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«A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Department of Theology and Religion School of Philosophy, ...»

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Given the difference in focus between al-Qaradawi’s adaptive reform and Ramadan’s transformative reform (the former on the religio-legal problems faced by Muslim minorities and the latter on a broader spectrum of issues that impact society as a whole), they each pose different questions and concerns. Although it is acknowledged that fiqh al-aqalliyyat has enabled Muslims scholars to address a plethora of highlycontextualized issues faced by Muslim minorities in the West, such as determining the duration of fasting for Muslims living in countries with protracted daylight hours in the summer, encouraging intercultural and interfaith dialogue and harmony, urging the Muslims to bolster their sense of national belonging, and allowing them to participate in

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adopt court-requested termination of marriage, and the like (Mas’ud, 2005; Ramadan, 2009), its one-sided compliance with the principles of necessity and hardship removal bespeaks its acceptance of being stuck in a perpetual loop of adaptation. In this sense, it almost seems like it suffers from the paradox of urging Muslims to rise from a deep slumber of acquiescence through a process that inadvertently encourages a defeatist stance. In addition to the lack of clarity regarding the formula by which al-Qaradawi defines a situation as “hard” and “needing to be judged with leniency”, any astute observer is compelled to question whether there is a practical limit to how far a jurist of fiqh al-aqalliyyat can go before stepping over the line of reformist adaptation into compromising the fundamental principles of Islam.

Meanwhile, transformation reform conveys the impression that it places the overarching, multifaceted issue of Islam in the West within an Islamic frame of reference, as evidenced by its objective of orienting the ways of the world in accordance with “Islamic” ethics that is derived from the parallel reading of the Revelation and the universe. Given the holistic nature of this reform, there exist the dangers of possibly depriving those who do not subscribe to its assumptions of their own particularities (e.g., their identities, thinking, beliefs, values, lifestyles, and traditions) and of conferring upon oneself the right to impose their particular beliefs on the ‘different’ others. One can certainly question the possible impact of establishing this Islamic ethical outlook as a universal standard on the idea of harmony in interfaith relations within the reformist discourse. Whether intended or not, this may ironically present itself as a subtle variation of ‘Islamizing’ the universe, the very issue that Ramadan’s transformation reform supposedly intends to avoid. Furthermore, the fact that transformation reform

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to ponder the probability of scientists allowing religious scholars to impose a limit on their established ethical standards that have comfortably led to their freewheeling technological progress and their own scientific definition of what is good and what is harmful for humankind. One may be tempted to further question how transformation reform intends to protect the autonomy of the sciences, considering its attempt to establish its proposed ethics and its position on issues of which the socio-political fabric of the West has largely come to be accepting (e.g., human cloning). Given the probability of disagreement between the two groups of experts, one is ultimately left speculating whether transformation reform can serve as a common ground on which both text scholars and context scholars can meet.

Having argued so, it is possible to alternatively see Ramadan as suggesting a set of Islamic principles that offer an ethical model to anyone who wishes to follow it without any form of imposition. In this alternative, he could be inviting dialogue between his proposals and others, with the aim of arriving at mutually agreed answers.

Nevertheless, Ramadan’s approach here is subject to the challenge of getting various groups that can be ideologically opposed to one another to meet on common ground to find ways to regulate human action and work towards the betterment of their shared society. Although this is arguably feasible in the context of problems that do not involve Islamic beliefs and ethics, the overarching issue of the conflict between the regulating function of religion and the liberal values of secularism remains stuck in a quagmire of uncertainties. Ramadan is indeed correct to state that Muslims are not legally obliged to accept that which is understood to be in opposition to Islam (e.g., the celebration of same-sex rights). However, one is naturally tempted to highlight that remaining neutral

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enjoin what is positive and forbid what is negative Islamically in society. If, in the case of this conflict, the key to productive dialogue is willingness to concede and accommodate each other’s views of interests, then one must question whether it is “religiously” acceptable for Muslims in the West to either withdraw from or concede to the demands of their secular culture. In the case above, it may be argued that the purpose of a “regulating” Islamic ethics is intended to be achieved mainly in the area of social and economic problems, such as poverty, crime, discrimination, and racism, where ‘partnerships with other organizations that work more widely in the same areas’ could be fostered ‘… so that a plural front can be established’ (Ramadan, 2004, p.154).





Understandably, it would be more strategic to begin with addressing issues of higher importance that already seem to hold a higher odds of generating an open and honest joint collaboration, such as the general welfare of the population, rather than frittering away on a cultural war that requires one to jump through indefinite hoops to bridge philosophical differences. In addition, it can be presumed that efforts to achieve cultural cohesion are likely to be hampered more by the absence of socio-economic and environmental security than that of religious harmony, particularly in secular contexts where religion borders on irrelevance.

From a broader point of view, both the adaptive and transformative models of reform encourage dialectical exchanges and dialogical relationship between intellectuals from various religious and cultural backgrounds, considering that many of the problems faced by Muslims in the West are not necessarily exclusive to Islam, but also to other religious and non-religious-based groups. Idealistically, this may open the door to mutual openness and understanding that does not rely on the semantics of ‘tolerance’,

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“proselytization” and “universality” that exist within the ideological frameworks of the adaptive and transformative approaches may create an unnecessary friction in the working relationships between the involved parties.

From a narrower point of view, the methodological aspects of the adaptive and transformative thinking can prove to be double-edged in their philosophy and implementation. While the cautious nature of the adaptive thinking may help promote itself to the wider society as a safe, unobtrusive process of reformation that does not infringe on the status quo of the larger context of the West, its concession-based system does not seem to contribute much to providing a theoretical solution to helping Muslims bring about a dynamic “European Islam”. Meanwhile, the collaborative approach proposed by transformation reform may provide a more civilized and rational resolution of conflicts where the outcome is determined by the immediate concerned parties themselves (i.e., Western Muslims and European policymakers) as opposed to having a foreign clerical body of scholars from the traditional Islamic world as a middle agent (most of whom may not even have a concrete, first-hand experience of the issues faced by Muslims in the West). However, the lack of detail as to the “limit” that this model of reform poses and how to ensure that this limit will not hamper the feasibility of the collaborative approach may risk making the whole proposition appear too unclear for consideration, much less application.

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ECHR), in their annual report for 2003 (published in 2004), declare Sharia incompatible with the fundamental principles of democracy as propounded in the Convention, ‘particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervened in all spheres of private and public life in accordance with religious precepts’ (ECHR, 2004, p.22). Although this statement was made in response to the Refah case21 in 2003, its general tone has allowed it to be perceived almost as a testimony to a unified “European” stance on the incompatibility of Islam as a whole with European democratic liberalism. On the issue of social liberalism, a survey by the PEW Research Centre on global attitudes to morality in 2013 concludes that Europeans22 are the least likely to judge matters such as extramarital affairs, gambling, homosexuality, abortion, premarital sex, alcohol consumption, divorce, and the use of contraceptives as morally unacceptable compared to Latin Americans, Asians, Africans and Middle Easterners; Americans are more liberal than Europeans only regarding gambling and alcohol consumption (PEW, 2013; Wike, 2014). Contrastingly, almost all of these issues are forbidden in Islam and made punishable by varying penalties in most legal systems in the Muslim world. The

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deemed problematic in the ECHR’s terms:

‘Severe punishments for crimes, including executions or limb amputations; stoning or imprisoning women for adultery; the criminalisation of sexual activities outside of marriage; and for homosexual or lesbian activities; non-recognition of the transgendered;

certain rules concerning marriage and polygamy, even with more modern legislative and administrative limitations and restrictions that make polygamy difficult; honour killings or attacks, talaq, ie unilateral divorce

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These issues can be collated into two broad themes for the purpose of this chapter: First, criminalization of norms that fall within the notional boundaries of “freedom”, whether explicitly or obliquely, as protected by the International Human Rights Law (hereinafter IHRL) and its various conventions; second, oppression of women. Although the first theme does not appear to be directly relevant to the question of Islam in Europe, considering that the penal code of Islam (ḥudūd) is not in force within the national legal systems in the region, and that there are no reports showing that European Muslims demand for its implementation (Berger, 2013), its prevalence in

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with the issue of women’s rights in Islam) may be perceived as most representative of a dividing line between the “irreconcilable” philosophies of Islam and European democracy. In addition to presenting al-Qaradawi’s and Ramadan’s opinions on key issues that fall within the afore-mentioned themes, this chapter examines the scholars’ efforts to both defend the traditional Muslim perspectives of right and wrong and balance them with European secular morality through their reformist thinking.

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than perpetuate Samuel Huntington’s “clash of civilizations” thesis, but it would also be erroneous to categorically dismiss the actuality of this penal code under the juridical interpretations of Islam. Subsumed under the overarching concept of jināya 23, ḥudūd derives its scriptural legitimacy from the Qur’an and Sunna. The Qur’an explicitly addresses four types of offenses with specified punishments; first, adultery24, which is punishable by 100 lashes for both unmarried and married offenders; second, slanderous accusation, which is punishable by 80 lashes; third, theft, which is punishable by amputation of the offender's right hand; fourth, highway robbery, which is punishable

by either of the following four penalties depending on the severity of the offense:

Execution, crucifixion, amputation of hands and feet from opposite sides of the body, or

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there is difference of juristic opinion with respect to combining both the punishments of lashing and stoning. In addition, classical Muslim jurists expanded the Qur’anic fourpoint list of offenses to six with the addition of apostasy and alcohol consumption (few also added armed rebellion as the seventh offence), the punishment of which varies by Muslim legal interpretation.

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stipulated standards of the IHRL, as expressed in its Conventions25. Criticisms against the penal code appear at three different levels: First, it criminalizes and imposes punishments for acts that fall within the normative domain of the Western cultural fabric; second, its implementation suffers from procedural abuses; third, its prescribed penalties exhibit a degree of “torture” that transcends the boundaries defined (albeit imprecisely) by the IHRL. As will be shown below, it is the coalescing of various articles within the conventions of the IHRL that provides justifiable incentives to declare ḥudūd as intolerant of human rights.

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alcohol consumption, and all forms of sexual relations outside the bounds of a legal, monogamous, heterosexual marriage are considered to be in direct violation of the protected principles of “freedom” and “privacy” in the following articles of the

Universal Declaration of Human Rights (hereinafter UDHR):

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Article 12: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour

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such interference or attacks’ (UN General Assembly, 1948b).

Article 18: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief,

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