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Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them'


Mohammad Fadel


University of Toronto - Faculty of Law

November 21, 2010

Islamic Law & Society, 2011

Abstract:     
There are at least two kinds of historicism that are relevant to Islamic legal reform, one rooted in a progressive theory of history, the other rooted in history as a source for textual interpretation. The latter has the potential to garner greater support for progressive legal change insofar as it falls squarely within the well-known jurisprudential concept known as takhṣīs al-ʿāmm (specification of the general term). In this article, I explore this reform strategy by analyzing a well-known Prophetic ḥadīth that is traditionally understood as excluding women from holding political office. By exploring literary history, Islamic legal hermeneutics, and substantive Islamic law, I demonstrate that, in this particular case, substantial egalitarian reform can be justified without fundamental changes to traditional Islamic theological doctrines. While no one rhetorical strategy offers a “magic bullet” for creating a more gender-egalitarian version of Islamic law, in my view, progressive Muslim reformers should exhaust possibilities for reform implicit in traditional methods before introducing arguments outside of that tradition - arguments which, by their nature, raise controversial theological questions that may be more intractable than the legal rules that are the object of the desired reform.

Number of Pages in PDF File: 64

Keywords: egalitarianism, historicism, reform, progressive Islam, takhṣīṣ al-ʿāmm, women rulers, Abū Bakra, legal modernism, Bilqīs, ‘Ā’isha

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Date posted: November 22, 2010 ; Last revised: December 25, 2010

Suggested Citation

Fadel, Mohammad, Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them' (November 21, 2010). Islamic Law & Society, 2011. Available at SSRN: http://ssrn.com/abstract=1712968

Contact Information

Mohammad Fadel (Contact Author)
University of Toronto - Faculty of Law ( email )
78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
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