Published online by Cambridge University Press: 20 July 2015
The events of September 11, 2001 and the subsequent declaration of an open-ended “war on terror” have given a new urgency to long-standing discussions of the relationship of Islam to liberalism. In order to avoid the polemics that characterize much of the writing in the “Islam/Liberalism” genre, this Article proposes to use the framework set forth in John Rawls’ Political Liberalism to examine the grounds on which Muslim citizens of a liberal state could participate in a Rawlsian overlapping consensus. An overlapping consensus according to Rawls arises among citizens in a politically liberal state when they - despite holding incompatible theories of the good - each endorse the constitutional essentials of a politically liberal state for reasons within their own comprehensive religious or philosophical doctrines. This Article argues that the basis on which orthodox Muslims can participate in such an overlapping consensus can be found in Islamic theology and ethics. Because theology and ethics comprise the fundamental commitments of orthodox Islam, the political commitments set forth in Islamic substantive law which are inconsistent with constitutional essentials must be interpreted in light of those commitments. After describing orthodox Islam’s theological and ethical commitments to rational theological and moral inquiry, the Article argues that such commitments implicitly require political institutions that allow free theological and ethical inquiry. The Article illustrates this aspect of Islam by describing the development of a system of intra-Muslim normative pluralism in which the existence of conflicting ethical judgments was accepted as a legitimate and inevitable product of moral reasoning. The existence of normative pluralism in the realm of ethics, in turn, made the project of a legal system derived entirely from revelation an epistemological impossibility. The result was that Islamic substantive law was forced to adopt non-theological modes of justification. The Article argues that, in the course of so doing, Muslim jurists made appeals to what Rawls would deem to be public reason. The Article concludes with a series of examples from Islamic substantive law that illustrate the ways in which the pre-modern Islamic legal system represents a qualified form of public reason, consistent with the public culture of a liberal democracy.
The author wishes to acknowledge the valuable comments of Ahmad Atif Ahmad, Haider Ala Hamoudi, Sherman Jackson, Rachana Kamtekar, Clark Lombardi, Andrew March, Ebrahim Moosa, David Novak, Asifa Qureshi, and Laury Silvers, as well as my colleagues at the University of Toronto Faculty of Law Faculty, including Anver Emon, Sophia Reibetanz Moreau, David Dyzenhaus, Ernest Weinrib, Arthur Ripstein, Gidson Sapir and other participants in the University of Toronto Faculty of LawWorkshop. In addition, I would like to thank the valuable research assistance of Junaid Quadri, Dalia Eltayeb, Ahmed Sultan and Edith Sorantz. All errors are, of course, mine alone. Long vowels in arabic words and names are transliterated using the conventions of the International Journal of Middle East Studies. Dates refer to the Common Era without the corresponding date in the Islamic calendar. All translations from Arabic sources, unless otherwise indicated, are the author's.
1. The number of works written on the relationship of “Islam” to democracy, human rights, modernity, pluralism, etc., is, simply put, staggering. See Peters, Ruud, “Islamic Law and Human Rights: A Contribution to an Ongoing Debate” (1999) 10 Islam and Christian-Muslim Relations 5 CrossRefGoogle Scholar (noting that “[d]uring recent decades a host of publications have seen the light with titles like: ‘Islam and X’ or ‘X in Islam,’ where X is typically a concept with positive connotations, such as democracy, peace, social justice, or women’s rights” at 5). I refer to the themes evoked by this body of scholarship as the “Islam/liberalism dichotomy.”
2. Ibid. (characterizing most writing on the Islam/liberalism dichotomy as “partisan” and either “incriminat[ing]” or “apologetic” at 5-6).
3. The last 100 years have witnessed chronic warfare between many Arab-Islamic countries and the leading Western democracies. For an excellent discussion of the longer-term historical background to these tensions, see Rodinson, Maxime, Europe and the Mystique of Islam,trans. by Veinus, Roger (Seattle: University of Washington Press, 1987)Google Scholar, especially ch. 1.
4. According to a survey conducted by the Pew Global Attitudes Project dated June 22, 2006 “[m]any in the West see Muslims as fanatical, violent and as lacking tolerance. Meanwhile, Muslims in the Middle East and Asia generally see Westerners as selfish, immoral and greedy —as well as violent and fanatical.” See The Great Divide: How Westerners and Muslims View Each Other, online: Pew Global Attitudes Project http://pewglobal.org/reports/display.php? ReportID=253.
5. See, e.g., Mayer, Ann Elizabeth, Islam and Human Rights: Tradition and Politics, 3rd ed. (Boulder, CO: Westview Press, 1999)Google Scholar (researchers working on the relationship of Islam to international human rights law “step into an ideological minefield” at 3).
7. Throughout this Article, unless otherwise stated, any reference to Islam is limited to Sunni Islam. The omission of material from other Islamic sects such as the Shi’a is solely a reflection of the author’s inadequate knowledge of and familiarity with the Shi’ite theological and ethical tradition and should not be taken as an implicit argument that Shi’ism or other Islamic sects are necessarily unreasonable in a Rawlsian sense.
8. The recent work of Andrew March confirms the utility of a Rawlsian approach to the Islam/lib-eralism dichotomy. See March, Andrew F., “Liberal Citizenship and the Search for an Overlapping Consensus: the Case of Muslim Minorities” (2006) 34 Phil. & Pub. Affairs 373 [March, “Liberal Citizenship and Muslim Minorities”]CrossRefGoogle Scholar; and March, Andrew F., “Islamic Foundations for a Social Contract in non-Muslim Liberal Democracies” (2007) 101 Am. Pol. Science Rev. 235 [March, “Social Contract”]CrossRefGoogle Scholar.
9. See Johansen, Baber, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh (Leiden: Brill, 1999)Google Scholar (providing examples of significant doctrinal differences separating the various schools of Islamic law at 65-71).
10. See ibid. (giving an overview of the historical development of Sunni Islamic law, how and why it came to evolve separately from theology and Sunni Islamic law’s commitment to a sort of “normative pluralism” at 1-76). A similar process appears to have occurred in early modern England, where appeal to the Bible to justify public positions fell out of favor, not because the English had lost faith in the Bible or Christianity, but because they came to the recognition that the Bible could not resolve their differences. See Stout, Jeffrey, Democracy and Tradition (Princeton, NJ: Princeton University Press, 2004) at 94–97.Google Scholar
11. Cf. Johansen, supra note 9 (criticizing Joseph Schacht, a well-known western scholar of Islamic law, for failing to recognize the importance of dissent and pluralism in substantive Islamic law due to Schacht’s being “too much part of an occidental tradition which understands the legitimacy of the dissent on principles as a specific western form of modern political and religious culture so that he cannot envisage its existence in a non-occidental sacred law or deontology” at 65).
12. Rawls describes moral/philosophical conceptions as comprehensive when they include conceptions of what is valuable in human life, ideals of personal character, etc., with the limit being the entire range of values in human life. Rawls, supra note 6 at 13. As noted by Andrew March, Islam might be considered, in Rawlsian terms, a “‘comprehensive ethical doctrine’ par excellence.” March, “Social Contract,” supra note 8 at 236.
13. Rawls described the central problem of political liberalism as finding the answer to the following questions:
How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines? Put another way: How is it possible that deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime? What is the structure and content of a political conception that can gain the support of such an overlapping consensus?
Rawls, supra note 6 at xx.
14. March has noted that “what we might call ‘normative Islam’ prescribes just the form of reflection Rawls imagines that each citizen will perform, consisting of the self-conscious interrogation of the norms of one’s social and political system in light of formal religious doctrine.” March, “Social Contract,” supra note 8 at 236.
15. Rawls, supra note 6 at xvii.
16. Ibid. at xl.
17. Ibid. (exercise of political power is proper only when it is sincerely believed that the reasons offered in justification of political action could reasonably be accepted by other citizens as a justification of those actions, taking other citizens to be free and equal at xlvi).
18. Ibid. at 139-42.
19. Ironically, Samuel Huntington, author of the widely cited “Conflict of Civilizations?,” in which he suggested that the most important source of warfare in the post-Cold War era will be between “civilizations,” particularly Islamic and western civilizations, has subsequently made clear that such a conflict would not be the result of any inherent attributes of Islam, but rather of specific political policies. Huntington, Samuel P., “The Age of Muslim Wars” Newsweek 138:25 (17 December 2001) at 14 Google Scholar.
20. See Macklem, Patrick,”Militant democracy, legal pluralism and the paradox of self-determination” (2006) 4 Int’l. J. Con. L. 488 (describing legal measures instituted in democratic jurisdictions following 9/11 as imposing a regime of “militant democracy” the cumulative effect of which “is a dramatic recalibration of the legal relationship between the individual and the state” at 488-89)Google Scholar.
21. Anderson, Lisa, “Shock and Awe: Interpretations of the Events of September 11” (2004) 56 World Politics 303 (quoting Daniel Pipes as referring to “Muslims as a whole as ‘a basically hostile population,’” and as agreeing that although “‘the distinction between terrorists operating in the name of Islam and ordinary Muslim ‘moms and dads’... is a true and valid distinction, but... if adhered to as a guideline for policy, it will cripple the effort that must be undertaken to preserve our institutions’” at 306)CrossRefGoogle Scholar [Anderson, “Shock and Awe”]. One columnist argues that the United States and Europe should adopt policies that would prevent Muslims from coming to the United States or Europe, shut down existing Muslim institutions in the west, subject Muslims to enhanced surveillance in order to “isolate and contain Islam,” and more generally, “et [Muslim] blood flow in the streets like great rivers as penance for their evils.” Houston, Warner Todd, “Terrorism —we won’t win unless we get serious” (31 August 2006), online: Renew America http://www.renewamerica.us/columns/huston/060831 Google Scholar.
22. See Alsultany, Evelyn Azeeza, The Changing Profile of Race in the United States: Media Representations and Racialization of Arab- and Muslim-Americans Post-9/11 (Ph.D. dissertation, Stanford University, 2005)Google Scholar [unpublished] (arguing that post-9/11 media representations of Muslims construct Islam “as the compulsive, the dangerous, and incomprehensible Other” at iv); and Anderson, “Shock and Awe”, supra note 21 (quoting one author as expressing the view that the “‘growth of … Muslim communities in the United States’” aids the growth of terrorism at 309). In addition, a USA Today/Gallup Poll, taken over July 28-30, 2006, reported that 34% of Americans believed that American Muslims back al-Qaida and that nearly 40% of the respondents in the same poll supported requiring Muslims, even those who have U.S. citizenship, to carry special identification. Saad, Lydia, “Anti-Muslim Sentiments Fairly Commonplace: four in ten Americans admit feeling prejudice against Muslims” Gallup Poll News Service (10 August 2006), online: The Gallup Organization http://media.gallup.com/WorldPoll/PDF/AntiMuslimSentiment81006.pdf.Google Scholar
23. Anderson, “Shock and Awe”, supra note 21 (noting that in the wake of 9/11 many questioned the continued relevance of liberalism at 323-25).
25. Ibid. at 824.
26. The fundamental critique of orientalism remains the work of the late Said, Edward, especially his book with that name, Orientalism, 2nd ed. (New York: Vintage Books, 1994).Google Scholar
27. Indeed, insofar as this Article represents a synthesis of several doctrines, it is unlikely that any historical pre-modern Muslim religious intellectual understood the political implications of the doctrines discussed in this Article in the manner described here.
28. See, e.g., the web site of Zaytuna Institute at www.zaytuna.org, which describes its mission as providing “the highest quality educational programs, materials, and training in the traditional sciences of Islam.”
29. Many contemporary Muslim scholars remain committed Muslims while viewing some or many aspects of the “tradition” as having been profoundly wrong and thus are engaged in more or less radical theological reconstructions of Islam. For a general introduction to the work of some of these scholars, see Kurzman, Charles, Liberal Islam (New York: Oxford University Press, 1998)Google Scholar. Among the more prominent of these scholars who write (or have written) in English are Fazlur Rahman, Khaled Abou el Fadl, Abdallah an-Na’im, Abdalaziz Sachedina, Farid Esack, Asma Barlas, Aziza al-Hibri, Fatima Mernissi and Amina Wadud-Muhsin.
I do not include among Muslim reformers those who espouse theories that sound in necessity or duress or even need. While such arguments are no doubt legitimate from the internal perspective of Islamic comprehensive doctrines, from a Rawlsian perspective they only represent evidence of a modus vivendi, not of an overlapping consensus. Accordingly, concepts such as the “jurisprudence of minorities,” which have been advocated by some Muslim scholars living in the west such as Shaykh Taha Jabir al-Alwani, would not be sufficiently principled from the perspective of political liberalism and accordingly do not seem to be a promising method for Muslim citizens to understand their experience as citizens of liberal polities. For an extensive treatment of the concept of the “jurisprudence of minorities,” see al-Qaradawi, Yusuf, Fi fiqh al-aqalliyat al-muslima (Cairo: Dar al-Shuruq, 2001)Google Scholar. See also al-Alwani, Taha Jabir, Towards a Fiqh for Minorities: Some Basic Reflections, trans. by Shamis, Ashur A. (London: International Institute of Islamic Thought, 2003)Google Scholar. Note, however, that the existence of both liberal religious reformers and theories such as the “jurisprudence of minorities” are consistent with Rawls’ insight that citizens living under the experience of a constitutional democracy are likely to revise their comprehensive doctrines in a way that tends to support, rather than undermine, constitutional essentials. See infra note 31.
30. See March, “Liberal Citizenship and Muslim Minorities,” supra note 8 (discussing the need to develop an account of citizenship that would be plausible to Muslims who would reject the principles of liberal citizenship for principled reasons at 374, 375, n. 2).
31. This assumption, moreover, is consistent with Rawls’ notion that experience of life as a citizen in a politically liberal state has a dynamic impact upon citizens’ understandings of their comprehensive doctrines. As a result of this experience, they tend to revise their own comprehensive doctrines in such a manner so as to make them more compatible with constitutional essentials over time. Rawls, supra note 6 at 158-60.
32. See Bilgrami, supra note 24 (arguing that a certain amount of abstraction “in order to identify core doctrine” is necessary to make reform possible at 838).
33. Indeed, Rawls goes so far as to suggest, perhaps implausibly, that such self-reflection is “already part of the background culture.” Rawls, supra note 6 at 249.
34. Rawls, supra note 6 (recognizing that in connection with particularly contentious matters, especially where it involves matters of religion, it may be permissible to present one’s comprehensive views in connection with public matters in order to confirm the existence of an overlapping consensus, something which “strengthens mutual trust and public confidence” at 248-49).
35. Rawls, supra note 6 (stating that one of the distinguishing characteristics of a reasonable comprehensive doctrine is that it is not subject to sudden and unexplained changes in its doctrine at 59).
36. Liberal Muslim intellectuals are sometimes accused, on the one hand, of concealing a sinister agenda behind claims of adopting a “liberal” form of Islamic law, e.g., characterizations of Khaled Abou el Fadl as a “stealth Islamist,” Pipes, Daniel, “Stealth Islamist: Khaled Abou El Fadl” Campus Watch Research, online: Campus Watch http://www.campus-watch.org/article/id/1178 Google Scholar; or on the other hand, of being disingenuous in their claims to be Muslims rather than “run-of-the-mill” liberals, Abu-Odeh, Lama, “The Politics of (Mis)Recognition: Islamic Law Pedagogy in American Academia” (2004) 52 Am. J. Comp. L. 789 at 808CrossRefGoogle Scholar.
37. See Macklem, supra note 20 (arguing for the need to initiate a “jurisprudential dialogue between European and Islamic legal orders, where the individual tenets of one system are tested against those of the other” rather than dismissing a commitment to the values of Islamic law as indicative of the wholesale rejection of democratic values at 512-13).
38. It is not a relevant objection to point out that all interpretation is political: the point is whether it is true that Muslims attribute a greater authenticity to pre-colonialist interpretations of Islam than they do to interpretations of Islam that arose in response to colonialism. The truth of this proposition can be demonstrated circumstantially by the sources that even a prominent Muslim liberal such as Khaled Abou El Fadl uses to establish the Islamic credentials of his arguments. See, e.g., Khaled Abou el Fadl, “Islam and the Challenge of Democracy” in Cohen, Joshua & Chasman, Deborah, eds., Islam and the Challenge of Democracy (Princeton, NJ: Princeton University Press, 2004) 3 Google Scholar (citing overwhelmingly pre-19th century authorities as evidence for an Islamic theory of democratic commitment at 36-46). See also Abu-Odeh, supra note 36 (criticizing Abou el Fadl for not citing an authority earlier than the fourteenth century in his attempt to articulate a theory of Islamic constitutionalism at 810).
39. Given the decentralized nature of religious authority in Islam, some contemporary Muslims suggest that there is precious little Islamic doctrine that is authoritative, see Khaled Abou el Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford: One World, 2001)Google Scholar (noting the attempt by Muslim theologians to distinguish fundamental points of dogma from derivative points, but suggesting this effort was largely a failure at 65-66), or conclusive, see Khaled Abou el Fadl, “Islam and the Challenge of Democratic Commitment” (2003) 27 Fordham Int’l L. J. 4 Google Scholar (suggesting that no revelatory text—no matter how clear—can establish divine intent with certainty at 69-70). This view confuses the logical possibility that certain doctrines— whether historical or contemporary—may prospectively be revised or even abandoned wholesale with the historical fact that certain doctrines are or were deemed to be authoritative or conclusive. At the other extreme are those who assume that because Islam is a revealed religion, Islamic law must be immutable, and accordingly, what Islamic law stood for in one period must also be the same as what it stands for in subsequent periods. See, e.g., Crone, Patricia, Roman, Provincial and Islamic Law: The Origins of the Islamic Patronate (Cambridge: Cambridge University Press, 1987)CrossRefGoogle Scholar (noting that, “In practical terms... any legal work composed between 800 and 1800 [of the common era] may be cited as evidence of classical doctrine” at 18), quoted in Hallaq, Wael, #x201C; Usûl al-Fiqh: Beyond Tradition” (1992) 3 J. Islamic Studies 172 at 176CrossRefGoogle Scholar.
40. For an example of such an approach to the question of women as political actors in Islamic law, see Fadel, Mohammad, “Knowledge, Gender and Power in Medieval Sunni Legal Thought” (1997) 29 International J. Middle East Studies 185 CrossRefGoogle Scholar (giving an overview of the legal controversies regarding the admissibility of evidence reported by females, the participation of females in the production of knowledge generally and whether women could serve as judges, and the relationship of these issues to women as independent political actors).
41. For this reason I am neither concerned with the views Rawls, expresses in his Law of Peoples (Cambridge, MA: Harvard University Press, 1999)Google Scholar, nor do I discuss the laws governing jihad—which include both the rules of law governing warfare between Muslim and non-Muslim powers and international relations in general. For an analysis of the law of jihad in the modern context, see Jackson, Sherman, “Jihad and the Modern World” (2002) 7:1 J. Islamic Law and Culture 1 Google Scholar.
42. Rawls, supra note 6 at xxvii.
43. Ibid. at xxvi-viii. This is not the only plausible reading of the origins of political liberalism as an idea, however. See, e.g., Korsgaard, Christine M., “Rawls and Kant: On the Primacy of the Practical” in Robinson, Hoke, ed., Proceedings of the Eighth International Kant Congress, vol. 1(Milwaukee, WI: Marquette University Press, 1995) 1165 (arguing that, for Rawls, political liberalism is the solution to the paradox that a commitment to liberalism precludes imposition of its ideals on others at 1169-72)Google Scholar.
44. The great scholar of Islamic history, Marshall Hodgson, introduced the term “Islamdom” to signify those areas of the world in which Islamic civilization, along with its patterns of thought and social and political organization, came to dominate historically, thus serving as an analogue to Christendom Hodgson, Marshall, The Venture of Islam (Chicago, IL: University of Chicago Press, 1977) vol. 1 at 58 Google Scholar.
45. See, e.g., “Dhimma” in 2 Encyclopaedia of Islam 227a.
46. The mihna refers to an episode early in the Abbâsid dynasty in which the ‘Abbasid caliphs attempted to compel the religious elite to accept the caliph’s power to determine orthodox religious doctrine. Resistance by religious scholars forced the government to abandon these efforts and helped crystallize the formation of Sunni Islam. See “ Mihna” in 7 Encyclopaedia of Islam 2b.
47. Kurzman, Charles, in his reader Modernist Islam, 1840-1940: A Sourcebook (Oxford: Oxford University Press, 2002)Google Scholar, provides a good collection of 19th and 20th century reflections of Muslim intellectuals throughout Islamdom on the impact of modernity on their societies. Another reader by the same author, Liberal Islam, supra note 29, provides an anthology of Muslim writings over the last one hundred years that engage liberal themes.
48. Cf. Rawls, supra note 6 (noting that the conflict that resulted from the Reformation involved “a transcendent element not admitting of compromise,” something which “forces either mortal conflict moderated only by circumstance and exhaustion, or equal liberty of conscience and freedom of thought” at xxviii).
49. This is not to deny that radical change occurred in the nature of religious discourse and religious authority in the Muslim world over the course of the last 200 years. The point is simply that, because the vast majority of the population remained Muslim throughout this period, overtly Islamic arguments—whether traditionalist, radical or modernist (despite the theological incompatibility of these three modes of Islam)—retain a certain saliency in a way that would be implausible in a society lacking a hegemonic religious majority. For example, even the staunchly “secularist” Republic of Turkey maintains supervision of Islamic affairs, going so far as to prepare sermons for state-appointed clerics. Gunn, Jeremy T., “Fearful Symbols: The Islamic Headscarf and the European Court of Human Rights” (4 July 2005)Google Scholar, online: Strasbourg Conference http://www.strasbourgconference.org/papers/Sahin%20by%20Gunn%2021%20by%20T.%20Jeremy%20Gunn.pdf (describing the substantial involvement of the Turkish state in the formulation and dissemination of a state-approved form of Islam within the Republic of Turkey at 17-19). Ironically, given the reflexive Western fears of pan-Islamism, see Peters, Rudolph, Jihad in Classical and Modern Islam (Princeton, NJ: Markus Wiener, 1996) at 55–56 Google Scholar, it may be the case—following James Madison’s reasoning in Federalist no. 10—that the best circumstances for formulating comprehensive doctrinal reform in Muslim majority states would be the existence of a pan-Islamic federation, in which case a modus vivendi among the adherents of the various contemporary Islamic comprehensive doctrines, e.g., traditionalist, modernist and radical, as well as of non-Sunni sects, could arise. This could then evolve into a more robust pluralism characterized by an overlapping consensus, which would eventually include non-Muslim citizens as well.
50. Rawls, supra note 6 (“the success of liberal constitutionalism came as a discovery of a new social possibility: the possibility of a reasonably harmonious and stable pluralist society. Before the successful and peaceful practice of toleration in societies with liberal institutions there was no way of knowing of that possibility,” at xxvii). This is not to say that Muslim scholars working on issues of Islam and democracy in the context of Muslim-majority jurisdictions are indifferent to the concept of public reason. In a recent work, Abdullahi An-Na’im stresses the importance of notions derived from “public reason” in strengthening commitments to democratic rule and human rights in Muslim majority jurisdictions. Abdullahi An-Na’im, The Future of Shari’a [forthcoming in 2008] (see especially ch. 3 and 4). Raja Bahlul has also published an article in which he questions the applicability of Rawls’ notion of public reason to Muslim majority jurisdictions, but suggests that an “Islamic public reason,” assuming certain substantive reforms to traditional Islamic law are effected, could function in a similar fashion. See Bahlul, Raja, “Toward an Islamic Conception of Democracy: Islam and the Notion of Public Reason” (2003) 12 Critique: Critical Middle Eastern Studies 43 Google Scholar.
51. This is not to deny the possibility that the experience of Muslim citizens in liberal societies—to the extent that it is recognized by the larger Muslim world as a successful articulation of an Islamic way of life—could influence the interpretation of Islamic comprehensive doctrines in Muslim majority jurisdictions. Given the impact of globalization, it is almost inconceivable to imagine that such an articulation would not have a profound impact on the larger Muslim world.
52. Much of early Islamic history is contentious, with several leading western historians of Islam advancing various revisionist theories on the origins of Islam over the course of the last fifty years. This Article provides a very brief overview of those elements from early Islamic history that are relevant to understanding later Muslim theological doctrines pertaining to the state. This summary account hews closely to traditional Muslim historical accounts because it is the account that is accepted by most Sunni Muslims and therefore is a necessary part of understanding Islam as a comprehensive theory of the good. For an introduction to the controversy surrounding the historiography of early Islamic history, see Donner, Fred, Narratives of Islamic Origins: The Beginnings of Islamic Historical Writing (Princeton, NJ: Darwin Press, 1998)Google Scholar. For examples of the work of a revisionist historian, see the work of Crone, Patricia, including Cooke, Michael & Crone, Patricia, Hagarism (Cambridge: Cambridge University Press, 1977)Google Scholar; and Crone, Patricia, God’s Caliph (Cambridge: Cambridge University Press, 1986)Google Scholar. For examples of historians who more or less accept Muslim accounts regarding the origins of Islam, see Marshall Hodgson, supra note 44; Kennedy, Hugh, The Prophet and the Age of the Caliphates, 2nd ed. (Harlow, UK: Longman, 2004)Google Scholar; and Watt, William Montgomery, Muhammad at Mecca (Albany: State University of New York Press, 1988) & Muhammad at Madina (New York: Oxford University Press, 1981).Google Scholar
53. The Shi’ites believe that political leadership of the community is inseparable from religious leadership, and for that reason, the community’s legitimate ruler, whom they term “imâm, “ is divinely selected, and like the Prophet, is believed to be infallible, at least in matters dealing with religion. The Shi’ites believe that the Imam must come from a specific line of the Prophet’s descendants. For more information on the Shi’ites, see “Shi’a” in 9 Encyclopaedia of Islam 420a.
54. See, e.g., Kraemer, Joel, Humanism in the Renaissance of Islam (Leiden: Brill, 1986)Google Scholar (describing theological disputations of 11th century Baghdad as involving not only orthodox and heterodox Muslims, but also “infidels, Mazdeans, materialists, atheists, Jews, and Christians—in short, infidels of every sort,” that the ground rules of such interdenominational disputation “proscribed appeal to the authority of revelation,” and that the only admissible arguments were those “derived from reason” at 59).
55. For more information on scholastic theology among Muslims, see “Kalam” in 4 Encyclopaedia of Islam 468b.
56. Weiss, Bernard G., The Search for God’s Law (Salt Lake City: University of Utah Press, 1992) at 34, 51Google Scholar.
57. Ibid. (describing “theology proper” in the Muslim conception as limited to the study of the “existent whose existence is necessary,” and accordingly, that “the study of God [is rooted] in the study of being” at 51). See also Johansen, supra note 9 (describing Muslim scholastic theology as “a theocentric system of rational speculation on God and the universe” at 6).
58. ‘Abd al-karim al-Shahrastani, Muhammad b., al-Milal wa-1-nihal (Cairo: Maktabat al-husayn al-tijariyya, 1948-1949), vol. 1 at 54-55Google Scholar, quoted in Yusuf al-’Amiri, Abu al-Husayn Muhammad b., al-I’lam bi-manaqib al-islam, ed. by Ghurab, Ahmad Abd al-hamid (Cairo: Dar al-Katib al-Arabi 1967) at 115, n. 2Google Scholar. For more information on al-Shahrastani, see “al-Shahrastani” in 9 Encyclopaedia of Islam 214b. For more information on al-’Amiri, see “Aflatun” in 1 Encyclopaedia of Islam 235b.
59. Abu Hamid Muhammad b. Muhammad b. Muhammad al-Ghazali, al-Iqtisad fi al-i’tiqad, ed. by Abu’l-’Ila, Muhammad Mustafa (Cairo: Maktabat al-jundi, n.d.)Google Scholar [al-Ghazali, Iqtisad] (noting that the Caliphate does not fit comfortably within kalam because it is more properly a matter of legal inquiry and not rational inquiry at 197).
60. See Fadel, Mohammad, Adjudication in the Maliki Madhhab: A Study of Legal Process in Medieval Islamic Law (Ph.D. dissertation, University of Chicago, 1995) [unpublished] at 39, n. 8Google Scholar.
61. For more information on the Mu’tazilites, see “Mu’tazila” in 7 Encyclopaedia of Islam 783a.
62. For more information on the Ash’aris, see “al-Ash’ari, Abu 1-Hasan Ali b. Isma’il” in 1 Encyclopaedia of Islam 694a and “Ash’ariyya” in 1 Encyclopaedia of Islam 696a.
63. A third school of theology, the Mâtûrîdîs, often took middle positions between the Mu’tazilites and the Ash’arites. For more information on this theological school, see “al-Maturidi, Abu Mansur Muhammad b. Muhammad” in 6 Encyclopaedia of Islam, 846a and “Maturidiyya” in 6 Encyclopaedia of Islam 847a.
64. Muhammad al-Jurjani, Ali b., Sharh al-mawaqifed. ‘al-rahman, Abd ‘Umayra (Beirut: Dar al-jil, 1997), vol. 1 (while knowledge of God is a duty unanimously affirmed by all Muslims, the Ash’aris and the Mu’tazilites agree that deliberative reflection is the only way to attain that knowledge and for that reason is also obligatory at 152-53)Google Scholar. See also Johansen, supra note 9 (“the obligation to rationally recognize God has remained part of the Sunnî definition of belief “ at 5-6).
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66. Weiss, supra note 56 (theology is the first proper concern of the human intellect, and in one’s encounter with it, one develops an understanding of epistemology and the prerequisites of rational inquiry at 35).
67. See Johansen, supra note 9 (saying that “[t]heology is a rational vindication of religious truths” at 26).
68. Indeed, al-Amiri cites kalam’s universality as one of its chief virtues. Al-’Amiri, supra note 58 at 115. See also Abu Hamid Muhammad b. Muhammad b. Muhammad al-Ghazali, al-Mustasfa fi ‘Um al-usul, ed. by Abd al-shafi, Muhammad ‘Abd al-salam (Beirut: Dar al-kutub al-’ilmiyya, 1993 Google Scholar) [al-Ghazali, Mustasfa] (“The one religious science that is universal is theology” at 6).
69. Kevin Reinhart, A., “Islamic Law as Islamic Ethics” (1983) 11 J. Religious Ethics 186 Google Scholar (the object of inquiry in this discipline is “the search for the... [moral] judgment... that is appropriate to a given... act” at 188). Al-Ghazali defines it as “an expression for the bases of [moral] judgments and knowledge of the various ways by which they signify [moral] judgments in general.” Al-Ghazali, Mustasfa, supra note 68 at 5. Ethical judgments are known as ahkâm taUîfıyya—the rules of obligation, because they command, permit or prohibit specific actions for specific persons.
70. Frank, Richard, “Moral Obligation in Classical Muslim Theology” (1983) 11 J. Religious Ethics 204 Google Scholar (discussing various theories of moral obligation propounded by Muslim theologians).
71. In addition to the rules of obligation, moral theology also recognizes another category of judgments, known as ahkâm wad’iyya—positive rules—which neither command nor prohibit action, but instead set forth the positive consequences of certain actions. Accordingly, while all human actions are judged by reference to the ethical rules of obligation, only some actions generate legal consequences under the positive rules. For example, while a contract of sale is generally permissible, once executed, certain legal consequences arise that are a function of the positive rules, including the duty of the seller to deliver the good and of the purchaser to pay the purchase price.
72. See generally Zysow, Aron, The Economy of Certainty (Ph.D. dissertation, Harvard University, 1984)Google Scholar [unpublished] (describing the importance of probability to understanding usui al-flqh); see also al-Ghazali, Mustasfa, supra note 68 (linking the possibility of sin to epistemology at 347-48). I am indebted to Professor Baber Johansen for this reference.
73. To get a sense of the extent to which hermeneutical issues occupied the attention of Muslim moral theologians, approximately 230 out of 745 pages of Weiss’ book, The Search for God’s Law, which is itself a rendering of Sayf al-din al-Amidi’s al-Ihkam fi usul al-ahkam, is devoted to issues pertaining to language and its interpretation. See Weiss, supra note 56.
74. This does not mean that Muslim theologians believed that moral inquiry was an entirely objective process. See infra notes 171-176, and the accompanying text.
75. Illegitimate disagreement constitutes rejecting that which is known by necessity to be part of Islam due to the fact that these matters are so clearly established by revelation that that only those who reject the truth of revelation could deny these obligations. See al-Ghazali, Mustasfa, supra note 68 (rejection of the obligation to pray and fast, and the prohibition against drinking wine and theft are tantamount to the rejection of Islam at 347). Those areas of revelation that require some interpretive effort on the part of the listener comprise the domain of legitimate ethical disagreement as well as those areas of human life as to which revelation appears to be silent.
76. Reinhart, supra note 69 (describing the Qur’an, in the Muslim perspective, as “an unparalleled window into the moral universe,” functioning “as a quarry in which the astute inquirer can hope to find the building blocks for a morally valid, and therefore true, system of ethics” at 189).
77. Ibid. (noting that because the Prophet’s life, on the Muslim understanding, was “[a] life lived totally in accord with the Moral,” his life “becomes a window into moral knowledge” at 190).
78. While the “data” provided by the Qur’an was of indubitable historical accuracy in the opinion of Muslims, the hadith and consensus posed unique problems. See Zysow, supra note 72 (noting that unlike the Qur’an, which Muslims deemed to be “of absolutely certain authenticity,” the authenticity of reports attributed to the Prophet Muhammad was a matter of “serious concern” at 11). Consensus of the Muslims, although universally recognized as data relevant to ethical inquiry, was fraught with difficulties as well. See ibid. at 198-261; and Hallaq, Wael, “On the Authoritativeness of Sunni Consensus” (1986) 18 Int’l J. Middle East Studies 427 CrossRefGoogle Scholar (explaining the problematic nature of defining consensus within Islamic jurisprudence).
79. Reinhart, supra note 69 at 191-92.
80. Zysow, supra note 72 at 283. Some Muslim theologians rejected analogy for this very reason, and instead claimed to derive all their moral judgments from the plain meaning of revelatory texts. Ibid. (describing the views of those Muslim theologians who rejected analogy at 294-323).
81. The Arabic term is “maslaha mursala, “ which is often translated inaccurately as “public interest,” or “social welfare.” In addition to maslaha mursala, istihsân, translated as “juristic preference,” was another inductive technique used in ethical reasoning. See Makdisi, John, “Legal Logic and Equity in Islamic Law” (1985) 33 Am. J. Comparative L. 63 CrossRefGoogle Scholar.
82. Weiss, supra note 56 (translating “usûl al-fiqh” as “the principles of jurisprudence” at 14-16); Jackson, Sherman A., “Fiction and Formalism: Toward a Functional Analysis of Usûl al-fiqh ” in Weiss, Bernard, ed, Studies in Islamic Legal Theory (Leiden; Boston; Koln: Brill, 2002) [Weiss, Studies] at 177 [Jackson, “Fiction and Formalism”] at 179Google Scholar.
83. The dual concern of moral theology, with its emphasis on the consequences in the afterlife of one’s conduct in the profane world, is especially clear in the controversy regarding whether non-Muslims are morally culpable for their failure to discharge the ritual obligations of the Islamic law. See Badr al-din Muhammad b. Bahadur b. Abdallah al-Zarkashi, al-Bahr al-muhit, ed. by Tamir, Muhammad Muhammad (Beirut: Dar al-kutub al-’ilmiyya, 2000), vol. 1 at 320-28Google Scholar. Cf. Nujaym, Ibn, al-Ashbah wa-1-naza’ir (Beirut: Dar al-kutub al-’ilmiyya, 1993 Google Scholar) (stating that general rules of substantive law from which detailed particular rulings are derived are the actual sources of law at 15). For more information on al-Zarkashi, see “Badr al-Din Muhammad b. Bahadur b. ‘Abdallah al-Zarkashi” in 2 Encyclopaedia of Islam, 142b and 3 Encyclopaedia of Islam 1091b. For more information on Ibn Nujaym, see “Ibn Nudjaym, Zayn al-Din” in 3 Encyclopaedia of Islam 901a.
84. Weiss, supra note 56 (discussing the complex relationship of law to morality in Islamic thought at 1-16). The most obvious example of a legal rule that cannot be explained simply as a reflection of Islamic ethics is the notorious triple, irrevocable talâq (divorce). Although in certain circumstance the Malikis considered a man who used this formula to divorce his wife a sinner, see Ahmad al-Dardir, Abu Barakat Ahmad b. Muhammad b., al-Sharh al-saghir (Cairo: Dar al-ma’arif, 1986), vol. 2 at 537–38 Google Scholar, and even subject him to criminal punishment in such circumstances, see, e.g., ibid. at 567, 574, the divorce was nevertheless recognized as effective. Fadel, supra note 60 at 12. Another example is the law of conversion (ghasb): while conversion is unlawful, and may be punished criminally, the converter in certain circumstances acquires limited property rights with respect to the converted object. See Yanagihashi, Hiroyuki, A History of the Early Islamic Law of Property (Leiden: Brill, 2004) at 98–121.Google Scholar Finally, not all acts that are legally prohibited are sinful. For example, the Shafi’is prohibited a foster parent living in a city, even if originally a bedouin, from removing the foster child from the city to the desert, or even a village. See Pollack, Daniel et al., “Classical Religious Perspectives of Adoption Law” (2004) 79 Notre Dame L. Rev. 693 at 747-48Google Scholar.
85. Reinhart, supra note 69 (noting definition of obligatory and forbidden in relation to religious consequence of act at 99-100); cf. ibid. (discussing difficulty in determining whether judgments in usul al-fiqh are primarily moral judgments or legal judgments, but concluding that connotation is primarily legal at 103-05). See also al-Ghazali, supra note 68 (explaining the preference for the term “blame (dhamm)” rather than “punishment (‘uqûba)” to describe the consequence of violating God’s commands because, while religious blame occurs immediately, punishment may or may not occur due to the possibility of divine forgiveness at 57); Weiss, supra note 56 (quoting al-Amidi as using the term “blame” in connections with violations of the divine law at 99-100).
86. See Johansen, supra note 9 (describing how law came to be separated from theology in Islamic history at 1-7).
87. See, e.g., al-Ghazali’s definition of fiqh as “an expression for the science [concerned with] ethical judgments that are established for the actions of morally-responsible persons (‘ibara ‘an al-’ilm bi-1-ahkam al-shar’iyya al-thabita li-af’al al-mukallafin khassa).” Al-Ghazali, supra note 68 at 5.
88. Mohammad Fadel, “Isíihsân is Nine-Tenths of the Law: the Puzzling Relationship of Usui to Furû’ in the Mâlikî Madhhab” in Weiss, Studies, supra note 82 at 161.
89. The word mujtahid is the active participle of the verbal noun ijtihad, which means “to exert one’s self to the utmost of her ability.” In the context of ethical reasoning, it is to exert one’s judgment to her utmost in discovering the correct ethical ruling regarding specific conduct.
90. See Jackson, Sherman, Islamic Law and the State: The Constitutional Jurisprudence of Shihâb al-Dîn al-Qarăfl (Leiden: Brill, 1996) [Jackson, Constitutional Jurisprudence] at 77Google Scholar.
91. For more information on the founders of the schools of Islamic law and the schools themselves, see “Abu Hanifa, al-Nu’man b. Thabit” in 3 Encyclopaedia of Islam 162b; “Hanafiyya” in 3 Encyclopaedia of Islam 162b; “Malik b. Anas” in 4 Encyclopaedia of Islam 262b; “Malikiyya” in 6 Encyclopaedia of Islam 278a; “Ahmad b. Hanbal” in 1 Encyclopaedia of Islam 272a; “Hanabila” in 3 Encyclopaedia of Islam 158a; “Shafi’iyya” in 9 Encyclopaedia of Islam 185a.
92. See, e.g., Makdisi, George, The Rise of Colleges (Edinburgh: Edinburgh University Press, 1981) at 133–34 Google Scholar.
93. See, e.g., Ahmad Ibn Rushd, Abu al-Walid Muhammad b., Bidayat al-mujtahid wa nihayat al-muqtasid, ed. by ‘Mu’awwad, Ali Mahmud & Abd al-Mawjud, Adil Ahmad (Beirut: Dar al-kutub al-’ilmiyya, 1996)Google Scholar; and al-din ‘Abdallah b. Ahmad b.|Muhammad Ibn Qudama, Muwaffaq, al-Mughni (Jeddah: Maktabat al-Sawad, 2000)Google Scholar. For more information on Ibn Rushd, known to the Europeans as Averroes, see “Ibn Rushd, Abu ‘1-Walid Muhammad b. Ahmad” in 3 Encyclopaedia of Islam 909b.
94. For example, in discussing whether a father’s prospective waiver of his rights to the custody of his minor children in the event of the mother’s remarriage is binding, Badr al-din al-Qarafi, a sixteenth-century Maliki judge from Egypt, analyzed the issue under the rubric of the enforce-ability of prospective waivers of contingent rights under Maliki doctrine generally rather than engage in scriptural interpretation. See Jackson, Sherman, “Kraemer v. Kraemer in a Tenth/Sixteenth Century Egyptian Court: Post-Formative Jurisprudence between Exigency and Law” (2001) 8 Islamic Law & Soc. 27 CrossRefGoogle Scholar (describing the jurisprudential approach prevailing in that period as one that attempted to harmonize various strands of legal doctrine rather than one fixed by revelatory texts). For more information on al-Qarafi, Badr al-din, see “al-Karafi, Badr al-Din” in 4 Encyclopaedia of Islam 255b Google Scholar.
96. See Jackson, supra note 90 at 174; Makdisi, John A., “The Islamic Origins of the Common Law” (1999) 77 N.C. L. Rev. 1635 at 1708Google Scholar.
97. See Jackson, Constitutional Jurisprudence, supra note 90 at 185-224.
98. See Peters, supra note 1 (arguing that the soundest approach to studying classical Islamic law’s relationship to modern international human rights law is “to examine and analyze classical fiqh texts in order to find out what are the elementary values and inalienable rights of individuals recognized and protected by Islamic law” at 8); see also Johansen, Baber, “Sacred and Religious Elements in Hanafite Law—Function and Limits of the Absolute Character of Government Authority” in Gellner, Ernest & Vatin, Jean-Claude, eds., Islam et Politique au Maghreb: Table Ronde du CRESM, Aix, Juin 1979 (Paris: Centre National De La Recherche Scientifique, 1981) 281.Google Scholar
99. Accordingly, the legal requirement to have a Caliph may not represent a theological commitment to perfectionist politics, but a political commitment based on a belief (which may or may not have been justified) that Islam as a religion could not survive in non-Islamic states which were also politically perfectionist in a manner hostile to Islam.
100. A rule is Islamically “reasonable” when it does not contradict an express text of revelation. Substantive law is therefore the Islamic domain in which it is most likely that one may find analogues to Rawlsian “reasonableness,” for it represents the political terms on which individuals are to engage in cooperative activity, i.e., it defines the terms on which the coercive powers of the state can be invoked. Usul al-fiqh, by contrast, is more akin to the rational in Rawls’ vocabulary, as its judgments do not describe public terms of cooperation but rather set forth the conduct required of an individual to earn merit with God. Rawls, supra note 6 (explaining how the “reasonable” is “public” in contrast to the “rational” at 53).
101. In the terms of Hodgson, kalâm and usûl al-fiqh are properly Islamic disciplines (since they are fundamentally related to Islam as a religion), while fiqh, with the exception of ritual law, is largely an Islamicate discipline. Hodgson, supra note 44 at 100.
102. See Mohammad Fadel, “Too Far From Tradition” in Cohen & Chasman, supra note 38 at 81 (criticizing “top down” theories of Islamic democracy in favor of a “bottom-up” approach, that relies more on established historical doctrines and less on appeals to revelation at 84).
103. Rawls, supra note 6 at xx.
104. Indeed, for Ash’ari theologians, true knowledge of God—even if unaccompanied by righteous conduct—guaranteed eventual salvation, even if it came after a period of punishment for failure to live in accordance with God’s commands. See al-Bajuri, Ibrahim, Tuhfat al-murid ‘ala jawharat al-tawhid (Samarang, Indonesia: Maktabat Usaha Kaluwarka, n.d.) at 22Google Scholar; see also al-Tahawi, Abu Ja’far, Islamic Belief, trans. by A’zami, Iqbal Ahmad (Leicester: UK Islamic Academy, 1995) (stating that even unrepentant sinners who are Muslim will eventually be saved if they have true knowledge of God at 13)Google Scholar. For more information on al-Bajuri, see “Badjuri, Ibrahim b. Muhammad” in 1 Encyclopaedia of Islam 867b Google Scholar. For more information on al-Tahawi, , see “al-Tahawi, Ahmad b. Muhammad” in 10 Encyclopaedia of Islam 101a Google Scholar.
105. This account of the rise of public reason arguments in Islamic legal history is consistent with Rawls’ notion of tolerance arising out of the fact of social pluralism.
106. Al-Jurjani, supra note 64 (majority of Muslim theologians agree that to have knowledge of God is the first moral obligation of human beings at 165); al-Qarafi, Shihab al-din, al-Umniyya fi idrak al-niyya, ed. by Qasim al-Falih, Musa’id b. (Riyad: Maktabat al-haramayn, 1988)Google Scholar (stating that the first duty upon an adult who was capable of reflection and inquiry was to reflect upon the signs of God’s existence at 112). A small minority of Muslim theologians expressed the view that rational inquiry into matters of faith was sinful. See 13 Ibn Hajar, supra note 65 at 433. Others argued that faith based on deference to an authority could nevertheless constitute religiously valid faith if it was an independent conviction that was true in itself and that was based on some type of evidence, such that if the authority were to change his view of God, the follower’s conviction would be unchanged. See al-Bajuri, supra note 104 (attributing this view to Taj al-din al-Subki at 22). Others argued that belief in God as a result of rational proofs was only necessary to perfect faith, see ibid., or obligatory only in circumstances where a believer is overcome by doubt. See al-Ghazali, supra note 59 at 8. Others argued that faith grounded in deference to authority was sufficient, but that such individuals with the ability to undertake rational inquiry who failed to do so were sinners, whereas those individuals lacking such capacity were not. See al-Bajuri at 22. Others argued that belief based on general evidence was obligatory in all cases, See, e.g., al-Dassuqi, Muhammad, Hashiyat al-dassuqi ‘ala umm al-barahin (Samarang, Indonesia: Maktabat Usaha Kaluwarka, n.d.)Google Scholar (“Those who hold this view believe that everyone has the capacity [for rational belief in God] because what is required is a general proof by which [psychological] certainty occurs, such that one having this knowledge does not say ‘I heard the people saying something, so I said it.’ General proof [of God] is available to all. This opinion is based on the notion that belief originates as internal speech deriving from firm conviction” at 55), but that detailed knowledge of the rational proofs for God is only an obligation of some members of the Muslim community. See ‘Abdallah al-Taftazani, Sa’d al-din Mas’ud b. ‘Umar b., Sharh al-maqasid (Beirut: Alam al-kutub, 1989), vol. 1 at 266 Google Scholar. Other theologians argued that rational belief in God was required by all, and while failure to discharge this obligation resulted in sin, it did not invalidate one’s belief in God. See al-Dassuqi at 55. See also Johansen, supra note 9 (explaining the rational basis of belief in the creedal system of Sunni Islam at 5-7). For a general overview of the precise contours of reason and authority in determining the validity and efficacy of faith in Islamic theology, see O.P., Joseph P.Kenny, Muslim Theology as Presented by M. b Yûsuf as-Sanûsî, especially in his al-’Aqîda al-Wustâ, (Ph.D. dissertation, University of Edinburgh, 1970) [unpublished] at 89–99 Google Scholar. For more information on these theologians, see “Shihab al-Din al-Karafi, Abu ‘1-Abbas Ahmad b. Idris” in 9 Encyclopaedia of Islam 435b Google Scholar; “al-Djurdjani, Ali b. Muhammad” in 2 Encyclopaedia of Islam 602b Google Scholar; “al-Subki, Tadj al-Din” in 1 Encyclopaedia of Islam 593a Google Scholar; “al-Taftazani, Mas’ud b. ‘Umar b. Abdallah” in 10 Encyclopaedia of Islam 88b Google Scholar.
107. Al-Jurjani, supra note 64 at 147-48.
108. Ibid. at 148.
109. Ibid. at 151.
110. For Ash’ari theologians who did not consider rational reflection to be a prerequisite for valid faith, reflection was deemed to “perfect” faith. See al-Bajuri, supra note 104 at 22.
111. Al-Jurjani, supra note 64 at 151.
112. See Ibid. at 152-54; al-Taftazani, supra note 106, vol. 1 at 266-67.
113. Al-Qadi ‘Abd al-jabbar, Shark al-usul al-khamsa, ed. by al-Karim, Abd ‘Uthman (Cairo: Maktabat wahba, 1965) at 68–69 Google Scholar. There are other experiences, however, that also may trigger the obligation to inquire according to the Mu’tazalis. Among these are hearing preachers who make claims about God or being exposed to a book in which the author claims God exists and that individuals may be punished by God for failure to obey Him, or even a random thought in his mind. Contemplation of the natural world and the miraculous nature of one’s own life can also cause a person to begin an inquiry about God. Al-Qadi Abd al-Jabbar, al-Mughni fi abwab al-tawhid wa-1 -’adl (Cairo: Wizarat al-thiqafa wa-1 -irshad al-qawmi, 1960-1965), vol. 12 at 396 Google Scholar. For more information on al-Qadi Abd al-Jabbar, see “Abd al-Djabbar b. Ahmad” in 1 Encyclopaedia of Islam 59b Google Scholar.
114. Al-Jurjani, supra note 64 at 153.
115. Muslim theologians divide knowledge into the “necessary” and the “acquired.” The former is that category of human knowledge that impresses itself upon the human mind without the intermediation of rational deliberation. See Weiss, supra note 56 at 3700-41. See also al-Taftazani, supra note 106, vol. 1 at 266; al-Dassuqi, supra note 106 (quoting Ibn al-Arabi as saying that knowledge of God is not necessary and can only be acquired through the use of reason at 58).
116. Al-Jurjani, supra note 64 at 168.
117. Ibid. (“As for those who were allotted sufficient time in which they could conduct a complete inquiry which would give them knowledge of God, but they failed to inquire during that period of time, and therefore failed to attain knowledge [of God] without an excuse, they are sinners.”). Those who died prior to discovering the truth could be saved on the basis of their diligent search for truth. Ibid. (“Those who were not allotted any time, meaning, they died before becoming an adult, are like the child who dies in his youth. [As for] those who were allotted some time in which they could inquire, but not enough to complete their inquiry, if they did not put off their inquiry, and death overcame them prior to the completion of their inquiry and the attainment of knowledge [of God], they are certainly not sinners.”) As for those who negligently put off delayed their search for truth, it is likely, but not definitive, that they are sinners. Ibid.
118. It should be noted that the rational proof of God and His attributes prepares a person for the possibility of prophetic revelation. Weiss, supra note 56 at 69.
119. Ibid. at 73.
122. Ibid. at 74.
123. Ibid. at 75.
124. Abu Hamid Muhammad b. Muhammad b. Muhammad al-Ghazali, On the Boundaries of Theological Tolerance in Islam, trans. by Jackson, Sherman (Karachi: Oxford University Press, 2002)Google Scholar (noting that people who have not heard of the Prophet Muhammad are without doubt going to be saved and that people who have heard of him, but only in the context of distorting polemics, may nevertheless still be saved even if they nominally rejected his message at 126).
125. See al-Bajuri, supra note 104 (noting that dispute regarding the necessity of rational belief as opposed to truthful conviction is solely matter of next life and thus outside of legal inquiry at 22).
126. Note that even under the strong theory, it would be permissible for the state to teach Islam, whether directly or indirectly, but it could not prohibit individuals from reaching their own conclusions based upon the exercise of their reason.
127. Rawls, supra note 6 at 19.
128. The impermissibility of deferring to the authority of another with respect to religious dogma was contrasted with the permissibility, indeed the obligation for the untrained, to defer to the opinions of specialists with respect to moral reasoning. Because moral reasoning, as discussed in further detail below, does not result in certain knowledge of moral truth, in most cases opinion is all one may reasonably expect to attain. Accordingly, deference to the opinion of others in morally controversial matters is epistemologically defensible since one opinion is not inherently superior to another in those circumstances. See al-Dassuqi, supra note 106 (arguing that deference to authority in matters of religious dogma is insufficient because dogma corresponds to ontological reality in contrast to matters of moral reasoning whose conclusions do not necessarily have independent ontological existence at 55). Even in matters of moral reasoning, however, non-specialists were permitted to defer to the opinions of an authority only to the extent that they had independent grounds for trusting that authority. Al-Ghazali, Mustasfa, supra note 68 at 373.
129. See, e.g., al-Ghazali, Iqtisad, supra note 59 (assigning to theology the responsibility to refute heresy at 8). If, however, the state had an affirmative moral obligation to sup Press heretical doctrine, presumably there would be no need for theology.
130. The most famous medieval Muslim philosophers were generally Aristotelians, except in politics, where they found greater inspiration in Plato, ’s writings. See Medieval Political Philosophy: A Sourcebook, Lerner, Ralph & Mahdi, Muhsin, eds., (Ithaca, NY: Cornell University Press, 1963).Google Scholar
131. The Fatimids should be distinguished from the Twelver Shia, who represent the majority of today’s Shi’ite community. By the time the Fatimids began their propaganda, the last Imam of the Twelvers had gone into “hiding,” and ever since, the Twelver Shia have been forced to manage their community’s affairs without the benefit of an infallible imam.
132. Abu Hamid Muhammad b. Muhammad b. Muhammad al-Ghazali, Fada’ih al-batiniyya, ed. by Abd al-rahman Badawi (Cairo: al-Dar al-qawmiyya lil-taba’a wa-al-nashr, 1964).Google Scholar
133. See ibid. at 73-145.
134. See al-Ghazali, Iqtisad, supra note 59 at 197.
136. Al-Ghazali’s expression is “provisions [adequate to satisfy needs] are a condition to the good order of religion.” Ibid. at 198.
139. Ibid. at 198-99.
140. Al-Ghazali, Iqtisad, supra note 59 at 197-99.
141. Indeed, the only redistributive tax recognized by medieval Islamic positive law was the institution of zakât, a tax on private wealth whose central, though not exclusive, purpose was to provide for the impoverished. See al-Dardir, supra note 84, vol. 1 at 657-63. In addition to the zakat, however, Islamic law imposed maintenance obligations within the family, which created judicially enforceable obligations of support within a family In Maliki law, for example, adult children—as long as they were solvent—were under a legal obligation to support their parents in the event that they became impoverished. See al-Dardir, supra note 84, vol. 2 at 657-63. For more information on al-Dardir, , see “al-Dardir, Abu Barakat Ahmad b. Muhammad b. Ahmad” in 6 Encyclopaedia of Islam 278a Google Scholar.
142. But see, Hassan, Hussein, “Contracts in Islamic Law: The Principles of Commutative Justice and Liberality” (2002) 13:3 J. of Islamic Studies 257 (arguing that Islamic law was profoundly concerned with questions of distributive justice and had numerous institutions designed to achieve an equitable distribution of wealth and resources at 266-68)CrossRefGoogle Scholar.
143. Rawls, supra note 6 at 152-53 (raising the hypothetical case of “rationalist” believers in connection with discussion of the duty of restraint).
144. There may be alternative grounds on which Muslims could recognize other non-Islamic theories of the good to be provisionally reasonable, and therefore worthy of respect. These would include ways of life based on revelation pre-dating Islam, such as Judaism and Christianity and perhaps other pre-Islamic religions as well, given the Islamic belief in the universality of prophecy. Other provisionally reasonable ways of life would be those grounded in philosophy, given its commitment to life lived in accordance with reason. Such faith communities and philosophic communities might be worthy of respect because they share with Islam a fundamental commitment to truth following. More problematic from the point of view of Muslim theology would be ways of life based on paganism, which were deemed to be contrary to both reason and revelation, and therefore not worthy of respect, the paradigmatic case being that of the pre-Islamic Arabs, whose way of life was called jâhiliyya or barbarism. Perhaps for this reason some Muslim theologians sometimes went to extreme efforts to deny that the non-Abrahamic communities that they encountered were genuinely pagan. See, e.g., Tareen, Sher Ali, Reifying Religion While Lost in Translation: Mirza Mazhar Jan-i Janan on the Hindus (2006) [unpublished, manuscript on file with the author] at 4-7Google Scholar.
145. For the continuing relevance of this doctrine, see Makki, Majd Ahmad, ed., Fatawa mustafa al-zarqa (Damascus: Dar al-qalam, 2004) (concluding that substantial numbers of North Americans and Europeans cannot be morally culpable for failing to embrace Islam at 358-59)Google Scholar. See also al-Qaradawi, Yusuf, Fatawa Mu’asira (Beirut: al-Maktab al-islami, 2003), vol. 3 (concluding that while, for purposes of Islamic substantive law, any person who is a non-Muslim is deemed to be an infidel, such persons may nevertheless not be morally culpable before God in the next life to the extent that their failure to embrace Islam is a product of ignorance or imperfect information about Islamic teachings, rather than defiance of God at 154-56)Google Scholar.
146. See al-Jurjani, supra note 64 at 162.
147. Not all Ash’aris accepted the argument that revelation was the source of the obligation to know God. Fakhr al-din al-Razi, for example, accepted the argument that this obligation arises simply by the operation of reason even prior to the advent of revelation. Fakhr al-din al-Razi, Mafatih al-ghayb (Cairo: al-Matba’a al-bahiyya al-misriyya, n.d.), vol. 20 (commenting on al-Isra’, 17:15, which states, in part, “We punish no one until we send a messenger,” at 172-73). For more information on al-Razi, Fakhr al-din, see “al-Razi, Fakhr al-Din” in 2 Encyclopaedia of Islam 749b.Google Scholar
148. See, e.g., Rajab, ‘Abd al-rahman b. Ahmad b., Jami’ al-’ulum wa-1-Ыкат (Beirut: Dar al-jil, 1987)Google Scholar (noting that although an intention to serve God is necessary in order to receive a reward in the next life, acts such as charity and reconciliation of people—even without such an intent—are nevertheless described in the Quran as good because of “the general benefits that result from [such acts]” at 15).
149. On political liberalism’s commitment to truth, Rawls notes that “it would be fatal to the idea of a political conception to see it as skeptical about, or indifferent to, truth, much less as in conflict with it,” Rawls, supra note 6 at 150, and that just as political liberalism neither asserts nor denies “any particular comprehensive religious, philosophical, or moral view,” it also “assume[s] each citizen... affirm[s] some such view.” Ibid.
150. This conclusion appears consistent with some of the writings of the contemporary theologian Yusuf al-Qaradawi on the problem of political cooperation between Muslims and non-Muslims, and the theological status of the latter. See, e.g., Zarqa, supra note 145 (summarizing the views of a group of noted Muslim theologians who debated the question of “the communication of Islam’s teachings” in the 1950s as concluding that although there is certainty that some non-Muslims in all areas of the world have received accurate information regarding Islam such that they can be held morally culpable if they fail to embrace it, it is impossible to conclude that any particular individual non-Muslim can be found to be morally culpable for failing to embrace Islam at 359, n. 1) and al-Qaradawi, supra note 145, vol. 3 (stating that whether a non-Muslim will be culpable before God for his failure to embrace Islam is a matter left to God at 154). Al-Qaradawi also suggests that only subjectively unreasonable rejection of Islam results in culpability before God. See ibid. (arguing that only those who reject Islam despite their subjective recognition of its truth are culpable at 154-56). Finally, despite the incompatibility of Islam and other comprehensive doctrines qua comprehensive doctrines, ibid. at 188, he argues that it is nevertheless possible for Muslims to cooperate with non-Muslims for several reasons, including, a Muslim’s belief in the dignity of each person regardless of her comprehensive doctrine, that diversity in comprehensive doctrines is something willed by God for a wise purpose, a Muslim is under no obligation to judge non-Muslims on account of their unbelief, or punish non-Muslims on account of their error, and a Muslim’s love of justice and virtue and hatred of op Pression, even if the unjust party is a Muslim and the aggrieved party a non-Muslim. Ibid. at 189-91.
151. Theological doctrines that support pluralism, either directly or indirectly, however, were not always enshrined into positive law by Muslim jurists in as robust a manner as would be required by political liberalism. For that reason, a significant contradiction exists between the values of scholastic theology which reinforce intellectual freedom, and legal rules which in certain instances burden, and in other cases, criminally punish, those who hold and espouse theories of the good which are deemed to be contradictory to orthodox Islam. The most prominent of these rules was the criminalization of overt apostasy. Accounting for the criminalization of apostasy remains an important challenge for Islamic orthodoxy and is a topic I will take up in some detail in a forthcoming article.
152. See Rawls, supra note 6 at 54.
153. Ibid. at 55.
154. Ibid. (describing “the more obvious sources” of reasonable disagreement at 56).
155. This issue is discussed under the rubric “taswîb al-mujtahidîn (the infallibility of those who engage in qualified moral judgment).”
156. This issues is discussed under the rubric of “hukm al-ashyă ‘qabla wurûd al-shar’ (moral status of acts prior to the advent of revelation).”
157. Jackson, Sherman, The Alchemy of Domination (1999) 31 Int’l J. Middle East Studies 185 at 186CrossRefGoogle Scholar. Post-Ghazali Ash’aris, such as Fakhr al-din al-Razi and al-Taftazani, argued that the real issue separating the Ash’aris from the Mu’tazilis was not moral epistemology as such, but rather divine freedom. Thus, al-Razi argued expressly for the proposition that reason can give rise to interpersonal obligations independently of revelation, but that reason cannot claim to bind God. Fakhr al-din al-Razi Mafatih al-ghayb, supra note 147, vol. 20 (“The position to which we incline and which we adopt is that [the judgment] of pure reason is a means that creates an obligation upon us to act in accordance with that which benefits us and to refrain from that which is harmful to us. Pure reason, however, does not indicate that any thing is obligatory for God. This is because our nature is such that we are compelled to seek benefits and ward off harm, so it is no wonder that reason by itself is sufficient to oblige us, but God, may He be glorified, is beyond any need to seek benefits or to ward off harm, thus making it impossible for reason to conclude that God is obliged to do, or refrain from, anything” at 174).
158. See Mayer, supra note 5 at 44-45.
159. See Johansen, supra note 9 at 35-36.
160. Weiss, supra note 56 (stating that the revealed law is largely the product of revelation’s apparent meanings, simply by virtue of the fact that reliance on apparent meaning is the primary method of linguistic expression at 474).
161. Jackson, “Fiction and Formalism,” supra note 82 (explaining the indeterminacy of language as understood by Muslim moral theologians at 192-93); Weiss, supra note 56 (explaining that because the plain meaning of words according to Muslim moral theologians yields only a probable judgment as to the intent of the speaker, they may be legitimately interpreted contrary to plain meaning where there is evidence that the plain meaning is not intended at 471-73).
162. See, e.g., al-Ghazali, Fada’ih al-batiniyya, supra note 132 (noting logical impossibility that revelation could provide an answer for everything at 88).
163. Abou El Fadl, Speaking in God’s Name, supra note 39 at 65-66; Zysow, supra note 72 at 11-68.
164. Al-Ghazali, Mustasfa, supra note 68 at 352; Zysow, supra note 72 at 459-83.
165. Al-Ghazali, Mustasfa, supra note 68 at 352.
167. Abou el Fadl, Speaking in God’s Name, supra note 39 (discussing the relationship of interpretation to God’s will, and the moral status of interpretation at 147-50).
168. Al-Ghazali, Mustasfa, supra note 68 at 352.
169. Ibid. at 353.
170. Ibid. at 352.
171. Ibid. at 353.
172. Ibid. at 362.
173. Ibid. at 353-54.
174. Ibid. at 354.
175. See Binder, Leonard, Islamic Liberalism: a Critique of Development Ideologies (Chicago, IL: University of Chicago Press, 1988)Google Scholar (arguing that for Islamic liberalism to make sense, it must be assumed, paradoxically, that the Islamic community—despite its status as a divinely favored community—cannot know with certainty what God wants of it at 4).
176. Al-Ghazali argued that the policy dispute between the first two Muslim caliphs, Abu Bakr and ‘Umar, regarding how funds from the public treasury should be distributed could be understood as an example of how subjective difference in character influenced the exercise of judgment. Abu Bakr was an ascetic, and accordingly favored a strictly egalitarian distributive policy, whereas ‘Umar was deeply committed to improving the community’s temporal welfare, and thus he believed that public resources should be allocated based on the recipient’s relative contribution to the community’s political success. Each adopted his policy as a result of his individual subjective characteristics, not because one policy was objectively superior to another. Al-Ghazali, Mustasfa, supra note 68 at 353-54.
177. This issue was discussed under the rubric of “What is the moral status of acts prior to the advent of revelation?” See generally Reinhart, A.Kevin, Before Revelation: the Boundaries of Muslim Moral Thought (Albany: State University of New York Press, 1995).Google Scholar
178. Ibid. at 62. This was not the exclusive position expressed by Muslim theologians, however. See ibid. (describing various answers to this question at 10-28).
179. There are verses in the Qur’an that stress the importance of consultative decision making and the duty to show obedience to lawful authority. See, e.g., al-Shura 42:38 (praising those who conduct their affairs in a consultative fashion) and al-Nisa 4:59 (commanding Muslims to obey, in addition to God and the Prophet, those with lawful authority).
180. See, e.g., al-Zarkashi, supra note 83, vol. 1 (non-Muslims can become morally culpable for their breaches of the moral law in the next life only if they negligently fail to learn of their obligations at 326).
181. See infra notes 249-268, and the accompanying text, discussing rules in Islamic law where non-Muslims were exempt for precisely this reason).
182. Islamic theology would, however, charge individuals acting behind the veil of ignorance with responsibility for acknowledging the possibility of revelation, and therefore the obligation to permit religious freedom.
183. This is precisely the conclusion Crone draws from the theological debate regarding moral judgment prior to revelation. See Crone, Patricia, God’s Rule: Government and Islam (New York: Columbia University Press, 2004)Google Scholar (arguing that Muslim political thought generally assumed that states could arise only through the intervention of God in the form of a prophet who acts as a lawgiver at 259, 263-68).
184. Al-Taftazani, supra note 106, vol. 4 (stating that dispute regarding the ability of reason to grasp good and evil simply a question of whether God’s judgments for purposes of reward and punishment in the next life are necessarily the same as reason’s judgments of good and evil at 282); al-Razi, supra note 157, vol. 20 at 174.
185. I have published a short essay outlining a possible approach to reconciling substantive commitments of Islamic law to commitments arising out of public reason. See Fadel, Mohammad H., “Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights” (2007) 8 Chicago J. Int’l L. 1 Google Scholar.
186. The question of the moral status of human acts prior to the advent of revelation does not refer to an actual historical period, but instead was purely a thought experiment. Crone, supra note 183 at 264.
187. Cf. Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971)Google Scholar (stating that persons behind the veil of ignorance are assumed to know general facts regarding political affairs, economic theory, psychology, and whether these general facts affect the choice of the principles of justice at 137). Nothing in Islamic moral epistemology appears to be incompatible with Rawls’ assumptions regarding what knowledge may be attributed to persons in the original position. The possibility of revelation, and its impact on conceptions of the good, therefore, would appear simply to be one of the “circumstances of justice,” ibid. at 126, the details of which persons are ignorant in the original position. Ibid. at 137 (parties know only that their societies are “subject to the circumstances of justice and whatever this implies”).
188. Johansen, supra note 9 (saying that in the face of uncertainty, Muslim judges insisted on strict observance of procedural regularity to insure validity of rulings at 36).
189. See Fadel, “Social Logic,” supra note 95 (arguing that the legal institution of taqlid was adopted to solve the problem of indeterminacy inherent in Islamic law’s structure as a jurists’ law).
190. Contra Westbrook, David A., “Islamic International Law and Public International Law: Separate Expressions of World Order” (1993) 33 Va. J. Int’l L. 819 Google Scholar (arguing that because Islamic law’s concept of legality is correspondence to an objectively unknowable fact—God’s judgment on the case—it could not conceive of law as a system of rules growing over time or even accept the authority of previous court decisions, thus ruling out the possibility that the legal system could learn from its own experience over time at 874-76). Westbrook’s view, although not uncommon, is flatly contradicted by medieval legal authorities such as Ibn Rushd the Grandson (Averroes), al-Qarafi, al-Qadi ‘Iyad and Ibn al-Salah, who argued that taqlid was superior to ijtihad for that very reason. See Fadel, Adjudication, supra note 60 at 213-14.
191. See Fadel, “Social Logic,” supra note 95 at 213-15.
192. See al-Qarafi, Shihab al-din, al-Ihkam fi tamyiz al-fatawa ‘an al-ahkam wa tasarrufat al-qadi wa-1-imam, ed. by Arnus, Muhammad (Cairo: Maktab nashr al-thaqafa al-islamiyya, 1938)Google Scholar [al-Qarafi, Ihkam] (noting that a muqallid-judge can rule based simply on the rule of his Imam, without necessarily accepting the validity of that rule at 30); Jackson, Islamic Law and the State, supra note 90, (stating that al-Qarafi equivocated between permitting the muqallid-judge to rule based either on the rule of his school even where he could not determine that it was substantively correct or allowing him to choose among the competing views within his school at 166).
193. Fadel, Adjudication supra note 60 at 276. See also Johansen, supra note 9 (observing that Islamic thought “makes a clear distinction between ethical norms which bind the forum internum of the individual believer and the legal norms which [judges] have to apply when legal conflicts are brought before them” at 35-36).
194. I describe the form that “public reason” took in Islamic history as “qualified” for primarily two reasons: (i) Islamic substantive law retained significant elements of political perfectionism, i.e., rules that were justified (or could be justified) only by appeal to the truth of Islam and (ii) the domain of the “public,” by modern standards, was extremely limited, encompassing only matters such as war and peace, criminal law, and management of public property, e.g., natural resources, and public infrastructure, e.g., roads and marketplaces.
195. See Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961)Google Scholar (discussing the concept of a “rule of recognition” as the means by which a legal system identifies the rule that is applicable to a legal question at 92-93).
196. See Johansen, supra note 9 (summarizing and criticizing a hundred years of Western scholarship on Islamic law that, to varying degrees, has been unwilling to study Islamic law as a legal system rather than as a system of deontic ethics at 48-54).
197. See Fadel, Adjudication, supra note 60 (reviewing secondary literature on the alleged indifference of Islamic law to the practical regulation of society at 4, 10-11).
198. See Johansen, supra note 9 (“the definition of belief as knowledge and acknowledgment of God prevailed in the … theological systems of Sunnî Islam” and pursuant to these theological systems, “works are neither a condition of belief nor a constituent part of it,” at 21-22).
199. See ibid. (describing the substantive rules of Islamic law “as a normative reference for a universally valid system of justice” at 26).
200. Abu Hamid Muhammad b. Muhammad b. Muhammad al-Ghazali, Ihya’ ‘ulum al-din (Beirut: Dar al-kutub al-’ilmiyya, 1986), vol. 1 Google Scholar (“Thus, the entirety of the jurist’s competence is tied to the profane world” at 30). The secular orientation of Islamic law is further confirmed by its rules of pleading which limits a judge’s jurisdiction to claims which implicate the tangible interests of the parties. See al-Qarafi, Ihkam, supra note 192 at 3. Accordingly, Muslim jurists and theologians routinely distinguish between a rule that applies in the profane world from a rule that applies only for purposes of the next life. Examples of this include the obligation to know God: for adherents of the strong theory, this is an obligation that may only be enforced by God in the next life, whereas for purposes of the temporal legal system, any person who claimed to be a Muslim was taken at her word. See supra note 125. Another example is the culpability of non-Muslims for failing to discharge ritual obligations: although no liability attached to them under the temporal legal system, they could very well be accountable before God for such failure. See infra note 254 at 54.
201. Al-Ghazali, Ihya’ ulum al-din, supra note 200 at 23.
202. Ibid. at 24. Al-Ghazali’s obvious respect for politics should be contrasted with Westbrook’s suggestion that politics occupied, in the judgment of Islamic law, the realm of “compromised aspiration.” See Westbrook, supra note 190 at 882.
203. Ibid. at 28.
204. Ibid. (“Thus, the jurist is the teacher of the ruler and his guide to how humanity should be governed and organized so that, as a result of their adherence [to the law], their secular affairs are put in order.”)
205. Ibid. (even when discussing questions of conversion to Islam or ritual observance, a jurist’s competence is limited to worldly considerations at 29).
206. Ibid. (“By my life, [law] is also connected with religion, but not in and of itself, but through the mediation of the secular world” at 28.)
207. Ibid. (explaining that while religion provides the normative principles that make a polity possible, religion cannot survive without the existence of a state which in turn is dependent upon law to organize its affairs).
208. See also Fadel, Adjudication, supra note 60 (citing Ibn Rajab, a prominent Hanbali jurist and theologian from the 14th century, for the proposition that jurisprudence is not the same as religious knowledge, and may even be destructive of religiosity at 13-14).
209. Al-Ghazali, Ihya’ ulum al-din, supra note 200 at 29. My characterization of al-Ghazali’s view of substantive law as a secular vocation is limited to its objective characteristics. Al-Ghazali also argues that a person who discharges a secular vocation, such as law or politics or medicine, with the subjective intent to serve God, sanctifies that activity and gains favor with God as a result of that devotional intention. Nevertheless, al-Ghazali explicitly denies that such an intention is required in order for a person to discharge competently the secular function of a vocation such as law, politics or medicine. Ibid. at 35.
210. A literal translation of the Arabic term “aql”might be “reason,” but “capacity” to discharge one’s obligations appears to be the real concern of the jurists.
211. Al-Ghazali, Mustasfa, supra note 68 (stating that the meaning of the term maslaha, when used as a term of art in moral discourse, means that which preserves the goals of revelation, which are preserving religion, life, capacity, progeny and property at 174). Ibn Farhun, a fourteenth-century Mâlikî jurist and judge living in Madina, proposed an alternative five-fold classification of the rules of Islamic law into rules furthering (i) self-discipline; (ii) preserving the necessities of human existence; (iii) facilitating the satisfaction of human needs to increase their well-being; (iv) the pursuit of generosity; and (v) deterrence and social order. See Fadel, Adjudication, supra note 60 at 84, n. 37.
212. See al-Ghazali, Mustasfa, supra note 68 (explaining that benefits are divided into primary, secondary and tertiary and giving examples of each at 174-75).
213. Abd al-Salam, ‘Izz al-din ‘Abd al-’Aziz b., Qawa’id al-ahkam fi masalih al-anam (Beirut: Dar al-ma’rifa, n.d.) (vol. 1)Google Scholar (“When benefits and harms exist simultaneously, if it is possible to obtain the benefits without the harm, we do so … but if it is impossible to avoid the harms and obtain the benefits, then [either] the harms exceed the benefits, [in which case,] we avoid the harms and ignore the benefits... or the benefits exceed the harms, [in which case] we take the benefits and accept the harms. Where the harms and benefits are equal, either may be selected or no choice made at all.” at 83-84). For more information on this author, see “‘ Izz al-Din ‘Abd al-Aziz b. Abd al-Salam” in 9 Encyclopaedia of Islam 812b Google Scholar.
214. Islamic ritual law obliges Muslims to pray five times a day: dawn, noon, afternoon, sunset and nightfall. Performance of prayers outside their prescribed times is ordinarily considered sinful. See al-Dardir, supra note 84, vol. 1 at 232.
215. See Ibn Abd al-Salam (“Priority is given to saving drowning persons over timely performance of prayers because saving the lives of drowning persons is deemed more virtuous by God than timely discharge of prayer, especially since it is possible to do both by first saving the drowning persons then performing the prayer later” at 57.)
216. Ibid. at 89-90.
217. See, e.g., ibid. at 91.
218. Ibid. at 4. Indeed, Ibn ‘Abd al-Salam also states that while revelation is indispensable for knowledge of the hereafter, and the means by which one attains eternal happiness, “the benefits and the harms of the profane world and the causes thereof are known via necessity, experience, custom and considered opinion, and if something is ambiguous, inquiry is made [using] its evidence [viz., necessity, experience, etc.]. And, whoever wishes to understand the substantive reasons [for revelatory rules regulating the profane world], the costs and benefits [of certain conduct], and the weightier of these considerations, he should present these [questions] to his mind, imagining that revelation was silent on these matters, and then he should derive rules. In this case, hardly will a rule [imposed by revelation] differ from the conclusions reached, save for such devotional rules as God has imposed upon His servants with respect to which He did not reveal to them either its benefit or its harm.”
220. See also al-Taftazani, supra note 106 (making a similar argument at 282).
221. See Hallaq, Wael, “On Inductive Corroboration, Probability and Certainty in Sunnî Legal Thought” in Heer, Nicholas, ed., Islamic Law and Jurisprudence, Studies in Honor of Farhat J. Ziadeh (Seattle: University of Washington Press, 1990) 3 Google Scholar [Hallaq, “Inductive Corroboration”] at 24-31. For a general overview of Shatibi’s work in the social and political context of Muslim Spain, see Masud, Muhammad Khalid, Islamic Legal Philosophy: a Study of Abu Ishaq al-Shatibi’s Life and Thought (Islamabad: Islamic Research Institute, 1977)Google Scholar. For more information on al-Shatibi, see “al-Shatibi, Ibrahim b. Musa” in 9 Encyclopaedia of Islam 364a Google Scholar.
222. In this respect, al-Shatibi’s approach to legal proofs resembles legal pragmatism. See Farber, Daniel A., Eskridge, William N. Jr. & Frickey, Philip P., Constitutional Law: Themes for the Constitution’s Third Century (St. Paul, MN: West, 1993) at 126.Google Scholar
223. See Hallaq, “Inductive Corroboration,” supra note 221 at 25; Jackson, “Fiction and Formalism,” supra note 82 (criticizing the formalism of moral theology on the grounds that it “neither exclude[s] nor take[s] account of the presuppositions that inform legal interpretation” at 192).
224. Significantly, al-Shatibi argued that the empirical investigation of the world is an activity that can never come to an end. See Abu Ishaq Ibrahim b. Musa al-Shatibi, al-Muwafaqat fi usui al-shari’a (Beirut: Dar al-ma’rifa, n.d.), vol. 4 at 89-90Google Scholar. See also Idris al-Qarafi, Shihab al-din Ahmad b., al-Furuq (Beirut: Alam al-kutub, n.d.), vol. 1 Google Scholar (noting that the investigation of the empirical world is open-ended, both in the sense that empirical knowledge is always subject to prospective revision, and that the means by which humans obtain empirical knowledge are also (potentially) unlimited, since they are not limited by revelation at 129).
225. Yahya al-Wansharisi, Ahmad b., al-Mi’yar al-mu’rib, ed. by Hajji, Muhammad (Beirut: Dar al-gharb al-islami, 1990), vol. 5 at 215 Google Scholar.
227. Closely related to the concept of siyâsa shar’iyya were the concepts of hisba, the mazălim jurisdiction and the power of ta‘zîr. For a general overview of these various jurisdictions in medieval Islamic constitutional law, see Fadel, Adjudication, supra note 60 at 61-75.
228. See, e.g., Fadel, ibid. at 79-81.
229. Al-Qarafi, al-Furuq, supra note 224, vol. 4 (stating that discretionary actions of public agents are enforceable only if they achieve either a pure or preponderant good, or prevent a pure or preponderant harm at 39).
230. See John A. Makdisi, supra note 96 at 1653-54.
231. Habib al-Mawardi, Abu al-Hasan Ali b., al-Ahkam al-sultaniyya (Beirut: Dar al-kutub al-’ilmiyya, n.d.)Google Scholar (a decision maker exercising this authority in the context of a private lawsuit is not restricted to rules of obligation at 105). For more information on al-Mawardi, , see “al-Mawardi, Abu ‘1-Hasan Ali b. Habib” in 6 Encyclopaedia of Islam 869a Google Scholar.
232. Fadel, Adjudication, supra note 60 at 82.
233. Al-Qarafi, al-Furuq, supra note 224, vol. 4 at 39.
234. See Muhammad Ibn Hajar al-Haytami, Ahmad b., al-Fatawa al-fiqhiyya al-kubra, CD-ROM: Encyclopedia of Islamic Jurisprudence (Kuwait: Kuwaiti Ministry of Endowments, the Islamic Development Bank & Harf Information Technology, 2004)Google Scholar (concluding that it was obligatory to comply with a price-setting regulation—even if its legality was controversial—because compliance with the regulation did not entail sinning); Fadel, Adjudication, supra note 60 at 83, 93; see also al-Tahawi, supra note 104 (obedience to government is obligatory so long as compliance with the command does not entail committing a sin at 13-14).
235. Regulation of the marketplace was another context in which this power was widely used. See Stilt, Kristen, The muhtasib, law, and society in early Mamluk Cairo and Fustat (648-802/1250-1400) (Ph.D. dissertation, Harvard University, 2004)Google Scholar [unpublished].
236. These are the controversial “hudûd “ crimes which, for example, call for the amputation of the hand of a thief, and the stoning of a married adulterer.
237. Fadel, Adjudication, supra note 60 at 91-92.
238. Ibid. at 92-93.
239. Al-Qarafi, al-Furuq, vol. 4 supra note 224 at 181.
240. A modern Egyptian authority, for example, notes that this classical function of Islamic law has been subsumed under the administrative apparatus of the modern state. See ‘Ali al-Khafif, “al-Hisba fi al-islam” in Usbu’ al-fiqh al-islami: mihrajan al-imam ibn taymiyya (Cairo: al-Majlis al-a’la li ri’ ayat al-funun, wa al-adab wa al-’ulum al-ijtima’iyya, 1961) 559 at 594Google Scholar. See also Fadel, Adjudication, supra note 60 at 67, n. 81.
242. Ibid. at 77-78.
243. Ibid. at 78-79.
244. See also Taj al-Din ‘Abd al-Wahhab b. ‘Ali al-Subki, al-Ashbah wa-1-naza’ir, ed. by al-Mawjud, Adil Ahmad Abd & ‘Muhammad ‘Iwad, Ali (Beirut: Dar al-kutub al-’ilmiyya, 1991), vol. 2 Google Scholar (explaining that the Prophet acted in both the capacity of a prophet and a head of state, and that his statements in the latter category are not prospectively binding, but instead are subject to considerations of the public good at 285-86).
245. For a detailed account of the rise of intra-school rules of recognition, with a special emphasis on the Maliki school, see Fadel, “Social Logic,” supra note 95.
247. Fadel, Adjudication, supra note 60 at 269-70.
248. Jackson, Islamic Law and the State, supra note 90 at 160.
249. Al-Zarkashi, supra note 83, vol. 1 (non-Muslims also subject to property law and tort law at 323, 331); see also Ahmad al-Bukhari, ‘Ala’ al-din ‘Abd al-’aziz b., Kashf al-asrar ‘an usul fakhr al-islam al-bazdawi (Beirut: Dar al-kitab al-’arabi), vol. 3 Google Scholar (a non-Muslim is subject to all rules that are not intended to serve God at 242-43).
250. See, e.g., al-Husayn al-Armawi, Taj al-din Muhammad b., al-Hasil min al-mahsul, ed. by Abu Naji, Abd al-Salam Mahmud (Benghazi: Jami’at Qar Yunus, 1994), vol. 1 at 475Google Scholar.
251. In this latter case, the non-Muslim is being subjected to a discretionary punishment whose sentence, while substantively the same as that of the hadd penalty applied to Muslims, is nevertheless viewed jurisprudentially as an action taken to protect the public’s rights rather than out of an obligation to fulfill a divine command. See al-Zarkashi, supra note 83, vol. 1 (quoting Ibn Khuwayz Mindad as having concluded, based on various statements attributed to Malik b. Anas, that “[Non-muslim residents of an Islamic state] are subject to amputation for theft and execution for highway robbery for deterrence, so [the punishment] is discretionary, not mandated by God; the mandatory punishments are acts of penance for those who commit them, and these [punishments when applied to non-Muslims] are not acts of penance” at 322); and ‘Umar al-Mazari, Muhammad b. Ali b., Idah al-mahsul min burhan al-usul, ed. by Ammar al-Talibi, (Beirut: Dar al-gharb al-islami, 2001)Google Scholar (explaining that in Malik’s view, non-Muslims are not subject to the hudûd penalties with the exception of the mandatory penalties for theft and highway robber “because of the necessity to protect property, in contrast to the other hudûd the purpose of which is penance for those [who have committed these acts], for [the non-Muslim], given his rejection [of Islam], is not under an obligation to perform penance for these sins” at 77-78). For more information on al-Mazari, see ‘Umar”, “al-Mazari, Muhammad b. Ali b. in 6 Encyclopaedia of Islam 942b Google Scholar.
252. If a Muslim fails to discharge this obligation in a timely fashion, he is required to “make up” the missed prayer when he gets an opportunity. See al-Zarkashi, supra note 83, vol. 1 at 326; and al-Bukhari, supra note 249 at 243.
253. See al-Bukhari, supra note 249 at 243-45.
254. Non-Muslims were exempt from the ritual obligations of Islamic law so long as they remained non-Muslims on the theory that Islam was a condition precedent to the valid discharge of ritual obligations. See al-Dardir, supra note 141, vol. 1 at 260-61. Accordingly, non-Muslims were morally, but not politically, obliged to become Muslims so they could validly discharge their ritual obligations. Thus, non-Muslims are “morally obliged to satisfy the condition [i.e., Islam] that renders their devotions valid, and if enough time passes whereby they could obtain [knowledge regarding] Islam and their obligations thereunder [but do not], they are deemed sinners on both counts.” Al-Zarkashi, supra note 83, vol. 1 at 326.
255. Al-Zarkashi, supra note 83, vol. 1 (no effect given to their use of Islamic pronouncements of divorce at 322) and ibid. (their marriages are deemed valid because they believe them to be valid under their religion at 328).
256. al-Jawziyya, Ibn Qayyim, Ahkam ahi al-dhimma ed. by Ahmad al-Bakri, Abu Bara’ Yusuf b. & Tawfiq al-Aruri, Abu Ahmad Shakir b. (al-Dammam: Ramadi, 1997), vol. 2 Google Scholar (applying principle that Islamic law recognizes the validity of non-Muslims marriages to the extent that applicable non-Muslim law would deem such marriage to be valid to Zoroastrian marriages of a mother to her son or a sister to her brother at 864-65). For more information on Ibn Qayyim al-Jawziyya, , see “Ibn Kayyim al-Djawziyya, Shams al-Din Abu Bakr Muhammad b. Abi Bakr al-Zari” in 3 Encyclopaedia of Islam 821b Google Scholar.
257. Al-Zarkashi, supra note 83, vol. 1 at 329.
258. One could say as a general matter that non-Muslims were subject only to those rules of Islamic law that dealt with the “rights of man.” See Moosa, Ebrahim, The Dilemma of Islamic Rights Schemes (2001-2002) 15 J. Law and Religion 185 Google Scholar (discussing the taxonomy of rights in Islamic law, including, the “rights of God” and the “rights of man” at 192).
259. Scepticism is warranted with respect to whether in fact such undertakings were “voluntary” in the sense used by Rawls. See Rawls, John, “The Idea of Public Reason Revisited” (1997) 64 U. Chi. L. Rev. 765 CrossRefGoogle Scholar (limiting “voluntary” to rational decisions made under fair circumstances at 792, n. 68). For example, Hanafis found that this requirement could be satisfied simply by the fact that a non-Muslim chose to remain permanently in the territory of the Islamic state. Mahmud al-Babarti, Akmal al-din Muhammad b., Al-’Inaya sharh al-hidaya, htab al-hudud, bab al-wat’ alladhi yujib al-hadd, vol. 5, CD-ROM: Encyclopedia of Islamic Jurisprudence (Kuwait: Kuwaiti Ministry of Endowments, the Islamic Development Bank & Harf Information Technology, 2004)Google Scholar. On the other hand, the concept of iltizăm al-ahkăm at least establishes, even if only formally, that legitimate exercise of political power requires some sort of consent.
260. A person granted a guarantee of safe passage was known as a “« ‘amman,” or alternatively a “mu’âhad.” The obligations of a non-Muslim only temporarily in the Islamic state were sub-stantively narrower than those of a non-Muslim who permanently resided in the Islamic state. See al- Inaya, supra note 259, vol. 5 (since a mu’amman who enters the territory of the Islamic state does so only for a limited period of time, and for only a particular purpose, e.g., commerce, he is subject only to those obligations of Islamic law that deal with civil obligations (huqûq al-’ibăd)). See also al-Ansari, Abu Yahya Zakariyya, Asna al-matalib sharh rawd al-talib, kitab qati’ al-tariq, vol. 4 Google Scholar (explaining that a mu’amman is not criminally liable for the crime of highway robbery, but instead reverts to being a non-protected person by virtue of his breach of his undertaking to obey the law).
261. Al-Zarkashi, supra note 83, vol. 1 at 336.
262. Al-Mawardi, supra note 231 (arguing that upon becoming a Muslim, one agrees to be bound by all rules of Islamic law, including law of apostasy at 69).
263. Al-Zarkashi, supra note 83, vol. 1 at 330. But for the doctrine of ilíizâm al-ahkâm, conversion to Islam could be legally beneficial to such a defendant given the fact that only the Hanafis allowed retaliation (qisâs) to occur in the event that a Muslim killed a non-Muslim. This rule applied only to cases of intentional murder in which there was no element of treachery or a desire to obtain property from the victim, however. Otherwise, the killer was deemed a threat to public security and the religious identity of the killer and his victim were immaterial. See al-Dardir, supra note 141, vol. 4 (a free Muslim is subject to capital punishment if he murders a non-Muslim permanent resident or a slave using stealth or out of a desire to take the victim’s property at 333).
264. Al-Zarkashi, supra note 83, vol. 1 (if a non-Muslim permanent resident murders another non-Muslim or has destroyed property, his liability does not lapse upon his conversion to Islam in contrast to a citizen of a hostile power who has killed or destroyed property in Islamic territory and then becomes a Muslim at 330-31); al-Dardir, supra note 141, vol. 4 (excluding nationals of hostile powers from scope of tort laws at 331). If the national of a hostile power was captured in the territory of the Islamic state, he would be deemed a prisoner of war, and his treatment would be subject to the discretion of the ruler. Al-Dardir, supra note 141, vol. 2 (explaining that the ruler, subject to considerations of the community’s welfare, was free to choose among the following options with respect to prisoners of war: unconditional release, holding them for ransom, exchange for Muslim prisoners of war, execution or enslavement at 296).
265. Al-Dardir, supra note 141, vol. 2 at 290-91.
266. As a foreigner from a hostile state, he would be deemed a harbt, and would lack any standing under Islamic law. See al-Dardîr, supra note 141, vol. 4 (noting that since a harbt lacks standing under the law, he does not enjoy the protections offered by tort law at 333). On the other hand, Islamic law made it very easy for a harbt to obtain a de facto grant of safe passage if he failed to obtain a valid safe passage before entering the territory of the Islamic state. Al-Dardir, supra note 141, vol. 2 (explaining that even a defective grant of safe passage—so long as the citizen of the hostile power believed it was valid—was effective to protect him from treatment as a hostile invader at 289).
267. The same principle applies to the rules of hirâba (highway robbery): a non-Muslim resident in an Islamic state could not avoid prosecution for this crime against the public order by converting to Islam whereas a non-Muslim living outside the territory of an Islamic state could not be convicted of committing this crime since he had not submitted to the Islamic state’s jurisdiction. See al-Zarkashi, supra note 83, vol. 1 at 300-31.
268. See Johansen, supra note 9 (quoting Chafiq Chehata for the proposition that Islamic law is “‘as much a positive law as Roman law’” and that, with the exception of laws on marriage, divorce and succession, “it owes ‘nearly nothing to the scriptural sources’” and is Muslim “‘only to the degree that it refers to some holy texts. For the rest it does not constitute a religious law at all,’” and as a result, the true “source” of Islamic law is not revelation, but the jurists themselves at 59-60).
269. In other words, it is conceivable that a person could believe as a matter of theology that an adulterer deserves in the judgment of God to be subject to capital punishment but nevertheless agree that such a punishment should not be applied by the state. Rawls’ concern is that the political justification for not applying that rule be for principled reasons and not a result of a contingent balance of power that is presently unfavorable to applying that rule.
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