ruSTIC£ FOR ALL: A CALL TO REOPEN THE GATES OF IJTIHAD

By

Hoda Elshishtawy

Submitted to the

Faculty of the School of International Service

of American University

in Partial Fulfillment of

the Requirements for the Degree of

Master of Arts

In

Ethics, Peace and Global Affairs

Chair:

S. Ayse Kadayifici-Orellana

Abdul-Aziz Said

Dean of School oflntemational Service

Date

2010

American University

Washington, D.C. 20016 UMI Number: 1484560

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by

HODA ELSHISHTAWY

2010

ALL RIGHTS RESERVED JUSTICE FOR ALL: A CALL TO REOPEN THE GATES OF IJTIHAD

BY

Hoda Elshishtawy

ABSTRACT

This thesis examines the need to revisit ijtihad (critical and interpretive reading of Islamic law and religious texts) in order to effectively deal with contemporary dilemmas and challenges to globalization. Contemporarily, Muslim majority countries are facing conflict, ethical dilemmas towards war, peace and conflict resolution as well as pluralism within political, social and economic participation. In order to successfully quell opposition to the idea of Islam being incompatible with modernity, the use of ijtihad is imperative. Through the utilization of ijtihad, democratic principles, human rights, justice and pluralism already inherent within the religion may prevail, establishing conditions for positive peace. The positive ethical implications of this paradigmatic shift towards the reuse of ijtihad are outstanding compared to the continued clamp on ijtihad and perpetuation of the status quo. This thesis argues the contemporary relevance, and indeed sincere need for the gates of ijtihad to reopen.

11 TABLE OF CONTENTS

ABSTRACT...... ii

INTRODUCTION ...... 1

Chapter

1. SCHOOLS OF THOUGHT AND THE CLOSING OF THE GATES OF IJTIHAD ...... 9 2. DEMOCRACY, SHURA AND PLURALISM ...... 29 3. THE ROLE AND STATUS OF WOMEN IN SOCIETY ...... 55 4. JUSTICE AND HUMAN RIGHTS ...... 72

ETHICAL IMPLICATIONS OF THE USE OF IJTIHAD AND CONCLUSION ...... 98

BIBLIOGRAPHY ...... 107

111 INTRODUCTION

"God will send this [Muslim] community, every hundred years, someone/some people who will renew its religion. " - Hadith ofthe Prophet Muhammad1

The claim that the "gates ofijtihad" have been closed since the 14th century have stemmed largely within the Sunni sect of Islam due mainly to political reasons; and this claim, and subsequent belief by the masses, has impeded the permeation of the use of ijtihad, a God-given tool inherent within the religion to exercise human moral will and logic. The idea behind ijtihad is that independent human reasoning, or legal judgment, by a person qualified to do so (known as a mujtahid) is legitimate, and even encouraged, within Islam as long as the judgment does not explicitly contradict the Qur' an. Ijtihad literally means "maximum effort," and in the juristic applicability, it refers to the exercise of independent human reasoning to "elaborate and explain juristic principles from the sources of Islamic law on issues that have not been discussed clearly in the Qur'anic text."2 It is important to note here that there are strict measures in place for Muslim scholars to follow and set the conditions for a legitimate practice and implementation of ijtihad; these conditions are set in place for a reason, and will be explained in further detail later as I reveal the qualifications for a proper mujtahid. As I reveal the historical context in which ''the closing of the gates of ijtihad," as it became known, occurred, one

1 Prophetic Hadith

2 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), xxiii. 1 2 can see this denial of human reason has been a detriment to the growth of Islamic ideals in a modem world.

Within the field of Ethics, Peace and Global Affairs, in fact within any international relations field, ijtihad is extremely relevant. The difficult ethical dilemmas faced in domestic politics, international affairs (especially within peace and conflict resolution), and the dynamics of war and the idea of the other can all be expressed and approached using ijtihad. The very foundation of a program such as the Masters of Arts in Ethics, Peace and Global Affairs at American University is on the "intersection of the international peace and conflict resolution idea of 'positive peace' and contemporary ethical theory."3 Those two factors in addition with a focus on justice show a clear relevance to the need for reopening the gates of ijtihad so that the guidelines for positive peace can be established in the Muslim World. Similarly, regardless ofbeing Muslim or not, every group, regional actor or superpower faces ethical dilemmas in their day to day activities; as such, a tool like ijtihad can be implemented to change ethical dilemmas to solutions based on ethical understandings.

The controversial theme of ijtihad throughout Islamic history has been used as a tool by both religious scholars, known as the uluma', and political leaders. Throughout the course of this paper, I will examine the extreme imperative for Muslims to once again delve into the logical thinking and interpreting of the Sharia in order to connect the contemporary world, with all its progress and setbacks, with Islamic values and

3 American University Handbook 3 principles.4 I will outline the guidelines to attaining such the mujtahid position within the religion; moreover, as the world increasingly faces globalization, especially in regions where globalization may seem as cultural and religious imperialism, I argue that inherently within the foundations of Islam, God has provided humanity with the skill set and critical thinking tools to be able to come to a well founded interpretation of Islamic laws. Moreover, what was enacted and practiced by the Prophet and his Companions during their time, surrounded by the tribal Arabian society, should enlighten Muslims in any time and place; however, the historical context surrounding their actions should also be noted and it should be realized that blindly implementing and repeating those practices in our contemporary society can be destructive. My argument stems from the absolute need to create a comity between Islam and the rest of the world so that there can be mutual understanding and learning from one another. As God reveals in the Qur'an,

"among His Signs, is the creation of the heavens and the earth, and the variations in your languages and your colors."5 Through the utilization of ijtihad, religious, political and economic pluralism can flourish and be once again reconciled with the Sharia.

I will explore the historical context and beginnings of ijtihad within Islam as well as the different practices of ijtihad created by the split of Sunni and Shia Islam. Although there are fundamental commonalities (which will be further explored in future sections), there are indeed present differences that govern the Islamic practice of ijtihad within the

4 It should be noted that Sharia refers to the body oflslamic laws relating topics from how to worship to the dealings with other people. Sharia is a comprehensive body of laws, and although those laws are set, the interpretation and implementation of them are up for change within the realm of human reason and logic.

5 Surah Ar-Rum {The Romans) 30:22 4 two sects. With the foundation of the historical context in which ijtihad was employed and the subsequent closure of the instrument, I will then explain the social change which can successfully come about by once again implementing ijtihad throughout the Muslim world at large. Indeed, relying on the Prophet Muhammad's saying that "[my] community will never agree upon an error," one can posit ijtihad, and the valid consensus of that reasoning, can truly bring about an updated or reformed Sharia implementation and understanding. 6

In essence, through the use of ijtihad, the Muslim community, or ummah, will be renewed, as the Prophet stated in his Hadith above, and guided by Islamic thinkers and scholars; it is important to note that with this renewal, sources, principles and the fundamentals of Islam will not and cannot change. The primary sources within Islamic thought and tradition stem from the Qur'an first and foremost, the Sunnah (the acts of the

Prophet Muhammad) and then the Hadith (which are the sayings of the Prophet), and as these primary sources remain the same and never waiver, the interpretation may differ as humanity progresses through changing times. The Arabic word for renewal in Islam is tajdid ad-din (renewal of the religion), and in conjunction with realizing historical contexts to understanding sources within the religion, had been "essential to the Islamic tradition and has been so since its early days."7 According to Ramadan, the imperative need for tajdid through ijtihad comes from the need to promote "a critical reading of texts when they [were] open to interpretation, when the texts [were] silent about a particular

6 Prophetic Hadith.

7 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press, 2009), 14. 5 situation, or when the context imperatively needed to be taken into account in the implementation of texts."8 Indeed utilizing ijtihad is not a novel idea, nor is the fervent effort to reestablish the use of this important tool; for example, "Caliph Umar did not enforce the fixed penalty of theft in a case when he realized that the essential needs of life had not been secured for [the defendant] by those who were responsible for him. In fact, the Caliph suspended the penalty for theft during the years of famine, since all the people were under pressure of necessity at the time. "9 In order to secure social justice, Caliph

Umar had suspended the consequences of theft due to the large-scale famine his empire was facing.

And while some scholars do indeed call for the practice and implementation of ijtihad within Islamic discourse, others oppose the reopening of the gates of ijtihad due to the concerns of innovation (bid'ah in Arabic) by people who are not qualified to practice ijtihad (religious innovations are completely against the tenets of Islam). Another reason the "gates of ijtihad" were deemed to be closed was because "it was considered that every conceivable contingency had been covered and the Sharia was therefore complete, with no areas of ambiguity remaining. Secondly, the learned men were under constant pressure to give legal rulings in accordance with the wishes of the ruler, the caliph, sultan or amir."10 Moreover, others call for an outright prohibition on ijtihad "out of fear of excess of because of excessive admiration for the works of the first great scholars who founded

8 Ibid. 22.

9 Mohamed Fathi Osman, Sharia in Contemporary Society: The Dynamics ofChange in the Islamic Law (Los Angeles, CA: Multimedia Vera International, 1994), 33.

10 Charles Le Gai Eaton, Islam and the Destiny ofMan (Albany, NY: George Allen & Unwin, 1985), 169. 6 the legal schools; others even [go] so far as to deny its legitimacy in the name of a rigid literalist reading."ll

However, by establishing the conditions set forth to abide by the guidelines of becoming a mujtahid, the use of ijtihad can truly play a critical role in adapting the 21st century with Islamic values and principles. In fact, the Prophet Muhammad himself warned Muslims of bid'ah when he said, "he who innovates things in [our religion] for which there is no valid reason, commits sin and these are to be rejected."12 Other opposition by those who fear the use of ijtihad are political rulers; indeed it was the backing of political rulers in the 1Oth century who officially "closed the gates of ijtihad" and practiced Islam in a way that simply imitated prior rulings and judgments on certain situations. 13 Nevertheless, although the opposition has valid fears when it comes to innovations, they must remember the Hadith of the Prophet in which he stated, "[my] community will never agree upon an et:ror;" thus declaring his faith in the Muslim community when interpreting and implementing Sharia law. With this Hadith, along with the need to develop rules and regulations for specific times, it is the duty of Muslims to practice ijtihad whenever possible to respond to emerging contemporary needs while observing permanent divine laws.

11 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press, 2009), 25.

12 Hadith translated by Sahib Muslim, Book 018: The Book Pertaining to Judicial Decisions, Hadith Number 4266.

13 The imitation of prior rulings and judgments is known in Arabic as taqlid. 7

Methodology

The methodology employed throughout this paper is one of intense research and critical analysis of religious and secular scholars in the field of Islam, ethics, philosophy and peace and conflict resolution. I chose to utilize historical and religious texts from the first established Muslim community in Medina to current studies of the analysis of Islam and modernity. The numerous sources I have chosen to include in my research are based on a myriad of factors. Firstly, all of the scholars in their respective fields are heralded as experts on their specific topics; furthermore, a textual analysis of their works was undertaken to strengthen the foundation ofthis paper. The qualitative analysis of the texts helped to understand and explore the notion of revisiting ijtihad in Islam.

I analyzed the varied relationships between Islamic and Western notions of democracy, as well as the ethical implications of utilizing ijtihad contemporarily to establish modem solutions to modem problems. I chose to employ the qualitative method of analysis in order to textually analyze the cultural, religious, political and social implications of ijtihad.

The following sections will highlight specific contemporary issues where utilizing ijtihad, within ethical frameworks, can create an environment for conditions of social, economic and political justice. I chose to look specifically at democracy, women's rights and justice and human rights because in an era where the role of democracy is being promoted and viewed with suspicion in regional areas in the world, where women are suppressed unjustly in the name of religion, and where justice and human rights are 8 words that students of idealism speak of, it is imperative for a tool like ijtihad to be released from its closed gates and help create an atmosphere for positive peace. The struggles, norms and preservations of the negative status quo that currently exist need to be broken, and through the use of ijtihad, I argue that humanity can usher in a new era where societies promote egalitarianism, pluralism and justice for all. CHAPTER 1

SCHOOLS OF THOUGHT AND THE CLOSING OF THE GATES OF IJTIHAD

"But they say: 'Behold, we found our forefathers agreed on what to believe, and verily, it is in their footsteps that we find our guidance. 'And thus it is: whenever We sent before your time a warner to any community, those ofits people who had lost themselves entirely in the pursuit ofpleasures would always say: 'Behold, we found our forefathers agreed on what to believe, and, verily, it is but in their footsteps that we follow. (Whereupon a Prophet would) Say: 'Why? Even though I bring you guidance better than that which your forefathers believed in ... ? "14

This chapter will focus on the history and historical context of ijtihad within

Islam. Some argue, as the Verse above presents, that the tajdid of Islam is unnecessary because the guidance of forefathers and previous generations is enough to hold on to.

However, as the evidence I will present in this chapter will show, tajdid has been an ongoing process since even the time of the Prophet; moreover, I will show tajdid through ijtihad is ultimately necessary to growth of Islam.

The story of Mu'ad ibn Jabal, presents the Prophet Muhammad preparing Jabal, who was a judge being sent to Yemen, determining his knowledge for his mission. "The

Prophet asked [Jabal]: 'According to what will you judge?' He answered: 'According to the Book of God.' 'And if you fmd nothing?' the Prophet asked. 'According to the tradition [Sunnah] of God's Prophet.' 'And if you find nothing?' 'Then, I shall exert

14 Surah Az-Zukhruf(The Gold Adornments) 43:22-24 9 10

[ajtahidu] myself to my utmost to formulate my own judgment,' Jabal answered. " 15 This

oft-told story bears many facets into the calling for ijtihad. The first two questions posed

by the Prophet show the explicit call for using the Qur' an and Sunnah as the first two

sources of legitimate texts for finding a solution in any given situation. The third question

poses an interesting dilemma, which the Prophet seems to think will inevitably present

itself, in that the new environment that Jabal will confront will necessarily have different

cultural, historical, geographical and legal settings. Because the context surrounding

Jabal's judicial mission will be different, he will be required to "produce a reflection, an

extrapolation effort, reasoned and reasonable ijtihad, to remain faithful to Islamic

prescriptions."16 This story shows clearly that within Islamic tradition, ijtihad has been

utilized from even within the lifetime of the Prophet. After the death of the Prophet, and the end of ruling by the four Rightly Guided Caliphs, legal scholars sought to codify

Sharia based on different classical approaches; through this codification of law, the five

schools of thought are inherently based on their use of ijtihad.17

15 Ralph Salmi, Cesar Adib Majul and George Tanham, Islam and Conflict Resolution: Theories and Practices (Lanham, Maryland: University Press of America, 1998), 53. The word ajtahidu stems from the root wordjahada, which means to exert oneself or to strive. Jihad and ijtihad also stem from the rootjahada as well.

16 Ibid. 24-25.

17 The four Rightly Guided Caliphs were composed of the Prophet's companions and closest confidants. The first four Caliphs in order of rule were Abu-Bakr, Umar ibn-al Khattab, Uthman ibn Affan and Ali ibn abi Talib. 11

SSCHOOLSOFLEGALTHOUGHT

According to Osman, the very goal of Sharia, which Muslim jurists codified, was to secure and develop ''the human personality in five main areas: life, family, mind, faith and property."18 Different jurists have applied their chosen techniques to develop jurisprudence; some of these techniques include, qiyas, preference in case of alternate analogies (istihsan), consideration of an allowed general benefit (maslaha) and the principle that everything is initially permitted until it is forbidden by the Qur'an or

Sunnah (ibaha asliyya)!9

The four main jurists within Sunni Islam each utilized different classical approaches in order to derive to their conclusions on a particular matter; first and foremost however, they always relied on the Qur'an and the Sunnah when approaching a matter, and when those two sources were deficient in the specific context presented to them, they utilized variations of ijtihad. The fifth school of legal thought belongs to the

Shia sect of Islam and is the Jaafari School, named after Ja'far as-Sadiq, the 6th Shia

Imam. It should be noted that Muslims may choose any school of thought to follow; however, generally speaking, the geographical backgrounds of a person usually tend to define what school they follow. A saying by a Muslim scholar as retold by Osman once stated, "I consider my view as the right one which may be proven wrong, while other

18 Mohamed Fathi Osman, Sharia in Contemporary Society: The Dynamics ofChange in the Islamic Law (Los Angeles, CA: Multimedia Vera International, 1994), 16.

19 Ibid., 37. Interestingly enough, the ethical foundations of J.S. Mill's and Jeremy Bentham's utilitarianism is found in the idea of maslaha, whereby taking the general good into account as a premise for ijtihad is one of the classical approaches to jurisprudence. 12 vtews are for me the wrong ones which may be proven right;" thus portraying the different attitudes in establishing jurisprudence.20 Additionally, none of the legal decisions passed by these jurists is binding on any Muslim; therefore it is not uncommon for Muslims "to switch their allegiance from one school to another at their pleasure, and there was nothing expressly prohibiting a Muslim from accepting Maliki doctrine on some issues and Hanafi doctrine on others."21

Imam Muhammad ibn ldris ash-Shafii

Imam Shafii is the founder of the Shafii school of thought; according to Karen

Armstrong, Imam Shafi'i "revolutionized the study of fiqh (Islamic jurisprudence) by laying down the principles of Islamic law.22 Followers of the Shafii school of thought tend to reside in East Africa, southern Arabia and Southeast Asia. 23

Although Imam Shafii believed that, to some degree, ijtihad was necessary, he confined the rules of engagement of Islamic jurisprudence to four "roots of sacred law. "24

These roots that governed where Sharia is established are: the Qur'an, the Sunnah, qiyas

(strict analogy between one of the Prophet's customs and contemporary practice), and

20 Ibid. 30.

21 Reza Asian, No god but God: The Origins, Evolution and Future of/slam (NY, NY: Random House Publishing: 2005), 167.

22 Karen Armstrong, Islam: A Short History (NY, NY: Random House: 2002), 20 I.

23 John Esposito, Islam: The Straight Path (NY, NY: Oxford University Press: 2005), 85.

24 Karen Armstrong, Islam: A Short History (NY, NY: Random House: 2002), 60. 13

ijma ' (the consensus of a community). 25 This transformation of authority from individual

law to the consensus of the community was based on his interpretation that ijtihad was not necessary if a community could agree on a valid ruling as well as using "deductive reasoning to seek a similar or analogous situation in the Qur'an or Sunnah, from which

[they] were to derive a new regulation."26 In this sense, Imam Shafii became one of the first imams to realize the potential for the use of personal interpretation where no explicit text had been revealed before; essentially, he uses qiyas as a general term for ijtihad in that logical interpretation must still take place in order for the jurisprudence to be valid. It

should be noted that within the consensus of the "community," Shafii regards the community as being legal scholars and/or the uluma' who can put their expertise to use on behalf of the entire ummah.

Muslims are to respond intellectually to the continuously changing circumstances and emerging needs and problems of different societies and times; thus Imam Shafii employed what he thought was rational based on different factors. Imam Shafii himself was known to have changed his own views "and even rewrote his own books after he moved from Abbasid Iraq to Fatimid Egypt."27 Consequently, sometimes he had different rulings on similar subjects simply based on the geographical, social and political context surrounding his case. For example, "Imam Shafii gave a certain legal opinion in

25 Ibid. 60. It should be noted that ijma' is based on the Hadith that "[my] community will never agree upon an error." Essentially, if a rule was accepted by the ummah, then it must be recognized as authentic even though it might not be explicitly stated in the Qur'an or Sunnah.

26 John Esposito, Islam: The Straight Path (NY, NY: Oxford University Press: 2005), 78.

27 Mohamed Fathi Osman, Sharia in Contemporary Society: The Dynamics ofChange in the Islamic Law (Los Angeles, CA: Multimedia Vera International, 1994), 43. 14

Baghdad. One Year later he moved to Cairo, and in response to the same question he gave a very different opinion. Someone questioned him, 'Oh Imam, last year in Baghdad you gave a different answer,' and he replied, 'that was in Baghdad and this is in Cairo.

That was last year and this is now."' 28

Imam Shafii had ultimately codified the four roots of jurisprudence, and while he focused on the Sunnah as being one of the most important aspects of the Sharia, he tended to rely lastly on the importance of ijtihad. Esposito posits ''the ultimate effect of the acceptance of Shafii's formulation of the four sources of law, with its tendency to deny independent interpretation and derive all laws directly from revelation, the inspired practice of Muhammad or the infallible consensus of the community, was the gradual replacement of the real by the ideal."29 Essentially, he argues that Shafii relies on the importance of the four roots so much that the historical background of the development of the law was forgotten. Although I agree with Esposito's argument, I would say that the four roots tend to narrow Shafii' s process when he was in Baghdad. After Shafii moved to Cairo, he realized contextual differences are important and key to making any ruling; therefore, he even went so far as to revise some of his old works and eventually agreed that in certain instances, ijtihad is necessary in conjunction with the other four key aspects of creating jurisprudence.

28 David Smock, "Ijtihad: Reinterpreting Islamic Principles for the Twenty-First Century," United States Institute ofPeace Special Report 125 (August 2004), 2.

29 John Esposito, Islam: The Straight Path (NY, NY: Oxford University Press: 2005), 83. 15

Imam Abu Hanifa

Imam Hanifa is the founder of the Hanafi school of thought within traditional

Sunni Islam. Although Imam Shafii may have come to this conclusion much later, Imam

Hanifa "was mainly involved in legal work that the location itself made necessary: far away from Mecca and Medina, new solutions to new challenges had to be found. "30 The

Hanafi school of thought is the largest and most diverse "legal traditionwith regard to breadth of interpretation. "31

Imam Hanifa was more of a constructionist as his legal writings and interests were based on the knowledge that new situations, environments, interests and cultures must be taken into account. Along with the Qur'an and Sunnah, he emphasizes the importance of the principle of maslaha in that his reality was based on the dealings of the interests of people. Taking the public interest and consideration into account was clear for

Imam Hanifa as he was constantly immersed in trade and therefore, naturally, required him to acknowledge the human and social context in regards to the primary sources of

Sharia. Imam Hanifa sought to include local law into his rulings as much as possible. 32

Unlike Imam Shafii, Imam Hanifa did not write any of his own thoughts or methodologies; the records we have of Imam Hanifa are from his disciples who recorded

30 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press, 2009), 50.

31 Reza Asian, No god but God: The Origins, Evolution and Future of/slam (NY, NY: Random House Publishing: 2005), 166.

32 Seyyed Hossein Nasr, The Heart of/slam: Enduring Values for Humanity (NY, NY: Harper Collins Publishing: 2002), 68. 16 his work, and Hanifa subsequently reviewed and affirmed them. 33 Imam Hanifa implemented a more inductive reasoning approach to jurisprudence, according to

Ramadan, which set forth a general framework in which jurists can work from. He had been faced with sharp criticism in that he was "accused of neglecting the Sunnah in favor of analogical reasoning and of making immoderate use of his own opinion when determining legal preference."34 However, those harsh criticisms seem to be unfair due to the high importance he puts on even the sayings of the Prophet's Companions; it must be noted nevertheless, that many of the Muslim jurists were faced with harsh criticisms while applying law.

The main question followers of his school of thought had to face was that of his legal output, which so closely emulated reality, and its integration with juridical methodology. To answer that question, Hanifa approached Islamic texts by reconstructing a framework from the scholars' conclusions and legal opinions; essentially, inducing the scholar's opinions to infer and explain the textual readings-the stark opposite of what

Imam Shafii had done. In contrast to Imam Shafii's four roots of jurisprudence, Imam

Hanifa had seven: the Qur'an, the Sunnah, the sayings of the Companions of the Prophet, ijma', qiyas, muslaha (legal preference) and al 'urf, which is the already established local custom. To Imam Hanifa, muslaha, or istihsan, sought to create a less restrictive analogical reading and reasoning behind the objectives of the Qur'an in order to "protect

33 1bid. 51.

34 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press, 2009), 53. 17 people's integrity and belongings while making their lives easier."35 Inherently, the idea behind istihsan was to take the legal scholar back to the initial reasoning behind the cause of the text itself. Within ijma', Hanifa definitely defines the community as one of scholars, and more specifically, the Companions, whom he deems to be of the first to actually apply ijtihad. 36 He places emphasis on the Companions because he tries to

"extend the first community of believers as to faithfully implementing rulings, keeping to the spirit of the texts (to make life easier for human beings) and giving pragmatic answers," to problems faced during his time?7

Abu Hanifa sought to provide rulings based on a more inductive, rather than

Shafii-based deductive foundation. He stressed the importance of integrating local laws and customs into his rulings, which gave these rulings a context surrounded by specific times and backgrounds. By adding three more "roots" to codifying jurisprudence, Abu

Hanifa expanded even further the framework in which jurists can work within.

Imam Malik ibn Anas and Imam Ahmad ibn Hanbal

Imam Malik was the founder of the Maliki school of thought in traditional Sunni

Islam and was an ardent supporter of basing Islamic law on the Prophetic traditions and the consensus of the community from which the Prophet emerged, Medina. Imam Malik

35 Ibid., 56.

36 1bid. 56.

37 1bid. 57. 18 wrote the first compendium on Islamic law and epitomized his view on the importance of basing said law on the Prophet and the consensus of the Median community. Where jurists such as Imam Hanifa would find differences in legal rulings, he would rely on jurist opinion and local law; Imam Malik on the other hand would rely on what the consensus of the Median community did. His treatises were heavily based on Qur'anic citations as well as Prophetic traditions. 38

Imam Malik established very early on, that when no ''text is available (when searching for a solution to a problem) [a scholar is required] to produce laws in line with the extension and logic of scriptural sources: such an undertaking is impossible without previously extracting the implicit or explicit intents in reference to texts."39 Essentially,

Imam Malik required scholars in his school of thought to constantly go back and research the cause, intent and objective surrounding a previous legal ruling. This is all done in order to justify, prohibit or allow any new statement oflegal opinion set forth through the

Maliki school of thought. This paradigmatic shift from relying on consensus or analogy, to simply reverting back to the reasons surrounding the original legal opinion is what sets the Maliki school of thought apart from the other schools. Imam Malik "synthesized the fundamentals of the thought and practices around Caliph Umar in his seminal work 'al-

Muwatta" and implemented Qur'anic rulings while constantly taking into account--in

38 John Esposito, Islam: The Straight Path (NY, NY: Oxford University Press: 2005), 77.

39 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press, 2009), 59. 19 social affairs-the texts' objectives as well as people's interests."40 Inherently with any type of work Imam Malik strove to produce, he always went back to the surrounding reasons of the original legal ruling in order to determine why the outcome was set the way it was; I posit that Malik took this route in formulating his religious rulings so that he could avoid critics who accused the jurists of his time of innovations and/or relying too much on interpretation and not enough emphasis on the original rulings of the first communities of Islam. Imam Malik was once noted as saying, ''this religion is a science, so pay close attention to those from whom you learn it.'.41

Imam Hanbal on the other hand, as the founder of the Hanbali school of thought, was a pupil of Imam Shafii and leader of the most traditionalist of the legal schools.

According to Asian, he argues that the Hanbali school of thought is ''unquestionably the most influential of all the Islamic schools of thought," and this idea is backed by the

Hanabli creed which states that God must "be the progenitor of 'the good and evil, of the little and the much, of what is outward and what is inward, of what is sweet and what is bitter, of what is liked and what is disliked, of what is fme and what is bad, of what is first and what is last. "'42

Imam Hanbal was engaged in a serious battle of religious discourse with the

Caliph of his time, Caliph Ma'mun. During this time, a debate was raging on whether the

Qur'an was created or uncreated by an extension and virtue of God. Hanbal was a fierce

40 Ibid. 64.

41 Reza Asian, No god but God: The Origins, Evolution and Future of/slam (NY, NY: Random House Publishing: 2005), 144.

42 Ibid. 154. 20 advocate of the school of thought that the Qur'an was uncreated and he never questioned . "the need for a contextualized legal reading: essentially, what he opposed was the elaboration of dogmatism and of a theologico-philosophical theory that tended to acknowledge only human reason as its ultimate reference."43 Inherently, the debate basically surrounded the idea of interpretation and whether or not human reason needed to determine the limits of and nature of the revealed text. The Caliph posed the question to Muslim jurists as: "is the Qur'an created by God, or is it uncreated and coetemal with

God?'M Because Hanbal was a strict traditionalist, he never wavered in his belief that the

Qur'an was uncreated and indeed one with God. The classical rationalist schools of thought, whether in Sunni or Shia Islam, tend to follow the idea that the Qur'an is indeed created and that because the Word of God come from God Himself, then the Word is not

God.

Ja 'far as-Sadiq

Imam Ja'far, the sixth Imam revered in the Shia sect of Islam founded the Shia school of legal thought. As one of the most influential imamates in Shia Islam, he formalized "the Karbala rituals and established the principles of Shiism's main school of law." The Jafari school, "differentiates itself from Sunni schools of law, first by

43 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press, 2009), 324.

44 Reza Asian, No god but God: The Origins, Evolution and Future ofIslam (NY, NY: Random House Publishing: 2005), 140. 21 recognizing a different set of Hadith, which include stories of the Imams as well as of

Muhammad, and second by vigorously employing ijtihad, as one of the primary sources of Shiite jurisprudence." 45 Eventually, the Jafari school, according to Armstrong, urged its followers to withdraw from politics and focus primarily on spirituality and contemplation of the Qur'an.46

The Jafari school of thought has maintained a rejection of qiyas and ijma' due to their belief that the Imam is the only qualified being that has authority to interpret law. In the absence of the Imam, Jafaris implement mujtahids, or those qualified to enact ijtihad; through this reasoning, the "gates of ijtihad" have never been closed within Shia Islam.

The consensus of the mujtahids (similar to the consensus of the uluma' in Sunni Islam) is what guides the community and binds them to religious law in the absence of the Imam.

According to Esposito, a divide within two of Shia Islam's schools, the Akbaris and the

Usulis, occurred in the eighteenth century when the question of religious authority arose and people began to ask whether or not the sacred texts were sufficient and if there was still a need for jurist interpretation of the law.47 The Akbaris took a more traditional approach and maintained that the texts were sufficient and there was no need for more interpretation of laws; concurrently, the Usulis defended the right of mujtahids to interpret the law. In the end, the Usuli school prevailed and ijtihad continued to flourish under Shia Islam.

45 Ibid. 184.

46 Karen Armstrong, Islam: A Short History (NY, NY: Random House: 2002), 197.

47 John Esposito, Islam: The Straight Path (NY, NY: Oxford University Press: 2005), 85. 22

The Qualifications ofa Mujtahid

The basic role of mujtahids in Islam "is to explain and articulate the law of God in a particular situation. The mujtahid takes on the considerable responsibility of explaining the will of God to individuals and communities.'.48 Essentially, the mujtahid must acquire years of experience and expertise in studying jurisprudence, the fundamentals of jurisprudence, Hadith, the biographies of the Hadith narrators, commentary on the

Qur'an, Arabic grammar and eloquence and logic, as well as contemporary knowledge on philosophy, economics, and sociology, according to Imam Hassan Qazwini, the director of the Islamic Center of America.49

Mujtahids under both sects of Islam must be publicly acknowledged for their piety, knowledge, wisdom, justice and learning and therefore gave them the authority and authenticity to have others emulate their rulings. Currently, there are many mujtahids within the Shia sect of Islam (due to the practice remaining open and free throughout the times), and so only those who have attained the highest level of being a mujtahid, which is the title of Ayatollah in Shia Islam, are allowed to practice ijtihad and have their decisions binding on their followers. 50

48 David Smock, "Ijtihad: Reinterpreting Islamic Principles for the Twenty-First Century," United States Institute ofPeace Special Report 125 (August 2004), 4.

49 Ibid.

50 Reza Asian, No god but God: The Origins, Evolution and Future ofIslam (NY, NY: Random House Publishing: 2005), 185. 23

Currently however, there are some roadblocks to amplifying mujtahids in the

Muslim realm both in the traditional Muslim world as well as the West, and those roadblocks are that ''while most Muslim jurists are well versed in the classical sources, many of them do not use the tools of linguistics, logic and semantics in their interpretations. Moreover, Muslim societies tend to lack the freedom required for scholars to locate information resources and to freely debate issues, with constraints imposed not only by political authorities but also by religious establishments."51

Essentially, the problems faced by the Muslim jurists who strove to create their schools of law and thought by the political and religious establishment, are now recreating the same roadblocks for Muslims to merge Islamic principles and values with the twenty-first century.

Criticisms against /jtihad

Roadblocks and arguments against the use of ijtihad are not only coming from within the Muslim community, but from the outside as well. As Coulson describes below, there is the prevalent thought that ijtihad is simply a mechanism for Muslim jurists to continue to rule on matters to appease and continue the status quo.

51 David Smock, "Ijtihad: Reinterpreting Islamic Principles for the Twenty-First Century," United States Institute ofPeace Special Report 125 (August 2004), 4. 24

The so-called modem "ijtihad" amount to little more than forcing from the divine texts that particular interpretation which agrees with preconceived standards subjectively determined ... in sum, it appears that modem (Muslim) jurisprudence has not yet evolved any systematic approach ... Lacking any consistency of principle of methodology, it has tackled the process of reform as a whole in a spirit of juristic opportunism. Furthermore, many of the substantive reforms must appear, on long term 2 view, as temporary expedients and piecemeal accommodations. 5

Coulson, in particular, seems to react negatively to the "lacking of any consistency of principle methodology." In contrast to that idea, I have shown through the five major jurists within Islam that indeed a serious consideration of methodology when pertaining to jurisprudence was indeed emphasized and regarded as imperative to the juristic process. Not only was there (rightfully) no complete agreement on a methodology, but I would go so far as to argue that because the consensus was not unanimous on how to go about approaching jurisprudence through one specific methodology, there was room for jurists to implement creative ways in going about the process. With ijtihad, in conjunction with the processes left behind by the jurists' schools of thoughts, we are now able to pick and choose, along with using the Qur'an and Sunnah as a foundation of law and principles, how to go about reforming and creating new ways of dealing with a myriad of contemporary issues. Coulson is reacting to what he sees as a modem issue of having religion and state coexist; the problem with that mentality is although some modem Muslim jurists may find the applicability in having the two coexist, there is no theological decree that the two must coexist within a state. In fact,

Muslim jurists today are attempting to find ways to allow the state to work within the

52 Noel Coulson, A History ofIslamic Law (New York: Van Nostrand, 1966), 75. 25 modem realist political world order while maintaining Islamic values and principles, without having to stress the state needing to be within a caliphate system.

Another criticism of ijtihad, from within the Muslim community is that ijtihad

"has never been considered a free interpretation of texts, open to the critical elaboration of individuals with no knowledge of Islamic sciences nor of the conventions and norms that text specialists and their procedures are bound to follow." 53 The criticism here is that some Muslims today, in self-appointed "progressive" Muslim circles argue that Islamic reformation will never truly occur until every Muslim is allowed to conduct ijtihad. The analogy I would pose here is that in the medical world; to parallel these two ideas, according to these "progressives," that means to create a medical reformation, anyone who has ever dabbled in medicine (from the person with the slightest knowledge to the person with years of experience and knowledge), can pass judgment on the renewal and reformation of the medicine world. No one would accept medicinal advice, much less take seriously the articles in medical journals that an inexperienced person would offer; the same goes with theology and legal matters. In order for someone to practice ijtihad, they must be qualified, educated and understand the undertaking of such an enormous approach to jurisprudence. Knowledge is respected in Islam as well as throughout the world, and those who seek to attain knowledge in whatever field they choose, is given the pass to exercise their knowledge and their right to ijtihad. Based on the respect of knowledge and the rigorous attainment of it, "[progressives'] intention to 'democratize'

53 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press, 2009), 23. 26

Islamic thought takes on a dangerous aspect of downward leveling that disqualifies the basic conditions associated with the legal understanding of a text and the elaboration of its possible interpretations. "54

Conclusion

The five jurists approached Islamic jurisprudence in their own classical ways ranging from implementing consensus to reverting back to the first community of

Muslims under the rule of the Companions of the Prophet. To conclude briefly, Imam

Shafii utilized four fundamentals when regarding a ruling in which he considered the

Qur'an first, the Sunnah, ijma' and then qiyas. To Imam Shafii, qiyas was most closely related to ijtihad and indeed he regarded it as such. Still trying to remain faithful to the

Qur'an and Prophetic traditions in the Sunnah as the most important texts to rely on,

Imam Hanifa added three more fundamentals to Imam Shafii' s list when considering

Islamic law. Imam Hanifa's list grew with the additions of the sayings of the

Companions, istihsan and urf (local custom). Imam Hanifa established the importance of local custom as well as the social and human context when adding istihsan and urf.

Concurrently, Imam Hanbal was one of the very few jurists who argued that the Qur'an was uncreated and that reasoning had an impact on his juristic style. Imam Hanbal was a traditionalist who called for a close and strict literal interpretation of the Qur'an and

54 Ibid. 27

Hadith, "he was known more as a traditionalist rather than a jurist [and] restricted ijtihad and made very little use of qiyas."55 Imam Malik resorted to the practices of the Four

Rightly Guided Caliphs after he did not find appropriate text in the Qur'an or Surma; he stressed the importance of looking to the first community of Muslims after the Prophet's death when searching for a ruling which did not have adequate text. Looking to that initial Muslim community put value on the consensus roots of jurisprudence and gave way to his acceptance of placing importance on the general good of the community.

Imam Jafari, who codified the Shia school of thought added another dimension to approaching jurisprudence which were the sayings and actions of Ali (the Prophet's son- in-law and last Right Guided Caliph) and the subsequent line of imamates.

In sum, the brief history of the practices of ijtihad during the time of the life of the

Prophet as well as after his death, has presented a clear picture as to the different employments of critical thinking within Islamic jurisprudence. It is important to have a history of how the major schools of thought came about as well as the basis to which the major jurists derived their rulings from. As the four jurists within Sunni Islam make their rulings, it must be noted that those rulings are not theologically bound on Muslims, and may once again be changed to fit the circumstances of the modem day; concurrently however, the Jafari school in Shia Islam has created a format in which the rulings and decrees of mujtahids are binding on their followers in the absence of the Imam. This however, does not mean that either sect is bound by any previous ruling that may conflict

55 Ralph Salmi, Cesar Adib Majul and George Tanham, Islam and Conflict Resolution: Theories and Practices (Lanham, Maryland: University Press of America, 1998), 55. 28 with modern day issues; this is exactly why it is so extremely important to keep the use of ijtihad open and continue the dialogue on issues where more practical solutions can be found. Unfortunately, it was after the founding of the schools of thought that modern jurists base their claim that they do not have to engage in ijtihad and can simply rely on the methods and rulings employed by those jurists.

From democracy to women and minority rights within a state, the proceeding chapters will illustrate how the use of ijtihad can ultimately be the number one factor in engaging Islam and the 21st century. I will present current negative conditions that have resulted from authoritarian leaders manipulating the true essence of ijtihad, while at the same time illustrating positive solutions that are taking effect, not only within the traditional Muslim world, but globally as well. With the background knowledge of the foundations of Islamic thought and different factors to produce reform, the following sections will present case studies on different problems faced in the twenty-first century, that with the implementation of ijtihad, and true Islamic dialogic discourse, we may emerge with the stable conditions ofjustice. CHAPTER2

DEMOCRACY, SHURA AND PLURALISM

"Verily never will Allah change the condition ofa people until they change what zs. zn . t h emse lves ,56

The current general malaise among Muslims throughout the world is impeding the growth of serious advancements politically, socially, economically as well as even within the academic world. Muslims seem to be stagnant after the Islamic Golden Age from the

8th to 13th Centuries; with the use of ijtihad, and specifically the resurgence of democracy in the Muslim World as an effect of ijtihad, Muslims can begin to face ethical dilemmas successfully. Freedoms provided through democracy and social change can come about through the use of ijtihad. In revamping the current systems in place throughout the world, will inherently create conditions for the growth and sustainability of positive peace. There is a cyclical nature of the use of ijtihad, promotion of democracy and establishment of the conditions for positive peace. Through this paradigmatic shift, and specifically with the use of ijtihad in the process, the promotion of democracy, human rights and pluralism can truly be a possible reality.

The Qur'an, as outlined above, does not necessarily proscribe concrete details as to the best system and form of governance. However, the Qur'an does proscribe certain elements as to what a state is obligated to perform on behalf of its citizens. Through the

56 Surah Ar-Raad (Thunder) 13:11. 29 30 use of ijtihad, we can find a contemporary political system in which the benefits andprotections of a government can serve a purposeful use. It is within the modem day political and economic framework that I argue for the importance of democracy; it is imperative here to note that Islam is indeed very compatible with democracy. Islamic traditions have shown the attempt to use democratic systems of governance to determine the will and good of the public through consultation and voting.

Indeed there is a need for human interpretation and the application of the principles set forth in the Qur'an, Sunnah and Hadith in terms of what a state owes its citizens, how it should act and what recourse citizens have when the state fails them. A democratic system can be one of the few viable systems of governance that will apply

Qur'anic principles to the state and citizens. Moreover, "it is at this point of intersection between the divine text and society where we place our argument for an Islamic perspective on democracy, and conclude that it is the best form of political governance for our urban, industrial society and in this time period."57 For all intents and purposes, the democratic system of governance is the most effective in producing social, economic and political justice for the masses. The following section will illustrate the compatibility of a Western notion of democracy and Islam and indeed highlight the use of democratic principles historically.

57 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 55. 31

Western Notions ofDemocracy

According to Bruce Russett and John O'Neal, democracy is defined as citizen participation in voting and elections, the government coming to power in transparent, free and fair elections contested by two or more parties, and where the "executive is either popularly elected (a presidential system) or is held responsible to an elected legislature (a parliamentary system). 58 The key principles of democracy mentioned are what Russett and O'Neal describe as being globally implementable; indeed, "systems sharing the characteristics of 'Western' democracy now exist on every continent."59 Moreover, they claim that these elements of democracy can be the key to the enjoyment of human rights, civil liberties andjustice. Robert Dahl has further elements of democracy which must be present in order for a state to call itself democratic and those include:

1. .Etlective participation - citizens must have adequate and equal opportunities to form their preference and place questions on the public agenda and express reasons tor one outcome over another. 2. Voting equality at the decisive stage - each citizen must be assured his or her judgments will be counted as equal in weights to the judgments of others. 3. Enlightened understanding - citizens must enjoy ample and equal opportunities for discovering and affirming what choice would best serve their interests. 4. Control of the agenda - people must have the opportunity to decide what political matters actually are and what should be brought up for deliberation.

58 Bruce Russett and John O'Neal, Triangulating Peace (NY, NY: W. W. Norton & Company, Inc., 2001), 44.

59 Ibid. 32

5. inclusiveness - equality must extend to all citizens ot the state . .Everyone has a legitimate stake within the political process. 60

In fact, the general pattern found by Russett and O'Neal seem to be that states that are at peace are those with democratic govemments.61 Using ijtihad can certainly bring

Muslim societies in compliance with these key aspects of democracy.

Historically, the end of the "Golden Era" of the four Rightly Guided Caliphs marked the beginning of absolute monarchy by leaders who used military power and the uluma' to justify their claims to authority. Rulers after the Rightly Guided Caliphs allowed religious freedom among the uluma' if they produced fiqh or jurisprudence that coincided with the idea of their absolute rule. More often than not, these rulers came into power either through force, appointment or through a dynastic track. The Rightly Guided

Caliphs on the other hand, were dealing with the death of the Prophet and tried to figure out ways to keep the peace throughout the newly established Muslim community and choose a rightful leader; this led to creative approaches of choosing a leader through different paths.

"0 you have attained to faith! Pay heed unto God, and pay heed unto the

Messenger and unto those from among you who have been entrusted with authority by you; and if you are at variance (or dispute, conflict) over any matter, refer it unto God and

60 Robert Dahl, Democracy and Its Critics (New Haven, CT: Yale University, 1989).

61 O'Neal., 49. 33

the Conveyor of His Message."62 The Rightly Guided Caliphs took this verse to heart and

indeed created social change through democratic institutions by determining the public

will through a number of ways. It is important to note that no Caliph took on the role of

religious leader, the role of the Caliph was simply political and militaristic (concomitant

to the role of the President of the United States); the only religious leading role the

Caliphs had were in the titles that some of them chose to take on such as Abu Bakr and

Ali's title of Amir al-Mu 'minoan, or Leader of the Believers.

The first Caliph, Abu Bakr, strove to keep the community rooted in the principles

of the Qur' an and the Prophet Muhammad; he aimed to make a conscious effort to

struggle for justice, maintain the equality of all before the law and care for the poor and

marginalized. 63 His appointment to the Caliphate was through a designation by the

community elders and other Companions of the Prophet, also known as a shura

(consultation). Shura is a divinely ordained practice in which God commands those ''who

conduct their affairs by mutual consultation," are among the Righteous.64

The seal of approval and acceptance of the position was done publicly and

concluded symbolically with the offering of baya (oath) from Abu Bakr to the entire

Muslim community. The offering of baya was done through a handclasp, an act used by

62 Surah An-Nisaa (The Women) 4:59.

63 Reza Aslan, No god but God: The Origins, Evolution and Future ofIslam (NY, NY: Random House Publishing: 2005), 114.

64 Surah Ash-Shura (Consultation) 42:38. 34

Merchant Arabs to seal a contract; in this case, to seal a social contract and oath of obedience and allegiance.65 Abu Bakr proclaimed to the entire ummah after accepting his title, "behold me, charged with the cares of the government. I am not the best among you.

I need all your advice and help. If I do well, support me; if I make a mistake, counsel me ... As long as I obey God and the Prophet, obey me; if I neglect the laws of God and the Prophet, I have no right to your obedience. "66 Indeed Abu Bakr understood the power of the community and their right to a just leader; his proclamation to the ummah became a precedent in which the rulers knew that if they were not upholding justice or the principles set forth in the Qur'an, they could not rule legitimately and the community had a right to recourse.

Umar, the second Caliph was not chosen through a shura; consequent to the growing schism within the young Muslim community from among those who supported

Ali being chosen as the next Caliph and other parties, Abu Bakr simply appointed Umar.

The wisdom behind Bakr's avoidance of another shura was that he did not want to disrupt the already delicate balance of the community; creating another shura council would only bring about the grievances of Shi'atu Ali (the party of Ali). Interestingly enough, Umar did not continue the path of choosing a successor on his own; upon Umar' s deathbed, he established another shura, this time the members of the council were among those who were eligible to be up for the position of Caliph. Umar gave the council three days to

65 John Esposito, Islam: The Straight Path (NY, NY: Oxford University Press: 2005), 36.

66 Reza Asian, No god but God: The Origins, Evolution and Future ofIslam (NY, NY: Random House Publishing: 2005), 118. 35 decide upon the next Caliph and in doing so the shura council was left with two remaining contenders, Uthman and Ali. A hakam Gudge) was appointed to determine from between the two contenders who would be Caliph; the hakam asked two questions to the finalists: the first being if they would each rule according to the principles of the

Qur'an and the examples led by the Prophet Muhammad. Both men replied in the affirmative. The second question-most likely asked in order to weed out one specific contender-was if each man would "strictly follow the precedents set by the two previous Caliphs, Abu Bakr and Umar."67 Only one replied in the affirmative, thus becoming the third and oldest Caliph, Uthman.

The Caliphate under the rule of Uthman was witness to many troubling practices.

Once Uthman became Caliph, he removed many ministers from their posts and appointed members of his family to those newly opened vacancies. Uthman's reign was not entirely a dark cloud on the pluralistic values instilled by the previous Caliphs; under his rule, his most accomplished feat was that of the collection and canonization of the Qur'an.

However, with that significant achievement, Muslims in the ummah held many grievances against the Caliph and in order to gain recourse on their political will, they sought to depose of the Caliph. This ended in a siege of Uthman's home by many rebel groups and in the end, the Caliph was assassinated and the rebel groups called for Ali to rightfully take his position as Caliph. Although Ali initially rejected the position-he did

67 Reza Asian, No god but God: The Origins, Evolution and Future ofIslam (NY, NY: Random House Publishing: 2005), 124. 36 not want only rebels approving his Caliphate, he knew it was important to have the majority of the ummah approve him-he eventually took the Caliphate after many hours of people pledging their allegiance to him (the symbolic gesture ofbaya) in a mosque.

The historical challenge of the installment of the four Rightly Guided Caliphs is seen today whereby some leaders see the choosing of the next leader, without shura, as precedence and legitimate. Once again, it is so important to note that although Islamic political experience may envelope the word "Islamic," whether historical or juristic, it is still indeed a mere practice of ijtihad and like any human attempt to resolve a novel problem, it is in the end a human resolution and therefore has its shortcomings. It is with this thought in mind that we see the negative implications of current leaders establishing their rule on the basis that certain Caliphs enforced the practice of simply choosing a successor rather than gauging the determination and will of the people. Again, the problem presented here is that this mentality does not rely on the historical contexts, and the political environments of those situations are not being considered. Clearly, the

Muslim community was very young and still quite unstable after the death of the Prophet; contemporarily, we have checks and balances in place in conjunction with different political paradigm in which states are accustomed to working within.

Currently, the debate on whether or not the separation of religion and state should be restored has led to two camps: the first being from those who argue that it indeed does not need to be restored due to the historical precedence we have from the Rightly Guided

Caliphs whereby they were political and militaristic leaders, not religious leaders; the 37 other camp argues the Caliphate needs to be restored if the modem Muslim community wants a chance at living a just life, in accordance with the style of governance by the

Prophet himself whereby he was the political, militaristic and religious leader all in one.

An example of the argument that stems from the former camp is Ali Abd ar-Raziq who formulated the argument that Egypt should maintain a separation of religion and state "by drawing a clear distinction between the authority of the Prophet, which he believed was solely limited to his religious function as Messenger of God, and the purely secular function of the Caliphate, which was nothing more than a civil institution that all

Muslims felt free to question, oppose and even rise up against. "68 The other camp boasts arguments from people like Mawlana Maududi (founded of the Jama'at-i Islami) and

Sayyid Qutb who argue that the Caliphate needs to be restored based on the idea and propagation of Muslim unity and that the Prophet Muhammad's position in Medina was both of religious and worldly affairs ''that cannot be divorced in nature; therefore the only legitimate Islamic state is that which addresses both the material and the moral needs of its citizens."69 However, each camp comes dangerously close to oversimplifying the matter. According to Ramadan, those who call for the separation of religion and state may fall within overly simplistic notion that "secularization = freedom = religious pluralism= democracy." At the same time however, those who come from the camp that the two are inherently meshed, fear that imposition of democracy may come through the

68 Ibid., 138.

69 Ibid. 38 succession of"secularization =colonialism =de-Islamization = dictatorship."70 The fear of an imposition of Western imperialism has caused a radical shift from utilizing ijtihad, to formulating a simplistic notion that if Muslim societies were to revert back to the initial Muslim communities, all issues would be resolved. The idea of democracy may also frighten Muslim society from powerful Muslim jurists themselves. "Many Islamic authorities have criticized the jurists for their tendency to congregate in centers of power."71 Basically, the argument is that jurists will try to provide guidance to leaders if and only if the juristic rule is in favor of the leader. Whatever Islamic "edicts" the leader needs to remain in power, some jurists will find a way to produce such a ruling; this is prevalent due to the "congregation in centers of power," which serve both the leaders and jurists as well, for the jurists is allowed to continue to be legitimate in the eyes of the state, and the leader has acquired religious backings to their policies. There are however, many reasons why the need for democracy outweighs the possible negative outcomes of the close ties with jurists and leaders. Capable jurists will not be swayed by the power of a leader if he is truly conducting ijtihad with the knowledge of Qur' an principles.

70 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press: 2009), 265.

71 Sachiko Murata and William Chittick, The Vision of/slam (St. Paul, MN: Paragon House: 1994), 34. 39

The Need for Democracy in the Muslim World

Democracy truly means rule by the people, and among its chief principles is the idea of equality. Echoing that sentiment is the idea inherent within Islam human equality;

"Unto every one of you have We appointed a [different] law and way of life. And if God had so willed, He could surely have made you all one single community; but [He willed it otherwise] in order to test you by means of what He has vouchsafed unto you. Vie, then, with one another in doing good works! Unto God you all must return; and then He will make you truly understand all that on which you were wont to differ."72 Essentially, the

Qur'an depicts that religious differences do exist, however it is up to humanity to cooperate and learn from those differences in the face of equality. Throughout the Qur'an there are different verses that speak on the diverse subjects on equality; the equality of man and woman, Muslim and non-Muslim and property owners and the unfortunate. It is in this sense that democracy is inherently compatible with Islam.

"Wherever democracy is absent or distorted, an Islamic movement has to struggle for a genuine democracy to secure the basic rights and freedoms of belief, expression and assembly;" under the principles set forth within the Qur'an, citizens of a state are afforded the right to request just governance, and even if this is requested

72 Surah al-Maida (The Repast) 5:48. 40 through the form of democracy, then it should be upheld. 73 As stated previously, I have concluded that democracy is the most viable form of governance within today's political and economic reality; this is so because of the freedoms afforded through the checks and balances in place, as well as the idea behind economic and social freedoms. Concurrently,

"in a democracy, the vehicles used for a social change for the better include the media, lobbying, political parties and elections."74 The importance of these tools should be bolstered within any state to call for the conditions of a just society. Therefore, the equality of voting should be inherent within any Muslim society due to the respect of the opinions of all members of society. The aspect of elections is so clearly underutilized in many parts of the world, and thus we see the off-putting feelings and mistrust of elections; however, "the opinions of certain individuals, however influential or representative they may be, or the opinions of any limited selected group cannot replace the need for a free public election or referendum."75 In essence, the importance of universal suffrage within a state is highly relevant to the establishment of a just government. The election of a leader must come from the will of the entire population, not just from the will of a few powerful citizens.

73 Mohamed Fathi Osman, Sharia in Contemporary Society: The Dynamics ofChange in the Islamic Law (Los Angeles, CA: Multimedia Vera International, 1994), 6.

74 Ibid.

75 Ibid., 89. 41

There is much confusion and contention as to the legitimacy of elections given the

Islamic historical background of the appointments of leaders as well as the enactment of the symbolic baya system; moreover, modem jurists have no other precedence from which to work from in terms of how to elect a leader. In this instance, with the Qur'an and Sunnah exhausted in terms of text provided on the actual implementation and working of a government, it is up to qualified Muslim jurists to ascertain other viable strategies that are not only legitimate, but also suggest Islamic principles of justice are enforced. A common argument by Muslims who do not see the legitimacy and compatibility of Islam and democracy is that the idea of a democratic political system emphasizes the sovereignty of a people over the ultimate sovereignty of God. 76 While initially this may seem true, it is a dangerously simplistic reason to discredit democracy.

Through the indisputable sovereignty of God, He commands humans as His

Vicegerents on earth: "And lo! Thy Sustainer said unto the angels: 'Behold, I am about to establish upon earth one who shall inherit it. ,,n Therefore, with the empowerment of free will, God allowed for mankind to make decisions based on their intellect and live within accordance of Qur'anic principles. Because there is no set text on how to create a just government, God allows for human thought and reason to come into play to figure out a way to enact policies of the Qur'anic principles of freedom, equality and justice. Using

76 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 57.

77 Surah Al-Baqarah (The Cow) 2:30. 42 human thought and reason is an inherent use of ijtihad to derive solutions to

implementing these just principles. Concomitantly, the entire voice of the people must be heard in order to indeed see these principles being carried out; therefore, the best and most qualified people to run a state must be from the people themselves, and this allows for, "both Muslim and non-Muslim, male and female, to hold elective office in an Islamic democracy."78 Indeed Islamic tradition has shown us that previous caliphs appointed trusted and capable non-Muslims to power, for example the Fatimid Caliph al-Aziz "had a Christian minister and appointed a Jew as a governor ofSyria."79

Islamic Pluralism

The oppression of political pluralism within Islamic societies has often been the result of leaders attempting to maintain their political power within the state. However,

Muslim jurists have constantly ruled in favor of pluralism as a rite afforded within the religion. Currently, with the ever-publicized "clash of civilizations," one can see the importance of stressing the need for openness and pluralism in Muslim societies.

Effectively, as globalization reaches new levels, with the advents of new technologies as well as the growing interconnectedness of societies and cultures, Muslim jurists need to

78 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 58.

'"Mohamed Fathi Osman, The Children ofAdam: An Islamic Perspective on Pluralism (Georgetown University: Occasional Paper Series: 1997), 31. 43 utilize ijtihad and once again allow pluralism to flourish in Muslim societies. Just as the

West had to face the re-thinking of religious and cultural pluralism with the growing numbers of immigration from different religious and cultural background, Muslims too, must relook at the issues of opening pluralism.

Although historical evidence has shown that Muslim leaders tend to prefer authoritative absolute rule, the Qur'an accepts, welcomes and even encourages pluralism.

"It affirms religious pluralism, pointing out the variety of spiritual paths that lead towards

Truth;" moreover, "political pluralism, then, is not as odds with an Islamic perspective on ordering social and political affairs. "80 Opposition parties are rarely allowed to exist in the modern Muslim world, and as such, political participation is suffocated and stifled.

"Token opposition parties have been allowed in some countries, but there are few places where it is realistic to assume that an opposition party could win an election and take control of the government."81 Inevitably, when opposition is frowned upon, political participation decreases and faith in the system of governance is lost. Through ijtihad and the implementation of democracy, pluralism is protected and the opening up of democratic channels allows for more cooperation throughout the global system.

It is ironic that the history of pluralism within Islamic traditions is lost in modern times. Karen Armstrong, an influential Christian scholar of Islam, has stated that

80 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 81.

81 John Esposito and John Voll, Islam and Democracy (NY, NY: Oxford University Press: 1996), 16. 44

"pluralism, especially religious and cultural pluralism, has been upheld and significantly practiced more in Islam that in any other Abrahamic tradition. "82 Indeed, creating different shura councils and allowing a multi-party system to exist, represents an area of the working of ijtihad. Political differences will always be present since it is part of human nature to follow different political tracks; however, political differences should not be a source of public disunity, and as a community of believers-and believers is a very inclusive word, as the People of the Book entail not only Muslims, but Jews and

Christians as well-political discourse should be full of differences so that various legitimate human approaches to problems may emerge.

Within current Islamic discourse, there seems to be a trend in leaders and rulers setting policies to clamp down on cultural and religious pluralism. Securing the public interest (maslaha) is fundamental in pursuing justice as laid out in the Qur'an. In terms of religious and cultural pluralism, it is stated within the Qur'an that non-Muslims must be treated with the same dignity, respect and justice as Muslims.83 The connection that

Muslims have with others (including non-Muslims) is based on the foundation of humanity sharing the status of being the children of Adam. As exemplified by the actions ofthe Prophet Muhammad, Muslims' treatment towards non-Muslims should remain just and kind.

82 Karen Armstrong, Holy War: The Crusades and Their Impact on Today's World (NY, NY: Doubleday: 1988), 46.

6~ Surah Al-Mumtahana (The Woman to be Examined) 60:8. "Allah forbids you not, with regard to those who fight you not for (your) faith, nor drive you out from your homes, from dealing kindly andjustly with them: for Allah loveth those who are just. " 45

The social restrictions and tolerance levels of non-Muslims "varied according to time and place: for example, under the Fatimids, [non-Muslims] were not only forced to live in segregated areas of Jerusalem but were also harshly persecuted; under the

Almoravids, [non-Muslims] were prevented from obtaining administrative positions and other social elite occupations; and under the Hanafi jurisprudence in the Ottoman

Caliphate, [non-Muslims] were seen as second-class citizens whose blood was worth one- half to two-thirds that of a Muslim."84 Clearly, the restrictions surrounding a social context can have disastrous effects on the way jurists interpret the Qur'an and Sunnah; furthermore, I would argue that those policies were certainly not within Islamic ethical practices. There are however, jurists who implement ijtihad to come to a pluralistic resolution in the just and fair sense in that they resort honestly to the principles set forth in the Qur'an and Sunnah, and then derive their conclusions. For example, in addition to the Prophet showing mercy, justice and fairness to non-Muslim groups, other leaders in

Islamic history have also exhibited those qualities. Caliph Umar, when visiting the

Christian holy sites in Jerusalem, happened to be in the Church of the Holy Sepulcher when he heard the Islamic call to prayer. The Patriarch of the Church graciously invited him to pray in the Church, and Caliph Umar, just as graciously declined because he noted that once Muslims found out he had knelt down to perform a prayer there, they would want to build a mosque and Caliph Umar knew the importance of pluralism and wanted

84 Abdul Aziz Said and Meena Sharify-Funk, Cultural Diversity and Islam (Lanham, MD: University Press of America: 2003), 24. 46 to preserve the Church. In the end, the Caliph went a little distance from the Church and performed his prayer; until today, opposite from the Holy Church of the Sepulcher in

Jerusalem, is a mosque dedicated to the Caliph Umar. 85 If modem jurists can take examples as the one previously mentioned, and rule on policies to be just as fair, and pluralistic in attitude, conflicting ideas about Islam may successfully fail.

Contemporary jurists, if stressing the need to create policies and legal rulings based on only the actions and principles of the Prophet and first Muslim community, should indeed look to that first community in Medina and emulate the pluralism set forth by the Prophet to the different religious groups that resided in Medina. The first Muslim community showed a real welcoming to difference and openness to diversity and pluralism. "The permanent non-Muslim populations of the Islamic state were called dhimmis, an Arabic word which means that they were promised protection in all their rights by the Muslim society and the state authorities."86 Even non-Muslims who were not permanently part of the state were afforded equal protection and justice as guarded through the Sharia; essentially, they were temporarily living under the Islamic state as

"applicants for security," and therefore were given protection and security by Muslim authorities and society. 87

85 Ibid., 23.

60 Mohamed Fathi Osman, The Children ofAdam: An Islamic Perspective on Pluralism (Georgetown University: Occasional Paper Series: 1997), 21.

871bid. 47

The Qur' an repeatedly stresses the importance of maintaining justice and dignity to all people, regardless of their affiliation of faith. 88 Concurrently, if an agreement is not codified between Muslims and non-Muslims for the protection and security of all, there should be a mutual understanding that the quality of treatment of all human beings regardless of faith due to the dignity bestowed on all children of Adam; this mutual understanding should be based on good faith and justice. God commands to the Prophet

Muhammad in Surah Ash-Shura, " ... and say: I believe in whatever book God has sent down, and I am commanded to be just in dealing with you. God is our Lord as well as your Lord. To us, shall be accounted our deeds and to your deeds. Let there be no contention between us and you. God will bring us all together and with Him is all journeys' end. "89 In essence, Muslims are required to treat all humans, regardless of religious affiliation, with justice, fairness and dignity. Truly, the equality of all as a key principle in establishing democracy can attempt to create conditions for this sort of treatment of citizens.

Indeed the Qur' an even stresses that if there is conflict among the different religious groups living within a state, dialogue is the best form of conflict resolution.

"And dispute ye not with the People of the Book, except in the best way, unless it be with those of them who do wrong. But say, "We believe in the Revelation which has come to us and m that which came down to you; our Uod and your Uod IS One; ana It IS to Him

88 Surah Al-Ankaboot (The Spider) 29:46, Surah Al-Murntahana (The Woman to be Examined) 60:9.

89 Surah Ash-Shura (Consultation) 42:15. 48 we submit."90 Muslim jurists today, when facing conflict and pressure from their governmental leaders to proscribe a ruling on how to deal with pluralistic conflict, should consult the Qur'an and Sunnah in this very manner and utilize ijtihad in finding a contemporary solution to their problem. Dialogue is key to enacting successful shuras when discussing contemporary problems and solutions.

Of course we cannot posit that with the promotion of democracy and shura there will be a sudden change in how pluralism is dealt with; however, with the promotion of democracy inevitably comes the invitation to openness and pluralism. Within Islamic principles are ethics, not specific guidelines, as to how to deal with non-Muslims; moreover, if jurists today avail these principles through ijtihad, then pluralism can become a positive outcome. Even non-Muslims who live under an Islamic state and who are in financial need are afforded that economic protection by the state in which part of the zakat funds are required to help all member of the society.91 For example, "in one incident, a [non-Muslim] Syrian cultivator claimed that the army had trampled his crops.

Caliph Umar ordered the payment of 10,000 dirhams to him as compensations out of the public treasury."92 Unfortunately, recent trends have shown that jurists are content with following previous precedents and ijtihad has become stifled in this respect to pluralism; this trend is exhibited through a myriad of ways in which non-Muslims and minorities are

90 Surah Al-Ankaboot (The Spider) 29:46.

91 Yaqub ibn Ibrahim Abu Yusef, al-Kharaj (Cairo, Egypt: Al-Salfiyya Press, 1397), 136.

~L Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 211. 49 not given the equal protection afforded to them through the Qur' an. It is important to note here that pluralism should not just be upheld and revamped throughout the Muslim world only, respect, genuine mutual understanding and justice needs to be a global paradigmatic shift. This global shift in consciousness needs to occur not just within the religious, cultural and social realm, but within the political and economic realm as well.

With the establishment of shura councils, which would be the Islamic equivalent of a consulting citizenry (the equal right for all to participate politically), pluralism through political parties, social networks and equal human dignity have a chance of being successfully implemented. For Muslims to have change, there must be the want and push for change. Transparency in elections, rule of law and representation for all are things that can be established through simply recognizing ijtihad as a simple approach to enacting new policies. Pluralism in all aspects of citizen life should be upheld and indeed are within the textual sources of Islam.

Just as there are different schools of thoughts, and they are able to flourish and produce different legal juristic advice, political differences should be active in creating unity as well. The Qur'an requires a "general discussion and exchange of views and serious consultation (shura) about public concerns before a decision can be reached

(3:159, 42:38)."93 Muslims must argue their points of contention logically, ethically and always according to the Qur'an and Sunnah; this has been historically shown throughout

93 Mohamed Fathi Osman, The Children ofAdam: An Islamic Perspective on Pluralism (Georgetown University: Occasional Paper Series: 1997), 24. 50

Islamic tradition and must once again be prioritized as being important in modem times.

When the Prophet died, Muslims had to come together to discuss and consult with one another on what to do next; of course there were differences among the ideas, however, even though some people were not happy with the decision to appoint Abu Bakr as the first Caliph, their opinions were heard and discussed. Examples of differences are plenty throughout Islamic history, for example, when Umar was Caliph, his suggestions were opposed by some of the Companions of the Prophet and he had to defend his suggestions before a shura council and even the public. 94

"Both shura and democracy arise from the central consideration that collective deliberation is more likely to lead to a fair and sound result for the social good than individual preference. "95 All of these examples present hard evidence to Muslim jurists today who should stress the importance of pluralism within a burgeoning democratic society. Stressing the importance of political pluralism is congruent with the .rise in cultural, social and economic pluralism. Economic freedom comes part in parcel with democracy and the openness of differences of opinions. Can there be such a thing as

Islamic economy, and if so, can it be a viable match to the current global economic system?

94 Ibid., 25.

95 Sadek Sulaiman, Democracy and Shura (NY, NY: Oxford University Press: 1996), 98. 51

Is there an Islamic Economy?

Currently, there is no formal "Islamic economy," per se; however, there are certain ethics built in to the religion that guide how relations should be when dealing with the economy. Modem ~uslim jurists have had especially interesting rulings on working within the current global economic system. The global capitalist economic system currently is ridden with interest, and inherently within Islam, interest is forbidden; "o ye who believe! Devour not usury, doubled and multiplied; but fear Allah; that ye may

(really) prosper."96 However, there are Muslim jurists who have ruled that within this current economic system, prospective homeowners can purchase homes with mortgages that have interest tied to them. This form of modem ijtihad allows for Muslims to utilize certain forms of interest which the Qur'an does not specify as being illicit. The Qur'an and Sunnah do not explicitly forbid the specific type of interest and that is the basis in which jurists have come to their conclusion that certain types of interest may be permissible in the current economic system. The idea behind prohibiting interest in Islam is that it continues to financially oppress the already economically weak in society. To counter interest, there are inherent economic safety factors which people can rely on in hard times; the main factor of social stability in economic hardships is zakat (charity).

Numerous philosophers and economists have criticized initiatives which "in the name of

96 Surah Ali-'Imran (The Family of'lmran) 3:130. 52

'sustainable' or 'human' development, claimed to reform or humanize classical economic practices by seeking to establish a balance among economic, social and ecological issues, while they retained the same productivist, technique-centered approach. "97

Russett and O'Neal discuss part of the notion of a successful democracy is also promoting economic justice; the economic interdependence as an element to peace is just as important as being dependent on democratic principles.98 The evidence is apparent; when economic justice is stressed, ''the causes of inter and [intra]state violence could be ameliorated." Trade and investment create common interests for commercial partners."99

The importance of economic justice and the well-being of citizens within a state are undeniable in the efforts to establish democratic peace--especially in a region where economic disparities are great.

Indeed it is important to understand the economic system in which people are working within; true, there are those who are more privileged than others, and it is a calling to our human nature to want to create an economic system that helps those who are unable to provide for themselves. Concurrently, because there is no economic system explicitly stated in the Qur'an and Sunnah, it is up to Muslim jurists to create innovative ways to deal with working within an economic system while maintaining Islamic ethical theories on ideas ofjustice and economic freedom.

97 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press: 2009), 246.

98 O'Neal., 271

99 Ibid., 277 53

Conclusion

In conjunction with ethical practices and principles of the economy, there is also some leeway when deciding on systems of governance. It is important to understand that not only must Muslim jurists work within Qur'anic principles, they must also maintain ethical integrity in making sure the good of the community is met; this includes regarding pluralism as an important aspect of a flourishing community and society. I have shown that indeed Western notions of democracy include the same elements thereby creating mutual harmony between both democracy and Islam; concomitantly, historically there have been numerous examples of early Muslim leaders utilizing key aspects of democracy within their rule. Within the democratic system, economics may flourish and bolster; moreover, this is exactly why I argue for the importance of pushing for democracy through ijtihad. The democratic system creates an atmosphere of equal opportunity through rule of law, transparent governance and equal participation within the society for all members, including having an equal playing field within the economic system.

Muslim jurists today have the moral and legal principles to look upon when implementing ijtihad; inherently within Islamic tradition there are ethics and principles in place to allow these systems of governance and economics to take place and be sustainable. Concurrently, as presented in this chapter, Qur'anic ethics and principles stress the need and importance of pluralism; pluralism, logically, goes hand in hand with 54 shura in that consultation of the many is commanded as being paramount to the voice of the few. Additionally, with the installation of well-meaning shura councils, these issues can be discussed in an open forum and be inclusive of all fragments of society. Moreover, promoting global pluralism will set the standards for a foundation of global equality. The contemporary world has gone through too much of a radical change from the time of the

Prophet and first Muslim community to allow for the legal rulings from the past to prevail today; through ijtihad, the promotion of Qur'anic principles through democracy, a just economy and the promotion of pluralism can be realized globally and equally. CHAPTER3

THE ROLE AND STATUS OF WOMEN IN SOCIETY

"0 people be conscious ofyour Lord, who has created you out ofone living entity, and out ofit created its mate, and out ofthe two, spread abroad a multitude of men and women. And remain conscious ofGod, in whose name you demand (your rights) from one another, and these ties ofkinship. Verily, God is ever watchful over you. "100

From the very beginning, God commands the consciousness of humans to be aware of the equality of the origins of humankind-both male and female. As the verse above shows, both women and men are made from the same nature and any discrimination against either of the sexes is an unconscionable offense. The role of women and the family unit within the Muslim context has been severely stifled due to the increasing pressing cultural factors. In this chapter, I argue the religious obligations and freedoms towards women and the family in Islam should be seen as tantamount to cultural attitudes. Indeed, this argument may be seen as religious imperialism; however, it should be noted that the foundation of my argument stems from a constructionist background in which I ascribe to the theory that cultures are constructed and formed according to their times, experiences and surroundings. Therefore, the freedoms afforded to women in Islam should be equal, if not paramount to cultural impediments. The aim in

100 Surah An-Nisaa (Women) 4:1. 55 56

this chapter is how Muslim jurists need to face challenges of modern times between men and women in culturally powerful society.

To bring up the subject of women is to naturally have discussions on gender roles, social and cultural structures and the role of the family unit. "Complex, interdependent issues are involved and focusing on one dimension rather than another can sometimes lead to excess and distortion in both criticisms and claims."101 It is important to note here that I do not seek to create friction between culture and religion; however, if policies, dictated by a male-dominated society use religion and culture to oppress women, then indeed I do argue that the freedoms afforded to women through Islam should trump those chauvinist oppressive policies. Islam calls for the equality of responsibility for men and women in the religion despite cultural values; God has revealed verses in the Qur'an that openly forbid cultural practices, such as female infanticide, as being unlawful.102 Islam condemns the choosing of one gender over the other because of the inherent equality of both sexes set forth by God Himself.

Both men and women in Islam are created equally, and therefore are equally responsible in their religious and moral duties. The Qur'an expresses explicitly, "verily, for all men and women who have submitted themselves to God, and all believing men and women, and all truly devout men and truly devout women who are patient m

101 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press: 2009), 208.

102 The Qur'an explicitly states that female infanticide is unlawful; this overturned the popular cultural practice offemale infanticide pre-Islam. Female infanticide will be brought up and questioned on the Day ofJudgment. Surah Al-Tawkir (The Folding Up) 81:7-15. 57 adversity, and all men and women who humble themselves (before God), and all men and women who give in charity, and all self-denying men and women who are mindful in their chastity, and all men and women who remember God unceasingly: for all of them has God readied forgiveness of sins and a mighty reward."103 Moreover, the Qur'an does not place blame on only Eve for the "original sin." As stated in Surah Al-Baqarah, "Satan caused them both to stumble therein, and thus caused the loss of their erstwhile state."104

The story of Adam and Eve continues on in Surah Al- A'Raf, ''the two replied: 0 our

Lord! We have sinned against ourselves, and unless you grant us forgiveness and bestow

Your mercy upon us we shall most certainly be lost."105 Without discrimination, the

Qur' an places both the blame and forgiveness on both individuals, and thus women stand morally and religiously equally responsible before God.

The woman is held in a high degree of respect according to the principles and values laid out in the Qur'an. This is extremely relevant to my argument for the reuse of ijtihad because women are inherently equal to men in Islam. Part of securing justice for all includes the rights of women. The rights of women are secured from the moment they are born; this is presented in the verses on the right to life for baby girls. 106 Currently,

103 Surah Al-Ahzab (The Confederates) 33:35.

104 Surah Al-Baqarah (The Cow) 2:36.

105 Surah Al-A'Raf(The Heights) 7:23.

106 Surah An-Nahl (The Bee) 16:59. Pagan Arab culture honored the male over the female baby, and when people heard the news of having a baby girl, their faces ''would darken and [they would] suppress anger." Pagan Arabs were ultimately left with two evil decisions, to commit infanticide, or allow the baby to live and cause dishonor to the family or tribe. 58 there are trends that show male dominated policies try to restrict women's activities to the household; they use a Qur' anic Verse that addresses the Prophet's wives that states, "and abide quietly in your home."107 However, they ignore the previous statement of the preceding Verse that states, "0 wives ofthe Prophet! You are not like any of the (other) women."108 The Prophet's wives had special responsibilities among the young Muslim community and accordingly, led lives according to different rules. 109

What is interesting to note here is that jurists throughout Islamic tradition have generally been male. With this in mind, their readings and interpretations of the Qur'an and Sunnah have been through a male perspective; this is not to say that they are interpreting the text incorrectly, however, the female perspective is not the dominant paradigm among jurists. Therefore, the role and freedoms of women in society has more often than not, been decreed by males. The flexibility of Islamic law is not accidental; indeed God takes into account the differences of males and females and yet, He affords women the right to education, property, inheritance and a multitude of other freedoms given to males. Islam was revealed gradually, as to not shock the cultural norms present at the time; this should also be taken into account by jurists today who try to devise appropriate contemporary solutions based on the Qur'an and Sunnah.

107 Surah Al-A'hzab (The Confederates) 33:33.

108 Ibid. 33:32.

109 The Prophet's wives were not allowed to remarry after the death of the Prophet and because of their special responsibility among the Muslim community, they were held to the utmost scrutiny and standards by holding titles such as Aisha's "Mother of the Believers." 59

Ethical Discourse on Women

In order to produce change within current Islamic discourse on women, ''the first

liberation that should be worked out consists of producing a discourse on womanhood that restores the link with meaning rather than single-mindedly focusing on norms."ll0 It

is seen that women are active in the revival of Islamic movements throughout the world

and yet, there continues to be a revival of rigid traditional readings of the Qur' an as well.

A discussion about the ethics of womanhood in Islam needs to be discussed;

concomitantly, women need to be taken seriously as jurists in that they allow for a

different perspective when interpreting and reading texts.

To reduce discourse to a simple literalist reading of the Qur'an when it comes to

women is to be bound by words, and not the ethics set forth on the equality and treatment

of women. The social discriminations and power structures in place against women need to be resisted through revised methods of ijtihad. The orientalist view that Muslim

women are either submissive and properties to male figures or the object of a male's

desire is extremely constraining. "Some of the traditional Islamic interpretations on

women's rights have argued that they are complementary with men's rights in society,

110 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press: 2009), 217. 60 rather than being in absolute equality."lll This is exactly the kind of change we need to recognize through ijtihad as being possible; again, coming from a constructionist point of view, women's roles are constructed in a social environment and therefore can be changed based on the fact that they cannot contradict the Qur'an and Sunnah. However, when the Qur'an and Sunnah are the revealed texts on giving freedoms to women whereas culture and social structures are taking them away, how do we create a viable atmosphere for jurists to use ijtihad and uplift the status of women to where they are initially supposed to be?

Political, Social and Familial Participation

The rights of women to participate socially (within and without the familial unit), including politically comes part in parcel with their equal roles in society. Participation in

society has been a contemporary controversial issue with women. To deny a woman the right to publicly participate in politics is illogical based simply on her sex. This· is where modem jurists need to participate in using ijtihad, and include women's perspective, to revive the idea that a woman can certainly hold political office. As stated previously, the

Qur'an does not advocate any sort of gender hierarchy. Indeed the Qur'an even states the

Queen of Sheba specifically as being a competent ruler. The Qur'an mentions no

111 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 161. 61 disapproval of a female in leadership; contrarily, the Qur'an mentions the Queen's strong personality and capability as a leader. 112 Historically, women have even reached prominence in society "as reporters of the Prophet's traditions, scholars who taught at centers of learning, sufis and physicians. Ibn Sa'ad, the prominent Muslim biographer, mentioned many women among his teachers. Many other [women] showed their refmed taste and skill in weaving textiles and rugs and in fashion." 113

In matters of the state, there have been a multitude of women, besides the previously stated Queen of Sheba, that have held leadership positions. Benazir Bhutto was twice the prime minister of Pakistan in current history; and in an area of the world where human rights abuses against women are commonly projected in the media and international community, Bhutto showed the world that a Muslim woman can take charge. Although she is known more for her political leadership skills rather than religious scholarship, Bhutto was able to project the high status of Muslim women throughout the world. Bhutto argues that Islam does not subject women to being inferior to men; in fact, she argues that the Qur' an presents principles in dealing with both men and women with respect and dignity. Bhutto states that some authors, "have speculated that women in Islamic countries can never achieve self-actualization or a degree of assertiveness unless they look at [it] from a non-Islamic point of view ... I believe that

Islam within it provides justice and equality for women, and I think that those aspects of

112 Surah An-Naml (The Ants) 27:28-44.

113 Mohamed Fathi Osman, The Children ofAdam: An Islamic Perspective on Pluralism (Georgetown University: Occasional Paper Series: 1997), 32. 62

Islam which have been highlighted by [religious scholars] do not do service to [the] religion."114

Indeed Islamic jurisprudence "was the first to view women as legally independent members of society, and not merely the property of their guardians."115 Furthermore, the

Qur'an specified rights to women in terms of inheritance, property ownership and financial independence rights and the right to voluntarily enter or terminate a marriage.

The governance of family structure is not discussed in specifics in the Qur'an; however, time and time again between the Qur'an and Sunnah, the respect of the mother is stressed. Imam as-Sadiq said that the Prophet was asked once by a Muslim, "whom should I be kind to?" The Prophet said your mother. He repeated it three times, and he then said your father. In fact, the Prophet was once noted as saying that heaven is at the foot of the motherY6

Traditionally, women m Islam have enjoyed a degree of high respect, for example, "when the Companions of the Prophet differed on a matter, on many occasions, they referred the case to Aisha, the Prophet's wife." Aisha also happened to be the first woman to lead an army against a Caliph-- Caliph Ali. Caliph Umar also held women to a

114 Benazir Bhutto, Politics and the Muslim Woman (Cambridge, MA: Unpublished audio recording, Rama Mehta Lecture, Radcliffe College Archive, 1985), 107.

115 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 168.

116 Muhammad Al-Bukhari, The Translation ofthe Meaning ofSahih Al-Bukhair, translated by Muhammad Muhssin Khan, vol. 8 (Egyptian Press and USC-MSA Compendium ofMuslim Texts, 1959), bk.73, no.2. 63

high degree in that he appointed Shifa' hint 'Abd Allah to be in charge of market

inspection in Medina. 117 To point to yet another example, "a woman publicly corrected

Caliph Umar with regard to his proposal to place a quantitative limit on the dower, by

citing a Qur'anic verse; the Caliph agreed with her."118 The rights afforded to women in

marriage are plentiful, and current scholars have agreed that Islam, in this respect, was

one of the first feminizing religions. 119 Unfortunately, there are some scholars today who

practice ijtihad in a negative way which puts the status of women down, including in

marriage. In all schools of thought however, a marriage contract is deemed invalid

without the consent of the woman. 120

In reality, the role of women in Islam has always been discussed, contested and

reformed. Like other faiths, Islam encourages marriage, family and procreation; therefore

it would be callous to ignore the debate of the role of the woman within the family unit.

To approach the role of women in society is to analyze the family structure. Islamic

family law, in particular respect to family planning, has always been a debated issue.

There are Muslim jurists within schools of thought that argue for the permissibility of

117 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 196.

118 Ibid. The dower is part of the marriage contract and it is the amount, or property equivalent that the man must provide his future wife or defer in the case of a divorce. Once the amount of dower is determined, it must be written in the marriage contract and the man cannot unilaterally change the terms of the contract.

119 Ibid., 162.

120 Recep Senturk, Sociology of Rights: "I Am, Therefore I Have Rights:" Human Rights in Islam between Universalistic and Communalistic Perspectives, Muslim World Journal ofHuman Rights 2, no. I (2005): 22. 64 family planning through abortion, whereas others take the position of family planning through contraception. In each school of thought however, the woman is viewed as having just as much say in the decision as the man. If we look at examples by mujtahids who have implemented ijtihad within the discussion of family planning, we can see numerous rulings have resulted. Initially, the superficial argument that Islam prohibits family planning is supported by the verses in the Qur'an that express the unlawfulness of people killing their children. 121 Their second reason for their argument stems from the

Prophet's saying on the requirement for Muslims to multiply. 122 However, those two arguments do not answer for the practices that the Prophet allowed during that time in which his own son-in-law, Ali, practiced coitus interruptus, known in Arabic as al-'azl.

If we extend the idea of allowance to prominent jurists, a plethora of solutions are regarded as falling within Islamic guidelines because they are based on the Qur' an,

Sunnah and analytical thought. Historically, the majority view on family planning is that contraception, and abortion (to some extent) is permissible with the consent of the woman. A leading proponent and figure accepting of this view is al-Ghazali, "who bases his conclusions on the well-established principle that what is not prohibited by the

Qur' anic text or an authenticated Hadith, or by analogical reasoning with respect to either

121 Surah Bani Isra'il (Children oflsrael) 17:35 "Kill not your children for fear ofwant: We shall provide, sustenance for them as well as for you. Verily the killing of them is a great sin." Surah Al-An'am (The Cattle) 6: 151. " ... be good to your parents; kill not your children on a plea of want; We provide sustenance for you and for them ... "

122 Prophetic Hadith. 65

or both, is permissible."123 Al-Ghazali argues that although contraception is permissible,

it is disliked; therefore, the intention as to why a couple is using contraception comes into

play. If perhaps, the couple is using contraception in order to prevent for female

offspring, then contraception is not justified. If, however, the couple is using

contraception in order to "avoid poverty, protect [the] woman from the dangers of

- childbirth, and even preserve [her] beauty," then contraception is permissible. 124 Jurists

following the Hanafi, Maliki and Jafari schools of thought generally tend to agree that

contraception is permissible and consent that al-'azl is permitted with the wife's consent.

Shafis, also agree to the use of al-'azl, however, they do not stress the need to have the

consent of the wife because they argue that the wife is entitled to intercourse but not

ejaculation. 125

Concurrently, within the debate of family planning is the controversial subject of

abortion. Again, through the use of ijtihad, scholars have ruled the permissibility of

abortion, but disagree on the stage of fetal development and when it is prohibited. At or

after the ensoulrnent stage of development is when scholars agree abortion is prohibited.

Jurists among the Hanafi and Shafi schools of thought permit abortions up to 120 days,

while others prohibit abortion as early as 80 or even 40 days (Hanbalis) after

123 Azizah Al-Hibri, "Family Planning and Islamic Jurisprudence," The Religious Consultation on Population, Reproductive Health and Ethics, 19 May 1993, United Nations.

124 Ibid.

125 Ibid. 66 conception. 126 In any case, abortion is permitted if it endangers the life of the mother. It must be noted however, that abortion is increasingly disliked in every stage of baby development, until it eventually becomes prohibited. The Maliki school of thought views abortion in very rigid ways in which the minute the semen attaches itself to the uterus, abortion is prohibited. Maliki jurists derive this conclusion based on the assumption that the semen is already on its way to being ensouled, through the action of attaching itself to the uterus. It should be noted that Jafaris prohibit abortion at any stage of development as well.

If contemporary jurists would take an honest look at the examples in Islamic history as well as the text and principles set forth in the Qur'an, the status and roles of women in modem society can be placed to the high degree as they once were. It is fascinating to see that going as far back as the 12th Century jurists were discussing and performing ijtihad on such complex matters as family planning. Although jurists have disagreed on certain issues and analyses on abortion and contraception, we can conclude that they agree that contraception is more preferable than abortion. The mercy of ijtihad by God has allowed humanity to be involved in such important discussion; and as the overall picture of a woman is not just a mother, ijtihad can help generate even more useful discussions on womanhood in Islam.

126 The days in which permissibility and prohibition of abortion was a function of the state of knowledge at the time; therefore, currently with modern technology and knowledge on baby development, contemporary ijtihad can take place to factor in the new evidences. 67

The Woman as a 'Being'

Rather than looking at women in simplistic terms of being a wife, mother, daughter and sister, we need to create a conceptual change in which woman are defined as beings. Because terms such as mother, wife and daughter come with subjective societal definitions, if we look at women as beings-with roles defmed as acting in a humanistic way, rather than within a defined role (usually by a male authority)- women's roles can be expanded. "The approach through objectives that requires thinking about being, dignity, development, freedom, equality, justice, balance, love and welfare does not allow us to overlook speaking about women's being, their spirituality, autonomy and responsibility and the essential and social meaning ofwomanhood."127

The physical aspects of women are more emphasized, and although the Qur' an does not attempt to eradicate "the differences between men and women or to erase the significance of functional gender distinctions which help every society run smoothly and fulfill its needs," it supports functional relationships between men and women despite these physical differences. 128 I am not trying to ignore the physical differences between men and women; however I am merely arguing for jurists to look past the differences and into the idea of what being and functioning as a woman entails.

127 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press: 2009), 217.

128 Amina Wadud-Mohsin, Qur'an and Woman (Kuala Lumpur, Malaysia: Penerbit Fajar Bakti Sdn. Bhd.: 1992), 131. 68

Male jurists do not tend to emphasize these aspects and qualities of women, and yet they project their male interpretations of holy texts onto them. Such rigid discourse

sways openness for women to realize their potential in "spirituality, autonomy and responsibility." Creating an open dialogue, in which women are openly encouraged to

participate, can reach a change as an advancement of society.

Education and Work

The promotion of women's rights is, I argue, congruent with the state's stress on

education. In reality, Islam actually secures women's rights in education and work.

Historically, in Muslim Spain, Andalus, "several women were famous as physicians in various specializations, including optometry and surgery."129 Obviously, one does not

become a specialized physician without having the proper education. In fact, currently, a

study done in 2009 by the Gallup Poll showed that Muslim American women were "one

of the most highly educated female religious groups in the United States, second only to

Jewish American women. 130 So, indeed the tradition of making education important has

129 Mohamed Fathi Osman, Muslim Women: The Family and the Society (Los Angeles, CA: Omar Ibn AI Khattab Foundation: 2007), 20.

130 Mohamed Younis, "Muslim Americans Exemplify Diversity, Potential," Gallup Poll (March 2, 2009): http://www.gallup.com/poll/116260/Muslim-Americans-Exemplify-Diversity­ Potential.aspx (accessed March 14, 2010). 69 continued on within the Muslim community, however, the trends show this his level of education is in democratic societies.

Indeed, it is a duty among all Muslims to seek and obtain knowledge, wherever regardless of their sex. 131 The person who strives to attain knowledge is loved by Allah over a person who simply performs religious rituals. 132 Women are in no way prohibited from obtaining an education and modem jurists, specifically in areas where cultural attitudes dissuade women from getting a proper education, should look back to historical examples of women being uplifted in society through education. Any jurist, regardless of the school of thought they ascribe to, should come to the logical conclusion that not only is education encouraged, it is an obligation between both men and women. "The right to education as a basic human right is recognized in the first revelation that the Prophet received, which began with the word, 'iqra'!' or 'read!'"133 Obviously, if humans are given the logical capacity to engage ijtihad, and the ability to learn, then education is a basic right within Islam-and for all mankind.

In terms of work, women have always worked-either in the traditional sense in the household, or have held careers outside of the house. One of the most respected

131 Prophetic Hadith narrated by Mishkaat which states, "seeking knowledge is an obligation upon every Muslim, be it a man or a woman."

132 Prophetic Hadith narrated by Tirmiidhi which states, ''the superiority ofthe learned men over a worshipper by rituals, is like my superiority over the best of you."

133 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 196. 70 women in Islam, the Prophet's first wife, Khadija, was a prominent and very successful businesswoman in Mecca. She ''traded, dealt with society at large, she employed the

Prophet Muhammad when he was a young man and subsequently, herself sent a proposal

[of marriage] to the Prophet."134 Khadija was indeed an independent woman who can be looked up to by both women and men in contemporary society. She did not proscribe to the passive cultural norms of what women should be and act; and therefore, jurists can implement her examples within ijtihad to exemplify the status of women and what they can actually achieve given a welcoming atmosphere.

Conclusion

If Islam contains such powerful women-figures from the time of the Prophet, and throughout history, why are women today, in major Muslim societies, not seen? Why is it so difficult for women to attain such a high status as they once did when the Muslim community was still growing? It is clear that the oppression of women has absolutely nothing to do with the religion; it stems from the chauvinist readings and interpretations of holy texts and man-made conclusions. It is indeed imperative for jurists and societies to not shy away from the subject of women. Women have contributed to Islam and societies all around the world in positive and helpful ways. Jurists, with an open mind

134 Benazir Bhutto, Politics and the Muslim Woman (Cambridge, MA: Unpublished audio recording, Rama Mehta Lecture, Radcliffe College Archive, 1985), 110. 71 and fondness to ijtihad, need to look to the historical precedents set forth in Islamic history. More importantly, a critical interpretation and reading of the Qur'anic text needs to be undertaken with a female perspective. Indeed, it is imperative for women to be included in the dialogue on their roles and status in society. Policies suppressing women's basic human rights to things such as education and societal participation needs to end, and with an honest reading of the Qur' an, Sunnah and history of women in Islam, this can fruitfully be achieved.

How can Muslims call for global justice, when in fact the distressing picture they have created of women is happening in their own societies? A serious shift in consciousness pertaining to women needs to be undertaken, and if we begin by creating a paradigmatic transfer from looking at women in specific roles, to looking at women as beings, we can create a viable atmosphere for women to achieve their highest potentials as positive contributing members of society. My conclusion here is as I've previously stated, both men and women as afforded rights provided by the Qur'an, and as male figures continue to interpret texts to suppress women, it is the job of both women and men to resist and reject against these radical impositions. A more global approach to reforming attitudes towards women is necessary for this to be successful; more importantly, a true understanding of the equality bestowed on all humans is required to change the standards imposed on women and in rejecting the unfair status quo. CHAPTER4

JUSTICE AND HUMAN RIGHTS

"0 you who have attained to faith! Be ever steadfast in your devotion to God, bearing witness to the truth in all equity; and never let hatred ofanyone lead you into the sin of deviating .from justice. Be just: this is the closest to being God-conscious. And remain conscious ofGod: verily, God is aware ofall that you do. "135

Speaking within the Islamic context, justice is ultimately God's Will. The concept of justice within Islamic discourse is different than Western concepts of justice.

Contemporarily, we see a resurgence of the importance to renew and uphold justice and human rights. Concurrently, I argue that there has been principles and ideals of justice and human rights built into the Islamic tradition; moreover, there are certain factors which deal specifically with conflict and attaining justice with certain tools. From within the religion, as well as opening modem ideas of justice through ijtihad, the promotion of justice and human rights can once again be realized. In this chapter, I seek to argue for the utilization of ijtihad for the promotion of justice and human rights. In terms of justice within the Islamic tradition, "divine and human justice are interconnected."136 This conclusion is derived through different verses revealed in the Qur' an whereby God commands man to seek and establish justice and remain steadfast m

135 Surah Al-Maida (The Repast) 5:9.

136 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 5. 72 73 never wavenng into the sinful deviation of oppressiOn. Inherently within Islamic discourse on justice, ijtihad is enforced because God commands humanity to use logic, morality and understanding when perpetuating human justice and rejecting injustice. In

Islam, justice is enveloped in three elements: "first are the Divine laws prescribed by the

Qur' an, and second is the example of the Prophet Muhammad in applying these laws, as can be read in the Hadith. These two bodies are then interpreted though ijtihad," which creates plurality in the vast conclusions ofhuman interpretation. 137

Ethical Theories on Justice

A concerning factor of justice within any given society is that of distributive justice. A number of philosophers have argued for their interpretation of what they believe distributive justice should entail. For example, John Rawls expresses that distributive justice comes from a conceptual idea of what policies would be propagated by a society behind a ''veil of ignorance." The veil of ignorance utilizes a social contract theory and adds this extra feature which "the parties [in the original position] are not allowed to know the social positions or the particular comprehensive doctrines of the persons they represent. They also do not know persons' race and ethnic group, sex, or various native endowments such as strength and intelligence, all within the normal

137 Ibid., 6. 74 range."138 The original position is a hypothetical situation developed by Rawls in order to conceive of a society with no initial prejudices, which they eventually come to develop just policies and principles. Rawls argues that within the original position, and behind a veil of ignorance, fair conditions are set for all groups and acceptable limits are placed on those participating in the original position so that certain principles of justice are availed.

What is concerning about Rawls' original position, is that it is a hypothetical thought experiment that avoids to commit itself to a comprehensive doctrine (a comprehensive doctrine guides people to realize what is right and wrong) and is therefore founded through ideas prevalent in society. What is concerning about that foundation for distributive justice is that without having a comprehensive doctrine, a limit on the scope of ideas is placed so that the majority of the society can just agree upon a principle and cooperate.

Ultimately, Rawls argues that justice comes as fairness through policies dialogued in the original position. According to Rawls, only rational and reasonable peoples are allowed to participate within the original position which, from the start, rejects certain groups deemed as unreasonable and irrational. Moreover, without a comprehensive doctrine, how will the people participating within the original position have a foundation as to what is just or not? Rawls' argument lacks a moral component; however, the idea

138 John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: President and Fellows of Harvard College: 2003), 15. 75 behind distributive justice within Islam is to "repair the cracks of social injustice."139

Rawls, however, does utilize some Islamic principles, such as the idea of shura, when constructing his framework of distributive justice. Within the original position, a fair consensus must be met by the participants for the policy to be just; this is parallel with the idea that shura within the realms of ijtihad, is useful in that the representatives of the many are heard.

Perhaps closer to Islamic ethics on justice would be the Western notion of virtue ethics. Virtue ethics are concerned with deontological ideas of duties and rights through the study of moral obligations. Rosalind Hursthouse utilizes virtue ethics in defining justice through moral behavior and acknowledging justice as a virtue. 140 However,

Hursthouse notices an apparent gap in the topic of justice and ethics; this is so because of her view that "it has become all too common to allow a vague concept of justice and rights to encompass large areas of morality that virtue ethicists believe are better dealt with in terms of other, more concrete, virtues."141 Moreover, Hursthouse bases her views of justice on a hierarchical scale of the importance of virtues. For example, "what does virtue ethics have to say about dilemmas- cases in which, apparently, the requirements of different virtues conflict because they point in opposed directions? Charity prompts me

139 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 17.

140 Rosalind Hursthouse, On Virtue Ethics (NY, NY: Oxford University Press: 1999), 5.

141 Ibid., 6. 76 to kill the person who would be better off dead, but justice forbids it."142 In this account, justice is under the moral and virtuous control of the situation; there is no justice for justice's sake.

Islamically however, through the use of ijtihad, the elements of justice are considered based on the Qur'an, Sunnah and contextual surroundings of the issue. Justice is highlighted in the Qur'an as being achieved through openness and forgiveness, rather than punishment-and especially disproportionate punishment which is deemed unlawfu1. 143 Furthermore, openness comes through consultation and dialogue, and perhaps modem Muslim jurists can pull from the theory of justice through dialogue, as detailed by Richard Shapcott. For Shapcott, justice is attained through recognition and a complete inclusion of all actors in dialogue. 144 Justice dialogue can be the most parallel to

Islamic ethics on justice in that the idea of consultation requires dialogue and inclusion of all parties. Through ijtihad, the ideas of justice can be practiced; moreover, through the utilization of consultation and theories on justice as recognition and dialogue, the propagation of justice and human rights can prevail. Jurists cannot forget however, that the Qur'an "serves as the basis for the establishment of justice as a moral principle and as a religious duty;" therefore, it can be noted that the first two theories of justice by Rawls

142 Ibid. 5.

143 Surah Al-Maida (The Repast) 5:39. "As for him who repents after having done wrong, and makes amends, behold, God will accept his repentance: verily, God is much-forgiving, a dispenser of grace."

144 Richard Shapcott, "Cosmopolitan Conversations: Justice Dialogue and the Cosmopolitan Project," Global Society 16, no. 3 (2002): 222. 77 and Hursthouse, cannot complement Islamic ethical theories of justice because they do not contain comprehensive moral doctrines. 145

For Shapcott, justice dialogue is inclusive of all actors in order to create mutual understanding-not to win an argument-the same idea can be applied to jurists who practice ijtihad to pursue justice. "Justice as recognition conceives ethical questions in terms of how to do justice to those who are marginalized or excluded because of their different identities or because they are seen as "other."146 Those who are marginalized and excluded from dialogue are exactly the members of society that justice within Islam is meant to protect and seek out. In a number ofverses in the Qur'an,justice is mentioned as being key to dealing with orphans, the destitute and the needy, for example: "therefore, the orphan shalt thou never wrong, and him that seeks [thy] help shalt thou never chide, and of thy Sustainer's blessings shalt thou[ ever] speak."147

The ethical ideas of justice within Islamic discourse are not meant simply for

Muslims within Muslim communities; indeed justice is supposed to be a universal ideal.

·Concurrently, the propagation of human rights as tied in with justice needs to be catapulted to a new level.

145 Maher Hathout, In Pursuit ofJustice: The Jurisprudence ofHuman Rights in Islam (Los Angeles, CA: Muslim Public Affairs Council: 2006), 27.

146 Richard Shapcott, "Cosmopolitan Conversations: Justice Dialogue and the Cosmopolitan Project," Global Society 16, no. 3 (2002): 221-222.

147 Surah Ad-Duha (the Bright Morning) 93:9-11. 78

Islamic Notion ofHuman Rights

Acknowledging diversity among the global human population is key to promoting human rights, especially within the Islamic context. Part of promoting democracy, pluralism and positive peace through ijtihad is the notion that human rights are afforded to all humans regardless of their gender, religio-socio-political affiliations and ethnicity.

Within the diversity of cultures and people, there is a commonly shared notion of human rights throughout all major cultural traditions. The age old question of whether human rights can be universal or not, was discussed and codified in 1948 with the universal

Declaration of Human Rights. Within this document, the principle respect for and protection of human rights was laid out and intended for states to abide by. However,

"the main difficulty with working to establish universal standards across cultural, and particularly religious, boundaries is that each tradition had its own internal frame of reference because each tradition derives the validity of its precepts and norms from its own sources."148 Although there may be difficulties in getting certain cultures or religions to accept the principles laid out in the UDHR, we must keep in mind that the moral factors driving the principles of justice and human rights in the UDHR are shared by the peaceful and humanistic factors of religions. Concurrently, from this perspective, there

148 Abdullahi Ahmed An-Na'im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law, (Syracuse, NY: Syracuse University Press: 1990), 223. 79 are Muslims who indeed argue that "it is possible to relate Islamic and modem secular discourse on human rights to each other in the present world." 149

Classical Islamic discourse on human rights can serve as a positive influence on current debates within Muslim societies and others as well; furthermore, in an age of globalization, Muslim communities will respond better to reopening the discussion on human rights with a more developed and reintegrated human rights discourse coming from Muslim jurists. Modem jurists can definitely make a positive contribution in the discourse of human rights by being consistent with historical contexts, traditions and texts. From a secularist perspective however, religious discourse may be counterproductive because "the emphasis on the religious community based on brotherhood in the true faith may also be seen as a source ofweakness."150

Another source of contention between religious and secular discourse on human rights is the concern that along with the UDHR, the Organization of Islamic Conference has created a Universal Islamic Declaration of Human rights-which, in theory sounds like a plausible idea; however, current trends show that states within the OIC have used the UIDHR to cut back on rights protected by the UDHR, all in the name of Islam. 151 The minds of jurists within these states need to be free and not under the control of the

149 Recep Senturk, Sociology of Rights: "I Am, Therefore I Have Rights:" Human Rights in Islam between Universalistic and Communalistic Perspectives, Muslim World Journal ofHuman Rights 2, no. 1 (2005): 3.

150 John Rawls, A Theory ofJustice, (Cambridge, MA: Harvard University Press: 1993).

151 Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO: Westview Press: 2007), 3. 80 authoritarian leaders who place great constraints on juridical rulings that may undermine the power political game in which they play. The international community cannot simply go on to impose their ideas that human rights are incompatible with Islamic societies; there are indeed debates within these Muslim communities on how to approach human rights based on the Qur'an and Sunnah, "to maintain that human rights are somehow alien to Muslim societies implies that the only legitimate Islamic models are those resembling the traditional Islamic institutions of previous centuries-thereby ignoring the vast changes that have occurred as a result of modernization and the institutional borrowings that accompanied that process."152

Universal vs. Communal Perspectives on Human Rights

Theoretically, the UIDHR is a smart tool for states within the OIC to promote human rights without having the external pressure of the international community imposing their ideas of what human rights should be; however, in conjunction with the

UIDHR, there needs to be a serious revamping of the message and promotion of human rights within these states by jurists who are willing to honestly interpret the ideas and principles laid out in the Qur'an and Sunnah. Inherently, the two rival paradigms stem from the debate on communalistic versus universalistic perspectives. The paradigmatic

152 Ibid., 11-12. 81 clash consists of universalists arguing for equal human rights for all, whereas communalists argue for equal rights for citizens under the state-be they Muslim or non-

Muslim. 153

Universalists argue that human rights are afforded to each and every human being by virtue of being born a human; concurrently, jurists that follow the Hanafi school of thought tend to be universalists in that they believe authority cannot take away rights because rights are afforded to humans unconditionally at birth.

The universalistic jurists used mainly the following argument while defending their doctrine: (1) God's purpose in creating humanity, the trial and holding them responsible for their actions, cannot be achieved unless all human beings are granted sanctity and freedom. (2) A human being must be protected because God does not want His creation to be destroyed, which is possible only by granting sanctity to each of them. (3) God in the Qur'an and Prophet Muhammad in his sayings strictly prohibited assaulting and slaying any human being. They ordered protecting non-Muslim women, children and clergy even during war. (4) Disbelief is not normally harmful to Muslims unless the disbelievers engage in a war against Muslims. So it must be tolerated. ( 5) Jihad is a defensive, but not an offensive, war. Therefore, when non-Muslims do not assault other people they should enjoy sanctity. (6) The objective of war is not to exterminate the enemies but to force them to make peace and, if required, pay tribute. (7) The justifying reason for war is protecting sanctity against those who assault it. The disbelief of enemies is not a valid reason to make war against them. Therefore when peace prevails everyone must enjoy sanctity. (8) The non-Muslims must be given chance to learn about Islam which they cannot do unless they are granted sanctity. (9) Compulsion in religion is forbidden in the Qur'an.154

153 Recep Senturk, Sociology of Rights: "I Am, Therefore I Have Rights:" Human Rights in Islam between Universalistic and Communalistic Perspectives, Muslim World Journal ofHuman Rights 2, no. 1 (2005): 9.

154 Ibid., 12. In point 3, God states in the Qur'an, "Who so slays a soul not to retaliate for a soul slain, nor for corruption done in the land, should be as if he had slain humankind altogether." Surah AI-Maidah (The Repast) 5:32. In point 9, God commands in the Qur'an, "Let there be no compulsion in religion: Truth 82

The argument above stems from the juridical usage of ijtihad in which the uluma' used the Qur' an and Sunnah as the main foundations, and then followed those with personal logical interpretation of what naturally would stem from the Qur'anic root. Two positive consequences and examples of this approach of ijtihad to human rights are as follows: in

Egypt, Amr ibn 'As allowed the Egyptians to practice their customary and locals laws, however, he prohibited them from sacrificing a girl to the Nile River for more water; his justification behind that prohibition was because that custom violated the right to life.

Additionally, in India, Hindus were also permitted to practice their local customary laws; however, they were prohibited from the custom of sati in which the widow was burned alive, alongside her deceased husband, and this prohibition was justified also because it contradicted the right to life. 155

Communalists on the other hand, tend to come from the Shafii school of thought and argue for equal rights for all under a state, based on three approaches.

(1 )The injunction on fighting against infidels in the Qur' an is a general commandment. (2) The Prophet said "I am ordered to fight against people until they say: 'there is no deity but Allah.' (3) Disbelief, they argue, is the worst sin and cannot be allowed. 156

stands out clear from error: whoever rejects evil and believes in Allah hath grasped the most trustworthy hand-hold that never breaks. And Allah heareth and knoweth all things." Surah Al-Baqarah (The Cow) 2:256.

155 Ibid., 13.

156 Ibid., 16. 83

This school of thought is definitely more rigid and literal in their readings and interpretation of the Qur' an and Sunnah. Their interpretation is criticized by many in that they do not account for modem times as a foundation of the context in which they seek to instill ijtihad; they continue to be bound by the times in which the Sunnah and/or

Qur'anic texts were revealed. Additionally, other jurists argue against their three approaches because it does not give a chance for non-Muslims to learn about Islam; it simply allows for Muslims to wage an affront against them if they do not automatically accept Islam. I also fmd their reading of the texts to be problematic in that they do not account for the status of non-Muslims as still being People of the Book. "Punishing disobedience against God is not the duty of people unless their well-being is affected by it; furthermore, the compulsion to accept Islam is forbidden." 157

Conflict Resolution in Pursuit ofHuman Rights

What is truly fascinating are the inherent tools within Islam to deal with conflict through a myriad of ways. Generally, Western tools of conflict resolution tend to dominate the conversation with peace builders. In this subchapter, ijtihad can really play a pivotal role in revamping tools already inherent within the religion, to resolve conflict.

Through globalization, the international community has experienced massive conflict

157 Ibid., 17. 84 both inter and intra state wise. The Muslim world has indeed experienced its share of conflict, and continues to do so today. Part of the conflict in the Muslim world is the rejection of Western cultural and ideological imposition. Ironically, the West and Islam are not so diametrically opposed that they cannot exist in comity; however, the actions of a few have certainly signaled the struggles both groups must endure to overcome the superficial attitude perpetuated by the media that they cannot exist concomitantly.

"Since the 1980s, Islamic fundamentalist movements have been gaining public and political support in Muslim societies, particularly in Arab countries."158 Accordingly,

Western precepts of conflict resolution have tended to be Western imposed onto the region. Suggesting Western theories of conflict resolution in the Muslim world has come under scrutiny because Muslims view this as an imposition. According to Abu-Nimer, there are three objectives as to why Western theories of conflict resolution can be effectively applied in the Muslim world:

(1) Teaching or exporting Western perceptions of conflict resolution to Islamic groups (assuming that the Western approaches are more developed and effective in resolving conflicts than those employed by local communities) (2) Exploring alternatives to learn how to control radical groups within the existing conflict management frameworks of their countries (3) Acquiring more knowledge and a better understanding of the background and context of Islamic movements and utilizing such knowledge to increase the degree of legitimacy and credibility of implementing newly modified conflict management tools (i.e., those inherited from culture and religion in addition to other innovative and appropriately adopted methods) to settle political and

158 Mohammed Abu-Nimer, Conflict Resolution in an Islamic Context: Some Conceptual Questions, (Lanham, MD: University Press of America: 2001), 124. 85

religious differences within and among the various political, social and religious groups as well as the grassroots movements in Muslim societies. 159

The problematic notion that Western theories on conflict resolution approaches may be

"more developed" than those of Islamic indigenous ones is avoidable once one becomes acquainted with the tools and practices of Islamic conflict resolution. Practitioners need to be aware ofthe deep history, traditions and resolution and management tools that run through Muslim societies when faced with conflict. Concurrently, Western practitioners need to be aware of the high levels of mistrust caused by years of oppressive colonialism, when trying to impose Western tools of conflict resolution. In pursuing the promotion of human rights through ijtihad while resolving conflict, it should be noted that applying

Western notions of conflict resolution approaches in Islamic societies can be highly problematic. "In Arab-Islamic societies, Western techniques of conflict management and resolution are learned and adopted by urban professional groups such as businessmen or businesswomen, bankers and engineers."160 For most Muslims in traditional Muslim societies however, conflict resolution is still left up to customs. Furthermore, considering there are different definitions of what conflict even entails, and the importance of communal and group solidarity within Muslim societies, the assumption that everyone defines conflict, and therefore resolves it the same, can start resolution practices off on

159 Ibid., 124.

160 George Irani and Nathan Funk, Rituals ofReconciliation: Arab-Islamic Perspectives, (Lanham, MD: University Press of America: 200 I), 177. 86 the wrong foot. 161 If there is indeed a conflict that parties can mutually agree is prevalent, the steps leading to resolution may once be hindered by the stress on different needs within the community. To exemplifY this situation, I highlight the stress of the importance of community and emotions in Islamic societies, whereas the West stresses the individual's interests and less on emotions.

Islamic Approaches to Conflict Resolution

Historically, there have been precedents set by the Prophet when dealing with conflict resolution. Many Muslim leaders have been in engaged in negotiation, mediation and reconciliation based on the Prophet's examples. There are well documented sources on the use of arbitration, or tahkim, in Islamic tools for political conflict resolution. By stressing the importance of the resurgence of ijtihad, tahkim can once again gain legitimacy in the conflict resolution world. Moreover, in an area plagued by conflict, tahkim can effectively present an atmosphere of peace for positive peace to be sustainable.

It is reported that modem day Muslim fundamentalists interpret tahkim to mean,

"adhering to divinely inspired principles and doctrines and the negation of the legitimacy

161 Ibid., 130-131. Abu-Nimer lists the differences in defming conflict between the West and Middle Eastern/Islamic assumptions. 87 of their diverse and differing human interpretations."162 Rather than utilizing ijtihad in a positive way, these fundamentalists initially only use ijtihad to argue for their right to adhere to principles and doctrines, but then choose to ignore the human condition context surrounding those principles. When the Prophet Muhammad migrated from Mecca to

Medina, he set up a Constitution, under his leadership as the arbitrator of the newly formed pluralistic community. From among the important points in the Constitution of

Medina, the Prophet acknowledged his position, as well as the egalitarianism of the community.

(1) The city is made up of many religious communities. (2) However, it is one political community headed by the Prophet. (3) Each religious community is to follow its own religion in its internal affairs. (4) Tribal structures are to be maintained, especially on social and economic issues. (5) The Jews are part of the political structure and subject to it. They fight alongside the Muslims and participate in peace making. (6) In case of conflicting interpretations of this constitution, God and Muhammad are its arbitrators and interpreters. 163

Indeed, the Prophet stressed the importance of arbitration within the newly formed community, because inevitably, conflict would arise with such a diverse population.

When the Prophet was asked to act as a judge, or arbitrator, between two non-Muslims or non-Muslim groups, he would utilize the Qur'anic text as his source of foundation

162 Ahmad Moussalli, An Islamic Mode/for Political Conflict Resolution: Tahkim (Arbitration), (Beirut, Lebanon: American University ofBeirut: 2001), 45.

163 Ibid., 51. 88 however, his human arbitrations were never "subject to legal enforcement."164 The

Prophet went as far as using Jewish law to apply to Jewish arbitration situations to retain the utmost fairness. The qualities of an arbitrator must be just, equal and fair in all cases; concurrently, the arbitrator must exhibit these characteristics in everyday life as well.

Even the Prophet Muhammad had to "shun mere interest or prejudice and ignorance and follow justice and divinely ordained laws of all peoples as well as accepting the peculiarities of nations and religions."165 Tahkim was not just used in religious and political roles, it was also utilized in the social, economic and private realms as well.

Inherently, arbitration is a form of ijtihad. Arbitrators looked to religious text as well as the practices and actions of the Prophet and had to decide on a fair and just ruling for whatever the situation entailed. Because tahkim can take place within any scope of life (i.e., social, political, religious, etc.), I argue for the sincere and honest use of ijtihad to incorporate methods of tahkim in modem practices to promote a sustainable atmosphere of positive peace, and in doing so, reacting against those who seek to oppress and violate human rights. Indeed, the practice of tahkim encourages and even promotes pluralism, because it has been shown historically, that even the Prophet himself looked to other religious sources to decide fairly upon a case. Furthermore, ''the implication of

Islamic arbitration for conflict resolution on the national and international levels connotes the acceptance of pluralism and diversity," by acknowledging and "accept[ing]

164 Ibid., 52.

165 Ibid., 53. 89 substantive religious, ideological and political differences. With the promotion of democracy, the inclusion of many religions and the social and economic needs of the people being met, tahkim allows for full cooperation among all members of society,

"even on those sensitive issues of war and peace." 166 As noted previously, diversity and pluralism has been upheld in Islam, than any other Abrahamic tradition.

Unfortunately, with deep political, and especially religious, rifts causing the majority of conflicts around the world today, it is perhaps unwise to think that tahkim in the traditional sense might be appropriate; however, I only mean that to the extent of the arbitrator settling a conflict from a religious platform. I do believe, that with progressive ijtihad, an arbitrator may be used to settle conflict as a political, not religious, arbitrator.

If we consider a conflict like the Israel-Palestine issue to be an example of using a national arbitrator, not a religious one, then we can see the apparent success in not utilizing a religious arbitrator. If both Palestinians and Israelis insist on settling their differences through religious arbitrators, the dilemmas facing any sort of resolution are endless. When jurists consult through shura, the end result does not always have to be an agreement on the acceptance of tahkim through a religious arbitrator; in fact, even the

Prophet used to perform tahkim as a national arbitrator when the circumstances deemed fit. Although Prophet Muhammad's political authority went uncontested in the first

Muslim community, an entire religious community did reject his religious authority (the

166 Ibid., 66. 90

Jews in Medina); in this case, the Prophet sometimes had to act as a national authority while deciding on cases, rather than a religious figure.

Another form of conflict resolution that can be successfully utilized by jurists using ijtihad is the sulha tradition, or reconciliation. Sulha is "an authentic conflict resolution mechanism in the Middle East, dating back to pre-Islamic times, that attempts to reconcile conflicts between rival parties."167 The sulha tradition, much like tahkim, aims to satisfy all parties in conflict, rather than the Western tradition of taking conflicts to court in which there can only be one clear winner. The sulha tradition is not a zero-sum game; unlike tahkim where sometimes an arbitrator may prono1,lllce one party to be less guilty in their offenses. Indeed the call to reinvigorate the sulha tradition is extremely important at this juncture in modem times due to the prevalence of conflict on a global scale. Within the Islamic tradition, sulha is mentioned and utilized as being a just form of conflict resolution; for example, the Qur'an states, "if two parties among the believers fall into a fight, make ye peace [sulh] between them ... make peace between them with justice, and be fair; for Allah loves those who are fair (andjust)."168

Being constrained in the realist paradigm of global politics, may pose obstacles for jurists to proscribe the sulha method of conflict resolution in order to meet just and fair standards; however, regardless of the paradigmatic enclave we happen to live in,

167 S. Ayse Kadayifici-Orellana, Standing on an Isthmus: Islamic Narratives on War and Peace in Palestinian Territories, (Lanham, MD: Lexington Books: 2007), 263.

168 Surah Al-Hujurat (The Private Apartment) 49:9. 91 humanity craves peace. According to prominent scholars, there are two types of sulh; private and public sulh.

Public sulh can be compared to a peace treaty between two countries to end conflict for a period of time. It takes place to resolve conflicts between tribes, or communities, or different religious groups. Private sulh takes place when there is a conflict between the members of a community who know each other. The aim of private sulha is to avoid revenge and to restore harmony within a community. The outcome of sulha can be total peace where two parties of the conflict forgive each other, forget what happened and do not hold any resentment towards each other. The outcome of sulha can also be partial or conditional where the conflict between two parties ends according to the agreed conditions set in the peach process. 169

It should be noted that there have been numerous examples of the sulha tradition within

Islamic history, and currently, there are Muslims who implement the ideas behind sulha to try and create reconciliation efforts in conflict zones. The sulha tradition is most notably exemplified in the Hudaybiya Treaty. The treaty was between the Medinan

Muslims and Meccan Quraysh tribe members. The Hudaybiya Treaty still has lasting effects contemporarily because groups such as Hamas in Palestine, do see the legitimacy in having a peace treaty last more than ten years (as was the case with the Prophet

Muhammad and the Meccans who broke the treaty after ten years). This sort of rigid, textual interpretation of what is meant to be a tool to create peace and opportunities simply regresses any type of conflict resolution practices that have taken place thus far.

The treaty was a necessity, and in that sense, was almost heavily in favor of the Meccans

169 S. Ayse Kadayifici-Orellana, Standing on an Isthmus: Islamic Narratives on War and Peace in Palestinian Territories, (Lanham, MD: Lexington Books: 2007), 263-264. 92 rather than the Muslims; however, because peace was extended, the Muslims had to accept it. 170

Symbolic gestures and rituals play a maJor role in the sulha tradition and therefore, jurists can successfully implement more local traditions and customs to make the sulha experience more local to where the conflict occurred. 171 The sulha tradition, would argue, is a more grassroots, community oriented conflict resolution tool; therefore, without requiring the resources of the state, the sulha method can be implemented throughout the international community. The importance of not having to rely on the state actor is that two-fold. First, the state apparatus generally pushes for the status quo, and in that sense, it pushes for a continuum of the realist paradigm which enforces negative peace. Secondly, the state may employ fear tactics against anyone involved in reconciliation efforts if it undermines the "stability" of the state.

170 Prophetic Hadith as narrated by Sahih Muslim, "Whoever kills a person who has a truce with the Muslims will never smell the fragrance of Paradise." Surah Al-Anfal (The Spoils of War) 8:61. "But if the enemy inclines towards peace, do thou also incline towards peace, and trust in Allah: for He is the One that heareth and knoweth all things."

171 S. Ayse Kadayifici-Orellana, Standing on an Isthmus: Islamic Narratives on War and Peace in Palestinian Territories, (Lanham, MD: Lexington Books: 2007), 264. 93

Unlike tahkim, a pivotal factor in the sulha tradition is the importance of forgiveness. With the characteristic of forgiveness involved, the idea behind sulha is that the conflicting parties can move on and eventually live in harmony. It should be stressed here again, that there are different definitions of conflict, and therefore conflict management and resolution, in different parts of the world. Concomitantly, the Muslim world tends to be more community based oriented, as opposed to the West's notion of the individual over the community. Sulha may be more effective than tahkim in some cases where entire communities, groups or different religious/ethnic backgrounds are concerned. Additionally, in places where a centralized government is not strong, sulha can create a sense of reconciliation among members of society. For example, in Lebanon after the civil war ended, ''the path to resolution [on the local level] went through local religious figures or the political leader, not through the social workers (who were state trained)."172 In Arab-Muslim larger cities, according to Irani and Funk, individuals are most likely to approach conflict resolution through the court system, whereas the large segments of society that live in villages in the outskirts of the cities, are more likely to visit the religious leaders or heads of tribes, clans villages. 173 Again, to reiterate, the point of the sulha tradition is not to find a winner or loser in the conflict, but to create an atmosphere of reconciliation-ultimately to really deal with the underlying issues of the

172 George Irani and Nathan Funk, Rituals ofReconciliation: Arab-Islamic Perspectives, (Lanham, MD: University Press of America: 2001), 178.

173 Ibid. 94 conflict in order to move past; individuals may not feel so inclined to the court system if rampant levels of corruption exists or the law seems to cater only to the powerful or economically well-off.

Societies coming out of conflict cannot just go about "business as usual" if the underlying tensions have not been resolved; the sulha method, which I argue to be very similar to a truth commission method, seeks to investigate and resolve the underlying hurt and issues to create conditions of trust and reconciliation. The sulha method of conflict resolution is widely used in Palestine/Israel. Within the Palestinian/Israel, sulha traditions are applied to "conflicts over land and resources between Christian, Muslim, Druze and at times Jewish individuals and communities."174 The beauty of the sulha tradition is that it is an all-inclusive form of justice, whereby dialogue and pluralism are stressed. Sulha does not just have to be utilized by Muslim; any group that fmds itself in conflict can implement methods from the sulha tradition to reconcile the parties. In fact, Arab

Christians and Druze as well as Muslims partake in rituals of sulh, and the process itself closely parallels the prescriptions of the Qur' an, which regulates the extent of punishment and retribution with the principle of equity and enjoins forgiveness in cases of apology and 'remission. "'175

174 S. Ayse Kadayifici-Orellana, Standing on an Isthmus: Islamic Narratives on War and Peace in Palestinian Territories, (Lanham, MD: Lexington Books: 2007), 266.

175 George Irani and Nathan Funk, Rituals ofReconciliation: Arab-Islamic Perspectives, (Lanham, MD: University Press of America: 2001), 185. 95

Reiterating back to the idea of Shapcott's notion of justice dialogue, the sulha method of conflict resolution certainly embodies those principles. If utilized correctly, sulha can even be part of the reconciliation efforts within intra-Palestinian conflicts­ more specifically, with Hamas and Fatah. By engaging in a dialogic process of sulha,

Hamas' justice will come in the form of recognition and the fact that their legitimacy will be brought to the reconciliation table. However, there are pitfalls to avoid in taking the local sulha tradition to a state level in that it "requires a careful study and examination of the conditions, expectations and values of all the participants involved."176 So far, all parties in the Palestine-Israel conflict have indicated a need to retain their honor and dignity throughout any kind of peace talks or resolution/management dialogue; the sulha method is meant for exactly that. Unfortunately, no party has yet to remain honorable or dignified, which is partly the reason for the failed negotiations. Regrettably, currently, the implementation of public sulh has yet to be as effective as its potential can be.

Conclusion

Within the realist paradigm of global power politics, it is imperative to retain a sense of humanity. The human rights conditions across the world are atrocious, and the conditions for any sort of positive peace are not either existent, or sustainable.

176 Ibid. 96

This chapter argued the importance of the use of ijtihad, with current ethical discussions of justice and human rights, to create such positive conditions. In reality, jurists can sincerely use the Qur'an and Prophetic principles to ascertain different methods of creating and sustaining justice as well as propagating human rights.

Justice is a virtue deeply embedded in Islam. It is mentioned in the Qur'an with respect to a myriad of situations (i.e., lying, honesty, fairness, etc.) and yet, it seems that the status quo of injustice prevails. Certainly, with the promotion of true ijtihad, jurists

(without the political pressures of the state), can truly demand justice in their rulings by basing it on Qur'anic principles and the Sunnah. If we want peace and justice to prevail, we must prepare for peace and justice; meaning, we must seek reconciliatory efforts, justice through dialogue and recognition of ''the other," and be willing to forgive. Indeed, justice is one of the most important aspects to securing positive peace.

In terms of conflict and human rights, it is important to realize the process of forgiveness and reconciliation are truly important factors to creating sustainable peace.

Jurists can reference religious meanings to texts and actions for eternity; however, without the implementation of critical analysis and human reasoning-and more importantly musalaha- the point of ijtihad is moot.

Within Islamic discourse, there are tools inherent to resolve and manage conflict.

To simply impose any sort of outside conflict resolution tools is to completely discredit 97 the local traditions and customs-which then leaves the conflict resolution practice unviable. To curtail the idea that Western tools of conflict resolution are simply "neo­ colonial," it takes a global effort to recognize local traditions and customs of peace and conflict resolution. As I argue in this chapter, the use of Islamic tools of conflict resolution is ijtihad in and of itself. Scholars can utilize approaches to conflict resolution from both a religious and secular perspective, based on the understanding that the outcome they seek to achieve is a just and fair one; the Qur'an does not specify one person, or group to which justice can be attained, indeed the Qur'an promotes justice for all. ETHICAL IMPLICATIONS OF THE USE OF IJTIHAD AND CONCLUSION

"And among His Signs is this, that He createdfor you mates from among yourselves, that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts): Verily in that are Sign for those who reflect. And among His Signs is the creation ofthe heavens and the earth, and the variations in your languages and your colors: verily in that are Signs for those who know. "177

The reopening of the gates of ijtihad within Islamic ethical discourse is certainly a much discussed topic, contemporarily. After the four schools of thought within Sunni

Islam were established, Muslims felt comfortable enough to rely on their rulings and follow their juridical decrees (taqlid). That way of Islam may have provided those

Muslims a way of life that did not conflict with their global surroundings. However, in an increasingly globalizing international community, it is imperative for Muslims to reopen the gates of ijtihad and realize the human reasoning skills bestowed upon them to enmesh current problems with contemporary Islamic solutions. Increasing practices of ijtihad can truly push the Muslim world positively back into the global arena to successfully face criticisms of backwardness and a new world order where accusations of Islam not being congruent with modernity are being made.

The daunting question of whether or not we must modernize Islam or Islamicize modernity is to be caught in a web of semantics. However, because ijtihad has been a practice inherent in the religion beginning from the times of the Prophet Muhammad, the

177 Surah Ar-Rum (The Romans) 30:21-22. 98 99 only reforming or modernizing contemporary jurists are doing, is realizing the current political, social and economic environments when dealing with issues of globalization and Islam. Islam, as any other religion and even cultural group, has had to deal with centuries of change. In an era of great technological innovations, Muslims must face novel situations of ethical boundaries. Although the Qur'an may guide Muslims in terms of ethics, virtues, and manners, it does not give a rigid "how-to" guideline for people to interact with each other. Certainly, we are to act courteously, justly and fairly when dealing with anyone; however, in cases such as conflict, jurists can now implement ijtihad to deal with novelties such as biochemical warfare and the Islamic ethical implications thereof

There are those who call ijtihad a form of modem religious innovation (which as reported previously, is unlawful in Islam); however, they are using ijtihad within their own claim to not use it! The rigid and literal interpretation of rejecting current environments and circumstances produces societies where oppression is rampant and justice is unheard of, all in the name of religion. Muslims have a hard time with accepting

Western notions of politics, law and even religion and state, because of their torrid history with colonialism and imperialistic policies that devastated the Muslim world.

However, Muslims should not be fearful of the West and all it entails, because there are positive contributions that can be made in the Muslim world, if accepted. Muslims argue that they want to fmd solutions to problems within their own context and own discourse; however, even the Prophet Muhammad, when dealing with tribes of different religious affiliations, ascertained that the best way to deal with ''the other" is to know ''the other." 100

The Qur'an even specifies the importance of"getting to know one another" so that peace and tranquility may be established on earth. There are talks of Western and Islamic civilizations; and yet the frustration from the Muslim world comes from within because the height of the Islamic civilization ended centuries ago. Now is the time for a renewal of Islamic ethics, according to the principles laid out in the Qur' an and Prophetic traditions.

A call to adhere to the virtuous characteristics presented as guidelines in the

Qur' an and Sunnah needs to be made and enforced within current Islamic discussions to contemporary problems. It is not enough to pay mere lip-service to the Qur' an and

Prophet; Muslims need to actively engage with their communities and strive to establish environments and conditions for positive peace. The absence of war is no longer enough to attain a feeling of"peace," certainly there is more to peace than the absence of war and through ijtihad, I argue the promotion of social, economic, political and most importantly human justice can truly prevail.

There are critics who claim Islam and the West cannot survive simultaneously, and I argue that is a complete fallacy. As I have presented evidence previously, I show that indeed the principles that are most important within the Islamic tradition are in fact congruent with the principles stressed in Western societies. Modernity does not have to be a negative term in Muslim societies; ijtihad can help usher the current Muslim civilization into modem times with the exact virtuous characteristics I mentioned. The resolve to live and remain faithful to Islam and to its values and principles does not mean a refusal to live within one's present time. Moreover, I would argue that indeed the 101 opposite prevails: "rethinking a tradition-that is anything but a static reality to appear a caricature opposed to the ongoing movement of "modernity"-whole giving oneself the means to give meaning and outcomes to the means produced by "modernity" reveals a will to devise a faithfulness that is considered impossible without a continued process of re-formation, or reform."178

For Muslims to inconsistently utilize ijtihad for their benefit, or the benefit of the state, is to act immorally and unethically. The ethical implications of utilizing ijtihad are in essence part in parcel with being a Muslim. Within the Qur' an, the intention of every action is stressed as being judged just as much as the action itself; therefore, the intent behind any juridical ruling by a jurist using ijtihad is also judged as much as the justness of the ruling itself. Moreover, "more ethics in science, politics and economics at the heart of the modem era does not mean refusing "modernity," but calling for the dignity of humankind in history."179 Indeed ethics serve to be a type of checks and balance system for the moral world and Muslims should not be averse to such positive ideals.

There is nothing new about the concept of trying to renew and reform the understanding of Islam and its traditions. The very notion of the religion of Islam was a renewal and reformation of faith from the Jewish and Christian traditions. What is at stake now however, is devising a means to establish the legitimacy of those who seek to renew Islam again in modem times. Just as technology has had to be reformed to meet the need of modernity, Islam too, must do the same to keep up with ethical and political

178 Tariq Ramadan, Radical Reform: Islamic Ethics and Liberation (NY, NY: Oxford University Press: 2009), 146.

179 1bid., 147. 102 frameworks of the global community. Of course, the reformation and renewal, through ijtihad, must be done based on the foundations and ideas that any outcome will not oppose the Qur'an or Sunnah. However, this should not be seen as a roadblock by jurists because, as stated previously, the Qur'an and Sunnah provide guidelines; it is only those jurists who seek to read and interpret texts literally and rigidly that fmd themselves being bound by words and not ideas.

I sought to argue the importance of reopening the gates of ijtihad in Islam and through this endeavor, I chose to look at specific contemporary issues that plague both the religious and secular world internationally. I thought it was important to start the paper off with a background history of the schools of thought in Islam and the jurists' use ofijtihad when confronted with a situation not dealt with in the Qur'an. I highlighted the four prominent schools within Sunni Islam (Shafii, Hanbali, Hanafi and Maliki) and the

Jafari school of thought in prevalent in Shia Islam. It should be noted that the case studies following the first chapter are geared more within the Sunni Islamic school of thought since it is known that the Shia gates of ijtihad have always remained open. Therefore, unless I have specified that a jurist comes from the Shia school of thought, the text should be read as though I have stated it is within the Sunni sect.

The jurists who founded the schools of thought, within both Sunni and Shia sects, utilized ijtihad in different ways to derive conclusions based on situations they encountered. Some jurists stressed the importance of ijtihad, while others put more importance on another aspect such as the saying and actions of the Companions of the

Prophet. 103

Next, I deemed it important to discuss governance and the promotion of democracy through ijtihad within Muslim societies. In that chapter, I laid out the evidence as to why I believed democracy would be the best form of governance in

Muslim societies; in fact, I argued that democratic and Muslim principles are congruent and can indeed coexist. I highlighted the use of shura, or consultation as a source of democratic means already present in Muslim societies and communities and pointed to the level of high degree it holds in Islamic history. Shura is clearly a way that true democracy can slide into Muslim communities while promoting political, social and economic justice. The implementation of democracy and shura can also be useful in promoting pluralism, which I presented as being historically prevalent, however in recent years, leaders tend to shun pluralism in any form if it looks like it may destabilize their power structure. And finally, I concluded with economic justice. Economic justice is just as important in establishing an environment of peace as any other form of justice. I did not attempt to back any specific form of economic system for I am not a student of economics, however my main argument was that through the use of ijtihad, jurists can form more pluralistic and fair principles of creating ethically backed economic systems that can thrive in the current global economy.

In promoting democracy through ijtihad, and especially with creating conditions for pluralism, I then decided to discuss women's rights and their role in Muslim society.

The shift in consciousness when it comes to women needs to occur before viable discussions on the reapplication of her rights can happen. Sure Islam provides a plethora of wonderful rights to women, but if the implementation is not there, then what is the 104 point? Women need to be included in the discussion of their rights and roles as women in society. Traditionally, the Prophet and the Qur'an set high standards for women and yet misogynistic interpretations of the text continue to oppress women in society. Muslims need to remain faithful to the Islamic ethical backgrounds as to why the rights are afforded in the first place: equality. Indeed equality is a theme found throughout the

Qur'an time and time again and yet because Muslim males tend to be the jurists, the interpretation and perspective of the text is masculine. Within the chapter on women, I sought to argue for the inclusion of women in the discussion on rights as exemplified by past traditions and customs within the religion. There needs to be a call from women and men within Muslim society to create dialogue on the role and status of women; it is truly unfortunate that Muslim women are seen as oppressed figures in Muslim societies.

Calling on the human mind and heart are indeed important in the subject of women in

Islam, and as an extension the overall human rights topic.

The ethical implications of justice and human rights in Islam are great. If Muslim jurists, using ijtihad, can successfully create a shift in consciousness and establish conditions for positive peace, then perhaps Muslims would not feel the static slump they are in-and have been in since the Golden Age of Islam ended. Justice and human rights are issues that every civilization must grapple with and in a time where conflict seems to be in every region, ijtihad can aid in innovating new approaches to justice.

The need for ijtihad at this juncture in history cannot be stressed enough. A rethinking of the classical sources is essential; moreover, the language of the Qur'an establishes an allowance for different interpretations. It should be noted, the divine 105 revelation is unchangeable, and I am not seeking to change even an accent mark in the

Qur'an, what I deem necessary for the thrust of Islam into the 21st Century, is the reformation of understanding. Thinking of the Qur' an in a new light can shed new ideas and practices that inherently coexist with the principles laid out in the Qur'an and

Sunnah. The human mind interprets things in terms of its socio-politcal-economic context and therefore, the re-interpretation of the Qur'an is essential as changing times have deemed necessary. Free thinking is important and in fact encouraged in Islam; therefore, reopening the gates of ijtihad comes as a logical conclusion.

After the events of September 11, 2001, Islam and Muslims were thrust into the international spotlight. Correct and many incorrect things were stated as fact and people had no way of knowing the truth unless they sought it out themselves. Through the promotion of positive principles through ijtihad, I argue that Islam can once again be viewed in a positive perspective. The improvement of ties between Islam and the West can be strengthened, and in fact, the corroborating values and principles will be noticed.

Muslims cannot sit back and simply blame the rest of the world for the state of Islam and

Islamic societies; it is time for Muslims to take charge of their own matters to rethink and represent themselves in a positive way. Indeed, the Qur'an even states that God will not change the condition of man, until and unless he changes himself. This is exactly the kind of ijtihad that needs to take place in order to foster viable and sustainable positive peace.

Ijtihad needs to be a continuous process within the Muslim world. Currently, with other fields such as sociology, psychology and medicine, jurists can call upon scholars in these other fields to necessitate the importance of promulgating just and fair efforts. The 106 only restriction to ijtihad is the belief in one God; and indeed in promoting oneness with

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