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Abstract

This essay explores the purposive strategy of modern Islamic legal theory (i.e., based on maqāsid al-sharīa, with public benefit, or maslaha, as the sharī&#0096a's main purpose) and its use in articulating an Islamic theology of human rights. After a synopsis of contemporary research on Islam and human rights, the essay highlights the main issues involved in the twentiethcentury turn to a purposive approach in usūl al-fiqh (Islamic legal theory). The “maqāsidī ” strategy as it is applied to human rights is then monitored in three distinct currents: traditionalists (Muhammad al-Ghaz¯lī and Muhammad 'Amāra); progressive conservatives (Muhammad Talbi, Muhammad al-Mutawakkal, and Rāshid al-Ghannūshī); progressives working with a postmodern epistemology (Ebrahim Moosa and Khaled Abou El Fadl). In conclusion, this move toward ethical objectivism and an epistemological favoring of ethical values over particular formulations of the text could enable a greater number of conservatives and progressives to converge on some of the burning questions of human rights today.

In: Die Welt des Islams

Abstract

I argue here that an epistemological shift has taken place in twentieth century u⋅ūl al-fiqh: away from the classical/orthodox Ash'arī position in which the human mind simply discovers the divine law and extends it to new cases on the basis of consensus (ijmā') and analogical reasoning (qiyās); and toward a position in which reason is empowered to uncover the ratio legis behind the divine injunctions — a distinctly Mu'tazilī a pproach. This shift has been accompanied by a privileging of universal ethical principles (kulliyyāt), now identified as the aims of the Law (maqā⋅id al-sharī'a), over the specific injunctions of the texts (juz'iyyāt) — a hermeneutic strategy that has often favored public interest (ma⋅laha) as the chief criterion for developing fresh legal rulings in the light of new sociopolitical conditions. The main theoreticians discussed h ere are Muhammad'Abduh, Muhammad Rashīd Ridā,'Abd al-Razzāq Sanhūrī, 'Abd al-Wahhāb Khallāf, Muhammad Abū Zahra, and Muhammad Hashim Kamali.

In: Islamic Law and Society
In: Thinking Like a Lawyer
In: The Year’s Work in Modern Language Studies
In: The Year’s Work in Modern Language Studies
In: The Year’s Work in Modern Language Studies
In: The Year’s Work in Modern Language Studies
In: The Year’s Work in Modern Language Studies
In: The Year’s Work in Modern Language Studies