The Erosion of the Sharia (excerpts from al-Juwayni's al-Ghiyathi) (original) (raw)
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Shariah Deconstruction: The Thoughts of Abdullahi Ahmed An-Na'Im
Hukum Islam
Abdullahi Ahmed an-Na'im's Sharia Deconstruction is an alternative thought in sharia-based law reform. This thinking tries to reflect back on the dominant authority and interpretation in the Islamic legal tradition, by proposing an approach that is based on universal values such as fairness, fairness, and protection of human rights. An-Na'im argues that Islamic law must be seen as a social construction formed through a historical process and a particular context, and must be reconstructed in accordance with the demands of modern times. An-Na'im's sharia deconstruction approach also emphasizes the importance of freedom of religion and equality in society. He proposed peace between religion and the state, in which the state must treat neutrally and treat all citizens without taking sides or discriminating against certain religions. This thinking aims to create a legal system that is more inclusive and democratic, which involves the active participation of the commu...
That lawmaking in many modern Muslim nation states appears to give rather short shrift to shari’a, seemingly ignoring it in all areas save the law of the family and replacing it elsewhere with European transplanted law, has been discussed. That the Muslim world is replete with political institutions and leaders that seek a greater role than this for the shari’a in the affairs of the state is obvious to anyone even faintly familiar with the region. However, left undiscussed is the fact that the Islamist, who derives his authority precisely on the basis of returning sovereignty to God in all matters of state and law, is no more enthused than anyone else in permitting God’s Law to retain any real level of supremacy over the law of the state. Yet this is amply demonstrated by the Islamist obsession with seizing state control and enacting, selectively, shari’a as state law, rather than attempting the type of complete law overhaul that would be necessary to ensure the permanent primacy of the shari’a. The selectivity, while puzzling to one in search of logic in the law, provides in fact much guidance to precisely why the Islamist has chosen this road of incoherence, demanding that the law of man lie subservient to the Will of God on the one hand, and then gleefully ignoring the necessary consequences of taking such a notion seriously on the other. The fact is that while the Islamist may say that he wishes God’s Law to be supreme over that of man, there is nothing in his actions to suggest that this rhetoric, however sincerely held, is an accurate reflection of his actual aims. The Islamist does not want God’s Law to reign supreme in areas such as corporate law and the law of business entities, where the economic consequences might be dire. On the other end lies the law of the family, where God’s Law is deemed a vital necessity, and any development, any evolution, any alteration of the rules established centuries ago when caliphs walked the earth will meet with red-faced Islamist indignation at the suggestion of such outrageous sacrilege. With the power of lawmaking safely in the hands of the state, the Islamist need only bring sharia where he wishes it, and leave all other, largely transplanted, law, where it lies, which is to say in as authoritative a position as any shari’a derived enactment by the state. The wide scale adoption of secular, transplanted law and secular legal systems and their continuation in force even in the most thoroughly Islamized societies is not a matter very thoroughly discussed by our academy, except to the extent that it is asserted as largely irrelevant to the reestablishment of a true “Islamic state” where some form of shari’a does indeed reign supreme. Thus, much scholarly attention has been focused on the “repugnancy clauses” in various Muslim state constitutions, which prohibit the enactment of laws that are repugnant to the shari’a. The focus on such clauses is striking, and portentous phrases on their importance are rife in our scholarship, among them “the Rise of the Islamic State,” “theocratic constitutionalism,” and “Islamic constitutionalism.” On repugnancy, I offer only two points. First, to the extent that an “Islamic state” can be formed under such a conception, it only seems to confirm how fundamentally limited the role of shari’a has become in the “Islamic state." Secondly, no theory of repugnancy has been coherently laid out, let alone applied, in any Muslim state. Muslim states, and Islamist movements, are far too invested in their development to call for anything less than a selective application of shari’a, with the only real difference between the Islamist, the moderate and the secularist being precisely how much to select. Logic and coherence, in the end, has been forced to give way to the hard realities of our times, which cannot afford to Divinity the primary role in the making of law.
THE PERMANENT AND CHANGING SIDE OF SHARIA
International Journal of Muslim World Studies, (IIUM) , 2016
As the undeniably pervasive impact of modern trends grew more entrenched in Muslim societies, the question of whether Islam is static or dynamic has reverberated in elite circles, media outlets, as well as the populace. This paper explores this issue, aiming to answer the following questions: Why and how can Sharia be dynamic? Can Islam in one respect remain static, while, in otherwise areas, calling for change and evolution? What is the Islamic rationale for change? Further, the paper maintains that Islam has essentially two cardinal aspects: the closed area, static and unchanging; and the open area, quite dynamic and changing. Both areas, this paper contends, should work side by side for the welfare of humanity, proposing the best possible solutions to the contemporary needs and conditions. Keywords: permanent, change, ijtihād, maslaha, fatwa, qiyās, istishāb, static, dynamic
Hukum Islam, 2023
Abdullahi Ahmed an-Na'im's Sharia Deconstruction is an alternative thought in sharia-based law reform. This thinking tries to reflect back on the dominant authority and interpretation in the Islamic legal tradition, by proposing an approach that is based on universal values such as fairness, fairness, and protection of human rights. An-Na'im argues that Islamic law must be seen as a social construction formed through a historical process and a particular context, and must be reconstructed in accordance with the demands of modern times. An-Na'im's sharia deconstruction approach also emphasizes the importance of freedom of religion and equality in society. He proposed peace between religion and the state, in which the state must treat neutrally and treat all citizens without taking sides or discriminating against certain religions. This thinking aims to create a legal system that is more inclusive and democratic, which involves the active participation of the community in determining appropriate laws and policies. Even though an-Na'im's deconstruction of sharia provides an alternative perspective in sharia-based legal reform, this view is still the subject of presumption among Islamic scholars and scholars. There are various viewpoints in interpreting and applying Islamic law, and the an-Na'im approach is only one of many existing approaches.
AHKAM : Jurnal Ilmu Syariah, 2020
The two primary and significant roles of maqāṣid al-sharī‘at worth studying are directive and defensive systems. The directive system, for instance, puts the maqāṣid al-sharī‘at as the main reference for any reformation or changing processes and dynamization of the Islamic law, whereas the latter places it as the supreme principle of morality that provides the foundation and ethical-spiritual power for Muslim Societies when they interact with the law. With these two roles, the maqāṣid al-sharī‘at can serve as a driving force to create future changes towards a more constructive and humanistic society. This study is library research which examines the maqāṣid al-sharī‘at from the time of Prophet Muhammad (Peace be Upon Him) to this very day. It aims at elaborating the position of maqāṣid al-sharī‘at as the primary reference and ethical-spiritual foundation for the dynamization process of Islamic law in dealing with contemporary issues. It also examines the concept of maqāṣid al-sharī‘...