Sociological, Philosophical, and Legal Considerations of Shariah as the Rule of Law in Islam

“Sociological, Philosophical, and Legal Considerations of Shariah as the Rule of Law in Islam”

by Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
4323 Rosedale Ave.
Bethesda, MD 20814
1-301-907-0947
ahmad@minaret.org

paper presented on March 1, 2013 to
the Istanbul Network Conference on
Islam and the Institutions of a Free Society
Held in Islamabad, Pakistan
February 28th to March 3rd, 2013

ABSTRACT

I explore the compatibility of the idea of Shariah with the classical liberal conception of liberty by considering sociological, philosophical, and legal aspects of both concepts. Some contemporary Muslims depart from the historical norm by equating the Shariah with a fixed set of regulations handed down from the past. I contend that the Shariah is an idealized notion of Islamic law to which Muslims appealed to solve problems after they occurred, and solved those problems through a practical application of a strong ‘rule of law’ ethos, logically related to the higher purposes of the law (maqâsid-ash-sharî`a), and methodologically grounded in an evolved legal procedure. Traditionally, appeal to Shariah was functional, a way to deal with practical questions as they arise or to resolve differences of opinion over seemingly contradictory fatwas. Thus, both the Western notion of natural rights and the Islamic notion of the maqâsid-ash-sharî`a aim at an intuitive ideal of justice. I conclude that notwithstanding specific disparities between Muslim fiqh and Western jurisprudence, Shariah is fully compatible with liberty.

Read the full paper at: http://minaret.org/islamabad.pdf.

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