Many Muslim feminists have argued that at the core of Islam lies a gender-neutral belief system that has been obscured by a centuries-long tradition of male-dominated interpretation. Although this gender-neutral system of belief had been almost entirely suppressed by the ruling Islamic discourses, according to Leila Ahmed, marginalized discourses such as Sufism and the antinomian Carmathians were able to preserve Islam's message of the ethical equality of men and women. Amina Wadud-Muhsin argues that the traditional verse-by-verse method of Qurʾanic exegesis, along with its domination by male practitioners, marginalized female experiences in understanding revelation. In her view, these two factors ultimately led to the suppression of the Qurʾan's message of gender equality. Fatima Mernissi, in The Veil and the Male Elite, instead argues that the religious scholars of Islam, because of their fear of subjectivity, were content with a purely empirical science of religion—a methodology that left the door wide open to the manipulation of revelation through interpretation. Unlike Ahmed, however, she recognizes that even within the dominant discourse of the Sunni scholars, not all spoke of women in the same monotonously misogynistic voice.
The study of the relationship between ijtihād and Taqlīd has been dominated by an approach that privileges ijtihād over Taqlīd on the assumption that the former is an intellectually superior mode of legal reasoning. By analyzing the role of Taqlīd in regulating the actions of muftīs and judges as discussed by post-6th/12th century jurists of the Mālikī school, I conclude that Taqlīd resulted from the desire to have uniform rules rather than as a result of intellectual stagnation. While ijtihād was individualistic and solipsistic, Taqlīd was the result of group interpretation that provided an objective basis upon which legal decisions and legal rulings could be described as being either substantively correct or incorrect. Viewed in this light, Taqlīd was originally a desire to limit the discretionary power of legal officials, especially those at the bottom of the legal hierarchy. The desire to possess uniform rules found its logical outcome in the legal genre of the mukhtaṣar as it emerged in the 7th/13th century. The mukhtaṣar functioned as the authoritative collection of a legal school's doctrine, and, for that reason, I argue that Islamic law in the age of mukhtaṣars is best understood as a codified Common Law.
The events of September 11, 2001 and the subsequent declaration of an open-ended “war on terror” have given a new urgency to long-standing discussions of the relationship of Islam to liberalism. In order to avoid the polemics that characterize much of the writing in the “Islam/Liberalism” genre, this Article proposes to use the framework set forth in John Rawls’ Political Liberalism to examine the grounds on which Muslim citizens of a liberal state could participate in a Rawlsian overlapping consensus. An overlapping consensus according to Rawls arises among citizens in a politically liberal state when they - despite holding incompatible theories of the good - each endorse the constitutional essentials of a politically liberal state for reasons within their own comprehensive religious or philosophical doctrines. This Article argues that the basis on which orthodox Muslims can participate in such an overlapping consensus can be found in Islamic theology and ethics. Because theology and ethics comprise the fundamental commitments of orthodox Islam, the political commitments set forth in Islamic substantive law which are inconsistent with constitutional essentials must be interpreted in light of those commitments. After describing orthodox Islam’s theological and ethical commitments to rational theological and moral inquiry, the Article argues that such commitments implicitly require political institutions that allow free theological and ethical inquiry. The Article illustrates this aspect of Islam by describing the development of a system of intra-Muslim normative pluralism in which the existence of conflicting ethical judgments was accepted as a legitimate and inevitable product of moral reasoning. The existence of normative pluralism in the realm of ethics, in turn, made the project of a legal system derived entirely from revelation an epistemological impossibility. The result was that Islamic substantive law was forced to adopt non-theological modes of justification. The Article argues that, in the course of so doing, Muslim jurists made appeals to what Rawls would deem to be public reason. The Article concludes with a series of examples from Islamic substantive law that illustrate the ways in which the pre-modern Islamic legal system represents a qualified form of public reason, consistent with the public culture of a liberal democracy.
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