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ISLAMIC LAW and ETHICS Text 09/06/2020 18:45 Page I ISLAMIC LAW COVER12_Layout 1 18/08/2020 19:00 Page 1 ISLAMIC LAW Does Islamic law define Islamic ethics? Or is the law a branch of a broader ISLAMIC LAW ethical system? Or is it but one of several independent moral discourses, Islamic and otherwise, competing for Muslims’ allegiance? The essays in this book present a range of answers: some take fiqh as the defining framework for ethics, AND ETHICS others insert the law into a broader ethical system, and others present it as just Edited by DAVID R. VISHANOFF one among several parallel Islamic ethical discourses, or show how Islamic ethics might coexist with non-Muslim normative systems. Their answers have far- reaching implications for epistemology, for the authority of jurists and lay Muslims, for the practical moral challenges of daily life, and for relationships with non-Muslims. The book presents Muslim ethicists with a strategic AND contemporary choice: should they pursue a single overarching methodology for judging all ethical questions, or should they relish the rhetorical and political competition of alternative but not necessarily incompatible moral discourses? ETHICS Edited by DAVIDVISHANOFF R. isbn 978-1-56564-950-7 e-book isbn 978-1-64205-346-3 cover image © shutterstock ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page i ISLAMIC LAW AND ETHICS ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page ii ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page iii ISLAMIC LAW AND ETHICS Edited by David R. Vishanoff iiit • ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page iv © IIIT 1441AH/2020CE IIIT, P.O. Box 669, Herndon, VA 20172, USA • www.iiit.org P.O. Box 126, Richmond, Surrey TW9 2UD, UK • www.iiit.org.uk This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of the publisher. ISBN 978-1-56564-950-7 limp ISBN 978-1-56564-951-4 cased E - BOOKISBN 978-1-64205-346-3 The views and opinions expressed in this book are those of the author and not necessarily those of the publisher. The publisher is not responsible for the accuracy of URLs for external or third-party internet websites, if cited, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Layout and Design by Shiraz Khan Printed in the USA ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page v Contents vii Editor’s Introduction ix Islamic Law and Ethics: From Integration to Pluralism David R. Vishanoff . e Ethical Structure of Imām al-¤aramayn al-Juwaynī’s 1 Legal eory David R. Vishanoff . “Neither Desiring It, nor Transgressing Its Limits:” 34 Ethical Hierarchy in Islamic Law Samy Ayoub . Structural Ijtihad: A Radical Paradigm Shi in 52 Twelver Shi¢i Legal eory Hamid Mavani . e Application of Maqā|id al-Sharī¢ah in 76 Islamic Chaplaincy Kamal Abu-Shamsieh . e Developmentalist Ethic in Islamic Charity: 109 Fiqh al-Zakāh and the Applied Ethics of Muslim Charity Organizations in India Christopher B. Taylor . e Concept of Ri\ā in the Qur’an: Popular 136 Misunderstanding and the Westernization of Jews and Christians Asaad Alsaleh . Social Justice and Islamic Legal/Ethical Order: 162 e Madinah Constitution as a Case Study from the Prophetic Period Katrin Jomaa 207 ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page vi ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page vii FOREWORD To what extent is ethics theology and to what extent is it philosophy? e dynamic of interpretation, of trying to extrapolate to modernity and its challenges, is the nature of the conversation emerging in this set of essays, in which we see scholars engage with Islamic traditions and provide rationales for their views. Society is incapable of evolution without formulation of legisla- tion rooted in an understanding of law undergirded by a respect for and practical application of ethics, which gives it direction. Under Islamic Law this ethics becomes a more powerful driving force, deter- mined by a Divine moral code whose authority lies in the Qur’an and Sunnah (actions) of the Prophet Muhammad (SAAS)*, rather than • pure intuition and moral consequentialism (secular reasoning) as arbiters of the rightness or wrongness of an action. Fundamental to the expression of Islamic Law therefore is scrip- tural and hadith authority, which position continues to be the basis of personal conduct as well as actions and decisions taken in relation to the social/political/economic and other functioning of society and life. Fuelling debate down the centuries has been how best to derive and realise the Divine intent. us, while the Shari¢ah sits uncomfort- ably in the Western imagination, considered provocative even, it forms a strictly integral and unapologetic part of the ethical, moral society envisaged by Islam (provided it is applied genuinely and under genuine governance). ere are important parallels both in the Western and Islamic traditions that can be explored, once the dust of controversy settles. e papers in this anthology explore Islamic Law in relation to ethics in general as well as certain ethical and moral issues of the day. ey were first presented at the IIIT Summer Institute for *ṢAAS (Ṣallā Allāhu ‘alayhi wa sallam: May the peace and blessings of God be upon him said whenever the name of the Prophet Muhammad is mentioned). vii ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page viii FOREWORD Scholars, an annual event dedicated to studying contemporary approaches in Islamic thought, and meant to bring together scholarly contributions that update our understanding of various sub-fields, methodologies, and topics. Where dates are cited according to the Islamic calendar (hijrah) they are labelled AH. Otherwise they follow the Gregorian calendar and are labelled CE where necessary. Arabic words are italicized except for those which have entered common usage. Diacritical marks have been added only to those Arabic names not considered contemporary. English translations taken from Arabic references are those of the author. Since its establishment in , the IIIT has served as a major cen- ter to facilitate serious scholarly efforts. Towards this end it has, over the decades, conducted numerous programs of research, seminars and conferences, as well as publishing scholarly works specialising in the social sciences and areas of theology, which to date number more than seven hundred titles in English and Arabic, many of which have been translated into other major languages. We are grateful to Professor David Vishanoff for the expertise he brought to bear as Editor. We also thank the contributors, as well as all those directly or indirectly involved in the completion of this book. May viii ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page ix Editor’s Introduction Islamic Law and Ethics: From Integration to Pluralism David R. Vishanoff Does Islamic law define Islamic ethics? Or is the law one branch of a broader ethical system? Or is it one of several independent ethical dis- courses, Islamic and otherwise, competing for Muslims’ allegiance? is is no idle academic question. It has far–reaching implications for epistemology, for the authority of jurists and lay Muslims, for the practical moral challenges of daily life, and for relationships with non–Muslims. is question evoked varied and passionate answers over the course of a week–long summer institute on “Islamic Law and Ethics” hosted by the International Institute of Islamic ought at its headquarters in Herndon, Virginia in June of . A range of possible answers were laid out by the distinguished guest speakers who opened the conference. Jasser Auda made the case that if Islamic law is reformed from within, with a focus on its moral objectives, it can incorporate other dimensions of ethics, such as virtue, and systematically ground them all in revelation. Abdulaziz Sachedina likewise called for a systematic and integrated methodolo- gy for Islamic ethics, but one that looks beyond the interpretive tools of traditional legal theory to incorporate universal ethical intuitions. Ebrahim Moosa argued that Islamic law should not be the sole mark- er of Muslims’ identity that governs all aspects of their lives, but that Islamic ethics should be constituted by a plurality of normative dis- courses. Carl Ernst agreed with Moosa that ethics cannot be reduced to a single moral calculus such as fiqh, and argued that even the “for- eign” cultural norms and ethical philosophies that have entered into ix ISLAMIC LAW AND ETHICS_text 09/06/2020 18:45 Page x ISLAMIC LAW AND ETHICS Islamic life and thought should be regarded as integral components of Islamic ethics. e group of young scholars who stayed and engaged one another in a rich conversation over the course of the following week offered historical examples and constructive proposals spanning this whole range of answers. None of them specialized in Islamic ethics, and not many were trained in Islamic law, but all of them brought to bear on the subject the rich particulars of their own research and their person- al engagement with the dilemmas of contemporary Islamic thought. eir contributions were exploratory rather than definitive, but together they constituted a profound interrogation of the relation- ship between fiqh and ethics. Most of their papers are assembled in this volume, arranged in the following order: first those in which Islamic law is the starting point and the defining framework for ethics, then those that insert Islamic law into a broader ethical frame- work, then those that present law as just one among several parallel Islamic ethical discourses, and finally those that suggest how Islamic ethics should relate to non-Muslim normative systems.
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