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RESEARCH PAPER SERIES AT NEW YORK LAW SCHOOL
Law as a Vanishing Mediator in the Theological Ethics of Tariq Ramadan by Andrew March Yale University
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Law as a Vanishing Mediator in the Theological Ethics of Tariq Ramadan Andrew F. March, Yale University Abstract: Tariq Ramadan’s recent book, Radical Reform: Islamic Ethics and Liberation, boldly proclaims the need for Muslims to completely rethink the very meaning of Islamic law, traditionally the preeminent Islamic normative discourse and a primary distinguishing feature of Islam from other religions, replacing it with a more ecumenical applied ethics. He begins the book by rejecting the moderate reformist methods adopted in his previous books as insufficient for the “radical reform” of their epistemologies and mentalities which he believes contemporary Muslims must undertake. It is tempting, therefore, to see this work as a radical break with Law. In this article, I offer a different interpretation. On my reading, throughout his previous works Ramadan systematically advanced and elevated a certain interpretation of Law, based on an appropriation of certain concepts taken from mainstream Islamic legal theory and crucial to the efforts of all reformist thinkers. It is these concepts, which he retains but completely recasts, which mediate his move to a post-legal Islamic ethics. I argue that Ramadan’s long-term project neither merely abandons Islamic law, nor merely reforms it, but dissolves the framework of Law through its own devices.
Introduction: The Ramadan Wars Islam is a religion of Law.1 All of the normal caveats apply to this statement, of course;2 however, it is beyond serious dispute that Law (shari‘a, fiqh3) maintains a powerful claim to the expression of normativity for believing Muslims. The claims of Law may be taken more or less seriously and the Law’s rulings may be more or less practiced across various Muslim communities, especially with regards to specific areas of human activity. Nonetheless, the idea that Law remains central to Muslim selfunderstanding and self-identification, and that many if not all normative questions arising from living and acting in the world admit of answers articulated according to the forms and contents of Islamic legal reasoning persists despite the assaults on this idea in the colonial period and the on-going era of post-colonial Western hegemony. The problem of Law for contemporary reformist thinkers, especially those living in Western secular societies where it is extremely difficult to imagine a fully autonomous
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space to apply Islamic law, presents two broad possibilities: either 1) reject the constraints of Law in a “decisionist” way, including by merely ignoring it, or focusing on other values or aspects of religion; or (2) to reform or redefine the Law and thus to redefine one’s own behavior or institutions as in conformity with the Law. Few scholars engaged in the second type of project have received as much popular, political and journalistic attention as the Swiss intellectual Tariq Ramadan. The prominence of Ramadan in this discourse is understandable. He is, on the one hand, a scion of political Islam. His grandfather, Hasan al-Banna, was the founder of the Muslim Brotherhood, the wellspring of many of Islamism’s 20th century tendencies. His father, Sa‘id Ramadan, was one of the most prominent mid-century figures in the “Islamist International” comprised of exiles from Muslim countries, local grassroots movements (from the Brotherhood to more radical “Salafi” groups), and the conservative Oil Monarchies. On the other hand, he is an outspoken advocate of the notion that European Muslims can be both in equal measure. He calls on Muslims to be active and engaged citizens of European countries, faithful to their constitutional systems, yet insists that this can be done without adopting a diluted, “liberal Islam” in matters of social and personal morality. On top of this, Ramadan is telegenic, articulate, multilingual and charismatic. For a Western audience he is a unique Muslim media figure: neither a radical bogeyman à la Bin Ladin or Khomeini (or one of their myriad imitators such as Sheikh Abu Hamza al-Masri or even, significantly, Ramadan’s own brother Hani), nor an outright secular liberal (ex-)Muslim à la Ayaan Hirsi Ali, Irshad Manji or Salman Rushdie. Much of the journalistic and popular debate over Ramadan takes the form not so much of a close reading of his published works, but of an attempt to answer the question
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“Who is the real Tariq Ramadan?” This trope, which resembles the parlor game of speculating on the true intent or motivations of political office holders with the aim of deciding whether they are worthy of trust (think: Yasir Arafat, Gerry Adams or Vladimir Putin), assumes that Ramadan is either a sincere proponent of integration into Western societies or a “crypto-Islamist” engaging in double-speak. Yet, it is doubtless precisely because Ramadan’s thought does not fit neatly into the mold of more conventional radical Islamist ideology, or even conservative Islamic jurisprudence, that he generates so much anxiety on the part of those with only the slightest expertise in Islamic legal and political discourses, yet ideologically predisposed to seeing Islamic thought in crude, Manichean terms. However, it is sufficiently obvious to any sincere and curious reader who takes the time to actually read Ramadan’s books that the obsessive focus on whether he is “trustworthy” obscures a much more interesting story about his intellectual career. This is not only because the Arafat/Adams/Putin template (“Who is the real Ramadan?” “Can we trust him?” “Is he one of us?”) is not obviously relevant or appropriate for a public intellectual of his nature,4 nor even because many of his substantive ethical positions even in his most conservative early work are so obviously tailored to meet with acceptance by a secular European audience, but because his main intellectual project is a theological and methodological one (as well as an attitudinal one) which can only be appreciated in the context of currents in Islamic law and ethics. In fact, I would suggest that there are at least two important stories which the purely polemical treatment of Ramadan obscures. The first is about how Ramadan, far from being a crypto-jihadi or -fundamentalist, was able to construct an Islamic ethics for European citizenship almost perfectly along the lines of what a Rawlsian or Habermasian
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” and where he does persist in referring to “Law” as the outcome of the critical thought he is proposing. namely that the Qur’an and the Universe constitute two fully co-equal “Books” or even “Revelations” and that context and “the Real” are full sources of Law. the idea of a “post-legal” Islamic ethics which does not comply with the forms and methods of legal reasoning is not unique. So what is interesting about 4 . we find that the alarmist answer simply bears no similarity to the substance of Ramadan’s writings or entirely neglects their most important features.5 Thus. The radical pretensions of this shift are not easy to miss – he touts them in the book’s title and on almost every subsequent page.liberal might wish for entirely from sources and concepts provided by the classical Islamic legal tradition. The shift in effect amounts to a radical displacement of Law from the center of Islamic normative inquiry and its substitution with a much more elusive conception of “ethics. On its own.” This displacement involves. furthermore. nor is the phenomenon of a thinker who simply evolves over a period of time. even if we go along with “What-is-this-Ramadan-up-toanyway?” line of inquiry. the term has lost virtually all precision and correspondence to what the term means in all preceding Islamic discourses. There is a free intermingling of the concepts of “Law” and “ethics. The second is about how in the decade from his earliest English-language book to his most recent he has effected a rather stunning shift in theology and meta-ethics. While the concepts of “Law” and “jurisprudence” thus do not entirely disappear in Ramadan’s most recent work there is an unmistakable downgrading of the status of Islamic jurisprudence in its traditional forms as the preeminent Islamic normative discourse. an insistence on a number of profoundly innovative (some might say heretical) theological claims.
advocating “Two Books”) is noteworthy enough. then. In other words. where he ends up (beyond Law. Law – it now seems clear – has been a vanishing mediator6 for Ramadan. to the problem of Law as experienced by potential reformers introduced above. My main thesis in this essay is that Ramadan does indeed end up “beyond Law. I will show below his early commitment to a fairly traditional Islamic jurisprudential framework in both content and form. Given his identity and where he begins intellectually. followed by an increasing emphasis on a set of concepts derived from classical legal theory – namely public welfare (maslaha) and the idea of the “objectives of the Law” (maqasid alshari‘a) – used to emphasize the Law’s flexibility and mutability. I will show how Ramadan’s use of the Law as a “vanishing mediator” to a form of 5 . It is these concepts which have facilitated. a turn to a conception of Islamic ethics which is now free to leave behind the specific constraints and forms of standard juridico-ethical reasoning. In essence. limitations and temptations present in all contemporary Islamic legal and ethical theory.” but that a serious of important concepts and commitments derived entirely from Law are indispensible to this voyage.Ramadan’s project beyond any personal public importance which he may enjoy? I believe that Ramadan’s writings over the past decade reveal a particular set of possibilities. however. What is more intriguing. for there is no single point where Ramadan drops Law as his lodestar. mediated. Ramadan offers a further option: 3) to dissolve the formal constraints of Law without ever declaring this as an objective or requirement for its own sake but rather by appropriating the conceptual resources and contents provided by the Law itself. no single moment of conversion or “decision” in favor of a new direction. is how he gets there.
There are a number of issues which should be tackled and discussed in the debate about the Muslim presence in Europe. as soon as their Religion is respected and their freedom assured. relate primarily to specific problems of applied Islamic jurisprudence which arise as a consequence of living as a minority community in Europe.. or moments. First Moment: Classical Legal Theory as a Mandate for Political Moderation The concerns and anxieties expressed in Ramadan’s earliest English-language book. For. of course. of great importance but it is still not sufficient: it is also necessary to determine what Muslims’ responsibilities and rights towards their new societies are. The problems in question begin with very straightforward. To Be a European Muslim: A Study of the Islamic Sources in the European Context. what does it mean to be part of a Western society? Is there a limit or an exception to respect for the law and the constitution? Is there any discrepancy between respecting Western laws and being faithful to the teachings of the Qur’ān and the Sunna? Can a Muslim be a true and trustworthy citizen of a European country or has he or she simply the right to apply for Western nationality?7 6 . conventional questions of political obligation arising from the encounter between classical Islamic jurisprudence and modern European positive law.applied ethics beyond Law (in any consistent conception of the term) unfolds in three stages. they become part of the host countries’ constitution and law. To give a clear answer about the Islamic legality and conditions for staying in a non-Muslim society is.e. This has to be clarified for Muslims living in the West: i.
11 and the permissible level of loyalty to a non-Muslim community. it is not surprising that numerous other very specific challenges arise from an Islamic juridical standpoint. Europe is no longer the “Abode of War. Thus.”9 the requisite freedom to preserve religion in the minority condition.”13 European societies secure for Muslims “five fundamental rights: (1) the right to practice Islam. Ramadan gives answers which emphasize the potential for convergence between Islamic obligations and the demands of citizenship in Europe.8 Given this very basic challenge to the authority and legitimacy of a non-Islamic legal order. many of which Ramadan addresses within that same juridical framework. (3) the right to found organizations.Note that the affirmation of citizenship in a non-Muslim polity faces in Islamic legal doctrine a challenge from a very basic level – whether it is even permissible to reside in a land where Islamic law is not in force. (2) the right to knowledge.10 the requisite extent of obligation and loyalty to the global Islamic community. (4) the right to autonomous representation. (5) the right to appeal to the law. As a minority in a nonMuslim environment they are able to practice and to respect the more important rulings 7 . although “Muslims obviously cannot apply all the global principles and rulings prescribed by the Qur’ān and the Sunna in the field of social affairs … it should be noted that the majority of [religiously prohibited activities] are not imposed on Muslims but are rather legally allowed … [and thus] the abode of Europe appears as a space within which Muslims can live in security with some fundamental rights both acquired and protected.” the “Abode of Disbelief” or even the “Abode of Proselytism” but the “Abode of Testimony.12 To all of these questions. including: the question of Europe’s “juridical geography.”14 Thus.
more conservative “salafi” groups or activist organizations like Hizb ut-Tahrir). he is interested in drawing from classical legal theory as capital rather than expending persuasive/rhetorical capital to argue for revisions of Islamic legal and moral theory. 8 .”15 Muslims remain part of a worldwide community of faith.16 Most forceful. The first Part of the book consists of two long chapters on Islamic jurisprudence. within Brotherhood-inspired groups. This is why. replete with histories and genealogies of the “Islamic sciences. their commitment as Muslims and citizens is imperative for it is the sole way of completing and perfecting their Faith and the essential Message of their Religion. Ramadan is mostly concerned to present his own approach as profoundly loyal to the center of gravity of mainstream legal theory.17 While Ramadan is explicitly arguing with other Islamic juridical and ideological trends which he encounters circulating within the European Muslim community (i. with its laws and customs. perhaps.” At this stage.. Because his project at this point is primarily to vindicate the above practical ethical positions. should permit them to attain this. but this commitment has restrictions.e. Because “justice has priority over emotion” Muslims may not violate their contracts with non-Muslims no matter how strongly they feel Muslim interests are at stake. both at local and national levels. The social space. he takes great pains to give the sense of his own grounding in classical Islamic legal theory. is Ramadan’s insistence that nonMuslim persons and societies are as eligible for solidarity as Muslim ones: Muslims should be allowed to commit themselves within society and to act in favour of human solidarity.of the Islamic teaching. This also means that Muslims can be engaged in social as well as political and economic activities.
logically. Moreover. the more one – whether an individual. identitarian 9 . present the Islamic juridical frame as it is was in itself. Such a position reveals a profound lack of knowledge and. or everything in it. However. the more he or they are genuinely Islamic. group or society – refuses change. freedom and progress then. above all. evolution. negative. entirely immutable because it is from God or because our previous ‘ulamā’ [scholars] have already formulated all that it has to be known and followed. freedom and progress. rulings which explain Islam within the framework of a specific relation of protection from an environment which is perceived as too permissive and even hostile. tends to define what Islam is not in light of its own principles.19 Essentially. acting – or rather reacting – out of fear of Western permissive culture rather than in light of a deep of comprehension of Islamic science. namely Western civilisation.”18 His objection to this is that it is primarily a negative and reactive conception of Islamic spirituality and morality. interdictions or prohibitions. at this stage Ramadan’s response is not to propose a conception of identity and religiosity which replaces rules with nothing but general values or a “spirit” of Islam. the mistake of his contemporaries is to respond to the post-colonial and postmigration dialectic by defining Islam primarily as an identity held together by a series of disembodied rules and signs.His explanation for the errors of those who approach life in Europe negatively is that they “present Islam by means of a whole series of rules. reasonably and as opposed to it. but in contrast with what is it not. His response to the symbolic inefficiency of this stagnant. Islam does not. in their minds. Some Muslims. If the latter accepts change.
lives and religious practice. the term can mean origins. equity and solidarity which thematically reoccur in the revelatory texts. he sees legal theory as rigorously distinguishing between universally-accepted fundamental rules and specific. rulings or fatwas they could regard as definitive interpretations of the Law. restricted or mutable.21 The fundamental rules or principles are indeed unchanging. These include the basic theological doctrines of tawhid and principles of justice. Thus. meeting the Muslims’ needs to protect their Faith. It is many of these latter rulings which he 10 . he sees Islamic legal theory (usul al-fiqh – the “sources” of jurisprudence) as laying out the “fundamental values” at the heart of Islam which can be realized through more specific rulings (furu‘ – branches) in a variety of ways.approach is to insist on a return to the resources of classical legal theory. … By concentrating our analysis on the essential elements of Muslim identity we avoid the methodological mistake of reading that reality through some previously conceived concepts formulated in another time for another context. contestable applied rulings. a large proportion of the collected rulings of Islamic positive law are regarded by Ramadan as contingent.: usul. However. sources or basic principles]. Playing a bit on the surplus of meaning in the term “asl” [pl. “The Islamic sciences are a means. They are instruments through and by which the ‘ulamā’ provide the Muslim community with an overall understanding and a legal framework which allows them to be and remain Muslims whatever the circumstances.”20 What is it about classical legal theory that Ramadan is attracted to for these purposes? In the first place. Ramadan sees the classical legal theorists as imposing on themselves very rigorous constraints on which of their specific judgments.
which is the claim that the natural state of humans is one of moral non-obligation.” which Ramadan translates as “permissibility is the base” but might be more felicitously rendered as “permissibility is the basic principle [of moral obligation]. sovereignty and mastery over mankind.23 The substantive result of this theological stance is the doctrine of bara’a asliyya.sees some of his contemporaries as insisting on as indispensible features of Islam and thus as constraints on what European Muslims may regard as legitimate.24 Thus. it is not only useless to search in those texts for explicit rulings to govern behavior there. Both constitute a rejection of God’s judgment. An important substantive theological principle which he extracts from classical legal theory is that of “al-asl huwa al-ibaha.”22 What he is invoking is a core Islamic ontological claim about morality. In orthodox theology. Because he regards life outside an Islamic nomos as an essentially novel condition not expressly governed by the revelatory texts. He thus invokes the authority of both classical and contemporary mainstream 11 . What is classically an important statement about God’s omnipotence and the limitations of human reason is invoked by Ramadan as a retort to those who see life in Europe as an endless series of prohibitions. “whimsical” judgment (hawa) or the illegitimate subjection to another human being’s will. there can be no absolute proof of the obligatoriness or prohibition of any particular act prior to or apart from revelation because moral values do not exist apart from God’s voluntary creation of them. the claim made in confidence that one is obligated to perform or to abstain from any act can only be either evidence of reliance on one’s own arbitrary. but it is also a fundamental theological error within classical orthodox moral theory to assume that unless the texts explicitly permit certain behavior then it is assumed to be prohibited.
… This is the way by which we shall not only gain in maturity but be drawn to rediscover the essence of our Religion [b]ased on one major pillar. The most important such concepts are maslaha (public interest) and maqasid al-shari‘a (the “objectives of shari‘a”). He is free to command whatever He wishes for whatever reason. We may 12 .”25 Already in this early phase. traditions and customs in their rich and immense diversity. In theory.jurisprudence to make the point that it is precisely Islamic legal theory which “allows us to consider its intrinsic possibilities for adaptation to space and time.27 It enters at two important points of legal hermeneutics. but also human assumptions about God’s own rationality. jurists were very careful to ground explicit rules in revelatory texts. Recalling the above discussion of Islam’s traditional “voluntarist” moral ontology (values or obligations must be deliberately created by God in an act of free will). Since God is omnipotent.26 The Concepts of Maslaha and Maqasid al-shari‘a in Classical Islamic Legal Theory The idea of public interest (maslaha) as a source of Law or device for legal reasoning has a long history in Islamic legal theory. founded on a few global rulings and ready to accept and incorporate cultures. The first is at the point of extending the Law through careful analogical reasoning (qiyas) based on existing rules extracted from explicit and unambiguous statements in the Qur’an or Prophetic sunna. this involves limiting not only human reason or intuition. we see Ramadan also turning to a series of important concepts from Islamic legal theory which will later mediate his abandonment of the constraints of classical legal theory.
One way of taking this risk 13 . But what is it about intoxication that makes wine suitable for prohibition more than. already here we can see how difficult it is to sustain this caution. official “source” of Law in Sunni legal theory) points beyond a cumulative. making such assumptions and using them to ground knowledge of God’s rulings is deeply controversial in that it runs the risk of disrupting the proper balance between obeying God and obeying human reason. For example. wine’s intoxicating quality and its color or smell as a suitable ratio for its prohibition without some assumptions about the higher purpose at which God was aiming. empirical use of the texts to what we might call a “motive model” for understanding the ratio of specific divine judgments on acts. However. we know from the texts that wine is prohibited. is thus always already willing to make certain substantive moral assumptions about the kinds of features or properties of acts which make them suitable for God’s intervention. but what property of wine causes the prohibition and thus allows us to extend to the prohibition to other substances? Out of all of wine’s properties. say. only the fact that it intoxicates could make sense of the prohibition. as we understand both concepts. it is would be entirely within God’s rights and capacity to forbid humans from consuming all red beverages.not assume that God created a morality which is coherent or beneficial to us. color or smell? On a truly voluntarist conception of Law. and stick to a truly textualist foundation for Law. even as basic a practice of Islamic jurisprudence as analogical reasoning (it is the fourth.28 Thus. say. On this view. one simply cannot distinguish between. and final. However. Any jurist who is unwilling to make these assumptions about God.
As noted above. then one is justified in identifying this as the ratio and extending the prohibition to other similar substances. Scholars still committed to the principles of Divine sovereignty and Divine omnipotence at the heart of the theological doctrine of Divine voluntarism. but who wanted a flexible and living Law.seriously is by limiting the search for motives and purposes to what is explicitly mentioned in the texts.e. the search was thus only for textual evidence for concrete rulings (i. this was controversial for theological reasons (for some textualists the search for legal causes within the texts in order to apply them to new cases was already too much). the second point where maslaha enters legal hermeneutics. here one is still limiting reference to the human interests (masalih) which are threatened by intoxication to those explicitly mentioned in the texts. Still better if He explains which deeper or more general interest (maslaha) is being protected by prohibiting intoxication and thus what the underlying Divine wisdom (hikma) behind the rule is. Thus. wine is prohibited) but also for the ultimate human interests which Law in general sought to protect and advance.. if God there or elsewhere expressly explains that intoxication and its dangers are what He is trying to avoid by the prohibition on wine. However. According to the “motive model” for understanding the ratio of specific divine judgments on acts. This question of whether the Law is clear and consistent in articulating a concise set of human interests which are protected and advanced by the specific rulings of the Law. is the hinge which opens onto the theory of the “objectives of the Law” (maqasid al-shari‘a). and which could in principle be argued to ground legal rulings even in the absence of explicit textual authorization (maslaha mursala). had to show that God did in fact 14 .
life. cumulative. human interests could not contribute to the formation of Law. These scholars used Scripture to justify this move: God is referred to in the Qur’an as a “wise” or “rational” being (who thus acts only with a purpose) and who “does not intend hardship for you” (Q. All scholars. “empirical” reading of the texts did not suffice to establish this. The detailed.29 Jurists eventually came to speak of the “objectives of the Law” (maqasid alshari‘a) which were discovered through the inductive reading of the texts.) All shari‘a rules can in some way be shown to “protect” or “preserve” these universal necessities. This involves reading multiple treatments of similar problems to see whether there is corroboration for the idea that certain common interests are at stake. only contribute to these interests by protecting or promoting lesser “needs” (hajiyyat) or still lesser “improvements” (tahsiniyyat) or “embellishment” 15 . and devised hierarchies and classifications of these purposes. What many scholars came to defend was a method of “inductive corroboration” (istiqra’ – which in Arabic might suggest something like “reading in to”). property and rationality. the entire Law itself came to be described as existing at large to bring welfare to humankind and dispel harm. Thus. agreed that at the top of the hierarchy are five universal basic human necessities (darurat or daruriyyat): religion. the Andalusian jurist Abu Ishaq al-Shatibi (d. Many specific rulings of the Law. 1388). from al-Ghazali (d. lineage.take human interests into account when ordaining the rules of the Law. His rules must also be a mercy for us and intend us benefit rather than harm and. 1111) to the master theorist of the maqasid. however. Unless this could be shown. (Some jurists have added “honor” [‘ird] as a sixth necessity. indeed. 5:6). and that the protection of those interests did in fact constitute the overall purpose of Law.
what is important for our purposes at this point is that Ramadan takes great pains to demonstrate that he is operating entirely within the traditional interpretations of these concepts. Rulings shown to be advancing mere hajiyyat or tahsiniyyat could be theoretically replaced by other practices if the ultimate daruriyyat were not harmed and if other benefits could be established.” However. This process should be witnessed in every time.”31 And. The concepts of maslaha and maqasid al-shari‘a are absolutely crucial for Ramadan’s interest in a flexible and open. In light of Islamic references. He grounds his description of them in the works of the canonical legal theorists Ghazali and Shatibi and emphasizes the need to remain within 16 . then this should be shown. as shown above. namely the specific situation of Muslim minorities in a non-Islamic country. yet authentic. with all the juridical Islamic instruments and in accordance with ma la a.”30 “The contemporary development of ijtihād [engaged Islamic legal reasoning] should face this new state of affairs. Ramadan’s approval of the European conception of religious freedom maps closely on to the theory of the five core necessary interests which form the “objectives of the Law. “If Islam is a universal Message. proved and expressed through a permanent reflection going and coming from the sources to reality and from reality to the sources. the ‘ulamā’ have had to say whether it is possible to be a European Muslim or not.(tazyiniyyat). all of which have their place in the edifice of a just social and legal order but are not equally important or indispensible. Islamic doctrine of European citizenship. everywhere so that the application of the Islamic law remains faithful to the maqā id al-sharī‘a. appropriate to all places over all times.
17 . and towards a reduction in status of the kinds of questions which admit of distinctly legal answers. there is a discernable shift in two directions: towards emphasizing legal theory’s mandate for change in the area of applied positive law. Throughout both of these shifts the concepts of maslaha and the “objectives of the Law” play a central role. mainstream interpretation in both form and content is fully sufficient for theorizing the Muslim presence in Europe and. one cannot but note that it is in fact the reverse.the constraints of revelation when identifying the content of human interests.32 Second Moment: Classical Legal Theory as a Mandate for Legal Change Ramadan preserves much of the form and content of To Be a European Muslim in two subsequent books. His primary rhetorical move at this point is to argue that classical legal theory according to its dominant. However. Loyalty to one’s faith and conscience requires firm and honest loyalty to one’s country: the Sharī‘a requires honest citizenship within the frame of reference constituted by the positive law of the European country concerned. He is particularly eager to preserve his rhetorical show of loyalty to classical legal theory. One can then see that it is clearly in the name of faithfulness to the Islamic teachings of Sharī‘a and fiqh that Muslims can live in the West … Whereas one might have feared a conflict of loyalties. since faithfulness to Islamic teachings results in an even more exacting legal implementation in the new environment. thus.
However. … To apply the text outside its context and orientation is an even more pernicious betrayal [than curtailing the application of the text].”36 In the first order. … This formalism is one of the worst enemies of the person who wants to respect the Qur’anic and traditional teachings. In the 18 .”33 This critique is boldly conjoined with a stark denunciation of superficial formalism and religious identitarianism in the realm of political aspiration. this critique is broadened somewhat to address both doctrines and mindsets throughout the majoritarian Islamic world and excessive doctrinal loyalty to the letter of classical rules. For it allows that person to apply them as they are cited.”34 The theme of change in an eternal Law is more thus starkly emphasized than in To Be a European Muslim where Ramadan was at pains to show how many applied rulings of classical jurisprudence already supported principled recognition of a broad social contract with non-Muslims. this commitment to flexibility and adaptation is simply a recitation of the basic Islamic legal distinction between the timelessness of the rules of worship (‘ibadat) and the variability of the rules of social relations (mu‘amalat).”35 that there is a “Qur’ānic strategy for change. He rejects the “narrow traditionalism of some ‘ulamā’ who decide and resolve questions away from any human reality in an absoluteness which only God knows. without any effort of research or great cost but with great ensuing harm.In these two books. The Muslim Brotherhood mantra “Islam is the solution” is denounced as “a slogan empty of any strategy or planning … a result of thinking that it is enough to cite the sources in order to convey the dimension of their just applicability in an actual context. He writes that in the Qur’an itself “is built in a mechanism for change and evolutionary guidance. Ramadan continues his critique of narrow traditionalism and legal formalism in Islamic culture.
alone. on the one hand these revealed verses were relative answers to dated historical facts. This preferred strategy for change is tightly connected to the concepts of maslaha and the maqasid. (He decries the approach of “minoritarian jurisprudence” (fiqh al-aqalliyyat) for European Muslims with its “hodge-podge of fatawa thought up like so many accommodations largely in response to arguments from necessity in order to justify a number of legal exemptions to make life less difficult. as evidenced in the following quotations: The Word of God is absolute and definitive.”38) The alternative to both a simplistic and dangerous formalist fundamentalism and a purely reactive. they also represented the revealed absolute. the eternal 19 . the Text almost never allows itself. to lay down a universal principle: it is the human mind that derives both absolute and relative principles from the Text and from the reality of the context in which it was revealed. Ramadan’s interest in legal change is not limited to classical understandings of legal flexibility or the granting of dispensations (rukhas) in circumstances of hardship. open to evolution. its application to given situations is governed by built-in rules and a mechanism that ensures the harmony. In setting out the specificity of these verses. the application between the objectives and principles behind the injunctions and their specific application in given situations. … As such.”37 Few traditionalist scholars would disagree that the norms of social relations are a space for the application of ijtihad. cautious ruleand-exception flexibility is to see the Law as embedded in a substantive moral matrix. accessible to reason in a historical setting. thus providing a consistency of purpose in adapting the Law to new circumstances.“verses … that deal with social matters. we understand better that the Revelation … was expressed in pronouncements affected by circumstance. However.
“There can be no Sharia without a corpus of fundamental principles that set. This framework is not set against Law. Ramadan is by no means limited to these concepts and to formal juridical methods.meaning of the formulation. ijtihad. Ramadan is not necessarily looking for concrete rules approximating certain knowledge. the general principle which comes out of the same answer … the notion of “maqā id al-sharī‘a”: the objectives and principles of orientation of Islamic legislation. in substance but more so in ethos. He is not trying to play at being a jurist.40 However. but already here we can detect some subtle tensions.42 His conception of Islamic normative evolution is thus dependent on a conception of a broad Islamic ethical framework related.41 nor to translate the judgments of the jurists to a broader. we find three basic notions [maslaha. furthermore. but not reducible to. finding new responses or thinking of innovative models of social and even economic organization. a point of reference for faithfulness to the divine 20 . beyond the contingencies of time. A study shows that they present a significant amount of leeway for proposing new readings of the sources. popular religious mindset.39 Among the tools listed by the classical ulama who specialized in the fundamentals of law and jurisprudence (usul al-fiqh). and fatwa] that provide a way of making a connection between universal principles and social realities that change with the passage of time and cultures. a classical conception of maslaha as protecting the five basic interests which constitute the maqasid. he seems to suggest that there is a certain core Islamic ethical sensibility which has conceptual priority to norms derived from legal-hermeneutic methods. But.
it is action against speculation.44 On a wide set of topics. mastering one’s egoisms and one’s violence. ranging from the ethics of belonging in European societies to the struggle for social justice in the global south. and neocolonialism.” In other words. on the economic level. and the democratic processes. the “Universal. and then invoking a religious morality grounded in a more vague and non-committal matrix of values. albeit one which looks 21 . it is the struggle for greater justice and against various kinds of discrimination. it is the promotion of the arts and forms of expression that respect the dignity of conscience and human values. unemployment. it is the defense of civil responsibilities and rights and the promotion of pluralism. to its ultimate source. the required and the forbidden and replace it with an ethics of commitment and transcendence. it is working on one’s self.” The commitments this conception of “Sharia” involves are a mix of individual self-purification and social-democratic politics. monopolies. principles and ethics derived from “the Universal.will.”43 In Rawlsian terms. and racism. on the cultural level. On the intimate level. on the social level. Ramadan speaks frequently of connecting one’s being through “the way of faithfulness” to eternity. but to dissolve the search for the permissible. on the political level. Ramadan’s strategy here seems by and large not to argue against Law. he seems committed to certain (non-)provisional fixed points of Islamic morality with which norms derived from juridical methods must be brought into reflective equilibrium. Ramadan follows a discernible pattern of turning to the idea of Law mostly to dispel certain Muslim concerns about basic permissibility or conventional taboos. What this ethical matrix consists of is not always clear. freedom of expression.
Prioritizing the immediate implementation of more traditionally specific “Islamic” rulings is not only simplistic and crude. The penal sphere is not the be-all and end-all of the Shari‘a. to education. his attitude towards the long-standing rules of Islamic criminal and public law is neither to argue against their epistemic foundation and nor. reprimanding. censuring permanently. but can also lead to a “daily nightmare … [of] prohibiting further. imprisoning and punishing without respite. what should be clearly understood is that moral and social transformation is a multi-dimensional process. Rather. has put so much trust in men for the treatment of their affairs and which has counted on their responsibility. his strategy is usually to deflate the importance of these rules for the Islamic revival and to suggest how implementing them might actually harm more important religious aims. for example. Formalism here kills the essence of the message. to justice.”45 A good example of his strategy of not rejecting Law in its traditional forms but rather deflating their importance comes on following pages: That law has a role in the total scheme of reform is not disputed. Thus. he writes that shari‘a justice in the first order demands seven rights: to life and a vital minimum.” In this way. and of reprimanding transgressors in the most exemplary 22 . and to social solidarity. to family. at the source of the original permission [ibaha asliyya]. to work. thus. to propose what better rulings might be. to housing. “a message which. In line with his rejection of “Islam-isthe-solution” Brotherhood formalism.mighty similar to a generic psychology of religious wholesomeness and social democracy. ends up as the tool of a generalized suspicion which only a totalitarian and police regime can uphold. it does not consist of adding prohibition to prohibition.
for it means transforming the most deprived of victims into guilty people. progressive advancement of Muslims (and others) through a deep appreciation of Islam’s aims. the height of injustice. here there is already a hint of a sharper conflict between “ethics” and “Law” and the idea that the former may have conceptual and normative priority to the latter.47 The implementation of the shari‘a for Ramadan instead involves “eliminating illiteracy. is no more to formulate rules or norms which aim at an approximation of certainty. or 23 .” The point. in the first instance. give witness of its respect to ethics. for Ramadan. moreover.” Indeed. jihad and democracy.manner. to apply the Shari‘a from the starting point of an institutional penal code is tantamount to taking the wrong way twice. Above all it is betraying the scope of the Qur’anic message which makes social justice the priority of all legislative activity … It is impossible here to be satisfied with a miserable formalism which. it must. In his views on gender. In the first instance it is nothing less than starting from the end by not having taken into account a social context which is profoundly different and disrupted.46 … Considering the present state of our societies. in order to appease consciences. Law may not only be diminished or put in its place. managing the distributing of resources. It is. Ramadan’s shift is not just about elevating maslaha and the maqasid. it can never be justified by its formalism. and national and regional development. ensuring training. “For social action to be Islamic. but actually in a position of antagonism with “ethics. even after appreciating the deeper ethical vision or purposiveness of revelation. is of itself a violation of the Revelation. The Shari‘a aims at the liberation of man and not merely of whittling down liberties.”48 If Ramadan wants a principled.
never mind addressed 24 . At many points he takes pains to reaffirm the basic legitimacy of legal theory and juridical aims.49 If there is an implicit contradiction between his anti-formalist ethics and his residual commitment to Law. but also seem to play a certain role in diluting the epistemic and normative force of concrete shari‘a rules and thus in demystifying the search for such rules at all.reducing all formal juridical normativity to them. I have not hesitated sometimes to question certain definitions and categorizations and to suggest others. But it must be noted at this point that this is a cautious venture beyond Law. even though the methodology I have adopted is classical. It appears then that the concepts of maslaha and the maqasid are not merely elevated as central to the jurisgenerative project. spirituality and liberation which might not be compatible at all with the kind of binding rule-giving and public process of justification which are characteristic of juridical thinking. in and through a rigorous faithfulness to the sources and the norms of reading them. and to situate his project within it: The approach I propose is anchored in the Islamic tradition and amplified from within it: in this sense it is both deeply classical and radically new. which Ramadan does not go out of his way to stress. Beginning with the Qur’an and the Sunna and the methodologies set down by the ulama throughout the history of the Islamic sciences. … My conviction is that the movement toward reform can take place effectively only from within. He is at the same time elevating a certain conception of ethics. I have tried to immerse myself again in reading these sources in the light of our new Western context. it is not openly exposed at this stage.
He declares of the methods used in his previous three books that “limits have been reached … it seems obvious that I had to go further and not only. resulting in certain theological and thus epistemic/methodological commitments. not only entirely defensive and reactive in practice but also in essence. 25 . his background ethical matrix for approaching revelation differs in important ways from classical assumptions. Third Moment: Multiplying Law’s Purposes It is impossible to miss the break with his previous caution and conservatism effected in Ramadan’s latest book.” one which spares no conventional Muslim theological sensibility.decisively. for him now. and the mother science (usul al-fiqh). Even for reform-minded Muslims. conservative thinking. its sources. This book is an open broadside on that kind of cautious. Previously the background matrix was the willingness to submit all judgment to God. as reformists had done in the past two centuries. Radical Reform: Islamic Ethics and Liberation. This is an exercise in what he will later denounce as mere “adaptation reform. but also its fundamentals. now it is to submit all judgment to the matrix of assumptions one makes about the ethical spirit and over-all purposes of Revelation. he has in this stage elevated both a set of concepts (maslaha/maqasid) and a modality of thinking about normativity that clearly mediate his turn to a more “radical reform.” Nonetheless.”50 The reformist approach to Law is. question the productions of fiqh.” Also. which Ramadan now belittles as mere “adaptation reform.
” or “Two Books” (the Qur’an and the Universe). not merely a factor which around which the jurist may construct the Law. is an actual source of law. The inspiration of the ethical demand that questions the world’s order and human practices in the name of respect for nature and for men. this elevation of the universe and context to sources of Law is not simply a decisive break 26 . or the Real. nor a contextualization of the place of concrete legal norms. nor is it a mere break. and is reduced to the formulation of fiqh. “The Universe and the sciences related to it must imperatively be considered as objective. But.”52 These two claims amount to the propositions that God has given “Two Revelations. and that context. formally conservative and often marginal. and the knowledge related to them must assuredly be integrated into the process through which the higher objectives and ethical goals of Islam’s general message can be established” and that “the center of gravity of authority in the Islamic Universe of reference must be shifted by ranking [t]ext scholars and context scholars … on equal footing.”53 However. in the name of justice and coherence. interestingly. Rather. each normatively and epistemically co-equal. Nature. it is the explosion of the very idea of Law from within. and timid judgments (fatwa). a decisive shedding of the mantle of Law. This explosion from within consists in the claims that “it cannot be enough to rely only on scriptural sources to examine the relationship between human knowledge and applied ethics: the Universe. seems to have lost its energy or to have simply disappeared from a reformism that keeps adapting and eventually ends up acknowledging the very terms pointing to its own disqualification.the ethical demand is trapped inside legal elaboration alone (with its formalism and technicality).51 Ramadan’s break then involves neither the reformation of legal methods. indispensible sources of Islamic law and jurisprudence.
Rather.”54 Similarly. “applied contemporary ethics. beneficial and useful to the human race and to protect it from what is evil and harmful. Ramadan invokes the classical idea that the shari‘a simply is the promotion of maslaha and dispelling of harm or corruption (mafsada) in order to justify his inclusion of the natural and social sciences into a contemporary Islamic law-cum-ethics: “The primary and a priori importance of the Creation as well as of divine Messages through history is to preserve what is good. meaning. as well as the conscience’s formulation of ethical limits to human action in the Universe and toward humankind – those are the attitudes that underlie the ‘Islamic’ dimension of the scientific approach and of ethical choices. his claim is that because Law traditionally sets for itself the practical tasks expressed in the ideas of maslaha/maqasid he is able to demand the inclusion of Universe and Context. that his most recent ideas are built on concepts and propositions about Law which he developed in his earlier work.”55 Later comments encapsulate perfectly the mediating role the concept of the maqasid plays for him: “It is on the basis of the two Books that it appears necessary to set on inferring.with classical legal theory. nor a reclaiming of Mu‘tazilite rationalism. Thus. identifying. the fact that Ramadan continues to refer interchangeably to ethics and “law” points to the central claim of this essay.” 27 . “The heart’s meditation about the origin. and categorizing the higher objectives and aims of the Way (maqasid al-shari‘a) and thereby determining the theoretical and practical outline of an applied contemporary ethics. and higher objectives [maqasid] of the texts and contexts.”56 What he extracts from legal theory – the principle that “permissibility is the basic principle of moral obligation” and the concepts of maslaha and the maqasid – are reconceptualized in such a way that what emerges on the other side is something other than Law.
the Prophet’s (or the Prophets’) practices and the recognition of the Universe as a sign and gift.”58 However. involving a new. through verses. Ramadan accepted the traditional elaborations of the “purposes of the Law” (maqasid al-shari‘a) of scholars such as Ghazali and Shatibi. their origin. then. defined as “a conception of life and death stemming from recognition of the One and of the Way. a priori goals. “in the sense of the common good and the interest of humankind and of the Universe. multi-dimensional scheme. Whereas in his earlier books.” From here Ramadan introduces a third level consisting of the protection and promotion of 13 further maqasid “more directly 28 .” Protecting and promoting these two founding pillars is in turn dependent on respecting and protecting three further fundamental objectives: Life (hayah). Nature (khalq/tabi‘a) and Peace (salam). “but that we should consider their source. he now declares that theorizing a new Islamic ethics demands “reconsidering what the scholars of fundamentals [sic: Islamic legal theorists] from Shafi‘i to Shatibi categorized as sources of law. this is not merely a question of expanding the number of maqasid (he notes that previous jurists. read and understood in parallel should enable us to present higher objectives in an original – and always open – way. “The whole of the Islamic message.” and the protection of welfare (maslaha). The two Books. to see what happens to these concepts in this present stage of his work.It is crucial.”59 What Ramadan replaces the traditional maqasid framework with is a multi-tiered. more specialized. and more pragmatic relationship to reality. were willing to do this). and thereby their categorization and formulation.”57 “The five or six higher principles laid out by the objectives school will not be sufficient. refers to those three essential. including Ibn Taymiyya. Shari‘a is now based on two co-equal purposes and objectives: the protection of religion (din).
contingent account of the shari‘a’s purposes. is said to call for the promotion and protection of 23 further maqasid. Deliberation. Independence. Related to the life of the being. Solidarity and Diversity. deeper understanding about the meaning and implementation of the aforesaid rulings. Contemplation. we must return to the texts with a renewed. since this must always remain a dialectical elaboration: starting first from what the texts say about higher objectives. the welfare of societies and groups requires the protection of the Rule of law. Law’s purposes have metastasized from the original five necessary interests to 41. or the individual. then from what social and human contexts reveal (and sometimes impose). The realization of these interests must be specified according to whether they apply to the inner self. The shari‘a. Love. Autonomy. the life of the individual or social life. Cultures. Creativity. even contrived. Conscience. Evolution.linked to humankind’s being and action”: Dignity. “New scientific knowledge. Freedom. Religions and Memories. Related to the inner being. might lead us to extend that list. Progeny. shaping a new outlook on human beings or Nature.”61 And he is insistent that even this is only a partial. “Contemporary times compel us to return to the texts and extract objectives that may have appeared secondary in the past. Sincerity. Work. Health. Knowledge. Equality. nature of this list. Ramadan does not deny the self-consciously contemporaneous. Fraternity. an “ethics of the heart” calls for the cultivation of Education. Pluralism.”62 A more 29 . Intelligence. Belongings. Ramadan identifies Physical Integrity. Balance and Humility. He doesn’t stop there. Subsistence. Finally. Development. Justice. Welfare.60 When all is said and done. Contracts and Neighborhoods as maqasid. then.
when separated from the world and its complexities. universal principles. social. and dialectic tensions between higher objectives. and historical models: such a fiqh should certainly not rigidify normative categories for fear of scientific. come to a standstill or turn into thought-establishing atemporal – or rather ahistorical – categories (lawful/unlawful. Any coherent thought.” ‘ulama al-nusus. Law and jurisprudence related to human and social affairs must set higher objectives and aims and establish the framework of an ethics that determines the stages of mastery and 30 . intellectual and social dynamics. what would normally be the field of Islamic jurisprudence.traditionalist Muslim intellectual might be forgiven for any skepticism about Ramadan’s avowed order of operations for arriving at an authentically religious set of “provisional fixed points. and integrated into fiqh councils. or “context scholars. becomes clear in the sections where Ramadan continues to refer to fiqh (Islamic jurisprudence) and to discuss the role of traditional jurist-scholars. in addition to natural scientists. Ramadan’s imagined resulting product from such new collaborations. aiming at reforming today’s world must devise a dynamic fiqh. but displaces it. In the first place. sociologists and other social scientists. is revealing of his ambitions not just to supplement jurisprudence. he demands that economists. however.” That this conception of applied Islamic ethics not only supplements or foregrounds Law. but to replace it: Applied fiqh is a field of legal elaboration that can. and human complexities that elude it. taking into account the time factor. be elevated to the status of “religious scholars” – ‘ulama’ al-waqi‘.” in their case – fully on par with traditional “text scholars. allowed/forbidden) that shape our thinking and to which what is real is reduced. lawyers.
it is not because “ethics” is a workable synonym for classical understandings of “fiqh”. Note that for him it is no longer merely possible to have an ethics which does not aim to emulate fiqh. They are displaced by active forces or choices. the pursuit of knowledge of the lawful/unlawful.63 This passage is as noteworthy as any of his comments on the maqasid.transformation. certainty and authority. and far beyond a political stance that the fatwas or rulings of jurists need not be invested with coercive authority. a fiqh that foresees and foretells from the present state of scientific knowledge.64 But this choice in Ramadan’s case to displace Law so definitively. it is because he wants to dissolve the very ambition of religious jurisprudence (the search for God’s intended judgments on as many realms of human activity as possible) into an ethical project no longer concerned about even the search for precision. it is a shedding of the very categories of religious Law as an object of aspiration for normatively committed Muslims. largely by 31 . mediators do not just vanish. but that fiqh itself must no longer be primarily in the business of aiming at authoritative normative judgments about human actions. Conclusion: The Post-Legal Ethics of Tariq Ramadan Of course. fallibility or contingency of fiqh rulings. rather. the allowed/forbidden. now appears to him practically as a category mistake even for the practice of fiqh. This is not a contextualization or reconfiguration of the status of Law as a social institution. This is far beyond a cautious appreciation for the inevitable indeterminacy. Indeed. If Ramadan now uses “law” and “ethics” interchangeably.
In comparison with his explicit theoretical and methodological broadside on traditional. since disagreement over less central and constitutive practical or applied doctrines occurs against a backdrop of agreement over more central and constitutive abstract commitments.” His ecumenical applied ethics seems designed to alienate as few potential constituencies as possible both within Muslim and non-Muslim populations. but nor does Ramadan in these chapters go out of his way to single out widely-held juridical positions for rebuke and rejection. and by more concrete applications of those commitments in the area of applied ethics. mainstream understandings of legal and moral theory. moderately traditionalist jurist-scholar might come up with.emphasizing and appropriating concepts derived from classical and mainstream legal theory. leaves us with a small puzzle. his reflections tend to reflect the same urgent yet optimistic sensibility of generic humanism and pious wholesomeness familiar from his earlier works. His views and emphases are not necessarily what an average. In the areas he addresses of medical ethics. women and gender roles. Let us imagine something like a Reformer’s Dilemma. This Dilemma posits that moral communities are bound together both by abstract background philosophical or theological commitments. nor does he go out of his way to elaborate what is particularly Islamic about his ethical vision. and society. challenges to those 32 . A reasonable conjecture is that. all of which leaves one wondering why it is so urgent for him to take the risks that he does in areas of theology and method which are potentially alienating of more conservative Muslims. culture and the arts. education and power. ecology and economy. For that matter. beyond references to connecting human action with the eternal and the “Universal. his applied ethical vision is remarkably elusive and risk-averse.
at least. We should thus avoid abstract philosophical arguments in public whenever possible. Consider an analogy to Rawls’s assumption behind the idea of a political liberalism. only retreating to them when all less costly attempts at agreement have failed. foundational commitments will be more costly than challenges to any given practical or applied belief. However. it is intuitive to assume that persons arguing within a certain community for innovative or unpopular applied ethical views will make risky and costly demands in the realm of method or foundations only when necessary to justify the applied. I believe. will open up deep questions of theology and legal method which are very “costly” within a wide Muslim community only when she has reached the limits of what can be attained by way of substantive moral reform from within mainstream theological or jurisprudential assumptions. Ramadan’s 33 . Muslim scholars and intellectuals are often able to articulate new or minority positions on most areas of applied jurisprudence at much lower social cost than on common theological or methodological doctrines.more abstract. is a reasonable model for understanding moral pluralism and public argumentation as traditionally plays out amongst Sunni Muslim communities. Here his views are very undemanding on the conscience of the wider Muslim community in terms of the actual norms or behavior it advocates. while very demanding in terms of its reasoning for that behavior. Accepting the above assumptions only as an ideal-typical model. the exact inverse of the above scenario. it might be intuitive to assume that a believing Muslim public intellectual. Thus. is what is going on with Ramadan’s Radical Reform. This. But deep metaphysical agreement is not always needed to arrive at practical agreement. practical argument. for example. Deep metaphysical arguments are divisive (“costly”).
One would assume that he would only expend this kind of “theological capital” in order to justify equally challenging and novel points of applied ethics. Perhaps he feels that popular enthusiasm for the ethical attitude he outlines. applied side is an interesting feature of his aspirations and worthy of discussion in its own right. Nonetheless.bold proclamation of the need for “radical reform” of Islamic law and ethics. requires a deeper shift in general understandings of the sources of normativity. an act of identity assertion. “Case Studies”) are not particularly radical or challenging – either to a conservative Muslim or to a well-meaning non-Muslim. whereby the divide between the “two cultures” of religion and science is collapsed. i. is potentially extremely alienating of a conservative Muslim audience. alongside his willingness to call into question very basic principles of Islamic law and theology. the trajectory travelled between To Be a European Muslim and Radical Reform is worthy of focus not only because of Ramadan’s personal notoriety but also 34 . even if it is not in any unavoidable conflict with contemporary jurisprudence. Perhaps I am not giving the reformism of his applied ethics its due. Ramadan’s eagerness to tout “radical reform” on methodological issues and common attitudes without needing to take those risks in order to extract substantive reforms on the other.e. Perhaps his aspiration is a long-term cultural and institutional reform of the sphere of normative public reason in Muslim societies. Perhaps he is interested in a psychological shift which reduces the temptation to assert loyalty to the shari‘a as an act of self-distinction from non-Muslims. Or perhaps this is a book intended for a non-Muslim audience. interestingly enough. as well as common Muslim attitudes. the specific practices and attitudes about behavior in the world which he then calls for (Section IV. in my opinion.. However.
He is not using Muslim communities (never mind the threat of violence) as a bargaining chip in exchange for political power for himself or a party. daily habits of the body. No. Ebrahim Moosa. In fact. 4 After all. “A catalytic agent which permits an exchange of energies between two otherwise mutually exclusive 6 terms.” New German Critique (1973). what are we trusting Ramadan with? He is not a candidate for European Minister of the Interior. 78. he is not using his prestige or authority per se to demand anything. 38. etc. community. the practice of searching for the shari‘a and arguing for 3 interpretations of it. or spiritual formation that creates the conditions for a new society and a new civilizational pattern – albeit in the horizon and vocabulary of the past – by rearranging the elements inherited from the very institution 35 . theology. force. at p. “Fiqh” is the term for Islamic jurisprudence. Vol. 1-24. Thus. See.” (Frederic Jameson. It refers both to the very concept of a Divine Law and also Islamic scholars’ conception of shari‘a as something perfect and integral despite human’s fallible and contingent understanding of it. I will use “Law” as synonymous with the idea of shari‘a or an ontologically real morality created by God. while the basic cultural and psychological dynamic of the Conciliator’s Dilemma more commonly associated with actual negotiation strategies such as the Irish or Palestinian peace processes does have an analogue in Ramadan’s career as a public intellectual and influential figure in European Islam. “The Vanishing Mediator: Narrative Structure in Max Weber.) The “dialectical figure … of a transitory institution.because of the explicit way in which it brings to the surface core tensions and temptations at the center of all reformist projects which begin by acknowledging the shadow of authority cast by Law in Islam. 5 See below for a presentation of some of these views. pp. 1998).. The term fiqh is generally used to refer to human articulations of the shari‘a which are thus fallible and contestable. for example. praxis. 52-89. there is not a trace of the rational concern with the threat of perfidy which accompanies long-term peace negotiations in the conditions of mistrust and imperfect information.” He does not command a militia. or even some “European Integration Czar. 2 Islam is also a religion of mysticism (Sufism). “Allegory of the Rule ( ukm): Law as Simulacrum in Islam?” History of Religions. 1 In this essay. pp. 1 (Aug.
Vol. (Ramadan. to promoting good and equity within and through human brotherhood. pp. p..” Constellations. 147-150. at p. 135-7. 153-162. 1999). UK: The Islamic Foundation. pp. 2003. the meaning of an essential duty and of an exacting responsibility: to contribute. To Be a European Muslim: A Study of Islamic Sources in the European Context (Leicester.that has to be overcome. No. in the space of testimony. Ibid. dar al-sulh).) 7 Tariq Ramadan. 131-140. … Without this ‘vanishing’ mediation. 334. for example.” Islamic Law and Society 1:2 (August. at least. pp. Ibid. 312—338.” (150) 14 Ibid.” (Etienne Balibar. but rather that life in the West is a particularly enchanted space to be a Muslim: “Muslims now attain..” Ibid. pp. The idea of an “Abode of Testimony” suggests not only that 11 12 13 because Muslims are free to bear witness to their faith life in the West is permissible. the “Abode of War” (dar al-harb) or the Abode of Treaty (dar al-‘ahd.) 10 Ibid. no transition from the old to the new society would [be] possible. 1994). pp. Ibid.arb or. pp.. of dār al-kufr. pp. 117-8.” (dar al-Islam). pp. 162-179. To Be a European Muslim... “Europe: Vanishing Mediator. Khaled Abou El Fadl. Ibid. “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries. 139-140. “Dar al-shahada.) 9 Classical jurisprudence tended to divide the world into the “Abode of Islam. wherever they are. 165. for these areas are part of dār al.. 3. Ramadan writes that “one of the most frequent questions among Muslims living in the West is to know whether they are allowed to live in Europe or the United States or not. 8 See. 10. Many Muslim thinkers have found it urgent to specify the classification of modern Europe according to these classical categories.” (To Be a European Muslim. 123-131. p. … The question of determining whether a Muslim was or was not permitted to live in a non-Muslim country or area appeared very early on as an issue in Islamic fiqh.. 165. 159-162. Emphasis in original. pp. 15 16 36 .
trans. pp..” [Imām al. independent of 18 19 20 21 22 23 revelation. and that the mind. 59. A History of Islamic Legal Theories (Cambridge: Cambridge University Press. before the promulgation of the revealed law... because the Law commands it. is obligatory. See similar passages on pp. 10.g. and this kind of fundamental indifference. (Reading.) See. 131. 135. 141-2.] 24 “Bara’a asliyya embodies a theological notion: it contradicts the Mu‘tazilite thesis which is founded upon the rationality of the legal values (ahkam) of a certain number of human acts.) 25 Ramadan. 55-6. Ibid. p. absolutely and exclusively. 2000). Walker. Rubinacci. 1997). 62-5. To Be a European Muslim. 41-43. pp. upon the revealed law. e. 9-10. 65. which must not be confused with permissibility. Something’s being good or bad falls solely within the disposition of the Law. denies the notion of any obligation.. namely. that God decides on all matters and that the human mind is utterly incompetent to function as a judge of any human act. But for almost the totality of the orthodox scholars. UK: Garnet. the legal values are based. p..” (R.. human acts have no hukm. In this vein. See ibid. Paul E. note also his further discussions of silence in the revelatory sources and the juridical principle of “facilitation” (taysir.” Encyclopaedia of Islam.. all those other acts which do not admit of a rationalist assessment are all illicit (according to some) or all permissible (according to others) or unqualified (according to a third group). Ibid.aramayn [Abū al-Ma‘ālī ‘Abd al-Malik] alJuwaynī. 3. Ibid.” (Wael Hallaq. the idea that God wishes for the Law to be easy on His servants). al-Juwayni (d. “The Mu‘tazilite tenet that human acts are either good or bad. and which holds that. p. is capable of determining which act is good or bad … runs in diametrical opposition to the most fundamental principle of Sunnī jurisprudence. It is also worthy of mentioning at this point that these are primarily the sections 37 . “Bara’a. Ibid. A Guide to the Conclusive Proofs for the Principles of Belief (Kitāb al-irshād ilā qawā i‘ al-adilla fī u ūl al-i‘tiqād). p. before this law and outside it.. p. 478/1085): “The intellect does not ascertain the goodness of a thing or its badness. … What is meant by ‘obligatory’ refers merely to the act which.17 Ibid. 134.
However. 28 Indeed. Weiss. 2001). it is crucial to appreciate that Ramadan’s invocation of Qaradawi is almost exclusively in these areas of legal theory where Qaradawi is known for his flexible and adaptive approach to Islamic law. al-Musta fā fī ‘ilm al-u ūl (Beirut: Dār I yā’ al-Turāth al-‘Arabī. (See also Ramadan. the bridge between the commitments to voluntarism and also to a coherent and flexible Law: we are permitted to refer to human interests as objectives of the Law (and thus as a tool 38 . pp. Hallaq. and remains. this theory did not hold that God was bound to act this way. UK: Cambridge University Press. Inductivism was. To Be a European Muslim. all of whom contributed to the vanquishing of the rationalist and ethically objectivist Mu‘tazilite school. Fī fiqh al-aqalliyyāt al-muslima (Cairo: Dār al-Shurūq. literally a scion of the Brotherhood) but also an apologist for radical jihadism and suicide terrorism. 1209).) Furthermore. The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf Al-Din Al-Amidi (Salt Lake City: University of Utah Press. 1085).) 2 vol. To Be a European Muslim.d. Qaradawi’s fatwas and treatises on Muslims minorities in Europe (as opposed to majority societies) are distinctly accommodating of the implicit European social contract. This following section is based largely on Wael B. 1998) and Abū āmid al-Ghazālī.where Ramadan refers to the authority of Egyptian-Qatari scholar Yusuf al-Qaradawi. al-Ghazali (d. It is Ramadan’s citation of Qaradawi’s authority which permits some to conclude that Ramadan must himself be not only a loyal Islamist in the Brotherhood vein (he is. 1992). 1997). Bernard G. Qaradawi is a longstanding authority for the Muslim Brotherhood and the author of a fatwa permitting suicide bombing in the Israel-Palestine conflict. 29 Importantly. an early legal school known as the Zahiri (“Literalist”) school rejected the use of analogical reasoning on grounds that it relied too much on fallible human reason. the prime theorists of this move from strict empiricism to inductivism included the great Ash‘arite theologians al-Juwayni (d. 94-98. of course. n. GA: University of Georgia Press. 76-82. The Spirit of Islamic Law (Athens. Indeed. A History of Islamic Legal Theories: An 27 Introduction to Sunni Usul al-fiqh (Cambridge. (Yūsuf al-Qara āwī. pp. Weiss. merely that we can surmise that he has chosen to do so. 1111) and al-Razi (d.) 26 See Ramadan.
p. p. 37.. 81. Western Muslims and the Future of Islam (New York: Oxford University Press. 11. To Be a European Muslim. p. Ibid. p. Ibid. Emphasis added. 34. 45-6 and 120. the West and the Challenges of Modernity (Leicester.” (p. p. p. p. 31. 50. inductive reading of revelation reveals God’s consistent concern with human welfare. See also similar comments on pp. the West and the Challenges of Modernity... p. 35 36 37 p. Islam. p. 99. including Hasan al- Banna and Sayyid Qutb. 32. 17-8.. 13. p. suitably clarified. 40 Ramadan. Tariq Ramadan. 38- 41 43) he notes that. 77 and 81. Ibid.. At the end of his very conventional discussion of the meaning of maslaha and the maqasid (ibid. 44 39 . 171-2. UK: The Islamic Foundation.. 14. 39 48. Islam. Ibid. 43 Ramadan.) 42 Such might be said to be the project of a number of 20th century Islamist activists. p. 21. Ibid. 113. Emphasis in original. See also similar comments on pp. See also similar comments on pp. 93. insofar as they were less interested in reforming a traditionalist shari‘a vision than in showing how that vision was appropriate and attractive for a post-colonial Muslim landscape.. Ramadan. 34 Ibid.. They must try – by carrying out a deep. 43. and detailed study – to provide the Muslim community with new rational judgments guided by Revelation. thorough. 54 Ramadan. 30 Ramadan. p.for legal reasoning) because a comprehensive. 308. 31 32 33 2001). 77. 38 Ibid. pp. Western Muslims and the Future of Islam. Western Muslims and the Future of Islam. 13. the concept of maslaha “requires that the ulama constantly refer back to the sources so that they are able to formulate judgments in conformity with the revealed Message. 2004). even when there is no specifically relevant text.
138. We have therefore reached the limits of the prospects opened by the distinction between shari‘a and fiqh in contemporary Islamic legal thought. 3-4. Ibid.” (p.. p. enabling Muslims to adapt to new realities while preserving a minimum level of ethics. Ibid. 2009). 112. pp.. Emphasis added. p. 127. 138-41. 123-4) 58 Ibid. p. we may include the theme of “two Books” as one of the concepts mediating his turn to a post-legal ethics.” (pp. However.. chaotically. The idea of “two Books” was present in Ramadan’s earlier works as well. p.. p. Western Muslims and the Future of Islam. p. Ibid. See also similar remarks where he decries the “great 47 48 49 temptation to use these notions [of maslaha and ijtihad] incoherently. Emphasis added. The previous two paragraphs are taken from ibid. 51.. 2. 52) 50 Tariq Ramadan. 51 Ibid. He makes similar comments later in respect to the superficial rejection of democratic forms on the part of Islamists. p. Ibid. p. in this way. 4. Ibid. or only selectively. 46. Ibid.45 Islam. 136. 50.. (pp. 112. “necessity” 55 56 57 (darura) and “need” (haja) “convey the idea that the fuqaha’ [jurists] are compelled – under the pressure of reality – to decree fatawa. p. p. A chart presenting the entire framework is 59 60 found on p. 40 . p. Ibid. 54 Ibid. 143. Radical Reform: Islamic Ethics and Liberation (New York: Oxford University Press.. p. 136. pp. the West and the Challenges of Modernity. See similar remarks on p... he was 52 53 much more reticent about the possibility of reflection into the laws of the Universe and “context” serving as a co-equal source of normativity to the Qur’an. He writes later that the traditional categories of the theory of the maqasid. p.... However. 35. See also his This Ibid.. 47. 111. 86-7) 46 Ibid. 127. without fully grasping the whole philosophical legal corpus. p.
61 Ibid. This point is made convincingly by Jodi Dean in Žižek’s Politics (New York: Routledge. Ibid... 140. Ibid. Emphasis added. 41 . 131. p. p. 139. 111- 62 63 64 3. pp. p.. 2006).