Theocrats Living under Secular Law: An External Engagement with Islamic Legal Theory

Abstract

Perhaps the most popular trend in contemporary Islamic legal and political thought is to view shari'a as embodied not primarily in specific rules nor in terms of a painstaking, thorough extraction of those rules from the revelatory texts according to the methods of classical legal theory (usul al-fiqh), but rather as defined in terms of the overall “purposes” (maqasid) for which God revealed the law. The theory of the “purposes of divine law” (maqasid al-shari'a), which I refer to as a form of “Complex Purposivism” in legal interpretation and argumentation, is often viewed as a panacea for modern reformers and pragmatists who want to establish Islamic legitimacy for new substantive moral, legal and political commitments in new socio-political conditions, because it allows Muslims to ask not whether a given norm has been expressly endorsed within the texts, but whether it is compatible with the deeper goods and interests which God wants to protect through the law. All maqasid theories posit that there are five universal necessary interests the protection of which the law prioritizes: life, religion, lineage, property and reason. For all of these interests, protection can involve both positive and negative liberties, as well as various forms of restrictions on other less fundamental acts. The purpose of this paper is to examine some treatments of the meaning and extension of the Islamic legal purpose (maqsad) of protecting religion (hifz al-din), with an eye towards Islamic legal theorists’ explicit or implicit encounter with modern liberal and secularist understandings of what it means to “protect religion.” Given existing gaps in the Islamic theoretical literature, I then conclude by suggesting what would be involved in arguing for the sufficiency of modern, liberal religious freedom from an Islamic juridical perspective.