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'

Islamic Law & Society, 2011

64 Pages Posted: 22 Nov 2010 Last revised: 25 Dec 2010

Mohammad Fadel

University of Toronto - Faculty of Law

Date Written: November 21, 2010

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.

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

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: https://ssrn.com/abstract=1712968

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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