'As If' Reasoning: Using Maqasid al-Sharia Inappropriately, As If Islamic Civilization was the force that gave religious law tyrannical power
In the Western imagination, Islam and its Muslim populations have been projected as the face of what was actually Europe’s historical religious persecution.
In the name of Allah, the most Gracious, the most Merciful
I remember the scene from the 1996 film The English Patient in which a North African/Arab nurse enters a German interrogation room. The prisoner of war is an American man. First, the officers acknowledge the torture they are performing violates the Geneva convention. But then we find out they won’t be the ones who cut off Caravaggio’s thumb. The nurse is assigned that task. We’re told that because she is a Muslim, she has no qualms about such a penalty if she thinks he is guilty of a crime. The Germans say he is. As the camera pans to her set, grim face, we learn that human rights abuses are the preserve of Islamic law.
*Some of the following content is excerpted from the findings of my MA thesis on legal protections against capital sentences in the work of the Imams al-Shafi’i, Ibn Hazm, and al-Nawawi, completed in 2021 as part of a Master’s degree in Islamic Law from Islamic College London and accredited by Middlesex University.
Today, as legislation to ban Sharia law is increasingly introduced in US states and in the UK, it is worth considering how long such assumptions and stereotypes have simmered in popular culture. In Western media and arts, Sharia law has been defined graphically through the medium of corporeal punishments such as stoning and amputation (and the restrictions they place on the behavior of minorities and women). It should come as no surprise then that the West views the Sharia as an enemy of human rights.
These anxieties are all hot-button issues right now. (One post trending on Substack asks if Shariah law should be banned in the US; it received over 500 comments in favor.)
In response, it is often pointed out that constitutional democracies already have laws in place nullifying any non-native law from taking precedence. This means Shariah law can never replace federal law, period. So the introduction of Sharia bans is propaganda.
But the Muslim community has also relied on another defensive maneuver. They explain that the theoretical grounds of Islam’s religious law (maqasid al-Sharia, the higher objectives of Allah’s law) reject injustice by encapsulating God’s intent in revealing Sharia. Maqasid tells us that we must prioritize those objectives of divinely revealed law, which are preservation of life, intellect, lineage, religion, and property. These maqasid (aims) make the Sharia compatible with secular democracies.
Proponents of this explanation emphasize that, whereas the divinely revealed law (Sharia) and its objectives are immutable and given to us by a perfect God, it is imperative to distinguish Islamic law as the arena of human legislation, which is fallible. Accordingly, where religious law has erred (and where Western criticism of Islam is appropriate, such as the physical punishments sentenced under the Sharia), the fault lies with Muslim jurists and legal scholars whose interpretations we Muslims have vested with authority as infallible legal rules.
For that reason, many Muslims now agree that following the theory of maqasid al-sharia is the best route forward. According to scholars such as Khaled Abou El Fadl, Muslims have made serious missteps by accepting rigid interpretations of Islam by legal scholars whose human-made legislation cannot be considered immutable and timeless on a par with Allah’s revealed code of law. They are at fault for the egregious human and civil rights violations that occur today in Muslim majority countries. Indeed, Prof. Abou El Fadl blames this class of scholars for the lack of dynamism in Islamic legal rulings and the inability of Muslim societies to bring their countries into alignment with universal human rights law.
Maqasid al-Sharia: Implications and Questions
Yet, we see a hint of the repercussion of this thesis (that the main impediment to human rights standards is Islamic law) in Israel’s now-blatant destruction of Palestine and its undermining of all Arab and Muslim nations along its borders.
As the late professor Galal Amin has observed, since its inception in 2002, the United Nations Development (UNDP) Report on the Arab world “does not include a single sentence on the authoritarian rule created by foreign occupation of Arab lands.” In fact, the UNDP Report had for decades created the impression that Arab regions experienced the greatest threat to violations of human rights from authoritarianism that “must come from inside the region”, thus ignoring the truth that foreign forces “may also constitute a threat to various forms of freedom…”
Thus, despite the wide acceptance of Abou El Fadl’s argument, there is a serious problem with its merits. As there is a hurdle in relying on maqasid al-sharia alone as a return to our correct tradition.
For one, it was developed rather late in Islam’s history by Imam al-Shatibi (d. 790/1388). Just as any inductive exercise, that project had to sift through and generalize from the individual experiences and rulings of Muslim legal scholars over the course of eight centuries. That effort was tuned into the specific social and intellectual problems of its own historical moment.
In other words, we can recognize the importance of the higher objectives and fully accept them without forgetting that we still have to ask whether focusing on a theory or inductive statement can teach how to infuse creativity and open-mindedness into our modern legal and social quandaries. And then we must also ask, how is this possible without knowing anything at all about past Muslim legal scholars whose step-by-step work brought it to fruition?
To see this in action, let us say that we accept that the theory of maqasid al-shariah is key to turning our present situation around. We still face the problem of criteria. If we say that we must not cling to an idealized past but at the same time not be too enamored of Western modernity, what exactly is our standard in navigating between the two?
Testing Maqasid on the grounds of Gaza
For instance, as we question how best to proceed in the face of Israel’s genocide of Gaza, American Muslims have multiple and contradictory opinions on how to work toward the goal of preserving Palestinian life, dignity, lineage, and property. Some religious leaders support cooperating with right-wing Americans who object to Israel’s dominance over American foreign and domestic policy. Others say we cannot work with these critics of Israel because they still hold bigoted views of Muslims and Islam. Some of us believe that Muslims’ poor use of Gulf states’ wealth and natural resources has been a missed opportunity to help Palestine; others think that it is the condition of our hearts and not material economic or political decisions that will change the present situation.
As this example shows, prioritizing life, intellect, lineage, religion, and property is a necessary reference point—a final check that we’ve arrived at the correct destination. But it does not give us the moral compass or creative direction to map out our itinerary in the first place. For that, we need guidance from the history of our legal tradition—the ins and outs of what our scholars accomplished. Not from a technical or specialist perspective but from a layman’s point of view. This is where history matters.
And while we acknowledge that today’s lack of dynamism in Islamic law is certainly a concern, what is more important, however, and should not be obscured by that discussion is that Islamic law (whether human legislation or divinely revealed, immutable commands) has not caused the dehumanization that Western historical persecution of heresy and blasphemy have inflicted as physical punishments in the realm of criminal law.
For instance, in 1656 when a Quaker man named James Naylor was found guilty of blasphemy in England, he was sentenced to five separate corporeal punishments:
he was whipped through the streets of London,
his tongue was bored by hot iron,
a ‘B’ was branded on his forehead,
he was carried bareback on a horse through Bristol
and he served two years of prison with hard labor and isolation.
In that same century, the seventeenth, John Locke composed a theory of political liberties and toleration. But in his Letter Concerning Toleration, he drew out the bitter irony that members of his society “express their Love and Desire of the Salvation of … Souls, by the infliction of Torments, and exercise of all manner of Cruelties.”
Such persecution of blasphemy or other violations of religious law—what Locke termed “torments” and “cruelties” was unknown in the Muslim world.
Notice that a theoretical statement of human and civil rights is only that—a manifesto inscribed in words. It can be adopted or borrowed from others. On the other hand, it is the human rights record of the past that shows us whether or not that manifesto has been accomplished in deeds, and not only in lip service.
For Locke, it was a blueprint for the way forward. We have seen in the intervening centuries that it did not provide relief to the non-Western world.
Meanwhile, in the Western imagination, Islam and its Muslim populations have been projected as the face of what was actually Europe’s historical religious persecution, as if Islamic civilization was the force that gave religious law tyrannical power.
In fact, bodily penalties and capital sentences are the source of the greatest fears and anxieties in the West about Islam’s religious law, according to Rudolph Peters.
Yet, as he explains in Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, these corporeal punishments were rarely applied during Islam’s entire classical period.
Why do we as Muslims not know that?
What we have, then, in the rise of anti-Sharia laws, is a problem of perception.
So,why are we not making use of our historical knowledge to respond to the problem of perception and to ‘move forward’?
Although relying on maqasid al-sharia cannot solve these problems, the right approach to history can address both.
For example, we can relate the history of a system of justice that Muslim legal scholars’ rulings actually inaugurated.
History and Islamic Law: The Human Interface
When Imam Nawawi (d. 676/1277) gave his ruling on whether someone who did not perform the obligatory rituals should be punished, he did not advocate for a physical penalty. Further, he gave a reason that could convince others:
“One proof of this is that a person who cannot choose is not held responsible (man laysa lahū ikhtiyār laysa ʿalayhī ḥisāb), such as someone asleep, insane, a child, forced, unremembering, or someone who makes an honest mistake. The legal responsibility of such people is lifted because they lack full voluntary choice.”
Imam Nawawi was a Syrian scholar who lived in the 7th/13th century during the Sunni Revival. His life was spent reckoning with the Crusader and Mongol invasions and the confusion brought about by so many different ideas, ways of life, religious practices, and philosophical beliefs mixing together for the first time.
Yet, he found a way to make the precarious position of converts, minors, and outsiders relatable to the ordinary Muslim so as to avoid enforcing criminal law’s hudud or bodily punishments, as far as possible. These strangers’ circumstances became understandable because the Imam used analogy, to remarkable effect. A verified hadith (known as raf‘ al-qalam) stated that one who was asleep, a child, or of unsound mind was not held legally accountable until the condition had ended. The Imam related that status to and conferred it upon a minority or new convert as well.
One of his arguments for not punishing an individual physically is that he/she may be coerced or under another person’s influence. Or, he asserted, perhaps we are dealing with someone disabled or forgetful. A myriad of plausible legitimate excuses are elaborated to help us relate to other human beings with compassion when we judge their outward actions.
Mercy lit every corner of Islam’s legal heritage. This human-derived legislation was theoretical and rational because it relied on analogical reason. But it could also represent positive law because it tells us, practically, how to act and what to avoid in accordance with the law.
As to madhhab, Imam Nawawi followed the Shafi’i school. Nawawi composed an entire treatise on the unmatched clarity of his predecessor, who he thought was the scholar whose original work most deserved further study. The eponymous founder of that school of law, Imam Shafi’i, had developed the discipline known as usul al-fiqh (the principles of jurisprudence). May Allah have mercy upon them both.
And although Imam Shafi’i’s work has been called legal theory, this brilliant scholar delineated a process that could be reproduced—how he came up with a methodology (from the Quran and Sunna) rather than just expounding the theory in its final form as if it had occurred to him independently.
Imam Shafi’i is the only founder of a school of law who left us a complete record of how he came up with legal rulings: the text al-Risala.
In the next post, I will delve into the details of this luminary Gazan scholar and how he systematically confronted the sentence of death by stoning. That punishment was ubiquitous in the ancient world.
“Whoever blasphemes the name of the Lord shall surely be put to death. All the congregation shall stone him.” (Leviticus 24:16)
Stoning was mandated in the Old Testament as a sentence for varied offenses from blasphemy and idolatry to adultery. Besides the passage above, it was ordered in Deuteronomy 17:2-5, Leviticus 20:27, Joshua 7:25, as well as in several other verses.
In Islam’s history, however, we find that Imam Shafi’i was first in putting sacred law to work to diminish the application of stoning (Arabic rajm) until it virtually disappeared. What made this more likely in the new religious context? Islam’s Scripture, the Qur’an, does not contain a single verse that establishes stoning as a punishment.
Thank you for reading.
References:
Khaled Abou El Fadl, Islam and the Challenge of Democracy, Ed. by Joshua Cohen and Deborah Chasman, Princeton Univ Press, 2004.
Galal Amin, The Illusion of Progress in the Arab World: A Critique of Western Misconstructions, The American University in Cairo Press, 2006.
Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, Cambridge Univ Press, 2006.
Lubna A. Alam, ‘Keeping the State Out: The Separation of Law and State in Classical Islamic Law’, Michigan Law Review, 105(6), pp 1255-1264.
Yaḥya ibn Sharaf al-Dīn al-Nawawī, Reliance of the Traveller: A Classic Manual of Islamic Sacred Law (‘Umdat al-Sālik), Transl. by Nuh Ha Mim Keller, Amana Publications, 1997.
Muḥammad ibn Idrīs al-Shāfi‛ī, al-Risāla, Ed. by Aḥmad Muḥammad Shākir with commentary, Maktabat Dār al-Turāth, 2005.
I generally agree with what you wrote, but it's factually incorrect to say that the Maqasid were not formalised until the time of al-Shatibi. Both al-Ghazali and al-Juwayni have their own formulations of the Maqasid.
When can we expect the second part?