limit 4

Muhammad Shahrur and the Hermeneutics of Synthesis: Popularizing the "Theory of Limits."

I will not attempt a comprehensive review of the epistemologies of modernist thinkers in Islam. Hallaq has already done so, dividing them into two broad groups, the "utilitarians" and the "liberals."

In brief, the utilitarian tendency couches its theory chiefly in terms of public interest (maslaha) and necessity (dharura). These two concepts, already present in classical legal theory and particularly in the oeuvres of the Imams Shatibi and Tufi are appropriated by Islamic utilitarianism and their scope expanded, resulting in an essentially humanist law that often lacks coherence and consistency and retains only tenuous links to the sacred texts. Among the utilitarians, Hallaq covers the thought of ‘Abduh, Rida, Khallaf, al-Fasi and al-Turabi. Hallaq’s critical evaluation of this tendency is that it lacks a clear methodology and resorts to "mere juristic devices"

which amount to "nothing short of subjectivism." Concepts of public interest and necessity are spoken of "without a methodology that can control the premises, conclusions and the lines of reasoning these concepts require."

The second tendency, that of Islamic liberalism, is characterized by its understanding of revelation "as both text and context." It does not base its arguments on utilitarian concepts like public interest, but rather insists that interpretation of texts must consider "the spirit and broad intention behind the specific language of texts", since the connection between the text and modern society does not turn "upon a literalist hermeneutic" that ignores contexts.Among the liberals Hallaq covers ‘Ashmawi, Rahman and Shahrur, whose theory we intend to introduce here.

The key elements of Shahrur’s theory, is as far as I understand it, are the following. The Qur’an is God’s speech revealed to the prophet but addressed to all mankind in every generation; it is a "Remembrance" (dhikr), which God has taken upon himself to preserve (Q 15:9). What this means is that every generation must interpret the Qur’an in a manner that makes it relevant to its circumstances and we are not bound by the understanding of other (previous) generations. Their understanding was correct for their own time but we must arrive at an understanding that is relevant to our own lived reality. The preservation of the "Remembrance" makes it our property as much as that of earlier generations and confers upon us the right to interpret it based on our own reality.

The second key element of the theory is the dual concept of "curvature" (hanifiyya) and straightness (istiqama). Man is by nature crooked (non-linear) and so is the world and all nature. God sends down a guidance that checks that curvature and confers straightness upon it, and this guidance, this straight path (as-sirat al-mustaqim) is God’s law. God sets boundaries within which man may operate through the Qur’an and Sunnah. These limits, or hudud, represent boundaries, as in a football field, between which man may operate in his crookedness but which may not be breached. Neither upper nor lower limits nor other boundaries may be crossed without breaking the law and thus warranting proportionate penalties.

Shahrur applies his theory to a number of instances in Muslim law and some of the examples are directly relevant to human rights law and some of the injunctions under discussion. I will restrict myself to these, referring the reader to Hallaq for a more detailed discussion.

Shahrur considers the verse in the Qur’an (5:38) "as for the thief, male and female, cut off their hands" and considers this verse to be an upper limit standing alone. Here the stipulated penalty is an upper limit that may not be exceeded. In other words amputation is the maximum penalty for theft and it is for every generation to define the nature and magnitude of theft that calls for this maximum penalty. Shahrur’s theory therefore leads to conclusions that are the opposite of An-Na’im’s. Whereas An-Na’im would have the Muslim world drop the limit of amputation from its statutes as "cruel and inhuman", Shahrur would retain it as a maximum punishment subject to proportionality. In Nigeria, for instance, given the magnitude of theft in financial crimes and the danger to the economy and the reputation of Nigerians world wide, a law that provides for amputation of crooks involved in this kind of theft beyond a specified magnitude and under strictly defined criteria as to their personal circumstances and the circumstances of the crime would not be cruel. Amputation is one possible punishment for theft, certainly the maximum and the society may choose not to invoke the maximum penalty for reasons of, say, general poverty. However, where it is inflicted there should be proportionality so that those who commit the same offence with more gravity are not given a more lenient penalty than petty thieves. In my view this position addresses the concerns of Muslim critics of the manner of shari’ah implementation and represents a more just and proportionate interpretation of the law which remains faithful to the text.

A second example in criminal law has to do with the verse of the punishment for zina or illicit intercourse. Here God commands (Q 24:2) that "the adulterer and the adulteress, scourge ye each one of them with a hundred lashes". This is a maximum limit. But then God follows up immediately in the same verse with the words "let not pity for the twin withhold you from obedience to God" and thus makes this limit at the same time a minimum. In this case there is no option to 100 lashes, it is a maximum and a minimum. As for whether it is cruel, I have already responded to that earlier.

The third example of relevance to this discussion is inheritance. The general tenor of the verse (Q4:11) is that the male receives "the equivalent of the portion of two females." Shahrur here argues that what we have is a determination of the Upper limit for men and the Lower Limit for women, irrespective of whether the woman was a bread-winner. Where a son and a daughter are, for example, the only ones inheriting the estate, the woman must never be given less than 33.3% and the man never more than 66.6%. Should society, given its objective conditions at a particular time, choose to give the daughter 40% and the man 60% or share the estate equally for example, it would be moving freely in the range set by these limits. What it may not do is give the daughter less than half the son’s share or, which is the same thing, give the son more than twice the daughter’s share.

On polygamy, Shahrur examines closely the verse (Q4:3) "And if ye fear that ye will not deal fairly with the orphans, marry of the women who seem good to you, two, three or four. And if you fear that you will not deal justly then one only…" Here, according to him, there are two types of limits, qualitative and quantitative. The quantitative limits have always been clear: a permissible lower limit of one wife and an upper limit of four that may not be breached. The "qualitative limit" is deduced from the text and context, because the entire discussion is held in the context of orphans, who are children that have lost their fathers and are in need of care. God here permits, after one wife, that a Muslim marry a woman who has lost her husband and take care of her and her orphan children, treating them fairly by dealing with them as he would with his own biological children. Shahrur therefore sees polygamy in this context as a noble practice that provides a home and care for orphans and preserves not just the permissibility of the practice but the logic of its link with the care of orphans. On this reading the "justice" commanded is not between wives but between orphan children and the children of the house, such that those who interpret another verse declaring the impossibility of justice among wives as prohibiting polygamy are mistaken. Several other examples can be drawn but these suffice.

Shahrur’s theory is likely to be controversial mainly because it leads to a reading of the law that is radical and unprecedented. But it has the advantage of constituting a coherent theory that can underlie a new hermeneutic of the Qur’an. The theory holds potentials for new and more flexible interpretations of the text that are adaptable to societies in different contexts, all within clearly defined boundaries. It shows the shari’ah as capable of accommodating change without capitulating to the demands of western society, and upholds the virtues of the law and its own internal logic, which stand to scrutiny. In doing this, the Muslim world produces scholarship that is not apologetic and subservient, but which, at the same time, is not inflexible and irrelevant to the needs of modern societies. It is this type of theorization that needs to be encouraged as part of the process of producing new epistemological frameworks that hold the potential for synthesis. Human Rights activists should look in this direction.

Conclusion

I started this paper by stating the two principal theses I intended to propound. The first is that liberty, as understood in contemporary western thought, is only attainable within the context of an independent polity. The question of the Human Rights of Muslim people is therefore best addressed at the level of the political, by dismantling the monarchical and dictatorial structures propped up by western powers and giving the people the freedom and independence to act in their own, as opposed to foreign interests. Islamic law, or rather the particular interpretations of Islamic Law that are applied in these societies, are but one out of a battery of discourses-political, social, cultural, mythological, historical-that are produced by the discursive formation and that complement, legitimate and reinforce its basic structures. It is the structure, and not the super-structure, that must be attacked and dismantled to pave the way for new interpretations and more egalitarian discourses.

The second thesis is that in view of the intricate link between law and the social, any attempt to reinterpret Islamic law must be based on a new hermeneutic that, instead of attacking Islam and seeking the abandonment of its teachings, provides a different way of examining the text and drawing conclusions consistent with progressive discourses. In other words the success of any reform of the shari’ah is dependent entirely on its authenticity, viewed primarily as belief in and loyalty to the theoretical constants of the law, with the Qur’an and authentic traditions as a minimum. It is my view that Human Rights scholarship has failed in this regard, particularly in respect of the complicated questions of penalties, inheritance and polygyny

I have tried to articulate these theses and in the process covered a range from western political thought, to a criticism of human rights theories and finally to Islamic legal theory and epistemology. I concluded by introducing Shahrur’s "Theory of Limits" , showing how he has proposed a controversial, but brilliant approach that permits reinterpretations of Qur’anic verses that seemed hitherto completely fixed and not brooking of new perspectives.

I am certain that Shahrur’s theory is not perfect, and will go through debate and refinement. It is also possible that other scholars will come up with competing hermeneutics. The point made is that a new hermeneutic is indeed possible, but it requires academic rigour and an affiliation to Islam. Only then can Human Rights scholars succeed in finding the much-needed synthesis between Islam and the principles of Human Rights which they seek to defend and promote.