Monday, August 20, 2018


Objections to a maqasidi approach to Islamic jurisprudence are often based on the idea that such an approach is not based on a systematic approach to the Qur'an and Sunna , that  is dismissive of the textual indicants ( nass) and is based on 'whim' (hawa)  . In the excerpt below , taken from this publication of mine , I demonstrate that these objections are not well founded when it comes to the approach to the maqasid discourse in progressive Muslim thought. 
The broader hermeneutical principles upon which the concept of maqāṣid is based in progressive Muslim thought consist of the following elements:
I.)                 Comprehensive Contextualisation:
By comprehensive contextualisation I mean investigating, in a methodical manner, the role of context in shaping of the very content of the Qurʾān and its worldview. For this to take place we need to recognize the Qurʾān’s orientation towards the assumed operational discourse of its revelational context that manifests itself in the Qurʾānic content and is reflected in the grammatical and syntactical structures employed in the  Qurʾān’s language. This Qurʾānically assumed operational discourse must be seen as often reflecting the prevalent religious, cultural, social, political and economic situation of its direct audience, its first community of listeners and participants upon which a  dialogical nature of the Qurʾān’s discourse is premised. This nature of Qurʾānic discourse has been noted by several Muslims scholars.  Abu Zayd, for example, considers that the Qurʾānic discourse reflects the dialectical relationship between the Qurʾān and the reality of the early Muslim community.  Achrati elsewhere argues that the oral-based culture of the Arab Bedouins strongly influenced the character and the nature of the Qurʾānic discourse.  This dialectical and symbiotic nature of the Qurʾān and its relationship with its first listeners is, in turn, based upon Qur’an’s essential orality. The hermeneutical importance of this idea of Qur’an’s recognition of the prior knowledge and mentality resident among its first audience, as  has important hermeneutical implications as I will demonstrate in relation to the issue of ṭalāq.[i]

We can apply comprehensive contextualisation to the issue of Qurʾānic concept of ṭalāq by noting that one the most evident assumptions evident in a majority of the passages in the Qurʾān that have socio-legal import is the existence of an all-embracing patriarchy[ii] existing in its historically revelatory milieu and is reflected in the structure and the content of the Qur’an itself. [iii] Husband’s right to unilateral dissolution of marriage is one aspect of this patriarchal milieu. According to Schacht:

The right to a one-sided dissolution of a marriage belonged to the man exclusively, among the pre-Islamic Arabs. Long before Muḥammad, this  ṭalāq was in general use among the Arabs and meant the immediate definite abandonment by the man of all rights over his wife, which he could insist upon as a result of his marriage. [iv]

At the philological level this patriarchal revelation context is evident in the Qurʾānic injunctions, which are exclusively directed at men in matters pertaining to divorce and marriage. For example, Qurʾān [v]   (65: 1-2) instructs the Prophet that if the men divorce their women ( ṭalāqtumu nisāʾ)they should allow women to reside in their marital home during their ‘idda and then  instructs men to  keep  or stay with their  wives in dignity or you divorce them in kindness and dignity.” [vi] In the pre-modern Qurʾānic commentary (tafsīr) literature that I consulted ( Al-Suyuti, Ibn Abbas, Al-Qurtubi, Ibn Kathir, Al-Wahidi and others) on this verse  it is evident that all of the exegetes (mufassirūn) considered that the unilateral right of men to divorce their wives was a  ‘pre-given’ and ‘natural’ order of things and did not problematize it at all apart from emphasizing that although the verse addresses the Prophet it also is speaks to  all the male believers (mu’minūn). Instead, the mufassirūn either focused on the discussions surrounding the ‘idda and/or the proper treatment of one’s wife during this time and provided the circumstances  for the revelation of the verse (eg. The Prophet’s divorcing of his elderly wife Hafza or Abd Allah Ibn ʿUmar divorcing his wife when she had her menses). [vii]
What I wish to highlight for the purposes of the chapter is that this Qurʾānic verse (and others I discussed elsewhere)[viii]  pre-suppose the existence of a social and cultural order which confers the right to entering into marriage [contract], divorce, physical punishment, disciplining and even possession of women (as in case of slavery and female concubinage) solely to men, the reality of which is assumed, acknowledged and addressed by the Qurʾān. However, does this necessarily imply that Qurʾān endorses the same powers to men or does it attempt to mitigate and limit them? To answer this question we take recourse to the next hermeneutical principle namely that of Mitigation and Deduction of Moral Trajectories.
II.)              Principle of Mitigation and Deduction of Moral Trajectories:
The process of comprehensive contextualisation, in turn, points to the mitigatory nature of the  Qurʾān  and Sunna evidence in relation to its socio-legal dimensions, especially those concerning women. On the basis of this mitigatory nature of the Qur’an and Sunna the principle of moral trajectories is deduced which stipulates that the  Qurʾān  and Sunna teachings were pointing into certain directions as ideals to be attained in the future which were not possible at the time of Revelation due to the mentality and level of civilisation of the immediate audience. In other words the Qur’an and Sunna are purposive in nature, that is, they pointed toward certain objectives or higher intentions.

The principles of mitigation and moral trajectories can be applied to the issue of the Qur’an’s concept of divorce too. Among others Abou El Fadl has observed the existence of the mitigating effect of the Qurʾānic verses concerning the socio-legal rights of women by asserting that these Qurʾānic verses were performing the function of ”protecting women from the power of men [they] already possess[ed] by the virtue of the customs and practices of the society in which Islam was revealed.”[ix] Similarly, elsewhere he asserts:

The thorough and fair –minded researcher would observe that behind every single Qurʾānic revelation regarding women was an effort to protect the women from exploitative situations and from situations in which they are treated inequitably. In studying the Qurʾān it becomes clear that the Qurʾān is educating Muslims how to make incremental but lasting improvements in the condition of women that can only be described as progressive for their time and place.[x]

Wadud develops this type of argument further with the employment  of the hermeneutical principle of Qurʾānic moral trajectories pertaining to women through what she temrs „textual development“ in the Qurʾān. By textual development Wadud wishes to alert the reader/interpreter to be sensitive to how Qurʾānic text establishes new moral, social and political trajectories which go beyond the literal and concrete meaning and searches for the underlying rationale (ratio) or objective/ aim.[xi]
The notion of new moral trajectories leads Wadud to take a hermeneutical recourse to ethical principles such as equality, justice and human rights as being constitutive of the Qurʾānic ultimate aims as well as being its hermeneutically most powerful principles of interpretation.
Fletcher similarly states that the “Prophet’s mission is not correctly indicated by reified content of Islamic Law but rather by the direction of his reforms” and more specifically to issues pertaining to women “ Prophet’s message with respect to the Arab sunna must be clearly understood  to benefit women and to reform the existing practices extremely prejudicial to women.”[xii]
 Furthermore, according to scholars such as Abu Zayd and Souaiaia, and based on the semantical and historical analyses of these verses, it would be safe to assert that all of the  Qurʾānic injunctions pertaining to family issues  aim  to limit the rights of men that existed in the patriarchal and tribal-based social, economic, cultural and political reality of the Qurʾānic revelational milieu, rather than stipulate absolute rules and regulations. [xiii]Additionally, all of the Qurʾānic and Sunna injunctions pertaining to the rights of women had a mitigating effect on the basis of which we could deduce certain moral trajectories such as fairness and equality of rights as argued in the works of Wadud mentioned above. [xiv] 
But is this mitigating process an end in itself or just a means to an end?

III.Purposive Nature of  Qurʾān  and Sunna and Islamic law/philosophy:
The existence of moral trajectories points to another hermeneutical mechanism in the Qur’an and Sunna, namely their purposive nature.  By purposive nature of the ethico-legal  teachings of the  Qurʾān  and Sunna  (as systematized in Islamic law and its philosophy)  I mean that the primary function of Islamic law and the most fundamental element in its methodological philosophy  is based upon a realization and fulfillment of its purposes (maqāṣid) which , in turn, are  identified on the basis of a legal theory methodology that hermeneutically privileges an ethico-religious values based approach to the interpretation of the  Qurʾān  and Sunna.
In the context of Qur’an and Sunna injunctions pertaining to Muslim family laws we could argue that if the principle of the Qurʾānic textual assumption of certain patriarchal practices prevalent in its milieu such as talaq and their subsequent mitigation on the basis of other relevant Qurʾānic verses was recognised as a hermeneutical tool giving rise to the idea of extrapolation of  moral trajectories, this would contribute towards the development of a purposive or maqāṣid    based Qurʾān-Sunna hermeneutic and maqāṣid   oriented Islamic legal theory philosophy. So the Qurʾānic reflection of divorce practices in its historical milieu would not be considered as representing a  Qurʾānic value ( in the sense developed above) but the Qur’an’s  mitigating and limiting concern would lead to the extrapolation of a moral trajectory pointing toward fairness and equality/ symmetry of rights as its ideals. These, in turn, would be identified as the actual Qurʾānic values.  The idea of values brings us to the final hermeneutical mechanism, namely that of ethico—religious values based hermeneutic of Qurʾān  and Sunna.

VI.       Ethico—Religious values based hermeneutic of  Qurʾān  and Sunna :
Ethico—Religious values based hermeneutic of Qurʾān  and Sunna is a hermeneutical method which stipulates that the actual nature and character of the  Qurʾān -Sunna  discourse is hermeneutically best  served and privileges  its own interpretation on the basis of certain ethico-religious principles such as justice, righteousness, equality etc. understood in ethically objectivist terms. By ethically objectivist terms I  mean that values such as what is considered as ethically ‘good’ or ‘repugnant’ are discoverable and recognised by reason independent of revelation ( here recourse to  the Qurʾānic principle of fiṭra could be taken )  and are subject of evolution in concert with civilisational progress.
This is exactly what Abu Zayd argues when suggesting that all the legal injunctions in the Qurʾān[xv] are to be hermeneutically interpreted so that they are in accordance with the hermeneutically most powerful Qurʾānic value of justice which is one of the values that the Qur’an initiated rather than reflected. In relation to ṭalāq, this would translate into the argument that because our contemporary notions of Qurʾānic justice are in conflict with legal asymmetries and unjust ethical implications inherent in ṭalāq, the concept of  ṭalāq would not be considered as part of Qur’an-Sunna teachings because it goes against the larger Qur’an –Sunna values determined on the  basis of methodology outlined above

All of these mechanisms mutually reinforce each other and provide a very sound basis for a maqasidi based appraoch to the Qur'an and Sunna.

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