When contemplating the traditional Islamic discourse on human rights(1) and legal philosophy and when trying to reconcile traditional islamic exegesis with modern judicial interpretation, we have to my assessment a perennial problem that I would delineate as non-complementary paradigms. Akin to the dissimilarity between Newtonian Physics and Quantum Mechanics (both having a certain way of viewing the world and working at a certain level), both traditional Islam and modern legal philosophy attempt to address things that have different theoretical bases, underlying principles, epistemological and ontological frameworks and presuppositions and thus require the use of different languages. Having said that, I need to stress that I still consider myself a ‘harmonist’(2), advocating a ‘reverse cultural relativism’, by utilising the traditional doctrine of maqāṣid and the ‘margin of appreciation’ on the side of international human rights, without idealising either the modern notion of human rights by presupposing its conceptual superiority or the prevalent traditional islamic discourse on Shari’ah injunctions.
Mohsin Kadivar, a post-revolutionary Iranian intellectual, traditionally trained in Islamic Law in both of the preeminent seminary centres of Shi’ite intelligentsia, Qom and Najaf, is one of the outstanding scholars of our time trying to reconcile human rights norms with modern Islamic thoughts and practices. It is these above-mentioned philosophical and epistemological differences and their distinct way of defining the essence of human beings, according to Kadivar, that are underlying the current incompatibility between internationally recognised human rights and traditional Sunni and Shi’ite Islamic law.
In this essay, we will firstly examine how Kadivar demonstrates why traditional fiqh is incapable of overcoming the fundamental conflict between the notion of human rights and Shari’ah precepts in traditional islam. We will go on by outlining his proposed way of elevating the authority of collective reason in imposing time limits for Shari’ah ordinances concerning interpersonal social transactions and of rethinking and reassessing their eternality, fixedness and continuity. We will then discuss critically his premises such as the possibility of such a collective reason, the rationality of Shari’ah ordinances and the utilisation of the concept of abrogation.
Methodological framework of Kadivar’s ‘New Jurisprudence’
Kadivar’s starting point is the fundamental conflict between the traditional interpretation of Islam(3) and the notion of modern human rights (Kadivar 2004) and the insufficiency of traditional Islamic jurisprudential tools to tackle the conflict and to face the challenges posed by the modern period. With the advent of modernity, Kadivar argues, several commandments, prohibitions, rites and precepts of the conventional traditional exegesis that were considered as perpetual and fixed and beyond time and space were obviously conflicting with certain norms, achievements and phenomena of modernity that have become the “manner of the reasonable people” (sīrah-yi ʿuqalā’) (Matsunaga 2011: 364). Even exhausting all potentials of traditional jurisprudence will therefore not solve six critical areas of conflict between traditional islam and human rights norms: The legal distinction between Muslims and Non-Muslims, between men and women, slaves and human beings, commoners and jurists on the public space; freedom of religion and belief and lastly violent extrajudicial punishments for apostasy, heresy, blasphemy, theft, illicit sexual relations, false accusations of illicit sex and the consumption of intoxicants. For him, the conflict does not lie in minor issues of traditional jurisprudence, but is deep-rooted. Traditional islam is a paradigm, as is the case with modern human rights, having their own distinct epistemic framework of theoretical and philosophical underpinnings, making a harmonisation between the two sides of the conflict nearly impossible.
Kadivar argues, that traditional Islam needs to rethink its fundamental criteria and foundations; particularly the role of reason and the eternality of the injunctions of the textual sources and their practical implications. He is opposed to the Divine Command Theory of the Ash’arites that became the mainstream theological position; the epistemological premise that reason is limited in its capacity to discern what is good and evil (al husn wa al-qubh), that revelation is the primary normative reference(4) for universal truth and moral perfection and that whatever God decrees is justice because He as the Absolute Sovereign of the universe decrees it and not because it is in conformity with independent standards of ‘justice’ and ‘goodness’, discerned, ratiocinated and formulated externally by human beings(5). So from a traditional perspective, Shari’ah precepts and duties are unquestionably just and wise, even if they differ depending on one’s religion, creed, freedom or slavery or gender.
It is worth noting at this juncture that Kadivar is what we may call a neo-Mu’tazilite(6) in this respect. His proposed “intellectual”, “spiritual”, “goal-oriented” Islam, which is an end in itself (Kadivar 2011: 459), or ‘Islamic intellectuality’, is for him a ‘continuation of Mu’tazili rationalism’ (Kadivar 2004). He asserts that Qur’anic and prophetic injunctions could be justified rationally at the advent of Islam. They were compatible with that time’s ‘rational custom’; in fact non-believers were challenged by the Quran with the rationality, logicalness, superiority and validity of its commandments and prohibitions (Kadivar 2004). Therefore, an ordinance can nowadays only be attributed to religion, if it is rationally justifiable and logical according to today’s rational custom; if it contradicts today’s understanding of justice is doomed to rejection.
The second fundamental criterion of traditional Islam that constitutes a problem in the modern period is the eternality, timelessness and fixedness of all of the ordinances of the sources. Kadivar points out that all of the problematic regulations of the Sharia that are considered to be in violation of human rights norms are anchored in Qur’anic verses and are reliable, authentic (and manifest in their meanings) traditions and narratives about the acts and words of the Prophet. He advocates a teleological theology (Matsunaga 2007: 326) that focuses on the final goals of the Shari’ah as opposed to the traditional ‘formalism’ according to which the commandments in the religious sources are considered as constant, perpetual and unchanging. Whilst maintaining the commitment to this true, spiritual side of Islam by reconstructing a new anthropocentric theology in contrast to the theocentric approach of the traditional exegesis (Matsunaga 2011: 371), Kadivar argues that the timeless eternal message of Islam has been mixed with customary practices and habits of the time of revelations, which is the part that actually causes the conflicts between traditional Islam and the modern age (Kadivar 2009: 65). Under consideration that the overall aim of the Shari’ah is the commonweal (maṣlaḥah or maṣāliḥ-i ʿibād) of human beings, Kadivar argues that clear texts (qat’ī) in the Qur’an or the Sunnah prescribing punishments or death penalties could be overridden in the name of the doctrine of maṣlahah through the use of reason alone. He distinguishes between two kinds of sharīʿa precepts: (1) Precepts that will permanently remain valid and binding regardless of time and place and are therefore eternal. Commandments on fairness and justice, prohibitions on betrayal, injustice and lying are among these precepts. (2) Precepts that are conditional on the continuation of relevant conditions. They may serve a specific goal in a given set of circumstances but might change into mischief once new conditions have emerged. Kadivar goes on to say that most of the non-devotional sharīʿa injunctions on social and interpersonal transactions (aḥkām-i sharʿī-yi muʿāmalāt) are of this second type. He points out that conflict between human rights norms and Qur’anic injunctions always relates to this second type of precepts (Matsunaga 2011: 373)(7). Accordingly, a non-devotional injunction that does not meet the three criteria of being reasonable, just and better than alternative solutions must be rejected. Non-correspondence to these three criteria indicates the temporariness and non-eternality of that precept.
He thus redefines the function of the concept of abrogation (naskh) of traditional exegesis. Contrary to the traditional understanding, according to which the abrogation of rules has ended with the demise of the prophet and for a verse to be abrogated, it needs an abrogating text from the sources that is either similar or higher in authority (i.e. is stronger in respect of meaning (dalālah) or authenticity (thubūt)), Kadivar asserts that definite reason is in fact capable abrogating the precepts of the second type. Thus, the rational conventions of our day are strong and capable enough to determine the time limits and to reevaluate the temporariness of narration-based injunctions.
As examined above, in dealing with the fundamental conflict between accepted Islamic accounts and modern human rights norms, Kadivar proposes a ‘New Jurisprudence’ that employs an ‘ijtihād in bases and principles’ (ijtihād fī al-uṣūl) (Kadivar 2012a: 213) which aims at extracting the unchanging, permanent message of the Shari’ah from the ordinances that were set according to the demands of the conditions of the age of revelation. Several theoretical questions arise with this methodology:
Firstly, as a starting point, the mere possibility of a universal collective human reason, to which sharīʿa precepts should be adapted to, is highly questionable. Kadivar does not take cultural differences in understanding human rights into account, which could lead to a dangerously Eurocentric universalist conceptualisation of justice and human rights(8). Paradoxically and inconsistently, he also advocates a temporal meta-ethical moral relativism and a loosely utilitarian consequentalism, which goes beyond the general Mu’tazilite approach. The Mu’tazilites believed in an absolute framework of justice beyond time and space that can be acquired by reason and which is particularised by the normative injunctions of the revelation (Leaman 2004: 165). Kadivar asserts that justice should be defined by the norms of a particular time period and runs - from a mainstream traditional perspective - the danger, to disclaim and deconstruct the normative authority of scripture utterly. As Matsunaga rightly points out, he locates the issue of human rights into an external context outside of the religious sources and hence detaches it from religious textual references, which will be difficult for conventional Islamic circles to relate to. Maṣlaḥah is the only jurisprudential concept that Kadivar refers to, but the extent to which it is supposed to be applied and utilised remains relatively vague, unsubstantial and abstract.
Secondly, Kadivar argues that the collective rationality in the first generation of Islam was limited, making a revelation and direct assistance of God particularly necessary in a time of countless social tribulations (Kadivar 2009: 72). This claim undermines the idea of a revelation as a guidance for all human beings at all times, which is likely to encounter serious difficulties and objections within conventional and traditional circles. Furthermore, it is a inconclusive attempt to evade the question, why humanity would be left to their reasons in developing legal norms while the first Muslims where assisted by the revelation of God. At the same time he argues - again paradoxically - that religious precepts were rationally justifiable and compatible with the rational custom of the time of the revelation (Kadivar 2004). The Qur’an did not challenge its audience with the rationality of its injunctions (aḥkām) (or of its own concept of justice), but with the rationality of the existence, unity (tawḥeed), transcendence, uniqueness and infinitude of God(9), i.e. its ontological principles that it introduced to the world, and the immeasurable profundity of its articulation and inimitability of its eloquence(10). The Qur’an in fact questioned the normativity of such a collective reasoning(11), established a new ontology of justice and therefore challenged the perception of justice that was predominant at the age of revelation. The Qur’anic objection against customs like tribalism (‘asabiyyah), female infanticide, interest rates, the prohibition of consuming intoxicants, that may had well been perceived as reasonable and just in pre-Islamic Arabia, could be given as a few examples. Early Muslims did not accept these precepts (or even became Muslims) because of their rationality, but because they considered the Qur’anic ontology and the prophetic claim to be reasonable, stimulating them to accept these precepts instantaneously and intuitively. In fact, the opponents of the prophetic mission of Muhammad rejected the revelation because of the normative standards it propagated, stipulated and advocated.
Thirdly, Kadivar proposes to exhaust the traditional exegetical tool of abrogation (naskh) to repeal several sharīʿa precepts that are considered eternally obligatory and are generally accepted as such by mainstream Islam. Indications in the textual sources for a conditionality of its prescribed precepts or for the possibility of such an abrogation based on reason alone would certainly substantiate Kadivar’s argument to find resonance and approval in traditional circles. Kadivar points out that despite the absolutistic, clear, definitive wording the Qur’an uses in prescribing its injunctions, the precepts of the second type (those that are incompatible with conventional human rights norms) should be treated as non-eternal, conditional and time-based precepts. Therefore, it seems that the textual evidence operates rather to the contrary.
To be more grounded in Islamic traditional thought and enhance its Islamic legitimacy, Kadivar’s methodology would have benefited from the traditional doctrine of maqāṣid al-Shari’ah (the ‘main objectives of the Shari’ah’, as advocated by Kamali [2009; 2011]), which is not burdened with the technicalities and literalist details that uṣūl al-fiqh is preoccupied with and is - even though developed through an intense reading of the clear texts (nuṣuṣ) and derived by way of inference (istinbat) - inherently more dynamic and more open to innovative approaches and changing conditions of the 21st century than the uṣūl methodologies. It requires a comprehensive reading of the Qur’an and the Sunna, focuses on the generalities instead of the particularities, prioritises the purposes of the ordinances as identified by the nuṣuṣ itself and provides a more pragmatic approach to contemporary human rights concerns.
Kadivar’s project of “spiritual, goal-oriented jurisprudence” tries to reconcile Islamic thought and practices with modern human rights norms and provides a new framework for future theoretical discussion and will be an inspiration for heated debate in the human rights discourse. He unequivocally emphasises the current incompatibility between internationally recognised human rights and traditional Sunni and Shi’ite Islamic law. He criticises the traditional understanding of human reason as limited in scope and ability, he disclaims the eternality of the Shari’a injunctions regarding interpersonal transactions (mu’āmelāt) and suggests to utilise collective reason more intensively in defining a modern islamic notion of human rights.
Given the Iranian post-revolutionary context(12), his courage to put in writing what is conventionally considered as taboo, merits appreciation. However, his bypassing of traditional thought and his weak connection to the textual sources neglect the reality on ground and make it difficult for his substantial efforts to be heard and acknowledged by his main audience, traditional Sunni and Shi’ite scholastic circles, and to be a catalyst for change instead of reducing its influence to the bookshelf.
- Contrary to the predominant misperception, Şentürk argues that there was indeed an islamic traditional discourse on basic human rights. Since its formative period, Islamic law and Muslim jurists introduced the two key concepts of ‘ismah (or al-darûriyyāt) and ādamiyyah (or haqq ghair muktasab), characterising axiomatic inalienable natural rights, that each individual person has been born with (Senturk 2002).
- Harmonisation requires reconciliation and compromise and implies and presumes a degree of “compatibility and concordance between two substantially distinct” corpora juris, as there is no need to harmonise identical components. (Kamali 2007: 392)
- i.e. “the dominant interpretation of the Qurʾān and the Sunna that is characteristically found in the opinions (ārāʾ) of the theologians and jurisprudents and spread generally in the form of customary knowledge of the learned (ʿurf-i ahl-i ʿilm) in the Islamic world.” (Kadivar 2008: 184) in which the culture and exigencies of (and the form and appearance of Islam in) the age of revelation are considered as sacred, desirable and idealised. (Kadivar 2011: 459)
- The grundnorm, as Kelsen (1967) puts it, or the ‘ultimate rule of recognition’ according to Hart (1994).
- According to traditional usul al-fiqh, the authority, validity and binding force of the Qur’an, Sunnah and Ijma’ (i.e. the transmitted proofs; adillah naqliyyah) is independent from their conformity with the dictates of reason and rational justifications, even though most of them are in harmony with reason. The function of reason in jurisprudence is limited to discovering and deriving rules already indicated in the divine sources (Kamali 2003: 12).
- The Mu‘tazilites ‘believed in a system of universal truths that can be grasped by individual reason.’ (Cicek 2014) To them, good and evil was therefore intrinsic (fī ḥadd-i dhāti-hi), not relative (nisbī), and dependent on reason (aqlī), not on revelation (shar’ī). Thus, they were commanded or forbidden by the divine will accordingly, not vice versa. Revelation therefore particularised the injunctions that facilitated moral perfection.
- Kadivar’s discussion of gender equality in traditional Islam is one example of how he tries to contextualise revelation. He distinguishes between ‘deserts-based’ justice (al-‘adālah al-istiḥqāqiyyah) based on proportional equality and egalitarian justice based on fundamental equality. While the former constitutes the notion of justice in traditional Islam, the latter represents the epistemological basis of modern human rights norms and gender equality. Hence, the verses in the Qur’an, that attributed fewer rights to women in shaping and participating in social life, were revealed based on the collective perception of justice and equality in that particular historical moment. (Kadivar 2012a: 223).
- There is an obvious tension between strict universalism and cultural relativism in modern human rights discourse. The universalist approach that considers western-rooted human rights norms as fait accompli that need to be imposed on and accepted by objecting cultures is often perceived as a new form of cultural colonialism by those cultures. Cultural relativism on the other hand is prone to the abuse of human rights violations. A more inclusive multicultural interpretation of human rights principles that embraces cultural diversity will help to overcome this paradox. See (Baderin 2001b).
- see Qur’an 52:35-36, 67:3-4.
- see Qur’an 17:88; 2:23; 10:38; 11:13; 52:33-34.
- see Qur’an 7:187; 30:30; 12:40; 6:111; 29:63; 43:78.
- The doctrines of velāyat-e faqīh and marjaʿ taqlīdī that are pushed through by the religious establishment in Iran should be recalled at this point incidentally.
Baderin, Mashood A. (2001a). ‘Establishing Areas of Common Ground between Islamic Law and International Human Rights’. The International Journal of Human Rights. Volume 5 Issue 2, pp. 72-113.
Baderin, Mashood A. (2001b). ‘Dialogue among civilisations as a paradigm for achieving universalism in international human rights - a case study with Islamic Law’. Asia-Pacific Journal on Human Rights and the Law 2001, Vol 2, No 2, pp. 1-41
Baderin, Mashood A. (2003). International Human Rights and Islamic Law. Oxford: Oxford University Press.
Baderin, Mashood A. (2005). ‘Human Rights and Islamic Law: The Myth of Discord’, European Human Rights Law Review 2, pp. 165-168.
Baderin, Mashood A. (2007). ‘Islam and the Realization of Human Rights in the Muslim World: A Reflection on Two Essential Approaches and Two Divergent Perspectives’. Muslim World Journal of Human Rights 4 (1)
Baderin, Mashood A. (2007b). ‘Islam, Human Rights and Development in Muslim States.’ In: Rehman, Javed and Breau, Susan, (eds.), Religion and Human Rights Law: A Critical Examination of Islamic Law and Practices. The Hague: Martinus Nijhoff, pp. 321-358.
Baderin, Mashood A. (2010a). ‘Establishing Areas of Common Ground between Islamic Law and International Human Rights’, The International Journal of Human Rights 5 (2), pp. 72-113.
Baderin, Mashood A. (2010b). ‘Religion and Human Rights: Towards a Better Understanding’. IKIM Journal of Islam and the Contemporary World 3, pp. 75-101.
Baderin, Mashood A. (2013). ‘Islamic Law and International Protection of Minority Rights in Context.’. In: Frick, Marie- Luisa and Th. Müller, Andreas, (eds.). Islam and International Law: Engaging Self-Centricism from a Plurality of Perspectives. Leiden: Brill, pp. 309-348. (Brill's Arab and Islamic Laws Series).
Bauer, Thomas (2011). Die Kultur der Ambiguität - Eine andere Geschichte des Islams. Verlag der Weltreligionen
Cicek, Fatih (2014). Explore the tension between the ‘rationalist’ and ‘anti-intellectual’ strands in the writings of Qutb;.SOAS University of London
Hart, H.L.A. (1994). The Concept of Law. 2nd Ed. Oxford: Clarendon Press.
Kadivar, Mohsen (2001). ‘The Political Rights of the People in Islam: The Right to Choose Destiny’. in Islamic Views on Human Rights: The Viewpoints of Iranian Scholars; Al-Hoda International Publications, Tehran, pp. 107-124; Link: http://en.kadivar.com/political-rights-of-people-in-islam/ (Accessed 13 April 2013)
Kadivar, Mohsen (2002). ‘An Introduction to the Public and Private Debate in Islam’. Social Research, Vol. 70, No. 5 (Fall 2003); pp. 659-680; presented to Social Studies Conference on “Islam; Public and Private Sphere” at New School University, December 5, New York City
Kadivar, Mohsen (2004). The Principles of Compatibility of Islam and Modernity; International Symposium of Islam, Society, Modernity; Interdisciplinary Center for Study of Religion and Laicity; Free University of Brussels, Belgium; October 7&8; Link: http://en.kadivar.com/the-principles-of-compatibility-of-islam-and-modernity-2/ (Accessed 13 April 2015)
Kadivar, Mohsen (2006). ‘The Freedom of Thought and Religion in Islam’. in Tehran Kamrava (ed.) The New Voices of Islam: Reforming Politics and Modernity - A Reader, I. B. Tauris; London; pp. 119-142
Kadivar, Mohsen (2008) Ḥaqq al-Nās: Islām wa Ḥuqūq-i Bashar, Tehran
Kadivar, Mohsen (2009). ‘Human Rights and Intellectual Islam’. in Vogt et al (ed.s) New Directions in Islamic Thought; London: I.B. Tauris, pp. 47-73
Kadivar, Mohsen (2011). ‘From Traditional Islam to Islam as an End in Itself’. Die Welt des Islam 51, pp. 459-484
Kadivar, Mohsen (2012a). ‘Revisiting Women’s Rights in Islam: ‘Egalitarian Justice in lieu of ‘Meritocratic Justice’. in Ziba Mir-Hosseini, Lena Larsen, Christian Moe, and Kari Vogt (eds), Justice Through Equality: New Approaches to Muslim Family Law, London, I. B. Tauris, pp. 213-234
Kadivar, Mohsen (2012b). Islam between accepting free speech and prohibiting hate speech; Research Project of the Dahrendorf Programme for the Study of Freedom at St Antony’s College. University of Oxford; 19 Jan; Link: http://en.kadivar.com/islam-between-accepting-free-speech-and-prohibiting-hate-speech/ (Accessed 13 April 2015)
Kadivar, Mohsen (2014). ‘Apostasy, Blasphemy and Religious Freedom in Islam; A Critique Based on Demonstrative Jurisprudence; Introduction’. in Islam and Human Rights (2); Link: http://en.kadivar.com/an-introduction-to-apostasy-blasphemy-religious-freedom-in-islam/#_ftn1 (Accessed 13 April 2015)
Kamali, Mohammed Hashim (2001). ‘Issues in the Legal Theory of Uṣūl and Prospects for Reform’. Islamic Studies. Vol. 40, No. 1. pp. 5-23
Kamali, Mohammad Hashim (2003). Principles of Islamic Jurisprudence. The Islamic Texts Society
Kamali, Mohammed Hashim (2004). ‘Istiḥsān and the Renewal of Islamic Law’. Islamic Studies, Vol. 43, No. 4, pp. 561-581
Kamali, Mohammed Hashim (2007). ‘Shari’ah and Civil Law: Towards a Methodology of Harmonisation’. Islamic Law and Society 14, 3, 391-421.
Kamali, Mohammed Hashim (2008). Maqasid al-Shari’ah Made Simple. The International Institute of Islamic Thought, London.
Kamali, Mohammed Hashim (2009). ‘Law and ethics in Islam - The role of the Maqāṣid’. in Vogt et al (ed.s) New Directions in Islamic Thought; London: I.B. Tauris, pp. 23-46
Kamali, Mohammed Hashim (2011). ‘Maqasid al-Shari'ah and Ijtihad as Instruments of Civilisational Renewal: A Methodological Perspective’. Islam and Civilisational Renewal, Vol 2, No 2
Kelsen, Hans (1967). Pure Theory of Law. Mass: Peter Smith
Langlois, Anthony J. (2004). ‘The Elusive Ontology of Human Rights’. Global Society, 18:3, 243-261
Leaman, O. (2004). ‘Are the Ethics of Religion Objective or Subjective?’. in An Introduction to Classical Islamic Philisophy, Cambridge CUP, 2004
Matsunaga, Yasuyuki (2007). ‘Mohsen Kadivar, an Advocate of Postrevivalist Islam in Iran’. British Journal of Middle Eastern Studies, Vol. 34, No. 3, Iranian Intellectuals (1997-2007) (Dec., 2007), pp. 317-329
Matsunaga, Yasuyuki (2011). ‘Human Rights and New Jurisprudence in Mohsen Kadivar’s Advocacy of “New-Thinker” Islam’. Die Welt des Islams 51, 358-381
Opwis, Felicitas (2005). ‘Maṣlaḥa in Contemporary Islamic Legal Theory’. Islamic Law and Society, Vol. 12, No. 2, pp. 182-223
Senturk, Recep (2002). ‘Adamiyyah and ‘Ismah: The Contested Relationship between Humanity and Human Rights in the Classical Islamic Law’. Turkish Journal of Islamic Studies, pp. 39-70
Tibi, Bassam (1994). ‘Islamic Law/Shari'a, Human Rights, Universal Morality and International Relations’. Human Rights Quarterly, Vol. 16, No. 2, pp. 277-299
Ünal, Ali (2014). ‘Nâsih - Mensûh’. Kur’an’da Temel Kavramlar; Işık Yayınları; p. 73-82
Weeramantry, C. G. (1988). Islamic Jurisprudence: An International Perspective. Macmillan Press Ltd.