Contemporary Islamic Studies - Volume 2012, Issue 1

Human agency is a basic human right. Just as humans are entitled to basic human needs, they are also entitled to agency i.e. freedom of choice. Human dignity is centered on this simple fact. Sometimes cultures and religions have infringed upon this basic right. In Kenya, for instance, Muslim women continue to be conflicted between upholding their basic rights as human beings, and adhering to their religious expectations. This conflict mostly manifests in matters related to sexuality and gender roles. While some Muslim scholars have asserted that human rights principles are at the heart of Islam, others have devalued human rights arguing that they are foreign, and western propaganda intended to destroy Islam. Muslim women in Kenya are caught in this dilemma. In this article, I explore the possibility of negotiating agency and human rights in a Muslim context. I draw illustrations from surveying and interviewing thirty Muslim women from Kenya, to highlight the challenges they face, as they attempt to claim human rights. It is my argument that human rights are human entitlements, which are compatible with Islamic teachings. Muslim women should be able to negotiate agency and human rights entitlement within Islam.

Background:

Ikhtilaf al-darayn (territoriality) is a unique Hanafi legal concept that signifies the Hanafi recognition of the constraints of enforcing a legal system when it comes to geopolitical realities. This paper argues that the Hanafi legal application of the theory of territoriality in their primary legal literature allowed them to go beyond defining individuals based on their religious identities to mainly focus on the legal status of individuals within or outside Muslim jurisdiction. Unlike the majority of Islamic legal schools, Hanafis consistently upheld the theory of territoriality and stressed that the universal features of the law do not have any legal imperative outside the political framework of Muslim jurisdiction. Hence, they acknowledged the constraints of the legal and political powers of the Imam outside the Muslim jurisdiction.

Methodology:

The primary Hanafi legal texts were relied upon to explore the theoretical foundation of the concept of territoriality (ikhtilaf al-darayn). In my analysis, I have traced usage and application of this concept across different legal topics and in different historical moments. The aim was to show the consistent usage of this doctrine in the Hanafi school. I have benefited from the Hanafi debates with other legal schools regarding the realm and applicability of the concept of territoriality. Finally, the case studies that I have explored demonstrated that Hanafis differentiate between the legal status of a dhimmi and a musta’man residing in dar al-Islam, despite the fact that these individuals are non-Muslims and adopt the same religion.

Results:

The significant results of this concept can be summarized in two points. First, it reveals a diverse tradition of legal theories that have framed the extra territorial relations of dar al-Islam. Second, for Hanafis, religion was never a factor in their legal determinations in deciding the inviolability (‘isma) of individuals’ life or property within dar al-Islam.

Conclusion:

Ikhtilaf al-darayn is a legal doctrine particular to the Hanafi school. Hanafis place a significant weight on the role of the Muslim ruler in executing the law. Therefore, they acknowledge the constraints of the legal and political powers of the Muslim ruler outside the Muslim jurisdiction. Consequently, the legal imperative of these legal concepts have been exclusively framed within the political jurisdiction of dar al-Islam. Thus, Hanafis conceded to the fact that the addressees of the ethical or moral values of Islamic legal system are exclusively Muslims and those who reside permanently in dar al-Islam, namely dhimmis. Hanafis maintained that the universalist features of the law do not have any legal imperative outside the political structure of the Muslim jurisdiction.

Wisdom and mercy appears in mankind through Allah's greatness. In order to be inspired by guidance of the Holy Qur'an and Sunnah (prophetic tradition), it is a necessity to study them deeply and implement their provisions. This cannot be achieved without understanding and realizing the purposes/maqasid behind every rule and command, since the purpose of the laws is to protect the welfare of humans and avert evil and mischief. Hence, there is a need for exploring the association between purposes/wisdoms and reasoning of Islamic law. This paper represents a study of this essential topic.