Natural Law and Natural Rights in Islamic Law

Emon, Anver M.

doi:10.2307/4144668

Cited by 53 publications

(3 citation statements)

References 7 publications

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“…However, more recent studies have challenged this view and believe that there can be found elements that may be linked to natural law, giving reason a role as an authority independent of revelation when thinking about the law (Emon, 2005(Emon, , 2010.…”

Section: Natural Law Human Law and Divine Law In The Sharīʿamentioning

confidence: 99%

Routledge Handbook of Religious Laws

Bottoni¹,

Ferrari²

2019

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While the classical jurisprudence (fiqh) of Islamic law speaks of 'four sources' to the Sharīʿa, there are actually only two that refer directly to divine revelation: the Qurʾān which was revealed to the prophet Muḥammad, and the Prophet's statements and acts, his sunna, collected and transmitted in a body of normative stories and anecdotes called the ḥadīth, or 'Prophetic traditions' (Kamali, 1991: 14-228; Vikør, 2005: 31-88). The Prophet had no supernatural attributes according to standard theology (the Sufī mystics would disagree), so there is an issue why his statements beyond those that transmit the Qurʾān also represent a divine revelation. One explanation is to claim that the Prophet, being the exemplary human, is infallible: he cannot say anything that is not correct. However, most views of the Prophet would restrict his attribute to being free of sin (maʿṣūm), which preserves him from a conscious lie but not from being honestly mistaken. Many ḥadīth stress his human side, providing statements of the type, 'when I speak as a Prophet, you must follow my example, but I have my own likes and dislikes as a man, and you need not follow me in that' (Muslim, 'Ṣaid', 7). Clearly, such stories are responses to claims that everything the Prophet said and did was indeed normative and represented divine will. A more pragmatic explanation is that divine revelation was continuous throughout the Prophet's life. So, if the Prophet had inadvertently made a mistake, God would correct him in a later revelation. In the absence of such a correction, the Prophet's statement must thus reflect God's will. However, neither the Qurʾān nor the ḥadīth are limpid sources but in contrasting ways. The text of the Qurʾān is not disputed by Muslims but is not always directly understandable, and only a small fraction of its verses refer to what may be

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Section: Natural Law Human Law and Divine Law In The Sharīʿamentioning

confidence: 99%

Routledge Handbook of Religious Laws

Bottoni¹,

Ferrari²

2019

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“…His response was to highlight five overarching moral values – maqasid – to which the shari’a was dedicated, which should thence guide ethico-legal decisions: these were the protection of faith ( din ), life ( nafs ), reason (‘ aql ), lineage ( nasl ) and property ( mal ). Al-Ghazali regarded these as manifestly beneficial, hence their application as the exercise of maslaha , but in the limited sense of being the proper ends of Revelation rather than the “public good” (Sachedina, 2009: 50; Emon, 2004). It was left to the fourteenth-century Andalusian jurist al-Shatibi to develop the concept as the pursuit of public welfare, as something that the Revelation itself was committed to, and which should inspire humans in their social interaction ( muamalat ) no less than in their religious duties ( ibadat ).…”

Section: Principlism Shari’a and Maslahamentioning

confidence: 99%

“…Clearly, the demands of modern human rights, built around autonomy, must fit into a weighing of the “good” (An-Na’im, 1990; Ramadan, 2009). Indeed, one recalls that al-Ghazali rejected the use of torture even where its results might serve the public interest, because of the competing interest in not injuring an individual who might turn out to be innocent (Emon, 2004: 374–375). In this vein, there is much to be said for a recent exercise in applying Jewish ethics to contemporary problems of abortion, capital punishment, the environment, homosexuality and gender (Friedman and Dolansky, 2011).…”

Section: Legacy and Prospectmentioning

confidence: 99%

Negotiating Virtue

Sajoo

2014

Studies in Religion/Sciences Religieuses

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Principlist modes of reasoning in bioethics – with autonomy at the core – resonate strongly with a legalism that dominates Muslim ethics, including the understanding of the shari’a. From abortion and organ donation/transplant to end-of-life decisions, both secular and Muslim bioethics generally apply “cardinal” principles in ways felt to be relatively objective and certain, though they may produce different outcomes. This article builds on recent critiques, notably that of virtue ethics, in drawing attention to the cost in sensitivity to context and the individual. The Aristotelian basis of virtue ethics has a venerable place in Islamic traditions – as does maslaha, the public good, which has long played a critical role in tempering formalism in the shari’a. In conjunction with the agent- and context-centred reasoning of virtue ethics, maslaha can contribute vitally to negotiating competing bioethical claims. It is also more inclusive than principlist legalism, given the latter’s traditionalist and patriarchal moorings. The shift is urgent amid the growing interface of religious and secular approaches to problems raised by biomedical technologies, and to biosocial issues such as female genital mutilation (FGM) and honour killings.

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