A Dynamic Living Tradition, Not a Relic Admired but Never Used M. Afifi al-Akiti & H. A.

Hellyer

Professor Khaled Medhat Abou El Fadl, an ardent champion of the Muslim rationalist tradition, provides a significant service to students and jurists alike in this essay relating Islamic law and the human rights tradition in the West. He explores the historical connections for the emergence of human-rights schemes within the Islamic intellectual traditionbut makes it clear that the Islamic world ultimately failed to develop an indigenous natural rights discourse. His analysis points to political reasons for this underdevelopment and argues that Muslims must develop their own humanrights culture. Here, we will focus on one of the tensions between the two systems, a tension inherent in the legal tradition. El Fadl rhetorically asks, What is the Islamic tradition and, more particularly, the Islamic legal tradition? It is helpful to limit the question to the Islamic legal tradition, as the Islamic tradition as such (al-turath al-islami) comprises a number of sciences each with their own definition. All of them follow a particular pattern that has ensured their integrity through the centuries. The institutionalization of authoritative pedigree (isnad) enabled the Muslim scholarly class to combine uniformity and diversity, providing for conclusive agreement (ijma) on issues that had to be decided and a respectful diversity of opinion (ikhtilaf) in others. In terms of law, this developed through the creation of legal paradigms that coalesced into the celebrated schools of law (madhahib; sing. madhhab). These in turn allowed Islamic law to remain a living tradition while observing recognized methodologies of interpretation and jurisprudence. This madhhabist representation

under a single systematic traditionis identified as the classical tradition of Islamic law. El Fadl draws attention to one issue that emphasises the dynamism of Islamic legal interpretation (fiqh): slavery. Classical Islamic law, like all pre-modern law systems, made provision for slavery and established the slave as a recognized legal entity with specific rights. It should be noted, however, that the meaning of the term slave (raqiq) in Islamic law is very different from its sense in other legal systems. The Islamic tradition insisted on the religious benefit of emancipating slaves, legalized inter-marriage between slaves and free persons, and provided material support from public funds to purchase a slaves own freedom. These protections were enshrined in Islamic law. The name of the branch of law covering this system of ownership is itq (lit. emancipation). Consider, too, the name of the Mamluke dynasty that rule Egypt in the twelfth to the sixteenth centuries: Mamluke literally means owned. They were slaves who legally belonged to the state, government servants in the most literal sense. These two facts testify to the ambiguity of Islams recognition of slavery. True, Muslim jurists were slow to legislate against the institution of slavery as such. But they did eventually outlaw slavery. The provisions concerning slaveownership thus became irrelevant and the new norm (al-ada) was easily justified from within the legal corpusthrough the schools of law and not independently of them, in a spirit of respect for the past comparable to the stare decisis of Western legal tradition. As with any economic institutionand slavery was an economic institution as much as anythingabolition was not immediately effective; certain sectors of society benefited from slavery. Now that all Muslim states have signed up to the international treaties outlawing slavery, the proscription of slavery has become a covenant that Muslims must abide by, since Islamic law regards the upholding of

contracts as a sacred bond. A similar reform occurred with the recognition of the nation-state by Muslim jurists. This was arguably a much greater conceptual departure from pre-modern norms. On the matter of slavery, then, disagreement on the part of exclusivists and Islamists is merely a sign that they are, as Abou El Fadl says, not jurists but political agitators seeking public support for a politicized symbol. Jurists posit Islamic law as the expression of Gods Law on earth for the benefit of His Creation and not merely as a political tool vis--vis the West. El Fadl also raises a very pertinent question when discussing the conflicts between universalism and relativism. He correctly notes Those who commit themselves to human rights must believe in universal standards but must also respect the rights of others to be different; they might be offended by the practices of particular cultures, but feeling revulsion is one thing; failing to respect the right to be different is quite another. In an intra-Muslim discussion, this has its own ramifications. The juridical corpus is vast and allows for much difference of opinion. Indeed, one of Islams legal maxims states that objections should never be raised in matters where jurists disagree but only where they are agreed in rejecting a particular position. Thus, a follower (muqallid) of a certain school of law should not, as far as possible, be penalized by a judge (qadi) who belongs to another school. Judges were known to advise plaintiffs against seeking judgements from other judges when it was clear one judgement would be easier to obtain than another. The open nature of Muslim judges in general vis-vis non-Muslim religions and their religious laws is also well known.

Such openness cannot be taken for granted in our age. And, more importantly, it cannot be imposed. It reflects a healthy societal attitude towards diversity that is sustainable only when it comes from within. This is especially relevant with respect to the provisions for capital punishment (hudud) in the Islamic tradition. A majority of pre-modern jurists agreed that these punishments should form part of the law but accepted that the execution (or suspension, commutation or revocation) of these punishments was the prerogative of the supreme political authority. They also insisted on the extremely strict standards of evidence and procedure required for conviction. However, they could never reject the principle of capital punishments: to do so would have implied that their legislative predecessors, including the Prophet, had been mistaken. No Muslim jurist would or could do that. Thus provision of the death penalty for a capital crime enjoys a wide consensus; and in classical legal doctrine, only considerations extrinsic to the crime itself, such as the interest of the state, constitute any impediment (mani) to the prescribed punishment. The capital nature of the crime itself is unalterable. The dynamism of the tradition allows for an essential continuity that can accommodate a changing world. This kind of essentialism may remind us of the English constitution. In the search for a common language for the human familyan ethical lexiconthere are nevertheless more than sufficient resources within the Muslim tradition to contribute to contemporary philosophical ethics. Islamic institutions within the Muslim world, such as the Aal al-Bayt Institute (Jordan), ISTAC (Malaysia), Nahdhatul Ulama (Indonesia) and the Tabah Foundation (Abu Dhabi) are leading the way in this regard. It is still early days, but the signs are promising, particularly with the growth of a scholarly class conversant with Western traditions. They have taken a long time to reach this point, it might be said. But by the same

token, the yoke of colonialism and imperialism was also of long-standing. Change does not often come quickly and cannot have permanent results unless it comes from within the tradition. The loss of the caliphatea previously unthinkable eventleft an indelible mark on the development of the Islamic intellectual and juridical traditions. Western hegemony led to the degradation of the schools of law. Imperialism, colonialism, and then nationalism realigned priorities in public education and downplayed the importance of a sound religious education. It is not surprising that, in such a system, many who favoured the open exploration recommended by al-Ghazali1 no longer went into religious studies but became engineers and doctors. And today we are seeing the results of this redefinition of educational priorities. When Islamization came about, it was informed by identity politics rather than a real philosophical impetus toward the creation of a modern Islamic nation state. Islamicity was the watchword in a political showdown between secularists and religious conservatives. The dynamism of classical Islamic law served not the public sphere but a brutalized ideology of resistance. How could it be otherwise? The Islamist movements reflected populist dissatisfaction with their own governments and the prevailing New World Order. Neither they nor the people had experienced a truly open political system in the modern and post-modern age. And a society torn apart by contested identities is not a fertile source of intellectual renewal. We have seen the effect of this process many times over. El Fadl refers to one of its most recent manifestations: the Wahabi movements stance against human rights. But why would the Wahabis view the human rights discourse of the West as
The Muslim jurist and theologian at the turn of the sixth Islamic century, Abu Hamid al-Ghazali (d. 1111), notes confidently in his Summa Islamica, the Ihya Ulum al-Din (Revivification of the Religious Sciences), the enlightened attitude that needs to be engendered by scholars in order to further the spirit of open exploration: The one who is in the pursuit of truth is like the one who is searching for a lost item: it makes no difference whether it is found by his hand or by someone who can support him.
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anything but a Western imperialist tool? How often have Muslims benefited from the rights supposedly accorded by the Western human rights tradition? When we look at the record of the relevant countries and at Western tolerance of their governments repressive policies (whether based on political pragmatism or convenient alliance), the answers to these questions are clear enough. The provision of legal solutions to contemporary problems need not constitute a break with classical tradition. It can be done either by making traditional legal doctrines relevant to the contemporary world, or, more exceptionally, by re-evaluating certain established practices, such as occurred with the abolition of slavery. The issue for the classical scholarly establishment is not whether such re-evaluation should take place but how, a point in large measure dependent on whether those who argue for it have the juridical training required. The Islamic legal tradition has a long history of continual redevelopmentbut on its own terms. This means a spirit of open exploration coupled with scholarly scruple rather than superficial re-formation exercises or politicized measures. The immediate prospects for such intellectual development are not good. There are crises enough occupying the Islamic mind. But if an authentic Islamic renaissance (tajdid) is to occur, it must embrace the legal tradition rather than grossly simplifying or jettisoning it. Recognizingas Abou El Fadl doesthe dynamic aspects of the tradition will help contemporary Muslim jurists to find their own way of engaging with human rights discourse.