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Being text of a paper presented at an international conference on "Shari’ah Penal and Family Law in Nigeria and in the Muslim World: A Rights Based Approach" organized by the International Human Rights Law Group and held at Rockview Hotel, Abuja, Nigeria, August 5-7, 2003.

Prime Minister Tony Blair’s address before the joint session of the United States Houses of Congress on Thursday, July 17, 2003 will go down in history as a classic statement (or perhaps mis-statement) of the issues relating to Democracy, Rights and Islam. It is not that one would find much to question in the graphic portrayal of Muslim nations as a "dark shadow" in a corner of the world, where citizens are denied basic freedoms. One look at the monarchies in the Arabian Gulf and the authoritarian regimes in Egypt, Libya, Syria, Tunisia and Algeria, to give a few examples, is sufficient to convince any one of the correctness of such an averment. Even Iran, which is a relatively more democratic country than these, is firmly controlled by a religious establishment that clamps down on dissent.

Blair’s speech was striking in its relative silence over other equally relevant abuses of Rights and Liberty: What is happening to the "Human Rights" of the Palestinian people, and why is Israel not part of this "dark shadow" for "distorting the teachings of the great and peaceful Jewish religion"? And the Rights of those "Muslim Fundamentalists" and "terrorists" who are constantly imprisoned and tortured and killed by "moderate" Arab states? And the people bombed out of existence in Afghanistan, and the mass graves? How about Russia and the crisis in Chechnya? And finally, Guantanamo Bay, that classic example of western double-standards.

I raise these questions as the introduction to a philosophical critique of the attempt to present Islam or Shari’ah as the reason for the illiberality of the political systems of the Muslim world. In this paper I will expound two theses, the understanding of which is critical to any attempt at finding the much needed synthesis between Muslim thought and praxis, on the one hand, and the thought and praxis of modernity, including the principles of liberty, on the other.

The first thesis is that the attempt by the west to address the Human Rights question in the Muslim world through, primarily, some form of reform of Islamic Law has failed because of philosophical weaknesses in the conceptualization of rights and social freedom that underscores western political thought in the contractarian age. I will take for granted the definition of liberty in "negative" terms, as proffered by Hobbes and popularized by advocates of "Negative Liberty" like Isaiah Berlin. What I will show is that the confusion in liberal thought today rests on a fundamentally flawed assumption, associated with Hobbes, that liberty of the individual is attainable irrespective of the structure of the political. This assumption, as Quentin Skinner has shown, is a radical departure from classical European Political Theory.

The second thesis is addressed to those scholars of Human Rights and the Shari’ah who seek reforms in the latter to accommodate the modern standards in which rights discourses are articulated. Muslim nations, without doubt, have appropriated the law in the service of the political. But the fact remains that theology is embedded in the Shari’ah and no interpretation of the Shari’ah will be acceptable to Muslims unless it is based on a hermeneutic of the theoretical constants of Islamic Law and, most particularly, the Qur’an and the Traditions of the Prophet. I will argue that the attempts to seek a "reform" of Shari’ah based on arguments that the law is "outdated" are counter-productive. Similarly, the arguments of secular theorists like An-Na’im represent not so much attempts at reforming the law as a prescription for abandoning it. I will propose, from among the range of scholarship in this area, that attention be given to recent breakthroughs in Islamic Legal Theory, which offer a new hermeneutic that potentially resolves most areas of conflict between Shari’ah and Human Rights Law while remaining faithful to Islamic authenticity.

The rest of the paper is therefore divided as follows:

Section II is the section on Political Theory and it establishes, based on classical republican theory, the necessity for democracy and independence of the political, if at all individual liberties are to be respected. This section will propose that a serious effort to secure recognition of the human rights of citizens of Muslim nations and the fundamental equality of all humans must confront Muslim States at the level of the political and dismantle the structures of despotism. The law itself is but a tool deployed in the service of power, and in this I support critical legal theorists like Peter Goodrich and Catharine Mackinnon. The debate in western jurisprudence between positivists and critical theories is mirrored in Muslim jurisprudence between the defenders of positive law as divine and immutable and those who see it as a historically specific interpretation of texts, influenced by the context of interpretation.

Section III introduces the epistemological questions underpinning the debate between Islam and Modernity. To be more specific, I examine the nature of modernist thought, its methodologies and its philosophical weaknesses. In this section I will indicate the requirements of a modernist hermeneutic that will serve the purpose of facilitating interpretations of law more in keeping with modernity while retaining its affiliation with the religion and thus, its authenticity.

Section IV is a critical review of the Shari’ah-Human Rights dialogue. I summarise the principal criticisms of shari’ah law by Rights activists and point out the problems associated with these. I also critique the secular nature of Human Rights scholarship using Abdu An-Na’im as a case study. The purpose here is to show why approaches to reform of the shari’ah which are not internal to it will always be conter-productive and viewed with mistrust.

Section V focuses on the epistemology of the Syrian scholar Muhammad Shahrur, particularly on what Hallaq refers to as his "Theory of Limits". Shahrur’s theory for the first time offers an insight into interpretation of Qur’anic verses on such areas as inheritance, polygamy, amputation etc based on a methodology that both allows for synthesis and remains faithful do the theoretical constants of Muslim Law. I will explain how he achieves this hitherto impossible feat, and suggest that the potential for synthesis between Shari’ah and universal principles of Human Rights lies in pursuing theoretical lines similar to Shahrur’s.

In section VI I bring together the conclusions from the preceding sections, arguing for the necessity of addressing the issue of Democracy and Rights in the Muslim world in a two-pronged manner. Much as theoretically defensible hermeneutics are emerging that may facilitate reform of the law, the acceptance of these perspectives and the possibility of their adoption is driven, dialectically, by transformations in the political.

In this section I attempt to answer a simple question: Is the absence of individual liberties and abuse of rights in the Muslim world attributable, primarily, to the Islamic nature of those societies and their laws? Or is it rather a necessary feature of the structure of the polities and the relations and dynamics of the political, with religion being merely incidental, a specific ideology serving a generic purpose? Ghassan Salame & Co have already addressed the essentialist thesis of Muslim exceptionalism with respect to democracy. My approach here is to show, based on classical western political theory, that the problem lies not in deconstruction of Muslim Thought (important as that may seem), but in dismantling the very political structures in Muslim nations, which were often planted, often hi-jacked but always protected by the western powers.

Liberty, in western political thought (at least in the contemporary English speaking west) is defined in negative terms. In other words Liberty is defined in terms of the absence of something, in this case of all those constraints and restrictions to the freedom of the individual. Gerald MacCallum notes that "whenever the freedom of some agent or agents is in question, it is always freedom from some constraint or restriction on, interference with, or barrier to doing, not doing, becoming or not becoming something." In the words of Bertrand Russell, "freedom in general may be defined as the absence of obstacles to the realization of desires".This conception of liberty popularized by Isaiah Berlin, among others, finds its roots in Hobbes’ statement, in Leviathan, that "liberty or freedom signifieth (properly) the absence of opposition." Berlin insists that we must reject positive conceptions of Liberty, those that seek to create a truly free man by coercing him into freedom. Liberty must be defined in negative terms. At the same time, as is well known, he recognizes the necessary presence of inherent tensions and inconsistencies amongst a plurality of goods.

This conception of Freedom or Liberty is not by any means free from controversy, even in western thought. English law has seen a wide application of John Stuart Mill’s "harm principle" which states, inter alia, that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." This principle has generated controversy over the limits of personal liberty, especially when confronted by a social morality. The Wolfenden Committee on homosexual Offences and Prostitution ruled that a sphere of private morality is "not the law’s business" unless "a deliberate attempt is to be made by society, acting through the agency of the law to equate the sphere of crime with that of sin." The committee’s report was challenged by Lord Devlin in his Hamlyn lecture in1959 and controversy ensued with scholars like Hart and Dworkin as active participants.

Related to this is the question of the intrinsic value-judgement and ideology informing this definition. We know of the usual joke about everyone being free to have dinner at the Ritz. How many people can afford it? Is there real freedom to hold public office, for example, for a citizen without education? Should we speak of "Freedom to" or "of" (freedom of conscience, freedom to criticize) and not of "Freedom from" (say hunger, poverty, illiteracy) without which negative liberty may be meaningless? In fairness to Berlin, as indicated above, he recognizes this tension between, say, the value of liberty and that of justice. To go into these will lead us into open-ended disputes and make us exceed the bounds of the chosen topic. The point is merely to draw attention to the controversial nature of this subject. We will therefore take as given the concept of negative liberty, which underlies most discussions on democracy, liberalism and rights in the west. Is Liberty, so conceived, obtainable under any kind of political system, or only in a democratic and free republic?

Hobbes clearly thought Liberty was compatible with different systems and it would seem that political leaders of the west in this age of neo-liberalism have been under the same illusion. In Hobbes’ words, "whether a commonwealth be monarchical or popular, the freedom is still the same." It is this dogmatic assertion that I will, drawing on Skinner’s brilliant essay, question from the perspective of classical thought.

Niccolo Machiavelli discusses Liberty extensively in the Discourses on Livy. In brief, all polities recorded by history had two broad groups of people, the grandi (who Machiavelli tended to associate with the nobility) and the plebe or popolo (who we now refer to as the masses). Each of these groups is committed to its liberty. It is this insight of Machiavelli’s that earned him accolades from later dialecticians like Marx and Engels. The grandi seek to obtain power and glory for themselves and avoid ignominy at all costs. They pursue this goal with such intemperance, such ambizione, that they strive for pre-eminence at the expense of every one else in society. They therefore place a high value on personal liberty so that they can acquire as much glory as possible for themselves and dominate others. The popolo on the other hand also want liberty but primarily because of anxieties about the security of their life and limited property and the safety and dignity of their persons and families. Machiavelli’s central thesis is that the liberty of all is only attainable in a community that is itself living a free life, for only then can ambitious citizens hope to rise "by means of their ability to positions of prominence" and can the popolo live "without having anxiety that their property will be taken away from them."

This free society is one that is able to check the ambizione of the grandi, both internally and externally. The elements of the domestic elite, in their constant quest for domination, employ every means at their disposal. The most common, according to Machiavelli, are three. First, they can try to get themselves re-elected to public offices for excessive periods so becoming sources of increasing patronage and objects of personal loyalty. Second, they can lay out their exceptional wealth to purchase the support of the popolo at the expense of the public interest. Finally, they can use their high social standing or reputation to overawe their fellow-citizens and persuade them to adopt measures more conducive to the promotion of sectional ambitions than the good of the community as a whole.

In today’s Muslim world, an example of the first would be polities like Egypt and the Baathist states of Syria and Iraq under Saddam Hussein, where the leaders and their clique are "popularly elected and re-elected" for life. An instance of the second would be the stupendously rich monarchies of the Arabian Gulf, such as Saudi Arabia, Qatar or Kuwait. Iran is a good example of the third, where the scholars infringe on personal liberties and have a dictatorship legitimated by their exalted status in the minds of Muslims. It also applies to monarchies like Saudi Arabia who have appropriated religion to overawe the populace.

Although Machiavelli, rather surprisingly, does not completely rule out the possibility of freedom in a monarchy, he nevertheless insists that "without doubt this ideal of the common good is properly served only in republics, where everything tending to promote it, alone, is followed." Consequently, Machiavelli’s thesis is best expressed in the following terms: "It is only those who live under republican forms of government who can hope to retain any element of personal liberty to pursue their chosen ends, whether those ends involve the acquisition of power and glory or merely the preservation of security and wealth." As he repeatedly points out, unless the grandi are bridled or held in check, their ambizione will lead to disorderly and tyrannical results.

Machiavelli makes the second point that for a polity to be free it must also be free from the ambizione of foreign polities. That is, it must be completely independent and capable of standing on its own with its affairs determined solely by the interest of its citizens. Just as the clients of ambitious grandi find themselves forced to serve their patrons, so too do the citizens of any polity that becomes the client of another automatically forfeit their personal liberty since their entire community is reduced to the servitude of a foreign power. Evidently, with the Middle East reduced to a group of client states used as pawns by the world’s super powers, the liberty of individual citizens has been the first casualty.

Let us now summarize. The essence of the case from European Political Thought in its Classical Tradition is that unless a commonwealth is maintained in a state of liberty then the individual members of such a body politic will find themselves stripped of personal liberty. The basis for such a conclusion are that "as soon as a body politic forfeits the capacity to act according to its general will, and becomes subject to the will either of its own ambitious grandi, or some ambitious neighbouring community, its citizens (become) means to their master’s ends and…lose their freedom to pursue their own purposes."

We therefore see how the Hobbesian position, which seems to underlie political thought and real politik in this contractarian age deviates from the coherent and integrated theory of liberty in classical thought. The monarchies and one-party states in the Middle-East and elsewhere can not, by definition, protect individual liberties, since it is intrinsic to the character of such systems that the will of the society is sacrificed on the altar of the ambizione of its grandi. The societies also fail on the second count, being as they are mere appendages articulated into the overall frame-work of imperialist geo-politics.

The denial of liberty is primarily a result of the undemocratic character of the political in Muslim states. There is nothing in the Qur’an or the Traditions of the Prophet that gives the stamp of Islamic authenticity to monarchies and dictatorships. The issue is therefore best addressed at the level of the character of the political. Unfortunately, and this is the reality (as opposed to the myth), the condition of individual Muslims and their servitude is a direct result of political structures historically supported and sustained by those nations that are the greatest champions of liberal democracy. Consequently, and eo ipso, we may say that the individual rights of citizens in Muslim nations, (including the principle of equality among citizens irrespective of circumstances of birth, gender and creed), will remain a mirage so long as it is in the geo-political, economic and other "strategic" interest of western powers to support, arm and defend undemocratic political leaders. The liberty of Muslim women and minorities has been sacrificed on the altar of global capital.

It is the alteration of the client-status of these states (which is not in the interest of the grandi in the metropolitan capitals of Washington, London and Paris) and the democratization of the political structures and systems (which is not in the interest of their agents, the domestic grandi) which will make possible the emergence of subterranean discourses, in which the interpretations given to Muslim Law are more consistent with the demands of egalitarian societies in the modern world. To view the struggle as one against Islam or Islamic Law is the result of an inverted consciousness. Interpretations of the law legitimate and reinforce structures of society, but it is those structures that give birth to those interpretations and foreclose the possibilities for competing ones. As noted by Hallaq, "(Islamic) legal theory was …no more than a super-structure that was itself a product of a larger and more powerful structure." We perceive here echoes of the established view among western legal philosophers in the critical tradition, to the effect that "the legal text is always historically embedded and politically motivated, so that it is no longer possible to take the law simply as a product of reason and argument: one must also (always) construe it according to the categories of materiality- power, technology, social relations, sexual difference, and so on."

This discussion is not to be seen as one that diminishes the importance of Law in supporting the existing discourses. In Islam the influence of the law is so permeating that Islamicist discourses are predominantly legal. No engagement with the political in Islam is complete without engaging the specific manifestations of legal discourses that legitimate it. It is this engagement, this iterative process of seeking new interpretations of the law consistent with the modern context that have come to be referred to as Islamic Thought (al-Fikr al-Islami). In what follows in this paper I will examine those aspects of received Muslim Law that are considered specifically antithetical to the principles of Human Rights and then turn to Islamic legal theory and discuss emergent epistemological approaches that may open the way to a successful synthesis, representing as they do a coherent, rationally defensible hermeneutic that is potentially consistent with the demands of both authenticity and modernity.

Some leading orientalist scholars are known to have claimed that Islam is a religion of obligations, not rights. Schacht, for instance, posited that "Islamic law is a system of duties, of ritual, legal and moral obligations" while Gibb says that "the Islamic theory of Government gives the citizen as such no place or function except as taxpayer and submissive subject." On the contrary, Watt makes the suggestion that "there is a combination of ideas somewhere in Islamic thought, which performs much the same function as the concept of freedom does in the west." This is a view shared by most Muslim contributors to the debate, who seek to present an Islamic justification for rights and freedoms.

The discourse on shari’ah and rights is a sub-set of the wider dialogue between Islam and the West, which in turn is reflected in the dialogue between shari’ah and modernity. The principal thrust of Islamic modernism has been an attempt to find new interpretations to the law or construct new hermeneutics that facilitate interpretations consistent with the demands of modern society. This approach to the study of Islam is not without its critics. The Saudi scholar, Salman Ibn Fahd al-‘Audah, for example, defines what he calls the "Intellectual School" (al-Madrasah al-‘Aqliyyah) as the tendency in thought "that seeks a synthesis between the texts of the shari’ah (nusus al-shar’) and western civilization/contemporary western thought." This effort, according to ‘Audah, takes the form of "interpretation (ta’weel) of texts in a new manner consistent with the established perspectives of the west, and the new scientific and technological discoveries of the present time." Members of this school are said to "go to excess" in their hermeneutic of texts, be those texts theological or legal, or straight traditions. Everything that does not meet with their view is given, if you like, a new "spin" in the name of interpretation.

‘Audah’s analysis of this school is important, not just because his criticism underscores the difficulty facing Muslim thinkers. His brilliant and insightful comments highlight the importance of authenticity and help to explain why many attempts at finding this elusive synthesis have been met with resistance in the Muslim world. He lists what he calls the most obvious attributes (abraz al-ma’alim) of this school as follows:

1. Rejection of the traditions of the prophet in toto or in part.

2. Broad scope in Qur’anic exegesis even if it results in interpretations in conflict with the rules of the Arabic language or reports from the earlier pious generations (salaf).

3.Reducing the importance of consensus (Ijma’) either by discounting it completely ( as with Ahmad khan) or imposing new limitations on its scope that were non existent among scholars of Usul, or legal theory (as we find for instance in Muhammad ‘Abduh.

4.Great freedom in making legal rulings (Ijtihad) without attention to the conditions (shurut) required in an independent jurist (mujtahid) leading them to pronouncements at variance with every one else’s.

5.Tendency toward limiting the scope of metaphysics (the scope of the unseen-nitaq al-ghaibiyyat) as much as possible, and this is a result of the predominance of materialism in modern thought. Finally,

6.Insistence that the practical application of shari’ah must be circumscribed by the reality of existence. This covers questions such as usury, national unity (ie citizenship and brotherhood not based on religion, but on nationality) and freedom of thought or conscience etc.

These are the six features listed by ‘Audah as the basis for his critique of Islamic modernists, with few exceptions. The focus on the Qur’an, the traditions (or sunnah) and the consensus underscores the importance, in sunni thought of what Hallaq called the "theoretical constants": these three and analogical deduction, or qiyas. Although a scholar may debate this or that interpretation of these sources and their scope, a sunni "cannot keep intact this affiliation (ie with sunnism) and still question the overall validity of any of these sources."Herein lies the dilemma of Muslim modernists. On the one hand, a reinterpretation of the shari’ah must challenge the epistemology of the law in its classical/mediaeval form. On the other, any new hermeneutic must retain its links to the theoretical constants of law, particularly the Qur’an and sunnah, in order to stake any claim to legitimacy and authenticity.

One point needs to be made before we proceed with a discussion of modernist epistemologies. Traditional Muslim thought rejects completely the principles of modernism including "western" conceptions of liberty as alien to Islam. In most instances the rejection is based on the source of these theories and their root in Judaeo-Christian and/or secular paradigms. Acceptance of these paradigms is seen as undermining the authenticity of Muslim identities and the sublation of such identities in a new "universal" identity shaped in accordance with a Eurocentric vision of reality. Some of these fears are justified, as I will suggest presently. However, many of the arguments offered in rejecting modern thought suffer from what philosophers refer to as the genetic fallacy. This is, as defined by Moreland, "the fallacy of faulting the rational justification of something because of where it came from."

On the other hand, modernist thinkers have in certain instances deserved the severe criticism they have received. The enthusiasm for a critical reassessment of Muslim epistemology and law is often accompanied by an uncritical acceptance of western values. There is little appreciation of the philosophical complexities involved in the discourses on political values, as exemplified in, say, Isaiah Berlin’s principle of incompatibility in a pluralistic value framework. The entire concept of political values, as Bernard Williams point out, presupposes the possibility, the reality of politics, and so on.The profundity of the discussion goes beyond the post-modernist thesis that every culture is different, and every value subjective. Having accepted the truth and reality of values, Berlin argues that they are mutually incompatible, that commitment to one involves a value judgement that sacrifices another, and ultimately that "we are doomed to choose, and every choice may entail an irreparable loss."

The value of liberty conflicts with other values even within the politics of western democracy. This conflict is not just the contingent sort, for instance when the rights of US citizens are interfered with in the interest of "Homeland Security" post September 11, or when the US jettisons the principle of Human Rights and justice with respect to the captives of its war in Afghanistan. The conflict is deeper, to the extent that any conception of an ideal world in which plural values are all respected is incoherent. Total freedom for wolves leads to the extinction of lambs. Should the liberty of wolves be curtailed in order to protect lambs? Should freedom of speech be curtailed in the interest of protecting races and minorities and women from abusive language or "hate speech"? Dworkin argues that the inherent conflict among values is accentuated by Berlin’s definition of negative liberty. His thesis, in as far as I can make out, is that the definition of values must take full cognizance of their interdependence. Liberty must be defined as the absence of constraints so long as such an absence does not lead to the erosion of another sacred value.

The point for me is this. If the western conception of liberty and freedom in negative terms leads to the sacrifice of other values in the western world like equality and justice, for instance, not to talk of religious (ie Christian) morality, we must first recognize this conception as value- loaded: based on a subjective decision that liberty of the human being to do what he wants, for example, is a higher value than the requirement to lead a life based on a religious morality. The view in common law, for example, that adultery is not a crime, in a Christian state that generally holds it to be morally wrong and reprehensible, is a value judgement to the effect that respecting the right of adults to do as they wish with their bodies is preferable to defending the moral standards embedded in religious thought. This, for me, is the key philosophical point.

If the above is the case with plural values within western paradigms, the problem rears its head, a fortiori, when these concepts are considered side by side with the political values of Islam. The point therefore is not that concepts of liberty or freedom or rights are alien to Islam. It is that any definition of a political value and any commitment to it as a value of choice necessarily involve the tragic loss of other values incompatible with the chosen one. If there is a philosophical weakness and shallowness in modernist thought among Muslims I believe this is where it lies. The critical analysis of the law and legal theory and the valid attempts at addressing the role of the subject in the production of Muslim law must recognize, in the least, that the prioritization of values and their articulation and definition in the west today are also embedded in the fabric of a discursive formation dominated by the interests of a minority capitalist class that sets the agenda in the capitals of the west and exports this to the rest of the world, including through instruments of persuasion like the United Nations and NGOs. To present this world view as universal and objective and demand the capitulation of Muslim law to its dictates underestimates the rigour required of an intellectual engagement of this nature. Put simply, it is a requirement for Muslims to abandon an existing dogma and adopt a new one.

To sum up, Islamic thinkers are faced with a number of complex issues that must be addressed for their contribution to succeed in providing an authentic interpretation of Muslim law that is more relevant to the dictates of the modern world in which Muslims live. First they must reject the genetic fallacy of traditional scholarship. While doing so, however, acceptance of foreign concepts must be based on a critical analysis of their truth claims, and not the reverse fallacy of attributing truth to arguments because they come from the west. Secondly, the interpretations they make of Muslim Law should be based on a rigorous theory, a coherent hermeneutic that may be applied to interpretations of the theoretical constants of Muslim law, particularly the Qur’an and Sunnah. Any suggestion that the Qur’an be abandoned, or that the prophet, in his leadership of the early community implemented an essentially secular law, would not be an intellectual exercise within the Islamic tradition. The intellectual product of such an exercise would have no affiliation to Islam and remain counter-productive to the objective of reform.

I will turn next to the specific questions of penal and family law in Islam and the theoretical dimensions to the rights-based discourse.

Human Rights scholars have been critical of aspects of Muslim law that are considered incompatible with universal principles of Human Rights. There are three broad areas of criticism:

Some of these issues have received extensive discussion and reformulation. For example it is well known by now that the institution of slavery is not officially sanctioned by any tendency in Muslim thought today and slavery is considered a relic of the past in which the position and treatment of slaves, as Ronald Segal has shown, was in any case very different in the Muslim world from what obtained in Europe and America. Questions relating to the status of women in political life have also been extensively debated. The denial of women the right to hold the position of Head of State is based on a particularly controversial hadith, the interpretation of which has always been contentious.The point has also been made that of all the schools of Muslim law only one takes pregnancy as prima facie proof of fornication/adultery but even then the school sets conditions that make it virtually impossible to convict a muhsan (or previously married woman) of adultery based on pregnancy. Muslim women, feminists and scholars of Islamic studies have all contributed to this effort at arriving at new interpretations of the Shari’ah that promote greater equality and remove the vestiges of "discrimination".

Much of this discourse has taken the form of highlighting controversies that have always existed in certain interpretations of Muslim Law, questioning the reliability of certain reports, examining critically the incontestability of certain conclusions or historicizing rulings with a view to examining the dynamic between text and context. The question of religious authority, and particularly as it relates to the body of prophetic traditions, has been the subject of intellectual effort since the middle of the nineteenth century. Such questions as the boundaries of revelation, the nature of prophetic authority, the authenticity of traditions and the possibilities for change have been central to this discourse. More recently, Khaled Abou El fadl has published what my yet be the most profound text on Islamic hermeneutics in recent times. Faithful to the classical sources and certainly accepting the truth of the Qur’an in total and of authentic traditions, Abou El-Fadl applies the principles of literary criticism to his analysis of authority and the authoritarian in Islamic Law, with particular reference to women. I will not here address these issues, therefore, in view of the wealth of material available and the progress made so far in the dialogue.

I will focus in this paper on those aspects of law that remain problematic, mainly because they are explicitly covered by the Qur’an and, with one or two exceptions possibly, a consensus has been built upon them for generations. These are the question of inheritance of women, the question of shari’ah punishments and the question of polygamy. How can these issues be addressed on the basis of a new hermeneutic that remains faithful to Islamic authenticity. It is my view that Human Rights Scholars have failed in this regard. Before critiquing Rights scholars, however, let me briefly express my views on some these criticisms.

It is my considered opinion that the Muslim Law of inheritance remains superior to any law of inheritance known to humanity, even where the question of women is concerned. First of all, in a world in which women are the weaker party and male dominance is entrenched, the tendency is for male heirs to cart away the entire inheritance. In Islam all daughters, wives and mothers are guaranteed a minimum share in the estate and it is impossible for either the deceased or the society to deprive them legally of their shares.

Compare this to societies in which the first son alone takes everything (I believe this is the law in Germany), or where the spouse takes everything (as in the UK). More, compare it to a law that gives a person absolute discretion to do with his/her wealth as he/she wishes after death, such that it may be willed entirely to a dog, for instance, or a cat, or a mistress, or a club. The family, male or female, is denied a share of this wealth. Islam does not stop a man from making a will and giving his property to a charity or some person who does not inherit his wealth by law, but this will is limited to one-third of the estate, on the principle that a man should prefer to leave his family well catered for than destitute, and that the close family is most deserving of charity.

This aside, it seems obvious that women are entitled to only half the share of men by virtue of their sex alone. There are two approaches in response to this criticism. One approach, inspired by Ash’arite theology, does not seek for reasons or rationality behind Divine injunctions. The task of scholarship is to extract the injunctions and interpret them, for the Muslim to obey without question. A second approach is one that examines the shari’ah from the perspective of its objectives (maqasid) and seeks to identify in its rulings the purpose they serve, usually either the promotion of a positive good (maslaha) or the elimination of corruption (mafsadah) or both. This "rational" approach would explain the share of men being twice that of women as consistent with a law that imposes the entire financial burden of the family (even the society) on its male members as husbands, fathers and brothers. This is in addition to other burdens such as protecting the honour and security of the community.

But while this is a rational and respectable argument it raises new questions. What happens if the society evolves to the level where these tasks are undertaken by men and women in equal measure, where the financial burden of families rests with its male as well as female members to the same degree, indeed where the women may be the bread winners as a norm? Is there any possibility for a hermeneutic of the Qur’an that provides even a theoretical possibility for adjustments to this ratio without losing its authenticity? I will return to this question in the next section.

Muslim modernists find themselves on the defensive with regard to this question but, philosophically speaking, it is not too complex. Who decides that amputation is barbaric but that the electric chair is not? Who decides that stoning to death is barbaric but facing the firing squad is not? Who decides that life in prison is humane and civilized? In keeping with the principles of logical positivism, one would say, along with Ayer, that to say something is barbaric or inhumane is to express an opinion, not a fact.

However, there is a sense in which these issues need critical re-examination. Accepting the principle that amputation may be an acceptable punishment still leaves open the question of coherence and internal inconsistency. Should a system of law founded on justice prescribe amputation for, say, a goat thief and a lesser punishment for theft of much larger amounts that are more damaging to far more people in society? Should there be some proportionality, as it were, based on the internal logic of the law itself, between crime and punishment? In the next section we see how these questions can be resolved.

Before then, however, I will conclude this section with a criticism of Human Rights approaches to shari’ah reform.

The leading advocate of reform of shari’ah to conform to the principles of Universal Hman Rights is Abdullahi An-Na’im, the Sudanese lawyer and disciple of Mahmoud Mohammed Taha, the executed leader of the Sudanese "Republican Brothers". In his works, An-Na’im advocates the need for Islamic scholarship among Human Rights activists and also stresses the importance of reforms in Islamic legal theory (Usul al-Fiqh).

His magnum opus was a comprehensive attempt at introducing a new methodology for reforming Islamic Law based on a theory inspired by his leader, Sheikh Mahmoud. Unfortunately, a full reading of the theory leaves one disappointed. An-Na’im’s thesis, in brief, is the following. The Qur’an was revealed to the prophet in two distinct phases. The first phase, the Makkan one, was the revelation received before the prophet’s hijra, or forced migration, to Madinah. This revelation contains general guidelines on faith, piety, perseverance, equality of all men, freedom etc. in other words the Islamic value system. The second phase, The Madinan phase, was revealed to the prophet after the migration and represented a historically specific application of the broad values expressed in the first phase. However, because of the nature of the historical society in which the prophet lived the values of the Makkan Qur’an were only applicable in suboptimal forms and it is the task of Muslim societies to seek higher levels of expression of these values and not consider themselves bound by their historically specific application in the prophet’s life time.

Some of the observations of An-Na’im are well known to students of the sciences of the Qur’an (Ulum al-Qur’an). The difference in temper and format between the Makkan revelation(al-Qur’an al-Makki) and the Madinan one(al-Qur’an al-Madani) is well documented and evident to readers of the Qur’an. What is new is the recommendation he makes, which is rejected not for its novelty, but for its implications.

As we know from Salman ‘Audah, modernist scholars have tried to re interpret the texts of the Qur’an and traditions, sometimes coming up with unprecedented interpretations. At other times they have tried to restrict the definition of certain sources, as for instance in accepting only authentic traditions (ahadith saheeha) or those narrated from a multiplicity of sources (ahadith/akhbar mutawatira). At other times they suggest that a particular verse applied only to the prophet, or to his wives, etc. if context permits such an interpretation. So long as the hermeneutic is based on the text the affiliation to Islam is retained. This is not An-Na’im’s recommendation.

His thesis is a wholesale abandonment of the revelation after the hijra. It is to be considered a subject for history of law, and not law. Muslims are to replace it with a humanist law based on principles drawn from the pre-hijra period which, moreover are not unambiguously articulated and established. The sum total of An-Na’im’s recommendation is that internal reforms within historical shari’ah are limited and restricted, and that irrespective of historical justification, the shari’ah contains discrimination that can no longer be justified.The solution is to set aside the Madinan revelation as a source of law and adopt the universal standards of Human Rights in the Modern World.

The implications of this thesis are obvious, even though an-Na’im himself seems to think his proposal is not for a secular law. By setting aside the Madinan Qur’an Muslims are being invited not to reinterpret that portion of the Qur’an for their generation but to disregard it and consider it only relevant to the time of the prophet. Second, the implication is that the prophet, in his role as political leader and judge in Madina, was playing a secular role that is not binding on his followers. It is evident that what An-Na’im actually proposes is not reform but secularism by another name. It is for this reason that his theory lacks authenticity and is not likely to be accepted as part of the Islamic thought tradition.

This still leaves us with a problem. How do we arrive at an interpretation of the Qur’an that addresses the concerns of Rights activists without losing its contact with the sacred texts? To answer this we introduce the Syrian scholar, Muhammad Shahrur and his "theory of limits", a new contribution to Qur’anic hermeneutics and Islamic legal theory.

I will not attempt a comprehensive review of the epistemologies of modernist thinkers in Islam. Hallaq has already done so, dividing them into two broad groups, the "utilitarians" and the "liberals."

In brief, the utilitarian tendency couches its theory chiefly in terms of public interest (maslaha) and necessity (dharura). These two concepts, already present in classical legal theory and particularly in the oeuvres of the Imams Shatibi and Tufi are appropriated by Islamic utilitarianism and their scope expanded, resulting in an essentially humanist law that often lacks coherence and consistency and retains only tenuous links to the sacred texts. Among the utilitarians, Hallaq covers the thought of ‘Abduh, Rida, Khallaf, al-Fasi and al-Turabi. Hallaq’s critical evaluation of this tendency is that it lacks a clear methodology and resorts to "mere juristic devices"

which amount to "nothing short of subjectivism." Concepts of public interest and necessity are spoken of "without a methodology that can control the premises, conclusions and the lines of reasoning these concepts require."

The second tendency, that of Islamic liberalism, is characterized by its understanding of revelation "as both text and context." It does not base its arguments on utilitarian concepts like public interest, but rather insists that interpretation of texts must consider "the spirit and broad intention behind the specific language of texts", since the connection between the text and modern society does not turn "upon a literalist hermeneutic" that ignores contexts.Among the liberals Hallaq covers ‘Ashmawi, Rahman and Shahrur, whose theory we intend to introduce here.

The key elements of Shahrur’s theory, is as far as I understand it, are the following. The Qur’an is God’s speech revealed to the prophet but addressed to all mankind in every generation; it is a "Remembrance" (dhikr), which God has taken upon himself to preserve (Q 15:9). What this means is that every generation must interpret the Qur’an in a manner that makes it relevant to its circumstances and we are not bound by the understanding of other (previous) generations. Their understanding was correct for their own time but we must arrive at an understanding that is relevant to our own lived reality. The preservation of the "Remembrance" makes it our property as much as that of earlier generations and confers upon us the right to interpret it based on our own reality.

The second key element of the theory is the dual concept of "curvature" (hanifiyya) and straightness (istiqama). Man is by nature crooked (non-linear) and so is the world and all nature. God sends down a guidance that checks that curvature and confers straightness upon it, and this guidance, this straight path (as-sirat al-mustaqim) is God’s law. God sets boundaries within which man may operate through the Qur’an and Sunnah. These limits, or hudud, represent boundaries, as in a football field, between which man may operate in his crookedness but which may not be breached. Neither upper nor lower limits nor other boundaries may be crossed without breaking the law and thus warranting proportionate penalties.

Shahrur applies his theory to a number of instances in Muslim law and some of the examples are directly relevant to human rights law and some of the injunctions under discussion. I will restrict myself to these, referring the reader to Hallaq for a more detailed discussion.

Shahrur considers the verse in the Qur’an (5:38) "as for the thief, male and female, cut off their hands" and considers this verse to be an upper limit standing alone. Here the stipulated penalty is an upper limit that may not be exceeded. In other words amputation is the maximum penalty for theft and it is for every generation to define the nature and magnitude of theft that calls for this maximum penalty. Shahrur’s theory therefore leads to conclusions that are the opposite of An-Na’im’s. Whereas An-Na’im would have the Muslim world drop the limit of amputation from its statutes as "cruel and inhuman", Shahrur would retain it as a maximum punishment subject to proportionality. In Nigeria, for instance, given the magnitude of theft in financial crimes and the danger to the economy and the reputation of Nigerians world wide, a law that provides for amputation of crooks involved in this kind of theft beyond a specified magnitude and under strictly defined criteria as to their personal circumstances and the circumstances of the crime would not be cruel. Amputation is one possible punishment for theft, certainly the maximum and the society may choose not to invoke the maximum penalty for reasons of, say, general poverty. However, where it is inflicted there should be proportionality so that those who commit the same offence with more gravity are not given a more lenient penalty than petty thieves. In my view this position addresses the concerns of Muslim critics of the manner of shari’ah implementation and represents a more just and proportionate interpretation of the law which remains faithful to the text.

A second example in criminal law has to do with the verse of the punishment for zina or illicit intercourse. Here God commands (Q 24:2) that "the adulterer and the adulteress, scourge ye each one of them with a hundred lashes". This is a maximum limit. But then God follows up immediately in the same verse with the words "let not pity for the twin withhold you from obedience to God" and thus makes this limit at the same time a minimum. In this case there is no option to 100 lashes, it is a maximum and a minimum. As for whether it is cruel, I have already responded to that earlier.

The third example of relevance to this discussion is inheritance. The general tenor of the verse (Q4:11) is that the male receives "the equivalent of the portion of two females." Shahrur here argues that what we have is a determination of the Upper limit for men and the Lower Limit for women, irrespective of whether the woman was a bread-winner. Where a son and a daughter are, for example, the only ones inheriting the estate, the woman must never be given less than 33.3% and the man never more than 66.6%. Should society, given its objective conditions at a particular time, choose to give the daughter 40% and the man 60% or share the estate equally for example, it would be moving freely in the range set by these limits. What it may not do is give the daughter less than half the son’s share or, which is the same thing, give the son more than twice the daughter’s share.

On polygamy, Shahrur examines closely the verse (Q4:3) "And if ye fear that ye will not deal fairly with the orphans, marry of the women who seem good to you, two, three or four. And if you fear that you will not deal justly then one only…" Here, according to him, there are two types of limits, qualitative and quantitative. The quantitative limits have always been clear: a permissible lower limit of one wife and an upper limit of four that may not be breached. The "qualitative limit" is deduced from the text and context, because the entire discussion is held in the context of orphans, who are children that have lost their fathers and are in need of care. God here permits, after one wife, that a Muslim marry a woman who has lost her husband and take care of her and her orphan children, treating them fairly by dealing with them as he would with his own biological children. Shahrur therefore sees polygamy in this context as a noble practice that provides a home and care for orphans and preserves not just the permissibility of the practice but the logic of its link with the care of orphans. On this reading the "justice" commanded is not between wives but between orphan children and the children of the house, such that those who interpret another verse declaring the impossibility of justice among wives as prohibiting polygamy are mistaken. Several other examples can be drawn but these suffice.

Shahrur’s theory is likely to be controversial mainly because it leads to a reading of the law that is radical and unprecedented. But it has the advantage of constituting a coherent theory that can underlie a new hermeneutic of the Qur’an. The theory holds potentials for new and more flexible interpretations of the text that are adaptable to societies in different contexts, all within clearly defined boundaries. It shows the shari’ah as capable of accommodating change without capitulating to the demands of western society, and upholds the virtues of the law and its own internal logic, which stand to scrutiny. In doing this, the Muslim world produces scholarship that is not apologetic and subservient, but which, at the same time, is not inflexible and irrelevant to the needs of modern societies. It is this type of theorization that needs to be encouraged as part of the process of producing new epistemological frameworks that hold the potential for synthesis. Human Rights activists should look in this direction.

I started this paper by stating the two principal theses I intended to propound. The first is that liberty, as understood in contemporary western thought, is only attainable within the context of an independent polity. The question of the Human Rights of Muslim people is therefore best addressed at the level of the political, by dismantling the monarchical and dictatorial structures propped up by western powers and giving the people the freedom and independence to act in their own, as opposed to foreign interests. Islamic law, or rather the particular interpretations of Islamic Law that are applied in these societies, are but one out of a battery of discourses-political, social, cultural, mythological, historical-that are produced by the discursive formation and that complement, legitimate and reinforce its basic structures. It is the structure, and not the super-structure, that must be attacked and dismantled to pave the way for new interpretations and more egalitarian discourses.

The second thesis is that in view of the intricate link between law and the social, any attempt to reinterpret Islamic law must be based on a new hermeneutic that, instead of attacking Islam and seeking the abandonment of its teachings, provides a different way of examining the text and drawing conclusions consistent with progressive discourses. In other words the success of any reform of the shari’ah is dependent entirely on its authenticity, viewed primarily as belief in and loyalty to the theoretical constants of the law, with the Qur’an and authentic traditions as a minimum. It is my view that Human Rights scholarship has failed in this regard, particularly in respect of the complicated questions of penalties, inheritance and polygyny

I have tried to articulate these theses and in the process covered a range from western political thought, to a criticism of human rights theories and finally to Islamic legal theory and epistemology. I concluded by introducing Shahrur’s "Theory of Limits" , showing how he has proposed a controversial, but brilliant approach that permits reinterpretations of Qur’anic verses that seemed hitherto completely fixed and not brooking of new perspectives.

I am certain that Shahrur’s theory is not perfect, and will go through debate and refinement. It is also possible that other scholars will come up with competing hermeneutics. The point made is that a new hermeneutic is indeed possible, but it requires academic rigour and an affiliation to Islam. Only then can Human Rights scholars succeed in finding the much-needed synthesis between Islam and the principles of Human Rights which they seek to defend and promote.

August 2003