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Islamic Law and Modernity:
Abdullahi an-Na‘im’s Proposal for Reform
By
Courtney Paige Erwin
Institute of Islamic Studies

McGill University
Montreal Canada
July, 2001
A Thesis submitted to the Faculty of Graduate Studies and Research

in partial fulfillment of the requirements of the degree of
Master of Arts
1Courtney Erwin 2001
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Abstract
Author Couitney Paige Erwin
Title: Islamic Law and Modernity:Abdullahi an-Na‘im’s Proposal for Reform
Department: Institute of Islamic Studies, McGill University
Degree: Master of Arts
This thesis examines the state of Islamic law in the modem context as perceived by
the Muslim scholar Abdullahi an-Na‘im, assessing its suitability for contemporary society,
with particular emphasis upon its relationship to international human rights standards. The
first part o f this work reviews the impact of the nation-state upon the current international
structure and then considers Islamic law as it was classically conceived and developed. The
focus o f this discussion addresses the importance o f clear and definite texts in the Qur’an
and the roles o f ijtibad and naskb in usulal-ffqb, exploring the dimensions of flexibility and
change allowed in this system. The second part involves an investigation o f the
development o f international human rights standards and provides an appraisal o f their
authority and validity by which the SharTa is today judged. The areas in the Shari4a that are
seen to conflict with these modem standards, specifically the status o f women and non-
Muslims, and criminal punishment, are examined. Finally, the methodology for the reform
of Islamic law proposed by an-Na‘im is then evaluated, with due consideration given to the
importance o f hermeneutics and historical context. The value given to the difference
between the Meccan and Medinan verses for the construction of a new understanding o f the
Qur’an within the framework of legal methodology is presented, as are the methodological
tools that an-Na‘im employs for modem legal reform.
111
+
Resume
Auteur: Courtney Paige Erwin
Titre: Modernisation et Droit Islamique: Le Propos de Abdullahi an-Na‘im

pour une Reforme
Faculte : L'Institut des Etudes Islamiques, University McGill
Grade : Maitrise es Arts
Cette these examine l’etat du droit Islamique dans un contexte modeme, evaluant si ce
droit estconvenable pour notre societe contemporaine, avec une attention particuliere donnee
a sa relation avec les normes intemationales du droit de l’homme. La premiere partie de cette
these revoit l’impact des nations etat sur la structure intemationale actuelle et ensuite
considere le droit Islamique comme il l’a ete originalement conû et develope. Le point
principal de cette discussion adresse 1’importance de textes precis et bien definit dans le
Qur’an et les roles de ytib id etn a skh dans usuIal-Gqb, explorant les possibilites de flexibility
et les changements permis dans ce systeme. Une examination de la formation des normes
international du droit de 1'homme permet une evaluation de son authority et sa validite, par
lequel le Shan‘a est juge aujourd’hui. Les sections dans le Shan‘a qui semble etre en conflit
avec les normes modemes, plus specifiquement le statut des femmes et des non-musulmans,
et la peine criminelle, sont examines. La methodologie pour la reforme du droit Islamique
propose par Abdullahi an-Na‘im est done evaluee, prenant en consideration 1’importance de
la science de 1’interpretation et du contexte historique. L’importance donne aux differences
des versets de Mecca et Medina pour la construction d’une nouvelle comprehension du
Qur’an dans l’encadrement de la methodologie legale est presente, ainsi que les outils
methodologiques qu’utilise an-Na‘im pour la reforme legale modeme.
Acknowledgements
My passion for the study o f Islam has culminated in this thesis. This passion was first
realized under the guidance and direction of Professor Maysam al-Faruqi of Georgetown
University. Her introduction to Islam and the ensuing impact has been an enduring and
beloved presence in my life. It is to her that I offer this work, accompanied by a debt of
gratitude.
I have experienced the rare opportunity of working with a scholar whose mark of
academic integrity and intellectual ardour will be imprinted upon my existence forever. My
academic advisor and thesis supervisor, Professor Wael B. Hallaq, has extended his support
and encouragement, and has relinquished endless hours of his precious time to field my
questions. I am profoundly honoured to have been a student of a man of such perspicacity,
inspiration, and genuine warmth and understanding. I doubt I shall meet another like him.
I wish to proffer my thanks to Professor A Uner Turgay, Director of the Institute of
Islamic Studies, for his caring supervision, to Dawn Richard and Ann Yaxley for their love
and concern, and to my fellow colleagues in the Institute. They have provided endless hours
of intellectual stimulation in the front of the library, as well as much needed entertainment
and friendship. I must also recognize my intricate network of friends that spans the globe,
always supportive and excited by my colourful interests. I am so lucky to have them all.
My parents have sustained my studies, even when not entirely convinced of my
pursuit Their understanding of my nature and appreciation of my endeavour must be
acknowledged. I will never be able to repay them for all that they have given me. I can only
offer my humble “thank you.” And finally, my sister, Kelsey. I cannot imagine life without
her laughter and beauty. I thank her for everything.
Vll
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viii
A Note on the Transliteration
In writing this thesis, I have utilized the system of transliteration presented on the
previous page. The same cannot be guaranteed for the statements that I directly quote. My
presentation of proper names may also differ from the standard transliteration, for I have
preserved the recognized English spelling. For example, rather than write Mahmud
Muhammad Taha, I use the accepted form of Mahmoud Mohamed Taha.
IX
Table of Contents
Abstract ii
Resume iii-iv
Acknowledgements v-vi
Notes vii-viii
T able of Contents ix-x
Introduction 1
Chapter 1: The Modern International Structure, Human Rights Laws, and 7

the Classical Understanding o f the SharTa
A. The Modem International Structure and Human Rights 7
1. The Nation-State 9
2. Human Rights Laws 12
B. The Classical Shan‘a 22
1. The Shari‘a versus Fiqh 22

2. Ijtihad and Naskh 28
Chapter 2: Areas o f Contention 37
A. Women 39
B. Non-Muslims 57
C. Criminal Justice 71
Chapter 3: The Reform M ethodology 88
A. Meccan and Medinan Verses 89
B. Hermeneutics and Historical Context 95
C. An-Na‘im’s Use o f N tskh and Jjtih id 106
x
Conclusion 116
Bibliography 121
1
Introduction
Islamic law is woven into the fabric o f Islamic civilization and into the religion itself
It is both the instrument o f orchestration and the reflection o f Muslim society, assuming a
stature o f such eminence that Joseph Schacht insists, “Islamic law is the epitome o f Islamic
thought, the most typical manifestation o f the Islamic way o f life, the core and kernel of
Islam itself” 1 The symbiosis between religion and law was established at the birth o f Islam,
wherein Muhammad himself envisaged the law as inseparable fiom divine revelation.2 The
religion provided the system o f belief and the law, necessarily presupposing this belief
conducted and regulated every movement ofthe believers. However, this intrinsic unity that
has been a persistent and pervasive presence for the entirety o f Islam has suffered an
imposed disassociation wrought by European colonialism. A rupture in the traditional legal
system and its legal identity has bred a crisis. If Islam and its law are inseparable, and yet
the classical formulation o f the law, both the methodology and positive laws, has been
dismantled through an imperialist effort, can Muslims revive the Shari‘a in modem society?
This dilemma surpasses the tangible resuscitation of a legal system, but challenges
the ability o f Islamic law to accommodate structural alterations in Muslim societies that
have effected, in many cases, an evolution o f values and standards. The very philosophy
informing the Islamic legal system must be examined and assessed to determine its
capability and capacity to sustain the forces o f modernity. Modernity arrived in the Muslim
1Joseph Schacht, Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 1.

2 S.D. Goilein, “The Birth-Hour o f Muslim Law," Muslim World 50,1 (1960): 29. This article contends that “he
idea of the Shari'a was not the result of post-Qur’anic developments, but was formulated by Muhammad
himself," refuting the claim held by Schacht that law fell outside o f the sphere of religion until a century after
the prophecy of Muhammad, at which time Muslim jurisprudence began. For this latter argument, see Joseph
Schacht, The Origins o f Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950).
Reproduced with permission o fth e copyright owner. Further reproduction prohibited without permission.
2
world through a confrontation with Western powers whose political, economic and military
supremacy dictated the course o f modernization, influencing an intellectual and societal
reorientation among Muslims.3
While Islam has felt and continues to feel the impact o f modernity in every facet of
life - the advancements, devastating consequences, and perhaps most distinctly, the
unabashed and exhausting pace - the area of law provides a complex and problematical
predicament, abandoning Muslims to a state o f uncertainty as to how Islam is to be
interpreted for modem life. This critical task is manifest in the endeavors o f Muslims to
appraise their legal heritage and formulate a system o f Islamic law for contemporary society.
The eminent scholar Fazlur Rahman succinctly analyzes the situation confronting the
Muslim community:
When new forces o f massive magnitude - socio-economic, cultural-moral or

political - occur in or to a society, the fate of that society naturally depends on
how far it is able to meet the new challenges creatively. If it can avoid the two
extremes o f panicking and recoiling upon itself and seeking delusive shelters in
the past on the one hand, and sacrificing or compromising its very ideals on the
other, and can react to the new forces with self-confidence by necessary
assimilation, absorption, rejection and other forms o f positive creativity, it will
develop a new dimension for its inner aspirations, a new meaning and scope for
its ideals.4
The measure o f success ofthe Muslim response to modernity and the prospects for progress
largely reside in the ability to produce a cohesive and efficacious legal identity. However,
the recent history o f this activity, replete with dissatisfaction and mostly unconvincing
attempts at reforming Islamic law, indicate the gravity and difficulty of this exercise.5
3 Fazlur Rahman, “The Impact of Modernity on Islam,” Islamic Studies 5 (1966): 114.
4
Fs2lur Rshmtn, Islamic Methodology in History (Karachi: Central Institute of Islamic Research, 1965), 175.
5 For a detailed history of modem reform o f Islamic law and its inherent problems, see J.N.D. Anderson, Law
Reform in the Muslim World (London: The Athlone Press, 1976); idem, “Law as a Social Force in Islamic
Culture and History,” Bulletin o f die School o f Oriental and African Studies (1957): 13-40; idem, “Modem
Trends in Islam: Legal Reform and Modernisation in the Middle East,” International and Comparative Law
The notion of legitimacy pervades all discussions regarding Islamic law in the
modem context, for the law cannot truly take root if it is not accepted as valid by the
society it intends to regulate. What is considered valid by the society must also exhibit an
authentic character free from subservience to external imposition and an oppressive
modernity. Robert D. Lee describes the cry for authenticity not as a rejection o f modernity
itself but as a means to render it less arbitrary and more comprehensible.6 In the context o f
the struggle o f the Muslim community with modernity, legitimacy predicated upon
authenticity is naturally bound to an Islamic government grounded in Islamic law.
However, the legitimacy regarded within the Muslim framework must also contend with
that which is deemed legitimate in the external realm. While maintaining what is perceived
to be an honest Islamic identity, the Islamic legal system that is proffered must earnestly
tackle the trappings of modernity, an enormous part of which entails a new dynamic in the
international sphere, notably in the area o f human rights. Thus, can the traditional Shari‘a
be implemented in contemporary Muslim societies or are there aspects inherent to Islamic
law that make it irreconcilable with international standards of human rights? And, if this is
true, is there a methodology for reform that effectively resolves this conflict?
The modem international organization is currently balancing the consequences o f
globalization, delicately maneuvering between a desired unity based upon understanding and
acceptance, and the threat o f uniformity produced by cultural and political hegemonies.
This reality creates the complicated relationship between respect for difference (culture and
Quarterly 20 (1971): 1-21. For a concise tnd more current analysis of the trends of tnd prominent contributors
to modem reform o f Islamic law, see chapter six o f Wael B. Hallaq, A History o f Islamic Legal Theories: An
Introduction to Sunni Usui al-Fiqh (Cambridge: Cambridge University Press, 1997).
^Robert D. Lee, Overcoming Tradition and Modernity: The Search fo r Islamic Authenticity (Boulder Westview
Press, 1997), 3.
diversity) and the acknowledgement o f sameness (international human rights laws).7 The
international laws o f human rights cautiously operate in this intricate and precarious
domain, seeking to establish universal rules and values that are legitimate and followed by a
global community composed o f a patchwork o f value systems and cultural traditions.
Muslims ate compelled to confront this dilemma through their desire to maintain
their own legal identity, tradition, and culture manifested in the Shari‘a while participating
as equal actors in an international system that demands the recognition o f and compliance
with, supranational institutions and laws. If these international instruments are not
perceived as legitimate by Muslim nations, it is less likely that they will be observed and act
as effective agents and methods o f securing stability, peace and understanding. In fact,
divisiveness and discord may erupt, threatening to derail any progress made already
regarding communication and the pursuit o f common goals in the areas of justice and human
rights among nations. Conversely, the delicacy ofthe situation is enhanced when the law of
a nation is seen to contradict certain aspects o f human rights standards, for this nation risks
being ostracized by other nations and excluded from fully participating in international
affairs. Abdullahi an-Na‘im8 charges the Shari‘a o f perpetrating this transgression, making
the possibility o f a harmonious relationship between the two unattainable.
Abdullahi an-Na‘im has addressed the complex situation posed by the relationship
between international human rights and the Shari‘a and whether they can be reconciled. He
argues that there is no contradiction between Islam and human rights, saying, “... Islam itself
7 Richard Falk, “Cultural Foundations for the International Protection of Human Rights,” in Human Rights in
Cross Cultural Perspectives: Quest fo r Consensus, ed. Abdullahi an-Na‘im (Philadelphia: University of
Pennsylvania Press, 1992), 46.
8 Abdullahi an-Na‘im is a Muslim Sudanese scholar in Islamic law with a degree in Shari'a from the University
of Khartoum and an LLJ3. and Diploma in Criminology from the University of Cambridge. He is an
internationally renowned human rights activist who is currently the Charles Howard Candler Professor of Law at
Emory University in Atlanta, Georgia.
can be consistent with and conducive to the achievement o£ not only the present universal
standaids, but also the ultimate human right, namely the realization of the originality and
individuality o f each and every person."9 However, he maintains that certain aspects ofthe
Shari‘a are inconsistent with cunent standards of human rights, and cannot be reformed
within the traditional framework and methodology ofth e Shari'a.
He offers a methodology for the radical reform o f the Shari'a which he avows is the
only alternative that allows Muslims to wholly implement a Shari'a that is both legitimate
internally as well as internationally, satisfying requirements o f human rights laws. The
methodology that an-Na'im proposes is that of his mentor Mahmoud Mohamed Taha,
founder of the Republican Brothers in Sudan.10 He believes that Taha’s methodology would
obviate the problem o f forcing Muslims to choose between their religion and law, and
standards that are enforced by the international community, allowing Muslims to retain their
religion while adhering to international standards without contradiction.11 He is convinced
9 Abdullahi an-Na'im, “A Modem Approach to Human Rights in Islam: Foundations and Implications for
Africa,” in Human Rights and Development in Africa, eds. Claude Welch and Ronald Meltzer (Albany: State
University of New York, 1984), 75.
10The Republican Brothers was formed by Taha in 1945 as a political party that fought for the independence of
the Sudan against colonialist patronage. The group was transformed in the 1950’s from a political party to an
organization promoting the spiritual orientation of Taha. Taha was executed as an apostate on January 18,1985
for opposing the Islamization program of then President Nimeiri For a history of the Republican Brothers and
Taha see Paul J. Magnarella, “The Republican Brothers: A Reformist Movement in the Sudan,” The Muslim
World 72 (1982): 14-24; Richard P. Stevens, “Sudan's Republican Brothers and Islamic Reform,” Journal o f
Arab Affairs 1, 1 (1981): 135-46; Mahmoud Mohamed Taha, The Second Message o f Islam, trans. Abdullahi
an-Na'im (Syracuse: Syracuse University Press, 1987), 2-19.
11 Taha was an engineer with SuS training and discipline. His ideas do concern legal matters but they are more
of a comprehensive vision of the message of Islam. It is an-Na'im who has structured the ideas and instilled a
legal objective in them. Moreover, the nature of an-Na'im’s work with international human rights and his quite
Westernized existence may lead some to assume that the ideas behind the reform methodology pander to a
Western community (for they certainty accommodate it) and seek the Westernization of Islam. However, Taha
was not dazzled by die “progress” of Western civilization, and found that “present-day Western civilization is
not a civilization at ad, despite all its material progress. It is not a civilization because its values are confused, in
that means are advanced while ends are retarded....This present-day industrialized Western civilization has
readied the end of its development It has obviously failed to answer the needs of modem human society....This
failure of the present industrialized Western civilization is therefore due to the fact that its material development
was not supplemented by proper moral growth that clarifies the confusion and places the machine in its proper
ofthe legitimacy o f a universal human rights project but believes it would be undermined if
forced to compete with a society’s value system.12 He describes his project as “an attempt
to promote the cultural legitimacy o f human rights within the Muslim context.”13
This thesis comprises three chapters that examine the challenge that modernity,
through a contemporary international composition and the standard o f human rights that it
has devised, poses to Islamic law and the methodology for reform proposed by Abdullahi an-
Na'im. The first chapter evaluates the meaning and implications of the modem
international structure ofth e nation-state and assesses the human rights standards that the
international community has fashioned. It also analyzes the traditional Shari'a and the
classical understanding o f the liberties and limits o f usul ul-Bqb (Islamic jurisprudence or
legal methodology) and its capability to adjust and accommodate change and evolution
within the law, with particular emphasis placed upon the legal tools o f ijtibad (legal
reasoning and interpretation) and uaskb (abrogation). The second chapter explores areas of
contention between Islamic law and human rights, specifically addressing the legal status of
women and non-Muslims and the role o f criminal justice. Chapter Three explains the
“radical reform methodology” o f Taha as championed by an-Na'im and discusses why he
maintains that this is the only option that allows Islamic law to coexist with human rights
standards.
place as the servant of man and not his master. Material progress has unfortunately not been shored up by
spiritual progress.” Taha, Second Message, 52-54.
1 Abdullahi an-Na'im, “Toward an Islamic Hermeneutics for Human Rights,” in Human Rights and Religious
Values, eds. Abdullahi an-Na'im, Gort, H. Jansen, and HM. Vroom (Grind Rapids: William B. Eenhnans
Publishing Company, 1995), 230.
13 Abdullahi an-Na'im, Human Rights in Cross-Cultural Perspectives: Quest fo r Consensus (Philadelphia:
University of Pennsylvania Press, 1992), 427.
Chapter One
The Modern International Structure, Human Rights Standards,
and the Classical Understanding of the Shari‘a
The feature o f modernity described in this study is that o f the international
composition and the human rights standards that it has created. The formation of peoples
into territorial entities, engaging in a high level of interaction, has concurrently bred a
particular mentality and understanding of humanity revealed in human rights laws. This
mentality has permeated nearly every society, leaving a psychological impact upon its
individuals. To partake in modernity is to necessarily participate in this adjustment of
thought. However, the degree o f internalization and resultant position are determined by
both the individual and the society. This decision is informed externally by an evaluation o f
the validity and legitimacy o f the perspective surrounding human rights standards. And
within the Muslim context, an understanding o f the traditional system of law and its
philosophy illuminates the level of compatibility and suitability it is able to maintain with
both the international framework and its accompanying state of mind. Moreover, this may
indicate the breadth o f transformation needed to accommodate this relationship.
A. The Modem International Structure and Human Rights
International human rights laws have been perceived as an imposition o f Western
values upon Islamic (and other) societies in an effort to guarantee a particular vein o f self-
interest or moral authority at the expense o f the integrity and independence o f other
societies. The existing human rights standards and their methods of implementation have
been attacked for their bias in favor of western interpretations o f international and universal
rights, creating a dilemma for those nations who want to be active members in an
international community which they feel alienates them. Moreover, human rights are moral
rules and so it follows that when they are universalized, the threat of moral tyranny arises
and elicits trepidation.14 Some people challenge the universality of these human rights
norms, questioning whether they can be suitably applied to non-Westem societies.15 A
further predicament reveals itself when Western nations enforce international law and
human rights standards upon less powerful nations, while neglecting to abide by the rules
themselves. Ibrahim Shihata illustrates this quandary saying:
If a rule lacks the general conviction in the minds o f those addressed by its
letter as to its obligatory character, it is natural that such a rule, short of forced
application will not stand. As a result, it is not illogical to look first at the
rules in order to find a remedy for the problems o f their application and
enforcement.16
However, it is necessary to go a step further and consider the institution that designed the
rules. Thus, an assessment o f the effects and ramifications of the nation-state and the
genesis and formulation o f international human rights laws will provide the setting for the
complicated relationship between modernity and Islamic law.
14 For a discussion concerning the necessary mediation between cultural relativism and universalism, see Jack
Donnelly, “Cultural Relativism and Universal Human Rights,” Human Rights Quarterly 6 (1984).
15 Virginia A Leary, “The Effect of Western Perspectives on International Human Rights,” in Human Rights in
Africa: Cross-Cultural Perspectives, eds. Abdullahi an-Na‘im and Francis Deng (Washington, D.C.: The
Brookings Institution, 1990), 15.
16 Ibrahim Shihata, “Islamic Law and the World Community,” Harvard International Club Journal 1,4 (1962):
101.
• 1. The N ation-State
9
The reality o f the nation-state as both the domestic and international model o f
organization has significantly and irreversibly changed the physical and mental composition
of society. It is a concept and ideal that emanates fiom the West, nurtured and developed
within that context and later imposed upon non-Westem societies through colonialism or
post-colonial adoption and enactment.17 The nation-state is the formation of territorial
bodies into political states, imbuing the state with tremendous political authority and power
while instilling a unified national identity in its individuals.18 The classical Islamic
approach to an international community does not conceive o f nation-states and certainly not
of an identity premised upon a national affiliation. The classical Islamic understanding o f
identity is predicated upon belief and it is this belief that orders the Islamic state’s relations
with other international entities. This is clearly expressed in the division of the world into
the territory o f Islam {d ir al-Islam), that which is under Muslim rule and Islamic law, and
the territory o f war {diral-barb) which consists o f all the states and communities existing
outside the Islamic ambit and whose inhabitants are called unbelievers.19 However, this
international division o f belief is deemed temporary due to the universal nature o f the
17 Abdullahi an-Na‘im, “The Contingent Universality of Human Rights: The Case of Freedom of Expression in
African and Islamic Contexts,” Emory International Law Review 10,2 (1997): 40.
18 An important ideological aspect of the nation-state is its affirmation of self-determination, as guaranteed by
the Charter o f the United Nations. See Articles 1.2 and 55 o f the Charter. However, even mote important to
note is dial self-determination is bestowed upon territories and nations, thus binding the notion of autonomy to
the construction of a nation-state, identifying and unifying that state by a common culture within its territorial
bounds. See Ralph Emerson, “Self-Determination,” American Journal o f International Law 65 (1971): passim.
For an interesting argument against this definition of self-determination and a proposal for an expansion of the
concept to ensure the self-determination of all groups within the state, see Abdullahi an-Na'im, “The National
Question, Secession and Constitutionalism: The Mediation o f Competing Claims to Self-Determination,” in
Constitutionalism and Democracy: Transitions in the Contemporary World, eds. Stanley’ N. Katz, Doug
Greenberg and Steve Wheatley (New York: Oxford University Press, 1993), 105-125.
19Majid Khadduri, War and Peace in the Law o f Islam (Baltimore: The Johns Hopkins University Press, 1966),
53 and passim. See also idem, The Islamic Law o f Nations: Sbaybm i's Siyar (Baltimore: The Johns Hopkins
University Press, 1966).
10
Islamic state seeking the subordination o f the whole world under its law and religion.20 The
notion of univeisalism compels the law o f Islam to “recognize no other nation than its own,”
as Majid Khadduri says, “in contrast with the modem law o f nations, which presupposes the
existence o f a family of nations composed o f states enjoying sovereign rights and equality of
status....”21 The nation-state disrupts the Islamic conception o f an international framework
based upon belief for it must contend with the concrete reality, as Khadduri says “of a
transformation o f the state from an Islamic (universal) state into a modem (national)
, . ” 22
state.
The supremacy o f the state is enhanced and supported by its control over the law,
“the national state becoming the unique source of all legislation.”23 The solid alliance
between law and government, a quality o f the nation-state, is contrary to the nomocratic
Islamic state, the distinctive feature o f which is the vigilant separation between the Law and
the State.24 Haim Gerber emphasizes, “Islamic law, by being jurists’ law, constituted an
autonomous institution that was not controlled by the state. The law was part of the
central, core values ofthe society, yet was a jurists’ law, that is unrelated to the state and in
the position o f not having to draw its legitimacy from it.”25 The appropriation o f the law by
the modem state is consolidated and fortified by the codification o f those laws. This
process is deemed necessary for modem national legal systems to maintain greater
20 Khadduri, War and Peace, 44-5; Muhammad HamiduUah, Muslim Conduct o f Slate, 4* ed. (Lahore: Sh. M.
Ashraf, 1953), 145-46. HamiduUah contends that the only enemies to the Islamic state are enemies of God:
polytheists, associatois and atheists and that the Muslims “wanted to conquer the world, not to plunder it, but
peacefully subjugate it to the religion o f‘Submission to the Wfll of God’....”
21 Majid Khadduri, “Islam and the Modem Law o f Nations,” American Journal o f International Law 50 (1956):
358.
22 Majid Khadduri, The Islamic Conception o f Justice (Baltimore: The Johns Hopkins University Press, 1984),
201 .
23Anderson, “Modem Trends in Islam: Legal Reform and Modernisation in the Middle East,” 18.
24Khadduri, War and Peace, 14-18.
23Haim Gerber, Islamic Law and Culture 1600-1840 (Leiden: Brill, 1999), 147.
consistency and efficiency in the law.26 The law is no longer independent nor is it applied va
society - it is the official law o f the state, expressing its political will and enforced by it.27
Moreover, through the conjunction of the state and the law, the state becomes the master
28
regulator o f society, directing everything ranging from personal status to institutions.
In the Islamic context, codification disrupts the traditional process o f legal activity,
indicating the difficulty o f establishing cohesion between a Western institution and concept
and an entirely different societal and legal system. Ann E. Mayer contends that the
exposure to this Western notion of state and law leads Muslims to perceive “law” as rules
that emanate from and are enacted by the state in the form o f statutes or codes, which then
allows the state to declare that “only the laws that it enacts in codified or statute form
constitute binding statements o f the principles o f Islamic law on its territory.”29 The
authority o f codifying Islamic law accords the state with the exclusive prerogative of
establishing what it constitutes as Islamic law.30
26Ann E. Mayer, “The Shari'ah: A Methodology or a Body o f Substantive Rules?” in Islamic Law and
Jurisprudence: Studies in Honor o f Farhat J. Ziadeh, ed. Nicholas J. Heer (Seattle and London: University of
Washington Press, 1990), 180.
27Abdullahi an-Na'im, interview by author, May 11,2000, Washington, D.C.
28 A consequence of die modem nation-state is witnessed in the collapse of the infrastructure of traditional
Muslim society. As Hallaq explains, “With the introduction of these codes [through codification] there arose the
need to modify die infrastructure of die existing legal system in order to sustain these codes. In addition to the
introduction o f a western-styled hierarchy o f courts, a new legal profession emerged. The training of modem
lawyers who staffed these courts required the institutionalization of modem colleges of law, a feet which had a
fundamental structural impact upon die traditional class of legal scholars. The role these scholars played in the
judicial system was gradually phased out, with the concomitant result that they could no longer be conceived as
an integral part of the legal system. Their traditional colleges of law lost the financial support of both the state
and the private individuals, and the prestige of the social status of the traditional faqlb thus gave way to the
emerging class of modem lawyers.” See Hallaq, Islamic Legal Theories, 259-260. What Hallaq describes is
largely the result o f the nationalization of waqfs (charitable endowments), a formerly private and independent
institution that constituted the backbone of die Islamic legal system and economically sustained the society. For
the history of the waqf and an analysis of its modem transformation and societal repercussions, see Henry
Cattan, “The Law of Waqf” in Law m the Middle East: Origins and Development o f Islamic Law, eds. Majid
Khadduri and Herbert J. Liebesny (Washington, D.C.: Middle East Institute, 1955), 236-278.
29 Aim E. Mayer, “Law and Religion in die Muslim Middle East,” American Journal o f Comparative Law 35,1
(1987): 152-53.
“ Mayer, “The Shari'ah: A Methodology or a Body o f Substantive Rules?' 197.
12
However, this is opposed to the very premise of classical Islamic law. Schacht
contends that traditional Islamic law is incompatible with codification, Islamic law being a
doctrine and a method rather than a code.31 Codification gives the state centralized control
over law-making, eradicating any diversity o f legal opinions and juristic interpretation
which is a principal feature o f Islamic law due to its methodological underpinnings.32 In this
sense, codification effectively severs the methodology for deriving laws (usa/a/-Sqb) from
the substantive laws themselves (fiir u \ thus corrupting and distorting the entire legal
system.33
The instrument o f codification is a concomitant attribute ofthe modem nation-state,
dictating the course o f law within the state as well as asserting the nation as the legal
identity. But this national, legal and political entity operates within a larger and highly
interactive international community regulated by a supranational structure responsible for
international law, a facet of which are the laws pertaining to universal human rights.
2. Human Rights Laws
The nation-state operates with a generous degree of freedom and independence yet
adheres to an overarching legal system in order to promote stability and maintain peaceful
31Joseph Schacht, “Problems of Modem Islamic Legislation,” Studia Islamica 12 (1960): 108.
32 According to Hallaq, “The transference of ‘law-making' from the hands of the traditional jurists to those of
the state constituted a major shift in legal theoretical discourse....Individual ijtihid became, for all purposes and
intents, extinct, having been replaced by state legislation committees staffed mainly by modem lawyers. With
the virtual disappearance of the traditional class of legists, and with the emergence of codification as an answer
to new social realities imposed by western cultural and technological domination, there emerged a new legal
Weltanschauung that entirely rejected some of the elements of traditional theory, and which demanded that
whatever was retained had to be drastically modified.” The relationship between the methodology and the law
in traditional SharPa will be investigated in the second part of this chapter.
33Mayer, “The Shari'a: A Methodology or Body of Substantive Rules?” 198. The author asserts that the process
of codifying Islamic law “may well have the effect o f transforming the Shari'a from a legal tradition in which
methodology is central to one in which certain principles in the substantive roles enacted into law by
governments become its distinguishing feature.”
13
coexistence and mutual responsibility with other states. The organization charged with this
task is the United Nations. The United Nations Charter was proposed by representatives of
the United States, Great Britain, the Soviet Union, and China at a conference in
Washington, D.C. in 1944 and was then drafted by these, as well as 44 other countries. It
was completed in only two months and on October 24,1945, after the Charter of the United
Nations was ratified by a number of signatories, the United Nations came into being. The
United Nations is considered “the pre-eminent international organization”34 and “a pivotal
organ of world government, and the most important o f all international institutions.”35 Soon
after its conception, the United Nations was compelled to address the consequences
produced by a national state, Nazi Germany during World War 0. thereby supplying
international laws with another legal instrument, that o f human rights.
The atrocities committed by Nazi Germany upon hum anity obliged the United
Nations to act in a manner that would ensure such tragedy would not be replicated.36 The
Universal Declaration o f Human Rights (UDHR)37 was drafted by the United Nations
General Assembly under the direction and responsibility o f persons from Western Europe
34Ann E. Mayer, Islam and Human Rights: Tradition and Politics (Boulder: Westview Press, 1991), 40.
35 J.G. Starke, Introduction to International Law, 9th ed. (London: Butterworths, 1984), 601; Abdullahi an-
Na'im, “Religious Minorities under Islamic Law and the Limits o f Cultural Relativism," Human Rights
Quarterly 9, 1 (1987): 6. All Muslim countries, or countries with a Muslim majority even if they are not
identified as an Islamic state in the constitutional sense, are members of the United Nations and are thus parties
to its Charter as a treaty, acknowledging and accepting the laws and their obligation to obey them. Moreover, in
Article 1 (3), it explicitly declares its recognition of human rights, committing “To achieve international
cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in
promoting and encouraging respect for h uman rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion.”
36Mayer, Islam and Human Rights, 40-41.
37 The Universal Declaration of Human Rights is the first piece of international human rights legislation that
comprises the International Bill of Human Rights. In addition to the Declaration (1948), die Bill consists o f the
International Covenant on Economic, Social and Cultural Rights (1966) and the International Covenant on Civil
and Political Rights and its Optional Protocol (1966). While the Universal Declaration of Human Rights by
itself is not a legally binding treaty, it has been incorporated into the subsequent covenants and other human
rights treaties that are legally binding and have been ratified by a substantial number of Muslim countries.
14
and the Americas as well as non-Europeans educated in the West.38 As Viiginia Leary
relates:
The initial draft of the declaration prepared by John Humphrey (director o f the
Division on Human Rights o f the UN Secretariat) drew from proposed
declarations submitted by a number o f Western organizations and individuals,
particularly from the Western hemisphere. Most o f these declarations followed
closely the French Declaration o f the Rights o f Man and o f the Citizen or the
U.S. Bill of Rights...39
The Universal Declaration o f Human Rights was adopted by the unanimous agreement of
United Nations General Assembly40 in December, 1948 as an international legal mechanism
to guard against abuses committed by nation states against human beings.
This foundational document establishing and codifying human rights norms is
noteworthy for a number o f reasons. It represents the acceptance by the international
community, comprised o f a medley o f different nations, of the concept of human rights as
well as confirms its distinctive position as contingent upon the nation-state and modem
Western notions of humanity 41 Human rights scholar Rhoda E. Howard contends, “Human
rights are a modem concept now universally applicable by virtue o f the social evolution of
38Leary, “The Effect of Western Perspectives,” 20-21. Leary relies upon Albert Verdoodt's account of the event
in Naissance et Signification de la Declaration Universelle des Droits de I 'Homme (Louvain-Paris: Editions
Nauwelaerts, 1963). He names Rene Cassin of France, John P. Humphrey of Canada, Eleanor Roosevelt of the
United States. Heman Santa Cruz of Chile, Charles Malik o f Lebanon, P.C. Chang of China, and Fernand
Dehousse of Belgium as playing the most important roles in the drafting. Both Chang and Malik, the only non-
Westerners in the group were educated in the United States at Columbia University and Harvard University
respectively. Parenthesis mine.
3’Leary, “The Effect of Western Perspectives,” 20-21.
40 Saudi Arabia, South Africa, and the Soviet bloc abstained.
41 M. Cherif Bassiouni, “Sources o f Islamic Law, and the Protection of Human Rights in the Islamic Criminal
Justice System," in The Islamic Criminal Justice System, ed. M. Cherif Bassiouni (London: Oceana
Publications, Inc., 1982), 40. The author states, “International conventions on the protection of human rights,
and in particular the Universal Declaration on Human Rights and the International Covenant on Civil and
Political Rights, establish m inim um standards which reflect contemporary values. Their purposes ate
unquestionably within the scope o f Islamic law, though the general frame o f references of all human rights
convention is the western Judeo-Christian tradition. This may have been due to the fact that the Islamic legal
system has since the Middle Ages produced no impact on international and comparative law, and consequently,
its impact on the shaping of internal human rights law has been nil” As will be discussed in Chapters Two and
Three, an-Na‘im does not regard traditional Islamic law and modem human rights schemes to be compatible.
15
the entire world toward state societies.’'42 Human rights may be considered normative and
enjoy universal agreement in the international community (in theory, at least) because of
their ability to address m oral abuses in the modem context o f considerably altered societies
and political and legal systems. Jack Donnelly describes the transformation o f the
traditional society saying:
Traditional rulers usually faced substantial moral limits on their political

power, customary limits entirely independent of human rights. Furthermore,
the relative technological and administrative weakness o f traditional states and
non-state political institutions provided considerable practical restraints on
arbitrary abuses o f power. In such a world, at least some human rights -
inalienable entitlements o f individuals held against state and society - might
plausibly be held to be superfluous (in the sense that basic dignity was being
guaranteed by alternative mechanisms) if not positively dangerous to well-
established practices that realized a cultural conception o f human dignity 43
The checks and balances that a traditional society provided for moral comportment have
been compromised and in some cases completely dismantled, creating the need for an
appropriate means to guaranteeing human dignity and values against threats posed by
modem society and its institutions such as the nation-state. Donnelly further argues, “To
the extent that modernization or Westernization has reached into, and transformed,
traditional communities, traditional approaches to guaranteeing human dignity seem
objectively inappropriate; traditional limits on political power are unlikely to function
effectively in modem conditions.”44 Thus, the human rights scheme reflects a concern with
the exploitation o f power by individual governments (emboldened by modem circumstances
42 Rhoda E. Howard, “Dignity, Community, and Human Rights,” in Human Rights in Cross-Cultural
Perspectives: Quest fo r Consensus, cd. Abdullahi an-Na'im (Philadelphia: University of Pennsylvania Press,
1992), 81.
43 Jack Donnelly, “Cultural Relativism and Universal Human Rights,” Human Rights Quarterly 6 (1984): 405-6.
The author continues to say, “Such a world, however, exists today only in a relatively small number of isolated
areas. And the modem state, particularly in the Third World, not only operates relatively free of the moral
constraints of custom but has far greater administrative and technological reach. It thus represents a serious
threat to basic human dignity, whether that dignity is defined in ‘traditional’ or ‘modem’ terms.”
44 Ibid., 406.
16
and enhanced by the erosion o f traditional safeguards)43 and guarantees unyielding legal
protection to all citizens.
The construction and philosophical principles o f the modem moral authority
manifest in human rights, however, are inherently Western and are indifferent to other
traditions. It is important to recall that as the institutions of international organization and
enforcement were being formulated, a vast majority o f nations could not contribute to this
process as they were suffering under repressive colonialist rale by the very same European
powers that were proclaiming the Universal Declaration of Human Rights at the United
Nations. It is also significant that the elaboration and adoption of the declaration took only
a few years whereas the drafting o f the two subsequent international documents regarding
human rights took twenty years. These later documents were the International Covenant on
Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political
Rights. Leary interprets the difference o f time as a reflection o f the increased participation
of non-Westem states in the ensuing years as colonialism began to crumble 46 During the
drafting o f the declaration, the homogenous nature and perspective of the Western states
allowed for a relatively uncomplicated, thus expeditious, adoption o f the declaration.
Whereas the two covenants were produced in the 1960’s when many new African and Asian
countries had become members o f the United Nations, incorporating their divergent
outlooks and experiences, challenging and confronting the West, into the fabric o f the
43 Donnelly, “Cultural Relativism and Universal Human Rights,” 4 13. The author contends, “In traditional
cultures - at least the sorts of traditional cultures that would readily justify cultural deviations from international
human rights standards - people are not victims of the arbitrary decisions of rulers whose principle claim to
power is their control of modem instruments of force and administration. In traditional cultures, communal
customs and practices usually provide each person with a place in society and a certain amount of dignify and
protection. Furthermore, there usually are well-established reciprocal bonds between ruler and ruled, and
between rich and poor.”
46Leary, “The Effect of Western Perspectives,” 25.
17
further development of human rights.47 However, these new actors in the international
sphere were latecomers to an already established concept and framework that had become
normative. They also lacked material and human resources, placing them in a position of
relative impotence as emerging poor and underdeveloped countries maneuvering within pre
existing power-oriented systems o f international law.48 The genesis o f international human
rights certainly inhibit their legitimacy and authority as non-Westem states assert their
independence, influence, and enhanced participation in the international domain.
To augment this disparity, the very concept o f human rights is European in origin.
The definition provided by Donnelly states, “Human rights are rights, not benefits, duties,
privileges, or some other perhaps related practice. Rights in turn are special entitlements of
persons.”49 The rights of the individual are paramount and are inherent in one’s humanity,
with no dependence upon God, the state or one’s actions (you cannot lose these rights
through bad behavior or criminal activity, for instance). The emphasis upon the
individualistic nature of rights and the guarantees o f life, liberty, and property go back to the
ideas o f John Locke.50 This perception o f human rights empowers the individual vis-a-vis
the community, the state, and even the family unit, which is a departure from the social
organization o f many communities, especially those outside the Western sphere (i.e., many
tribal societies). Such a construction o f society redefines the relationship between the
individual and his/her community through the reformulation of individual human rights
47Ibid., 25.
48 Abdullahi an-Na'im, “The Contingent Universality of Human Rights: The Case of Freedom o f Expression in
African and Islamic Contexts,” Emory International Law Review 11 (1997), 39.
49 Jack Donnelly, “Human Rights and Human Dignity: An Analytic Critique o f Non-Westem Conceptions of
Human Rights,” The American Political Science Review 76 (1982), 304.
30 Ibid., 305; Mayer, Islam and Human Rights, 39-40. Mayer illustrates die intimate relationship between the
Western Enlightenment philosophy and the current human rights laws affirming, “It was on these Western
traditions of individualism, humanism, and rationalism and on legal principles protecting individual rights that
twentieth-century international law on civil and political rights ultimately rested. Rejecting individualism,
humanism, and rationalism is tantamount to rejecting the premises of modem human rights.”
versus collective or communal rights and creates a distinct relationship between the
individual and the state.51 The modem human rights laws protecting the individual from
exploitation by the state predictably conceive the possibility o f severe friction and
animosity between the individual and the state, an idea that is dissonant with the traditional
Islamic legal understanding. Theoretically, in the Islamic model, the state and the citizens
would both be responsible to the same God and laws, and equally seek to obey Him.52 Thus,
there would be no discrepancy between the interests of both parties. Moreover, the
capability o f the state to inflict egregious harm upon its individuals would be mitigated by
the legal system operating outside of state control
The emphasis upon individualism, a basic and integral mark of the Western notion of
human rights, elicits criticism concerning its modification of the role o f the community. An
Islamic response by Ahmad Zaki al-Yamani argues that the West “is so overzealous in its
defense o f the individual’s freedom, rights and dignity, that it overlooks the acts of some
individuals in exercising such rights in a way that jeopardizes the community.”53 This vein
o f thought is very much alive today and leads to a conflict in Muslim societies that are asked
to elevate the importance o f the individual at the expense of the community, contrary to
religious and traditional practice in which the individual is conceived o f as the limb o f a
51 N. J. Coulson, “The Stale and the Individual in Islamic Law,” International Comparative Law Quarterly 6
(1957): 49-60. The author asserts that Islamic law does not address this concern in the same tenns and does not
recognize certain individual liberties, declaring that “the formulation of a list of specific liberties of the
individual as against the State, in the manner, for example, of the American constitution, would in fact be
entirely foreign to its whole spirit For Islamic religious law sees as its essential function the portrayal of an
ideal relationship of man to his Creator the regulation of all human relationships, those of man with his
neighbour or with the State, is subsidiary to, and designed to serve, this one ultimate purpose.”
52Ibid., 50-51. Coulson articulates this idea in his article, saying, “The stress, therefore, throughout the entire
Shari'a, lies upon the duty of the individual to act in accordance with the divine injunctions; and since the
conscientious application of these divine injunctions is the declared purpose o f the political authority, die jurists
did not visualise any such conflict between the interests of the ruler and the ruled as would necessitate the
existence of defined liberties o f the subject”
53 Ahmad Zaki al-Yamani, Islamic Law and Contemporary Issues (Jidda: The Saudi Publishing House, 1968),
15.
19
collectivity.54 The human rights treatises afford civil and political rights that do not
consider communitarian or tribal structures and traditional societies,55 but address the rights
and freedoms o f individuals in modem nation states subject to the oppression and
dominance o f a centralized state.S6 Donnelly explains the human rights standards as a
modem response to modem problems:
The modem state, the modem economy, and the associated “modem” values
tend to create communities o f relatively autonomous individuals, who lack the
place and protections provided by traditional society. Furthermore, regardless
o f the relative degree o f individual autonomy, people today face the
particularly threatening modem state, and the especially fierce buffeting o f the
ever-changing modem economy. Rights held equally by all against the state,
both limiting its legitimate range o f actions and requiring positive protections
against certain predictable economic, social, and political contingencies, are a
seemingly natural and necessary response to typically modem threats to human
54 Bassam Tibi, “Islamic Law/Shari’a, Human Rights and International Relations," in Islamic Law Reform:
Challenges and Rejoinders, eds. Tore Lindhohn and Kari Vogt (Oslo: Norwegian Institute o f Human Rights,
1993), 87. According to Sayyid Qutb, Islamic law regulates the actions of both the individual and the
community by establishing boundaries for each entity, rather than affording one (the individual) with a
significantly higher proportion o f rights against the other (the community). The freedom o f the individual
should not be allowed to encroach upon the general welfare of the whole society. Thus, he asserts that “the
regulations lay down the rights of the community over the powers and abilities of the individual; they also
establish limiting boundaries to the freedom, the desires, and die wants o f the individual, but they must also be
ever mindful of the rights of the individual, to give him freedom in his desires and inclinations; and over all
there must be the limits which the community must not overstep, and which the individual on his side must not
transgress....Islam does not overlook the needs and the welfare of the society, nor does it forget the great
achievements of individuals in life and society...” See Sayyid Qutb, “Social Justice in Islam,” in Islam in
Transition: Muslim Perspectives, eds. John J. Donohue and John L. Esposito (New York: Oxford University
Press, 1982), 126.
This is not to imply that Islam does not place a great deal o f importance upon the individual and recognize
his/her individual rights. This is true, for “Islam, like the other higher religious systems, sought to reform the
social order and liberate the individual from lingering traditions that had subjected him to the group" yet “Islam
did not deal with ‘human rights' merely as individual rights, but as rights of the community o f believers as a
whole (Q. m , 106).” Khadduri, Islamic Conception o f Justice, 233.
55 Donnelly argues, however, that grievances emanating from those representing the position o f traditional
societies are compromised by die rapid deterioration of such societies. He claims, “Even most rural areas have
been substantially penetrated, and die local culture ‘corrupted,’ by foreign practices and institutions ranging
from the modem state, to the money economy, to ‘western’ values, products, and practices. In the Third World
today, more often than not we see dual societies and patchwork practices that seek to accommodate seemingly
irreconcilable old and new ways. In other words, the traditional culture advanced to justify cultural relativism
far too often no longer exists. In particular, com m unitarian defenses o f traditional practices usually cannot be
extended to modem nation stales and contemporary nationalist regimes.” See Donnelly, “Cultural Relativism
and Universal Human Rights," 411.
56Ann Elizabeth Mayer, “Current Muslim Thinking on Human Rights,” in Human Rights in Africa: Cross-
Cultural Perspectives, eds. Abdullahi an-Na’im and Francis Deng (Washington, D.C.: The Brookings
Institution, 1990), 148.
dignity, to basic human values, traditional and modem alike. In the Universal
Declaration we can see a set o f rights formulated to protect basic human - not
merely cultural - values against the special threats posed by modem
institutions.57
Traditional Islamic society was able to achieve and preserve balance between its members in
accordance with its traditional infrastructure. The reconfiguration of society, however, has
created potentially damaging predicaments that require legal safeguards to guard against the
negative consequences o f these modem intrusions.
The acknowledgement of the Western origin of modem human rights standards and
laws does not compel an-Na‘im to assert their inability to respond to non-Westem societies.
He cautions that Muslims (and others) should distinguish between the dominance of the
West and the universality o f international standards of human rights.s8 He holds that it
would be detrimental to dismantle these institutions in favor o f starting again from a more
inclusive platform.59 It is an-Na‘im’s contention that the current human rights standards are
to be maintained as universally valid because they reflect the normative framework of a
common human experience reflected in the realities o f globalization and expanding state
37Donnelly, “Cultural Relativism and Universal Human Rights,” 415.

38 Abdullahi an-Na‘im, “Toward an Islamic Reformation: Responses and Reflections,” in Islamic Law Reform:
Challenges and Rejoinders, eds. Tore Lindholm and Kari Vogt (Oslo: Norwegian Institute o f Human Rights,
1993), 113-114. Mayer responds to the rejection of modem human rights standards and institutions of
demonstrable value by stating, “Some M uslims who are opposed to international human rights principles -and,
indeed, to any ideas that come from the West - would tend to support the idea that die farther an “Islamic”
position diverges from modern, Western norms or the more it resembles the views propounded by pre-modem
Islamic jurists, the closer it comes to representing authentic Islamic doctrine. However, looking for what is
maximally opposed to Western norms has not normally been die method U9ed in the Islamic legal tradition as the
way to measure the validity of competing interpretations of Islamic requirements!” See Mayer, “Current
Muslim Thinking On Human Rights,” 145.
39 Abdullahi an-Na'im, “Problems of Universal Cultural Legitimacy for Human Rights,” in Human Rights in
Africa: Cross-Cultural Perspectives, eds. Abdullahi an-Na‘im and Francis Deng (Washington, D.C.: The
Brookings Institution, 1990), 355. Moreover, he says, “I would therefore make the existing bill the foundation
of future efforts to establish cultural legitimacy for human rights by interpreting the current provisions and
developing an appropriate literature sensitive to the need for cultural legitimacy.” He proceeds one step further,
insisting upon using die foundations provided by the current models as a platform to build a more truly universal
substantive set of human rights standards, which he believes is still needed.
21
power, occurring in every part of the world today, which leads him to assert, “The human
rights idea is too powerful and popular now for any government to oppose openly.
International human rights laws have not been impervious to conflict with the
Islamic legal system. The scholarly debate surrounding this topic exceeds purely legal
resolutions and addresses difficult questions that remain hotly contested. The dogmatic
assumption that modem international human rights laws, representing Western principles,
are the final and ultimate position concerning the affairs o f every individual is redolent of
cultural imperialism and the imposition o f Western-inspired ideals. When these laws
directly encounter, oppose, and then seek to influence the Islamic social, political, and
religious reality, they issue an audacious value judgment that presents their position as the
only valid standard, challenging a system that has its own vision of human rights affirmed
by God in the Qur’an,61 and as Riffat Hassan declares, “Rights created or given by God
cannot be abolished by any temporal ruler or human agency.”62 Yet to understand and
property investigate the incongruity o f the two systems and then initiate a resolution to this
discord, an inquiry into classical Islamic law is crucial.
“ Abdullahi an-Na‘im, “Human Rights in die Muslim World: Socio-Political Conditions and Scriptural
Imperatives," Harvard Human Rights Journal 31 (1990): 16. According to Mayer, “The universal declaration
has, since its adoption by the UN General Assembly, achieved great international renown as an authoritative
statement o f the modem standards of human rights protections and is die single most influential international
human rights document Acknowledging that there is not full academic or political consensus regarding the
authority o f aspects of the International Bill of Human Rights, one can nonetheless maintain that they are
representative, if perhaps not ultimately definitive, statements of what a broad segment of international opinion
believes that human rights entail. In addition, because o f the general recognition of their validity in state
practice - in which they are commonly treated as governing legal standards - many provisions of the bill have
achieved the statute of customary international law and, as such, are binding on states regardless of whether they
have ratified the individual conventions.” Mayer, Islam and Human Rights, 18.
61 For further discussion of the purely Islamic viewpoint pertaining to human rights, see Khalid M. Ishaque,
“Human Rights in Islamic Law,” International Commission o f Jurists Review 12 (1974): 30-39; Ali Abdel
Wahid Wafi, “Human Rights in Islam" Islamic Quarterly 2 (1967): 64-73.
62 Riffat Hassan, “Religious Human Rights and the Qur’an,” Emory International Law Review 10,3 (1997): 83.
The articulation of human rights emanating from the Islamic perspective achieves its legitimacy from God (as
opposed to a presumptuous humanity), as Iana’il al-Faraqi avers, “The human rights and obligations which
Islam recognizes constitute a humanism in which man is not the measure o f all tilings as Protagoras had thought
God, or His will, is indeed such a measure.” See Isma‘il al-Faruqi, “Islam and Human Rights," Islamic
Quarterly 27 (1983): 20.
22
B. The Classical Sharp a
The most salient aspect o f Islamic law is its dependence upon a transcendental
authority.63 This naturally places it in opposition to any other legal system that professes no
association whatsoever with the Divine and yet assumes a position of superiority, as secular
international law does. How does a Muslim approach his existence when it is sharply
divided between divine law and man-made, Western-inspired laws? The character of the
divine nature and the extent o f its presence in traditional Islamic law elucidate the
relationship between God’s eternal law and the jurist’s understanding and formulation of
that law. The presentation o f Islamic law as a legal system that is informed by divine
guidance but actually articulated by jurists divests it of an impenetrable armor encasing an
indisputable and rigid law that does not change and thus cannot be reformulated nor
reconciled with modem society and human rights laws. However, parts o f the law are not
merely juristic speculation but clear and direct commands from God, explicitly stated in the
Qur’an and not subject to human interference or alteration. An assessment of the
limitations to modification within the classical Islamic legal methodology indicates the
degree o f reformulation required. The methodological tool o f aaskb is discussed at some
length since it is the lynchpin o f an-Na’im’s methodology.
1. The S h an ‘a versus Fiqb
An-Na‘im’s methodology o f reform presupposes an understanding of classical Islamic
law that carefully depicts what is divine law and what is a human approximation of the
63 Fazlur Rahman addresses the consequences that can arise out of a legal system that is so closely associated
with die Divine. “The fact that no real and effective boundaries were drawn between the moral and the strictly
legal in Islamic law must have also contributed to the fact that law was regarded as immutable. But this
argument can be pushed loo far and would not hold good for the early, creative phase of Islamic law.” Fazlur
Rahman, Islam (Chicago: University of Chicago Press, 1979), 116.
23
divine law. This is wbat distinguishes the Shari‘a, the eternal will and law of God, from
Bqh, the juridical opinions o f the jurist concerning that law.64 When the two aie confused, a
deification of human interpretation arrests the law, sanctifying it and impeding its flexibility
and any proposals for change. Orientalist scholarship has contributed to the creation o f the
artificial symbiosis of the two, as exemplified by Noel J. Coulson in his Introduction to
Islam ic Law.
In contrast with legal systems based upon human reason, such a divine law
possesses two major distinctive characteristics. Firstly, it is a rigid and
immutable system, embodying norms o f an absolute and eternal validity, which
are not susceptible to modification by any legislative authority. Secondly, for
the many different peoples who constitute the world o f Islam, the divinely
ordained Shari‘a represents the standard of uniformity as against the variety of
legal systems which would be the inevitable result if law were the product of
human reason based upon the local circumstances and the particular needs of a
given community.65
By insisting that everything emanating from the legal system is the final dictate o f God and
not an extrapolation o f the law from a divine source (the Qur’an), any attempt to adjust or
64 An-Na'im, “Towards and Islamic Hermeneutics,” 238-239. In response to this, Fazlur Rahman stales, “If the
test of the distinction between secular and religious law is that the former is man-made while the latter is God-
made, then classical Muslim law is already largely secular for it is clearly the work of Muslim jurists.” Fazlur
Rahman, “Islamic Modernism: Its Scope, Method and Alternatives,” International Journal o f Middle East
Studies 1 (1970): 332.
<s Noel J. Coulson, Introduction to Islamic Law (Edinburgh: Edinburgh University Press, 1964), 4-5, 7, 8.
Coulson recognizes that this rigidity of the law clashes with die demands o f modem society and posits that
modem reformers have been forced to reinterpret die theory of the law saying, “In its extreme form legal
modernism rests upon the notion that the will of God was never expressed in term s so rigid or comprehensive as
the classical doctrine maintained...” However, this position maintains that the classical jurists themselves and
the theory they produced conceived of law as “imposed from above and postulates the eternally valid standards
to which the structure of state and society must conform” and not as “...shaped by the needs of society; its
function to answer social problems,” which is the modernist position and the position of this paper. See also
idem, Conflicts and Tensions in Islamic Jurisprudence (Chicago: The University o f Chicago Press, 1969). This
conception of the traditional theory of Islamic law has led scholars to posit that there was a split between die
theory and practice of the law. For further discussion emanating from this perspective and one that is far more
obdurate, see Joseph Schacht, Introduction to Islamic Law; idem, “Problems of Modem Islamic Legislation,”
Studio Islamica 12 (1960): 99-129, and finally, Schacht's criticism of Coulson’s slightly more accommodating
posture regarding the rigidity of Islamic law, in Schacht, “Modernism and Traditionalism in a History of Islamic
Lam," Middle Eastern Studies 1 (1965): 388-400.
24
revise is excoriated and vitiated as an affront to God by man.66 The precarious balance
between the revelation itself and an interpretation o f that revelation is destroyed when there
no longer is a differentiation between the two, resulting in a delicate situation to which
J.N.D. Anderson responds, “to a Muslim, it has always been a far more heinous sin to deny
or question the divine revelation than to fail to obey it.”67 In other words, depending upon
how closely one identifies the opinions of the jurists with the text itself a Muslim might
construe the laws governing his/her temporal existence as the final and ultimate directive of
God, any infringement o f such would be tantamount to heresy.68 One explanation for the
confusion surrounding the definition of Shari’a is offered by Muhammad Sa’id al-
‘Ashmawy:
Shari‘a is defined as Islamic law as it has been interpreted by the religious

scholars; Shari’a is mainly man-made and not divine, as is often
alleged.... [T]he greater part o f what is considered Shari‘a is not what has been
revealed in the Qur’an, but what the scholars have determined are legal rules
based on their interpretation of Qur’anic texts. The original meaning of
46 Rahman, Islam, 115-116. The scholar describes the difficulty of differentiating and then approaching/fyA and
the Shari'a, saying, “But, surprisingly, little attempt was made to rethink and reformulate the actual body offiqh
- the earlier attempts at actual legislation by the representatives o f the four schools of law. For this the main
reason seems to be that this law was looked upon as flowing necessarily from the principles of the Qur’an and
the Sunna and was further consecrated by Ijma’." However, he later attributes the restriction of the concept of
the Divine Law and subsequent assault upon the prestige of the Shari’a legists with a growing rigidity in the
classical system itself (the infamous “closing the gate of ijtih id and subsequent adherence to taqfid, or
imitation). This theory has been proven inaccurate by Wael B. Hallaq who shows that until colonization the
classical Islamic legal institution did not hold this understanding of the law and was certainly not rigid because
o fit See Hallaq, “Was the Gate o f Ijtihad Closed?” International Journal o f Middle East Studies, 16 (1984): 3-
41. Thus, it is modernity that has created die conception of the classical system’s inability to suffer change.
67 Anderson, Law Reform, 36. Anderson contends that the power o f ijma’ (consensus) proved to bestow such
force upon a commonly accepted doctrine or opinion as to render it “an authoritative indication of the divine
wilL” Ijma' renders certainty upon probability which in turn renders judgments irrevocable. This certainty
would assist in consecrating a single opinion as the only interpretation and thus the divine law itself. For the
classical juristic justification and meaning of consensus, see Wael B. Hallaq, “On the Authoritativeness of Sunni
Consensus,” International Journal o f Middle East Studies 18 (1986): 427-454.
68 An example of the reluctance to touch what is perceived of as the Shari’a, but which is to a large extentfiqh,
is the first forays into modem reform, whereby “at that time it seemed to them [the reformers] preferable to keep
the Shari’a intact and inviolable (as die perfect law which had at one time, they believed, held absolute sway and
which would no doubt come into its own again in the golden age which would eventually dawn), even if this
meant excluding vast sections of it from the hurty-burty of everyday life in favour of legislation of wholly
different origins-forced upon them, as they felt, by the exigencies of the modem worid-rather than to submit the
sacred law to any profane meddling with its immutable provisions.” Anderson, Law Reform, 35.
25
Sbari'a, as path, method, or way, was lost after the first generation o f Muslims,
and over time it came to mean the legal rules themselves rather than “the way”
to conduct a good Muslim life.69
It is with this definition in mind that we speak o f the traditional or classical Shan‘a: a blend
o f divine and human interaction indicative o f an organic relationship between the Qur’an
and human beings. Such an understanding accounts for the reality o f an historical
development o f change within the classical Shan'a, as well as encourages and promotes
modem thinkers to fieshly examine the divine sources to elicit interpretations more in tune
with modem exigencies, a process that emulates the activity o f the classical jurists
themselves.70
The classical composition o f the Islamic legal structure accommodates change first
and foremost in its embodiment o f both methodology (usul al-fiqb)11 and substantive laws
(fu r u \ Usui al-Gqb is the theoretical and philosophical foundation for the law, providing
the optimal mechanisms and process for the jurist to derive what he perceives as the closest
approximation to the actual will o f God contained in the Qur’an and Sunna. The
methodology is inalienable from the law, given that laws are not legislated by man but God,
requiring man to discover the Qur’anic position through rnul al-Gqb. For as Bernard Weiss
explains:
69 Carolyn Fluehr-Lobban, ed.. Against Islamic Extremism: The Writings o f Muhammad Sa 'id al-Ashmawy,
(Gamsville: University Press of Florida, 1998), 18*19. For another articulation of this concept see Ahmad Zaki
al-Yamani, “The Eternal Shari1*,” Mew York University Journal o f International Law and Politics 12 (1979):
205-212. In this article the author distinguishes between the non-binding Shan’a, which is comprised of the
juristic enterprise, and the binding Shari’a, which is confined to the principles of the Qur’an, Sunna, and ijma'.
For an interesting discussion regarding die conception offiqh and shan'a informed by social history and die
impact of such a conception upon theory and practice, see Aziz al-Azmeh, “Islamic Legal Theory and the
Appropriation of Reality,” in Islamic Law: Social and Historical Contexts, ed. Aziz al-Azmeh, (London:
Routledge, 1988): 250-265.
/0 This will be more fully developed in the last chapter concerning historical context and hermeneutics.
71 For a detailed assessment of historical formulation of theories that comprised traditional usul sl-tiqh see
Hallaq, Islamic Legal Theories.
26
The distinction between law and its sources is carefully maintained in Islamic
Jurisprudence. This distinction assumes that the Holy Law, as the aggregate of
divinely-ordained rules, is not entirely self-evident from the sacrcd texts. If it
were, the sacred texts would not be the sources o f the law, but rather the Law
itself; they would constitute a divinely given code o f law.72
The classical concept o f the methodology clearly guards against any intimation that the
divine law itself is clearly given to humanity, for then an active methodology deriving the
law would be superfluous.
Since revelation is considered all-inclusive (everything can be found either directly, or
indicated by God, in the Qur’an which leads to the discovery o f the law), Muhammad Ibn
Idris al-ShifiH (d. 204/820) affirms that both positive law and the methodology for deriving
that law must lie in the divine texts.73 Human beings are the agents employing that
methodology and it follows that their experience in society and the lens through which they
understand their religion colors their use of the methodology and the resultant rulings.
Hence, the various ideas and uses o f the methodology as well as the extensive body of
juristic disagreement- (ikbtiliJ) pertaining to legal rulings indicate a vibrant and dynamic
relationship between God, man, methodology, and law. Wael B. Hallaq confirms this
disposition o f the Islamic legal system:
All other cases [those not subject to ijm i\ however, are open either to a fresh
interpretation or reinterpretation. Those open for fresh interpretation are novel
cases (naw izit, sing, aazila) that befall the Muslim community, and they are
considered to be infinite in number. Those open for reinterpretation are older
cases o f law for which the jurists proffered one or more solutions, but on which
no consensus has been reached. The latter group of cases falls within the scope
of juristic disagreement (k h iliG y y itik h tilif) and may therefore be subject to
new ways o f legal reasoning.74
72 Bernard Weiss, “Interpretation in Islamic Law: The Theory of Ijtibid," American Journal o f Comparative
Law 26,2 (1978): 199.
73Hallaq, Islamic Legal Theories, 22.
74Ibid., 82.
27
Hallaq’s comment is noteworthy because it demonstrates the profusion of opinion
surrounding the juristic enterprise o f discovering the law. The one and only law may not
have been discovered, but a law was discovered based upon legal reasoning and
interpretation.75 Moreover, the law that was discovered for a particular case was a practical
solution to a legal problem reflective o f a certain age and society.
This latter feature o f classical Islamic law is vitally important for the re-evaluation
o f the understanding o f the ability of Islamic law to address its immediate socio-historical
context and accommodate change. It is even more decisive, as Baber Johansen expresses,
“that the jurists consider their legal training as a tradition-in-change that ought to be
constantly reinterpreted and in which it is as important to preserve the early forms as it is to
adapt the tradition itself to new conditions.”76 Upon recognition o f the vitality of the law, it
no longer remains entrenched in historical shackles nor is it conceived o f as a religious ideal
utterly detached from actual reality, but is regarded as a juristic interpretation that is acutely
attuned with the vagaries o f time and the conditions of society. The principal actor in this
enterprise is the jurisconsult (m ufti) using the methodology (o siil al-Gqb) to issue a legal
opinion (fatwa) that contains the legal ruling that is incorporated in the body of substantive
75 A fundamental element of the Islamic legal system, which ensures continuity and consistency within the law,
is the establishment of the authoritative opinion, emerging from the wealth of juristic opinions. This
authoritative opinion is formulated considering the needs and requirements of the present society, thus allowing
for its later replacement by another authoritative opinion responding to ensuing societal fluctuations. For the
development of this process, see Wael Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge:
Cambridge University Press, 2001), chapters 5 and 6.
76 Baber Johansen, “Legal Literature and the Problem of Change: The Case of the Land Rent,” in Islam and
Public Law, ed. Chibli Mallat (London: Graham & Trotman, 1993), 47. In this article the author demonstrates
that change is an essential element of Islamic law. However, it is not a radical disposal o f old solutions but a
juxtaposition of different solutions to one and the same problem, while legitimating the introduction of new
legal doctrine in judicial practice. This is accomplished by the classical jurists who refer to the social and
economic conditions in the formulation of their opinions.
28
law (furu<).77 This process occurs within the accepted view of the classical jurists that the
law must be commensurate with the nature o f the society, which encompasses both new
7ft
laws and a re-evaluation o f a previously established authoritative doctrine. Hallaq
expounds this dictate:
It was commonly held that the particular circumstances of the m ustafli must
always be taken into consideration and that changing conditions justify
changing certain rules so as to bring them into conformity with the current
needs o f the society in question. In issuing his fatw is, RamG reportedly
referred to the doctrines that had been modified or “corrected (sabbaba) by the
major jurists of the school on account of the changing times or on account of
the changes that the conditions o f people have u n d e r g o n e ”( / a - a / i f a ‘auba... bi-
ma sabbababu kibaru abb' al-madbbabi li-ikbtilafi a l-‘asri aw U-tagbayyuri
abwabal-aas).19
The standard legal doctrine, expressed in the furv\ is continually updated and reflective of
the many interpretations and opinions offered by the jurists, all concerning their respective
societies and its particular needs. The methodological tool exercised by the human agent in
this process, ijtibad, will now be examined, as well as the role of naskb in this effort.
2. Ijtib a d and Naskb
Usui al-Bqb is the mechanism for extracting the law from the texts that contain it.
The process o f extracting legal rules from the sources o f the law depends upon a human
authority (the jurist) employing the methodological principles and procedures in his
instrumentation of ijtibad, which literally means “endeavor” or “self-exertion”, and in
Islamic legal methodology refers to the formulation of a legal rule based on evidence found
77 Wael B. Hallaq, “From Fatwas to Furu1-. Growth and Change in Islamic Substantive Law,” Islamic Law and
Society 1 (February 1994), passim. For a detailed example of this process see idem, “Murder in Cordoba:
Ijtihad, Ifti’ and the Evolution of Substantive Law in Medieval Islam,” Acta Orientalia, 55 (1994): 55-83,
wherein the author shows that ijtibad was practiced in later centuries via the fatwi, which then was incorporated
in the furu' and subject to die acceptance or rejection by the jurists.
^Hallaq, Authority, Continuity and Change in Islamic Law, 214.
79Hallaq, “From Fatwis to FtmFT 53.
29
directly in the sources.80 Hallaq presents a fitting metaphor by the Shafi‘ite jurist Ghazafi
(d. 505/1111):
In his M ustasfa, Ghazafi depicts the science o f legal theory in terms o f a tree
cultivated by man. The fruits o f the tree represent the legal rules that
constitute the purpose behind planting the tree; the stem and the branches are
the textual materials that enable the tree to bear the fruits and to sustain them.
But in order for the tree to be cultivated, and to bring it to bear fruits, human
agency must play a role.81
The jurist is the cultivator who breathes life into the legal process and whose activity
sustains the relationship between human society and divinely inspired laws, giving meaning
to this exercise.
Weiss contends that “ijtibad roughly corresponds to what in Western jurisprudence is
called ‘interpretation.’”82 One must be careful to distinguish between interpretation and
invention, for ijtibad is not a way by which the jurist creates legal rules after consulting the
texts, rather it is an attempt to formulate rules which God has already decreed and are
concealed in the sources, as Weiss affirms, “These rules, which constitute the ideal Law o f
God, exist objectively above and beyond all juristic endeavor.”83 Moreover, since these
divine rules and principles are not immediately known and thus demand the hermeneutical
exercise o f the jurist, the outcome can only promise probability since it is an opinion of the
jurist and what he thinks to be the law of God.84 The opinion o f the jurist may be
authoritative but it is not absolutely definitive, for as an opinion it is subject to error. This
is not to diminish the weight o f the opinion of the jurist, for in a legal system that posits the
80 Weiss, “Interpretation in Islamic Law,” 200. This is in contrast to taqSd which is “the acceptance of a rule,
not on the basis of evidence (daHt) not found in the sources, but on the authority o f other jurists.”
81 Hallaq, Islamic Legal Theories, 117.
82 Weiss, “Interpretation in Islamic Law,” 200.
“ Ibid., 200.
84 Ibid., 203.
30
possibility o f error, that opinion is decisive.85 What is most important about the role of
ijtibad in the Islamic legal methodology is that it recognizes, in no uncertain terms, the
substantial and significant human element in the formation o f law, concretely presented in
the furu1, that govern the affairs o f the mundane world.
The concept o f ijtibad, as nurtured within the methodological structure, ensures that
the jurists engage in an ongoing and never endingstruggle to discover the inexhaustible law
o f God, those principles which remain suspended just above the certainty o f the jurist.86
Moreover, since it is a device o f hermeneutics, it necessarily is influenced by the experiences
o f the jurists applying it. The jurists will approach the sources from assorted perspectives
that rely upon historical and social considerations, and then derive laws that fit the
circumstances. For the ability o f a principle to be eternal and valid for all time, it must be
able to provide the material for a number of different and varied applications. The systemof
Islamic law invites what Hallaq caUs “an ijtibadic pluralism,” that is “an epistemological
element that was integral to the overall structure of the law.”87
While the methodology and law itself accommodates a great deal o f interpretation
and change due to its derivative character and the nature o f ijtibad,\ it does so within an
epistemological framework in which the difference between what is probable and what is
certain is o f paramount importance. And since the law is textually based, this epistemology
is articulated in a linguistic methodology that determines the nature of the texts, be they
85 Ibid., 205.
86 For the definitive statement regarding the continuity of the ijtihad and the negation of any closing of its gate
see Hallaq, “Was the Gate of Ijtihad Closed?” and idem, “On the Origins of the Controversy about the Existence
o f Mujtahids and the Gate o f Ijtihad” Studia Islamica 63 (1986): 129-141.
87 Hallaq, Authority, Continuity and Change, 194. The author further elaborates upon the manner in which this
pluralism was controlled in order to produce consistency through the elaboration of an authoritative doctrine.
ambiguous or unambiguous, general or particular.88 The presumption o f the classical jurists
is that the language in the Qur’an is straightforward and their usage is real (haqlqa) rather
than metaphorical.89 It follows that great attention is accorded to a literal interpretation of
the Qur’an and the Sunna.90 This literal interpretation is facilitated by clear and definite or
unambiguous texts (nass, pi. nusus). Their meaning is so clear that it produces certitude in
the mind o f the jurist, obviating the need o f discovering a different meaning. In other
words, they are self-sufficiently clear and the certainty engendered by their clarity
disqualifies them from reinterpretation.91 The realm of ijtih id ic activity does not enter their
purview since these texts are seen to unambiguously state the legal rules pertaining to an
individual legal case. The implications of this are immediate, for the traditional
methodology leaves the rulings of these texts alone as objective statements by God
concerning certain matters. To engage in any human effort o f interpretation disrupts the
certainty o f those texts and the literal reading o f them.
This literal approach to the texts taken by the jurists encounters some friction when
two or more texts offer differing rulings regarding a particular case. If the jurists are unable
to harmonize them due to the severity o f their contradiction, then the jurists must have
recourse to abrogation (naskb), determining which text repeals the other.92 It must be said
that naskb is a complementary tool o f rnul al-Bqb and is not a central instrument for
deriving laws. It does, however, facilitate the legal process by removing the confusion and
consternation that arises with two competing texts. Jurists employing ijtibadmv& i be aware
“ For a detailed analysis of this aspect of usuIat-Dqh see chapter two of Hallaq, Islamic Legal Theories.
89Ibid., 42.
90 Ibid., 207.
91 Ibid., 117.
92 The Qur’anic support for abrogation is derived from verse 2:106: “Any message which We annul or consign
to oblivion We replace with a better or a similar one.”
32
o f those texts that have been subject to aaskb, and are not allowed to produce a ruling from
an abrogated text.93
Naskb does not abrogate the text itself for that would encroach upon the
inimitability o f the Qur’an and would imply that God had revealed conflicting or
contradictory texts, leading to an admission that one was false and that God had revealed an
untruth, a proposition that is inconceivable.94 For most jurists then, it is the ruling behind
the text that is repealed and not the text itself.95 In this case, it must be determined that the
two rulings are genuinely in conflict and cannot coexist.96 Since the Qur’an is believed to be
o f divine authorship, it follows that all verses are equal in importance and authority and
none better than others. The legal rulings behind those verses, however, can be judged to be
more appropriate to a particular context, resulting in one overruling the other. The criterion
for determining which verses are to abrogate others is chronological and thus later texts
abrogate earlier ones.97
Defining aaskb can be difficult, yet the classical jurists have developed two
prevailing meanings. The primary and more literal definition, accepted by the majority of
93 Majid Khadduri, tr., Islamic Jurisprudence: 5Aa/77’sA/sa/a (Baltimore: Johns Hopkins Press, 1961), 79.
94 Hallaq, Islamic Legal Theories, 69.
95 It is noted, however, that there are three distinct ‘modes’ of naskb. naskb al-bukm wa-Ltilawa, which is the
suppression of both the ruling and the wording of the Qur’an, naskb al-bukm duna-I-ulawa, which is the
suppression of the Qur’anic ruling without suppressing the text, and naskb aktilawa dma-Ubukm, which is die
suppression of the verse while retaining the ruling. The first and last inodes are not dealt with in the body of this
study as only a minority of jurists espouses their usage. See John Burton, The Sources o f Islamic Law: Islamic
Theories o f Abrogation (Edinburgh: Edinburgh University Press, 1990).
96 Mohammad Hashim Kamali, Principles o f Islamic Jurisprudence (Cambridge: Islamic Texts Society, 1991),
161. A close examination of the two competing texts may indicate that there is no real conflict and that, instead,
a specific text actually qualifies and compliments a general text. In this instance, abrogation is not the most
appropriate tool and the jurist should resort to the exercise of specification (takbsls).
Hallaq, Islamic Legal Theories, 69. Kamali emphasizes the importance of chronology in this endeavor,
affirming that “in naskh it is essential that die abrogator (al-nadkb) be later in time than the ruling which it
seeks to abrogate. There can be no naskh if this order is reversed, nor even when the two rulings are known to
have been simultaneous.” Sec Kamali, Principles o f Islamic Jurisprudence, 161.
33
# the jurists.98 renders aaskb as ‘obliteration’ (al-raT wa al-izalab). The Shafi‘ite jurist Fakhr
al-Din al-Razi (d. 606/1209) articulates this position by referring to the expression, nasakhat
al-rib al-atbar ‘the wind obliterated the traces’ and, according to John Burton, al-Razi
concludes that “the traces quite cease to exist (‘d in), just as in the expression aasakbat al-
sbams al-zill[the sun eliminated the shade], the shade quite ceases to exist and it does not
recur in some other location to give rise to any suggestion that it had migrated thither
(intiqat)....In the two illustrations of secular usage, the wind did not take the place of the
traces, nor did the sun take the place o f the shade.”99 Following this definition, the
application of naskb upon a text causes its ruling to be totally removed and legally
expunged.
The other commonly applied definition o f naskb is that o f ‘replacement’. In order
to circumvent the danger o f possibly engaging in acknowledging the mutability o f the divine
will, al-Nahhas (d. 338/9S0) specifically defines naskb as “referring to something that had
previously been permitted, but has now become forbidden, or vice versa, due to God’s desire
to improve the situation o f His worshippers.” 100 In this sense, abrogation does not require a
change in God’s will but elucidates His recognition o f changing circumstances that warrant
new and better instructions, entailing not the cancellation of a rule in the Shari‘a but the
discontinuance of the obligation that is dependent upon it.101 The act of replacing one
98Kamali, Principles o f Islamic Jurisprudence, 149.

99 Burton, “The Exegesis of Q. 2: 106 and the Muslim Theories of Naskh: M iNaasakb Min Aya A q Nansabi
N a’ti B i Kbauin M inbi A w M itbU bi”Bulletin o f the School o f Oriental and African Studies 48 (1985): 455.
The author relates that to emphasize and legitimize his rendering of naskh as meaning ‘nullification' (ibtil,), al-
Razi employs the Qur’anic verse 22:52, yansakb allib m iy u iq l al-sbaitm ‘God eradicated (azila) and nullifies
(yubtil) what the Devil insinuates', whereby he “insists that the stem nskh refers solely to ib til‘nullification’.”
100 David S. Powers, “The Exegetical Genre nisikb al-Qur’m wa-mansukbub,” in Approaches to the History o f
the Interpretation o f the Qur'an, ed. Andrew Rippin (Oxford: Clarendon Press, 1988), 124.
101 Ibid., 127. A variation upon this type of abrogation is referred to as badi’ naskb, or the abandonment of
something that had been firmly determined. Al-Nahhas qualifies it as “the abrogation of a prohibition or
command that God had meant to apply only during the lifetime of a certain prophet, or during a certain period of
34
co m m and with another implies that the occurrence o f abrogation must be accompanied by a
different and better verse.1(0 Shafil states that if the Qur’an abrogates an imposition, it is
always followed by another revealed in its place: “Thus God has informed men that the
abrogation or the deferment of any communication cannot be made valid save by another
[Qur’anic] communication.” 103
The great scholar Tabari (d. 310/922) also refers to the meaning o f aaskb as
replacement and infuses a progressive development and gradualism into its definition.104 He
emphasizes the concept o f the transfer o f an obligation imposed upon the Faithful, rather
than the complete eradication o f the previous obligation:
The term aaskb is derived from nasakba al-kitab - its transfer from one
exemplar to another, different exemplar (auskba). The aaskb o f a ruling means
its transfer (tabwil) from one legal category to another. God moves the ruling
from category to category by transferring (aaqt) what He had said about the
ruling in an earlier utterance into a later, different utterance, touching the same
topic and ruling....The newly-revealed ruling by which the ruling o f the earlier
verse has been replaced (mubdal) and to which the obligation imposed upon
men is now transferred (aaql) is the n isjk b .106
time, knowing from (be outset that this hukm paw or ruling] would remain in force until such a time as
circumstances changed, and a new hukm would be required.” This type of naskh indicates that some jurists
perceive o f the rulings by God as particular to temporal circumstances o f a certain age and time and that they
may not be appropriate forever. Thus, later texts with rulings that contradict earlier ones address an audience
later in time in a different context in which the former ruling may not be suitable, but do not explicitly and
unequivocally denounce the earlier ruling.
102 Burton, “Exegesis of Q. 2: 106,” 454. Al-Qurtubi (d. 671/1272) advances the meaning of naskh as
‘supersession’ (tabdlf) by quoting the exegete and Arab philologist Ibn al-Faris’s (d. 395/1004) definition:
“(T]he repeal o f a command hitherto acted upon; one replaces it with a second command. For example, a
Qur'an verse revealed to convey a specific regulation is naskhed - Le. supplanted and replaced by another
command.”
103 Khadduri, Islamic Jurisprudence: S b iG l's Risila, 125. Kamali remarks that Shall‘l does not regard naskh
as a form of annulment UIgba) but rather “a suspension or termination of one ruling by another. Naskh in this
sense is a form of explanation (bayan) which does not entail a total rejection of the original ruling. Naskh is
explanatory in the sense that it tells us of the termination of a particular ruling, the manner and the time of its
termination, whether die whole of a ruling or only a part of it is terminated, and of course, the new ruling which
is to take its place.” See Kamali, Principles o f Islamic Jurisprudence, 152.
104 An example of such progression involves the gradual prohibition of wine, whereby the Qur’an offers a
number o f verses that eventually lead to its total prohibition, rather than an initial, wholesale prohibition.
105Burton, “Exegesis of Q. 2. 106,” 458-459.
35
Tabari’s statement indicates that God does not eliminate the former ruling but transfers
what He had said about that ruling into a later, different utterance touching upon the same
issue. The second ruling alters or replaces the first ruling through a divine transfer of
obligation.106
While aaskb does not challenge the text o f the Qur’an, it exemplifies a concern of
the jurists with texts that seemingly offer contradictory rulings, a problem resulting from a
literal reading o f the Qur’an. As we have seen, a great deal o f juristic disagreement
surrounds the meaning and usage o f naskb, ranging from the absolute dismissal o f a ruling to
the more lenient and less finite position that recognizes the prior ruling as having been
replaced by a later and seemingly better obligation. This latter position proposes that a
ruling that was suitable at one time in a certain context may not be appropriate during a
different time. Furthermore, in the classical understanding of the law, what is better or
worse, and thus legally applicable, is confirmed through chronology, which provides a
systematic and logical regulation o f perceived inconsistencies.
The classical methodology o f the Islamic legal system sustains an active and
effective apparatus readily responding to social variations, encouraging change and
modification within the body o f its substantive laws. However, the rapport between law and
society ultimately is tempered by the establishment of authoritative doctrines,107 as well as
106 Ibid., 460, 462. Tabari interprets verse 2: 106 as, “Whatever verse We alter (taixGI) having revealed it to
you, We suppress {nubtify its ruling while We retain its wording in the musbaC or whatever verse We defer
(jw 'akbkbirba, autji 'hi sc.endorse), We do not alter (tagbyii) nor suppress (outfit) it, We shall bring one better
than it, or similar to it” He then explains its meaning as, “The ruling may be better for you in this life, on
account of its being easier to perform, where a previous obligation has been withdrawn, relieving you of the
more difficult performance. For example, it had once been obligatory for the Muslims to engage in lengthy
nocturnal prayers (Q. 73: 1). They were relieved of that burden (Q. 73: 20). That is an instance in which the
nasikh was better for them in this life.”
107 Hallaq, Islamic Legal T h e o r ie s 208-209. The author describes the necessity of such a normative
mechanism for the consistent application of legal doctrine saying, “The most efficient method developed and
effectively harnessed in regulating the profession from within was a self-imposed criterion of what type of legal
36
those literal and definite texts in the Qur’an that are largely unaffected by societal
movements and through their certainty, contribute both to stability and a degree of
conservatism within the law. An examination o f these areas pertaining to women, non-
Muslims, and criminal justice elucidates their significance, scope, and impact within the
classical Shari’a as well as their functioning capability and practicality within modem
society and their level o f cohesion with international human rights laws.
doctrine was deemed admissible and what was not Each school of law came to recognize a set of canonical
works produced by, or attributed to, its founding fathers. With the passage of time, and with the cumulative
evolution of legal doctrine, some works by later authors acquired a canonical status, though in theory they were
never equal in prestige to those of the founding lathers... Preserving this system of control was positively
crucial for the efficiency, to say nothing of the survival, of the pre-modem legal structure. Simply put, without
it, no law coukl be properly administered."
37
Chapter Two
Areas of Contention
An-Na‘im proceeds from the premise that the Muslim peoples of the world are
entitled to exercise their right to self-determination which includes the application of
Islamic law, if they so desire, “provided that they do not violate the legitimate right of self-
determination o f individuals and groups both within and outside the Muslim
communities.”108 He then declares that the classical Shari‘a violates this condition which
leads him to reject its implementation in modem society by proclaiming that it cannot
coexist with international human rights laws because it promotes discriminatory109 legal
edicts and attitudes.110 For example, Article 7 o f the Universal Declaration o f Human
Rights states:
All are equal before the law and are entitled without any discrimination to
equal protection o f the law. All are entitled to equal protection against any
discrimination in violation o f this Declaration and against any incitement to
such discrimination.
Any form o f discrimination that threatens the legal equality o f the citizens of a state is
clearly denounced by this and other international documents.111
108Abdullahi an-Na‘im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law
(Syracuse: Syracuse University Press, 1990), 1.
109 Ibid., 166. An-Na‘im asserts, “The principle of non-discrimination does not preclude all differential
treatment on grounds such as race, gender or religion, hi this respect, I would agree with the proposition that
one has to judge the nature of differential treatment in light of its purpose. ‘If the purpose or effect is to nullify
or impair the enjoyment of human rights on an equal footing, die practice is discriminatory.’ What is being
affirmed here is that discrimination on grounds such as gender and religion violates human rights.” The author
uses the definition o f discrimination found in Vernon Van Dyke, Human Rights, Ethnicity and Discrimination
(Westport: Greenwood Press, 1985), 194.
110An-Na‘im, Toward an Islamic Reformation, 8-9.
111 Further emphasis is afforded by the Charter of the United Nations in Article 55, Section C, which commits
the United Nations to promote “universal respect for, and observance of, human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion.”
38
An-Na‘im asserts that while the classical Sharia may have been justified by its pre
modem historical context, it is no longer justified in or sustained by the context of present-
day society.112 Many difficulties have been generated by the reality of the nation-state and
the mentality that it has engendered. According to an-Na‘im, “If the nation-state is to
conform to the standards o f constitutionalism, as I believe it should, it must guarantee equal
rights of citizenship for its entire population, such as equality before the law and equal
participation in the government o f their own country.”113
The laws he regards as objectionable in the corpus o f the classical Shari‘a are not
confined to Sqh but extend to clear statements in the Qur’an. The areas of contention that
are the focus o f this chapter are the status o f women, the position o f non-Muslims, and the
role and character o f criminal justice within an Islamic state. An examination o f these
sections o f the classical Shari‘a elucidates his criticisms and measures the validity o f his
indictments against the suitability of Islamic law in modem society.114 Since an-Na'im
accepts and recognizes the nation-state as a reality of modem domestic and international
organization and the body o f international law produced by the United Nations as the most
adequate manifestation o f supranational governance, a comparison of the traditional Shari'a
and the modem human rights laws as articulated in the Universal Declaration of Human
112An-Na'im, Toward an Islamic Reformation, 170.

m Ibid., 7.
114
The counter-argument, articulated by Bassiouni, claims that the two legal systems are compatible. He says
“nothing in Islamic international law precludes the applicability o f these international obligations [of the UN] to
the domestic legal system o f an Islamic state,” but he completes his sentence with the condition, “provided these
obligations are not contrary to die Shari'a.” He further conveys tension between the two and his ambivalence
with another condition, namely “nothing in the spirit of Shari'a precludes the recognition of these rights. It is in
their application that Shari'a law would differ from other legal systems (emphasis mine).” This statement,
however, draws the line between the moral (spirit) and legal (application) dimensions of the law. See Bassiouni,
“Sources of Islamic Law, and the Protection of Human Rights in the Islamic Criminal Justice System,” in The
Islamic CriminalJustice System, ed. M. CherifBassiouni (London: Oceana Publications, Inc., 1982), 41.
39
Rights (UDHR)11S will illustrate the tensions and conflicts between the two legal entities
that he argues must be addressed and resolved through the radical reform of traditional
Islamic law.116
A. Women
An-Na‘imdoes not denounce the whole o f the Shan‘a as having a negative impact on
the status and rights o f women. He forthrightly asserts that in the early years of its
promulgation, it legally guaranteed women many rights and advantages that other legal
systems achieved only recently.117 An-Na‘im offers a qualifying remark and states, “These
theoretical rights under Shari'a, however, may not be realized in practice. Other Shari‘a
rules may hamper or inhibit women from exercising these rights in some societies.” 118 He
finds that these initial rights and laws do not address the modem role of women in society
and while they may have been progressive in their time, they now obstruct further
development and advancement.
115 I will draw primarily from this document but I will also lode at other international human rights treaties
formulated by the United Nations.
116Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder Westview Press. 1991), 83.
The author contends there are two aspects in the Islamic tradition, “one egalitarian and the other hierarcha!,’' and
“much depends on which aspect of the Islamic heritage, the hierarchal or the egalitarian, is taken to be more
truly representative of Islamic values.” In Islam, the best person is the most pious person, yet there are explicit
legal verses that challenge such moral equality. See Rahman, Major Themes o f the Q ur’an (Minneapolis:
Bibiotheca Islamica, 1994), Chapters Two and Three. It must be recalled that an-Na’im distinguishes between
criticizing the traditionally formulated Islamic law and Islam itself. Principles of equality and a fundamentally
egalitarian philosophy are inherent to Islam and present in the Qur’an, but he contends these are found in the
Meccan verses. The Medinan verses, from which the classical laws are derived, contain discriminatory legal
rulings that are no longer applicable, and through his methodology, are to be legally discarded (see Chapter
Three). It is not sufficient to proclaim that equality is guaranteed on a religious and inherently human level
while allowing for temporal, societal, and legal inequalities to exist, affecting daily life. Thus, this chapter is
concerned with the controversial body of legislation of the traditional Shari’a that «n-Na‘im claims promotes
discrimination.
117 An-Na’im, “Human Rights in the Muslim World,” 39. For example, the Shari’a guaranteed women a legal
personhood, allowing diem to own and dispose of property on equal footing with men, minimum rights in
divorce, and inheritance rights.
1,8 Ibid., 40.
40
The four areas concerning the status o f women that will be addressed are testimony,
marriage and divoice, inheritance, and the impact o f qawitna, which can be translated as
guardianship, maintenance or authority. The first three subjects provide explicit Qur’anic
legislation, while the last concept offers not an explicit ruling, but, according to an-Na‘im,
provides the classical jurists with the basic material from which a variety o f discriminatory
laws, practices, and attitudes result. The Qur’anic verse 4:34 provides for the principle of
qa warns and reads: “Men have qawama (guardianship and authority) over women because
they (men) spend their property in supporting them (women).”119 According to an-NaMm,
the classical jurists take this verse to sanction the exercise of authority by men over women
but never women over men, because “men as a group are the guardians o f and superior to
women as a group, and the men of a particular family are the guardians o f and superior to
the women o f that family.” 120 The notion that women cannot hold authority over men is
made legally binding by disqualifying women from holding general public office,121 which
extends to their disqualification from holding any judicial office whatsoever, excepting the
Hanafi madhhab which allows women to be judges in civil cases only.122 Moreover, an-
119 An-Na‘im. Toward an Islamic Reformation, SS. The translation of this verse is controversial and the one
quoted above is offered by an-Na‘im. In Muhammad Asad, The Message o f the Qur’an: Translated and
Explained (Lahore: Maktaba Jawahar ul uloom Publishers and Distributors, Beginning of the 15thCentury of the
Hijra), 109, the author translates 4:34 as: “Men shall take foil care of women with the bounties which God has
bestowed more abundantly on the former than on the latter, and with what they may spend out of their
possessions” Rahman gives yet another translation of the verse as: “Men are in charge of women because God
has given some humans excellence over others and because men have the liability of expenditure (on women).”
Rahman, Major Themes, 49. While these translations may differ, they all distinguish a division of roles
premised upon gender that confers a station of maintenance of men upon and over('ala) women.
An-Na'im, “Human Rights in the Muslim World,” 37. The classical reference that an-Na'im cites is the
medieval ‘afim, commentator, and historian Ibn Kathir (d. 774/1373).
121 Ibid., 37-38 (nl05). An-Na'im cites the Malilrite jurist and commentator al-Qurtubi.
122An-Na'im, Toward an Islamic Reformation, 88. The Ilanafi position reasons that since women are accepted
as competent witnesses in civil and commercial transactions (albeit with limitations), they may act as judges in
similar cases.
41
Na‘im asserts that this verse enforces notions of women’s inferiority that are ingrained in
the attitudes and mentality o f both men and women from early childhood.123
An investigation into the verse and its pertinence to the traditional society it
addresses offers insight into the verse’s legal function and illuminates the nature o f the
authority the verse lends to men, as well as assesses it’s relevancy in today’s society. The
historical economic disparity between men and women may have been taken for granted at
the time, but it is this financial relationship that dictates the parameters o f authority given
to men. This authority, however, is conditional and this conditional state is reflected in a
number o f ways. As Rahman states, regarding verse 4:34, “This shows that men have a
functional, not inherent, superiority over women, for they are charged with earning money
and spending it on women.” 124 The privilege of authority is granted so long as men are
financially responsible for women. Reciprocally, a woman is charged with obedience in
return for financial maintenance {aafaqa), the husband necessarily providing adequate
material sustenance as loag as the woman is obedient.125 Social harmony, which is of
123 An-Ni'im. “Human Rights in the Muslim World,” 39. This posture can be corroborated with the same verse,
4:34, whereby the verb faddala (preferred) refers to the preference of men over women (“Men are [qawwamuaa
Wi) women, [on the basis] of what Allah has [preferred] (faddala) some of them over others...”), as well as
verse 2228 which concerns divorce and ends: “but, in accordance with justice, the rights of the wives [with
regard to their husbands] are equal to the [husbands’] rights with regard to them, although men have precedence
over them [in this respect].” The conservative rendering of these verses legitimizing the exemption of women
from holding public positions of authority can be found in the work of Suftanhussein Tabandeh. According to
him women are deficient in the intelligence needed for tackling big and important matters; they are prone to
making mistakes and lack long-term perspective. For this reason, they must be excluded from politics.
Sultanhnssein Tabandeh, A Muslim Commentary on the Universal Declaration o f Human Rights (London: F.T.
Goulding and Co., 1970), 31. Likewise, Abu’l A'la Mawdudi holds that women lack firmness, authority, strong
willpower, and the ability to render unbiased, objective judgment Abu’l A’la Mawdudi, Purdah and the Status
o f Women in Islam (Lahore: Islamic Publications, 1979), 120. For a detailed discussion concerning these verses,
see Amina Wadud, Qur'an and Woman: Rereading the Sacred Text from a Woman’s Perspective (Oxford:
Oxford University Press, 1999), 62-90.
124Rahman, Major Themes, 49.
123 Asaf Fyzee, Outlines o f Muhammadan Law ( Oxford: Oxford University Press, 1974), 212; Muhammad Abu
Zahra, “Family Law,” in Law in the Middle East: Origins and Development o f Islamic Law, eds. Majid
Khadduri and Herbert Liebesny, (Washington, D.C.: Middle East Institute, 19S3), 143; Dawoud S. El Alami.
The Marriage Contract in Islamic Law (London: Graham & Trotman, 1992), 114-118. El Alami provides two
cases in which maintenance may be forfeited or suspended: disobedience (nushui), or “withdrawing of
paramount concern for the jurists, is thus promoted by establishing gender harmony, which
is realized through the maintenance/obedience dynamic within marriage. Judith Tucker
remarks, “What was owed and what could be expected structured much o f this discussion as
the material aspects o f the marriage arrangement were implemented.”126 The objective o f
such an arrangement between man and wife is to guard against discord in the institution o f
marriage that could then lead to greater social disarray, since marriage is seen as the
fundamental and basic unit o f social organization and the recipe for social harmony.127 In
other words, bestowing authority upon the male in the marriage union creates a desirable
state within that relationship, an accepted equilibrium between the roles and duties o f men
and women that directly contributes to a cohesive and smoothly running society for all its
members.128
The legal edifice constructed by the classical jurists that regulated the affairs o f men
and women was responsive to the needs of a society functioning according to that scheme o f
gender differentiation within the relationship. As Tucker observes, “The idea that such net
differentiation ran the risk of fostering hostilities, o f producing social rifts if not outright
obedience to the authority of the husband” as long as this authority is “in no way offensive to God” or apostasy
of the wife. The Hanifite jurist Al-Quduri (d. 428/1037) says, “Support has to be given by the husband to his
wife, be she a Muslim or an unbeliever, provided she submits herself to him in his house.” Mukhiasar, 34-35,
cited by Herbert J. Liebesny, The Law o f the Near and Middle East (Albany: State University o f New York
Press, 1975), 132.
126Judith Tucker, In the House ofthe Law (Berkeley: University of California Press, 1998), 52.
127Ibid., 40.
128 Ibid., 66. Tucker illustrates the nature of the marital relationship envisioned by the classical jurists, saying,
“The rights and obligations of a married couple heightened and ordered gender difference. A man was to
provide; a woman was to consume. A man was to decide; a woman was to obey. The task of the legal thinker
thus was not only to distinguish the male from the female, but also to elaborate on distinctly gendered rights,
many of which privileged men but some of which worked to temper male dominance. As part of their
responsibility for the welfare of the community, the muftis were pledged to harmonizing gender interests as
much as possible and reducing what they termed abuses.” Following this line of thought, Amina Wadud equates
the degree of superiority o f the man with the importance of child-bearing for the woman, hi order to balance
society and establish an equilibrium between die functions of men and women, die heavy responsibility of child
bearing must be countered by an equally significant responsibility for men, and this is manifest in qiwim th,
“seeing to it that the woman is not burdened with additional responsibilities which jeopardize that primary
demanding responsibility dial only she can fulfill” See Wadud, Qur’an and Woman, 73.
43
conflicts along gender lines, lurked between the lines of the legal discourse.” 129 The
question is whether these social rifts that may not have been problematic earlier because of
both the nature of society as well as the adept legal maneuvering of the classical jurists are
now exploding due to changes incurred by modem circumstances. Do the laws that directed
the interaction between men and women that previously dissuaded social discord now
undermine stability? Bernard Weiss details the necessary conditions for the cohesive
application of Islamic law:
Only the patriarchal extended family can function with optimal effectiveness
as the cradle and safe haven of human life. Any restructuring of the family
along other lines can be said most assuredly to be contrary to the spirit of
Islamic law. Family life requires a hierarchy in which females and children are
under the authority o f males, although males must exercise that authority
responsibly and with kindness. Males are endowed with the mental and
physical qualities that suit them for this role. The same qualities that make for
success in earning a livelihood in the world outside the family equip males to
provide leadership and direction within the family.130
This social vision animated the classical jurists but is now breaking down. The expanded
integration and assimilation o f women into the economic sector131 as well as their
prominence in political and public affairs (and a subsequent accommodation by society of
their presence in these areas) have bluiTed clearly defined roles for men and women. The
imprint o f secularism upon Muslim communities, according to an-Na‘im, has increased
women's access to public life and provided opportunities for higher education and
129Ibid., 66.
130Bernard Weiss, The Spirit o f Islamic Law (Afheus: The University of Georgia Press, 1998), 144*46.
131 S.D. Goitein, in his examination of Cairene society in the High Middle Ages (tenth through thirteenth
centuries) through the Geniza documents, concludes that the extent of women’s participation in the economic
life in that traditional society was minimal since her share in it was restricted. The author explains that “she was
not in the mainstream of the economy - the large-scale production and exchange of goods. Moreover, a married
woman, so far as she did not possess means outside the common pool of the nuclear family, depended entirety
on her husband, and, in his absence, on his male relatives, even her own sons, or his business partners or
friends.” See SX>. Goitein, A Mediterranean Society: The Jewish Communities o f the Arab World as Portrayed
in the Documents o f the Cairo Geniza, Vol. Ill: The Family (Berkeley: University of California Press, 1978),
331-332.
employment.132 The scope o f male guardianship has diminished though the reduction o f
physical protection needed by women from individual men, this responsibility having been
appropriated by the state.133 The physical dominance of men is no longer relevant where the
rule o f law prevails over physical strength and all criminal activity (that threatens the
family) is punished directly by the state. These circumstances have largely contributed to
the realization and reality o f changes to the patriarchal organization o f the society and the
family. An-Na‘im argues that the legal authority given to males is no longer applicable and
avers:
Because this (the security and economic dependence o f women over men) is no
longer the case in a society in which both men and women are dependent for
their security on the rule o f law and women are, as a general rule, more capable
of being economically independent, the rational o f qaw im a has been
repudiated in practice.
Thus, he argues that the conditional quality of the verse, charging men with financial
responsibility in return for women’s obedience, must be reassessed through a re-evaluation
o f the practices o f men and women today. If in a relationship, the conference o f authority
upon one partner and charge of obedience upon the other is no longer considered valid or
necessary for the preservation of social balance (a result o f a reconfiguration of roles,
responsibilities, and the meanings attached to them) and no longer accepted by one or both
132 An-Ni‘im, Toward an Islamic Reformation, 8. Rahman reasons, “if a woman becomes economically
sufficient, say by inheritance or earning wealth, and contributes to the household expenditure, the male’s
superiority would to that extent be reduced, since as a human, he has no superiority over his wife.” See
Rahman, Major Themes, 49.
133 The charge o f protection upon the male is reflected in the criminal justice system of the classical Shari’a as
well (another indication o f the highly integrated and balanced nature of Muslim society and law) through the law
of penal retaliation (qisis). When fee security of fee family is endangered (by a murderer, for example) it is not
fee state feat initiates public prosecution but, under the rubric of lex talionis, fee male agnates ( 'iqila) decide
how to deal wife such an offence in their capacity as fee guardians of fee family. See Weiss, Spirit o f Islamic
Law, 152-54.
134An-Na’im, Toward an Islamic Reformation, 99-100.
45
parties involved, it can be seen as creating a negative asymmetry that impinges upon the
equality of the two.135
In respect to international law, legal authority vested in men which allows them certain
public privileges over women contradicts Article 21, Sections 1 and 2 o f the UDHR:
(1) Everyone has the right to take part in the government o f his country,
directly or through freely chosen representatives. (2) Everyone has the
right of equal access to public service in his country.136
These statements entail the recognition o f the equal participation o f men and women in the
public domain. The classical position o f the Shari'a that legally restricts the public
participation ofwomen was sustained by historical, sociological, and political justifications,
which an-Na'im dismisses as no longer defensible today.137 He draws upon international
legal documents, such as the one cited above, as well as the altered relationship between
men and women (influenced by economic, social, and political movements), to support his
position that the classical rulings supported by qaw im a are discriminatory and inimical to
the achievement of equality between the sexes.
The nature of a woman’s testimony offers another complication for an-Na'im. In the
classical Shari'a women are not regarded as fully competent witnesses, as Muslim men are.
133 Tucker, House o f the Law, 70. In discussing the classical discourse on marriage, Tucker remarks that “men
and women came to marriage as distinct people with asymmetrical rights and obligations reflecting innate
biological difference. On such difference lay the foundation for a stable and harmonious relationship, one that
was central to the overall good of the Muslim comm unity. The jurists, in their recognition and elaboration of
gender difference, did not, however, countenance practices that translated this difference into unbridled male
domination. The legal discourse existed, in large put, to regulate gender relations, to ensure that both males and
females understood the proper parameters of their social roles, and to prevent abuses in gender relations, most of
which occurred at die women’s expense.” Asymmetrical rights and obligations were not contestable as long as a
division o f roles and a concurrent understanding could be maintained. Contemporary society has dislodged the
clarity between gender roles, jeopardizing the effectiveness o f the traditional understanding of die parameters of
these roles and the law that comfortably accommodates it.
136 In Article 7b of die Convention on the Elimination of AD Forms of Discrimination Against Women
(CEDAW) it ensures that women are able “to participate in the formulation of government policy and the
implementation thereof and to hold public office and perform all public functions at all levels o f government.”
This also found in Article 25a and b of the International Covenant on Civil and Political Rights (ICCPR).
137An-Na‘im, Toward an Islamic Reformation, 88.
which restricts their testimony in a number o f ways. In criminal cases testimony from a
woman is inadmissible.138 Muhammad Iqbal Siddiqi explains this prohibition:
Al-Zuhri says, “During the time o f the Holy Prophet (peace and blessings o f
Allah be upon him) and his two immediate successors, it was an invariable rule
to exclude the evidence o f women in all cases inducing punishment or
retaliation,” and also because the testimony of women involves a degree of
doubt, as it is merely a substitute for evidence, being accepted only where the
testimony o f men cannot be had. It is, therefore, not admitted in any matter
liable to drop from the evidence of doubt.139
While the exclusion o f women from testifying in criminal punishment is based upon Hadith.
it is closely related to and affected by the explicit Qur’anic provision in verse 2:282
regarding testimony that states:
And call upon two of your men to act as witnesses; and if two men are not
available, then a man and two women from among such as are acceptable to
you as witnesses, so that if one o f them should make a mistake, the other could
remind her. And the witnesses must not refuse [to give evidence] whenever
they are called upon.
This verse explicitly states that two women witnesses (where otherwise there would be one
man)140 are acceptable and necessary. It is the jurists, then, that regard a woman’s
testimony as acceptable in all cases excepting those o f criminal punishment. The
explanation for this exclusion is due to the severity of the punishments and stringent
138 An-Na'im, Toward an Islamic Reformation, 90; Matthew Lippman, Sean McConviUe and Mofdechai
Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (New York: Pracgcr, 1988), 61.
Furthermore, the Malikite jurist al-Qayrawanl (d. 386/996) says, “The testimony of women is not admitted
except in property cases.” Risile, 260-265, cited by Liebesny, The Law o f the Near and Middle East, 247.
However, the opinion held by the ?ahirite jurist Ibn Hazm (d. 456/1062) contends that women (two women for
each man) can testify in cases of adultery (and presumably all other criminal p unishment cases due to the
seriousness with which adultery is perceived). See Ma'amoun M. Salama, “General Principles o f Criminal
Evidence in Islamic Jurisprudence,” in The Islamic Criminal Justice System, ed. M. Cherif Bassiouni (London:
Oceana Publication, Inc., 1982), 118; and also Safia M. Safwat, “Offences and Penalties in Islamic Law,”
Islamic Quarterly 26 (1982): 157, where the author presents a Sh? ah opinion similarto Ibn Itaon’s.
139Muhammad Iqbal Siddiqi, The Penal Law o f Islam (Lahore: Kazi Publications, 1979), 44^5.
140 Lippman, Islamic Criminal Law, 61. Al-Qayrawam states, “A hundred of them count for as many as two of
them. Two women equal one man. The judge can thus decide on the basis of the testimony of one man and two
women or of two women and the oath of the plaintiff in cases where this method of proof is admitted....” Risila,
260-265, cited by Liebesny, Law in the Near and Middle East, 247.
standards o f proof.141 Generally, however, the competence o f women in all matters of
testimony is mitigated by the Qur’anic injunction that establishes a legal disproportion
between men and women.
Modernist explanations have been proffered for this law and revolve around its
function as pertaining to financial issues only. Muhammad Asad, in his commentary of the
Qur’an, insists that the stipulation in no way implies a deficiency in a woman’s moral or
intellectual capabilities, but, “as a rule, women are less familiar with business procedures
than men and, therefore, more liable to commit mistakes in this respect.” 142 Rahman places
this statement in a historical context, whereby women in pre-modem societies were not
accustomed to financial transactions, but upon becoming conversant in such matters, “with
which there is nothing wrong but which is for the betterment o f society,” the rationale for
the law would be rendered void, invalidating the law, thus permitting their evidence to be
equal to that o f men.143 Now, however, the increasing participation ofwomen outside ofthe
home and their assimilation into previously male-dominated domains affords them with an
141 Siddiqi, The Penal Law o f Islam, 45. Siddiqi stales that “the Imam Shaft*! has said that the evidence of one
man and two women cannot be admitted, excepting in cases that relate to property, or its dependencies, such as
hire, bad, and so forth; because the evidence o f woman is originally inadmissible on account of their weakness
of understanding, their want of memory and incapacity of governing, whence it is that their evidence is not
admitted in criminal cases.”
142 Muhammad Asad. The Message o f the Q ur’an, 63 (n273). Khadduri, S h ifiT s Rjssla, 246-247. The other
side of this argument is that in cases pertaining to matters that deal with women’s issues (and presumably
women are more familiar with these concerns), the testimony of women is more valid than that of men’s. When
Shaft*! was asked how many witnesses would he require in “cases relating to vices affecting women?” He
replied, “One woman.” However, what has been said of women above may be said about men, in that they
participate more freely in provinces that were formerly relegated to females only.
43 Rahman. Major Themes ofthe Qur'an, 48-49. However, the first wife of the Prophet, Khadija, was known to
have managed her own business and women were actors in business matters during that time, albeit on a lesser
scale. Amina Wadud offers yet another modernist explanation for this ruling, whereby she maintains that the
two women do not equal one man in terms of testimony, but that they each have distinct functions, one is the
witness while die other acts as a corroborator. Furthermore, she asserts that in traditional society women were
easily coerced and forced to disclaim their testimony, but the presence o f two women, supporting each other
formed a united front against such corruption and maintained die integrity of that testimony. Wadud, Qur'an
and Woman, 85-86.
48
equal familiarity and knowledge with men in all matters (not only financial), making two
female witnesses superfluous, and according to an-Na‘im, discriminatory.144
An-Naim holds that the legal right for Muslim men to many non-Muslim women
(but only kitabiyya women, or those who prescribe to a faith with a scripture) accompanied
by the legal prohibition against Muslim women marrying non-Muslim men presents an
inequality between Muslim men and women in the area of marriage.145 No explicit textual
reference prohibits such marriages, rather the proscription is derived from the argument that
verse 4:34 (discussed above) entitles the husband to authority over his wife but since a non-
Muslim cannot exercise authority over a Muslim, this conflict is resolved through the legal
restriction placed upon Muslim women.146 Ann Mayer articulates this justification:
The assumption is that, just as Muslims are placed above non-Muslims, so men
are placed above women, meaning that wives are necessarily subordinated to
• their husbands. Therefore, the Muslim man who marries a female dbim m idoes
not infringe the hierarchy o f status, since by virtue of her sex the non-Muslim
wife will be subordinate to her husband, who as a Muslim and a male ranks
above her on two counts. In contrast, the Muslim woman who marries a
dbim m i violates the rules o f status, since as a wife she has lower status than
144 Moreover CEDAW states in Article IS (2), “States Parties shall accord to women, in civil matters, a legal
capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall
give women equal rights to conclude contracts and to administer property and shall treat them equally in all
stages of procedure in courts and tribunals.”
145 An-Na‘im, Toward an Islamic Reformation, 176; Abu Zahra, “Family Law,” 136; El Alami, The Marriage
Contract, 41-42. El Alami qualifies die permission for a Muslim man to many a kitabiyya by citing the Hanifis,
the MaliIds, and the Shafi'is, all o f whom validate the contract but consider it reprehensible and inadvisable,
while the HanbaGs regard it as permissible.
146 This is established by corroborating verse 4:34 with verse 4:141 that states: “God will never make a way for
infidels to exercise lordship over believers,” negating the exercise of authority by non-Muslims over Muslims
Another explanation for this ruling comes from verse 2221 which instructs: “And do not many women who
ascribe divinity to aught beside God ere they attain to [true] belief: for any believing bondwoman [of God] is
certainly better that a woman who ascribes divinity to aught beside God, even though she please you greatly.
And do no give your women in marriage to men who ascribe divinity to aught beside God ere they attain to
[true] belief: for any believing bondman [of God] is certainly better than a man who ascribes divinity to aught
beside God, even though he please you greatly ” This verse prohibits both men and women from marrying non-
Muslims. But verse 5:5, which allows: “And [lawful to you are], in wedlock, women from among those who
believe [in this divine writ], and, in wedlock, women from among those who have been vouchsafe revelation
before your tim e...” specifies the other verse, allowing men to many non-Muslim women. The specificity of
this verse does not, however, extend to Muslim women and they must continue to adhere to the more general
Qur’anic ruling in this matter.
the man to whom she is married even though by virtue of her adherence to the
Islamic religion she should rank above him.147
Furthermore, this ensures that the Muslim faith o f the woman is at all times respected and
never denigrated by a husband who may not share her belief148and that the children will be
raised in the Islamic faith.
However, if this authority and power of the husband within the marital relationship
no longer exists, and women ate regarded as equal partners with equal authority, then the
rationale no longer is tenable and the law no longer necessary, as an-Na‘im argues should be
the situation in a modem society. Moreover, the UDHR states in Article 16, Section 1:
Men and women o f full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family.
Human rights laws do not permit obstacles to marriage owing to religious differences.
The permission o f polygamy for the Muslim male is another dimension o f family law
that an-Na‘im contends reinforces discrimination against women by allowing men a
privilege denied to women, which further disrupts an equal balance between men and
women. The classical law permitting polygamy is explicitly stated in verse 4:3:
And if you have reason to fear that you might not act equitably towards
orphans, then many from among [other] women such as are lawful to you -
[even] two, or three, or four; but if you have reason to fear that you might not
147Mayer, Islam an d Human Rights, 139.

148 Muhammad Asad, Message o f the Q ur’a n, 142 (nl5). In his commentary, Asad contends that since Islam
enjoins reverence of all the prophets, while die other faiths reject some of them, “a non-Muslim woman who
marries a Muslim can be sure that - despite all doctrinal differences - the prophets of her faith will be mentioned
with the utmost respect in her Muslim environment, a Muslim woman who would many a non-Muslim would
always be exposed to an abuse of him whom she regards as God’s Apostle.” Beyond doctrinal factors, marrying
a man of the same religion could ensure respect for her family, way of life, and ideas due to a common and
shared rcligio-cultural experience. In other words, the family knows and understands whom their daughter is
marrying and he is familiar and comfortable with the ways of his new wife because they are his own. The
importance of promoting marital harmony through commonality is also extended to areas outside o f religion.
Tucker explains that the muftis “were very conscious of the rules of kafa 'a, the legal concept of the suitability of
the match in terms of lineage, legal status, social class, and moral standards, and they chose to enforce them. If
a marriage were to reinforce social harmony, it was important to avoid the instability attendant upon misalliance.
Clearly, the interests of the community would not be served by marriages that appeared to be inherently unstable
because of the disparate backgrounds o f the bride and groom.” See Tucker, House o f the Law, 41.
50
be able to treat them with equal fairness, then [only] one - or [from among]
those whom you rightfully possess.
The classical jurists read this verse as permitting the marriage o f up to four women for
Muslim men, excluding the same for Muslim women. A number o f explanations have been
offered for this verse and its legal ruling149and focus upon the permission, as opposed to the
right, o f polygyny, where the permission is only granted in certain circumstances with
particular conditions.150 One such justification revolves around the material well-being of
women, whereby females need the financial support o f the male, and in the context of
economic calamity, men who are capable should take more than one wife.151 Rahman
contends that the traditionalist position accepts the literal permission of polygamy as having
the legal force, whereas the moral demand for justice is left to the conscience ofthe husband
and is not seen as legal m aterial152 He proceeds to evoke the second part o f the verse
enjoining the just treatment o f all wives which is then corroborated by verse 4:129 which
149
Asad accounts for the permission given to men and not women as recognition of biological considerations,
with Islamic law safeguarding the socio-biological function of marriage. The sexual urge in both women and
men is for procreation, yet a woman can conceive a child from one man only and must carry it for nine months
before conceiving another while a man can produce a child every time he is with a different woman. “Thus,
while nature would have been merely wasteful it if had produced a polygamous instinct in woman, man’s
polygamous inclination is biologically justified.” See Asad, Message ofthe Qur 'art, 101-102 (n4).
30 Rahman asserts that this verse specifically refers to the marriage of orphans (a consequence o f the frequent
wars at the time of the Prophet), the special permission granted for polygamous marriages to orphan girls during
that time in order to protect them against dishonest guardians who mismanaged their wealth. See Rahman,
Major Themes, 47.
151 Wadud, Q ur’an and Woman, 82-84. Wadud also mentions another rationale commonly employed, being the
unbridled lust o f men whose sexual needs cannot be satisfied by one woman. Thus, rather than succumb to the
temptation of adultery, four wives are allowed, and only after the fourth should die principles o f self-constraint
and modesty be exercised. A similar discourse emerges from Tucker, who explains the permission of polygyny
as a form o f sexual license afforded to men corresponding with the jurists’ view of male sexual desire. She
asserts, “The male need for sexual activity and variety was recognized, by the law, in the permission granted to
men to be married to as many as four women at one time - but women were not permitted a parallel privilege,”
but later reflects that “the paucity of discussion suggests that the practice was neither widespread nor much
contested.” See Tucker, House o fth e Law, 151.
152 Ibid., 47-48. Rahman further states that “the truth seems to be that permission for polygamy was at a legal
plane while die sanctions put on it were in die nature of a moral ideal towards which the society was expected to
move, since it was not possible to remove polygamy legally at one stroke.” Asad supports the traditional
position by asserting that the moral or spiritual problem of marriage, “being imponderable and therefore outside
the scope of law, is left to the discretion o f the partners.” See Assd, Message o f the Q ur’an, 101-102 (n4).
stales: “And it will not be within your power to treat your wives with equal fairness.
however much you may desire it,” and thereby declares such justice impossible and through
his emphasis upon the moral com mand (which he affords more weight than the legal
perm ission) the authorization o f polygamous marriages dissolves.133
An-Na‘im rejects the practice o f polygamy and calls for its legal prohibition on
grounds that such a right given to men is discriminatory to women and compromises gender
equality.134 The socio-economic conditions that tempered its incidence133 do not protect
against the potential for its abuse today in a society that may not be able to accommodate
such a practice.136 The emergence of women as producers and reproducers lessens their
financial burden upon men, rearranging the marital relationship so that the man and the
woman share responsibilities and duties. In such an environment of combined and
cooperative effort, the ratio o f four to one does not provide balance or clearly reciprocal
153 Rahman, Major Themes o f the Qur’an, 47. El Alami contends that die classical jurists interpreted justice as
concerning only financial parity among the wives, equating justice and qasm (equity) with “sharing and
spending, not in terms of love and affection as this is not within a man’s power to control.'’ Thus, if a man can
equally provide for all his wives materially, he is fulfilling this obligation. Rahman departs from this position
through his conception of justice as more emotional than economic. See El Alami, The Marriage Contract, 128.
154 The absence of special circumstances, in which polygamous marriages are a solution to a social need,
suggests that it is a luxury and an extravagance and as such is not justifiable when it encroaches upon the value
of equality between man and wife. Historically, it may have been justified during die time of the Prophet, thus
addressing a particular context For example, in die Arabian Peninsula after the Battle of Uhud, the demise of
men wrought by war left a significant number o f widows and orphans needing support It is no surprise that this
verse was revealed shortly thereafter. In this case, polygamy may have resolved population disproportions
incurred by devastation through war within a localized area An inflation of women in need of husbands, at that
time, could also have been a result of the eradication, by Muhammad, of female infanticide. These are
exceptional cases that created an imbalance in that society which polygamy was able to adequately address. In
the absence of such a population difference, polygamy may have an adverse effect upon social organization.
155 S.D. Goitein, A Mediterranean Society, VoL HI, 205. The author’s assessment of the Cairene society leads
him to conclude, “Polygyny or its threat was not a major trouble for wives. By custom, albeit not by law, the
Geniza society was essentially monogamous. Since polygyny was legal, though, it could create situations not
very dissimilar to ‘triangles’ commonplace in modem society, which is so different in law and outlook from that
of Geniza times ”
156 A woman can stipulate in her marriage contract that her husband not take another wife (or specify certain
conditions for such a union). However, without such a provision, the husband conceivably has the right, against
her wishes, to do so, as long as be can uphold die marriage contract, provide each wife with a separate domicile
and financial parity, and equal rights in conjugal visits. Thus, its prohibition is a formal and legal safeguard, in
lieu of explicit contractual provisions and conditions, to ensure drat the rights of the woman are observed. See
El Alami, The Marriage Contract, 128-129; Goitein, Mediterranean Society, Vol. ill, 206.
52
relationships between all parties involved.137 Moreover, the second part o f Article 16,
Section 1 of the UDHR states: “They (men and women) are entitled to equal rights as to
marriage, during marriage, and at its dissolution,’’158 which can be seen to contradict the
husband’s ability to practice polygamy, such a union being antithetical to the establishment
o f equal rights in marriage and the conception o f an equal partnership between spouses.1S9
In the area o f divorce (ta liq ), an-Na‘im finds the differences in the processes for men
and women to be problematic. In classical Islamic law, both men and women have the right
to divorce, but an-Na‘im takes issue with the ease and nature of divorce afforded to men.160
The rules concerning divorce are specified in verses 2:226-32 o f the Qur’an, verse 2:229
specifically stating: “A divorce may be [revoked] twice, whereupon the marriage must either
be resumed in fairness or dissolved in a goodly manner.” 161 Classical Islamic law places the
power o f repudiation in the hands o f men and allows a Muslim man o f sound mind to divorce
157
In the traditional family, the woman is to serve the man for which she is compensated by the husband's
maintenance. As long as the husband can equally maintain each wife and each wife reciprocates through her
service to him, balance can be preserved. However, this system necessitates the gendered division of roles and
responsibilities discussed previously, for upon the departure of one wife from her assigned role, and ensuing
engagement in an activity that elevates her financial position above the other wives, economic inequities result,
disrupting the equilibrium that was maintained in spite of die apparent disproportion.
158This is again articulated in Article 16 (lc) of CEDAW and Article 23 (4) in the 1CCPR.
139Polygamy has been regarded, by some (like the modem Muslim reformer Muhammad ‘Abduh), as producing
more harm than good, acting as a deterrent to familial harmony by creating jealousy and anger amongst wives (a
result o f the more independent nature of women who challenge the authority of their husbands). This is contrary
to die purpose of marriage in Islamic law, discussed above, which is harmony and stability. If polygamous
marriages do foster more discord than amity, such unions would then imperil the greater good of society. See
Helmut Gitje, The Qur’an and Its Exegesis, bans. Alford Welch (London: Routledge and Kegan Paul Ltd.,
1979), 249-250, for a translation of 'Abduh’s exegesis concerning this topic and also Malcom Kerr, Islamic
Reform: The Political and Legal Theories o f Muhammad 'Abduh and Rashid Rida (Los Angeles: University of
California Press, 1966), for a study on the impact o f‘Abduh on modem legal reform.
160 It must not be forgotten that the fundamental principle of marriage is that it is permanent and that it is meant
to endure. Thus, Islam sets forth strong denouncements against divorce, casting it in the most abominable light
as a last resort if the situation between man and wife becomes insufferable. The Prophet is reported to have said,
“Of all the permitted things divorce is the most abominable with God.” Thus, it is permitted as a matter of
necessity for the avoidance of greater harm caused by the misery two people. See K.N. Ahmed, The Muslim
Law o f Divorce (New Delhi: Kitab Bhavan, 1978), 3.
161 There are three types of repudiation allowed to men; the abssa form, or better one, which is the most
approved and is revocable, die basmt ( or sunna), or approved form, which is permissible and revocable, and the
bida ‘a, or new form, which is not approved and is irrevocable. For more information on this topic see Ahmed,
Law o f Divorce, passim; Fyzee, Outlines ofMuhammadan Law, Chapter Four, and Abu Zahra, “Family Law,”
146-153.
his wife whenever he wants and he is not forced to assign any cause to his decision. If a
Muslim woman seeks a divorce, she has to petition the court, offer a legitimate reason,163
and rely upon the decision o f the male q id l.16* This is justified by the financial
responsibility o f the husband to the marriage, whereby he made an advance payment on the
dowry, furnished the house, and incurred many other expenses. Muhammad Abu Zahra
explains, “If the wife could divoice him on her own responsibility he would lose all that he
had spent on her. It is therefore necessary for the q id ilo intervene in order to ascertain that
she has requested a divorce because she has been wronged.” 165 There are two ways a woman
can be granted a divorce without the intervention ofthe qi<G, but they are contingent upon
the approval ofthe husband. Divorce through payment (k h u lallows the woman to buy her
divorce, which necessitates his consent and a return (compensation) passing from the wife to
the husband.166 The other is a delegated divorce (talaq al-ta/w id) in which the husband has
the power to delegate to his wife (or another party) his right of divorce.167 This is normally
drawn up as a condition in the marriage contract upon the approval and agreement o f the
162 Fyzee, Outlines o f Muhammadan Law, 150. The author further states, “In law, it signifies the absolute power
which the husband possesses of divorcing his wife at all tunes.” Tucker affirms divorce as a male prerogative
and explains, “Quite simply, a man could divorce (tallaqa) his wife at any time, in any place, and for any or no
reason.” This is assuming that he is in a sane and rationid state, for any pronouncement of divorce by a man not
in his right mind is not recognized by the law. See Tucker, House o f the Law, 87.
1)0 Legitimate reasons may range from impotency or insanity to baldness (Malilu madhhab) or in the opinion of
the Mililcite jurist Ibn Rushd (d. 595/1198) as well as some Hanbalite jurists, bakhr (very foul smell) is a
ground for divorce. See Ahmed, Law o f Divorce, Chapter Fifteen.
64 Mayer, Islam and Human Rights, 112. The author states, “except in the doctrines ofthe Maliki school of law,
a woman must meet difficult requirements before she can obtain a divorce from a judge over her husbands
objections.”
165Abu Zahra, “Family Law,” 147.
166 Fyzee, Outlines o f Muhammadan Law, 163. This financial compensation is not obligatory and a consensual
khul' divorce may proceed without this payment. Interesting^, in the words of al-Quduri, it is still die man who
divorces the woman in this arrangement, “If there is discord between the spouses and they are loath to transgress
the prescriptions of Allah, it is not wrong if the wife buys her freedom from her husband by means of something
of value. He then divorces her through khul' .” Mukhtasar, 118-121, cited by Liebesny, Law in die Near and
Middle East, 135.
167 The jurists employ verse 33:28, in which the Qur’an permits the Prophet to empower his wives to choose
either him or a separation, to support this type of divorce.
husband, but he can grant this right to his wife anytime during the marriage.168 In this
sense, she divorces her husband with his consent (or, as Fyzee states, “pronounces divorce
upon herself’),169 demonstrating that she is empowered by her husband to issue this
divorce.170
An-Na‘im objects to the classically formulated laws on divorce and finds that they
do not reflect an appreciation o f mutuality and equality between a husband and wife. Again,
the financial situation o f women today rescinds an obligation to the husband that would
allow him to exercise greater authority in the area of divorce. Moreover, women ate
perceived not as subjects o f marriage, but as willing and full partners, which qualifies them
for an equal responsibility in reconciliation as well as divorce.171 Furthermore, the limited
rights to divorce that classical Islamic law does afford to women are always subject to the
arbitrariness of either a judge or a husband, and are not absolutely guaranteed. Amina
Wadud assesses the continuance ofthe laws o f divorce:
Again, this consideration o f repudiation is clear in view ofthe practices as they

existed at the time o f revelation, and not only for Muslim marriages. There is
no indication that the unilateral right to repudiation needs to be continued, or
if continued, that it need be only for the husband. Although the Qur’an
stipulates conditions for equitable separation or reconciliation, it does not
make a rule that men sAouIdh&ve uncontrolled power of repudiation. Men did
168Abu Zahra, “Family Law,” 147.

169 Fyzee, Outlines o f Muhammadan Law, 158. This statement indicates that it was not recognized that a man
would be divorced, only a woman.
170 Ahmed, Law o f Divorce, 209. The author clarifies, “The Muslim jurists hold that the husband possesses the
power to divorce his wife at any time he likes. He may exercise the power to dissolve the marriage by Himself
or he may appoint an agent to exercise the power on his behalf. He can, therefore, authorizes his wife to
exercise the power on his behalf When the wife dissolves the marriage, she does not exercise the power in her
own right but merely as an agent of the husband.”
171 Wadud, Qur'an and Woman, 79*80. Wadud em phasizes the reciprocal partnership between wife and
husband as well as moral guidance (but not legal enactments) offered by the Qur’an in terms of fairness in
divorce, recalling verse 4:128: “And if a woman has reason to fear ill-treatment from her husband, or that he
might turn away from her, it shall not be wrong for the two to set things peacefully to rights between
themselves; for peace is best, and selfishness is ever-present in human souls,” as well as verse 4:231 which says:
“And so, when you divorce women and they are about to reach the end of their waiting-term, then either retain
them in a fair manner or let them go in a fair manner. But do not retain them against their win in order to hurt
[them]: for he who does so sins indeed against himself.”
with permission o fth e copyright owner. Further reproduction prohibited without permission.
55
have this power, over which the Qur’an places conditions and
responsibilities.172
Moreover, Article 16, Section 1 o f the UDHR, cited above, clearly declares that men and
women ate entitled to equal rights “at its dissolution.” 173 The legal entitlements granted to
men concerning divorce in the classical Shari’a are inconsistent with human rights laws that
conceive o f both actors in a marriage as possessing the same legal capabilities and recourses.
The explicit textual allocation o f inheritance in the Qur’an provokes an-Na’im’s
censure as he cites that “a woman receives less than the share o f a Muslim man when both
have equal degree o f relationship to the deceased person.”174 The laws o f inheritance are
formulated in verses 4:7-11 and 4:176,175 with the provocative statements in 4:11:
“Concerning [the inheritance of] your children, God enjoins [this] upon you: The male shall
have the equal of two females’ share” and in verse 4:176: “and if there are brothers and
sisters, then the male shall have the equal o f two females’ share.” The doubling o f shares for
the male is not the only divisional arrangement, for the Qur’an specifies a number of
inheritance options that consider parents, siblings, and distant relatives,176 yet the specific
allotment o f twice the shares given to the male exists among the ofispring, and where
inheritance must be divided between men and women, men receive more than women.177
172Ibid., 80.
This provision is further enforced in Article 16 (lc) in CEDAW and Article 23 (4) in the ICCPR.
175 The laws of inheritance ate complex and detailed and this study can only present the areas that an-Na'im
argues to be discriminatory against women. For a detailed discussion of inheritance see Liebesny, Law o f the
Near and Middle East, Chapter Seven; Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon
Press, 1964), Chapter 23.
176 For example, if there is only one female child, her share is half the inheritance. In another instance, two-
thirds of the inheritance must be divided between two daughters if there ate no sons.
177 Al-Qayrawam asserts, “The wife’s share in her husband’s estate is a quarter if he does not leave a child or a
child of a son. If he leaves a child or a child of a son, be it the wife’s ofispring or that of another, the widow’s
share shall be one-eighth. The husband’s share in his wife’s estate is one-half if she does not leave a child or a
child of a son. If she leaves a child or a child of a son, be it the husband’s ofispring or that of another, the
husband’s share is a fourth. If there are a son and a daughter, the share of the son is equal to that of two
56
In considering the rationale behind the unequal shares given in favor o f sons, it has
been argued that when the daughter marries she receives a dowry from the husband, and the
apparent inequality in inheritance actually then results in a real equality.178 Another
explanation is again economically motivated, suggesting that since the male is legally
obligated to financially maintain not only his wife, but his children (including widowed or
divorced daughters and infirm sons) and divorced wives during their waiting period
( ‘idda),m he needs the larger inheritance. On the other hand women, who are not
financially responsible, do not necessitate the same amount o f inheritance, for they can
spend the money in any way they like strictly for themselves. In fact, if they were to receive
equal shares, the societal balance would be disrupted and create economic upheaval.
Does this rationale apply today? As has been stated, women are no longer
exclusively dependent upon men for financial support and stability. Many women are
economically independent and can financially contribute to the family. The modem nation
state has assumed a substantial degree of financial responsibility to all o f its citizens,
relieving men o f this material obligation and largely changing the social landscape. 180
Wadud presents a modem scenario:
daughters. This rule applies no matter what the number of sons and daughters....” Risala, 176, cited by
Liebesny, Law o f the Near and Middle East, 175-176.
178Rahman, Major Themes, 51.
179Fyzee, Outlines o f Muhammadan Law, Chapter Seven.
180 National programs provide economic assistance to downtrodden women and men. This function of the state
is enforced in the UDHR Article 22 which assigns the state to provide maintenance of its citizens, men and
women alike, “Everyone, as a member of society, has the right to social security and is entitled to its realization,
through national effort and international co-operation and in accordance with die organization and resources of
each State, of die economic, social and cultund rights indispensable for his dignity and the free development of
his personality.” Moreover, many companies must compensate women during maternity leave, liberating
women from financial dependency during this time if they are employed. Article 10 (2) of die International
Covenant on Economic, Social and Cultund Rights (ICESCR) affirms, “Special protection should be accorded to
mothers during a reasonable period before and after childbirth. During such period working mothers should be
accorded paid leave or leave with adequate social security benefits.”
57
For example, if in a family o f a son and two daughters, a widowed mother is

cared for and supported by one o f her daughters, why should the son receive a
larger share? The Qur’an does not elaborate all possibilities. However, by
providing a variety o f scenarios, it is clear enough that many combinations can
and do exist, which must be considered for the equitable distribution of
inheritance.1' 1
The nature o f change in modem society and the state may be considered to have altered the
traditional society to the point where the detailed laws of inheritance no longer ensure the
cohesive and equitable management o f the affairs o f men and women,182 but now actually
dislocate equality and subjugate women through economic subordination.
B. Non-Muslims
The religious nature ofthe law and the state is perhaps most striking concerning the
presence o f non-Muslims in an Islamic state, where differences in belief unavoidably affect
the concept o f citizenship. It is here also that the impact of the nation-state upon religion
and identity has projected its own definitions o f rights and equality. Effectively, in the
public sphere national identity supersedes religious identity, allowing for societal
distinctions between religions but prohibiting such distinctions from attaining a legal force
that could be considered discriminatory. According to the United Nations, “In a modem
state, the possession o f nationality implies equal rights for all those possessing it.” 183 A ny
discrimination de facto or de ju te is forbidden. Thus, the legal right of inclusion and equal
participation in all domains ofthe nation-state is at the center of an-Na‘im’s polemic.
181 Wadud, Qur'an and Woman, 87.

182 Anderson, Law Reform, 70. The author proposes that the changed nature of the family from the extended or
tribal to the nuclear creates complications in the Islamic laws of inheritance. In many families today, close
relations with distant cousins, aunts or uncles have been compromised and may not exist For example, in the
Islamic law of inheritance, a parent who is survived by a daughter and a distant agnatic cousin equally divide the
estate. Thus, if the parent hardly knows or even dislikes the cousin, dissatisfaction may arise with both the
parent and the daughter, who is closer kin and may feel much more entitled to the settlement
United Nations Commission on Human Rights, Sub-Commission on Prevention of Discrimination and
Protection o f Minorities, Document prepared for the First Session (Nov. 24 to Dec. 6,1947).
The treatment and legal status of non-Muslims in the classical Shari'a must first be
distinguished between the people of the book (abl al-ldtab), or those who follow a religion
with a scripture, such as Christians and Jews (also Zoioastrians, Samaritans, and Sabians)
and who are referred to as dbim nvs, and then the unbelievers, or those without a scripture.184
It is important to recall that the social structure and construction o f identity in the classical
Shari‘a is predicated upon adherence to a certain system o f belief.183 The distinctions
between a dbim m i and an unbeliever have major legal repercussions, mainly because a
dbim m iis recognized as having legal peisonhood (due to her belief) whereas an unbeliever is
not afforded such a luxury (since she is seen as lacking belief and is thus an enemy of God)
and is not tolerated. Since God is unquestionably the raison d ’etre o f the Islamic state and
its ultimate authority, anyone who does not accept this authority cannot be regulated and
governed. Thus, any person who holds a belief that is seen as being fundamentally contrary
and certainly potentially dangerous to the nature and aims o f Islam is also then seen as
jeopardizing the security o f the law, state, and society. Such is the predicament of the
unbeliever. The case o f the dbim m i is different because, while she may not accept Islam,
God is still an authority and her beliefs conform to the extent where they are not a threat.
An-Na‘im condemns the laws in the classical Shari'a that authorize an adverse
standing for the unbeliever, saying, “Unbelievers have no civil and political rights
whatsoever under Shari'a,”186 whereas Khadduri assigns a more serious condition,
184 Khadduri, War and Peace in Islam. 176. Specifically, Khadduri cites polytheists but it is assumed all other
unrecognized and unapproved systems of belief such as atheism would be included in this category.
185Weiss, Spirit o f Islamic Law, 148.
186 An-Na'im, Toward an Islamic Reformation, 88. Obviously, then, the polytheist cannot legally many, inherit
or enjoy any other legal privileges. Furthermore, if an unbeliever is in Islamic territory, he must obtain a
temporary license (an ai) or pledge of security which lasts less than a year only (the Hanbafi school allows ten
years) and affords him safe conduct during his sojourn. See Khadduri, War and Peace, 162-169.
59
“Polytheists...had to choose between Islam and the sword.” 187 The classical position
concerning unbelievers guards against what is perceived as a threat to the security of the
society and state, and, above all, the fundamental governing instrument - Islam. However,
the nation-state precludes this situation through its construction o f national identity
whereby differences in belief are no longer considered to d irectly endanger the security of
the state.188 Moreover, international instruments conforming to the nation-state format
obligate states to tolerate all beliefs (not only recognized religions) and actively eradicate
any discriminatory laws as well as prohibit any forms o f discrimination within their
territory.189 Article 7 o f the UDHR guarantees legal personhood to every human being
without any discrimination. Article 16 ofthe ICCPR concurs and Article 18 (2) states, “No
one shall be subject to coercion which would impair his freedom to have or to adopt a
religion or belief o f his choice.” This is again stated in Article I (2) ofth e Declaration on
the Elimination o f All Forms o f Intolerance and of Discrimination Based on Religion or
187 Khadduri, War and Peace, 176; and for further evidence of this see Schacht, Introduction to Islamic Law,
130; and Hamidullah, Muslim State o f Conduct, 4th ed., 113, 190. The treatment o f polytheists is based upon
verse 9:5 of the Qur’an which states; “And so, when the sacred months are over, slay those who ascribe divinity
to aught beside God wherever you may come upon them, and take them captive, and besiege them, and lie in
wait for them at every conceivable place. Yet if they repent, and take to prayer, and render the purifying dues,
let them go their way: for, behold, God is much-forgiving, a dispenser of grace.” Shafi'i asserts, “On the basis
of the Qur’an...the unbelievers should be fought until they accept Islam ...” in Khadduri, SbiG T s Risila, 265.
The Hanifite jurist Shaybani (d. 189/804) adds to this by saying if they do not accept Islam, they cannot become
a dbimmi and that execution would result. Khadduri, Sbaybiai's Siyar, 224. However, Schacht claims this
refers only to Arab pagans (ijamidullah concurs), whereas other unbelievers (outside Arabia) must be offered
Islam first, then subjugation (status o f dbimmi), and then if both are rejected, death. In practice this law was
attenuated and the definition of dhintm l was relaxed to include more groups so that Muslims could, for example,
coexist with Hindus as they expanded eastward. However, an-Na’im maintains that this is not the strict Shari’a
rule. An-Na’im, “Religious Minorities,” 12 (n33); Mayer, Islam and Human Rights, 135.
188 If there is insurgency triggered by religious issues within a state, which certainly occurs, it is recognized as a
threat to “national security” and the individuals that have perpetrated crimes are then held responsible for those
offences, irrespective o f their religion.
189 Article 4 of the Declaration on the Elimination of All Forms of Intolerance and o f Discrimination Based on
Religion or Belief places die responsibility to end discriminatory measures directly in die hands of the state; “All
States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief
in die recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil,
economic, political, social and cultural life. All States shall make all efforts to enact or rescind legislation where
necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the
grounds o f religion or other beliefs in this matter.”
60
Belief.190 The international human rights laws demand the acceptance, inclusion, and legal
recognition o f all individuals, regardless of their belief or lack thereof.
The laws concerning dbimmJs exercise a great deal o f tolerance when compared with
the treatment o f religious minorities by other legal systems in history.191 Historically,
d h im m ls actively participated in the cultural and political life of Muslim society, while
maintaining their distinct religious values, practices, and communities as protected by the
Shari'a.192 The Shari'a guarantees dbim m is their own communal autonomy but allows a
dbim m i, at any moment, to join the dominant Muslim community193 through conversion, i f
she so desires (no dbim m ican be legally coerced into conversion).194 They can enforce their
own laws (except when Muslim interests are involved), but are allowed access to the Muslim
190 The later discussions regarding modem society and all of the international human rights documents that I site
in relation to dhimmis also pertain to die status of unbelievers.
191 S.D. Goitein. Jen-a and Arabs: Their Contacts Through the Ages (New York: Schocken Books, 1964), 84,86.
The author discusses episodes of religious persecution undo* Islamic rule, such as that of the Almohads in
twelfth century North Africa and the Fatimid ruler al-Hikim (d. 441/1021) in Egypt, but his analysis points to
socio-political and economic pressures that resulted in fanatician and a manipulation of the law for specific
purposes. He thus remarks, “In short, the actual and die legal position of the Jews in Muslim countries, and in
Arab countries in particular, depended to a considerable extent on the general situation of the Muslim society of
the period as well as on the strength and the influence o f the non-Muslim communities. However, the basic
principle of the Muslim law, which recognized die right of existence of the other monotheistic religions, was, as
a rule, adhered to,” to which he concludes, “Nevertheless, when the known facts are weighed, I believe it is
correct to say that as a whole the position of the non-Muslims under Arab Islam was far better than that of the
Jews in Medieval Christian Europe.”
192 The concept o f protection of a religious minority that is allowed to freely engage in its religion within its
community is quite forward looking and is perfectly attuned with Article 27 of the ICCPR: “In those States in
which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the
right in community with the other members o f their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language.”
199 Bernard Weiss, Spirit o f Islamic Law, 148. Weiss emphasizes die social lines marked by religion: “The
social order envisioned by the jurists is a mosaic of religion-based communities - Muslim, Jewish, Christian,
Zoroastrian, and others - that live peacefully side by side but in the context of a public life designed to give pre
eminence to the religion of Muslims. In the cities of the medieval Muslim world, the different religious
communities lived in their respective residential quarters; but the public area o f the city - the area in which the
marketplace and official buildings were located and in which people o f all faiths assembled to do business - had
a definite Islamic character.”
194 Khadduri, War and Peace in Islam, 195; Norman Roth, “Dhimma: Jews and Muslims in the Early Medieval
Period,” in Studies in Honour o f Clifford Edmond Bosworth, Vol. I: Hunter o f the East: Arabic and Semitic
Studies, ed. Ian Netton (Leiden: Brill, 2000), 240. Roth contends that Islam does not require or encourage
dhiamus to convert, but willful conversion to Islam has been an historical occurrence. He also affirms that
according to Abu Hanifa (d. 150/767) and Malik (d. 179/795) dhimmls can also convert to other tolerated
religions (Judaism, Christianity and Zoroastrianism).
61
courts. It is clear that dbim m is enjoy a great deal of freedom under the law and historically
they were able to live in relative comfort within the Islamic state. However, while dbim m is
are regarded as a protected community, they are subject to laws that affect their place within
the Islamic state and Muslim society which reduce them to the status o f second-class
citizens not entitled to the same rights, preferential treatment, and higher status enjoyed by
Muslims.195 It is these laws that an-NaMm regards as untenable and insupportable
considering modem circumstances.
The protection o f person and property, and the toleration o f religion that Islamic law
affords can only be enjoyed by the dbim m i, Weiss explains, “by virtue o f a contractual
relationship predicated upon payment o f a communal tax.” 196 The payment of this tax, the
jizya, is clearly stated in verse 9:29:
[And] Gght against those who - despite having been vouchsafed revelation
[aforetime] - do not [truly] believe either in God or the Last Day, and do not
consider forbidden that which God and His Apostle have forbidden, and do not
follow the religion o f truth [which God has enjoined upon them], till they
[agree to] pay the exemption tax with a willing hand, after having been
humbled [in war].197
195Khadduri. War and Peace in Islam, 198; Mayer, Islam and Human Rights, 83; Bassiouni, “Sources of Islamic
Law,” 21. Mayer relates that Muslims rank above non-Muslims. This indicates a social and legal hierarchy
predicated upon belief. This is not surprising considering that in Islam the best person is the most pious. Thus,
an adherent to Islam would be seen as closer to piety than a non-Muslim since Islam completed all previous
monotheistic religions and corrected their corruptions.
196Weiss, Spirit o f Islamic Law, 149.
197 The translation by Muhammad Asad, which renders 'an yad (literally “out of hand”) as “with a willing hand”
is based upon die explanations of Zamakhshan (d. 538/1144). An different translation of the verse, used by an-
Na'im, is: “Fight those People of the Book who do not believe in God or the Last Day, nor hold as forbidden
what has been forbidden by God and His Apostle [the Prophet of Islam], nor acknowledge the Religion of Truth
[Islam] until they pay jizya with willing submission, and feel themselves subdued.” This translation obviously
presents a harsher situation regarding the jizya.
62
The function of the jizy a is often explained as financial compensation for protection by the
Muslims, since dbim m is are exempt from fighting in Muslim armies.198 However, an-Na‘im
disagrees with this rationale stating:
This is not an accurate statement of the position under Shari‘a, which

disqualifies non-Muslims rather than exempting them from having to fight in
defence o f themselves. Exemption implies request, or at least the choice ofthe
person being so exempt, whereas under Shari‘a non-Muslims have no choice in
accepting the status o f being defended by the Muslims in exchange for the
payment o f jiz y a m
A different perspective offered by Mayer is that, “non-Muslims could not be
expected to fight in holy wars on behalf o f Islam.”200 The dbim nu refuses to serve the
Muslim cause (by virtue o f his adherence to another religion) and consequently is not
allowed to bear arms since it cannot be guaranteed that it is in defence o f Islam. Moreover,
if war is perceived as a religious effort for the furtherance o f Islam by the state,201 then it
reasons that one who has no vested interest in that system o f belief would be averse to
participate in such an engagement, and the Islamic polity has no incentive to trust a d h im m i
198 Bassiouni, “Sources of Islamic Law,” 22. The author also emphasizes that though dhimmls must pay the
jizya they are not required to pay the religious tax (zakib), as it is required from Muslims alone.
1 An-Na'im, Toward an Islamic Reformation, 89 (n70). Historically, there have been exceptions to this rule,
one being the inhabitants of Jurjuma (al-Jarajima) who were required to take part in Muslim warfare and were
thus exempt from the poll tax (they agreed to be allies with the Muslim s and fight on their side on die condition
that they receive their share o f the booty an not pay the jizya). This could be explained in terms of a political
and military alliance for the greater good, where a loss of life and land and the security of the state against an
invader supplanted the requirement of the tax. However, an-Na'im contends this is a specific case. See T.W.
Arnold, The Preaching o f Islam: A History o f the Propagation o f the Muslim Faith 2nd ed. (Lahore: Sh.
Muhammad Ashraf 1961), 62.
200
Mayer, Islam and Human Rights, 135. T.W. Arnold proceeds from Mayer’s assumption and asserts that,
“This tax was not imposed on the Christians, as some would have us think, as a penalty for their refusal to
accept the Muslim faith, but was paid by them in common with the other dhim m is or non-Muslims of the state
whose religion precluded them from serving in the army, in return for the protection secured for them by the
arms of the Musalmans.” He then illustrates the incident during which the jizya was reimbursed to the
inhabitants of conquered cities (under the Byzantine Emperor Heraclius) in Syria, the Muslim Arab general Abu
‘Ubayda explaining that since the Muslims could no longer protect them, they were not obliged to pay them.
Aside from his contention that the tax was not punitive, he remarks that submission accompanied its payment
See Arnold, Preaching o f Islam, 56,61.
201 Weiss, Spirit o f Islam, 149. The author says, “Warfare was justified entirely with reference to religion.” This
reflects the Islamic perception of the division of territories between die abode o f Islam and the abode of war, die
latter being the only area in which warfare could rightfully be undertaken, and thus, in accordance with the
jurists’ vision of social order, the purpose of war is in the interests of Islam only.
63
in such an exertion. For these reasons, there is no choice for the dhim m lin the payment of
the jizya ,202 indeed, it is a fundamental pait of life as a non-Muslim in a MusUm society.
The concept of war in contemporary society operates within a national configuration,
and major international wars have largely been fought under the auspices o f concerns
pertaining to nationality and to the interests o f nations. The reasons behind modem wars
are complicated due to new mixes o f alliances and identities engaging in wars that depart
from clearly defined religious ambitions. Those who are in military service bear arms in
defense o f or pursuant to national interest, but behind national loyalty may lurk an
amalgamation o f religious, economic, political, social, and cultural influences, comprised of
the assorted and different reasons for those partaking in warfare.203 While the jizy a has been
explained in terms of a separate but equal application o f justice based on different criteria in
response to divergent purposes and goals,204 nationalism disrupts the separate but equal
notion o f the jizy a by uniting divergent goals under its umbrella. If all citizens within the
state are equal in citizenship and have a vested interest in the preservation o f the nation, so
that an internal religious difference would no longer constitute a poUtical threat, they are
then entitled to equally participate in its military causes,205 making a tax for military
202Khadduri, War and Peace, 196; Khadduri, Sbaybial’s Siyar, 275.

203 A Muslim state may engage in a war that promotes Islamic ideals, but it officially enters that conflict as a
nation against another nation. The Arab-Israeli conflict is an example of religious boundaries being crossed,
Christians and Muslims uniting in a common national interest, a Palestinian state. Religion is also often used as
a tool of legitimization to promote a particular brand of national government. Amongst M uslim nations, Islam
has been used to defend revolutionary socialism (Qaddafi's Libya), justify monarchical rule (Saudi Arabia under
the House of Saud), establish independence (Pakistan), and ignite a revolution against Western imperialism
(Iran). In all of these cases, Islam has been an essential ingredient in modem movements, while still adhering to
the nation-state structure. See John L. Esposito, Islam: The Straight Path, 3rd ed. (New York: Oxford University
Press, 1988), Chapter Five.
204 Bassiouni, “Sources of Islamic Law," 23.
203 The unify of the nation is of paramount concern in international documents. However, the nation must fulfill
its dufy to guarantee equal rights and self-determination to all o f its citizens otherwise this unify can legitimately
be threatened. The Declaration of Principles of International Law Concerning Friendly Relations and
Cooperation among States in Accordance with the Charter of die United Nations reads in principle (e),
paragraph 7: “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action
exclusion no longer necessaiy. In other words, the tax addresses a situation where identities,
interests, and loyalties are established by religion, whereas now religion is not the primaiy
source but must coexist with other factors that may lead to war.
Since the tax is religious in nature and signifies a division between Muslim and dhim au
populations, it has been perceived as punishment for disbelief.206 Khadduri holds that it is
not the tax itself that is so important, but the acceptance ofthe status o f dbim nv which then
leads to the requirement o f the payment o f the jizya}'*1 And it is the second part o f verse
9:29 and the exposition ofthe law which creates the identity ofthe dbim auxYisi determines
his legal station in the Islamic state, his place in society, as well as defines the meaning of
the jizya .
An-Na‘im argues that the function of the jizy a is “to signify submission and
humiliation o fth e non-Muslims who had to pay it.”208 It must be emphasized, however, that
dbim nus are guaranteed self-rule within their respective communities and their rights w ithin
which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and
independent States conducting themselves in compliance with the principles of equal rights and self-
determination of peoples as described above and thus possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed or color.”
206Khadduri, War and Peace in Islam, 196. Hence, upon conversion to Islam, thejizya is lifted.
307 Ibid., 1%. This is according to the Hanafi school. It would not be conducive to the acceptance o f such a
status by the dbimnus if it were oppressively and violently enforced. Thus, in collecting the jizya the jurists
recommend that the dbimnus not be subjected to unduty harsh treatment, as the Hanafi jurist Abu Yusuf
(d. 182/798) advises, “They should not be beaten if they fail to pay the jizya nor should they be required to stay
under the Sun...but be imprisoned until they pay it...” Abu Yusuf, Kitab aJKharaj, 122, cited by ibid., 196.
Moreover, according to Shaybanl, anyone who is blind, crippled, helplessly insane, chronically ill, too old to
work, or too poor is not required to pay the jizya. See Khadduri, Sbaybatu's Siyar, 276. This did not always
translate into practice and Goitein's exposition of the Geniza documents prove that during that time, “poverty,
old age, and illness did not provide an excuse for exemption,” and that “a very considerable section o f the non-
Muslim population must have been unable to pay it and often suffered humiliation and privation on its account."
See SJ>. Goitein, A Mediterranean Society: The Jewish Communities o f the Arab World as Portrayed in the
Documents o f the Cairo Geniza, VoL II: The Community (Berkeley: University of California Press, 1971), 382,
392.
208 An-Na‘im, Toward an Islamic Reformation, 89 (n211). He says this is obvious from the latter part o f verse
9:29 m which he translates 'an yadin wahum saqirun as “in submission and humiliation.”
their community are upheld and protected.209 However, the dhim au community owes
allegiance to both its respective political and social order as well as the Islamic
superstructure within which it exists. It is at this level, where dbim aus interact with
Muslims on their territory, that the laws curtailing their rights vis-a-vis Muslims ate
manifest. Politically, depending upon the opinions o f the jurists, dhim nus are excluded from
participating in the public service o f the Islamic state or barred only from high positions.210
In either case, his political representation within the dominant governing body is legally
limited.211 In the established and dominant Islamic legal and political system, it is
nonsensical for a non-Muslim to decide the affairs of Muslims according to Islam or derive
Islamic laws. This would constitute a conflict of interest for both Muslims and non-
Muslims alike.
However. an-Na‘im disagrees with this position in respect to the modem nation-state
construction and its notion of citizenship. It is in this area that the tension between an
Islamic state and a nation-state as well as the implications o f the unity between state, law,
and religion are most acute. He argues:
209 Khadduri, War and Peace, 198; Schacht, Introduction to Islamic Law, 130-131. This also means that
dhimnus are excluded from specific Muslim duties (like the prohibition of pork and alcohol). An-Na'im,
however, finds this to be a tool of segregation that further distances the dhimmJ from equality within the greater
political and social structure. See Abdullahi an-Na‘im, “Religious Freedom in Egypt: Under the Shadow of the
Dhimmi System,” in Religious Liberty and Human Rights in Nations and Religions, ed. Leonard Swidkr
(Philadelphia: Ecumenical Press, 1986), 56 and passim.
210 Mayer, Islam and Human Rights, 135; An-Na'im, Toward an Islamic Reformation, 89 (n74); Hamidullah,
“Muslim Conduct of State,” 111; Bassiouni, “Sources of Islamic Law,” 21. Bassiouni goes so far as to say,
“Non-Muslims are not politically a part o f that nation.” Hamidullah cites die Shifi'ite jurist al-Miwardi (d.
450/1058) and the Hanbalitc jurist Abu Y a 'li al-Farra’ (d. 458/1066) in support of his position that “non-
Muslims could be appointed to any administrative post of the Islamic State, provided the ultimate responsibility
is assumed by some Muslims.” An-Na'im concedes that non-Muslims historically have participated in the
Islamic state but only because they were needed by Muslim rulers in the absence of suitable Muslim candidates.
He proceeds, “This may demonstrate that Muslim rulers did not comply with Shari'a in this regard but does not
change the fact that Shari'a did not permit the participation of dbimausin the government of Muslims.”
211 Goitein, Jews and Arabs, 69. “The idea behind the law,” as the author explains, “was that government posts
confer authority and prestige, neither of which might accrue to non-Muslims.”
66
The right of a lt citizens continuously and significantly to influence the

fonnulation and execution o f public policy and the enactment of public laws is
the moral and pragmatic justification for the sovereignty o f the state. Policy
and law must therefore always be founded on a rational basis which can be
equally appreciated and supported by all citizens, regardless of race, gender or
religion or other belief212
An-Na‘im clearly calls for the right o f all people to actively partake in all aspects of law and
politics within their state, and not just their semi-autonomous community within the
dominant and authoritative Islamic political and legal superstructure. This involvement
signifies their self-determination and equal representation in the government that ultimately
attends to and governs every person residing in its territory, a situation that does not
conform to the construction o f an Islam ic state and law in the classical sense. International
human rights are uncompromising in their denunciation of any form o f discrimination based
on religion. Article 21, Section 2 o fth e UDHR guarantees equal access to public service
while Article 2, Sections 1 and 2 o f the Declaration on the Elimination o f All Forms of
Intolerance and o f Discrimination Based on Religion or Belief asserts:
(1) No one shall be subject to discrimination by any State, institution, group of

persons, or person on the grounds o f religion or other belief. (2) For the
purposes o f the present Declaration, the expression "intolerance and
discrimination based on religion or belief means any distinction, exclusion,
restriction or preference based on religion or belief and having as its purpose or
as its effect nullification or impairment of the recognition, enjoyment or
exercise o f human rights and fundamental freedoms on an equal basis.
These human rights assertions do not acknowledge a state that would exclude a portion o f
its citizenry in any aspect ofthe political and legal process and an-Na‘im further contends:
The non-Muslim peoples in Muslim countries have enjoyed the status and
rights o f full citizenship under secular public law and will never accept the
inferior status allocated to them by Shari'a. Shari'a does not afford non-
Muslim subjects o f an Islamic state constitutional and legal equality with its
Muslim citizens. The strong objection ofthe non-Muslim population to being
212
An-Na'im, Toward an Islamic Reformation, 84-85.
67
relegated to the status o f second-class citizens will have the support of

international public opinion, as well as that o f a significant portion of the
Muslim population in Muslim countries.213
Laws restricting public expression of the faith o f the dbim m is relegate the practice o f
their religion largely to their own communities, inhibiting their freedom o f expression and
requiring deference to Islam. They are not allowed to proselytize or preach their faith in
public, their houses are to be lower than the houses o f Muslims, they are not to ring their
church bells loudly nor raise their voices loudly in prayer. D bim nus cannot build new
synagogues or churches but only repair those already in existence.214 These laws indicate
that while dbim m is can retain their faith, they cannot not openly exhibit it and must behave
in a relatively circumscribed fashion religiously. Moreover, they are a reminder that there is
a dominant religion that enjoys such freedoms.
The most conspicuous form o f discrimination is the obligation to be distinguished
from Muslims by dress. D bim m is are not allowed to imitate a Muslim in their appearance.
This entails a distinctive dress that sets them apart from Muslims.215 According to
Shaybarii, they are not allowed to wear shawls (ta y lasan) like “those o f Muslims or robes
214 Khadduri, Sbaybam's Siyar, 277-8. Shaybanl continues to say that the maintenance o f religious edifices can
only be done to those located in cities not inhabited by Muslims. He also says that if Muslims conquer and
inhabit a formerly non-Muslim city, the Muslims are to tear down the religious buildings, but that the dbimmis
are allowed to build similar ones outside that city.
213 Khadduri, War and Peace, 197; Goitem, Mediterranean Society, VoL II, 286; Noth, “Dhimma in Early
Islam,” 242. Goitein explains that the dress required of non-M uslim s was of a certain color and type and that
they were, “to be content with modest clothing befitting a subject population.” Noth offers an account by the
Hanbalite jurist Abu’l Faraj Ibn al-Jawzi (d. 597/1200) of twelfth century Fez when Jewish doctors were not
allowed to dress in the elegant clothing that adorned Muslims However, the technical aspects concerning the
distinctive dress were subject to change according to the region. For example, in Morocco dhimmls were
prohibited from wearing yellow clothing, it being “the colour of die pious of ancient Islam,” whereas in Egypt
yellow turbans were required. Under the Almohad ruler Abu Yusuf Ya'qub (d. 595/1188) Jews had to wear
dark blue clothing.
like their robes.”216 The clothing restrictions signal a visible and easily recognizable social
and religious distinction, with a preferential position granted to Muslims.
All the international human rights documents as well as the Charter o f the United
Nations explicitly prohibit discrimination based on religion. Two articles in the UDHR
(Articles 18 and 19) as well as Article 1, Sections 1 and 3 of the Declaration on the
Elimination o f All Forms o f Intolerance and o f Discrimination Based on Religion or Belief
apply to the restrictions discussed above and read:
Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief and freedom, either
alone or in community with others and in public or private, to manifest bis
religion or belief in teaching, practice, worship and observance. Everyone has
the right to freedom o f opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information
and ideas through any media and regardless o f frontiers.
Impediments on testimony, inheritance and marriage as well as criminal justice
compromise a dhinw u’s legal equality.217 A dhim m t cannot testify against a Muslim (only
against other dhim aus) in hudud and q isis (penal retaliation) cases, for the requirements
concerning a witness are that he be a Muslim male o f good character (W /).218 It is the
216 Khadduri, ShaybiaJ's Siyar, 2 77; see also Nodi, “Dhimma in Early Islam,” 241. Noth cites a case in ninth
century C.E. Qayrawan where Jews and Christians attempted to appear as Muslims, without wearing the
distinguishing clothing. “The decision was that they should be whipped and imprisoned, after being paraded in
the Jewish and Christian quarters as an example." However, it must be said that the enforcement and degree of
these types of restrictions were at die mercy of the whims of the rulers. For example, in the Geniza documents,
Goitein finds that during the Fatimid and early Ayyubid periods practice differed widely from theory, and cites
instances where non-Muslims wore no distinctive clothing and were taken for Muslims. See Goitein,
Mediterranean Society. Vol. II, 2 86. If the dbimmis were subject to harsh and brutal treatment, most likely the
Muslims were suffering repression as well. An-Na'im admits this, but still finds that under the best conditions
the dbimmis w ere legally emasculated by Islamic law. An-Na'im, “Religious Freedom in Egypt,” 52.
217 The restrictions placed upon dbim nus in criminal justice will be discussed in the next section.
2,8 Salama, “General Principles of Criminal Evidence,” 117. A Hanifite opinion allows the testimony of one
non-Muslim against a Muslim. The Hanbalite jurists Ibn Taymiyya (d. 728/1327) and Ibn al-Qayyim al
Jawztyya (d. 751/1350) allow the testimony of the non-Muslim against the Muslim only when there are no
M uslin witnesses. This is supported by verse 5:106: “Let there be witnesses to what you do when death
approaches you and you are about to make bequests: two persons of probity from your own people, or - if the
pangs of death come upon you while you are travelling far from home -tw o other persons from [among people]
other than your own.” However, this verse implies that under normal circumstances non-Muslims are not to be
characteristic o f ‘adala that prohibits his testimony, for verse 65:2 says: “And let two
persons o f [known] probity from among your own community witness [what you have
decided] ”219 The heavy reliance upon oath-taking in the Islamic legal method of proof
regarding testimony supports the contention that good character and probity are necessary.
Muslims take the oath on the Qur’an, which is untenable for and unavailable to the non-
Muslim.220 Since the state o f probity and reliability can only be assursdby one’s adherence
to Islam, it is implied that an oath taken on anything but the Qur’an is not acceptable, and
thus the strength o f a non-Muslim’s character cannot be adequately substantiated, and his
testimony is deemed inadmissible.
Difference in religion is a bar to inheritance.221 This restriction applies only when a
Muslim is involved, allowing Jews and Christians to cross-inherit. However, in marriages of
a Muslim male and non-Muslim female, the wife cannot inherit from her husband, nor he
from her. Conversion to Islam can legally restrict marriage if it is a dhim m i marriage and
the wife converts to Islam. In this case, the marriage is dissolved i£ after being offered
Islam, the husband does not convert, since the classical Shari‘a does not recognize such a
union, regardless o f what transpired before the conversion and irrespective o f the wishes o f
witnesses in any cases concerning Muslims, as Schacht asserts, and which is supported by al-Qayrawani in his
statement, “The testimony of an adversary or of an unreliable person is not admitted. Only the testimony of
wholly reliable Muslims will be accepted....” Schacht, Introduction to Islamic Law, 132; al-Qayrawani, Risila,
260-265, cited by Liebesny, L aw o f die Near and Middle East, 247.
219 This verse further specifies that witnesses should be from die same community, by which religious
community is inferred.
220 Bassiouni, “Sources of Islamic Law,” 23. He further says that this “creates an imbalance in evidentiary
symmetry” which is the cause for the inadmissibility of their testimony.
Roth, “Dhimma in Early Islam,” 240; Schacht, Introduction to Islamic Law, 170; Abu Zahra, “Family Law,”
166. Abu Zahra states that the majority ofjurists hold this opinion, which allows for minority dissent
222 Abu Zahra, “Family Law,” 166. They could leave bequests to each other, since under such circumstances
“optional succession takes the place o f compulsory succession.”
70
the two parties involved.223 The wife must choose between her faith and her husband and
marriage.
The legal circumscriptions o f dhim nus in the classical Shari'a were sustained by a
concept o f religious identity that the society (Muslims and non-Muslims) implicitly
acknowledged, out of which a degree o f separation between the religious communities was
acceptable, especially considering the generous toleration that the Islamic state provided
when compared with the other societies at the time. However, Goitein remarks:
In conclusion we may say that the position o f the Christians and Jews under
Islam during the period and within the area considered here was both
safeguarded and precarious. Islamic law protected their life, property, and
freedom and, with certain restrictions, granted them also the right to exercise
their religion. On the other hand, it demanded from them segregation and
subservience, conditions that under a weak or wicked government could and
did lead to situations bordering on lawlessness and even to outright
persecutions.224
As Goitein illustrates, classical Islamic law was attuned to societal movement to the extent
that, depending upon certain conditions, the boundaries within which the law operated could
be perilously stretched to the legal detriment o f the non-Muslim populations. Thus, these
populations depended upon certain societal, political, and economic forces to provide a legal
balance that sustained their favorable position in the Islamic state. It is precisely this
generous legal latitude in the management ofthe non-Muslim populations and the precarious
situation and insecurity it generates, that modem international documents guard against by
offering legal stability and uncompromising rights (in lieu o f undependable traditional
223 Fyzee, Outlines o f Muhammadan Law, 182. If the man embraces Mam, the marriage is still valid. However,
if the wife is an unbeliever who rejects Islam upon its offer to her, the marriage is dissolved.
224Goitein, Mediterranean Society, Vol. II, 289.
71
checks and balances),223 wholly independent o f the caprices of rulers or conditions in a
society that breeds hostilities directed against a less-powerful minority.
An-Na‘im argues that if Muslims are allowed to discriminate against religious
minorities as authorized by the Shari‘a, then similar mistreatment of Muslim minorities in
non-Islamic states can be sanctioned, a state o f afTaiis that negates all international human
rights and civil liberties achievements.226 In its most severe form, an-Na‘im asserts, “All
forms and degrees o f human rights violations, including torture and even genocide, may be
rationalized or justified with reference to alleged religious or cultural codes or norms.1’227
C. Criminal Justice
An-Na‘im does not call for the abolishment o f the Islamic criminal justice system.
He claims, however, that problems in Islamic criminal law must be resolved before that
branch of the Shari‘a can be effectively implemented. He calls for a revision of the scope o f
criminal law as well as certain structural adaptations on the part ofthe state. If these tasks
are not accomplished first, an-Na‘im contends “the premature and arbitrary application o f
the penal law o f Shari‘a can only lead to extreme hardship and drastic political
225 Ibid., 299. Goitein remarks, “Looking back on the testimony of the Geniza documents with regard to
interfaith relations we find that the religious concepts of superiority and seclusion - which should not be rated
solely as negative - were counteracted by economic and social conditions that made for a more tolerant
attitude.”
226An-Na'im, “Religious Minorities,” 14.
227 Ibid., 14. The dangers of allowing even any amount of intolerance that could develop into persecution are
exemplified by the Muslim-Coptic disputes in Egypt, the animosity and systematic violence toward the Baha’is
in Iran and the Abmadis in Pakistan as well as the crisis gripping Sudan concerning the relationship between the
Christians in the South and the Muslims of the North. See an-Na'im, “Religious Freedom in Egypt," passim;
Mayer, Islam and Human Rights, 31-31,143-146.
repercussions”228 The final section o f this chapter examines two areas o f criminal justice:
penal retaliation (qisis) and those crimes for which punishments are prescribed in the Qur’an
or Sunna (hudud).
The classical criminal justice system has its foundation in reciprocity (*/-
m u'aw adab) and retribution (al-qasis) which, according to an-Na‘im’s mentor Taha,
“emanate from the fundamental source o f life. These are not religious law in the common
sense o f the term.”229 These principles can equally apply to all human beings and are
beneficial to the victim, the aggressor, and the entire community. For example, if someone
were to pull out the eye o f another in a fit o f anger, the punishment based on these principles
would, according to Taha, act as such:
If he received retribution by being placed in the same position as his victims,

and his eye is pulled out in reciprocity for what be had done, then two purposes
would have been served at the same time. Firstly, the interest of the
community would be preserved by deterring the aggressor himself as well as
deterring others by his example. Secondly, the aggressor deepens his
sensitivity, by himself experiencing the pain he inflicts upon others, and thus
realizes the severity o f the pain and the magnitude ofthe loss he has caused.230
An-Na'im complies with Taha’s position and sees value in the principles of retribution and
reciprocity. Furthermore, he finds that the criminal punishments in the Islamic system do
not directly contradict international human rights standards. The documents that contain
these standards unequivocally denounce “torture or cruel, inhuman or degrading treatment
or punishment,”231 but the United Nations’ system does not offer an exact definition and the
meaning o f such a statement in these documents is not entirely clear.232
228 An-Na'im, Toward an Islamic Reformation, 101, 125-131. An-Na‘im specifically refers to the immediate
implementation and strict application o f Islamic law in the Sudan under former President Nimeiri in 1983.
229 Taha, Second Message o f Islam, 74.
230Ibid., 73.
231 Article 5 of the UDHR, Article 7 o f the ICCPR, and the entire body o f the Declaration on the Protection of
All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading T reatment or Punishment,
73
The interpretation of what constitutes cruel, inhuman or degrading treatment or
punishment may be di fiferent across cultural lines. For some humanists or secularists, the
cutting off o f the thief s hand may seem excessively cruel However, in the Islamic context
a rational argument surrounding this concept (and justifying the Islamic penal punishments)
draws upon the religious character o f that criminal justice system and illuminates different
facets o f what is considered humane in the realm of punishment. As an-Na‘im explains:
From the religious point o f view, human life does not end at death but extends
beyond that to the next life. In the next eternal life, every human being will
stand judgment and suffer the consequences o f his or her actions in this life. A
religiously sanctioned punishment, however, will absolve an offender from
punishment in the next life because God does not punish twice for the same
offence. To people who hold this belief however severe the Qur’anic
punishment may appear to be, it is in fact extremely lenient and merciful in
comparison to what the offender will suffer in the next life should the religious
punishment not be enforced in this life.233
From this perspective, God prescribes these particular punishments out o f His divine
wisdom for the betterment of society and the individual
The philosophy behind these punishments explains and defends their harsh quality.
The severe nature of the Islamic punishments provides maximum deterrence that protects
the individual and safeguards the society at large, and is thus justified on grounds o f social
specifically. This clause is a response intended to prevent the recurrence of the institutionalized and
governmental measures of ‘punishment’ perpetrated by Nazi Germany in the concentration camps. See an-
Na’im, “Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning
of Cruel Inhuman or Degrading Treatment or Punishment,” in Human Rights in Cross-Cultural Perspectives:
Questfor Consensus, ed. Abdullahi an-Na’im (Philadelphia: University of Pennsylvania Press, 1992), 30.
Article 1 of the Declaration on die Protection of All Persons from Being Subjected to Torture and Other
Cruel Inhuman or Degrading Treatment or Punishment delivers an attempt at defining this categorical
statement, but still leaves a broad scope o f interpretation. It reads, “For the purpose of this Declaration, torture
means any act by which severe pain or suffering, whether physical or mental is intentionally inflicted by or at
the instigation of a public official on a person for such purposes as obtaining from him or a third person
information or confession, punishing him for an act he has committed or is suspected of having committed, or
intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or
incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of
Prisoners. Torture constitutes an aggravated and deliberate form of cruel inhnman or degrading treatment or
punishment.”
An-Na’im, “Toward a Cross Cultural Approach,” 33.
utility.234 The retributive element ensures justice for the victim as well as establishes the
index o f social values that contribute to the process of social control.23S And finally, these
punishments aim to assist the offender through his reform and rehabilitation.236 These
considerations coupled with the lack o f detailed guidance in human rights documents lead
an-Na‘im to fiist posit that “the interpretation and practical application o f the protection
against cruel, inhuman, or degrading treatment or punishment in the context of a particular
society should be determined by the moral standards o f that society,”237 which leads him to
the conclusion that budud is not necessarily inconsistent with these international human
rights standards.238 However, he argues that these punishments must be implemented fairly
234 Lippman, Islamic Criminal Law, 84; Aly Aiy Mansour, “Hudud Crimes," in The Islamic Criminal Justice
System, ed. M. Cherif Bassiouni (London: Oceana Publications, Inc., 1982), 200. Lippman asserts that the
deterrent effect is promoted by the speed with which the accused is tried and punished and the public manner of
the infliction of the punishment The feature of alacrity reflects the importance of repentance, reform and
rehabilitation in that die offender is able to expeditiously suffer the punishment, atone for her wrong, and then
proceed with life (during which time she can contribute in a beneficial manner to society and thus later be
judged by God on these actions as well). Mansour adds to this saying, “They' (hudud penalties) are executed for
a limited duration and cause momentarily severe physical pain to the criminal and remain unforgettable to him
so that in most cases, be will refrain from future criminal conduct Thus, imprisonment soon loses its deterrent
effect and prisoners lose their sense of responsibility. Often after being released, they return to prison to serve a
longer sentence. The execution of ‘bodily penalty’ allows the criminal to resume his work immediately
thereafter, he is also not prevented from supporting himself and his children. Hudud punishment is in itself an
act of penance and remission after which the offender resumes his normal life as a good citizen (parenthetical
reference mine).” The public nature of the punishment is to ensure that the wrong-doer is humiliated and will
not commit such an offence in the future and that he serves as an example to the society, repelling any such
criminal intentions and trends in individuals who witness die severity and shame of the p unishment.
235 Ibid., 84; Siddiqi, The Penal Law o f Islam, 25, 36-37. Siddiqi claims that the “emotion of retributive
indignation" exists in all communities and injustice is assuaged through retributive punishment. It is here that
the friction between the rights of the individual versus those of the community is intensified. The Islamic
system seeks to preserve and protect the society and in so doing, ensures that the individual who damages the
security of die society must pay, even at the expense of Western notions of the rights of the individual. An
individual cannot be allowed to threaten the fabric of the society.
236 Lippman, Islamic Criminal Law, 82. The author contends, “The principle of repentance or tauba is
recognized by the Koran, and this enables Islamic law to develop the concept o f reformation and rehabilitation
of die offender.” This indicates the fundamental importance of religion in effecting a cognizance surrounding
criminality in the Islamic criminal justice system. It also may be seen as a healthier alternative to a system of
punitive measures alone (which has a propensity for repeat offences) and which places first time offenders next
to experienced criminals in the dehumanized and corrupt environment of prisons, decreasing the possibility for
rehabilitation and reform. See Mansour, “Hudud Crimes,” 200.
237An-Na‘im, “Toward a Cross-Cultural Approach,” 37.
238 An-Na’im, “Toward an Islamic Reformation: Responses and Reflections,” 108-110. An-Na‘im further
explains that his methodology would not abolish hudud as a matter of Islamic law because “die problem is that
in challenging Shari’a on all other matters discussed in the book (constitutionalisn, human rights and
75
and consistently, beginning fiist with an examination ofthe responsibility ofthe state to the
individual
The Islamic legal system itself requires the existence o f a proper Islamic state and
certain conditions to be fulfilled before these punishments may be enforced.239 The state
must secure economic and social justice and decent standards of living for all its citizens
(through ensuring either suitable jobs or aid from the public treasury),240 thus removing any
economic incentives or need to commit crime. If the state fails in its duties to its citizens,
the offenders cannot be deemed liable for crimes committed, for they cannot be considered
entirely responsible for those actions since the state did not provide total social justice,
which would preclude any excuse for criminal behavior. The state and society must create
an environment (not only materially secure but also morally and politically stable) removed
of all incentives for crime so that if a crime is committed it transgresses reasonable and
appropriate boundaries and is an act of excess for which the responsibility rests squarely
with the perpetrator. The Islamic criminal justice system also seeks fairness and restraint
through its limited application by providing very narrow definitions ofthe offences and then
requiring strict standards o f proof so that the accused is presumed innocent until proven
guilty with the burden o f proof in the hands ofthe accuser, any doubt to be resolved in favor
international law), I am relying on the same level o f Qur’anic authority on which Shari'a principles have been
based in the past That is, I am suggesting that M uslim s should apply Meccan verses of the Qur'an, as opposed
to Medinese verses on which the Shari'a was founded. However, there are no verses on which one could rely in
challenging the very explicit and categorical verses providing for hudud.”
239 Siddiqi, The Penal Law o f Islam, 29.
240 An-Na'im, “Toward a Cross-Cultural Approach,” 34; Siddiqi, The Penal Law o f Islam, 29. Siddiqi further
stipulates that these punishments are a part o f an Islamic system and as such, can only be enforced within that
system and to apply them apart from it would be “wholly inappropriate”. The importance of the intimate
relationship between law, state, and society is accentuated in the case o f criminal law, where each component
depends upon the other for the system to function properly, and if there is corruption in any one of them, the
entire system collapses.
76
of the accused.241 The conditions imposed by Islamic law concerning criminal matters are
extremely difficult to satisfy (and rightly so since it is these conditions, devised within the
criminal justice system itself that protect against corruption and mismanagement)242 and
lead an-Na‘im to the conclusion that, in practice, Muslim countries are unlikely to comply
with these conditions in the foreseeable future.243 Apart from these structural
considerations, an-Na‘im looks at the practical implementation o f criminal justice and calls
for some alterations.
The religious basis for the criminal justice system in Islamic law complicates its
comprehensive and effective administration outside the scope o fthe Muslim members of a
nation-state. An-Na‘im avers that “these laws cannot be reasonably enforced against non-
Muslims because they would not appreciate their religious rationale and would not be able
to benefit from their ultimate religious good.”244 If Muslims desire to implement the Islamic
criminal justice system, it must be justified to the non-Muslim populations in terms
241 The law does everything it can to maintain the innocence of die accused by imposing precautionary measures
in proving guilt It seeks to maintain innocence rather than to prove guilt This is exemplified by the crime of
adultery whereby four witnesses must see penetration, otherwise the accused cannot be found guilty. Moreover,
all the testimonies must corroborate to raider the accusation certain and conclusive. If one element of any
testimony is at variance with the others, the penalty for slander (eighty lashes) can be administered upon the
accusers.
242 However, when regulatory conditions are ignored and Islamic criminal law is incorrectly implemented in
flagrant disregard of such conditions, the system cannot guard itself against corruption and is severely crippled
in its administration of justice.
20 An-Na‘im, “Toward a Cross-Cultural Approach,” 34. M. Cberif Bassiouni writes, “The application of the
Islamic criminal justice requires a contextual framework and environment Such a framework and environment
necessarily requires socioeconomic justice, individual freedom, and democracy. Thus, the search for the true
application of Islam has yet to find its realization, and in its absence, an Islamic criminal justice system is
difficult to establish. To some extent it would be unfair to apply Islamic criminal justice in the absence of such
a predicate.” See M. Cherif Bassiouni, “A Search for Islamic Criminal Justice: An Emerging Trend in Muslim
States,” in The Islamic Impulse, ed. Barbara Freyer Stowasser (London: Croom Helm, 1987), 252.
244 An-Na‘im, Toward an Islamic Reformation, 113-114. The author finds that excluding non-Muslims from
criminal punishment would create problems of enforcement His abandonment of ridda (discussed later) as a
legal offence may induce the offender to avoid punishment by repudiating his faith in Islam. Furthermore, the
author maintains that “such an approach to criminal punishment may be challenged as discrimination on
grounds of religion in violation of the constitutional right of equality before the law. In other words, a Muslim
citizen may object to being subjected to punishments not applicable to non-Muslims.” He concludes that
“purely religious rationalization of these crimes is insufficient justification for including these offences and their
punishments in the criminal law of a modem nation-state.”
77
acceptable to them, this process allowing for the complete freedom o f expression and
interaction o f Muslims and non-Muslims alike in order to reflect public opinion, and then
enforced only upon its acceptance by all segments ofthe population and not imposed by the
will o f the Muslim majority.245 According to an-Na'im, if this area o f the Shari'a is to be
implemented today as a part ofthe law ofthe state and to ensure it’s efficacy in regulating
and governing the entire society, it cannot be justified by religious authority alone, but must
have the support o fth e greater citizenry (comprised o f non-Muslims) ofthe nation to whom
it applies. Before the criminal justice system can be proposed, however, he advises that
certain sections be revised.
In the area o f qisas he contends there are discrepancies in the field of women and
non-Muslims in need o f modification so that they can adhere to the principle o f equality
before the law. Qisas covers bodily harm and homicide and is derived from verse 2:178:
O You who have attained to faith! Just retribution is ordained for you incases
of killing: the free for the free, and the slave for the slave, and the woman for
the woman. And if something o f his guilt is remitted to a guilty person by his
brother, this [remission] shall be adhered to with fairness, and restitution to his
fellow-man shall be made in a goodly manner.246
This verse is corroborated with verse 2: 179 which provides, “for, in [the law of] just
retribution, O you who are endowed with insight, there is life for you, so that you might
remain conscious o f God.” Thus, one form o f retribution is the equivalent infliction of
245 Ibid., 134-135, 136. The author opines, “Given current penological and sociological thinking, it may seem
extremely unlikely that non-Muslims and secularist Muslims would ever accept hudud and qisas p unishm ent
Nevertheless, obtaining the consent of these segments of the population to the application o f these punishments
is the only fair and practical approach. It is the obligation of religious Muslims who favor the application of
these punishments to find ways of convincing non-Muslims and secularist Muslims of the validity and utility of
these punishments.”
246 Verse 5:45 builds upon the Jewish law of retribution: “And We ordained for them in that [Torah]: A life for a
life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and a [similar]
retribution for wounds; but he who shall forgo it out o f charity will atone thereby for some of his past sins.”
This verse indicates that retribution encompasses physical harm as well as murder.
78
bodily harm against the perpetrator.247 There is another sanction prescribed for qisas which
is the payment o f appropriate compensation {diya, literally ‘blood-money’). This is
specifically stated in verse 4:92:
And upon him who has slain a believer by mistake there is the duty o f freeing a
believing soul from bondage and paying an indemnity to the victim’s relations,
unless they forgo it by way o f charity. Now if the slain, while himself a
believer, belonged to a people who are at war with you, [the penance shall be
confined to] the freeing of a believing soul from bondage; whereas, if he
belonged to a people to whom you are bound by a covenant, [it shall consist of]
an indemnity to be paid to his relations in addition to the freeing o f a believing
soul from bondage. And he who does not have the wherewithal shall fast
[instead] for two consecutive months 248
Thus the Qur’an specifies that the victim has the right to choose between retaliation,
money, or to waive his claim to either.249 This indicates that these penalties are restricted
(i.e. no less, no more)250 and are the subject o f a private claim, executed upon the request of
the victim, independent ofthe state.251
347 Islamic criminal law prescribes rules for the infliction of retaliation. For example, a greater degree of harm
than that which was inflicted is prohibited. Also, intention is always taken into consideration and if a murder or
the cause o f physical harm is unintentional, only the payment of diya (and/or religious expillation such as
fasting, giving alms to the poor, or fleeing a slave) is accepted.
348 This verse allows the victim to forgo com pensation in favor of forgiveness, which is also enjoined in verse
5:45 and in verse 3:159 (“Pardon diem, then, and pray that they be forgiven”). Legally, one can seek retribution
and indeed it is a weapon of deterrence, but morally, the Qur’an shows preference for forgiveness, which is
rewarded in heaven. As Bassiouni remarks, “Thus, the combination of Diyya and forgiveness produces a
powerful material and spiritual inducement to forsake Quesas as retaliation. Consequently, one must interpret
the crimes of Quesas as being based on a general deterrence policy' which recognizes die victim’s sense of
vindictiveness against his aggressor, while limiting the consequences of the penalty to the harm done and
establishing the alternative remedies of victim compensation or outright forgiveness.” M. Cherif Bassiouni,
“Quesas Crimes,” in The Islamic Criminal Justice System, ed. M. Cherif Bassiouni (London: Ooeana
Publications, Inc., 1982), 205.
349 Safwat, “Offences and Penalties,” 172. In respect to intentional homicide, the author states that Abu Hariifa
held that the victim must exact qisas and could not take diya unless he wants to especially favor the slayer, the
ShafiTs allow a choice between qisas and diya (while ShafiT goes further and allows the victim to choose
expiation (kaflara)), while the Malikites and Hanbalites hold that all the male heirs of the dead victim must be
in entire agreement of exacting qisas so that if just one dissents, then the punishment must be diya (except that
assassination cannot be pardoned and may be left to the State to exact punishment). This also indicates, and
according to most madhhabs, that the decision regarding retribution or retaliation legally belongs to male family
members only. See Bassiouni, “Quesas Crimes,” 208.
330 Bassiouni, “Quesas Crimes," 204. This concept was important for preserving social order at the inception of
Islam when there was no organized system o f criminal justice and the tribe of a victim would exact a greater
level of retribution against the tribe of the aggressor, and an escalation in violence would ensue. The author
79
A closer examination o f the punishments reveals what an-Na4im finds to be legal
inequalities that require adjustment. In respect to women, An-Na‘im refers only to
inconsistencies with diya, since both the male and female are liable to the same retaliatory
measures for murder (i.e., death). There is a specific rule in the case where a man kills a
woman, and death as retribution is chosen as the punishment. Bassiouni elucidates the
process, explaining, “the family o f the deceased must pay the family o f the executed
perpetrator the equivalent o f one half o f the diyyaihH would have been paid to them had he
been killed and had they been entitled to diyya for his death."252 The family of the female
victim, if it decides upon retaliation, is then obligated to financially compensate the other
family for the loss o f life it has incurred through the punishment. The explanation for this is
economically motivated. Because the male is seen as the breadwinner o f the family (in a
traditional society), it would not be serving justice to execute him for his crime, which
would in effect be punishing his family by depriving them of their source o f income. Thus,
after his execution, the family is afforded an opportunity for economic survival and the
balance o f justice is maintained. The diya for killing a woman is half the amount of
compensation for killing a man.253 This is based on the verses that assign women half the
asserts, “By so limiting the punishment, the infliction of greater vindictive harm upon the perpetrator of the
crime or members of his family or tribe is precluded.”
251 Safwat, “Offences and Penalties” 171. The author does state that in cases where the victim opts for
forgiveness, the stale reserves its right to execute the punishment of ta 'o r (punishments not defined in the
Qur’an or Sunna and are thus left to the discretion of die judge).
Bassiouni, “Quesas Crimes,” 207.
233 An-Na'im, Toward an Islamic Reformation, 116. The author cites Ibn Rushd, Bidayat al-Mujtahid, 2:447;
and Auda, al-Tashri al-Jana ’iy al-Islamiy, paragraphs 155 and 214. Al-Mawardi says, “The diya payable for a
woman, whether her life was taken or one o f her limbs was severed is half that due for a man . " in which he
finds that half the compensation due to a woman encompasses bodily injury as well. Al-Ahkam aJ-SuJtaniyya,
231*233, cited in Liebesny, The Law o f die Near and Middle East, 231. Bassiouni points out that this similarly
applies to infants, insane persons, and physically handicapped persons. See Bassiouni, “Quesas Crimes,” 207-
208. Furthermore, Lippman says, “Retaliation is not inflicted against a father or a teacher who kills a child in
the course of correction. It is this latter provision that allows a father or other male guardian to kill a female
relative who through an act of unchastity, has marred family or tribal honor,” and goes on to state (in conformity
to this provision) that in the area of bodily injury, “Usually there is no retaliation upon a male who inflicts
80
male share in inheritance and half the testimonial competence o f a man.254 This is again
explained by taking into consideration the more prominent economic and social role o f men
in traditional society. Due to the changes in contemporary society, this position may no
longer be justified. Assigning a lesser monetary value to women through compensation
challenges perceptions o f her worth as a member o f society and the family, and enforces the
notion that a crime committed upon a woman does not merit the same punishment as one
committed upon a man. Moreover, this leaves the victim’s family with the options o f either
demanding death and being financially penalized (through payment to the aggressor’s
family) or asking for diya and receiving a lesser payment because o f gender. An-Na‘im
contends that this encroaches upon equality under the law and that this discrimination must
be removed.
Similar problems are apparent in the administration o f qisas when a non-Muslim is
involved in the action, depriving him o f the degree of protection by the law promised to
Muslims. The majority o f the madbhabs reject the execution o f a Muslim for the killing o f a
non-Muslim.255 According to al-Shafff this is based upon the Hadith of the Prophet that
says, “A Muslim shall not suffer death for an unbeliever.”256 Further, an-Na‘im contends
bodily injury on a female, upon a free person who injures a slave, or for acts that occur between slaves.”
Lippman, Islamic Criminal Law, 50-51, 52. (However, when the punishment for bodily harm is administered,
the fine is halfthat for the same injury to a man. Siddiqi, The Penal Law o f Islam, 156.)
254 An-Na‘im, Toward an Islamic Reformation, 116. An-Na‘im also contends that it draws from the part in verse
2:178 that specifies “a woman for a woman”. However, Siddiqi refutes that position, relying on the Sunna,
saying, “These words, however, are not to be taken too strictly; for, according to the Sunnah Law a man shall be
put to death also for the murder of a woman.”
The difference in religion can cross the line between slave and freeman, as Siddiqi remarks, “Regard is also
to be had to a difference in religion, so that a Muslim, though a slave, shall not be put to death for the murder of
an unbeliever, though he be a freeman.” Siddiqi, The Penal Law o f Islam, 149.
256 An-Na'im, Toward an Islamic Reformation, 116 (n43). The author cites al-Auda, al-Tashri, paragraphs 144
and 215 and al-Shaftf, K itib «£ 'Umm, 7:290-291. Siddiqi presents the other opinion, held by Abu Ijanifa, that
a Muslim is to be put to death for killing an unbeliever. He also maintains that in retribution for bodily injury,
the Muslim and the non-Muslim are treated equally both in physical retaliation and compensation. However,
according to Schacht, this only holds for the Hariifi madbhab, the Malilds (in most cases) and die Hanbafis
81
that diya for killing a non-Muslim is less than that for killing a Muslim.257 In light of human
rights imperatives that prohibit manifestations o f religious discrimination under the law, an-
Na'im calls for the extirpation of these inequalities, after which the implementation of this
branch o f criminal justice can proceed.
The nature o f budud crimes is different from that o f qisas crimes. Hudud crimes are
to be applied without allowing discretion to either official or private body because they are
“rights o f God” and have been divinely fore-ordained by God.259 As God’s temporal agent,
the state initiates their prosecution. According to an-Na'im, since there is no Qur’anic
authority for abolishing the punishments for budud crimes in principle, he suggests that their
application be restricted in practice. He says:
In view o f the extreme harshness of the prescribed punishments and the

negative political consequences of their enforcement, I believe that it is better,
as a matter of principle as well as policy, to restrict the requirement of
invariability of punishment for budud to those offenses for which the Qur’an
provides the specific invariable punishment. If this is to be the criterion, budud
would be restricted to the first four offenses, sariqa, baraba, zina, qadbf.
concur with the ShafTite position in this matter. See Schacht, Introduction to Islamic Law, 132; and Siddiqi,
The Penal Law o f Islam, 148-149,155.
237An-Na‘im, Toward an Islamic Reformation, 116 (n44); David F. Forte, Studies in Islamic Law: Classical and
Contemporary Application (Oxford: Austin and Winfield, Publishers, 1999), 90. In Kitab at- ’Umm, Shafi'T
advocates that diya for killing a dbim m is one-third of diya for killing a Muslim (but it ranges from one-third to
one-half the full amount). Again the Hanifis differ from the other madhhabs by requiring full payment of diya
for the non-Muslim.
238 Due to the seriousness of both the offences and consequences of these crimes, an-Na‘im also suggests that
while these crimes belong to the private claim of the victims, there should be state regulation to ensure that
justice is enforced. He states, “Private discretion can contribute to the decision whether to prosecute and also
whether to accept diya in appropriate cases,” but, for instance, if the victim wished to forfeit his interest, “the
state may still wish to prosecute to enforce its view of the public interest If, however, the victim (or his or her
kin) insists on prosecuting under circumstances which, in official estimate, do not warrant a prosecution, the
official organs could decline to prosecute on the grounds that the conditions necessary for the exercise of private
discretion had not arisen.” This illustrates an-Na‘im’s acceptance of the modem nation-state as the official
organ (and final decision) ofjustice and firmly places all criminal punishment in that domain. It also exemplifies
the modem amalgamation of state and law. See an-Na‘im, Toward an Islamic Reformation, 117-118.
239 Taymour Kamel "The Principle of Legality and its Application in Islamic Criminal Justice,” in The Islamic
Criminal Justice System, ed. M. Cherif Bassiouni (London: Oceana Publications, Inc., 1982), 163. The author
explains the severity of the punishments asserting that “crimes of this category are of a grave nature because
they bring about injury to the primordial interest of Islamic society.”
because these are the only offenses for which specific punishments are strictly
prescribed by the clear and definite text o f the Qur’an.260
An-Na‘im excludes sukr (intoxication) and ridda (apostasy from Islam) from the list of
hudud punishments because o f their lack o f specific Qur’anic prescription. Concerning
intoxication, the verse itself does not offer a punishment,261 for it is in the Sunna o f the
Prophet that the punishment o f forty lashes (and later, with ‘Umar, eighty) was laid down.
An-Na‘im argues that when the Prophet administered punishments for intoxication, “the
cases in which he did order punishment were specific instances o f his exercise ofthe power
o f ta ‘zir (discretionary punishment) rather than prescribing a specific and invariable
punishment that makes the offense a badd."lsl Due to the juristic difference in opinion
concerning both the nature o f this crime and the punishment, the lack o f an explicit textual
260 An-Na‘im. Toward an Islamic Reformation, 108. The punishment for sariqa (theft) is prescribed in verse
5:38: “Now as for the man who steals and the woman who steals, cut off the hand of either of them in requital
for what they have wrought, as a deterrent ordained by God”; for baraba (highway robbery) verse 5:33 says: “It
is but a just recompense for those make war on God and His apostle, and endeavour to spread corruption on
earth, that they are being slain in great numbers, or are being [entirely] banished from [the face of] the earth:
such is their ignominy in this world”; for zina, (adultery) verse 5:2 states: “As for the adulteress and the
adulterer - flog each of them with a hundred stripes, and let not compassion with them keep you from [carrying
out] this law of God, if you [truly] believe in God and the Last Day; and let a group of the believers witness their
chastisemenr; for qadhf(slander or unproven accusation of fornication) verse 24:4 stipulates: “And as for those
who accuse chaste women [of adultery], and then are unable to produce four witnesses [in support of their
accusation], flog them with eighty stripes; and ever after refuse to accept from them any testimony - since it is
they, they that are truly deprived!”
261 Verse 5:90 reads: “O you who hive ittained to faith! Intoxicants, and games of chance, and idolatrous
practices, and the divining of the future are but a loathsome evil of Satan’s doing: shun it, then, so that you
might attain to a happy state! By means of intoxicants and games of chance Satan seeks only to sow enmity and
hatred among you, and to turn you away from the remembrance of God and from prayer. Will you not, then,
desist?” This verse is die final prohibition in a succession of three (die other verses are 2:219 and 4:43), and
thus, it is this one from which the legal ruling is derived. The word khamr (derived from khamara, “to conceal”
or “to obscure”) can refer specifically to wine or generally to intoxicants (dial which obscures the intellect) and
this ambiguity has led to disagreement among the jurists on the meaning of drinking. According to ShafiT,
Malik, and Ibn Hanbal the prohibition is upon any beverage that induces intoxication when taken in great
quantity, whether it is wine or not (Asad goes further and incorporates any substance such as drugs.) It is not the
state of drunkenness that induces the punishment but the fact of taking it Abu Hanlfa departs from the others in
two respects. First, he asserts that it is only the drinking of wine that is prohibited both in small and great
quantities. Regarding other intoxicants, he finds that drinking any amount that does not lead to drunkenness
does not warrant punishment. Secondly, if one does drink these other intoxicants to drunkenness, it is the state
of drunkenness that is punishable. Thus, the penalties shall be inflicted in two separate cases, one for the act of
drinking wine in and by itself and the other for drunkenness. The penalties also vary between the schools, with
M ilikand Abu Hamfa prescribing eighty lashes while ShafiT and Ibn Hanbal attest to forty.
262An-Na‘im, Toward and Islamic Reformation, 109.
83
# indicant, and considering the harshness o f the punishment. an-Na‘im advises that it be
removed from the domain o f hudud.
The crime o f apostasy suffers from a similar lack o f explicit textual indication
regarding its temporal punishment. The offense itself according to an-Na‘im, is injurious to
constitutional, civil, and human rights, prompting him to call for the abolishment o f
apostasy as a /ega/concept.263 Ridda is defined as “an act o f rejection o f faith committed by
a Muslim whose Islam had been affirmed without coercion.”264 However, Mahmoud Ayoub
notes that its scope has been expanded by the jurists to include “any statement, action or
belief that may contradict Islam or defame any of its sacred books or personages. More
broadly, any disrespect fill behavior or deviant statement regarding Islam and its sacred
tradition may constitute an act o f apostasy and thus set the perpetrator theologically,
socially and politically outside the accepted norms o f Islam and the Muslim community.”265
The severity of the crime, while technically a religious infraction, arises from the
implications such a denial o f Islam has for the security o f the Islamic state, it being
compromised by the apostate’s public act o f religious, political, and social dissent. The
religious foundation o fth e Islamic state transforms the personal affair of deviating from the
faith into the pernicious act o f treason against the state and society.266 With this in mind
Ayoub explains, “Because apostasy is considered as dangerous to social order and security as

264Mahmoud Ayoub, "Religious Freedom and the Law o f Apostasy in Islam," Islamochristiana 20 (1994): 75.
265 Ibid., 76.
266 Abdullahi An-Na'im, "The Islamic Law of Apostasy and Its Modem Applicability: A Case From the Sudan,”
Religion 16 (1986): 213. The author contends that in the traditional line o f thinking, the vision of Islam is "not
only a religion, but also a social and political order. An apostate repudiates the very basis of this society, and
ceases to hold allegiance to it As such, he is most probably going to engage in hostile subversive activities.
According to this argument, an apostate is killed in order to protect the Islamic polity, an extreme preventive
measure." Siddiqi similarly remarks, “In Islam religion is not a matter o f private relationship between man and
Allah, but is intertwined with society. So when he abandons Islam, he in fact revolts against the authority ofthe
Islamic State and society.” See Siddiqi, The Penal Law o f Islam, 109.
murder, fornication and highway robbery, like them it is punishable by death."267 On one
level, the apostate takes a spiritual step backward through his rejection o f Islam, for in that
decision he also rejects the Truth (having accepted it and known it), which is the surest
course to a good life on earth, and the straightest path to Paradise. On another level, he
consciously converts himself into a disruptive and corrosive element of society (his presence
is considered a dangerous influence) and a traitor to the political order.
Some argue that when apostasy is extricated from its political implications so that it
is not perceived as a threat to the Islamic state, it should not be punished by death.268 Even
so, this rationale is primarily concerned with the political nature o f the crime and does not
address the issue o f freedom o f religion,269 to which an-Na‘im concludes that apostasy is
“inconsistent with modem notions of religious freedom, an internationally acknowledged
basic human right and generally accepted fundamental civil liberty guaranteed by most
constitutions throughout the world.”270 Thus, an-Na‘im rejects the above argument since it
merely limits the imposition o f the death penalty for passive apostasy to which he responds:
According to the logic o f this argument, the apostasy o f the person should be
an irrelevant consideration, the offense being treason or other appropriate
offense against the state. Such offenses can be defined and enforced within the
ordinary criminal law o f the land, without making any reference to the
religious beliefs o f the accused person. When stated in these terms, we find
that this argument lacks legal and theological foundation in Sbari‘a law, which
267 Ibid., 87. The author accounts for the exclusion of women and children from the death penalty for ridda
since they are “less likely to participate in war against Islam and its community.” Such a distinction of penalty
indicates that the primary concern surrounding apostasy is the danger it poses to social and political stability,
rather than the religious implications of forsaking one’s faith.
268Ibid., 214. The author cites Muhammad ‘Abduh and Rashid Rida as proponents of this argument
269 Mahmoud Ayoub avers that freedom of religion is “a recent phenomenon in human history. It may in fact be
argued that freedom of religion as an ideal is the child of the twin-phenomcna of the decline of religion and the
rise of individualism in Western culture. In most traditional faith-communities, particularly those of Judaism,
Christianity and Islam, social, political and religious conformity remains the unquestioned norm.” See Ayoub,
“Religious Freedom,” 75.
270 An-Na'im, “The Islamic Law o f Apostasy,” 213. The beginning of Article 18 of the UDHR states:
“Everyone has the right to freedom of thought, conscience and religion: this right includes freedom to change his
religion or belief.” Article 18 ofthe ICCPR reaffirms this right
85
# is primarily concerned with the question o f religious belief with the notion of
treason or offense against the state coming as a much delayed attempt at
rationalization. Moreover, since these arguments are limited to questioning
the legal basis for imposing the death penalty for apostasy under Sb*ri% and
do not seek to establish a positive right to change one’s religion or faith, they
admit that adverse consequences may follow upon apostasy. This is
inconsistent with freedom o f religion.271
Among the verses from which the jurists cull support for their harsh treatment of
apostasy are 3:86-91,16:106. and 2:217, none ofwhich decree a physical punishment for the
apostate. It is clear that the apostate will endure great torment in the Hereafter, verses 3:87-
88 testifying that ‘Their requital shall be rejection by God, and by the angels, and by all
[righteous] men. In this state shall they abide; [and] neither will their suffering be lightened,
nor will they be granted respite.”272 The classical jurists look to verse 2:217 for the material
271 Ibid., 214-215. Classical Islamic law seeks to find a way out fin1the would be apostate. Like other crimes of
this nature, the rules o f evidence are strict and maintain there should be no ambiguity surrounding the offence.
Abu Hanlfa and Ibn Hanbal contend that an apostate should be given every opportunity to explain her views and
interpretation and if she denies the charge of apostasy, her contentions should be accepted as valid and she
should not be punished. See Siddiqi, The Penal Law o f Islam, 110. However, there are examples of apostasy
that are beyond dispute. These ate the conversion of Muslims to any other religion, the declaration of having
become atheist or agnostic and according to the an-Na‘im (substantiated by a fa tw i from al-Azhar), “Even a
Muslim who does not openly declare himself to have become an atheist, but is known to be a Marxist, for
example, may be held an apostate because Marxism is believed by most Muslim jurists to be incompatible with
Islam.” Today, in Iran and Pakistan, Muslims who join the Baha’i faith or the Ahmadl sect are persecuted and
sometimes prosecuted. Another example offered by the author, and relevant to today’s controversy over the
application of the Shari’a, is taken from those jurists and scholars who insist that any Muslim refusing to judge
or be judged by Islamic law is an apostate since such a rejection of the Shari’a implies that non-Islamic rules are
better than Islamic rules. See an-Na’im, “The Islamic Law of Apostasy,” 212-213. Ayoub argues that apostasy
was never a problem for the Muslim community and only became a political issue with die rise of Western
colonialism and the intensification of Western Christian missionary activities. He reasons, “It remained a
theoretical issue because the people executed for apostasy until the end of the ’Abbasid caliphate in the
thirteenth century were very few. With the new tide of resurgent Islam as a reaction to the secular tide that has
overwhelmed the Muslim world since the midnineteenth century, as well as the contemporary political conflicts
between the Middle East and the West, apostasy has become a thorny issue for both Western missionaries and
secular humanists and for many Western-educated Muslim intellectuals as weU. Muslims have themselves
politicized apostasy by using it as an ideological weapon against one another ” Thus, in an era of political
uncertainty and communal insecurity, apostasy is manipulated and abused, moving away from its limited
application in die traditional administration of the law. See Ayoub, “Religious Freedom,” 90-91.
Verse 86 reads: "How would God bestow His guidance upon people who have attained to the faith, and
having borne witness that this Apostle is hue, and [after] all evidence o f the truth has come unto them? For God
does not guide such evildoing folk.” Verse 89 allows for repentance: "But excepted shall be they that afterwards
repent and put themselves to rights: for, behold, God is much-forgiving, a dispenser of grace.” Verses 90-91
reiterate the harsh condemnation of apostasy: "Verity, as for those who are bent on denying the truth after
having attained to die faith, and then grow [ever more stubborn] in their refusal to acknowledge the truth, their
from which, coupled with Sunnaic reference,273 they argue for the death penalty as
punishment.274 The latter part o f the verse warns, “But if any of you should turn away from
his faith and die as a denier o f the truth - these it is whose works will go for nought in this
world and in the life to come; and these it is who are destined for the fire, therein to abide.”
The reference to the futility o f the actions o f the apostate in this world is interpreted to
mean that such a person is as good as dead and the jurists adduce the verse as argument for
the death penalty.275 Ayoub’s assessment of the Qur’anic characterization o f apostasy
(shared by an-Na‘im) leads him to reason that it is a matter o f faith between the individual
and God, detached from legal or political issues:
In this context, apostasy is a religious and moral decision subject to Divine

retribution or pardon on the day ofjudgment. Apostasy, therefore as a personal
and inner moral decision, ultimately lies outside the authority o f the sacred
law. Had the Qur’an considered apostasy a public offense deserving maximum
punishment (hadd) like theft, adultery or murder, these verses would have been
the proper place for such a ruling.276
Relegating apostasy to the strictly personal domain, stripped of any political, social, and
legal influence is appropriate, according to an-Na‘im, considering its ambiguous textual
repentance [of other sins] shall not be accepted: for it is they who have truly gone astray. Verify, as for those
who are bent on denying the truth and die as deniers of the truth - not all the gold on earth could ever be their
ransom. It is they for whom grievous suffering is in store; and they shall have none to succour them.” Verse
16:106 exhorts: “As for anyone who denies God after having once attained to faith - and this, to be sure, does
not apply to one who does it under duress, the while his heart remains true to his faith, but [only to] him who
willingly opens up his heart to a denial of the truth - : upon all such [falls] God’s condemnation, and tremendous
suffering awaits them.”
273 Ayoub, “Religious Freedom,” 81-83, 84. It is the author’s conclusion that the haditb that support the
punishment of apostasy (the primary one stating, “He who changes his religion, kill him”) are either legal
fictions or too vague to serve as law (and not sound, or sahih), leading him to proclaim “there is no real basis for
the riddah law in either the Qur’an or Prophetic tradition.” He further supports his position by noting juristic
disagreement and ambivalence surrounding the variant baditb literature, and the caution (indicative of the
confusion bred by the variant traditions) with which the jurists approach this matter.
274 However, there is not consensus o f opinion among the jurists in favor of the death penalty. According to
both Safwat and Siddiqi there is “almost” consensus. See Siddiqi, The Penal Law o f Islam, 109; and Safwat,
“Offences and Penalties,” 168.
275 Ayoub, “Religious Freedom,” 79. Ayoub mentions that the word babuta (fail or come to nought) was taken
by some literally to mean “being in a state of corruption, disease, or death.”
Ayoub, “Religious Freedom,” 78-79.
reference, severe penalty in the classical Shari'a, and negative impact upon civil and human
rights, especially that o f freedom o f religion. An-Na'im states that “discharging the vital
function of protecting public and private security should not obscure the very serious risks
o f abuse and manipulation o f this power,”277 and it is with this in mind that he recommends
alterations to the Islamic criminal justice system.
The objections voiced by an-Na‘im to the treatment o f women, non-Muslims, and
criminal justice by the classical Shari'a identify the difficulty in adapting a traditional
system o f law to modem society. An assessment of his methodology will determine if it can
adequately address the problems discussed in this chapter, as well as offer a systematic
procedure for reform and future elaboration ofthe law.
• ___________________________
277 An-Na'im, Toward an Islamic Reformation, 101.
88
# Chapter Three
The Reform Methodology
The Qur’an itself presents, for an-Na‘im, the foremost challenge to adequate reform
o f the Shari'a. An-Na‘im argues that the clear and explicit texts and the resultant definitive
rulings embody practices and postures that are inconsistent with modem society and human
rights laws. These texts are not inherently flawed, for to posit such a contention would
infringe upon the Divine nature of the Qur’an and compromise the message of Islam.
However, the classical understanding o f these texts erects a barrier that prevents Islamic law
from comprehensively adjusting to modernity and stymies attempts at reform that operate
within the traditional methodology. The traditional methodology does allow a considerable
degree of interpretation (through ijtihad) and seeks to furnish laws that accommodate and
correspond to society.278 Yet the classical usul al-Gqb cannot transcend the confines of its
own hermeneutics. Thus, both law and methodology must be subject to reformulation since
much o f the law is no longer applicable, yet the methodology cannot confront and adjust
those incongruous parts o f the law. An-Na‘im asserts, “Given the fundamental conception
and detailed rules o f Shari‘a, it is clear that the objectionable aspects cannot possibly be
altered through the exercise of ijtibad as defined in historical Shari‘a for the simple reason
that Shari‘a does not permit ijtibad\n these matters because they are governed by clear and
Âbdullahi an-Na'im, “A Modem Approach to Human Rights in Islam," 83. The author states, “It is true that
for centuries Shari's has succeeded in adapting itself to changing conditions through the essential flexibility of
its sources and basic principles, coupled with the ingenuity of the jurists. Muslim propagandists have therefore
tended to assume that Muslims can continue today to reform Shari's in the same way. But as suggested above,
even on the bases of fresh ijtihad, that is, the exercise of independent juristic reasoning, such reform is
inadequate because of the limitations placed by explicit texts of the Qur’an and hadith on all reform within the
framework of the traditional Shari's.”
89
definite texts of the Qur’an and Sunna.”279 To this he responds, “I would also argue that
contemporary Muslims have the competence to reformulate usulal-Sqb and exercise ijtihad
even in matters governed by clear and definite texts of the Qur’an and Sunna as long as the
outcome o f such ijtibad is consistent with the essential message of Islam.”280 The allegation
that the texts o f the Qur’an, which have bestowed stability through continuity and a level of
objective truth through their unwavering status o f certainty upon the legal history and
personal conviction o f Muslims for over one thousand years, are now to be subject to human
interpretation is a provocative and aggressive proposal. Does modernity have the power to
influence a hermeneutical paradigmatic shift that deconstructs certainty and reconstructs the
meaning o f law and morality in the Qur’an?281
A. The Meccan and Medinan Texts
An-Na’im insists upon the reform o f both usul al-fiqb and the traditional body o f law
that has emanated from and been sustained by that legal methodology. In order to obviate
the clear and explicit texts that are not subject to reinterpretation through the traditional
conception of ijtihad and that an-Na’im contends are incompatible with human rights laws,
modem thinking on women, the status o f non-Muslims in a Muslim state, and criminal
219An-Na'im, Toward an Islamic Reformation,” 50.

380Ibid., 28-29.
281
Aharon Layish, “The Contribution of the Modernists to the Secularization of Islamic Law,” Middle Eastern
Studies 14 (1978): 578 and passim. Layish claims that reforms seeking to adapt Islamic law to modem society'
have altered its character and legal philosophy, leading it toward secularization. “The shan'a is said to have lost
its character as an eternal, immutable law and, except for matters of worship, to be treated as a function of social
conditions, which by their nature are liable to change.” This contention greatly compromises the law as the
normative and regulating framework of society and instead designates society as that which creates the law. The
methodology that an-Na'im proposes is not im m une to criticism that questions its adherence to the texts as
opposed to die greater freedom it accords to the contribution of human interpretation and expression in the laws,
the fear being that an objective and divine set of guidelines is lost to the whim s and desires o f a particular
society at any given time in history. He admits that “the secularist line of thinking was bom out of Muslim
desperation in trying to reconcile Shari'a with the needs and aspirations of modem Muslim societies,” but he
unequivocally rejects secularization as an option for Muslims today since “secularism is not an Islamic response
to the challenges facing Muslim societies.” An-Na'im, Toward an Islamic Reformation, 48.
justice, as well as an appropriate understanding o f Islam in the modem context, Islamic law
must be derived from the Meccan texts o f the Qur’an and not the Medinan texts. An-Na‘im
explains this movement:
Starting with the premise explained and substantiated in this book. The Second
Message o fh la m , namely, that historical Shari’a is not the whole o f Islam but
merely the level of Islamic law that suited the previous stage of human
development, Ustadh Mahmoud proposed to shift certain aspects o f Islamic
law from their foundation in one class o f texts o f the Qur’an and Sunnah and
place them on a different class o f texts o f the Qur’an and Sunnah. The
limitations o f reform noted above [piecemeal] are removed by reviving the
earlier texts, which were never made legally binding in the past, and making
them the basis o f modem Islamic law. Explicit and definite texts o f the Qur’an
and Sunnah that were the basis o f discrimination against women and non-
Muslims under historical Shari’a are set aside as having served their
transitional purpose. Other texts o f the Qur’an and Sunnah are made legally
binding in order to achieve full equality for all human beings, regardless o f sex
or religion.282
The shift of the textual foundation o f the law presupposes his contentions that the Meccan
and Medinan verses are noticeably different in nature. This difference is manifest in the
language of some verses which may frequently be inconsistent with the provisions of the
other group of verses.283 An-Na’im suggests that the Qur’an should be understood as
containing two messages responding to two stages during the twenty-three years of
revelation and that these messages should be distinguished by the individual texts o f Mecca
and Medina.284 An examination o f the two texts illustrates the purposes o f each message,
282An-Na'im Toward an Islamic Reformation, 23.

283 Ibid., 21. The classical jurists, to resolve the apparent inconsistencies, engaged in abrogation, utilizing it to
draw primarily upon die Medinan text, at the expense of the Meccan text, to derive the law
284 This distinction between the Meccan and Medinan texts is not a novel concept and was most visibly
developed by the Malikite jurist Abu Ishaq al-Sha|ibi (d. 790/1388) in the eighth/fourteenth century. It is
interesting to note that while an-Na‘im and Shatibi share this impression of the Qur’an, they quickly depart from
each other regarding the meaning and elaboration of this understanding. While Shatibi, through an inductive
survey of the Qur’an, reasons that abrogation was not applied to the Meccan universals but only to Medinan
rulings, an-Na'im regards the universals themselves as abrogated by the clear and explicit texts o f Medina.
Moreover, while Shatibi calls for a wholistic approach to the Qur’an, whereby every part of the later Medinan
text must be viewed and explained in terms of the earlier Meccan text, an-Na'im neatly parcels the two
revelations into separate entities that are relatively independent of each other. See Chapter Five of Hallaq,
91
the reason for the variation in their content, and how an-Na‘im applies this to his
methodology for reform.
The basic premise for an-Na‘im’s methodology is that the Meccan text contains the
eternal and fundamental message of Islam. The substance o f the message accentuates the
original principles, values, and moral character o f Islam and conveys, as Taha explains, “the
stage o f the truth (al-baqiqah) or knowledge.”285 It emphasizes the inherent dignity o f all
human beings and the equality o f all persons regardless o f gender, race or religious belief as
well as the freedom o f choice in matters of faith.286 The verses address the whole o f
humanity through exhortations such as “O, h um ankind ” and “O, children o f Adam,” that
speak to all people at all times.287 This message transcends all temporal classifications and
limitations, providing an inclusive and an all-embracing meaning o f Islam
The content o f this message shifted from the stage o f truth to that o f dogma (*/-
‘aqldab) with the migration to Medina. An-Na'im attributes the alteration of the message
to the inability o f the nascent Muslim com m unity to implement the message o f the Meccan
period, because, in its entirety it was inappropriate for seventh century Arabian society. He
asserts, “When that superior level of the message was violently and irrationally rejected and
it was practically demonstrated that society at large was not yet ready for its
implementation, the more realistic message o f the Medina stage was provided and
Islamic Legal Theories', Muhammad Khalid Masud, Islamic Legal Philosophy: A Study o f Abu Isbiq ai-
Sbatibi’s Life and Thought (Delhi: International Islamic Publishers, 1989), passim.
285 Taha, Second Message, 46.
286 Examples of this are found in verse 16:125 instructing the Prophet to: “Call thou [all mankind] unto thy
Sustainer's path with wisdom and goodly exhortation, and argue with them in the most kindly manner for,
behold, thy Sustainer knows best as to who strays from His path, and best knows He as to who are the right-
guided,” as well as verse 1829 which beseeches: “And say: ‘The truth [has now come] from your Sustainer: let,
then, him who wills, believe in it, and let him who wills, rqoct it
287 Verse 49:13 provides: “O, humankind, We have created you into male and female, and made you into
peoples and tribes so that you may be acquainted [and cooperate] with each other; the most favored by God
among you are those who are righteous and pious.”
implemented.’'288 The message o f the Meccan period was rejected because it did not offer
practical assistance and support for the survival and cohesion o f a struggling community
existing in a hostile environment. The Medinan text was revealed specifically to the early
Muslim community in order to guide and assist them in establishing and propagating the
religion in a violent social and physical environment. The audience of the revelation is no
longer universal but speaks to a particular nation o f adherents to the new faith, indicated by
phrases such as ‘O believers’ or ‘O you who have attained the faith’289 rather than ‘O
humankind.’
Since the audience o f the revelation in Medina is specific, the content is also
specific, pertaining to actual circumstances and events o f the time, and offering practical
solutions to social realities. This is observed in the relationship between the Muslims and
non-Muslims, whereby the fortitude of the faith and its political endurance could not be
secured through an observance o f the principles laid down in Mecca (non-coercion, peaceful
co-existence) but called for explicit authorization of forceful action, which was justified by
the historical context o f violent intercommunal relations. However, the use o f force was
allowed in a progressive manner, demonstrating a gradual change in the content o f the
message as it directly affected the plight o f the believers.290 The Qur’an first permitted
288An-Na'im, Toward an Islamic Reformation, 52-3.

289 Verses 2: 178 begins: “O you who have attained to faith! Just retribution is ordained for you in cases of
killing;” and then offers a legal prescription specific to that community of believers.
290 Ibid., SS. An-Na'im also explains this as “the overlap between the two stages of Mecca and Medina led to a
gradual rather than an abrupt change in the content of the message. In the same way that force was sanctioned in
a gradual, progressive manner, sanction for noncompulsion and the use of peaceful means continued to appear in
the Qur’an during the early Medina period. For example, verse 2:256, 'there is no compulsion in religion, the
right path has been determined and set aside from die wrong path,’ was revealed in the Medina period.” Ann
Mayer contends that the traditional interpretation of this verse included dhimmls only, which would preclude
anyone not considered such from the tolerance the verse accords. Ann Elizabeth Mayer, Islam and Human
Rights, 140.
93
force in self-defense and retaliation for injustices executed by unbelievers291 but an-Na‘im
stresses that “the overwhelming impact o f the Qur’an o f Medina has been to sanction, if not
positively command, the use o f varying degrees ofcoercion on non-Muslims to induce them
to convert to Islam.”292 These verses are a Medinan phenomenon meant to confront the
immediate issues o f that society.
The Medinan text contains verses that addressed and regulated the affairs, as well as
endorsed particular means and practices, o f the Muslim community that were appropriate for
that historical time. The Islamic society that was developing under the auspices o f the
revelation could not completely extract itself from pre-existing norms and institutions. One
example is the entrenched position o f slavery that Islam recognized and accepted, yet
attempted to adjust its circumstances through improving its conditions.293 The intent o f the
revelation was for the eventual eradication o f the institution by restricting its incidence and
encouraging its termination, but an-Na‘im finds that “since there was no internal mechanism
by which slavery was to be rendered unlawful by Shari’a, it continued to be lawful under
391 Verse 2:190 states: “Fight in the cause o f God those who fight you, but do not transgress the limits [initiate
attack or aggression], for God does not love die transgressors.” And verse 22:39, “Permission [to fight back] is
[hereby] given to those against whom war is made; and God is Most Powerful and Able to support them. [They
are] those who have been wrongfully expelled from their homes [for no cause or reason] except that they say
‘God is our Lord’; if God did not check one set o f people by means of another, there would surely have been
destruction of temples [of worship] and property.”
292 An-Na'im, Toward an Islamic Reformation, 33. He cites verse 9:29, which enjoins Muslims to, “Fight those
People of the Book who do not believe in God or the Last Day, nor hold as forbidden what has been forbidden
by God and His Apostle [the Prophet of Islam], nor acknowledge the Religion of Truth [Islam] until they pay
jizya with willing submission, and feel themselves subdued.” This verse references force against dhinums, but
in matters of compulsion to convert to Islam, verses pertaining to polytheists or unbelievers are more
appropriate, such as verse 9:3.
While there is no verse in the Qur’an that directly sanctions slavery, many verses presuppose its existence
and its legal abolishment is not explicitly commanded. Verse 47:4 restricts the scope of slavery by advocating
the release of prisoners of w ar “Now when you meet [in war] those who are bent on denying the troth, smite
their necks until you overcome them fully, and then tighten their bonds; but thereafter [set them free,] either by
an act of grace or against ransom, so that the burden of war may be lifted: thus [dial! it be].” Verses 4:92 and
38:3 prescribe the emancipation of slaves for religious penance and atonement for some sins, verses 2:177 and
90:11-13 recommending this as a meritorious act
94
that system o f law up to the present d ay ”294 In the case o f women, the Qur’an could
ameliorate their position but not radically modify their station, for such a disruption in the
societal norms would have produced upheaval and a total rejection o f Islam.295 In the
Medinan text, the organization of the Muslim community was communicated through rules
and legislation that imparted a sound social structure consistent with that milieu, such as the
detailed rules concerning marriage, divorce and inheritance. While the detail and clarity o f
the text was useful and necessary in establishing the foundations ofthe first Muslim society,
these guidelines were specific to that time and place. As Rahman explains, “The Qur’an,
although it is the eternal Word o f God, was, nevertheless, immediately addressing a given
society with a specific social structure. This society could, legally speaking, be made to go
only so far and no more.”296
Why did God reveal the Qur’an in this way? An-Na‘im recognizes two reasons for
the two distinct messages. The finality o f both the revelation and the prophecy o f
Muhammad required that the Qur’an contain and the Prophet promulgate, all that God
desired to bestow upon humanity for immediate as well as future application. The second
reason revolves around the dignity and freedom that God conferred upon all human beings:
In accordance with that dignity and freedom, God wished human beings to
learn through their own practical experience with the inapplicability o f the
earlier message o f Mecca, which was then suspended and replaced by the more
294 An-Na'im, Toward an Islamic Reformation, 174-5. The fact that slavery is permissible under Islamic law has
practical consequences and has legitimized forms of secret practices akin to slavery, according to an-Na'im. “In
the Sudan, for example, images of slavery under Shari'a and Islamic literature continue to support negative
stereotypes of Sudanese from the southern and western parts o f the country, which were sources of slaves until
the late nineteenth century. Moreover, recent news reports indicate that Muslim tribesmen o f southwestern
Sudan feeljustified in capturing non-Muslims from southern Sudan and keeping them in secret slavery.”
293 Ann Elizabeth Mayer, Islam and Human Rights, 98. Mayer explains, “Not only did the Qur’an dismantle
existing institutions that contributed to women’s degraded and vulnerable status, but Islam conferred rights on
women in the seventh century that women in the West were unable to obtain until quite recently. M uslim
women, for example, enjoyed foil legal personality, could own and manage property, and, according to some
interpretations ofthe Qur’an, enjoyed the right to divorce on very liberal grounds.”
295 Fazlur Rahman, Islam, 232
95
practical message o f Medina. In that way, people would have stronger and
more genuine conviction of the practicability o f the message that was
propagated and eventually implemented during the Medina stage.297
The two texts of the Qur’an are not mutually exclusive, but An-Na’im insists that they can
only be compatible in the area of law by understanding the two messages they contain.
Rahman articulates the importance of both texts, stating, “The Prophet could have, had he
so chosen, indulged in m erely grandiose moral formulas. But then he could not have erected
a society. Therefore, a legal and a moral approach were both equally necessary.”298 The
message o f Medina has been elaborated and explained, its legal prescriptions offered for
immediate application to erect the first Muslim society, but the message of Mecca was only
outlined and its moral precepts await implementation.299 Their elaboration and
interpretation require a fresh understanding of the Qur’an for which an-Na’im’s offers his
methodology.
B. Hermeneutics and Historical C ontext
The shift in emphasis from one set of Qur’anic texts to the other entails a
substantial rethinking o f the Qur’an and a reconstruction o f the law it generates. An-Na’im
accepts that Islamic law in the past, present, and future must be based upon the Qur’an and
Sunna expressly indicating that “it is not suggested here that Islamic law should simply
follow developments in human history regardless o f the provisions o f the Qur’an and
Sunna.”300 It must be emphasized, however, that the approach to and later engagement of
those sources as well as the concepts, ideas, and laws that are derived from them, are done

298Rahman, Islam, 232.
299Taha, Second Message, 47.
Âbdullahi an-Na'im, Islam ic Ambivalence to Political Violence: Islamic Law and International Terrorism,”
German Yearbook o f International Law 31 (1988): 324.
96
through a process o f human interpretation. An-Na‘im obtains support for this from the
Qur’an:
This principle should be easily appreciated by Muslims because even the

Qur’an, which they believe to be the literal and final word o f God, clearly
describes itself in verses 12:2 and 43:3 as something conveyed through the
vehicle of the Arabic language in order to be reflected upon and understood
through the faculty o f reason. In verse 29:49, the Qur’an describes itself as
something which is understood and appreciated by the hearts and minds of
those granted knowledge. Consequently, Muslims should realize that they are
always dealing with a human interpretation of their sacred sources rather than
the sources p erse.301
The acceptance ofthe presentation ofthe Qur’an as containing two messages is at the mercy
o f hermeneutics. An-Na’im must first establish the significance and scope o f human
interpretation in understanding and perceiving the Qur’an in order to then convince Muslims
that his conceptual proposal is viable and legitimate. It is not merely a reinterpretation of
the Shari‘a that he seeks but a critical adjustment in how the Islamic texts themselves are
regarded. This ultimately involves a breach in the continuity of traditional thought and not
merely in legal application.
An-Na’im begins with an inquiry into how the Islamic scriptures are envisioned by
the legal interpreter. He insists that those texts and their normative implications can only
be understood in terms o f the knowledge and experience of the world by the reader and that
since the world changes over time, this knowledge and experience changes, leading him to
reason that “Islam should not be bound by any particular understanding o f its scriptural
sources.”3® If Islam is not bound to one interpretation because the nature of existence
dictates flexibility and change in its implementation over time and place, an-Na’im can
argue for a fresh approach to and understanding o f the sources. This would necessarily
301 Ibid., 334.

302An-Na‘im, “Toward an Islamic Hermeneutics," 238.
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educe a new legal structure premised upon an entirely transformed mentality, whereby the
principles o f Islamic law formulated by the classical jurists no longer remain as the only
valid and applicable law, but these principles are subject to reformulation and
reinterpretation. In this respect, an-Na‘im declares that morals are not immune to human
interpretation and are susceptible to an evolution in their understanding which influences
their concrete application in society. An-Na‘im attributes the transformation o f such
principles embodied in the Qur’an to an awareness ofthe influence o f historical context in
their interpretation:
In interpreting the primary sources o f Islam in their historical context, the

founding jurists o f Shari‘a tended not only to understand the Qur’an and Sunna
as confirming existing social attitudes and institutions, but also to emphasize
certain texts and “enact” them into Shari‘a while de-emphasizing other texts or
interpreting them in ways consistent with what they believed to be the intent
and purpose o f the sources. Working with the same primary sources, modem
Muslim jurists might shift emphasis from one class o f texts to the other, and
interpret the previously enacted texts in ways consistent with a new
understanding o f what is believed to be the intent and purpose ofthe sources.
This new understanding would be informed by contemporary social, economic,
and political circumstances in the same way that the “old” understanding on
which Shari‘a jurists acted was informed by the then prevailing
circumstances.303
The ability to neatly parcel the Qur’an into two textual entities comprised o f two meanings,
pivots upon a reinterpretation dependent upon the engagement of historical context to
comprehend the revelation of both texts. The legislated message of Medina is an application
o f the principles o f Islam but since it is time - and place - specific it follows that the
understanding of the principles behind the legal rulings is also time - and - place specific.
Thus, the rules are not permanent. The universal principles may be found in the text of
Mecca, but their understanding and application rest upon the discernment ofthe interpreter.
303An-N*‘im, "Human Rights in the Muslim World,” 47.
Upon the acceptance o f this interpretation o f the Qur’an as an historical document
comprised o f two distinct messages, an-Na‘im propounds that Islamic law is to proceed from
the moral message revealed in Mecca having fulfilled its adherence to the specifically
legislated message o f Medina.
The textual shift for establishing a new domain o f legal operation allows an-Na’im to
conform to the classically formulated canons o f linguistic interpretation by which the legal
language ofthe Qur’an is regarded as non-figurative. He asserts, “Moreover, I maintain that
the proposed reinterpretation is consistent with normal Arabic usage and apparent sense o f
the text. It is neither contrived nor strained.”3** The implication of this contention is clear,
for he does not want to engage his methodology in an entirely figurative interpretation o f
the Qur’an, an endeavor that would risk charges o f arbitrariness and extreme subjectivity o f
the interpreter, thereby compromising the integrity o f his effort. He appears, then, to
assume a literal approach to the Qur’an, for he does not suggest a metaphorical or inner
meaning to be discovered which would constitute legal matter. However, if he retains
literalism as his linguistic reference to the Qur’an as opposed to the figurative, he must
account for the clear and explicit legal tracts embodied in the Medinan revelation.3(6 He
elects to render them legally inoperative and non-binding, abandoning their legal force
304 Ibid., 49.

305 An-Na'im, Toward an Islamic Reformation, 62. It is in this area that an-Na'im deviates from Rahman in his
methodology. An-Na'im cannot accept the presence of clear texts that are read literally and remain legally
operative for application, even if one attempts to elicit the moral precepts behind those legal prescriptions. As
long as those verses remain legally binding, their clarity could hinder the realization of the moral precepts into
law by never completely stripping the presence and influence o f the real and literal meaning from the text He
gives the example of slavery and says, "These Muslim intellectuals would argue, for example, that although the
Qur’an accepted slavery as a formally legal institution, its intention was clearly to abolish slavery once
conditions permitted. Unless an effective legislative mechanism for realizing this ‘original intent’ of the Qur’an
is initiated, however, the previously implemented ‘transitional’ principle o f legalized slavery will remain intact”
He considers his methodology as die only mechanism which renders the legislative texts as legally inoperative
and offers the ‘original intent’ while adhering to a literal reading of the Qur’an.
with permission o fth e copyright owner. Further reproduction prohibited w ithout permission.
99
through his methodological shift of legal textual basis. His insistence on adhering to the
real and apparent use o f the language necessitates a textual shift.
A textual shift also enables him to circumvent all texts that remain outside the
domain o f ijtihad. In essence, he calls for the interpretation by the jurist o f every text
consulted since no text remains locked in certainty. The clear texts that are
epistemologically certain and that elicit definitive rulings precisely because o f the literal
approach o f the classical methodology are absolved o f their impact. An-Na‘im pushes the
limits o f certainty to the breaking point by challenging the very existence of certainty,
stating:
First, there is no such thing as the only possible or valid understanding ofthe
Qur’an, or conception o f Islam, since each is informed by the individual and
collective orientation o f Muslims as they address themselves to the Qur’an
with a view to deriving normative implications for human behavior.306
306 An-Na'im, “Toward an Islamic Hermeneutics,” 233. While classical usulal-Dqh aims to provide rules which
guide the interpreter toward resolving uncertainty regarding the intention of the lawgiver (indeed he aspires to
attain certainty), the methodology accepts and constructs a system based on the premise of probability. See
Aron Zysow, The Economy o f Certainly: An Introduction to the Typology o f Islamic Legal Theory (Ph£>.
Dissertation: Harvard University, 1984), 132. However, in the classical literature two postures emerge relating
to how much of die law is certain and how much is merely probable (as described by Weiss, the rigorist position
attempts to maximi/e certainty through any means possible while the liberal position is content with “a law that
is probable in large part or even in the greater part”), and according to Weiss, “With few exceptions, both camps
recognized a place for the probable. What they differed on was die degree to which the probable could be
admitted into the law. Differently stated, the issue had to do with the limits of certainty. How far could the
certainty of die law be convincingly pushed?” Weiss asks yet another question: the jurist must go through “a
process o f probability building before reaching the point where probability transformed itself into certainty.
How likely was the mujtahid to read that point?” In other words, how often could the jurist attain certainty?
While the jurists regard the attainment of certainty as always possible, it is, in many instances, unlikely. Yet this
necessarily admits that in a few instances it is possible. As Weiss explains, “Probable law can enjoy the same
authority as certain law only when certain law has been proven to be unattainable. Probable law, in other words,
is law that acquires authority in default of certain law....Once he [die mujtahid] reaches the point where he can
sty with a clear conscience that he has investigated die texts to the best of his ability, then, if he has not attained
certainty, he may rightfully regard it as, for him, unattainable.” An-Na'im proceeds beyond the classical
construction of certainty and probability by pushing the limits o f certainty to die ultimate extreme and
completely forgoing even the possibility of reaching certainty, as indicated by his dismissal of those few
unequivocal texts that the classical jurists investigated and then established as certain. See Weiss, Spirit o f
Islamic Law, 91-92,110,112.
By liberating the entire body o f text (or the text that is available to juristic exercise, i.e. the
Meccan text) from certainty and subjecting it to ijtibad, he invites all legal enterprise into
the realm o f probability since the goal o f ijtibad itself is probability.307
The Meccan text is more conducive to an-Na‘im’s interpretive intentions since its
general character offers fewer particular legal rulings. Conversely, the Medinan text imparts
verses o f specific legal rules and practical legislation, the interpretation o f which is
tempered by its literalism. An-Na‘im rejects the atomistic typology o f the classical
interpretation through his concern with the overarching moral structure o f Islam instead of
individual legal dicta. Thus an-NaMm seeks fiist to establish the principles o f Islam and
then to extract more specific rules from those principles, rather than implement specific
legal dictates requiring an investigation into the principle that supports them.308 The spirit
or wisdom behind the law is ascertained before the law itself. Moreover, a universal
principle can manifest in a variety o f laws, depending upon its interpretation and its
translation into a particular society, whereas an explicit piece of legislation suffers more
rigidity in its implementation and must maintain its form irrespective o f any change in the
structure o f the society it governs.
307Zysow, The Economy o/Certamty, 469.

308 Since the Meccan text offers an interpretation that reveals abstract and fundamental principles and not textual
rulings, the classical usuEexercise of discerning an ‘ilia or ratio legis (reason or cause) of a tuling in the text of
the Qur’an is essentially reversed. The reason o f a stated ruling is no longer sought to explain or justify that
ruling (the text may explicitly state the 'ilia of the ruling concerned or the jurist may have to identity it through
his own speculative reasoning, moreover, the believers are supposed to accept a ruling regardless of whether an
'ilia can be found) for the principles and values are themselves the reason as well as the rationale (bikma) that
are the material by which die jurist later interprets and devises laws. In this framework, the ‘ilia is inseparable
from the bikma. This conflicts with the Ash’ante position, which sustains most classical legal theories and
which contends that man is incapable of ascertaining the rationale behind God’s revelation. For more complete
explanations o f die ‘ilia in traditional usul al-Gqh see Hallaq, Islamic Legal Theories, Chapter Three; Kamali,
Principles o f Islamic Jurisprudence, Chapter Nine.
101
However, his insistence upon adhering to the general principles at the expense of the
specific rulings meddles with the classical rules concerning the general and particular.309
According to these rules, the specific and particular provisions take precedence over the
complementary general provisions in that initially one is to refer to the former and then the
latter in dealing with a situation.310 Moreover, the two should not be seen to conflict, but
the specific determines their conformity and dictates the legal impact of the general, as
Bassiouni articulates, “No general provision can be interpreted so as to contradict a specific
provision, and a specific rule will be controlling over a general proposition.”311 This is
perfectly logical if one assumes that the two are in perpetual harmony, which an-Na‘im
questions in light of present conditions.
An-Na’im’s methodology reverses this construction by according the superior
position to the general rule, assuring its predominance in his legal methodology. The
specific is deemed no longer capable of particularizing the general since its function is
bounded by contextual restraints, hence its particular nature. It is precisely these particulars
from which an-Na‘im seeks to escape. It follows then, that the rules supporting this area of
the traditional methodology crumble in an-Na'im's methodology.312
An understanding o f text and context is a central feature o f an-Na'im behind the
hermeneutical enterprise o f his methodology and involves a two-part investigation: First, he
309 For an explanation of this process in classical usul al-Gqh see HaOaq, Islamic Legal Theories, 45-47.
310 M. Cheiif Bassiouni, “Introduction,” in The Islamic Criminal Justice System, ed. M. Cherif Bassiouni
(London: Oceana Publications, Inc., 1982), xiii-xiv.
311 Bassiouni “Introduction,” xiv.
312 Again, we refer to Shatibi, but this time regarding his treatment of the general and particular. He couches the
two in tetms of certainty, whereby through an inductive appraisal of the Qur’an (informed by similar specific
statements) he ascertains the general principles, and only if the induction is complete, are they afforded certainty
(otherwise they remain probable). Upon attaining certainty, the general principle becomes the governing precept
concerning a legal issue. Its certainty guarantees that “no diverging particular can refute or falsify it,” because a
particular is always probable and thus, cannot refute die certainty of a general principle. Hallaq, Islamic Legal
Theories, 192-193. An-Na‘im, while similar in his conception of the general and particular, does not share the
inductive analysis that leads Shatibi to this conclusion.
102
exposes the discrepancies between the two bodies o f text to be resultant of the social and
historical dissimilarity between the Meccan community and the Medinan community, a
point I have considered in the first part o f this chapter and which requires further reflection.
Second, since the classical jurists primarily drew from the Medinan text, the classical
Shari'a reflects laws that correspond with and suit that social context, which is no longer
discernable in modem society. By emphasizing the importance o f regarding the Qur’an as
“a document that grew within a background, from the flesh and blood o f actual history,”313
an-Na‘im suggests that historical context be the framework for interpretation and
application o f the basic sources of Islam.314 An-Na'im supports an historical interpretation
o f the sources and he intimates that most Muslims would concur, by saying, “However, it is
safe to assume that most Muslims would agree that the given interpretation must be
consistent with the realities ofthe concrete situations within which a proposed principle is
supposed to be applied.”315 Thus, the moral values themselves are eternal but their
application to a particular set of social circumstances is varied and flexible.316
An-Na‘im posits that the distinction between the Meccan and Medinan texts is a
response to the dictates o f time. He provides an explanation o f this historical occurrence:
Following the statement o f the basic underlying religious and moral norms of
the Mecca stage, the Prophet set about establishing the first Muslim political
state in Medina. In this way the Qur’an in theory, and the Prophet in practice,
313 Fazlur Rahman, Islam and Modernity: Transformation o f an Intellectual Tradition (Chicago: University of
Chicago Press, 1982), 144.
314An-Na’im, “Islamic Ambivalence to Political Violence,” 324.
3,3 Ibid., 334.
316 Fazlur Rahman, “Towards Reformulating the Methodology of Islamic Law: Sheikh Yamani on ‘Public
Interest’ in Islamic Law,” New York University Journal o f International Law and Politics, 12 (1979): 220. This
is similar to what Bassiouni says: “Muslim scholars do not consider Islam to be an adaptable religion or system
of law, in the sense that it is evolutionary, but rather that it is a religion and legal system which applies to all
times. It is therefore the application that is susceptible to evolution. Indeed, the provisions of the Qur’an are
such that by their disciplined interpretation...Islam can provide the solution to contemporary social problems
through the rule o f law (emphasis mine).” Bassiouni, “Introduction,” xiv. I believe that an-Na‘im is more
radical in his approach and would not confine evolution to the application alone, but to Islam in general.
103
had to respond to the concrete realities of establishing an Islamic state in

seventh century Arabia. This process did not need to exhaust the whole o f the
religious and moral principles o f Islam as established in the Mecca state. Seen
in this light, the Medina model o f the Islamic state was obviously a specific
model in response to a concrete situation.317
This statement indicates that while the Medinan revelation utilized the principles of the
Meccan revelation and systematically applied them to a social reality in a particular
historical context through specific legal language, it did not apply all o f them, implying that
some principles were not appropriate at that time for that community. Moreover, the
Medinan revelation implemented the principles in a manner suitable for the needs and
requirements o f that religio-social and historical background, i.e. seventh century Arabia at
the inception o f Islam.
It is important to note that an-Na‘im perceives the practical application of the
Meccan principles through legal enactment in the Medinan revelation to be a social and
political endeavor, the legal rulings responding to social exigencies and not matters of
worship and ritual. Rahman adds to this:
The eternity o f the Word o f God can be substantially admitted. As for the
eternity of the letter o f the Law, it may be justifiably contended that in
questions which touch social regulations, the Divine Ordinance has a moral
plane and a specifically legal plane, the latter being a transaction between the
eternity of the Word and the actual ecological situation o f seventh-century
Arabia. The ecological aspect is obviously liable to change.318
An-NaMm entrusts the Meccan text with the moral plane and eternity of the Word; its
transaction with social regulations that then produces the letter ofthe Law are the property
o f the Medinan text, which clearly delineates the purely moral from the purely legal by text.
Thus, since the social and physical environments of Mecca and Medina were different,
317An-Na‘im, “Religious Minorities," 1S.

318Rahman, “Islamic Modernism: Its Scope, Method and Alternatives,” 331.
producing distinct texts that addressed the social variation, he reasons that the legal
prescriptions should continue to change and adapt to new circumstances.319 When one reads
the Medinan text it is through a lens o f historical context whereby the legal rulings portray
the moral precepts (of the Meccan message) pertaining to a particular society at that time.
The morals themselves do not change but the degree and mannerofrepresentation as well as
their understanding are contingent upon historical conditions and this interplay between the
moral and the socio-historical is present in the body ofthe Qur’an itself
Modem society, however, no longer resembles the Medinan model. The laws
pertaining to the Medinan society were sufficient to assist a Muslim community that
experienced a moderate degree of transformation over a protracted period of time.
Moreover, the legal methodology of the classical Shari'a could adequately adjust to a quiet
evolution o f society that never challenged its most explicit social legislation. As Rahman
explains, “It must also constantly be home in mind that the Muslim community has
developed over the centuries (say, since the tenth/eleventh) a temper whereby it can swallow
small changes without perceptibly moving forward,” but he continues to say that “modem
societies have acquired far more complexity than ancient and medieval societies.”320
Modem society has utterly raptured the cohesion o f the traditional society to the point
where its institutions, mentality, and relationships are no longer sustainable. An-Na‘im
describes this modem situation:
It is obvious that the orientation o f the modem Muslims should be different

from that o f earlier generations because o f the radical transformation of the
existential and material circumstances of their life today in contrast to those of
the past. For better or for worse, Muslims now live in a globalized world o f
political, economic and security interdependence, and mutual social/cultural
319An-Na‘im, “Religious Minorities,” 17.

320Rahman, Islam and Modernity: Transformation ofan Intellectual Tradition, 146,160.
105
influence. Their conception of Islam, and efforts to live by its precepts, must
be conditioned by modem perceptions o f individual and collective self-interest
in the context o f this radically transformed world. Whatever vision Muslims
may have for change or improvement in the present realities of the world today
must also be grounded in the circumstances and conditions o f this world.321
A concern with the translation o f Mamie precepts into the modem context clearly
informs an-Na‘im’s preoccupation with the importance o f historical context as constituting
the hermeneutical framework o f an anthropological or organic approach to the Qur’an. The
radically transformed world-historical context makes the laws that were revealed in Medina
and pertained to that period no longer tenable.322 Those verses that contain specific
legislation affecting the community of Medina no longer exemplify the Islamic principles
divulged in Mecca if those legal ratings are to be enacted today. They are no longer
appropriate for the society they intend to govern and their anachronistic nature is more
disruptive than regulatory. To require their literal implementation in all ages means that
history should literally move backwards,323 which jeopardizes the proposition that Islam is
suitable (valid) for all times and places. The latter statement is considered true by an-
Na'im, as long as Muslims regard the Qur’an as possessing both a moral and eternal message
as well as a legal and immediate message. By understanding the historical context of the
legislation revealed in Medina, the modem attempt to re-embody the genuine values ofthe
Qur’an can begin. He claims, “The Medina model was the appropriate structure in its
historical context. However, it was never intended to be the final model o f an Islamic
321 An-Na'im, “Toward an Islamic Hermeneutics,” 237.

322Abdullahi an-Na'im, interview by author, May 11,2000, Washington, D.C.
323 Fazlur Rahman, “Revival and Refonn in Islam,” in The Cambridge History o f Islam, EB, eds., P.M. Holt,
Ann K. S. Lambton, and B. Lewis, Islamic Society and Civilisation (Cambridge: Cambridge University Press,
1970), 640.
state.”324 His assertion that the Medina model is neither the ultimate nor ideal model for
Muslim society calls for Muslims to regard their tradition in its historical context,
unencumbered by an ingrained idealism that promotes backward and not forward thinking.
To continue to draw upon that text is to argue that Islam suits the historical context of
Medina alone.325 The evolution o f the Shari‘a is be acknowledged as Taha observes,
“[Muslims] continue to think that the problems ofthe twentieth century may be resolved by
the same legislation that resolved the problems o f the seventh century. This is obviously
irrational.”326 An-Na‘im implores Muslims to instigate a renewed construction of an Islamic
community with the principles of Mecca rather than the legal rulings of Medina as the
foundation, advocating that, “One may find the modem model of an Islamic state in the
broad principles o f justice and equality contained in the Qur’an and Sunna of the earlier
stage of Mecca before the migration to Medina.”327 It is indispensable to examine bowaa.-
Na‘im intends to actuate the shift from the Medinan texts to the Meccan texts through the
mechanics o f a procedure that he contends will achieve a reformulated Islamic law
appropriate for modem society.
C. An-Na‘im’s Use o f Naskb and Ijtib a d
An-Na’im employs the classical theory o f naskb as the lynchpin of his methodology.
It is through naskb that he authorizes and justifies the evolution o f Islamic law through a
shift in textual basis, removing Islamic law from its classical trappings, dissociating its
formulation from the legal rulings ofth e Medinan text, and reformulating its provisions by
324 AbduUahi an-Na‘im, “Islamic Law, International Relations, and Human Rights: Challenge and Response,”
Cornell International Law Journal 20,2 (1987): 322.
325 Ibid., 334.
326Taha, Second Message, 39.
327
Ibid., 334.
depositing the legal impetus in the principles ofthe Meccan revelation. He reconstructs its
meaning and thoroughly rethinks its rationale and application before utilizing it in his
methodology. Taha provides the explanation o f naskb from which an-Na‘im draws:
The evolution o f Shari‘a, as mentioned above, is simply its evolution by

moving from one text [of the Qur’an] to the other, from a text that is suitable
to govern in the seventh century, and was so implemented, to a text which was,
at the time, too advanced and therefore had to be abrogated. God said:
“Whenever We abrogate any verse or postpone it, We bring a better verse, or
similar one. Do you not know that God is capable o f everything?” (2:106) The
phrase, “When we abrogate any verse” means cancel or repeal it, and the phrase
“or postpone it” means to delay its action or implementation. It is as if the
abrogated verses were abrogated in accordance with the needs ofthe time, and
postponed until their appropriate time comes. When it does, they become the
suitable and operative verses and are implemented, while those that were
implemented in the seventh century become abrogated. The dictates of the
time in the seventh century were for the subsidiary verses. For the twentieth
century they are the primary verses. This is the rationale of abrogation....[In
other words it was not intended to be] final and conclusive abrogation, but
merely postponement until the appropriate time.328
This statement reveals that naskb, according to Taha and an-Na‘im, is a product o f the
presence o f two messages in the Qur’an and presupposes obvious inconsistencies between
the two.329 Since the two messages differed because o f socio-historical considerations, the
process o f abrogation began at the time of revelation and was not invented as a later juristic
enterprise. The message o f Medina was revealed to abrogate the message o f Mecca in order
to provide more suitable direction for that society and subsequent societies that conformed
328Ibid., 40.
329 An-Na'im, Toward an Islamic Reformation, 59. An-Na'im argues that abrogation is unavoidable when
dealing with the Qur’an because there are blatant contradictions in the text and that any attempts to reconcile
these conflicts ultimately faiL “Some modern Muslim writers have addressed this question. Some of them have
attempted to harmonize and reconcile apparently contradictory verses; others have rejected the theory o f naskh
altogether. The crucial question facing both approaches is what to do with the subsequent clear and definite text
if the earlier text is to be deemed binding and operative. For the reconciliatory approach, as long as both sets of
contradictory verses remain legally operative and binding, reconciliation is impossible. For those who reject
naskh altogether, the question becomes, Which set o f verses represents the law o f Islam on a given subject?”
For arguments that proceed in this vein, see Ernest Hahn, “Sir Sayyid Ahmad Khan’s The Controversy Over
Abrogation (in the Q ur’an): An Annotated Translation,” Muslim World 64 (1974): 124-133; Ahmad Hasan,
“The Theory of Naskh,” Islamic Studies 4 (1965): 181-200; Qamaruddin Khan, “Incidence of Abrogation
(Naskh) in the Qur’an,” Iqbal 15 (1966): 8-46.
to a basic, traditional structure accommodating such a legal framework. The classical
jurists, in formulating a cohesive legal methodology, maintained the abrogation o f the
contradictory verses o fth e Meccan text and relied upon the Qur’an ofthe Medinan period,
which suited their understanding ofthe text in relation to their own socio-historical context.
Moreover, abrogation logically resolved, through chronological predilection, any legal
tangles that could result from a survey of a text that appeared to contradict itself An-Na‘im
explains:
The legally operative intention ofthe legislature is taken to be manifested in

its latest sources, and earlier, apparently inconsistent, manifestations o f that
intention ate normally deemed to have been superceded, to the extent
necessary to remove the inconsistency, by the subsequent expression of
legislative intent.330
The classical jurists understood later revelation as supplanting earlier revelation, indicating
an interpretation o fth e text that assigned priority to the last expression regarding a matter,
as opposed to the first, an order which cannot be reversed. Thus, historically there has been
no need to deviate from the rules laid down in the Medinan text.
It is central to an-Na‘im’s argument that classical Islamic law was derived from the
Qur’an o f the Medinan period rather than that o f the Meccan through the process of
abrogation. He claims that the universal principles are found in the Meccan text while
temporal legislation is explicitly stated in the Medinan text. Thus, an>Na‘im perceives the
classical application o f naskh as a fundamental device for the repeal of aspects ofthe general
principles o fth e Meccan text in favor ofthe specific legal rulings ofthe Medinan text and
thus “constituted the cornerstone of their conception o f Shari'a.331 However, he
330 An-Na‘im, Toward an Islamic Reformation, 57.

331 Ibid., 58. Shatibi argues that abrogation did not apply to the Meccan universals but only to the specific rules
in the Medinan text, resulting in die application of abrogation within the Medinan text alone. Hallaq further
elaborates, “Now, given that abrogation never applied to the Meccan universals and only infrequently did it
acknowledges that while the earlier level o f revelation and its principles may have been
repealed from the legal point o f view, “they remained operative at a moral/persuasive
leveL"332 This supports his contention that the principles were not entirely abrogated, but
that their legal intent was, for all purposes, repealed.333 Furthermore, the classical
understanding of naskh certainly supported the legal authority o f the Medinan text by
precluding the repeal of clear and ‘perspicuous’ texts, for it is the explicit rulings (of these
texts) o f divine revelation that effect abrogation.334 It is precisely these clear texts of the
Medinan period - which the classical notion of abrogation cannot affect - that an-Na‘im
seeks to subject to naskb. In order to do this, an-Na‘im reconstructs the scope and meaning
of naskb so that these texts are no longer immune to repeal, which then launches the shift
from one text to the other for legal purposes.
The question that an-Na‘im must answer is whether the naskb of the Meccan texts
by the Medinan texts is permanent. While the classical methodology accepts this naskb as
the final statement by God and not subject to any modification,335 an-Na‘imdoes not accept
apply to the specific rules revealed in Mecca, it follows that abrogation is not common in the Shari'a as a whole,
and in fact is far less common. Shatibi argues, than is generally believed.” It is interesting that a similar
approach to the understanding of die Qur’an could elicit such radically different responses; Shatibi arguing for
the diminished presence of naskh while an-Na‘im affords it a position of utmost importance, both historically
and even more so in his methodology. See Hallaq, Islamic Legal Theories, 190.
332Taha, Second Message, translator's introduction, 21.
333 It is interesting to note that Kamali states that certain subjects were not subject to abrogation such as,
"provisions pertaining to the attributes o f God, belief in the principles of the faith, and the doctrine of tawhld
and the hereafter...” which, since they belong to the domain of faith and do not intrude upon social matters, I
would concede that an-Na‘im would agree. However, Kamali further states that, “The ulema are also in
agreement that rational matters and moral truths such as the vhtue of doing justice or being good to one’s
parents, and vices such as the enormity of telling lies, are not changeable and are therefore not open to
abrogation. Thus a vice cannot be turned into a virtue or a virtue into a vice by the application of naskh” This
latter statement, however, may find an argument with an-Na‘im since the manifestation o f moral truths in certain
circumstances for specific purposes may abrogate a general moral truth, as he asserts is the case with the
Meccan and Medinan text The moral truth of doing justice expounded in Mecca may not be consistent with the
treatment prescribed for non-Muslims in the Medinan texts, which may be regarded as thoroughly unjust.
Kamali, Principles o f Islamic Jurisprudence, 152-3.
334 Ibid. 152.
333 Kamali Principles o f Jurisprudence, ISO. The author asserts, “the application o f naskh to the Qur’an and
Sunnah is confined, in terms of time, to one period only, which is the lifetime of the Prophet There is, in other
this position, which would render the earlier texts o f Mecca inoperative for posterity. He
reasons that this cannot be the case for it would make the revelation o f those texts
superfluous. An-Na‘im then declares that naskh was, “an essentially logical and necessary
process of implementing the appropriate texts and postponing the implementation o f others
until the right circumstances for their implementation should arise.”336 Thus, the concept o f
naskh as understood and perceived by the classical jurists is no longer appropriate and must
be refashioned so that abrogation loses its finality and can be reversed at the present
juncture. Once this is established, the evolution ofthe law from the Medinan to the Meccan
texts is possible.
An-Na‘im calls for the reconsideration ofthe repeal ofthe earlier texts by subsequent
ones, asking:
What makes the early process o f naskh so final and conclusive? Why should
modern Muslims be denied the opportunity to rethink the rationale and
application o f naskb so they can implement verses o f the Qur’an which have
hitherto been deemed abrogated, thereby opening up new possibilities for
developing alternative principles o f Islamic public law*?37
In rethinking the application o f naskh, an-Na’im converts its meaning from one o f
conclusive and definitive revocation to ‘postponement.’ This is necessary if he propounds
that the legal rulings pertaining to the Medinan society were historically bound and ethereal
in nature as opposed to the eternal principles of Mecca. The message ofthe Meccan period
may not have been implemented legally because o f its abrogation by the subsequent
Medinan message, but its fundamental and perpetual spirit insist that it not be neglected or
words, no naskh after the demise of the Prophet’' Thus, it was daring his lifetime that the rulings were repealed
but the later jurists necessarily retained the abrogation of those rulings. They did not abrogate above and beyond
what was already abrogated by the Prophet in the Medinan text.
337Ibid., 59.
I ll
legally forgotten.338 The Qur’anic justification, proposed by Taha and accepted by an-
Na'im, o f the meaning o f naskh as 'postponed’ significantly deviates from the standard
reading o f the Qur’an. Verse 2:106 reads: “Whenever We abrogate any verse or cause it to
be forgotten. We bring a better verse, or a similar one,” yet Taha renders ‘cause it to be
forgotten’ as ‘postpone it’. An-Na'im affords a justification o f this very serious proposition:
The author writes the corresponding Arabic word ofth e Qur’an as “nunsi’ha"
using the Arabic “hamza,” which makes the word mean “postpone” because
nas’a is delay in time. Some translators of the Qur’an, such as A. Yusuf Ali,
write the word as “nunsyha” which translates as “cause it to be forgotten.”
The difference in writing the Arabic word, and its impact on the meaning of
the whole verse, is extremely significant to the author’s thesis. Since the
implication o f the Qur’an being “forgotten,” thereby making its text liable to
distortion and misrepresentation, is contrary to fundamental Islamic belief I
am inclined to accept the author’s representation of the Arabic word in the
Qur’an.339
The change in vocalization o fth e Qur’an by adding a letter, for the purpose o f significantly
altering the meaning o f the verse has considerable theological implications and impinges
upon the inimitability ofthe Qur’an. It also suffers from an attempt to retain the skeleton of
a traditional concept in order to recreate its entity in an entirely altered form, an exercise of
amalgamation that is flawed because two different lines o f incompatible reasoning are being
forced to coexist. An-Na'im projects his modem process upon a certain traditional device
that cannot sustain such radical transformation because it was devised to operate within a
particular and integrated scheme, and when extracted from that environment, it cannot be
effective.
However, if an-Na‘im’s proposal that naskh can and must be reversed is accepted, it
must also follow that the text that it will now abrogate, which has sustained Islamic law for
338 This is more akin to S hifiT s view that naskh is not annulment but a suspension of one ruling by another.
However, an-Na’im greatly augments this notion that naskh is not final annulment
339 Taha, Second Message, Translator’s Introduction, 40.
the duration o f its temporal application, is no longer suitable for implementation due to the
irreversible changes in society caused by modernity. The process o f legally activating a
formally dormant text entails an evolution in interpretation and understanding o f the
sources, the law, and the understanding o f Islam itself. Taha elaborates upon this:
In this evolution, we consider the rationale beyond the text. If a subsidiary

verse, which used to overrule the primary verse in the seventh century, has
served its purpose completely and become irrelevant for the new era, the
twentieth century, then the time has come for it to be abrogated and or the
primary verse to be enacted. In this way, the primary verse has its turn as the
operative text in the twentieth century and becomes the basis o f the new
legislation. This is what the evolution o f Shari‘a means. It is shifting from
one text that served its purpose and was exhausted to another text that was
postponed until its time came. Evolution is therefore neither unrealistic nor
premature, nor expressing a naive and immature opinion. It is merely shifting
from one text to the other.340
An-Na‘im concedes that the movement ofthe legal principle of Islamic law from one text of
the Qur’an to the other in consideration of historical contexts and through the mechanism of
naskh, is not easily accepted by a wide Muslim audience. Regardless, he maintains that this
methodology premised upon a new interpretation ofthe meaning ofthe Qur’an and its legal
function “does not violate the Islamic authenticity ofthe law,”341 since he utilizes the same
sources and methodological techniques342ofthe classical jurists. His method o f engagement
of these sources and techniques is heavily persuaded by his contemporaneous interpretation,
which radically reformulates all laws emanating from this framework.
An-Na‘im avers that his petition for a reversal o f naskh adequately deals with the
clear and explicit texts that he sees as inappropriate in modem society and as informing and
340Taha, Second Message, 40-1.

342 Ibid., 49. In respect to his adherence to naskh he says, "It is my thesis that since the technique of naskh has
been employed in the past to develop Shari'a which has hitheito been accepted as the authentic and genuine
Islamic model, the same technique may be employed today to produce an authentic and genuine modem Islamic
law.” However, as exemplified, it is not the same technique since its meaning, scope, and implementation are
rethought and altered.
113
supporting a previous understanding o f Islam that, while suitable for its time and place, was
negligent o f a more complete rendering o f the entire message of Islam. While an-Na‘im
calls for the exercise o f ijtib id in matters governed by definite texts, this is carried out
through the negation o f their implementation rather than the re-interpretation o f the actual
texts. The textual shift for the re-establishment o f a modem legal basis, accomplished
through aaskh, renders the clear and explicit texts and the certainty o f their legal rulings
legally void. To justify the legal retirement of these verses, he looks to the actions o f the
second caliph ‘Umar. Verses 59:6-10 clearly and definitely specify that Muslim combatants
are entitled to spoils o f war yet ‘Umar refused to distribute lands captured during the
conquests o f Iraq and Syria and defended his actions, which directly contradicted the
practice o f the Prophet as well, by arguing that to follow the Qur’an and the Prophet would
deprive the state o f essential resources that it needed for the maintenance o f armies
defending the territories o f the Muslim state.343
‘Umar was reacting to social considerations in determining that the best interest of
the Muslim community was to ignore the clear and explicit verses o f the Qur’an that had
exhausted their purpose. But an-Na‘im takes a momentous leap from providing a few
examples o f instances where these texts were deemed inoperative to devising a methodology
that renders all texts o f this nature permanently discarded for legal means. The internal
cohesion o f his methodology, whereby an appraisal of the sources in their historical context
and subsequent reformulation o f legal intent through the reversal o f naskh revolves around
the fundamental importance he attributes to human interpretation. The traditional Islamic
law and methodology do not allow enough interpretation, in light o f modem circumstances,
343
Ibid., 28.
because they have no means with which to legally disengage antiquated norms that pertain
to a defunct society. However, this does not compromise the message o f Islam or its
authenticity and authority if appropriately understood through an active interpretive pursuit.
His aim and intent are to open the doors widely to ijtibad, an objective that inspires an
acceptance o f a vibrant dynamic between the human and the divine, and the society and the
law, and freely invites an evolutionary approach to Islam and its moral composition.
Upon close examination o f his proposal, however, the technicalities o f his
methodology are conspicuously absent so that what emerges is not a systematic and
cohesive legal methodology but a general frame of reference that one can employ when
regarding Islamic law. He establishes the textual basis to which the jurist should conform,
but then offers no guidance to the jurist for the process o f translating the text into legal
rulings. He maintains that the general principles are found in the Meccan text, yet how does
the jurist go about ascertaining these principles? What are the systems o f control in the
exercise o f human interpretation that are necessary in providing consistency and uniformity
in the law? Moreover, his insistence upon retaining and elevating a relatively minor concept
in the traditional methodology {aaskh) to a place o f fundamental importance in his modem
strategy for reform provokes an uneasy ambivalence created by his marginal
acknowledgement of the traditional forms and his promotion and endorsement o f innovative
and radical ideas and techniques. For the most part, the classical legal devices collapse in
his formulation but he does not replace them or construct other tools that can operate within
his overarching methodological project. Thus, although an-Na‘im does offer a new
conception o f law and legal theory, his actual reformulation o f legal methodology leaves
much to be desired and is not the most promising and feasible in the area o f modem reform
o f Islamic law.
Conclusion
Islamic law confronts a formidable adversary embodied in the force o f modernity.
The pervasive and uncompromising nature o f modernization has transformed the traditional
society on the micro and macro levels, reaching deep into the organization o f the family and
undermining its patriarchal, extended model,344 as well as instituting an international order
premised upon the construction o f the nation-state.343 The ensuing mentality is a turmoil
comprised of the security and authority o f the past encountering the new advantages and
344 An element of modernity that has contributed to the restructuring of society (and family) and which elicits a
chorus of condemnations is Westernism or Westernization - the projection of Western modernity into non-
Western societies. Rahman explains, “There is, indeed, a general reaction against Western society, wherein the
central point is the figure of the woman and her relationship with the family. But while this reaction continues
among the intelligentsia - Le. both die modernist and the conservative in general - modern institutions, the most
important among them being the universities and their co-educational system, continue to forge ahead producing
the opposite results. The truth is that social change is inevitable and, indeed, the trends that have already set in
are irreversible.” Even after considering its hegemonic character and many injurious consequences, the process
of Westernization is all the more complicated because, as Rahman describes, “The inherent power of
Westernism lay in the stark fact of the appeal of modem science and technology at the collective level and the
strong attraction o f liberalism, freedom, initiative and opportunity at the individual level.” See Rahman, Islam,
234,222-223.
343 Goitein perceives the independence of colonized Muslim societies, officially gained through their recognition
as modem states, as entailing a cost to Islam: “However, as has often been emphasized, liberation from the West
and successful competition with it could be achieved only by the adoption of Western techniques and ideas.
Thus the independence of die Muslim peoples was bought at the price of the diversion of all intellectual and
spiritual forces towards non-religious goals and the corresponding weakening of the Islamic substance. De-
islamization made quicker progress in the national states than it had made in the colonial and scmi-cokmial
areas. Islam as a body politic, however, depends on die intensity of religious awareness of the individual
Muslim, and in particular the intellectuals. Today, national, ideological and regional aspirations, such as
national socialism, Arab neutralism and African revival are competing with Islam.” See SD . Goitein, Studies in
Islamic History and Institutions, 2nded. (Leiden: E J . Brill, 1968), 42. Rahman further comments on the tension
between a national identity, or nationalism, and Islam by asserting, “Nationalian has made powerful inroads into
the Muslim world and has been officially incarnated, with a special emphasis, in the stale-ideologies o f certain
Muslim countries....‘Nationalism’ may be defined as a sentiment for a certain community of mores, including
language, which gives a sense of cohesiveness to a group...At the second level, however, this primitive
‘nationalism’ comes to be formulated as a political ideology and is transformed into a nation-state claiming
sovereignty and demanding paramount loyalty. It is this political concept, as it has developed in the modem
West, which, when carried to its logical extremes, must conflict with the ideals of Islam. So long as this extreme
nationalism is avoided...the nation-states may still allow for a real, positive cooperation or a multi-state
community for the larger Islamic objectives. But extreme nationalism, must, by its very nature, demand
secularism” See Rahman, Islam, 221.
unfamiliar dangers o f by the present.346 The area o f Islamic law captures the struggle
between the traditional institutions and ethos of Muslim society and, as Hallaq describes,
“the wave o f fundamental social, technological, economic and political changes that
accompanied the military and cultural domination of the West over the Orient.”347
The classical Islamic legal system so efficiently and effectively regulated pre-modem
Muslim society that its indelible mark compels some to define Islamic culture as a legal
culture.348 However, the profound influence and importance vested in the law has
encumbered those reform movements that acknowledge the inability o f the classical Shari‘a
to maintain its traditional form if it is to respond to contemporary circumstances, as
Rahman reveals:
The real challenge that the Muslim society has had to face and is still facing is
at the level o f social institutions and social ethic as such. And the real nature
o f this crisis is not the fact that the Muslim social institutions in the past have
been wrong or irrational but the fact that there has been a social system at all
which now needs to be modified and adjusted. This social system has, in fact,
been perfectly rational in the past, i.e. it has been working perfectly well, as
perfectly well as any other social system. The disadvantage o f the Muslim
society at the present juncture is that whereas in the early centuries o f
development o f social institutions in Islam, Islam started from a clean slate, as
it were, and had to carve out ab initio a social fabric - an activity o f which the
product was the medieval social system - now, when Muslims have to face a
situation o f fundamental rethinking and reconstruction, their acute problem is
precisely to determine how far to render the slate clean again and on what
principles and by what methods, in order to create a new set o f institutions.349
346 Rahman acknowledges the correlation between the concrete and material change in social institutions and the
adjustment in the general frame of mind o f that society: “Although the modem challenge was directly and
primarily to the social institutions of Islam, its laws of marriage and divorce, the position of women and certain
economic laws etc., it also assumed purely intellectual proportions since a change in social mores involves a re
thinking of die social ethic, which touches the foundational ideas of social justice” See Rahman, Islam, 214-
215.
347Hallaq, Islamic Legal Theories, 259.
348 Ibid., 209. The author posits that “law has been so successfully developed in Islam that it would not be an
exaggeration to characterize Islamic culture as a legal culture,” but goes on to say that “this very blessing of the
pre-modem culture turned out to be an obstacle in the face of modernization. The system that had served
Muslims so well in die past now stood in the way of change - a change that proved to be so needed in a
twentieth-century culture vulnerable to an endless variety of western influences and pressures.”
349Rahman, Islam, 214.
118
The classical Shari‘a competently responded to the movements o f traditional society
through a well-defined and coherent methodology that produced suitable substantive laws.
The intimate acquaintance o f the legal system with its respective society cultivated a
relationship o f balance between the law and certain societal assumptions and political and
economic forces (that provided necessary safeguards in the application o f the law). The
disruption o f the latter forces and the absence o f the traditional checks and balances they
supplied, however, has destabilized the harmony sustained by the Islamic legal institution
and has threatened the institution itself350
Many Muslims, while recognizing that “the traditional law can no longer serve
Muslim society in the modem world,” do not advocate the dismissal o f Islamic law from
modem society.351 A wealth of reformers have endeavored to resolve the crisis in legal
identity (or more broadly, Rahman contends that “each individual Muslim society is faced
with the internal problem o f how to reconstruct itself’)352 through attempts at refashioning
the classical Shari‘a so that its implementation in the current social context is practical and
achievable. An-Na4im adds to this effort through his exploration of what he perceives as the
inconsistencies between the classical Shari‘a and the fieshly produced human rights
standards:
330 Haim Gerber asserts that “the processes of modernization as experienced by the Middle East undermined
many o f the civil-society-related mechanisms which existed in the pre-modem era, among others by making the
Shari‘a obsolete, even ‘barbaric,’ under Western influence.” Gerber, Islamic Law and Culture, 143-144.
351 Hallaq, Islamic Legal Theories, 210. Hallaq points out that the first response to reforming the Islamic legal
system was the introduction of European codes but that “it was soon discovered that such codes were largely
inadequate for a society that was fundamentally different from those western societies for which these codes
were originally drafted. The modem Muslim states then turned to other devices that were inspired by die
traditional Islam ic doctrines.” Most important is the notion that white the traditional or classical formulation of
Islamic law may be perceived as inappropriate in contemporary circumstances, Islamic law itself certainly can
be implemented in foe modem contact, albeit after significant reformulation (such a reformulation, that is both
practical and true to foe basic Islamic framework, has not yet presented itself). Thus, foe concept and ideal of
Islamic law is not restricted whereas the temporal manifestation of that ideal is.
332 Rahman, Islam, 249.
Thus we have Muslim demands for self-determination by the application o f
Islamic law in public life. Yet such Islamic law cannot possibly be Shari‘a as
historically established. The only way to reconcile these competing
imperatives for change in the public law of Muslim countries is to develop a
version o f Islamic public law which is compatible with modern standards o f
constitutionalism, criminal justice, international law, and human rights.353
The version o f Islamic law that he proposes is crafted by a reform methodology that retains
the Qur’an and Sunna as the fundamental sources o f the law, but then either abandons or
radically revises the traditional methodological tools. The mechanics o f his methodology
revolve around a fundamental rethinking o f and radically different hermeneutical approach
to the original texts through his wholesale movement from the Medinan to the Meccan text
as the point o f departure from which the law is to be derived. He posits that this shift,
accomplished through a reversal o f aaskh, is necessary if one is to adequately understand
and accurately place the texts in their historical context so that the narrow literalism of the
later Medinan text does not override the general principles of the earlier Meccan text.3S4
However, his contribution to the modernization of the Shari’a is not in a systematic and
comprehensive legal methodology capable o f generating a new corpus o f law, for his
‘methodology’ is merely a loose sketch that requires much further elaboration, and even so,
it is unlikely to be accepted by most Muslims. Rather, he provides another avenue of
353 An-Na‘im, Toward an Islamic Reformation, 9. He further elaborates, “It is my conviction as a Muslim that
the public law of Shari'a does not represent the law o f Islam which contemporary Muslims are supposed to
implement in fulfillment of their religious obligation. I also strongly believe that die application of the public
law of Shari'a today will be counterproductive and detrimental to Muslims and to Islam itself...M y trust in God
leads me to believe that current efforts to implement the public law of Shari'a win fail because they are harmful
to the best interests of Islam and the Muslims. There efforts win fail because the public law of Shari'a is
fundamentally inconsistent with the realities of modem life. This is my firm conviction as a Muslim.”
354 Hallaq, Islamic Legal Theories, 231. In his attempt to reconcile the essential obligations of revelation with
the realities of die modem world, an-Na‘im joins the liberahst approach, which “consists of understanding
revelation as both text and context” While Hallaq demonstrates that the trend in religious liberalism affirms
that the “connection between the revealed text and modem society does not turn upon a literalist hermeneutic,
but rather upon an interpretation o f the spirit and broad intention behind the specific language of the texts,” an-
Na‘im insists that the most consistent method in arriving at the spirit of the law is to engage the Meccan text,
since it is there that one can find the universal principles of Islam.
thought that Muslims, both inside and outside the legal realm, can consult when pondering
their Islamic identity.
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INFORMATION TO USERS

The quality of this reproduction is dependent upon th e quality o f th e

Oversize materials (e.g., maps, drawings, charts) are reproduced by

ProQuest Information and Learning

Courtney Paige Erwin

Institute of Islamic Studies

A Thesis submitted to the Faculty of Graduate Studies and Research

1Courtney Erwin 2001

The author retains ownership of die L’auteur conserve la propriete du

Author Couitney Paige Erwin

Title: Islamic Law and Modernity:Abdullahi an-Na‘im’s Proposal for Reform

Department: Institute of Islamic Studies, McGill University

Degree: Master of Arts

development o f international human rights standards and provides an appraisal o f their

tools that an-Na‘im employs for modem legal reform.

Auteur: Courtney Paige Erwin

Titre: Modernisation et Droit Islamique: Le Propos de Abdullahi an-Na‘im

Faculte : L'Institut des Etudes Islamiques, University McGill

Grade : Maitrise es Arts

et la peine criminelle, sont examines. La methodologie pour la reforme du droit Islamique

la science de 1’interpretation et du contexte historique. L’importance donne aux differences

des versets de Mecca et Medina pour la construction d’une nouvelle comprehension du

methodologiques qu’utilise an-Na‘im pour la reforme legale modeme.

questions. I am profoundly honoured to have been a student of a man of such perspicacity,

I wish to proffer my thanks to Professor A Uner Turgay, Director of the Institute of

My parents have sustained my studies, even when not entirely convinced of my

pursuit Their understanding of my nature and appreciation of my endeavour must be

her laughter and beauty. I thank her for everything.

A Note on the Transliteration

Muhammad Taha, I use the accepted form of Mahmoud Mohamed Taha.

T able of Contents ix-x

Chapter 1: The Modern International Structure, Human Rights Laws, and 7

A. The Modem International Structure and Human Rights 7

B. The Classical Shan‘a 22

1. The Shari‘a versus Fiqh 22

Chapter 2: Areas o f Contention 37

Chapter 3: The Reform M ethodology 88

A. Meccan and Medinan Verses 89

B. Hermeneutics and Historical Context 95

C. An-Na‘im’s Use o f N tskh and Jjtih id 106

imposed disassociation wrought by European colonialism. A rupture in the traditional legal

1Joseph Schacht, Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 1.

supremacy dictated the course o f modernization, influencing an intellectual and societal

reorientation among Muslims.3

predicament, abandoning Muslims to a state o f uncertainty as to how Islam is to be

When new forces o f massive magnitude - socio-economic, cultural-moral or

authentic character free from subservience to external imposition and an oppressive

authenticity is naturally bound to an Islamic government grounded in Islamic law.

be implemented in contemporary Muslim societies or are there aspects inherent to Islamic

The modem international organization is currently balancing the consequences o f

global community composed o f a patchwork o f value systems and cultural traditions.

the possibility o f a harmonious relationship between the two unattainable.

within the traditional framework and methodology ofth e Shari'a.

internally as well as internationally, satisfying requirements o f human rights laws. The

religion while adhering to international standards without contradiction.11 He is convinced

“radical reform methodology” o f Taha as championed by an-Na'im and discusses why he

The Modern International Structure, Human Rights Standards,

and the Classical Understanding of the Shari‘a

The feature o f modernity described in this study is that o f the international

individuals. To partake in modernity is to necessarily participate in this adjustment of

indicate the breadth o f transformation needed to accommodate this relationship.

A. The Modem International Structure and Human Rights

International human rights laws have been perceived as an imposition o f Western