and the Future of Islam, p. 35; also, see Yusuf al-Qaradawi, The Lawful and Prohibited in Islam (Indianapolis: American Trust Publications, 1980), p. 14.
210 more complex, and in every age, it is in fact necessary to think of a model appropriate to each social and cultural reality.166
Ramadan’s position provides space for affirmation both of Islamic tradition and the need and ability to re-read sacred texts in response to changing and modern contexts. He finds space for reform, by maintaining the Qurʾan permits everything except what is explicitly forbidden by a revealed text or by scholarly consensus. Thus, there is continuity between reform and Islamic tradition.
This discussion can be applied to the Australian context. Muslim scholars (ʿulamāʾ) have to identify the new challenges, then return to the sources to provide Muslim communities with an appropriate Islamic framework and set of explicit and decent rulings fitting their new situation. The new Australian context for many Muslims requires ʿulamāʾ to stipulate fatāwā (specific legal rulings) within such a framework and in light of Australian legislation. In each situation, ʿulamāʾ must measure the space offered by government legislation to define an orientation that will enable them to do ijtihād not only according to Islamic principles, but also by taking into consideration the context and time as well, while remaining within the limits of the Constitution of
Australia.
5.5 Conclusion
This chapter has discussed the conceptual definitions of modernity and religion in general, and Islam in particular, to demonstrate that Islam is compatible with reason, which is considered an essential element of modernity. Although it has been frequently argued that religion with its reliance on faith in the unseen seems to clash with reason,
166 Ramadan, Western Muslims and the Future of Islam, p. 36.
211 with its insistence on empirical data, I have sought to demonstrate that no such clash exists from an Islamic perspective between Islam and reason.
Muslim responses to the challenges of modernity have been examined and discussed.
From various Islamic responses to modernity—liberal reformists, traditional reformists and modern reformists—the following observations may be noted: (1) refusing any contact with modernity or accepting it blindly are extreme positions that are unsuitable because they do not offer a real solution for contemporary Islamic thought; (2) opposing modernity means rejecting to live the sequence of time and this is mainly due to the literal interpretation of some of the verses of the Qurʾan and ḥadith; (3) a strict literal interpretation of the Qurʾan is irreconcilable with the principles of mercy and compassion;167 (4) “reform” is not about correcting Islam, but about better fulfilling the trust given to Muslims by God; and (5) there is a need to interpret the Qurʾan in accordance with compassion, mercy, context and the identified maqāṣid.
The discussion in this chapter leads to an important conclusion: Muslims in Australia need leadership that will help ensure that Muslim scholars and theologians are able to articulate a meaningful theology and be courageous enough to challenge theologies of hate.168 Facing this challenge will require the assistance and partnership of Australian
Muslim leaders and the Australian government. The latter needs to ensure it is seen as anti-terror rather than being perceived as anti-Islamic. The former needs to create institutions with curricula that comprehend modern thought and attract talented
167 Qurʾan 21:107: “We sent thee not, but as a Mercy for all creatures”; Qurʾan 16:90: “Allah commands justice, the doing of good, and liberality to kith and kin, and He forbids all shameful deeds, and injustice and rebellion: He instructs you, that ye may receive admonition”. For more verses about mercy and compassion, see Qurʾan 3:134, 3:148, 4:1, 5:93, 6:84, 16:128, 29:69, 41:34−35, 55:60. 168 In 2011, the appointment of Dr. Ibrahim Abu Mohammed to be the Grand Mufti of Australia was the first step on the way of ensuring good leadership for Muslims. He is attempting to unify the diverse Australian Muslim community under one religious authority. Considering the recent⎯in the last five years⎯controversy regarding the declaration of Eid (Muslim celebration), it may take some time before unified religious leadership emerges.
212 students. With such institutions, it is likely an authentic understanding of Islamic principles can be fostered, and therefore empower young scholars with the tools to navigate through and understand the challenges of modernity, not simply replicate a textual understanding of Islam from overseas.
The goal of education is to produce an innovative and articulate generation of
Australian Muslims who will see no dichotomy between holding onto their faith and living and contributing to a democratic, secular modern state. The issue of compatibility between democracy and Islam has been a major debate as well, and it is to this issue that my next chapter turns.
213
6 WHEN ISLAM AND DEMOCRACY MEET
6.1 Introduction
The Arab Spring events of 2011 are widely viewed today as one of enormous historical political transformation. Those events put the relationship between Muslims and democracy at the heart of global politics. In January of that year, Mohammed Bouazizi, a 26-year-old street vendor in Tunisia, triggered events in the Middle East and North
Africa that raised expectations of democracy in Muslim-majority countries. Until then, those countries had authoritarian regimes, which are trying now to transform into democratic rule. Bouazizi came from a small town in central Tunisia and struggled to feed his family. One day, his weighing scales were confiscated by a member of the police force because he failed to pay a bribe. When he tried to resist, he was slapped and spat upon. He complained to the local authorities, but his protests went unheard and he was reportedly further mocked. With nowhere to turn, no means of making a living and full of frustration, desperation and fury, he stood in the middle of traffic outside the governor’s office and killed himself in an act of self-immolation. This event triggered the Tunisian Revolution and the wider Arab Spring, rendering Bouazizi’s life the stuff of legend.1
Many Arabs who are living in similar circumstances across North Africa and the Middle
East identified with Bouazizi’s tragedy on a personal level. His frustration, humiliation, miserable economic plight and anger were theirs. Around the same time, a similar event involving the death of young man, Khaled Saʾid, close in age to Bouazizi, stirred
1 Kareem Fahim, “Slap to a Man’s Pride Set Off Tumult in Tunisia,” New York Times, January 21, 2011, accessed June, 2015,
215 Egyptians to rise up and eventually overthrow Hosni Mubarak, the Egyptian president, the following year.2
It is important to mention that the Arab Spring was not only the result of individual protests, but rather a long-term process associated with a set of common historical experiences, which partly explains why it was such a mighty force in the politics of the region. For the majority-Muslim world the twentieth century was an extremely grievous one. European colonialism and imperialism thwarted the aspirations of millions of
Arabs for self-determination.3 The desire to create one Arab state that encompasses most Muslim-majority countries after the ruins of the Ottoman Empire was criticised at the agenda of British and French ambitions.4
The aftermath of World War II saw a gradual liberation of the Arab world from
European control and the emergence of brief periods of optimism. Many thought the opportunity for self-determination had finally arrived, but this optimism did not last long. Within the span of two decades, new postcolonial rulers came to power. The new rulers were native to the soil and had Muslim names, but they behaved like their old colonial masters. The term neocolonialism is a good description for this situation.5 In the Syrian context, the Syrian human rights activist, Radwan Ziadeh, argued “we need a second independence in Syria. The first was from the French and the second will be from the Assad dynasty.”6 The United Nations High Commissioner for Human Rights,
Navi Pillay, has repeatedly called on the UN Security Council to refer Syria to the
2 Sarah El Deeb, “In Retrial, Two Policemen get 10 Year Sentences for 2010 Beating of Egyptian to Death,” Associated Press, March 3, 2014, accessed June, 2015, http://news.yahoo.com/egypt-police-10- years-2010-beating-death-192333872.html. 3 Nader Hashemi, “Syria, Savagery and Self-Determination: What the Anti-Interventionists are Missing,” in The Syria Dilemma, ed. Nader Hashemi and Danny Postel (Cambridge: Boston Review, 2013), p. 228. 4 Ibid. 5 Ibid. 6 Liam Stack, “In Sometimes Deadly Clashes, Defiant Syrians Protest,” New York Times, April 17, 2011, accessed June, 2015, http://www.nytimes.com/2011/04/18/world/middleeast/18syria.html.
216 International Criminal Court. He stated, “We will be judged against the tragedy that has unfolded before our eyes.”7 When writing on behalf of the Elders8, a global network of prominent leaders on peace and human rights, Desmond Tutu declared we are “all shamed by Syria’s suffering”.9 These feelings are also the same towards Zine El
Abidine Ben Ali of Tunisia, Muammar Qdafi of Libya, Hosni Mubarak of Egypt and beyond. Commenting on the Arab Spring, the historian Ilan Pappé remarked that what is happening in the Middle East is the “second phase of decolonisation.” Recent events, he noted, had demonstrated the collective “assertion of self dignity in the Arab world” after decades of humiliation, despotism, and despair.10
Comparisons have been made to the European revolutions of 1848 and the post-Cold
War democratic transitions in Eastern Europe, while some have spoken of a possible
“fourth wave” of democratisation.11 These similarities make sense given that longstanding dictators who seemed resistant to political change were suddenly toppled by non-violent protesters invoking the universal themes of human rights and democracy. The rise of Islamist parties as a result of democratic elections raises the question of the compatibility of Islam with democracy, as the Islamists declare they want Islamic rules that encompass democratic aspects and values.
It is important, however, to highlight that Islam is a comprehensive system of values, an all-encompassing religion that expounds the relationship between God and the creation,
7 Nader Hashemi and Danny Postel, “Why Syria Matters?” in The Syria Dilemma, ed. Nader Hashemi and Danny Postel (Cambridge: Boston Review, 2013), p. 3. 8 “The Elders” is an international non-governmental organisation of public figures noted as elder statesmen, peace activists and human rights advocates who were brought together by Nelson Mandella in 2007. 9 Nader Hashemi and Danny Postel, “Why Syria Matters?” in The Syria Dilemma, ed. Nader Hashemi and Danny Postel (Cambridge: Boston Review, 2013), p. 3. 10 Ilan Pappé, interview by Frank Barat, “Reframing the Israel-Palestine Conflict,” New Internationalist, April 1, 2011, accessed newint.org/features/web-exclusive/2011/04/01/Palestine-israel-interview-pappe/. 11 Leon Neyfakh, “Is This 1848?: What History can Teach us about Arab Revolutions,” Boston Globe, March 27, 2011; Larry Diamond, “A Fourth Wave or a False Start? Democracy After the Arab Spring,” ForeignAffairs.com, May 22, 2011.
217 the universe, all of life and humankind,12 whereas democracy simply means government by the people; a form of government in which sovereign power lies with the people.
Most nations of the world have adopted some form of democracy. Therefore, when examining the compatibility of Islam and democracy, only the socio-political elements of Islam can and should be compared with democratic values.13
There is an extensive scholarly debate on the compatibility of Islam, democracy and human rights. Some authors have argued that Islam has all the elements and values of democracy. Others have argued that democracy is illegitimate because it substitutes human authority for God’s sovereignty. Among politicians in Australia and elsewhere, there is considerable debate as to whether Islam will infringe upon human rights and undermine democratic values. With this context in mind, this chapter addresses the impediments associated with the socio-political elements of Islam and democracy. It examines democracy in Muslim-majority countries and considers the possibility of a democracy based on Islamic principles. To discuss these arguments, this chapter will analyse three questions: How can a democratic conception of people’s authority be reconciled with the socio-political elements of Islamic law? How do Muslims understand (and practise) democracy and human rights? And how can the socio-political elements of Islam and democracy co-exist in Australia?
To answer these questions, it is useful to shed some light on the notion of democracy in general and the Medina State Model established by Prophet Muḥammed (pbuh), which continues to be a source of guidance on government for Muslim-majority countries.
Then, I will outline the arguments advocated by some Muslim scholars on the compatibility of the socio-political elements of Islam and democracy. After that, the
12 John Schacht and C.E. Bosworth, The Legacy of Islam (Oxford: Oxford University Press, 1974), p. 405. 13 Mehmet Ozalp, Islam between Tradition and Modernity: An Australian Perspective (Canberra: Barton Books, 2012), p. 167.
218 chapter will turn to explore human rights through the lens of maqāṣid al-Sharīʿah, and the struggle for democracy in Muslim-majority countries and Australia.
6.2 The Notion of Democracy
It is reported that a Chinese student at the 1989 Tiananmen Square democracy rally held a poster that read, “I don’t know what democracy means, but I know we need more of it.”14 In fact, the word “democracy” may be familiar to most, but it is a concept that is misunderstood and often misused, with dictators and military coup leaders appealing to it for support.15
The word “democracy” is one of the most commonly used terms in contemporary global politics. The starting point for this discussion will be the conceptual and ideological resources available for democracy in general. The word “democracy” is derived from the Greek word “demos” or “people”. Democracy originally meant the people were the sovereign power in the state and their sovereignty implied they had a major part in political decision-making.16 That is to say, the people were the actual political decision- makers or they were in the position of certifying the decisions made on their behalf by their appointees.17 It is defined, basically, as a government in which supreme power is vested in the people.18 Direct democracy as seen by the famous Swiss-born philosopher
14 Russell J. Dalton, Doh C. Shin, and Willy Jou, “How People Understand Democracy,” in How People View Democracy, ed. Larry Diamond and Marc Plattner (Maryland: Johns Hopkins University Press, 2008), p.2. 15 Ibid. 16 Majid Behrouzi, Democracy as the Political Empowerment of the People: The Betrayal of an Ideal (Plymouth: Lexington Books, 2005), p. 16. 17 Ibid. 18 Ibid.
219 Jean Jacques Rousseau (1712−1778) and by the American president Abraham Lincoln
(1809−1865) is a government of the people, for the people and by the people.19
The British philosopher, John Locke, pointed out the individual has the right to pursue life and liberty. Also, he declared, if individuals were not happy with the laws under which they were living, they should be free to remove themselves to another place where laws could not compel them into compliance.20 Additionally, Locke believed, if a government seizes the rights of the people, the people have the right to change the government. Thomas Jefferson, who drafted the foundation of the American Declaration of Independence, was also of the view, if a government interferes with an individual’s rights, the people have the right to institute a new one which would secure their safety and happiness.21
On a different level, the cornerstone of Rousseau’s theory of government and political legitimacy is the idea of the “general will” of the people. It is to be understood as a well-intentioned will, which “always tends toward the public utility and equality.”22 An extreme stretch of this explication leads to the allegation the general will is always right, which elevates the notion to the position of sovereignty in the state.23 According to
19 Jean Jacques Rousseau is the greatest democratic thinker of the eighteenth century. To Rousseau, direct democracy is necessary for true freedom, because one is only free when obeying a law that oneself “willed”. According to him, one cannot delegate one’s will; it follows that no law in the making of which one has not directly shared can be obeyed without a loss of freedom. A similar case is that direct involvement in politics, listening to and joining in debate and voting, has an education influence. People are seen as coming to understand their own and others’ needs more clearly, and to grow in personality and morality through direct participation in decision-making and law-creating. This idea is shared by some theorists of democracy such as John Stuart Mill (1806−1873), who emphasised the importance of local politics because such political activity comes nearer to direct democracy. See, David Robertson, A Dictionary of Modern Politics (London: Europa Publications, 2002), p. 149. 20 John Locke, Essay Concerning the True Original, Extent and End of Civil Government (London: J.M. Dent and Sons, 1936), p. 117. See, Willmoore Kendall, John Locke and the Doctrine of the Majority-Rule (Urbana: University of Illinois Press, 1965), pp. 63−67. 21 Lee Cameron MacDonald, Western Political Theory (New York: Harcourt Brace Jovanovich Inc., 1968), pp. 367−368. 22 Behrouzi, Democracy as the Political Empowerment of the People, p. 17. 23 Jean-Jacques Rousseau, On the Social Contract, trans. G.D.H. Cole, ed. Drew Silver (New York: Dover-Thrift Editions, 2003), p. 19.
220 Rousseau, “the general will…directs the forces of the state according to the purpose for which it was instituted, which is the common good.”24 Moreover, the general will is assumed to be revealed or discovered through the mechanism of majority-rule voting.25
This means, for the people to rule themselves, it is necessary that the choices represent judgments about what is best for “the moral and the collective body”.26 Rousseau found fault with Athenian democracy for it not being able to draw clear lines of demarcation between the executive and legislative functions of governing. A lack of such a division between these functions, he believed, would create instability.27 Thus, for him, the term
“democracy” meant that ordinary citizens would be placed in executive positions in addition to legislative ones.
In debates concerning democracy desirable for Western political systems, many different proposals have been made. John Burnheim, a philosopher from the University of Sydney, for example states, “in order to have democracy we must abandon elections…and revert to the ancient principle of choosing by lot those who are to hold various offices…elections inherently breed oligarchies”.28 Opposing this idea, Robert
Dahl from Yale University argues that elections combined with continuous political competition between individuals or parties or both are the two critical methods of social control distinguishing polyarchal democracy from dictatorship.29 Dahl’s theory of polyarchal democracy, in its various formulations, has ranked among the most
24 According to Rousseau “there is often a great deal of difference between the will of all and the general will. The latter considers only the general interests, whereas the former considers private interest and is merely the sum of private wills. See, Rousseau, On the Social Contract, p.15. 25 Andrew Levine, The General Will: Rousseau, Marx, Communism (Cambridge: Press Syndicate of the University of Cambridge, 1993), p. 80. 26 Levine, The General Will, p. 81. 27 Behrouzi, Democracy as the Political Empowerment of the People, p. 42. 28 John Burnheim, Is Democracy Possible: The Alternative to Electoral Politics (Berkeley, California: University of California Press, 1985), p. 9. 29 Robert A. Dahl, A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956), p. 75; Robert A. Dahl, Who Governs? Democracy and Power in an American City (New Haven: Yale University Press, 1963), pp. 324−325.
221 formidable, influential and enlightening versions of contemporary democratic theory.30
For Dahl, polyarchal democracy is a political order distinguished by the rights of citizenship, which include the opportunity to oppose and vote out the highest officials in the government.31 For these characteristics of a liberal democracy to exist, he insists that eight institutional guarantees are required: 1) freedom to form and join organisations; 2) freedom of expression; 3) inclusive suffrage; 4) the right to run for office; 5) the right of political leaders to compete for support and votes; 6) availability of alternative information; 7) free and fair elections; and 8) the existence of institutions for making government policies depend on votes and other expressions of preference.32 While these institutional guarantees are necessary for liberal democracy, they are not sufficient by themselves. Constitutional guarantees are also needed to ensure the protection of basic rights and liberties, and to ensure that democratically elected governments rule within the framework of the constitution.33
In the modern period, democracy implies an equality of rights and treatment before the law for all citizens without discrimination regardless of religious belief, race or creed.
Its “telos” is established toward the nonviolent management of human dealings to create the good life on this earth.34 Thus, freedom and equality of all citizens represent the cornerstones of democracy. Also, no democracy can exist without securing full rights for the opposition. James Madison (1751−1836), the fourth president of the United
30 George Van Der Muhll, “Robert A. Dahl and the Study of Contemporary Democracy: A Review Essay,” American Political Science Review 71 (September 1977): 1070−1096. 31 Robert A. Dahl, Democracy and its Critics (New Haven, Conn: Yale University Press, 1989), p. 220. 32 Robert A. Dahl, Polyarchy: Participation and Opposition (New Haven, Conn: Yale University Press, 1971), p. 3. 33 Nader Hashemi, Islam, Secularism, and Liberal Democracy: Towards a Democratic Theory for Muslim Societies (Oxford: Oxford University Press, 2009), p. 7. 34 Ibid.
222 States (1809−1817), wrote “Liberty is to faction as air to fire.”35 Freedom that promotes faction is valuable since false consensus or disappearance of differences may mean tyranny or stagnation. Yet, differences and opposition must be handled legitimately, without moral or physical assaults against opponents.36
However, modern democracies used by some countries in the West and practiced against Muslim-majority countries are different from what was established theoretically.
Practically, democracy should be universal for all of humanity: the rich and the poor, the developed and the developing. For instance, exporting tobacco to other countries without a health warning; shipping food, medicine, chemicals and other products without expiry dates; ignoring the safety precautions or the inevitable harm of certain industries as long as they are established in other countries; and moving nuclear waste to the open seas may be considered anti-democratic.37 For instance, and as emphasised by Francis Fukuyama, an American political scientist, in The End of History and the
Last Man, liberal democracies were led to adopt genocidal military strategies like the bombing of Dresden or Hiroshima. In his view, the genocides committed by the totalitarian regimes of Hitler’s Germany and Stalin’s Russia were without precedent in human history.38 He argues that Hitler and Stalin put modern technology and modern liberal democracy in the service of evil. He writes:
A world made up of liberal democracies, then, should have much less incentive for war, since all nations would reciprocally recognize one another’s legitimacy.39”
35 Fathi Osman, Islam in a Modern State: Democracy and the Concept of Shura, (Washington: Centre For Muslim-Christian Understanding History and International Affairs, Edmund A. Walsh School of Foreign Service Georgetown University, 2001), p. 5. 36 Ibid. 37 Ibid. 38 Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 2006), p. 6. 39 Ibid, p. xx.
223 Liberal democracy produced “men without chests,” composed of desire and reason but lacking thymos, clever at finding new ways to satisfy a host of petty wants through the calculation of long-term self interest.40
Although all human beings are living in one global village, egotistic attitudes and vision dominate international relations between developed and developing countries.
Therefore, basing democracy and morality on human’s interests is a risky affair because of the relative and temporary nature of human’s values. So, should democracy and morality be based upon religious principles instead?
The rules of democracy can be changed, adjusted and amended by the people, unlike theologically based political systems, which are based on religious principles to create the good life on earth and in the hereafter. Thus, I will next examine the Medina State
Model.
6.3 The Constitution of Medina
The Muslim community began in the seventh-century in the city of Mecca.
Muḥammed’s message was a major challenge to the existing dominant elite. As time went on, the Muslims were harassed and persecuted.41 To escape persecution, the
Muslims in Mecca emigrated to Medina (the Hijrah event), then a religiously pluralistic society. Immediately following the Hijrah, Prophet Muḥammed (pbuh) developed what came to be called the “Constitution of Medina”. This constitution outlines the rights and procedures for resolving conflict between Muslims and non-Muslims.42
The Constitution of Medina provides an excellent historical example of two theoretical concepts that have shaped contemporary political theory, which relies heavily on the
40 Ibid, p. xxii. 41 John L. Esposito and John O. Voll, Islam and Democracy (New York, Oxford: Oxford University Press, 1996), p. 40. 42 Ibid.
224 ideas of a social contract and a constitution. The Constitution of Medina is regarded by
Muslims as the first constitution in history to consist of democratic values. Its principles are based on the Qurʾan and Sunnah.43 In the preamble, the initiator of the constitution was the Prophet. It begins as follows:
In the name of God the Compassionate, the Merciful. This is a covenant from Muḥammed the Prophet (governing the relations) between the believers and Muslims of Quraysh and Yathrib (Medina), and those who follow them and joined them and labored with them. They constitute one ummah.44
According to this constitution, Muslims and non-Muslims are equal citizens of the
Islamic state in Medina, with identical rights and duties. Communities with different religious orientations may enjoy religious autonomy and equality in the eyes of the law.
The constitution states that freedom, justice and equality are based on humanity (articles
43 The Medina Constitution or Charter, written and promulgated by Prophet Muḥammed in 622 CE was the first written constitution in the world. Aristotle’s constitution of Athens on Papyrus, discovered by an American missionary in Egypt in 1890 and published in 1891, was not a constitution, rather it was an account of the constitution of the city-state of Athens. Also, the Constitution of Medina preceded the American Constitution of 1787, considered by USA as “a landmark document of the Western world… the oldest written national constitution in operation” by more than a thousand years. The Constitution also preceded the English Feudal bill of rights, the Magna Carter of 1215, by almost six centuries. The importance and uniqueness of the Constitution of Medina is not only because it is the first written constitution, but also it was modern in the sense it was proclaimed for a plural society, giving equal rights to every citizen as well as giving them a say in governmental matters. The Constitution consists of 48 clauses: clauses 1, 2 and 39 state the formation of a sovereign nation-state with a common citizenship, consisting of various communities which constitute a unified ummah in having equal rights and responsibilities. These two clauses established the first modern nation-state in the world. Therefore, this Constitution ordained equality to all citizens of Medina and protected them against oppression. A very important human rights principle was given in clause 25 where freedom was guaranteed for each community to practice its own religion. Another important principle in this Constitution is consultation with people in all matters, and no quarter is given to an injustice or wrongdoing. See, Majid Khadduri, War and Peace in the Law of Islam (Baltimore: Johns Hopkins Press, 1955), pp. 206−209; Muhammad Hamidullah, Documents sur la Diplomatie Musulmane (Paris: G.P. Maisonneuve, 1935), pp. 9−15. Unlike in modern democratic polity, the voice of the people regardless of whether that voice represents right and truth or not, is given the highest value. In the name of the people, oppression, wars, colonialism and aggression have been generated in the democracy of our days. 44 For the complete Arabic version, see Ibn Hisham, Abd al-Malik (d. 833), al-Sirah al-Nabawiyyah [The Prophetic History], vol. 2 (Beirut: Dar Ihyaʾ al-Turath, 1995), pp. 115−116; English translation, see Alfred Guillaume, The Life of the Muhammad: A Translation of Ishaq’s Sirat Rasul Allah, vol. 1 (Oxford and Delhi: Oxford University Press, 1955), pp. 231−232; Martin Lings, Muhammad: His Life Based on the Earliest Sources (London: George Allen and Unwin Publishers, 1989), pp. 125−127; Montgomery Watt, Muhammad, Prophet and Statesman (London: Oxford University Press, 1961), pp. 94−96.
225 15 and 16).45 Christians and Jews are mentioned in the constitution as “people of the
Book” and although they were an ethnic minority⎯after the migration of Muslims⎯in seventh century in Medina were considered equal with the majority, forming one community (ummah waḥida). The Constitution of Medina “placed the rules of justice over and above religious solidarity, and affirmed the rights of the victims of aggression and injustice to restitution regardless of their tribal and religious affiliations.”46
The Constitution of Medina presented a number of political rights and facilities that were to be provided by the state to all its citizens, Muslims and non-Muslims alike. It consists of 48 articles or clauses, which provide the following social and political rights:
1) freedom of belief; 2) freedom of movement to and from Medina; 3) the assurance that if there is an external threat to non-Muslims, Muslims would help them and vice versa; 4) the assurance that both Muslims and non-Muslims are believers and would stand together to defend Medina against attack; 5) an agreement that no one will go to war before consulting the Prophet; 6) an assurance that when consultation occurs the representatives of all parties will be present; 7) an assurance that in cases of negotiation with foreign states, representatives of all parties will be present, and negotiations will not be concluded unilaterally; 8) an assurance that prisoners of war will be redeemed with justice and kindness; 9) that a person is not liable for their ally’s misdeeds; 10) a recognition that charity and goodness are clearly distinguishable from crime and injury;
45 Sayed Khatab and Gary Bouma, Democracy in Islam (London & New York: Routledge, 2007), p. 32; Article 15, Prohibition of unjust favoritism: A believer shall not form an alliance with the associate of (another) believer without the (latter’s) consent; Article 16, Collective resistances against injustice, tyranny and mischief: There shall be collective resistance by the believers against any individual who rises in rebellion, attempts to acquire anything by force, violates any pledge or attempts to spread mischief amongst the believers. Such collective resistance against the perpetrator shall occur even if he is the son of anyone of them. 46 Khatab and Bouma, Democracy in Islam, p. 32.
226 and 11) that God is the guarantor of the truth and goodwill of the covenant.47 The constitution provides a precedent for a pluralistic socio-political system in accord with
Islamic traditions and is based upon the cultural foundation of the message of the
Qurʾan. The Prophet (pbuh) was the ruler, but not the sovereign. Sovereignty in the constitution did not rest with the person of the Prophet or any particular group, but with the law founded on the basis of justice and goodness⎯maintaining the dignity of all groups in the community.48
After the death of the Prophet (pbuh), the example of the Rightly Guided Caliphs concerning the questions of leadership and succession is also a model of democratic rules applicable to modern times. The community in Medina elected Abu Bakr, the first caliph, by a process that involved consultation (shura) and public endorsement of a leader (bayʿa). On his deathbed, Abu Bakr designated ʿUmar as his successor and the people approved his designation. When ʿUmar was dying, he appointed an electoral committee composed of six prominent companions and entrusted them to choose a successor from among themselves. Their choice was ʿUthman, then after his death, ʿAli was declared caliph. The point is that different methods of selecting a leader were used during the period of Rashidun, after Prophet Muḥammed (pbuh), which shows there was flexibility in how leaders were chosen and divine rulings did not specify one particular processes for electing of leaders.49
With this context in mind, it is clear the specific rulings concerning government, leadership and succession promulgated by the Prophet (pbuh) were “said or done as a
47 Willmoore Kendall, John Locke and the Doctrine of Majority-Rule (Urbana: University of Illinois Press, 1965), p. 91. 48 Muhammed Husayn Haykal, The Life of Muḥammad, trans. Ismaʿil al-Faruqi (Malaysia: Islamic Book Trust, 1976), pp. 180−182. 49 Rane, Islam and Contemporary Civilisation: Evolving Ideas, Transforming Relations, p. 137.
227 matter of policy made in accordance with the circumstances of the time.”50 Those rulings practised by the Prophet (pbuh) and by the caliphs in the period of Rashidun were not rules in the Qurʾan, but were based on statements or actions of the Prophet or his companions. Thus, a government that wants to follow socio-political Islamic principles may introduce new laws and policies concerning social and political matters according to the circumstances of times.
In modern times, the idea that the socio-political Islamic principles represent a
“constitution” for Muslim societies is affirmed by a broad spectrum of scholars.
However, such fundamental principles have been defined in a variety of ways. Some scholars have concentrated on the basic sources, the Qurʾan and Sunnah, affirming the compatibility of the socio-political elements of Islam with the values of democracy.
Others have rejected the idea that Islam has democratic values.
6.4 Muslim Scholars and Democracy
The opinion of Muslim scholars on democracy covers a fairly wide range of thought, extending the belief that popular participation in democracy is a necessity for development to the fear the unrestrained liberty of Western democracy will result in neglect of the social values of Islam.
In the nineteenth century, new ways of thought began to emerge in the Middle East. It became widely recognised that many Islamic laws could not be upheld unless they were implemented by a political entity, such as a state. The proponents of this view argued it was impossible to implement Islamic finance, judgments, penalties and other ethical
50 Ibid.
228 directives and prohibitions without an Islamic government in place.51 There are three categories of scholars who consider that democracy is not incompatible with Islamic political principles, but whose opinions on the marriage between Islam and the state, and the implementation of the notion of democracy, varies significantly. Broadly, the categories are: liberal Muslims, moderate Muslims and traditionalist Muslims.
6.4.1 Liberal Muslims
Liberal Muslims come from different Muslim traditions. They may be modernists seeking to bring the core values of Islam into harmony with modern ways.52 They usually advocate an agenda that is compatible with Western notions of democracy.53
They believe that Islamic values are consistent with democracy, human rights, pluralism and individual freedoms. Liberal Muslims are hostile to the concept of an “Islamic state” and consistently reject the imposition of Sharīʿah by the state, thinking Sharīʿah is a product of history and therefore needs to be modernised. This is the view of the
Tunisian scholar, Mohammed Charif. He argues in Islam and Liberty: The Historical
Misunderstanding that under Ummayed and Abbasid rule, Islamic law evolved in the context of an alliance between theologians and politicians.54 He also argues that, although the law was dressed up as religion, it was written to suit the political needs of the rulers. Hence, the theory of an Islamic state was founded on authoritarianism, the
51 Ali M. Pedran, “Political Thinking and Democracy: The Case of Iran,” in Routledge Handbook of Political Islam, ed. Shahram Akbarzadeh (New York: Routledge, 2012), p. 159. 52 Noorhaidi Hasan, Laskar Jihad: Islam, Militancy, and the Quest for Identity in Post-New Order Indonesia (New York: Cornell Southeast Asia Program Publications, 2006), p. 208. 53 Angel Rabasa et al., Building Moderate Muslim Networks (Arlington: RAND Corporation, 2007), p. 71. 54 Mohammed Charfi, Islam and Liberty: The Historical Misunderstanding, trans. Patrick Camiller (New York: Zed Books, 2005), p. 90.
229 oppression of women and an unjust legal framework incorporating corporal punishments.55
Echoing Charfi, a Moroccan sociologist, Fatima Mernissi in her book Islam and
Democracy: Fear of the Modern World, offers a feminist perspective on the Islamic concepts of freedom, order, responsibility and their compatibility with democracy. She draws upon her personal experience, not only as a Muslim but also as a woman, to explain why democracy has not been practised in Arab countries. Throughout the major part of her book, she demonstrates how the Islamic community is chained by a set of fears that it would have to overcome to establish democracy.56 She explores Muslims’ fear of the West, explaining the word “West” with the Arabic word “gharb,” which means strange, arguing the gharib is still ajib (the strange is always fascinating), because according to her it is the place of darkness.
On one particular point Mernissi is optimistic: she is of the opinion it will be women who will move towards freedom and transform the nature of Muslim societies, thus leading to democracy. She challenges the ancient “fear of the imām” that has marked the history of Islam. An ideal imam, she argues, is vulnerable and challengeable, not a despot. She concludes that, within many Muslim countries, obedience to the ruler was often mistaken for obedience to God and still is.57
On the contrary, the fear of freedom of thought and individualism are identified with rebellion and disorder. Although Mernissi accepts the word Islam refers to a relationship of “submission,” the Arabic linguistic root istislam meaning “to surrender”
55 Ibid. 56 Fatima Mernissi, Islam and Democracy: Fear of the Modern World, trans. Mary Jo Lakeland (New York: Addison-Wesley Publishing Company, 1992), p. 51. 57 Ibid.
230 and “the Muslim is he [sic] who believes and obeys”.58 Thus, submission does not mean loss of freedom. She argues that modernising without granting freedom of thought, as in
Tunisia and Algeria, has created confusion and brought about dangerous fundamentalism.
Then Mernissi explores the Qurʾan, explaining that Prophet Muḥammed had been chosen by God to receive the risālah (revealed message) and this revelation succeeded one another from time to time over a period of more than 20 years. The first verses revealed to the Prophet were an order to read and learn. She persuasively argues the positive aspects and practice of Islam would flourish if the people of Islam were to choose their faith, rather than out of ignorance or fear. Mernissi concludes by focusing not only on women’s issues but also addressing the broader issue of the role of democracy in Muslim nations. She maintains “the Gulf War shattered something deep within us” and asks: “what worse could happen to Arabs than what the war produced…The whole West with all its technology dropping bombs on us?”59 For
Mernissi it was the ultimate horror. Despite that, she has an interesting view on the consequences of the Gulf War. She is critical of Muslim leaders who, though claiming to be Muslims, have in fact divorced their faith from their real life. She also shows the
Qurʾan defends the equality of all human beings and guarantees this equality. Mernissi concludes by equating her perception of Arab reality with Islam and alienating freedom and democracy from Islam.60
With a similar perspective to that of Mernissi, the Iranian political philosopher and theologian, ʿAbdol Karim Soroush, emphasises the importance of justice, human rights,
58 Ibid. 59 Ibid, p. 167. 60 Ibid.
231 limited power and tolerance for democratic governance.61 He argues in Reason,
Freedom & Democracy in Islam that reason, freedom and democracy are universal and primary values that cannot be constrained by religious or political dictates.62 However, he does not ignore the existence of religion. He writes, “today’s liberal democratic governments pursue people’s happiness to the exclusion of God’s approval. Yet perhaps we can enjoy the freedoms of modern democratic government without ignoring God.”63
But, what Soroush calls “religious democracy” does not require democracy to be religious, but religious thought needs to be democratic, tolerant and just because religion needs freedom and tolerance to flourish.64 Furthermore, Soroush maintains that people needs religious democracy because secular democracy removes matters of faith and belief from the realm of politics, while religious democracy necessitates constant engagement with, and the renewal of understanding of, faith and belief.65 Soroush’s approach to the compatibility of the socio-political elements of Islam and values of democracy is distinctive. He neither treats Islam as a stable, unproblematic religion nor does he treat modernity or democracy as settled issues. For him, the only thing that is given is the human capacity to understand what is moral, reasonable, ethical and worthy of upholding as of value.66 In true philosophical spirit, he considers all concepts and assertions of values as open to negotiation, reflection and understanding.67
61 John J. Donohue and John L. Esposito, Islam in Transition: Muslim Perspectives (New York & Oxford: Oxford University Press, 2007), p. 261. 62 ʿAbdol Karim Soroush, Reason, Freedom & Democracy in Islam: Essential Writings of ʿAbdol Karim Soroush, trans. Mahmoud Sadri and Ahmad Sadri (Oxford: Oxford University Press, 2000), p. 122. 63 Ibid. 64 John L. Esposito, ed., “Democracy,” in The Oxford Encyclopedia of the Islamic World, vol. 2 (Oxford: Oxford University Press, 2009), p. 56. 65 Ibid. 66 M.A. Muqtedar Khan, “Three Dimensions of the Emerging Political Philosophy of Islam” in Routledge Handbook of Political Islam, ed. Shahram Akbarzadeh (London & New York: Routledge, 2012), p. 32. 67 Ibid.
232 Liberal Muslim thinkers affirm not just the probability of coexistence of religion and democracy, but the necessity of the continuous examination of religious understanding, which can be best done in a democratic context.
6.4.2 Moderate Muslims
Moderate Muslim thinkers are those who support the values of democracy and intentionally recognise human rights, respect diversity and oppose terrorism and other illegitimate forms of violence.68 They insist on the fact that political legitimacy derives from the will of the people expressed through democratic elections. They also take the view that democracy in a Muslim-majority world has to be based on Islamic traditions and texts because, according to them, a healthy democracy cannot rely on constitutions, legal safeguards and politicians alone.69
For instance, the Turkish thinker Fethullah Gülen asserts the compatibility of Islam and democracy, and acknowledges the importance of the early Islamic concept of shura
(consultation). He opposes the state’s enforcement of Islamic law, pointing out that most Islamic regulations concern people’s private lives. Furthermore, he opposes any authoritarian regime that would impose strict controls on ideas and is very critical of the regimes in Iran and Saudi Arabia who do.70 Gülen writes:
Islam does not propose a certain unchangeable form of government. Instead, Islam establishes fundamental principles that orient a government’s general character, leaving it to the people to choose the type of government according to time and circumstances.71
68 Rabasa et al., Building Moderate Muslim Networks, p. 66. 69 Nader Hashemi, Islam, Secularism and Liberal Democracy: Toward a Democratic Theory for Muslim Societies (Oxford: Oxford University Press, 2009), p. 155. 70 Fethullah Gülen, Islam and Democracy (New Jersey: Tughra Books, 2012), p. 75; Rabasa et al., Building Moderate Muslim Networks, p. 74. 71 Fethullah Gülen, “A Comparative Approach to Islam and Democracy,” SAIS Review 21 (Summer-Fall 2001): 134.
233 Gülen holds that Islam cannot be compared on the same basis with democracy or any other political, social or economic system.72 Religion focuses primarily on the immutable aspects of life and existence, whereas political, social and economic systems or ideologies concern variable, social aspects of our worldly life.73 The aspects of life with which religion is primarily concerned are as valid today as they were at the dawn of humanity and will continue to be so in the future.74 Worldly systems change according to circumstances and so can be evaluated only according to their times.
However, worship (ʿibādāt) and Islamic principles of faith (ʿaqidah) are unchangeable.75
Gülen further argues that, when comparing Islam with democracy, it is important to remember that democracy is a system that is being continually developed and revised. It varies according to the places and circumstances where it is practised. On the other hand, religion has established immutable principles related to faith, worship and morality. Thus, only Islam’s worldly aspects (not its spiritual aspects) should be compared with democracy.76
According to Gülen, when comparing the socio-political aspects of Islam with democracy, Islam does not propose a certain form of government where democracy has set elements of governmental forms.77 Instead, Islam establishes fundamental principles that guide a government’s general character, leaving it to the people to choose the type of government according to the time and circumstances.78 Islam upholds the following fundamental principles: 1) power lies in truth, a repudiation of the common idea that truth relies upon power; 2) justice and the rule of law are essentials; 3) freedom of
72 Gülen, Fethullah. “A Comparative Approach to Islam and Democracy.” SAIS Review 21(Summer-Fall) (2001): 134. 73 Gülen, Islam and Democracy, p. 75. 74 Ibid. 75 Ibid. 76 Ibid. 77 Fethullah Gülen, Essays, Perspectives, Opinions (Izmir, Turkey: Light, 2006), pp. 13−14. 78 Ibid.
234 belief, rights to life, personal property, reproduction and health─both mental and physical─cannot be violated; 4) the privacy and immunity of individual life must be maintained; 5) no one can be condemned for a crime without evidence, or accused and punished for someone else’s crime; and 6) an advisory system of administration is essential.79
ʿAzizah al-Hibri, a former professor of philosophy at the University of Richmond, holds a different view on Islam and democracy to that of her contemporary Mernissi. In her long essay, “Islamic constitutionalism and the concept of democracy,” she analyses constitutionalism and its position on democratic governance in considering the Islamic system of governance in light of the principles of Western democracies.80 She assesses
“the Islamic system of government” taking into account two major principles of
Western democracies: 1) the will of the people, which is the basis of the authority of government; and 2) the separation of powers. In the case of the first principle, she focuses on two topics: the ability of the people to express their will in choosing a head of state and the laws of the land.81
Al-Hibri argues that, while democratic government derives its legitimacy from the will of the people and rests legality on their consent, Islamic government derives its legitimacy and laws from the divine will.82 To compare a Western system of constitution to the system in Islam, she chose the democratic form of government in the
United States. This form of government, which is based on a constitution, is supplemented by laws promulgated by legislative and executive branches of
79 Gülen, “A Comparative Approach to Islam and Democracy,” p. 134; Fethullah Gülen, Pearls of Wisdom, trans. Ali Unal (Somerset, N.J.: Light, 2005), p. xi. 80 Azizah Y. al-Hibri, Islamic Constitutionalism and the Concept of Democracy (Washington DC and New York: American Muslim Foundation, 1992), p. 3; The subject about Islamic constitutionalism was also published as an essay in the Case Western Reserve Journal of International Law 24(1) in 1992. 81 Ibid, p. 4. 82 Ibid, p. 16.
235 government.83 She maintains the American constitution has rarely been amended by introducing a later provision, which replaced an earlier one.84 Instead, jurists have tended to resolve even substantial constitutional issues through reinterpretation: a process similar to ijtihād.85 These amendments were generally used to develop, clarify and supplement constitutional principles. According to al-Hibri, similarly, the Qurʾan has already been complemented by the Sunnah and can be further clarified by mujtahids who see the need for articulating additional rules according to the contemporary challenges via ijtihād.86 She also highlights the task of the modern mujtahids to develop a modern system of government, suitable to the needs and customs of the nation-states, which is based on a principle of shura in branches of such government.87 The addition of rules, which will result from the mujtahids’ tasks, will never be confused with divine laws.88 She concludes that Islamic law is compatible with democratic governance because the Qurʾan was assigned to the Muslim people when the Islamic state (khilāfa) was established on similar rules to those of democracy. Therefore, al-Hibri imagines an
Islamic polity whose form is democratic and whose content is Islamic. It reflects not only divine laws, but also the will of people abiding by such laws.89
Correspondingly, Khaled Abou El Fadl claims in his book, Islam and the Challenge of
Democracy, that the object of an Islamic state is to impose Sharīʿah; therefore, an
Islamic democracy should recognise the centrality of Sharīʿah in Muslim life. A close
83 Ibid, p. 17. 84 Ibid. 85 Ibid. 86 Ibid. 87 Ibid, p. 26. 88 Ibid. 89 Ibid, p. 27.
236 reading of Abou El Fadl’s arguments suggests there will be no democracy unless jurists are willing to let go and allow the democratisation of interpretation.90
Abou El Fadl insists the values of democracy and the values of Islam must be understood as “moral systems”. He maintains the affinity of the socio-elements of Islam and values of democracy lies in the concept of justice.91 Echoing Gülen, Abou El Fadl agrees the Qurʾan does not specify a particular form of government, but it identifies a set of social and political values: “pursuing justice through social cooperation and mutual assistance (Qur’an, (49:13), (11:119)), establishing a nonautocratic, consultative method of governance, and institutionalising mercy and compassion in social interactions (Qur’an, (6:12), (6:54), (21:107), (27:77), (29:51), (45:20))”.92 He holds that, if those fundamental moral values have been focused on, it would be evident to realise the tradition of Islamic political thought and therefore endorse the form of government that can be developed into a democratic system.93
Furthermore, Abou El Fadl, like Gülen and al-Hibri, insists on the notion of shura as part of the democratic process, arguing the Qurʾan instructs the Prophet to consult regularly with Muslims on all significant matters and indicates a society that conducts its affairs through some form of deliberative process of consultation is considered praiseworthy in the eyes of God.94 He adds that, after the death of the Prophet, the concept of shura became a symbol signifying participatory politics and legitimacy.95
Mercy in the Qurʾanic discourse is not simply forgiveness, rather it is a state in which
90 Abou El Fadl, Islam and the Challenge of Democracy, p. 5. 91 Ibid. 92 Ibid. 93 Ibid. 94 Ibid, pp. 16−18. 95 Ibid.
237 an individual is able to be just with others.96 On this view, then, the divine mandate for a Muslim polity is to pursue justice by adhering to the essential for mercy.
According to Abou El Fadl, the principles of justice mentioned in the Qurʾan are important for a just society. Hence, justice is not possible to achieve unless every possessor of a right (haqq) in the society is granted that right.97 The set of rights recognised as immutable are those that are necessary to achieve a just society while promoting the element of mercy.98 These moral principles and duties guarantee the physical safety and moral dignity of every human being.99 This is why the Qurʾan asserts that, whoever kills a fellow human being unjustly, has in effect murdered all of humanity; it is as if the killer has exterminated the divine sanctity and defiled the very meaning of divinity. The Qurʾan does not differentiate between the sanctity of a Muslim and that of a non-Muslim.100
Abou El Fadl concludes that, if democracy is to become a systematic normative goal for a large number of Muslims in Muslim-majority countries, it will have to be anchored in both Islam and modernity. To achieve this objective, a serious discourse that negotiates with both the past and the present, and emphasises the crucial need for greater respect for human rights and civil discourse, should be applied.101 Thus, democracy for Abou El
Fadl is an appropriate system for Islam because it expresses the special worth of human beings.
96 Ibid, pp.18−22. 97 Ibid, p. 22. For justice, see the Qurʾan 83:1-3, 4:29, 4:58, 38:24, 4:10, 17:36, 49:6, 5:8, 4:35; God commands people in the Qurʾan to incorporate ethics based on the judging laws He has decreed for human beings. Qurʾan 16: 90, 7:29, 55:7−9. 98 People are commanded by God to incorporate ethics and morality into their moral practices and daily transactions. To establish peace on earth, justice, honesty and truthfulness are the significant principles to be applied. Applying and upholding justice that one can learn from the Qurʾan is crucial for the enhancement of peace and morality in the community (49:9−10). 99 Moral truthfulness and uprightness of believers originate from the divine ethics and righteous acts detailed in the Qurʾan. See Qurʾan 22:32, 13:20-21, 33:70, 9:119, 25:72, 22:30. 100 Qurʾan 5:32. 101 Abou El Fadl, Islam and the Challenge of Democracy, pp. 25−29.
238 Taking similar perspective, Tariq Ramadan agrees that Islam respects the values of human rights. He also considers the principle of shura to be a suitable basis for the election of representative leaders, as is the case in Western democracies.102 According to Ramadan, shura is the space that allows Islam to manage pluralism. He shows how shura appears in several places in the Qurʾan: for example, in chapter 42, which has the name (al-Shura):
Whatever ye are given [here] is [but] a convenience of this life: but that which is with Allah is better and more lasting: [it is] for those who believe and put their trust in their Lord: Those who avoid the greater crimes and shameful deeds, and, when they are angry even then forgive; Those who hearken to their Lord, and establish regular Prayer; who [conduct] their affairs by mutual Consultation; who spend out of what We bestow on them for Sustenance.103
Taking into consideration the diversity of practices of consultation in the history of
Islamic civilisation and the reflections produced by the scholars according to Qurʾan and Sunnah, Ramadan extracts some principles that are inherent in the notion of shura:
1. The political must offer to the community the means of deliberation and, hence, of participation in running its affairs. This is either by direct elections, or under the model of representation. 2. The creation of a “Council of shura” majlis al-shura which allows for the election of members to this Council. 3. Members of this Council are chosen with regard to their competence (economic, political and social) according to the specific role devolved upon the Council. The practice of ijtihad must be elaborated in this case, and which links the sources with concrete realities. 4. Selection of the person responsible for the nation (the President or the ruler) can be delegated to the shura Council (or to regional councils, if they exist), but it can also be the doing of the population. 5. The President of the nation is, thus, chosen by the community (men and women must have the right to participate in this choice). He must also be its guarantor before the Shura Council (as also before the people) to whom he must give account of his general politics as that of his
102 Ramadan, Islam, the West and the Challenges of Modernity, p. 86. 103 Qurʾan 42:36−38.
239 ministers.104 This is exactly what Abu Bakr and Umar (the rightly guided caliph) did, and it is in this sense that, in modern societies, the executive and legislative powers are articulated. 6. The separation of powers is one of the fundamental principles of the organisation of the city, and this was respected from the moment Abu Bakr succeeded to the Caliphate. The judges (qudat) had to exercise their function in an autonomous fashion and according to the principle of equality of all before the law. 7. The people, as long as the principles of election have been respected, make an act of allegiance (bayʿa) to the one whom the majority has chosen.105
With respect to the bayʿa, Ramadan explains this allegiance is not blind submission.
Rather, it requires the opinion of the people towards the one who has been elected and who is responsible for the nation. This participation of election is important in Islam and is one of the fundamental duties of a citizen. For instance, a president or king who acts unjustly is corrupt and denies citizens their rights cannot obtain allegiance from the people.106
Ramadan’s work critically examines the concepts of ijtihād and maṣlaha as the foundations of governance in an Islamic state.107 Ramadan is critical of some Muslims who reject the word “democracy” because it is part of Western history and because it is not found in the Qurʾan. He is also critical of some Western intellectuals who do not understand the Islamic concept of shura and automatically dismisses it as impertinence.108
104 This refers to a ḥadith by the Prophet: “Each one is a shepherd and each one is responsible for that, which is under his responsibility, and thus the imam is equally a shepherd and his responsible and he must be accountable for that which is under his guard” (narrated by Bukhari). 105 Ramadan, Islam, the West and the Challenges of Modernity, p. 84. 106 Ibid. 107 Tariq Ramadan, “Ijtihad and Maslaha: The Foundations of Governance,” in Routledge Handbook of Political Islam, ed. Shahram Akbarzadeh (London & New York: Routledge, 2012), p. 3. 108 Ramadan, Islam, the West and the Challenges of Modernity, p. 76.
240 The moderate Islamic view of democracy may be summarised in four concepts: consultation (shura), public interest (maṣlaḥah), justice (ʿadl) and independent legal reasoning (ijtihād).
6.4.3 Traditionalist Muslim
Traditionalist Muslims maintain the backwardness in Muslim-majority countries arose from the neglect of the true principles of Islam.
The Egyptian Sayyid Quṭb (1906-1966) is probably the best of the traditionalists who has had a profound influence on several generations of Muslim intellectuals.109 Much of his political thought has been shaped by the political, social and economic conditions of
Egypt’s royal and military regime.110 Like the moderates, he also stresses an Islamic state must be based on the Qurʾanic principle of consultation. He believes Sharīʿah is a complete legal and moral system, and no further legislation is necessary. Quṭb maintains Muslims are now at a crossroads:
We may join the march at the tail of the Western caravan, which calls itself democracy; if we do so we shall eventually join up with the Eastern caravan, which is known to the West as communism. Or we may return to Islam and make it fully effective in the field of our own life, spiritual, intellectual, social and economic.111
Quṭb asserts Sharīʿah is an eternal system that rests on four fundamental principles: “the principles of belief, principles of administration and justice, principles of morality and human relationships, and principles of knowledge”.112 Therefore, an Islamic political order rests on the justice of the rulers and obedience on the part of the ruled. For him,
Sharīʿah should be the foundation and the basis for legislation for two reasons. First,
109 Khatab and Bouma, Democracy in Islam, p. 73. 110 Ibid. 111 Sayyid Quṭb, Social Justice in Islam, trans. John Hardie (Kuala Lumpur: Islamic Book Trust, 2008), p. 318; Sayyid Quṭb, Milestones (New Delhi: Islamic Book Review, 2007), pp. 119−120. 112 Quṭb, Milestones, p. 107.
241 Islam is a comprehensive system that is able to respond to developments in Islamic society at any time and in any generation.113 Second is the right of the people to legislate for themselves through independent reasoning (ijtihād). Since Sharīʿah does not give details on some issues, including the method for consultation and other affairs regarding the structures and functions of the state, the relations between the state and citizens, then ijtihād is imperative to any Islamic society.114 For Qutb, people in Muslim countries should “enunciate legal opinions” through ijtihād and in the “spirit of
Sharīʿah”. The process of legislation, Quṭb claims, needs an Islamic state for it to function effectively and develop a harmonious society.115
Abu Aʿla al-Mawdudi (1903−1979) is another example of one who takes a traditionalist position. He belongs to a group called Jamaat-e Islami. Al-Mawdudi is critical of democracy because it grants people the ability to legislate and produce laws; therefore, it puts the entire governmental structure at the mercy and decisions of select people in power.116 Al-Mawdudi, however, accepts the idea there is no essential disagreement between Islam and the values of Western democracy because the two systems share similar goals: legal equality, equal opportunities, opposition to oppression and discrimination on the basis of race, class and origin. He writes:
If democracy means that no one individual, family or class has the right to impose its will on millions of other people and use them to satisfy its greediness and egoism (ananiyyah), then this concept, no doubt, is right and not against the truth. If these matters are the essence of Western democracy, then there is no dispute with our Islamic democracy, which the Muslims have come to know throughout their history. In fact, Muslims gave
113 Sayyid Quṭb, al-Islam wa al-Raʾsmaliyyah [Islam and Capitalism] (Cairo: al-Shuruq, 1993), pp. 60−62. 114 Quṭb, Social Justice in Islam, pp. 119−125. 115 Sayyid Quṭb, Naḥwa Mujtamaʿ Islami [Towards an Islamic Society] (Cairo: al-Shuruq, 1993), pp. 54−56; Sayyid Quṭb, Maʿalim fi al Tariq [Milestones] (Cairo: al-Shuruq, 1993); Sayyid Quṭb, Al-Salam la-ʿalami wa al-Islam [Islam and Universal Peace] (Cairo: al-Shuruq, 1995), p. 35. 116 Shukri B. Abed, “Islam and Democracy” in Democracy, War, and Peace in the Middle East, ed. David Garnham and Mark Tessler (USA: Indiana University Press, 1995), p. 122.
242 democracy practical interpretations based on sound (Salihah) patterns centuries before the birth of Western democracy.117
Despite his nice words about the essence of Western democracy, al-Mawdudi is convinced that Islam and Western democracy are incompatible and thus, contradict each other. Specifically, Western democracy adopts the principle of the absolute sovereignty of the people, which is controlled only by what the people decide for themselves. He states: “we (Muslims) consider this principle to be invalid as it leads to evil and destructive consequences”.118 Therefore, al-Mawdudi’s critique of democracy is based on the notion that democracy has put man on “God’s throne” by granting people the ability to legislate and produce laws.119 While in Islam, the entire Muslim population is to run the state in accordance with Sharīʿah, which rules all aspects of life.120
Like al-Mawdudi, the Egyptian scholar Yusuf al-Qaradawi (b. 1926) asserts there are some interrelated elements between the values of Western democracy and the values of
Islam. Al-Qaradawi writes that Muslims “who say that democracy is disbelief, neither understands Islam, nor democracy.”121 He maintains, however, that the main objective of Muslims is to oppose political despotism and the usurpation of the people’s rights, and to stand for political freedom and “true democracy.”122 Echoing Gülen, al-Qaradawi argues that Islam and democracy are different things. Islam is a comprehensive system of values, while democracy is a method to attain social equality and justice. For him, democracy means Muslims would be permitted to rule themselves according to
117 Abu Aʿla al-Mawdudi, Al Islam wa-l-madaniyyah al-hadithah [Islam and Modern Civilisation] (Cairo: Dar al-Ansar, 1978), pp. 15−16. 118 Ibid, p. 17. 119 Ibid, p. 29. 120 Esposito, “Democracy,” p. 54. 121 Al-Qaradawi, Y., 2001. Min Fiqh al-Dawla fi-Islam. Cairo and Beirut: Dar al-Shuruq, pp: 3(6): 37−8. 122 Yusuf al-Qaradawi, On the Jurisprudence of the State in Islam (Cairo: Dar al-Shuruq, 1997), p. 4.
243 Sharīʿah.123 Also, he reaffirms the traditional idea that ikhtilaf (diversity in opinions) is, in fact, a benefit to the Muslim community:
One of the most serious problems is the failure of some religious people to observe that the aḥkam (judgments) of al-sharīʿah are not equally important and permanent, and therefore, different interpretations can be permitted…Disagreement ─ based on authentic ijtihād (informed, independent judgment) ─ on these issues represents no harm or threat. On the contrary, it is a blessing on the ummah, and demonstrates flexibility in al-Sharīʿah.124
Thus, al-Qaradawi encourages Muslims to establish their government by using legal reasoning (ijtihād) from Islamic principles in the interest of the Muslim community. Al-
Qaradawi’s main concern is what he considers to be the negative impact of these man- made laws. He argues that the Western liberal-democratic scheme, and the application of secular laws in specific, has had negative consequences for Muslims. He stresses that
Western law has pushed aside Islamic law in such areas as the production of alcohol and sexual relationships outside of marriage, both of which are forbidden in Islam.125
Despite their claim that Western systems of democracy have failed as it has brought moral and social degeneracy to the West, al-Qaradawi and other traditionalists realise the existence of a contradiction between the socio-political elements of Islam and the values of democracy is not in and of itself sufficient to discredit democracy.126
Therefore, they move on to categorise the weaknesses and strengths of Western democracy. Accordingly, they pick and choose good values that complement the socio- political values of Islam and ignore the other elements that are not in harmony with its
123 Yusuf al-Qaradawi, Priorities of the Islamic Movement in the Coming Phase (Swansea, UK: Awakening Publications, 2000), pp. 47−55. 124 Yusuf al-Qaradawi, Islamic Awakening Between Rejection & Extremism (London: The International Institute of Islamic Thought, 1991) p. 82. 125 Yusuf al-Qaradawi, Al Hulul al-mustawrada wa-kayfa janat ala ummatina [The Imported Solutions and how they brought Disastrous Consequences upon our Nation] (Cairo: Maktabat Wahbah, 1977), p. 66. 126 Abed, “Islam and Democracy,” p. 126.
244 principles.127 They pinpoint what they perceive to be the defects and disadvantages of the democratic system as applied in the West. They claim this system has failed in that it has brought moral and social degeneracy to the society. Thus, a democracy in
Muslim-majority countries, according to them, could not follow a Western democratic model, since the Muslim-majority world has its unique forms of pluralism.128
From this survey of the different Islamic views of democracy, one can conclude that the three trends⎯from liberal, moderate and traditionalist Muslims⎯though not necessarily conflicting, have diverse ideas and methods about the compatibility of the values of
Islam and those of democracy. While all three agree that freedom, justice, human rights as well as human solidarity⎯the higher objectives of Sharīʿah⎯are common to both democracy and Islam, there are some major differences. First, despite the fact the traditionalist thinkers concur with the other trends on the compatibility of the socio- political elements of Islam and the values of democracy, they also plead for the superiority of the Islamic system of government over that of democracies. Secondly, traditionalists provide the Islamic system of government as an alternative system of democracy: they all contend that Islamic values and norms encourage democracy. They also argue for the reform of classical Islamic law based on ijtihād, and call for parliamentary government of any form based on Islamic principles of shura.129
Although each group of Muslim thinkers agrees on the concept of shura, traditionalists argue that some Western democratic values are based on materialistic conceptions of the universe, life and humanity, thus they are unacceptable to Islam because they exclude
God and religion from the society and human life.
127 Ibid. 128 Murad Hofmann, “Democracy or Shuracracy,” in Islam in Transition: Muslim Perspectives, ed. John J. Donohue and John L. Esposito (New York, Oxford: Oxford University Press, 2007), p. 302. 129 Khatab and Bouma, Democracy In Islam, p. 92.
245 After the exploration of the different Islamic views of democracy, it is necessary to examine the importance of human rights, which implies a compatibility between Islam and democracy. I will address the debate over Islam and human rights through the lens and methodology of maqāṣid al-Sharīʿah.
6.5 Maqāṣid as a Scheme for Human Rights
The compatibility of Islam and human rights is a focus of very heated debate nowadays in both national and international contexts.130 A Universal Islamic Declaration of
Human Rights was declared in 1981 by a large number of intellectuals and scholars who represented various Islamic entities at the United Nations Educational, Scientific and
Cultural Organisation. This declaration was supported by a number of Islamic texts from the Qurʾan and the Sunnah, and it significantly includes the entire list of basic rights that were mentioned in the Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948, such as the rights to life, freedom, equality, justice, fair trial, protection against torture, asylum, freedom of belief and speech, free association, education and freedom of mobility.131
However, some members of the United Nations High Commission for Human Rights were concerned about the Islamic Declaration of Human Rights, because they thought it
“gravely threatens the inter-cultural consensus on which the international human rights instruments were based”.132 Other members believed the opposite and were sanguine about the Islamic declaration saying it “adds new positive dimensions to human rights, since, unlike international instruments, it attributes them to a divine source thereby
130 Auda, Maqasid al-Shariah as Philosophy of Islamic Law, p. 23. 131 “International Protection of Human Rights,” University of Toronto Bora Laskin Law Library, last modified November 26, 2009, accessed May 2015,
246 adding a new moral motivation for complying with them.”133 The methodology of maqāṣid al-Sharīʿah I will use in response to the challenge of Islam and human rights in our contemporary days supports the latter opinion.
Since the five necessities of maqāṣid al-Sharīʿah aim to protect life, intellect, religion, progeny and property, the formulations of these objectives have secured human rights in this life and the hereafter. In this sense, classical and contemporary jurists have developed universal maqāṣid terminology.134
ʿIzz al-Din ʿAbd al-Salam al-Sulami’s (d. 1262) renowned work, Qawāʿid al-Aḥkām, was in his own description a work on the objectives of divine texts and addressed the various aspects of maqāṣid especially in relation to ʿillah (effective cause or rationale) and maṣlaḥa (public interest) in more detail. He writes “the greatest of all the objectives of the Qurʾan is to facilitate benefits (maṣāliḥ) and the means that secure them and that a realisation of benefit also included the prevention of evil.”135 Sulami highlights that all the obligations of Sharīʿah were predicated on securing benefits for the people in this world and the hereafter.136
Similarly, the chief proponent of maqāṣid, al Shāṭibi (d. 1388) has confirmed the need to observe and respect explicit injunctions, but he stressed, whether they are prohibition or command, they are to be read in conjunction with the higher objective of Sharīʿah, which bears greater harmony with the intention of the lawgiver.137 He also emphasises firstly, the necessity of understanding maqāṣid through the lens of benefits (maṣālih) of
133 Ibid. 134 Auda, Maqasid al-Shariah as Philosophy of Islamic Law, p. 21. 135 ʿIzz al-Din ʿAbd al-Salam al-Sulami, Qawāʿid al-Aḥkām Fi Maṣāliḥ al-Anām, ed. Taha ʿAbd al-Raouf Saʿd (Cairo: al Maṭbaʿah al-Ḥusayniyyah, 1932), p. 1:8. 136 Ibid. 137 Abu Isḥāq Ibrahim al-Shāṭibi, Al-Muwāfaqāt fi Uṣul al-Sharīʿah, ed. Shaykh ʿAbd allah diraz (Cairo: al-Maktabah al-Tijāriyyah al-Kubrā, n.d.), p. 2:393.
247 the individual, the community and future generations, and; secondly, that these benefits cannot be ascertained by human reason alone without the assistance and guidance of the divine texts.138 Also, the work of Abu Aʿla Mawdudi, Human Rights in Islam, highlights the advocacy by Islam of human rights for Muslims and non-Muslims in an
Islamic state.139 An extensive claim of Muslims is that Islamic civilisation was the first to grant human and legal rights for women and the protection of certain rights for them in inheritance and family relations, as mentioned in chapter 4. Similarly, Sharīʿah has granted specific rights for the people of the Book (Christians and Jews) as declared in the Constitution of Medina, as mentioned earlier in this chapter. What can be drawn from the Qurʾan in matters of non-Muslim rights in an Islamic state is derived from the principle of dignity for all human beings established by the Qurʾan.140 Furthermore, the
Qurʾan emphasises the good relations between people based on good morals regardless of their different religious convictions.141 However, there are some verses that are critical of certain acts of non-Muslims,142 but the Qurʾan clarifies that the criticism and instruction of not taking them as allies refers to those who were fighting against
Muslims because of their faith and drove them away from their homes.143 Even the so- called sword verse144 is followed by two verses that instruct Muslims to give protection to non-Muslims who seek it.145 More importantly, the Qurʾan always gives priority to
138 Ibid. 139 Abu aʿla Mawdudi, Human Rights in Islam (Leicester: The Islamic Foundation, 1981). 140 Qurʾan 17:70. 141 Qurʾan 4:94. 142 Qurʾan 60:8. 143 Qurʾan 60:9. 144 “But when the forbidden months are past, then fight and slay the Pagans wherever ye find them, an seize them, beleaguer them, and lie in wait for them in every stratagem [of war]; but if they repent, and establish regular prayers and practise regular charity, then open the way for them: for Allah is Oftforgiving, Most Merciful” (Qurʾan 9:5). 145 “If one amongst the Pagans ask thee for asylum, grant it to him, so that he may hear the word of Allah; and then escort him to where he can be secure. That is because they are men without knowledge. How can there be a league, before Allah and His Messenger, with the Pagans, except those with whom ye made a treaty near the sacred Mosque? As long as these stand true to you, stand ye true to them: for Allah doth love the righteous” (Qurʾan 9:6−7).
248 treaties with non-Muslims over the obligation to protect people from oppression.146 The verses that suggest adversarial relations between Muslims and non-Muslims were revealed in the context of war, hence a literal and out of context interpretation of these verses gives a completely incorrect meaning to the reader.147
As a result, the majority of jurists take into consideration both the understanding of each necessity of the maqāṣid al-Sharīʿah and its underlying ʿillah and rationale to extract the relevance of these values to the benefit of human rights.148 For instance, the preservation of the right to life is the first necessity of maqāṣid al-Sharīʿah developed by al-ʿAmiri (d. 992), who outlined a theory of necessary purposes in terms of
“punishments for breaching decency”.149 Al-Juwayni (d. 1085) developed al-ʿAmiri’s theory of punishments into a “theory of protection”.150 Al-Ghazali and some contemporary jurists like Ibn ʿAshur (d. 1973) elaborated the preservation of life to a social system in Islam based on family-related purposes and moral values in Islamic law.151 The theory of punishment developed by Muslim jurists is based on the concept of life being sacred in Islam. This is based on the surat of “Whosoever kills a human being, it is as though he has killed all humanity”.152 The Prophet (pbuh) also declared to people, when delivering the sermon during the Farewell Pilgrimage that “verily your blood, your property and your honour are as sacred and inviolable as the sanctity of this
146 Qurʾan 8:72. 147 Qurʾan 66:9, 9:73. 148 Contemporary scholars like Ibn ʿAshur, Imran Aḥsan Khan Nyazee, Ahmad Raysuni, Tariq Ramadan, Jasser Auda, and Halim Rane have all contributed to the methodology of maqāṣid al-Sharīʿah and its development. 149 Abu al-Ḥassan al-Faylasuf Al-ʿAmiri, Al-Iʿlām bi-Manāqib al-Islam, ed. Ahmad Ghurab (Cairo: Dār al-Kitāb al-ʿArabi, 1967), p. 125. 150 Abdul-Malik Al-Juwayni, Al-Burhān Fi Uṣul al-Fiqh, ed. Abdul-Azim al-Deeb, 4th ed., vol. 2 (Manṣurah: al-Wafāʾ, 1998), p. 747. 151 Abu Ḥamid Al-Ghazali, al-Muṣtaṣfā fi ʿilm al-Uṣul, ed. Mohammed Abdul-Salam Abdul Shafi, (Beirut: Dār al-Kutub al-ʿIlmiyyah, 1992), p. 258; Al-Tahir Ibn ʿAshur, Uṣul al-Nizām al-IjtimāʿI fi al- Islam, ed. Mohammed el-Tahir el-Mesawi (London, Washington: International Institute of Islamic Thought, 2006), p. 206. 152 Qurʾan 5:32; see also, Qurʾan 6:151.
249 day of yours…”.153 The Prophet extended this regulation to non-Muslim citizens of an
Islamic state when he said whoever kills a man under covenant (dhimmi) will not even smell the fragrance of paradise.154
Similarly, the preservation of intellect, which is the second necessity of maqāịd al-
Sharīʿah, has two set of purposes. The first is the prohibition of intoxicants and alcohol drinking as they pose a threat to the integrity of human intellect and mind.155 The second purpose is education. This purpose stems from the high emphasis Islam places on knowledge.156 The very first verse of the Qurʾan revealed to the Prophet (pbuh) was the instruction to read.157 In a ḥadith, the Prophet (pbuh) declared the search for knowledge is an obligation on every Muslim, male and female.158 Recently, the preservation of intellect has expanded to include “propagation of scientific thinking”,
153 Cheikh Safi Ar-Rahman Al-Moubarakfawri, Le Nectar Cacheté: La Biographie du Prophète (Riyad: Maison d’édition et de distribution, 1999), p. 625. 154 The Prophet (pbuh) said: “If anyone wrongs a man with whom a covenant has been made (dhimmi), or curtails any right of his, or imposes on him more than he can bear, or takes anything from him without his ready agreement, I shall be his adversary on the day of resurrection.” (Sunan Abu Dawud, Hadith 3052. Classified as Sahih by Albani). The Prophet (pbuh) also, said, “Whoever killed a Mu'ahid or dhimmi (a person who is granted the pledge of protection by the Muslims) shall not smell the fragrance of Paradise though its fragrance can be smelt at a distance of forty years (of traveling)." (Sahih Bukhari, Hadith 2930). 155 Before imposing any punishment for drinking alcohol and intoxicants, the Qur’an demonstrated to people in steps the physical and spiritual damage that can result from drinking and consumption of alcohol. The gradual prohibition of intoxicants, alcohol and wine came in four steps in the following order of verses: 1) “And from the fruit of the date-palm and the vine, ye get out wholesome drink and food: behold, in this also is a sign for those who are wise” (Qurʾan 16:67); 2) “They ask thee concerning wine and gambling. Say: ‘In them is great sin, and some profit, for men; but the sin is greater than the profit.’ They ask thee how much they are to spend; Say: ‘What is beyond your needs.’ Thus doth Allah Make clear to you His Signs: In order that ye may consider” (Qurʾan 2:219); 3) “O ye who believe! Approach not prayers with a mind befogged, until ye can understand all that ye say, nor in a state of ceremonial impurity [Except when travelling on the road], until after washing your whole body. If ye are ill, or on a journey, or one of you cometh from offices of nature, or ye have been in contact with women, and ye find no water, then take for yourselves clean sand or earth, and rub therewith your faces and hands. For Allah doth blot out sins and forgive again and again” (Qurʾan 4:43) “O ye who believe! Intoxicants and gambling, (dedication of) stones, and (divination by) arrows, are an abomination of Satan's handiwork: Eschew such (abomination), that ye may prosper. Satan's plan is (but) to excite enmity and hatred between you, with intoxicants and gambling, and hinder you from the remembrance of Allah, and from prayer: Will ye not then abstain?” (Qurʾan 5:93−94). 156 Qurʾan 35:28, 39:9, 58:11. 157 Qurʾan 96:1. 158 Ḥadith cited in Adis Duderija, “Identity Construction Among Western (Born) Muslims: Religious Traditions and Social Orientation,” in Samina Yasmeen, ed., Muslims in Australia: The Dynamics of Exclusion and Inclusion (Melbourne: Melbourne University Press, 2010), p. 105.
250 “travelling to seek knowledge”, “suppressing the herd mentality” and “avoiding the brain drain”.159
The preservation of religion is the third necessity of maqāṣid al-Sharīʿah. According to al-ʿĀmiri, al-Ghazali and al-Shāṭibi, it consists of punishment for giving up true faith.160
However, the preservation of faith has been re-interpreted recently by Ibn ʿĀshur to mean a “freedom of faith”161, or “freedom of belief” according to other contemporary scholars.162 This is based on the declaration in the Qurʾan that there is no coercion in religion.163 Moreover, there is no single verse in the Qurʾan that mentions a punishment for those who choose another religion than Islam. In this context, Rane presumed the verses concerning justice, freedom in religion and human dignity “stands out as the overriding maqāịd”.164
In the same way, the fourth necessity of maqāṣid al-Sharīʿah consists of the preservation of progeny or, as some scholars call it, “the preservation of honor (ʿirḍ)” or
“the preservation of soul”. According to al-ʿAmirī and al-Juwayni, this preservation entails a punishment for “breaching honour” and “protection of honour,” respectively.165
It is very vital to mention here that defaming honour was a serious matter in the pre-
Islamic era, and it was preserved throughout Arabic culture to become a dignified value in Arab-Muslim families. Recently, the preservation of honour is being replaced⎯as a
159 Jasser Auda, Fiqh al-Maqāṣid: Inaṭah al-Aḥkām al-Sharʿiyyah bi-Maqāṣidihā (Virginia, IIIT: al- Maʿhad al-ʿĀlamī li al-Fikr al-Islāmī, 2006), p. 20. 160 Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, p. 24. 161 Al-Tahir Ibn ʿAshur, Maqāṣid al-Sharīʿah al-Islāmiyyah, ed. Mohammed el-Tahir el-Mesawi (Kuala Lumpur: al-Fajr, 1999), p. 292. 162 Gamal Attia, Naḥwa Tafʿil Maqāṣid al-Sharīʿah (Amman: al-Maʿhad al-ʿĀlamī li al-Fikr al-Islāmī, 2001), p. 171; Ahmad El-Raysuni, Mohammad al-Zuhaili, and Mohammad O. Shabeer, “Ḥuqūq al-Insān Miḥwar Maqāṣid al-Sharīʿah,” Kitāb al-Ummah 87 (2002). 163 Qurʾan 2:256, 10:99, 109:6. 164 Rane, Islam and Contemporary Civilisation, p. 117. 165 Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, p. 23.
251 purpose of Islamic law⎯by “the preservation of human dignity” or “the preservation of human rights”.166
The fifth necessity of maqāṣid al-Sharīʿah consists in the preservation of property or wealth. It requires “preservation of wealth” according to al-Ghazali, “punishments for theft” according to alʿĀmirī and “protection of money” according to al-Juwayni.167
However, this requirement has been developed recently into familiar socio-economic terminology, such as “well-being”, “economic development”, “social assistance” and
“diminishing the difference between economic levels”.168 This development, based on the public benefit of people (maṣāliḥ), enables the use of maqāṣid al-Sharīʿah to encourage economic growth in Muslim-majority countries.169
The above discussion demonstrates the capacity of Islam’s divine texts that occur, when examined through the lens of the higher objectives of Sharīʿah, to adapt to modern standards of human rights.170 If the socio-political elements of Islam are compatible with democracy and human rights, as can be seen from the above context, and if
Muslims desire democratic rule, then the relevant question remains: why are so many
Muslim countries undemocratic?
6.6 The Struggle for Democracy
It is pertinent to begin this discussion by exploring how Muslim-majority countries are ranked on the various indices, such as the Polity IV index, used to measure the extent to which nations are democratic. According to this index, each nation is given a “polity
166 Attia, Naḥwa Tafʿil Maqāṣid al-Sharīʿah, p.170; El-Raysuni, al-Zuhaili, and Shabeer, “Ḥuqūq al-Insān Miḥwar Maqāṣid al-Sharīʿah”; Mohamed el-Awa, al-Fiqh al-Islāmī fī Tariq al-Tajdīd (Cairo: al-Maktab al-Islāmī, 1998), p. 195; Yusuf al-Qaradawi, Madkhal li-Diāsah al-Sharīʿah al-Islāmiyyah (Cairo: Wahba, 1997), p. 101. 167 Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, p. 24. 168 Ibid. 169 Ibid. 170 Rane, Islam and Contemporary Civilisation, pp. 101−102.
252 score” that places it on a 21-point spectrum ranging from -10, which represents hereditary monarchies, to +10, which represents consolidated democracies. Thus, democracies are those nations that score within +6 to +10 range, while autocracies score within the -10 to -6 range and nations that score between -5 and +5 are referred to as anocracies.171 By this measure, most Muslim-majority countries consist of autocracies, as represented by Saudi Arabia (-10), United Arab Emirates (-8), Syria (-7), Kuwait (-
7), Morocco (-6) and Iran (-6). The only Muslim democracies in the comprehensive sense are Indonesia (+8) and Turkey (+7).172 It is critical to appreciate though, in terms of developing democracy in Muslim-majority countries, that democracy is desired by the majority of Muslims.173 A study conducted as part of the Pew Global Attitudes survey in 2005 found large and growing majorities in Lebanon (83%), Morocco (83%),
Jordan (80%) and Indonesia (77%) support democratisation.174 A more recent poll in
2008 entitled “World Public Opinion on Governance and Democracy” found that in all
19 nations of the Muslim-majority countries surveyed, the majority of respondents support the principles of democracy. The study also found Muslims believe their government leaders should be selected in elections where all citizens can vote.175
John Esposito and Dalia Mogahed have also conducted interviews with ten thousands of
Muslims across 35 countries and found Muslims want a model of governance based on
171 Anocracies are political systems that have dictatorships with nominally democratic institutions. 172Polity IV Project, “Political Regime Characteristics and Transitions, 1800−2008,”
253 Islamic values and democratic principles, and they do not see any incompatibility between the two.176
With these surveys in mind, one might conclude with Halim Rane that the principal reason for the absence of democracy, and the presence of authoritarian regimes in many nations of the Muslim-majority world, may be attributed to colonialism.177 Colonialism not only left a legacy of authoritarian rule, it showed very little interest in supporting democracy. The United States, despite claims to the contrary, has continuously sought to undermine democracy in Muslim-majority countries and promote authoritarianism.178
For instance, the overthrow of the democratically elected Iranian Prime Minister,
Mohammad Mossadegh, and imposition of the Shah in 1953; the destabilisation of the
People’s Democratic Party of Afghanistan in the late 1970s; the tacit support given to secular Algerian military’s prevention of the democratically elected Islamic Party, the
FIS, from taking power in Algeria in 1991; and the overthrow of the democratically elected Hamas government in Palestine in 2007.179 It is important to mention that, for
176 John Esposito and Dalia Mogahed, Who Speaks for Islam: What a Billion Muslims Really Think (New York: Gallup Press, 2007), p. 63. 177 Rane, Islam and Contemporary Civilisation, p. 133; John Esposito also concluded the negative reaction by Muslim-majority countries against democracy is due to the general rejection of European colonial influence in the Middle East; See John Esposito, “Contemporary Islam: Reformation or Revolution” in The Oxford History of Islam, ed. John Esposito (Oxford and New York: Oxford University Press, 1999), p. 675. 178 Rane, Islam and Contemporary Civilisation, p. 133. 179 Rane, Islam and Contemporary Civilisation, p. 133; Also, see, Emmit B. Evans, “Iraq and the New American Colonialism,” Moebius 1(2) (2003), accessed
254 the past two decades, the United States has claimed that part of its foreign policy is the promotion of democracy in the Middle East. However, its record seems to suggest otherwise: most of the infamous autocrats in the Muslim-majority world are supported financially, military and politically by the United States.180 The list includes the Shah of
Iran, Saddam Hussein of Iraq, Suharto of Indonesia, Hosni Mubarak of Egypt and the
Saudi royal family.181
Considering the double standards in the United States, which is one of the leading democratic countries in the West, it is important to investigate further if there any example of a functioning democracy nowadays based on Islamic principles and values in the Muslim-majority world.
It is unpromising to discover there are very few Muslim political parties that support democratic principles. The exceptions are: Turkey’s AKP (Justice and Development
Party), Malaysia’s PKR (People’s Justice Party) and Indonesia’s PKS (Prosperous
Justice Party). They are deeply committed to policies that advance education, justice, transparency, accountability and economic development, which they regarded as maqāṣid, or the higher objectives of Sharīʿah.182 According to Nilüfer Göle:
In Turkey, however, the fight for democracy advanced in the form of pushing back against the military guardianship over the state, in the name of the elected officials. The AKP was able to find the support of democratic
but a throwback to direct colonial rule. As the US officials apparently believe they have the military might to reestablish the kind of direct rule exercised by the US during the colonial era in the Philippines, Cuba, and Puerto Rico and by the British and French in their colonial empires. Plans proposed in April 2003 for the administration of an occupied Iraq by American officials and of colonial occupation defined in international law, and control of natural resources; See Helena Cobban, “Military Occupations - The Good, Bad, and Ugly.” The Christian Science Monitor 27 (March 2003): 11. 180 Rane, Islam and Contemporary Civilisation, p. 133. 181 Ibid. 182 Ibid, p. 140.
255 forces to the extent that it promised to put an end to military guardianship. Muslims came to power and military guardianship retreated…183
Despite the importance of Islamic values and beliefs in the identity of the AKP and most people in Turkey, the AKP does not regard itself as an Islamist party, but rather as a conservative democratic party. Also, the PKR of Malaysia and the PKS of Indonesia have not only established themselves as an opposition in their countries, but have become influential in promoting a democracy based on Islamic beliefs and values.
Although their approach is attractive to both Muslims and non-Muslims, they have demonstrated the consistency of Islam with good governance and socio-economic development.184 These three parties, therefore, are evidence that Muslim political parties can uphold both Islamic values and the principles of democracy.
Most Muslims want a model of Sharīʿah that is based on a set of principles and objectives that operate in accordance with changing needs and conditions.185 As discussed in Chapter 1, ijtihād is the fundamental instrument in Islamic legal thought that can maintain the relevance of Sharīʿah to changing circumstances in society. What is clear from this discussion is that within Islam there are democratic elements that can play a central role in a political system of governance. But how can Islam and democracy co-exist in Australia?
6.7 Islam and Democracy in Australia
Islam in Australia has become a central and ongoing subject for discussion in the media.
A long list of politicians, religious figures, academics and journalists have expressed their opinions on the compatibility or incompatibility of the values of Islam and
183 Nilüfer Göle, “Radical Questions on Democracy, Outlandish Formation,” Today’s Zaman, March 31, 2014, accessed May, 2015,
256 democracy. From the non-Muslim perspective, for example, in an interview on ABC’s
Lateline program, former Treasurer Peter Costello seems to draw a line between
Australia’s “core beliefs”⎯that is democracy, liberty and the independent judiciary⎯and Islam which, according to him, was a threat to “Australian values”.186
Paralleling such a controversial statement, and from a Muslim perspective, in 2011, the leader of the Islamist entity “Sharia for Australia”, Ibrahim Siddiq-Collon, commented on the popular television program 60 Minutes, that “I hate democracy, absolutely. With my heart, my speech and my hands, as much as, I can”.187
But how representative are these views concerning Islam and democracy in the minds of
Australian Muslims? There are many empirical studies that have sought to illustrate the religiosity of Australian Muslims and their attitudes towards secularity,188 experience in the Australian education system,189 employment and education levels,190 misrepresentation in the Australian media, and attitudes on various gender issues,191 but there are few serious studies on Australian Muslims’ attitudes to democracy. There are, however, two surveys on Muslim communities in Australia with questions touching on
186 “Respect Australian values or leave: Costello,” Lateline, (Sydney: ABC TV, August 23, 2005). 187 “Hard-Liners Promote Islamic State in Australia,” 60 Minutes (Sydney: Channel 9, March 20, 2011). 188 John Dryzek and Bora Kanra, “Australian Muslims’ Orientations to Secular Society: Empirical Exploration of Theoretical Classifications,” Journal of Sociology 48(2) (1993): 1−17; Riaz Hassan, “On being Religious: A Study of Christian and Muslim Piety in Australia,” Australian Religion Studies Review 15(1) (2002): 87−114. 189 Fethi Mansouri and Sally Percival Wood, Identity Education and Belonging: Arab and Muslim Youth in Contemporary Australia (Melbourne: Melbourne University Press, 2008); Rosemary Suliman and Dennis McInerney, “Motivational goals and school achievement: Lebanese-background students in South Western Sydney,” Australian Journal of Education, Paper presented at the Australian Association for Research in Education, Auckland, New Zealand, 2006. 190 Gary D. Bouma, Shahram Akbarzadeh and Robert Woodlock, Mapping Employment and Education among Muslim Australians (Monash University: Centre for Muslim Minorities and Islam Policy Studies, 2008), accessed
257 democracy. The first survey conducted in 2007 involved 1,401 Australian Muslims and non-Muslims in major cities throughout Australia. One of the findings of this survey demonstrated that almost half of those surveyed believed Muslims were having a negative impact on national security (47%), and a sizeable percentage saw Muslims as a threat to Australia’s democracy, system of government, separation of church and state, law, basic rights and freedoms.192 Another finding showed a substantial percentage
(94%) of Australians felt the media played a negative role in straining relations between
Muslims and non-Muslims.193
The second survey of 418 Muslims in Queensland was conducted in 2009. It focuses on the opinions and actions of Muslims on many issues concerning Australia’s democracy: their level of trust in Australian institutions, the power they have to influence government decisions, and the extent to which they believe Australian democracy is compatible with Islam.194 In particular, participants were asked to respond to the statement: “Democracy is a Western form of government and is not compatible with
Islam”. Some 7% rejected the statement, 50% stated “most aspects of Islam are compatible with democracy” and 24% stated they “totally disagree with the statement”.
This positive attitude to democracy is supported by another part of the survey where
74% agreed with the statement “Australia’s democracy is compatible with Islam”.195
The study also found Australian Muslims have reasonably high levels of engagement
192Issues Deliberation Australia/America, Australian Deliberates: Muslims and non-Muslims in Australia, Final report summary (Australia/America: Issues Deliberation Australia/America, 2007), p. 4, accessed May 2015,
258 with politics and respect and trust the education system, healthcare system, judiciary, police services and their own religious organisations.196
One of the results from the above surveys is that prejudice, fear and stereotypes are seen to be fuelled by media coverage that perpetuates misunderstandings and assumptions about the beliefs of Muslims and misperceptions of Islam and Muslims. For Muslims in general, Islamic principles represent the “source of orientation” from which they strive to live as good citizens in an increasingly globalised world.197 It is clear the perceived tensions between Islamic principles and Australian values are considered at the heart of negotiations of intercultural challenges.198 Since most Australian Muslims follow their
Islamic principles as a guide for them in a non-Muslim society, and since the findings of the cited surveys demonstrate that Australian Muslims do not see an intrinsic conflict between the principles of their Islamic faith and the values and practices of modern
Australian democracy, one can conclude the opinion of some leaders about the incompatibility of the values of Islam and democracy do not at all mirror the opinions of
Muslim communities. For their part, the challenge for Muslims is to recapture the essence of Sharīʿah through a thorough examination⎯based on the maqāṣid⎯of their conception of Islam in the context of a modern democratic society.
6.8 Conclusion
The socio-political values of Islam are compatible with the values of democracy, but with “real democracy” literally defined and perfectly practised. The totalitarian regimes in Muslim-majority countries do not follow the values of Islam, as the Islamic political
196 Ibid. 197 Nilüfer Göle, “The Voluntary Adoption of Islamic Stigma Symbols,” Social Research 70(3) (2003). 198 Fethi Mansouri, “Local Government, Intercultural Tension and the Racialisation of Muslims in the West,” in Muslims in Australia: The Dynamics of Exclusion and Inclusion, ed. Samina Yasmeen (Melbourne: Melbourne University Press, 2010), p. 252.
259 system is totally different from the system Muslims have acquired particularly after colonialism, which is in the guise of the double standard Western democratic system.
Hence, it is not from Islam, but from political regimes in Muslim-majority countries that
Muslims are afflicted by some democratic disability.199 If Muslim leaders are taking into consideration the complexity of the situation, they will find a profound programme of reform based on the principles of Islam (shura, justice, tolerance…), but it is impossible to be content with political tinkering by trusting only in the values of Islam without an effort to change their systems. As the verse states: “Allah does not change a people's lot unless they change what is in their hearts”.200 The change should be at all levels and in all domains. According to Ramadan, the most important domain to change is the political culture by applying the principle of shura on a national plane, and this is without the use of violence.201 In brief, to achieve democracy in Muslim-majority countries, they should seriously change by basing themselves on past history and the
Prophetic governance model in Medina. Further, their daily spirituality must be cultivated by the exactness of justice and tolerance. This is the ultimate liberation that guides them to the sense of fraternity: to be with God and be tolerant with each other.
Thus, in Muslim-majority countries, the road is still long and the first step of political activity remains that of social action.
In regard to the minority-Muslim population in Australia, the challenge is to appreciate the content of Islam as a faith based on fulfilling the will of God through justice, human dignity and the well-being of humanity. In other words, interpreting the Qurʾan and
Sunnah literally will not achieve the purpose and objectives of Sharīʿah. Rather, the
Qurʾan and Sunnah must be read with a distinctive view of interpretation to identify the
199 Hofmann, “Democracy or Shuracracy,” p. 302. 200 Qurʾan 13:11. 201 Ramadan, Islam, the West and the Challenge of Modernity, pp. 307−311.
260 goals and objectives of Sharīʿah. This interpretation must be done through ijtihād and by competent mujtahids, with the emphasis that this interpretation tends towards compassion and mercy rather than harshness and punishment. A synthesis of the socio- political elements of Islam and values of democracy is promising, but it requires a flexible view of each. It requires acknowledging that democracy depends on honest claims about human liberty and equality. Also, this synthesis demands a genuine recognition that democracy based on Islamic values will not emerge spontaneously or as a historical inevitability, but it can emerge as a product of self-conscious efforts by
Muslims.
261
7 A PLACE FOR ISLAMIC LAW IN AUSTRALIA’S LEGAL SYSTEM
7.1 Introduction
Islamic law is one of the three major world legal systems, after the common law and civil law systems.1 Most Muslims believe in the divinity and sacredness of Islamic law and in its practical importance to everyday life. Therefore, some Muslims in Australia, as in other secular Western countries, appeal for a partial application of Sharīʿah in family matters. Although the principles of Islamic law are revealed in the Qurʾan and
Sunnah, they are not immune from critical evaluation. The term Sharīʿah raises fear in the Australian mind due to its association with penal laws (the penalties for certain crimes in Sharīʿah) and its supposed incompatibility with the values of democracy and human rights. For this reason, the sentiment among the majority of non-Muslims is pejorative and alarming, leading to a complete rejection of the application of Sharīʿah regardless of any benefit.2 This feeling in turn feeds into fears about the Muslim presence in Australia, as well as the failure to understand the nature and meaning of
Sharīʿah; thus, it raises the question of accommodation that should be given to the laws, principles and practices of minority groups within a liberal democratic state. Yet, the extent to which Sharīʿah should be followed in non-Muslim countries is arguable on a
1 Ann Black, Hossein Esmaeili and Nadirsyah Hosen, Modern Perspectives on Islamic Law (Cheltenham, UK: Edward Elgar, 2013), p. 1. 2 For example, in 2006, the Federal Treasurer Peter Costello claimed “there was no place for Sharia laws in secular societies like Australia,” because being an Australian means “you do have to believe in democracy, the rule of law and the rights and liberties.” See Karen Barlow, ABC online interview, “Aust No Place for Sharia Law: Costello,” 24 February 2006, accessed March 30, 2014,
263 scholarly level. In countries like Australia, this obligation is dependent on many factors: the law of the country in which Muslims live, the possibility of applying certain aspects of Sharīʿah in a secular country, the meaning and the intent of Sharīʿah and the opinions of scholars.
This chapter examines juristic discourses on the degree to which a Muslim is obliged to follow Sharīʿah in Australia. This question will be addressed by considering the obligation for Muslims to follow Sharīʿah law in a non-Muslim country describing the conditions under which these laws should be followed. Particularly, relying on the higher objectives of Sharīʿah and the views of the leading classical and contemporary scholars, I will demonstrate that, in secular countries, Muslims are only obliged to follow certain aspects of Sharīʿah.
I want to broach this issue by answering the following questions: Should a liberal democracy like Australia adjust its legal code to accommodate a religious tradition like
Islam? Should Muslims follow Sharīʿah law in a non-Muslim country or follow the law of the land?
This chapter considers these questions by focusing on the concept of public interest
(maṣlaḥa) and the higher objectives of Sharīʿah, which was introduced in the realm of ijtihād, so Muslims can best fit into Western democratic society. Then, it discusses how a government can build a democratic polity that includes citizens with strong faith commitments. To tackle these issues, I will first discuss the politics of democracy in
Australian legal discourse, and then examine the issue of accommodation of Islamic law in an international context. The last section of this chapter provides a discussion of the concept of maṣlaḥa and the higher objectives of Sharīʿah and how ijtihād can help
264 Muslims live in a secular country, applying some aspects of Sharīʿah and following the law of the land.
7.2 The politics of democracy in Australian legal discourse
The focus of this section is to examine the implications of secular theories that conceptualise religion as outside of politics by analysing constitutional and legal understandings of secularism in Australia. I will argue that secularism does more than represent politics as separate from religion. In making this argument, I rely on the work of anthropologist and renowned scholar Talal Asad, who argues that secularism functions to produce particular understandings of religion. The discussion then turns to the modern political analysis of democracy. In particular, I will examine the notion of
“twin tolerations” introduced by a political scientist and scholar of comparative politics,
Alfred Stepan, who goes beyond the simplistic analysis that democracy needs sufficient political space from religion to function effectively and argues that democracy does not necessarily need the concept of secularism. Drawing on the Indonesian model of democracy, in particular, I will argue there is a minimal degree of toleration that democracy needs to receive from religion and there is a minimal degree of toleration that religion needs to receive from the state for the polity to be democratic.
7.2.1 Liberal Secularism and Australia’s Constitution
The separation of religion and state by secularism underpins the constitutional and legal frameworks that treat secularism as “neutral” rather than involved in the political terms through which religion is understood in Australian culture.3 I argue that secularism, rather than representing neutrality, seems to have emerged as a belief system in itself.
3 Holly Randell-Moon, “The Politics of Secularism in Australian Legal and Political Discourse,” in Religion, Spirituality and The Social Science: Challenging Marginalization, ed. Basia Spalek and Alia Imtoual (Bristol, UK: Polity Press, 2008), p. 51.
265 To analyse this argument, it is useful to give a short overview of liberal secularism in examining section 116 of the Australian Constitution, which represents secularism in the Australian legal context.
Section 116, which outlines the relationship of religion to the state, explains that:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religion test shall be required as a qualification for any office or public trust under the Commonwealth.4
Section 116 promotes a secular separation of church and state by prohibiting the official establishment of any religion by the Commonwealth and protecting religious freedom from government intervention. That is, the government neither establishes nor prohibits a specific religion. However, the theory of secularisation overlooks the ways in which the dominant religion in a culture can be integrated into government operations. This integration is often supported by ethnocentric assumptions of cultural affinity between specific religions and a secular state.5 Drawing on the comments of former Federal
Treasurer Peter Costello, who attempts to portray aspects of Islam as “illegitimate” because Islam combines religious and politics,6 it appears the representation of secularism within a political space is not characterised by a complete separation of the secular from religion, but is imbued with religiously informed cultural and social values.7 It is therefore possible that Australia can be considered “secular,” while the
4 Joshua Puls, “The Wall of Separation: Section 116, the first Amendment and Constitutional religious guarantees,” Federal Law Review 26(1) (1998): 139−64; Commonwealth of Australian Constitution Act (1900), 2003, Chapter V, s 16. 5 Randell-Moon, “The Politics of Secularism in Australian Legal and Political Discourse,” p. 52. 6 Peter Costello, “Worth Promoting, Worth Defending: Australian Citizenship, What it Means and how to Nurture it,” address to the Sydney Institute, February 23, 2006, accessed March 2015,
266 precise meaning of this rather elastic term remains unclear. In this chapter, I do not attempt to arrive at a consistent understanding of what secular really means. Instead, I argue that, in its current usage in the Australian context, some religions can be integrated into “the secular” at the level of national culture.
Section 116 of the Australia’s Constitution contains provision for the protection of religious freedom and preservation of religious diversity through the prohibition of a state-established religion. It works on a restriction to the Commonwealth’s powers to create laws with respect to religion, and the Federal Parliament decides on what laws need to be made.8 Asad complicates the dominant understanding of secularism offered by the Australian Constitution by claiming it is invariably the state that defines the place of religion within the nation, suggesting the lines between church and state are irrevocably blurred.9 Moreover, Asad writes in Genealogies of Religion that there cannot be a universal definition of religion, not only because its constitutional elements and relationships are historically specific, but because that definition is itself the historical product of discursive processes.10 Thus, secularism does not simply separate religion from politics, but constitutes the forms religion can take.11 Furthermore, Asad’s study Formations of the Secular: Christianity, Islam, Modernity finds that secularism
church must be separated”. But, private schools, mainly Catholic, were allowed to give the religious instruction they wanted. England also maintained religious instruction in schools, according to the 1944 law, as the only compulsory subject. Scandinavian schools also kept religious instruction. In USA, the state opens its festivities with religious ceremonies and its representatives must be very careful not to express themselves in such a way that one or more religious communities will take offence, because more than 300 religious communities are reflected in the amount of private, clerical educational institutions. See P.G. Lindhardt, Religion og Evangelium [Religion and gospel] (Copenhagen: Hans Reitzel, 1961), pp, 46−49; Cowen Robert and Andreas M. Kazamias (ed.), International Handbook of Comparative Education (London & New York: Springer, 2009), p. 833. 8 Michael Eburn, “Religion and the Constitution – An illusory Freedom,” Australian Religion Studies Review 8(2) (1995): pp. 77−85. 9 Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford UP, 2003), p. 190; Q&A AsiaSource Interview, interview by Nermeen Shaikh, December 16, 2002, accessed July 19, 2014,
267 functions differently in different nations, and the meanings and assumptions that shape secularism consequently also vary.12 The implicit religious plurality in the implementation of secular neutrality in section 116 draws on a notion of liberal secularism, where pluralism sees a tension between community and individual beliefs, since a plural democracy contains individuals with their comprehensive dogmas. This is exactly what political theorist John Rawls refers to as comprehensive doctrines that cover all values and virtues within one rather precisely articulated system:13
We must distinguish between a public basis of justification generally acceptable to citizens on fundamental political questions and the many non public bases of justification belonging to the many comprehensive doctrines and acceptable only to those who affirm them.14
Political Liberalism assumes that, for political purposes, a plurality of reasonable yet incompatible comprehensive doctrines is the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime. Political liberalism also supposes that a reasonable comprehensive doctrine does not reject the essentials of a democratic regime.15
This model of secularism presumes, as Rawls suggests, that any given religion within a liberal pluralist society will be compatible with democratic principles. Thus, different religions can be integrated in various ways into a political system because they have democratic principles. In other words, equations between cultural compatibility and democracy are not directed towards the already dominant religion in a culture, but can be also drawn onto other cultures and religions. This is manifested in mainstream political discourse about the supposed compatibility of Islam with a secular democratic state such as Australia. As opposed to this, the objective of Costello’s speech was a
12 Asad, Formations of the Secular, p. 5. 13 John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 152. 14 Ibid, p. xix. 15 Ibid.
268 critique of Islamic law that promotes a cultural diversity which conflicts with Australian core values:
There is one law we are all expected to abide by. It is the law enacted by the parliament under the Australian Constitution. If you don’t accept that then you don’t accept the fundamentals of what Australia is and what it stands for…there are some beliefs, some values, so core to the nature of our society that those who refuse to accept them refuse to accept the nature of our society.16
That “one law” mentioned in his speech, is predicated on an alignment of the Australian values with a specifically Anglo-Celtic language and culture that is generalised as predominant.
On the same level, one of the main Australian beliefs and values that pervaded throughout Prime Minister John Howard’s leadership from 1996 to 2007 is the Judeo-
Christian influence:
I … regard the Judaeo-Christian influence on Australia as the single greatest influence for good in the Australian community. But I do respect the secular tradition of Australia...My belief in the centrality of the family, my very strong belief in private business enterprise, my very strong belief in the I think the stabilising influence of the Judaeo-Christian ethic in this country. Those beliefs haven’t changed at all. And you can find at every point of my time as Prime Minister a re-affirmation of those things.17
Although Howard is affirming the secular tradition of Australia, he asserts Judeo-
Christian belief comprises the moral foundations of Australian society.18 Thus, the
16 Costello, “Worth Promoting, Worth Defending.” 17 John Howard, “What our Leaders Believe,” transcript, Compass ABCTV, October 3, 2004, accessed July 21, 2014,
269 privileging of a Judaeo-Christian morality, which is reproduced and reinforced through the mainstreaming of white Anglo-Celtic subjectivity, which is already in place as an
“Australian value” and clearly celebrated in the political leadership by Howard. In other words, the construction of this doctrine is central to the function of Australian secularism, which, in turn, is inextricably linked to an Anglo-Celtic subjectivity that is underpinned by a “core” Judeo-Christian morality.19 This generalisation of secularism constructs particular religions as compatible with secular law, because they can seemingly exist outside of the political process and marginalise other religions because they are extra-political.20 Based on these facts, can Australia be considered secular?
Canadian philosopher Charles Taylor in A Secular Age identified three forms of secularism. In the first form, secularism can mean the complete removal of religion from the public sphere and the strict separation of church and state. For example, the laïcité of France; this form of secularism does not necessarily mean a decrease in religious belief by the population. Instead, religion is simply removed to the private sphere. The state can be secular, while its population is religious.21
The second form of secularism, according to Taylor, relates to the level of religiosity of the population and this form has a measurable reduction in religious belief and practice.
He argues that secularism in this case may exist even if the state still supports religion.
For example, despite the Church of England still being the established church in the
United Kingdom, a significant proportion of the population identify with having no religion. In this case, the people are atheist, while the state may be religious.22
19 Howard, “What Our Leaders Believe.” 20 Randell-Moon, “The Politics of Secularism in Australian Legal and Political Discourse,” p. 60. 21 Charles Taylor, A Secular Age (California: Stanford University Press, 2001), pp. 1−2. 22 Ibid, pp. 3−4.
270 In Taylor’s third version of secularism, religion is not removed from the public sphere; rather it exists among many, include those with no religion. As a result, a state may have a relatively high level of interaction with religion and still be considered secular, provided the state does not endorse one religion to the exclusion of others.23
Since the federal government cannot establish a state church⎯according to section 116 of the Australian Constitution⎯and since Australia’s population is still predominantly religious,24 Australia has a form of secularism where religion is allowed in the public sphere. Thus, the secularism in Australia is very close to the third form of secularism identified by Taylor.
Far from weakening the cultural importance of religion, the political secularism of
Australia leads to political and cultural contexts that legitimate some religions over others. Therefore, I suggest that a democratic society should welcome all religions to public debate so public policy may be formed on the basis of listening to the arguments and evaluating their proposals. In that way, the outcomes may give expression to equal rights and respect for the worth of each Australian citizen within their community and thus, to attain a shared goal of serving the common good of Australia. This is what
Stepan refers to in the concept of “twin tolerations.”
7.2.2 Does Democracy Demand Secularism?
The universal idea is that democratic governments should also be secular⎯when religion loses its authority in all aspects of social life and governance⎯or more correctly, that a democracy is ideally underpinned by a society where religion has little
23 Ibid, p. 20. 24 In the 2011 census, 68.3% of the population had a religion and 61.1% of Australians identified as Christians. See, Australian Bureau of Statistics, “Reflecting a Nation: Stories from the 2011 Census, 2012−2013,” June 21, 2012, accessed July 2015,
271 influence outside the private sphere.25 On the other hand, one of the most important conceptual tasks of current times is to think about how political democracy can accommodate multinational religious diversity within a state.26 Stepan argues that some separation between religion and state is needed in any operational democracy.27
However, this institutional differentiation is a necessary but not a sufficient condition of secularity, because it does not ensure a level of freedom for the individual.28 To understand this statement, I consider Stepan’s “twin tolerations” concept29, coupled
30 with the “principled distance” model introduced by political theorist Rajeev Bhargava.
These two concepts allow me to discuss secularism without borrowing from Western experience. According to the “twin tolerations” concept, the separation of religion and state does not mean a complete separation. In this regard, Stepan calls attention to the relations between state, religion and society that exist in modern democratic countries.
He argues that secularism is neither a sufficient condition for democracy nor a concept necessary for its analysis.31 In other words, there is a clear distinction and mutual respect between political authorities and religious leaders and bodies.32 When this distinction is accomplished, the religious sector enjoys freedom of activity and the
25 Pippa Norris and Ronald Inglehart, Sacred and Secular: Religion and Politics Worldwide (Cambridge: Cambridge University Press, 2004), pp. 3−32. See also, Michael D. P. Driessen, “Religion, State and Democracy: Analyzing two Dimensions of Church-State Arrangements,” Politics and Religion 3(1) (April, 2010). 26 The accommodation of religious diversity within a state means democracy requires that each citizen or group of citizens speak the language in public debate that is most meaningful to them. Therefore, justice requires a modern democracy keep an equal distance from different faith positions. See Taylor, A Secular Age, p. 532. 27 Alfred Stepan, “Religion, Democracy and the ‘Twin Tolerations’,” Journal of Democracy 11(4) (October 2000): 37−57. 28 Joceline Cesari, The Awakening of Muslim Democracy: Religion, Modernity, and the State (New York: Cambridge University Press, 2014), p. 264. 29 Stepan, “Religion, Democracy and the ‘Twin Tolerations.’” 30 Rajeev Bhargava, “State, Religious Diversity, and the Crisis of Secularism,” Open Democracy, March 22, 2011, accessed July 30, 2014,
272 ability to peacefully influence its members, but does not exercise direct particular power. The country’s ability to implement the principle of differentiation between the religious sector and the political sector directly affects the successful development of democracy.33
On a different level, the concept of “principled distance” between religion and state, unlike neutrality, allows for “state intervention” in religious affairs to provide assistance to particular groups and to ensure everyone’s rights within a group are recognised.34
This “principled distance” provides an understanding of equality that takes into account the social needs of different religious groups and therefore requires the state’s active intervention.35 Therefore, secularisation can be reviewed through positive cooperation between state and religion. In this regard, the experience of Indonesia, a Muslim country with a centrality of religion, demonstrates a possible path toward democracy that would not require the separation of church and state of the Western model.
According to Stepan, democracies have a better chance of surviving if they practise the concept of “twin tolerations”, that is, if the state tolerates religious freedom and religious organisations accept the sovereignty of the elected government.36 He views
Indonesia as a state in which implementation of the “twin tolerations” has strengthened democracy.37 Indonesia as a Muslim-majority country with a reasonably high democratic ranking has established Islam as the state religion. Thus, Indonesia displays cooperation between state and religion. Indonesia’s national motto, “unity in diversity,”
33 Ibid. 34 Alfred Stepan, Juan J. Linz, and Yogendra Yadav, Crafting State-Nations: India and Other Multinational Democracies (Baltimore, MD: Johns Hopkins University Press, 2011), p. 69. See Stepan, “The Multiple Secularisms of Modern Democratic and Non-Democratic Regimes,” pp. 134−139. 35 Rajeev Bhargava, “Rehabilitating Secularism,” in Rethinking Secularism, ed. Graig Calhoun, Mark Juergensmeyer and Jonathan VanAntwerpen (New York: Oxford University Press, 2011), pp. 105−107. 36 Marcius Mietzner and Edward Aspinall, “Problems of Democratisation in Indonesia: An Overview,” in Problems of Democratisation in Indonesia: Elections and Societies, ed. Marcius Mietzner and Edward Aspinall, (Singapore: ISEAS Publishing, 2010), p. 3. 37 Ibid.
273 symbolises a constitutional commitment to religious, ethnic and political diversity and equality.38 The bedrock of the country is the pancasila, which means “five pillars” and consists of five principles included in the preamble to the 1945 Constitution: 1) belief in
God; 2) a just and civilised humanitarianism; 3) national unity; 4) Indonesian democracy through consultation and consensus; and 5) social justice.39 The pancasila enshrines the values of social justice and consensus, and it has some political virtues in
Indonesia’s intensely religious and heterogeneous society. Therefore, it facilitates the state’s recognition and granting of some financial and bureaucratic support to the five largest organised religions in addition to Islam: Buddhism, Hinduism, Catholicism,
Protestantism and Confucianism.40 Official state inclusion in the pancasila system means these five non-Islamic religions, with a total of 27 million adherents, were granted rights within the state of Indonesia.41 This recognition of religious diversity is highly valued because it allows all faiths to call upon and demand their rights and protection from the state if they are threatened and also to have a say on the state’s financial resources.42 For instance, they can apply for financial support to the section in the Ministry of Religion dedicated to their religion.43
On a different level, the concept of “principled distance” may require state intervention in some religions more than others, considering the social conditions of religions.44 For instance, religious groups have sought exemptions from practices in which the state
38 Kikue Hamayutsu, “Islam and Nation Building in Southeast Asia: Malaysia and Indonesia in Comparative Perspective,” Pacific Affairs 75(3) (2000): 355. 39 Ibid. See also, Azyumardi Azra, Indonesia, Islam, and Democracy: Dynamics in a Global Context (Jakarta: Solstice, 2006), p. 212. 40 Stepan, “The Multiple Secularisms of Modern Democratic and Non-Democratic Regimes,” p. 130. 41 Ibid. See also, Azra, Indonesia, Islam, and Democracy, p. 86. 42 Stepan, “The Multiple Secularisms of Modern Democratic and Non-Democratic Regimes,” p. 130. 43 For example, if a religious school wants official recognition, there has recently been a growing process of consensual co-design of books on the history of religion by state authorities from the Ministry of Education and religious leaders from major Muslim organisations. See Stepan, “The Multiple Secularisms of Modern Democratic and Non-Democratic Regimes,” p. 130. 44 Bhargava, “Rehabilitating Secularism,” p. 106.
274 intervenes by promulgating a law to be applied neutrally to the rest of society.45 This demand for non-interference is made on the ground either that the law requires them to do things not permitted by their religion or that it prevents them from doing acts mandated by it.46 However, religious groups may demand the state interfere to give them special support so they are also able to obtain what other groups are able to get routinely by virtue of their cultural or religious dominance.47
So, how is “principled distance” different from “twin tolerations”? First, the concept of
“principled distance” is less friendly to the idea of the establishment of a specific religion in religiously diverse societies or the establishment of a variety of secularism.
Second, according to the concept of “twin tolerations,” democracy requires neither strict separation of religion and the state nor hostility toward religion. Therefore, the two concepts agree on the toleration between the religious organisations and the state based on the exercise of religious freedom by communities, particularly minority communities.
To sum up, the idea of secularism should be rehabilitated in some way: we need to conceive a new definition for secularism as we have to give up the binary opposition between the secular and the religious. A new refashioned concept of secularism must find a necessary common ground between secular and religious. Thus, it must encourage a way of conceiving a world inhabited by both religious and non religious people. Secularism, in other words, should lead to the merging of plurality of religious thought and democracy, enabling all citizens to enjoy their rights and receive equal
45 For example, Sikhs demand exemptions from mandatory helmet laws and police dress code to accommodate religiously required turbans. Muslim women demand the state not interfere in their religiously required hijabs or chadors. Jews and Muslims seek exemption from Sunday closing laws on the ground this is not required by their religion. See Bhargava, “Rehabilitating Secularism,” p. 106. 46 Bhargava, “Rehabilitating Secularism,” p. 106. 47 Ibid, p. 107.
275 treatment, irrespective of their religious or philosophical beliefs. Following on with this hypothesis, I will discuss the call for recognition or an accommodation of Islamic law in liberal democratic states.
7.3 The Recognition of Islamic Legal Principles in Liberal Democratic Societies
The debates about the recognition of Islamic law within existing legal systems, particularly in liberal democratic states that have minority Muslim communities, are based on assumptions and stereotypes that develop fear and problems in the public sphere.48 I will examine some of these international debates to provide an interesting background for the discussion that follows concerning the call for recognition in the
Australian context. I rely in my discussion on the work of Sydney academic and lawyer
Ghena Krayem, who argues, despite the assumptions and stereotypes made, there is no demand by Muslims for recognition of Sharīʿah, rather it is a call for recognition of dispute resolution in an Islamic way.49 To address this argument, it is important to start with a discussion of the concept of legal pluralism.
7.3.1 Legal Pluralism
The consideration of Islamic legal principles within a secular democratic state is part of a broader trend of legal pluralism. This recognition or accommodation of some Islamic dispute resolution procedures requires the existence of another legal system operating alongside the official legal system.50 To understand these procedures, it is useful to explore the questions of accommodation by the state. In other words, to what extent can
48 Krayem, Islamic Family Law in Australia, p. 2. 49 Dispute resolution and its forms have become popular in Western legal systems: Counselling, mediation and arbitration are now recognised tools for resolving family law disputes. Secular and religious organisations are available to assist couples to settle their differences without resorting to the court. See Jamila Hussain, “Family Dispute Resolution and Muslim Communities in Australia,” in Family Law and Australian Muslim Women, ed. Abdullah Saeed and Helen McCue (Victoria: Melbourne University Press, 2013). 50 Krayem, Islamic Family Law In Australia, p. 2.
276 a democratic nation’s rule of law system tolerate a minority group exercising self- sufficiency within a particular area of law?
Before answering this question, it must be acknowledged that Australia is marked by a common premise of legal pluralism. Yet, the only law applied in Australia is the official law of the state, apart from some concessions to the Indigenous people of this country.51
Politicians in Australia have rejected the existence or possibility of existence of another stream of law alongside the official one. In this law, freedom of religion and worship is protected, but religion plays no part in the Australian legal system.52 While I argue the call for recognition by the Muslim community is not about setting another legal system parallel to the official law of the country, I want to show that an understanding of law which views the state as the only producer of law is very much mistaken.53
Although the objections to recognition of Islamic law by Australian politics is based on considerations of equality, equal protection and non-discrimination, legal pluralism may be described as a situation resulting from the existence of distinct laws or legal systems within a particular country, especially where that situation results from the transfer of one of the systems as an aspect of an introduced political structure and culture.54 Legal pluralism is historically related to the inclusion of customary laws into the legal system
51 Ann Black, “Legal Recognition of Sharia Law: Is this the Right Direction for Australian Family Matters?” Family Matters No. 84, 2010, AIFS Journal, accessed August 2, 2014,
277 55 of post-colonial countries. History provides many examples of the success of legal pluralism in managing religious and ethnic diversity. The Ottoman Empire had the millet system, which enabled the personal laws of its different religious denominations to live together in harmony. Muslim Turks were subject to Islamic law, while Christians and Jews followed their own laws, with the heads of their communities officially empowered to exercise jurisdiction over them.56
Today, many Muslim-majority states espouse in their constitutions that Islam is the religion of the state. Therefore, they incorporate some aspects of Islamic law in their legislation.57 Family law and inheritance matters for Muslims are heard in Sharīʿah courts, but non-Muslims take their cases to the civil courts. These countries remain legally pluralistic: some laws that are based on Islamic practices apply only to Muslims, so non-Muslims may be exempted from laws dealing with prayer, fasting, alcohol and dietary regulations. It means that immigrants who have come from such countries are comfortable with legal pluralism.58
At a theoretical level, some endeavours in legal pluralism concentrate on the capability of the law to be responsive to the community by recognising its actual needs. It is the study of the equilibrium between formal law and the ways in which social co-existence is regulated in actuality.59 Legal pluralism can exist without formal recognition by the dominant legal system, which is the case of the Aboriginal customary laws in the period after British settlement in Australia, or it can exist in a formally recognised way, as is
55 Jocelyne Cesari, Why the West Fears Islam: An Exploration of Muslims in Liberal Democracies (New York: Palgrave Macmillan, 2013), p. 116. 56 Black, “Legal Recognition of Sharia Law.” 57 Anver Emon, “Techniques and Limits of Legal Reasoning in Sharīʿa Today,” Berkeley Journal of Middle Eastern & Islamic Law 2(1) (2009): 101−24. See also, Clark Lombardi, State Law as Islamic Law in Modern Egypt (Leiden: Brill, 2006). 58 Black, “Legal Recognition of Sharia Law.” 59 Emmanuel Melissaris, Ubiquitous Laws: Legal Theory and the Space for Legal Pluralism (Burlington: Ashgate, 2009), p. 27.
278 the case in many countries where the legal system recognises indigenous customary law or religious law against the background of a general legal system introduced by colonisation.60 According to M.B. Hooker of the faculty of law at the Australian
National University:
Despite political and economic pressures, pluralism has shown an amazing vitality as a working system. It may well be that it—and not some imposed unity—should be the proper goal of a national legal system. Indeed, even within developed nations themselves, there are signs that a plurality of law is no longer regarded with quite the abhorrence common a decade ago. This is especially true if one looks at those states which possess indigenous minorities; in the USA, Canada, Australia and New Zealand the courts are dealing with a spate of claims by the native minorities to land rights and for the recognition of their own laws. One must seriously question whether policies aimed at specifying a single source of law are really necessary; perhaps indigenous laws, somewhat modified, are more suitable as expressing unique cultural values.61
In the Australian context, the argument for pluralism has also been made as follows:
For settler Australians it will not be adequate to salute ‘Aboriginality’... It may merely acknowledge another ethnic minority within the multicultural panoply. What we need is a commitment to a stronger and deeper pluralism that can take the measure of settler/Aboriginal difference. Pluralism in legal codes is only one concession out of many that settler society needs to make if Aborigines are really to be given a choice not to assimilate.62
Legal pluralism, in the sense of recognition of multiple laws or obligations, is a description of some techniques that can be used to accommodate the fact of diversity, whether in terms of culture, belief or geographical separation. Where different value systems, cultures or social structures coexist, it will often be desirable for the dominant legal system to take steps to recognise, adjust to or allow for that situation, but exactly
60 Hooker, Legal Pluralism, p. 6−54. 61 Ibid. 62 Tim Rowse, “Liberalising the Frontier: Aborigines and Australian Pluralism,” Meanjin 42 (1983): 71, 83.
279 what steps should be taken must depend on the specific context.63 In the Australian context, Wayne Hudson suggests Australian citizenship has “religious features” and a multicultural country like Australia should consider itself multi-faith rather than secular.64 If Australia is considered multi-faith, then this view would have implications for the consideration of legal issues.65 Islam may be described as a system of law that coexists with the official law in common law countries, so it can be considered a form of unofficial law.66 Many scholars accept that the power of law is not limited to a single producer; rather, it is attributed to different sites and may include alternative practices of law.67
Drawing on Margaret Davies’ discussion of legal pluralism, Islamic law presents an
“alternative sphere of normative ordering” that “exists alongside legal regulation.”68
Furthermore, Davies’ study Ethos of Pluralism finds that when the issue of recognition or accommodation of Islamic law has been raised in countries, such as Australia,
Canada or the UK, the response has generally been to emphasise the exclusive nature of the official legal system, rather than to explore the important question of “how can we maintain the integrity of law as a system while recognising the need for it to be more socially responsive, flexible, culturally inclusive and adaptive to other normative systems?”69
63 E Cotran, “The Place and Future of Customary Law in East Africa,” in East African Law Today, British Institute of International and Comparative Law, Commonwealth Law Series no. 5, 1966, p. 19. 64 Wayne Hudson, “The Chewing of Khat in Somalia,” Australian Journal of Politics and History 49 (2003): 425-429. Also see, Melanie G. Wiber and Gordon R. Woodman, The Journal of Legal Pluralism and Unofficial Law Nr.62 (Zurich & Berlin: LIT Verlag, 2011), p. 97. 65 Hudson, “The Chewing of Khat in Somalia.” 66 John Griffiths, “What is Legal Pluralism?” Journal of Legal Pluralism 24 (1986): 1−55. 67 Margaret Davies, “Pluralism in Law and Religion,” in Law and Religion in Theoretical and Historical Context, ed. Peter Cane, Carolyn Evans and Zoe Robinson (Cambridge: Cambridge University Press, 2009), pp. 72−79. 68 Ibid. See also, Sally Falk Moore, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study,” Law and Society Review 7 (1973): 719−746. 69 Margaret Davies, “Ethos of Pluralism,” Sydney Law Review 25(1) (2005): 90.
280 7.3.2 An International Debate about the Recognition of Islamic Law
Debate on the issue of legal recognition of Sharīʿah has gained popularity across common law jurisdictions due to several recent events. One was the legal recognition given to Islamic arbitration in the province of Ontario, Canada, in 2004.70 The second event was the Archbishop of Canterbury’s address in 2008 to the Royal Courts of
Justice in which he promoted the concept of Britain becoming a “plural jurisdiction” by accommodating aspects of Sharīʿah law.71
This call for recognition of Sharīʿah has been a common issue for Muslim communities in Western democratic countries. I will outline the debates that happened in Canada and the UK, and clarify the issues underlying these debates by arguing the real issue is not a call for recognition of a separate legal system, but an attempt at formalising processes that already exist under the official law.72
The Ontario Sharīʿah debate stimulated arguments around the world about the extent to which Muslims could find space in a liberal democratic system like Canada. Although the enabling sections of the Arbitration Act were subsequently repealed, it did stir up the possibility there could be faith-based dispute resolution for family law and other legal matters within a common law system.73 This debate started when a Muslim organisation known as the Islamic Institute of Civil Justice sought to offer arbitration in accordance with Islamic legal principles and Canadian law.74 The Muslim Personal/Family Law
Campaign was promoted as a way to offer marriage and dispute resolution services that would allow Canadian Muslims to live “Islam to the best extent possible in the
70 Black, “Legal Recognition of Sharia Law.” 71 Rowan Williams, “Archbishop’s Lecture: Civil and Religious Law in England: A Religious Perspective,” (foundation lecture presented at the Royal Courts of Justice, London, February 7, 2008), accessed August 2014,
281 Canadian democratic context”.75 This campaign proposed to implement Qurʾanic requirements to guide each party to settle disputes themselves, deciding the case by mutual consent, and then the parties would be helped to finalise the process accordingly.
If agreement could not be reached, the service would offer the help of two arbitrators to make a decision that would eventually become binding and enforced by Canadian law.76
According to the Qurʾan:
If ye fear a breach between them twain, appoint [two] arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.77
The reaction to this campaign created rage and moral panic with many believing what was being suggested was the enforcement of criminal punishments, in particular that
Muslim women in Canada would be stoned to death.78 Consequently, it was picked up by the Canadian news, then by news all over the world:79 “Canada judges will soon be enforcing Islamic law or Shari’ah, in disputes between Muslims, possibly paving the way to one day administering criminal sentences such as stoning women caught in adultery”.80
To determine whether to allow Sharīʿah arbitration in family law, the Ontario government appointed the Honourable Marion Boyd, former Attorney General of
Ontario, to investigate the extent to which federal and provincial law could uphold the
75 Rabia Mills, “Interview: A Review of the Muslim Personal/Family Law Campaign” (1995), accessed August 2014, http://muslim-canada.org/pfl.htm. 76 The Muslim Marriage Mediation & Arbitration Service, An Essential Islamic Service in Canada: Muslim Marriage Mediation and Arbitration Service, accessed August 2014, http://muslim-canada.org/ brochure.htm.. 77 Qurʾan 4:35. 78 Natasha Bakht, “Were Muslim Barbarians Really Knocking on the Gates of Ontario? The Religious Arbitration Controversy: Another Perspective,” Ottawa Law Review 67 (2006): 69. 79 Judy Van Rhijn, “First Steps Taken Towards Sharia Law in Canada,” Law Times (November 25, 2003), accessed August 2014,
282 interests of citizens while also respecting the use of religious law to arbitrate family disputes. Relying on Ayelet Shachar’s model of transformative accommodation,81 Boyd suggested, within a reformed arbitral system, religious law could be used in a way that allows for accommodation of cultural autonomy and does not violate the basic rights of
Canadian citizens under the Charter of Rights and Freedoms.82 Moreover, before submitting her report, Marion Boyd consulted various parties and, as result of that, the
Council on American–Islamic Relations Canada defined Sharīʿah as “a religious code for living covering all aspects of a Muslim’s life from prayers, to financial dealings, to family relations, to caring for the poor.”83 Suggesting numerous changes to the arbitral system in Ontario, most of which involved adding to the training, transparency and accountability of arbitrators, Boyd, in her report, did not consider that Sharīʿah law would by its very essence undermine or vitiate a woman’s liberty or equality.84 The report recommended many important safeguards that were aimed at considering the mediation and arbitration proposed as a self-regulating regime. The report also made suggestions about the need for independent legal advice and public education campaigns.85 However, the Ontario government rejected the findings of the report and amended the law to deny recognition to faith-based arbitration of family law disputes
81 Boyd referred to the work of Ayelet Shachar to recognise the intersectionality of women’s lives: “Part of this recognition in a multicultural and democratic society is an understanding of individuals as being at the intersection of various identities. One identity would be an individual’s membership in the culture of a religious community while another would be that same individual’s citizenship within the state. But there are numerous other identities that need to be taken into account.” See Ayelet Shachar, “Privatising Diversity: A Cautionary Tale from Religious Arbitration in Family Law,” Theoretical Inquiries in Law 9 (2008): 585. 82 Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion (Toronto: Ministry of the Attorney General, 2004): 89–92, accessed August 2014,
283 under the Arbitration Act.86 At the time of the announcement of this decision, Attorney
General Michael Bryant said:
We have heard loud and clear from those who are seeking greater protections for women. We must constantly move forward to eradicate discrimination, protect the vulnerable and promote equality...We will ensure that the law of the land in Ontario is not compromised, that there will be no binding arbitration in Ontario that uses a set of rules or laws that discriminates against women.87
In this regard, Krayem, in her study Islamic Family Law in Australia: To Recognise or not to Recognise, claims the argument made by Attorney General Michael Byrant was probably made for political reasons instead of policy reasons, since there was no implication that faith-based arbitration would be conducted in a manner contrary to the laws of Ontario. His argument may be considered to have been based on a common generalisation and misconceptions about Islam and Muslim women.88
The rejection of religious family dispute arbitration in Ontario was based upon a vociferous debate about Sharīʿah, and its ability to change and accommodate the values and aspirations of Canadian citizens. From the position put forward by the Ontario government, there seems to be a misunderstanding by a liberal democratic polity of how the values of liberty and equality, and the concept of multiculturalism, cannot accommodate legal recognition given to Islamic arbitration and religious groups seeking space within the sovereign framework of a state and its rule of law.89
86 Krayem, Islamic Family Law in Australia, p. 34. 87 Michael Byrant, Ontario Attorney General, Press Release (September 8, 2005), accessed August 2014,
284 A similar public debate occurred in the UK in 2008, when the Archbishop of
Canterbury, Rowan Williams, addressed the Royal Courts of Justice. Williams promoted the concept of Britain adopting a “plural jurisdiction” by accommodating aspects of Sharīʿah law.90 A few months before that, Lord Phillips of Worth Matravers, then Lord Chief Justice of England and Wales, during his speech, “Equality Before the
Law,” at the East London Muslim Centre said: “There is no reason why principles of
Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution.”91 Both speeches created mass arguments because they suggested that individuals should be able to choose a jurisdiction when settling private legal matters, including the option to have matters settled under Sharīʿah law. Some reactions displayed absolute anger. Was this public outrage justified?
Sharīʿah councils have been operating in the UK since the 1980s, and for a long time little attention was paid to them.92 However, the speeches in 2008 agitated the public, created controversy and raised the substantial question as to whether a secular democratic state should or could accommodate religious needs in the form of Islamic tribunals.93 It should be noted here that Archbishop Rowan Williams and Lord Justice
Phillips were advocating state accommodation of Sharīʿah councils, which already existed, and the law of the land does not prohibit this. Furthermore, due to the plurality of the society, the state should allow individuals to choose jurisdictions when dealing with legal issues such as “aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution”.94 Williams argued that
90 Williams, “Civil and Religious Law in England.” 91 Machteld Zee, “Five Options for the Relationship between the State and Sharia Councils: Untangling the Debate on Sharia Councils and Women’s Rights in the United Kingdom,” Journal of Religion & Society 16 (2014). 92 Ibid. 93 Ibid. 94 Williams, “Civil and Religious Law in England.”
285 no “supplementary” jurisdiction could have the power to deny access to the rights granted to other citizens or punish its members for claiming those rights: “citizenship in a secular society should not necessitate the abandoning of religious discipline; any more than religious discipline should deprive one of access to liberties secured by the law of the land.”95 In support of his statement, Williams suggested thinking in terms of Ayelet
Shachar’s “transformative accommodation” and argued it was institutionally reasonable for the state to concurrently respect deep cultural differences and protect the rights of vulnerable group members, women in particular.96 Williams also argued it is possible for secular laws to secure parties’ fundamental rights in case of unlawful decisions based on religious laws. Finally, he argued that other religious communities have state- sanctioned religious tribunals, namely the Jewish Beth Din (pl. Battei Din) and ecclesiastical councils based on Catholic canon law; therefore, it is unfair and unequal to deny the Muslim community the possibility of Sharīʿah councils.97 In a nutshell, there were five main statements put forward by Phillips and Williams: (i) there is a communal need for religious laws by British Muslims; (ii) there is no incompatibility between the Islamic and British legal systems; (iii) the denial of the rights of Muslims to choose between secular and Islamic laws in certain legal matters constitutes inequality before the law; (iv) the principles of freedom and equality provided by secular law override concerns regarding religious discriminatory practices; and, (v) other religious
95 Ibid. 96 Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001), pp. 4−5. 97 Williams, “Civil and Religious Law in England.” The Beth Din has operated in the UK for at least 70 years, and the USA for at least 85 years: see Marc Shoffman, “Muslims Seek Beth Din Advice,” Jewish News Online, February 14, 2008, accessed September 2014,
286 communities have religious tribunals, so it is unfair to deny the Muslim community the possibility of Sharīʿah councils.98
After a wave of criticism followed the raising of questions and arguments on the possible adoption of some aspects of Islamic law in Britain, Prime Minister Gordon
Brown stated “it is very clear that British laws must be based on British values and that religious law, while respecting other cultures, should be subservient to British criminal and civil law”.99 At the same level, David Cameron rejected any expansion of Sharīʿah law in the UK and said it would undermine society, alienate other communities, and allowing two laws to work side by side would be dangerous. He then added, “All citizens are equal before the law”.100 The next day the office of the Archbishop issued a statement in response to what they termed a strong reaction by the media, saying he was not advocating a “parallel set of laws”.101 Rather, it clarified the Archbishop sought carefully to explore the limits of a secular legal system in the presence of a plural society and to see how this system might be able to accommodate religious claims.102
So, what is the real situation in UK concerning Islamic family law and Sharīʿah councils? Sharīʿah councils have existed since 1982 and each council is usually associated with a mosque, but represents a diversity of religious opinions and caters to the needs of most Muslims.103 Councils try to mediate between parties and deal mostly
98 Zee, “Five Options for the Relationship between the State and Sharia Councils.” 99 Jasbir Authi, “Backlash over call for Sharia,” Birmingham Mail, February 8, 2008, accessed August 2014,
287 with matters of divorce and property settlement.104 Generally speaking, these councils do not have any authority other than moral authority, as they only make recommendations and it is up to the parties whether to accept them or not.105 They are not recognised as part of the British legal system.
The only council that has any authority according to the official legal system is the
Muslim Arbitration Tribunal (MAT), which was established in 2007.106 In its statement of values, the MAT expresses its respect and support for both English law and religious law:
We believe in the co-existence of both English law and personal religious law. We believe that the law of the land in which we live is binding upon each citizen, and we are not attempting to impose Shariah upon anyone. Shariah does however have its place in this society where it is one personal and religious law.107
This statement ensures that decisions are made in accordance with both laws.
From the multifaceted positions and arguments cited in this section, it is obvious that the debates were drawing upon assumptions and incomplete facts, which obscured the reality of the situations, but what about the situation in Australia?
104 According to Pearl and Menski, one important reason for the development of a Muslim arbitration tribunal or an informal Muslim dispute resolution process in England was the problem created when a woman sought and obtained a civil divorce, but could not obtain her husband’s consent to an Islamic divorce; See David Pearl and Werner Menski, Muslim Family Law, 3rd ed. (London: Sweet and Maxwell, 1988), pp. 79−80. 105 Ahmad Thomson, “Islamic Law for Family Lawyers,” Family Law Week, January 22, 2007, accessed August 2014,
288 Before exploring the issue of recognition of Sharīʿah in Australia, it is imperative to know why Islamic legal principles are important and why Muslims in UK, Canada and
Australia want some of the principles of Islamic law to be recognised in the official law of the country. To answer these questions, it is very important to shed some light on aspects of Sharīʿah and its objectives.
7.4 Why are Islamic Legal Principles Important for Muslims?
Despite the fact the legal principles of Islamic law are rooted in sources that date back over 1400 years, they remain very important to Muslims. Some Muslims may argue a just life is possible for a Muslim only if lived under the rules of Sharīʿah.108 Hence, a certain division results: on the one hand, there is an abode of Islam (dar al-Islam), where it is possible to live an ethical life under the guidance of Sharīʿah, and on the other hand, there is an abode of unbelief (dar al-kufr, dar al-harb or dar al-shirk), where Sharīʿah is not applied and Islamic justice does not prevail.109 This concept of division is not mentioned in the principal sources of Sharīʿah; therefore, it is a result of ijtihād, which can be subject to various interpretations.110 I will examine the classical and contemporary juristic discourse on the extent to which a Muslim is obligated to follow Sharīʿah in a non-Muslim country. Drawing on the views of leading classical scholars, I will present a holistic view of the higher objectives of Sharīʿah and its importance in the lives of Muslims and demonstrate that, in non-Muslim countries,
Muslims are only obliged to follow certain aspects of family law.
108 Khaled Abou El Fadl, Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from 8th to 17th Century CE/2nd to 11th Century Hijrah (Majlis Ugama Islam Singapore: The Print Lodge, 2006), p. 2. 109 Throughout this thesis, I will use the Arabic term dar al-Islam in the sense of the “land of Muslims” and the term dar al-kufr for the sense of the “land of non-Muslims”. Abou El Fadl, Islamic Law and Muslim Minorities. 110 Ahmad Salih, Al-Siyyasa al-Shar'iyya Ḥalat Ghiyab Ḥukm Islami 'an Diyyār al-Muslimīn (Cairo: Dar Al-Salam, 2011).
289 7.4.1 The Higher Objectives of Sharīʿah and the Bifurcation of Territories into Abodes
Sharīʿah signifies a way or path to felicity and salvation.111 Sharīʿah is primarily concerned with a set of values that are essential to Islam and is predicated on the benefits of the individual and the community.112 Sharīʿah’s laws are designed to protect these benefits and facilitate improvement and perfection of the human condition.113 The principal sources of Sharīʿah, the Qurʾan and Sunnah, have many verses and ḥadith setting out legal and in principle rules for marriage, divorce and family relationships.114
Mohammad Hashim Kamali explains the essential concerns of Sharīʿah are faith and the manner of worshipping God, and observance of the five pillars of Islam.115 Sharīʿah may be defined as a system of ethics and values covering all aspects of life (e.g. personal, social, political, economic and intellectual) with its unchanging bearings as well as its major means of adjusting to change.116 Moreover, not understanding one key concept of its aspects may thwart developments in all of its fields.117 The Qurʾan is expressive of this when it singles out the most important purpose of the prophethood of
Muḥammad (pbuh) in such terms as: “We sent thee not, but as a Mercy for all creatures”118 and “O mankind! there hath come to you a direction from your Lord and a healing for the [diseases] in your hearts, and for those who believe, a guidance and a
Mercy.”119 These two objectives of mercy (raḥmah) and guidance (huda) are demonstrated by other conditions in the Qurʾan and Sunnah that seek to establish
111 Mohammad Hashim Kamali, Sharīʿah Law: An Introduction (Oxford: One World publications, 2008), p. 14. 112 Ibid. 113 Ibid. 114 Black, Esmaeili and Hosen, Modern Perspectives on Islamic Law, p. 107. 115 Kamali, Sharīʿah Law, p. 41. 116 Ziauddin Sardar, Islam, Postmodernism and Other Futures: A Ziauddin Sardar Reader (London: Pluto Press, 2003). 117 Ibid. 118 Qurʾan 21:107. 119 Qurʾan 10:57.
290 justice, eliminate prejudice and alleviate hardship, which is manifested in the realisation of benefit (maṣlaḥa).120 Justice is a manifestation of God’s mercy as well as an objective of Sharīʿah in its own right.121 Educating the individual (tahdhib al-fard) is another important objective of Sharīʿah. It seeks to make every individual a trustworthy agent and carrier of the values of Sharīʿah, and it is through educating the individual that Sharīʿah seeks to realise most of its social objectives.122 The overall purpose of a great deal of the laws and values of Sharīʿah, especially in the sphere of worship
(ʿibādāt) and moral teaching, is to train an individual who is mindful of the virtues of piety (taqwa) to become an agent of benefit to others.123
More technically, al-maṣāliḥ al-mursala is defined as a consideration that is proper and harmonious with the objectives of the lawgiver (waṣf munāsib mulā’im).124 The realisation of benefit (maṣlaḥa) is regarded as the summa of the objectives of Sharīʿah
(maqāṣid al-Sharīʿah). Thus, maṣāliḥ (pl. of maṣlaḥa) became another name for maqāṣid and ʿulamaʾ (scholars) have used the two terms almost interchangeably.125
Correspondingly, there are some Qurʾanic objectives that embrace the essence of maṣlaḥa. This would seem to amount to an unwarranted restriction on the general objectives of the lawgiver as these are expounded in the Qurʾan. This is confirmed in
Sūrat al-Mā’idah (5:7), which states, in more general terms, that “Allah doth not wish to
120 Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (UK: The Islamic Texts Society, 2008), pp. 352−353. 121 To prevent injustice, corruption and prejudice in the areas of commerce and transactions (muʿāmalāt), the Qur’an forbids exploitation, usury, hoarding and gambling, which are harmful and jeopardise the objective of fair dealing in the marketplace; Mohammad Hashim Kamali, Maqāṣid al-Sharīʿah Made Simple (Malaysia: International Institute of Advanced Islamic Studies (IAIS), 2008). 122 Wahbah al-Zuḥaili, Nazariyyat al-Darurah al-Sharʿiyyah, 4th ed. (Beirut: Muʾassasat al-risalah, 1405/1985), p. 50. 123 Ibid. 124 It secures a benefit or prevents harm. Numerous Qurʾanic verses and ḥadith are adduced to support this meaning. They include this ḥadith stating “no harm shall be inflicted or reciprocated in Islam.” Ibn Majah, Sunan, hadith no. 2340 cited in Kamali, Principles of Islamic Jurisprudence, p. 353. 125 Kamali, Maqāṣid al-Sharīʿah Made Simple.
291 place you in a difficulty.” It means God does not want to afflict or overburden people or cause them any difficulty in meeting their religious duties.126
In a similar way, for al-Ghazali (d.1111)127 and al-Zarqa (d.1999),128 maṣlaḥa consists of considerations that secure a benefit or prevent harm, but which are simultaneously harmonious with the objectives of maqāṣid al-Sharīʿah. Furthermore, to understand
Sharīʿah, one needs to comprehend its objectives, which allow flexibility, dynamism and creativity in social policy.129 These objectives consist of protecting the five
“essential values”: life, intellect, religion, progeny and property.130 Al-Ghazali states:
The objective of the Shari`ah is to promote the well-being of all mankind, which lies in safeguarding their faith (din), their human self (nafs), their intellect (`aql), their posterity (nasl) and their wealth (mal). Whatever ensures the safeguard of these five serves public interest and is desirable.131
Accordingly, securing benefit (maṣlaḥa) can also be understood as repelling corrupt acts (mafsada). It is broadly divided into three categories, the necessary (al-ḍarūriyyāt), the needed (al-ḥājiyyāt) and those that are supplemental or complementary (al- takmῑliyyāt or al-taḥsῑniyyāt).132 This strict hierarchy governs the gradation of interests, including the fact they have to be of general benefit to the public, and not simply for a
126 Sayyid Quṭb, In the Shade of the Qur’ān, vol. IV (Leicester and Nairobi, Kenya: Islamic Foundation of Islamiconline, 1999), p. 35. 127 Abu Hamid Muhammad Al-Ghazali, Al-Mustaṣfā min ‘ilm al-Uṣūl (Cairo: Al-Maktabah al-Tijāriyyah, 1993). 128 Muṣṭafā Aḥmad Al-Zarqā, Al-Madkhal al-Fiqhī al-ʿĀmm (Damascus: Dār al-Qalam, 1998). 129 Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh (Cambridge: Cambridge University Press, 2004), pp. 248−249. 130 In Al-Muṣtaṣfa fi uṣul al-fiqh, al-Ghazali clarifies the basic of al-maṣāliḥ al-mursala and its three divisions (the five essential values-the necessary), which consist of protecting the five ‘essential values’ (religion, life, intellect, lineage and property), the needed and the complementary. Then, al-Shāṭibi elucidates, investigates and analyses these divisions in his book Al Muwafikat fi uṣul al-Shari’a. In our time, Muḥammad Abu-Zahra and Muḥammed Tahir ibn Ashūr expand on these divisions in their books Al Malik and Maqasid al-Shari’ah, respectively. 131 Cited in M. Umer Chapra, The Future of Economics: An Islamic Perspective (Leicester: The Islamic Foundation, 2000), p. 118. 132 Abu Hamid Muhammad Al-Ghazali, Al-Mustaṣfā min ‘ilm al-Uṣūl.
292 specific sector of people, for them to be deemed acceptable and used as a source of law.
They also must not conflict with known texts or unanimous consensus (al-ijmāʿ).133
Taqi al-Din ibn Taymiyyah (d.1328) was probably the first scholar who added more essentials to the list of maqāṣid: as fulfillment of contracts, preservation of the ties of kinship, honouring the rights of one’s neighbour, the love of God, sincerity, trustworthiness and moral purity.134 Ibn Taymiyyah revised the scope of maqāṣid from a designated and specified list into an open-ended list of principles, and his approach is now generally accepted by contemporary commentators, including contemporary scholar of maqāṣid al Sharīʿah Ahmad al-Raysuni (d.1925), the dean of the faculty of
Sharīʿah and Islamic studies at Qatar University Yusuf al-Qaraḍawi, and others.135
Al-Qaraḍawi further extended the list of maqāṣid to include social welfare and support
(al-takaful), freedom, human dignity and human fraternity, among the higher objectives of Sharīʿah. These are undoubtedly upheld by both the detailed and general weight of evidence in the Qur’an and Sunnah.136 A prominent scholar of Sharīʿah, al-Shāṭibi137
(d.1388), approves of al-Ghazali’s list and sequence, thereby indicating they are the most preferable in terms of their harmony with Sharīʿah’s essence.138 He adds the benefits (maṣālih) are to be understood in their broadest sense, which is inclusive of all benefits pertaining to this world and the hereafter, those of the individual and the
133 Kamali, Principles of Islamic Jurisprudence, pp. 358−360. 134 Taqi al-Din Ibn Taymiyyah, Majmū‘ah fatāwā Shaykh al-Islām Ibn Taymiyyah, ed. ‘Abd al-Rahman b. Al-Qāsimi (Beirut: Mu’assasah al-Risālah, 1398), p. 25. 135 Kamali, Principles of Islamic Jurisprudence, p. 481. 136 Yusuf al-Qaradawi, Islamic Law in the Modern World (Cairo: Wehbe Printing, 2000); Yusuf al- Qaradawi, Madkhal lidrassat al-Sahriʻa al-Islamiyya (Cairo: Wehbe Printing, 2009), pp. 73−79. 137Al-Shāṭibi writes his magnum opus in the field of Islamic law, Al-Muwafaqat, his seminal and highly influential development of the theory of maqāṣid and maṣlaha (Islamic law based on its universal objectives and public benefit) is actually a synthesis of the principles of the two oldest and complementary Sunni schools of law (the Ḥanafi and Maliki madhhabs). This synthesis provides the basis for a holistic, unified approach to Islamic law that accommodates all the recognised schools of law, madhhabs, rather than a divisive approach based on rigid and partisan madhhab-ism. 138 Imran Ahsan Nyazee, Islamic Jurisprudence (Islamabad: The International Institute of Islamic Thought, 2000), p.121.
293 community, material, moral and spiritual, and those that pertain to the present as well as the interests of future generations. This broad meaning of benefits also includes prevention and elimination of harm. These benefits cannot always be verified and ascertained by human reason alone without the aid and guidance of divine revelation.139
Al-Shāṭibi has also classified maqāṣid into the aims and purposes of the lawgiver
(maqāṣid al-Sharʿi) and human goals and purposes (maqāṣid al-mukallaf): for instance, securing human welfare and benefit is God’s main purpose behind the laws of Sharīʿah illustrates the former, whereas seeking employment to earn a living illustrates the latter class of maqāṣid.140 He has also classified maqāṣid into primary objectives (maqāṣid al- aṣliyyah) and subsidiary goals (maqāṣid al-tabiʿiyyah): the former refers to the primary and normative goals the lawgiver, or a human agent, has originally intended, and they constitute the purposes of the laws of Sharīʿah in the evaluation of human acts and conduct.141
Therefore, Sharīʿah is of great importance to Muslims as it guides every aspect of their lives: religious, social, moral, economic, political and private. It is a religion and law at once.142 While “religion” is concerned with determining the “path” to eternal salvation, informing one how to live and conduct one’s public and private life, “law” is concerned
139 Abu Iṣhāq Ibrahim al-Shāṭibi, al-Muwafaqat fi uṣul al-Sharīʿa, ed. Shaykh ʿAbd Allah Dirāz, vol. I (Cairo: al-Maktabah al-Tijariyyah al-Hubra, n.d.), p. 243. 140Abu Iṣhāq Ibrahim al-Shāṭibi, al-Muwafaqat fi uṣul al-Sharīʿa, ed. Shaykh ʿAbd Allah Dirāz, vol. IV (Cairo: al-Maktabah al-Tijariyyah al-Hubra, n.d.), p.179. 141 For example, the primary purpose of knowledge (ʿilm) and education is to know and worship God in the proper manner, and also to explore and understand creation. The secondary goals are those that complement and support the primary ones: the secondary purposes of seeking knowledge, for instance, can be obtaining academic qualification, personal accomplishment and refinement of one’s speech and conduct; See, al-Shāṭibi, al-Muwafaqat fi uṣul al-Sharīʿa, vol. IV, p. 179. 142 Mohamad Abdallah, “Islamic Australia? What Place is there for Sacred Law in a Secular Land?” ABC Religion and Ethics, May 10, 2013, pp. 1−23.
294 with establishing legal relationships between people and establishing appropriate institutions to regulate such a relationship in a just and equitable manner.143
Given the importance of Sharīʿah for Muslims, it is important for them to follow its laws.144 However, the question is whether Muslims should follow aspects of Sharīʿah in a non-Muslim country? In answering this question, I rely on the work of renowned scholar Khaled Abou El Fadl, who argues that, for a better understanding of the linguistic dichotomy between dar al-Islam and dar al-kufr, the juristic reaction to this historical fact needs to be studied. This opened my discussion on two levels: 1) whether
Australia is considered dar al-Islam; and 2) how Islamic law applies or is to be applied by Australian Muslims?
Attempting to classify territories into abodes, and in the absence of explicit texts,
Muslim jurists suggested one look to the ʿillah (rationale or raison d’être), which is mentioned normally as interchangeable with maṣlaḥa, for determining whether a land is dar al-Islam.145 This led to three legal views. The first group comprises the majority of the Ḥanafi, Ḥanbali and Ẓahiri scholars: they consider a country to be dar al-Islam where Islamic law prevails.146 The second group of jurists, most notably represented by
Abu Ḥanīfa (d.767), argued the raison d’être is safety (amn) or fear (khawf), such that a
143 John A Makdisi, “The Islamic Origin of the Common Law,” North Carolina Law Review 1637 (1998– 99), p. 1654. 144 Even in Muslim-majority countries, Sharīʿah is not applied. These countries are not Islamic states; they are dynasties with autocratic system. Or, as in Iran, they have a religious authority on top controlling the whole system. However, they apply a part of Sharīʿah and this is problematic, “if the Sharīʿah is to be pervaded by and founded upon the vision of the higher goals of dignity, justice, freedom, and religious, political and cultural pluralism; if jihad is seen as the effort of resisting racism, corruption and dictatorship, allied with a commitment to the reform of the individual’s being and of society in the light of these finalities, then and only then will Muslim majority societies be able to throw off their shackles and cast out their demons.” See Tariq Ramadan, Islam and the Arab Awakening (Oxford & New York: Oxford University Press, 2012), p. 118. 145 Since Sharīʿah is very important for Muslims, Muslim scholars describe the classification of territories into abodes as the heart of the problem as Muslims were not allowed to reside in countries where Sharīʿah is not applied. See, Salih, Al-Siyyasa al-Shar'iyya Ḥalat Ghiyab Ḥukm Islami 'an Diyyār al- Muslimīn, p. 42. 146 Salih, Al-Siyyasa al-Shar'iyya Ḥalat Ghiyab Ḥukm Islami 'an Diyyār al-Muslimīn, pp. 42−43.
295 territory is considered dar al-Islam if its Muslim population feel safe to practise their faith.147 Al-Shawkānī (d.1834) went further, arguing a country that is not under Muslim jurisdiction is considered dar al-Islam “as long as a Muslim can reside there in safety and freely fulfil his religious obligations”.148 The third opinion is adopted by the Shafīʿi jurist al-Mawardi (d.1058), who is reported to have said: “if a Muslim is able to manifest (his/her) religion in one of the unbelievers’ countries, this country becomes a part of dar al-Islam.”149 So, the practice of religion and liberties accorded to a Muslim in the territory of non-Muslims affect the classification of the territory in which
Muslims reside.
After consideration of the above opinions, it becomes clear this dichotomy serves two purposes: firstly, to guide international relations between countries; and secondly, to determine to what extent Sharīʿah should be applied by Muslim minorities in non-
Muslim countries.150 How, then, do the various abodes coined by the classical jurists apply to Australia?
In offering an answer to this question, it is useful to consider the opinions of contemporary scholars. An adviser to the Sunni Court in Beirut, Fayṣal Mawlawi, labels secular, democratic nations as dar al-daʿwa (abode of invitation to Islam):151
Daʿwa has long served a number of purposes for Sharīʿa minded scholars, from justifying long-term residence in non-Muslim lands to the suspension of Jihād. But embedded in contemporary discussions of daʿwa is a subtle
147Abu Bakr ‘Ala ‘al-Din Al-Kāsāni, Bada'i al-Sanai' fi Tartib al-Shara'I (Dar al-Kutub al-'Alamiyyah, 2003), p. 519. 148 Abdallah, “Islamic Australia?” 149 Abou El Fadl, Islamic Law and Muslim Minorities. 150 Abdallah, “Islamic Australia?” 151 Andrew March, “Sources of Moral Obligation to Non-Muslims in the ‘Jurisprudence of Muslim Minorities’ (Fiqh al-aqalliyyāt) Discourse” Islamic Law and Society 16(1).
296 reformulation of basic attitudes towards non-Muslims’ welfare and moral responsibility.152
The renowned Turkish scholar Fethullah Gülen rejects the notion of the binary of dar al-Islam and dar al-harb, and uses the concept of dar al-hizmet (the abode of service to humanity), which refers to an intention to serve Islam by presenting a good example to the West.153 Gülen’s term of dar al-hizmet requires Muslims to behave peacefully in their societies and demonstrate Islam’s “true façade”. Gülen stresses: “Whenever a
Muslim is, even outside a Muslim polity; he or she has to obey the lex loci, to respect others’ rights and to be just”.154 Moreover, Gülen shifts the peaceful method and obedience to the host country to the centre of a Muslim’s personal and religious life and requires the individual to re-designate the complete way of life similar to the commands of the religion.155
Prominent scholar Muhammad Abu Zahra (d.1974) and more recently Yusuf al-
Qaradawi argue that secular democratic nations are best regarded as dar al-ʿahd (abode of covenant).156 This label is also significant because of its legal Sharīʿah implications, for it justifies the prohibition of breaching oaths while living in non-Muslim countries.157
On the other hand, due to the religious freedoms afforded to Muslims in non-Muslim democratic countries, Moroccan scholar Abd al-Aziz ibn al-Siddiq argues that America,
Europe and Australia have become Islamic countries fulfilling all the Islamic
152 Ibid. 153 Gürkan Çelik, The Gülen Movement: Building Cohesion through Dialogue and Education (The Netherlands: Eburon Academic Publishers, 2010), p. 66. 154 Ihsan Yilmaz, “Ijtihad and Tajdid by Conduct: The Gülen Movement,” in Turkish Islam and the Secular State: The Gülen Movement, ed. M. Yavuz and John L. Esposito (Syracuse: Syracuse University Press, 1997), p. 234. 155 Ibid. 156 Yusuf al-Qaradawi, “Fiqh al-Jaliyyat al-Islamiyya fi al-Gharb,”
297 characteristics.158 Also, Tunisian scholar Rached al-Ghannouchi declared that France should be considered an abode of Islam and not an abode of covenant.159
Despite the fact that Australian values fulfil many of the higher objectives of Sharīʿah, and Australian Muslims are considered equal citizens who are free to practise their faith in Australia, to label Australia as an abode of Islam is mistaken. Since Australia is a secular country and section 116 of the constitution clearly declares the separation of religious and civil authority, and prohibits the Commonwealth from enacting laws and establishing any religion or enforcing it. I am inclined to label Australia as an abode of peace, dar al-salam, where each Australian citizen, whether Muslim or non-Muslim, can live in harmony and enjoy a peaceful life together.
7.4.2 The Place of Islamic Law in Australia
The extent to which Islamic law is applicable to Muslims in a democratic land, like
Australia, is a controversial issue as it was in the case of UK and Canada, as mentioned earlier in this chapter. While there is no official demand or formal proposal for the accommodation of Islamic law by Muslims in Australia, two unofficial calls for a part of Sharīʿah happened in 2010 and 2011. This subsequently comes up as an issue when politicians and the media have commented on several occasions on the desirability of such a suggestion.160 This call for recognition of Sharīʿah has been a common issue for
Muslim communities in the West. I will discuss the situation and the debates in
Australia concerning this issue arguing that these unofficial calls did not request a parallel legal system, but were an attempt at formalising some aspects of family law that already existed under the official law.
158 Ibid. 159 Ibid. 160 Krayem, Islamic Family Law in Australia, p. 109.
298 The first debate about this issue was at the open day at Sydney’s Lakemba Mosque, when the Australian Islamic Mission’s president, Zachariah Matthews, called for some small aspects of Sharīʿah law to be recognised.161 He said:
“The aspects that we would be looking at are definitely not the penal code system, in so far as people's fears around the cutting off of hands for the crime of theft and the stoning of adulterers. The aspects that we would be looking at, are aspects related to Muslim family law and perhaps Muslim inheritance law.”162
Matthews clarifies that the minor changes proposed would only apply to Muslims. “As long as that concession does not infringe on the rights of others and society at large, then the question I'm asking is, are we not mature enough or sophisticated enough to manage that type of diversity?” 163
One year later, in a submission to the Federal Parliament’s committee on multicultural
Affairs, the Australian Federation of Islamic Councils asked for aspects of Islamic family law to be recognised.164 Ikebal Patel, president of the Australian Federation of
Islamic Councils, argued the word Sharīʿah could invoke notions of a fierce, unjust, male-dominated legal code:
“Short of trying to really find or use another word, really I would like to suggest that what the Muslim community at least in Australia has to do is to try and explain that there's no aspect of Sharīʿah that is being tried to be introduced here.”165
161 “Call for Parts of Sharia Law in Australia,” ABC News, March 11, 2010, accessed August 2014,
299 However, he believes everyone would benefit if Sharīʿah laws were used in a pluralistic society such as Australia. “Under the global financial crisis that we had the established market, the share market sector, the products that are there suffered very badly,” he said.166 Then, he explained that Sharīʿah marriage and divorce laws are not oppressive towards women; rather, Sharīʿah guarantees women's rights.167 After this debate,
Krayem said the Muslim community does not want a parallel legal system set up:
we found that there’s no evidence from any community leaders of any desire to set up a parallel legal system and I think to pose the question in that way presupposes this assumption that the Muslim community wants an alternative or parallel legal system.168
She says, some of the processes around legal matters such as divorce and inheritance could take on board Muslim notions of dialogue and alternative dispute resolution, but the law should service all community members alike.169
Both debates created heated arguments because they suggested that individuals should be able to choose a jurisdiction when settling aspects of family law.170 In opposition, the
Federal Attorney-General, Robert McClelland, ruled out any chance of Sharīʿah law being introduced to Australia. In a statement released to the ABC, McClelland said:
“There is no place for sharia law in Australian society and the Government strongly
166 Ibid. 167 Ibid. 168 Ibid. 169 Ibid. 170 In Islamic law, divorce can be obtained in a number of extra-judicial ways. Talaq is a unilateral repudiation by the husband; khulʿ is the divorce at the instance of the wife with or without the husband’s consent and on the basis she will forgo her right to the rest of dower; mubaraat is a divorce by mutual consent. However, in Australian law, there is only one way of divorce, which is through a decree granted by a court of civil jurisdiction on the grounds the marriage has irretrievably broken down. When a man initiates a divorce in Islamic way, talaq, the couple has to wait three months before the divorce takes effect, but after that time has lapsed, they can remarry in accordance with Sharīʿah law. Under Australian law, they would need to be separated and wait a further nine months. For some, this is seen as unfair and unwarranted. See, Ann Black and Kerrie Sadiq, “Good and Bad Sharia: Australia’s Mixed Response to Islamic Law, UNSW Journal 34(1) (2011): pp. 383−412.
300 rejects any proposal for its introduction.”171 He continued that Australia’s brand of multiculturalism promotes integration; therefore, if there is any inconsistency between cultural values and the rules of law, then Australian law wins out.172 Yet, an exception was made in mid-2009 for banking and finance, when the Australian Labor Senator and
Assistant Treasurer, Nick Sherry, said Australians should be “open to the potential for
Islamic finance industry”.173 In 2010, Australia was to position itself as a leading financial centre, and accordingly, the Australian government issued a review of
Australian taxation laws to ensure Islamic finance products would have “parity with conventional products”.174 Towards the end of the Assistant Treasurer’s speech of strong endorsement for Islamic finance, came the statement:
We also recognise there are Muslims in Australia who would use Islamic financial services if they were more accessible. Offering retail Islamic finance products may foster social inclusion, enabling Australian Muslims to access products that may be more consistent with their principles and beliefs.175
It is clear the government supported the need for greater accommodation of Islamic finance, but accommodation of other aspects of Islamic law was definitely not a priority. Social inclusion is a factor in the embrace, but clearly not a guiding one, since the interesting message that was sent to Muslims in Australia about what is important by the federal leader of the opposition, Brendon Nelson, was different to the one above.
171 Hole, “Muslim group wants Sharia law in Australia.” 172 Ibid. 173 Nick Sherry, “Opening Address to the La Trobe University, National Australia Bank and Muslim Community Corporation of Australia” (Speech delivered at the Symposium on Banking and Finance, Melbourne, July 9, 2009), accessed September 2014,
301 He said that under no circumstances would he support Australia recognising Sharīʿah law, because apparently it was seen as being a rejection of Australian law and values:176
…the idea that in some way you would change your basic values, culture and law to accommodate some people who feel that they don’t want to see themselves as Australians first, above all else⎯under no circumstances would I support that.177
Thus, the message was delivered very loud and clear that not only is there no room for the application of Islamic law, but also the idea itself is entirely rejected. Accordingly, this public debate about recognition of Islamic law in Australia was dominated by misconceptions, such as the Muslim community wanting to establish a parallel law and not sharing in a commitment to Australian values.178 The real situation is that Muslims do not need a parallel system. They abide by the common law, and within the latitude of this law and flexibility of the Islamic legal tradition, they can find their ways. They were asking for recognition of some aspects of Islamic family law concerning marriage and divorce, which would facilitate their way of life.179
176 “Sharia Law not an Option: Nelson,” ABC News, February 8, 2008, accessed August 2014,
302 As I demonstrated early in this chapter, Sharīʿah in its higher objectives is not in conflict with the developed legal system. Muslims do not want to replace Australian law with Sharīʿah law. This is simply not possible even within Sharīʿah, which accepts legal pluralism and does not impose Islamic law on non-Muslims. What most Australian
Muslims want is the freedom to consider Islam and its teachings on ethical matters they confront in their lives and harmonise this within the social and legal framework in
Australia.
7.4.3 A Need for Ijtihād
The significance of Islamic family law for Muslims is viewed according to sociological/cultural and value reasons. The sociological/cultural understanding stems from the strong reference in the divine texts to the individual identity of a Muslim within a shared identity of the family and Muslim community (ummah).180 According to the value understanding, it relates to the continuation of many rules and legal principles for marriage, divorce and family relationships in the Qurʾan and Sunnah, as mentioned earlier. Thus, family law in Islam is central to Muslim identity at an individual and community level.181
Islamic family law recognises the different processes of alternative dispute resolution: sulḥ (conciliation), wasāṭah (mediation) and taḥkeem (arbitration).182 Normally, this kind of arbitration and mediation is relatively informal. In line with a preference in most cultures, it keeps family disputes private in seeking the help of senior family members or an imam to counsel the couple and help them arrive at a resolution of their
180 Black, Esmaeili and Hosen, Modern Perspectives on Islamic Law, p. 107. 181 Ibid. 182 Said Bouheraoua, “Foundation of Mediation in Islamic Law and its Contemporary Application,” paper presented at the Mediation in the Asia-Pacific: Constraints and Challenges conference, International Islamic University of Malaysia, Kuala Lumpur, June 16−18, 2008.
303 differences.183 At present, the Family Court obligates184 litigants to attempt to settle their differences through mediation before resorting to adversarial litigation, and a number of secular and Christian-based organisations provide alternative dispute- resolution services in cases of family breakdown.185 However, these services are not arbitrated by Muslims, “because of the fear that they will fail to understand the cultural and religious needs of these clients.”186
As a result, Muslims have established informal conciliation mechanisms. The literature produced by the Islamic Sharīʿah Councils (ISC) clearly indicates the reluctance on the behalf of official lawmakers to recognise and solve their problems is the reason of its establishment. For example, with the establishment of ISC, Sonia Nurin Shah Kazemi stated:
According to the Shariah, every Muslim community, however small its size, must be regulated, as far as possible, by Islamic legal norms, appropriately interpreted and applied by the most knowledgeable scholars residing in the community. The phenomenon of Muslim Minority communities living in a non-Muslim land has its earliest precedent in the migration to Abyssinia of a group of Muslims at the behest of the Prophet himself. Thus, one finds the imam Abu Hanifa (d. 798 C.E.) specifying that in non-Muslim lands, Muslims are obliged to appoint a person to act as a guide in respect of religious issues, legal questions and social disputes. The establishment of the MLSC (ISC) falls under the category of 'public interest' (maslahah), its aim being to protect the five essential values stated above: religion, life, intellect, lineage, property… On this basis the MLSC is able not only to act as a Qadi would in resolving disputes regarding the dissolution of marriage
183 Jamila Hussain, “Family Dispute Resolution and Muslim Communities in Australia,” in Family Law and Australian Muslim Women, ed. Abdullah Saeed and Helen McCue (Victoria: Melbourne University Press, 2013), p. 102. 184 Family Law Matters, “Reaching an Agreement Without going to Court,” Family Court of Australia, April 17, 2015, accessed July 2015
304 contracts, but it is also able to perform the advisory role that the Qadi offers by mediating in intra-familial and intra-community conflicts, as well as give opinions about formal rules governing the validity of such legal procedures as marriages and divorces.187
To discuss the obligation for Muslims to follow the law of the land, I will rely on the two essentials mentioned in this statement based on the example of Prophet Muḥammed
(pbuh) and the challenge of accommodation of Islamic family law and the need for ijtihād.
The first essential is about the migration to Abyssinia, as a solution to the crisis that
Prophet Muḥammad and his companions were facing in the city of Mecca located in the heartland of the Arabian Peninsula, is much like the case of many Muslims today who migrated from Muslim countries to Europe, USA and Australia hoping for a better life.
The purpose of the migration to Abyssinia was to escape the torture and prosecution they were receiving from the leading tribe in Mecca, the Quraish. The significance of this migration to our context is that it was made to a foreign country ruled by a Christian king.188 In this regard, the Prophet stated: “I propose that you migrate to Abyssinia, where there is a Christian king, well known for his justice. He is said to have not wronged anyone in his kingdom.”189 The underlying fact of the Prophet’s proposal shows some of the most significant principles of Islam. Firstly, Muslims and Christians were not in conflict and, secondly, even though Muslims have differences with
Christians in belief, Christians were viewed and expected to be in alliance with Muslims against the injustice of disbelieving idolaters. In fact, the Qurʾan reflects these facts in several places within the fabric of Islam:
187 Shah-Kazemi, Untying the Knot, pp. 9−10. 188 Muhammad Habash, “The Legacy of Prophet Muhammad, Peace be upon him: Inspirations from the Immigration of the Prophet and Early Muslims (peace be upon all of them),” keynote address at 1st Legacy of the Prophet Muhammad Conference, Homebush, Sydney, September 17, 2005. 189 Al Hafith, al Bidayah we al Nihayah, vol. 3, p. 58.
305 And dispute ye not with the People of the Book, except with means better [than mere disputation], unless it be with those of them who inflict wrong [and injury]: but say, “We believe in the revelation which has come down to us and in that which came down to you; Our Allah and your Allah is one; and it is to Him we bow [in Islam]”.190
And there are, certainly, among the People of the Book, those who believe in Allah, in the revelation to you, and in the revelation to them, bowing in humility to Allah: They will not sell the Signs of Allah for a miserable gain! For them is a reward with their Lord, and Allah is swift in account.191
The Prophet also said: “Let it be known, if any one (Muslim) commits injustice, insults, aggravates, mistreats or abuses a person of the People of the Book (Christians or Jews), he will have to answer me (for his immoral action) on the Day of Judgment.”192 In return for King Negus’ good treatment and protection, the Muslims were respectful, compliant and good citizens. History testifies they were not only respectful, but loyal and showed allegiance to the country that hosted them.193 Al Hafith, in al Bidayah wa al
Nihayah, relates that the immigrant Muslims in Abyssinia fought alongside the
Christian forces against rebels in their country. It was reported that al Zubier Ibn al-
Awam (a companion of the Prophet), who was the leader of a squadron, swam across the Nile River with his companions to fight the enemy on the other side.194 This act was certainly driven by the Islamic principle of goodness, as the Qurʾan states: “Is there any
Reward for Good—other than Good?”195 Good conduct, loyalty, love and affection towards human beings was the product of the respect and esteem given by early
Muslims⎯which certainly impressed kings. It was the duty of all Muslims to act and function with gratitude, loyalty and respect for the country that hosted them, just like
190 Qur’an 29:46. 191 Qur’an 3:199. 192 Al-Moubarakfawri, Le Nectar Cacheté: La Biographie du Prophète, p. 625. 193 Habash, “The Legacy of Prophet Muhammad.” 194 Ibid. 195 Qurʾan 55:60.
306 the model of the Prophet’s companions (pbut) without disobeying Islamic law.196
Therefore, Sharī‘ah obliges Muslims to comply with the laws of their country of residence on the condition these laws do not violate Islamic principles. Thus, Sharī’ah dictates Muslims to live mercifully and compassionately with non-Muslims, based on the Qurʾan, which demands fulfilling “obligations” and “covenants”, and observing the imperatives: “O ye who believe! Fulfill (all) obligations”197 and “…fulfill (every) engagement, for (every) engagement will be enquired into (on the Day of
Reckoning)”.198
Muslim jurists, therefore, accept that ultimate authority in any secular country belongs to its government. This question of authority in non-Muslim countries was discussed by classical Muslim jurists like Imam al-Juwayni (d.1085), who in Ghiyāth examined “the forms and duties of Islamic government and the options open to the Muslim community in case of non-existence of such a government” and the “status of Muslims when Islam is not in power”. He assumed either there would be no qualified imams (religious scholars) in these regions or they would not possess the adequate power to rule. If this was the situation, al-Juwayni argued, Islamic law could only continue to be implemented by “conferring authority” to its religious scholars (‘ulamā). This
“authority” can be bestowed by the ruling government, making it formal and legally binding, or by the minority Muslim community, making it informal and not legally
196 “Disobeying Islamic law” means matters that relate to personal obligations: for example, Muslim women being asked by the Australian government to remove their hijāb (headscarf) or Muslims being asked to consume alcohol or unlawful food, which is unconstitutional and far-fetched. Given that section 116 of Australia’s constitution separates religious and civil authority and prohibits the Commonwealth from enacting laws establishing any religion or enforcing religious observance, or prohibiting freedom of religious practice, it is evident that no authority–religious or otherwise–can force a Muslim to abide by, or abandon, any personal religious laws unless it is deemed illegal by Australian law; See, Abdallah, “Islamic Australia?” 197 Qurʾan 5:1. 198 Qurʾan 17:34.
307 binding.199 In the case of Australia, Muslim leaders act like mediators or advisors to their people who seek their advice (fatāwā; pl. fatwa). Yet, the fatwa issued is not legally binding from an Australian law perspective because all Australians are subject to the jurisdiction of Australian law.
Kazemi’s second essential is that Sharīʿah provides a coherent, complete and detailed system for marriage, divorce, children and all aspect of family life. Since the aim of the higher objectives of Sharīʿah is to protect the five essentials values as stated earlier – life, intellect, religion, progeny and property – the establishment of the ISC falls under the public interest (maṣlaḥa). Yet, one of the challenges is how the family aspect of
Sharīʿah can be implemented into a secular legal system.
In the Australian context, fundamental rights, equal protections under the law and entitlements of all citizens prevail over the religious and cultural needs of a minority.200
Also, the overriding jurisdiction of Australian courts limits how Sharīʿah family law can operate and the inevitable fragmentation of Sharīʿah means any legal implementation will be piecemeal.201 Australian law has been very accommodating to various demands of Sharī‘ah family law;202 therefore, it may be possible that Australian courts in the future will find some fair solutions that can maintain the two goals of preserving the public order and fulfilling individual needs for legal difference.203
The first example of accommodation concerns polygamy, which has an unlawful status under the Australian Marriage Act.204 Yet, Australian law accommodates polygyny as
199 Imam Al-Juwaynī, Ghiyath al-‘umam fi 'iltiyāth al-ẓulam, ed. Hilmi and Fu'ad (Alexandria: Dar al Daawa lltab wanashr wa tawzih, 1979). 200 Black and Sadiq, “Good and Bad Sharia.” 201 Ibid. 202 Ibid. 203 Ibid, 204 Marriage Act 1961 (Cth) s 91.
308 valid Muslim polygnist marriage lawfully coming from overseas are recognised,205 with second or third wives and their children able to claim welfare and other benefits.
Furthermore, any polygamist marriage now entered in Australia can be recognised as a de facto marriage according to the 2008 amendments to the Family Law Act.206 This is because “a de facto relationship can exist if one of the persons is legally married to someone else or in another de facto relationship”.207 It means a second wife can be validly married under Islamic law and can be a de facto wife under Australian law.208
The second example has to do with ḥalāl food. Ḥalāl means lawful or permitted and it is prescribed in the Qurʾan in reference to food. The Qurʾan regulates Muslims on the dietary matter with this beautiful sentence “halālan ṭayyiban”,209 which means the
“permitted good” (good quality, healthy). General Qurʾanic guidance dictates that all foods are permitted except those mentioned in the Qurʾan as ḥarām or prohibited to eat or drink.210 Not only pork, blood and the meat of dead animals are ḥarām, but it is also required that the ḥalāl animals be slaughtered while pronouncing the name of Allah.211
The development of new technology in food processing, especially with the market of
ḥalāl food and products has been accommodated by the Australian government. In
Australia, there are around 15 ḥalāl certifiers that issue certificates for domestic and export products.212
205 Family Law Act 1975 (Cth) s 6. 206 Family Law Amendment (De Facto Financial Matters and others Measures) Act 2008 (Cth). 207 Family Law Act 1975 (Cth) s 4 AA (5) (b). 208 This second wife can enjoy the same legal entitlements as any other de facto relationship, including the right to property settlement. See, Family Law Act 1975 (Cth) s 79. 209 Qurʾan 2:168. 210 “He hath only forbidden you dead meat, and blood, and the flesh of swine, and that on which any other name hath been invoked besides that of Allah. But if one is forced by necessity, without wilful disobedience, nor transgressing due limits, then is he guiltless. For Allah is Oft-forgiving Most Merciful”; See, Qurʾan 2:173. 211 Black, Esmaeili and Hosen, Modern Perspectives on Islamic Law, p. 55. 212 Ibid, p. 57.
309 Ihsan Yilmaz describes the ISC as a quasi-Islamic court,213 which necessitates a “neo- ijtihād” methodology to reconstruct Muslim family law into an English–Islamic law
(angrezi shariat) to deliver new Islamic solutions for modern times.214 This notion of angrezi shariat215 was first described by Werner Menski in Muslim Family Law as a wider concept incorporating the whole range of unofficial legal practices among British
Muslims, and has been taken notice of by the British parliament.216 As Menski states:
These semi-official Muslim bodies are pursuing a strategy of operating angrezi shariat, aspiring for its eventual official recognition without claiming this as a definite right at the present time and lobbying vigorously for it.217
Menski refers to angrezi shariat as a combination of Islamic and English law to form a distinctive hybrid method of operating the ISC. These hybrids are a modern reaction by
Muslims adapting to life in democratic societies without the establishment of Sharīʿah courts. Of course, this context can be applied to the Australian context. My argument here is that Australian Muslim scholars may seek to use Islamic law to resolve disputes and other legal family issues, but do so by respecting Australian legal mechanisms, notably civil arbitration and Australian mediation. Islamic law would, therefore, serve as a perfect channel by which to appreciate the role of interpretation through ijtihād and the public benefit (maṣlaḥa) by incorporating the views of the different Islamic legal schools. In other words, the intention would be to set up a framework within which
Muslims are able to provide answers to some fundamental contemporary problems.
213 Ihsan Yilmaz, “Muslim Alternative Dispute Resolution and Neo-ijtihad in England” Alternatives 91(2) (2003): 117, 118. 214 Ibid. 215 Angrezi shariat is an Urdu term simply meaning British-Muslim law. 216 Pearl and Menski, Muslim Family Law, pp. 74−80. 217 Ibid, p. 80.
310 Consequently, the best solution is a system of ijtihād to be applied by Muslim scholars and recognised by the Australian government, about the formation of Sharīʿah tribunals mediation and arbitration. These tribunals would be composed of a group of Muslim scholars advised by specialists in particular disciplines, who can rule on issues that arise in the community and arbitrate disputes within it and eventually facilitate the work of the court so parties may have their agreements enforced without going through the whole process again in front of the court.
7.5 Conclusion
This chapter began by discussing the way in which the politics of democracy has been applied in Australian legal discourse. As a result of this discussion, it is significant to note that the idea of secularism should be rehabilitated in some way: there is a need for a new definition of secularism. A new refashioned concept of secularism must find a necessary common world inhabited by both religious and non-religious people.
Secularism, in other words, should lead to the merging of plural religious thought and democracy, enabling all citizens to enjoy their rights and receive equal treatment, irrespective of their religious or philosophical beliefs.
The other part of this chapter examined the issue of accommodation of Islamic law or
Sharīʿah in both an international context and in Australia. It is clear though that religion and, in particular, Islamic principles associated with family matters are important to
Muslims in Australia. This approach questions the allegations in public debates that the
Muslim community wants to establish a parallel legal procedure separate from the mainstream Australian legal system. Rather, this study demonstrates that Muslim community leaders are seeking ways to integrate existing community dispute resolution processes into the legal framework.
311 It is also critical to appreciate that relying on the higher objectives of Sharīʿah and on the views of the leading classical and contemporary scholars that in Australia⎯like in other secular countries⎯Muslims are only obliged to follow certain aspects of Sharīʿah.
Also, Muslims are expected to comply with the laws of their country of residence based on the example of Prophet Muḥammed (pbuh), on the condition these laws do not violate Islamic principles.
The last section of this chapter demonstrated that the concept of maṣlaḥa and the higher objectives of Sharīʿah, which were introduced in the realm of ijtihād, can help Muslims live in a secular country, allowing for some aspects of Sharīʿah.218 It is significant to note that Australian law has been very accommodating to various demands of Sharī‘ah family law; therefore, it may be possible in the future for Australian courts to find fair solutions that can maintain the two goals of preserving the public order and fulfilling individual needs for legal difference. Therefore, there are a number of areas of convergence between the higher objectives of Sharī‘ah and Australian law, such as the preservation of public interest. Thus, specialists from both sides need to work together on the more controversial aspects of Sharī‘ah to facilitate its proper application within the confines of Australian law.219 In other words, there is a need for a process of ijtihād to be applied by Muslim scholars and recognised by the Australian government about the formation of Sharīʿah tribunals for mediation and arbitration. Consequently, if minor concessions can be made to one area, it seems consistent to think about similar concessions or “tweaking” in other areas, particularly family law. Incremental change
218 Zaleha Kamaruddin, “The Millennium Family−A New Challenge for the Family Institution: Legal Perspective,” in Islamic Family Law: New Challenges in the 21st Century, vol. II, ed. Zaleha Kamaruddin (Kuala Lumpur: Research Centre, International Islamic University Malaysia, 2004); Zaleha Kamaruddin, Islamic Family Law: Issues 2000 (Malaysia, Selangor: International Islamic University, 2000), pp. 1−30. 219 Abdallah, “Islamic Australia?”
312 could occur as the right option at the right time.220 It would also correspond with
Islamic principles and result in bringing together the community, rather than separating and segregating. It is important, though, to highlight that this socio-legal reality must be closely monitored both by Muslims scholars and the legal system to secure a healthy future for Australian Muslims.
220 Black and Sadiq, “Good and Bad Sharia.”
313
8 CONCLUSION
8.1 Introduction
Despite the range of the negative opinions and comments expressed whenever the issue of Sharīʿah is discussed in public, Sharīʿah, for most Muslims, is divine and the way to follow Islam. It means the path to Allah and a virtuous life, based on the edicts of the
Prophet (pbuh) set out in the Qurʾan, and in his saying and the tradition recorded in the body of knowledge known as sunnah. As the Muslim scholar Ibn al-Qayyim (d.1347) stated:
Shariʿah is based on wisdom and achieving people's welfare in this life and the afterlife. Shariʿah is all about justice, mercy, wisdom, and good[ness]. Thus, any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Shariʿah, even if it is claimed to be so according to some interpretation.1
Classic Muslim jurists like Ibn al-Qayyim are quite aware of the ongoing need to reconcile the conditions of changing context to legal norms. They continuously adjust laws via ijtihād to bring them in line with contemporary circumstances This thesis has highlighted the important characteristics of Sharīʿah, the broad outlines of the objectives of Sharīʿah, and how independent legal reasoning (ijtihād) can be an indispensable tool for interpreting the divine message of Sharīʿah and relating it to the changing circumstances of the Muslim community in seeking to live a good life.
When the term Sharīʿah is mentioned, it is often confused with Islamic law or fiqh. As mentioned in the previous chapters, it is a mistake to confuse Islamic law, which literally means the commandments, orders and punishments in Islam, with Sharīʿah, because Islamic law is only one entity under the larger umbrella of Sharīʿah. Whereas
1 Shams al-Din ibn al-Qayyim, Iʿlām al-Muwaqqiʿin, ed. Taha Abdul Rauf Saad (Beirut: Dar al-Jīl, 1973), vol.3, p. 3.
315 Sharīʿah is practically the revelation that Prophet Muḥammed (pbuh) received and his sunnah,2 fiqh is the human articulation of Divine law and collection of juridical opinions in order to apply the message of Sharīʿah to real life situations.3
Confusing fiqh with Sharīʿah is very dangerous because it can cause people to assume that fiqh rulings represent incontestable Divine commands, and therefore must be legislated as the law of the land. This misconception has been abused by supporters and opponents of “Sharīʿah legislation”. In both cases, linguistic dexterity is misused to manipulate ignorant people, whether Muslims or not, into believing that Sharīʿah is identical with harsh and unforgiving legislation.
Misuse of the word “Sharīʿah” obscures its benefits and objectives that need to be understood by each Muslim for human welfare and flourishing. As Muslim scholar
Yusuf al-Qaradawi reminds, among its characteristics, Sharīʿah:
considers man’s (sic) true state of affairs, and his weakness before the pressure of needs and necessities. It takes into account the extent to which man (sic) is affected by time, place, circumstances, and surroundings …the principles of this feasible, facile and tolerant Shariʿah are not spiritless clichés that are applied to every Mukallaf (sane and mature person) regardless of his condition or circumstances.4
The search for better solutions to new problems and providing guidance on contemporary matters lies at the heart of Sharīʿah, through ijtihād⎯an important instrument of interpreting the divine message and relating it to the surrounding changing conditions. It is the goal of Muslim scholars (ʿulamāʾ) to use all their abilities to deduce the divine laws of Sharīʿah from its principal sources. Therefore, ijtihād or independent legal reasoning is an essential element to achiving that goal. Ijtihād
2 Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, p. xxiii. 3 Ibid. 4 Yusuf al-Qaradawi, Fiqh of Muslim Minorities: Contentious Issues and Recommended Solutions (Cairo: New Vision for Translation and Culture, 2008), p. xvi.
316 operates through the principles of Islamic jurisprudence (uṣul al-fiqh) which provide jurists with a method of interpretation and deduction of the laws from its sources in the
Sharīʿah. A grasp of this method is not only helpful to Muslim jurists and legislators in continuing a process of deriving rules, but it is also necessary to enable them to contribute to the ongoing search for better solutions to social issues. As part of that search, they need to delineate what is unchangeable (thābit) from what is subject to change (mutaghayyir). While a Muslim has to remain faithful to the essential and immutable principles of uṣul al-fiqh, it is also necessary to take into consideration the public interest (maṣlaḥa) of the surrounding society. Such processes take place in the light of the higher objectives of Sharīʿah, which look to the future and permit innovative approaches.
There is no evidence that Sharīʿah is locked in a static medieval vault of al-Qaʿida-like construction. Sharīʿah can be living and flexible through ijtihād. Ijtihad can realise
Shari’ah’s higher objectives (preservation of life, intellect, religion, progeny and property) and help Muslims to meet contemporary challenges. This thesis has argued that ijtihād can give momentum from inside Sharīʿah to a movement of reform within
Western societies generally and, more particularly, in Australia. It has been a primary objective of this research project to understand the relevance of ijtihād to Australian
Muslims, demonstrate a link between ijtihād and maqāṣid al-Sharīʿah, and show how ijtihād can bridge the gap between Sharīʿah and the challenges facing Muslims in
Australia.
8.2 The Nexus between Ijtihād and Maqāṣid al-Sharīʿah
Maqāṣid al-Sharīʿah refers to the higher objectives of Sharīʿah. Though a neglected area of study, it is especially relevant to Muslims because it provides a jurisprudential
317 framework for creative and innovative approaches to contemporary issues. Classical
Muslim scholars who practised ijtihād acknowledged the vital importance of implementating the maqāṣid al-Sharīʿah for achiving justice, equality, human rights, developments, and civility in today’s context.5 They discerned an important connection between ijtihād and maqāṣid al-Sharīʿah as the method for evaluating legal rulings.6
As discussed in chapter 2, this thesis has demonstrated how ijtihād can become a more engaging prospect if it is anchored in a proper Sharīʿah jurisprudential framework.
Moreover, Muslim scholars are agreed that knowledge of maqāṣid al-Sharīʿah is essential to the practice of ijtihād and absolutely necessary for mujtahid for textual interpretation: a jurist who practises ijtihād must pay attention to the consequences of a ruling and its public benefit (maṣlaḥa). As mentioned earlier, a simple glimpse of the five necessities of maqāṣid – life, intellect, religion, progeny and property – show these are concerned with the protection of the basic interest of all human beings.7
Evidence of the important nexus of maqāṣid al-Sharīʿah and ijtihād was mentioned in chapter 6. It showed that the majority of jurists take into consideration both the understanding of the five necessities of the maqāṣid al-Sharīʿah and its underlying
ʿillah or rationale for the benefit of human beings. Since the five necessities of maqāṣid al-Sharīʿah aim to preserve life, intellect, religion, progeny and property, the formulations of these objectives have secured human rights. For the preservation of the right to life, which is the first necessity of maqāṣid al-Sharīʿah, jurists outlined a theory of necessary purposes in terms of “punishments for breaching decency”,8 a “theory of
5 Mohammed Hashim Kamali, Maqāṣid Al-Sharīʿah, Ijtihad and Civilisational Renewal (London & Washington: The International Institute of Islamic Thought, 2012), p. v. 6 Ibid, p. 2. 7 Ibid. 8 Al-ʿAmiri, Al-Iʿlām bi-Manāqib al-Islam, p. 125.
318 protection”,9 and an elaboration of a social system based on family-related purposes and moral values in Islamic law.10 Similarly, the preservation of intellect, which is the second necessity of maqāṣid al-Sharīʿah, has two purposes. The first is the prohibition of intoxicants as they pose a threat to the integrity of the human intellect and mind. The second purpose is the pursuit of education. The latter has sometimes been interpreted to mean “the propagation of scientific thinking”, “travelling to seek knowledge”,
“suppressing the herd mentality” and even “avoiding the brain drain.11 The preservation of religion, the third necessity of maqāṣid al-Sharīʿah, has been re-interpreted by some jurists to mean “freedom of faith”12 or “freedom of belief”.13 In a similar way, scholars have interpreted the fourth necessity, the protection of progeny, in terms of the preservation of human dignity and human rights.14 The fifth necessity consists of the preservation of property and/or wealth, which has been developed into familiar socio- economic terminology, such as “well-being”, “economic development”, “social assistance” and “diminishing the difference between economic levels”.15 It is evident that maqāṣid al-Sharīʿah provides a framework for ijtihād that evolves in association with the needs and aspirations of today’s Muslims.
Further evidence of the important nexus between maqāṣid al-Sharīʿah and ijtihād, as discussed in chapter 7. There we saw how Abou El Fadl relied on the notion of maṣlaḥa and ʿilla for a better understanding of the linguistic distinction between dar al-Islam and
9 Abdul-Malik Al-Juwayni, Al-Burhān Fi Uṣul al-Fiqh, ed. Abdul-Azim al-Deeb, 4th ed., vol. 2 (Manṣurah: al-Wafāʾ, 1998), p. 747. 10 Al-Ghazali, al-Muṣtaṣfā fi ʿilm al-Uṣul, p. 258; Ibn ʿAshur, Uṣul al-Nizām al-IjtimāʿI fi al-Islam, p. 206. 11 Auda, Fiqh al-Maqāṣid, p. 20. 12 Ibn ʿAshur, Maqāṣid al-Sharīʿah al-Islāmiyyah, p. 292. 13 Attia, Naḥwa Tafʿil Maqāṣid al-Sharīʿah, p. 171; El-Raysuni, al-Zuhaili, and Shabeer, “Ḥuqūq al-Insān Miḥwar Maqāṣid al-Sharīʿah,” Kitāb al-Ummah 87 (2002). 14 Attia, Naḥwa Tafʿil Maqāṣid al-Sharīʿah, p.170; El-Raysuni, al-Zuhaili, and Shabeer, “Ḥuqūq al-Insān Miḥwar Maqāṣid al-Sharīʿah”; El-Awa, al-Fiqh al-Islāmī fī Tariq al-Tajdīd, p. 195; Al-Qaradawi, Madkhal li-Diāsah al-Sharīʿah al-Islāmiyyah, p. 101. 15 Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, p. 24.
319 dar al-kufr (the abode of Islam and the abode of unbelief) and what is the significance of this distinction according to Muslims living in non-Muslims majority countries.
Following Abou El Fadl, this thesis has demonstrated that⎯relying on the higher objectives of Sharīʿah⎯in Australia, Muslims are only obliged to follow certain aspects of Sharīʿah. Also, in the name of the teaching of Sharīʿah, Muslims are expected to comply with the laws of their country of residence because they are under the authority of a covenant they have to fulfil. In this way, the concept of public interest (maṣlaḥa) and the higher objectives of Sharīʿah, which were introduced in the realm of ijtihād, can help Muslims live in a secular country, allowing for some aspects of Sharīʿah. As this research has shown, there are a number of areas of convergence between the higher objectives of Sharīʿah and Australian law, such as the items that come under the preservation of public interest; thus, Islamic values are compatible with Australian values. In fact, this compatibility has been a key objective of this research. It has demonstrated that, despite the diversities and differences, the Islamic background remains a symbol in the identity of the minority Muslims in Australia.
There is no doubt that a revitalisation of Islamic thought takes place when ijtihād is oriented by maqāṣid. The nexus of maqāṣid and ijtihād provides a promising vision for the future development of Islamic legal thought. As Ibn ʿAshur observed, knowledge of maqāṣid characterised by maṣlaḥa is indispensable to ijtihād.16 As mentioned in the example in chapter 2, a mujtahid must pay attention to the end result or consequences of their ruling, for ijtihād would be deficient if it failed to contemplate its consequences.17
This methodology sheds light on the rules of law per se: Mujtahid must all times ensure
16 IbnʿAshur, Maqāṣid al-Sharīʿah al-Islāmiyyah, pp. 15−16. 17 Kamali, Maqāṣid al-Shariah, Ijtihād and Civilisational Renewal, p. 42.
320 the higher objectives of Sharīʿah determine the essential possibilities of their implementation.18
In chapter 2, maqāṣid al-Sharīʿah plays a significant role in textual interpretation and ijtihād. It may be used to give the most compassionate interpretation of a text when there is more than one interpretation. For instance, the normal course in the context of offenses and crimes is to apply a punishment to protect society from the dangers of corruption and reassert the normal order that governs human life. However, there are many cases where pardoning the offender appears a more preferable course and it is for judges to reflect this in their judgement.19 The example of Caliph ʿUmar given in chapter 2 illustrates this point. There he used ijtihād and suspended the implementation of punishments for poor thieves in times of famine,20 because most of them were stealing out of necessity due to hunger, poverty and drought. While this decision contradicted a verse from the Qurʾan, he justified his decision by stating the principles of justice and fairness were significant for the preservation of life, which is the first necessity of the higher objectives of Sharīʿah.21 The literal implementation of punishments dealing with offenders may run against the higher objectives of Sharīʿah.
The maqāṣid approach to the text, however, provides a powerful tool for reforming the law, as it rejects readings of texts that contradict basic Islamic values. Another example was ʿUmar’s decision to add horses in the types of wealth included in obligatory charity
(zakah), despite the Prophet’s clear instruction to exclude them. ʿUmar’s rationale was that horses during his time were becoming significantly more valuable than camels. In his decision, ʿUmar defined the purpose of obligatory charity in terms of social
18 Ramadan, Radical Reform, p. 75. 19 Kamali, Maqāṣid al-Shariah, Ijtihād and Civilisational Renewal, p. 42. 20 Ramadan, Radical Reform, p. 75. 21 Ijtihād: Reinterpreting Islamic Principles for the Twenty-first Century, Special Report (US: United States Institute of Peace, 2004) accessed November 2014,
321 assistance that is paid by the wealthy for the sake of the poor regardless of the exact type of wealth.22 His decision took into consideration the preservation of life in terms of social assistance to the poor.
There is flexibility within the tradition to enable Muslims to rethink their presence in non-Muslim majority countries. It provides according to Ramadan a methodology of
“reform” which requires councils of Sharīʿah experts (men and women) and scholars from various fields of knowledge⎯medicine, astronomy, economics, social and political sciences, and law⎯working together.23 Even non-Muslim scholars who are sympathetic and objective should be invited to contribute.24 These councils should not only issue rulings, but also provide the evidence and methodologies behind their rulings. They should also strive to build consensus as much as possible:
Equal-representation ethical committees must be the places where the union of the two kind of ijtihād (in texts and in wider social contexts), must be thought through in a concrete, realistic, and pragmatic manner, on all levels and in all the categories of contemporary Islamic ethics.25
Maqāṣid al-Sharīʿah, Therefore, offers through ijtihād an open and developing avenue of Sharīʿah that grows in tandem with the needs and wishes of Muslims; implementing rules and laws in the light of the objectives is the sine qua non of faithfulness.26
8.3 The Development of Muslim Identity in a Modern Multicultural Society
This thesis has examined the central question of identity for Muslims living in
Australia’s multicultural society. In its discussion of identity, it began with Ramadan’s premise that the core of Muslim identity has two dimensions: faith in the oneness of
22 Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, pp. 10−11. 23 Ramadan, Radical Reform: Islamic Ethics and Liberation, p. 158. 24 Ibid. 25 Ibid, pp. 143−144. 26 Ramadan, Radical Reform, p. 75.
322 God, followed by the expression of this faith through engagement with society.27 This being the case, Muslims in Australia have a responsibility to express these two dimensions of their identity while, at the same time, remaining faithful to the Islamic sources.28 To achieve this end, Australian Muslims have to distinguish between the fundamental principles of Islamic teachings and the values of their surrounding culture.
An awareness of this distinction will enable Muslims to integrate all that is good and positive from their home cultures and that of their host-country, and reject what is detrimental to their faith. It will also enable jurists to extract laws that resonate with the positive values of their adopted country. This will require jurists to return to the scriptural sources, revisit particular readings that address the concerns of Muslims living in different cultures and engage in ijtihād. Examples of jurists who have followed this approach have been cited: Al Shāfiʿī, the founder of one of the four sunni schools of fiqh, followed this methodology when he moved from Baghdad to Egypt during the last years of his life. After the moved, he changed many of his opinions, taking into consideration the cultural norms of Egypt and very different circumstances there. Syrian
Ḥanafi jurist Muḥammad Ibn ʿAbdin (d.1836) was renowned for the considerable attention he gave to custom (ʿurf) as a source of law making. In cases of conflict between customs and the principles of Sharīʿah, he rejected only those that absolutely contradicted the latter.
Positive engagement with Australian society may mean that Muslims can develop multiple identities. In other words, it is possible for Muslims to retain their specific religious identity while, at the same time, developing other identities shaped by
Australian customs and culture. The experience of living in multicultural Australia
27 Ramadan, Western Muslims and the Future of Islam, p. 83. 28 Ibid.
323 could over time provide Muslims with the opportunity to develop a distinctive multicultural Muslim identity.
However, the events of 9/11 delivered a serious blow to Australia’s multicultural society. Australian Muslims, in particular, began to feel excluded and the wider community began to treat Muslims with suspicion. The question of identity came to the fore. More than ever, Australian Muslims were faced with the challenge of remaining faithful to the essence of Islam and engaging with society in a manner that pursues the dignity and welfare of all.
Faced with many challenges, Australian Muslims are aware that society has changed.
This sense of instability, combined with faithfulness to a religion, has given rise to some fears and questions that are perfectly normal to ask: Are Muslims capable of living in secularised societies? Are their values compatible with those of modernity and democracy?
8.4 Modernity and Democracy in the Australian Muslim Context
One of the questions that lies at the heart of this thesis – How can Islam be compatible with modernity? – is particularly important because Muslims living in Western countries need to discern the disruptive effects of Islam on secular institutions of modern Western countries, understand the reasons for the exclusionary dynamics that often ensue and seek creative solutions to the disharmony thus caused in the community. I have drawn upon the work of Turkish scholar Nilüfer Göle, who opens up a new reading of modernity from a Muslim perspective. She demonstrates in her writings that Islam and Islamic life are not an obstacle in the modern world. She maintains that modernity not only exists in the appearance of some specific traditions, but also it can exist in the mind.
324 Recognising the presence and importance of different cultures and traditions leads to consideration of the above question. Chapter 5 addresses this question by first discussing three broad categories of Muslim responses to modernity. The liberal approach which favours modernity and secularism and supports the adaptation of
Muslims to the Western way of life. In contrast, the traditional approach rejects modernity and secularism and emphasises the complete self-sufficiency of Islam. This approach rejects ijtihād and opposes the inclusion of manners and customs in the inventory of items borrowed from the West. The modern approach takes a medium position between the liberal and traditional; its main concern is how to reconcile Islam with the challenges of Western modernity. This approach urges Muslim jurists to exercise ijtihād to address a balance between reason and revelation, and so advocate reform.
Common to all three responses is the difficulty of balancing rapid change and modern values with Islamic belief and practices, but it is the modern response that best offers a way forward. The key advantage of the modern approach is the emphasis on the dynamic character of Islam, particularly as it is open to technical and scientific progress in the modern world. In the light of Ramadan’s writings on Western Muslims, this thesis has demonstrated that Muslims desire to remain faithful to their religion and, as well, respect the values and ethics at the heart of modern societies. His stresses the importance of distinguishing between the immutable (thābit) and that which may be subject to change (mutaghayyir). An awareness of this distinction helps provide a space for affirming the essentials of the Islamic faith and a re-reading of the sacred texts in response to changes in modern society. In this space, it is possible to implement ijtihād so Muslims can critically meet the challenges of modernity without blindly accepting or rejecting it.
325 On the more specific question relating to how well Islam can accommodate constitutional democracy, I have drawn upon the example of the Constitution of Medina initiated by the Prophet as evidence that democracy is far from a foreign notion to Islam and highly compatible with it. Also, the notion of shura or consultation is an important element in the socio-political thought of Islam and provides the groundwork for democracy. Shura, as Abou El Fadl reminds, is a symbol of participatory politics and legitimacy. It receives its authority from the Qurʾan, instructing the Prophet to consult regularly with Muslims on all significant matters. Consultation, being a core element of democracy, builds an affinity between the socio-elements of Islam and democracy.
This thesis refutes the commonly-held view in the West that Islam is incompatible with democracy: contrary to popular belief, surveys in Australia have shown that Muslims support democratic elections and do not see any incompatibility between the two. As a result, there is a promising compatibility of the socio-political elements of Islam with democracy. It requires on the part of Muslims to acknowledge the values of human liberty and equality within secular democratic society, and it will also requires recognition within the broader Australian society that Islam has democratic values.
8.5 What about Muslim Women?
The majority of Australian Muslim women see themselves as Australians who treasure their religious heritage. Although they are generally comfortable with this dual identity,
Muslim women in Australia often bear the brunt of sustained criticism in popular media and some academic circles. They are commonly regarded as being oppressed by an oppressive religion, which seemingly supports honour killings, restrictions on girls’ education, forced marriages and female circumcision. Sometimes, they are even accused of being accomplices in these unsavoury practices. Because of their visibility in society,
326 they are stereotyped as the “other” who needs to be managed and tolerated. Even
Muslim feminists like Fatima Mernissi have taken Muslim women to task for wearing the ḥijāb. The question uppermost for Muslim women in Australia is: How can Muslim women in Australia challenge these negative perceptions?
In pursuing this question, I have drawn on the insights of Malaysian scholar Zaleha
Kamaruddin who has propounded the necessity of educating Muslim women in the practice and interpretation of Islamic law.29 A key advantage of Kamaruddin's proposal is that it goes to the very heart of this thesis: the need for female scholars to engage in ijtihād with a sensitivity to the common good or public welfare. In this way, women may be able to help dismantle some of the pernicious patriarchal practices, like various forms of violence towards women mentioned above, that are alien to the general principles in the Qurʾan and sunnah. With more women scholars engaged in Islamic jurisprudence, Muslim women generally will find a voice to challenge negative perceptions both of themselves as vulnerable and oppressed, and of their religion as a positive force for the good of society.
Thus, a real change can be implemented: the above-suggested programme of action is based on the obligation for Muslim scholars to follow the principles and values of Islam based on maṣlaḥa and maqāṣid al-Sharīʿah. It may lead to a revival of female scholars in Islam that engages the sacred texts and ijtihād along side their male counterparts. In this way, Muslim women may become leaders of change for a brighter future.
29 Zaleha Kamaruddin, “ Islamic Family Law in Malaysia: An Overview,” pp. 1−30; Liz Gooch, “In Malaysia, Reality TV with a Feminist Twist,” The New York Times, November 21, 2011, accessed July 2015,
327 8.6 The Issue of Accommodation of Islamic Law in Australia
One issue that periodically emerges in public debates about Islam is the extent to which some aspects of Islamic law might be incorporated within a broad framework of
Australian law. While there is no clamour by the Muslim community for a parallel system of Islamic law to be instituted in Australia, recognition of some aspects of
Islamic law relating to marriage and divorce, for example, would facilitate their way of life. On the whole, Muslims understand they are obliged to obey the laws of the land, provided they do not contradict the general principles of the Qurʾan and sunnah.
Nonetheless, community leaders are keen to see traditional dispute resolution processes given authority within the existing legal framework.
In pursuing a way forward with this matter, I have examined high-profile public debates relating to the accommodation of Islamic law in the United Kingdom and Canada, two countries with similar laws to those in Australia. The first relates to the Ontario
Sharīʿah debate in 2004 which stimulated arguments around the world about the extent to which Muslims could find space in a liberal democratic system like Canada. The second concerned the Archbishop of Canterbury’s address in 2008 to the Royal Courts of Justice in which he promoted the concept of Britain becoming a “plural jurisdiction” by accommodating aspects of Sharīʿah law. One factor to clearly emerge from both examinations was that the wider community had mistaken views on what the Muslim community was actually seeking. This thesis has demonstrated firstly, from the position put forward by the Ontario government, there seems to be a misunderstanding by liberal democratic polity of how the values of liberty and equality, and the concept of multiculturalism could not accommodate legal recognition given to Islamic arbitration and religious groups seeking space within the sovereign framework of a state and its
328 rule of law. Secondly, Sharīʿah councils have existed in the UK since 1982, but the only one that has any authority according to the official legal system is the Muslim
Arbitration Tribunal, which was established in 2007. It is obvious the debates were drawing upon misguided assumptions and incomplete facts, which obscured the reality of the situations.
In the Australian context, the intention would be to set up a framework within which
Muslims are able to provide answers to some fundamental contemporary problems. In other words, there is a need for a process of ijtihād to be applied by Muslim scholars and recognised by the Australian government about the formation of Sharīʿah tribunals for mediation and arbitration, which would facilitate the Muslims way of life. One proposal might be is that Australian Muslim scholars seek to use Islamic law⎯in
Sharīʿah tribunals⎯to resolve disputes and other legal family issues, but do so by respecting Australian legal mechanisms, notably civil arbitration and Australian mediation. Islamic law would, therefore, serve as a perfect channel by which to appreciate the role of interpretation through ijtihād and the public benefit (maṣlaḥa) by incorporating the views of the different Islamic legal schools. These tribunals would be composed of a group of Muslim scholars advised by specialists in particular disciplines, who can rule on issues that arise in the community and arbitrate disputes within it, and eventually facilitate the work of the court so parties may have their agreements enforced without going through the whole process again in front of the court.
8.7 Pioneering a Better Future
Finally I have argued for the necessity of rejuvenating the practice of ijtihād for
Muslims living in Australia. In Chapter 2, I discussed the meaning of ijtihād, those who has authority to practise it, and presented traditional and modern examples of how it has
329 been applied. In recent times, and most strikingly, the European Council for Fatwa and
Research exercised ijtihād that issued in a fatwa permitting Muslims in the West to buy houses with mortgages and pay the interest on the loans.30 An even more recent example comes from Australia involving organ donation.31 In 2013-14, an expert committee consisting of imams and doctors (Muslims and non-Muslims) appointed by the Grand Mufti of Australia, Dr Ibrahim Abu Moḥammad determined that organ donation was permissible in Islam under certain conditions: (i) the organ must be donated not sold; (ii) the donor must give consent, inform their family and register with the Australian Organ Donor Register; (iii) the donor must be clinically dead (i.e. brain dead) before the transplant can take place and; (iv) the donation of male and female reproductive organs was prohibited.32 This latter example augurs well for the practise of ijtihād in Australia through a representative body of Muslim scholars (ʿulamāʾ). The representative body would be under the leadership of the Grand Mufti of Australia and comprise mujtahids (female and male) from each state with decisions reached by consensus.
This same body would need to create institutions with curricula that embrace modern knowledge and attract talented students (female and male) to develop as future scholars and leaders. Under the umbrella of this body, there would ideally be four committees:
(i) a religious and academic committee to review and assess academic programmes, teaching quality and administrative processes; (ii) a scientific committee with experts and scholars (females and males, Muslims and non-Muslims) from diverse fields of
30 Al-Qaradawi, Fiqh of Muslim Minorities, pp. 180−185. 31 “Grand Mufti of Australia, Dr Ibrahim Abu Mohammad, in Support of Organ Donation,” Australian Government- Organ and Tissues Authority, accessed July 2015,
330 knowledge including medicine, astronomy, economics, social and political sciences, and law; (iii) a legal committee to oversee Sharīʿah tribunals for the mediation and arbitration of family law matters; and, (iv) an interfaith committee to provide forums for interfaith dialogue and shared religious experience.
There is no doubt that any movement forward with the above proposal would require a transformation of the limited scope and purpose of the existing Australian National
Imams Council. In a manner similar to that recommended by Kamaruddin for the transformation of the legal system in Malaysia, I am proposing that the Islamic legal system in Australia expand its vision to include the following commitments: to find practical solutions to newly emerging problems in the Muslim community; to develop processes for social and moral reform that take into consideration the common good of society; and to revive the extraordinarily viable insight from within the treasure-trove of
Islamic legal thoughts that can be used in the transformation of the Islamic legal
33 system. Two insights, in particular, have been examined in this thesis. First, is the notion of shura and its importance in the process of decision making; the second, and more importantly, is maqāṣid al-Sharīʿah which has a great potential to illuminate the process of ijtihād.
The above processes are necessary for the good functioning of ijtihād and meeting the needs of the Muslim community in Australia. Ijtihād is not an easy practise, but its outcomes are extraordinarly relevant to modern-day Muslims. In order to overcome the urgent challenges facing the Muslim community in Australia, it will require a total commitment to ijtihād from Muslim scholars.
33 Zaleha Kamaruddin, “The Islamic Legal System in Malaysia and the Quest for Transformation in the 21St Century,” Australian Journal of Basic and Applied Sciences 6(11) (2012): p. 76.
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Legislation
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373