Towards Islamic Reform
Für eine Reform der Islamischen RechtsordnunG
Die Buchreihe zu der neuen Studie
Die neue Studie von Dr. Gabriel zeigt in überraschend einfacher und verständlicher Weise, dass das Konzept einer Reform des Islam, bzw. einer 'Erneuerung der Religion' tief im Koran und der korrecten Sunna verwurzelt ist. Die Scharia selbst erklärt, dass sie immer im Kontext der jeweiligen Zeit und Gegebenheiten verstanden werden muss und zum Wohl der Muslimischen Gemeinschaft auszulegen ist.
zunächst nur auf Englisch
Book 1 Reconciling Islamic Law With Human Rights
- A Summary of the Study
This book presents a summary of the study. It introduces the research topic and demonstrates that it is possible and legitimate to reconcile Islamic criminal law with internationally recognized human rights. It lays out how this can be achieved, and it presents the main findings of the research.
The research topic, introduced in this book, is the conflict of Islamic criminal law with international human rights laws, more specifically the set of crimes and punishments known as hudud ordinances. These include beheading by the sword for leaving Islam, stoning to death for adultery, public flogging for fornication and defamation, amputation of limbs for thievery, and crucifixion, beheading, amputation of limbs, or exile for the crime of haraba (fighting against Allah and His Messenger). International human rights laws ban such punishments. Orthodox Muslims, however, defend the practice of hudud ordinances, arguing that they are divinely assigned and therefore perfect, infallible, mandatory and immutable. This claim is based on a widespread failure to distinguish between Shariah and Islamic law.
This book presents the main arguments that prove why it is legitimate to reform hudud punishments. Moreover, it points out how this can be achieved.
Book 2 Shariah, Islamic Law, and the Role of Islamic Jurisprudence
This book explains why it is so important to question and reform Islamic criminal law, more specifically the hudud ordinances, and it demonstrates why it is fully legitimate to do so. The book clarifies the difference between Shariah and Islamic law and it outlines the crucial role of Islamic Jurists.
Shariah is introduced as referring to the divinely assigned rules and regulations recorded in the Qur'an and the correct Sunnah, while Islamic law includes additionally rulings developed by the Islamic jurists. Since these are based on human interpretations and opinions, they are not divine or infallible. The book explores the contradictions between the hudud prescriptions given by Shariah and those developed by Islamic jurisprudence. In doing so, the book refutes the claim that hudud ordinances are a fixed set of entirely divine — and thus infallible and non-negotiable — prescriptions.
The book demonstrates that it is legitimate and necessary to reconsider and re-interpret the prescriptions regarding hudud ordinances, since they do not correctly reflect the prescriptions of the Qur’an and the Sunnah as Shariah’s primary sources. It is with this in mind that the book draws the distinction between what can be considered as ‘divine elements’ and those that cannot be considered divine, since they are based on human opinion and understanding, and that can consequently be questioned. This will be the basis for the main part of the thesis, namely to question and re-interpret the elements that are in conflict with principles of human rights.
Book 3 The Conflict of Islamic World with Human Rights
This book reveals the inner struggle inside Islamic world over Islamic law and human rights. At the heart of the problem is that Islamic Criminal law, more specifically the cruel, inhuman and degrading hudud punishments violate human rights severely. Many conservative Muslims reject international human rights laws as a western invention, but claim that Islam provides protection of human rights. Many moderate Muslims blame Islamic jurisprudence for the part of Islamic law that violates human rights.his book.
The book discusses the question of the universality of human rights and the Islamic reservations preventing Muslim countries from bringing their national criminal law into line with international human rights laws. One of the main obstacles is a deep distrust of Muslims for the West in general. While orthodox Muslims usually reject international human rights laws as a western invention and deny their universality, they claim at the same time that human rights were observed by Islam well before the international human rights bodies were established. In doing so they refer to the Islamic concept of the five indispensables that protects religion, life, intellect, offspring and property. There is, in fact, a good common ground between the internationally protected human rights and the protection of human rights that can be found in the Qur'an and the correct Sunnah. Islamic jurists, however, have elevated the protection of religion at the expense of individual’s human rights. This is one of many reasons, why the role of Islamic jurisprudence is seen as very controversial and why many moderate scholars call to filter Islamic law in the light of the Qur'an.
Book 4 Hudud Ordinances according to the Four Sunni Schools of Jurisprudence
This book demonstrates that there are great differences and contradictions in the views and definitions regarding the hudud ordinances held by the different Islamic schools of thought. In parts they even contradict the Qur'an. This disproves the Islamic claim that hudud punishments are a divinely assigned and thus infallible and mandatory fixed set of punishments. This is a strong argument to refute the legitimacy of the cruel and inhuman hudud punishments practiced in many Muslim countries. Furthermore, it proves the necessity to question and reform Islamic criminal law.
The book discusses the hudud ordinances according to the four main Sunni schools of jurisprudence, namely the Hanafi, Maliki, Shafei and Hanbali schools. The first part of the book looks at the practical application of hudud ordinances in four representative Muslim countries that fully apply hudud ordinances countrywide, namely Saudi Arabia (Hanbali school of jurisprudence), Pakistan (Hanafi school), Sudan (Maliki school) and Brunei Darussalam (Shafei school). The focus is on their national criminal law and on international concerns regarding human rights violations in these countries.
The second and main part of the book discusses the legal prescriptions of hudud ordinances according to the four Sunni schools and investigates the different opinions and regulations concerning each crime’s definition — and the punishment and legal requirements needed for a suspect to be convicted. It begins by giving an overview of the differing numbers of hudud crimes held by the four Sunni schools and explains the main reasons that led to the differing views.
The argument presented in the book is that there are great differences and contradictions in the views and opinions held by the four schools, and that the notion of a divinely assigned and thus perfect and infallible fixed set of hudud ordinances can therefore hardly be maintained. The weaknesses and contradictions of the hudud prescriptions exposed in this book demonstrate the necessity to amend and reform them.
Book 5 The Islamic Call to Renew the Religion
This book demonstrates that the call for reforming Islam is not sign of a lack of loyalty to Islam, for reformation is an Islamic concept deeply rooted in the Qur'an and the Sunnah.
The book, further, introduces two crucial Islamic principles, that are intended to secure the main purpose of Shariah, namely to serve the benefit of the people and to prevent harm from them. It is argued that these two principles, the principles of reality and necessity, allow to avert the harsh and cruel hudud punishments, since they do not fit with the reality of life of the Muslim community in the twenty-first century and since they cause harm to the Muslim community.
The book demonstrates that the Islamic concept of reformation is deeply rooted in both the Qur'an and the Sunnah. The Qur'an introduces reformation as a call to Muslims to renew their faith and restore the religion to its genuine condition as designed by its creator in the first place. This includes a return to the core values of Islam. These include justice and equality, peace and harmony, forgiveness and mercy and the protection of life and property.
The book introduces religious texts of the Qur'an and Sunnah pertinent to the topic of reformation. A particular focus is on the famous Farewell Sermon of the Prophet that is a key text regarding reformation. In this sermon the Prophet urges his followers to keep and protect the afore-mentioned core values of Islam and he declares the Qur'an and the Sunnah to be the ultimate guidelines for Muslims. He points out that Muslims of today might be able to understand them even better than the Muslims of his own time. The sermon can be understood as a call to Muslims of all times, including those of today, to examine and verify for themselves what Shariah really teaches. A Muslim’s ultimate aim should therefore be to filter Islamic law in the light of the Qur'an and the Sunnah and, if necessary, to re-interpret them while taking their core values into account.
The book, further, discusses the notion of the purpose of Shariah (maqased al-Shariah), and introduces the principles of necessity and of reality (fiqh al-darurah and fiqh al-waqa). These allow for exceptions to what is prohibited, if these are necessary to secure the benefit of the people. It is due to these principles that Shariah is known to be flexible enough to suit at all times and in all environments.
The book critically discusses two main obstacles preventing Islamic jurists from amending hudud ordinances. The first of these derives from an interpretation of the notion of the five indispensables that elevates the protection of religion above the protection of the individuals’ rights. It is argued that this reading is incorrect, and that human efforts to protect the religion, in fact, violate Shariah. The second obstacle is the claim that hudud ordinances cannot be questioned since they concern the rights of Allah. This claim is also refuted in the book.
Book 6 A Model to Reform Islamic Criminal law
This book offers a model to reform hudud ordinances. It discusses the hudud ordinances individually, and develops suggestions for alternative hudud punishments that are compliant with international human rights laws while being fully loyal to Shariah.
Further, the book calls for a re-interpretation of the notion of the ‘protection of religion’, since it is its current reading that is responsible for some of the hudud punishments that severely violate human rights and that contradict some of the core teachings of Shariah
The first part of the book explains why hudud punishments need to be amended. Further, a widespread contemporary Muslim theory is introduced, according to which hudud ordinances can be applied in a perfect society only. Also discussed is the purpose of punishment, especially the aspect of deterrence that is considered by orthodox Muslims as the main aim of the hudud punishments. It is due to this understanding that the hudud punishments assigned by Islamic jurisprudence are so cruel and emphasize the use of torture.
The second part discusses the legal challenge in respect of amending hudud ordinances. The most important of these challenges derives from the understanding that hudud ordinances are part of what is known as ‘definite texts’ (nusus qataiyah) that are immutable and cannot be questioned. It is also shown that Shariah proves to be flexible enough to overcome this seemingly insurmountable obstacle, thanks to the principles of necessity and reality and the principle of doubt. Several examples are introduced from the Qur'an and the Sunnah that demonstrate that the Prophet and his companions and successors applied the aforementioned principles and suspended hudud punishments if this was necessary for the benefit of the people.
In the second part a re-reading of the five indispensables is suggested, more specifically a re-interpretation of the protection of religion, since it is its current interpretation that is responsible for some of the hudud punishments developed by Islamic jurists that severely violate human rights and contradict some of the core teachings of Shariah.
In the third and main part of the book the hudud ordinances are discussed individually, and suggestions for alternative punishments are developed in a religiously sensitive manner. For those hudud punishments that have been developed by Islamic jurists in the application of ijtihad, the book similarly uses ijtihad to develop suggestions for a re-interpretation. For the hudud crimes with punishments assigned in the Qur'an and thus considered as ‘definite’ prescriptions, the Islamic principle of reality and necessity (fiqh al-waqa, fiqh al-darurah) and the principle of doubt are applied to develop alternative punishments that are compatible with international human rights standards and that serve the fulfilment of the purpose of Shariah by securing the benefit of the people.