The Self-Proclaimed Modernist/Progressive Approach
The self-proclaimed modernist or progressive approach essentially views human rights doctrine as a modern or progressive development. The basic premise of this approach is that the “orthodox” understanding of Islam is, in fact, inconsistent with contemporary human rights law. The “orthodox” teachings of Islam, on the other hand, may have been quite revolutionary or progressive at some point in time in history but they are no longer valid or proper for current times. Hence, the understanding and particularly the practice of the religion of Islam needs to be tweaked, modernized and understood in a new light, virtually discarding what has been traditionally accepted as Islamic understandings. In this way of looking at things, conformity with contemporary human rights thinking is the goal that requires that Islam adjust itself. This view is popular with a number of writers who currently live in the West and teach at various universities. Writers in this group include Khaled Abou El Fadl, Abdolkarim Soroush , Abdullahi an-Na’im and others.By simply googling these names, one is bound to come across entries that will describe each of them as the “leading expert on human rights and Islam…” Hence, some aspects of their teachings need to be dealt with in detail here.

Abdullahi an-Na’im is originally from Sudan but is currently teaching at EmoryUniversity in Georgia. He is a prolific writer and has published in numerous journals and anthologies. An-Na’im is a follower and staunch supporter of Mahmoud Mohamed Taha (1909-1985), a Sudanese “reformer” who propagated what he termed, “the second message of Islam.” Eventually, Taha was executed by Gaafar Nimeiry for his outlandish views.  An-Na’im’s influence on the question of Islam and human rights is great, as he represents Islam in numerous forums and has also influenced a large number of both Muslim and non-Muslim authors.

An-Na’im’s premise is that there is a “drastic incompatibility between Shari’a and modern standards of international relations and human rights.” Thus, he calls for a “drastic reform” in the public law of the Shariah. He claims that his view would resonate with many Muslim throughout the world who out of fear of speaking or out of ignorance of the implications of the Shariah would oppose Shariah law if they had the means to do so.

The sum of his argument as to why Muslims of today should be free to construct their own version of the Shariah is as follows,

I have shown that Shari’a was in fact constructed by Muslim jurists over the first three centuries of Islam. Although derived from the fundamental divine sources of Islam, the Qur’an and Sunna, Shari’a is not divine because it is the product of human interpretation of those sources. Moreover, this process of construction through human interpretation took place within a specific historical context which is drastically different from our own. It should therefore be possible for contemporary Muslims to undertake a similar process of interpretation and application of the Qur’an and Sunna in the present historical context to develop an alternative public law of Islam which is appropriate for implementation today.

It is true that humans have had a hand in the development of fiqh.  It is also true that humans are fallible. Muslim scholars throughout the history of Islam have admitted that and have actually acted on the basis of that premise, thus differing with one another, refuting one another and so on. However, that in itself does not prove that what those scholars developed is incorrect or needs to be redone today. If it is proven that the way they understood the Quran or Sunnah is incorrect and that there is an alternative, equally sustainable and provable understanding of the texts, then humans are free to chose another interpretation. Thus, one would have to prove that the methodology of fiqh is completely wrong or on particular points scholars have misunderstood the texts of the Quran and Sunnah. An-Na’im does not bother to do either. He simply starts and ends with the proposition that humans are fallible, humans produced fiqh and there that fiqh which they produced may be dispensed with today. Engineers are also humans who are fallible. However, that does not mean that one should do away with all of the building techniques that they developed, ignore their principles and insist on new ones simply because they were fallible human beings. That, though, is the logic of an-Na’im’s argument.

The basic flaw of An-Na’im’s arguments (and of many of those similar to him) is that he begins with a proposition and then they seek to impose that proposition on their understanding of the revelation from God. For example, when speaking about the rights of women and non-Muslims, An-Na’im writes, “In the case of Islam, for example, one must be able to establish a technique for reinterpreting the basic sources, the Qur’an and Sunna, in a way that would enable us to remove the basis of discrimination against women and non-Muslims.”  Ignoring the question of such “discrimination,” there is a very basic logical flaw in this argument when seen in a religious light (and not simply a contemporary secular light). His approach is the proverbial “putting the cart before the horse.” Indeed, what is the purpose of the revelation in the first place if its only purpose is to be consistent with ideas that humans have concluded on their own?

Finally, an-Na’im must be credited with perhaps the most ironic statement of all the writers on Islam and contemporary human rights. He is presented as one of the leading voices of Islam on human rights and many seem to have hope in him that he will truly spark a change. Yet, at the same time, he himself recognized a very important fact: “For instance, Muslims are unlikely to take seriously the advocacy of Islamic reform by a non-Muslim, or a Muslim who is perceived to be a heretic or apostate for going too far in his or her critique of prevalent understandings of Islam.”  This is ironic because An-Na’im is the leader of an extreme movement itself. As An-Naim stated,

In addition to explaining and documenting the validity of this premise, I have suggested that the reform methodology developed by the late Sudanese Muslim reformer Ustadh Mahmoud Mohamed Taha appears to be the most appropriate means for constructing the modern public law of Islam out of the Qur’an and Sunna as interpreted in the present historical context. Whether this particular methodology is accepted or rejected by contemporary Muslims, the need for drastic reform of the public law of Shari’a is beyond dispute.

Thus, Na’im is the leader  of a movement that was considered so outlandish that its founder was one of the few in Islamic history who actually received the death penalty for apostasy. Of course, none of An-Na’im’s views are to be rejected simply because he is the follower of such a movement. In fact, when writing about human rights, secularism and other topics, An-Na’im does have some insightful things to say. However, this movement has definitely so colored his vision of Islam that the proposals that he is making concerning human rights and Islam will most likely never resonate with the masses. In fact, Western institutions have invested a lot in An-Na’im but in the long-run it may be all for naught, as he himself alludes to in the passage quoted above.

Khalid Abou El Fald is another highly praised and important figure in Western discussions of Islam and human rights. Apparently, he is a self-proclaimed Mutazili and is even touted as the leading authority on Islamic law in the United States. He currently teaches at the University of California at Los Angeles.

As was noted about modernists/progressives, Islam needs to be reformulated and understood in a new light in order for it to be consistent with human rights theory. The following example fromAbou El Fadl demonstrates one of the approaches used to justify reinterpreting Islam or questioning established principles of Islam. In the passage quoted below, Abou El Fadl casts doubt upon how Muslims can claim to know with certainly the meaning of a Quranic passage. Actually, his argument goes well beyond that. His argument is that no one can claim to know what any part of the revelation truly means. The implication that he is trying to make is obvious: If one can never be certain what the Quranic passages truly mean, Muslims should then be free to interpret in a variety of ways and, when that is done, there should be no difficulty in interpreting them in the light of contemporary human rights and international law.

The relevant Quranic passage is the following:“Cut off the hand of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise” (al-Maaidah 38). Concerning this verse, Abou El Fadl writes,

The Qur'an uses the expression iqta'u, from the root word qata'a, which could mean to sever or cut off, but it could also mean to deal firmly, to bring to an end, to restrain, or to distance oneselffrom. Whatever the meaning generated from the text, then, can the human agent claim with absolute certainty that the determination reached is identical to God's?...

This does not mean that the exploration of God's law is pointless; it only means that the interpretations of jurists are potential fulfillments of the divine will, but the laws as codified and implemented by the state cannot be considered as the actual fulfillment ofthese potentialities.     

Butthelawofthe state, regardless of its origins or basis, belongs to the state. It bears emphasis that under this conception there are no religious laws that can or may be enforced by the state. The state may enforce the prevailing subjective commitments ofthe community (the second school), or it may enforce what the majority believes to be closer to the divine ideal (the first school). But it bears emphasis: in either case, what is being enforced is not God’s law. This means that all laws articulated and applied in a state are thoroughly human, and should be treated as such…

It does not take a Muslim scholar of great prominence to refute the above presentation from Abou El Fadl. The only way that El Fadl could come to such conclusions and thereby question the understanding of the Shareeah of the whole was by: (1) distorting the context of the verse or actual Arabic construct of the verse and (2) completely ignoring how the Prophet (peace and blessings of Allah be upon him) understood and applied the verse.  First, the verse does not say, “Cut him off,” but explicitly states, “Cut off their hands.” 

A word in Arabic may be prone to numerous figurative meanings but when used in relationship with specific other terms, no such figurative meanings are known. Thus, this author perused the classical Arabic dictionaries Lisaan al-Arab, Taaj al-Uroos, Tahdheeb al-Lughah and al-Qaamoos al-Muheet and did not find any hint of the term, “Cut his hand off,” ever implying, as Abou El Fadl states, “Deal firmly, to bring to an end, to restrain, or to distance oneself from.” Again, such a distortion of the text would probably not escape the sight of many, many Muslims.

Abou El Fadl has a lengthy passage in which he speaks about the historical debate about when a scholar uses personal juristic reasoning (ijtihaad) and whether he is always going to be correct or not. Some have held the view that the scholar is always correct—in other words, his view is to be taken as a correct view—while others argued that he will be rewarded for his efforts but he may be mistaken in his conclusion. After this discussion, Abou El Fadl tries to argue that concerning either view, one will never truly be able to say what God’s law is. This conclusion is very important to him. Based on premise, he can make statements like, “Shari’a encompasses a variety of schools of thought and approaches, all of which are equally valid and equally orthodox.” 

Hence, there can be no exclusion to introducing a new Islamic paradigm consistent—actually built upon—contemporary human rights thinking. However, in all of that discussion, Abou El Fadl has ignored or overlooked a very important point that destroys his entire edifice. The discussion that he presented and the doubt he was able to cast upon finding the truth is only concerned with matters of ijtihaad or when personal juristic reasoning is necessary. A well-established principle states that there is to be no ijtihaad when the texts of the Quran or Sunnah are definitive and explicit. Many of the laws that El Fadl deals with, including the punishment for the theft in the example given above, a explicit, definitive texts that are not open to ijtihaad. This is why no previous scholar ever concluded that there could be any other punishment for theft. The texts were clear, definitive and explicit and hence it was not a question of ijtihaad, which is not infallible.

Note that, like An-Na’im, Abou El Fadl’s implications are not truly rational, although modernists usually claim to be rational. Simply because some laws may be open to some amount of doubt does not mean that whole project then needs to be shredded and one is free to start from scratch with any interpretation one desires. In law, it is not the case that one needs absolute certainty that one’s interpretation is correct, as long as enough of the evidence and proofs point to it, it will be sufficient. The act of casting doubt and thereby permitting completely new interpretations has been a current theme among progressives and modernists (an-Na’im’s example about the “shariah” can also apply here) but the implications that they are trying to impose from it are simply extreme and irrational.

Soroush’s views are perhaps even more extreme than the two discussed above  and, as Oh states, “The discussions by Soroush on democracy, toleration, and human rights stand out as the most compatible with current Western notions of human rights.”  Mayer summarizes Soroush’s main concept of justice in the following statement: “Soroush has dared to maintain publicly that justice preceded Islam and that Islamic law should conform to the criterion of justice.” Thus, Soroush has a theory that God’s religion must be simply based on the concept of justice and freedom.  However, it goes without saying that “justice” and “freedom” are vague terms to say the least and one’s person’s concept of justice or freedom may be very different than another person’s concept of those ideals. In fact, it could be argued that humans do not need Divine guidance if that is the most Divine guidance has to offer.