A Mediator Between Sharia and State Law: Aḥmad al-Khamlīshī’s Legal Thinking and Contribution to Reforms

Abstract

With the 2004 reforms on the Moroccan Personal Status Law, the Moroccan Family Code (Mudawwanah) is considered one of the most egalitarian codes in the Muslim World. The reforms was a product of long-lasting public debates for decades in Morocco. Aḥmad al-Khamlīshī has been actively involved in the debate since the beginning of the 1980s and explained that the Personal Status Law is man-made law open to interpretation, revision of which should be undertaken through ijtihād. Shortly after ascending to the throne, in 2001, the King Mohammed VI appointed the Royal Advisory Commission in charge to reform the Moroccan Personal Status Code. The King charged the commission for making a substantial change in the Code by respecting the main objectives of Sharia (maqāsid al-Sharia) and also responding to the necessities of the time and society by means of exercising ijtihād. He encouraged members of the commission to consider the public interest and to strive for consensus and moderation in any proposed changes. The commission worked for around two and a half years on the proposed changes, but could not reach a consensus on many issues. Everyone on the commission has, more or less, had some leaning towards either of the two main groups, namely, the reformists and traditionalists. Aḥmad al-Khamlīshī was one of the members of the Royal Advisory Commission. He was a person who shared views of the reformist group, but also used the language of the traditionalists. He became a reference point for reformist groups with his critical but moderate views that remain within the Islamic legal framework. In this paper, I argue that al-Khamlīshī was the mastermind behind the reforms of 2004. By applying data analysis method, this study primarly uses al-Khamlīshī’s writings, his interviews and speeches. To reveal the difference and similarities of his understanding, the literature was consulted and comparisons were made. Following a brief background, this paper will discuss al-Khamlīshī’s mediating role between text and context, his influence on the debate of family law reforms, and thus his stance on Sharia-state relations. This paper will then focus on his understanding of ijtihād with reference to his views on the concept of the closure of the gate of ijtihād, qualifications of mujtahid (one who is capable to deduce legal rulings from the revealed texts), and his suggestion on collective type of ijtihād (ijtihād jamā’iʻ); as it was exercised by the Advisory Commission. Al-Khamlīshī’s methods of legal reasoning will be examined with regard to family law.