Discuss the contemporary development of Islamic Jurisprudence.

Contemporary development Of Fiqh The Background New social and political ideas emerged During the 19th century, the history of Islamic law took a sharp turn due to new challenges the Muslim world faced: the West had risen to a global power and colonized a large part of the world, including Muslim territories. In the Western world, societies changed from the agricultural to the industrial stage, new social and political ideas emerged, and social models slowly shifted from hierarchical towards egalitarian. The Ottoman Empire and the rest of the Muslim world were in decline, and calls for reform became louder. Criticism: Barbaric and cruel Most westerns consider the punishments prescribed by some countries' interpretation of Islamic law to be barbaric and cruel. In international media, practices by countries applying Islamic law have fallen under considerable criticism at times. This is particularly the case when the sentence carried out is seen to greatly tilt away from established standards of international human rights. This is true for the application of the: 1. death penalty for the crimes of adultery, blasphemy, apostasy and homosexuality, 2. amputations for the crime of theft, and

3. flogging for fornication or public intoxication.[175]

Western countries sometimes inspired, sometimes pressured, and sometimes forced Muslim states to change their laws. Newly Emerging Areas The examples so far given deal with new insights into old issues. But there is also a growing need to regulate newly emerging areas of human activity, occasioned by medical and technological progress like: 1. commercial and criminal use of the internet; 2. the cloning of plants, animals, and human beings; 3. ski traffic on Alpine slopes; or traffic in space. 4. surrogate motherhood, 5. in-vitro fertilization, 6. ovum donation, 7. organ transplantation, 8. DNA test as evidence for proving crimes, etc. Thanks to the Islamic Legal Academy in jiddah, an O,I,C. Sub organization , and individual ijtihad, as by Dr. Hassan Hathour, much progress has been made. In particular, it seems to be agreed that Organ transplantation is legitimate, provided no commercial sale is involved; Artificial insemination is legitimate, provided the technique involves only husband and wife; Cloning of human beings is illegal; and Plastic surgery is legitimate if it helps to overcome mental agony. Revival of the religion Muslims have responded in a variety of ways to the forces of modernity. These responses cross the lines of tradition, sect and school. They affect the way sharia is interpreted by

individuals in their personal lives, and the extent to which sharia is implemented in the public sphere by the state. These diverse movements can be referred to collectively as contemporary sharia(s).[45] There is tremendous variety in the interpretation and implementation of Islamic law in Muslim societies today. There has been a growing religious revival in Islam, beginning in the eighteenth century and continuing today. New Schools In the question of the development of Fiqh Muslim legal scholars are nowadays divided into the following three main categories: 1. Orthodox traditionalist (also called normativists), 2. secularized modernsists (also called acculturalist) and 3. fundamentalist" reformers ( also called neonormativist). Thoughts and Methodologies Traditionalists' Jurisprudence Main Focus: i) ii) iii) Both the Shar'ah and Fiqh are Divine and Unchangeable Obligation of one Madhhab and Taqlid ( )for Both the Legal Abidance and Development Door of Indepependent Ijtihad is Closed All laws Already Regulated By Allah Qur'an contains all laws as Allah announces:

[There is not a moving (living) creature on earth, nor a bird that flies with its two wings, but are communities like you. We have neglected nothing in the Book, then unto their Lord they (all) shall be gathered. Sura Anam: 38.]

[Today I have perfected your way of life.Sura Mayidah: 3]. On the basis of the above they conclude that the Shariah has ruled on each and every matter once and for all. Classical Fiqh Devine and Unchangeable 1. Traditionalists underline that that the first Muslims [the companions (Sahaba) and the Followers (their immediate successors)] were the best qualified for understanding and interpreting the Nusus [texts of the Qur'an and Sunnah]. 2. Therefore, like the Quran and Sunnah the entire interpretations [Fiqh] discovred by them over some 900 years through methods like Tafsir, Taw'il, Ijma, qiyas, Istihsan, masalih etc. are also Shari'ah, divine and unchangeable. 3. They consider any systematic reform effort in the classical Fiqh as inadmissible innovation (albida).

 Al-Ijthad al-Taqlidi for Newly Emerging Solutions According to them new interpretation and ijtihad for the newly emerging areas of the future, is limited to imitation (al-taqlid) of the principles devised by the classical Fuqaha. In this regard also, they consider any systematic reform effort as inadmissible innovation (al-bida). State Laws Traditionalists believe that the law of the state should be based on the traditional legal schools. They believe that any departure from the legal teachings of the Quran as explained by the classical jurists and put into practice by them is an alien concept that cannot properly be attributed to "Islam". They, wishing to return to basic religious values and law, have in some instances imposed harsh sharia punishments for crimes, curtailed civil rights, and violated human rights. These movements are most active in areas of the world where there was contact with Western colonial powers. [56] Extrimism Among the traditionalists, there are some extremists who have their own particular version of sharia[57] to justify acts of war against nonMuslims and also against other Muslim sects not belonging to their dogmas. [58] Friction between the West and Islam, particularly with regard to the Palestinian question, continues to fuel this conflict.
[59]

Muslim states using classical sharia:

Following Islamic states have adopted classical Fiqh as the ideological foundation for their political institution:

Afghanistan[86] Iran[87] Mauritania[88] Pakistan[89] Saudi Arabia[90] Yemen[91]

Saudi Arabia and some of the Gulf States do not have constitutions or legislatures. Their rulers have limited authority to change laws, since they are based on sharia as it is interpreted by their religious scholars. Saudi Arabia and Iran maintain religious courts for all aspects of jurisprudence, and the Mutaween (religious police) assert social compliance, while Somaliland, and Maldives adopted sharia in legal aspects but with a western style of judiciary system (Common law or civil law). Laws derived from sharia are also applied in Afghanistan, Libya and Sudan. Iran shares some of these characteristics, but also has a parliament that legislates in a manner consistent with sharia.[49] Islamic law does not distinguish between "matters of church" and "matters of state"; the ulama function as both jurists and theologians. In practice, Islamic rulers frequently bypassed the Sharia courts with a parallel system of socalled "Grievance courts" over which they had sole control.
[citation needed]

As the Muslim world came into contact with Western secular ideals, Muslim societies responded in different ways.

Azerbaijan was the first secular republic in the Muslim world, between 1918 and 1920, when it was incorporated into the Soviet Union.[82][83][84] Turkey has been governed as a secular state since the reforms of Mustafa Kemal Atatrk. By contrast, the 1979 Iranian Revolution replaced a mostly secular regime with an Islamic republic led by the Ayatollah, Ruhollah Khomeini.[85] Many Muslim countries have implemented some form of Sharia law or otherwise have Islam as the official state religion. Consequently, in those countries, areas of society ranging from politics to law to schooling, among others, have been affected. However, other states in the Muslim world remain officially secular.

The Closure Of the Door of Ijtihad By the early tenth century, mainstream Muslim jurisprudence formally recognized the finality of formulated legal opinion in the recognition of the four major schools of law, Hanafi, Maliki, Shafi'i and Hanbali. It was believed that no one could have attained the same level of knowledge as the early ulama or scholars, therefore their formulations were final and binding and that the gates of ijtihad for future generations were "closed." The consequence of this belief, writes Leila Ahmed is that "the vision of society, the understanding of the nature of justice, and the view of the proper relationship that should pertain between men and women that were developed by the men of that age have been consecrated as representing the ultimate and infallible articulation of the Islamic notion of justice and have, ever since, been set in stone." (Ahmed, p. 90) The closing of the gate of independent Ijtihad

Towards the tenth century some wanted to put a stop to further eleboration and controversies that were becoming prevalent, some claimed that the need for Ijtihad and Tafsir had been exhausted. Around 1305 some jurists in Iraq even decided to close the door of Ijtihad.11 Although the power of absolute Ijtihad was completely abolished, a relative Ijtihad was allowed, giving a scope for limited expansion in details. There are others who accept that direct Ijtihad on the matters which are not touched upon by earlier Mujtahidun can still be considered by a Muslim who has all the qualifications of a Mujtahid. Thus within the Sunni world of Islam the decisions of Judges in certain domains over the years represent small increments of Ijtihad in the body of knowledge held by the Schools of Law.12 Ijtihad was further restricted to exclude those cases that had become the subject of consensus, Ijma. Such cases were not subject to further juristic interpretation. Thus Ijtihad in legal matters was confined to the grey areas of the law, where textual certainty was absent but where human reasoning on the basis of the texts might uncover the law as intended by God. Some believe that restriction was needed to put a stop to the 'conflicts of opinions and doctrines' through which Islam had passed during the preceding three centuries and 'had finally attained stability, through the emergence of an orthodoxy, only towards the beginning of the 10th century (CE).'13 However, nowadays some say that such a decision pushed Muslim intellectual activity 'towards stagnation.' 14 Others believe that the reason for the curtailment of Ijtihad was 'the difficulty which occurred in practice: for if such a right were to continue [for any great length of time], especially if ta'awwul and the

precedence of something over the texts were to be permitted, and everyone were permitted to change or interpret according to his own opinion, nothing would remain of the way of Islam.'15 Perhaps it was for this reason that the right of independent Ijtihad was gradually withdrawn, and people were instructed to practice only taqlid of the four schools.

Secularized Modernists'Jurisprudence Secularism is the belief that religion should not play a role in government, education, or other public parts of society. Some Muslim scholars nowadays advocate for taking the above principle as a source of law for the Muslims. Most of them would like to rid themselves of the entire normative apparatus of Islam. Some, like Mohamed Arkoun, arrogantly even claim to rethink Islam.

Prominent Secularists Among the modernists some prominent are Bassam Tibi, Aziz Azmeh, Talal Asad, Mohamed Arkoun and Roger Garaudy. They are Arab nationalists, social anthropologists and former Marxists. Secular Definition of Islam

They offer a secularist definition of Islam as a sentimental, private affair, reduced to some rituals and without any significance for public life. i) Qur'an as a Asl for Theological &Moral Code Among these intellectuals: Some flatly deny that the Qur'an contains precise norms for a concrete project of society but only large guiding principles. Some maintain that the Quranic norms (which they accept as existing) were only meant to regulate the earliest Islamic community, the one in Madinah, and are no longer relevant and binding. The eternal Quranic message according to them is restricted to theological (and perhaps moral) truths. ii) Sunnah as a Asl for Theological &Moral Code Others, including Roger Garaudy, who try to reduce to a minimum the legal content of the Shariah by denying offhand the normative quality of the Sunnah or by rejecting many relevant ahadith as spurious.

iii) Secularism & Acculturalism as a Source for Legal Code Secularized Modernist Muslims believe that the law of the state should be based on secular principles, not on Islamic legal doctrines. Secularist movements pushed for laws deviating from the opinions of the Islamic legal scholars. Islamic legal scholarship remained the sole authority for guidance in matters of rituals, worship, and spirituality, while they

lost authority to the state in other areas. Liberal movements within Islam have questioned the relevance and applicability of sharia from a variety of perspectives; Islamic feminism brings multiple points of view to the discussion. Secular Muslim states Secular states are officially neutral in matters of religion, neither supporting nor opposing any particular religions.

Albania Azerbaijan[106] Bosnia and Herzegovina Burkina Faso[107] Chad[108] Djibouti[109] The Gambia[110] Guinea[108] Indonesia Kazakhstan[111][112] Kosovo Kyrgyzstan[113] Mali[114] Northern Cyprus Senegal[115] Tajikistan[116] Turkmenistan[117] Turkey Uzbekistan

Sharia in the secular Muslim states: Muslim countries such as Mali, Kazakhstan and Turkey have declared themselves to be secular. Here, religious interference in state affairs, law and politics is prohibited. [46] In these Muslim countries, as well as the secular West, the role of sharia is limited to personal and family matters.

The Nigerian legal system is based on English Common Law and the constitution guarantees freedom of religion and separation of church and State. However eleven northern states have adopted sharia law for those who practice the Muslim religion.[47] Some of the largest Muslim countries, including Indonesia, Bangladesh and Pakistan, have largely secular constitutions and laws, with only a few Islamic law provisions in family law. Turkey has a constitution that is officially strongly secular. India and the Philippines are the only countries in the world that have separate Muslim civil laws, wholly based on sharia. In India, Muslim civil laws are framed by the Muslim Personal Law board while, in the Philippines, it is framed by the Code of Muslim Personal Laws. However, the criminal laws in both the countries are uniform. Most countries of the Middle East and North Africa maintain a dual system of secular courts and religious courts, in which the religious courts mainly regulate marriage and inheritance. Sharia law is officially recognised by the justice system in Israel in matters of personal status of Muslims if they choose a sharia court, e.g., marriage, divorce, guardianship.) Judges' salaries are paid by the state. [170] Lebanon also incorporates sharia law for Muslims in family matters.[171] Some states in northern Nigeria have reintroduced sharia courts.[172] In practice the new sharia courts in Nigeria have most often meant the reintroduction of harsh punishments without respecting the much tougher rules of evidence and testimony. The punishments include amputation of one/both hands for theft and stoning for adultery.[173] Muslim states with blended sources of law: Muslim countries including Pakistan, Indonesia, Afghanistan, Egypt, Sudan, Morocco and Malaysia have legal systems strongly influenced by sharia, but also cede ultimate

authority to their constitutions and the rule of law. These countries conduct democratic elections, although some are also under the influence of authoritarian leaders. In these countries, politicians and jurists make law, rather than religious scholars. Most of these countries have modernized their laws and now have legal systems with significant differences when compared to classical sharia.[48]

Reformists' Jurisprudence Some Reformists From among them mention might be made of the late Muhammad Asad, Taha jabir al-Awani, Muhammad Said al-Ashmawy, Rashid al Ghannoushi, Hassan and Maher Hathout, Alija Izetbegovic, Jeffrey Lang, Fathi Osman, Yusuf al Qaradawi, Mohamed Talbi, and Hassan Turabi. They are all intellectual heirs of the Salafiyya movement as represented by Muhammad Abduh and Rashid Rida. From the 17th century on wards, discourses on Ijtihad versus Ijtihad taqlidi gained notable significance in Sunni Islam. Among the former reformers who argued to renew Ijtihad were Shah Wali Allah (d. 1765), Ibn Mu'mar (d. 1810), Muhammad ibn Ali alShawkani (d. 1832), and Muhammad ibn Ali alSanusi (d. 1859). Their emphasis on the centrality of Ijtihad amounted to a criticism of taqlid. They maintained that taqlid "is lawful only when applied on behalf of laymen who need the guidance of legal scholars in running their mundane and religious affairs."

 They argued that for the learned jurists the ultimate authorities did not lie in the doctrines of past masters but rather in the Qur'an and the Sunnah. Muslim scholars like Jamal al-Din Afghani (d. 1893) and his disciple Shaykh Muhammad Abduh27 (d. 1905) wrote about reopening of the door of Ijtihad.28 A similar stance was adopted by Shaykh Rashid Ridda (d. 1935). They claimed that to perceive the true essence of Islam one must free oneself from taqlid and blind dependence on the traditional interpretations of the four classical schools of thought and return to the religion of the forefathers (Salaf). 29It was argued that the Ijma of a few scholars to close the gate of Ijtihad was merely the result of fear of disunity among Muslims in a period of political instability and above all the decision was made in a period of 'intellectual stagnation' and now fresh Ijtihad is needed. There are other Muslims who ask: Was the door of Ijtihad ever closed? Allama Shaykh Mahmud Shaltut (d. 1963), the mufti and rector of Al-Azhar University claimed that the door of Ijtihad 'is open. Their Aim and Vision Their aim is to construct a renewed Shari'ah neither similar to traditionalists nor secularized modernists. They all aim at the refom (islah), renewal (tajdid), renaissance (sahwa), and awakening (nahda) of Islam through a juridical reconstruction based on the very roots of their religion. Their vision in not an Islam assimilated to Western civilization but an Islam as a constructive alternative,

ready to integrate into the modern world as a cultural unit which is, and is to remain, different and specific. They believe if their vision becomes true Islamic jurisprudence, it could become so dynamic that Islam might become the religion of the 21st century. Their Doctrines About Qur'an Allah, in the Qur'an, via His revelation, has only regulated what He wished to regulate so that there are lacunae which man may regulate himself or leave unregulated. Any lecture of a text amounts to interpretation so that pure literalism is impossible. About Hadith They believe certainly is not part of Islamic doctrine to accept as sahih (sound) everything found in the collections. They engage in a renewed assessment of the hasdith, applying: 1. methods of modern semantics, 2. historical and contextual critique and 3. remaining Aware of the fact that somebody ready to forge or manipulate the matn (textual content) of a tradition will certainly also have been ready to do the same to its isnad (chain of transmission). They resist the tendency of the traditionalist to attribute to the Sunnah the very same status enjoyed by the Quran because, in contract to the Quran, the

sunnah can never fully escape questions of authenticity. Therefore, the reformers, even in theory, exclude the possibility that a Quranic verse might be abrogated by the Sunnah. About Shar'ah and Fiqh The reformers believe that the Shariah, and Fiqh are different. Shariah is divine law in the narrow sense; Fiqh is a proceeding from divine sources to a human product. Muhammad Asad formulated: Thus, it is the nusus (text) of the Quran and Sunnah and only these that collectively constitute the real, eternal Shariah of Islam. Shariah has only two components: 1. the strictly legal verses of the Quran some 200 having been identified dealing with family law (including marriage, divorce, and orphanage), the law of inheritance, as well as rules concerning the status of minorities, civil and criminal procedure, penal law, economics, and the administration of the community; and 2. the authentic, normative ahadith (exclusively) of the sunnah of the prophet (s.) They exclude from the shariah, for instance, mere nonbinding commendations; personal idiosyncrasies; technical, agricultural, and medical skills of the time, and military tactics.

 They resist the traditionalists' trend to sacralize Figh. They believe that Fiqh is the end product of human efforts, reflecting their particular situation, at a particular time and thus It cannot be considered as faultless and unchangeable.

Legal scholar Liakat Ali Khan claims: "...the concept of sharia has been thoroughly confused in legal and common literature. For some Muslims, sharia consists of the Quran and Sunnah. For others, it also includes classical fiqh. Most encyclopedias define sharia as law based upon the Quran, the Sunnah, and classical fiqh derived from consensus (ijma) and analogy (qiyas). This definition of sharia lumps together the revealed with the unrevealed. This blending of sources has created a muddled assumption that scholarly interpretations are as sacred and beyond revision as are the Quran and the Sunnah. The Quran and the Sunnah constitute the immutable Basic Code, which should be kept separate from ever-evolving interpretive law (fiqh). This analytical separation between the Basic Code and fiqh is necessary to dissipate confusion around the term sharia."[51]

Door of Indepependent Ijtihad is Open Reformers believe that it is necessary and legitimate for each new generation of Muslim jurists to struggle for a reformulation of Islamic legal doctrine by applying the original Shariah and its principles (maqasid) to new issues and contemporary problems.

 Their such initiatives are called Ijtihad).

( Neo-

Methods of Neo-Ijtihd Their neo-Ijtihad is founded on two-fold methods. These are: 1. Takhayyur (&) Talfiq ( ) for Taqlid ( ) of Madhahib (Schools of Law) 2. ( Neo-Ta'wil, i.e., NeoInterpretation) of the texts of the Qur'an and Hadith

Takhayyur (&) Talfiq ( ) for Taqlid () of Madhahib (Schools of Law) Reformers believe that it would also be a grave error to overlook the viewpoints, legal solutions, and futawa (legal decisions) discovered past Fuqaha though they are often so diverse. They, therefore, opine to follow them when deem suitable. The Taqlid of the legal decisions of Fuqaha may be either by imitation of only one Faqih or by the methods of Takhayyur (&) Talfiq () . Definition of Takhayyur Takhayyur is an Arabic ward meaning literally " to choose; to select; to pick out." Technically Takhayyur refers to the right of an individual Muslim to select and follow the

teaching of a madhhab other than his own with regard to a particular issue. Takhayyur is originally an act of taqlid. The modern-day Muslim scholars are of the opinion that under darura (necessity, a pressing difficulty) takhayyur is permissible (halal, mubah). Allama Shaykh Mahmud Shaltut (d. 1963), the mufti and rector of Al-Azhar University claimed that there is nothing objectionable about a follower of one school referring to the judgments of another school.' In one of his fatwa he went so far as to say that it 'is correct to follow the Ja'fari school of fiqh, just like the other schools.'30

Aim of Takhayyur The aim of the use of takhayyur and talfiq is the reconstruction of Islamic legal principles to suit the changed social conditions of our time. The dissolution of madhhab boundaries justified by a modified understanding of takhayyur can be observed in some Muslim countries' legislative attempts of modernizing their societies by restructuring Muslim laws.

Basis for Takhayyur In any serious context there is a well-known legal maxim stating "necessity lifts prohibition" (al-darura tubihu l-mahdhurat).

Some Examples of Takhayyur &Talfiq Takhayyur has been the most notable basis for reforms especially in the family law field. For example: 1. Twentieth century family law reforms often consisted of legislation by Hanafi countries that selected some of the rulings of the Maliki Madhhab on divorce, and legislation in the Maliki countries that selected provisions of the Hanafi Madhhab on the requirements of a valid marriage contract. It is because, Hanafi marriage law authorizes an adult to conclude his or her own marriage contract without the intervention of a legal guardian, therefore, its provisions on the marriage contract are most liberal and suitable to liberal idea of human rights. On the other hand, the Hanafi law provisions concerning divorce are generally restrictive and do not recognize judicial divorce. In contrast, Maliki divorce law recognizes judicial separation and divorce that may follow a failed attempt at arbitration in martial conflicts. Thus, Maliki divorce law is closer to the modern liberal procedures of divorce. The arbitration procedure in family disputes is also better defined in the Maliki School that in the other law schools. 2. The adoption, in the Ottoman Law of Family Rights, of the views of Mutazili scholars, Ibn Shubrumah, Abu Bakr al-Asamm and Uthman alBatti on the subject of guardianship in marriage. Legislation in Egypt, Syria, Sudan, Morocco,

Tunisia, Iraq and other countries followed suit and effectively outlawed child marriage by utilizing the expedient of takhayyur. Contrary to the mainstream juristic opinion of the existing madhhabs, the above scholars held that "there is no justification for guardianship in marriage of a minor person, on the ground that there is no need for such a union". This argument was used by modern reformers to abolish child marriage through the enactment of a statutory marriage age. In this case, the selection (Takhayyur) was made by the law makers in response to the need for curbing child marriage, which had come to be regarded as a source of mischief that imposes unnecessary restrictions on childrens freedom of contract by binding them to an arranged marriage that they cannot reverse even when they become adults. 3. The Ottoman Family Rights Law (OFRL) of 1917 is the first official Muslim law whose provisions have been derived from Islamic law without conformity to any particular madhhab. 4. In the Pakistani context, the Muslim Family Laws Ordinance (MFLO) of 1961 is another example. In the country, the locally prevalent forms of Islamic family law were reformed through a modern legislative process, either by subjecting some of the institutions of Islamic law to certain regulatory measures or by making use of takhayyur in drawing up a piece of legislation.

The Method of Talfiq

Talfiq, literally means to patch up or to piece together. Technically, it is an extension of takhayyur to the extent that the patching applies to a preferred option. Whereas takhayyur signifies the selection of a juristic view or opinion as originally formulated without trying to change it, talfiq often combines a part of the doctrine of one school or jurist with part of the doctrine of another school or jurist, and, in this way, arrives at a ruling that is deemed to be most suitable.

Examples of Talfiq Talfiq has been applied in the modern legislation of many Muslim countries, e.g., the law of inheritance and judicial circulars particularly of 1939 and 1943 of Sudan, the Egyptian Waqf Law 1947, the Syrian Law of Personal Status 1953, and the Tunisian Law of Personal Status 1956.

( Neo-Ta'wil, i.e., Neo-Interpretation) of the texts of the Qur'an and Hadith Reformers believe that only by going directly to the texts of the Qur'an and Hadith for new can produce modernized Islamic law[167] and lead to acceptable opinions in areas such

as women's rights.[168] Traditional interpretations are considered unacceptable by them, especially in areas like women's rights, minority rights penal laws.[166] Reformers, specially the Salafi movement for example stressed the need to reinterpret Islamic teachings with direct reference to the Qur'an and Ahadith leaving aside the accumulated scholarship of the Mujtahids through centuries. They particularly called for abandoning taqlid in interpretation of fundamental sources, the texts of the Qur'an and Hadith. They are called "fundamentalists" because, they want to go back to the fundamental sources, the texts of the Qur'an and Hadith, for renewed interpretations leaving aside the interpretations of the former Mujtahids discovered throughout the centuries. Some Examples of Neo-Ijtihad & Neo-Ta'wil (NeoInterpretation) 1. Hierarchy of Status in relationship between husband and wife Texts The relationship between husband and wife was regulated in many verses of the Qur'an, two of which are as follows:

[Men are the protectors and maintainers of women because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient and guard in (the husbands) absence what Allh orders them to guard As to those women on whose part you see ill conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly, if it is useful), but if they return to obedience, seek not against them means (of annoyance). Surely, Allh is Ever Most High, Most Great. An-Nis' (4:34)]

[And divorced women shall wait (as regards their marriage) for three menstrual periods, and it is not lawful for them to conceal what Allh has created in their wombs, if they believe in Allh and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And they (women) have rights (over their husbands as regards living expenses, etc.) similar (to those of their husbands) over them (as regards obedience and respect, etc.) to what is reasonable, but men have a degree (of responsibility) over them. And Allh is AllMighty, All-Wise.] ...but men have a degree (of advantage) over them. Al-Baqarah (2:228) Traditional Interpretation of the texts The traditional understanding of the above verses is:

 The relationship between husband and wife is frequently based on a hierarchy, husbands acting as if they enjoyed genetic superiority and were placed above their wives. Unit recently, the first verse [4:34] was indeed understood to mean that men were the bosses at best, the custodians who were in charge of women. They are often read as if the Quran was exclusively addressed to men. Neo-Interpretation of the texts In many more recent Quran translations, it is reflected that the key sentence in the first verse [4:34] ar rijal qawwamuna ala n nisa- is understood quite differently, saying no more than that men shall take full care of women or that men are the protectors and maintainers of women, respectively. In other words, ijtihad with respect to the first verse [4:34] is preparing no less than a revolution in traditional family relationships since there is no longer any question of seeing husbands placed above women but only, if needed, for physical and financial protection, in front of them. Regarding the second verse [2:228] reformists say it does not deal with civil status at all but only with a technicality of the law of divorce. They also say it is neglected in the traditionalism that according to the Quran husband and wife are to be

garments for each other in the same status, according to the following verse:

[It is made lawful for you to have sexual relations with your wives on the night of As-Saum (the fasts). They are Lbas [i.e. body cover, or screen, or Sakan, (i.e. you enjoy the pleasure of living with her - as in Verse 7:189) Tafsir At-Tabar], for you and you are the same for them. Allh knows that you used to deceive yourselves, so He turned to you (accepted your repentance) and forgave you. So now have sexual relations with them and seek that which Allh has ordained for you (offspring), and eat and drink until the white thread (light) of dawn appears to you distinct from the black thread (darkness of night),

then complete your Saum (fast) till the nightfall. And do not have sexual relations with them (your wives) while you are in I'tikf (i.e. confining oneself in a mosque for prayers and invocations leaving the worldly activities) in the mosques. These are the limits (set) by Allh, so approach them not. Thus does Allh make clear His Ayt (proofs, evidences, lessons, signs, revelations, verses, laws, legal and illegal things, Allh's set limits, orders, etc.) to mankind that they may become Al-Muttaqn (the pious - see V.2:2). Al-Baqarah (2:187).

In fact, in accordance with following verse [3:195] reformist jurists increasingly insist that equal status of men and women and their dependency on each other be translated into reality.

[So their Lord accepted of them (their supplication and answered them), "Never will I allow to be lost the

work of any of you, be he male or female. You are (members) one of another, so those who emigrated and were driven out from their homes, and suffered harm in My Cause, and who fought, and were killed (in My Cause), verily, I will remit from them their evil deeds and admit them into Gardens under which rivers flow (in Paradise); a reward from Allh, and with Allh is the best of rewards." 3. l-'Imrn. This verse emphasizes equality in opportunity and rewarding for works.

2. Neo-Interpretation of the Qur'anic Text of Polygyny The Text:

[And if you fear that you shall not be able to deal justly with the orphan girls, then marry (other) women of your choice, two or three, or four but if you fear that you shall not be able to deal justly (with them), then only one or (the captives and the slaves)

that your right hands possess. That is nearer to prevent you from doing injustice. 4. An-Nis']. Traditional Interpretation of the text: Polygyny is legally sanctioned in the above verse [4:3], therefore, it cannot be eliminated from Islamic Law. So whoever is able to deal justly, he can marry two or three, or four women of his choice. Neo-Interpretation of the text: Reformists opine that traditionalists hardly ever cite the above verse [4:3] from its beginning, which says: " "[If you fear that you

shall not be able to do justice to the orphans"]. Normally, these initial words are simply dropped. In fact, these initial words constitute the essential legal condition for what follows: marry women of your choice, two, three, or four, i.e., for Polygyny. It means, the Polygyny is sanctioned in relation to doing justice to orphans. Against this doctrinal background reform-minded Muslims conclude that polygyny is an exception for exceptional situations, exclusively permitting multiple marriages with widowed mother of (semi) orphaned children, iwht orphans and for the purpose of taking care of orphans.

 Also the last sentence of the verse is not often cited by the traditionalists: " "[But if you fear that you

cannot deal justly (with them), then only one"]. Nor is verse 4:129 quoted frequently by them, which asys:

[You will never be able to do perfect justice between wives even if it is your ardent desire, so do not incline too much to one of them (by giving her more of your time and provision) so as to leave the other hanging (i.e. neither divorced nor married). And if you do justice, and do all that is right and fear Allh by keeping away from all that is wrong, then Allh is Ever OftForgiving, Most Merciful. 4. An-Nis']. Acccording to the reformists, no wonder, by stating the obvious-And you are never able to do justice between wives, even if it is your ardent desire-this verse seems to eliminate whatever latitude is hidden in verse 4:3.

 However, reformists further opine that, if there is any latitude, it is obviously important in situations of extreme shortage of men or in case of terminal illness of young mothers. For example, In 1945, when about 6 million German men had been killed during World War II, some German women were ready informally to share husbands.

Neo-Interpretation of the Qur'anic Text of Hijab The text of Hijab [Veil]:

[And stay in your houses, and do not display yourselves like that of the times of ignorance, and perform As-Salt (IqamtasSalt), and give Zakt and obey Allh and His Messenger. Allh wishes only to remove ArRijs (evil deeds and sins, etc.) from you, O members of the family (of the Prophet SAW), and to purify you with a thorough purification. Sura Al Ahzab: 33,] Traditional Interpretation Interpreting the above text, through a double deduction, Islamic classical jurists arrived not only at gender segregation but at the virtual seclusion of Muslim women in

general not only within their abodes but in the street as well-and their total coverage, even of their faces. Reformists Interpretation Reformists scholars say the verse contains the words: [ members of the family (of the Prophet SAW)] which contextually only refers to the dwelling of the Prophet and to his wives, al-ummahat al-muminin. Therefore, the ruling of the verse relates to them only not to the other Muslim women. They argue that here, the Quran institutionalized the separation of the private quarters from the official ones within the residences of public personalities, as it is still practiced by heads of State and ambassadors in order to protect the privacy of their family life. Under the weight of critique from reforms as far apart as Hassan Turabi and Aga Khan III, this practices is becoming much rarer, even with in Saudi Arabia since most ulama now do admit that there is no valid legal basis for the demand to cover a womans face, totally or partially . On the contrary, Muslims are beginning to recall that women, at the time of the Prophet (s.), participated in warfare, commerce, and religious instruction and that the women of Madinath, without any from of segregation, had taken the baya (oath of allegiance) which permitted the hijra. Neo-Interpretation of the Texts of Womens Islamic Dress The texts of The Qur'an

[O Prophet! Tell your wives and your daughters and the women of the believers that they should draw over themselves some of their outer garments [when in public]: this will be more conducive to their being recognized [as decent women) and not molested. And Allh is Ever OftForgiving, Most Merciful. 33. AlAhzb].

[And tell the believing women to lower their gaze, to be mindful of their chastity, and not to display their charms [in public] beyond what may [decently/normally] be apparent thereof, and that they draw their head-coverings [khumur] over their bosoms. And not to reveal their adornment except to their husbands, their fathers, their husband's fathers, their sons, their husband's sons, their brothers or their brother's sons, or their sister's sons, or their (Muslim) women (i.e. their sisters in Islm), or the (female) slaves whom their right hands possess, or old male servants who lack vigour, or small children who have no sense of the shame of sex. And let them not stamp their feet so as to reveal what they hide of their adornment. And all of you beg Allh to forgive you all, O believers, that you may be successful.24. AnNr.] Text of The Hadith Abu Dawud said, Narrated Aisha, Ummul Mu'minin: Asma, daughter of AbuBakr, entered upon the Apostle of Allah (peace_be_upon_him) wearing thin clothes. The Apostle of Allah (peace_be_upon_him) turned his attention from her. He said: O Asma', when a woman reaches the age of menstruation, it does not suit her that she displays her parts of body except this and this, and he pointed to her face and hands. [Abu Dawud, Sunan, Kitab al-Libas, Hadith no. 4092.]

The large majority of traditional and reformist ulama hold the view that Muslim women when leaving their homes must loosely cover their bodies, except for their faces, hands, and feet. In fact, there is only one Hadith in which the Prophet indicates, by gestures alone, to Asma bint Abu Baker what the womens awra (nakedness." that which is to be covered) is to be. Reformists' Interpretation for Covering Hair The modern day Muslim lawyers tackle this issue in their attempt to draw a line between Islam as a religion and Islam as a civilization. Hassan Turabi and others concluded that women's Islamic dress code is a moral recommendation (mustahab/mandub) and not a legal obligation (wajib). Others, like Hamza Kaidi, expressed the view that Muhammad (s.) had only meant to set a maximum limit, asking women as a minimum not to cover their faces, hands, and feet. Muhammad Asad in his seminal Quran translation showed a more circumspect approach and arrived at more nuanced solutions. According to him, the Quranic verses in question make allowances for limited cultural flexibility. Asad argues that in Oriental antiquity women for climate reasons -- wind, dust, and sun usually wore a large cloth attached to their hair, without necessarily covering their breasts. The legislative purpose of the quoted ayat thus was not to cover women's hair and their bosoms but only the latter, no matter how.

According to him there is much wisdom in the flexibility of the formula: It assures that women's primary and secondary characteristics will always have to be covered while taking into consideration which degree of coverage of a woman's hair is considered decent in different civilizations, at any given time. In short, Asad would allow Muslim women to uncover their hair in places like contemporary Central, Western, and Northern Europe (but not necessarily in the Mediterranean area), in the United States, and in sub-Saharan Africa; for civilizations where women have always covered their hair Asad would argue that it would be indecent to discontinue. For him the Hadith reported in Abu Dawud`s collection, to this day, determines what can become apparent of a women in the Muslim Orient.

The Case of Female Testimony The Texts:

[O you who believe! When you contract a debt for a fixed period, write it down. Let a scribe write it down in justice between you. Let not the scribe refuse to write as Allh has taught him, so let him write. Let him (the debtor) who incurs the liability dictate, and he must fear Allh, his Lord, and diminish not anything of what he owes. But if the debtor is of poor understanding, or weak, or is unable himself to dictate, then let his guardian dictate in justice. And

get two witnesses out of your own men. And if there are not two men (available), then a man and two women, such as you agree for witnesses, so that if one of them (two women) errs, the other can remind her. And the witnesses should not refuse when they are called on (for evidence). You should not become weary to write it (your contract), whether it be small or big, for its fixed term, that is more just with Allh; more solid as evidence, and more convenient to prevent doubts among yourselves, save when it is a present trade which you carry out on the spot among yourselves, then there is no sin on you if you do not write it down. But take witnesses whenever you make a commercial contract. Let neither scribe nor witness suffer any harm, but if you do (such harm), it would be wickedness in you. So be afraid of Allh; and Allh teaches you. And Allh is the All-Knower of each and everything. 2. Al-Baqarah:282.] Traditionalists' Interpretation: According to the above verse the testimony in court of two women is equal of the testimony of a single man. But when and for what reason this unequal treatment? The Qur'an says: [so that if one of them (two women) errs, the other can remind her.] To interpret the reason the traditionalists say, this is justified because of menstrual cycles and of other physical phenomena limited to women, like pregnancy and postnatal syndromes.

 These might temporarily interfere with their perceptive capabilities. Reformists' Interpretation: On the other hand, reform-minded jurists argue that not only women, men, too, can be physically or emotionally handicapped which might temporarily interfere with their perceptive capabilities. In their view, the reason is, therefore, not one of physically or emotionally incapability of a sex. It is rather because of lake of sheer [bishudda] competence of a person of any sex. For example, if a mere housewife is called to give witness in questions of high finance; a Western court as well might not attribute much value to her testimony. On the other hand, if in a commercial case a real career business woman appears in court, there should be no inhibition, in that court, to give her full confidence. Thus, such a woman should be given full confidence in the Shari'ah court too. The Cases of Women`s Rights To Vote And Be Elected The text of Hijab [Veil]:

[And stay in your houses, and do not display yourselves like that of the times of ignorance, and perform As-Salt (IqamtasSalt), and give Zakt and obey Allh and His Messenger. Allh wishes only to remove ArRijs (evil deeds and sins, etc.) from you, O members of the family (of the Prophet SAW), and to purify you with a thorough purification. Sura Al Ahzab: 33,] Traditional interpretation: The traditional interpretation of the above ayat al-hijab has had very adverse effects for the mobility of Muslim women and their chances of participation in public affairs. This, as well as, the sound emphasis on the central role of women as mothers, had the effect of virtually eliminating women from public function in the Muslim world. Reformists' interpretation: Taking into account some opposite historical examples of Khadija, Aisha, and Umm Salama, with their mobility and participation in the various affairs outside the houses, reformists make a special effort to give women their creative place in the world at large. Already many leaders of the Muslim youth movements are women. In this context it is of singular importance that the Egyptian Muslim Brothers reaffirmed the right of women to vote in political elections and to pose their candidatures, thus following both Hassan al-Turabi and Shaykh Rashid al-Ghannoushi.

The Case of Women in Government The Text of Hadith: [According to this Hadith, the countries run by women will not prosper.] [See, Bukhari, Magazi: 82, Fitn:18; Tirmidhi, Fitn:85;Nasai, Qadha:8]. Traditionalists' Interpretation: By taking the above Hadith into account directly traditionalists barred the employment of women in government and administration, as professors, judges, police women, and soldiers, if they so desire. Reformists' Interpretation: Reformists want to attribute historical and contextual critique to the above Hadith. Thus, they find quite a few problems with this Hadith, some of them are: Though it was often attributed to Abu Bakr al Siddiq, it was not reported by him. It was rather reported by Abu Bakrah, a much less reputable companion. It is legitimate to ask whether the Prophet (s.) could have pronounced such a fundamental rule only once, and only in the presence of a single, rather unimportant companion.

 Suspicions increase when one learns that Abu Bakrah never related this saying until at least 25 years after the event. When he finally did, it came very handy politically: during the Battle of the Camel, in 656, when he sided with Ali and thus against Aisha commander-in-chief on the other side. The historical event which had prompted the prophet to say what he did was the coming to power under tumultuous circumstance of an Iranian princess. It is therefore possible to wonder whether the saying in question was normative or rather only informative. None of the doubts raised justify a measure of distrust. Like Hassan al-Turabi and Fathi Osman therefore considered the Hadith not qualified as an obstacle against the employment of women in government and administration, as professors, judges, police women, and soldiers, if they so desire. The Case of Apostasy The Text:

[The recompense of those who wage war against Allh and His Messenger and do mischief in the land is only that they shall be killed or crucified or their hands and their feet be cut off on the

opposite sides, or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter. Sura Maidah: 33.]

Traditionalists' Interpretation: On the basis of the above verse (5:33) traditionalists deduced the capital punishment for apostasy (alIrtidad) also. Reformists' Interpretation: On the other hand, reformists want to draw a clear distinction between: mere intellectual desertion of Islam and high treason According to their opinion, the capital punishment pronounced in the above verse (5:33) is only for high treason involving apostasy with war against Allah and his Messenger and striving with all power to spread corruption on earth. For mere intellectual desertion of Islam involving apostasy without war against Allah and his Messenger and without striving with all power to spread corruption on earth, they point out that: "The Qur'an describes many cases of apostasy without pronouncing a worldly punishment for it." An increasing number of reformist fuqaha share the emerging consensus that their medieval predecessors had failed to distinguish between the above mentioned high treason, Which admittedly can be done not only

with a weapon in hand but with a desktop PC for which crime verse (5:33) foresees capital punishment - and mere intellectual desertion of Islam for which neither the Quran nor the Sunnah foresee punishment in this world.

They maintain that not during the early years of Islam but during the course of its subsequent history, people were executed for having left the fold of Islam (arridda). This was in contradiction to the behavior of the prophet who never pronounced a death sentence against someone solely for leaving Islam. They also maintain today that the Qur'an has the fundamental commandment of tolerance as such:

[There is no compulsion in religion. Verily, the Right Path has become distinct from the wrong path. Whoever disbelieves in Tght[] and believes in Allh, then he has grasped the most trustworthy handhold that will never break. And Allh is AllHearer, All-Knower. 2. Al-Baqarah](2:256). The above fundamental commandment of tolerance governs intra-Muslim relations as well (and not only relations with the People of the Book as believed by their predecessors).

The Case of Stoning of Adulterers : The Texts 1. In a Qur'anic verse:

[The woman and the man guilty of illegal sexual intercourse, flog each of them with a hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by Allh, if you believe in Allh and the Last Day. And let a party of the believers witness their punishment. (This punishment is for unmarried persons guilty of the above crime but if married persons commit it, the punishment is to stone them to death, according to Allh's Law) [] .Sura an-Nur : 2]. 2. In a saying, Umar (r.) talked about a (suppressed ?) ayat al-rajm [ ] and proceeded to stoning as a punishment on the basis of a single case of stoning tolerated by the prophet (s.).[see,Bukhari, no.8.817.]

Traditionalists' Interpretation On the basis of the above verse, traditionalists prescribe flogging with a hundred stripes only for non-married man and woman guilty of illegal sexual intercourse. On the basis of the above Hadith, in case of married man and woman guilty of illegal sexual intercourse, they prescribe that adulterers be stoned. Since the reign of Umar ibn al-khattab (r.) such adulterous couples have been stoned in Muslim countries, and still are from time to time. Reformists' Interpretation Reformists are to prescribe only flogging with a hundred stripes for both married and non-married man and woman guilty of illegal sexual intercourse. They are to reject the case of stoning for some reasons, such as: Reform-minded jurists are now calling attention to the fact that the companions were unable to recall the essential detail of whether the above verse had been revealed before or after the case of stoning tolerated by the prophet (s.). Some also invoke the basic principle that, at any rate, the Sunnah could not abrogate a specific ruling of the Qur`an, which tells us for only flogging, not for stoning. As a result, the conviction is spreading that Islam never justified the stoning of adulterers. The Bible, in chapter 22,20-22 of the 5th Book of Moses (Deuteronomy), commands that adulterers be stoned. This norm would have automatically; incorporated into

Islamic Law if the Quran in (24:2) had not treated the very same crime in the greatest of detail. Significantly, al-Nur (surah 24) does not prescribe capital punishment but reads: The woman and the man guilty of fornication, flog each of them with a hundred stripes. It should therefore have been clear that the Bible, in this particular respect, had been abrogated by the Qur'an.

The Case of Non-Muslim Minorities Previously: Under medieval religious Islamic State: The Qur'an and Sunnah laid the basis for a status of dhimma, a historically unique legal protection of the rights of life, honor and properties of ahl al-kitab (mainly Jews and Christians), a status of semiautonomy which still surpasses modern concepts. Under such status, they can organize, practice their religion, even in public, and be exempt from military service. Al-Qur'an says:

Two New Problems:

However, under the present natural consequence of the undeniable (un-Islamic) development of modern nationstates, the mujtahidun are facing two questions today: whether to extend this protection from the ahl al-kitab (mainly Jews and Christians) to atheists and agnostics, and whether to confer equal treatments on non-Muslims residing in an Islamic State. Traditionalists' View Traditionalists tend to deny that latter question because fully equal treatment of Muslims and nonMuslims in an Islamic State seems to defeat the very idea of such a state.

Reformists' View Muslim reformers, on the other hand, advocate equal citizenship for all people within national boundaries equal taxation, equal access to public office, and equality as to military service this being but a natural consequence of the undeniable (un-Islamic) development of modern nation-states. To them, this is defensible because the dhimmi status can be seen as an obligatory minimum of protection, not as a barrier against extended protection (via citizenship) if dhimmi are opting for it.

 As far as the tolerance of atheists and agnostics is concerned, Muslim reformists like to quote from the Quran:

Yet whenever any of the messages of your Lord ] reaches them, they turn away from it. And so they reject the truth now that it has reached them. But in time they will understand what it was that they [.used to make fun of. 6. Al-An'm:5 The process thus described presupposes that atheists and agnostics are given the chance to grasp the truth sometime in the future and are tolerated until then.

The Case of Jihad Traditionalists' Interpretation: Traditionalists use concepts like dar alharb and dar al-Islam for the analysis of the relationship between the East and the West and regard military Jihad is still lawful as a means to establish Islamic sovereignty in the dar al-harb.

Reformists' Interpretation: On the other hand, a new consensus gradually seems to have emerged, among reformists, strictly based on the Qur'an and Sunnah, according to which the Shariah properly understood allows: only military defense and armed resistance against brutal repression, and provided it is opportune under humanistic and tactical aspects.

Reformists say traditionalists seem to have difficulties when asked to admit that the rules of military Jihad, which in the Middle Ages corresponded to the Christian notion of holy war [sacrum bellum], might have become obsolete in our nuclear era. They also opine that traditionalists have failed to distinguish between: 1. those rules of military jihad which allowed the opening of hostilities (what the Romans had called ius ad bellum), and 2. the rules of warfare as such (what the Romans had labeled ius in bello), like the famous Verse of the sword (9:5):

[Then when the Sacred Months (the Ist, 7th, 11th, and 12th months of the Islmic calendar) have passed, then kill the Mushrikn (see V.2:105) wherever you find them, and capture them and besiege them, and prepare for them each and every ambush. But if they repent and perform As-Salt (Iqmat-as-Salt), and give Zakt, then leave their way free. Verily, Allh is Oft-Forgiving, Most Merciful.[]Sura Tawba : 5.] As a result Islam appeared more aggressive than warranted.

The Case of Human Rights Traditionalists' view Traditionalists want to reject the idea of human rights arguing that that it is not Islamic, rather western, in origin. Traditionalist lawyers mainly confront a psychological barrier. Like Roman law before it and Anglo-Saxon Law after it, Islamic Law did not establish a hierarchy of norms, on which the idea of fundamental rights is based. For a Muslim, it is indeed inconceivable to

distinguish between Qura'nic commands of a higher and of a lower legal status. Equally important, they hesitated, and still do, to consider human beings as the seat of inborn rights since all claims that can validly be made are conferred by Allah, and only be understood by Muslims as a reflex of the general command not to kill. Of course, the old compendiums and restatements of Islamic law, like the Scriptures, did not employ the modern category of human rights. For this reason alone, traditionalist lawyers missed the boat when the West began to develop the idea of supreme universal human rights and started to promulgate human rights charters.

Reformists' view

On the other hand, reformists want to prove that the Shariah was the first human rights code inasmuch as it had guaranteed, for 14 centuries already, virtually all the classical concerns of the human rights movement, including the rights to life; corporal integrity; freedom of speech, conscience, and movement; the right to own property and to marry; and the prohibition of discrimination on the basis of race, color, religion, or sex. In fact, there are only two notable differences between the rights afforded the human being in Islamic law in the West: 1. To be a Muslim under Islamic Law corresponds to being a citizen elsewhere. Therefore, Muslim human rights experts can explain why it is legitimate to accord

certain civil rights, like claims to inheritance, to Muslims only, 2. Islamic Law allows for a limited legal differentiation between men and women inasmuch as this is only, and properly, based on biological differences. Muslim jurists can make a good case when pointing out that these are not discriminatory measures, even though they may violate the ideological Western fiction of legal gender identity. History has always been characterized by massive human rights violations, before and after the famous United Nations universal human rights declaration. The nineteenth century has been especially infamous for that. Given human nature, this may not be entirely unavoidable. But an eternal divine human rights code, imposed by Allah on mankind, is certainly less likely to be ignored than a charter drafted by, and at the disposition of, diplomats. Therefore, as to this subject, Muslims jurists should no longer play hide and seek.

The Case of Democracy

Traditionalists' Interpretation Some contemporary traditionalists consider democracy as a [ unbeliever] system. According to their view, the notion of a national State is at any rate un-Islamic. The idea of people's sovereignty is seen to clash with the supreme sovereignty of Allah. When Islam was born, there were no democracies on this earth, nor were there any to appear for the next 1,000 years. The Quran like all Scriptures deals with issues of family and community al-ummati al-islamiyyah-and not with the organization of a State, be it a monarchy or a republic. Islam cannot prosper without an Islamic community guided by the Shariah, but it can prosper without a state. Reformists' Interpretation In their direction, Shaykh Yusuf al Qaradawi remarked: People who say such things understand neither Islam nor democracy. Fathi Osman, for whom democracy is the only system which can guarantee the protection of human rights, counters,

To contrast Islam and democracy is not fair to one or the other, adding, The shura-democracy polemics have to be settled once and for all. They argue that even in the Islamic federation of Madinah one can find astonishingly modern roots for the later development of an Islamic democracy, to wit: Equal rights for all Muslims and elimination of racism; Each Muslim is a vicegerent of God on earth (35: Sura Fatir : 39):

[He it is Who has made you successors generations after generations in the earth.] On the basis of the above, Hassan al-Turabi is found of pointing out that therefore the seat of political authority is the people. Institution of Amir as head of State (no government by committee) Obligation of the ruler to consult with the ruled (More and more contemporary Muslim scholars consider the result of these con-contemporary Muslim scholars consider the result of these consultations as binding on the ruler) Independence of the Sharia and fiqh from both government and parliament as a basis for the separation of powers; and Protection of religious minorities.

 In addition, much can be made of the extraordinary fact that the first khulafah (following different procedures) have been elected at a time when no other ruler on t his globe assumed power on the basis of a vote. On such foundations one can indeed build a democratic, pluralistic, federative Islamic republic, subject to separation of power and the rule of law, including the protection of minorities. More important still, the idea of people's sovereignty is seen to clash with the supreme sovereignty of Allah. Of course, on Muslim (and no Western democrat either) can accept the notion that a parliament was entirely free to legislate, no matter what, no matter how. Basically, Muslim legislators are not supposed to create law but to find it, i.e., to act on the basis of preexisting divine law, namely the shariah. At the same time, the slogan al-hakimiyya lillah, while true, is of little practical consequence because it always takes people to translate Allah`s will into norms and policy. Islam is compatible with a democratic system for two other reasons: 1. According to most democratic constitutions there are certain institutions, procedures, or values which cannot be changed even by parliamentary consensus decisions. In what vein, in an Islamic republic the core of the Shariah would be considered off-limits to legislation. 2. Islamic fiqh has always defined Shariah free areas which could be regulated by the Amir at his discretion, like ta`zir norms in penal law.

 Well, whether there is such latitude for ijtihad in practical matters- wherever to build a road or not, here or there there is the same amount of latitude for Muslim legislation. An Islamic supreme court, composed of fuqaha, would assure compliance also of trivial matters with the maqasid of the Shariah. As envisioned by neonormativists, an Islamic republican government would not be reserved for the ulama but could be laic. A (Sunni) Islamic republic should therefore not be called a theocracy.

[edit] Law and ethics Further information: Islamic ethics Islamic economics bans interest or Riba (Usury) but in most Muslim countries Western banking is allowed. Objections Anticipated : This article may cause some misunderstanding in view of the fact that I offered fourteen rather topical examples for a modern ijtihad leading to changes of legal doctrine, as if it were the desperate aim of neo-ijtihad to move closer to Western concepts. It can be alleged that in all fourteen cases solutions were found within the framework of al-usul al-huquq, the Quran and the Sunnah. Johann Wolfgang von Goethe said thea one must acquire one`s heritage in order to (fully) possess it. This is what neo-ijtihad is about. It should not be seen as a sign of one-sided adaptation when

Islamic and Western legal positions frequently coincide. On the contrary, since all legal systems supposedly take human nature into account (as created by Allah), it would be strange indeed if the Islamic and the Western legal systems were to clash in most respects. Finally, it would certainly have helped to avoid misunderstandings if I had pointed out that the so-called traditionalist and the so-called reformist mujtahidun agree much more than they differ. For example, their views usually are identical with respect to the following issues: role distribution within the family; unilateral divorce (talaq); inadmissibility of legal adoption: the law of inheritance concerning brothers and sisters; death penalty for certain crimes; prohibition of abortion, except to save the mother; condemnation of illegal sex; rejection; refusal to accept homosexual orientation as an option; compulsory military service; and disapproval of secularization. Given such large common ground the traditionalist and reformist Islamic scholars are in fact sitting in the same boat, serving the same purpose: the advancement of Islam. I hope the, therefore, that they will also respect each other, knowing that eternally immutable in Islam is only its theology(al-aqida), the rules of worship (al- ibada and almuamalat), and divine law, but not fiqh.

Theory and practice The vision just painted will remain unconvincing unless illustrated by concrete examples of neo-ijtihad. Given the western fascination (and Muslim preoccupation) with the status of women in Islam, that is where one ought to begin. I offered fourteen rather topical examples for a modern ijtihad leading to changes of legal doctrine, as if it were the desperate aim of neo-ijtihad to move closer to Western concepts. It can be alleged that in all fourteen cases solutions were found within the framework of al-usul alhuquq, the Quran and the Sunnah. Johann Wolfgang von

Goethe said thea one must acquire one`s heritage in order to (fully) possess it. This is what neo-ijtihad is about. Female Circumcision Female circumcision, no matter to which degree, is a grave violation of the corporal integrity of women resulting in bodily injury, and thus it is not an Islamic institution. Like male circumcision, it has no basis in the Quran and only a flimsy grounding in the Sunnah in the Sunnah, as interpreted in those few Muslim countries where the vice has been, and still is, committed: Egypt and the Sudan. This custom could never enter the body of Islamic Law because Islamic jurisprudence rejects the very notion of customary law that might infringe on the Quranic Shariah. Therefore, it is good news for all reform-minded Muslims that the Supreme Court of Egypt recently upheld the prohibition of female circumcision as pronounced by the Minister of Health. After the place of women in Islamic life, it is certainly Islamic criminal law which fascinates and scandalizes Western media. Many Muslims, too, seem to be preoccupied with permanently trying to distinguish between what in their life and circumstances, food and entertainment, is halal and what is haram. It is therefore natural that modern mujtahidun also foucus on this field. In this context, some wonder whether the punishments foreseen in the Quran is keeping with the linguistic meaning of al-hudud (borderline, limits) might be understood not as minimum but understood not as minimum but as maximum penalties.