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New Approaches to Islamic Legal Thought

Islamic tradition, like other great traditions of the world, is undergoing constant changes in order to adapt to the evolving cultural environments. While changes are particularly slow in legal aspect, however, once the a religion like Islam becomes integrated into the political system, such changes become more rapid, and of course more inevitable. In order to explore some of those changes in the legal arena, an area rarely addressed by the researchers, we have put together a panel by scholars in the field to address various aspects of development in the Islamic legal thought.

On the panel, Abdolkarim Soroush will discuss his new findings in the area of nation building in Islamic societies. His research titled "The Shari'a and the Notion of Modern Nation-State" will address the recent emerging calls for reinstating the Islamic umma, in an era that the modern world superimposes the concept of nation confined within territorial boundaries.
Mohsen Kadivar will address the functions of Ijtihad, and the way this method can be used to rejuvenate the tradition, by replacing the ritualistic Islam with a more profound and spiritual approach. His talk titled "Ijtihad in Ossul al-Figh" will try to tackle the very delicate - and largely ignored - topic of basic structure of inducement of laws and fatwas from the principles of Sharia, and how a qualified Islamic jurist can potentially reform those tenets.

New approaches in determining the higher objectives of Islam (مقاصد الشریعه ( will be discussed by Ahmad Kazemi Mousavi. His study addresses the higher goals of Islam such as justice and cooperation, which should be observed, rather than paying homage to unforgiving rites of the religion.

Rasool Nafisi will address the newly ratified Islamic Penal Code in Iran. In his comparative study, he will address the changes made in the law compared to the previous version, and tries to determine those underlying sociological factors that might have led to those changes. Dr. Nafisi will also serve as the chair and discussant of the panel.

Presentations

The Shari'a and the Notion of the Modern Nation-state
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The Arab world can learn a lot, both positively and negatively, from the Iranian experience. The most important lesson would be the realization that we live in an era of nation-states, an era in which Christendom or the House of Islam( Dar ol Islam) are no longer in existence, rather nations with different interests and ideologies. This means that many of the Islamic rules and regulations, which were originally legislated for the world of Islam as a whole (Umma), are to be tailored to the requirements of the modern nation states; a fact that the Islamic Republic of Iran seems to not fully appreciate. My hypothesis is that the concept of nation-state was never fully understood by the founders of the Islamic republic of Iran, and the "export of revolution" therefore was enshrined into the Constitution. The more contemporary Muslim revolutionaries such as the ones in Egypt and Tunisia seem to have a better understanding of this fact, and delimit their revolution to their national boundaries.

Ijtihad in Usul al-Fiqh
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Foundational ijtihad distinguishes sharply between unchanging and immutable principles and values and time-bounded and conditional verdicts that are relative. It takes a critical approach to traditional theology and ethics, consensus, hadith literature, and legal rulings of the jurists. This method requires contextualization and a re-reading of the Quran and Sunnah in light of ethics, justice, reasonability and the ultimate objectives of Islam. Modern challenges cannot be resolved by engaging in traditional ijtihad within the realm of secondary injunctions (furu‘) and there is no alternative other than foundational ijtihad to reconstruct Islamic thought, which includes theology and ethics as well as Shari‘a. This will help to resolve the contemporary challenges in areas such as human rights, gender equality, freedom of religion, and political thought. This kind of Ijtihad requires a new version of the method and principles of jurisprudence ('Usul al-Fiqh). This presentation will focus on this new method and principles of jurisprudence ('Usul al-Fiqh).

Considerations on the Higher Objectives of the Law as a New Project for Legal Reforms
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Muslim scholars of the contemporary era are increasingly expanding the scope of the old theory of maqasid to include not only “people’s interests’ (masalih) but “rational priorities” (awlawiyyat). Although surrounded by new streams of Islamic traditionalism and Islamic extremism, the reform oriented trends continue to offer new ideas to adapt Islamic law to the changing situation of the time.
In this paper, I will focus on the works of two contemporary Egyptian authors Tariq Ramadan (b.1962) and Jasser Auda to represent the modern trend of Islamic legal reform movement based on the maqasid theory. A brief reference to the history of the rise of maqsid theory, in the beginning, will show how the theory was conceptualized as the philosophy of Islamic law by the fourteenth century jurisprudent Abu Ishaq al-Shatibi. The primary intention of the Lawgiver, according to Shatibi, is the welfare of the people (maslahah).
Tariq Ramadan proposes a school of higher objectives of law as part of Islamic legal methodology (usul al-fiqh) to take the social and human environment into account. Not only does it shed light on fundamental texts, he writes, “but only by knowing it accurately can one remain faithful to the divine Lawgiver’s intend”. This assertion is based on his theological approach to the Qur’ānic notion of ayat (lit. signs) by which he equates knowledge of the outside world with that of the revealed scripture. He states that the “…surrounding Creation is a Universe of signs that must be grasped, understood, and interpreted”. (Radical reform, 2009, 75 & 88)
Jasser Auda provides a space for the maqasid theory in his “systems approach”. Despite the multi-dimensionality of efforts made by Auda to re-philosophize Islamic law, “the implication of purpose” remains the most tangible part of his work. He first refers to the difference between goal and purpose as the latter produces the same outcome in different ways and different outcome in the same or different environment. Thus, purpose-seeking systems could produce different outcomes for the very same environment as long as these different outcomes achieve the desired purpose. Auda presents an interesting outline of the relationship between purposefulness and other features of the system of Islamic law, in which the process of ijtihad plays a significant role.

Penal Code and Social Change
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The revised penal code of the Islamic Republic of Iran was finalized in April of 2013. There are a number of meaningful changes in the code that could be interpreted as the outcome of pressures exerted by both domestic and international agents on the system to modify the archaic laws. For example, the most controversial article of stoning is removed from the code; a clear response to the international and national outcry against this primitive method of punishment. So are the limitations put on the Islamic judges that hitherto sentenced the accused based on their own speculations, without any need to support their opinions by articles of law. Again, this will significantly reduce the wantonness of the decisions of judges whose main credentials are based on their years spent at the seminary. In this paper, the sociological aspects of changes in the penal code of the Islamic Republic will be discussed, hypothesizing that the level of changes made in the penal code represents the degree of flexibility of the regime corresponding to social change and demographic volatility.