‘Ijtihad’ and ‘Relevance of Sharia’ to Contextualize Universal Human Rights Discourse
| DOI | http://doi.org/10.1111/1758-5899.12094 |
| Date | 01 November 2013 |
| Published date | 01 November 2013 |
| Author | Francesca M. Corrao |
‘Ijtihad’and ‘Relevance of Sharia’to
Contextualize Universal Human Rights
Discourse
Francesca M. Corrao
LUISS ‘Guido Carli’, Libera Universit
a Internazionale degli Studi Sociali, Rome
A response to ‘Human Rights, Universality and Sover-
eignty: the Irrelevance and Relevance of Sharia’(Abdul-
lahi An-Na’im
*
)
This article provides a useful paradigm to re-conceptu-
alize the debate on global justice in terms of a dialogue
between a universal notion of human rights and the par-
ticularity of Islamic societies. It shows that Sharia can be
adapted to modern societies, but also that, because
Muslims comply with a distinct source of moral justifica-
tion and plural sources of legality, this process can be
accepted by part of the Islamic community and refused
by another –or even rejected by one and the same
community.
As the author suggests, Sharia norms reflect an ongo-
ing process of interpretation of the Quran, which started
in the 8th and 9th centuries CE. Scholars developed a
methodology (usul al-fiqh) for the classification of sources
and the derivation of specific rules from general princi-
ples that did not change the basic structure of Sharia for
1000 years. Some aspects of the historical Sharia can
therefore be reconsidered through the application of a
similar process of interpersonal, unofficial reinterpreta-
tion, which is human and not sacred, of its norms in the
light of modernity. This clearly applies to those social
and political aspects of Sharia (muamalat) that can
change over time, without questioning matters of faith
(‘aqida) and worship practices (ibadat).
Afirst consideration concerns the role of the state and
the relationship between Sharia norms and state author-
ity. An-Na’im argues that the application of Sharia norms
in the settlement of disputes was voluntary and commu-
nity-based, in a context where Sharia norms and state
regulations were relatively independent of each other.
However, I would recall that Sharia was interpreted and
applied by independent scholars, in an age when states
did not comply with the model of a modern nation
state as they are today. Furthermore, in 20
th
century the
Sahykh of al-Azhar, Muhammad ‘Abdu emphasized the
necessity to open the gate to ‘ijtihad’, promoting a pro-
cess of reform and reinterpretation of Sharia in the light
of modernity. Among his several reforms, he gave an
interpretation of the Sharia that opened to the accep-
tance of a moderate use of interest (commonly consid-
ered forbidden), hence he made possible the creation of
the first modern Bank in the Islamic world, that allowed
and regulated interest charges on loans (forbidden by
the Quran) in a way that did not create a strong opposi-
tion.
In spite of this promising theoretical background, the
acceptance and implementation of the human rights
regime in Islamic societies is still controversial. One major
issue in both the conceptualization and the practice of
human rights in Islamic countries is surely related to the
tension between the alleged universal validity of these
standards and the limits of internal state sovereignty. For
the author this paradox may be avoided by educating
people to adhere to human rights values from within
their tradition. He proposes to reframe the notion of uni-
versality into a more fluid and dynamic conception that
incorporates the ‘contextual’and ‘particular’even while
accepting the moral universal validity of these rights.
The author proposes a peculiar strategy to reconcile or
‘mediate’between the context and the universal, which
configures a possible role of Sharia in the public dis-
course on legal norms. Sharia can be ‘irrelevant’to this
process when a specific Sharia norm is implemented by
the state as a legal obligation that is valid for all within
the state boundaries. Sharia norms enforced by the state
cease in fact to be religious in nature. On the other hand,
he argues that Sharia is ‘relevant’because it ‘influence(s)
the legitimacy and practical efficacy of the protection
and implementation of human rights norms in Islamic
societies and communities’. This perspective shows that
the religious doctrine can indeed change, as it did under
the Ottoman Empire and during the Nahda in the 20
th
century. Similarly, I believe that some elements can be
improved according to the urgency of a global and inclu-
sive framework of justice. The problem remains how to
*
An-Na’im, A. (2013) ‘Human Rights, Universality and Sovereignty: the
Irrelevance and Relevance of Sharia’, Global Policy, Vol. 4, No. 4, pp. 401–408.
DOI: 10.1111/1758-5899.12088
Global Policy (2013) 4:4 doi: 10.1111/1758-5899.12094 ©2013 University of Durham and John Wiley & Sons, Ltd.
Global Policy Volume 4 . Issue 4 . November 2013 409
Special Section Article
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