Here is his explanation of his approach:
Against the background of the nature and evolution of Islamic law established above, the doctrine of maslahah is thus advocated in this study as a veritable Islamic legal doctrine for the realization of international human rights within the dispensation of Islamic law. This is based on the understanding earlier expounded that international human rights has a universal humanitarian objective for the protection of individuals against the misuse of state authority and for the enhancement of human dignity. We will rely on the doctrine of maslahah within the ample scope of the Shari’ah in deriving legal benefits and averting hardship to the human person, as endorsed by the Qur’anic verse that: ‘He [God] has not imposed any hardships upon you [humans] in religion.’

This utilization of maslahah in relation to the maqasid al-shari’ah will accommodate the principle of takhayyur (eclectic choice), to facilitate movement within the principal schools of Islamic jurisprudence as well as consideration of the views of individual Islamic jurists to support alternative arguments advanced on topical issues in this book.

These are two very important and useful concepts that are undoubtedly generally accepted within the framework of “orthodox” Islamic legal theory. However, the problem with these two tools is that they are easily abused. Furthermore, it is one thing to override earlier established fiqh conclusions in the name of these two principles and it is quite another to override clear and definite texts of either the Quran or the Sunnah in the name of these two principles. The former could be easily argued while the latter is many times very problematic or totally unacceptable.

Another principle that Baderin invokes is, “Legal rulings may change with the change in time.” He states that this applies mostly to matters “concerning human interactions.” This is obviously a very important principle that facilitates change in Islamic fiqh. Yet, at no time does he mention the fact that this principle only applies to laws and rules that are not explicitly decreed in the Quran or Sunnah. This is a very important point that people sometimes neglect when invoking that principle.

Baderin also emphasizes the differences between the “traditionalist” / “hardline” and “evolutionist” approach to Islamic Law. He clearly favors what he has called the “evolutionist” approach, stating,

The ‘evolutionists’ are those who, while identifying with the classical jurisprudence and methods of Islamic law, seek to make it relevant to contemporary times. They believe in the continual evolution of Islamic law and argue that if the Shari’ah must really cope meaningfully with modern developments and be applicable for all time, then such modem developments must be taken into consideration in the interpretation of the Shari’ah. They are also referred to as Islamic liberals or moderates. They adopt a ‘back and forward looking’ approach in their interpretations of the Shari’ah and a contextual application of classical Islamic jurisprudence. The scope of harmonization between Islamic law and international human rights law depends largely upon whether a hardline or moderate approach is adopted in the interpretation of the Shari’ah and the application of classical Islamic jurisprudence.

His dichotomy between “hardliners” and “liberals” may resonate with many Western ears but, in reality, it is a bogus dichotomy that has been forced upon the discussion of Islam in recent years for many political reasons. The reality is that the “traditionalist” elements must be “flexible” in their application of Islamic Law as such was the example set forth by the Prophet (peace and blessings of Allah be upon him) himself and his followers. However, that flexibility is within well-defined limits of the Shariah. The liberal approach has not been accepted by many “traditionalist” scholars because it seeks to go beyond those limits, they would argue, in such ways that cannot be justified by a reading of the Quran and Sunnah.

At first glance, Baderin’s thesis seems to be a fresh approach and attempts to strike a happy accord between some modern interpretations of human rights thinking and some aspects already found in Islamic legal theory.


The following important conclusions can be made concerning Baderin’s work:
(1)    Baderin does argue that there are certain issues in which Islamic Law cannot be compromised and that on those points the views of Islamic Law will simply have to be respected. Furthermore, on other points, he consistently falls short of the modernist/progressive extreme in that he does not call for a completely new understanding of the laws but, instead, he looks for views that have been held by some scholar(s) of the past. This will make his conclusions resonate much better with the Muslim masses. However, on this point, he has neglected the fact that the real issue for fiqh is not simply whether someone in the past, no matter how respected, has held a particular opinion but whether that opinion can be adequately substantiated in the light of the Quran and Sunnah.

(2)    Although he calls for those on the human rights side of the issue to resort to invoking the “margin of appreciation,” it is hard to imagine that some of his conclusions would be acceptable by some of the more hardline human rights proponents, such as Mayer, Howland, feminists in general and so on.In this manner, some of his reasoning and interpretations do not differ from the other somewhat “apologetic” writings on human rights.

(3)    One must question the relevance of invoking maslahah and other tools of Islamic Law in order to make one’s fiqh consistent with the contemporary human rights platforms. First, one must ask whether this is an acceptable manner of invoking maslahah. Second, one must also question why Islamic Law need be forced to comply with contemporary human rights thinking. This is the biggest question that Baderin essentially sidesteps. However, it is a question that will play a major role in the remainder of this work.

One final point that needs to be made concerning Baderin is his invoking of the concept of maqaasid al-shareeah or the overall goals and priorities of Islamic Law.The reality is, as shall be demonstrated later, that if there is anything that demonstrates that the goals, ideology and reality of Islam is different from that of the human rights movement it is the goals of the Shareeah. The primary goals of the Shareeah around which virtually all Islamic laws revolve are five—the founding, preserving and promoting of religion, life, familial ties (and honor), wealth and human intellect. These goals are very different from the goals of the human rights activists, especially when one takes into consideration the ultimate emphasis placed on religion. Thus, for example, one law that human rights have a great deal of difficulty accepting is the Islamic law of apostasy. However, if any law is consistent with the goals and purposes of the Shareeah it is this law that is meant to protect and preserve the ultimate goal of religion itself. Thus, in reality, invoking maqaasid al-shareeah does not, in the long-run, bolster Baderin’s case.

Baderin’s workwas discussed in some detail here because it seemed that he was offering something different: a real synthesis between Islamic Law and Human Rights Law. He attempted to accomplish this by incorporating not only some aspects of Islamic Law, which is the typical approach by many in this more apologetic category, but also incorporating alternative in human rights law. However, in the long-run, his attempt falls somewhat short. As shall be demonstrated throughout the remainder of this work, it is not a surprise that this attempt, like all the other attempts, has seemingly failed. There is definitely some root cause for the impasse that continues to occur between proponents of Islamic Law and proponents of the contemporary human rights movement.