within the texts, but whether it is compatible with the deeper goods and interests whichGod wants to protect through the law. All maq
id theories posit that there are fiveuniversal necessary interests the protection of which the law prioritizes: life, religion,lineage, property and reason. For all of these interests, protection can involve both positive and negative liberties, as well as various forms of restrictions on other less fundamental acts. The purpose of this paper is to examine some treatments of themeaning and extension of the Islamic legal purpose (maq
ad) of protecting religion (
n), with an eye towards Islamic legal theorists’ explicit or implicit encounter withmodern liberal and secularist understandings of what it means to “protect religion.”
I. Muslim Minorities and the Encounter between Islam and Secular Positive Law
With the growth of Muslim communities in the West over the past few decades, itis natural for Western intellectuals (particularly political and legal theorists) to take aninterest in the way in which a comprehensive doctrine like Islam, with rich, long-standingand intellectually powerful traditions of law, theology and morality, interacts withexisting and evolving Western conceptions of the relationships between religion, law andsocial solidarity. Issues pertaining to Muslim communities and Islamic religious practicesare, of course, well-represented in the rich literatures on multiculturalism and legalaccommodation. There is also a growing literature on more abstract Islamic thought onthe minority condition and on the terms of citizenship offered by various religiously-diverse countries in which Muslims are a demographic minority.At risk of simplification, scholars interested in Islamic religious thought onpolitical morality within the (by and large) secular, (by and large) liberal countries of theWest are likely to generate questions on two broad topics: (1) developments insubstantive views on questions of applied political ethics, and (2) developments in formand method within Islamic religious discourses. The first broad topic is the question“What do Muslims believe?” The second is the question “How are internal Islamicethical debates conducted – what are the standards of proof, argument and persuasion?”The two sets of questions are, of course, deeply intermingled.
Indeed, it is the expresspurpose of this paper to explore the way in which non-Muslim political theoristspotentially interested in (1) should also be interested in (2). Nonetheless, the relationship
All substantive ethical views are arrived at through some method or another, whether that method is assimple (?) as interrogating one’s own intuition or as complex as formal, expert reasoning according to therules of religious legal theories. Moral argumentation, again to simplify, is either a question of disputinganother’s application of commonly agreed methods or of disputing which methods ought to be used. Yet,dispute over the methods of moral reasoning is liable to “always already” involve dispute over substantiveethical commitments – either directly and transparently or because at least one of the parties believes thatout of two prima facie acceptable methods, one is more likely to lead to specific applied conclusions.Finally, methods of moral reasoning no less than specific moral commitments are liable to be treated assettled, off-limits and definitive of whether another human meets the lowest requirements of rationality andreasonability to warrant inclusion in a shared community. Indeed methods of moral reasoning are liable tobe fetishized and totemized by moral communities – one questions them publicly at risk of abuse andexclusion.