To Most Likely Know the Law: Objectivity, Authority and Interpretation in Islamic Law

This study focuses on the implications of interpretation on the objectivity and authority of Islamic law. Premodern Muslim jurists developed a jurisprudence of Shari‘a that acknowledged the inevitability of interpreting in the law. This should not be surprising if we assume legal systems generally require a degree of interpretive agency. The question for premodern Muslim jurists, though, was how to legitimate interpretive agency and offer standards of evaluation. As will be shown, Islamic jurists theorized about the authority of each interpretation in a system whose ultimate authority rests on a theological commitment to God as sovereign. The issues of objectivity and authority in the law are hardly unique to the Islamic legal tradition. Indeed, if there is a distinct contribution that this study offers, in addition to explicating the various Islamic legal theories, it is that however a legal system’s sovereign is understood, similar questions about objectivity and authority will arise in legal systems. Whether the sovereign is God or the state, the issue of interpretation remains of central concern. The ways in which both religious and secular legal scholars problematize objectivity and interpretation, I suggest, is not so different as to render “religious” legal systems different in kind to other systems

Beyond the Protestantism of Political Theology: The Politics of Theological Voluntarism

In an attempt to think through the Islamic alongside the Christian, this essay draws upon the political theology of Carl Schmitt to reflect on the salience of sovereignty. But in doing so, the essay re-reads Schmitt’s political theology for its protestant voluntarism, and adopts a more robust theological voluntarism as a vehicle for reflecting on political thought across both Christian and Islamic history. Moreover, this approach to political theology makes possible reflections on how political theology, whether in Christian or Islamic thought, may offer a critical lens by which to gain new analytic insights into the operation of sovereignty in presumably secularized regimes of thought, such as international law

The Future of Theological Ethics: Returning the Gaze

This article offers an Islamic legal perspective on the question posed by this symposium issue, namely the future of theological ethics. Concerned that abstract statements of value all too often play into an apologetics that hides more than it reveals, the article offers a paradigm that makes two specific contributions to the question of this symposium in a context of increasing tension over religious diversity in Europe and North America. First, it adopts a context-rich form of ethical engagement that weaves together commitments to theology and to our place in the world. Second, it provides a model by which to interrogate the assumptions and even the secular apologetics that arise in legal disputes involving contests about religion and the public sphere

he Paradox of Equality and the Politics of Difference: Gender Equality, Islamic Law, and the Modern Muslim State

This paper approaches the issue of gender equality in Islamic law by reference to the paradox of equality. The paradox of equality accounts for the fact that, at times, justice requires a legal differentiation between two people, such that to treat them equally would be unjust. This begs a question about how to determine which factual differences are relevant for legal differentiation, as opposed to those factual differences where legal differentiation is tantamount to discrimination. As this paper suggests, to view gender equality through the lens of the paradox of equality offers a robust perspective on the strategies necessary to push forward a gender reform agenda in the Muslim world

On Sovereignties in Islamic Legal History

The concept of sovereignty has posed important challenges in the ongoing debates and discourses on Islam and international law. This essay illustrates how sovereignty reflects competing ideas about legitimate authority by examining and exploring distinct debates in Islamic thought, all of which share a concern about the nature, scope, and contours of legitimacy and authority. This article does not offer a prescriptive argument for a robust notion of sovereignty in Islam, nor does it attempt to judge the Islamic past pursuant to contemporary strands of political theory. Rather, it explores various strands of historical Islamic intellectual debate that traverse the realms of theology, law and politics in order to reflect on the conditions of different sovereignties and their relationship to one anothe

Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation

Starting with an analysis of the rhetoric surrounding the Sharia arbitration debate in Ontario, Canada, this paper argues that the underlying concept of Sharia dominant in the debates was one of code-like inflexibility. This concept of law, however, has a historico-political provenance stemming from the colonial period. Certainly Sharia law by the 18th century had developed a considerable amount of precedent. But that precedent was mediated through institutions. With the dismantling of institutions of Islamic legal learning and adjudication during the colonial period, Sharia became an abstract body of doctrines disconnected from a historical or institutional context. The conception of Sharia as an abstract body of values has led to a transformation of its meaning, from being a rule of law tradition to a system of rules that provide over-determined anchors for political contests over identity. To suggest an alternative approach to finding a place for Islamic law in multicultural liberal societies, this paper suggests that governments and the private sector contribute to a Muslim civil society sector focused on resolving disputes for Muslims in those areas that the state will allow parties to privately redress their conflicts. Civil society can be used as a platform to empower competing voices within the Muslim community, undermine conceptions of absolutism, and ultimately provide the Muslim consumer with a choice