The Islamic Tradition and the Human Rights Discourse
81 W. Hallaq, Sharia: Theory, Practice, Transformations (New York: Cambridge University Press, 2009) 82 The term "sharia" is often (mis)translated as Islamic law. This translation is problematic in many ways. Importantly, as Hallaq argues, "the very use of the word law is a priori problematic; to use it is to project, if not superimpose, on the legal culture of Islam notions saturated with the conceptual specificity of nation state law, a punitive law that, when compared to Islam's jural forms, lacks (note the reversal) the same determinant moral imperative" (see Hallaq, Sharia, 2) 83 The term "modernity," with its twin terms "modernization," "modern," etc. are admittedly problematic and mean different things for different scholars. In this paper, I use the term to designate the ensemble of technologies and institutional organization that originated through the (uneven) interaction between Europe and its colonies, particularly in the nineteenth century. For the purpose of this paper, the most important material manifestation of modernity is the modern state. 84 While reflecting mainstream views in the Shafi'i legal school (one of the four main Sunni legal schools) the paper relies primarily on the works of the late medieval Egyptian jurist Ibrahim al Bajuri (1786 1861) In the words of Spevack, he was an "archetypal scholar," a learned Shafi'i jurist, Ash'ari theologian, and Naqshbandi Sufi of an authoritative voice within Sunni Islam's discursive tradition. As such, his life and works were "normative, exemplifying what many of the major premodern Sunni scholars and institutions stood for." Further, al Bajuri was Shaykh al Azhar from 1847 until his death in 1861. His works (mostly commentaries on works of earlier scholars, written between 1807 and 1822) outlived those of his contemporaries, "especially in Shafi'i fiqh and Ash'ari Usul al din." His magnum opus, the 1842 Hashiya 'ala sharh ibn al Qasim al Ghazzi 'ala matn Abi Shuja' (A gloss on Ibn al Qasim al Ghazzi's commentary on Abu Shuja's text) was written at the cusp of the modern era, at a time when traditional schools of fiqh and theology were still "taken as the norm, before major reformist tendencies had spread to the degree that they did shortly thereafter." In many ways, it is the seal of the traditional genre of fiqh manuals, and was followed only by the likes of Abduh and al Afghani challenging this entrenched tradition to its core at a time when its very unity was dismembered. In his manual, al Bajuri operates "within a connected tradition whose pedagogy dictates that one study and be firmly rooted in the tradition, yet also offer a service to his contemporaries by clarifying, or in some cases, challenging, the works of previous authors." His is therefore not merely a voice within the tradition, but rather a highly authoritative one. See A. Spevack, The Archetypal Sunni Scholar: Law, Theology and Mysticism in the Synthesis of al Bajuri, PhD Dissertation, Boston University, 2008. While al Bajuri's Hashiya serves as the primary legal reference for this short paper, it is supplemented by other (and earlier) legal works, from the Shafi'i and other legal schools, to fill in theoretical gaps whenever necessary. Notably, however, the exclusive focus of this paper is the fuqaha's conception of rights, which is only one (albeit an important one) of Islam's discourses. A somewhat different conception could be traced through Sufi discourses. Ibrahim El Houdaiby