In this weeks readings I was hit with a flurry of phrases and words such as “it therefore cannot be easily subsumed under already established shari’a rulings”, “usually”, “could”, and “such cases should be judged individually” which leaves me in an interesting position as to whether I would be able to find a jurist that could legitimize bacon (Rutten,2,7,13). In order to form an opinion I will start with that which the Qur’an deals with ambiguously and what it clearly defines.
The cause for much ambiguity is the ijtihad that allows for multiple schools of Islam to disagree on the fundamentals of an argument such as whether a foetus receives its soul within 40 or 120 days. This distinction decides when an abortion will be allowed or not. This opens up the door for subjective concepts such as allowing females to vote “when the loss of benefits is greater than the potential evil” or justifying almost any medical procedure because “necessities render the prohibited permitted” (Krawietz, 6 and Stowasser, 112). This means that the current law is simply a matter of who was able to utilize the legal maxims to their best ability within the generally accepted framework of Islamic law. Krawietz uses the example of sex change surgery to show “how far the Islamic legal concept of necessity and need reaches” (19).
Yet there is an issue with this approach when one encounters the absolute values as clearly stated in the Qur’an such as the need for prayer. There are numerous passages that clearly and unambiguously designate certain practices as completely off the table and classical jurisprudence takes these as the unshakable foundations of faith. Yet through modernist thoughts we see that many decide to take a step back and try understand what the Qur’an really demands that we do. Using Rahman’s “double movement” technique it becomes much easier to find a pattern in historical text that leads to the desired outcome (just like going from polytheism to monotheism to atheism as discussed in class). Yet it is still difficult to remove pork from the forbidden list which is why we can analyse al-Qaradawi’s approach that such a “tradition cannot be generalized because it has historical, not normative, significance” (Stowasser, 113). Historicizing the Quran provides probably the most effective way to adapt it to modern times and thus is probably the best way to allow a jurist to reach any conclusion.
Barbara Stowasser, Old Shaykhs, Young Women, and the Internet: The Rewriting of Women’s Political Rights in Islam, Georgetown University, Washington DC 2001
Susan Rotten, Recht van de Islam, RIMO Maastricht 1999