Friday, December 3, 2010

Fadel, Is Historicism a Viable Strategy for Islamic Law Reform?

Mohammad Fadel, University of Toronto - Faculty of Law, has posted a new paper, Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them'.  Here's the abstract:
There are at least two kinds of historicism that are relevant to Islamic legal reform, one rooted in a progressive theory of history, the other rooted in history as a source for textual interpretation. The latter has the potential to garner greater support for progressive legal change insofar as it falls squarely within the well-known jurisprudential concept known as takhṣīs al-ʿāmm (specification of the general term). In this article, I explore this reform strategy by analyzing a well-known Prophetic ḥadīth that is traditionally understood as excluding women from holding political office. By exploring literary history, Islamic legal hermeneutics, and substantive Islamic law, I demonstrate that, in this particular case, substantial egalitarian reform can be justified without fundamental changes to traditional Islamic theological doctrines. While no one rhetorical strategy offers a “magic bullet” for creating a more gender-egalitarian version of Islamic law, in my view, progressive Muslim reformers should exhaust possibilities for reform implicit in traditional methods before introducing arguments outside of that tradition - arguments which, by their nature, raise controversial theological questions that may be more intractable than the legal rules that are the object of the desired reform.

1 comment:

Timothy Lubin said...

Islamic jurisprudential principles provide a striking analogy with the sort of reasoning that underlies Anglo-American and Continental legal interpretation. For example, the debate whether or not the Second Amendment recongizes a general right or a limited right turns on one's reading of the text: is it expressed as a generality (ṣiyagh al-ʿumūm) or is some specification (takhṣīṣ al-ʿāmm) to be understood?

Fadel's case study of Islamic legal debates is a good point of access to this question and its broader implications for progressive-minded Muslim jurists. He doesn't point explicitly to analogies with other legal systems, but they are not hard to see.

One point of confusion arises from Fadel's apparent misuse of the word "androgyny." Its meaning in this context is never explained, but from context, and its juxtaposition with "misogyny" as its extreme form, one presumes that "androcentrism" is meant.