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Religion: Faculty Publications Religion
2018
Islamic Shari'a Law, History and Modernity: Some Reflections
Suleiman A. Mourad Smith College, [email protected]
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Recommended Citation Mourad, Suleiman A., "Islamic Shari'a Law, History and Modernity: Some Reflections" (2018). Religion: Faculty Publications, Smith College, Northampton, MA. https://scholarworks.smith.edu/rel_facpubs/17
This Article has been accepted for inclusion in Religion: Faculty Publications by an authorized administrator of Smith ScholarWorks. For more information, please contact [email protected] Islamic Shari’a Law, History and Modernity: Some Reflections Direito Islâmico da Shari’a, História e Modernidade: Algumas Reflexões
Suleiman A. Mourad Sumário
I. Dossiê Especial: History of International Law...... 1
Editorial ...... 8 What does it mean to apply history in international law studies?...... 8 Arthur Roberto Capella Giannattasio
Sur la nature du Droit Islamique...... 14 Hocine Benkheira
Islamic Shari’a Law, History and Modernity: Some Reflections...... 25 Suleiman A. Mourad
The (Un)practical Secularization Process: International Law and Religion as So- cial Realities...... 33 Douglas de Castro
Brazilian literature on international law during the empire regime. Or the diffusion of international law in the peripheries through appropriation and adaptation...... 50 Airton Ribeiro da Silva Júnior
Natural, positivo, romano e universal? Investigação sobre o direito das gentes em Tomás de Aquino...... 68 Rafael Zelesco Barretto
II. Artigos sobre outros temas...... 97
Vinculação dos direitos econômicos, sociais e culturais: uma discussão do desenvolvi- mento humano com base no conceito de Amartya Sen sobre o mínimo existencial.....99 Natalia Mascarenhas Simões Bentes e Yasmim Salgado Santa Brígida
A nova Lei de Migração e a proteção conferida ao apátrida: alinhamento brasileiro ao padrão internacional de direitos humanos...... 122 Pedro Henrique de Faria Barbosa e Sylvio Loreto
E se o Supremo Tribunal Federal (STF) restabelecer a vigência da Convenção n. 158 da Organização Internacional do Trabalho (OIT) na ordem jurídica brasileira? So- bre uma possível reviravolta, pela via do direito internacional, das leis trabalhistas brasileiras...... 138 Daniel Damasio Borges
Julgados da corte interamericana sobre casos brasileiros e políticas públicas: refle- xões acerca de possíveis influições...... 165 Rafael Osvaldo Machado Moura
Creating bridges between international relations theory and international human rights law: constructivism and the role of Brazil in the inter-american system of human rights...... 179 Ismael Francisco de Souza, Luciana Rocha Leme e Erick da Luz Scherf
Justiça de transição na Argentina e o Sistema Interamericano de Direitos Humanos: uma análise do Caso Luis Muiña (“regra 2x1”)...... 199 Emilio Peluso Neder Meyer e Jessica Holl
A legalidade e legitimidade da intervenção humanitária: uma medida ainda necessária.219 Natália Caye Batalha Boeira
O Acordo de Escazú e o acesso à informação ambiental no Brasil...... 252 Érica Bezerra Queiroz Ribeiro e Bruno Amaral Machado
Dos povos nativos ao surgimento dos movimentos sociais: influências dos discursos jurídicos, religiosos e médicos para a construção do conceito de homossexualidade no Brasil...... 267 Bruno Rafael Silva Nogueira Barbosa e Robson Antão de Medeiros
Aspectos jurídicos da participação da União Europeia na OMC: compreendendo suti- lezas de um delicado enlace...... 291 Camilla Capucio
Path to judicial activism? The use of “relevant rules of international law” by the WTO Appellate Body...... 307 Mariana Clara de Andrade
Leveza e peso na mediação comercial internacional: o conteúdo jurídico do acordo corporativo mediado e sua incorporação pelo Direito brasileiro...... 324 Henrique Lenon Farias Guedes Jurisdição internacional e as dificuldades de execução de sentenças internacionais no Brasil...... 344 Nevitton Vieira Souza
O dever de cooperação nos contratos de venda internacional de mercadorias: pres- supostos teóricos e repercussões práticas da cláusula geral da boa-fé objetiva para a aplicação da CISG...... 358 Angelo Gamba Prata de Carvalho
A dimensão jurídica do imperialismo na (des)ordem global capitalista: uma análise com base na crítica marxista ao direito internacional e às relações político-econômicas de dominação e dependência...... 380 Thomaz Delgado De David, Maria Beatriz Oliveira da Silva e Rosane Beatris Mariano da Rocha Barcellos Terra
A participação de Brasil e Estados Unidos na formulação das regras multilaterais do comércio agrícola...... 402 Vera Thorstensen, Vivian Daniele Rocha Gabriel e Alebe Linhares Mesquita
A galáxia lex e a construção de um sistema jurídico transnacional...... 441 Eugênia Cristina Nilsen Ribeiro Barza e Jéssyka Maria Nunes Galvão
Has the Ability of Truth Commissions to Recommend Amnesty Been Effective in Enhancing Perpetrator Cooperation? ...... 453 Jeremy Sarkin
A conceptual paper on the policy-framework that mirrors the dynamic link between Human Security, Social Protection and Safety Nets, and Food and Nutritional Se- curity: The Case of the “Gulayan sa Paaralan Program”, the Philippines...... 478 Renato Lagapa Base
Incentivising smallholder farmer livelihoods and constructing food security through home-grown school feeding: evidence from Northern Ghana...... 491 Clement Mensah
Policy coherence in the implementation of the 2030 agenda for sustainable develo- pment: the Brazilian School Feeding Programme Case Study...... 506 Mariana Werlang Girardi doi: 10.5102/rdi.v15i3.5934 Islamic Shari’a Law, History and Modernity: Some Reflections*
Direito Islâmico da Shari’a, História e Modernidade: Algumas Reflexões
Suleiman A. Mourad **
Abstract
In the last two centuries, Muslim modernists have introduced major legal reforms that led to the restriction of the range and scope of Islamic Shari’a Law and the overhaul of legal thought and practice in the Muslim World. Nevertheless, every time a new legal reform is proposed, it is met with outcries from Islamists who label it un-Islamic and blasphemy against God. This paper examines some major premodern scholars of Islamic jurisprudence whose thought and practice about Shari’a Law featured tremendous flexibility in the way they understood their role as legislators and accepted a diversity of rules. The paper shows how important Islamic history is for a proper understanding of Islamic Shari’a Law, which accommodates change and constant interpretation. Keywords: Islamic Shari’a Law, Muslims and Modernity, Islamic Legal Reforms
Resumo
Nos últimos dois séculos, os modernistas muçulmanos introduziram reformas legais importantes que levaram à restrição do alcance e do escopo do Direito islâmico da Shari’a e à revisão do pensamento e da prática legais no mundo muçulmano. No entanto, toda vez que uma nova reforma legal é proposta, ela é recebida com protestos de islamistas que a rotulam como anti-islâmica e blasfêmia contra Deus. Este artigo examina alguns importantes estudiosos pré-modernos da jurisprudência islâmica, cujo pensamento e cuja prática sobre o Direito da Shari’a apresentavam uma tremenda flexibilidade na maneira como eles entendiam seu papel como legisladores e aceitavam uma diversidade de regras. O artigo mostra como a história islâmica é importante para uma compreensão adequada da Shari’a, que acomoda a mudança e a interpretação constante. Palavras-Chave: Direito Islâmico da Shari’a, Muçulmanos e modernidade, Reforma legal islâmica * Guest author / Editor Convidado
** (Ph.D., Yale University), (Professor of Religion, Smith College, USA, & Associate Fellow, Nantes Institute for Advanced Study, France). E-mail: [email protected] rapport/), and English (https://colibe.org/report/?lang=en). rapport/), colibe.org/ 1 Shari’a law ispoliticallymotivated. initiatives certain to amend groups, whose rejection of done today religion by someIslamist of manipulation law, IslamicShari’a exposes the and the dynamicsof in understanding history of highlights the importance It theQur’an. injunctions of they gave tothelegal and what role toShari’a dealt with issues pertaining they which with flexibility the show to order in times jurists from premodern discussions by leading legal law inrecent decades.will examinesome paper This Shari’a of modification and overhaul major supported who have these same groups tendency of the general law. IslamicShari’a with agreement not in Itisalso of layingand outthetheoreticalpractical apparatus and defining in role fundamental a had who jurists Muslim mostpremodern with the position of in agreement sound astonishing to many today that this view is not clearly and definitively stipulated in the Qur’an. It might have to amendwhat God has no authorityagency or that Muslims (and humansingeneral) contentious belief inahighly is grounded and otherIslamist groups daughters.” two you that a sonshouldhave the equivalent share of chapter specifically 4 in the Qur’an: “Godcommands verse 11 of revelation, God’s of stipulation clear the un-Islamic because it violates that labeledtheproposal joined the fray.based inEgypt, Itissued a declaration and Islam Sunni in institution religious influential most inheritance than towomen. Al-Azhar, the share of Islamic Shari’a law, whichof assigns to men a higher thatitcontradicts the terms Islamists who alleged many Tunisian reactionsfrom was met with angry womenequal rights.men and Essebsi’s announcement inheritance, giving to Parliament toamendthe law of June 2018 and Equality on 1 Individual Liberties Commission of (issued by the Caid Essebsi endorsed the Colibe report August 2018, the Tunisian President Beji Mohamed 1. I The reports was (https:// Arabic issued in three languages: reports The h beto fTunisianIslamists, al-Azhar, objection of The a speechIn Women’son theNational Day13 on ion ntroduct ريرقتلا 1 ) and announcedthat he will submit arequest /?lang=ar), French (https://colibe.org/le- who was a significant Sunni legal theorist and belonged belonged theoristand waswho legal significant Sunni a text by Ibn influential legal al-Baghdadi (d.1037), Tahir Muslimjurists is the following from avery premodern something differentfromtheliteralmeaning. tools in orderto make the Qur’an say hermeneutical eventheir successors). Muhammadand They devised of the founding fathers (mainly, the Companions views of Bible,Muhammad, etc.)heeded it andthe ignored or other revealed sources (other qur’anicverses,of Sunna either freely amended the text by playing it against what the Qur’an stipulates, they they took notice of Qur’an. the examining first without matters on literally as something absolute,sometimes and ruled the Qur’an the centuries did nottake the wordof Muslimjurists throughout overwhelming majorityof 2. and thelike. small area:family law,a very inheritance, religious rituals, marriage, except intwo andIran),has beenreduced countries (Saudi to Arabia each this school,diversity, today are notaware andthe realm of of states, nation mostSunnis the creation of and reforms legal modern and practice. As aresult of theory legal fundamental aspects of these schools on some hasits ownsystem, Shari’a andthey disagree of Zahiri. and Each five Hanbali Shafi’i, today: Maliki, exist Hanafi, 3 Legal Traditions Lena Salaymeh, 2 schools butalsotheonewithinhisown: among Baghdadi noted not onlythe disagreement broad seafood,al- of thepermissibility his discussion In of school. Shafi’i the as known sub-school Sunni the to SniIlmi rnhdit eea col,o which only SunniIslamisbranched intoseveral schools, of For thought, see a new pioneering study on early Islamic legal T neapeta ipasti ednyo h ato of An examplethatdisplays this tendency on the part historical recorddemonstrates that the The he
historic (Cambridge: Cambridge University Cambridge (Cambridge: Press, 2016). “There isnothinginthe sea besides whichanimals “There from AbuBakrwhosaid: by a report suggested allowable, the evenand like. is thetortoise This Malik andRabi’a declare all aquatic animals ‘Ali ibnKhayran. of isthejudgement This forbidden because the Prophet killing forbade it. is which frog the except fish of law the by judged Others saythe sea istobe from thateverything AbuThawr. of the judgement is faith, then one isforbiddentoeat it. This good to beeaten in something which isnotpermitted of form a itisof being rituallyslaughtered; however, if it comes from the sea without if it is permitted of ananimal of or fish faith then the eating a ritually slaughtered ingood of form the in is animal the but that frogs areforbidden.Otherssay that if concerning disagree aquatic al-Shafi’i animals. Some claim that fish are permissible of followers The h einnso Islamic Law:LateAntique Islamicate The Beginnings of al
record 2 When When 3
26 MOURAD, Suleiman A.. Islamic Shari’a Law, History and Modernity: Some Reflections. Revista de Direito Internacional, Brasília, v. 15, n. 3, 2018 p.24-31 personal opinion. his reflected view Bakr’s Abu that assumed and two the between seems rather obvious that al-Baghdadi didnotmake a connection 5 University Press, 1990),106. Knappert, 4 time, theybecamestaticlaws. law making. Over the dynamic process of of as part Abu Bakr, Abu Hanifa, and Abu Thawr were expressed Muhammad, the static.dynamic and of opinions The law: the discussion underlines the twoaspects of Muhammad, AbuHanifa,andThawr. would have disallowed the views expressed by prophet followand the Qur’an verbatim whatitsays, which Al-Baghdadi didnotsay thatMuslims must look into Thawr. Abu and Hanifa Abu jurists of views the and caliphAbuBakr, the view the Muhammad, prophet of jurists placed on the same the par practice (Sunna) of likely basedonJewishvery law, is specifically Leviticus11:9). (which fish a of form the in be must it edible be to seafood for that declared who – school) Hanafi Sunnism(the school themostpopular of of eponym the – 767) (d. Hanifa Abu to ascribed is view fourth A fish or is similar in shape to land animals that are edible. seafoodthat looks like only legitimized the eating of (d. named 854) Abu Thawr who from the ninth century the sea.in everything allowed who Bakr, Abu caliph first the of belongs to two realms). Another view cites the opinion itbeingamphibious, meaningit account of on (probably who prophet Muhammad, only forbad eating the frog was what of Sunni jurists.among accepted One view references the reflective as views differing four gave (Q. 5.96) – is not cited or even mentioned. Al-Baghdadi the sea and its food” issue: of “Licit for you is the game Qur’an –which actually provides a statement on this Islamic Shari’a law since. It is rather astonishing that the first the in theory Islam,which left its mark onthe nature of centuries of legal of complexity the exposes seafood is legitimate to eat and what is not), it actually I suceri AbuBakrbased his view on Qur’an5:96. It It is unclear if Al-Baghdadi, A second example comes from anotherpowerful It is alsointeresting to pointthatal-Baghdadi’s discussion effectivelyThe means thatmedievalSunni Even though the discussion is aboutpractice (what eta ore o h td fIslam Textual for the of Study Sources 5 A third view is attributed third leading jurist A to a h omo afish amongtheaquaticanimals. of the form Abu Hanifa forbids everything which does not have God would slaughterforyou.” Usul al-din , translated in Andrew Rippin and Janand Andrew Rippin , translatedin (Chicago: Chicago Chicago (Chicago: 4 to nolimit. two from the different views aboutit, whichrange years this question, Sunnis on he listed among and agreement a pregnancy, Ibn Qudamaadmitted that there is no of of school Hanbali the the maximumSunni law. duration In hisdiscussion of of theorist renowned a was manual bylegal the jurist Ibn Qudama(d. 1223), who watch?v=6IV4JRdes0A> 2019). (accessed on3February University: the Azhar
27 MOURAD, Suleiman A.. Islamic Shari’a Law, History and Modernity: Some Reflections. Revista de Direito Internacional, Brasília, v. 15, n. 3, 2018 p.24-31 al-Kutub al-’Ilmiyya, 1993),7. 15 University Press, 1997),1. to Sunni Usul al-Fiqh Theories: An Introduction 14 inquiry. jurist must carefully The examine method of the seeking onjuristfollowingsophisticated a hinges fundamental sources is notapassive process. Ratherit laws fromthesources: Islamic law and how to deduce the principles of inform pivotsfour the jurist,and for map road a that represent law. Shari’a it came to determining Al-Ghazalilisted 1111). manyjurists when (d. conveyThey attitude of the general al-Ghazali Hamid Abu theologian/jurist, the mostauthoritative Sunni oneof following wordsof is best expressed in the what God intended. This God’sthe task to“poking”in determine mindand to the jurist presupposition that essentially delegated by afundamental practice andwas informed theory which manyjuristsabided. frameworkwhich became the later onstatic legal by early jurists), (the conversations anddiffering views of Islamic law phase in its formative dynamic aspect of apregnancy, we also see the the maximum length of scholarshave argued. lawas some modern (and Islamic thought in general) Islamic point of is to classify the Qur’anasthe starting Wepractice.flawed and how it realize thus theory legal the absolute authoritative text when it came to Islamic answer point or isthat the Qur’anwas notthe starting It is clearthat for al-Ghazali,deducing laws from the classical Islamic legal diversity dynamismand The of Al-Ghazali, Hallaq, B. Wael example, for See, 4. 3. 2. 1. seeker. pivot fourth is The the harvester, who is the deductive analysis. meaning, pervasive use,and rational or according tothe explicit meaning, implicit inquiry: whichrefers tothemethods of harvesting, third pivotThe is the method of and Consensusnothingelse. refers tothethree sources: the Book, Sunna, second pivotThe which is the fruit-bearer, etc. restrictive,suggestive, permissive, reprehensible, refers to which fruit, the themselves: mandatory,the rules prohibitive, is pivot first The 15 al-Mustasfa 14 Mroe,i hsdsuso f Moreover, inthisdiscussion of , ed. Muhammad al-Shafi (Beirut: Dar (Beirut: al-Shafi Muhammad ed. , itr fIslamic Legal of A History (Cambridge: Cambridge Cambridge (Cambridge: Qur’an) jurists take the Imam (often nicknamed the Speaking Muslim throughstudy expertise. Forand instance, Shi’i divinely ordained to a specific lineage or attained by any is who over to beaseeker, often entrusted whether andthisissomething is disagreement their However, these on sources/tools their ranking.and never agreed law. IslamicShari’a thatMuslimjurists it istrue And of the principles the bases of sources and tools that form themselves. and purposes, as the sources become as important tools, which, hermeneutical forallintents to a set of needthejuristtosay whatthey mean according They law. Assuch, the sources themselves.do notspeakfor Shari’a define thus and 1) no. in (enumerated rules of early jurists) the different types and the Consensus of Muhammad the sources (the Qur’an, the Sunnaof (laid out in no.the language 3)toproducefrom in order York University Press, 2015),45. Islamic Legal Theory 17 York: ColumbiaUniversity Press, 2016). Fervorand History Islambetween of Sources Amir-Moezzi, 16 the jurists.thinking They process fitof under the broad to error. own the Qur’andirectly because doing sowill lead them therefore, that the believers shouldnotseek on their the Qur’an, the clear therein and the hidden. It follows, to theirfollowers God’s laws which hecommunicated in Godandclarify of and only them, can speak on behalf expressed thispremise: best 974) (d. al-Nu’man Juristal-Qadi Shi’ism. of tenet adherence to the Imam andhis teachings is the main that religious matters; surprise and it isno legal on lGaaisve soeo many variant views on the Al-Ghazali’s view is one of Besides, the hasother principlesthatgovern Shari’a Thus, according to al-Qadi al-Nu’man, the Imams, lQd al-Nu’man, Al-Qadi Ali as thespeakingQur’an,see OntheImam Muhammad 16 asGod’s to bethe absolute source delegate The Silent Qur’an &the Speaking Qur’an: Scriptural the believers toneed the Imamsinthat regard. the religion, and caused exclusively of knowledge Imams the taught He Imams. the to them guide to the faith,andinorder of imposed asanobligation He He whom to whom obedience and them to superior made those need to thereby worshipers the compel to order in this did He ambiguous.leave to clarify, and left ambiguous in it to that which He fit saw fit saw He which that it in clarified worshipers, that he imposed onthe the religious obligations all it in together gathered Book, His revealed God , ed. and trans. Devin J. (New York: Stewart New iareet f h uit:AMna f the Jurists: A Manual of of Disagreements , trans. (New Ormsby Eric 17
28 MOURAD, Suleiman A.. Islamic Shari’a Law, History and Modernity: Some Reflections. Revista de Direito Internacional, Brasília, v. 15, n. 3, 2018 p.24-31 (Beirut: Daral-Kitabal-Lubnani, 2011), 20. (Beirut: 20 Fiqh Interplay of The Theory: Implications inLegal a purpose, see Rami Koujah, “Divine Purposiveness and its 19 Muslim Thought:AnExamination Adis Duderija(ed.), 18 the Muslim World European against of empowerment they saw towards asthe fundamental step the political (which realizedthatpoliticalreform Muslim reformers Shari’a. to parallel in functioned or realm, specific a to some cases that in superseded limited Shari’a Shari’a, constitution a modern basedon Muslimcountry in every system anew legal precisely mean herethe adoption of towards apparatus. law Shari’a and its realm andlegal I Muslims the attitudes in of change caused major a 3. M what isintendedby theLawgiver ismadeknown. in orderto make sure that andinquiry examination of always process subject the textual sources to arigorous God,God’s intent. the Therefore, jurist must of behalf law, on Shari’a the jurists in determining, roleof the and important defining of complexity the about jurists previously, to the among most point Muslim realization al-Ghazzalidiscussedabove: bring tomindtheviewof which 1973), ‘Ashur(d. Ibn jurist Tunisian famous the means to achieve intended. this aim andwhat God truly who those benefit to believe in God. is purpose this and purpose, has a that Shari’a take their logic from the belief and istihsan Shari’a jurists call what some modern of concept The advent of modernity in the nineteenth century in the nineteenth century modernity adventThe of ‘Ashur, Ibn wordsThe likeof those examined isbest summed up inthe followingThis words of ,” ,” Muhammad al-Tahir Muhammad Ibn ‘Ashur, whether there issuch debate regarding Onthepremodern see Shari’a, the studies in “Objectives of the On notion of darura Islamic LawandSociety odernity (subjective reasoning), Ojcie fShari’a). (Objectives of (iencsiy.TeOjcie fShari’a Objectives (dire necessity). The of is intendedby theLawgiver. clearly stated but can be arrived at from induction, therefore concludethisthatwhateverfrom isnot fromthe texts.while others are tobe inferred We are explicitly stated, some merely alluded to, these objectives. and secondary primary Someof In instituting the commands 19 S,terlso Shari’a aresimply the So, of the rules
and Maqasid al-Shari’a and Contemporary Reformist Reformist Maqasid al-Shari’aandContemporary I 24(2016):171–210. sl (NewYork: Palgrave, 2014). amic maslaha 18 L Maqasid al-shari’a al-islamiyya Three are significant: are Three a w 20 , (public welfare), Kalam the Lawgiver has Maqasid al- and Usul al- eilto ntelvn ed fthe present, and not legislation on the living needs of us tobaseall “encourages and Shari’a, traditional from by saying that the Islamic tradition “unfetters us” jurisprudence.” principlesof general in the Civil Law,detailed instructions nor to lay down Revealedthe Mohammadan Law, to give and particular the Korán, law” and that“it was neitherthe object of Korándoes not profess to teach asocial and political Islam isthe or Korán.” Mohammad (d. 1895) declared that“the only law of and Social Reforms decide them. Forinstance, inhis the legislativedelegated matters to the Muslims to theshow Qur’an thatGod the voice Islamand of of like). contracts, inheritance,marriage religious rituals, and the (primarily reduced small realm to a and heavily reformed could not beachievedhegemony) unless is the Shari’a Harmonization,” Harmonization,” and Civil “Shari’ah Law:Kamali, Towards of a Methodology 25 Mu’assasa al-’Arabiyyali-l-Dirasat wa-l-Nashr, 1972). al-umam,” in 24 23 22 Society’s Press, 1883),ii. and Other Mohammadan States Empire Ottoman 21 Sunnilaw they are belong, or know to which schoolof strict schoolsystem (most Sunnis today mightnoteven to the anymore Sunnis that thenot uphold majoritydo ‘Abduh’s hybridization system issowidespread among purposes.for particular appropriate is more itsShari’a school ittoanother if reachoutside of hisown schooland jurist to bypass the limitations of of concept Muslims. the tothe ever-changinghas toconform conditionsof by the Muslims themselvesdetermined because civil law these rules.change Socialrelations, however,to be are Muslims (be they individually or communally) cannot religious practices are regulated bythe and Muhammad, Godand and beliefs that posited He relations. social components: 1) beliefs and religious practices, and 2) divided Islam intotwo Egypt ‘Abduh(d. 1908) of thepast.” on thefossilizedideasof Modernists have teachings Modernists argued that the true Similarly, Muhammad religious reformist the great On the notion of “hybridization,” see Mohammad Hashim Mohammad see “hybridization,” of notion the On ahwal al-qawaninbi-ikhtilaf ‘Abduh, Muhammad “iIkhtilaf Ali, Ali, Ali, Cherágh The Proposed Political, Legal,The Proposed andSocialReforms Political, Legal,The Proposed andSocialReforms 24 ‘Abduh powerful alsointroduced the very al-A’mal al-Kamila, talfiq Islamic LawandSociety The Proposed Political, Legal, in The Proposed Social Reforms and (hybridization) in orderto allow the , the Indian modernist Cherágh Ali , the Indian modernist 21 Then hecontended that, “the Then ed. Muhammad ‘Imara (Beirut: al- (Beirut: ‘Imara ed.Muhammad 14.3 (2007):391–420. Proposed Political, Legal,Proposed 23 25 (Bombay: Education 22 Tesceso success of The e concluded He , xl. , xiv.
29 MOURAD, Suleiman A.. Islamic Shari’a Law, History and Modernity: Some Reflections. Revista de Direito Internacional, Brasília, v. 15, n. 3, 2018 p.24-31 lcn ii ntenme fpilgrims: placing alimitonthenumber of that theCouncilissued gives the followingfor rationale fatwa The 1997. August 1 on Council the byapproved MuslimsinsidetheKingdom. Itwas discussed and of Scholarsthe to imposealimit on numberin SaudiArabia SeniorReligious submitted to the Supreme Councilof meeting heldinJordan inMarch 1988. (OIC) Islamic in its Cooperation of the Organization in the any pilgrimage given year, and this was ratified by thousand Muslims can make one inevery per country: wants tocome. decision was toset yearly The quota a because the venues cannot accommodate everyone who each year Muslims who could make the pilgrimage of to limit the number a rule that Muslim jurists support requested SaudiArabia and 1980s, the Kingdom of 1970s the in Mecca to coming pilgrims of number the the massive increase in requirement. But as a result of financial the health are exempted from this religious havemeans or good not do who those that mean to it it.”who areabletoundertake Jurists have understood people by God to owedduty a is (Ka’ba) House the to Shari’a. laws setby allclassicalschools of these measures amend prior Bothof the pilgrimage. is mandated to offer at the conclusion of each pilgrim that sacrifice animal on restriction the is other the and Muslims numberwho could of make the Hajj each year, the on placed quota the is one rituals: (Hajj) pilgrimage the this tendency. relatetotwo They components of Shari’a laws. I will discuss two examples that illustrate logic thatchanging conditionsnecessitate changing not aware thatthereisnotonesingleShari’ainIslam). A similar petition by the King of Saudi Arabia was SaudiArabia petition byA similar the King of “Pilgrimage 97), 3: (verse Qur’an the to According Muslimjurists have the accepted Modern generally have lapsed,asisthecase with non-citizens who it unless five the Hajj to repeat years who performs not permit necessity requires it, the government the Saudi pilgrims, including that, as long asdire see to preventany reason a policythatorganizes Religious Senior Scholarsdoes not the Council of such, As … Hajj. the of performance the Muslims yeartofacilitate to the every measures it isadopting to ease the access to ritualsites the continuousand God make inorder it successful – hasundertaken – may SaudiArabia of that the government efforts in the last few years. despite ishappening the This pilgrims is caused by in the numbers the surge of the ritual sites, roads, and places, which many of pilgrims the what excessive at congestion and of experience in terms Hajj the to respect with the matter Council discussed the reality of The form of an encouragement to pilgrims to delegate this to delegate to pilgrims anencouragement of form in religious law. Instead, they issued a restriction in the ban the practice outright because it was well entrenched nightmare. Jurists and organizational could not sanitary converging onMecca, the practice become has a pilgrims the slaughter. Due to the massive number of and administer it in person,orat least be present during sacrifice animal an offer must pilgrim eachrituals, Hajj the unanimously stipulated that at the conclusion of Shari’a the changing circumstances. Classical schools of for reasonsthat have to do with problems caused by Shari’a law. direnecessity allows the jurist to amend principle of topilgrims. Thus, the that isharmful congestion of is the issue pilgrims restriction on the number of necessitates lawamending Shari’a a imposing and (accessed 3 February 2019). (accessed 3February 26 acompanytodothesacrificeontheirbehalf: delegate JordanNuh AliSalman,which to allows the pilgrims of of sacrifice. ritual mufti fatwa Below issued in 2010 by isalegal the former obligatory the fulfilled have they stating certificate a purchase to “encouraged” now are pilgrims sacrifice, a offering of Instead requirements. sacrifice provided it meets certain the pilgrim, of the behalf on do would that organization an to ritual The secondcase relates also imposing restrictions The It is clear fromthe text quoted above that what The fatwa The is posted on
30 MOURAD, Suleiman A.. Islamic Shari’a Law, History and Modernity: Some Reflections. Revista de Direito Internacional, Brasília, v. 15, n. 3, 2018 p.24-31 Wf38EX1yVaw> 2019). (accessed on3February 27 seems therefore proposal a political statement an and Essebsi’s expressed bymany Islamists and of al-Azhar times.realm thaninpremodern condemnation The system is stillinpractice today, albeitlimited to asmaller devising for lawsamending them, this but also for and law,Shari’a anddeveloped a complex system not only the Muslims.for diversityhuge produced a They within Qur’an, but rather finding God’s intent and what is best the not meanblindadherence to the literal dictate of does with the understanding that Islamic Jurisprudence Muslim jurists have operated throughout the centuries lawoccasions toamendShari’a limit its application. and Muslim jurists who have been open in countless modern tendency of with thegeneral agreement in Shari’a law was dynamic. It is also understanding of classical Muslim juriststhroughoutthecenturies whose tendency of with the general seems to be in agreement would make inheritance equal between men and women an amendment propose to thelawShari’a in Tunisia that 4. C andpriorities. concerns according tomodern law,the extent and to whichIslamic law operatestoday jurists to amend the modern shows the willingness of to Islamic law.amend anystipulation pertaining This give Shari’a, jurists power the modern to objectives of public welfare and direnecessity, andgiven the noble h ntaieo the Tunisian president Essebsi to initiativeThe of In this fatwa aswell, it is evident that the notions of Posted on 31 MOURAD, Suleiman A.. Islamic Shari’a Law, History and Modernity: Some Reflections. Revista de Direito Internacional, Brasília, v. 15, n. 3, 2018 p.24-31 Para publicar na Revista de Direito Internacional, acesse o endereço eletrônico www.rdi.uniceub.br ou www.brazilianjournal.org. Observe as normas de publicação, para facilitar e agilizar o trabalho de edição. Reproduced with permission of copyright owner. Further reproduction prohibited without permission.