HUMAN RIGHTS AND ISLAMIC LEGAL REFORM

Louay M. Safi
Is Islam compatible with human rights? This question has been in recent years the focus of
attention of numerous human rights scholars, who have produced varying answers and advanced
conflicting views. Any one who undertakes to study the literature generated in the process of
answering the above question soon realizes that his or her task is exceedingly complex. For one
finds that the foremost critics of traditional shari`a (Islamic law) are united with its ardent
advocates in denying any relationship between Islam and human rights. One also finds that the
proponents of a conception of human rights rooted in Islamic worldview stand condemned by
both modernist and traditionalist scholars: by the former because of their association with Islam,
and by the latter because of their advocacy of human rights. In the midst of the contradiction and
confusion that riddle the discourse on Islam and human rights, clarity and understanding are
sacrificed.
At the core of the confusion lies a static and a historical approach that fails to distinguish
the universal from its historical manifestation in particular forms, and refuses to relate the
applications of the Islamic principles to their historical contexts and premodern socio-political
conditions. Therefore, modern human rights scholars are quick to point out that historically,
Muslims and non-Muslims were not treated equally under shari`a law, in complete disregard to
the gulf that separate the nationalist structure of modern political organization and the
communalist structure of premodern political societies. Likewise, Muslim traditionalists, driven
by a similar static outlook, and oblivious to the drastic social and political changes that separate
historical and contemporary Muslim societies, insist on embracing the rules expounded by early
jurists, even when the application of these historical rules would negate the universal principles
of Islam which gave them force in the first place.
While agreeing with the modern critics of historical shari`a that its application in modern
society would lead to serious violation of human rights, I reject the contention that Islamic law
has been oblivious to the notion of human rights. I argue that the failure of modern critics to
discern a human rights tradition in Islam results from a static and ahistoric outlook that divorce
the shari`a rules developed by classical scholars from the socio-political structure of early
Muslim society.
I further contend that for a modern human rights tradition to take hold in modern Muslim
society, it should be rooted in the moral/religious commitments of Muslims. This can be
achieved not through an imposition of a human rights tradition evolved in an alien culture, but by
appealing to the conception of human dignity embedded in the Qur’anic texts, and by employing
the concept of reciprocity which lies at the core of the Qur’anic notion of justice.
I therefore conclude by showing that the application of the Islamic sources through a
paradigm that incorporates the principles of human dignity and moral reciprocity into a modern
society — characterized by cultural plurality and globalizing technology — is bound to evolve a
human rights tradition capable of ensuring equal protections of the moral autonomy of both
individuals and groups.
HISTORICAL SHARI`A AND ITS MODERN CRITICS
Islamic law (shari`a) has been the subject of an elaborate and penetrating critique by human
rights scholars. Modern scholars who have examined human rights schemes, advanced by
contemporary Muslim authorities, have concluded that these schemes run far short of the
protections provided by international human rights, enshrined in the Universal Declaration of
Human Rights (UDHR). Thus Mayer contends that contemporary endorsement of international
human rights by Muslims is more apparent than real, because all human rights pronouncements
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by Muslim individuals and groups have been curtailed by qualifications rooted in shari`a.1 The
application of shari`a law would lead, she concludes, to serious breaches of international human
rights. More specifically, the application of shari`a law would lead to the erosion of religious
freedom and to discrimination against women and non-Muslims.2
Heiner Brelefeldt echos the concerns of Mayer regarding historical shari`a’s capacity to
provide for human rights protections, particularly for women and non-Muslims. Examining
areas of conflict between shari`a and human rights, he notes:
Due to the timing of its development, it is hardly surprising that the classical shari`a
differs from the modern idea of universal human rights. Although the shari`a puts a great
deal of emphasis on the equality of all the faithful before God, it traditionally assumes
unequal rights between men and women and between Muslims and members of other
religious communities.3
Similar arguments are made by Rhoda Howard, who points out that traditional shari`a fails to
provide for equal protections of the law for women and non-Muslims. “According to traditional
interpretations,” she writes, “Islam excludes entire categories of people, most notably women,
slaves [sic], and non-Muslims, from equality under the law, although it does set out careful rules
for their unequal protection.”4 Haword cautions, however, against any conclusion that would
suggest that the classical legal system was unjust, and goes on to argue that “compared with
Europe until barely a century and a half ago, Islamic societies might well be characterized as far
more just in the modern sense of protecting human rights.”5 Still, Howard is quick to deny the
possibility of developing a modern human rights tradition, rooted in Islamic worldview, insisting
that “Islamic conception of justice is not one of human rights.”6
Perhaps the most penetrating and systematic critique of traditional shari`a is provided by
Abdullahi An-Na`im. In his Toward an Islamic Reformation, An-Na`im discusses specific
examples of violation of religious freedom by shari`a rules, and cites instances of discrimination
against women and non-Muslims in the historical legal system.7 However, unlike the previous
critics of shari`a, An-Na`im realizes that the possibility and importance of evolving a human
rights tradition from within the Islamic normative system, and warns against any external
imposition.8 To do this, he calls for an Islamic reformation aimed at overcoming contradictions
between international human rights and shari`a rules, and proposes a methodological approach
based on what he calls “the evolutionary principle” introduced in the seventies by his late
mentor, Mahmoud Muhammad Taha. According to this principle, the Makkan Qur’an embodies
the eternal principles of the Islamic revelation which emphasize human solidarity and establish
the principle of justice for all, regardless of religion, gender, or race. The Medinan Qur’an,
however, places, it is further argued, the solidarity of male Muslims above all others, thereby
giving rise to discrimination against women and non-Muslims. For this reason, An-Na`im
contends, one finds contradictions between the Makkan and Madinan Qur’an.9 While the
Makkan Qur’an emphasizes freedom of religion and the peaceful coexistence among different
religions, the Madinan Qur’an exerted Muslims to compel the unbelievers to accept Islam, and
introduced measures that discriminate against women and against non-Muslims.10 Rightly
recognizing that classical jurists introduced the principle of naskh (abrogation) to discard early
Qur’anic statements that appeared to contradict later statements, An-Na`im calls for the
application of reverse naskh, i.e. the abrogation of the Madinan Qur’an whenever contradicts the
Makkan.11 An-Na`im concludes by making a passionate plea that succinctly summarizes his
approach:
Unless the basis of modern Islamic law is shifted away from those texts of the Qur’an and
Sunna of the Medina stage, which constituted the foundations of the construction of
Shari`a, there is no way of avoiding drastic and serious violation of universal standards of
human rights. There is no way to abolish slavery as a legal institution and no way to
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eliminate all forms and shades of discrimination against women and non-Muslims as long
as we remain bound by the framework of Shari`a.12
An-Na`im’s proposal seems on its face value to provide a quick fix to the contradictions
between historical shari`a and international human rights. However, the “evolutionary
principle”, alluded to earlier, is not sustainable, I contend, as it can be easily faulted on both
theoretical and practical grounds. First, since the Qur’an is considered by Muslims, as An-Na`im
himself agrees, as a divine revelation, one has to accept the totality of the Qur’anic statements as
a single discourse. Therefore, one is not justified in abrogating the Madinan verses altogether on
the ground that they address a particular historical society. Rather one has to eliminate the
possibility of generalizing particular rules by demonstrating their particularity. Such a procedure
would permit one to arrive at the same result without reverting to a wholesale rejection of onethird
of the Qur’an. Secondly, negating the Madinan Qur’an would not be acceptable by the
bulk of Muslims, including those who agree with An-Na`im that there should be a fresh reading
of the Islamic sources so as to effect a sweeping legal reform. For the Qur’anic statements
revealed in Madina do not only comment on family matters and relationships with non-Muslims,
but also on issues relating to fundamental Islamic practices, such as the performance of prayer,
zakat, fasting, and hajj. Thirdly, negating one-third of a book which the majority of Muslims
consider to be incontrovertible is counterproductive, particularly when it can be shown, as I
intend to do shortly, that the contradictions between the Makkan and Madinan statements on
women and non-Muslims are more apparent than real, resulting from faulty interpretations by
classical scholars, as well as the application of an atomistic methodologies of derivation.
A better and more effective approach to reforming historical shari`a is one that sets out
from the very notion that constitutes the raison d’etre for the articulation of human rights in
Western tradition, viz. human dignity. Since the Qur’anic texts embody clear and developed
notion of human dignity, restructuring shari`a rules — particularly those which relate to the
public sphere — on the basis of the Qur’anic notion of human dignity would lead, I contend, to a
situation in which the civil and political liberties of all citizens — regardless of gender, ethnic, or
religious distinctions — are protected. Further, setting out from the notion of human dignity to
reform the shari`a has another advantage: It has the potential to nurture a liberal tradition
without being limited to the tradition of individualistic liberalism, which many scholars consider
to be Western specific. As will be shown in the next section, developing a human rights tradition
on the basis of Islamic worldview and heritage extends the notion of moral autonomy,
presupposed by human dignity, from the individual to the community.
DIGNITY, RECIPROCITY, AND UNIVERSAL CLAIMS
The critics of shari`a have used UDHR as the standard through which shari`a is evaluated and
faulted. Because UDHR is rooted in the political culture of Western society, and is informed by
the philosophical outlook of Western liberalism, its application in other societies requires that the
universal validity of its principles is made evident to other peoples, particularly those whose
worldviews and historical experiences are different from the West’s. Realizing that the claim of
universality cannot be established on theoretical grounds, most “international human rights”
advocates advance practical and pragmatic reasons for establishing universality claims. Some
emphasize the fact that peoples of different cultural and geographical backgrounds “share a
common humanity, which means that they are equally deserving of rights and freedom.”13
Others point out that the UDHR has been framed by representatives of the various nations that
constitute the United Nations (UN), and hence conclude that UDHR receives the support of
various cultures and religious communities. Still others argue that human rights were developed
in modern times to protect individuals from the encroachment of the modern nation-state.
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Because the nation-state is the basic political organization for all societies and cultures, the need
for adopting international human right to protect individual liberties is universal.14
The pragmatic arguments for the universality of human rights are problematic, because
they either completely overlook the significant impact cultural differentiation has on values and
perceptions, or ignore the fact that agreements through UN reflect, more often than not, political
compromises by political elites, rather than normative consensus. Further, many of the ruling
elites who pretend to speak on the behalf of the peoples of the developing world lack political
legitimacy and public support, and have embraced ideological outlooks at odd with the
surrounding cultures. In the absence of genuine democracy in the countries of the South, no one
can ascertain whether, or to what extent, official policies reflect popular views and preferences.
Given the Western roots of international human rights, and the absence of any theoretical
foundation or practical ground for their universal claims, I propose that a more fundamental
criteria should be used to develop a human rights tradition, rooted in Islamic values and ethos,
and capable of protecting the rights, and promoting the interests of citizens, regardless of
religious, gender, racial, or national distinctions. The fundamental criteria I am referring to are
the concept of dignity and the principle of reciprocity.
Human dignity is the reason for which international human rights have been delineated.
The preamble of the UDHR begins by emphasizing this very point. In Western tradition, the
concept of dignity has been best elaborated by Kant, who points out that human beings are moral
agents, and should hence always be treated as ends, and never as means. Conceiving every
human being as an end means that he or she should always be treated as a subject, capable of
identifying and pursuing his or her interests. This does not mean that one cannot use the services
of others to achieve one’s goals, but that the services they provide must be performed with their
consent, and should be based on their full realization of the intents, significations, and
consequences of their actions. Compelling people to act under the use or threat of force violates
their dignity. Likewise, the Qur’an describes the human person as a unique being among the
creatures of God, endowed with rational capacity to understand the natural order, and to
distinguish right from wrong; and elevated over the entire creation by a moral capacity to
commit oneself to a specific moral vision, and the ability to translate ideas and values to physical
and social forms. Life is presented as a trial in which people have the opportunity to make
choices, and are individually responsible for the choices they make. Therefore, central to the
notion of dignity in both Western and Islamic traditions, is the notion of moral autonomy, i.e. the
freedom to make rational choices, and to accept the outcome of the rational choices one makes.
At the heart of the notion of dignity, though, is not social license to do whatever one
wishes, but a moral character that acts out of deep convictions, including the conviction that one
ought to respect the moral choices of others, and the expectation that others should reciprocate
and respect one’s choices. That is, dignity lies in the profound sense of moral autonomy which
enable the person to behave in accordance with his or her moral commitments and convictions,
regardless of whether others agree with him or her, or approve of their choices. It is for this very
reason that the behavior of those who are willing to give up their moral autonomy, in exchange
for personal gratification, brings to mind the image of a shameless act deprived of dignity.
While those who are ready to withstand adversities, even ridicule, rather than betray their moral
commitments or submit to the arbitrary will of others make us appreciate human dignity.
Although the individual sense of dignity cannot be taken away, but can only be
strengthened, by the use of arbitrary force to restrict moral autonomy, the belief in human
equality, and the transcendental nature of moral responsibility require that the moral autonomy of
the individual be protected by a system of rights from violation by others, particularly by a
superior power, such as the state, or an organized social group. A person who refuses to
compromise deeply held principles in exchange for a generious monetary reward, or in the face
of a serious threat to one’s safety, exemplifies human dignity at its best.
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Yet moral autonomy associated with human dignity is not limited to the individual, but
involves the moral autonomy of the group to which one belongs as well. Because the
concretization of the moral choices one makes requires the cooperation of all individuals who
share the same moral vision, the autonomy of individuals — and hence their dignity — hinges on
the autonomy of the group to which they belong. It is here where the notion of individualism in
the Western and Muslim historical experience diverge. In the tradition of Western
individualism, the individual is seen as a member of a homogeneous community, and the
freedom of the individual means that he or she has the right to enact their moral choices, as long
as they do not violate the freedom of others.15 However, in the tradition of Islamic legal and
political thought, society is not seen as homogenous, but consisting of a plurality of moral
communities, each of which has the freedom to actualize its own moral vision.16
Emphasizing the moral autonomy of groups is exceedingly important in a postmodern
society that combines global orientation with moral and cultural fragmentation. The
homogenous culture in which Western individualism was developed has already become
something of the past. Cultural fragmentation and the coexistence of a multitude of moral
communities is today the reality of societies once enjoyed remarkable cultural hogomeniety,
such as the French and the German. Protecting human dignity in a heterogenous society requires
a markedly new approach whereby the moral autonomy of the individual is linked to that of the
moral community to which he or she belong.
While the notion of human dignity emphasizes the moral autonomy of individuals and
groups, the extent of this autonomy can be specified by employing another principle, viz. the
principle of reciprocity. The principle, central to all religious and secular ethics, has been
appropriated from Christian ethics by modern Western scholars, and has been given a secular
expression in Kant’s categorical imperative: “Act only on that maxim through which you can at
the same time will that it become a universal law.”17 Similarly, the principle of reciprocity lies at
the core of the Islamic concept of justice. The Qur’an is pervaded with injunctions that
encourage the Muslims to reciprocate good for good and evil for evil.18
But reciprocity, as the most fundamental principle of justice, is often employed to denote
mutual recognition by individual members of the community, and rarely a relationship among
moral groups and communities. This applies to both modern and pre-modern scholars. It is
evident that while classical Muslim jurists recognized the moral autonomy of non-Muslim
religious communities, they did not attribute to them equal moral freedom, and hence failed to
developed rules that they would accept if they happened to come under the hegemony of others.
The same can be said about those Western scholars who are driven by a single-minded desire to
export those human rights schemes to the rest of the world, and who have shown little interest in
engaging non-Western points of view in any meaningful cross-cultural dialogue.
Having identified the criteria for evaluating historical shari`a, we can turn now to
examine its pronouncements concerning the civil and political rights of individuals.
CLASSICAL LEGAL THEORY: THREE FAULT LINES
We started our discussion by asking whether a political order based on Islamic ethos is capable
of promoting human rights. We argued that critics of Islamic law have advanced the proposition
that women and non-Muslims did not enjoy equal rights with Muslim men. However, the
evidence presented by the critics of shari`a is inconclusive as to whether the fault lines that
separate Muslims and non-Muslims, as well as men and women, stem from intrinsic features of
the Islamic sources themselves, or whether they result from the failure to develop shari`a to cater
to modern settings. This ambivalence may be attributed — at least partially — to the fact that
Islamic sources and legal rules appear to combine statements that emphasize equality with other
statements justifying religious and gender differentiation. It is therefore incumbent upon us,
before we go on to study the possibilities of reform, to understand the reasons behind the
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cited by the critics, and to examine the nature of the methods and arguments used
to justify and reconcile contradictions.
Human rights scholars have identified various shari`a rules which are in direct
contradiction with international human rights. The shari`a rules incongruent with international
human rights can be subsumed under three major headings: restrictions on freedom of religion,
discrimination against women, and discrimination against non-Muslims. However, a close
examination of the corpus of shari`a rules developed by early jurists reveals three important facts
that eluded modern critics of shari`a. First, that shari`a rules concerning particular issues have
changed over time, pursuant to changes in the social and political structures of Muslim society.
Secondly, jurists have adopted varying positions regarding women’s and non-Muslim rights.
These positions were influenced by the cultural milieu of the jurist, and the jurisprudencial
school to which he belonged. Thirdly, while the systems of rights developed by classical
Muslim jurists were far from being perfect, it is evident that classical jurists recognized the
intrinsic dignity of non-Muslims and women, even when they failed to provide a complete and
comprehensive list of rights for its protection.
Early jurists recognized that non-Muslims who have entered into a peace convenant with
Muslims are entitled to full religious freedom, and equal protection of the law as far as their
rights to personal safety and property are concerned. Thus Muhammad bin al-Hasan al-Shaybani
states in unequivocal terms that when non-Muslims enter into a peace covenant with Muslims,
“Muslims should not appropriate any of their [the non-Muslims] houses and land, nor should
they intrude into any of their dwellings. Because they have become party to a covenant of peace,
and because on the day of the [peace of] Khaybar, the prophet’s spokesman announced that none
of the property of the covenanter is permitted to them [the Muslim]. Also because they [the non-
Muslims] have accepted the peace covenant so as they may enjoy their properties and rights on
par with Muslims.”19 Similarly, early Muslim jurists recognized the right of non-Muslims to
self-determination, and awarded them full moral and legal autonomy in the villages and towns
under their control. Therefore, al-Shaybani, the author of the most authoritative work on non-
Muslim rights, insists that the Christians who have entered into a peace covenant (dhimma) –
hence became dhimmis – have all the freedom to trade in wine and pork in there towns freely,
even though such practice is considered immoral and illegal among Muslims.20 However,
dhimmis were prohibited to do the same in towns and villages controlled by Muslims.
Likewise, early Muslim jurists recognized the right of dhimmis to hold public office,
including the office of a judge and minister. However, because judges had to refer to laws
sanctioned by the religious traditions of the various religious communities, non-Muslim judges
could not administer law in Muslim communities, nor were Muslim judges permitted to enforce
shari`a laws on the dhimmis. There was no disagreement among the various schools of
jurisprudence on the right of non-Muslims to be ruled according to their laws; they only differed
in whether the positions held by non-Muslim magistrates were judicial in nature, and hence the
magistrates could be called judges, or whether they were purely political, and therefore the
magistrates were indeed political leaders.21 Al-Mawardi, hence distinguished between two types
of ministerial positions: plenipotentiary minister (wazir tafwid) and executive minister (wazir
tanfiz). The two positions differ in that the former acts independently from the caliph, while the
latter has to act on the instructions of the caliph, and within the limitations set by him.22
Therefore, early jurists permitted dhimmis to hold the office of the executive, but not the
plenipotentiary, minister.23
Given the communal nature of the social and political organizations of premodern
Muslim society – indeed most premodern societies for that matter – it would be erroneous to
argue that dhimmis were considered a second class citizens, or that they were not treated with
equal “concern and respect”. Such a conclusion results from an ahistorical perception of society,
whereby a premodern, communally-based society is evaluated using concepts – such as citizen or
7
equal protection of the law – developed under conditions quite unlike those existed in the
historical Muslim society.
But while early shari`a law recognized the civil and political rights and liberties of non-
Muslim dhimmis, shari`a rules underwent drastic revision, beginning with the eighth century of
Islam. This was a time of great political turmoil throughout the Muslim world. It was during
that time that the Mongols invaded Central and West Asia inflicting tremendous losses on
various dynasties and kingdoms, and destroying the seat of the caliphate in Baghdad. This
coincided with the crusaders’ control of Palestine and the coast of Syria. In the West, the
Muslim power in Spain was being gradually eroded. It was under such conditions of mistrust
and suspicion that a set of provisions attributed to an agreement between the Caliph Omar and
the Syrian Christians were publicized in a treatise written by Ibn al-Qayyim.24 The origin of
these provisions is dubious, but their intent is clear: to humiliate Christian dhimmis and to set
them apart in dress code and appearance. Their impact, however, was limited, as the Ottomans,
who replaced the Abbasid as the hegemonic power in the Muslim world, continued the early
practice of granting legal and administrative autonomy to non-Muslim subjects.
When we turn to examine the attitude toward women in historical shari`a we find that the
situation here is more perplexing. For, on the one hand, one can see clearly that shari`a considers
women as autonomous persons with full legal capacity: they enjoy full control over their
property; their consent is required for marriage and they have the
right to initiate the process of divorce; they can initiate legal proceedings and can grant or
receive the power of attorney; they can even assume public office and serve in the capacity of
judges. But, on the other hand, one can also see that the historical prejudice against women in
general has worked against them in the historical Muslim society, and that Muslim jurists
managed to undermine their independent legal personality by a host of legal devices. However,
it can be easily demonstrated that the desire to place limitations on the civil and political rights of
Muslim women was not of the same intensity across legal schools. The most conservative stance
came from the Hanbali, and, to a lesser degree, the Shafi‘i schools. The Hanafi school displayed,
on the other hand, a more liberal attitude toward women, allowing them more leverage in
pursuing their civil rights.
While Shafi‘i and Malik permit, for instance, the father to compel his daughter in matters
of marriage, Abu Hanifa, al-Thawri, al-Awza‘i, and the majority of early jurists insist that a girl
has the final say in marriage matters.25 Similarly, Shafi‘i requires the consent of the guardian of
a woman for the validation of marriage, whereas Abu Hanifa, al-Shu‘bi, and al-Zuhri permit a
woman to marry herself despite her family disapproval.26 However, all legal schools recognize
the women’s right to terminate the marriage but only under conditions that vary from one school
to another.27 Likewise, there is disagreement among jurists as to whether women can assume
public office; while Ibn Jarir al-Tabari places no limitations on women’s right to assume the post
of judge in all legal matters, al-Mawardi contends that women cannot be allowed to serve as
judges under any circumstances. In between stands Abu Hanifa who allows women to serve as
judges but only in cases involving commercial deals.28
We may conclude that while historical shari`a recognized the capacity of non-Muslims
and women to enjoy certain civil and political liberties, it managed, nonetheless, to curtail these
liberties on social and rational grounds. The degree of limitation on the exercise of civil and
political rights also varied across historical periods and legal schools. And hence while our
observations give us reasons for optimism about the capacity of Islamic values and ideals to
promote human rights, they point to the inability of classical legal system to promote human
rights in modern times, and to the urgent need for undertaking legal reform of traditional Islamic
law.
THE IMPERATIVE OF RATIONAL MEDIATION OF ISLAMIC SOURCES
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Shari`a law was historically developed by Muslim jurists by applying human reasoning to
revealed texts with the aim to develop a normative system capable of regulating individual
actions and social interactions. Early jurists relied primarily on the Qur’an and the practices of
the Prophet to elaborate the rules of shari`a, and referred to the process through which shari`a
rules were elaborated by the term ijtihad (intellectual exercise). Recognizing the imperative of
rational mediation for understanding the rules of shari`a, early jurists exerted a great deal of time
and energy to define the grammar of interpreting the divine texts and the logic of reasoning about
their implications. The differences in
methodological approaches led to the differentiation of the various schools of jurisprudence.
Because the Qur’anic texts were given in a concrete form, whereby the Qur’an commented on
the actions and interactions of the early Muslim community, and directed early Muslims in
concrete situations, the jurists applied legal analogy (qiyas) to expand the application of the
Qur’anic precepts to new cases. The qiyas technique, widely accepted by the schools of
jurisprudence, requires the jurists to identify the efficient reason (‘illa) of a specific Qur’anic
statement, and to use this reason as the basis for extending the application of the Qur’anic
precept to new cases. For example, early jurists extended the prohibition of wine to all
intoxicating substance on the ground that intoxication was the reason for the Qur’anic
prohibition of wine. Early jurists also utilized the statements and actions of the Prophet and his
companions as a means to arrive at better understanding of the revealed texts. The practices of
the Prophet and his companions became known as the Sunna and were captured in the hadith
narrations. Early jurists did not feel that the Sunna has an authority independent from the
Qur’an, and hence did not hesitate to reject a hadith narration whenever it was in a clear
contradiction with a Qur’anic statement.29
Ijtihad took a decisive turn when Muhammad bin Idris al-Shafi‘i produced, in the middle
of the second century of Islam, the first work in Islamic Principles of Jurisprudence (usul al-fiqh)
under the title al-Risala (the Message). In his Message, Shafi‘i declared that the Sunna was an
inviolable source of law on par with the Qur’an, and insisted that it enjoyed an independent
authority.30 Furthermore, Shafi‘i confined ijtihad to legal analogy (qiyas), declaring all other
legal reasoning to be arbitrary.31 The restrictions on ijtihad were further extended by Ahmad bin
Hanbal, who insisted that legal analogy has to be used only as a last resort. He therefore required
that even a weak hadith has to be given priority over legal analogy.32 The other two major
schools of jurisprudence of the Sunni branch of Islam,33 the Hanafi and Maliki, were able to
escape the severe restrictions on ijtihad imposed by Shafi‘i and Hanbali schools by employing
the techniques of istihsan and istislah respectively. Istihsan meant that the jurist was not bound
by the apparent reason of a particular rule, but could utilize other reasons of shari`a whenever
deemed more relevant. Istislah, on the other hand, allowed the jurist to base the rules of shari`a
on public interests and utility, rather than confining them to ‘illah (efficient reason).
The desire of Hanafi and Maliki jurists to overcome the literalist approach that equates
ijtihad with qias (à la shafi`i), or with linguistic explication of the Qur’an by reference to hadith
(à la Hanbali), has inspired them to develop methods aimed at prioritizing shari`a rules and
principles. Methods such as al-qawa`id al-fiqhiyyah (juristic rules) or al-maqasid al-Shari`iyyah
(shari`a purposes) aim at the systematization of the shari`a rules by eliminating internal
contradiction, and constitute what is referred to today as maqasid approach.
By its emphasis on meaning, reasoning, and purposes the maqasid approach provide a
powerful tool for reforming historical shari`a, because it rejects the literal reading of statements
apart from their rationale, and insist that those rationale cannot contradict basic Islamic values.
The definitive exposition of this approach can be found in the work of the Andalusian jurist
Ibrahim bin Ishaq al-Shatibi, Al-Muwafaqat. The maqasid approach expounded by Shatibi can be
summarized in the following points: (1) Shari`a rules purport to promote human interests; (2)
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Shari`a consists of a hierarchy of rules, whereby the particular rules (ahkam juz’iyyah) are
subsumed under universal laws (qwanin kulliyyah); 3) General rules must be modified to
accommodate – whenever possible – particular rules; (4) Particular rules that contradict general
rules should be rejected or ignored; (5) The various rules and laws of shari`a aim at advancing
five general purposes: the protection of Religion, life, reason, property, and progeny.
I wish, in the remainder of this paper, to undertake a fresh interpretation of the Islamic
sources on the moral positions women and non-Muslims enjoy, and the rights and obligations
assigned to them. I propose to employ a methodology rooted in the maqasid approach, and
based on the following five principles:
Principle 1: Rights and obligations cannot be established on the basis of individual
statements of the Qur’an and Sunnah, but have to accord with the totality of relevant statements.
Therefore, a jurist is required, according to this principle, to consult all relevant texts before
rendering a specific ruling.
Principle 2: The multiplicity of Qur’anic rules must be reduced into a coherent set of
universal principles. The universal principles should be used to ensure the systematic application
of shari`a in modern context. Such systematization should prevent an application of a specific
(khas) rule in violation of a general ( ‘am), or a particular (juz’i) in violation of a universal
(kulli).
Principle 3: Because the generalization of a rule presupposes that the reason for its
enactment is clear, no rule should be generalized unless its reason has been explicated. This
principle requires that Qur’anic rules relating to social actions and interactions should be
understood fully, and systematized with other rules. If this requirement is met, the literalist
application of shari`a would be eliminated.
Principle 4: Because the universalization of a principle requires that the conditions of
its application be identical, regardless of time and space, no principle can be declared universal if
the particularity of the context for which it was intended is evident. This principle complement
Principle 3 by requiring the jurist to examine the extent to which a specific statement or rule is
directly connected with the socio-political context in which it was revealed.
Principle 5: Qur’anic statements take priority over Prophetic ones. Hence, in the case
of conflict and real contradiction, Qur’anic precepts override Prophetic ones.34
Utilizing the methodological framework outlined above, I turn now to examine the extent
to which religious restrictions on religious freedom and the rights of women and non-Muslims
are rooted in the attitudes and practices of historical Muslim communities, and how far these
restrictions can be attributed to revealed texts.
FREEDOM OF CONVICTION
There is ample evidence in the Qur’an, both the Makkan and Madinan, that individuals should be
able to accept or reject a particular faith on the basis of personal conviction, and that no amount
of external pressure or compulsion should be permitted: “No compulsion in religion: truth stands
out clear from error.”(2 : 256) “If it had been the Lord’s will, they would have believed – All
who are on earth! Will you then compel mankind, against their will, to believe!” (10 : 99) By
emphasizing people’s right to freely follow their conviction, the Qur’an reiterates a long standing
position, which it traces back to one of the earliest known Prophets, Noah35:
Not only does the Qur’an recognize the individual’s right to freedom of conviction, but it
also recognizes his/her moral freedom to act on the basis of their conviction.36 The principle that
the larger community has no right to interfere in one’s choices of faith and conviction can be
seen, further, in the fact that the Qur’an emphasizes that the individual is accountable for the
moral choices he or she makes in this life to their Creator alone.37
Yet despite of the Qur’anic emphasis on the freedom of conviction and moral autonomy,
most classical jurists contend that a person who renounces Islam or converts to another religion
10
commits a crime of ridda (apostasy) punishable by death. However, because the Qur’an is
unequivocal in supporting religious freedom,38 classical jurists relied, in advocating death
penalty for ridda (renouncing Islam), on two hadith texts, and the precedent of the Muslims
fighting against Arab apostates under the leadership of Abu Bakr, the first Caliph. This evidence
is, though, shacky and does not stand under close scruting. The two hadith texts reported in
Sahih Bukhari state. “Kill whoever changes his religion”, and “Three acts permit the taking of a
person’s life: a soul for a soul, the adultery of a married man, and renouncing religion while
severing ties with the community”.
Now both hadith statements cannot stand as a credible evidence because they contravene
numerous Qur’anic evidence. According to the Maqasid approach, a hadith can limit the
application of a general Qur’anic statement, but can never negate it.39 Besides, the hadith even
contradicts the practices of the Prophet who reportedly pardoned Muslims who committed ridda.
One well-known example is that of Abdullah bin Sa‘d who was pardoned after Osman bin Affan
pleaded on his behalf. Ibn Hisham narrated in his Sirah that the Prophet pardoned the people of
Quraysh after Muslims entered Makkah victorious in the eighth year of the Islamic calendar.
The Prophet excluded few individuals from this general pardon, whom he ordered to be killed if
captured, including Abdullah bin Sa‘d. Abdullah was one of the few persons appointed by the
Prophet to write the revealed texts. After spending a while with the Muslims in Madina, he
renounced Islam and returned to the religion of Quraysh. He was brought to the court of the
Prophet by Osman, who appealed for his pardon. He was pardoned even though he was still, as
the narration indicates, in a state of ridda and was yet to reembrace Islam.40 If ridda was indeed
a hadd (sing. of hudud), neither Osman would be able to plea for him, nor the Prophet would
pardon him in violation of the shari`a law. Therefore, I am inclined to the increasingly popular
view among contemporary scholars, that ridda does not involve a moral act of conversion, but a
military act of rebellion, whose calming justifies the use of force and the return of fire.41
To make things worse, classical jurists extended death penalty to cases of misinterpretation
of divine texts, or negligence of religious practices. Thus classical jurists insisted
that a Muslim who negates or neglects prayer can be executed if he does not repent within three
days. The vast majority of classical jurists maintained that it was not necessary for a Muslim to
openly renounce Islam to be subject to death penalty. Rather, it was sufficient for him to say or
do something contrary to Islam to be executed. Although jurists called neglecting religious
duties or contravening orthodox interpretations zandaqa (heresy) rather than ridda, they treated
both as equal in their severity.42 Interestingly, heresy punishment is not based on any Qur’anic
or Prophetic texts, but on a faulty theory of right.
The widely accepted theory of right among jurists divided rights into three types:43 (1)
Rights of God (Huquq Allah) — These consist of all obligations that one has to discharge
simply because they are divine commands, even when the human interests or utilities in
undertaking them are not apparent, such as prayers, fasting, hajj, etc.; (2) Rights shared by God
an his servants (Huquq Allah wa al-‘Ibad) — These include acts that are obligatory because they
are demanded by God, but they are also intended to protect the public, such as hudud law, jihad,
zakat, etc., and (3) Rights of God’s servants (Huquq al-‘Ibad) — These are rights intended to
protect individual interests, such as fulfilling promises, paying back debts, honoring contracts.
Still people are accountable for their fulfillment to God.
As it can be seen, the theory of right devised by late classical jurists – around the eighth
century of Islam – emphasizes that people are ultimately answerable to God in all their dealings.
However, by using the term rights of God to underscore the moral duty of the individual, and
his/her accountability before God, classical jurists obscured the fact that rights are invoked to
support legal claims and to enforce the interests of the right-holder. Because the Qur’an makes it
abundantly clear that obeying the divine revelation does not advance the interests of God, but
only those of the human being, the phrase “rights of God” signifies only the moral obligations of
11
the believers towards God, and by no means should they be taken as a justification of legal
claims.44 It follows that the rights of God which are exclusively personal should be considered
as moral obligations for which people are only answerable to God in the life to come. As such
accepting or rejecting a specific interpretation or a particular religious doctrine, and observing or
neglecting fundamental religious practices, including prayer or hajj, should have no legal
implications what ever. A legal theory in congruence with the Qur’anic framework should
distinguish between moral and legal obligations, and should confine the latter to public law that
promote public interests (constitutional, criminal, etc.) and private law that advances private
interests (trade, family, personal, etc.).
Unless the above legal reform is undertaken, there is no way to ensure that takfir
(charging one with disbelief) and zandaqa (charging one with heresy) claims would not become
a political weapon in the hands of political groups to be used as a means to eliminate rivals and
opponents. Indeed there is ample evidence to show that zandaqa and takfir have been used by
the political authorities during the Umayyad and Abbasid dynasties to persecute political
dissidents.45
RELIGIOUS EQUALITY AND MORAL AUTONOMY
We have already seen that the record of historical shari`a concerning the human rights of non-
Muslims is mixed. On the one hand, the shari`a recognized the rights of non-Muslims to enjoy
equal protection of the law as far as their life, property, and personal security are concerned.
Non-Muslims also enjoyed the rights to freedom of conviction, and the right for selfdetermination
as far as their legal and administrative conditions were involved. On the other
hand, classical jurists imposed a number of restrictions on non-Muslims in the area of dress code,
display of religious symbols, the construction of churches in predominantly Muslim districts, the
use of mounts and carrying of weapons, etc.46 I have already suggested that the restrictions
imposed on non-Muslims do not stem from Qur’anic standards, but rather security concerns
during the political turmoil associated with the Mongol and crusade invasions. Therefore, the
apparent indifference on the part of shari`a towards the civil and political rights of non-Muslims
stems not from any insensetivities attributable to classical jurists, but rather to the literalist
approach of contemporary traditionalist jurists. Indeed, the literalist and imitative approach of
Islamic traditionalism has been the main obstacle in the way toward evolving a human rights
tradition rooted in Islamic sources.
The first thing that strikes us when we study the Qur’anic texts is that the Qur’an neither
confines faith and salvation to those who accept the Islamic revelation, nor deny faith and
salvation to other religions.47 Indeed the Qur’an does not limit the attribution of faith and
salvation to the People of the Book (Jews and Christians) but extend it to believers of other
faiths.48
Nor does the Qur’an consider all those who accepted Islam as true believers. For some
have accepted the new religion as a general mode of life but failed to internalize its worldview
and ethical mission:
The desert Arabs say, “We believe.” Say, “Ye have no faith; but you (only) say, ‘we
have submitted our wills to God,’ for not yet has faith entered your hearts. But if you
obey God and His messenger, he will not belittle aught of your deeds: for God is oftforgiving,
most merciful.(49 : 14)
Others conformed to Islamic teachings only in appearance, but continued to harbor suspicion and
doubts, even ill-will toward Islam and its adherents and advocates.49 It follows that believers and
disbelievers can belong to all religions.
Because believers and disbelivers cannot be distinguished on religious lines, as they run
across all religions, the Qur’an urges Muslims to seek a political order based on peaceful
12
cooperation and mutual respect, and warns them against placing religious solidarity over
covenanted rights and the principles of justice.50
Equipped with the above set of principles, the Prophet managed to establish in Madina a
multi-religious political community, based on a set of universal principles that constituted the
Pact of Madina (Sahifatul Madina).51 The various rules ennunciated in the Pact were aimed at
maintaining peace and cooperation, protecting the life and property of the inhabitants of Madina,
fighting aggression and injustice regardless of tribal or religious affiliations, and ensuring
freedom of religion and movement. It is remarkable that the Madina Pact placed the rules of
justice over and above religious solidarity, and affirmed the right of the victim of aggression and
injustice to rectitude regardless of their tribal or religious affiliation, or that of the culprit.
However, it is not sufficient today for Muslim jurists to recognize the moral autonomy of
non-Muslim communities, as the classical jurists did. The Qur’anic concept of justice requires
that they employ the principle of reciprocity in delineating the overall legal structure to govern
the religiously and morally pluralistic societies of today. That is, contemporary Muslim should
avoid invading the moral space of other communities in as much as they would dread the
imposition of alien moral or legal rules in their moral space.
WOMEN’S RIGHTS: PUBLIC EQUALITY AND FAMILY PRIVACY
When approaching Islamic sources to shed light on the issue of women’s rights, a clear
distinction emerges between the rights of women in the public sphere, and their rights in the area
of family law. For while Islamic sources differentiate men’s and women’s responsibilities within
the family, all limitations on women’s rights imposed by classical scholars in the public sphere
were based on either faulty interpretations of Islamic texts, or practical limitations associated
with the social and political structures of historical society.
The Qur’an is unequivocal in assigning equal responsibilities for men and women for
maintaining public order: “The believers, men and women, are protectors one of another; they
enjoin the right (ma’ruf) and forbid the intolerable (munkar); they observe regular prayers,
practice regular charity, and obey God and His Messenger.” (9:71). Since men and women are
entrusted with the same public responsibility to enjoin the right and forbid the intolerable, one
should expect that both would enjoy equal political rights. Yet it is obvious that classical jurists
deny women political equality with men. The question therefore arises as to what is the basis of
the classical position? Jurists who deny women the right to public office base their arguments on
one Qur’anic and one prophetic statements. The Qur’anic statement reads: “Men are the
protectors (qawwamun) of women, because God has given the one more (strength) than the
other, and because men support women from their means.” (4 : 34) The word qawwamun which
connotes “support” and “protection” has come to signify authority as well. The fact that
qawwamun also signifies authority is not difficult to see as the remainder of the above Qur’anic
statement empowers men with the right to discipline women guilty of mischief. But can the
above verse be used to deny women access to public office? The answer is an emphatic no. For
the authority implied by qawwamun and the obedience it entails is relevant – even under
classical interpretation – within the confines of the family. It is clear that the Qur’an does not
intend to give authority to every single man over every single woman. Nor do those who extend
the implication of this verse to the public sphere expect that any single woman in society should
obey any single man, known to her or not. If this is the case, no one can invoke the notion of
qawwamun to deny women access to public office.
The other textual evidence used by classical jurists, and continues to be held by
contemporary traditionalist jurists, is in the form of a hadith that states: “They shall never
succeed those who entrust their affairs to a woman.”52 Reportedly the statement is a comment
made by the Prophet upon hearing the news of the accession of Buran, the daughter of King
13
Anusherawan, to the Persian throne after the passing away of her father. I wish to argue here
that there are sufficient reasons to show that the above hadith does
not stand in the face of a close scrutiny, and cannot, hence, be allowed to undermine the principle
of moral and political equality between the sexes, which is firmly established in the Qur’anic
texts. (1) The hadith statement is not given in the form of a directive, but an opinion that has to
be understood in its historical and cultural context. That is, the hadith has to be interpreted in the
context of a historical society where women were not active participants in political life, and in
the context of a political culture that places the hereditary rule over the principle of merit in
deciding political succession. (2) The hadith is a single statement that has no support in the most
authoritative Islamic source – i.e. the Qur’an. (3) The hadith stands in a direct contradiction with
the principle of moral and political equality of the sexes, a principle established by numerous
Qur’anic verses. (4) Finally, the hadith, being a singular narration (khabar ahad), is of a lesser
degree of certainty than the Qur’anic narration (khabar mutawatar), and hence cannot overrule
principles established in the Qur’an.
We have to conclude therefore that the Islamic sources support the right of women to
have full access to public office, and to enjoy complete equality with men in public life. Our
discussion of the notion of qawwamun, which provides men with a degree of authority over
women, must be confined to the realm of family life. It is in the family, and in the family alone,
that all of the practices cited by the critics of shari`a as instances of gender inequality can be
found, namely polygamy, unequal inheritance, and inter-religious marriages.53 Defenders of
these inequalities among contemporary Muslim intellectuals have cited various biological,
psychological, and functional bases to justify inequalities within a framework of complementary
family roles. Western critics, on the other hand, dismiss gender role arguments as outdated and
irrelevant, and insist that for women to live a life of dignity, society must declare the two sexes
absolutely equal, and reject any legal rule that sanctions differentiation among the sexes.
While I do recognize the complexity of the issues involved in the debate on gender
equality and gender roles, and the need for undertaking further research to examine the sociohistorical
meaning of biological differences between the sexes, and the socio-political
significance of psychological differences – if any – between genders, I think that the debate is
neither relevant nor helpful for the purpose of elaborating human rights. It is obvious that the
findings of all empirical studies on the issue of sexual differences have been disputed on
ideological grounds and have been interpreted in support of competing normative positions.
There is nothing to suggest that human beings would ever subordinate their moral beliefs to
empirical knowledge – at least not in a historically relevant timeframe. I propose, instead, that
for the purpose of advancing equitable rights for all, we should focus our attention on how to
ensure that marriage constitutes a consensual relationship that contribute equally to advancing
the interests of the various parties involved. This, I suggest, can be achieved – as far as the legal
system is concerned – by: (1) providing men and women with equal rights to enter into the
relationship on their own terms, and to leave whenever they decide that the relationship has
become exploitative or dissatisfying, and (2) to empower women so as to ensure that they can
negotiate the conditions of the marriage from a point of strength, and to ensure that they do
receive the legal support they need to make it possible for them to exit the relationship whenever
it becomes undignifying.
The point being stressed here is that marriage should be viewed as a voluntary and
contractual relationship, entered into with the aim to founding a family. In keeping within the
framework of human rights, our efforts should focus on liberating the individual, morally and
legally, from the impositions of arbitrary wills, rather than imposing a specific moral vision or
legal code on him or her. Mature men and women should be able to negotiate the terms of their
relationship freely without imposition from outside. Because, more often than not, families are
organized in keeping with specific religious traditions of recognized moral autonomy, it is
14
wrong for a person who belongs to one moral community to impose his or her moral vision on
others.
The above point can be illustrated by looking into few concrete examples. Forcing a
woman to stay in a marriage against her will violates her right to moral autonomy and hence
contravene her civil liberties, to which she is entitled under international human rights, even if
this was done in keeping with a specific religious tradition, such as the Catholic. By the same
token, no one should be justified to force a woman who, in keeping with Catholic morality and
religion, decides to keep her marriage, even if it can be shown that her relationship with her
husband brings her no satisfaction or happiness. Similarly, a woman who elects to maintain her
marriage even after she became aware of her husband’s intention to take a second wife,
permitted under shari`a, must be allowed to do so. The law should provide her with the option to
opt for a dignified exit under reasonable conditions. But it would be sheer arrogance for a person
belonging to another moral or religious view to insist that their moral values or religious
practices should prevail over her voluntarily made choice.
Even when one truly believes that the moral system to which he or she belongs is
superior to others, and that others, by following different moralities, are not being treated to the
full respect they deserve, one is not justified to require that his or her moral system should be
imposed through legal means on others. For human dignity, which human rights intend to
protect, requires that the person be first persuaded to the superiority of this or that moral system,
so as to allow him/her to be the agent through which the legal system is reformed. The most the
advocate of human rights should do is to ensure the free flow of information, and a political
environment conducive to freedom of speech and action.
Because of the importance of the family to human society, all religions stress certain
attitudes and values to keep it intact, and to extend its protection to the fragile souls who were
brought to life within its confines. Human rights scholars should not direct their efforts to
undermine religious attitudes and values, but should focus on the conditions that allow free and
equal entrance and exist to the two genders. This would mean that while Muslim women may
keep in line with their religious conviction and refuse to marry non-Muslim men, those who elect
to violate the religious code should have the legal freedom to do so. As we saw earlier, in
violating the moral requirements of shari`a, they will be answerable to their creator, not to
society.
CONCLUSION
Our examination of the Qur’anic discourse reveals to us the significance it places on the moral
autonomy of human beings. While the Qur’an urges people to adopt high moral standards, it
makes it quite clear that people are ultimately accountable to their creator for their moral failings.
The Qur’an further stresses that while it is not always possible for people to stay on a high moral
plane, they should strive to the best of their ability to do so. Those who have been more
fortunate to lead a moral life should strive, with tolerance and sympathy, to persuade others to
adopt their vision of a good life, but they should never go to the extent of imposing their morality
on others. It was such an attitude which allowed early Muslims to embrace diverse cultural
groups, and to cooperate and peacefully coexist with a plurality of religious communities.
The tolerant attitude and pluralistic outlook was later diluted, giving rise to a more
intrusive approach in which the lines separating the moral from the legal became blurred. The
traditionalist stance was further compounded by undermining the principle of moral equality
between men and women advanced in the Qur’anic texts. This was done by giving more weight
to particular pronouncements, while ignoring universal principles and general purposes.
Gradually, therefore, the moral autonomy of individuals and groups was severely compromised.
Interestingly, though, in their zeal to assert Islamic morality through legal enforcement, the
traditional jurists unwittingly undermined the moral fabric of society. This is because moral
15
character does not develop under conditions of rigid restrictions on free speech and action. By
definition, a moral choice presupposes that the individual has also the choice of acting
immorally, or in accordance with standards that does not rise to the level of moral action. Take
this choice away, morality cannot be distinguished from hypocracy and duplicity.
There is a dire need today for Muslims to undertake a legal reform so as to restore the
principle of moral autonomy to both individuals and cultural groups. By so doing, Muslims
would have a greater opportunity to rid their communities from oppression, corruption, and
hypocricy. They would have also the chance to join hands with an increasing number of
individuals and groups belonging to the various religious communities of the world to fight
global injustice and oppression. The UDHR, should be viewed as a common thread that can bind
the efforts of people belonging to diverse moral communities the world over. As I tried to show
in this paper, supporting international human rights does not mean that one has to accept the
various interpretations assigned to them. While the dominant interpretations of the various
articles of UDHR reflect the moral inclination of Western individualism, the universal principles
themselves are compatible with Islamic values and ethos. Indeed, the rejection of UDHR on the
ground that it does not fit neatly into a specific moral code derived from Islamic sources is not
only a theoretical mistake, but a strategic blunder as well. Whereas the rejection of UDHR is
likely to deprive the Muslims from achieving greater political liberation, a strong commitment to
its principles would undoubtedly allow them to enter the global debate, and give them the
opportunity to bring their values and ethos to bear positively on the future human rights discourseNOTES
1 The world “shari’a” in this work refers to the various rules and doctrines derived from Islamic sources by jurists, and not the
sources themselves. Historical shari’a thus signifies rules derived by classical Muslim jurists.
2 Ann Elizabeth Mayer, Islam and Human Right: Tradition and Practice, 2nd ed. (boulder, co.: Westview Press, 1995), pp. 64-5.
3 Ibid. p. 89.
4 Heiner Biefeldt, “Muslim Voices in the Human Rights Debate,” Human Rights Quarterly, 17.4 (1995), p. 596.
5 Rhoda Howard, Human Rights and the Search for Community (Boulder, Co. : Westview Press, 1995), p. 93.
6 Ibid., p. 94.
7 Ibid.
8 Abdullahi Ahmad An-Na`im, Toward an Islamic Reformation (Syracuse University Press, 1990), p.52-6.
9 “Makkan Qur’an” refers to the Qur’an which was revealed in the city of Makkah (or Mecca), prior to the Prophet’s migration to
the city of Madina where the Madinan Qur’an was revealed.
10 Ibid., p. 176.
11 Ibid. p. 49.
12 Ibid. p. 180.
13 Mayer, Islam and Human Rights, p. 7.
14 See for example Reza Afshari, “An essay on Islamic cultural Relativism in the Discourse of Human Rights”, Human Rights
Quarterly, 16 (1994), pp. 235-76.
15 Natural rights thinkers, such as Hobbes, Locke, or Rousseau, perceived society to be composed of free and equal individuals.
The cultural homogeneity of members of society is taken for granted, and assumed in the notion of the state of nature.
16 The attitude of early Muslim jurists toward the moral autonomy of non-Muslims is illustrated in the next section.
17 Immanuel Kant, Groundwork of the Metaphysics of Morals (London: Routledge, 1993), p. 84.
18 See for example (2:194) and (55:60).
19 Muhammad bin Ahmad al-Sarakhsi, Sharh Kitab al-Siyar al-Kabir (Pakistan: Nasrullah Mansur, 1405 A.H.), Vol. 4, p. 1530.
20 Ibid.
21 Ali bin Muhammad al-Mawardi, al-Ahkam al-Sultaniyyah (Cairo: Dar al-Fikr, 1983/1401), p.59.
22 Ibid. pp. 20-23.
23 Ibid. p.24.
24 See Ibn al-Qayim, Sharh al-Shurut al-Umariyyah (Beirut: Dar al-‘Ilm lilmalayin, 1961/1381).
25 Muhammad bin Ahmad bin Rushd (d.595), Bidayat al-Mujtahid wa Nihayat al-Muqtasid (Beirut: Dar al-Ma‘rifah, 1986/1406) vol. 2,
p. 5.
26 Ibid. p.8.
27 Ibid. p. 66-68.
28 Ibid. p. 40; see also al-Mawardi, p.59.
29 For further elaboration on this point, see Louay M. Safi “Islamic Law and Society”, American Journal of Islamic Social Sciences.
30 Muhammad bin Idris al-Shafi‘i, Al-Risala (Beirut, lebanon: Dar al-Kutub al-‘Ilmiyyah, n.d), pp. 401-76.
31 Ibid. p.
32 For elaboration of Hanbali Principles of Jurisprudence see Ibn al-Qayim, A‘lam al-Muaqi ‘in (Beirut, Lebanon: Dar al-Kutub al-
‘Ilmiyyah, 1991 A.C. 1411 A.H.), Vol. 1, pp. 24-6.
33 Shi‘a jurists imposed, by far, fewer restrictions on ijtihad.
34 I have elsewhere expounded this approach under the title “The Methodology of Comparative Rules,” See also Louay ‘Imal al-
‘Aql (Damascus, Syria: Dar al-Fikr, 1998), Chapter 4.
35 “He [Noah] said: O my people! See if I have a clear sign from my Lord, and that he has sent mercy unto me, but that the mercy
has been obscured from your sight? Shall we compel you to accept it when you are averse to it!” (11 : 28). “The message of
freedom of belief and conviction, and the call to religious tolerance is reiterated time and again through various Prophets: And if
there is a party among you that believes in the message with which I have been sent, and a party which does not believe, hold
yourselves in patience until Allah does decide between us: for He is the best to decide. The leaders, the arrogant party among his
people, said: O Shu‘ayb! We shall certainly drive you out of our city, and those who believe with you, or else you shall have to
return to our ways and religion. He said: “What! Even though we do not wish to do so.” (7 : 86-7).
36 “Say: O my people! Do whatever you may: I will do (my part). But soon will you know on whom an anguish of ignoring shall
be visited, and on whom decends an anguish that abide”. (39 : 39-40). “Say: Everyone acts according to his own disposition:
But your Lord knows best who it is that is best guided on the way.” (17 : 84).
37 “O you who believe! Guard your own souls: If you follow (right) guidance, no hurt can come to you from those who stray.
The goal of you all is God: It is He that will show you the truth of all that you do.” (5 : 105). “So if they dispute with you, say:
I have submitted my whole self to God and so have those who follow me. And say to the People of the Book and to those who
are unlearned: Do you (also) submit yourselves? If they do, they are in right guidance. But if they turn back, your duty is to
convey the Message; And in God’s sight are (all) His servants.” (3 : 20)
38 In fact, one cannot find in the Qur’an any support for the ridda penalty. The Qur’an makes two references to ridda: “Nor will
they cease fighting you until they turn you back from you faith if they can. And if any of you turn back (commit ridda) from their
faith and die in unbelief, their works will bear no fruit in this life; and in the hereafter they will be companions of the fire and will
abide therein.” (2:217) “O you who believe! If any from among you turn back (commits ridda) from his faith, soon will God
produce a people whom He will love as they will love Him — humble with the believers mighty against the disbelievers, thriving
in the way of god, and never afraid of the reproaches of detractors. That is the grace of God, he bestows on whom He please;
and God encompasses all and he knows all things.” (5:54). In both cases the Qur’an does not specify any physical punishment
here and now, let alone a death penalty. The Qur’an rather warns those who renounce their faith of disgrace and ill-fate. To