Contemporary Ijtihad: Limits and Controversies 9780748646029

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CONTEMPORARY IJTIHAD

LIMITS AND CONTROVERSIES

2 L. Ali Khan and Hisham M. Ramadan

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© L. Ali Khan and Hisham M. Ramadan, 2011, 2012 First published in 2011 by Edinburgh University Press Ltd 22 George Square, Edinburgh EH8 9LF www.euppublishing.com This paperback edition 2012 Typeset in 11/13pt Sabon by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 0 7486 4128 4 (hardback) ISBN 978 0 7486 6856 4 (paperback) The right of L. Ali Khan and Hisham M. Ramadan to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

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Contents

Preface

iv

Introduction 1 Classical Era of Ijtihad, 632–875 2 Free Markets of Fiqh 3 Islamic Positive Law 4 Islamic Constitutionalism 5 Covenants with Non-Muslims 6 Western Views of Islamic Law 7 Muslim Diaspora Law

1 14 47 80 113 146 181 215

Glossary Index

249 253

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Preface

This book composes and refines numerous ideas I have explored in law review articles and opinion editorials over the past ten years. Since 2000, when I wrote Islam as Intellectual Property, a law review article, my views about Islamic law have taken a clear path that instructs me that divine texts, the Qur’an and the Prophet’s Sunnah, must never be confused with opinions of the Prophet’s companions and wives, and with the opinions of the founders of Islamic fiqh. I believe that great errors are built upon simple confusions. The doctrine of taqlid is just such a confusion that merged Islamic divine texts with human fiqh. We write this book to reverse the confusion and the consequent error. In doing so, we do not propose to cast away the treasures of fiqh. Fiqh will always remain an integral part of Islamic law. However, fiqh is open to modification and even repeal on a case-by-case basis. We identify contemporary sources of Islamic law, such as constitution, legislation, and case law and propose a simple method, the submission principle, to distinguish between secular law and Islamic law. On another note, I want to thank Professor Hisham Ramadan for supporting this project. This book would not have been possible without his ceaseless efforts to find a publisher. We eventually and gratefully agreed to publish this book with the Edinburgh University Press. Professor Ramadan read the chapters, proposed changes, and made sure that the divine texts were not misinterpreted. His superior and native knowledge of Arabic has been critical for the accuracy of analysis and explanation. I want to thank my research assistants, Amy Greiner and Kevin Keatley, law students at Washburn University School of Law in Topeka, Kansas. They read the manuscript and provided editorial assistance. Kevin Keatley has been assisting me on a number of projects on Islamic law and Amy Greiner is a committed perfectionist. I wish them good luck. I also want to recognize my two sons, Harun and Kashif, 9 and 7 years old, who were with me while I was writing and refining the typescript. As it is customary with Muslim scholars to confess, we the authors iv

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Preface also affirm that nothing comes into existence without Allah’s Will. We hope that this book will provide guidance to Muslim nations, jurists, and students. We also hope that non-Muslim scholars and students will obtain insights from an analytical work written in the luminosity of faith. L. Ali Khan Topeka, Kansas August, 2010

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Introduction

This book studies the jurodynamics of Islamic law in evolutionary spatiotemporal contexts. Written from the internal viewpoint of Muslims, the book discusses the resurgence that Islamic law is experiencing in Muslim communities across the world. The internal viewpoint takes for granted the core Islamic belief that the Qur’an and the Prophet’s Sunnah are divine texts, valid all the time and in all places. The universality of Islamic divine texts, however, is not synonymous with natural law articulated in classical Greek and Roman literature, including the works of Plato, Aristotle, and Cicero. While natural law may emanate from reason, intuition, experience, or historical wisdom, the universal law of Islamic divine texts is anchored in faith, a faith neither opposed to reason, intuition, experience, and historical wisdom, nor dependent on any such human construct. From the internal viewpoint, the Qur’an is the Word of God, and the Sunnah is the word of the Prophet. Both sources of law are divine. The Qur’an illuminates the Sunnah, and the Sunnah illuminates the Qur’an. Neither source can be fully understood without the other. Efforts to separate the Qur’an from the Sunnah confuse the purposes of Islamic law. Contemporary ijtihad refers to efforts that are under way to construct Islamic legal systems and state institutions in the Muslim world. Etymologically, ijtihad and jihad are derived from the same root word, juhd, which means to strive or make an effort. Jihad is striving to propagate the message of Islam and to fight oppression, occupation, and subjugation. Ijtihad is striving, in the realm of law, to solve new legal problems. The exercise of ijtihad, however, presupposes that opiniojurists possess the required knowledge and competence in order to derive new rules of law through reasoning from the original sources, that is, the Qur’an and the Sunnah. Ijtihad, however, is needed only if the Qur’an and the Prophet’s Sunnah are not decisive on particular questions under juristic consideration. Ijtihad cannot be used to undermine or modify the Qur’an or the Prophet’s Sunnah. Contemporary ijtihad, however, is more than 1

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Contemporary Ijtihad deductive in nature. It allows Muslim nations and communities to use positive sources of law, such as constitutions and legislation, compatible with Islamic divine texts. For analytical and normative clarity, this book embraces a fundamental distinction between Islamic divine texts, comprising the Qur’an and the Prophet’s Sunnah, and Islamic positive law, comprising classical fiqh, local customs, legislation, case law, and international law. Islamic law is presented as a composite of two distinct parts: divine texts and Islamic positive law. The divine texts are immutable. No era, civilization, culture, or human need can modify the Qur’an and the Prophet’s Sunnah. However, the bodies of Islamic positive law are flexible, mobile, and responsive to change. Positive sources of law may vary from nation to nation and from one period to another. Like dynamic energy, Islamic positive law shapes and is shaped by both space and time. Reactionary agendas to freeze Islamic positive law in any one era or in any one culture cannot succeed. Each era and each culture contributes to the sources of Islamic positive law. No era and no culture may lawfully claim to exercise monopoly over the creation, preservation, or substance of positive norms. Islamic law is inexhaustible energy. It cannot be contained or suppressed. It is neither tribal, nor territorial. Islamic law originated in the seventh-century sociocultural conditions of Mecca and Medina, the two cities where the Qur’an was revealed and the Sunnah delivered. In a few decades, however, Islamic law transcended the spatiotemporality of Mecca and Medina and began to engage diverse peoples and their cultures and customs. Over the past fourteen centuries, Islamic law has continued to guide prominent cultures, empires, and kingdoms established in Syria, Mesopotamia, Spain, Egypt, Persia, Turkey, and India. Indonesia, thousands of miles away from the holy cities, is the largest Muslim nation. In the last one hundred years, Islamic law has seen a resurgence in contemporary Muslim nations across all continents. Islamic law has also reached Europe and North America, where substantial Muslim communities, native and immigrant, have taken root. Permanence, flexibility, and diversity are the core attributes of Islamic law. Islamic law is permanent because the Qur’an and the Prophet’s Sunnah cannot be altered, amended, or repealed. Islamic law is flexible because no generation of Muslims is empowered to preempt future interpretations and understandings of divine texts. Islamic law is diverse because it respects the dignity and various 2

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Introduction needs of culturally distinct Muslim communities. Islamic law moves through time with imperceptible ease. Each generation of Muslims benefits from the accumulated knowledge of past precedents and sources of Islamic law. However, respect for past precedents and sources of Islamic law does not tie the hand of future generations of Muslims in amending or setting aside prior interpretations and understandings of Islamic law that no longer respond to the changed realities of Muslim communities. Contesting the thesis that Islamic law is a static and inflexible aggregation of norms framed in the classical era of Islam, Contemporary Ijtihad argues that Islamic law is inherently fluid and evolutionary within the bounds of the Qur’an and the Prophet’s Sunnah.

Shariah as the Basic Code Shariah means the divine law expounded in the Qur’an and the Prophet’s Sunnah: “And now have We set thee (O Muhammad) on the Shariah of (our) Commandments (shariahtin mina alamari); so follow it, and follow not the wishes of those who know not” (45:18). Despite this manifest and exclusive correspondence between Shariah and God’s Law, the word Shariah has been used to describe both God’s Law as well as Islamic positive law, particularly fiqh. Some opiniojurists subscribe to the minimalist view, under which the Shariah is confined to the Qur’an and the Prophet’s Sunnah; other opiniojurists subscribe to the maximalist view, under which Shariah includes Islamic divine texts as well as fiqh and other sources of Islamic law rendered in the classical era. In Islamic legal literature, the simultaneous characterization of the Shariah through both minimalist and maximalist views has generated enormous analytical and normative confusion, particularly among some non-Muslim scholars. Examine the maximalist view that takes fiqh to be part of the Shariah. J. N. D. Anderson, a noted Islamic expert, confuses the Shariah with classical fiqh in his analysis of modern legislation. Note the following point Anderson makes: “The fact remains, then, first that the Shariah – whether in its original or a somewhat modified form – still represents the family law.”1 Here, Anderson means the rules of the fiqh, because there are no modified forms of the Qur’an or the Prophet’s Sunnah. Western encyclopedias also define the Shariah as the Qur’an, the Sunnah, and the “canonical law . . . elaborated by the analytical principles of the orthodox schools of Shafi, Hanbali, Hanafi, and Maliki.” 3

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Contemporary Ijtihad Adding even more confusion, the maximalist view includes legal methods in the definition of the Shariah. Analogy (qiyas) and consensus (ijmah), for example, are legal methods that opiniojurists use to deduce the rules of fiqh from divine texts. Noel Coulson, another noted Western expert in Islamic law, writes that “Sharia law is formally and systematically represented as derived from four principle sources.”2 He then lists the four sources as the Qur’an, the Sunnah, ijmah, and qiyas. After listing these sources, Coulson further comments that qiyas is a legal method “by which the principles established by the Qur’an, Sunnah and ijmah are extended to cover new cases.”3 If qiyas is a legal method, which it is, it must be distinguished from substantive sources of Islamic law. Coulson also overlooks the fact that ijmah itself is a legal method. Merging substantive sources with legal methods can be analytically confusing. Noah Freidman, an emerging Islamic constitutional law expert, though analytically insightful, includes ijmah as part of the Shariah, thus confusing legal method with substantive sources.4 Even some Muslim experts cast legal methods into the definition of Shariah. In discussing the principles of Islamic contract law, for example, Noor Muhammad lists ijmah and qiyas as “the additional sources of Shariah.”5 In addition to spawning analytical confusion, the maximalist view of the Shariah engages in a fundamental error: it mixes divine sources with human sources, generating intellectual morass, erroneous reasoning, and dubious conclusions. The Qur’an and the Prophet’s Sunnah are divine texts; fiqh, a substantive body of law, is human; and, qiyas and ijmah, the classical legal methods to derive the substantive rules of fiqh from divine texts, are human too. This maximalist concept of the Shariah inappropriately lumps together the revealed with the unrevealed. The blending of divine law with positive law has created a muddled assumption that positive law is as sacred and immutable as are the divine texts. To remove analytical and normative confusions that permeate Western literature about Islam and Islamic law, this book is founded on a fundamental premise that the Qur’an and the Prophet’s Sunnah constitute the immutable Basic Code, which should be kept separate from ever evolving fiqh and other sources of Islamic positive law. This analytical and normative distinction between the Basic Code and positive law is the foundation of contemporary ijtihad. From a minimalist viewpoint, the Basic Code is synonymous with the Shariah. From a maximalist viewpoint, however, the Basic Code refers to the Qur’an and the Prophet’s Sunnah, and the concept of 4

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Introduction Shariah then refers to Islamic law that includes both divine texts and positive law. However, jurists embracing the maximalist view of the Shariah must not confuse the immutable sources of divine texts with positive sources of law that may vary from nation to nation and from one era to the next. The Basic Code, though it consists of two distinct texts, the Qur’an and the Prophet’s ahadith, is a unified divine source. Because of this unity, the law of the Qur’an must be understood and applied in the contexts of the Sunnah, and the law of the Sunnah must be interpreted and applied in light of the Qur’an. Interpretative methodologies presume that no contradiction exists between the two divine sources of Islamic law. The Qur’an is compatible with the Sunnah and the Sunnah is compatible with the Qur’an. Any interpretation or application of the Basic Code that contravenes either the Qur’an or the Sunnah or both cannot be part of Islamic law. No jurist has been empowered to abrogate the Sunnah to implement the Qur’an, or to abrogate the Qur’an to implement the Sunnah. Any theory of abrogation that disables any portion of the Qur’an or that of the Sunnah is offensive to the submission principle, a founding principle of contemporary ijtihad.

Submission Principle Related to the Basic Code, this book offers the submission principle to further clarify the status of positive law and its subordinate relationship with Islamic divine texts. Simply stated, the submission principle requires that positive law submit to the supremacy of the Basic Code. No rule of fiqh, local custom, legislation, regulation, case holding, treaty, or any other norm of positive law is Islamic unless it is compatible with the Basic Code. The supremacy of the Basic Code rests on God’s Law, revealed and emphasized in the Qur’an: “Obey Allah and obey His prophet” (4:59; 5:92; 24:54; 47:33). The commandment “obey Allah” means obeying the laws of the Qur’an. The commandment “obey His prophet” means obeying the laws of the Sunnah. Any political, juristic, or analytical thesis to sever the Sunnah from the Qur’an is itself a violation of the Qur’an. The Basic Code is the supreme law of every generation of Muslims and of every sect of the Muslim Ummah. There is no exception to the submission principle, in that no rule of positive law can lawfully override the Basic Code. Except in cases of persecution and dire necessity, exceptions mentioned in divine texts, the Basic Code is the supreme law for 5

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Contemporary Ijtihad Muslim individuals and Muslim communities living in non-Muslim states. The submission principle acknowledges historical controversy over the collection of the Prophet’s ahadith. The controversy, however, is no longer relevant, except, as discussed in Chapter 6, among some Western scholars. The canon for the Prophet’s Sunnah has been established and is no longer open to debate. For the Sunnis, who constitute the overwhelming majority of Muslims, certain compilations of the Sunnah, particularly Sahih Bukhari and Sahih Muslim, are regarded as the most authentic evidence of the Prophet’s Sunnah. The Basic Code is open to other compilations of the Prophet’s Sunnah. The Prophet’s authentic ahadith, whatever the compilation, are part of the Basic Code. If a particular hadith is compatible with the Qur’an and other ahadith of the Prophet, the hadith is presumed to be authentic. In addition to verifying the accuracy of the substance (matn) and transmission (isnad) of a particular hadith, the submission principle assures that legal rights and obligations emanating from the hadith are in harmony with the rest of the Basic Code. The submission principle is founded on the premise that the Basic Code is internally coherent, and any contradictions that a jurist finds are the contradictions within human intellect and imagination. Note, however, that opinions of the Prophet’s companions and his wives are not part of the Basic Code. The Prophet’s companions and wives were noble men and women. Some of them transmitted the Prophet’s ahadith. Aisha, the Prophet’s wife, is a source of numerous ahadith of the Prophet mentioned in Sahih Bukhari and Sahih Muslim. But Aisha’s own opinions, even if mentioned in Sahih Bukhari, Sahih Muslim, or any other compilation, are not part of the Basic Code. Likewise, the opinions of the first four caliphs are not part of the Basic Code. The opinions of the Prophet’s companions and wives constitute a source of Islamic positive law and these opinions carry precedential value. Muslims do not lightly disregard their opinions. However, the deeds and opinions of the Prophet’s companions and wives cannot be elevated to the status of divine texts. The Basic Code consists exclusively of al-kitab and al-hikma, that is, the divine texts attributed to the Prophet. Al-kitab is the Qur’an, and al-hikma is the Prophet’s Sunnah. No other source is part of the Basic Code.

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Introduction

Diversity of Islamic Law While maintaining the supremacy of the Basic Code, the submission principle preserves the diversity of Islamic law. The Basic Code is one and the same for all Muslims of all nations, cultures, and communities. However, some understandings of the Basic Code may vary from community to community and from time to time. Diverse interpretations are not offensive to the unity of Islam. In the classical era, eminent jurists derived diverse interpretations from the same Qur’an and Prophet’s Sunnah. Diverse schools of jurisprudence thrived, maximizing intellectual discourse and enriching multiple understandings of the Basic Code. Because there exists no central authority to select one among the many juristic interpretations of divine texts, Islamic law has been reared in the freedom of fiqh markets rather than under the oppressive thumb of an earthly sovereign. In all Muslim empires, the caliph has been accountable to the consensus of opiniojurists. No caliph was empowered to use his will to change Islamic law as he pleased. No Islamic empire claimed the right to outlaw multiple madhabs. And no Muslim community was compelled to adopt the madhab of the ruler. Attempts to impose any state-sponsored madhab or a particular article of faith failed. The diversity of Islamic law has further deepened with the establishment of Muslim states and territories. During the era of empires, eminent opiniojurists furnished substantive diversity. During the era of nation-states, each nation is free to establish an Islamic legal system according to its own cultural, political, and economic needs and understandings. Each Muslim state has its own executive, legislature, and judiciary. The classical fiqh constitute the shared treasure, the common law of Islam. Sharing the common law of Islam and the immutable Basic Code of divine texts, each Muslim nation is free to adopt various bodies of positive law under the submission principle. Diverse and even diametrically opposite constitutional systems are consonant with Islam. The Muslim world is far from united in its constitutional preferences. The Saud family has instituted a kingdom in Saudi Arabia. Jordan is organized under a constitutional monarchy. Iran has established an innovative theocratic system that combines democratic institutions with clerical rule. Pakistan oscillates between democracy and military rule. Its constitution envisions a multiparty democracy, and allows even the godless communist party to compete for political power. In Egypt, Libya, and Syria, the constitutional system has been reduced to quasi-personalistic dictatorship 7

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Contemporary Ijtihad pivoted on a dominant authority figure. In Egypt, the electoral system has outlawed Islamic parties and is practically closed to multiparty competition. In Turkey, the separation of church and state has been jealously guarded, and as such the constitutional system remains vulnerable to military intervention and possible populist revolution. The Gulf States are introducing democratic institutions to transition away from hereditary constitutional structures. In view of this diversity, no one constitutional theory enjoys any preferential status in the Muslim world, though Islamic law requires that rulers operate in good faith under the consultation principle. The constitutional diversity is tolerated only if the government does not engage in gross violations of the Basic Code.6 Although Islam was revealed to an Arab prophet in the seventhcentury cities of Mecca and Medina, Islam has been received in all corners of the world. Large populations of Muslims live outside the Middle East. Hundreds of millions of Muslims do not speak Arabic, nor do they subscribe to the Arabic culture. Even in the Middle East, the Persians, the Turks, and the Kurds have preserved their languages and cultural traditions. As noted above, Indonesia, far away from the Middle East, is the largest Muslim nation. South Asia, the birthplace of Hinduism and Buddhism, is hugely Islamic. Millions of Muslims have emigrated to Europe and North America. Muslims born in Western countries are the product of Western culture. Observers must conclude that Islam is multicultural, multilingual, and diverse. In examining the cultural and linguistic dynamics of Islamic law, contemporary ijtihad draws important conclusions. First, the cultural and linguistic diversity of Muslim communities is compatible with the Basic Code. In fact, the Basic Code, particularly the Qur’an, presents linguistic and cultural pluralism as part of God’s plan (30:22). From intellectual viewpoints, linguistic diversity may be explained in historical, geographical, sociological, or anthropological terms. It might be predicted that the globalization of humanity would generate a single language, as evidence points out the extinction of numerous languages. Even mighty languages that were once spoken in preeminent palaces of the world have lost influence. The ebb and flow of languages and the related cultures constitute evolutionary diversity that cannot be suppressed. Even within monolingual nations, regions develop their own vocabulary, accent, idiom, and other distinctive features. Since linguistic diversity is God’s plan and not an aberration, Islamic law respects languages and cultures. 8

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Introduction Islamic law does not espouse or impose monolingualism. Millions of Muslims speak multiple languages. Second, the Arabic language, the language of the Basic Code, shall remain an integral part of Islamic rituals. Muslims all over the world wish to learn the Arabic language to recite the Qur’an as it was revealed to the Prophet. Reading and listening to the Qur’an in Arabic are sacred activities. Muslims throughout the ages have said their daily prayers in Arabic. The opinion that Muslims should be free to say prayers in their native languages has gathered no respectability. Hundreds of opiniojurists and theologians from all parts of the world have devoted their lives to learning and explaining the language of the Basic Code. The classical fiqh was originally developed in Arabic. Even today, when the majority of Muslims live in non-Arabic nations and communities, the Arabic literature and commentaries continue to illuminate the development of Islamic law. Despite the immense influence of the Arabic language, Islamic law has not been tied to Arabic dialects and cultures. In addition to listening to the Qur’an in Arabic, Muslims are eager to understand the meaning of the Basic Code. Muslims are, therefore, studying the Basic Code in native languages. Just like the principles of science and mathematics, the Basic Code is metalingual. To transmit the metalingual principles of the Basic Code, translations of, and commentaries on, the Qur’an and the Prophet’s Sunnah have surfaced in almost all written languages of the world. For example, South Asian opiniojurists and judges, writing in Urdu and English, have had a tremendous influence on the modern development of Islamic law. Malaysia is becoming the financial center in launching innovative investment and banking products that comply with the Shariah. Legal scholarship produced in the United States is likely to influence the development of Islamic thought for generations to come. These linguistic and cultural developments are compatible with God’s plan of diversity; they strengthen rather than weaken the foundation of Islamic law. Third, diversity of Muslim communities does not, and should not, undermine the unity of the Muslim Ummah or the peoples of the world. The Basic Code unites the Muslims of the world, whether they are Egyptians, Persians, Turks, Pakistanis, Indonesians, Europeans, or Americans. Belief in Allah as the sole sovereign of the universe, daily prayers, fasting in the month of Ramadhan, paying zakah (almsgiving) for the benefit of the poor, performing the hajj, raising children in the realm of affection and responsibility, taking care of old and frail parents, tangible commitments to the good of 9

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Contemporary Ijtihad the family and community; these and other common values derived from submission to the Basic Code constitute the heart and soul of the Muslim Ummah. Muslim communities, though diverse in speech and ethnicity, relate to each other in mutual respect. Gregarious and respectful, they do not isolate themselves from peaceful non-Muslim communities. Muslim Ummah is part of the peoples of the world. Islamic civilization is part of human civilization.

Gracious Coexistence In addition to espousing diversity and pluralism within the Muslim world, contemporary ijtihad recognizes the divine principle of gracious coexistence under which Islam interweaves mutually respectful relationships with diverse legal traditions and belief systems. The divine principle is laid down in the injunction of the Qur’an, “lakum dinukum waliya din” (“To you, your way, and to me, mine” (109:6)). The Basic Code does not allow Muslims to deride much less forcibly impose Islamic beliefs on non-Muslims. Under this principle, incompatible beliefs coexist side by side, without any need to resolve the difference. For example, Christians may continue to believe that Jesus is the Son of God, a belief inconsistent with the Basic Code. The principle of gracious coexistence extends to atheists and communists who may advocate that no god exists, thus violating the most fundamental norm of Islam. The coexistence of divergent beliefs is indispensable for forging respect between Muslims and adherents of other faiths. Religious respect cannot occur unless the pluralism of belief systems itself is part of the belief system. The principle of gracious coexistence is an immutable norm of the Basic Code, which prohibits disrespect of other religions incompatible with the Basic Code. The principle of gracious coexistence outlaws all forms of religious intolerance. Muslims have received no mandate from God to obliterate or transform other belief systems. Non-Muslims living in Muslim states are free to practice their beliefs contrary to the teachings of Islam. Non-Muslims may be invited to Islam through peaceful and agreeable means, but they cannot be coerced to accept Islam, nor can they be reduced to inferior citizenship if they live in Muslim states. Jews, Christians, Hindus, Sikhs, Buddhists, and other religious communities living in Muslim states are free to practice their respective religions. No Muslim, not even the Prophet Muhammad, has been given the power to convert any person to Islam, because “God guides whom He pleases” (16:93). 10

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Introduction

Western Criticisms Unfortunately, much Western scholarship stands in breach of the principle of gracious engagement. Among non-Muslims throughout the world, Western scholars have been the most vociferous in attacking the Qur’an and the Prophet’s Sunnah, maintaining, overtly or covertly, the age-old thesis that Islamic divine sources are inherently fraudulent. Western universities, including law schools, reward scholars prone to find faults with Islam and Islamic law, but who earn little influence in the Muslim world. Western scholars have been most vocal in criticizing classical fiqh, though some mistakenly confuse fiqh with the Shariah. Some identify the “Shariah” with fundamentalism that, they argue, spawns poverty, gender oppression, violence, ignorance, cultural segregation, intolerance, and unaccountable political structures. Some provide empirical analysis to argue that the notions of democracy, rights, and tolerance derived from Islamic principles are deceptive. Included in their reformative analysis is the intimation that Islam should be reduced to private faith, as has been done to other religions, so that Islam no longer shapes social, economic, political, and legal discourses. Even some Muslim jurists, living in the West, argue that the “Shariah” permits slavery, gender and religious discrimination and will continue to do so until specifically repealed.7 Contemporary Ijtihad addresses Muslim and non-Muslim scholars engaged in Islamic studies. It makes a simple point: no reform will be acceptable to Muslim communities if the reform argues that the Islamic belief system is false or erratic. Criticisms of Islam are legitimate academic pursuits. Even fierce strikes at the foundation of Islam fall within the realm of intellectual toleration, because the Qur’an itself mentions such strikes while the Qur’an was being revealed. However, scholarship that paints the Qur’an as fabricated and the Sunnah as fraudulent will have no influence on Islamic law, except that it generates ill-will among Muslims and disrespect for Islam among non-Muslims. Proposals that respect the integrity of the Basic Code are more likely to succeed in influencing the Islamic thought process and may make a difference in the real world. Resisting radical proposals for change, most Muslim communities are refusing to discard the entire past of Islamic law. Although some Muslim states have experimented with secularism – Turkey has officially adopted non-amendable constitutional secularism – most Muslim nations reject the secular model of law under which 11

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Contemporary Ijtihad legislative authority is reposed in institutions, divorced from religion, and law is separated from the principles of the Basic Code. Mainstream Muslim scholars and opiniojurists from across the world seem to have reached a near consensus that, although the Basic Code cannot be abandoned, it must be reinterpreted to establish legal systems that respect classical fiqh but also incorporate change. This evolutionary call – “that history, as a continuous movement in time, is a genuinely creative movement and not a movement whose path is already determined” – is made to extract Muslims from the historical stalemate and expose them to ceaseless dynamism.8 Every day, in the words of the Qur’an, shines with new freshness (shan) derived from God’s splendor and majesty (55:29). We have written this book from the internal viewpoint of Sunni Muslims, but we are respectful toward Shia fiqh. The book is unlikely to satisfy readers who wish to discard the Basic Code or who advocate aggressive separation of the so-called church and state. The separation of church and state, however, does not necessarily propose the suppression of religion as was the case in the defunct Soviet Union and other communist states. A secular state, such as the United States, could be highly respectful to religious pluralism. History demonstrates that Islamic law will remain a dynamic force in the private lives of Muslims, even if a state adopts secularism. The discussion in this book, however, is most instructive in the context of Muslim states, what we call fusion states, which declare Islam to be the state religion or their constitutions adopt the submission principle under which all bodies of positive law are brought into conformity with the Basic Code.

Notes 1. J. N. D. Anderson, “The significance of Islamic Law in the world today,” American Journal of Comparative Law, 9 (1960), 187. 2. Neil James Coulson, “Muslim custom and case-law,” in Ian Edge (ed.), Islamic Law and Legal Theory (New York: New York University Press, 1996), p. 259. 3. Coulson, “Muslim custom and case-law.” 4. Noah Feldman, The Fall and the Rise of the Islamic State (Princeton, NJ: Princeton University Press, 2008), pp. 21–5. 5. Noor Muhammad, “Principles of Islamic contract law,” Journal of Law and Religion, 6 (1998), 115. 6. Abu Al-Hasan Al-Mawardi, Al-Ahkam al-Sultaniya w-al, Wiliyat al-Duniya (The Ordinance of Government), trans. Wfaa H. Wahba 12

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Introduction (Deerfield Beach, FL: Garret Press, 1996). Al-Mawardi (972–1058) was the first Muslim jurist to offer an insightful treatise on the relationship between the ruler and the rule of law. Unfortunately, Mawardi appears to have ratified power adventurism under which a usurper is vested with legitimacy, provided he enforces the law of the Basic Code. Usurpation in the shadow of the Basic Code has been a perpetual problem in Muslim political history. Military coups are examples of modern power adventurism. See L. Ali Khan, A Theory of Universal Democracy (London: Kluwer International, 2003). 7. Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse, NY: Syracuse University Press, 1990), pp. 172–7. 8. Allama Muhammad Iqbal, The Reconstruction of Religious Thought in Islam (Lahore: Institute of Islamic Culture, 1986 [1934]), p. 132.

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1

Classical Era of Ijtihad, 632–875

The classical era of ijtihad, which lasted for about 250 years (632–875), was a period of astounding jurisprudential research and creativity. A critical awareness of this period is valuable for understanding contemporary ijtihad. The classical period underscores a simple but powerful thesis that Islamic law is inherently dynamic and diverse, responsive to customs, cultures, and commerce, and to the diversity of nations, communities, and global conditions. The classical era also demonstrates that God’s Law animates the physical universe and systems of knowledge on a daily basis. Islamic law in all times and in all places must, therefore, proactively respond to changing realities under the guidance of the Basic Code. Any assertion that the Basic Code alone can answer all legal questions is as unsustainable, as is the counter-assertion that the Basic Code is irrelevant to the technological intricacies of contemporary life. The classical era of ijtihad is closely related to, but distinguished from, the period of prophecy (610–32) during which the Qur’an was received and the Prophet’s Sunnah was delivered. The classical period may be counted from 632, the year the Prophet passed away, to 875, the year when the five founders of madhabs (Islamic schools of jurisprudence), Sunni and Shia, had launched their teachings and passed away. All the founders of the five madhabs were born and died during the classical period. Abu Hanifa, the founder of the largest Sunni madhab, and the most senior Sunni opiniojurist, died in 767. Abu Hanifa’s two eminent students, Al-Shaybani (d. 750) and Abu Yusuf (d. 798), who collected and systematized the Hanafi madhab in their written works, also belonged to the classical period. Malik ibn Anas, who established a Sunni madhab in Medina, the city of the Prophet, died in 795. Al-Shafi and Ibn Hanbal, who initiated the last two Sunni madhabs, died in 820 and 855, respectively. Included in the classical period are the life spans of two great researchers and compilers of ahadith: Al-Bukhari (809–869) and Al-Muslim (817– 75). The founders of the Shia madhab, Muhammad Al-Baqir and his son, Jafar Sadiq, were contemporaries of Abu Hanifa; they died in 14

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Classical Era of Ijtihad, 632–875 731 and 765, respectively. The opinions of Al-Baqir and Jafar Sadiq are an integral part of Islamic fiqh, not just Shia fiqh. The year 874 was a momentous year in Shia theology. In 874, Hasan Al-Askari, the eleventh Shia imam died, and the same year the twelfth Shia imam disappeared, thus ending the “infallible” series of imamate derived from the Prophet’s family. Thus, by the year 875, 243 years after the Prophet’s death, all the founders of the five madhabs and the two great ahadith scientists of the Prophet’s Sunnah had completed their work and passed away, having successfully launched a remarkable period of scientific research and laid a concrete foundation for Islamic fiqh. Each madhab would painstakingly develop detailed rules and regulations of family law, decedents’ estates, trusts, contract law, commercial law, taxes, property, secured transactions, payment systems, and criminal law. These rules put together constitute classical fiqh. However, classical fiqh is not a monolithic corpus of law. Even though the five madhabs agreed on numerous rules, they also differed significantly from each other. Therefore, substantive rules of fiqh on the same legal issues could vary from madhab to madhab.1 Even though each madhab was further developed in subsequent centuries, the later generations of jurists worked within the established precincts of madhabs, for the most part refining, rather than dramatically reforming, prior rulings and opinions. Attempts to establish new madhabs remained unrewarding. In the early fourteenth century, while the Mongols ruled large parts of the Muslim world, Ibn Taymiyya (1263–1328) launched a powerful scholarly attack on taqlid and argued for the establishment of new ijtihad. Though highly controversial in his time, some of Taymiyya’s ideas influenced later jurists, including Abd-al Wahab, who established the Saudi fiqh of Wahhabism. Yet Taymiyya failed to establish a new madhab. The five madhabs became so influential in Islamic law that Muslim communities across diverse lands were identified with their association with particular madhabs. The Hanafi madhab rose as the most dominant school of fiqh in large parts of the Muslim world, while the Hanbali madhab gathered the smallest following. Turkey, Palestine, India, Pakistan, and Afghanistan follow the Hanafi madhab; North Africa, Nigeria, and the Sudan follow the Maliki madhab; Egypt, Indonesia, and east Africa follow the Shafi madhab; Saudi Arabia follows the Hanbali madhab and its derivative Wahhabi fiqh; and the Shias in Iran, Iraq, and other parts of the world follow the Jafari 15

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Contemporary Ijtihad madhab. Collectively, the five madhabs hold the treasure of Islamic fiqh. No Muslim nation can afford to discount or discredit the treasure of classical fiqh. Anti-madhabbism that proposes a wholesale rejection of classical fiqh is tantamount to a supercilious denial of a precious gift. (It is akin to throwing away the entire common law of England.) Anti-madhabbism is not a repudiation of Islam or the Basic Code, it is a call for fresh start, a call for new interpretations of divine texts in accordance with contemporary needs and without the burden of classical rules. This radical approach toward the reformation of Islamic law is part of contemporary discourse. Secularists within Muslim communities, who wish to privatize the Basic Code for personal guidance, propose that public laws pay no attention to classical fiqh. The twentieth-century secular revolution in Turkey, determined to pursue modernism, scrapped classical fiqh and borrowed reams of law from the West. A similar repudiation of classical fiqh, advanced mostly in the West, by both Muslim and non-Muslim scholars, has failed to muster actionable support in Muslim communities. No Muslim jurist should forget, however, that madhabs are not divine; they are human interpretations of divine texts. Note the distinction between deen and madhab, for they are not synonymous. Deen is from Allah (3:83); madhab is human. Deen is the unshakeable faith in the Basic Code. Madhab is a voluntary adoption of Islamic fiqh. Deen is one and the same for all Muslims. Madhab can vary from nation to nation and from time to time. Deen is constant and immutable. Madhab is the product of changing spatiotemporal events. Deen without a madhab could lead to error, but a madhab without deen is devoid of Islam. For many centuries subsequent to the classical period, however, Muslim communities received and practiced the five madhabs as if they were divine interpretations of divine texts. The faith in Islam was securely tied to subscription to madhabs, as if one could not be separated from the other. Though all madhabs were respected in Muslim communities, a person without a madhab was a person without a guided way of life. Subscription to madhabs offered a survival strategy when non-Muslims occupied Muslim lands or when Muslim rulers themselves drifted away from Islam. In strict adherence to madhabs, however, human interpretations of divine texts became the sacred law of Islam, diluting for some adherents the distinction between fiqh and the Basic Code. This dilution of the distinction was 16

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Classical Era of Ijtihad, 632–875 a great jurisprudential error, bordering on shirk (associating partners with God), though committed unintentionally. Divine texts should never be fused with human understandings of divine texts.

Basic Code, 610–32 One remarkable achievement of the classical era was the preservation of the Basic Code, the Qur’an and the Prophet’s Sunnah – the two immutable divine sources of Islamic law. While the text of the Qur’an was definitively preserved soon after the Prophet’s death, the Prophet’s Sunnah remained uncertain for decades. It was unclear to early Muslims to what extent the Sunnah should be an integral part of the Basic Code, partly because early Muslims focused on the Qur’an to the exclusion of everything else and partly because the definition of the Sunnah, as explained below, was far from certain. In addition to this normative uncertainty, the logistical difficulties of retrieving the Prophet’s Sunnah posed additional barriers. Mostly oral and some written ahadith circulated in different parts of the emerging Islamic empire. But the task of separating the true from the false ahadith and verifying both the substance and the source of each reported hadith was a huge undertaking, particularly because opposing political groups used and even manufactured ahadith as weapons to legitimize their respective political, theological, social, and familial viewpoints. While the Prophet’s Sunnah was being determined, the Qur’an remained the undisputed part of the Basic Code. Qur’an, 610–32 The Qur’an, the supreme source of Islamic law, is God’s Law. In 610, the first verse of the Qur’an – “Read in the name of thy Lord who created” (96:1) – was revealed in the month of Ramadhan. The first revealed verse sets knowledge, that is, reading and learning, as the primary introduction to Islam. Islamic faith is an epistemic faith. It is anchored in sophisticated spiritual, rational, and practical knowledge. Over the next twenty-three years, the Qur’an was revealed piecemeal, mostly in response to concrete situations and questions (asbab alnuzul) that the Prophet faced dealing with Muslims and non-Muslims. This method of revelation made the Qur’an a practical guide to solving problems arising in the real world. The Qur’an was completed in 632, shortly before the Prophet’s death. One of the last verses contained the following injunction from God: “This 17

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Contemporary Ijtihad day have I perfected your religion for you, completed my favor upon you, and have chosen for you Islam as your religion.” This was a profound closure of God’s Law, emphasizing for Muslims a sense of completion, and rendering a textual code of behavior infused with broad principles, specific rules, and a general invitation for further reflection over legal matters. The Qur’an, as the source of God’s Law, is not the first book to be revealed to human beings. The Qur’an descended from the same Original Book (umm al-kitab) written on a well-preserved Tablet (85:32) retained in God’s presence, from which other scriptures, including the Torah and Gospels, have descended. Though revealed in diverse languages to various Prophets in different eras, all scriptures, according to the Qur’an, are derived from the same Original Book. Confusion has arisen, according to the Qur’an, because some divine texts have been corrupted. Nonetheless, the Qur’an testifies to the unity and integrity of God’s Law, good for all times, all places, and all communities. The concept of God’s Original Book establishes the need for interfaith dialogue and mutual respect for each other’s faith; it challenges believers of all scriptures to launch a shared effort to discover God’s eternal and universal Law. In recognizing the purity of the Qur’an and its proximity with the Original Book, there remains an intergenerational consensus among Muslims that each word of the Qur’an, as it is placed in the text, is the Word of God; and, therefore, no word, let alone a verse, section, or chapter of the Qur’an can be altered or its sequence rearranged. As such, the Qur’an is an immutable divine text. Professor Arkoun, a French Muslim scholar, points out an important, though obvious, fact that the Qur’an did not come to the Prophet as a written text but was communicated orally.2 It was about twenty years after its oral completion that the Qur’an was officially embodied in one written text. But what distinguishes the Qur’an from other oral revelations is an internal belief among Muslims that the written text of the Qur’an is a true copy of the oral text. The textual integrity of the Qur’an is a founding pillar of Islamic law. No concept of justice, equality, modernity, progress, evolution, or ijtihad can alter the text of the Qur’an. The immutability of the Qur’an is the supreme law, which has been strictly observed over the centuries. Reflection and scientific research, however, makes the Qur’an accessible to each generation of Muslims and non-Muslims, sometimes in ways not known to previous generations. Consider, for example, the following verse of the Qur’an: “And it is We who 18

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Classical Era of Ijtihad, 632–875 have built the universe with our power; and, verily, it is We who are steadily expanding it” (51:47). The meaning of this verse is now clear in light of the scientific research that the universe is not static, but constantly expanding.3 This meaning of the Qur’an has been hidden from previous generations, even though the invitation to reflect upon the expansion of the universe was always there. Each generation of Muslims is invited to interpret the Qur’an in light of their shared knowledge and experience, though always benefiting from prior understandings. Interpretation, however, is no light undertaking; it is an onerous responsibility. The Qur’an itself alludes to the difficulty of interpretation: He [God] it is Who has sent down to thee the Book: in it are verses basic or fundamental [of established meaning]; they are the foundation of the Book: others are allegorical. But those in whose hearts is doubt follow the part thereof that is allegorical, seeking discord, and searching for its hidden meanings, but no one knows its hidden meanings except God. And those who are firmly grounded in knowledge say: “We believe in the Book; the whole of it is from our Lord”: and none will grasp the Message except persons of understanding. (3:7)

Verse 3:7 divides the Qur’an into two sets of reading: clear and allegorical. Qur’anic verses are either mohkamat or mutashabihat. Mohkamat verses are easy to understand and not subject to interpretation. In contrast, mutashabihat verses are open to interpretation and may not be easy to understand. The Qur’an recognizes the possibility of mischief when interpreters begin to decode the hidden meaning of allegorical verses. The Qur’an warns that some may interpret allegorical verses for no purpose besides sowing dissension. Others may, indeed, end up sowing dissension even though they employ no such intention in interpreting allegorical verses. To discourage both intended and unintended discord, the Qur’an prohibits speculation by saying that only God knows the meaning of allegorical verses. Verse 3:7 has been a source of profound controversy in Islamic fiqh. Ibn Rushd (Averroes) read the middle portion of the verse as follows: “but no one knows its hidden meanings except God and those who are firmly grounded in knowledge.” According to Ibn Rushd, God has not retained the exclusive authority over allegorical verses. Persons of knowledge have also received the ability to decipher the meaning of allegorical verses. This reading of the verse opens the hermeneutic door wide for theological philosophy. Ibn 19

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Contemporary Ijtihad Rushd concludes that only persons of understanding will grasp the entire message of the Qur’an. Furthermore, if only God knows the meaning of allegorical verses and if no human being, regardless of knowledge, has been given any access to the hidden meaning of allegorical verses, one may wonder for what exact purpose allegorical verses are revealed at all. Notwithstanding the debate with respect to verse 3:7, two modes of interpretation have been employed to understand the meaning of the Qur’an: tafsir and ta’wil. Tafsir places the meaning of the Qur’an in historical context, using grammar, the ahadith, plain meaning, logic, and reason. Ta’wil is allegorical, intuitive, meditative, and poetic. Sufis in Islam strive to decode the unknown and the hidden in divine texts, a practice closely related to mystical poetry. Sufis do not simply read or understand divine verses; they experience the Qur’an and seek its secrets not accessible to the formalist, the textualist, or the jurist. Sufis have been both loved and loathed for their practices, utterances, and teachings. Some were executed for crossing the boundaries of Islamic law.4 Executions of Sufis are regrettable. Sufi contributions to Islamic law, however, cannot be minimized for they, generation after generation, illuminated the principles of tolerance, diversity, and human dignity, the principles without which a legal enterprise falls into prejudice and self-righteous partiality. In the realm of law, Muslim jurists, including Sufis, disagree over the number of verses of the Qur’an directly related to prescriptive rules of lawful and unlawful behavior. Al-Ghazali, a jurist and a Sufi, identifies nearly 500 verses relevant to law. The rules in the legal verses might be ‘aam (general), khas (specific), mutlaq (absolute), muqayyad (restricted) mujmal (comprehensive), or mubayyan (explicit). Some scholars assert that the actual number of prescriptive verses is 900 or even more. Whatever the number of prescriptive verses, although the counting of law verses is a permissible juristic undertaking, knowledge of the entire Qur’an is beneficial, perhaps necessary, to understand the limits of prescriptive verses. Isolated readings can lead to over-inclusive or under-inclusive interpretations of the prescriptive verses. For analytical purposes, therefore, jurists must regard the entire Qur’an as a unified and internally coherent divine text. Prescriptive verses must not be isolated from the rest of the Qur’an, even though paying more careful attention to the verses dealing with specific legal issues is permissible. Understandings of any text, let alone a divine text, can lead to confusion and even contradictions when the text is 20

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Classical Era of Ijtihad, 632–875 artificially segmented into autonomous portions. The Qur’an itself espouses the concept of a book not only internally unified but related to other divine texts revealed to prior Prophets. Yusuf Al-Qaradawi, a contemporary opiniojurist, points out that even the stories of prior Prophets narrated in the Qur’an contain elements of law. For instance, the story of the Prophet Joseph testifying his acceptance of public office in ancient Egypt implies that it is permissible for believers to hold public office in non-believing communities. The Qur’anic stories invite jurists to reflect upon their meaning in contemporary contexts and draw responsible prescriptive rules consistent with the entirety of the Qur’an. Stories read in isolation might also lead to the same errors, as do isolated reading of verses of the Qur’an. Furthermore, for obtaining coherence and completeness, jurists must read and understand the Qur’an in light of the Prophet’s Sunnah. Since the Qur’an is a practical code of behavior, the Prophet’s mission included offering explanations and applications of the Qur’an to concrete facts and disputes. So the Prophet’s own conduct in life, his deeds, his sayings, and his methods of dispute resolution, everything he said or did, are illuminations of the Qur’an. As such, the Prophet’s Sunnah is regarded as an indispensable source of guidance in all matters, including law. The Qur’an confers legitimacy on the Prophet’s Sunnah in numerous verses, including the following: “And whatever the Messenger gives you, take it, and whatever he forbids you, leave it. And fear Allah: truly Allah is severe in punishment” (59:7). The Prophet’s Sunnah is an indispensable part of the Basic Code. Prophet’s Sunnah, 610–32 The Prophet’s Sunnah is the Prophet’s law. After the Qur’an, which reveals God’s Law, the Prophet’s Sunnah is the second major source of Islamic law. It is composed of the Prophet’s decisions, explanations, clarifications, and other pronouncements, collectively called ahadith. If the Qur’an is the text, each hadith is a case. The Sunnah is thus the case law decided in light of the Qur’an. The Sunnah is the first tafsir Qur’an. The Qur’an mandates that Muslims obey both God and the Prophet (3:132). “And whatever the Messenger gives you, take it, and whatever he forbids you, leave it. And fear Allah: truly Allah is severe in punishment (59:7)” Therefore, the Sunnah embodies a valid and mandatory source of law. However, not every hadith embodies an obligatory rule. Some ahadith contain 21

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Contemporary Ijtihad the Prophet’s personal preferences that he did not wish to impose on all Muslims. For example, the Prophet loved honey and other sweet edibles. Muslims are under no obligation to eat honey or sweets. Some ahadith are fact-based and must not be interpreted in an overinclusive manner, while others contain clear rules. Muslims who wish to follow the Prophet’s personal preferences in each and every way are free to do so. However, the ahadith that impose legal obligations must not be confused with others that simply contain the Prophet’s personal practices that he did not wish to be considered obligatory. Since the ahadith were collected long after the Prophet’s death, their authenticity was less than automatic. This is so because some ahadith were falsely attributed to the Prophet. Some of these fabrications were harmless, while others were fabricated to promote concrete political and ideological goals. One of the greatest scholarly enterprises in the Islamic legal tradition has been to identify the false ahadith. Scholars of great piety and intelligence devoted their entire lives to scrutinizing rigorously each and every hadith attributed to the Prophet. Finally, the works of a few great scholars, particularly Imam Bukhari and Imam Muslim, have been broadly accepted as the most reliable compilations of authentic ahadith. The monumental work of painstakingly separating the false ahadith took about 260 years following the Prophet’s death. By the end of the ninth century, Muslim scholars finally agreed that a body of ahadith may be accurately attributed back to the Prophet, since the contents of the ahadith were compatible with the message of the Qur’an and the chains of transmission were reliable. Furthermore, any ahadith that testified to the actual practices of a community of believers, including recognized pious men, were considered authentic. By contrast, the ahadith without any corresponding practice were more likely to have been fabricated. Thus, the authenticity of a Prophet’s hadith was not simply in the transmission of an abstract normative law. Its authenticity lies in the actual practice (amal) of the pious people. In other words, a hadith that no Muslim community followed was considered to be weak or fabricated. For the Islamic world, the debate over the sources of the Sunnah had come to an end, but not for non-Muslim scholars. For all purposes, the Sunnah is subordinated to the Qur’an; yet the two together constitute the Basic Code. Completed within the same twenty-three-year period in which the Qur’an was revealed, the Sunnah consists of ahadith – cases, observations, comments, opinions, and deeds of the Prophet – accurately recorded and trans22

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Classical Era of Ijtihad, 632–875 mitted by Muslim scholars. The Sunnah explains, clarifies, applies, and interprets the text of the Qur’an in the context of concrete cases that arose during the period of prophecy. For the jurists, therefore, the text of the Qur’an and the Sunnah are in philosophical, intellectual, spiritual, and conceptual harmony. Just like the Qur’an, the Prophet’s Sunnah covers a wide range of issues. As such, not all ahadith deal with law, but ahadith remain a secondary source of law. No serious jurist in the classical era of ijtihad argued that the Basic Code should be reduced to mere injunctions of the Qur’an, completely ignoring the Sunnah, for such a jurisprudential model would have severed an essential source of law and wisdom. The controversy about the Sunnah revolved around the accuracy of ahadith – the reported historical materials purported to contain the contents of the Sunnah. There was a remarkable consensus among jurists that not all reported ahadith were accurate. Whereas the Qur’an is one and the same for all Muslims for all time, the reported ahadith fall short of enjoying universal approval across the Muslim world. This variance arises in part because some reported ahadith have been found to be forged, others altered, and still others are considered weak in their authenticity. A reported hadith, for example, is not considered authentic if its chain of transmission is defective or if its substance is doubtful in light of the Qur’an. Defective and doubtful ahadith do not constitute the Sunnah law. Despite controversies about the substance and source of some ahadith, there exists a core collection of ahadith – an authentic body of the Sunnah – that constitutes the essential part of the Basic Code. The first and foremost task facing early scholars was to ascertain the undisputed corpus of authentic ahadith; therefore, a methodology of retrieval was established. Scholars meticulously researched the content and transmission of each hadith. This process of verification was launched to separate authentic ahadith from frivolous and false ones. Though the process of ahadith collection started soon after the Prophet’s death, the final reporting of authentic ahadith, which could without doubt be attributed to the Prophet, took place in the middle of the ninth century, that is, a little more than 200 years after the Prophet’s death. Of many collectors of the ahadith, Bukhari and Muslim have earned a unique place in the history of the Sunnah, as their collections not only present the most authentic ahadith, but the reporting is organized in an orderly and code-like manner. Despite a universal consensus among Muslims that the core body of authentic ahadith has been identified and codified, Western 23

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Contemporary Ijtihad scholarship continues to challenge the validity of the consensus. The most credible challenge came from a Hungarian scholar, Ignaz Goldziher, who argued that a great many ahadith considered authentic are not so in reality.5 Despite Western challenge, the internal viewpoint about the authenticity of the established Sunnah remains unshaken.6 Some Western scholars have also embraced the Muslims’ internal viewpoint on the authenticity of ahadith.7 Much confusion arises from using the words Sunnah and hadith interchangeably. A hadith is a historical report, whereas the Sunnah is the obligation to observe the law contained in an authentic hadith. A universal consensus exists among Muslims that an authentic hadith is an integral part of the Sunnah and the Basic Code. Hence, the controversy among diverse sects of Islam is not about the binding character of the Sunnah, but about the authenticity of certain reported ahadith. For all Muslims, the Sunnah carries one and the same meaning: it consists of obligations arising from authentic ahadith. If a certain hadith is forged, it is not part of the Sunnah for any Muslim. Even doubtful ahadith fall short of becoming an integral part of the Sunnah. A clear understanding of the Sunnah is critical for determining the parameters of the Basic Code. The Sunnah, as part of the Basic Code, does not include pre-Islamic Arab customs, except to the extent these customs are specifically incorporated in the Qur’an or authentic ahadith. This point is important because the word Sunnah, as a quasi-legal concept, existed long before the dawn of Islam. Thus, the Prophet’s Sunnah is both normative and customary. It is normative in the sense that it creates rights and obligations; it is customary in the sense that many of its rules have arisen from actual customary practices of pre-Islamic Arabia. The Prophet’s Sunnah, however, also made profound changes in pre-Islamic customs and practices. Therefore, the Prophet’s Sunnah and Arab customs are not synonymous. Nor is there any legal presumption in Islamic law that postIslamic Arab customs are closer to the Prophet’s Sunnah. Islam as a universal religion cannot be tied even to the customary practices of Mecca and Medina, the two holy cities tied to the Basic Code. Al-Shafi, one of the five founders of classical fiqh, devotes several pages to clarifying this point. He warns that the Prophet’s Sunnah should not be confused with the Sunnah of the first four caliphs, that of the Prophet’s companions, or that of his family members. What the first four caliphs, the Prophet’s companions, and his family members – including his wives, daughters, grandchildren, or cousins – 24

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Classical Era of Ijtihad, 632–875 said or did, or the cases they decided, deserves utmost consideration and respect, for they knew the Basic Code closely. Yet the Sunnah, as part of the Basic Code, is confined to the Prophet and to no one else. For the Shia, the Sunnah of Ali – the fourth caliph and the Prophet’s son-in-law – and that of his descendants constitute an additional source of binding law. Yet the Basic Code for all Muslims, Shia and Sunni, is the Qur’an and the Prophet’s Sunnah. As noted above, the Sahih Bukahri and Sahih Muslim compilations of ahadith are regarded as the most reliable sources of the Prophet’s Sunnah.8 Note, however, that not every hadith mentioned in these sources is attributed to the Prophet’s sayings and deeds. The Bukhari compilation includes ahadith of the Prophet’s companions. The sayings of Prophet’s companions, though mentioned in Bukhari or Muslim, and though these sayings must be given due weight in fiqh, are not part of the Prophet’s Sunnah. For example, Bukhari reports that Omar, the second caliph, said: “O Allah! Grant me martyrdom in Your cause, and let my death be in the city of Your Apostle [Medina].” This hadith is that of Omar, and not that of the Prophet. The only link that the hadith has with the Prophet is Omar’s desire to be martyred in Medina, known as the Prophet’s city. The hadith contains no elements of Islamic law; it imposes no obligations, nor does it contain any rights for desiring Muslims to be buried in Medina. Most importantly, this hadith does not describe anything that the Prophet said or did. The hadith, however, read with other ahadith, reaffirms the holiness of the Prophet’s city, and the love it engenders among Muslims. Normative Hierarchy In order to clarify the relative weight of the rules found in the Qur’an and the Sunnah, the founders of madhabs developed the rules of normative hierarchy. As a general principle, the Sunnah must always be understood and applied in light of the text of the Qur’an. No hadith can modify the Qur’an, though the Qur’an can modify the hadith. In this hierarchical normative order, the Qur’an is the supreme source of law. Compatible with the Qur’an, an authentic hadith serves as a binding precedent. However, a rule of the Sunnah cannot be stretched out of its meaning and context. For example, if the facts of a new problem are such that the application of a Sunnah rule would lead to inequity or injustice, the Sunnah, though still valid in its rightful sphere, cannot be used to solve the problem. In such situations, 25

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Contemporary Ijtihad ijtihad would allow that a new rule be decreed. The new rule decreed through ijtihad, however, must fit in with the broader landscape of the Basic Code. This methodology is no different from the one employed in other legal systems, including common law. However, unlike common law under which a binding precedent can be altered or discarded, a Sunnah rule cannot be changed, though it can be confined to its facts and contexts. The immutability of the Sunnah is similar to that of the Qur’an, as both offer rules beyond revision or repeal. However, the Qur’an is universal and eternal, whereas the Sunnah is the application of the Qur’an in a definite temporal and spatial context. Islamic law is not text-skeptical. Texts carry meaning independent of their readers. However, text and meaning carry different weights in the understanding of the Basic Code. In the case of the Qur’an, the text is the supreme source of law. The Words of the Qur’an are fixed, though their meaning is flexible. In the case of the Sunnah, the focus of law is more on the meaning, rather than on the words of the ahadith. Still, the reported words of ahadith cannot be altered. Even though no meaning can exist without words, the significance of the text of ahadith is not the same as that of the text of the Qur’an. This distinction is derived from the simple historical fact that the words of ahadith were retrieved and reported long after the Prophet had passed away, whereas the Words of Qur’an were preserved as soon as they were revealed. Furthermore, the Words of Qur’an are revealed, whereas the words of ahadith are at best inspired, not revealed. Scholarly controversy surrounds this distinction as well. At one time, for example, Abu Hanifa, one of the five founding jurists of classical fiqh, argued that even the Words of Qur’an were inspired, not revealed. He later changed his mind. On the other hand, some scholars argue that ahadith are no more than the Prophet’s opinions, which are neither revealed nor inspired. One implication of such a characterization of ahadith would have allowed subsequent generations of scholars to confine the Prophet’s opinions to their time and place. Some might have proposed to discard them altogether. In the realm of Islamic law, the Prophet’s Sunnah is divine and an integral part of the Basic Code. Even though both the Qur’an and the Sunnah came from one and the same source, the Prophet Muhammad, the distinction between the two sources must be honored. For legal and analytical purposes, the Qur’an is infallible but the Sunnah is vested with the presumption of infallibility. The 26

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Classical Era of Ijtihad, 632–875 Prophet could not alter the words of the Qur’an, but he could overrule his own prior decisions. A famous hadith demonstrates that the Prophet did, indeed, change his prior opinions. While visiting a palm orchard, the Prophet prohibited the customary artificial pollination of palm trees. The growers obeyed the Prophet’s command. However, the trees yielded a poor quantity of dates, less than that which artificial pollination would have produced. When the case was brought to the notice of the Prophet, he said: “If a question relates to your worldly matters, you would know better about it, but if it relates to your religion, then to me it belongs.” This hadith shows that the Prophet is indeed fallible. The Shia, however, strictly adhere to the concept of Prophet’s infallibility. They dispute the authenticity of the pollination hadith. A question arises whether, relying on the fallibility doctrine, opiniojurists can declare a certain hadith dealing with worldly matters to be no longer valid. When opiniojurists are permitted to overrule divine injunctions, either under the concept of naskh (repeal) or fallibility, a great mischief is introduced into the interpretive enterprise of law. Best interpretive practices demand that opiniojurists find a solution most compatible with divine texts. In some cases, a certain legal content of the hadith may not be applied, even though its application is relevant. This case-specific non-application of a specific hadith, however, does not authorize opiniojurists, even through the medium of ijmah, to repeal or modify a hadith or declare it to be no longer a valid source of Islamic law. No such power has been given to scholars to overrule divine injunctions. The general mandate for opiniojurists is to fully enforce the Basic Code, leaving open the possibility that their interpretation might be inferior to a more superior but contemporaneously unavailable interpretation. Hadith controversies, rampant in the classical era of ijtihad, have now been settled. There exists a broad consensus among Muslims that the Qur’an is the Word of God, whereas ahadith carry messages that God inspired in the Prophet. According to this consensus, the laws contained in the Qur’an, as well as in authentic ahadith, constitute the Basic Code. These laws are binding on all Muslims. Although the Basic Code cannot be repealed, amended, or put in abeyance, it may be interpreted to meet the evolving needs of time. This allowance to expand Islamic law through interpretations of the Basic Code gave birth to classical fiqh.

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Classical Fiqh, 632–875 In addition to preserving the Basic Code, the classical era of ijtihad invented the concept of Islamic fiqh. While the Qur’an and the Sunnah contain the fundamental principles of law, fiqh consists of substantive law and legal methods that the first-era jurists formulated to solve legal problems for which no answers were directly available in the Basic Code. The substantive law developed by fiqh covered wide areas of legal relations, including, among others, contracts, family law, decedents’ estates, trusts, and property. The greatest contributions of fiqh, however, were the legal methods by which new rules could be extracted from the Basic Code. These legal methods established an interactive relationship between the Code and the jurist, implying that the Basic Code contains dynamic texts that yield new meanings in changed contexts, provided the jurist strikes an intelligent and active relationship with these texts. “On the earth are Signs for those of assured Faith, as also in your own selves: will you not then see?” (51:20–1). Classical fiqh used the parable of the wholesome tree to distinguish between legal principles and rules. Legal principles (usul) are seen as the root and legal rules (furu) as the branches of fiqh. Legal principles are firmly rooted in the Basic Code, that is, in the Qur’an and the Sunnah. Specific rules, however, are juristic opinions derived through either interpretation of the Basic Code or by some other legal method. Just as several branches grow out of the same tree, so sprout diverse schools of interpretation from the same Basic Code. And just as branches are an integral part of the same tree, so are the diverse schools of interpretation – for each madhab draws from the inner vitality of the same Basic Code. In this process of interpretation, great effort is made not to sever any rules from the Basic Code, for any branches severed from the tree turn into dead wood. This great effort (ijtihad) to tap into the inner vitality of the Basic Code to propose solutions to new legal problems prompts Islamic communities to live under the rule of law, rooted in the Basic Code, but not confined to any one madhab or to any one age of jurisprudence. Fiqh is founded on the simple principle that new laws can be formulated through reflective interpretation of the Basic Code: “We will show them Our signs in all the regions of the earth and in their souls until they clearly see that this is the truth” (41:53). In light of such verses of the Qur’an, the legitimacy of the interpretive principle 28

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Classical Era of Ijtihad, 632–875 was beyond doubt. The evolution of fiqh simply reaffirmed the actual practice of Muslim communities in the emerging Islamic empire, which supplemented the laws of the Basic Code with local customs, juristic opinions, and laws derived from other sources. Contrary to popular belief, the Basic Code does not provide direct answers to all issues and problems facing Islamic communities. The Basic Code furnishes fundamental norms from which more specific rules can be derived and the rules derived from other sources can be tested for their compatibility. It is in this fundamental sense that the religion of Islam was perfected before the Prophet’s death – for no one else but the Prophet alone had been the exclusive medium to receive the Qur’an and furnish the Sunnah. But the ever evolving details of individual, social, and economic life of Muslim communities with diverse cultures, languages, and legal customs require constant interpretation of the Basic Code. In fact, the interpretation of the Basic Code was done even during the Prophet’s life, and this interpretation became even more dynamic and fluid after his death. Fortunately, a good number of the Prophet’s companions were available to offer advice. The Prophet’s companions – men and women who associated with the Prophet, who saw and heard the Prophet decide cases, and who had an intuitive feel for the Basic Code and an understanding of social and spiritual contexts in which verses of the Qur’an were revealed and rules of the Sunnah were delivered – attained a very special place in fiqh. Rightly-Guided Caliphs, 632–61 The rulings of the first four Rightly-Guided Caliphs, Abu Bakr, Omar, Osman, and Ali, each one of whom was a relative and close associate of the Prophet, set the tone and scope of classical fiqh. The caliphate began in 632, after the Prophet’s death, with Abu Bakr, the Prophet’s close friend and father-in-law, and ended in 661 with Ali, the Prophet’s son-in-law. During this period, the caliph was both the executive and the lawgiver. In addition to discharging administrative duties of an emerging empire, the caliph was also the interpreter of the Basic Code. Few questioned the caliph’s authority to interpret the Qur’an and the Sunnah to design new rules of religious, social, and economic behavior. Ijtihad was at its best as the legitimacy of the caliph’s rule-making authority was fully intact. Unfortunately, three of the first four caliphs were murdered, injecting elements of unwarranted violence into Muslim politics. 29

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Contemporary Ijtihad During the reign of the first four Rightly-Guided Caliphs, the authority of ijtihad was exercised primarily by the caliph, even though juristic consultation was common. This era had no concept of separation of powers. The power to govern, the power to decide disputes, and the authority to interpret the Basic Code all belonged to the caliph. Judges (qadis) did appear, however, when the empire expanded. Still, the caliph served as the ultimate court. Furthermore, the secular was not separated from the sacred, as the caliph exercised the authority both as a worldly leader and as an imam, the religious leader. Caliphate and imamate resided in one and the same person. This merger made sense because the first four caliphs simply followed the model of power that the Prophet himself had exercised. Proponents of the governmental model of the Rightly-Guided Caliphs still argue that the Islamic state does not allow any separation of powers. During the reign of the first four caliphs, a norm seems to have been established that the ruler has no inherent authority to make laws. The norm might have arisen from the actual practice of the first caliphs, who claimed no independent legislative authority. This self-imposed restraint was most intriguing in light of the Qur’an, which states: “Obey God and obey the Prophet and those among you who have authority” (4:59). Of course, the ruler cannot invoke the Qur’an’s command to demand uncritical obedience from the community, for the ruler’s claim to obedience ranks third in the hierarchy; it is preceded by obedience to the Prophet and God. The command, nonetheless, opens the theoretical possibility that in addition to God and the Prophet, those in authority can furnish the rules of behavior. The first caliphs, however, did not interpret the provision to arrogate independent legislative authority to themselves. They seemed more inclined toward the enforcement of the Basic Code and its interpretive applications. Even in subsequent decades of the classical era, the ruler’s secular power did not emerge as an independent source of lawmaking. Consistent with the Qur’an’s command to obey God, the Prophet, and the ruler, an even more powerful norm came into existence: that the ruler could not legislate contrary to the Basic Code. Again, the norm was reinforced through the actual practice of the first four caliphs. The norm is in line with the normative ethos of Islamic consciousness – infused with anti-egoism, humility, submission to one God, and obedience to the Prophet. The Qur’an’s injunction that God has neglected nothing and explained everything in the revela30

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Classical Era of Ijtihad, 632–875 tion places a huge burden on rulers, scholars, and judges to search for answers in the Basic Code. When direct answers are unavailable, the Qur’an itself suggests that an effort be made to decipher the layers of meaning that the text carries. This mandatory effort (juhd) to seek guidance from the Basic Code, rather than rely on secular power or demands of the state, taught the first caliphs not to exercise authority in an arbitrary or rash manner. Thus, the first four caliphs established a firm principle that no Islamic government has unlimited or arbitrary authority to make and unmake laws, but must always uphold the Basic Code and operate within the limits of God’s Laws. This precept provided the bedrock on which classical fiqh would be built in subsequent decades of the classical era. The restraint on the government, however, does not prohibit or retard the interpretation of the Basic Code. It simply guides the Islamic state to anchor new laws in the principles of the Basic Code, for God is the Lawgiver to the lawgivers. When the authority to interpret God’s Law is vested in individuals or institutions, differences of interpretation is inevitable. Recognizing that even the most pious and competent believers will disagree in their understanding of God’s Law, classical fiqh eschewed any absolutist notion that there is only one righteous interpretation of the Basic Code. The first four caliphs, who were the Prophet’s companions and relatives, did not advocate any notion of self-righteous interpretation. They knew the context in which the verses of the Qur’an were revealed, and they had first-hand knowledge of the Prophet’s life and law. Each one of them was determined to rule in accordance with the Basic Code. If the answer to a problem was unavailable in the Basic Code, the caliph often conferred with the Prophet’s companions, thus establishing the practice of scholarly consultation in conducting affairs of the state. Though each caliph strived to derive new rules from the Basic Code, their interpretations on the issues were not always the same. This interpretative diversity among the RightlyGuided Caliphs established a norm that it is neither a sin, nor a sign of spiritual waywardness or intellectual weakness that even the best and the most pious, after diligent effort to seek guidance from the Basic Code, might reach different conclusions on the same issue. The Qur’an, for example, prohibits drinking liquor but prescribes no punishment. It simply warns that there is more harm than good in drinking. It is reported in ahadith that the Prophet prescribed forty stripes with palm branches for drinking alcohol. Another hadith reports that the Prophet smiled and did not order hot pursuit of an 31

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Contemporary Ijtihad intoxicated man who ran away to avoid lashing. Perhaps unsure about the exact punishment for drinking alcohol, the first four caliphs differed in prescribing punishment for drinking. The first caliph prescribed forty lashes. The second caliph, however, upon consultation with the Prophet’s companions, raised the punishment to eighty stripes, though mildly administered. The fourth caliph interpreted the Basic Code and concluded that the punishment for drinking liquor should be eighty lashes. He derived this rule through analogy by comparing the behavior of a person who consumes liquor with that of a person who falsely accuses a woman of committing fornication or adultery. The Qur’an prescribes eighty lashes for slandering a chaste woman. The prescribed punishment of eighty lashes for drinking is thus based on a presumption that drinking liquor causes a person to make false accusations. Eighty lashes for drinking liquor is not a rule of the Basic Code; it is a rule derived from the interpretation of the Basic Code. It is a rule of classical fiqh. Despite legitimacy conflicts surrounding the office of the caliphate, the first four caliphs actively engaged in the interpretation of the Basic Code. On some points they all agreed, on others they had different views. In divergent interpretations, however, they showed mutual respect, thus establishing the ethic of interpretive tolerance. The norm of interpretive tolerance further flourished when the authority to interpret the Basic Code shifted from the caliph to the jurist.9 Imams and Opiniojurists As soon as the era of the Rightly-Guided Caliphate came to an end, the law-making authority began to shift from the caliph toward the opiniojurist. This shift occurred in part because the office of the caliphate lost its spiritual legitimacy and in part because diverse families competed for political power. Even during the reign of the first four caliphs, the constitutionality of the caliphate was far from certain. Some argued that the caliph should always be a Prophet’s blood relative; others opted for a more democratic rotation of political power. Among the first four caliphs, only Ali was the Prophet’s blood relative. The other three, though related to the Prophet through marriages, did not have the same close blood ties as did Ali. The battle of Karbala – in which the Prophet’s grandson, Ali’s son, was brutally killed along with his family members possibly on the caliph’s order – is the saddest chapter in early Islamic political history. 32

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Classical Era of Ijtihad, 632–875 It created a permanent schism in the Islamic community, a schism which would later reappear in the Sunni–Shia divide. The battle of Karbala also weakened the spiritual authority of the caliphate as the caliph was no longer the trustworthy source of new law derived from the Basic Code. Shia and Sunni are two major sects of Islam. An overwhelming majority of Muslims are Sunni. The Shias are mostly concentrated in Iran and Iraq, even though they live all over the world. This sectarian division started as a dispute over political power. The Shia wanted the chief political office of the caliph to be reserved for the descendants of the Prophet’s daughter, Fatima. The Sunni did not accept such a political theory. As the schism deepened, theological dimensions were added to the Shia conception of Islam. Over the centuries, the two sects have lived with each other rather peacefully. More recently, however, the persecution of the Shia in predominantly Sunni countries has been mounting. A remarkable and more lasting era of interpretive fiqh dawned as the authority to engage in ijtihad drifted away from the office of the caliph, primarily for political reasons attributable to succession rules. The emerging Islamic polity failed to forge a consensus on how power should devolve from one ruler to the next. Three of the first four caliphs were murdered, further deepening political divisions among competing political constituencies vying for power. The situation worsened soon after the fourth caliph was killed. The fourth caliph’s older son, the Prophet’s grandson, assumed the office of the caliph. He, however, soon abdicated the office in favor of a more worldly, wise ruler. This abdication was a remarkable event in the history of classical fiqh, for the Prophet’s grandson renounced the caliphate but retained the imamate, thus separating the power to govern from the authority to interpret the Basic Code. The caliph’s authority to interpret the Basic Code was further undermined when the Prophet’s other grandson and his family members were slaughtered in the battle of Karbala. Amid this political chaos, the office of the caliph began to lose its spiritual dimension, and communities looked toward holy men and women for guidance in their daily affairs and transactions. The concept of the imam as the repository of spiritual and legal wisdom failed to bridge schisms that had arisen in the Islamic empire. In fact, the spiritual office of the imam would later become a source of as much divisiveness as had been the political office of the caliph. The Shia sect began to develop a conception of the imam that most 33

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Contemporary Ijtihad Muslims would not accept. For the Shia, the imamate was becoming a highly specialized order of spiritual leadership descending directly from the Prophet’s lineage. Even within the Shia sect, the concept of imamate has been a source of discord rather than union, for all could not agree to the same succession rules to the office of the imam. For the Sunni, the imamate was becoming an honorable term to be applied to leading scholars, regardless of their blood ties with the Prophet. The concept of the imam as a leading scholar facilitated a natural shift from the caliph to the jurist as the supreme interpreter of the Basic Code. The Qur’an and the Sunnah had already supplied sufficient provisions to honor the Islamic scholar. For example, God himself invokes the authority of scholars to demonstrate that He is One. Furthermore, the Qur’an testifies that God has elevated scholars over others. According to the Prophet, the scholar among believers is like the moon among stars.10 Thus, the Basic Code reserves special respect and honor for the learned. It was, therefore, not difficult for Islamic communities to turn to scholars as the heirs of the Prophet – particularly in matters of explaining, refining, and furnishing rules of behavior consistent with the Basic Code. The rise of the opiniojurist as the custodian of classical fiqh overshadowed the prestige of the judge (qadi). Judges were seen as dispute-resolvers, not law-givers. In resolving disputes, judges relied on the Basic Code and fiqh, applying laws of the relevant madhab. Although judicial decisions, even if erroneous, were binding on the parties, they did not serve as binding precedent, for a judicial decision was not part of fiqh unless the judge rendering the decision was an opinojurist. The prestige of the opiniojurist was so high in the eyes of the learned that many opiniojurists refused to become judges, and some were severely punished for such refusal. Abu Hanifa, the founder of the most popular school of law among Muslims, was thrown into prison and lashed when he declined the caliph’s offer to assume the office of the chief judge.11 Eminent opiniojurists declined to become judges, for they wanted to maintain their juristic freedom to interpret the Basic Code in utter honesty and without pressure from the caliph to issue opinions supporting the government. These Muslim opiniojurists, determined to avoid even the appearance of being part of the government, were affirming the principle of intellectual integrity that, they believed, was hard to maintain by joining governmental institutions, including the judiciary. Muslim rulers, particularly in Middle Eastern countries, have been 34

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Classical Era of Ijtihad, 632–875 unkind to opiniojurists. As discussed in Chapter 2, many scholars have been arrested and executed. The Prophet said: Verily, Allah does not take away knowledge by snatching it from the people but He takes away knowledge by taking away the scholars, so that when He leaves no learned person, people turn to ignorant as their leaders; then they are asked to deliver religious verdicts and they deliver them without knowledge, they go astray, and lead others astray. (Sahih Muslim)

Ignoring this hadith, Muslim governments find excuses to silence the scholars who disagree with official policies. Rationalism In addition to mistrusting the government as source of law, Islamic opiniojurists also debated the question of whether human rationality could be trusted to shape fiqh. Is reason a good legal method to test the validity of laws? Is reason a valid source of law when the Basic Code does not furnish direct solutions to legal questions? Should the Qur’an itself be read in the realm of human rationality? These and many other related questions informed debates, conversations, and opinions of the classical era of ijtihad. However, these great questions arose while the status of the Prophet’s Sunnah had not yet been fully determined. Discussions of reason, therefore, fell into the all-consuming controversy about the Prophet’s Sunnah. The followers of ahadith (traditionalists) began to challenge the followers of reason (rationalists) on the questionable assumption that the two methods were inherently opposed to each other. The rationalists were worried about false and frivolous ahadith that had muddled the domain of fiqh. They were also reluctant to subordinate human rationality to any uncritical embracing of revealed laws. Believing that human rationality itself is God’s light, the rationalists intended to formulate classical fiqh by applying human intellect to the Basic Code. They accepted very few ahadith as part of the Basic Code, only those ahadith that either repeated the injunctions of the Qur’an or otherwise met the test of reason. The rationalist approach thus limited the number of ahadith to be incorporated into the Basic Code. Opposed to the rationalists were the traditionalists who wanted to enforce the Prophet’s Sunnah, even if the reported ahadith fell short of reason or were contrary to human intellect. Presuming that human 35

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Contemporary Ijtihad intellect is defective, fickle, and malleable, the traditionalists wished to build classical fiqh on a more stable foundation. For them, the Prophet’s Sunnah was such a perfect foundation. Traditionalists won the day, if not the argument. The role of reason as an independent source of juristic rule-making was thus blunted in classical fiqh. Reason must submit not only to the Qur’an, but also to the rules laid down in the Sunnah. However, the victory of the Sunnah over human intellect was neither unconditional nor absolute. The traditionalists came under increasing pressure to verify the authenticity of each hadith to be incorporated in the Basic Code. Furthermore, traditionalists were forced to develop a methodology to iron out inner consistencies among authentic ahadith or any inconsistency between the Qur’an and ahadith. Thus, intellect could not be ousted from the realm of classical fiqh; it simply reappeared in legal methods adopted to ascertain the meaning of the Basic Code. Legal Methods The founders of classical fiqh developed several legal methods to interpret and supplement the Basic Code. For clarity, it is important to distinguish rules of conflict resolution from legal methods, as used in the analysis here. Founding opiniojurists developed the rules of conflict resolution to iron out the seeming incongruities between verses of the Qur’an and the seeming incompatibilities between the Qur’an and the Sunnah. Legal methods include the rules of conflict resolution, but serve other tasks as well. Some legal methods, such as analogy and logic, serve as juristic tools to interpret the Basic Code in order to extend or limit its application. Some legitimize the reception of laws found in sources other than the Basic Code, such as local customs. Some legal methods, such as equity or public good, provide guiding criteria to test the validity of rules derived through interpretation or received from outside the Basic Code. Among legal methods of the classical era of ijtihad, analogy (qiyas), logic (istidlal), custom (adat), consensus (ijmah), public good (istislah), and equity (istihsan) are the most prominent. Almost all madhabs subscribe to analogy as a permissible legal method to interpret the Basic Code, for God himself uses analogy and comparison to clarify points in the Qur’an. Almost all madhabs recognize custom and consensus as supplementary sources of law, though some with more reservation than others. With respect to equity and public good, however, the classical schools are less than unanimous. 36

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Classical Era of Ijtihad, 632–875 For example, the Hanafi madhab – the most pragmatic and realist school – employs istihsan when highly formalized analogical reasoning leads to unjust outcomes. In such cases, the opiniojurist abandons the fruit of analogy in favor of a more equitable solution to the problem. The Shafi madhab – a highly formalistic school in its interpretive motif – is opposed to istihsan as a valid legal method and considers it to be a method that makes laws – something, according to Shafi, a jurist is not supposed to do.12 The Maliki madhab – inclined to interpret the Basic Code in light of local customs, combining pragmatic and formalistic techniques – proposes its own alternative legal method to istihsan considered to be a loose standard that dilutes the force of law. This alternative method is known as istislah, or public good – ironically, an equally loose standard upon which to expand the Basic Code. Public good as a legal method is nonetheless acceptable to the Maliki madhab, since for them public good is not an abstract idea, but is defined and constrained by local customs. Likewise, the madhabs differ over the use of logic in fiqh. The Maliki and the Shafi schools use istidlal as a distinct legal method to derive rules. For example, they use istidlal to argue that Jewish and Christian scriptures are valid sources of law for Muslims, to the extent the Basic Code has not overruled their provisions. The Hanafi madhab rejects this logic on the pragmatic presumption that the Qur’an does not address all the alterations made (or which might be made in the future) in other scriptures. However, the laws of previous scriptures are acceptable to the Hanafi madhab only if they are specifically approved in the Qur’an. Thus, for the Hanafi madhab, the fact of alteration is more decisive than pure logic. One legal method, which should figure prominently in the evolution of fiqh, is known as ijmah, or consensus. The Prophet has said: “My followers will never agree upon what is wrong.”13 Historically, a rule was considered unimpeachable if the Prophet’s companions approved it unanimously. In fact, this legal method became so sacrosanct that some opiniojurists began to treat it, though erroneously, as the third part of the Basic Code. Consultation with scholars, whose expertise in Islamic law is recognized by the general population of Muslims, is a great scholarly tool in achieving a sound opinion. Scholars who were companions of the Prophet Mohammed customarily consulted each other when addressing a particular question. Omar and Abu Bakr, two close companions of the Prophet Mohammed and the role models for Sunni Muslims, when they were faced with a new question of law 37

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Contemporary Ijtihad they referred to the Qur’an and Sunnah. If they did not find an answer, they engaged in ijtihad. If they and other scholars unanimously agreed, their resolution ranked as ijmah, scholarly consensus, which is followed in every Islamic state. If they disagreed and the governor of an Islamic state ordered that a particular opinion should be followed, then this opinion was followed. Notably, scholars who refuse to consult other recognized scholars and call for wholesale rejection of classic or well-established rules of fiqh are justifiably subject to criticism. It is incorrect to assume that ijmah is a primary source of Islamic law. Just like qiyas, ijmah is also a legal method by which the meaning of the Basic Code is determined. Qiyas is analogical reasoning; ijmah is reasoning by means of consensus. Qiyas is the sole intellectual effort of an opiniojurist to interpret the Basic Code, whereas ijmah is the shared effort of a community of opiniojurists to furnish new rules through discussion and agreement. Scholarly ijmah is also inspired by the Basic Code, although the consensus might be built on a shared intuition rather than a shared reason. The concept of ijmah can be interpreted in two important ways: juristic and democratic. The juristic concept of ijmah focuses on the consensus of the learned, whereas the democratic concept involves the consensus of the people. The juristic concept assures that persons formulating the rules are knowledgeable. The democratic concept safeguards the voice of ordinary Muslims. Each version of ijmah has its relative merits and shortcomings. Using these legal methods, classical fiqh produced a corpus of law designed to solve problems that arose or might arise in legal transactions. The process was highly creative in its methodology as well as content. As time passed, the founders of fiqh became mythical figures and acquired an aura of holiness. What they produced came to be regarded not simply as law derived from the Basic Code, but as a way of living an authentic Islamic life. Adherence to their renderings of the Basic Code became a madhab, carrying the connotations of faith. The concept of the Shariah began to include laws of the madhabs along with the laws found in the Basic Code. Any repudiation of fiqh became sinful in the eyes of some. And for some, classical fiqh in the guise of the Shariah is as sacred as the Basic Code. This uncritical deference to classical fiqh launched an era of strict precedents, which stifled creativity, revision, and change.

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Classical Era of Ijtihad, 632–875

Centuries of Taqlid, 875–1875 The creative period of classical ijtihad came to an end, partly by gradual exhaustion of energy and partly by intellectual resignation of subsequent opiniojurists. What followed the creative era were the ten long centuries of taqlid, that is, an era of strict precedents.14 There was no one dramatic moment when ijtihad was abandoned in favor of taqlid. The shift was gradual, but progressively stronger. Under taqlid, Muslims were obligated to follow not only the Basic Code, which is indeed eternal and unalterable, but also the madhabs. Taqlid, taking the Shariah as a unified corpus of law, collapsed the distinction between the revealed and the unrevealed, making both sources of law equally binding. The door of ijtihad was closed on the assumption that the interpretation of the Basic Code had been completed and that classical fiqh needed no more fundamental alteration or adjustment. The closure, however, was less than complete; many Muslim opiniojurists, in both Sunni and Shia traditions, continued to engage in limited ijtihad. However, more and more opiniojurists were interpreting the doctrine rather than the Basic Code. Taqlid did not prohibit interpretation of the interpretation; it only suppressed creative interaction with the Basic Code. Consequently, fiqh began to turn inward, losing touch with the evolutionary forces of life. Loss of Intimacy There were many reasons behind the closure of creative ijtihad. The foremost among them was the closure of intimacy with the Prophet and the persons who had direct knowledge of the Prophet. Learned scholars who engaged in ijtihad derived their intellectual and spiritual heritage from personal intimacies, first with the Prophet, and then with his companions. The ijtihad of the first four caliphs, for example, was regarded as the most trustworthy because each of them knew the Prophet personally and witnessed the Prophet decide cases. They had acquired profound understanding of the Qur’an, as they were there over a period of twenty-two years while the Qur’an was being revealed to the Prophet in particular factual contexts. Similarly, the ijtihad of the other companions of the Prophet and their disciples was also highly regarded. This gradual phasing out of the intimate opiniojurist is part of the closure of ijtihad. As in time opiniojurists of subsequent generations moved away from the Prophet’s ministry, losing personal intimacy 39

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Contemporary Ijtihad with the prophetic period, their credibility to engage in ijtihad and the weight of their opinions became harder to establish. The intimacy is discernable even among the four Sunni madhabs. Imam Abu Hanifa and Imam Malik, though they had no personal knowledge of the Prophet, as they were born decades after the Prophet’s death, were nonetheless much closer in time to the Prophet’s ministry. Their schools of interpretation have a much larger following than the schools of Imam Shafi and Imam Hanbal, which were comparatively removed by a few more decades from the Prophet’s time. Imam Abu Hanifa, closest in time to the Prophet, gathered the strongest following among Muslims. Imam Hanbal, who was not even born when Abu Hanifa died, is the most removed in time from the Prophet and has a comparatively smaller following among Muslims. The four Imams are revered for their piety, intellect, and intellectual contributions to Islamic fiqh. As time moved on, the closure of ijtihad made sense to subsequent generations of Muslims who could not see opiniojurists having any first-hand knowledge of the Prophet’s ministry. The intimacy doctrine received support from the Prophet’s hadith: “The best of my nation is my generation, then those who follow them, and then those who follow them.”15 This hadith predicts that the first three generations of Muslims closest to the Prophet would take Islam most seriously, understand its universal message, and engage in noble practices. In the contemporary sense, three generations occupy no more than a hundred years. In the Prophet’s hadith, however, the three generations refer to the followers of the followers of the Prophet and his companions. The three generations mentioned in the hadith covered a period of nearly 250 years, a period that witnessed the launching of a remarkable jurisprudential enterprise. As noted above, the year 875 is perhaps a watershed temporal point in Islamic law, a year by which the first three generations mentioned in the hadith had completed their foundational work and passed away. True to the hadith, the first three generations of Muslims had expanded the Islamic state far beyond the holy cities of Mecca and Medina, disseminated the faith of Islam with benevolence and courtesy, and established the rule of Islamic law on the principles of submission to God, fairness, and tolerance. No generation of human beings, however, is perfect. The first three generations of Muslims engaged in bitter political conflicts, including civil wars. Some Muslims reverted to pre-Islamic faiths. Some refused to pay zakah. Despite setbacks, the first three generations of Muslims were by far the most influential in the establishment of Islamic law. Their 40

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Classical Era of Ijtihad, 632–875 passing away effectively closed the first era of ijtihad; the boldness to furnish solutions to legal problems was weakened. Islamic law lost its creativity even though minor juristic contributions continued to refine fiqh over the subsequent centuries. Furthermore, this phasing out of the jurist’s credibility is rooted in a strong Muslim belief that mere human intellect cannot be trusted as a source of law. No matter how skillful and learned, a Muslim jurist is trusted only if he can establish a strong relationship with the Prophet, either through family ties or by means of an impeccable personal character demonstrated through exemplary piety. As time passed, the tests became harder to satisfy. Muslims continued to respect highly learned and pious scholars during the period of strict precedents and even accepted their opinions as law. Yet no scholar could muster the credibility anchored in intimacy with the Prophet to found a new madhab. In the spirit of interpretive tolerance, now fully established in fiqh, even taqlid upholds the principle that there is no one righteous interpretation of the Basic Code, and it preserves the validity of multiple interpretations. Accordingly, the four Sunni madhabs remained mutually respected and equally legitimate. Even the Shia madhab has been well tolerated, though recent persecutions of Shias in some Islamic countries have breached the ethic of tolerance. For the most part, Muslims of succeeding generations have been free to opt for one or the other madhab, but they are often required to follow the rules of the chosen madhab strictly. Despite the option to move from one madhab to the other, the walls of each madhab remained tall and strong. Most scholars remained deferential to the basics of the madhabs. Attempts to extract a new madhab from the Basic Code are often seen as acts of rebellion and sabotage. In this sense, fiqh has been detained within the fortification of the five madhabs. Wael Hallaq’s scholarship makes an impressive, though unsuccessful, case that the door of ijtihad has never been closed.16 His work most certainly highlights an already well-known point that the school-bound ijtihad did not cease to exist. This highlighting refutes the view that Islamic law came to a standstill after the establishment of the fiqh madhabs. Hallaq’s point is also well taken that the concept of taqlid has been criticized throughout Islamic history, as jurist after jurist pointed out its suffocating effects. Nonetheless, Hallaq has failed to disestablish the larger point that such was the force of taqlid that no new madhab was successfully instituted. Most importantly, no new legal methods were crafted to access the Basic 41

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Contemporary Ijtihad Code. Perforce, opiniojurists continued to work with the methods established in the classical era of ijtihad. Breaking no new ground in substantive law or legal methods, taqlid commentaries, however, did refine the contents and methods of established madhabs, thus keeping the doctrine alive. But the doctrine itself had lost creativity and boldness. The era of taqlid should be examined, not as the end of interpretive law, but as the end of creativity and legal imagination. The most damaging effect of taqlid has been the closure of fresh reasoning. In fact, taqlid launched strict formalism that, for the most part, required dogmatic suspension of the reasoning process. One eminent jurist captures the core of formalism, advising Muslims in the following way: “When you have a question, ask only for the rule of the law [mas’alah]. But do not ask for the basis on which the ruling is given [dalil].” The advice is sound to the extent that persons not trained in law might fail to appreciate the force of reasoning behind the rule, thus opening the rule to debate and doubt. But the advice also entrenches the motif of strict precedents, because most rules of the madhab have indeed been detached from the historical, social, and economic contexts in which they were first made. The original dalil supporting the rule might no longer be relevant or valid; still, the rule continues to be binding. This is the classical symptom of legal formalism. A legal system loses touch with reality whenever the reasoning process is abandoned, whenever the justification of the rule is automatically presumed, and whenever old rules are binding, even if they fail to address the problems arising from changed social and economic conditions. New Muslims The closure of ijtihad and the doctrine of taqlid made sense to Arab jurists who in good faith wished to preserve the wisdom of fiqh from possible misunderstandings of “new Muslims” who, with diverse cultures, languages, and customs, were entering the realm of Islam in great numbers. Even though Islam is a universal religion, and has been from day one, some Arabs nonetheless claim a special, and sometimes a superior, relationship with Islam. The Prophet, in his last sermon, warned against any claims of superiority derived from racism and Arabism. Yet the claim of special relationship survived the sermon and gathered momentum as the time passed. Some Arabs derive their sense of superiority from indisputable historical facts. The Prophet himself was an Arab. The Qur’an, the Word of God, was 42

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Classical Era of Ijtihad, 632–875 revealed in “illuminating Arabic” (26:195). The Prophet’s Sunnah was delivered in Arabic. The Basic Code has profound contacts with the Arab cities of Mecca and Medina. The first people who embraced Islam were mostly Arabs. For many centuries, the ruling classes of Muslim empires descended from Arab families, some tracing their genetic heritage to the Prophet’s family. These multifaceted contacts with Arabs, the Arabic language, Arabic families, Arabic lands, and Arabic ruling elites turned Islam, a universal religion for all the peoples of the world, into an Arab religion. These contacts also influenced the construction and preservation of classical fiqh. With conquests of foreign territories and peoples, the definition of who is an Arab began to expand as early as the first century of Islam. Arabs were no longer only the inhabitants of the holy cities of Mecca and Medina. New Muslims, called ajamis (who cannot speak Arabic), from neighboring lands made serious efforts to assume Arabic identities, Arabic names, and Arabic culture. This process of voluntary assimilation introduced new ethnic groups, including Mesopotamians, Syrians, Egyptians, Sudanese, North Africans, into the definition of Arabs. (A similar phenomenon has occurred in the United States where Germans, Scandinavians, the Dutch, and the French surrendered their ancestral languages, customs, and cultures and assimilated into an expanding definition of Americans.) Many ethnic groups, including the Persians and the Berbers, though they embraced Islam, refused to surrender their cultures, languages, and ethnicity to the dominant Arab culture. When the non-Arab empires surfaced in the Muslim world, particularly the Ottoman Empire, the Arab domination of Islam and the concomitant process of assimilation into the Arab culture started to wind down. In the classical period (632–875), however, the domination of Arab ruling elites was well entrenched. Even though the Qur’an provides personal piety, rather than ethnic or racial heritage, as the ultimate standard of excellence, the heritage claims of belonging to the Prophet’s family were routinely made, some falsely, to seize and retain power. The heritage claims made by elites also reinforced the feelings of superiority among common Arabs who, though not genetically related to the Prophet, associated with the Prophet’s cultural heritage. Heritage connections with the Prophet were also invoked as a basis for claiming legislative prerogatives in fiqh, particularly in the Shia fiqh. Ironically, the Persians (historically, the quintessential ajamis) who were otherwise determined to preserve their identity and refused to assimilate into the Arab culture became the fiercest advocates 43

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Contemporary Ijtihad for the political and theological pre-eminence of the Prophet’s family. A universal religion such as Islam cannot continue to seek the descendants of the Prophet’s family for political leadership. One could argue that some opiniojurists had vested interests in closing the doors of ijtihad in order to preserve Islamic fiqh grown in the Arabic language within Arabic cultural and political contexts. The closure of ijtihad was thus a political decision to exclude new Muslims from participating in the creative enterprise of Islamic fiqh. In the thirteenth century, Ibn Taymiyya (1226–1328) openly declared that the Mongols were “false Muslims.”17 There were legitimate fears in juristic circles that new Muslims might distort interpretations of the Basic Code because of their lack of knowledge of the Arabic language and of the Arabic culture in which the Qur’an was revealed and the Sunnah was delivered. The fear of aliens has been a constant theme of human civilization. Political chants in Europe to close the doors to immigration, particularly to Muslims, stoke the fears of aliens invading Western civilization. The Islamic civilization in its formative period was no exception to the fear of aliens. Despite political domination of the Arab ruling elites in the classical era and despite their reservations about new Muslims, Islam as a universal religion, and not just an Arab religion, was too powerful to mitigate. The ajami contributions to classical fiqh were significant. Surely, the medium of discourse for classical fiqh was Arabic. But not all opiniojurists were ethnic Arabs. Imam Malik, citizen of Medina, was an Arab, but Imam Abu Hanifa was a Mesopotamian. Imam Muslim, the eminent hadith scientist, was born in Nishapur and belonged to a Persian family. Imam Bukhari, the most eminent hadith scientist, was born in Bukhara, Uzbekistan. Likewise, numerous other opiniojurists and hadith scientists who participated in the development of fiqh came from diverse ethnic and geographical backgrounds. Some Arab caliphs reigning in Baghdad understood the universal dimension of Islam and discouraged the divide between Arabs and non-Arabs. Some were more parochial. It is a mistake, however, to associate the concept of taqlid with Arabs or the Arab culture. Taqlid is essentially a conservative longing for the preservation of fiqh as is. Wahhabism Closely related to taqlid is the doctrine of bidah, discussed more fully in the next chapter, which prohibits innovations. The doctrine of 44

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Classical Era of Ijtihad, 632–875 bidah is derived from the Prophet’s pronouncement that innovations in the faith are prohibited.18 The doctrine, in its strictest meaning, has been interpreted to prohibit even minor changes, such as the length of a man’s beard and eating with a fork or spoon. In its most consequential impact, the ban on innovation has been extended to discourage any deviation from the social, economic, military, and legal models of early Islam. Periodic attempts to erase innovations have been made to bring Islamic communities back in conformity with the classical era. The concept of bidah, however, is controversial because probative evidence is available to support the idea that good innovations that strengthen the faith are acceptable. The most powerful movement in supporting the classical concept of bidah is the so-called Wahhabism movement, attributed to the teachings of Muhammad ibn Abd-al Wahhab (1703–92) and practiced in present-day Saudi Arabia. On a practical level, al Wahhab’s teachings criticized the cult of saints and worship at their tombs. Declaring these practices unlawful innovations, al Wahhab preached a simpler and more nostalgic version of Islam, found in the early Islamic period. In demolishing medieval innovations, however, al Wahhab also challenged the theoretical underpinning of taqlid by arguing that the only legitimate source of Islamic law is the Basic Code: the Qur’an and the Sunnah. This idea of going back to the basics of Islam, rather than engaging in unwarranted attacks on misunderstood Sufism, is the hallmark of Wahhabism, which opens the door to rereading the Basic Code without cumbersome historical baggage. Detached from some constraints of classical fiqh, however, the followers of al Wahhab have interpreted the Basic Code in highly literal and conservative ways. Some of their interpretations, including a ban on women driving automobiles, have not been accepted elsewhere in the Islamic world. Despite literal applications, Wahhabism has played an efficacious role in shaking the foundation of taqlid. While the Wahhabi movement has, for the most part, remained confined to Saudi Arabia and failed when exported to Afghanistan via the Taliban, its more generic message has touched the hearts of all Muslims: that something must be done to reformulate classical fiqh. Despite its lack of popularity and criticism in the Islamic world, Wahhabi and the Salafi viewpoints cannot be dissociated from contemporary ijtihad.

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Contemporary Ijtihad

Notes 1. Abdur Rahim, The Principles of Islamic Jurisprudence (New Delhi: Kitab Bhaven, 1994 [1911]), p. 34. 2. Mohammad Arkoun, Rethinking Islam: Common Questions, Uncommon Answers, trans. Robert D. Lee (Boulder, CO: Westview Press, 1994), pp. 32–3. 3. See generally. Amir D. Aczel, God’s Equation: Einstein, Relativity and the Expanding Universe (New York: Four Walls Eight Windows, 1999). 4. For example, Mansur Hallaj (d. 922) was executed in Baghdad for proclaiming, “I am the truth.” Claud Field, Mystics and Saints of Islam (Whitefish, MT: Kessinger Publishing, 2004). 5. Ignaz Goldziher, Introduction to Islamic Theology and Law, trans. Andras and Ruth Hamori (Princeton, NJ: Princeton University Press, 1981), p. 31; Ignaz Goldziher, Muslim Studies, trans. C. R. Barber and S. M. Stern, vol. 1 (London: George Allen and Unwin, 1967). Joseph Schacht further developed Goldziher’s thesis to cast doubt on the historical accuracy of ahadith. Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950). 6. Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, rev. edn (Cambridge: Islamic Texts Society, 1991), ch. 3. 7. See, for example, H. A. R. Gibb, Mohammedanism: An Historical Survey, 2nd edn (Oxford: Oxford University Press, 1953). 8. Other collections, including Tirmidhi, Dawud, and ibn Majah, are vested with credibility. 9. Majid Khadduri and Herbert J. Liebesny (eds), Law in the Middle East: Origin and Development of Islamic Law, vol. 1 (Richmond, VA: William Byrd Press, 1955), p. 70. 10. Sunan Abu Dawud, bk. 25, hadith 3634. 11. Charles Adams, “Abu Hanifa: Champion of Liberation and Tolerance,” in Ian Edge (ed.), Islamic Law and Legal Theory (New York: New York University Press, 1996), pp. 377, 386. 12. Majid Khadduri (ed. and trans.), Islamic Jurisprudence: Shafi’s Risala (Baltimore, MD: Johns Hopkins University Press, 1961). 13. Tirmidhi hadith. 14. Ashraf Ali Thanvi, Al-Iqtisaad fi al Taqlid wa al-Ijtihad (original in Urdu, 1912). 15. Sahih Bukhari, bk. 48, hadith 819 and 820. 16. Wael B. Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge University Press, 1997). 17. Hunt Janin, The Pursuit of Learning in the Islamic World (Jefferson, NC: McFarland, 2006), p. 159. 18. Sahih Muslim, bk.4, hadith 1885. 46

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2

Free Markets of Fiqh

Since the founding of Islam in the early seventh century (610–32), Islamic law has developed through free markets of jurisprudence, which may be called iswaq al-fiqh or fiqh markets. A fiqh market consists of jurists (muftis), scholars (mujtahids), and followers (ashab). Muftis and mujtahids serve as opiniojurists. They offer juristic opinions on matters of law. When a new legal issue arises that cannot be resolved under the existing body of Islamic law, Muslim opiniojurists offer legal opinions consistent with the Basic Code, the Qur’an, and the Sunnah. These opinions, known as fatwas, compete in the fiqh markets to win over Muslim followers. Each competing opinion may receive some following. An opinion that gains the most Muslim followers becomes a rule of fiqh. Even minority opinions with substantial followings in Muslim communities are treated as rules of fiqh. Each opinion is binding on its followers. As always, fiqh markets are founded on persuasion, and not coercion. The fiqh rules appeal to logic, common sense, and systemic coherence. While rendering opinions, opiniojurists must demonstrate that an opinion is normatively compatible with the Basic Code and analytically consistent with the existing body of fiqh, just as a judge must demonstrate that a case holding is compatible with the Constitution and the body of law relevant to the case. Opiniojurists are rarely arbitrary or impulsive. They do not convert personal preferences into legal opinions. Working under the divine majesty of the Basic Code, they show how the new opinion belongs to the Islamic legal landscape. Unpersuasive, incoherent, and illogical opinions fail to find a durable place in the realm of fiqh. The fiqh markets may not be identified, or confused, with madhabs. A madhab is a distinct school of law that develops its own legal methodology to interpret the Basic Code. Each madhab also offers a comprehensive code of substantive rules dealing with worship (ibadaat) and worldly transactions (muamalaat). A fiqh market, however, is not confined to a single madhab, but accommodates all competing schools of law. Opiniojurists may differ and 47

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Contemporary Ijtihad compete with each other even within a particular school of fiqh, for no school is internally inflexible. Fiqh markets, however, allow a more vigorous exchange of opinions and juristic discussions across schools. Furthermore, free fiqh markets may not be confused with free markets of ideas. Innovative interpretations of the Basic Code are generally prohibited. Fiqh markets shun the speculation of free thought. They function freely but within the parameters of shared faith, within the limits of God’s Qur’an and the Prophet’s Sunnah. Dramatic new interpretations of divine texts, which reverse prior beliefs and precedents, are rarely accepted in the fiqh markets. The Nation of Islam, the Baha’i, and the Ahmadiyya interpretations of the Basic Code are excluded from the domain of fiqh markets because these belief systems introduce radical new ideas, including new prophets, and new revelations. While such innovative belief systems may exist outside the domain of Islam, they do not gain the respect of fiqh markets. Dramatic innovations are equated with the corruption of Islam. Under intense pressure from the people and the mainstream opiniojurists, the Constitution of Pakistan was amended to declare the Ahmadis to be non-Muslims. From an external viewpoint, such repudiations may be viewed as religious persecution. The fiqh markets, however, are determined to safeguard the integrity of Islam against the free market of ideas.

Voluntary Compliance As a general principle, fiqh markets seek the voluntary compliance of Muslims. No new rule of fiqh, whether adopted by a majority of Muslims or a minority, is binding on communities and individuals who decline to accept it. The option to follow or not to follow a new juristic opinion is the defining attribute of Islamic fiqh. An important distinction exists, however: no option of voluntary compliance is available with respect to mandatory rules of the Basic Code, which all Muslims must obey. Hence, Islamic law is a combination of fixed and flexible rules. It contains the immutable, one divine law (the Basic Code), and mutable, pluralistic juristic opinions (fiqh). Voluntary compliance is available only with respect to rules of fiqh. Some rules of fiqh, however, are so firmly established in Islamic law that for all practical purposes they acquire the status of mandatory rules. Yet the distinction between the divine rules of the Basic Code and human rules of fiqh must not be ignored or diluted. 48

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Free Markets of Fiqh The concept of following or voluntary compliance is critical to understanding the functionality of fiqh markets. Following does not mean mere intellectual approval of an opinion or showing respect for the opiniojurist who issued it, nor does it require that followers be students of the opiniojurist or that they formally belong to the madhab that the opiniojurist may have established. Following a legal opinion is essentially behavioral. It occurs when a sizeable group of Muslims, or an entire Muslim community, acts in accordance with the rule for “people are Allah’s witnesses on Earth.”1 An opinion that fails to produce compliant conduct (amal) in any Muslim community is academic, pedantic, odd, and perhaps worthless.2 It is a paper opinion. In some cases, such opinions might be blasphemous. Even if not blasphemous, opinions that cannot obtain voluntary compliance have little room in the theory or practice of Islamic law. The Basic Code, which consists of the Qur’an and the Sunnah, provides rules and principles in diverse areas of human activity. It contains family law, criminal law, international law, trusts, wills, non-testamentary rules of distributing a decedent’s estate, and the law of contracts. The Qur’an provides a set of normative principles, whereas the Sunnah furnishes the case law that the Prophet decided in light of the Qur’an. The Basic Code consists of both the Qur’an (text) and the Sunnah (case law). These two primary sources of law are immutable. No Muslim community may repeal or modify the Basic Code. This immutability, however, does not mean that the Basic Code is fixed in meaning. The fiqh markets distinguish between alterations and interpretations of the Basic Code. Outright alterations to texts of the Basic Code are strictly prohibited. Even alterations through interpretation are blasphemous. Good faith interpretations of the Basic Code delivered by pious and knowledgeable Muslim opiniojurists, however, may freely compete in the fiqh markets for the Ummah’s approval and compliant behavior. Bad faith interpretations, offered to deceptively undermine clear commandments of the Basic Code, rarely find a place in the fiqh markets. Although the Basic Code, the Qur’an, and the Sunnah, provides solutions to numerous legal issues, new questions began to appear soon after the Prophet’s death. These questions were answered through legal opinions issued by prominent jurists. The most remarkable growth of Islamic law occurred in the first 250 years of Islam. This first era of ijtihad was open, bold, intellectually charged, and controversial, but it was also the most responsive to the needs of 49

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Contemporary Ijtihad constructing rules consistent with the Basic Code. Juristic discussions focused on the appropriateness of legal methods as well as substantive rules. How a rule must be extracted from the Basic Code was considered as important as the substance of the rule. Unrestrained imagination to interpret the Qur’an and the Sunnah was discouraged. A fundamental distinction that the Prophet himself drew between innovation (bidah) and interpretation, a point discussed below, served as the guiding force to safeguard the emerging fiqh markets from speculation and experimentation. Medina and Kufa were the two most vigorous competing fiqh markets in which reputable opiniojurists with broad regional followings established the rules of fiqh. In the tenth century, the Hanafi fiqh market further flourished in Baghdad (Iraq), Balkh (Afghanistan), and Bukhara (Transoxania). “In each network there was at least one central figure . . . distinguished by his numerous and famous students and by his being the principal opiniojurist to issue fatwas in his region.”3 Thus, the Hanafi fiqh was enriched by a robust supply of opinions from diverse centers of learning. Some fiqh markets are more active and influential than others, and an influential fiqh market may lose its prominence as another fiqh market gains momentum and respectability. For example, the Hanafi fiqh market of Bukhara “enjoyed its Golden Age” in the eleventh century and became the most prominent circle in influencing Hanafi opiniojurists of later centuries. Historically, as discussed in Chapter 1, Muslims have belonged to distinct madhabs. For centuries, Islamic fiqh has been broadly systematized through five madhabs that freely developed under the guidance of eminent opiniojurists. It is common for an entire Muslim community to follow the rules of a particular madhab. Muslim communities of distinct geographical areas identify themselves with Hanafi, Maliki, Shafi, or Hanbali fiqh, the four Sunni madhabs, or with Jafari fiqh, the Shia madhab. In the past, adherence to a particular madhab has been strict, and partial crossings (talfiq) from one Sunni madhab to another Sunni madhab were uncommon and considered unfavorably. However, the Shia–Sunni jurisprudential divide has been more entrenched and the wall between the two madhabs has been tall. Yet Muslims could switch from one sect to the other. In recent decades, the Shia–Sunni jurisprudential divide has been overly politicized; and the sectarian split in Iraq after the US invasion in 2003 has been internationalized. Occasionally, the Shia–Sunni partition has resulted in bloodshed and sectarian violence. This violence is 50

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Free Markets of Fiqh unjustified under the logic of fiqh markets that allow vigorous debate and disagreement. Muslim-on-Muslim violence is prohibited under the Basic Code (4:92).

Expansion of Fiqh Markets Contemporary ijtihad has expanded the scope of fiqh markets. Historically, the fiqh rules, substantive and procedural, civil and criminal, have been for the most part deductive rules derived from divine texts of the Basic Code. The classical norms of Islamic international law have also been deduced from the Basic Code, which offers guiding principles for the construction of relations with foreign nations. Other classical sources of Islamic law, particularly customs and imperial orders, were rarely deduced from divine texts. Contemporary fiqh markets are no longer confined to deductive interpretations of divine texts. For example, contemporary international law, made through customs, treaties, intergovernmental organizations, and other global and regional institutions, is no longer a deductive source of Islamic law. Likewise, contemporary high courts in Muslim states rely on a complex set of legal sources, including customs and statutes, to render decisions. Accordingly, opiniojurists may render opinions on whether international law, state legislation, local customs, and case holdings are compatible with the Basic Code. They may offer contemporary rules of fiqh derived from the Basic Code or the classical body of fiqh. Contemporary rules of fiqh may reaffirm or modify the classical rules of fiqh. Thus, no source of Islamic law, classical or contemporary, is excluded from the domain of contemporary fiqh markets. Contemporary fiqh markets are much more expansive in geographical reach, linguistic diversity, and substantive scope. No restriction of language, culture, geography, or customs defines the functional imagination of current fiqh markets. Just like classical fiqh markets, contemporary fiqh markets are also subject to the normative parameters of the Basic Code. No fiqh market can develop away from the constraints of the Basic Code. However, significant differences exist between classical and contemporary fiqh markets. Classical fiqh markets were primarily interpretive of divine texts, whereas contemporary fiqh markets reach beyond interpretations of the Basic Code. Contemporary fiqh markets empower opiniojurists to comment upon the Islamic validity of customs, constitutions, legislation, norms of international law, and other modern sources of 51

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Contemporary Ijtihad regulation. Opiniojurists continue to engage in interpretation of the Basic Code, but they are also free to comment upon whether national customs, state statutes, or regional and global treaties comply with Islamic divine texts as well as with rules of Islamic law. Furthermore, contemporary fiqh markets are no longer confined to opiniojurists who interpret the sources of Islamic law and render opinions on their compatibility with divine texts. Scholars, philosophers, Sufis, scientists, sociologists, anthropologists, and numerous other epistemic communities are now part of contemporary fiqh markets. Effective and responsive modern laws cannot be made without inputs from diverse epistemic communities, experts, historians, and scientists. Even classical fiqh markets had their own historians, cultural experts, and scientists. In collecting the Prophet’s ahadith, Imam Bukhari was serving more as a scientist and literary archeologist than an opiniojurist. Ibn Ishaq, who wrote the Prophet’s biography, and Al-Waqidi, who narrated the Prophet’s military campaigns, unlike Abu Hanifa or Ibn Hanbal, were not opiniojurists. In subsequent centuries, philosophers and scientists, like Ibn Rushd and Ibn Sina, expanded the scope of fiqh markets, though their works were viewed with suspicion and reservations. As discussed below, specialized finance markets need the assistance of a legion of experts trained in diverse disciplines. Contemporary fiqh markets have also expanded beyond philology and etymology of divine words and phrases. Arabic has been the language of classical fiqh markets. Experts in the Arabic language were indispensable in the classical era for textual interpretations of divine texts. The role of Arabic linguists and grammarians will remain part of the fiqh markets; however, fiqh markets cannot allow modern linguists to render interpretations of divine texts that are dramatic, diametrically innovative, or revolutionary. After the passage of fourteen centuries, new linguistic interpretations of the Basic Code are no longer central to the development of fiqh markets. The principles of the Basic Code, however, continue to inform opiniojurists. These principles, though they emanate from divine texts, are not dependent upon intricate textual readings of the Basic Code. For example, the obligation of zakah payments is established beyond doubt. No philologist or etymologist who engages in any interpretation of the Basic Code that nullifies this obligation will be well received in the Muslim world. The Qur’an itself emphasizes the substance of “clear verses” and warns jurists not to engage in interpretive adventurism with respect 52

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Free Markets of Fiqh to allegorical verses of the Qur’an (3:7). The Qur’an could not have been a universal divine text if its meaning were accessible only to philologists and etymologists. The Qur’an is God’s book because its principles and teachings are accessible to Muslims of diverse linguistic conventions. Accordingly, contemporary fiqh markets are established in numerous languages, including Arabic, Urdu, Persian, English, French, and Spanish. In fact, since all Muslim states have instituted national legislature, judiciary, and regulatory agencies, each Muslim state uses its own national language to construct statutes, decide cases, provide fiqh commentaries, and recognize local customs. Muslim communities living in Europe will inevitably develop Islamic law in European languages. English has emerged as a principal language of modern ijtihad. In the nineteenth century, the British colonial empire introduced English as the language of business transactions in numerous Muslim nations and communities that had been colonized. In the twentieth century, the rise of the United States as a global economic power reinforced the prominence of English as a world language. Realizing the global significance of English, Muslim states have established Englishlanguage schools, colleges, and universities to educate Muslim professionals in various modern disciplines. Muslim students are also studying at colleges and universities in England, Canada, Australia, and the United States. Because Muslims of the world speak scores of different native languages, they use English as a common language to communicate with each other. Most importantly, universities and colleges in English-speaking nations offer a rich variety of courses in Islamic studies. The works of great Muslim scholars, past and contemporary, have been translated into English. Because the academic tradition in the English-speaking nations requires professors to publish scholarly works in order to receive tenured jobs, Islamic scholarship has proliferated in the past few decades. The 2001 terrorist attacks on the United States have further provoked scholarly interest in Islamic studies. Unfortunately, a substantial amount of scholarship produced in the West, as discussed in a later chapter, is highly negative about Islam. Yet books and academic articles published in English and marketed worldwide are likely to impact the dynamics of fiqh markets. Even the role of non-Muslim experts may have expanded in contemporary fiqh markets. Highly technical areas of law, including finance, genetics, and numerous other areas, require the inputs 53

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Contemporary Ijtihad of highly-trained experts. Many experts in various fields are nonMuslims. Fiqh markets founded on knowledge and truth cannot dismiss the scholarly works of non-Muslim experts who are more qualified and informed than Muslim opiniojurists, whose training in modern disciplines and sciences is limited. The ultimate discretion to prescribe rules of Islamic law still belongs exclusively to Muslim opiniojurists; however, fiqh markets do not exclude non-Muslim experts on a crude basis that all non-Muslims are automatically disqualified for their lack of faith in Islam. Such exclusions are detrimental to the informed functionality of fiqh markets.

Dynamics of Fiqh Markets Fiqh markets are essentially Muslim markets in which learned jurists offer opinions to solve problems facing a particular Muslim community or the Muslim Ummah at large. Opiniojurists are practicing Muslims, learned in the Basic Code, have sound knowledge of legal methods, are persuasive in legal reasoning, and are familiar with both Muslim history and current affairs. The more knowledge an opiniojurist has, the more credibility he commands in his opinions. Fiqh markets carefully scrutinize the opiniojurist’s personal character, piety, honesty, as well as his intellect and knowledge. A highly pious person with deficient intellect or limited knowledge or a highly intelligent and educated person without a high personal character is viewed with suspicion and his opinions are discounted. Fiqh markets demand that Muslim opiniojurists be both highly pious and highly knowledgeable. Piety without intellect or intellect without piety does not impress fiqh markets. The markets respect opiniojurists who have devoted their lives to God’s worship and for the attainment of sophisticated knowledge. Fiqh markets are free but solemn. They reject the idea of experimentation in, innovation of, or revolution away from the Basic Code. Opiniojurists may not experiment with the Basic Code by offering solutions that challenge well-established fundamentals of the Islamic faith. Any proposal to amend the text of the Qur’an, for example, is an idea that fiqh markets would never accept. Likewise, any suggestion that the Sunnah should be discarded as a source of Islamic law and that opiniojurists must confine their analysis to the Qur’an would find no recognition in fiqh markets. Even the idea of taking a dramatically new analytical or substantive approach to the Basic Code without the benefit or burden of the classical fiqh will be 54

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Free Markets of Fiqh considered revolutionary and therefore rejected. The classical fiqh cannot be abandoned in a wholesale manner. Fiqh markets favor seamless development of the fiqh without any abrupt or revolutionary departure from the past. Muslim rulers and governments might be overthrown through revolutions and palace coups, however; these violent political changes in Muslim leadership do not disturb fiqh markets that retain their solemnity and calm in periods of shared distress or social or political upheaval. Furthermore, fiqh markets disdain all forms of cultism. Even though Mecca and Medina house the sacred places of worship and pilgrimage, fiqh markets are neither territorial nor cultish. No nation or people may claim a privileged station to found or influence the development of fiqh. Any attempt to superimpose the concept of a sacred nation or a sacred people on Islamic law is incompatible with the logic and spirit of the fiqh markets. Even though the Basic Code was originally available in the Arabic language, fiqh markets of Islamic law are not confined to Arab nations or Arab opiniojurists. A scholar from Indonesia, South Africa, or the United States is equally competent and free to offer opinions, as is an opiniojurist from Egypt or Saudi Arabia. The concept of a chosen people or a preferred nation to interpret the Basic Code cannot survive in the free markets. Any Muslim opiniojurist, regardless of his ethnic, territorial, or racial background, is welcome to enter fiqh markets and issue opinions. Imam Abu Hanifa, for example, was not an Arab. Fiqh markets respected Abu Hanifa even though he was not an Arab and not a native of Mecca or Medina, where the Prophet had lived and where the Qur’an was revealed. Rejecting all cultish criticisms, fiqh markets elevated Abu Hanifa to be the greatest opiniojurist of Islam. Fiqh markets were, of course, not prejudiced against Mecca or Medina either. Imam Malik, the founder of another classical school of fiqh, was a native of Medina, where the Prophet established the first Islamic state and where he is buried. Qualifications of Opiniojurists Though any person, regardless of personal characteristics, can deliver opinions, fiqh markets nonetheless pay close attention to the personal qualifications of opiniojurists. Wealth, academic standing, formal education, social or official status, and the like are not the required qualifications, nor are these factors barriers to entering or influencing the fiqh markets. The modern legal profession provides 55

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Contemporary Ijtihad law degrees and employment at premium law schools, courts, and other institutions as recognition of scholars. In the United States, jurists serving as judges in high courts, professors teaching at toprated law schools, and scholars publishing with prestigious presses are presumed to be highly qualified. A social hierarchy has been established to rank scholars in every field of knowledge, including law. Even in the Muslim world, prestigious universities, national supreme courts, and councils of jurists that oversee the Islamic character of legislation are staffed with highly qualified jurists. As a matter of tradition, however, opiniojurists enter and seek prominence in fiqh markets with sheer personal efforts. No institution or ruler is the gatekeeper and no one is empowered to control the entry of opiniojurists in the fiqh markets. For hundreds of years, the fiqh markets have functioned informally, without supervision, control, or certification. Nonetheless, the fiqh markets are fortified with various fences. Opiniojurists are invariably assessed on the basis of piety and knowledge. Fiqh markets place a high premium on the actual knowledge of the opiniojurist. The opinions of jurists with flawed knowledge carry minimal weight. Mere knowledge, however, is insufficient to influence the fiqh markets successfully. Good reputation, devotion to Islam, and simple living are factors for gaining respectability. Charlatans and pretenders have had no place in the fiqh markets. In addition to piety and knowledge, opiniojurists have also been judged for their knowledge of the Arabic language. Arabic is not only the language of the Basic Code, but also the language of a large amount of invaluable Islamic law literature. Eminent opiniojurists acquire a deep understanding of the language of divine texts, a language not easily accessible to ordinary persons fluent in the Arabic language. The knowledge of Arabic was even more critical when the exegetical enterprise was predominantly linguistic and philological. Translations of the Qur’an and ahadith have been made in numerous languages, but the actual divine texts are untranslatable for a number of reasons. An exact translation is an impossible task because numerous words of the Basic Code, particularly the Qur’an, may not be available in other languages. Seeking knowledge rather than literal meaning of divine texts is the path to understanding and ijtihad. Knowledge of the Qur’an, for example, includes the knowledge of its language, its grammar, its tone, its style, and its audience selectivity. Some commandments of the Qur’an address the general public, some address individuals; some call for the attention of believers, 56

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Free Markets of Fiqh some for all of humanity. Some verses carry one plain meaning; some are layered with multiple levels of understanding. Nonetheless, the Qur’an is accessible to all readers. This point is emphasized in the Qur’an several times: “And We have indeed made the Qur’an easy to understand and remember” (54:17). However, the guidance comes to those who read the Qur’an with humility and sincerity. The understanding of its fine points requires knowledge and meticulous study. For instance, the Qur’an reads: “and divorced women shall wait (as regards to their marriage) for three quroo . . .” (2:228). This verse prescribes that a divorced women must wait for a prescribed period of time before re-marrying a person other than her divorced husband. The key word in interpreting this verse is quroo. Yusuf Ali translates quroo as “monthly periods.” Asad translates quroo as “monthly courses.” Piktall translates the word as “[monthly] courses.” A more accurate translation of quroo, found in Hilali and Khan’s translation, would be “menstrual periods.” For women who do not menstruate, the Qur’an prescribes three ashhur, calendar months (65:4). The distinction between the two prescriptive periods is meaningful because a menstrual period might be equal, more, or less than a calendar month. Furthermore, the waiting period for menstruating women is physiological, whereas the waiting period for non-menstruating women is numerical. Sophisticated and accurate understanding of the Qur’an rendered in any language, including Arabic, requires a sound substantive knowledge of the entire Qur’an, for few verses can be properly understood in isolation from the rest of the text. A non-contextual and verse-by-verse rendering of the Qur’an can lead to serious error, even intentional or unintentional mischief. Critics of the Qur’an frequently make the mistake of reading verses in isolation and reaching conclusions that a more comprehensive reading of the Qur’an would not permit. Some critics cite a verse fragment “Slay them wherever you catch them (2:191)” to conclude, completely erroneously, that Islamic law allows the arbitrary killing of non-Muslims. Comprehension of the entire Qur’an is a heavy burden, a lifelong commitment, which few jurists are able to carry successfully. Understanding the Qur’an within the context of the Sunnah imposes additional burdens on jurists. Reading commentaries on the Qur’an and the Sunnah can be instructive for jurists, but this method has its own hazards. Commentaries are frequently culturally conditioned. For understanding the universal message of the Basic Code, contemporary jurists are therefore vigilant. They study the ancient 57

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Contemporary Ijtihad commentaries of the Qur’an and the Sunnah, but pay attention to their cultural and historical orientations. Yet, on balance, interpreting the Qur’an and the Sunnah without the benefit of prior commentaries can lead to errors and misunderstandings. (Analogously, it is akin to interpreting the US Constitution without the benefit of prior cases and commentaries.) Prior Islamic scholarship is now available in numerous languages. For a considerable period of time, jurists were obligated to learn the Arabic language to obtain access to the fiqh literature. Contemporary ijtihad is rapidly removing language and access barriers. Opiniojurists of diverse linguistic conventions can access classical literature in national and international languages. They can communicate with each other through global languages. As noted above, English has become the language of Islam and as the main medium of communication among opiniojurists across the world. The classical fiqh literature written in Arabic has been translated into English, including the works of great Muslim jurists, including Ibn Rushd and Al-Ghazali. Because Islamic law is one of the oldest continuing legal systems, and as such has been subject to numerous analyses and commentaries, reviewing prior scholarship can guide contemporary opiniojurists. Opiniojurists with little knowledge of the history of Islamic law can contribute little to the fiqh markets. State Jurists Throughout Islamic history, Muslim governments have employed jurists to seek guidance and promote policies. Governments also issue laws and regulations. These laws and regulations, however, do not automatically qualify as Islamic law. Fiqh markets, not governments, determine whether official laws and regulations are to be considered Islamic. A government runs the risk of losing credibility if it interferes with the fiqh markets of opiniojurists. It loses all trust if it closes down such markets. Acknowledging the power of fiqh markets, governments have rarely attempted to completely close them down. Imperial governments during the Ummayad, Abbasid, Ottoman, and Mughal empires attempted to universalize official interpretations of the Basic Code. Most attempts backfired. In the era of nation-states, the control of governments is more diffuse. Fiqh markets have little respect for secular governments that separate law and Islam. Even clerical governments that monopolize law-making authority and shutdown private fiqh markets lose credibility and their decrees 58

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Free Markets of Fiqh are viewed with suspicion. Wael Hallaq puts it succinctly: “Islamic law did not emerge out of the machinery of the body-politic, but rather arose as a private enterprise initiated and developed by pious men.”4 Governments may employ opiniojurists to legitimize state-sponsored versions of rules of Islamic law. In most cases, state opiniojurists enter the fiqh markets as equal participants, and the fiqh markets will critically evaluate the credentials, motives, and qualifications of state opiniojurists. As a general rule, the fiqh markets are suspicious of the independence of state opiniojurists. The markets assume that state opiniojurists would interpret the Basic Code to support government objectives and policies. In secular legal traditions, governments are the ultimate source of law formation and law enforcement. Under Islam, however, governments rarely enjoy the ultimate power to dominate the formation of Islamic law. If they overtly dominate the law markets, they lose legitimacy to influence the development of Islamic law. Even their covert domination has rarely succeeded in bringing about a fundamental change in Islamic fiqh. Because governments have coercive machinery to enforce the laws they make, they may temporarily rig the fiqh markets in their favor. In the long run, however, the fiqh rulings obtained through undue influence and coercion are reversed. That has been the power of the fiqh markets. The most remarkable story of state intervention into the fiqh markets occurred in the last few decades of the classical era under the Abbasid Caliph Al-Ma’mun (813–33). When Al-Ma’mun assumed power, he faced a profound theological controversy about the nature of the Qur’an that had been raging for decades in the fiqh markets. The Mu’tazilis, a rationalist school of opiniojurists, were arguing that the Qur’an was not the literal Word of God, because God, having no larynx, does not speak like human beings, much less in a specific language, like Arabic, with its anthropomorphic attributes, such as style, sarcasm, alliteration, and tone. Al-Ma’mun adopted this view as the state ideology and outlawed the counter-thesis that the Qur’an is the Word of God.5 This state intervention shocked the fiqh markets, as the caliph started an inquisition, called mihna, to impose the official doctrine on the community of opiniojurists. Out of fear, numerous scholars succumbed to state pressure. Ahmed bin Hanbal, the legendary imam, was brought in chains before the inquisition court for refusing to accept the official ideology.6 Eventually, the fiqh markets regained their independence as a later caliph withdrew the 59

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Contemporary Ijtihad doctrine. Al-Ma’mun’s mihna established a cautionary principle that governments cannot be trusted in matters of fiqh. The other classical founders of Islamic fiqh have also been highly skeptical of association with governments. Imam Abu Hanifa went to prison for refusing Caliph Al-Mansur’s offer to become the chief judge. Skeptical of the company of rulers, Abu Hanifa is reported to have compared the ruler with fire that benefits from a distance but burns from being too close. When Medina’s governor forced Muslims to take the oath of allegiance to Caliph Al-Mansur, Imam Malik issued a legal opinion declaring such an oath to be unlawful. The governor arrested Imam Malik and publicly flogged him. Imam Shafi was arrested in Yemen for fomenting political dissension. Thus, all four founders of the legendary schools of fiqh demonstrated through their personal life stories that Islamic fiqh must be severed from the power of governments. Opiniojurists, and not rulers, are the guardians of Islamic law. Opinions delivered in private chambers of honest and God-fearing opiniojurists are more worthy of consideration than those issued by state judges or state opiniojurists. The inherent mistrust of rulers and state-supported opiniojurists informs the enterprise of Islamic law. Contemporary ijtihad repudiates state policies to impose constraints on the freedom of fiqh markets. Unfortunately, Muslim governments of our times remain intolerant of free fiqh markets. In undemocratic Muslim states, arresting, imprisoning, and executing opiniojurists are the state instruments of ideological coercion. Egypt, for example, under consecutive dictatorships, continues to violate the freedom of fiqh markets. In 1966, Egypt executed Sayyid Qutb, a prominent opiniojurist, on charges of treason. Numerous other opiniojurists are languishing in various prisons for their alleged ties with “terrorists.” For fear of his life and liberty, Yusuf Qaradawi, another prominent Egyptian opiniojurist, lives in exile. To further distort the authenticity of fiqh markets, the Egyptian Government frequently relies on state-appointed opiniojurists. Sayyid Tantawi, the Grand Imam of the Al Azhar Mosque, appointed by President Hosni Mubarak, had been a loyal supporter of the pro-Western, irremovable, government of Mubarak. On the prompting of the government, Tantawi declared that interest on government bonds does not fall under the prohibition of riba. In Pakistan, though fiqh markets are generally free of state coercion, sectarian slaughters, which the government has been unable to prevent, continue to harass opiniojurists and hamper their freedom to deliver opinions. In the early 60

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Free Markets of Fiqh 1950s, however, Abul Ala Maudoodi, a renowned opiniojurist, was sentenced to death. In the great juristic tradition of standing up to the government, Maudoodi refused to file a petition for mercy. Strong public pressure not only saved his life but forced the government to annul his sentence. Organized Clergy Hierarchically organized clergy is not necessary for the functioning of fiqh markets. In fact, in some cases, organized clergy might undermine the freedom of fiqh markets to generate authentic rules of Islamic law. Fiqh markets protect a profound truth about Islam, which establishes a direct relationship between individual and God, eliminating requirements for any religious intermediary. Islam is a faith of direct access to God and His Laws. Each individual, Muslim or non-Muslim, opens a separate account of deeds with God. The Qur’an instructs the Prophet to say: “To me [shall be credited] my doings, and to you, your doings: you are not accountable for what I am doing, and I am not accountable for whatever you do” (10:41). Muslims may learn from religious teachers, including men and women learned in Islamic laws. However, they are not required to join any clerical organization for practicing their faith. Islam is not an organized religion, but that does not mean that the individual is completely free to interpret Islam without guidance from the learned. Willful and arbitrary interpretations of the Basic Code have never been part of fiqh markets. Islam provides a basic framework of beliefs and practices that cannot be modified or rejected, and any modification or rejection of this basic framework estranges individuals and communities from the fold of Islam. While Islam furnishes a strong sense of the community, it does not mandate a hierarchical clerical structure to form a community of believers. Muslims have no Pope. No one opiniojurist, therefore, legislates for all Muslims of the world. There exists no single clerical organization with a monopoly over interpretations of the Basic Code. In the absence of hierarchical structures, the free markets of fiqh have shaped diverse Muslim religious communities with different subsystems of Islamic law. What unifies diverse interpretive communities are the Qur’an and the Sunnah. There is only one Qur’an for all Muslims, and Muslims are committed to following the Prophet’s Sunnah. Beyond that, Muslim communities have historically been diverse and free to follow diverse schools of fiqh, local 61

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Contemporary Ijtihad customs and state-generated laws, provided that these customs and laws do not offend the Basic Code. Fiqh markets among Sunni Muslims throughout the world are highly decentralized, with the possible exceptions of Saudi Arabia and Turkey. In Saudi Arabia, a loosely organized clerical structure has been established to discourage proliferation of diverse opinions on the same subject matter. Nonetheless, adherence to a puritanical version of Islam, the so-called Wahhabism, does not restrict the juristic freedom to reflect upon the Basic Code. Less flamboyant and assertive, the Saudi fiqh market is potentially open to opinion and viewpoint. Turkey is torn. Since the establishment of secular Turkey in the early twentieth century, the state control of Muslim clergy has been enforced contrary to Islamic traditions. The Kemalist distaste for Islamic traditionalism, however, has lost much of its ideological ground. Turkey, torn between Europe and Islam, is working its way toward establishing the freedom of fiqh markets. Attempts to superimpose a strict clerical hierarchy or state control over fiqh markets have failed in the past and they are unlikely to succeed in the future.7 Since the 1979 revolution in Iran, Shia Muslims appear to be more organized than Sunni Muslims. In Iran, for example, the Shia clerical infrastructure is hierarchical, with a religious leader at the top. Even in Iran, however, Sunni Muslims are constitutionally protected and cannot be compelled to follow juristic rules of the Shia fiqh. Article 12 of Iran’s Constitution provides that “other Islamic schools . . . are to be accorded full respect, and their followers are free to act in accordance with their own jurisprudence in performing their religious rites.” Furthermore, Iran’s Shia clerical organization is territorial and not universal: Shia Muslims in other parts of the world may or may not follow opinions of Iran’s ayatollahs. Local Fiqh Markets A fiqh market is both spatial and conceptual. Certain cities or countries serve as spatial markets when eminent opiniojurists live there. Historically, Kufa, Baghdad, Medina, Mecca, Bukhara, and Bulkh have served as great fiqh markets. A market, however, is also a virtual entity. Conceptually, a fiqh market is a phenomenon. It is an exchange of legal opinions issued to respond to new issues and develop new rules of Islamic law or modify the existing ones. With modern technology, including the availability of the Internet, the fiqh markets are losing their historical spatial boundaries and are more 62

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Free Markets of Fiqh likely to become virtual entities. Juristic discussions may no longer be confined to a particular city or country. The primary function of the fiqh market is to facilitate the cross-pollination of juristic opinions. A mere exchange of legal opinions, however, does not constitute a fiqh market. Several parameters assure the existence of a genuine fiqh market. The most important aspect of a genuine market is the freedom that opiniojurists have to issue opinions without duress, fear, or pressure. When domestic governments, armed groups, or foreign nations compel opiniojurists to issue legal opinions, the compulsion distorts the dynamics of the fiqh markets. Likewise, ordinary Muslims, as well as competing opiniojurists, must be free to accept, reject, or question the issued opinions, including those of the Great Imams, Shia and Sunni. If opiniojurists and followers are not free, neither are the fiqh markets. An authentic fiqh market is founded on two distinct freedoms: that of opiniojurists and that of followers. These combined and inseparable freedoms constitute an authentic fiqh market in which legal opinions are freely issued and freely accepted, rejected, or criticized. Contemporary ijtihad recognizes local fiqh markets in Muslim nations and communities. Respect for local markets is a fundamental principle of Islamic fiqh. Fiqh markets thrive on the diversity and dignity of local markets. They refrain from universalizing a conception of the fiqh that discounts local traditions. Islamic law is thus inherently flexible and resilient. Since their beginning, fiqh markets have recognized diverse social customs and practices. No super norm of the Basic Code requires fiqh markets to drive out customary rules that fail to win the approval of all Muslim communities. Customary rules even in small communities may survive and remain part of the Islamic legal tradition. A customary rule that makes perfect moral and social sense in one community may carry little appeal in other communities. Since no community dictates customs to any other community, local fiqh markets in diverse communities carry a presumption of equal respect under Islamic law. Local fiqh markets in Iraq are not superior to local fiqh markets in Indonesia, nor are local fiqh markets in new Muslims nations inferior to local fiqh markets in ancient Muslim nations. Islamic law does not subject one Muslim nation to the customs of another Muslim nation. Vigorous diversity of local markets must be protected and not diluted. The fiqh markets respond to local customs and opiniojurists cannot dismiss local customs while interpreting the Basic Code. The rule of diya or monetary compensation for homicide is part of the 63

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Contemporary Ijtihad Basic Code. However, its interpretation may vary from one culture to another. In some Arab communities, the pre-Islamic rules of the extended family placed the payment obligation of diya on the entire family rather than on the individual who committed homicide. In honoring this custom, the Hanafi opiniojurists in Arab communities concluded that the offender’s extended family was liable to pay diya for the commission of unintentional homicide. This culturally specific interpretation of the diya rule, though compatible with the Basic Code, is not mandatory on all Muslim communities regardless of family structures and traditions. The Hanafi opiniojurists of Balkh (Afghanistan), for example, could not accept Arab interpretations of the rule of diya, because the family structure in Balkh differed from that in Arab communities. This cultural variation in the enforcement of the rule of diya is part of God’s promised diversity, and not a symptom of disunity in the Ummah. Recognition of local customs as part of Islamic law, however, is far from absolute. The Basic Code itself modified numerous customs of Arab communities to demonstrate to Muslims in general the normative interaction between the Basic Code and local customs. For example, the Qur’an modified the local custom under which adopted children were given the names of adopting families. The Qur’an instructs Muslims to call adopted sons by the name of their biological fathers and call them as “brothers in faith” and “friends” if their biological fathers are unknown (33:5). The Qur’an also modified the local custom under which the adopting father could not marry the divorced wife of his adopted son. Under the compulsion of local custom and the associated pressure, the Prophet was reluctant to marry the divorced wife of his adopted son, Zaid. The Qur’an instructs the Prophet to contract the marriage, overcome the fear of the community, and disregard the coercion of the local custom (33:37–40). Thus, the Basic Code does not allow thoughtless continuation of local customs. It encourages Muslims to face sanctions of the community and challenge local customs incompatible with teachings of the Basic Code. No Muslim community may, therefore, hold on to local customs contrary to the letter and spirit of the Basic Code. Local customs do not modify or override the principles of the Basic Code. Accordingly, fiqh markets urge Muslim communities to critically assess and modify local customs that cannot be reconciled with the Basic Code. Many Muslim communities in diverse parts of the world have changed their ancestral customs found contrary to the Basic Code. 64

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Free Markets of Fiqh In order to be compatible with the Basic Code, local customs must reflect good practices of the community. Al-urf, a word of the Qur’an and associated with local customs, appears in the context of a command. The Qur’an instructs Muslims to authorize what is al-urf but give no credence to practices of the ignorant (7:199). Here, the Qur’an distinguishes between refined and ill-bred customs. Al-urf does not refer to ill-bred customs; it refers to refined customs that are ethically sound and socially constructive. For example, the ancient custom of Hindu sati, a ritual practice of widows burning themselves on the funeral pyres of their husbands, could not be allowed to Indian Muslims who converted from Hinduism to Islam. Sati is contrary to the Basic Code, which prohibits suicide. Sati is also objectionable under the concept of al-urf because sati cannot be ethically justified. The fact that even Hindus have abandoned the custom of sati demonstrates that ill-bred customs cannot be admitted into Islamic law. Fiqh markets are free to assess the validity of local customs. Now that fiqh markets are no longer tied to the Middle East, and new fiqh markets have opened up in Africa, Asia, Europe, and North America, the recognition of local customs in various parts of the Muslim world and in various communities located within nonMuslim nations is even more significant. No jurist of any region or nation has any superior right to pronounce upon the Islamic validity of local customs. Local opiniojurists are in the best possible position to assess the Islamic validity of local customs. For example, Malaysian opiniojurists are qualified to judge the Islamic validity of local customs in Malaysia because a Malaysian opiniojurist not only knows the substance of local customs but he also knows how local customs are understood and practiced within the Malaysian culture. Opiniojurists in others parts of the Muslim world are also free to render opinions on the Islamic validity of local customs in Malaysia, because fiqh markets are free and open to all opiniojurists. It is highly unlikely, however, that their opinions about Malaysian customs will carry more credibility than those of Malaysian opiniojurists. Specialized Fiqh Markets Contemporary ijtihad recognizes specialized fiqh markets emerging in different parts of the Muslim world. Among specialized markets, Islamic capital markets are gaining momentum and prominence. They have been established to offer “Shariah-compliant” debt instruments, investments, and securities. Malaysia and the Gulf States 65

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Contemporary Ijtihad (Bahrain and Qatar) are rising as the Islamic centers of specialized capital markets, which attract both Muslims and non-Muslims. The governments of these Muslim states are actively engaged in issuing sovereign debt that complies with the principles of Islamic law. Considerable variation in the jurisprudential understandings of Islamic finance instruments divide the specialized markets of Malaysia and the Gulf States, a viewpoint contest necessary for the free and authentic development of Islamic finance law. As interest in Islamic financial instruments gathers momentum in the Muslim world, more experts are likely to enter the field of Islamic financing. Conventional opiniojurists, rich in the knowledge of the Basic Code and classical fiqh but deficient in the understanding of modern financing, lack the skills to guide contemporary ijtihad in capital markets. Likewise, professional bankers and investment specialists trained in modern financing with little knowledge of the Basic Code and classical fiqh lack the credibility in fiqh markets. Islamic financing as a specialized fiqh market would require sophisticated coordination of numerous experts trained in diverse fields for the successful launching of financial instruments founded on the principles of Islamic law but responsive to practical dynamics of capital markets. The finance principles of Islamic law forbid assumption of excessive risk as well as complete avoidance of risk. The Qur’an prohibits al-maysir or speculative risk, warning the faithful to avoid games of chance in which the probability of loss is much higher than the probability of gain (2:219). Shariah-compliant investments, therefore, avoid speculative risk, including interest rate options, naked equity options, futures, derivatives, and numerous leveraged products purportedly designed to hedge investments. Many of these financial products attract speculators in hope of making quick money. When trusted fund managers, under institutional pressures to show profit, resort to speculative risk, hedge investments turn into suicidal strategies for financial ruin. Islamic law cannot support capital and financial markets that hide the assumption of speculative risk in the construction of complex instruments. A jurisprudence of giving Islamic names to what conceptually and operationally resembles gambling is unlikely to succeed in the fiqh markets. In addition to prohibiting high risk investments, the Qur’an also prohibits no-risk investments. The prohibition against riba, interest on loans, is strictly enforced. Islam does not prohibit passive invest66

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Free Markets of Fiqh ments. Nor does it prohibit giving interest-free loans. Debt is not contrary to Islamic law. Charging interest on debt is. Although some experts argue that usury, and not interest, is prohibited under Islamic law, most Muslim scholars agree, however, that any interest on loans is contrary to the Shariah. Refuting arguments that money has time value or that interest is analogous to profit, the Qur’an offers a categorical principle that “trade is permitted but interest is not” (2:275). The prohibition against interest was revealed not only to save the poor from unscrupulous lenders, but also to deter investors who demand a set return on their investments and decline to take the risk of engaging in useful trade. Between the prohibited limits of maysir (speculative risk) and riba (no risk), however, Islamic law permits creativity in financial markets where investors mobilize surplus monies for the production and distribution of halal goods and services. These permissible markets are neither risk-free nor prone to irresponsible risk. Though innovative and authentic, Islamic capital markets are infused with the values of fairness, transparency, and reasonable profits. They are free of predatory practices that corrupt transactions with greed and inflict hardship on the poor, the elderly, and the novice. Thus, specialized markets in Islamic financing cannot be just about the movement and management of money. They must safeguard the fundamental values of Islamic law, including equitable access to, and distribution of, critical resources. A new breed of specialized markets is also likely to emerge in specific subject matters of Islamic law. In contrast to the classical era in which each madhab developed rules of law across the entire spectrum of Islamic law, specialized fiqh markets may require juristic expertise in specific areas of law. Just as finance and capital markets are complex and require coordination of diverse expertise for meaningful development of Islamic financial law, similarly fiqh markets may require specialization in other areas of Islamic law. For example, regional and global Islamic institutions may be established to refine the rules of Islamic trade and commerce. The Muslim world can embark upon building international peace and security institutions. Specialized fiqh markets may bring opiniojurists of diverse Muslim nations into mutual contact for studying the Basic Code and classical fiqh in contemporary contexts to propose rules in the areas of intellectual property, accounting, the law, judicial ethics, independence of judiciary, government accountability, and a legion of other areas of law. 67

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Contemporary Ijtihad

Ijtihad and Bidah Islamic fiqh markets distinguish between ijtihad and bidah (innovations). As a general principle, ijtihad is allowed but bidah is prohibited. The line between ijtihad and bidah is thin, since both are related to legal creativity. A new rule argued under ijtihad might be rejected under bidah. In contemporary terminology, bidah would be similar to a doctrine that prohibits the overturning of settled precedents. As a force of conservatism and preservation, bidah is an anti-revolutionary restraint that prohibits Muslim opiniojurists from offering or accepting dramatic changes to Islamic law, including fiqh. Preservation rather than demolition is the driving dynamic of bidah. Ijtihad, however, is a force for transformation and creativity, finding efficient and practical solutions to problems that Muslim communities meet in the vortex of changing spatiotemporal realities. Pulling Islamic law in opposite directions, ijtihad and bidah can clash. One may also argue that the two forces furnish checks and balances, as a legal system devoted to constant innovations can lose its center of gravity, while a system opposed to change loses touch with reality and may have to be discarded in its entirety. Ijtihad and bidah, therefore, serve as twin forces for the guidance of opiniojurists. Ijtihad and bidah, however, do not always cross each other’s path. Ijtihad provides new rules to fill gaps in law, to regulate activity for which the existing system provides no solutions. Ijtihad adds new rules to the system without repealing or modifying any existing rules. Bidah adds new rules to the system by modifying or repealing existing rules. Bidah is thus essentially reformative, whereas ijtihad is pro-formative. When a new rule is presented to the fiqh markets, opiniojurists decide whether the new rule is the acceptable part of ijtihad or the unacceptable part of bidah. Of course, the fiqh markets may remain divided over the nature of the new rule. Controversies over the characterization of new rules by no means weaken the fiqh markets. Differing viewpoints among well-informed and competent opiniojurists animate the intellectual freedom of fiqh markets. They are indispensable for the development of Islamic law. Some innovations, however, are so dramatic that the fiqh markets do not even consider them for discussion or repudiation. In the United States, as noted above, the Nation of Islam introduced dramatic innovations to the Islamic belief system. The Nation substituted Elijah Muhammad for the Prophet Muhammad as the last prophet. The Nation maligned the white race as intrinsically evil even though 68

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Free Markets of Fiqh the Qur’an teaches Muslims that varying human skin colors are part of divine diversity. It prohibited interracial marriages in order to protect black women, an innovation without any support in Islamic law. This race-based ideology was no different from the JudeoChristian “curse of Canaan,” a doctrine advanced to justify slavery of black people and white supremacy. Islam also repudiates the curse of Canaan. The fiqh markets paid no serious attention to the bidah of the Nation of Islam. The Nation’s innovations, however, proved to be unsustainable as its leadership gradually turned to mainstream Islam. Even though the Nation has abandoned its major innovations, it continues to generate a bidah-prone orientation toward the teachings of Islam and Islamic law. Reasoning Methodologies Diverse legal opinions may arise from differing legal reasoning that opiniojurists employ to solve legal problems. Consider the case of saying mandatory prayers while wearing stolen clothes, a case discussed in the classical period with engaging intelligence. Imam Hanbal argued that mandatory daily prayers said in a stolen garment were wholly null and void. Under his analysis, saying prayers in a stolen garment fuses what is right with what is wrong. The purpose of daily prayers is submission to God, affirmation of good intentions, and purification of the heart. When the prayers are said in stolen garments, the spirit of submission is breached in a flagrant manner. Imam Abu Hanifa, however, reached the opposite conclusion. He declared that the daily prayers said in a stolen garment are valid, because for him the act of stealing does not vitiate the act of worship. According to Abu Hanifa, the two acts and the corresponding obligations are separate and may not be fused. The person would be rewarded for his performance of obligation to God but punished for breaching his duty to man. The act of worshiping in a stolen garment does not cure the act of stealing, and the act of stealing does not taint the prayers. Muslims who subscribe to the Hanafi madhab would allow the performing of daily prayers in stolen garments, whereas Muslims who subscribe to the Hanbali madhab would not. Due to these conflicting and irreconcilable juristic opinions of the Great Imams, the matter is left to individual discretion. When fiqh rulings conflict and provide no clear guidance, Muslims search their conscience, under the principle of personal accountability, to decide whether or not, for example, they would say the prayers in stolen garments. 69

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Contemporary Ijtihad In all probability, most God-fearing Muslims would choose not to say their prayers in stolen garments, unless necessity dictates otherwise. If the individual has no other garments in which to say his mandatory prayers, the prayers said in stolen garments are valid. The individual, however, is still accountable for his theft. If a Muslim, who has no clothes to wear for the Jummah (Friday noon) prayer, steals the garment for the primary purpose of saying the mandatory prayer, even the act of theft may be punished lightly or completely forgiven. These examples clarify that differing legal methods and reasoning may yield different fiqh rulings. No wrong is committed when prudent and honest opiniojurists propose differing rulings on the same issue. As suggested before, the ultimate test of a ruling is what might be called a field test; that is, whether a Muslim community would accept a particular ruling. Once a strict loyalty to a particular madhab is relaxed, the field test offers an even more promising and permanent solution to differing opinions. Muslim communities are free to accept particular rules, emanating from credible schools of jurisprudence, in good faith and in accordance with their culture and social viewpoints. Universal and Timeless Rules The rules contained in the Qur’an and the Sunnah constitute the universal and timeless rules of al-fitra (natural law) binding on all Muslim communities of all temporal generations, regardless of their diverse culture, tradition, and history. For example, fasting is prescribed for all Muslim communities, though there are exemptions for individuals suffering from certain specified disabilities. However, no community may claim exemption from fasting on the ground that fasting is contrary to its customs and local practices. Likewise, Muslim men and women of all nations and generations are under an obligation to get married, though this rule also has practical exceptions. These exceptions are available to individuals, however, and not to communities. No Muslim community may depart from the universal Islamic rule of marriage and establish a counter-rule that undermines the institution of marriage. Even some universal rules embodied in the Basic Code are flexible. The Qur’an, for example, prescribes the concept of the age of marriage. However, it prescribes no definite age as the age of marriage. The Qur’an’s injunction mandates that a Muslim community 70

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Free Markets of Fiqh should establish an age of marriage. But the injunction leaves it to each community to determine for itself what that age ought to be. A Muslim community would breach its obligation under the Qur’an if it establishes no minimum age of marriage, but the setting of a certain minimum age of marriage is within the community’s discretion. Muslim communities would commit no wrong if they adopt an age of marriage that is universally accepted or mandated. For now, the human rights treaties have failed to set a definite minimum age of marriage. The classical fiqh has allowed Muslim men and women of less than eighteen years of age to get married. This ruling may be changed in order for Muslim communities to comply with any universal rule that may in the future set a minimum age of marriage. Thus, the Qur’an’s prescriptive flexibility allows Muslim communities to adjust the age of marriage according to the needs and moral imperative of the times. The rules of fiqh are frequently diverse, as uniformity and universality are not conditions precedent for formulating the rules of fiqh. However, even some rules of fiqh might become universal through widespread acceptance. A universal rule of Islamic fiqh emerges in the free markets through a process of convergence and consensus. When the leading opiniojurists of diverse communities offer similar opinions on the same legal issue, a process of convergence takes place. The commonality of their opinions emerges as the universal rule of Islamic fiqh. The rule is established as a firm precedent in its own period and for subsequent generations. A universal rule of fiqh established through the free markets may survive indefinitely across nations and cultures. Note, however, that no rules of fiqh, including universal and timeless rules affirmed through intergenerational consensus of opiniojurists, are divine. The universal and timeless rules of the Basic Code must not be confused with the universal and timeless rules of fiqh. Reopening Settled Rules Once a rule has been firmly established in any legal system it is difficult to uproot it. This general observation is valid for Islamic law as well. The age of strict precedents was a period in which Islamic law could not be developed, forcing Muslim nations either to abandon Islamic law or lose touch with the changing realities of the world. But even in this period, Islamic law continued to change, though the quantum and quality of change was far less than needed to move 71

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Contemporary Ijtihad Muslim communities in a fast-moving world. Iron rigidity has never been part of the fiqh markets, as any rigid doctrine defies open and free markets upon which Islamic law is built. Consistent with commands of the Basic Code, even some settled rules of fiqh may undergo partial or complete repeal. The most striking example of such a process of change is the sama rule. Sama refers to listening to music to achieve a state of wajd (ecstasy). Sama connects the minds and hearts of listeners to the beauties of faith. Al-Ghazali was a great proponent of sama and believed that the secrets concealed in the heart can be brought about only by sama. In his chapter on music and singing, Al-Ghazali begins by acknowledging that the first Muslim scholars, including the Great Imams, Shafi, Malik, and Abu Hanifa, viewed listening to music “as forbidden.”8 Imam Shafi compares listening to music with false sport and opines that a person who engages in this sport is disqualified as a credible witness and his testimony shall be rejected. In Medina, most Islamic scholars, including Imam Malik, declared singing to be unlawful. Likewise in Kufa, Great Imam Abu Hanifa and most other Muslim scholars left no doubt in their opinions that listening to singing was contrary to the teachings of Islam. Al-Ghazali presents a muddled picture with respect to the fourth Imam, Ahmed bin Hanbal. He quotes Ibn Daud to show that Imam Hanbal “disliked listening to music and singing.” But he also cites another source to show that Imam Hanbal listened to the voice of a poet known as Ibn Al-Khababaza. It appears that all four Great Imams had reached a consensus in prohibiting music and singing. To challenge these classical juristic prohibitions, Al-Ghazali makes several distinct arguments. The first argument highlights the gap between practice and juristic opinion. Al-Ghazali lists a number of the Prophet’s companions who themselves listened to music, and others who, despite their asceticism and piety, expressed no disapproval for others. The people of Medina and Mecca did not cease listening to music even on holy days, such as the days of at-Tashriq set aside for exclusive worship to God. And when the Prophet and his companions arrived in a new city, says Al-Ghazali, the women on the housetops expressed their joy by singing poems with tambourines. Al-Ghazali draws on these facts to show that no juristic opinion is valid if there is no compliance in the Muslim community. His observation is correct to the extent that the rules of fiqh are more than mere opinions. Compliance is an essential part of a valid rule. This 72

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Free Markets of Fiqh argument must be qualified, however, since the purpose of fiqh is not simply to report a community practice, but sometimes to change it. However, juristic preferences cannot be confused with fiqh. If a community of believers acts contrary to the prescriptive demands of a juristic opinion, Al-Ghazali correctly concludes, the opinion is simply a juristic preference and not a rule of law. Under this logic, the Great Imams were simply expressing a preference that did not become a binding rule due to lack of compliance. After showing the gap between juristic opinion and popular practice, Al-Ghazali invokes the Basic Code to argue that listening to music and singing are not totally prohibited. Al-Ghazali identifies two distinct sources, nass (text) and qiyas (analogy), which must be consulted to find a rule for or against sama. Nass are the fixed texts, that is, the texts of the Qur’an and the Sunnah. Qiyas, also known as analogy, is a legal method that early Muslim opiniojurists developed to cull meaning from the nass. In analyzing these sources, Al-Ghazali articulates the issue in a starkly clear language: to say that music is prohibited in Islam is to contend that God has forbidden it under penalty. Al-Ghazali lays out the nass arguments to demonstrate that God loves beautiful voices. The Qur’an states that “verily among the harshest voices without doubt is the voice [braying] of the ass” (31:19). This nass, the words of God Most High, Al-Ghazali says, contain “implicit praise of a beautiful voice.” Al-Ghazali also cites a number of ahadith, the words of the Prophet, to reinforce his defense of music and singing: “God has not sent a prophet except with a beautiful voice.” “God listens more intently to a man with a beautiful voice reading the Qur’an . . .” The Prophet also praised the biblical Prophet David, says Al-Ghazali, whose beautiful singing of the Psalms would enchant human beings, jinns, wild beasts, and birds. Al-Ghazali provides no sources from which he gathered these ahadith. However, Al-Ghazali does mention the ahadith collected in the two most authentic collections, Sahih Bukhari and Sahih Muslim, to further prove that singing and music are allowed under Islamic law. One hadith refers to an episode in which the Prophet’s wife Aisha was listening to two singing girls. The Prophet was there but he did not stop the singing. The Prophet, however, did turn his face away. When Aisha’s father, Abu Bakr, arrived, he rebuked Aisha, protesting how she could allow the Devil’s pipe in the presence of God’s Apostle. The Prophet, however, said to Abu Bakr: “Leave them alone.”9 73

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Contemporary Ijtihad Al-Ghazali analyzes this hadith to show that the Prophet, even though he was not looking at the singing girls, did listen to their singing and playing the tambourines. There are other viable counterinterpretations, however. This hadith may also be interpreted to argue that the Prophet refused to impose his personal preferences on his wife. His turning away from the singing girls and covering his face under the sheet may be seen as indications of minor disapproval. These gestures may also be interpreted as strong disapproval, since the Prophet was a mild-mannered person and made his points gently and subtly, particularly to the people he loved. An argument can be made that this episode does clarify that the Prophet tolerated music and singing even though he refused to absorb himself into the event – though it is one that Al-Ghazali does not make in his teachings. But such an argument would support a broader thesis that no opiniojurist, not even the Prophet, may universalize his personal tastes and preferences as binding rules for the larger Muslim community. Muslims are free to follow the personal preferences of the Prophet out of love for him. But preferences and obligations cannot be coterminous. The arguments drawn from qiyas are the most striking in Al-Ghazali’s defense of sama. Employing the legal tool of analogy, Al-Ghazali indulges in lawyer-like hair-splitting to challenge the scholastic ban on music. But his main argument appears to draw a sharp distinction between things essentially lawful and essentially unlawful, though each category has its own exceptions. For example, Al-Ghazali says drinking wine, is essentially unlawful. And yet it is lawful for a person choking with a morsel to drink wine if he cannot find any other liquid to relieve his distress. Thus, necessity makes lawful what is unlawful. By contrast, says Al-Ghazali, music and singing are essentially permissible. But there are circumstances under which what is permissible becomes prohibited. For example, doing business is essentially lawful, but becomes prohibited “at the time of the summons to prayer on Friday.” On the basis of this analogy, Al-Ghazali argues that listening to music and singing are lawful unless some external factors vitiate their lawfulness. Music that generates unlawful sexual craving is unlawful because the purpose for which music is employed is unlawful. Likewise, singing is essentially permitted, but this permission cannot be blind to “the content of what is sung.” If the contents of a poem are obscene or contemptuous of God or His Prophet, reminds Al-Ghazali, no melody can make the singing of the poem lawful. 74

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Free Markets of Fiqh Al-Ghazali’s defense of sama seems to have relaxed the classical ban on listening to music. Music is allowed in most Muslim communities. The invention of qawwali that started with devotional music at the shrines of Sufi scholars may have acquired some of its legitimacy from the works of Al-Ghazali. The genre of qawwali has now been perfected and is a popular medium of music in some Muslim countries. It has also been combined with Western music. Muslim communities and groups who still hold on to classical fiqh may have doubts about the legitimacy of sama. But a Muslim community that generally belongs to a classical school of fiqh may select to relax the ban on sama. One may accuse Al-Ghazali of introducing an innovation, indeed a bidah, in Islam. Al-Ghazali’s approval of sama is a bidah to the extent that he advocated a viewpoint contrary to the practice established for 500 years. He also breached the rule of ijmah in that his position on music was contrary to the consensus of prior opiniojurists. However, Al-Ghazali might have reformed the very notion of bidah. According to Al-Ghazali, modifying or repealing a fiqh rule cannot be bidah, otherwise the definition of bidah treats rules of fiqh as immutable rules and effaces the distinction between divine and human laws. Contemporary ijtihad appears to accept Al-Ghazali’s viewpoint that even the settled rules of fiqh may be reconsidered and changed. On the specific point, however, Muslims are under no obligation to accept that listening to music is Islamic. The Taliban on both sides of the Pakistan–Afghanistan border wish to enforce the rule of classical fiqh under which listening to music, particularly to music that animates eroticism, is prohibited. Rule Selectivity: Tarjih Within the four Sunni schools, the fiqh markets have allowed the concept of rule selectivity (tarjih). The strict hold of madhab particularism is yielding to tarjih. Muslims are selecting rules from diverse schools of fiqh to fulfill their obligations. For example, a Muslim who generally follows the Hanfai madhab may adopt a Shafi rule that permits, under bad weather, the combining of the noon prayer (dhur) with that of afternoon prayer (as’r) or the evening prayer (maghrab) with the night prayer (isha) – a convenience unavailable under the Hanafi madhab. The same Muslim may adopt a Hanbali rule under which he may perform ablutions (wudu) by touching his socks with a moist hand instead of washing his bare feet, a requirement under the 75

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Contemporary Ijtihad Hanfai rules of ablutions. This selectivity offers great convenience to Muslims living a fast-paced life in places where ablutions facilities are inadequate or unavailable. The concept of tarjih does not apply to mandatory rules of the Qur’an and the Sunnah. Muslims are forbidden from making any changes to the text and the meaning of the Basic Code. Tarjih applies only to juristic rules where different opiniojurists have ruled differently upon the same issue. Even with respect to tarjih, Muslims are careful not to follow rules of an opiniojurist who lacks standing and respect in piety and knowledge. Nor can tarjih be used in bad faith to avoid obligations arising from law or contract. Rule selectivity, however, does not allow mixing and matching rules of different madhabs in a way that means that the resultant action is illegal or offensive under all madhabs. Rules cannot be mixed to avoid contract obligations. Nor can rules be mixed to seek undue advantage in business transactions. Rule selectivity presupposes good faith. Rule selectivity for the sake of convenience, however, is permitted. Tainted Opinions The fiqh markets protect their independence and authenticity by discounting tainted opinions. The opinions of jurists and juristic bodies, including courts, are considered to be tainted if the markets are unsure about the freedom of opiniojurists or juristic bodies. The markets presume that government opiniojurists and judges render tainted opinions. Even the opinions of private jurists and juristic institutions closely associated with governments are considered tainted. Any opiniojurist who works for a non-Muslim institution or government will almost always be viewed with suspicion. By contrast, opiniojurists who suffer abuse and persecution enjoy higher credibility in the free markets, and their opinions are presumed to be authentic. Of course, governmental abuse per se does not render an opinion authentic, because the fiqh markets will scrutinize the credentials of the persecuted opiniojurist and the contents of the banned opinion. For example, the fiqh markets may discount the opinions of Muslim opiniojurists living in the United States and other Western countries, for these opiniojurists are considered to be intellectually, emotionally, and spiritually unfree despite the fact that most Western legal systems protect free speech and do not persecute opiniojurists 76

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Free Markets of Fiqh for their opinions. That said, the fiqh markets penetrate deeper into the dynamics of personal freedom and are rarely fooled by a show of overt freedom that legal systems claim to grant. Muslim opiniojurists living in the Western legal tradition are psychologically predisposed or coerced to find ways to synthesize Western values with the Islamic way of life. In their attempts to find solutions agreeable to nonMuslims, Muslim opiniojurists may offer tainted opinions, overtly dishonest in analytical reasoning, or unknowingly compromised because of positional consciousness. In the post-9/11 world, tainted opinions issued in Western countries have proliferated as Muslim opiniojurists fear for their personal safety and mobility. The importance of positional consciousness is evident when one considers the use of the controversial tactic of suicide bombings in occupied Muslim lands such as Gaza, the West Bank, Iraq, and Afghanistan. In these lands, Muslim militants have used guerrillas strapped with bombs to attack military and civilian targets. Suicide bombing has been an effective weapon in asymmetrical conflicts, since it defies all theories of deterrence and has proven to be an elusive weapon to detect or control. The shock, surprise, and terror associated with suicide bombing have been a frustrating experience for occupiers and their formidable armed forces. It is also a weapon that the Westerners, including Israelis, do not use. Historically, part of warfare has been to ban the unique weapons of the enemy. The West is therefore determined to ban suicide bombing, citing all sorts of moral and legal reasons. Massive propaganda has been launched to associate suicide bombing with the indiscriminate killing of civilians, discounting its destructive power to the occupation infrastructure and military assets. Some in the West, who may defend the use of nuclear weapons, resent the morality of suicide bombing. What does Islamic law say about suicide bombing? The Qur’an and the Sunnah do not provide a direct answer to the question. The issue, therefore, is one that belongs to the fiqh markets, where Muslim opiniojurists must provide an answer. Opiniojurists from all over the world may participate in the fiqh market to determine the validity of suicide bombing. These opiniojurists use classical legal methods, including analogy, logic, customs, purposes, and preferences to interpret the text of the Qur’an and the meaning of appropriate ahadith. They may also consult classical opinions that the founders of five madhabs issued in the context of the Islamic law of war.10 The geographical location of opiniojurists might influence their opinions on suicide bombing. Opiniojurists living in the occupied 77

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Contemporary Ijtihad territories of Palestine, for example, will have a unique perspective on suicide bombings that other opiniojurists residing elsewhere might not share. Sheikh Ahmed Yassin, the spiritual founder of Hamas and a Muslim opiniojurist, appeared to have sanctioned suicide bombings. Dozens of soldiers belonging to Hamas undertook suicide bombing missions while he headed the organization. Israel defended the Sheikh’s assassination since he allegedly “masterminded scores of suicide bombings.” Abu-Basir Al-Tartusi, a Muslim opiniojurist who lives in London, issued an opinion in which he declared that suicide bombing is haram (forbidden). Al-Tartusi invoked a number of ahadith to demonstrate that suicide bombing is closer to forbidden suicide than it is to favored martyrdom. He cited Prophet Muhammad’s sayings: “Anyone who harms a believer has no jihad”; “a Muslim and his blood, possession, and honor are haram to another Muslim”; “the Muslim is the one who Muslims are safe from his tongue and hand”; and “the Believer is the one that people trust with their possessions and lives.” Al-Tartusi concluded that suicide operations contravene a number of the Shariah texts. Al-Tartusi’s opinion generated huge criticism. One Muslim asked: “What do you expect from him when he lives in London?” Others warned that the law of war comes from the fighters in the battlefield and not from opiniojurists sitting in London. This discussion is not to take a particular position on the matter, but rather to illustrate the importance of an opiniojurist’s situated consciousness in determining how it will fare in fiqh markets. At this point, the fiqh markets are receiving conflicting opinions from Muslim opiniojurists. It is unclear how the fiqh ruling on suicide bombing will eventually take shape. While it is unlikely that the fiqh would sanction an unrestricted use of suicide bombing, the opiniojurists may consider factors such as the state of oppression, the availability of means of resistance, the intention of the suicide bomber, the harm caused to innocent civilians, and other considerations in justifying suicide bombing as a possible legal weapon.

Notes 1. Sahih Bukhari, bk. 4, hadith 2073. 2. Abd Al-Rahman Ibn Khaldun, Al-Muqaddmah, trans. Franz Rosenthal, ed. N. J. Dawood, The Muqaddimah (Princeton, NJ: Princeton University Press, 1967). Ibn Khaldun affirms that the bulk of ahadith 78

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3.

4. 5. 6.

7. 8. 9. 10.

in Sahih Bukhari and Sahih Muslim satisfy the requirement of amal in that Muslims practice what the Sunnah prescribes. Eyyup Said Kaya, “Continuity and Change in Islamic Law: The Concept of Madhab and the Dimensions of Legal Disagreement in Hanafi Scholarship of the Tenth Century,” in Peri Bearman et al. (eds), The Islamic School of Law Evolution, Devolution, and Progress (Islamic Legal Studies Program, Harvard Law School, 2005), pp. 26–8. Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), p. 204. Ira M. Lapidus, A History of Islamic Societies (Cambridge: Cambridge University Press, 2002), p. 102. Francis E. Peters, The Monotheists: Jews, Christians, and Muslims in Conflict and Competition (Princeton, NJ: Princeton University Press, 2003), p. 225. Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), pp. 90–2. Abu Hamid Al-Ghazali, Ihya Ulum al-Din, vol. 2, bk. 18. Sahih Bukhari, bk. 4, hadith 1940. L. Ali Khan, A Theory of International Terrorism (Boston, MA: Brill Academic, 2006).

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3

Islamic Positive Law

Classical fiqh, legal methods, old and new schools of jurisprudence, modern juristic opinions, constitutions, civil codes, international law, qanun (legislation), local customs, case law, and regulations, all these bodies of law constitute Islamic positive law. By contrast, as noted in prior chapters, the Qur’an and the Prophet’s Sunnah are divine texts that comprise the Basic Code of Islam. The bodies of positive law and the Basic Code together form Islamic law. Islamic law is a broader term that includes both divine texts and positive law. Note again for purposes of clarity, however, that the Basic Code is the divine part of Islamic law; the Basic Code is not positive law. The divine part of Islamic law is permanent for all times, all nations, and all generations of Muslims. Islamic positive law can be modified and repealed. Islamic positive law is constantly evolving to meet new challenges of the Muslim condition. It may vary from nation to nation, time to time, and generation to generation. The immutable Basic Code and alterable Islamic positive law must never be confused with each other.1 Philosophically, positive law represents human intelligence that regulates human affairs. Communities that do not believe in God or believe in several gods may establish intelligent laws to curb the arbitrariness of rulers, to regulate families and businesses, to forge prosperity, and to secure the people from internal strife and external aggression. God’s Law revealed in divine texts is granted to human beings. God’s Law precedes human intelligence. It is inaccurate to assume that God’s Law is irrational or opposed to human rationality. God’s Law, for the most part, is compatible with human intelligence and no chasm separates the two, even though human intelligence is fluid and mutable through evolutionary development. In some aspects, however, God’s Law may not reconcile with human intelligence. When God’s Law appears to be incompatible with human intelligence at a given evolutionary stage of human development, human beings may choose God’s Law or they may follow positive law originating from human intelligence.2 In such possible conflicts 80

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Islamic Positive Law between God’s Law and human intelligence, Muslims submit to God’s Law revealed in the Basic Code. How do Muslims know that the law revealed in the Basic Code is God’s Law, and not positive law that the Prophet Muhammad himself might have prescribed for the good of humanity? Muslims believe that the Prophet Muhammad was a truthful expert witness for the existence of God and for the truth of the Qur’an. Consider the rules of evidence that permit the testimony of expert witnesses: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”3 Muslims believe that prophets and messengers, including Moses, Jesus, and Muhammad, are “expert witnesses” who have specialized knowledge of God and God’s Law: “Our Lord, we believe in what Thou has revealed, and we follow the Messenger; tally us among those who bear witness [to the truth]” (3:53). This verse of the Qur’an and a sincere belief in its substance establishes the foundation of God’s law for Muslims. Of course, the trier of fact cannot be compelled to believe in the testimony of expert witnesses. It is essential to distinguish fiqh from the Basic Code. Fiqh, including classical fiqh that developed during the first few centuries of Muslim empires, is a positive source of Islamic law, and is likely to remain so for an unforeseeable period. Despite a dominant source of Islamic law, fiqh is neither divine nor monolithic. Fiqh is human and diverse. Fiqh interprets divine texts but it itself remains human. Various schools of interpretation furnish diversity to fiqh rules that, both with respect to worship (ibadaat) and transactions (muamalaat), have varied from school to school.4 However, as noted before, the phrase “classical fiqh” does not mean that classical fiqh is outdated or that it is no longer valid. Fiqh, classical and contemporary, is an integral part of Islamic positive law. Since the dawn of Islam, other sources of Islamic positive law, including imperial edicts, judicial decisions, and local customs have existed along with classical fiqh. However, fiqh in the classical era, and thereafter for numerous centuries, was the chief source of Islamic positive law; the other sources of positive law received little prominence. As the Muslim Ummah has broken into nation-states and provincial communities, the dominance of fiqh has yielded to other sources of positive law. In the contemporary era, national constitutions, legislation, and case holdings are rapidly becoming the principal sources of Islamic 81

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Contemporary Ijtihad positive law. Various national systems, with autonomous legislatures and judiciaries, provide unprecedented richness and diversity to Islamic positive law. Note the similarity and distinction between secular law and Islamic positive law. The similarity is extensive. Positive law, whether secular or Islamic, is the law made by human beings for human beings. Every nation, Muslim and non-Muslim, establishes positive law to regulate civil and criminal matters. The contemporary era of nation-states has experienced a remarkable proliferation in positive law as each and every aspect of life has been subjected to statutes and regulations. The very notion of the rule of law means that nothing is left to the arbitrary discretion of government officials. Although some nationstates are more highly regulated than others, successful establishment of positive law is critical for the internal security and prosperity of a nation. A nation, like contemporary Somalia, a Muslim state, suffers chaos and social degeneration when its positive law fails in efficacy and enforcement. In its utilitarian purposes, therefore, Islamic positive law is no different from secular law made and enforced in non-Muslim states. Islamic positive law establishes the rule of law, assures order and security, minimizes arbitrariness of government officials, and furnishes rules of cooperation for various social and economic initiatives, activities, and transactions. While the similarity between secular law and Islamic positive law is wide-ranging, the distinction between the two is fundamental. Islamic positive law submits to supremacy of the divine texts of Islam, the Qur’an and the Sunnah. Secular law does not submit to the supremacy of any divine texts, including the Basic Code. In order to be Islamic, constitutions, statutes, regulations, treaties, customs, and case law, all forms of positive law must submit to the principles of the Basic Code. This submission transforms positive law into Islamic positive law. Stated differently, no piece of positive law can be Islamic if it contravenes the rules and principles of the Basic Code. It is inaccurate to assert that all positive law in a Muslim state is Islamic positive law. As noted in the Introduction, a Muslim state may or may not be an Islamic state. A Muslim state is one in which Muslims constitute a majority or plurality. An Islamic state is one that accepts supremacy of the Basic Code. Islamic positive law is the positive law of an Islamic state. Theoretically, a Muslim state may adopt secularism, separate the Basic Code from positive law, and empower itself to make laws contrary to injunctions of the Basic Code. Such a Muslim state will establish secular law, not Islamic 82

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Islamic Positive Law positive law. The defining criterion of Islamic positive law, therefore, is the submission principle.

Submission Principle Contemporary ijtihad recognizes the Basic Code as the permanent grundnorm of Islamic law.5 Each legal system recognizes a grundnorm for clarification and systematization of rules. The grundnorm serves as the super standard for resolving normative and procedural conflicts between rules. In the United States, for example, the federal Constitution serves as the grundnorm. Federal laws, treaties, state constitutions, federal and state statutes, case holdings, regulations, and official interpretations and opinions of law, all must conform to the US Constitution. No rule contrary to the Constitution is considered valid. Almost all legal systems similarly recognize a single super-text or a set of super-texts as the grundnorm. Legislators, judges, and other state officials are aware of the grundnorm and adapt their respective roles in the legal system to preserve the integrity and supremacy of the grundnorm. Some legal systems prescribe punishments for violations of the grundnorm. For example, constitutional subversions are not lightly tolerated. Although no legal system functions like a perfect machine, the recognition of the grundnorm furnishes a mechanism by which interpretive and normative disputes can be resolved. In fusion states, such as Pakistan and Saudi Arabia, which establish the normative supremacy of the Basic Code, all laws are brought, at least in theory, into harmony with the Qur’an and the Prophet’s Sunnah.6 No state decree can violate the laws of the Basic Code. Judges and jurists ensure that state laws are in conformity with the Basic Code. High courts may be empowered to invalidate laws that cannot be reconciled with the letter and spirit of the Basic Code. In addition, juristic councils may be established to examine the compatibility of state laws with the Basic Code. The process of verification of laws with the grundnorm in fusion states is the same as it is in secular states. In secular states, laws are brought into harmony with the constitution; in fusion states, laws are brought in harmony with the Basic Code. In both systems, whereas courts enjoy the formal power, eminent jurists wield the intellectual power to assist in the harmonization of norms. In examining normative harmonization with the grundnorm, contemporary ijtihad explicates the significant contribution of the 83

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Contemporary Ijtihad compatibility doctrine. Historically, eminent jurists belonging to prestigious schools of jurisprudence employed the recognized legal methods, such as analogy and juristic preference, to deduce new rules from the Basic Code. The compatibility doctrine has revolutionized the historical method of deduction. In a number of modern Islamic states, laws made in state legislatures are not deduced from the Basic Code. The legislation bills are drafted in legislative committees with the assistance of lawyers and other professionals. The lawmakers pass the proposed bills through the existing constitutional procedures. In some states, the legislation is submitted to a council of stateappointed jurists. The council then reviews the legislation to verify its compatibility with the Basic Code. If the council finds it compatible, the legislation becomes part of Islamic law. The deduction model furnishes fiqh, whereas the legislative process provides qanun (here, the word qanun, which can be employed to mean all law, is used to exclusively designate state legislation). Both fiqh and qanun are distinct bodies of Islamic law. The compatibility doctrine has introduced two important changes to the making of Islamic law. First, the compatibility doctrine has introduced efficiency in the legislative process. Under the deduction model, each new rule must be deduced from the text of the Basic Code. The deductive process is laborious and requires a textual and linguistic analysis of verses of the Qur’an and traditions of the Prophet. The compatibility doctrine has freed modern legislation from textual connections with the Basic Code. The purpose of legislation is broadly reviewed to make certain that it is not contrary to the principles of the Basic Code. The purpose compatibility consumes less time and effort compared with linguistic analysis of the Basic Code. The deduction model is not opposed to reviewing new rules for purpose compatibility with the Basic Code. Yet the deduction model places a high premium on the textual analysis of the Basic Code. By contrast, the compatibility doctrine does not require that each piece of legislation must be linguistically associated with the Basic Code. Second, the compatibility doctrine is open to the democratic process of legislating Islamic law. The deduction model thrives on the voluntary services of eminent and pious jurists, who devote their lives to the study of the Basic Code and develop sophisticated interpretation skills. Some jurists enjoy international popularity, some live quiet but productive lives. The deduction process is analytical and private; it is not democratic or public, because it involves a 84

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Islamic Positive Law jurist’s personal endeavor to find a sound opinion compatible with the Basic Code. The compatibility doctrine has shifted the primary power to legislate Islamic law from jurists to state officials. In democratic Muslim states, elected officials responsible for making laws may or may not be jurists. Some have inadequate knowledge of the Basic Code. Yet state constitutions empower elected official to enact legislation. Although the council of jurists reviews the proposed legislation for its compatibility with the Basic Code, the democratic process vests the primary law-making powers in elected or otherwise nominated legislatures.

Objectives of Islamic Law In the thirteenth and fourteenth centuries, Muslims jurists from various schools of classical fiqh proposed the systematization of Islamic law through coherent philosophical and utilitarian frameworks. These overarching frameworks construct and explain maqasid al-Shariah, or objectives of Islamic law. Al-’Izz ibn ’Abd al-Salam (d. 1261), Ibn Qayyim Al-Jawiziyyah (d. 1351), and Abu Ishaq Al-Shatibi (d. 1388) have had significant influence over the subject matter. Shatibi, a bold Muslim theoretician, lived and wrote in the waning years of Muslim rule in Spain, and his work on the “objectives” of the Qur’an and the Prophet’s Sunnah resonates with contemporary Muslim and non-Muslim scholars of Islamic law. Shatibi calls the objectives of the Basic Code “rational foundations,” “precious pearls,” and “all-inclusive inferences.” Part of Shatibi’s intellectual appeal, mostly to reformist-minded scholars, rests in his passion for generalities that strive to decode the Will of God and lay bare the deep structures of divine texts, and, in Shatibi’s own words, “explain the fundamentals of jurisprudence.” As a talented theorist, Shatibi learned the objectives of Islamic law from Al-Ghazali (1058–1111), but developed them into a more coherent theory. Al-Ghazali stated: The very objective of the Shariah is to promote the well-being of the people, which lies in safeguarding their faith [din], their self [nafs], their intellect [aql], and their wealth [mal]. Whatever safeguards these five objectives serves public interest and is desirable and whatever hurts them is against public interest and its removal is desirable.7

The jurisprudence of public interest was a remarkable addition to what had been primarily linguistic, logical, and textualist approaches 85

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Contemporary Ijtihad to the interpretation of divine texts. Al-Ghazali was a consummate instrumentalist, opposed to formalism, who wanted to build interpretive bridges between divine texts and human welfare. No linguistic, analogical, or grammarian approach to the reading of the Qur’an and the Prophet’s Sunnah could be sufficient in itself to legitimize interpretations. Building on Al-Ghazali’s insights, Shatibi classifies the objectives of the Basic Code into three broad but interconnected categories of daruriyyah (essentials), hajiyyah (needs), and tahsiniyyah (embellishments).8 This classification of divine law, though sound in itself, attributes an anthropocentric view to divine texts. It asserts that the Basic Code was revealed to serve human interests, such as the preservation of life, religious liberty, and property, and to guide physical, material, intellectual, spiritual, and aesthetic needs, and the embellishment of human beings. Shatibi’s anthropocentric classification of the Basic Code is set in opposition to a counter-paradigm under which divine texts, though instructive for human beings, reveal much more than what serves human interests. According to the counterparadigm, divine texts cannot be reduced to human classifications, framed theories, or an all-enveloping set of human objectives. The Qur’an reminds believers that there was a period of time when humanity was nothing, not even in existence (76:1). Furthermore, much mischief has been done in theology and law by placing exaggerated focus on anthropocentrism and ignoring the dignity and needs of other forms of life and the environment. Broad objectives, such as the welfare of the community, moral order, and protection of life and property, may not inform the administration of law engaged with tenuous particulars of legal relations. Objectives may also change with evolutionary stages of human development. They may even vary from time to time as different exigencies engage the Muslim world. Yet broad objectives, which need not be superimposed over the meaning of divine texts, define the building blocks of Islamic positive law. The broad objectives of Islamic law, placed under the submission principle of the Basic Code, provide orientation and guidance to Muslim lawmakers, judges, and other legal professionals. Human history is replete with episodes when the administration of positive and religious law supported grand thefts, genocide, and persecution. The forcible taking of natural resources from native populations, the genocide of religious and ethnic communities, the expulsion of local inhabitants from their homes and villages, and numerous other violations demonstrate that 86

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Islamic Positive Law an efficient and sophisticated administration of law can engender cruel and inhuman results when the broad objectives of positive law are corrupted or discarded.9 Furthermore, the broad objectives of positive law, placed under the submission principle of the Basic Code, resist juristic tendencies for constructing overly rigid, formalistic, and narrow rules of positive law. When rules of law are severed from broad objectives, a technical realm of law is produced in which legal analysis and legal outcomes are mired into narrow linguistic and textual conduits. Technicians, unmindful of the objectives of law, continue to interweave a methodological superstructure, which, with time, can become opaque, incomprehensively complex, and detrimental to social health and utility. In England, the common law forms of action were severed from the objectives of civil procedure. A plaintiff who failed to pigeonhole his claim in one of the forms of action was denied justice regardless of the severity of injury. Likewise, some rules of fiqh were mere formalistic extensions of analogical reasoning with little justification for their applications under the broad objectives of Islamic law. In order to reverse formalistic excesses of classical fiqh, the objectives of Islamic law furnish a normative framework for criticism and reform. Modern constitutions of Muslim states frequently provide the principal objectives of Islamic positive law. The Constitution of Pakistan, for example, enumerates “the principles of policy.” Under these principles of policy, the state of Pakistan is obligated to promote the Islamic way of life, to ensure full participation of women in all spheres of national life, to safeguard legitimate interests and rights of minorities, to promote social justice and eradicate social evils, and to cultivate fraternal relations among Muslim countries based on Islamic unity. These objectives of positive law, however, are placed under the submission principle of the Qur’an and the Prophet’s Sunnah. Likewise, the Iranian Constitution states that the “foundation principles” with which “the exalted dignity and value of man, and his freedom coupled with responsibility before God; in which equity, justice, political, economic, social, and cultural independence . . . are secured.” Numerous constitutions make legal commitments to protect various human rights of individuals, minorities, and distinct peoples and communities within the state. A contemporary objective of Islamic positive law, perhaps unknown to Shatibi, partly because fourteenth-century southern Spain where he lived was highly elitist and hierarchical, is the principle of individual 87

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Contemporary Ijtihad self-determination. The Basic Code not only protects the diversity of nations and communities, it also protects the diversity of individuals, men and women. Individualism is rarely associated with Islam; and even in the United States, where individualism has for long enjoyed philosophical and legal respectability, individualism is attacked as a license for anti-communitarian egotism or self-promotion. Vulgar conceptions and practices of individualism can be associated with raw egotism and unhealthy self-interestedness. Islam, like many other religions, teaches against selfishness; it prompts individuals to connect with families and communities. Serving one’s family and community is a divine duty that Islam prescribes with command and clarity. Such prescriptions, however, do not weaken the principle of individual self-determination. According to the Basic Code, each human being is personally accountable for his or her deeds. Islam repudiates the idea of intergenerational or familial guilt. Children are not liable for their parents’ sins. Each person is individually obligated with duties toward God, family, and community. For example, each Muslim must perform daily prayers, fast during the month of Ramadhan, and pay the annual zakah. Exemptions from obligations are available for specific circumstances that individuals face. The sick are exempted from fasting during the period of sickness. Zakah is proportionate to the wealth that an individual accumulates in a year. Thus, even universal obligations are adjusted to accommodate the special life circumstances of each individual. In the Word of God, “each human being is under a pledge of his or her own undertakings” (74:38). This Word of God is seriously undermined when social, political, and economic structures do not allow individuals to make their own decisions. Overly paternalistic systems that suffocate individual initiative violate the dynamic divine order that Islam establishes for human beings. Furthermore, each human being is vested with unique talents and powers, equally, each human being is also saddled with disabilities. No human being is made perfect or remains flawless throughout his or her life. Adversity touches each individual life. Equipped with powers and encumbered with disabilities, each human being has the inherent right of individual self-determination. Persons with disabilities have as much a right to live a full life as persons with extraordinary talents. Suppressive systems under which individuals cannot use their talents are incompatible with Islam. Likewise, Darwinian systems designed for survival of the fittest violate the principle of individual self-determination. 88

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Islamic Positive Law Unfortunately, Muslim nations do not take the principle of individual self-determination seriously. Cultural practices, such as intergenerational bonded services, racism, classism, and tribalism, linger in opposition to the teachings of Islam. Individuals have been unable to free themselves from prejudicial classifications that the culture endorses. A number of Muslim states have systematically excluded women from public spheres. Some Muslim regimes have denied women the right to education and access to the market. Few Muslim nations allow women to participate fully in economic and political life, and women with disabilities face even more difficulty in exercising the right to self-determination. Woefully misled social and political movements derived from warped interpretations of the Basic Code – such as the Taliban movement in Afghanistan and Pakistan – repudiate the right of personal self-determination by coercing populations to adopt practices that suppress individual talents. Unfortunately, some regimes adopt unsophisticated policies toward women and criminal justice system. They deprive Muslim women the right to education, suggesting that female education is unlawful or un-Islamic. To be sure, those who take this position would fail to produce any foundation in Islamic law whatsoever to support their claim. Rather, the denial of education to Muslim women might be the whim of tribal leaders or the weight of a local custom, unjustifiably labeled Islamic. Ignoring individual dignity and self-determination, extreme political movements also overly emphasize superficial interpretations of Islamic criminal law, endorsing hudood punishments such as lashings, the cutting off of hands, and beheadings without applying the stiff evidential burdens mandated in the Basic Code. Such interpretations distort an otherwise complex and highly nuanced Islamic law enforced under the submission principle of the Basic Code.10 Contemporary ijtihad restores the divine right to individual self-determination. The constitutions of Muslim states recognize a series of rights critical for individual self-development. The Iranian Constitution states that “the dignity, life, property, rights, residence, and occupation of the individual are inviolate, except in cases sanctioned by law.” It further states that “the investigation of individuals’ beliefs is forbidden, and no one may be molested or taken to task for holding a certain belief.” The Egyptian Constitution declares that “individual freedom is a natural right.” While the Saudi Arabian Constitution contains no reference to the right of individual selfdetermination, it declares: “The state protects human rights in 89

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Contemporary Ijtihad accordance with the Islamic Shariah.” This provision could be read in light of the Qur’anic principle of individual self-determination: “Allah burdens no person beyond his reach. Each individual receives reward for what he earns, and suffers adversity for what he earns” (2:286). Furthermore, the Saudi Arabian Constitution lists a series of rights and duties of the state, which may be interpreted to endorse the rights of individuals. For the most part, however, the Saudi Arabian Constitution emphasizes aggregative concepts such as the family, state, society, homeland, and Arab nation, thus endorsing a conception of life anchored in aggregation and not individuation. Though aggregative conceptions of life are consistent with the Basic Code, a de-emphasis on individual rights and freedoms falls well below contemporary standards of constitutionalism. This de-emphasis of individual rights and obligations is also problematic under God’s Law and the Prophet’s Sunnah.

Territorialization of Ummah Contemporary ijtihad is taking place in the context of a changing definition of the Muslim Ummah, a classical concept under which all Muslims, regardless of their ethnic, racial, linguistic, tribal, geographical, or national identities, belong to one and the same Muslim community. The Qur’an offers the concept of the Muslim Ummah in the following verse: “O’ Our Lord! Make us Muslims [submissive] unto Thee and our progeny belonging to the Muslim Ummah [submissive community] unto Thee” (2:128). This verse underscores the solidarity of Muslims as a community submitting to the Will of God. Furthermore, the Covenant of Medina confirms the concept of one Ummah. The Covenant declares Muslims as a single entity regardless of race, sex, or any other distinctive factor. The Covenant confirms that Muslims are responsible as a unit for their actions, while non-Muslims are responsible for their individual acts. The practical implications of the Ummah solidarity must be understood within the context of the entire Qur’an, because the concept of Muslim Ummah is not built on any notion of forced homogenization of diverse ethnicities or compulsive isolation of Muslims from the rest of the world. The Muslim Ummah is diverse, aggregative, and egalitarian. In belonging to the Muslim Ummah, Muslims do not discard their national, linguistic, and ethnic identities, nor do they reject the idea of forging peaceful and productive relations with the rest of the world. The concept of Muslim Ummah is a call for celebrating in unison 90

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Islamic Positive Law the Islamic way of life, protecting the Muslim Ummah from external aggression, building institutions of mutual assistance and support, and sharing natural and human resources so that nowhere within the Muslim Ummah may social injustice or destitution remain. Though self-protective, the Muslim Ummah is part of human civilization. In prescribing the unity of Muslim Ummah, the Qur’an reminds human beings that they all were created as One People (2:213). However, human beings face difficulties in preserving the concept of One People because they are inclined to conflict and disputation (11:118). Contemporary ijtihad confronts a divided world, even though great efforts, under the auspices of the United Nations and other international institutions, are under way to establish international peace and security. Wars of aggression, contests over natural resources, ideological domination, various forms of imperialism, racism, intolerance, economic dominance, and numerous other factors continue to shatter the possibility of One People. Muslims do not take a pessimistic view that human beings are destined to exterminate each other. They strive to minimize factionalization of the human family. The Basic Code, however, cautions Muslims against holding any naive dreams of forging a grand human solidarity of One People. Human history, too, gives little hope that human communities, prone to conflicts and disputation, would act as One People and institute a fair and peaceful global system. Due to the failure of human beings to act as One People, diverse Muslim communities are urged to form the Muslim Ummah under the submission principle. Note that the Muslim Ummah is not founded on racial, cultural, linguistic, or economic determinants. Muslims are diverse in their cultures, colors, languages, geography, and historical and national experiences. The Qur’an specifically reminds Muslims that cultural and linguistic communities are not aberrations but that God has created these communities to provide bonds of familiarity among individuals (49:13). The Muslim Ummah does not unite on racial or geographical bases. It unites through adherence to the Basic Code. Muslim communities, with different political systems, constitutions, laws, and local customs forge solidarity by adopting the submission principle. The Basic Code furnishes the immutable basis for commonality by constituting the Muslim Ummah. While Muslims continue to subscribe to the Basic Code, the contemporary territorialization of Muslim communities into nationstates appears to defy the notion of solidarity. The fragmentation of the peoples of the world into nation-states is a general trend that 91

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Contemporary Ijtihad occurred in the post-colonial world. The breakdown of Western colonial empires and the concomitant movements derived from the right of self-determination spawned nation-states founded on the basis of territorial sovereignty. Muslim communities could not resist the rise of the nation-state and its role in the construction of modern international law. National anthems and national flags, the symbols of the nation-state, are proudly displayed everywhere in the Muslim world. Yet the concept of the nation-state has also heightened ethnic self-awareness, as distinct Muslim ethnic groups, such as the Kurds, instead of living with other Muslim ethnic groups, wish to establish their own separate nation-states. The nation-state has grafted discord into the very notion of the Muslim Ummah. This discord undermines the prospects of One People. For example, the discovery of natural resources within a territory provides incentives and motivation to dismiss the idea of the Muslim Ummah and cement the notion of the nation-state. The Gulf nation-states, with huge oil reserves, find little incentive to embrace the Muslim Ummah under which Muslims from Morocco to Indonesia would have legitimate claims to share the benefits of the natural resources found in the Gulf region. Tied to their respective territories, rich Muslim states speak of sovereignty not of the Muslim Ummah. They have been far less generous than Western states in supporting poor Muslim nations. The high standard of living in these states, mostly reserved for the local population, is unjustly disproportionate to that in other parts of the Muslim Ummah. This unjust disparity in the quality of living would have been indefensible under the egalitarian model of the Muslim Ummah. Contemporary ijtihad faces another challenge to the concept of the Muslim Ummah. Partly as a geopolitical reaction to historical domination of the Ottoman Empire, partly as a response to the establishment of Israel, and partly due to race-based ideology that Arab intellectuals popularized in their revolutionary socialist zeal under the leadership of Gamal Abdel Nasser, some Middle Eastern nationstates have introduced the concept of the Arab Ummah (ummaht-alArabia), thus shifting the focus from Muslim solidarity to regional commonality. Article 1 of the Egyptian Constitution declares that Egypt is part of the Arab Ummah. The Syrian Constitution is overly focused on the idea of the Arab Ummah. The Preamble of the Constitution opens with the following statement: “The Arab nation managed to perform a great role in building human civilization when it was a unified nation.” This emphasis on the Arab 92

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Islamic Positive Law nation rather than the Muslim Ummah is a striking departure from forging Muslim solidarity. Article 1 declares Syria to be the Syrian Arab Republic. Egypt, the United Arab Emirates, and Libya, all identify their respective nation-states with the Arab Ummah. The Saudi Arabia Constitution also states that the kingdom is a sovereign Arab Islamic state. Contrast this to the idea of an Islamic republic that constitutions of Pakistan, Afghanistan, Iran, and Mauritania advance. In these constitutions, the emphasis is laid on Islam as the primary identity of the nation. The Iraqi Constitution, because of its Kurdish population, states that Iraq is part of the Arab Ummah and the Muslim Ummah. There is nothing in the Basic Code that prohibits Muslim communities from taking pride in their respective histories, pre-Islamic glories, and post-Islamic heritage. Note the preamble of the Iraqi Constitution that opens with a statement of past glories: “We, the people of Mesopotamia, the homeland of the apostles and prophets . . . cradle of civilization . . . Upon our land first law made by man was passed . . .” Arab constitutions do not offend the Basic Code by developing sentiments of solidarity among various nations of the Arab region. Arab contributions toward the enhancement of the Islamic civilization have been most distinguished and a statement of pride for these contributions does not weaken the Ummah solidarity. Persians may likewise take pride in their pre-Islamic and post-Islamic culture, language, and literature. Muslim nations bring unique histories and traditions to universal Islam. If France or England were to become Muslim nations, their histories would become part of Islamic civilization. Honoring regional bonds, contemporary ijtihad revives the idea of the Muslim Ummah that establishes a common universal identity for Muslims. This common universal identity is not simply a cosmetic or comforting idea, but it establishes a universal dimension of Islam and Islamic law.

Reception of Foreign Law Islamic positive law is open to other legal traditions, for lending and borrowing substantive rules, procedures, notions of equity, and methods of dispute resolution. Reception, a comparative law concept that explains the practice of normative borrowings among legal traditions, is part of Islamic law. In constructing positive law, Muslim lawmakers may learn from other legal traditions, and may borrow analytical models, skills, policies, principles, and even specific laws. 93

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Contemporary Ijtihad Historically, Islamic law has borrowed from Jewish, Roman, and Christian legal traditions. Islamic law has also borrowed from secular legal traditions, particularly from the civil codes of France, Germany, Switzerland, and the common law of England and the United States. Islamic law has also contributed to other legal traditions, including common law. Comparative law scholars disclose intricate relations that Islamic positive law forges with secular and other religious legal traditions.11 Reception of foreign law in violation of the submission principle undermines the notion of Islamic positive law. No borrowed rules, substantive or procedural, can belong to Islamic positive law unless the borrowed rules are compatible with the Basic Code. Muslim lawmakers, jurists, and judges share the burden of compatibility verification. Lawmakers are the gatekeepers of reception of foreign law. They must assure that no foreign legislation is introduced into the Islamic legal system without a careful scrutiny of the compatibility of its contents with the Basic Code. The council of jurists, where such an advisory body exists, furnishes expert advice over the reception of foreign law. Finally, judges must be empowered to declare whether the received law, as applied, is in harmony with the Basic Code. These layers of scrutiny safeguard against unwanted contamination of Islamic positive law. Since lawmakers, state jurists, and judges are all part of the government, independent jurists and scholars must also be free to assess the reception of foreign law. Historically, the reception of foreign law in the Muslim world has been erratic, coercive, abrupt, and even revolutionary. In the nineteenth century, for example, Western colonial powers coerced Egypt to adopt Western civil codes and abandon Islamic positive law, including classical fiqh, in commercial transactions. In the early twentieth century, a secular revolution in Turkey deposed Islamic positive law, including the Majella, and adopted Western laws, including the Swiss civil code. Coerced and voluntary adoptions of Western civil codes were premised on notions of modernity, rationalization of legal norms, and a theory admired in the West, particularly in France, that law should be available in a single code for the people and experts alike. The Napoleonic Code had been the crown jewel of Western legal rationality, renaissance, and populism. Closely linked to the reception of Western civil codes was the pessimistic appraisal among Muslim ruling elites, made under the spell of Western triumphalism, that Islamic law was archaic and a barrier to social and economic development. 94

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Islamic Positive Law The jurodynamics of Islamic law, however, began to challenge the supremacy of Western civil codes. In 1948, Egypt drafted a new code under the supervision of French-educated Abd Al-Razzaq Al-Sanhuri (1895–1971). Although the 1948 Code reintroduced Islamic law into Egypt’s foreign codes, and although it spawned the enactment of copy-codes in other Arab states, it stood in blatant violation of the submission principle. Many principles of the Shariah were blended with provisions of the foreign codes. Article 1 of the 1948 Code, however, adopted a problematic hierarchy of sources that judges would use in deciding cases. Under Article 1, provisions of the code were made the supreme law of the land. The second source slated in the hierarchy was local customs. Only if these sources were found insufficient to resolve a case would the judges rely upon the principles of Shariah. This hierarchy of sources subordinated Islamic law to foreign law and local customs, subverting the submission principle under which foreign law and customs must submit to the Basic Code, and not the other way around. In 1948, however, even a subordinated reintroduction of Islamic law into foreign codes was celebrated as a triumph of Islam over Western domination. As Western domination began to recede in the Arab Middle East, Article 1 of the 1948 Code was seen as an unsustainable anomaly. The Jordanian civil code, enacted in 1977, was a richer blend of foreign and Islamic sources, with many more provisions of classical fiqh being incorporated into the code. The Jordanian code elevated the principles of the Shariah over local customs; however, the supremacy of the code over the Shariah was maintained. The United Arab Emirates civil code went a few steps further in restoring the submission principle. Article 3 of the code accepts the supremacy of the “Shariah prescriptions of an imperative nature” and “the basic principle of Islamic law.” The reluctance of some code states to fully embrace the submission principle may, in part, be due to a lack of trust in the judiciary. In the classical era, the jurist rather than the judge (qadi) has been the architect of Islamic positive law. Judges applied the laws that jurists derived from, and rationalized under, the Basic Code. Great jurists were reluctant to become judges because they viewed judges more as state officials than intellectually free interpreters of divine texts. The mystique of the Muslim jurist, deeply grounded in personal piety and learned devotion to divine texts, continues to inform the Islamic legal tradition. Against the historical weight of tradition, however, contemporary ijtihad views an independent judiciary as a founding 95

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Contemporary Ijtihad pillar of the submission principle. Accordingly, judges are trusted to declare that a rule of positive law (civil code or legislation) is contrary to the injunctions of the Basic Code. In reception of foreign law, the Sanhuri methodology of mixing and matching foreign law with Islamic fiqh, as he did in framing the 1948 Egyptian civil code, increases the contamination risk. If provisions of foreign law are interwoven closely with Islamic fiqh, it poses a difficult challenge for jurists and judges to assess the validity of interwoven rules under the submission principle. It might be even more difficult for judges to disentangle good parts from contaminated parts of the blended provisions. On the other hand, however, if foreign law is borrowed, as is, without any juristic effort to blend it with well-established rules of Islamic law, the foreignness of foreign law, like a sore thumb, would continue to undermine its legitimacy. While borrowing foreign law, therefore, lawmakers and jurists bear a special burden to minimize the contamination risk as well as to carefully assess practical effects of blended law under the submission principle before the law is adopted. Some forms of foreign law may be so unique that lawmakers and opiniojurists may not know how to assess their compatibility with the Basic Code. For example, the concept of a corporation as a person that exists in law separate from its shareholders and survives the death of the shareholder may be rationalized as a blend of two Islamic concepts, partnership and waqf (trust), that classical fiqh perfected centuries ago. As a rule, a partnership under classical fiqh was dissolved upon the death of a partner unless the deceased partner’s heirs recommitted themselves to the business under the original or a revised partnership agreement. However, the Islamic law of inheritance, prescribed in the Qur’an, distributes a decedent’s estate among members of his extended family, including the surviving mother and father, and among children from multiple marriages and their mothers. Therefore, the likelihood is small that the deceased partner’s numerous lawful heirs would agree to continue the partnership without forcing the division of inheritance. Most partnerships, therefore, would dissolve upon the death of a partner, so disrupting business. In contrast to partnership, the concept of waqf provides a legal medium for a person to place assets in a waqf that would survive the person’s death. The waqf is not subject to the law of inheritance, and its beneficiaries could include the grantor himself, the trustee, members of his family, indeed anyone designated by the grantor. The 96

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Islamic Positive Law waqf could be inter-generational. The waqf property could be leased for producing income, thus, by analogy, for lawful investments and generation of profits. While private waqfs were created for preserving assets for the family, public waqfs were instituted for charitable purposes. Thus, the concept of waqf offered a legal medium through which assets could be preserved as an indivisible aggregate, a concept functionally opposite to the concept of distributive inheritance. Retrospectively, the concept of corporation was deducible from joining the elements of partnership and waqf. Muslim jurists, however, could not create the concept of corporation as a legal entity for profit, which survives its shareholders. The concept of corporation, despite the many abuses to which it has been subjected, has been a beneficial development in human inventions. It joins resources and talents for the production of goods and services, and its owners can change without disrupting the business or the future of the company. Of course, corporations can go bankrupt or simply close down because the goods and services they produce are no longer needed. Yet, the idea of corporation and its survivability in law launched a formidable phase of capitalism and production of wealth.

Ninety-nine Maxims of Fiqh While the Basic Code is immutable, fiqh is subject to change. With respect to classical fiqh, therefore, contemporary ijtihad frees each generation of jurists to reassess past legal opinions for their current relevance. No legal tradition throws away an entire body of precedents that the previous generations accumulated through diligent analysis. The concept of strict precedent preserves the legal system against chaotic and impulsive changes, because the concept compels subsequent generations of jurists to adhere to prior rules in similar cases. Strict precedents, however, must not be confused with immutable precedents. Contemporary ijtihad respects fiqh precedents, but it does not consider them to be immutable. Legal professionals may challenge prior precedents, even if they have been delivered by eminent scholars and leaders of classical schools of jurisprudence. Likewise, state legislatures may enact statutes and judges may decide cases that do not comply with prior fiqh precedents. In overruling fiqh precedents, however, lawmakers and judges are obliged under the submission principle to demonstrate that the new rule that modifies a prior rule of classical fiqh is compatible with the Basic Code. The legal maxims of classical fiqh are timeless. Derived from 97

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Contemporary Ijtihad the Basic Code under the submission principle and tested through practical applications, the ninety-nine legal maxims of fiqh were succinctly drafted and incorporated in the Ottoman civil code, called the Mejelle, drafted in the late nineteenth century not longer before the collapse of the Ottoman Empire.12 Note, however, that the Mejelle did not invent these maxims; in fact, no single jurist did. These legal maxims were articulated and refined over centuries through the combined efforts of Muslim jurists in all parts of the world. Some nations, including Jordan, Iraq, and the United Arab Emirates, have officially incorporated these maxims into their modern civil codes. Contemporary scholars are employing these maxims in their analytical and normative works. The legal maxims of fiqh must be integral part of Islamic positive law in Muslim states regardless of culture, language, stage of economic development, or constitutional infrastructure. The ninety-nine legal maxims of fiqh are part of Islamic positive law; they are not divine and must not be confused with the divine injunctions of the Basic Code. However, the maxims are the principles of legal wisdom, the master ideas of Islamic law, which may be used to decide cases, structure legal arguments, interpret texts, design modern legislation, weigh new customs, and measure the norms of international law. Even if a Muslim state does not officially adopt them, the legal maxims may be used to educate law students, train lawyers, inform judicial decisions, and defend juristic opinions. A comprehensive discussion of the ninety-nine legal maxims is beyond the scope of this chapter. However, a few legal maxims are examined to demonstrate their actual and potential benefits for the understanding and development of Islamic law. Consider the legal maxim: When the giving of the original thing has not been possible, its price is given. In contemporary contexts, this legal maxim combines the remedy of specific performance of a contract and compensatory damages. Contrast this legal maxim to the doctrine of specific performance under the common law tradition. Common law gave monetary damages for the non-performance of a contract and for decades did not recognize specific performance. The court of equity, however, developed the remedy of specific performance in unique cases of non-performance. The legal maxim of fiqh, however, views specific performance as the normal remedy for the performance of contracts and allows monetary damages as a remedy only if specific performance (the giving of the original thing) has not been possible. Most importantly, the legal maxim offers practical solutions to 98

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Islamic Positive Law enforce the injunction of the Qur’an, which mandates the performance of contracts. By affording alternative remedies, the legal maxim creates decisional space for judges to determine whether for a breach of contract, monetary damages, and not specific performance, would be a more appropriate remedy. Consider another legal maxim that goes to the heart of good faith interpretations of texts. The maxim reads as follows: No weight is given to arguments where there is a clear statement opposed to them. There is a juristic tendency to interpret texts to extract interpretive results contrary to the plain meaning of a clear statement. Jurists may subvert a clear statement because they disapprove of its plain meaning outcome. In order to justify interpretive subversion, jurists may offer complex arguments against giving effect to the plain meaning. Some of the arguments might indeed be appealing, depending on the jurist’s knowledge and interpretive skills. This maxim is related to an injunction of the Qur’an, which prohibits mischievous interpretations of allegorical verses of the Qur’an and instructs Muslims to focus on verses with clear meaning (3:7). The legal maxim is also compatible with the Prophet’s Sunnah, which prohibits advocacy for obtaining unjust and undeserved benefits. Interpretive distortions of clear statements are most common among advocates and judges who use legal texts as instruments for promoting their respective ideologies. Ideological interpretations have little respect for the meaning of clear statements. Distortions of clear statements are acceptable in a legal culture where advocacy is highly prized. Such distortions of clear statements raise little alarm in an adversarial system under which opposing parties present their slanted versions of law and leave it to the court to decide upon the acceptable interpretation. Islamic positive law, while it allows advocacy and conflicting interpretations of legal texts, does not promote a culture of interpretive gaming in which advocates are free to present arguments contrary to the meaning of a clear statement. More importantly, Islamic positive law does not presume that legal texts are inherently meaningless and derive meaning only from readers. It also does not accept any semiotic theory under which the meaning of a text lies somewhere between the text and reader. Rather, Islamic law presumes that legal texts can carry objective, independent, and clear meaning. In enforcing the supremacy of the Basic Code, contemporary ijtihad proposes the expansion of legal methods that legal professionals may employ to understand applications of the Basic Code. 99

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Contemporary Ijtihad The traditional methods of interpretation, particularly analogy and consensus, cannot be abandoned. However, there is little justification for discouraging new legal methods for interpreting the Basic Code. The broad acceptance of the compatibility doctrine indicates that Muslim states are prepared to review legislation on the basis of methods other than traditional legal methods. The purpose compatibility, as noted above, is a useful legal method that courts may use to assess the Islamic compatibility of legislation, regulations, international law, and case law. Likewise, if local customs and usages are not offensive to purposes of the Basic Code, jurists may declare such customs and practices to be part of Islamic law. Other legal methods, including necessity and compulsion, may be employed to endorse new rules most appropriate for unusual circumstances. Contemporary ijtihad is not confined to classical methods of fiqh for the interpretation of divine texts. It allows a set of legal methods to interpret positive sources of law, including constitutions, statutes, treaties, juristic opinions, and prior case holdings. New legal methods may also be used to understand divine texts. As discussed in prior chapters, classical schools of fiqh employed various legal methods, such as qiyas, analogy, and ijmah, to interpret and systematize rules of Islamic law derived from interpretations of the Basic Code. Analogy is a universal legal method employed in almost all religious and secular legal traditions to extend the meaning of a legal provision. In the Qur’an, God too uses analogies and parables to instruct human beings (57:20). Qiyas and ijmah served distinct and opposite interpretive purposes. Whereas qiyas empowered jurists to tap into their personal imagination and understanding of the Basic Code to deduce rules from divine texts, the institution of ijmah restrained juristic speculation once a consensus rule has been established. The institution of ijmah served as a unifying tool that elevated certain juristic opinions to firm rules of Islamic law. If jurists agreed upon a rule through consensus, the consensus rule gathered immense following. Consensus rules may have been considered divine because noted and pious jurists, with unimpeachable personal character and a larger following among Muslims, though free to disagree with each other, came to a consensus that the consensus rule was a superior, and sometimes exclusive, interpretation of the Basic Code. The spiritual and intellectual weight of the consensus rule was so overwhelming that any alternative rule challenging the consensus rule was considered deviant, even blasphemous. Ijmah as a legal method of establishing rules of Islamic positive law is neither outdated nor 100

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Islamic Positive Law fruitless. It may, however, operate differently in contemporary contexts. And if used with deliberation, the modern version of ijmah will establish new consensus rules for the Muslim Ummah. Consider the opinions of the supreme court of a Muslim state, say, Pakistan. If the Pakistan Supreme Court renders a unanimous opinion with no dissent, the opinion will be firmly established in Pakistan. If a similar opinion is also rendered, adopted, or approved in other Muslim states, the unanimous opinion originating in one Muslim state begins to turn into a consensus opinion in the Muslim Ummah. If free and independent courts are established in all Muslim states, and if high courts are permitted to consider and adopt the opinions of sister courts in other Muslim states, a new jurisprudence of ijmah would come into being. However, linguistic and logistical barriers will need to be removed for the establishment of judicial ijmah in the Muslim world. Once these barriers are removed through translations of, and access to, judicial opinions delivered in Muslim nations, the institution of judicial ijmah can take root.

Rise of Legislation Related to the concept of the nation-state is the source of legislation, a source that proliferated in the twentieth century. For centuries, both inside and the outside the Muslim world, legislation as a source of law was nearly non-existent. In England, for example, even though Parliament had been in place for many centuries, common law rather than legislation occupied the domain of law. In 1776, on eve of the American Revolution, William Blackstone declared that common law had been perfected.13 This impetuous claim was no different from the claim of Muslim opiniojurists who declared several centuries earlier that Islamic fiqh had been completed. Both claims, however, were challenged in the nineteenth century as the world experienced unprecedented social and economic changes. If the nineteenth century was the age of civil codes, the twentieth century unleashed the barrage of legislation. The legislation revolution gained even more momentum in the post-colonial era when hundreds of new nation-states, scores of which were Muslim, surfaced on the global scene, and Imperial codes and laws yielded to national legislation. The rise of legislation also catered to momentous adjustments in the means of production, aggregation of new wealth, and the establishment of new job markets that transformed the pastoral and agricultural economies of traditional communities. The forces 101

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Contemporary Ijtihad driving the nation-state were increasingly much more multifaceted than Jeremy Bentham’s utilitarian model under which the legislation is made to avoid social pain and aggregate social pleasure.14 In the Muslim world, the forces of modernity made it inevitable that governments would regulate new features of development and mobility unknown to classical jurists. For example, classical fiqh offers no traffic laws to regulate hundreds of thousands of automobiles occupying city streets and thousands of aircrafts occupying the airspace. Likewise, new laws are needed to regulate child labor, employment discrimination, natural resources, trademarks, patents, copyrights, and numerous other fields that contemporary life has introduced in Muslim states across the continents. While conservative Islamic forces have been skeptical of modernity, sometimes for good reasons, recommending caution and prudence, most Muslim governments and peoples shun notions of isolation and inertia, notions that impede development and keeping pace with the rest of the world. Islamic civilization is part of the human civilization. As a matter of principle, therefore, Muslims vigorously participate in the evolution of life on earth, though never compromising the submission principle. Orderly and fruitful participation in the modern world requires extensive and continuous legislation. The classical model of deducing laws from the Basic Code is too time consuming and uncertain. Legislation in the form of royal decrees, military ordinances, or parliamentary statutes, though not a perfect method of lawmaking, has served well the needs of modern developments. Even the Napoleonic romanticism of designing a comprehensive civil code to answer all legal questions has been a failure since forces of change constantly demand new laws and frequent amendments to existing laws. Since no piece of legislation can be Islamic unless it is compatible with the Basic Code, a series of question must be answered. Should lawmakers, that is, members of the legislature in a Muslim state, be qualified jurists? And if they all are not qualified jurists, must they at least be practicing Muslims because it would be a great anomaly that non-practicing Muslims were exercising legislative authority to make laws for a Muslim nation. Similarly, a question arises as to whether non-Muslims ought to be allowed to be members of the legislature. Legislation under the submission principle is problematic if non-Muslim members of the legislature are allowed to vote on legislation. On the other hand, the legislature, particularly in a democratic system, would fail to represent all the peoples of the state 102

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Islamic Positive Law if non-Muslim communities residing in the state are excluded from the legislature. Confronting these questions, the Constitution of Pakistan offers a pathway. It prescribes a set of eligibility qualifications for acquiring membership in either house of the national bicameral legislature. No person is qualified to be elected or chosen as a member of the legislature unless, among other things: he is of good character and is not commonly known as one who violates Islamic Injunctions; he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins; [and] he is sagacious, righteous and non-profligate and honest and amen.

The word “he” is not meant to exclude women. These qualifications demonstrate that the Pakistani Constitution attaches significance to the fact that lawmakers ought to be practicing Muslims with adequate knowledge of Islamic teachings. Under classical fiqh, however, a sophisticated knowledge of Islam is required for jurists to issue legal opinions. Religious qualifications do not apply to non-Muslims elected or chosen as members of the legislature. However, even non-Muslims, according to the Constitution, must have “good moral reputation.” Although non-Muslims may contest general elections for seats in the legislature, ten seats are reserved exclusively for non-Muslims in the National Assembly, the elected chamber of the bicameral legislature. Non-Muslims may be appointed to the Senate, the permanent chamber of the legislature, which cannot be dissolved though its membership is renewed on a rotational basis. The Constitution does not allocate a quota of seats for non-Muslims in the Senate. In both houses, non-Muslim members are free to vote on an equal basis with Muslim members on any piece of legislation. A democratic legislature, such as in Pakistan, requiring weak Islamic credentials for lawmakers does not fully assure that the laws passed would comply with the submission principle. The Pakistani Constitution provides two additional filters to test the Islamic character of the legislation. First, the legislation may be submitted to the Council of Islamic Ideology, a constitutional body established to review legislation under the submission principle. Not every piece of legislation has to pass through the Council. The President or twofifths (less than a simple majority) membership of a house of national legislature may require that a piece of legislation be reviewed for 103

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Contemporary Ijtihad its repugnancy to the Basic Code. (Provincial laws are similarly reviewed.) Second, the courts are empowered to strike down laws that do not comport with the Qur’an and the Prophet’s Sunnah. In the presence of these filters, the Pakistani Constitution fortifies democratic legislation from un-Islamic, and possibly non-Islamic, elements.

Local Customs As noted elsewhere, local customs have been part of Islamic positive law. When a new community embraces Islam, Islam allows the community to retain its legal customs, as did the Arabs of Mecca and Medina, provided they are compatible with the Basic Code. The submission principle applies to all local customs of all Muslim communities, old and new. A Muslim community is under no obligation to accept the customs of another Muslim community. Muslim communities, however, are free to adopt the customs of fellow Muslim communities. For example, many Muslims, out of profound affection for the Prophet, may choose to adopt the customs of Mecca and Medina, the two cities where the Qur’an was revealed, but voluntary adoption of customs of another community should not be confused with obligatory adoption. Muslims living anywhere in the world, in Muslim and nonMuslim nations, are obligated not to follow local customs contrary to injunctions of the Basic Code. Islam is a religion that both respects and modifies local customs. The Qur’an and the Sunnah repudiated numerous local customs of pre-Islamic Arabia. Consider, for example, the pre-Islamic local customs regarding marriage and sexuality. Offering a simple principle that marriage is a contract based on consent, the Basic Code outlawed forced marriages, including marriage by capture and marriage by purchase. Furthermore, Islam fortified the principle of consent with notions of personal dignity. Islam prohibited the local custom under which a man could ask his wife to contract a temporary second marriage with a famous man (nikah istebza) and reside with the second husband to conceive a child. Islam also prohibited the local custom of group marriage (nikah al-jamah), whereby a woman would be married to a group of men. Islam outlawed the local custom of flag marriage (nikah al baghaya), a form of prostitution under which a woman would fix a flag to the door of the tent and allow an unlimited number of visitors.15 104

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Islamic Positive Law

Case Holdings Case holdings are part of Islamic positive law. Three distinct developments have made case holdings the most important contemporary source of Islamic positive law. First, the establishment of national high courts has brought new prestige to judicial opinions. Almost all Muslim states have established supreme courts empowered to decide matters of immense constitutional importance to the nation. Second, the logistical facility of reporting cases in authenticated records makes it easier for legal professionals to consult prior cases and argue the appropriate prior holdings in cases before the courts. In the era of Muslim empires, the recording of judicial opinions in a systematic manner was nearly non-existent. The age of the Internet might further reduce the cost of reporting judicial opinions and improve accessibility. Third, a jurisprudential method has been established that like cases must be judged alike. If the facts of a present case are similar to those of a prior case, fairness and judicial consistency demand that the prior holding be applied to the present case. A prior holding, however, may not be applied to a present case if the prior holding is no longer just or equitable. In overruling a prior holding, the court must defend its decision. More importantly, the new holding must satisfy the submission principle. The doctrine of overruling prior precedents is compatible with the submission principle because a legal problem may have more than one solution consistent with the Basic Code. Classical fiqh makes it abundantly clear that well-meaning jurists may interpret the Basic Code to find multiple solutions to a legal problem, though, all consistent with the letter and spirit of divine texts. Among permissible legal solutions, the court must choose an interpretation or a rule of positive law most suitable to the fairness and equity of a case. A permissible legal solution under specified socioeconomic conditions, however, may not work under another set of socioeconomic circumstances. Sensitive to changing socioeconomic contexts, a court must have the judicial power to pronounce a new permissible legal solution, thus overruling the prior holding. In some Muslim states, superior courts are actively engaged in reviewing legislation under the submission principle. In Pakistan, in 1999 the Shariah Appellate Bench of the Supreme Court rendered a historic verdict to ban all forms of interest practiced in modern financing.16 Interest-based transactions, stated the Court, are unconstitutional because the Pakistani Constitution submits to the Basic 105

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Contemporary Ijtihad Code, under which riba is prohibited.17 In his separate opinion, Justice Taqi Usmani, a Muslim jurist and a justice of the Court, detailed the provisions of the Qur’an and the Sunnah to declare that “any additional amount over the principal in a contract of loan or debt is the riba” that the Qur’an has prohibited. It does not matter whether the amount paid over the principal is small or large. Justice Usmani also examined and outlawed the riba involved in barter and money transactions. The Court rejected the doctrine of necessity under which unlawful things prohibited under the Basic Code are declared permissible. Recognizing that the government needed time for transitioning out of the interest-based financial system, Justice Usmani stated that “the transactions of interest cannot be allowed to continue forever on the basis of necessity.” A number of serious bankers, financial experts, and academics appeared before the Court to argue that Islamic methods of financing are not only feasible but are more beneficial to bring about a balanced and stable economy.

Islamic International Law Contemporary ijtihad also recognizes the resurgence of Islamic international law, classically known as siyar. The Basic Code allows Muslims to enter into peace and cooperation treaties with nonMuslims. In the past few decades, international law has dramatically expanded in myriad fields ranging from commercial transactions to human rights. Muslim states actively participate in the formation of regional and global treaties as well as in the formation and preservation of customary international law. Given global enmeshment, international law is critical to the functioning of Muslim states. No Muslim state can prosper in isolation. However, international law needs Muslim states as much as Muslim states need international law. For example, no global normative consensus (jus cogens) can be reached without the consent of fifty-seven Muslim states.18 Universal values cannot bypass Islamic law. Most Muslim states, particularly fusion states that subscribe to the submission principle, use the compatibility doctrine to harmonize international treaties with the rest of Islamic law. Muslim states use the tools of reservations, understandings, and declarations to preserve the supremacy of the Basic Code. Any treaty provision incompatible with the Basic Code is reserved. Almost all states use reservations, understandings, and declarations to protect domestic fundamental values. The United States, for example, uses these tools 106

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Islamic Positive Law to protect the supremacy of its Constitution. No treaty provision contrary to the US Constitution is valid and enforceable. Likewise, Muslim states preserve the supremacy of the Basic Code by making reservations to objectionable parts of the treaty. Most Islam-based reservations are made to human rights treaties, particularly to treaty portions dealing with family law. The most popular reservation to treaties is couched in the language of compatibility. Saudi Arabia’s reservation to the Convention on the Elimination of All Forms of Discrimination against Women reads as follows: “In case of contradiction between any term of the Convention and norms of Islamic law, the kingdom of Saudi Arabia is not under obligation to observe the contradictory terms of the Convention.” Some Muslim states make reservations to uphold the supremacy of the Shariah. It is unclear whether such reserving states take a minimalist view of the Shariah confined to the Basic Code or a maximalist view of the Shariah, which includes classical fiqh. Contemporary ijtihad proposes that Muslim states make reservations to preserve the Basic Code, and not classical fiqh or other man-made parts of Islamic law. Another remarkable development in Islamic international law is the emergence of what may be called the Ummah international law, which regulates foreign affairs between and among Muslim states. Under classical jurisprudence, all Muslim communities constituted a single dar al-Islam, that is, the domain of Islam. International law was the law that regulated foreign affairs between dar al-Islam and the non-Muslim world. With the nation-state as the primary unit of the international legal system, dar al-Islam itself has been divided into nation-states and no longer acts as a single entity. Now international law is employed to conduct international relationships between and among Muslim states. Each Muslim state separately defends its territorial integrity and political independence. Muslim states enter into bilateral and multilateral treaties with each other. They treat each other’s citizens as deportable aliens. Some Muslim states do not view each other favorably. Some Muslim states attack other Muslim states. Some Muslim states conspire with non-Muslim states to inflict harm on other Muslim states. Some Muslim states make alliances with non-Muslim states to invade other Muslim states. Part of this discord sprouts from the pathology of undemocratic regimes, installed mostly in the Middle East, where irremovable leaders, many enjoying de facto life tenure in power, do not personally get along with each other, translating personal enmity into foreign policy. 107

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Contemporary Ijtihad The foreign policies of some contemporary Muslim states are incompatible with the Basic Code. Muslim states may cooperate with non-Muslim states as long as such cooperation does not constitute an unjust act of aggression against another Muslim state. The Qur’an maintains: Allah does not forbid you to deal justly and kindly with those who fought not against you on account of religion and did not drive you out of your homes. Verily, Allah loves those who deal with equity. It is only as regards those who fought against you on account of religion, and have driven you out of your homes, and helped to drive you out, that Allah forbids you to befriend them. And whosoever will befriend them, then such are the wrongdoers. (60:8–9)

By the same token, the majority of contemporary Muslim states have failed to suppress terrorist groups and regimes that perpetrate international crimes and inflict harm on the innocent. The Prophet said, “Help your brother, oppressing or oppressed.” A man said, “Messenger of Allah, I will help him if he is oppressed. How can I help him if he is oppressing others.” The Prophet answered, “By restraining him from wrongdoing. That is helping him.”19 In forging overt and covert alliances with aggressive non-Muslim states and violent non-state actors, Muslim states have thus far failed to fulfill their Islamic obligations. The straightforward application of the Basic Code mandates that Muslim states compose a sophisticated shared foreign policy against oppression of both kinds that the Prophet identified. Despite discord and confusion, some effort is underway to bring Muslim states into an effective international institutional framework. Following the model of the European Union and other regional and global international bodies, Muslim states have begun to pool their sovereignties to pursue common economic and international goals. Regional and global intergovernmental organizations are in the making to forge concerted action. While unelected governments remain in power and while the legacy of mutual mistrust continues, any successful international cooperation among Muslim states is unlikely to be vigorous or sustainable. The Organization of Islamic Conference (OIC) is the most visible intergovernmental organization that brings together Muslim states of the world. Currently, the OIC comprises fifty-seven states, including the “state of Palestine.” The membership of the OIC is open to any state having a Muslim majority. The OIC Charter, much like 108

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Islamic Positive Law the United Nations Charter, protects national sovereignty, independence, and the territorial integrity of Member States.20 However, the OIC Charter is not a secular treaty among Muslim nation-states. The Charter is imbued with references to Islam. It opens with the opening verse of the Qur’an – “In the name of Allah, the most Compassionate, the most Merciful” – and states the commitment of Member States to “work for revitalizing Islam’s pioneering role in the world while ensuring sustainable development, progress, and prosperity for the peoples of Member States.” The Charter preserves, promotes, and fosters the Islamic values of “peace, compassion, tolerance, equality, justice, human dignity, moderation, and respect for diversity.” Achieving “intellectual excellence” through the acquisition and popularization of knowledge is also indicated as an Islamic value. The Charter vows to preserve “Islamic symbols and common heritage and to defend the universality of Islam,” and “to protect and defend the true image of Islam, to combat defamation of Islam and encourage dialogue among civilizations and religions.” In pursuing the listed objectives of the Charter, Member States undertake to be guided by “the noble Islamic values of unity and fraternity.” The OIC Charter, while recognizing the national sovereignty and territorial integrity of Member States, mentions several concepts representing aggregations of peoples, such as Ummah, Islamic Ummah, the peoples of Member States, and the Muslim Peoples. These Charter phrases are not synonymous and require a careful analysis to understand the OIC’s classifications of group aggregations and concomitant commitments. The OIC Charter uses the term Ummah five times in various contexts. Although the phrase “Islamic Ummah” is also used in the context of the peaceful resolution of disputes between Member States, the Charter seems to make no distinction between Ummah and Islamic Ummah, and the two terms can be read synonymously. It is unclear, though, why the founders of the Charter preferred the phrase Islamic Ummah over Muslim Ummah. The phrase Islamic Ummah is of new vintage since the Qur’an uses the phrase Muslim Ummah (2:128). Numerous OIC documents also use the more common phrase, Muslim Ummah. One may safely conclude that Ummah, Islamic Ummah, and Muslim Ummah each refer to all Muslims of the world, regardless of where they are located. In popular vocabulary, the word Ummah, which has become a universal word in almost all world languages, means solidarity, unity, and fraternity among Muslims. 109

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Contemporary Ijtihad The Ummah does not appear in the preambular text of the OIC Charter, and no listed objective in Article 1 of the Charter refers to the Ummah. Both the preamble and objectives are dedicated primarily to interests of Member States and values of Islam. Mentioning the Ummah in the preambular introduction to the Charter and listing the welfare of Ummah as a major objective would have sharpened focus on the concept of unity of Muslims regardless of the confines of the nation-state. Despite this omission, however, the OIC Charter expresses more than a perfunctory interest in the well-being of Ummah. The Charter empowers the Islamic Summit, the supreme policy-making authority, composed of kings and heads of state and government, to consider “issues of concern” to the Ummah. The Islamic Summit holds extraordinary sessions whenever the interests of Ummah warrant it. Such sessions “consider matters of vital importance to the Ummah” and the Islamic Summit would prepare a response plan to direct resources of the OIC. In the Third Extraordinary Session of the Islamic Summit, held in Mecca in 2005, several commitments were made to the Muslim Ummah. The commitments contained in the Ten-Year Action Plan are expressed in too broad terms, they are overly ambitious, and they appear to be more rhetorical than practical. Commitments refer to the “renaissance” of the Muslim Ummah, to the development of visions and concepts for “optimal solutions” to the challenges facing the Ummah in all fields, and to the achievement of a “more prosperous and dignified future for the Ummah.” Commitments also refer to combating terrorism and Islamophobia. In the last five years, no concrete actions seem to have been taken to translate these commitments into tangible benefits for the Muslim Ummah. In addition to Ummah, the other aggregative phrases used in the OIC Charter signify the tenor of contemporary ijtihad. In the preamble of the Charter, the signatory states make a commitment to work for “sustainable development, progress, and prosperity for the peoples of Member States.” This commitment to the peoples is not confined to advancing only the welfare of Muslim communities located in Member States. “The peoples of Member States” include Muslims and non-Muslims living in Member States. (This phrase would not include Muslims living outside the fifty-seven Member States.) The Charter, therefore, is in compliance with the Basic Code that obligates Muslim states to protect the safety, property, human dignity, and social welfare of both Muslims and nonMuslims living under the protection of Islamic law. The Charter 110

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Islamic Positive Law commitment to ensure prosperity of the peoples rather than of Muslims only is a non-derogable legal obligation under the Basic Code. The Charter phrase “Muslim peoples” (al-shuaaoob al-Muslimah) refers to distinct national and ethnic groups in Member States. In the national sense, Egyptians, Indonesians, and Iranians, for example, are distinct peoples. In the ethnic sense, Pashtuns, Punjabis, Sindhis, and Balochis, though they all are Pakistanis and belong to the same national group, are nonetheless distinct ethnic peoples. The phrase Muslim peoples, therefore, includes both national and ethnic groups residing within the territories of Member States. This classification is also consistent with the Basic Code. The Qur’an specifically and approvingly mentions “national and tribal peoples” (49:13) to endorse natural sentiments of mutual familiarity that exist among such groups. However, sentiments of nationality and ethnicity can also be divisive forces between national and ethnic groups. Muslim states, jointly and severally, are under a legal obligation to ensure that national and ethnic groups live in harmony. Recognizing this obligation, the OIC Charter binds Member States “to enhance and strengthen the bond of unity and solidarity among the Muslim peoples and Member States.”

Notes 1. A similar distinction between positive law and natural law has informed the secular legal tradition. See Julius Stone, Human Law and Human Justice (Stanford, CA: Stanford University Press, 1965). 2. For a debate between positive and religious law in Christianity, see Richard Hooker and Richard William Church (eds), Of the Laws of Ecclesiastical Body (Oxford: Clarendon Press, 1888). 3. The United States Federal Rules of Evidence, rule 702. 4. Muhammad Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: The Islamic Text Society, 1989). 5. Hans Kelsen, Pure Theory of Law (Berkeley, CA: University of California Press, 1978), p. 8. 6. L. Ali Khan, A Theory of Universal Democracy (London: Kluwer Law International, 2003). 7. Abu Hamid Al-Ghazali, Al-Mustasfa fi Ilm al-Usul (Chicago, IL: University of Chicago Press, 1938 [1109]). 8. Ahmad Al-Raysuni, Imam al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law (Henden, VA: International Institute of Islamic Thought, 2005). 111

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Contemporary Ijtihad 9. L. Ali Khan, The Extinction of Nation-States (London: Kluwer Law International, 1996). 10. Hisham M. Ramadan, “On Islamic Punishments,” in Hisham Ramadan (ed.), Understanding Islamic Law (Lanham, MD: AltaMira Press, 2006), pp. 43–64. 11. John A. Makdisi, “The Islamic Origins of Common Law,” North Carolina Law Review 77 (1999), 1693. 12. Majallah al-Ahkam al-Adliya, trans. C. R. Tyser, D. G. Demetriades, and Islmail Haqqi Effendi, The Mejelle (Kuala Lumpur: The Other Press, 2001), pp. 3–15. 13. Sir William Blackstone, Commentaries on the Laws of England (Philadelphia, PA: Geo T. Bisel, 1922). 14. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Oxford: Clarendon Press, 1907 [1780, 1823]). 15. Nisrine Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations (London: British Institute of International and Comparative Law, 2008), p. 8. 16. Dr. M. Islam Khaki & Others v. Syed Muhammad Hashim & Others, PLD 2000 SC 225. 17. Khali v. Hashim. The Court declared several laws, including the 1839 Interest Act and various provincial Money Lenders Ordinances, as being repugnant to the injunctions of Islam. 18. For a comprehensive analysis of jus cogens, see Joseph Damien Mattera, Jus Cogens (Washington, DC: George Washington University Press, 2005). The book, however, omits to discuss the role of Muslim nations in the construction of universal values. 19. Sahih Bukhari, bk. 85, hadith 84. 20. Charter of the Organization of Islamic Conference, originally drafted in 1974, was amended in March 2008. The discussion in this chapter refers to the amended Charter.

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4

Islamic Constitutionalism

Islamic constitutionalism is an integral part of contemporary ijtihad. As its defining attribute, an Islamic constitution submits to supremacy of the Basic Code, the Qur’an and the Prophet’s Sunnah. Historically, constitutionalism has not been critical to the advancement of Islamic law. For centuries, Islamic law has developed without any notion of constitutionalism. The classical fiqh markets knew no constitution, nor was their vibrancy dependent on one. The history of law in all legal traditions demonstrates that a viable body of law may come into existence without a written constitution, it may continue to develop without a written constitution, and it may or may not adopt a written constitution as the supreme source of law. Legal systems without written constitutions, however, may gradually develop constitutional conventions that provide political and normative stability. Since 1789, the successful tenure of the US Constitution demonstrates that a written constitution can guide a more reliable evolution of a legal system.1 Islamic constitutionalism discussed below is not confined to the rule of law or some other broad underlayment of the government, such as the consultation principle. Nor is it confined to lawful restrictions on the scope of the ruler’s authority. These generic concepts are significant elements of modern constitutionalism, and have been parts of almost all Muslim governments since the dawn of Islam. Rule arbitrariness or power absolutism is inherently unlawful under the Basic Code. The concept of Islamic constitutionalism refers to modern constitutions in Muslim nations, written texts that contain succession rules, federation structures, the supremacy clause, fundamental rights, and economic ideology, such as socialism or free markets. One reason why the idea of the written constitution has been immaterial to the development of Islamic law is the ever presence of the Basic Code. During the centuries, the Basic Code has served Muslim empires and communities as the written constitution. The modern constitution provides two essential frameworks: the political 113

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Contemporary Ijtihad and the normative. The political framework institutes power structures to identify rulers, succession rules, and constraints on authority of the rulers. The normative framework establishes the rule of law, procedures to make and unmake laws, hierarchy among various bodies of law, and rights and obligations of the people. For a variety of reasons, the political framework of the constitution in most systems suffers from instability and, occasionally, violent change. Despite political upheavals, however, laws can continue to function smoothly if the normative framework of the constitution is durable, just, and well anchored in fundamental values of the people. Unlike modern constitutions of Muslim states, the Basic Code does not provide a political framework, nor does it furnish succession rules to transfer power from one government to the next. The Basic Code does demand, however, that the rulers be just, fearful of God, and make decisions after genuine consultation, thus repudiating willful and arbitrary decision-making. After the Prophet’s death, a caliphate was established but succession rules were unclear. Due to political rivalries and tribal loyalties, three of the first four caliphs were murdered, and civil wars broke out between political factions vying for power. This political instability, however, did not affect the normative framework of the Basic Code. While the caliphate underwent severe political turmoil, Muslim jurists in various parts of an expanding Muslim empire were devoted to developing interpretations of the Basic Code to construct and refine a body of law (fiqh) that would guide Muslim communities for centuries to come. A commitment to disregard political changes and preserve the law is an essential part of even modern constitutionalism. For example, lawyers, judges, and other legal professionals must enforce the US Constitution whether a Republican or a Democrat occupies the White House. In fact, the whole idea of enforcing a constitution separates the normative framework of the constitution from changes in political leadership. While power changes hands from one political party to another, sometimes with radical political agendas, the normative framework of a well-established constitution remains firm. In midst of political uncertainty, the Basic Code is even firmer than a constitution because no ruler, revolution, or electorate has been empowered to make amendments to the Basic Code. By contrast, even written constitutions, designed for political and normative durability, may be discarded and replaced. Islamic constitutionalism in the modern sense began in the nineteenth-century Ottoman Empire. The Ottoman Constitution of 1876 114

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Islamic Constitutionalism provides a spectacular example of a constitution as a positive source of Islamic law. Under the combined pressure of domestic unrest and the dominance of European colonial powers, this Constitution was established to infuse rudimentary elements of democracy in a dying empire that the Ottoman sultans had ruled for nearly four centuries. The Constitution established a bicameral legislature for which the lower house was to be elected in periodic general elections by secret ballot. The sultan, also called the Supreme Caliph, belonged to the house of Osman, and he continued to claim a blend of worldly and divine authority. The person of the sultan was sacred and his name was mentioned in the mosques after daily prayers. The caliph was the protector of the Muslim religion. As the sole sovereign, he enjoyed the prerogative to carry out the laws of the Shariah. Although Islam was declared to be the state religion, the courts were bifurcated into Shariah courts and civil tribunals with separate subject-matter jurisdictions. The 1876 Constitution failed to protect the empire, the caliphate, or the sultanate. The founder of the Constitution, Midhat Pasha, was exiled and later murdered.2 The Constitution was eventually abandoned in favor of another constitution that would establish a secular Turkish state. While the 1876 Ottoman Constitution faltered, a new wave of constitutionalism rose to prominence in the twentieth century after a number of Muslim nations obtained independence from Western colonialism. Cognizant with the trend of written constitutionalism throughout the world, almost all Muslim nations of diverse cultures, political persuasions, historical experience, and ethnic compositions have accepted constitutionalism as part of the legal system. Of the fifty-seven signatory states of the OIC, each member state, including the “state of Palestine,” has instituted a written constitution. Thus, one may safely conclude that constitutionalism has emerged, though not without questions, as part of contemporary Islamic law.3

Submission Principle The commitment to constitutionalism among Muslim nations raises a fundamental question that greatly impacts the evolution of Islamic law. Should the constitution be subordinated to the Basic Code? A constitution that claims supremacy over the Basic Code is by definition anti-Islamic. However, a constitution that establishes itself as separate from the Basic Code is non-Islamic, and not anti-Islamic. No Muslim nation has promulgated an anti-Islamic constitution. 115

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Contemporary Ijtihad Several Muslim states, however, have established secular constitutions. A religiously pluralistic nation, such as Nigeria, where Muslims (51 percent) have a slight numerical edge over the combined populations of other religions, may have little option but to adopt a secular constitution. But even a Muslim nation with an overwhelming Muslim majority, such as Turkey, may opt for a secular constitution. Even though a secular constitution may theoretically drift away from the Basic Code, and may even begin to oppose commandments of the Basic Code, one must not assume that secular constitutions in Muslim states, such as Turkey or Senegal, are inherently opposed to, or seek supremacy over, the Basic Code. In legal theory, the constitution has been identified as the grundnorm or the rule of recognition. As the grundnorm, the constitution requires that all rules of the legal system be compatible with substantive and procedural parameters of the constitution. The constitution provides normative guidance to different branches of the government: the legislature enacts statutes and the judiciary decides cases within the constraints of the constitution. The executive branch of the government ensures that laws and case holdings are enforced within the confines of the constitution. The constitution may be employed to assess whether a statute or regulation in question lawfully belongs to the constitutional landscape. The supremacy clause of the constitution mandates that laws be compatible with constitutional values. The method of judicial review provides an institutional mechanism to weed out statutes and prior case holdings that cannot be reconciled with the supreme text of the constitution. The Islamic constitution, therefore, carries two distinct provisions: the supremacy clause and the submission principle. The supremacy clause requires that all positive law be compatible with the constitution. The submission clause requires that all positive law, including the constitution, submit to the Basic Code. For example, Article 2 of the Iraqi Constitution furnishes both filters. The Iraqi laws must not contradict “the established provisions of Islam” and “the rights and basic freedoms stipulated in this Constitution.” Contrast the normative filters provided in Islamic constitutions with those provided in secular constitutions. Secular constitutions furnish just one filter in the form of the supremacy clause. Islamic constitutions provide two purification filters. A piece of legislation, a custom, or a provision of a treaty must not comport only with the provisions of the Islamic constitution, it must also comport with the injunctions of the Basic Code. A rule of positive law, whatever its source, cannot become part 116

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Islamic Constitutionalism of the Islamic legal system unless it successfully passes through both purification filters. True, the Qur’an constitutes the conscience of many Muslim communities. Yet the belief that Muslim states need no unifying document besides the Qur’an misunderstands the function of the constitution in establishing a modern state. The constitution is by no means adversative to the Qur’an. The Basic Code provides many principles of good government, but it leaves open the possibility of various forms of government that Muslim communities may establish over the course of centuries. It is the province of the constitution to lay out the structure of the government. Each Muslim state, therefore, needs a constitution to formalize its political choices in matters of government. The constitution may also reaffirm the rights and obligations provided by the Basic Code. It may establish new rights and obligations consistent with the Basic Code. Because the Qur’an is open to cultural diversity, each Muslim state may inscribe its fundamental cultural preferences in the national constitution. After resisting for years the idea of the constitution as a super-normative instrument, Saudi Arabia has finally promulgated a national constitution that nonetheless declares that “God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution.”4 The establishment of national constitutions in Islamic states, such as Saudi Arabia, simply means that the Basic Code is the conscience of both the community and the constitution. Related to the submission principle is the notion of sovereignty. Although the concept of sovereignty may not have any direct impact on the nature or quality of Islamic positive law, its articulation in the constitution may reveal the tenor of the constitution. Sovereignty is a jurisprudential concept that identifies the ultimate source of law. In a secular democracy, a constitution might refer to the people as the holders of sovereignty. This means, at least at the rhetorical level, that no laws can be made contrary to the wishes of the people. The people’s sovereignty, however, has constitutional limits since the people, in rage or under other transient emotion, may compel or allow the government to undertake egregious acts, such as the commission of torture against captured enemies. In moments of national disarray, the rule of the constitution is supposed to restrain the government from enforcing the will of the people. Thus, the people’s sovereignty alone cannot be the prime driver of constitutionalism.5 Muslim constitutions that subscribe to the submission principle may articulate different notions of sovereignty. Consider four 117

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Contemporary Ijtihad constitutions of Muslim states that subscribe to the submission principle. The Egyptian Constitution reposes the concept of sovereignty (al-siyada) in the people. The people hold all authority, which they protect and exercise within parameters of the Constitution. The Iran Constitution recognizes the longstanding belief that the sovereignty (hakmiyat) resides in the truth and justice of the Qur’an. The Pakistani Constitution articulates the concept of sovereignty in the preamble and declares that “sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust.” The Saudi Arabian Basic Law declares that that the Qur’an and the Prophet’s Sunnah are its constitution. However, the Basic Law also declares that Saudi Arabia is a sovereign (siyada) Islamic state. These varying notions of sovereignty, articulated through different verbal expressions, are not mutually exclusive. The Pakistani concept of sovereignty under which all powers belong to Allah is a principle of the Qur’an, a principle that no Muslim nation would deny or violate.6 The Iranian notion of sovereignty focuses on normative supremacy of the Qur’an, a notion that is part of the submission principle. The Saudi Basic Law refuses to separate the constitution from the Basic Code, thus yielding not only to the Qur’an but also to the author of the Qur’an, Allah. Saudi Arabia uses the word Basic Law to name what other Muslim nations call the constitution. Note, however, that even the Basic Law of Saudi Arabia is positive law, a law made by human beings for human beings. It is distinguishable from the Basic Code. The Basic Law employs the concept of sovereignty to declare that Saudi Arabia is a sovereign state, which means that the nation is free and independent and no foreign power controls its laws. The Egyptian Constitution presupposes that the ultimate sovereignty belongs to Allah and that the Qur’an is, indeed, the principal source of normative supremacy. Its preamble states that the people of Egypt will strive for excellence “in the name of Allah and with His assistance.” However, the Egyptian Constitution resides the earthly authority (al-siyada) of making and enforcing positive law in the people of Egypt. This articulation is no different from the notion of “sacred trust” that the people of Pakistan would exercise within limits that Allah has established in the Qur’an and Sunnah. The inclusion of people into the concept of sovereignty is a commitment to democracy, a commitment to which the Basic Law of Saudi Arabia does not make with regards to its kingdom. 118

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Islamic Constitutionalism What distinguishes Islamic notions of sovereignty from secular notions is the submission principle. No secular notion of sovereignty would submit the constitution to the supremacy of divine texts. Non-submission to divine texts is a defining attribute of secular constitutions. Note an important point: a secular constitution does not have to violate divine texts even though it makes no submission commitments. Theoretically, only theoretically, secular constitutions may endorse laws incompatible with the Basic Code. In reality, they may not. The Turkish Constitution is a secular constitution, but it is unlikely that its legislature would enact laws contrary to the Basic Code, even though the Kemalist revolution contemplated overriding the injunctions of Islamic divine texts in favor of modernity. With recent political developments in Turkey, the secular excesses of the Kemalist ideology are under review. It remains to be seen, however, whether Turkey will amend its constitution and embrace the submission principle. Submission to Classical Fiqh The submission principle does not require that an Islamic constitution should submit to the supremacy of classical fiqh. As discussed in previous chapters, classical fiqh, though a treasure of Islamic law, must never be confused with the Basic Code. Classical fiqh is not divine and, therefore, its claim to possible longevity lies in its wisdom, and not divinity. Succeeding generations of Muslims are free to adopt or modify rules of classical fiqh. No prudent Muslim community would completely throw away the treasure of classical fiqh, sever all normative relations with the past, and make a clean start. Such dramatic reformations are not part of Islamic legal theory, which emphasizes evolution and continuity, rather than revolution and interruptions. While the constitutions of Saudi Arabia and Pakistan submit only to the Basic Code, many other constitutions in the Muslim world are ambiguous about their submission principle. Consider the Iraqi Constitution where Article 2 declares that “Islam . . . is a foundation source of legislation.” Now, it is unclear what is meant by Islam. If Islam means the Basic Code, Article 2 does not fully embrace the submission principle because it identifies the Basic Code as “a source” rather than “the source.” This point is critical because Egypt made a constitutional amendment on this point in 1980 and changed the Article 2 of its Constitution to identify the Shariah as “the” source 119

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Contemporary Ijtihad (al-masdar) rather than a source (masdar) of legislation. A complete subscription to the submission principle requires that the constitution specifically states that the Basic Code is the supreme law of the land and the no laws can be made in violation of the Basic Code. Furthermore, the Iraqi Constitution declares that “no law may be enacted that contradicts the established provisions of Islam (thawabit ahkam al-Islam).” This constitutional provision is ambiguous. If the established injunctions of Islam refer only to the Basic Code, the Iraqi Constitution embraces the submission principle. However, if the established injunctions of Islam include the established rules of classical fiqh, the Iraqi Constitution embraces submission to the Basic Code and classical fiqh. There is nothing objectionable to such a conception of the submission principle. However, this conception fuses divine texts with human interpretations of divine texts. Such a conception binds the will of the legislature to enact laws that are compatible with the Basic Code but not with classical fiqh. In even more ambiguous terms than found in the Iraqi Constitution, the Constitution of Afghanistan declares “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” This clause appears to comport with the submission principle. But it too fails to distinguish between provisions of the Basic Code and other provisions emanating from classical fiqh.

Forms of Government The Basic Code does not prescribe theocracy or any other specific form of government. However, a fundamental objective of the modern constitution is to institute a specific form of government. Specific national constitutions not only identify the form of government, but also provide succession rules for a peaceful transfer of power from one government to the next. Historically, Muslim opiniojurists have relied on the Basic Code to defend various forms of government, including monarchies and hereditary kingships. More recently, the Basic Code has been interpreted to endorse various forms of democracy. The democracy in Iran, designed under the Basic Code, is not the same as democracy in Pakistan. Yet both Pakistan and Iran submit to the Basic Code as the supreme law of the land. The Saudi kingdom perpetuates the “rule of the sons of the founding King . . . and [of] their children’s children.” Yet the Saudi Arabian Constitution submits to God’s Book (the Qur’an) and the Prophet’s Sunnah. 120

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Islamic Constitutionalism One must not assume that a form of government that submits to the Basic Code establishes a government of the clergy. The Pakistani Constitution embraces the supremacy of the Basic Code but does not establish a theocracy. Most state institutions in Pakistan are nonclerical. The Saudi Arabian Constitution establishes the supremacy of the Basic Code, but the state power resides in the Saud family, not clerics. In Iran, although the Shia clergy wield tremendous powers, the Iranian Constitution allows non-clerical institutions to run numerous affairs of the state.7 However, the Basic Code does establish a normative order under which all systemic norms are subjected to God’s authority embodied in the Qur’an and to the Prophet’s wisdom embodied in the Sunnah. One could, therefore, argue that a legal system in which Islamic divine texts are the supreme law of the land is by definition God-oriented, and hence theocratic, even though the power of the government is not vested in a clerical establishment or a religious party. The learned in the science of the Basic Code keep a vigil on the administration of the Islamic state, but they need not command political power. Whether a Muslim nation would prefer democracy to another form of government is a political and cultural decision. It is farfetched to argue that the Qur’an mandates the rule of the sons of a specific family or that it requires a government of clerics. The Qur’an is open to various forms of government that submit to the rule of law and to normative injunctions of the Qur’an. Some Muslims carry nostalgic memories of the caliphate, a form of government that survived for several centuries after the dawn of Islam. Some even argue that the caliphate is a preferred political system under the Qur’an. Such theses confuse historical and cultural preferences of Muslim populations with injunctions of the Qur’an. Since the Qur’an is revealed to diverse nations and for evolving periods of history, it does not mandate any one form of government that might suit one nation but not another, or that might work at one stage of human evolution but not at another. In most states, the constitution, placed at top of the legal pyramid, is the master text and the supreme law of the land. However, a constitution may concede its supremacy to the Qur’an. In some Muslim states, the national constitution itself declares the Qur’an to be the supreme text. In such states, including Saudi Arabia, Iran, and Pakistan, all laws must conform to injunctions of the Qur’an. Muslim nations that subscribe to both the Qur’an and the constitution require that laws be compatible with both supreme texts. For 121

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Contemporary Ijtihad example, in Pakistan a law passed by the parliament or the executive must meet the constitutional standards, but the law must also be compatible with the Basic Code. Technically, a constitutional provision that declares the Qur’an to be the supreme law can be modified and repealed, unless it is declared to be non-amendable. Article 227 of the Pakistani Constitution, which declares the Qur’an to be the supreme source of law, can be repealed through amendment procedures listed in the Constitution. Because Article 227 can be repealed, one might argue that the Pakistani Constitution, and not the Qur’an, ought to be considered the supreme text. This argument, though technically credible, does not diminish the supremacy of the Qur’an. It is a sociological question whether or not a Muslim nation, which constitutionally subscribes to supremacy of the Qur’an, can reverse its normative choices and opt for a secular constitution. Just because a constitutional provision can be amended does not ipso facto weaken its normative durability. The First Amendment of the US Constitution can be technically repealed, though such repeal might be declared unconstitutional. Its potential amendability does not mean, however, that the First Amendment is vulnerable to amendment or that the United States would indeed repeal the amendment and deny the rights to free speech, association, and religion. In examining the modern constitutions of Muslim states, one of the authors of this book has presented the concept of the fusion state in other works.8 Here, a brief description of the fusion state is helpful in understanding the comparative dynamics of the Qur’an and a secular constitution. A secular constitution, such as the US Constitution, separates the legal order from the religious order. The secular state is prohibited from the establishment of religion, even though it allows the free exercise of religion. Accordingly, the secular state refrains from aiding any religion or preferring one religion over another. The US Constitution guarantees equal religious freedom to Christians as well as to “the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.” In contrast to the secular state, which promises state neutrality toward belief systems, the fusion state aligns itself with a designated religion or denomination. The constitutions of Iran, Pakistan, Saudi Arabia, Algeria, Egypt, and Malaysia, among others, established fusion states in that each constitution designates Islam as the official state religion. This fusion would mandate that the state enforce the laws and morality of Islam and refrain from enacting laws that 122

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Islamic Constitutionalism violate the Basic Code. However, the fusion state must not be confused with a theocracy, under which political power is vested in the clergy. The fusion state is compatible with various forms of government, including democracy. A fusion state may accept or express intolerance toward other religions, but religious intolerance is not a defining characteristic of the fusion state. In fact, any such intolerance would violate the Basic Code under which there is no compulsion in matters of religion. Many fusion constitutions in Muslim states make an explicit commitment to religious tolerance. In addition to constitutional commitments to freedom of religion, the fusion state must be proactively engaged in protecting the rights of religious minorities. Protecting the rights of religious minorities is not an act of charity but a prescription of the Qur’an. Muslims nations have at least three options with respect to the Basic Code. First, they may privatize faith, embrace secularism, and divorce law-making from the Basic Code. Second, they may alter the text of the Basic Code to meet modern needs. Third, they may accept the Basic Code as a permanent guide for individual and social life, but see the Basic Code as a flexible and evolutionary source. The first option has been tried, but the confrontation with religious forces opposing secularism has often maligned the secular state. Furthermore, the privatization of Islamic faith is unlikely to succeed because Islam, by its inherent design, builds legal communities. Unlike Christianity, in which Christ is believed to be the self-disclosure of God, Islam reveals God’s Law rather than God per se. The second option, which allows alteration of the Basic Code, is unacceptable to all Muslim nations. The third option, which indeed is the choice of contemporary ijtihad, is the most suitable alternative for the material and spiritual development of Muslim nations. An Islamic constitution embraces the concept of ijtihad to employ contemporary institutions and new legal methods to interpret the Basic Code and reformulate classical fiqh. An Islamic constitution does not abandon classical fiqh, rather, it seeks guidance from classical fiqh, and it codifies the laws of classical madhabs to the extent they offer acceptable solutions to contemporary problems. At the same time, however, an Islamic constitution reserves the option to depart from specific rules of classical fiqh, if and when necessary. In recognizing the evolution of fiqh, an Islamic constitution does not build a single empire of Islamic law, rather, it respects the diversity of Muslim communities expressed through local customs and 123

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Contemporary Ijtihad traditions compatible with the Basic Code. It repudiates any call for unity through a monolithic interpretation of the Basic Code for the good of all Muslims across the world. Diverse Muslim communities are free to interpret the Basic Code in light of their unique needs, customs, and social and economic development. What unites the Islamic world, as it has in the past fourteen centuries, is a shared commitment to the Basic Code, not to any one period of fiqh and far less to any one madhab. Contemporary ijtihad confronts a new world. The imperial era no longer exists. Great Muslim empires – the Umayyads (661–750), the Abassids (750–945), the Ottomans (1301–1918), and the Mughuls (1526–1858) – have dissolved, leaving behind ethnically distinct Islamic societies scattered across the world. Introduced mostly through colonialism, Western influence has permeated the entire Islamic world. And in the past 100 years, many Islamic legal systems have borrowed heavily from European civil codes, English common law, and more recently from American constitutionalism. Even Soviet communism has left marks on Islamic consciousness, as many Muslim states experimented with Islamic socialism, recognizing the economic welfare of individuals as a state obligation. In the past few decades, the emergence of universal values in the form of human rights has touched all legal systems, including those of Muslim states. This confluence of external impacts has awakened Muslims to find their own way. They do not want to banish religion from the realm of law. But at the same time, they are aware that an absolute adherence to classical fiqh is losing scholarly support and the call for ijtihad is gaining pitch and momentum across the Islamic world. In response to this call, an Islamic constitution offers the basic political and legal structure to enhance the reformulation of classical fiqh. Repudiating the concept of occupation, colonialism, racism, apartheid, and foreign domination, an Islamic constitution liberates Muslims from external oppression. It also liberates Muslims from domestic oppression by reforming oppressive political institutions and centers of power. Instituting constitutional governments under which ruling elites are periodically accountable to the general population, an Islamic constitution embraces the principles of selfdetermination and the will of the people. However, the people are free to choose constitutional monarchy, even a kingdom, if they reserve the right to change the form of government. The Basic Code does not empower Muslims to alter the text of the Qur’an or to change the rights and obligations prescribed in 124

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Islamic Constitutionalism the divine texts. However, Muslim communities retain the power to choose and to alter the form of government. Over the centuries, Muslim nations have, indeed, exercised this power to alter the form of government. In 1952, Egypt changed its form of government from a constitutional monarchy to a republic. Following suit, many kingdoms in the Middle East, including in Iraq and Iran, were replaced with quasi-democratic systems. Unfortunately, personal and familial rules in numerous Muslim states continue to impede democratic forms of government under which the people have the right to elect and remove government. Muslim states, though gradually moving toward democracy, have not yet fully recognized the will of the people as the basis of governmental authority. While the will of the people is the basis of governmental authority, a concept fully compatible with the Basic Code, an Islamic constitution does not embrace the linear notion that all laws flow from the power of a representative government or a constitution. An Islamic state adopts a constitution to clarify rules of succession and distribute powers among governmental branches. However, it does not envisage state constitutions as the repository of the highest norms to which all laws must be subordinated. Such a notion of secular constitutionalism suppresses ijtihad as it separates human laws from God’s Law. Instead, an Islamic constitution recognizes the fluid supremacy of the Basic Code. It acknowledges the Qur’an and the Sunnah as the supreme sources of law to which Islamic constitutions, laws, and regulations must conform. The Basic Code is not altered, set aside, or repudiated, for an Islamic constitution safeguards the sacred relationship between God and the people as expressed in the Qur’an and the Sunnah. However, an Islamic constitution also recognizes that the meaning of the Basic Code is not cast in stone, but in a flexible language, for God has established a creative relationship with the creatures. Furthermore, an Islamic constitution is no longer bound by the fiqh of the first era of ijtihad. All madhabs developed in the first era are respected, studied, and their laws used when appropriate. The rules of classical fiqh are nonetheless persuasive, not binding. Therefore, an Islamic constitution is at liberty to alter or repeal specific provisions of any madhab. In altering or repealing the rules of old fiqh, however, an Islamic constitution cannot undermine or set aside the Basic Code. Even the reformulation of classical fiqh must be done through rigorous legal methods and not through mere expedient political will or through ill-considered juristic effort. In this 125

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Contemporary Ijtihad regard, the Qur’an reminds every Muslim, including jurists: “And pursue not that of which thou hast no knowledge.”

Constitutional Methods In contemporary ijtihad, the legal methods of classical fiqh are being reformulated to reflect contemporary political, legal, and economic realities. Consensus, analogy, equity, and public welfare remain useful tools with which to interpret the Basic Code in contemporary contexts. Given the complexity of contemporary transactions, however, new legal methods must also be crafted to make useful and efficient laws. These new legal methods vary from state to state, as each Muslim community finds the most appropriate ways to interweave the Basic Code with its customs and legal traditions. The new methods are no longer geared to verbal niceties of sacred texts, but are anchored in broad purposes that the Basic Code has established for human beings both in general and for Muslims in particular. This chapter does not offer an exhaustive list of legal methods to be used in the second era of ijtihad. It does, however, identify two legal methods for the consideration of Islamic constitutions. First, Muslims may use the balancing method (al-mizan) to weigh the compatibility of proposed laws with the Basic Code. This method is consistent with God’s own method of reasoning. In the case of gambling, for example, the Qur’an measures profit and loss, reminding rational believers that gambling is essentially a losing activity in that it carries more harm than benefit. The balancing method is also consistent with the established Sunni doctrine of purpose (hikmat or maslahat) for understanding God’s Law. The balancing method considers whether the proposed legislation advances an important goal of the Basic Code. For example, a tax statute designed to raise revenue for the promotion of primary education is allowed under the Basic Code, since a fundamental theme of the Qur’an is to extract communities from ignorance and expose them to knowledge. The balancing method may also be used to enact laws that do not retard a specific goal of the Basic Code. Modern intellectual property laws designed to protect human inventions for a limited statutory period, for example, are not contrary to any expressed principle of the Basic Code, even if it is difficult to identify a principle from the Basic Code that directly approves intellectual property laws. This difficulty, however, is not a barrier to the acceptance of such laws, for the balancing method allows an incentive for invention that can benefit the 126

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Islamic Constitutionalism whole world. Likewise, environmental laws designed to protect the integrity of ecosystems are justifiable under the balancing method, as the Qur’an states: “Mischief has appeared on land and sea because of [the need] that the hands of men have earned, that [God] may give them a taste of some of their deeds: in order that they may turn back [from evil]” (30:41). This command of the Qur’an is most consistent with a modern environmental movement that aspires to restore the earth by repairing the damage that the human hand has inflicted on ecosystems. These examples are not exhaustive, but illustrative of the balancing method that Muslim communities can use to restore the lost balance in existing laws or to measure the costs and benefits of proposed legislation. Second, Islamic constitutions may use universal values as a legal method to test the validity of proposed laws. The Qur’an and the Sunnah do not teach normative isolation of Islamic legal systems. Repeated deferential references to sources other than the Qur’an are meant to place Islamic laws in a universal context. For example, the Qur’an defines a believer as one who not only believes in the Qur’an, but who also believes in revelations contained in earlier scriptures. God’s Law is not sent just for Muslims, but “as a guide to human beings, and He sent down the Criterion of judgment between right and wrong” (3:4). These references demonstrate that non-Muslims are also blessed with God’s Light, and their effort, along with Muslims, in shaping universal values that are good for all human beings is part of ijtihad. As an integral part of human civilization, Islamic constitutions shun normative isolation. They interact with other legal systems, freely borrowing legal solutions compatible with the Basic Code. They also participate in proposing, drafting, and adopting universal values. Incorporated in global treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, universal values express the combined wisdom of the peoples of the world. These values exist above and beyond cultural and religious diversity, and no concept of cultural relativity can repudiate their universality. Some Islamic states have been fully engaged in drafting treaties containing universal values; others have been reluctant to do so. An Islamic constitution enforces universal values through the domestic legal system. Domestic application of universal values will create a new fiqh that interweaves these treaties into the texts and contexts of the Basic Code. Muslim legislatures, jurists, and judiciaries are likely to make a concerted 127

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Contemporary Ijtihad effort in the form of constitutional ijtihad to demonstrate the compatibility between universal values and the principles of the Qur’an and the Sunnah. For example, the Basic Code establishes a clear guideline that there is no compulsion in matters of faith. This freedom of religion and worship is also a universal value protected under a variety of human rights treaties. Accordingly, constitutional ijtihad conducted in an Islamic constitution must not interfere with private faith, a direct relationship, which Islam recognizes, between God and individual, a Muslim or a non-Muslim. In respecting this individual–divine relationship, an Islamic constitution refrains from investigating whether a person is saying daily prayers or fasting or whether a person who professes to be a Muslim is indeed so. Likewise, respect for religious minorities and their privacy of belief are the values that an Islamic constitution reaffirms through constitutional ijtihad. In addition to religious tolerance, constitutional ijtihad protects diversity – an emerging universal value. The Basic Code affirms the principle of diversity by stating that God has created human beings in diverse tribes, colors, and languages: “And among His Signs is the creation of the heavens and the earth, and the variations in your languages and your colors; verily in that are Signs for those who know” (30:22). This diversity is created, the Qur’an states, so that the people can develop shared customs and intimate bonds of mutual understanding. The purpose of diversity is not to deepen mutual mistrust or dislike. The reference to tribes underscores the significance of varying customs and attendant legal obligations. The reference to languages is recognition of the fact that, although the original language of the Basic Code is Arabic, Islam does not undermine the natural linguistic diversity that exists in the real world. This affirmation of diversity (for its legitimate reasons) serves as the foundational principle of constructing constitutional ijtihad across the Muslim world. Accordingly, constitutional ijtihad incorporates the principle of diversity to recognize varying customs and linguistic traditions. This recognition of customary and linguistic diversity, however, should not be taken as a license to undermine the basic traditions of Islam. Constitutional ijtihad recognizes the force of custom within the framework of the Basic Code and not outside it. Custom is a supplementary source of law, and its legality is unassailable if the custom is compatible with the letter and spirit of the Basic Code. However, custom must not violate clear laws of the Basic Code. In emerging Muslim communities, local customs contrary to the provisions of 128

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Islamic Constitutionalism the Basic Code may gradually be changed to assure their conformity with the Basic Code. Since customary law is deeply rooted in the habits and minds of the community, it is often resistant to change. Constitutional ijtihad does not use force to change deeply rooted customs, but educates the community so that the change is based on informed consent. Constitutional Languages Consistent with the principle of diversity, Arabic, which remains the language of the Qur’an and of daily prayers, is no longer the only authorized language of ijtihad. Constitutional ijtihad allows laws to be enacted, interpreted, reviewed, and applied in national languages. This allowance is in strict compliance with the Basic Code, which recognizes linguistic plurality and, as a general principle, prefers facility to difficulty. As a pragmatic and universal faith, Islam cannot be confined to any one language. Likewise, a genuine development of Islamic law would require that Muslims across the world be should able to think and reflect upon the Basic Code in their mother tongues. Accordingly, the languages of constitutional ijtihad are many. In a highly diverse Muslim world, state legislatures, judiciaries, and jurists cannot be forced to adopt Arabic as the sole language of law. In the classical era of ijtihad, one indispensable qualification of opiniojurists was a superior knowledge of the Arabic language. This qualification made sense when ijtihad was confined to linguistic interpretations of the Basic Code, for no one can meaningfully interpret a text without fully understanding the language of the text. Constitutional ijtihad is not linguistic, but more comprehensive in its interpretation of the Basic Code. The emphasis of constitutional ijtihad is not on mere words. Constitutional ijtihad is derived from a comprehensive understanding of the Basic Code. Arabic is one, but not the only, way to obtain a comprehensive understanding of the Basic Code. As good and authentic translations obtain respectability, state legislatures and judiciaries in non-Arabic countries will be able to engage in meaningful ijtihad. Furthermore, the requirement that the language of ijtihad be Arabic alone has interposed a formidable barrier for millions of Muslims across the world, who wish to participate in the development of fiqh but who cannot speak Arabic. Despite this barrier, the literature on Islamic law has never been confined to Arabic, and influential works of jurisprudence have been done in other languages. 129

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Contemporary Ijtihad For centuries, because of the language requirement, the development of Islamic law has been tied to the Arab culture. It seems more likely that the future development of fiqh will be highly responsive to diverse languages, customs, and cultures. Here one point is noteworthy. No notion of contemporary ijtihad contends that the language of daily prayers should also be nationalized. There seems to be an irrefutable consensus among successive generations of Muslims, in Arabic and non-Arabic communities, that the language of daily prayers, at both the individual and community level, should remain Arabic. Many non-Arabic constitutions subscribe to the teaching of the Arabic language as a governmental obligation. The Iranian Constitution provides: “Since the language of the Qur’an and Islamic texts and teachings is Arabic, and since Persian literature is thoroughly permeated by this language, it must be taught after elementary level, in all classes of secondary school and in all areas of study.” In protecting the Islamic way of life, the Pakistani Constitution obligates the state “to make the teaching of the Holy Qur’an and Islamiat compulsory, to encourage and facilitate the learning of [the] Arabic language and to secure correct and exact printing and publishing of the Holy Qur’an.” These constitutional commitments demonstrate that as the language of religion of Islam, Arabic remains a language to be learned in all Muslim communities.

Institutional Structure of Ijtihad At a fundamental level, constitutional ijtihad conducted under the auspices of Islamic constitutions reflects diverse realities of the Muslim world. Comprising over a billion Muslims, most Islamic communities are highly diverse in cultural and legal customs. They also exist at different levels of economic and scientific development. Most importantly, there exists no single empire as there was during the first era of ijtihad. Now Muslims are distributed all over the globe in local and national communities. Millions of Muslims live in non-Islamic countries in which they must obey local laws. This diversity of social and political life is not conducive to any monolithic development of fiqh, for no one scholar will be able to respond to these complex realities. The era of imperial scholars who wished to construct universal jurisprudence is over. It is therefore important that the concept of ijtihad be decentralized, so that each Islamic constitution can consider local conditions and customs in proposing interpretations of the Basic Code. 130

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Islamic Constitutionalism Furthermore, any legal methods, old or new, to interpret the Basic Code can be abused and are prone to error, even arbitrariness. To prevent interpretive abuse, error, and arbitrariness, an Islamic constitution provides an institutional structure of ijtihad under which no one person or body of persons has an exclusive monopoly to declare what is compatible with Islamic principles of law and what is not. In Islamic constitutions, constitutional ijtihad is enforced through the normative interaction of three primary institutions: the legislature; the judiciary; and the council of jurists. Most secular states empower legislatures to make laws and allow judges to fill in the gaps that lawmakers have left open. Islamic constitutions also adopt these institutions. In fact, almost all Muslim nation-states have already established legislatures and national judiciaries. Some have even established councils of scholars that participate in the enterprise of law-making. As such, constitutional ijtihad, as proposed in this book, is neither a sudden break from the past, nor is it a foreign concept; it simply affirms a current practice of Islamic legal systems. Each Islamic constitution promulgates its own constitution, empowering the legislature to make laws and authorizing the judiciary to refine the application of statutory laws. The council of scholars assures that the laws are compatible with the Basic Code. Legislature In Islamic constitutions, the legislature is the primary source of constitutional ijtihad.9 New laws compatible with the Basic Code are formally made in the Islamic state legislature. Lawmakers, including the executive branch, are vested with the power to initiate legislation that meets the political, social, economic, and international needs of the Islamic community. In considering legislation, lawmakers are primarily motivated by a sense of public welfare, a classical legal method of the Maliki madhab. They are also sensitive to universal values within the constraints of the Qur’an and the Sunnah. In considering legislation, lawmakers are generally deferential to the five madhabs. They do not repudiate classical fiqh on the unexamined assumption that old laws reflect bygone realities. As a broad principle, fiqh laws are retained and traditions are maintained. Furthermore, the legislature may invite comments and testimonies of national and international opiniojurists to be sure whether the proposed rule of ijtihad is compatible with classical fiqh. Despite these genuine efforts to uphold the methods and laws of classical fiqh, 131

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Contemporary Ijtihad however, the Islamic state legislature is not bound to uphold a rule of classical fiqh at all costs. Under constitutional ijtihad, the repeal of classical fiqh, if necessary, is piecemeal, that is, one rule at a time. The Islamic state legislature does not repeal an entire madhab or a specific legal branch of a madhab in one stroke. Constitutional ijtihad prefers that the Islamic state legislature be a democratic institution whose members are periodically elected by the people. A democratic legislature is founded on the twin principles of consensus (ijmah) and consultation (shura). These twin principles of the Basic Code maintain and strengthen a dynamic relationship of mutual trust and mutual respect between the rulers and the ruled. A government that rules with coercion, rather than consent, and a government that is no longer accountable to the community, loses its institutional legitimacy to engage in ijtihad. Constitutional ijtihad, therefore, requires that at least one house of the legislature be accountable to the Islamic community. A unicameral legislature must be popularly elected. In bicameral legislatures, at least one house must be elected directly by the people. The upper house in bicameral legislatures may be designed according to varying Islamic state needs and traditions. This allowance in designing the upper house anchors constitutional ijtihad in local customs, not in a priori concepts. In addition, the upper house may include members of epistemic groups, including scientists, sociologists, historians, lawyers, poets, and philosophers. Islamic constitutions ensure that the upper house represents all major systems of knowledge and is not biased toward any one form of knowledge, whether science or theology. A richly diverse epistemic dimension of the upper house comports with the principle of the Basic Code that those who have knowledge must be respected in conducting affairs of the community. The Qur’an specifically states that: “God will exalt in degree those of you who believe and who have been granted knowledge.” The idea of an epistemic upper house has been partially implemented in Pakistan. The Pakistani Constitution requires that seventeen members of the Senate be “technocrats including ulema.” The word “ulema” refers to Muslim scholars. “Technocrats” is an unfortunate word, but it means persons of science. The total membership of the Pakistani Senate is 100. Thus, the persons of knowledge, in the language of the Qur’an, constitute about 17 percent of the upper house. There is no reason to limit the persons of knowledge to science and theology. Various other disciplines train persons of 132

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Islamic Constitutionalism knowledge that can be highly useful in statecraft. Eminent economists, financial experts, sociologists, retired military generals, and diplomats can provide valuable insights into law-making enterprise and government policy. In non-democratic constitutional systems, such as in Saudi Arabia, where the people do not elect the legislative assembly, the Qur’an’s concept of a consultative body may be implemented. A consultative body consists of wise and knowledgeable men and women, who advise the ruler. Islamic law prohibits all forms of government under which the ruler is under no obligation to seek credible consultation and makes decisions and policies according to his own will. The Islamic idea of a consultative body must not be implemented in bad faith or as a pro forma requirement. The ruler will fail to fulfill his duty if he selects a consultative body composed of friends, relatives, and weaklings who dare not disagree with official policies. A genuine consultative body consists of independent men and women who have acquired knowledge in specialized fields relevant to governance. To ensure the independence of the consultative body, the constitution should provide credible procedures for identifying and recruiting the members of the body. The ruler should have minimal input into the selection process. The consultative body should be a constitutional institution that cannot be dismantled. The purpose of the consultative body, as a constitutional institution, is to give advice to the non-elected government on matters of law and government policy. Personal safety, intellectual integrity, and just compensation must be assured so that members of the consultative body can render advice without fear or favor. A consultative body is most efficacious when its members enjoy a good reputation in the community. In this sense, the consultative body carries within it some democratic roots. The ruler and the consultative body lose respect, even legitimacy, when the people dislike the ruler and the consultative body. The reputation of the consultative body as a rubber stamp also harms the constitutional system. Judiciary In addition to a democratic legislature, an independent judiciary is indispensable for constitutional ijtihad. In the first era of ijtihad, as discussed above, judges did not actively participate in the formulation of fiqh rules and legal methods. Constitutional ijtihad, however, 133

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Contemporary Ijtihad assigns a vigorous institutional role to the Islamic state judiciary in the application and refinement of laws that the Islamic state legislature makes. This assignment is derived from universal values and from actual judicial practices in many Muslim countries, both of which consider an independent judiciary to be vital for a vibrant and fair legal system. Increasingly, state judiciaries are becoming the overseers of legal systems, assuring that law, as applied, does not violate basic principles of equity and fairness. They also maintain the normative hierarchy of the legal system, ensuring that specific laws do not violate basic principles of the state constitution as well as of the Basic Code. Constitutional ijtihad cannot succeed if the judiciary exercises broad authority to enforce its own interpretation of the Basic Code over the one that the democratic legislature has used to construct legislation. Any such broad authority of judicial review weakens the power of the legislature to engage in ijtihad. As a general rule, the Islamic state judiciary is not a reactionary institution at odds with the legislature. Its main role is to refine, rather than to reform, the law. In this process of refinement, however, the Islamic state judiciary may strike down parts of legislation that violate the state constitution or the Basic Code. A responsible and competent judiciary is always self-conscious of its dual role in maintaining the institutional balance with the legislature and in refining the law without sabotaging the reforms that the legislature has made. This self-consciousness is most needed for the highest court in the system, for the court has the final authority to rule on the nuances of constitutional ijtihad. To maintain the institutional integrity of the high court, Islamic constitutions ensure that judges sitting on the court represent a variety of jurisprudential perspectives. The high court is not a congregation of self-righteous mullahs, nor is it a secular club of non-believers who see religion as a source of strife. Judges, men and women, equipped with highly sophisticated legal education, are Godfearing believers. They understand the obligation of constitutional ijtihad in the context of Islamic legal traditions. They may not think alike, but make a concerted effort to reach a knowledge-based consensus in light of honest reason. But if they cannot agree in true conscience, they register their dissent without fear or favor. The Islamic state judiciary is not an infallible institution; nor does it have the final word in constitutional ijtihad. Its power is balanced against that of the legislature and that of the council of jurists. Furthermore, the Islamic state judiciary is under a set of legal 134

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Islamic Constitutionalism constraints to interpret the laws of the land. Even today, the constitutions of many Muslim states explicitly empower the judiciary to review legislation for conformity with the Qur’an and the Sunnah. In its judicial review, the high court of the land must engage in a complex analysis of the sources of law to decide whether a piece of legislation is in conformity with the Basic Code. It must exercise the power of judicial review within constitutional limits and interpret the laws by recognized legal methods, with due deference to precedent and the rules of statutory construction. Likewise, in its effort to satisfy the principle of conformity, the high court must not discard international obligations that the state has contracted through international treaties and international customary law. In this effort to reconcile a piece of legislation with the constitution, international law, and the Basic Code, the judiciary cannot distort any of these supreme sources. Most certainly, the judiciary might have the most leeway with the national constitution because the other two sources, the international law and the Basic Code, have transnational interpreters who would most certainly frown upon any unacceptable interpretation. In the case of the Basic Code, the judiciary must be most careful, for national and global Muslim scholars will judge their opinions. Thus, the judicial process of ijtihad will be the most complex in its effort and most authoritative in its impact if the legal methods of ijtihad are acceptable to the community of scholars in the Islamic world. Council of Jurists In addition to the legislature and the judiciary, Islamic constitutions establish the council of jurists to complete the essential infrastructure of constitutional ijtihad. In the first era of ijtihad, master jurists were the primary source of creative ijtihad, even though thousands of scholars and opinion-givers (muftis) nurtured fiqh. Now, the primary responsibility of overseeing state legislation resides with a council of jurists. In Islamic constitutions, the council of jurists is an independent constitutional institution established to balance the weight of the democratic legislature, on the one hand, and that of the independent judiciary, on the other hand. Its primary function is to analyze proposed legislation and international agreements from an Islamic viewpoint. This unique Islamic institution prevents the enactment of laws and treaties contrary to the timeless principles embodied in the Basic Code. The council may express its opinion before legislation is 135

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Contemporary Ijtihad promulgated so that the necessary changes are made. Likewise, the council may propose reservations to a treaty before ratification. Such juristic previews continue to promote the Islamic tradition of respecting people of knowledge. However, any amendments to proposed laws or reservations to treaties are finally approved by the legislature or the executive in accordance with constitutional procedures. The juristic opinions of the council are advisory and not binding on the legislature. Accordingly, the Islamic state legislature may adopt proposed legislation with or without the changes the council has suggested. By disregarding the council’s suggestions, however, the Islamic state legislature takes a political risk that the people might show their disapproval in the next parliamentary election and not elect the lawmakers who voted against the council. It also takes an institutional risk in that the Islamic state judiciary might strike down the legislation under its power of judicial review. In Islamic constitutions, therefore, the legislature is under political and institutional pressures to extend utmost respect to the opinions of the council. The council’s opinions are not binding for a number of reasons. First, constitutional ijtihad suffers an irreparable harm if the council overrules the considered choices of a democratic legislature. Any such power granted to an unelected council of jurists, even though highly learned, undermines the democratic foundation of an Islamic constitution, and the power to make and unmake laws shifts from the legislature to the council. Second, any power of the council to overrule the policy choices of a democratic legislature is contrary to the principle of popular consensus (ijmah), a classical method of ijtihad, which essentially empowers the general populace to participate in ijtihad. Third, any such veto power undermines the institutional balance of an Islamic constitution in which both the upper house of the legislature and the high court are highly learned institutions, composed of individuals with high educational and scholarly credentials. Finally, the council can be politically corrupted if its preview of legislation and treaties is binding, for, in that case, the members of the council may be selected for their political views rather than for their knowledge and scholarly authority, thus undermining the raison d’être of the institution. Despite institutionalization of ijtihad, individual scholars will continue to play a leading role in thinking about contemporary problems and their solutions in harmony with the Basic Code. Islamic constitutions value knowledge and reserve high respect for epistemic communities, including Islamic scholars. Private scholars are free to 136

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Islamic Constitutionalism formulate ideas, devise new legal methods, and propose legislative and judicial outcomes, thus guiding state institutions in managing, as well as engineering, social, political, and economic reality. They are also free to reformulate provisions of classical fiqh to adapt them to new needs. In fact, Islamic constitutions encourage individual scholars to study and interpret the Basic Code. Individual scholarly works cannot be censored or outlawed on the ground that only state scholars (ulema al-sultan) are authorized to engage in ijtihad. Any such monopolization of scholarship is contrary to the weight of the Islamic legal tradition. Islamic constitutions cannot detain, arrest, or punish Islamic scholars for freely expressing their ideas or refusing to join the government. No theory of modernity, state security, or secularism justifies any harsh treatment of people of knowledge, for they have special protection under God’s Law. Furthermore, Muslim scholars cannot be prevented from joining the legislature. In an Islamic constitution, the formal authority to make laws vests with the state legislature, elected through periodic genuine elections and accountable to the people. Jurists and other Islamic scholars can contest elections to join state legislatures and participate in formal law-making. They cannot be denied access to the legislature through the banning of religious political parties or by disqualifying them for less than legally sustainable reasons. In legislatures, jurists are free to criticize or vote against any proposed legislation for its lack of conformity with the Basic Code. They are equally free to propose legislation in conformity with the principles of constitutional ijtihad. No jurist may be expelled from the legislature for expounding views considered “too radical” or “too conservative.” Such expulsions hinder, rather than advance, the cause of constitutional ijtihad. In protecting these freedoms, Islamic constitutions encourage Islamic scholars and jurists to gain knowledge from a variety of sources, old and new, Islamic and non-Islamic. A great scholar cannot be confined to any one form of knowledge and is open to other disciplines for cross-pollination of ideas. The renewal of Islamic law cannot be achieved if Islamic jurists and scholars limit their knowledge to classical sources of fiqh. Jurists can, of course, specialize in classical fiqh, but their contribution to Islamic constitutions will be meaningful only if they also have an effective grasp of new knowledge. For example, jurists can learn both fiqh and non-Islamic legal systems, so that they can compare and contrast proposed legislation through Islamic and foreign experiences. 137

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Contemporary Ijtihad

Constitutional Ijtihad is Binding Private scholarly freedom is not a license to subvert the ijtihad institutions of an Islamic constitution. Individual scholars realize the importance of preserving the integrity of the legal system. Accordingly, they refrain from issuing opinions (fatwas) contrary to the pronouncements of ijtihad institutions. If an ijtihad institution has concluded a point of law, individual scholars rely on the system to overturn the ruling. Any scholarly declaration that the rule is not binding is an invitation to anarchy, revolt, and dissension. It is also a violation of a basic principle of the Basic Code that obligates Muslims to “obey those charged with authority.” In fact, the laws developed through constitutional ijtihad are binding on Muslims within the jurisdiction of an Islamic constitution. A new rule cannot be disobeyed for being contrary to classical fiqh. Under constitutional ijtihad, any rule of classical fiqh derived from analogy, consensus, equity, or any other legal method can be effectively limited in application, modified, and repealed. Of course, constitutional ijtihad has no such authority with respect to the Basic Code. Constitutional ijtihad ensures, through its architectural constraints, that no law contrary to the Basic Code is promulgated. However, if a Muslim believes that a new rule enacted through constitutional ijtihad is contrary to the Basic Code, the rule is nonetheless binding. The Qur’an’s mandate that Muslims obey those charged with authority applies to constitutional ijtihad. This mandate comports with historically validated evidence that no legal system can function if individuals are free to repudiate rules on account of personal beliefs. Even though Muslims must obey the rules of constitutional ijtihad, they are free to criticize any rule that they believe is contrary to the Basic Code. Criticism of a rule is not the same as its disobedience. An Islamic constitution is not a self-righteous entity, nor do its institutions enjoy any authority to suppress dissent. In fact, the institutions of ijtihad take into account popular will as a factor, though not a decisive one, in its legislative deliberations. Although the formal decision-making authority belongs to ijtihad institutions, the right to criticize belongs to individual Muslims. If the criticism is valid, ijtihad institutions may reconsider the law and make any necessary changes consistent with popular demands. Likewise, the fiqh markets of free and independent opiniojurists remain vibrant and vigilant. For preserving social and constitu138

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Islamic Constitutionalism tional order, opiniojurists must not advise people to openly defy constitutional ijtihad, much less to incite them to violence in order to undermine state institutions. However, consistent with the historical tradition of maintaining the integrity of fiqh markets, opiniojurists need not suppress their honest viewpoints or criticisms. The Muslim state is under an obligation to allow the freedom of fiqh markets. Thus, the government must let opiniojurists comment and criticize government policies and the rules of positive law that the government adopts. A peaceful and respectful dialogue between opiniojurists and constitutional institutions establishes a medium of discourse that would benefit the development of Islamic law in an informed manner. No concept of infallibility is associated with constitutional ijtihad. Juristic efforts to interpret the Basic Code, even when most sincere, deliberate, and anchored in knowledge, may contain error. God prescribes no punishment for any erroneous interpretations, for every good-faith effort to understand the Basic Code is rewarded. Since ijtihad institutions are fallible, their rules are subject to modification and repeal. However, a rule of constitutional ijtihad must be changed through the same process by which it was enacted. No one person, including the head of state, is authorized to change the rule, because any such power is contrary to the principles of consultation and consensus. The institutions of ijtihad retain the primary and exclusive authority to review, modify, and repeal their own laws.

Constitutional Pluralism Consistent with the long-standing tradition of fiqh, multiple interpretations of the Basic Code will continue to flourish in Islamic constitutions, as diverse Muslim communities understand and apply the Qur’an and the Sunnah to their unique customs and cultures. As always, the meaning of the Basic Code is neither fixed in time or in space, but is determined through the creative interaction between the text and the community. What unites Muslims is the fact that they all derive their diverse meaning from the same Basic Code. What also unites them is the shared belief that the Basic Code is beyond alteration. No Islamic constitution is allowed to change even a word of the Qur’an or corrupt the meaning of authentic ahadith. However, no single monolithic interpretation of the Basic Code can be imposed on all Muslim communities in the name of unity. Any such unity is foreign to the concept of Islam. 139

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Contemporary Ijtihad While constitutional ijtihad embraces pluralism and diversity, it does not encourage segregated centers of Islamic legal development confined to national, ethnic, or linguistic boundaries. It establishes universal contacts among ijtihad institutions across the world so that Islamic constitutions find the best solutions to common legal problems. For example, scholars from across the Islamic world can periodically meet to exchange ideas, examine new legal methods, and review specific substantive laws made in Islamic constitutions. Muslim judges can similarly congregate in regional and global seminars to discuss judicial techniques, application principles, and the general role of the judiciary in the development of fiqh. Such periodic regional and global contacts must be developed even among state legislatures so that common techniques of law-making are developed through consensus and consultation – the two cardinal principles of the Basic Code. Universal contacts among ijtihad institutions of Islamic constitutions do not aim at creating a single, monolithic legal system binding on all Muslims. Therefore, these contacts are not designed to establish a global Islamic legislature or a grand council of scholars that would rule the Islamic world with one voice. Formal ijtihad institutions at the regional level may be established to generate unified jurisprudence among like-minded Islamic constitutions. Even regional ijtihad institutions, however, may fail because Muslim communities prefer diversity and pluralism to any notion of dictated regionalism or universality. Contemporary ijtihad would be most effective if universal contacts among ijtihad institutions are informal and educational. Lawmakers, judges, and scholars from across the Islamic world, as well as from other legal systems, meet each other in a spirit of comparative law, deepening their learning of Islamic and non-Islamic legal systems. Borrowing from non-Islamic legal systems is permissible, provided the borrowed laws are compatible with the Basic Code. Even divergent laws within the Islamic world can be compared on the fundamental assumption that Islamic state institutions have exercised good-faith efforts (juhd) in developing new legal methods and substantive laws. Muslim jurists understand the need to develop uniform laws across Islamic constitutions, but they also appreciate the force of local customs, as well as the validity of plural interpretations of the Basic Code. Most importantly, they construct Islamic fiqh that participates in the enforcement of universal values, establishing connections between Islamic civilization and the rest of the world. 140

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Islamic Constitutionalism

Vulnerable Constitutions Secular constitutions designed to preempt the supremacy of the Basic Code are potentially unstable and vulnerable to social discord, particularly in states in which the population is overwhelmingly Muslim. Turkey stands out as the prime example of such a state. Turkey is the successor state to the Ottoman Empire, which ruled over vast Muslim territories, including the Arab region, for several centuries. It was also the seat of caliphate, which was abolished at the time the Empire was dissolved. Blaming adherence to Islam as the reason for the Empire’s tardy development, the secular forces in Turkey banned the Islamic way of life and decided to imitate the progressive ways of Europe, including secularism.10 More extreme restrictions on Islamic practices have been gradually relaxed. However, the Turkish Constitution is a unique text among Muslim nations, embracing an immutable form of secularism. Article 2 of the Turkish Constitution provides that: The Republic of Turkey is a democratic, secular, and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Atatürk, and based on the fundamental tenets set forth in the Preamble.

These characteristics of the Republic of Turkey have been made immutable under Article 4 of the Constitution, under which Article 2 cannot be amended or an amendment proposed. Most characteristics of the Republic mentioned in Article 2 are fairly general and do not bind the future of the state in any serious way. The conceptions of democracy, social state, public peace, national solidarity, and justice are fairly flexible. The rule of law commitment is critical for the functionality of any legal order and its restatement in the Constitution does little to ensure that successive governments will always enforce laws in good faith. From an Islamic viewpoint, however, the immutable secular provision of Article 2 raises a number of concerns. This means that Turkey, as a nation-state, could never in the future adopt Islam as the official state religion, as have numerous Muslim states in the region. At a theoretical level, immutable constitutions imitate immutable divine texts. As discussed in this book, the Qur’an is an immutable divine text, and no human agency is empowered to amend its text. Even a proposal to amend the Qur’an would raise a storm in the Muslim world. To elevate a human text to immutability is tantamount to 141

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Contemporary Ijtihad imposing the political choices of the drafters of the Constitution over all future generations in Turkey. The evolution of societies rarely respects political choices that a past generation imposes on future generations. Suppose that the 1876 Ottoman Constitution, discussed above, had made the caliphate an immutable institution. The secular forces that overthrew imperial institutions could not possibly have been prevented from scrapping the immutable provisions of the Ottoman Constitution. Contrast the Turkish secular provision with a non-amendable provision in the Iranian Constitution. Article 177 declares that the “Islamic character of the political system” and “the basis of all the rules and regulations according to Islamic criteria,” among other things, cannot be altered. Iran is also imposing the political choices of the drafters of the Constitution on future generations. However, it appears that the political system in Iran can be changed if the new system is Islamic. What is prohibited under the Constitution is the alteration of the “Islamic character” of the political system and not the political system itself. Even so, future generations should be free to rethink political choices and adopt the most appropriate system. The other unalterable provision of the Iranian Constitution, which mandates that the basis of all the rules and regulations be in accordance with Islamic criteria, secures the supremacy of the Basic Code. This non-amendable provision commits the future of Iran to the submission principle, a divine principle, which requires that Muslims conduct life in accordance with the laws of the Basic Code. This nonamendable provision of the Iranian Constitution is not a man-made provision but the essence of the religion of Islam. While this provision is fully compatible with the Basic Code, and while Islam requires Muslims to make long-term commitments to the Basic Code, a state constitution should refrain from introducing non-amendable provisions. A national commitment to the Basic Code cannot be secured by means of a constitution. It is deeply embedded in the national culture. It is highly unlikely that an entire nation would repudiate Islam as its religion but it is possible, as it happened in the Ottoman Empire, that a specific generation of Muslims would adopt a secular constitution. Future generations of Muslims ought to be free, as they are not in either Turkey or Iran, to make political and normative choices for themselves. Non-amendable provisions of the constitution do little but invite opposition and distort the political process. Such provisions also weaken the state, instead of strengthening it. The hold 142

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Islamic Constitutionalism of the secular armed forces in Turkey or that of the clergy in Iran is co-equated with the non-amendable provisions of respective constitutions. The Turkish military has intervened or threatens to intervene when it determines that religious forces are challenging state secularism. Likewise, the Iranian clergy resorts to suppression when democratic forces in Iran demand change in the political process. Most constitutions in the world are not easily amendable. Hard to amend constitutions safeguard the legal order against transient swings in public sentiments. But the immutability of a constitution, or any of its provisions, elevates the constitution to the status of a divine text. No constitution is divine or immutable. Constitutions that place no restrictions on amendments tend to be more durable, even though no constitution is immune from revolutions. In Muslim states particularly, immutable constitutions offend the teachings of the Basic Code, which leaves open the ways and means of social organization. As discussed above, the Basic Code does not mandate any one particular political system simply because no political system can last forever. In the evolution of human civilization, future generations should be free to restructure social, economic, and political institutions. Even in matters of religion, each individual, each nation, and each generation has a separate account with God. Islam does not transfer the sins of one generation to the next, nor does it offer a blanket salvation for all. Personal and national accountability is the principle of Islamic law.

Threat of Familism Familism threatens Islamic constitutionalism and the rule of law in many Muslim nations. Familism refers to cultural mores under which the good of the family takes priority over community welfare.11 The Basic Code instructs Muslims to take care of family members. Familism, which the Basic Code does not sanction, is a firm political institution that undermines democracy and other egalitarian forms of government. The first four caliphs were members of the Prophet’s family. The Shias have been profoundly committed to the Prophet’s daughter, Fatima, and her descendants. For centuries, Muslim empires were founded on families and dynasties. Even today, Jordan, Morocco, Saudi Arabia, and the Gulf States have established family-based constitutional structures. In quasi-democratic states, such as Pakistan, sons and daughters are groomed to succeed fathers and mothers. 143

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Contemporary Ijtihad Although dynastic governments periodically surface in different parts of the world, including the United States, Muslim nations seem to garner a better share of familism. Family is a significant institution of Islam. Muslims must resist disintegration of the family. However, an unexamined commitment to the family weakens other relations needed to construct orderly and successful communities. Families should not promote their interests at the expense of the community, nor should they violate laws to benefit members of the family. It is common for influential families to find high government jobs for their sons and daughters who lack competitive merit. Sometimes, influential families bend laws to seek undeserved benefits for their kith and kin. At the lower social end, poor and powerless families have difficulty in pulling out of destitution. While mutual support in poor families is critical for facing adversity, mutual collaboration in rich and influential families perpetuates social hierarchy and undeserved advantages. Islamic law does not allow an unbridgeable gap between rich and poor families. Islamic constitutions must provide a level playing field in areas of education, jobs, and other social goods. While an Islamic constitution must protect against the hegemony of rich and influential families, it must provide procedures to discourage dynastic successions. No family is more sacred than any other family. Each Muslim is judged for his or her piety. This is the clear principle of the Basic Code: O human beings! We created you from a single [pair] of a male and a female, and made you into nations and tribes [extended families], that you may know each other. Verily the noblest among you in the sight of Allah is [he who is] the best in conduct. And Allah is Knower, Aware. (49:13)

Accordingly, Islamic constitutionalism cannot presume that the members of a particular family, regardless of personal effort, are inherently superior to the rest of the community. After fourteen centuries, invoking genetic kinship with the Prophet for seeking or perpetuating family rule over a Muslim nation is dubious, if not outright fraudulent. Muslims must reject such claims to power. If a family traces its genes to the Prophet, it should devote itself to serving the poor, as did the Prophet, and not claim the right to govern them or enjoy opulence funded with public monies.

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Islamic Constitutionalism

Notes 1. Charles Howard Mcllwain, Constitutionalism: Ancient and Modern (Clark, NJ: The Lawbook Exchange, 2005), p. 17. 2. Ali Hayder Mithat, The Life of Midhat Pasha (London: J. Murray, 1903). 3. Raja Bahlul, “Is Constitutionalism Compatible with Islam?,” in Pietro Costa, Danilo Zolo, and Raja Bahlul (eds), The Rule of Law History, Theory and Criticism (New York: Springer, 2007), pp. 515–42. See also Noah Feldman, The Fall and Rise of the Islamic State (Princeton, NJ: Princeton University Press, 2008). 4. Madawi Al-Rasheed, A History of Saudi Arabia (Cambridge: Cambridge University Press, 2002), p. 172. 5. Syed Abul ’Ala Maudoodi, The Islamic Law and Constitution (North Haledon, NJ: Islamic Publications, 1960). 6. For a critique of God’s sovereignty as a constitutional principle and its potential abuses, see Muhammad Said Al-Ashmawy, Islam and Political Order (Washington, DC: Council for Research in Values and Philosophy, 1994), pp. 23–30. 7. Nikki Keddie, Roots and Results of Revolution (New Haven, CT: Yale University Press, 2003). 8. L. Ali Khan, A Theory of Universal Democracy (London: Kluwer International, 2006). 9. Nasim A. Jawed, Islam’s Political Culture (Austin, TX: University of Texas Press, 1999), p. 79. 10. Niyazi Berkes, The Development of Secularism in Turkey (New York: Taylor and Francis, 1999), pp. 57–8. 11. Ibn Khaldun, Al-Muqaddimah, trans. Franz Rosenthal, The Muqaddimah (Princeton, NJ: Princeton University Press, 1967).

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5

Covenants with Non-Muslims

Millions of non-Muslims live as permanent residents in Muslim states. Jews, Christians, Zoroastrians, Hindus, Buddhists, and nonbelievers who subscribe to no God-based belief systems are, and have been, permanent residents of Muslim states during all time periods. Hundreds of thousands of non-Muslims live in Muslim states as migrant workers. Since the dawn of Islam in the seventh century, non-Muslim faith communities have lived in close proximity with Muslim communities, sharing language, culture, and natural and economic resources. Law-based efforts to offer fair and dignified treatment to non-Muslims have been an integral part of Islamic civilization. Every legal system, out of sheer necessity, must design standards of treatment for all communities under its jurisdiction, for no community is above or outside the realm of law. In the Western legal tradition, the distinction between citizens and aliens, with different sets of rights and obligations, continues to inform modern legal systems. Some legal systems practice blatant discrimination against aliens, legal and illegal; some, despite a commitment to equal protection of laws, discriminate in practice against racial and indigenous communities; some offer varying degrees of formal equality to resident communities. The modern human rights movement, in which many Muslim states are actively engaged as proponents, is dedicated to removing unacceptable forms of inequality that politically vulnerable communities face in contemporary nation-states. Islamic law furnishes the concept of covenant that governs relations between Muslims and non-Muslims; and more importantly, under contemporary ijtihad, relations between non-Muslims and the Islamic state. Generally, the Qur’an mandates that every covenant be performed, particularly the covenants undertaken to protect the rights of the vulnerable (17:34). Aahad, aaqd, and mithaq, the words of the Qur’an revealed in diverse contexts, mean covenant, promise, or contract (2:27; 5:1). “Fulfill all promises” is the fundamental norm of the Basic Code (5:1). In its various manifestations, the law of covenants is the paradigmatic principle of Islamic law. It is a legal 146

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Covenants with Non-Muslims mechanism to construct numerous legal relationships, rights, and obligations, between persons and between persons and institutions. God himself enters into covenants with various prophets and religious communities and warns the latter not to breach the covenants they make (2:83; 3:81). The concept of a covenant with non-Muslims is firmly anchored in the law and spirit of the Covenant of Medina, a Covenant that the Prophet himself signed in the year 622 to protect the lives, properties, and the freedom of religion of Jews and other non-Muslims, the permanent residents of the city-state of Medina. The Covenant of Medina was a negotiated agreement, similar to a modern constitution or treaty, and not a unilateral decree that a conqueror or a dictator imposes on subjugated communities. The Prophet proposed to sign the Covenant as the Prophet of God, but the non-Muslims refused to accept such a characterization as part of the text. The Prophet, despite some opposition from his companions within the Muslim community, withdrew the proposed characterization and signed the Covenant simply as the representative of Muslims. This episode, this rule of Sunnah, affirms the dignity of the Covenant with non-Muslim communities. The Covenant of Medina is part of the Sunnah. Its provisions establish the law of equal and fair treatment of non-Muslims residing in Muslim states. No law of dhimmis (a term for non-Muslims residing among Muslims) can violate the spirit of the Covenant of Medina. In most respects, any covenant with non-Muslims offers equal treatment to all faith communities, the People of the Book as well as non-believers, without discrimination. In other aspects, the Covenant confers special protections and rights on non-Muslims. It also imposes special obligations, parallel to those imposed on Muslims. These special protections, rights, and obligations, in addition to equal protection of the law, must always be consistent with the Basic Code. No Muslim ruler has any inherent power to impose an oppressive, humiliating, or unjust covenant on non-Muslim communities residing in Muslim states. Competing historical narratives describe the treatment of nonMuslims under the sovereignty of Muslim empires. Positive accounts highlight tolerance, dignity, and generosity with which early Muslim rulers, unlike Persians and Romans, treated the peoples of conquered territories. Most often, Muslim rulers entered into formal agreements with non-Muslims, thus providing a legal basis for mutual understandings, rights, and obligations. In 638, after Muslim armies 147

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Contemporary Ijtihad defeated the Roman–Byzantine Empire in the battle of Yarmouk, Caliph Omar, following the Prophet Muhammad’s covenant-making tradition, presented a covenant to the Christians. The covenant states that Caliph Omar, “the servant of God,” offers protection to the people of Ayliya (the name for Jerusalem): The protection is for their lives and properties, their churches, chapels, and crosses, their sick and healthy, and for their fellow-believers. Their churches shall not be used for habitation, or demolished. There shall be no compulsion on them in matters of religion, nor shall any one of them suffer any injury on account of religion.

Ann Elizabeth Mayer writes that “contrary to Western images of Muslim conquerors presenting the conquered peoples with a choice of conversion to Islam or the sword, Christians and Jews were allowed to persist in their beliefs.”1 Negative accounts accentuate tales of discrimination against nonMuslims. Some Jewish historians, including Bernard Lewis and Bat Ye’or, catalogue a number of humiliating, unfair, and discriminatory obligations that Muslim rulers imposed on non-Muslims residing in various Islamic states.2 Some Israeli scholars even question and revise historical narratives of “the Golden Age of Jewish Culture” under Muslim sovereignty of the Iberian Peninsula. Some Christian historians are equally disparaging in their negative accounts, while some conclude that the treatment of non-Muslims has been uneven, dependent upon a legion of social and geopolitical realities. Under the Ottoman Empire, for example, Jews and Christians were treated fairly in the early centuries. However, the Ottoman treatment of Balkan Orthodox Christians during the eighteenth century turned abusive and oppressive to the extent that Balkan Christians sought liberation from Ottoman rule with the support of neighboring states, Austria and Russia. Historians also single out the Mughal Emperor Aurangzeb for practicing intolerance against non-Muslims in India, although the extent of intolerance is controversial and the illtreatment was inseparably tied to acts of rebellion in some Hindu communities against the Mughal Empire. In studying intolerance against non-Muslims, the conduct of rulers must never be confused with principles of the Basic Code. The Basic Code protects the life, property, liberty, and dignity of nonMuslim communities residing in the Islamic state. Yet some Muslim governments falter and fail in their obligations. Episodes of social prejudice, bigotry, and violence against non-Muslims cannot be dis148

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Covenants with Non-Muslims counted or explained away. Periodically, tensions with non-Muslims residing in Muslim states rise due to complex local, regional, and global concerns. Sometimes, prejudice against specific non-Muslim communities is anchored in geopolitical events. The establishment and gradual expansion of Israel over Palestinian lands has enraged the entire Muslim world, impairing goodwill between Muslims and Jews. Whenever Western armed forces invade Muslim states, such as Iraq and Afghanistan, prejudice against Christian communities mounts on an overbroad, and sometimes unjustifiable, assumption that local Christians support Western invasions. Likewise, stories of torture in American detention facilities, such as Guantanamo Bay, and stories of insult targeting the Prophet of Islam and the Qur’an inflame passions of retaliation. These explanations, however, do not justify or condone aggregative discrimination or assaults against non-Muslims residing in Muslim states. Scapegoating or saddling entire non-Muslim communities with collective guilt is not part of Islamic law. Sometimes, social prejudice against non-Muslim communities is indigenous and has little to do with geopolitical events. It stems from ethnic, national, and tribal rivalries brewing in local history. Sometimes, narrow-minded governments ignore the plight of nonMuslims due to self-serving theocratic righteousness. Crimes against non-Muslims, including tourists, escalate when non-representative governments pursue domestic and foreign policies perceived to be anti-Islamic. Mistreatment of non-Muslims is a profound violation of the concept of covenant enshrined in the Basic Code. Discarding all forms of ill-treatment, the covenant with non-Muslims, founded on justice and mercy, opposes harmful discrimination, hostility, and violence against all religious communities, including non-believers. As discussed throughout this book, Islamic law is highly sensitive to human diversity, because Islam is not tied to a single ethnicity, race, color, nation, language, or culture. Islam is a universal religion and Muslim states are rarely religiously homogeneous. The Qur’an directs Muslims to establish bridges of understanding between various cultures, civilizations, and religions. The Qur’an (49:13) reminds mankind that they share one origin; they are brothers and sisters; they were made diverse nations that they may know and learn from each other. The Qur’an (2:109) also directs Muslims to exercise forgiveness and mercy, to remove past grievances and excesses against those with bad intentions toward Muslims. Founded on these bases, Islamic law, derived from the Basic Code, preserves mutual 149

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Contemporary Ijtihad respect, understanding, and tolerance between various cultures and religions.

Immutable Rights The rights of non-Muslims living in Islamic states are immutable, secured in the Basic Code. No Muslim jurist, no Muslim government, and no Muslim person can undermine these rights, because that would be tantamount to violating the Basic Code. The rights secured in a secular constitution can be taken away through amendment, interpretation, and bad faith enforcement. However, such legal strategies are unavailable with respect to the Basic Code. No Muslim government can amend the Qur’an, which grants protection to non-Muslims, nor can it amend the Sunnah, which protects property rights of non-Muslims. Treating non-Muslims with fairness and dignity is not an act of charity, or altruism, or generosity, it is an obligation, it is part of Islamic faith, the same faith that obligates Muslims to say daily prayers, fast during the month of Ramadhan, and give zakah from surplus annual savings. The proof of law is not in its existence in a book, but in its enforcement in reality. Although Islamic history is far from perfect, gross violations of the Basic Code with respect to the rights of nonMuslims have been few and far between. History demonstrates that under Muslim empires, which collectively lasted for more than a thousand years, though breaches did occur, non-Muslims were not enslaved, forced out of their homes, deprived of their lands and personal properties, or arbitrarily massacred. One rancid spot in Islamic history is the alleged genocide of Armenians in the early part of the twentieth century. Turkey contests the allegations, because the genocide of a nonMuslim community residing in a Muslim state is the ultimate repudiation of Islam and the Basic Code. Note, however, that the alleged genocide occurred as the Ottoman Empire, associated with traditional Islam, was in the process of dissolution and a secular Turkey, under the ideological leadership of the Young Turks, was in the making. The forces of narrow nationalism, Turkification and Turkish purity, and strong statism were the defining elements of the Young Turks’ ideology. The Basic Code does not endorse obsessive nationalism, ethnic purity, or strong statism. The Young Turks movement was an unfortunate departure from the principles of the Basic Code. Even if the Armenian massacres do not fall within the 150

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Covenants with Non-Muslims technical definition of genocide, Turkey, as a Muslim state, now that it is relaxing its opposition to traditional Islam, must accept responsibility, without conditions, for not only failing to protect a non-Muslim minority but inflicting unbearable harm. The Basic Code would allow the Armenians to demand just compensation for the loss of life and property. The immutable rights of non-Muslims are part of the law of diversity that the Basic Code preserves and promotes. And because diversity is an indispensable dimension of universal Islam, a common, normative ground is necessary upon which laws and customs are instituted. Nations establish constitutions, written and unwritten, to be the supreme law of the land. Modern Muslim states also subscribe to constitutions. However, as explained in Chapter 4, the Basic Code is the supreme normative source of Islamic law, superior even to national constitutions. Just as secular states do not exempt Muslims from the reach of the constitution, Muslim states do not exempt non-Muslims from the reach of the Basic Code. And just as Muslims live under secular constitutions of non-Muslim states, non-Muslims have similar obligations to live under commandments of the Basic Code. However, non-Muslims are under no obligation to comply with all the duties that the Basic Code imposes on Muslims. Just as secular states do not allow treason or forceful overthrow of the constitution, Islamic law does not allow non-Muslims to challenge or forcibly overthrow the rule of the Basic Code. The concept of the covenant forges the legal relationship between non-Muslims and the Islamic state. Note, the availability of the covenant is not restricted to Jews and Christians. Even discrimination among different non-Muslim communities is a violation of the Basic Code. The reference to the People of the Book in the Qur’an, which has been interpreted to mean Jews and Christians, does not allow the Islamic state to withhold immutable rights from other non-Muslims. The covenant with non-Muslims lays the foundation of laws that specifically govern non-Muslim communities living permanently in an Islamic State. The covenant respects and allows the practice of all religions, beliefs, and manifestations of worship, provided nonMuslims do not rebel against the Basic Code. Most important, the covenant protects religious minorities from the tyranny of the majority, popular opinion, and an unjust government. Each successive government is bound to carry out the covenant in good faith. The following analysis clarifies the meaning of a covenant with 151

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Contemporary Ijtihad non-Muslims, categories of covenant, and its customary contents. Most important, the covenant is protected under the Basic Code. It cannot be arbitrarily revoked or enforced in bad faith, because the rights and obligations of non-Muslims living in or visiting a Muslim state are not dependent on the arbitrary will of the ruler, nor are they dependent on sentiments of the majority. Some provisions of the covenant, such as the right to life and the right to freely practice one’s faith, are not subject to any expedient derogation. The various categories of covenant reflect the realities of relationships that nonMuslims strike with the Muslim state. Visitors and migrant workers, for example, have a different set of rights and obligations than permanent residents. In each case the notion of contract is operational, but the two covenants are not the same. The categories of covenants, discussed below, are aimed at achieving a fair distribution of rights and duties. The covenant enhances social harmony by means of establishing mutual expectations; it eradicates hate crimes against religious communities and sustains a graceful environment, conducive to the institution of civilized nations.

Personal Law Personal law is the most efficacious institution for the recognition and enforcement of dignity of religion, an immutable right that Islamic law allocates to non-Muslims. Marriage, divorce, inheritance, custody of children, and numerous other family matters have traditionally been within the domain of personal law that varied from one religious community to another.3 Islamic law repudiates the notion that all communities should be subject to the same legal regime in personal matters. The British rule in India respected the institution of personal law that the Muslim empires had instituted in India for hundreds of years, under which Hindus and other nonMuslim communities were free to conduct their family matters under their own customs. No Muslim ruler has any authority under the Basic Code to subject non-Muslims to the family and inheritance laws of Islam. In some cases, non-Muslim individuals, however, may retain the discretion to opt in or opt out of the uniform family law of the Muslim state and conduct family matters either in accordance with uniform laws or their own religious customs. This freedom to choose personal law is non-existent in most secular legal systems, even though tough common law countries recognize limited personal law rights. 152

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Covenants with Non-Muslims The respect for personal law of non-Muslim communities is such a profound value of Islam that in ruling India for nearly a thousand years, Muslim rulers did not effectively outlaw the ancient Hindu custom of sati under which the widow was expected to burn herself on her husband’s funeral pyre. Muslim rulers disapproved of the sati custom and interposed certain procedural restrictions, such as seeking official assurance that the widow was making a voluntary decision, and no force was used to compel her to burn herself, but they could not muster the legal courage for an outright ban. The British colonialists, though they respected most Hindu customs, prohibited the custom under the Sati Regulation Act of 1829. During the classical era, Caliph Omar Ibn Abd Al Aziz (d. 720) asked the renowned scholar Al-Hassan Al-Basri (d. 728) for a fatwa regarding permitting non-Muslims, residing in the Islamic State, to marry persons within the prohibited degrees of consanguinity under Islamic law. Al-Hassan replied: “You have only to follow what your predecessors did. You are not to deviate or to innovate [by imposing Islamic laws on non-Muslims].”4 Al-Basri’s fatwa, in essence, commands the caliph to refrain from interfering with non-Muslim marriage norms, in spite of the abhorrent nature of these marriages under Islamic law.5 The concept of personal law is founded on diversity. By contrast, the secular model of the modern nation-state imposes one and the same family law on all residents, ignoring varying religious conceptions of family, marriage, inheritance, and other related matters. While the secular model assures equality under the same laws, the personal law model is essentially pluralistic. Under the personal law model, the state acts as a neutral party and facilitates the enforcement of personal law. Contemporary criticisms highlight uneven gender-based rights and obligations under personal law. Turkey, in its attempt to depart from the Shariah, has abolished the institution of personal law. However, most contemporary Muslim states continue to recognize personal law of various Muslim madhabs, as well as that of non-Muslim communities. Even some non-Muslim states, including Israel, India, and South Africa, recognize the personal law of various religious communities. The abolition of personal law is not part of contemporary ijtihad since many Muslim constitutions recognize the right of non-Muslim communities to forge and resolve family matters according to their own religious laws and traditions. Non-Muslim communities may 153

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Contemporary Ijtihad even establish their own courts to settle disputes among individuals who adhere to the same religion, as long as disputes are not related to public order. Because personal law is closely associated with, if not a fundamental part of, one’s religion, Islamic law protects the diversity of personal law even if it offends the moral and religious norms of Islam. In Egypt, Christian and Jewish courts flourished under Islamic governments. Contrast these freedoms available under classical fiqh to the laws of a secular state, which, under the pretext of equal protection of law, would not tolerate distinct communities having their own laws of inheritance, marriage and divorce, and custody and maintenance of children. Centralization of norms is the driving force of the secular state, and decentralization of intimate lives to communities is the principle of Islamic law.

Classical Covenants Under classical fiqh, the particulars of the covenant vary with the relevant status of non-Muslims. Dhimmis or permanent residents of Islamic states enter into a permanent, inter-generational covenant. Mostamen, or visitors, enter into a temporary contract that, in contemporary language, would translate into a work permit, visitor visa, or other visiting permissions granted to non-Muslims. Harbis are non-Muslims who maintain no contractual relationship with the Islamic state. In external scholarship, these categories have been confused, their meaning distorted, and rights and obligations related to each category misunderstood. Although modern states, particularly non-Arab, Muslim states, may not use classical fiqh labels to describe non-Muslims these categories are crucial for understanding rights and obligations of non-Muslims under Islamic law. Under contemporary ijtihad, these categories must be understood in light of universal human rights treaties that Muslim states have signed among themselves. These treaties reaffirm the customary imperatives of the covenant. The Cairo Declaration on Human Rights in Islam, adopted in 1990 by the member states of the OIC, captures contemporary understandings of the covenant in the following words: All human beings form one family whose members are united by submission to God and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the grounds of race, colour, language, sex, religious belief, political affiliation, social status or other considerations. 154

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Covenants with Non-Muslims This human rights restatement is a cardinal principle of the Qur’an under which “all human beings constitute a single community” (2:213).

Dhimmi Contracts The term dhimmi contracts (aqd dhimmah) refer to permanent residence contracts between non-Muslims and Muslims. More specifically, a dhimmi contract is a legally enforceable agreement, and not just a moral compact, between a non-Muslim community or a non-Muslim individual and the Islamic state. Individuals and communities falling under the dhimmi category, generally speaking, owe the same duties and enjoy the same rights as Muslims residing in the Islamic state. For the most part, the distinction between Muslims and non-Muslims is legally irrelevant. All residents of the Islamic state are entitled to, and protected under, the principle of equal treatment. For example, the criminal justice rights of a fair trial, conviction upon credible evidence, just punishment, and other rights cannot be denied on the basis of religion. However, there are a number of exceptions to the principle of equal treatment. Dhimmis are permanent residents of the Islamic state. Under contemporary legal language, dhimmis are described as non-Muslim citizens. Majid Khadduri engages in innovative linguistic analysis to assert that the covenant of dhimmah means “a compact which the believer agrees to respect, the violation of which makes him liable to dhamm [blame/insult].”6 According to this linguistic interpretation, non-Muslims are dhimmis because they can be potentially insulted or blamed for their breaches of the covenant. Recently, Professor Izzi Dien has corrected this dubious linguistic analysis to show that the word dhimmah as used in classical fiqh refers to responsibility or legal capacity, and not blame or insult.7 Dhimmi contracts could be explicit or implied. Non-Muslim communities living in Islamic states from time immemorial, such as Copt Christians in Egypt, and Hindus and Buddhists in Indonesia, may not have signed an explicit covenant. In such cases, a covenant protecting the customary rights and protections of non-Muslims is implied. Peaceful non-Muslim communities are entitled to the covenant under the Basic Code. The Islamic state cannot refuse to give them customary rights and protections on the theory that no formal covenant exists between the state and the non-Muslim community. Furthermore, if social conditions change, non-Muslim communities 155

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Contemporary Ijtihad have every right to organize themselves and demand more beneficial agreements. Dhimmi contracts are also available to non-Muslim individuals who seek permanent residence in the Islamic state. The Islamic state cannot refuse such a request simply because the applicant is a non-Muslim. However, a non-Muslim individual seeking permanent residence is required to sign an explicit agreement that he or she will protect and defend the Basic Code, just as naturalized citizens in the United States vow to defend the secular constitution. In most cases, consistent with contemporary international law and customary practices, the power to grant citizenship to a non-Muslim applicant is vested in the executive branch of government, which signs the covenant with non-Muslim individuals. However, the Islamic state may codify the customary rights and protections of the covenant for the guidance of government officials who process applications for permanent residence. In some cases, a non-Muslim living in an Islamic state may not formally apply for permanent residence. Even such a person is entitled to the rights and protections of the covenant, if the person owns real estate, pays taxes, and abides by the laws of the Islamic state. Historically, the Islamic state was open to all Muslims and no Muslim was required to sign an agreement because he or she owed the duties and enjoyed the rights of every other Muslim. Under the contemporary concept of the nation-state, however, even Muslims cannot freely choose to live in any Muslim state. They are required to apply for permanent residence, which may be refused.

Aman Contracts Non-Muslims may visit an Islamic state under aman (safety) contracts. An aman contract is a reciprocal contract between the Islamic state and the visitor that specifies duties and obligations of the parties, including the visitor’s right to security for himself and his property and the visitor’s obligations to respect and uphold the law of the land. Under contemporary ijtihad, aman contracts are designated as entry permits or visit visas. Visas issued to non-Muslim students, business persons, temporary workers, and others fall under the scope of aman contracts. The aman contract commands visitors not to violate the laws of the Islamic state but, of course, visitors are under no obligation to practice the faith of Islam. In return, the Islamic state guarantees visitors’ security, dignity, and fundamental human rights. Attacks on visitors have occurred in recent years, and 156

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Covenants with Non-Muslims such attacks violate Islamic law. Lawfully issued aman contracts must be honored, and residents of the host state are under obligations of Islamic law to offer security to visitors, even if visitors are nationals of a state at war with the Muslim state. Aman contracts are founded on the principle of international amity and reciprocity between nations. On the basis of reciprocity, Muslim visitors, students, businessmen, and others who enter nonMuslim states are entitled to aman contracts. Muslims granted such contracts are under a similar obligation to respect and uphold laws of the host state, while the host state is under an obligation to guarantee their rights, including safety rights. If a Muslim believes that he cannot respect and uphold laws of the non-Islamic state, because they contradict Islamic law or otherwise, he ought to depart the host state immediately. When Muslims under aman contracts commit crimes or other acts of violence against the host state, they not only violate the Basic Code in general, but are subject to the toughest punishments under the Islamic law of Hirabah. Muhammad Al-Shaybani (749–805), a founding father of international law, rightly concludes that aman contracts are limited in scope and duration, and thus distinguishable from dhimmi contracts.8 Aman contracts are typically limited to a short and specific duration of time, though such contracts are renewable. Scholars disagree over the duration of the aman contract. Some restrict it to less than a year while some extend it up to ten years. The duration is important because aman contracts granted for several years deprive the Muslim state from collecting taxes. It is unfair for non-Muslims to draw benefits without sharing tax burdens. Visitors enjoy the same protection rights as do dhimmi with respect to harm that Muslims or the Islamic state may cause to them. However, because they are not citizens of the Islamic state, the Islamic state does not owe them protection rights against third states. The home state of visitors carries primary responsibility for their protection against third states. However, there are exceptions to the non-protection rule: aman contracts may stipulate that visitors are entitled to protection rights, thus binding Muslims and the Islamic state. Stateless visitors are automatically entitled to protection rights as well because otherwise no state would likely protect them. Because rights and obligations under aman contracts are limited as compared with rights and obligations under dhimmi contracts, equity demands and classical fiqh prescribes that non-Muslims be given the dhimmi status if they reside for a long period of time in the Islamic state. Classical fiqh recognizes two distinct types of aman contracts: 157

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Contemporary Ijtihad individual and collective. The distinction between the two rests on who exercises the power to grant the contract. A Muslim, as a private citizen of the Islamic state, enjoys the power to grant an aman contract to one or more non-Muslim visitors, provided that the number of visitors is limited. An individual aman contract is enforceable if the non-Muslim visitor poses no harm to the Islamic state or any Muslims within the state. A collective aman contract allows large groups of non-Muslims to visit the Islamic state; for example, thousands of Sikhs visit their holy places located in Pakistan. In such cases, the government is a more appropriate body to issue the aman contract. Historically, even governors of provinces and mayors of cities could issue aman contracts to a large number of non-Muslims. Under contemporary ijtihad, Muslim individuals have lost the power to invite non-Muslim visitors on personal aman contracts, even though they can request that the government issue such contracts. Employers in a Muslim state may need qualified employees from nonMuslim states, and they can petition the government for the issuance of work permits. In fact, employers may themselves interview and select qualified non-Muslims and petition the Muslim government for their visas. As a general principle, however, it is no longer possible to allow Muslim individuals, with no official capacity, or even mayors of cities, the power to grant aman contracts. Concerns for national security, the logistics of international travel, and numerous other developments have concentrated the power to issue aman contracts in governments. In many cases, the government may need to investigate background information and possible criminal record of applicants to determine whether they are a security threat. Visitors are frequently required to establish their identity, undergo medical tests, and pay a fee for the issuance of entry visas or temporary work permits. Under some circumstances, aman contracts may be revoked. Revocation is lawful if the visitor violates the aman contract or engages in unlawful behavior. Under the Qur’an (8:58), parties to an aman contract may rescind the contract if there is substantial fear of war, security concerns, or betrayal. However, aman contracts, particularly work permits, may not be revoked for minor reasons, such as violation of traffic laws. Aman contracts may restrict the access of non-Muslims to designated Muslim holy places. Some Muslim states may restrict the freedom of movement of visiting non-Muslims due to security or religious reasons. For example, aman contracts do not allow non-Muslims to enter the sacred cities of Mecca and Medina. However, overly restrictive aman contracts may violate the 158

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Covenants with Non-Muslims fundamental rights of non-Muslims. Any undue restrictions on the repatriation of monies that non-Muslims earn in the Islamic state to support their families left behind would be hard to defend under the Basic Code. Likewise, aman contracts cannot be used as a means to conceal forced labor, servitude, or other violations of workers’ rights under international law and human rights treaties.

Harbis without Contracts Non-Muslims who are neither dhimmis nor holders of aman contracts are known as harbis. Harbis are people without a contract with the Islamic state. Although the term harbi is derived from the word harb, which means war, it only suggests that non-Muslims who fall under this category might be at war with the Islamic state. However, the term harbi is not intended to classify individuals without a contract as an enemy of Islam. In a barbaric world in which war is legal and frequently waged to conquer people and appropriate their natural resources, as under Western colonialism, Islamic law rightfully presumes that non-Muslim nations are potential enemies. However, this presumption is invalid in the case of a nation or group of nations whose national character and history have been peaceful. If a nonMuslim state signs a peace treaty with an Islamic state, all residents of the non-Muslim state enjoy the benefits of the peace treaty. The peace treaty establishes the presumption of peace; it exempts the signatory state and its residents from the Islamic law of war. Universal peace, rather than perpetual war, is the normative objective of Islam. To maximize efforts to construct a peaceful world, the Qur’an (8:61) commands Muslims to incline toward peace if the enemies show an intention of peace-making. War, the exception to the general rule, is permitted to fight oppression and occupation. (60:8–9). Contemporary ijtihad establishes a presumption of peace, even though Muslim states are and ought to be vigilant against potential and real enemies. Since almost all Muslim states have signed the United Nations Charter, which outlaws aggressive war, the classical meaning of dar al-harb has acquired a new meaning. By the force of the United Nations Charter and numerous other regional and global treaties of commerce and friendship, a legal presumption of peace has been established with respect to the non-Muslims of the world. This presumption is operative until non-Muslim individuals or nations violate contemporary international laws of peace and wage war against a Muslim state. 159

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Contemporary Ijtihad A harbi without an aman contract owes no obligations to the Islamic state. However he enjoys a number of Islamic human rights, the most fundamental of which is the right to life. Nadia Yakoob and Aimen Mir assert that harbis without a contract can be killed without reason.9 This allegation is incompatible with the teachings of the Basic Code that commands Muslims not to kill anyone, including harbi, unjustly, to refrain from unjustified aggression, and to fulfill their obligations and covenants. Directions of the Qur’an (17:33–5) are clear: “Nor take life – which Allah has made sacred – except for just cause – and fulfill ‘every’ covenant, for ‘every’ covenant will be enquired into ‘on the Day of Reckoning.’ Give full measure when ye measure, and weigh with a balance that is straight; that is the most fitting and the most advantageous in the final determination.” These commandments not only prohibit unjust killings, but command Muslims to be fair in all matters. Another example of harbi rights under Islamic law is the right to asylum. The Islamic state, according to the Qur’an (9:6), is required to provide asylum for those who are unjustly threatened with aggression or persecution. In addition to providing asylum, the Basic Code mandates that the refugees be assisted in finding a place of security. According to the Basic Code, refugees cannot be given asylum and later returned to a place of insecurity. These rights of asylum and security offered to non-Muslims facing persecution have now been universalized for all the persecuted people of the world, including Muslims, through international law instruments including the Cairo Declaration on Human Rights in Islam (1990). Muslim states subscribe to refugee treaties and open their doors to receive refugees. The most current example of the right of asylum in Islam is demonstrated in the management of the influx of Iraqi refugees. Note that not all Iraqi refugees are Muslims. Exercising no distinction on the basis of religion, Syria granted asylum to more than one-and-half-million Iraqi refugees; Jordan granted asylum to close to a million; and Egypt granted refugee status to hundreds of thousands of Iraqis. Ironically, coalition forces, which actually attacked Iraq and were responsible for refugees, admitted only a limited number of Iraqi refugees.

Traditional Obligations No legal system grants rights without obligations, and no nation can function where citizens consume rights but refuse to honor obligations. Accordingly, Islamic law imposes obligations on non-Muslim 160

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Covenants with Non-Muslims residents of an Islamic state. As a general principle, the obligations of non-Muslims are the same as those of Muslims. Just as rights are granted to all citizens under the equal protection principle of the Basic Code, so are obligations structured under the equal obligation principle of the Basic Code. And just as there are exceptions to the equal grant of rights, so are there exceptions to the equal burden of obligations. The exceptions are designed not to place oppressive or additional burdens on non-Muslims, but to place burdens parallel to those on Muslims. The exceptions are the logical consequences of legal concepts, such as zakah, derived from the Basic Code. Tax Obligations Western scholars, and some Muslim writers, criticize special taxes that Islamic law imposes on non-Muslim communities. Nadia Yakoob and Aimen Mir, for example, lay the charge that nonMuslims confront law-based discrimination and, in support of their thesis, make the popular argument that non-Muslims are obligated to pay special taxes, particularly jizya, whereas Muslims are not.10 However, the authors, like many other critics, fail to probe the notions of equity embedded in the obligation of jizya. Before we discuss the notions of equity, bear in mind that jizya is imposed on non-Muslims who are permanent residents of an Islamic state. NonMuslim communities without the protection of the Islamic state are under no obligation to pay jizya. Non-Muslims who visit the Islamic state for a short period of time, though protected under Islamic law, are similarly exempt from jizya. Therefore, any assertion, that all non-Muslims, regardless of where they are located, are obligated to pay jizya or otherwise they would be killed, is inaccurate; and, no informed writer makes such false assertions. The word jizya is mentioned in the Qur’an only once. As a divine custom, the Qur’an frequently repeats in order to emphasize rights and obligations. For example, zakah, a mandatory tax imposed on Muslims, is mentioned more than thirty times. The word jizya appears in verse 9:29, a verse, which when read without a proper understanding of the Qur’an, can lead to great error and false criticism. Verse 9:29 provides: Fight those who do not believe in Allah or the Last Day, and do not forbid that Allah and His Messenger have forbidden, and do not follow the religion of Truth, [even if they are] of the People of the Book, until they pay jizya with a willing hand, and are acquiescent. 161

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Contemporary Ijtihad A superficial, non-contextual, and mischievous reading of the verse would mean a perpetual war in which all non-Muslims, including Jews and Christians, who do not embrace the listed beliefs of Islam are to be killed unless they agree to pay protection money and show complete subservience to the Islamic state. An interpretation such as this is contrary to the Qur’an, the Sunnah, fiqh, history, and common sense. No Muslim jurist or ruler has ever interpreted verse 9:29 as a license to kill non-Muslims who refuse to pay protection money. Unfortunately, some novice readers of the Qur’an reach a faulty conclusion that non-Muslims residing outside the Islamic state, in the absence of a treaty granting them security or refusing to pay jizya, could be killed with impunity. Jizya is not a war avoidance tax, nor is it a conversion avoidance tax. Jizya as a war avoidance tax would mean that non-Muslim communities, located anywhere in the world, are lawful targets for Muslim invasions, occupations, and even slaughters unless they pay jizya to avoid war. Jizya as a conversion avoidance tax would mean that Islam justifies, even encourages, aggressive wars to convert nonMuslims to Islam. In sum, this line of argument means that if nonMuslims refuse to convert to Islam they are given the option between death and taxes, and nothing is farther from the truth. Under the norms of Islamic law, which forbid aggressive wars and forced conversions, jizya is not a tax that non-Muslims are obligated to pay to avoid war or conversion to Islam. Jizya is closely related to the concept of dhimmah. It is, indeed, protection tax related to the covenant with non-Muslims. Imposed on non-Muslims who enjoy the protections of an Islamic state, including welfare rights, jizya is a quid pro quo for services that non-Muslims receive from the Islamic state. Jizya is related to zakah. Non-Muslims are obligated to pay jizya, but Muslims are not. However, Muslims are obligated to pay zakah, but non-Muslims are not. And just as poor Muslims are exempt from paying zakah, poor non-Muslims are exempt from paying jizya too. Mandatory zakah is a right of those in need, which the Islamic state may collect by force if necessary. Likewise, the Islamic state may impose sanctions for the non-payment of jizya, and may collect it by force. The equities between the two taxes are analogous. Yet the two taxes do not serve the same purpose. While non-Muslims pay jizya for receiving state protections, Muslims pay zakah to help the indigent. The Basic Code institutes an equitable tax system to foster social justice and eradicate negative feelings that wealth may gen162

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Covenants with Non-Muslims erate among the have-nots. Note that Islamic law protects individual wealth and property as the Qur’an informs Muslims that God rewards individuals with different degrees of affluence. Muslims do not resent, nor do they complain about, the wealthy, provided that their wealth is achieved through lawful means. However, no wealthy individual is immune from community obligations, partly because no wealth can be aggregated without the assistance of the community. The mandatory zakah supports the weak, the ill, the disabled, and the needy, and it is designed to counter negative feelings of envy and injustice. The mandatory jizya provides revenues for taking care of the needs of non-Muslims. It also confers dignity on non-Muslims, for no self-respecting community, Muslim or non-Muslim, would just want to take from others and give nothing in return. The critics miss another equitable dimension of jizya. In addition to paying zakah, Muslims are obligated to fight for the protection of Muslim communities against invasions, aggressions, and occupations. No such duty of jihad is imposed on non-Muslims. However, non-Muslims may voluntarily offer to fight for the protection of the Islamic state, in which case they are exempted from the payment of jizya. Non-Muslims are permitted to trade the obligation of jizya with a contractual obligation to fight for the state, a fight for which they themselves, as permanent residents, benefit by warding off external aggression and occupation. The concept of jizya laid the foundation of modern taxation. It clarified a simple thesis that a government cannot provide protection services to its citizens unless they pay taxes to the state treasury. Note that the relationship between state services and mandatory taxes was non-existent in the concept of zakah under which funds are transferred from the rich to the poor, sometimes without state intervention. Jizya also introduced the notion of progressive taxation under which a higher effective tax rate is placed on high incomes as compared with low incomes. During the era of the first four caliphs the notion of progressive taxation began to assume its rudimentary shape. The Basic Code does not prescribe any tax rate for jizya, as it does for zakah. Early Islamic jurists struggled over the question of a fair amount of jizya. Abu Hanifa, suggested a three-tier system of progressive taxation under which jizya was linked to the amount of wealth an individual possessed.11 He suggested that the richest pay an annual amount of 48 dirhams, the slightly less rich pay 24 dirhams, and everybody else pay 12 dirhams. In later centuries, Al-Mawardi (d. 1058) improved upon the idea of progressive taxation and offered 163

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Contemporary Ijtihad a more equitable sliding scale of jizya taxes, an idea incorporated in modern income tax codes.12 In developing the jurisprudence of jizya, Muslim jurists also cultivated the idea of tax exemptions. The poor, children, and women with no income were completely exempted from the payment of jizya, thus constructing a social floor below which charging taxes would be unjust. In some cases, indigent residents were entitled to the modern equivalent of tax credits. Instead of paying jizya to the state, qualified non-Muslims received welfare payments from the state treasury. Progressive Taxation The concept of progressive taxation is part of the Basis Code. The Qur’an furnishes the foundation principle without making any distinction on the basis of religion or otherwise. It states: “Let the man of affluent means spend according to his affluence: and let the man with restricted resources spend according to what Allah has given him. Allah imposes no [spending] burden on any person beyond what [the means] He has given him” (65:7). Note that this principle is not about jizya or zakah, it is about infaq (spending). It might be a leap of faith to argue that infaq mentioned in this verse mandates modern progressive taxation. The principle is addressed to all, not just to Muslims, and it appears to be a moral principle rather than a legal principle. Yet the jurisprudence of jizya developed in fiqh paves the way for modern taxation. The Qur’an furnishes the rationale for “progressive taxation” without distinction of race, religion, creed, or occupation. Everyone, except the destitute, supports the state with monetary contributions in proportion to their income. The similarities between jizya infrastructure (with its rationale for providing protection services, its nuances of sliding-scale tax rates, exemptions, and welfare payments) and modern tax codes in both Muslim and non-Muslims states are striking. A full discussion of tax obligations under contemporary Islamic law is beyond the scope of this book. Contemporary Muslim states levy taxes, including income tax, land tax, sales tax, import and export taxes, and numerous other taxes on all permanent residents, Muslims and non-Muslims. Most categories of contemporary taxes are borrowed from Western tax codes. Islamic law allows Muslim states to collect sufficient revenues to defend the state against external aggression and domestic unrest, build resources for national emergencies, and provide services essential for order and the safety 164

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Covenants with Non-Muslims of modern communities. However, Islamic law does not promote oppressive taxation that stifles entrepreneurial and commercial activity. Nor does it allow rulers to exact taxes for financing their own opulent lifestyle. Muslim jurists, judges, and legislatures are in the process of examining modern taxes and their compatibility with the Basic Code. Obligation to Respect Islam Non-Muslim communities residing in Muslim states are obligated to respect the fundamental beliefs and practices of Islam. This obligation needs a careful analysis since it raises critical and controversial issues involving free speech, freedom of religion, the right to change religion, and many other rights explicitly recognized in regional and global human rights treaties that Muslim states have ratified. Much of the criticism, and actual abuse, regarding the obligation to respect Islam is centered on blasphemy laws that Muslim states enforce to defend the dignity of the Qur’an and Prophet Muhammad. In Pakistan, for example, petty disputes with non-Muslims over land, rental property, and money morph into blasphemy crimes to intimidate poor and disadvantaged Christians, Hindus, and others. Local political upstarts and minor religious figures exploit blasphemy laws to seek popularity and build pro-Islamic credentials among uneducated voters. Because of the street pressure, local judges uphold convictions under blasphemy laws. Consequently, the obligation to respect Islam breeds discord between Muslims and non-Muslims, leading to discrimination, bigotry, and violence against non-Muslim communities. The obligation to respect Islam does not mean embracing the Islamic belief system. Non-Muslims are under no obligation to believe that the Qur’an is the Word of God or that Muhammad is a true prophet or the last prophet of God, for any such obligation runs counter to the Islamic principle of non-compulsion in matters of faith. The right to respect Islam means, for example, that non-Muslims living in a Muslim state must not, by their words or deeds, insult the Prophet or show disrespect for the Qur’an. Stomping or spitting on the Qur’an, burning or tearing up its pages, drawing cartoons of the Prophet, telling grimy jokes about the Qur’an and the Prophet, these and other inflammatory behaviors constitute violations of the obligation to respect Islam. Muslims find such insults intolerable. No concept of free speech or freedom of religion or artistic rights 165

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Contemporary Ijtihad persuades Muslims to tolerate gratuitous insults against the Qur’an and the Prophet in their own countries. Distinguish the obligation to respect Islam from the right to engage in decent and respectful conversations about belief systems. There is no contradiction between the two. Islam itself advances a set of beliefs that challenge other religions. The Islamic belief that Jesus is a prophet but not the son of God contradicts Christianity. The Islamic belief that there is only One God repudiates a sophisticated notion of polytheism in Hinduism. The Islamic belief that the Prophet Muhammad is God’s last prophet renounces several religions, including the beliefs of Sikhs, Mormons, Baha’is, and Ahamdis. Itself a religion that challenges irrational dogmas and the “unexamined stories of ancestors,” Islam does not prohibit fruitful conversations about diverse belief systems. In fact, the Qur’an instructs Muslims to engage in theological conversations in the best possible manner, with great sensitivity and mutual respect (29:46). Islamic law mandates civility in discussion, and prohibits religious hate speech. Hot-headed and disrespectful dialogues about varied beliefs can lead to verbal abuse and violence. The obligation to respect Islam is not a unilateral concept imposed only on non-Muslims. Muslims, too, are under a similar obligation to respect the faith systems of non-Muslim communities, particularly those of permanent residents in Muslim states. Muslims cannot put down religions incompatible with Islam. They cannot draw graffiti on churches or temples. They cannot insult or desecrate Hindu gods. The Qur’an instructs Muslims not to revile deities of other religions for that would invite others to revile Allah (6:108). In this verse, the Qur’an also makes a profound anthropological argument of cultural relativity, teaching Muslims that “unto every nation we have made their deed seem fair.” Each nation cultivates its own cultural selfrighteousness, even though the ultimate truth rests with God (6:108). Muslims, therefore, shoulder no special burden to amend wrongful self-righteousness of other nations and belief systems. In this commandment of the Qur’an (6:108) lies the principle of mutual respect among diverse peoples to safeguard their religious creeds and practices, leaving the final judgment to God.

Constitutions and Treaties as Covenants Two distinct forms of contemporary covenants have emerged for the legal protection of non-Muslim communities residing in Muslim 166

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Covenants with Non-Muslims states. The first form of covenant is the prototypical constitution that specifically protects the rights and freedoms of non-Muslims. The second form of covenant consists of a variety of human rights treaties that Muslim states sign and thereby undertake international obligations to protect the fundamental rights of non-Muslim communities and individuals. These contemporary covenants reaffirm rather than repudiate classical covenants. The Muslim world has expanded far beyond the Middle East, a region where Muslims live mostly with Jews and Christians. Now hundreds of millions of Muslims, in diverse parts of the world, share national territories with a legion of religious communities, including Hindus, Sikhs, and Buddhists, which have not been traditionally defined as the peoples of the book. Contemporary ijtihad confronts the issue of whether Islamic law recognizes all non-Muslim religious communities and offers them equal protection of laws, freedom of religion, and religious dignity. New religious communities, such as Baha’is and Ahmadis, which have emerged from within the Muslim world but have altered fundamental beliefs of Islam, also demand recognition, protection, respect, and equality. As indicated in Chapter 4, the Basic Code is the supreme source of Islamic law. No constitution or treaty can override provisions of the Basic Code, not even in matters dealing with non-Muslim communities. A Muslim nation may establish a secular constitution and relegate Islamic law to private matters. Theoretically, a secular constitution may retain the right to override provisions of the Basic Code, even though no such constitution has yet been established in a Muslim state. Likewise, a secular Muslim state may sign treaties incompatible with the Basic Code. Such a secular legal system that establishes supremacy of the constitution over the Basic Code cannot be called Islamic law. Islamic law exists and develops only when all sources of law, including treaties and constitutions, are subordinated to the Basic Code. This normative paradigm is valid in constructing contemporary covenants with non-Muslim communities. There is no guarantee that secular constitutions are more protective of the rights of diverse religious communities. Muslim emigrants, for example, are facing open discrimination in secular France. An over-zealous, secular constitution is no longer neutral among religions; it morphs into an anti-religious constitution, thus undermining its own normative raison d’être. It is also inaccurate to assume that the Islamic constitution that submits to supremacy of the Basic Code is bound to discriminate against non-Muslims. In fact, as the 167

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Contemporary Ijtihad discussion in this chapter demonstrates, Islamic constitutions specifically recognize rights and freedoms of non-Muslim communities and institute “beneficial discrimination” to protect the political rights of vulnerable non-Muslim communities. Even an Islamic constitution, however, may persecute non-Muslims. This is so, because even an Islamic constitution is a human, legal product, which must never be confused with the divine Basic Code. Islamic constitutions, as human products, though associated with the Basic Code, are not automatic anathemas to social prejudice. Constant vigilance is required to assure that the Islamic constitution does not deviate from fair and just treatment of non-Muslim communities, much less that it compromises the immutable rights of non-Muslims living in Muslim states. Ideally, the Islamic constitution must not be drafted or promulgated without meaningful consultations with non-Muslim communities. A national constitution as a social covenant, drafted in light of the Basic Code and in line with the Covenant of Medina, cannot be unilaterally imposed on non-Muslim communities. Unfortunately, many constitutions in Muslim states have been made with little participation from the people in general and non-Muslim communities in particular. Such sham constitutions not only offend the rationale of a constitution as a genuine social compact, they also fail to satisfy the test of the covenant under the Basic Code. Since a constitution can be amended and even completely replaced, it is recommended that constitutions completely unacceptable to non-Muslim communities be revised to provide a genuine covenant. Needless to say, nonMuslim communities cannot demand that the constitution be secular to the extent that the Basic Code is set aside or that all distinctions based on religion are eliminated from law. Such a demand attacks the foundation of Islamic law. Short of such a demand, however, there are numerous fundamental rights of non-Muslim communities that must be explicitly and generously drafted into the text of the Islamic constitution. Political Rights The Islamic constitution as a covenant recognizes the political rights of non-Muslim communities. Political rights include the right to vote, the right to hold office, and the right to representation in the legislature. These rights are particularly important if non-Muslim communities constitute a significant part of the population. However, 168

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Covenants with Non-Muslims non-Muslim communities cannot use the democratic system to undermine the Islamic state, nor can they use their democratic powers to subvert the supremacy of the Basic Code. The political rights of non-Muslim communities are for their own protection and not for negatively affecting the lives and customs of Muslim communities. In exercising political rights, non-Muslim communities do not forgo their obligation to maintain social harmony and respect for Islam. Contemporary, democratic constitutions in the Muslim world recognize the right to vote for all, including non-Muslims. However, the right to vote is ineffective if the political system, such as that in Syria or Egypt, does not allow genuine political competition. The lack of political competition in electing the chief executive and members of the legislature may disproportionately affect non-Muslim communities as their voices are suppressed even more than voices of Muslim groups. (In Muslim states without democratically elected legislatures, non-Muslim communities are at the mercy of rulers who may or may not adhere to commandments of the Basic Code.) An effective right to vote presupposes genuine electoral competition, under which nonMuslim communities are free either to form their own political party or support political parties that promise to defend the rights and liberties of non-Muslim communities granted under the Basic Code. In addition to the right to vote, non-Muslim communities are entitled to proportionate representation in the legislature. A legislature without any members of non-Muslim groups is potentially poised to breach the principles of the covenant, for it may pass legislation that undermines or diminishes recognized rights of non-Muslim communities. In Muslim Egypt, Copt Christians are entitled to a number of seats in the legislature proportionate to their population. In Muslim Bangladesh, Hindus are similarly entitled to proportionate representation in the national legislature. The rule of proportionate representation requires that an accurate account of the non-Muslim population be maintained and periodically updated, for the Qur’an instructs Muslims not to violate balance or standards of measurement (55:9). Proportionate representation is by no means an act of charity, but a right that non-Muslim communities enjoy under the concept of the covenant. If social prejudice would not allow members of non-Muslim communities to be elected to the legislature, the constitution must provide ways acceptable to non-Muslim communities for securing their proportionate representation. Given the nature of the Islamic constitution, some political offices in the executive branch of the government may not be 169

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Contemporary Ijtihad constitutionally open to members of non-Muslim communities. For example, the Islamic constitution may require that both the head of the state and the head of the government be Muslims. Such constitutional mandates are critical for the preservation of the Islamic state. Such mandates are also politically honest. Even if the Islamic constitution is drafted in non-discriminatory language to allow every citizen to run for the office of the head of the state or the head of the government, a Muslim community is unlikely to elect a non-Muslim as the president or prime minister of a Muslim state. However, it makes little sense to exclude members of non-Muslim communities from holding key political offices. For example, a non-Muslim who has developed recognized expertise in economics and finance or other matters of treasury cannot be, in fairness, excluded from holding an appropriate political office in the government. The concept of covenant requires that non-Muslim communities with significant populations have permanent representation in the decision-making council or cabinet of the government. This representation in the executive branch of the government is necessary for enforcement of the covenant. Good laws can be subverted through dishonest enforcement. Laws as applied are more real than laws on the books. Since the concept of the covenant with non-Muslims is truthful and a good faith recognition of their fundamental rights, it is mandatory that a mechanism is created to monitor the enforcement of the covenant. In contemporary Muslim states, a ministry of the government committed to the advancement of rights and liberties of non-Muslim communities is most appropriate. It would be even better if a member of the non-Muslim community, whom the community trusts, leads the ministry. The ministry for the protection of non-Muslim communities must be empowered to monitor rights and liberties of non-Muslims and to offer solutions to their problems. Most importantly, it must command financial and social resources to implement its findings and proposals. Protection Rights Protection rights, an integral part of the covenant, are the most important rights of non-Muslim communities residing within Muslim states. These rights, protected under modern constitutions, include the protection of life, property, personal dignity, language, and physical security. Protection rights also include protection against unfair tax burdens. Muslim governments are under a continuing obligation 170

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Covenants with Non-Muslims to materialize these protections, for it is not enough to write decorative constitutions to satisfy obligations of the covenant. The test of whether protection rights are being enforced rests not with the government, for governments make too many baseless claims to look good, but with non-Muslim communities. Only when non-Muslim communities are satisfied with enforcement of protection rights can the Muslim government claim to have met its obligations under the constitution and the covenant. Note that Islamic law is rarely content with mere pronouncements of beneficial rules. Islamic law demands that rules be enforced and that beneficiaries of rules be satisfied. Protection rights are by no means creatures of modern constitutions. Protection rights for non-Muslim communities are securely embedded in the Islamic legal tradition. The Sunnah, an immutable part of the Basic Code, recognizes protection rights in candid terms. The Prophet emphasized that, “those who commit an act of aggression against a non-Muslim, who usurp his rights, who make any demand upon him which is beyond his capacity to fulfill, who forcibly obtain anything from him against his wishes, I will be his [the non-Muslim’s] advocate on the day of accountability.” The Sunnah strictly prohibits the infliction of harm on non-Muslims protected under dhimmi or aman contracts. In emphasizing the obligations of Muslim communities under the covenant, the Prophet prohibited the harming of non-Muslims in strong and unambiguous words: he “who harms a non-Muslim harms me, and he who harms me, harms Allah.” Protection rights for non-Muslims acquired even more significance when Islam reached beyond the borders of Mecca and Medina. The tradition of protection rights, as part of the Sunnah, was vigorously transmitted to each subsequent generation of rulers. After he was mortally stabbed, Caliph Omar is reported to have urged the next caliph to take care of non-Muslims who were under the protection of Allah and his Messenger. Invoking obligations of the covenant, the dying caliph advised his companions to secure the safety of nonMuslims and not to tax them beyond their affordability. In Islamic legal history, Muslim jurists have also been proactively engaged in reminding rulers and conquerors to honor the protection rights of non-Muslims. In the thirteenth century, Mongols invaded Damascus and captured Jews, Christians, and Muslims as slaves. The renowned scholar Ibn Taymiyya was sent as an envoy to Kutlu Shah, the Mongol commander, to negotiate the release of prisoners of war. Kutlu Shah initially refused to release non-Muslim captives along 171

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Contemporary Ijtihad with Muslims. Relying on the legal logic of the covenant, Taymiyya said to the Mongol commander: “The Christians and the Jews are under our protection, we cannot accept that a single one of them should remain a slave.”13 Welfare Rights Contemporary constitutions of Muslim states recognize welfare rights of Muslims and non-Muslims without discrimination. Although Islamic law recommends an open and free economy and encourages Muslims to invest surplus monies in trade and commerce, it does not embrace a view of the market that exclusively determines economic and welfare rights. The government has affirmative obligations to secure the welfare of the weak and the vulnerable. A government that does not command adequate resources cannot provide for welfare rights. On the other hand, laying heavy tax burdens on citizens can stifle the entrepreneurship that Islamic law protects and promotes. Charting a middle course, Muslim governments must establish financially sustainable institutions to assure welfare rights to all, including non-Muslims. Historically, funds collected from the mandatory charity imposed on Muslims, zakah, and the tax imposed on non-Muslims, jizya, financed the Islamic social welfare system. In addition to mandatory zakah, Muslims are urged to “spend out of what We have granted you as sustenance” (2:254). Spending for the community welfare rather than hoarding for an unknowable personal future has been the dominant Islamic ethic. The Islamic Constitution of Iran articulates welfare rights and their enforcement in candid and practical language, setting a normative and pragmatic precedent for other constitutions to follow. The Constitution specifically proclaims a set of welfare rights as a “universal right.” Welfare rights are listed as social security with respect to retirement, unemployment, old age, disability, and absence of a guardian, and benefits relating to being stranded, accidents, health services, and medical care and treatment provided through insurance or other means. In order to materialize welfare rights, the Constitution places an obligation on the government to create a shared pool of public and private funds committed to providing “foregoing services and financial support for every individual citizen.” The financing of welfare rights taps two distinct sources: public and private funds. Since Muslims, as part of their faith, contribute funds and services for the welfare of the community, a 172

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Covenants with Non-Muslims mixture of public and private funding of welfare rights can be highly effective and sustainable. Like protection rights, welfare rights are an integral part of the covenant with non-Muslims. Classical fiqh guarantees social welfare rights for every resident regardless of religious beliefs, national origin, gender, or any other factor. This universality of social welfare draws inspiration from the teachings of the Qur’an, which informs Muslims that Allah, out of His mercy, provides sustenance for every living being: “And there is no living creature on earth but depends for its sustenance on God” (11:60). A Muslim state that practices discrimination in welfare rights or deliberately ignores the welfare of any of its citizens, let alone all of them, violates God’s Law. The entitlement of non-Muslims to social welfare has been affirmed historically on a number of occasions. The chief of the Islamic army, Khalid Ibn Al-Walid, entered into a covenant with the Christians of Hira (Iraq) affirming their right to receive social welfare and exempting those who were incapable of supporting themselves from paying jizya.14 The second caliph, Omar, upon finding a destitute dhimmi, ordered a stipend for the poor man to be paid from the treasury (bayt al mal). Omar criticized the local authorities that failed to ensure the honorable livelihood of its citizens. Later caliphs continued Omar’s practice of supporting indigent dhimmis from the state treasury. Thus, the Islamic law of welfare rights, as part of the covenant, extends to non-Muslim communities residing within a Muslim state. Dignity of Belief Systems Episodes of intolerance among some Muslim groups periodically erupt to disturb the peace and religious freedoms of non-Muslim communities living in Muslim states. As a general principle, however, Islamic law has been clear-headed in offering dignity and respect to other world religions. This right was pioneered by the Islamic state in an era when the Roman Empire, then, the world’s superpower gave its citizens the choice between embracing the state religion and sect or death.15 The Islamic law of religious dignity, initially reserved for Jews and Christians, the major faith systems closely related to Islam, has been extended to Zoroastrians, Hindus, Sikhs, Buddhists, and numerous other faith traditions. Islam is a staunchly monotheistic religion; it carries a soft attitude towards other monotheistic religions, and opposes atheism and polytheism. Yet the Islamic law of religious dignity cannot be interpreted to establish state-sponsored 173

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Contemporary Ijtihad intolerance, or to condone social disdain against those who do not subscribe to Islamic monotheism. Muslims learn from the Qur’an that God nourishes everyone, including non-believers. If God sustains non-believers with His mercy and even with His bounties, Muslims have no right to persecute non-believers or hold them in contempt. Contemporary constitutions of Muslim states protect the dignity of diverse belief systems. This protection is far more extensive in scope than that traditionally afforded to the People of the Book. Consider, for example, Article 3 of the Malaysian Constitution, which declares Islam to be the religion of the Federation. However, the same article also declares that “other religions may be practiced in peace and harmony in any part of the Federation.” Nearly 40 percent of the Malaysian population is non-Muslim, practicing Buddhism, Hinduism, Confucianism, Taoism, and traditional Chinese religions. Recognizing the dignity of a variety of religions is part of contemporary ijtihad. The Pakistani Constitution is also an Islamic constitution, which declares Islam as the state religion. But it, too, protects the dignity of other religions, providing specifically that “every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.” The Islamic Constitution of Iran designates Zoroastrians, Jews, and Christians as “the recognized religious minorities.” However, the Constitution, in a separate article, extends “the Islamic principles of justice and equity and . . . human rights” to non-Muslims, and not merely to recognized religious minorities. Contemporary constitutions on religious freedom are by no means a sharp break from the recognition of religious freedom under classical fiqh. The freedom to embrace a religion, which encompasses the freedom not to embrace any religion, is a well-established Islamic law guarantee that precedes its recognition under contemporary constitutions and human rights declarations. Hundreds of years prior to constitutionalism and the human rights movement, the Qur’an delivered the freedom of religion as the Word of God: “Let there be no compulsion in religion: Truth stands out clear from Error . . .” (2:256). The rationale for endorsing the freedom of religion is simple: if God, the ultimate Sovereign of the universe, with unlimited powers, does not compel people to believe in Him, how can people, following God’s Law, compel each other to believe in God? The Qur’an enlightens the Prophet Mohammed and Muslims of the rationale underlying the freedom of religion, including the freedom 174

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Covenants with Non-Muslims not to believe in any religion: “And had your Lord willed, those on earth would have believed, all of them together. So, will you (O Muhammad) then compel mankind until they become believers” (10:99). Contrast this law of the Basic Code, established in the early seventh century, to laws of the Holy Roman Empire, laws that led to successive wars leading to the seventeenth- century Reformation, and laws under which citizens were compelled to adopt the official state religion and the followers of “other religions” and heretics faced stiff punishments. Freedom of religion, however, is not absolute. Islamic law permits restrictions to forge an ethic of mutual respect. Non-Muslims’ religious practices are accommodated as long as they do not disturb public order. For instance, Muslims are prohibited from buying, selling, and consuming alcoholic beverages and pork products. These restrictions do not apply to non-Muslims living in Muslim states. Christians residing in a Muslim state may freely serve sacramental wine in churches in celebration of the Eucharist. Even for nonreligious purposes, non-Muslims may buy, sell, and consume alcohol and pork products. Some Muslim states, however, forbid nonMuslims from commercial transactions in haram goods. Moreover, Islamic law recognizes non-Muslims’ right of ownership and the right to do business with respect to these contrabands, while no such rights are granted to Muslims. Under classical fiqh, Muslims who impair the non-Muslims’ rights of ownership and business with respect to alcohol and pork products are liable for their actions civilly and criminally. However, non-Muslim owners of alcohol and pork businesses are not liable for any such damage. Despite these beneficial discriminations in favor of non-Muslims, the right to own and operate contraband businesses is not absolute. Islamic law does not allow non-Muslims to sell or serve these contrabands to Muslims. While contemporary ijtihad continues to protect the freedom of religion for non-Muslim communities, serious hostility and persecution exist with respect to creeds that have emerged from within the Islamic belief system. As noted above, Baha’is and Ahamdis, the two nineteenth-century creeds that originated in Iran and British India, respectively, have been accused of repudiating a core belief of Islam: that Muhammad was God’s last prophet. The addition of new prophets is not the source of intolerance, however, since Muslims rarely show hostility toward Mormons who also believe that prophecy has not been terminated. The hostility throughout the Muslim world against Baha’is and Ahmadis stems from their select alterations in the 175

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Contemporary Ijtihad faith of Islam. In fact, Ahmadis call themselves Muslims, even though many Muslim states treat them as non-Muslims. Identification Marks Islamic law prohibits investigating the hearts and minds of individuals. Each individual is free, though accountable to God, for whatever he or she believes in their heart. The Islamic state has not been empowered to conduct trials to determine who is Muslim. The Prophet admonished two men who were speculating over whether a certain third person was Muslim. Yet when a community of people alters the basic beliefs of Islam, it is best for that community to separate its faith from that of Islam. Baha’is and Ahmadis are communities that have made fundamental innovations to Islam. While the Islamic state has no power under the Basic Code to persecute any religious community, including those who alter the mainstream beliefs of Islam, it may require, in view of security and public order, Ahmadis and Baha’is living within the Islamic state to worship in separate temples. The Islamic state is obligated to protect Ahmadi and Baha’i temples from physical attack and disparagement. Their temples, like those of Hindus, Jews, and Sikhs, may carry distinctive identification marks that they themselves select. Furthermore, Islamic law allows non-Muslims to wear selfselected distinctive physical marks and dress. Jewish men wear yarmulke, as a sign of submission to divine authority. The Sikh wear turban and kara (steel bracelet), and carry a karpan (knife). These publicly displayed identifications vouch that the Sikhs are living a truthful life. Hindu men and women wear tilak on their foreheads. Made out of sandalwood paste or clay, the tilak is a symbol of purity; it represents the third eye, the inner eye of meditation. Many Christians, men and women, wear a cross, which signifies the sufferings of Jesus, God’s love, triumph of good over evil, and salvation of Jesus’ followers. The Islamic state proscribes denigration of religious markings that non-Muslim communities choose under the principle of self-determination. Islamic law, of course, does not require that non-Muslim communities wear their religious identification marks. The Islamic state cannot coerce Jews to wear yarmulke or Christians to wear a cross, and nor can the state coerce non-Muslim communities to wear some other identification marks. Marking individuals and faith communities, contrary to their will, inflicts personal indignity and leads to 176

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Covenants with Non-Muslims social discrimination. Historical evidence has been presented, though precise accounts are controversial, that some Muslim rulers required some non-Muslim groups to wear identification marks. In our own times, the Taliban government in Afghanistan also considered requiring Hindus to carry “a thumb-sized yellow marker inside their pockets.” The Taliban defended the proposed policy under the protection principle, arguing that the identification mark would allow the government not to enforce the Shariah laws against Hindus. Facing strong negative international reactions, however, the policy was not implemented. Coercive identification marks have been a universal phenomenon. The infamous yellow badges that Jews in Germany were forced to wear are part of a long story of collective degradation. Some nations elect immutable characteristics, such as color and race, to single out communities for humiliation and discrimination. Others restrict the movement of target groups or force them to live in identified neighborhoods. These and other patterns of coercive identification or segregation are strictly prohibited under Islamic law. Non-Muslim communities are free to worship as they please and may voluntarily wear self-identification marks. Conversion and Proselytization The Basic Code does not obligate Muslims to convert non-Muslims to Islam. Ideally, a non-Muslim living in a Muslim state should experience no pressure to convert to Islam. Even though Muslims have been accused of forcing populations to convert to Islam, there is little credible evidence to support such accusations. Yet the spread of Islam all over the world, crossing cultural and linguistic boundaries, has been spectacular. Even in Europe and North America, Islam is drawing a sizeable number of voluntary converts. On the other hand, however, non-Muslims living in Muslim states have not converted to Islam. The Copts in Egypt, the Jews in Morocco, and the Hindus in India have lived with Muslims and under Islamic governments for centuries without converting to Islam. Muslims themselves are seldom keen to be approached for conversion to another religion. This aversion to changing religion is not due to the fear of punishment but is part of Islamic culture and psychology. Even though apostasy is prohibited under Islamic law, the punishment for apostasy depends on a number of factors. Individuals who quietly drift away from Islam face little opposition. Apostasy 177

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Contemporary Ijtihad that accompanies public defamation of Islam or denigration of the Prophet elicits a harsh reaction, as in the case of Salman Rushdie, an Indian writer living in England, who authored a disparaging book, The Satanic Verses, about Islam and the Prophet’s wives, and received a death fatwa from the Iranian spiritual leader, Ayatollah Khomeini.16 Most Muslim states prohibit, by law, proselytization of Muslims to another religion. For example, the Moroccan Penal Code specifically outlaws the “seduction in the aim of undermining a Muslim’s faith or of converting him to another religion, either by exploiting his weaknesses or needs, or through the use, to this end, of health or educational establishments, as well as shelters or orphanages.” The laws against proselytization are mostly aimed at Christian missionaries who use numerous material incentives to attract financially strained and sick Muslims in need of money and medicines. Contemporary ijtihad is unlikely to relax the prohibition on proselytization. One might argue that the Islamic law proscription on proselytization is contrary to recognized human rights. Article 18 of the International Covenant on Civil and Political Rights provides: Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

This right allows Muslims to “adopt a religion or belief of his choice.” Adoption includes conversion. Furthermore, Article 19 of the Covenant empowers everyone “to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” These rights would permit Christian missionaries to “impart information” and Muslims to “seek and receive” information about Christianity without governmental interference or threat of criminal sanctions. As discussed in Chapter 4, Muslim states make reservations to treaty provisions deemed incompatible with the Basic Code. Reservations discount the effects of treaty provisions that cannot be enforced under the submission principle. Most Muslim states make a broad-based reservation to the effect that any treaty provision contrary to Shariah laws will impose no obligations on the reserving state. Mauritania, a Muslim state, made a specific reservation to 178

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Covenants with Non-Muslims Article 18 of the Covenant in the following words: “The Mauritanian Government, while accepting the provisions set out in article 18 concerning freedom of thought, conscience and religion, declares that their application shall be without prejudice to the Islamic Shariah.” Finland objected to this reservation and stated in its objection that a general reference to religious law cannot impart validity to a reservation. There appears to be a fundamental conflict between Western and Muslim states with respect to proselytization, unlikely to be resolved in the near future.

Notes 1. Ann Elizabeth Mayer, Islam and Human Rights: Traditions and Politics (Boulder, CO: Westview Press, 2006), p. 151. 2. Bernard Lewis, The Crisis of Islam: Holy War and Unholy Terror (New York: Random House, 2004), pp. 42–6. See also Bat Ye’or, The Dhimmi (Cranbury, NJ: Associated University Presses, 1985), pp. 54–5. 3. Jamal J. Nasir, The Islamic Law of Personal Status (Boston, MA: Brill, 1990). The book describes classical fiqh and contemporary status of personal law for Sunni and Shia in various Arab states. 4. Compare the status of orthodox Mormons in the United States, who have been prosecuted for practicing polygamy, a part of their belief system. See Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of LatterDay Saints, 1830–1900 (Champaign, IL: University of Illinois Press, 2001), pp. 59–236. 5. Muhammad Sharif Chaudhry, Non-Muslim Minorities in an Islamic State (Lahore: Impact Publications International, 1995), p. 34. 6. Majid Khadduri, War and Peace in the Laws of Islam (Baltimore, MD: Johns Hopkins University Press, 1955), pp. 176–7. 7. M. Izzi Dien, Islamic Law: From Historical Foundation to Contemporary Practice (Edinburgh: Edinburgh University Press, 2004), pp. 103–16. 8. Majid Khadduri, The Islamic Law of Nations: Shaybani’s Siyar (Baltimore, MD: Johns Hopkins University Press, 2002), p. 158. 9. Nadia Yakoob and Aimen Mir, “Improving Asylum Law and Practices in the Middle East,” in Y. Haddad and B. Stowasser (eds), Islamic Law and The Challenge of Modernity (Lanham, MD: AltaMira Press, 2004), pp. 109–27. 10. Yakoob and Mir, “Improving Asylum Law and Practices in the Middle East.” 11. Al-Mawardi, Kitab Al-Ahkam Al-Sultanya (reprint) (Beirut: Dar El-Fikr Publishing, n.d.), p. 144. However, other scholars recommend a 179

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Contemporary Ijtihad

12. 13. 14. 15. 16.

different amount. See Ibn Qudamah, Al-Mughnee Wa Al-Sharah Al-Kabeer (reprint) (Beirut: Dar El-Fikr Publishing, n.d.), vol. 10, pp. 566–8. Al-Mawardi, Kitab Al-Ahkam Al-Sultanya. Yusuf Al-Qaradawi, Non-Muslim in the Islamic Society (American Trust Publication, 1985), p. 4. Al-Qaradawi, Non-Muslim in the Islamic Society, p. 8. Guglielmo Ferrero and Corrado Barbagallo, A Short History of Rome (New York: Capricorn Books, 1964), vol. 2, pp. 431–58. Harvey W. Kushner, Encyclopedia of Terrorism (Thousand Oaks, CA: Sage, 2003), p. 131.

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6

Western Views of Islamic Law

This chapter examines the external scholarship, authored by nonMuslims, about Islam and Islamic law and asks the question whether such scholarship can be efficacious in influencing contemporary ijtihad. As noted in Chapter 2, external scholarship, mostly published in the West, can influence contemporary ijtihad by showing the way to improve, even modify, some sources of Islamic positive law, such as constitutions, local customs, legislation, and international law. External scholarship can be highly influential in specialized markets, such as finance, where non-Muslim experts can offer advice in structuring technical rules. However, external scholarship faces difficulty, at times fierce opposition, when it aims to improve or modify the rules of fiqh derived from divine texts. This opposition to the engagement of external scholarship with the fiqh markets may be attributed to at least two factors. First, the fiqh markets do not allow non-Muslim jurists to interpret the Basic Code for the benefit, or to the detriment, of Muslim communities. The fiqh markets are formally open only to Muslim jurists who may render opinions without fear or favor. Even the most learned non-Muslim scholars cannot invoke formal authority to issue binding opinions on divine texts. The external scholarship on fiqh, even when deferential to Islamic divine texts, is frequently viewed with suspicion in Muslim circles. Second, the fiqh markets do not welcome any criticisms of the Basic Code. External scholarship on fiqh, when it offers to reform Islamic law by finding faults with the Basic Code or compromising the Prophet’s personal integrity, is summarily dismissed as prejudiced, if not deliberately blasphemous. Although external scholarship rarely influences the fiqh markets, it remains a potent source of information about Islamic law in the non-Muslim world. Millions of people in the West and other parts of the non-Muslim world receive information about Islam and Islamic law through external sources. As the discussion in this chapter below shows, negative and even dangerous caricatures about Islam and Islamic law presented in external scholarship pave the way for 181

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Contemporary Ijtihad misunderstanding, prejudice, and hatred of Muslim communities and nations. In recent years, Muslims across continents have begun to openly protest and condemn what they view as blasphemous distortions of Islam. This mass resistance to combat the defamation of Islam is a unique feature of contemporary ijtihad. The exclusion of external “lawmakers” is not unique to Islamic law. Most legal systems protect themselves against external interventions. Territorial legal systems, including those of the nation-state, allow only domestic legislatures to make, modify, and repeal laws. No external legislature can make or repeal the laws of a nationstate unless the state has been occupied or colonized. Even religious legal systems are internally autonomous. The Catholic Church, for example, has its own internal structure to make and modify the canon law. The Mormon Church is similarly fortified against external interventions. Ancient tribal systems, even when the tribe moved from place to place, had internal sources of law. As a general rule, legal systems are officially closed to external lawmakers, even though external influences are at times difficult to resist. No legal system worth its name is open-sourced, in that it allows itself to be freely changed through external forces. Islamic fiqh safeguards its internal authenticity by formally excluding non-Muslim jurists as its designer, exegete, and architect. Though self-protective, the fiqh markets are potentially open to non-Muslim scholars. Non-Muslim jurists are denied the formal authority to influence the shaping of Islamic law, but they are not denied access to the Basic Code or reflections upon it. Non-Muslims are free to study the Qur’an and the Sunnah and produce informative scholarship. The Qur’an is not the exclusive property of any nation or any group of nations. The Qur’an is revealed for all the peoples of the world, believers and non-believers, Muslims and non-Muslims (10:57). Muslims, however, have made a covenant with God to safeguard the Qur’an’s authenticity, honor, and dignity. They are vigilant when non-Muslim scholars interpret the Basic Code to sow mischief in the Islamic thought process.

Principles of Scholarly Engagement The fiqh markets draw a fundamental distinction between muminin (believers) and munkirin (non-believers) to evaluate the credibility of scholarship on Islam. Muminin are practicing Muslims who believe in the Qur’an and the Prophet’s Sunnah. Munkirin are non-Muslims 182

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Western Views of Islamic Law who deny the basic elements of Islamic faith. A fundamental rule of Islamic law requires that jurists and scholars who issue fiqh opinions be Muslims. Non-Muslim scholars are not formally qualified to make or change interpretations of divine texts. Yet the fiqh markets weigh and consider contributions of non-Muslim scholars. As discussed in Chapter 2, specialized markets, particularly contemporary Islamic finance markets, may greatly benefit from the expertise of non-Muslim experts familiar with finance instruments. More generally, the fiqh markets believe that all knowledge flows from God and that Muslims do not have a monopoly over the knowledge of worldly matters. Learning from non-Muslim experts does not weaken, but strengthens the faith of Islam, a religion of knowledge. “My Lord, increase me in knowledge” (20:114) is the unyielding foundation of Islam and Islamic law. On knowledge, the Qur’an’s instructions are non-discriminatory. The Qur’an warns Muslims not to follow “the road of those who have no knowledge” (10:89). This warning is sound with respect to all persons, regardless of their religion, who have no knowledge. Muslim communities cannot follow the ways of Muslim and nonMuslim experts whose knowledge is faulty. A legion of non-Muslim scholars affiliated with prestigious institutions hold themselves out as experts on Islam and Islamic law, even though their knowledgebase is seemingly limited. Such experts cannot influence the fiqh markets. Muslim communities need to be most vigilant, however, against Muslim “fiqh experts” whose knowledge-base is confined to a fractured understanding of religious texts. Uneducated sections of Muslim populations are most vulnerable to teachings of poorly educated Muslim fiqh experts who claim authority over teachings of the Basic Code, but know little about the complexity of the contemporary world. Such Muslim experts, in their ignorance, define knowledge so narrowly that they begin to oppose widely accepted scientific knowledge. In further clarifying non-prejudicial viewpoints on seeking knowledge, the Qur’an poses a rhetorical question: “Can they who know and they who do not know be deemed equal?” (39:9). This question provides even more clarity that persons of knowledge, regardless of their faith, are superior to persons without knowledge. Any simple assertion that a Muslim expert, in any field, is superior to a nonMuslim expert cannot be accepted without asking a further question: who between the two experts is more knowledgeable? Even in matters of theology and divine laws, the fiqh markets 183

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Contemporary Ijtihad cannot confine themselves to Muslim jurists. The Qur’an itself refers to previous books of revelation, particularly the Torah (Old Testament) and the Injeel (New Testament), and urges Muslims to believe what has been revealed in the Qur’an and what has been revealed in the previous divine texts (2:4). The scholars of faith who explain the Torah and the Injeel may illuminate biblical stories that are mentioned in the Qur’an but are not fully described. Islam is not an isolated religion, but instead forms unbreakable bonds with other religions. The Qur’an describes the inherent utility of the inter-faith dialogue in the following verse: “‘O People of scriptures! Come to common terms as between us and you: that we worship none but God; that we associate no partners with him; that we erect not, from among ourselves, lords and patrons other than God.’ If then they turn back, you say: ‘ear witness that we [at least] are Muslims [bowing to God’s Will].’” (3:64). This invitation to participate in a common discourse includes the followers of all scriptures, not just Jews and Christians. Most importantly, the invitation refutes the notion that the fiqh markets must be confined to Muslims. A vigorous and mutually respectful discourse among scholars of faith can safeguard the spiritual dimension of humanity. All religions, not just Islam, are injured when scholars of faith attack each other’s beliefs, often without a profound knowledge of God, revelations, and diverse spiritual paths that lead to the same destination. The fiqh markets recognize that scholars of faith who do not believe in Islam nonetheless share numerous, common beliefs with Muslim jurists. Scholars of faith, for example, see no indispensable incompatibility between religion and modernity. Nor do they see any contradictions between faith and inter-faith. They strive to maintain the purity of their faith without damning other religions. They see no tension between the observable world of the visible and the revealed world of the invisible, called al-ghaib (2:3). Scholars of faith do not see intellect as the exclusive source of information and insight, nor do they see faith as an irrational constraint on imagination or reason. Scholars of faith synthesize the pre-rational with the rational and both with the post-rational, illuminating the boundaries of reason. They use submission to God as a way to connect the known with the unknown. Scholars of faith reject value cynicism. They make sense of what we do in this life and what we might expect in the hereafter. Inter-faith discourses cannot be driven out of the fiqh markets, for any such exclusion is contrary to God’s design of “common terms” expressed in the Qur’an. 184

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Western Views of Islamic Law Disengagement Principle The Basic Code provides guiding principles regarding non-Muslim scholars who respect the fiqh markets, others who raise legitimate questions, concerns, and criticisms, and still others who mount attacks on the foundations of Islamic law. One principle teaches disengagement. The principle of lakum diinukum waliya diin (To you be your Way, and to me mine) highlights the fruitlessness of dialogue with non-Muslim scholars who advocate ideologies that cannot be reconciled with the basic elements of Islam. For example, the Qur’an asks believers to leave the company of persons who are cursing God or showing utter disrespect to His most beautiful names. Rather than engaging in useless discussions over irreconcilable elements of conflicting beliefs, disengagement is the best course. The disengagement principle rejects debates, coercion, and violence to settle the matters of faith. The Qur’an specifically advises believers to “have patience at what they [the peoples of scriptures and unbelievers] say” (3:186), for what they say is often mentally and spiritually “hurtful” (33:48). The Prophet showed patience when the peoples of scriptures and non-believers tormented him, until God permitted him to fight back if and when the tormenting turned into physical aggression. The disengagement principle embodied in lakum diinukum waliya diin is framed in personal terms. In sura al-kafirrun, God offers the disengagement principle to the Prophet and commands him to “say” to the non-believers that “your way” and “my way” are not the same and will not be the same, and, therefore, to you be your way and to me mine. The same principle is also binding on each Muslim who must similarly disengage himself or herself from ideologies that cannot be reconciled with Islam. When the disengagement principle is applied to external scholarship, it informs Muslim jurists to disregard writings that oppose the core beliefs of Islam. The responsibility to disregard kufr scholarship is placed on each Muslim jurist in a personal way. No prudent Muslim jurist should engage in debates with non-Muslim scholars who reject the authenticity of the Qur’an or challenge the Prophet’s integrity. Gracious Engagement Principle The disengagement principle, however, does not mandate that Muslim jurists become self-righteous and hastily dismiss any and all scholarship that non-Muslims may offer to the fiqh markets. A blind 185

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Contemporary Ijtihad dismissal of all external scholarship is incompatible with the core essence of Islam, which teaches Muslims to believe in revelations found in the Qur’an as well as those found in prior divine texts. As noted above, biblical scholarship is part of the fiqh markets, since Islamic law is best understood in biblical contexts. Furthermore, a broad and thoughtless application of the disengagement principle will isolate the Muslim legal world from useful religious and secular knowledge that non-Muslim scholars have produced through intellectual labor and analytical rigor. The fiqh markets are aware that God’s intellectual, analytical, and intuitive gifts are not confined to Muslims or denied to non-Muslims. The Qur’an states so in unambiguous terms: “Of the bounties of thy Lord We bestow freely on all – these as well as those: the bounties of thy Lord are not closed [to anyone]” (17:20). Accordingly, the fiqh markets cannot summarily dismiss the bounties of intellect and insight that God has given to non-Muslims. To prevent harmful self-cloistering under the disengagement principle, the Basic Code offers a second tenet, one that recommends interacting with external circles. This second principle offers gracious engagement with the non-Muslim world. The Qur’an instructs Muslims to argue in ways that are best and most gracious (jaadilihum billatii hiya ahsan) (16:125). Gracious engagement allows Muslims to participate in discussions with non-Muslims and to answer their questions and concerns. Furthermore, the principle of gracious engagement is not simply reactive in that Muslim opiniojurists must wait for external scholarship to appear before they respond. Muslim opiniojurists may be proactive in inviting dialogue with non-Muslim scholars. Invitation (d’awah) is an essential part of the engagement principle. In the fiqh markets, the principle of gracious engagement allows Muslim opiniojurists to invite, and respond to, external scholarship that is sincerely inquisitive and respectfully exploratory. Islam is a religion of knowledge, and the fiqh markets cannot shy away from any knowledge, including the knowledge that non-Muslim scholars provide to clarify rules of classical fiqh. External scholarship is at its best, and contributes much to the understanding of inter-faith scholars, including Muslim opiniojurists, when it undertakes to clarify the meaning of the fiqh rulings without challenging the basic tenets of Islam. If the clarification scholarship is analytically rigorous but respectful, Muslim opiniojurists draw a good deal of instruction from it. Although the authors of such scholarship are non-Muslim, their scholarship becomes part of the 186

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Western Views of Islamic Law Islamic literary tradition. From an internal viewpoint, the author’s lack of faith is no longer an irritant, but a fact that does not disturb the quality or power of the offering. Such gracious external scholarship falls into what may be called “The Abu Talib Legacy.” Abu Talib was the Prophet’s beloved uncle, who refused to become a Muslim but did nothing to harm the cause of Islam. In fact, he used his personal prestige and tribal influence to protect the Prophet and other Muslims from their enemies.1 The Prophet prayed for his uncle’s conversion to Islam but, according to the Qur’an, matters of faith are in God’s hands (28:56). Abu Talib represents a legacy, a phenomenon that has existed throughout the centuries. Thousands of non-Muslims do not accept the faith of Islam though their contributions to the preservation and development of Islam are held in high esteem. Belonging to this legacy are non-Muslim scholars who add value and insights to the development of Islamic law through their works. Under the principle of gracious engagement, they are part of the fiqh markets. In her superb treatise, Qur’anic Christians, Jane Dammen McAuliffe probes the Islamic understanding of Christians.2 She clarifies in the introduction to her treatise that the conception of the Qur’an that undergirds her study is one of the committed Muslim; namely, one who believes that the Qur’an is God’s own word. This clarification instructs the reader that the treatise is written from an internal viewpoint. After reading the treatise, most Muslim opiniojurists would conclude that McAuliffe adhered to the internal viewpoint in her rigorous and illuminating analysis of the Qur’an’s verses dealing with Christians and Christianity. And yet, her analysis of the Qur’an through tafsirs (exegetical works of Muslim scholars) is not aimed at constructing a dishonest commonality or conflict between Christianity and Islam. One purpose of the treatise is to demonstrate that Islam views Christians with favor and respect, and yet it rejects some of the fundamental tenets of Christianity. The author’s main purpose, however, is to study an important question: does Christian self-definition match the Muslim understanding of Christians? Muslim opiniojurists may consult McAuliffe’s book to refine the juristic rules of religious tolerance. Even if the book does not dramatically influence any rule of fiqh, it will remain a book of Islamic literary tradition, validating the point that the fiqh markets will continue to receive and acknowledge the external scholarship written with intellectual rigor, honesty, and piety. Mere scholarly rigor is insufficient for a work of external 187

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Contemporary Ijtihad scholarship to gain credibility in fiqh markets. Contrast McAuliffe’s book with that of Michael Cook. Cook’s new book, Commanding Right and Forbidding Wrong in Islamic Thought, is impressive scholarship meant to explain the concept of commanding right and forbidding wrong embodied in the Qur’an and explained through tafsirs (commentaries).3 Cook’s methodology is in some ways similar to that of McAuliffe. Cook examines numerous Islamic schools of law to compare and contrast the concepts in their respective exegetical works. The intellectual rigor with which Cook presents his comparative analysis of Islamic sources spread over centuries cannot be discounted. But to most Muslim jurists, however, Cook will remain an untrustworthy scholar. Part of the reason is an earlier book, discussed below, which Cook co-authored with Patricia Crone, in which they challenged just about everything that constitutes the core of Islamic faith.4 Cook’s new book might be considered an important contribution to the external, critical literature, but the piety-sensitive fiqh markets will remain distrustful of Cook’s intentions for his highly conjectural and defamatory speculations on the origin of the Qur’an.

Defamatory Scholarship Defamatory scholarship flourishes the most in periods of intense geopolitical rivalry with the Muslim world. It is no coincidence that the abusive scholarship about Islam first emerged in what R. W. Southern calls “the ignorance of a confined space,”5 a period of several centuries in the Middle Ages when authentic information about Islam was unavailable or scholars were unprepared to accept it. Part of this ignorance stemmed from a belief among non-Muslim writers and their audiences that Islam was a false faith and, therefore, all means, including misrepresentations and distortions of historical facts, were necessary to expose Islam’s fraudulent foundation. The common people in ancient Europe knew little more than fictitious and ill-informed versions of Islam. The dread of a dominating Muslim world, that had defeated the Byzantines and conquered Jerusalem and Spain, furnished the catalyst for distortions about Islam. The defamatory scholarship on Islam, though ineffective in influencing the fiqh markets, has been highly influential in constructing a “wicked” view of Islam. Over the centuries, several successive generations of Western scholars have relied on the same unexamined 188

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Western Views of Islamic Law facts to perpetuate themes that Islamic law is barbaric and fraudulent. As Norman Daniel puts it: “The style of the day changes, but the themes are perennial.”6 Fraud is attributed to the person of the Prophet, to the compilation of the Qur’an’s text, and to the gathering of the Prophet’s Sunnah. The allegations of fraud are not limited to the Prophetic era (610–32), but extend to Muslim historians, scholars, and opiniojurists who were the first authors of the Islamic literary tradition. Muslim historians are accused of writing fraudulent accounts of existent and non-existent facts. Muslim scholars are charged with plagiarism, by stealing ideas and methodologies from Christian and Jewish sources. In this alleged enterprise of wholesale fraud, Islamic law and jurisprudence are presented as copied and corrupted versions of Hellenistic, Roman, and Talmudic traditions. The fiercest attacks, discussed below, have been on the Qur’an, the Sunnah, and the Prophet’s personal integrity. In their attacks, Western scholars strive to demolish the foundation on which Islamic law is built. In the past fourteen hundred years, however, these scholars have been completely unsuccessful in weakening the Muslims’ internal viewpoint on the veracity and validity of the Basic Code. This failure to influence the fiqh markets occurs because Muslim opiniojurists simply refuse to respond to what they see as blasphemous literature, which cannot shape the fiqh markets in any meaningful way. In external circles, however, some Western scholars build on each other’s works to continue to challenge the authenticity of the Basic Code. The defamatory literature perpetuates stereotypes that increase misunderstanding between the West and the Muslim world. The boldest allegation accuses the Prophet of deliberately lying that he was a prophet. Other allegations paint him as a fraudulent magician who would resort to trickery by conjuration of demons and through visions induced at will. Still others paint him as a clever man who would publicly hide from family and friends but secretly consult his Christian co-conspirator “preparing the details of the fraud.” The purpose of this fraud was to hoodwink the pagan and Jewish audience of Arabia, leading them to believe that Muhammad was receiving revelations from God. Roger Bacon, the thirteenth-century English empiricist who was a noted skeptic of all religions, stopped short of charging the Prophet with feigned prophecy. Bacon, who also believed in occultism, speculated that demons possessed the Prophet of Islam. Intentional fraud is often purposeful; it has an aim and pursues 189

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Contemporary Ijtihad an end game. Why was Muhammad feigning prophecy? What did he want? The defamatory literature seems to advance two distinct theories to explain the Prophet’s fraud. One theory, focusing on the psychological import of the fraud, explains it in terms of the Prophet’s need to overcome his low birth. It highlights the fact that the Prophet married Khadija, a rich and influential woman, to improve his class, and he resorted to the fraudulent enterprise of prophecy to overcome his humble origin. The other branch of defamatory literature focuses on secular power as the prime motivation for undertaking the prophecy fraud. According to this thesis, the Prophet invoked divinity to seek and obtain a kingdom. This thesis highlights the wars with nonbelievers and presents these wars as further proof that the Prophet’s ultimate purpose was to install himself as the most powerful man in Arabia and beyond. One should not conclude, however, that defamatory scholarship does not meet resistance or repudiation in Western scholarly circles. Even at the time of the crusades, voices of reason, wisdom, and interfaith dialogue, though small in number and ineffective, were raised to protest the murderous intentions of hateful literature against Islam and Muslims. Even today, when Islam is being presented as a violent religion, some non-Muslim scholars are standing up to combat inaccuracies. Unfortunately, the defamatory scholarship has not abated in its purpose to sow the seeds of discord between the West and the Muslim world. In the Middle Ages, the European negativity toward Islam and its Prophet reflected the threat that an overwhelming Muslim domination posed to Christian Europe. South of the Mediterranean, Muslim powers held the whole of North Africa. In the east, the Ottoman Empire penetrated into the Balkans and was closing in on Hungary and Austria. The Muslim Tartars had seized much of southern Russia. In Christian Europe, Islam was seen as a competing religion that must be defeated by all means necessary. As Muslim empires began to lose their world domination and Europeans experienced a Protestant reformation coupled with an outward expansion through colonialism, the negativity toward Islam changed course. Overt hatred of Islam was no longer fashionable. Positive images of the Prophet began to appear in European literature. Scotsman Thomas Carlyle rejected the entrenched notion that the Prophet was a scheming imposter or that Islam was quackery and fatuity that deluded millions of people over hundreds of years. Western universities began to research Islam more seriously. Islamic 190

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Western Views of Islamic Law law was no longer declared to be backward and barbaric. The rise of Orientalism, however, analyzed Islam through the lens of colonial superiority. Furthermore, a more secular Europe began to see all religions, including Islam, through the lens of secular reason. European scholarship against Islam and its infrastructure would no longer be written to defend Christianity. An intellectual Europe, fascinated with science and the scientific method, shunned pre-rational aversion of Islam. It embarked on a rational scrutiny of Islamic history and fiqh. It was now determined to demonstrate that the Muslim history of Islam was founded on uncritical devotion to original sources. No longer would the Prophet be portrayed as an imposter. Secular Europe began to research Muslim opiniojurists and historians who allegedly defrauded the world through false historical accounts. In all these periods, external scholarship produced in the West was predominantly ignored in the fiqh markets. It also failed to build durable inter-faith bridges. The following discussion is offered to furnish examples of defamatory scholarship that not only failed to influence the fiqh markets, but produced a culture of perceptions that paint Islam as an irrational, fraudulent, and wicked religion. It is hoped that a new generation of non-Muslim scholars will take a different course than the one taken in the past, and that they will produce gracious scholarship for the development of genuine and respectful inter-faith discourse. Scholarship on the Qur’an The fiqh markets assert that the Qur’an is God’s immutable word that has been preserved in its original purity. According to the Islamic tradition, the Qur’an was revealed to Prophet Muhammad in small portions, over a period of twenty-two years (610–32). In its original form, the Qur’an is an oral text that was later transferred to writing. Because of its oral textuality, the Qur’an is easy to remember. During the Prophet’s life, each and every portion of the revealed Qur’an was memorized in the minds of believers. In addition, all portions of the revelation were preserved in tangible media, including bones, palm leaves, and other materials. The first two caliphs, Abu Bakr (d. 634) and Umar (d. 644), gathered these pieces of the Qur’an and prepared a written copy of the entire scripture, known as mushaif, which was under the custody of Hafsa, Caliph Umar’s daughter. Caliph Uthman (d. 661) appointed a committee under the chairmanship of Zaid bin 191

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Contemporary Ijtihad Thabit, the Prophet’s scribe, to collect a final and authentic copy of the Qur’an. Within thirty years of the Prophet’s death, the entire text of the Qur’an had been standardized in accordance with the dialect of the Quraysh. The standardized copy was reduced to writing and sent to the major cities of an expanding Islamic empire. Beginning in the twentieth century, non-Muslim scholars, almost all of them in the West, began to challenge the Islamic consensus about the compilation of the Qur’an. In 1915, Alphonse Mingana argued that the Qur’an was compiled in the reign of the Umayyad Caliph Abd al Malik (685–705), and not during the reign of Caliph Uthman.7 In the 1970s, John Wansbrough located a compilation of the Qur’an dated even later, toward the end of the eighth century.8 He asserted that the canonical Qur’an appeared in the eighth century, simultaneously with the appearance of exegetical literature (tafsir). Patricia Crone and Michael Cook reaffirmed Mingana’s views and placed the Qur’an in Caliph Malik’s reign with an additional twist. Crone and Cook argued that the Qur’an was written in Caliph Malik’s reign, projected back in time, and attributed to the Prophet. These assertions about the history of the Qur’an point to an inescapable conclusion that a great fraud was perpetrated centuries ago. The fiqh markets disregarded these findings about the Qur’an. A great controversy, however, erupted in Western scholarly circles. Commenting on Wansbrough’s findings, Estelle Whelan points out that his thesis leads to an inescapable conclusion, though Wansbrough does not say it, that the entire Muslim tradition about the early preservation of “the Qur’an is a pious forgery, a forgery so immediately effective and so all-pervasive in its acceptance that no trace of independent contemporary evidence has survived to betray it.”9 Some non-Muslim scholars, though they may reject “new findings” about the origin of the Qur’an, nonetheless argue that the Qur’an was written from external sources available to the Prophet. The Qur’an contains numerous biblical stories, though most are described in less detail than versions found in the Old and New Testaments. The Qur’an describes events related to Adam, Eve, Abraham, Isaac, Ishmael, Jacob, Noah, John the Baptist, Mary, and Jesus. Old Testament episodes are mentioned more frequently than New Testament events, and there is no mention of Mark, Luke, Peter, Paul, or John. Western scholars have raised the question of the sources of these stories. As a result, three distinct views have emerged from Western scholarship. The first view is that the Prophet 192

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Western Views of Islamic Law could read and write or, barring that, he heard biblical stories from his Jewish and Christian friends. The second view argues that biblical stories had become part of Arab folklore and were circulating when the Prophet was receiving the revelations. The third view credits the Qur’an to the Talmud, contending that the Prophet gathered these stories from the Talmud, which had been completed by the time the Prophet started his ministry. At the heart of these theories is a simple assertion that the Qur’an is not the Word of God, but the Prophet made it up by borrowing stories from biblical sources. The fiqh markets are quite familiar with these charges and no findings are likely to undermine the markets’ confidence in the Qur’an’s truth. Ever since its revelation, the attacks on the Qur’an’s genuineness have been relentless. The Qur’an itself mentions the charges of iftra (invention) made against its authenticity. These iftra charges include that the Prophet fabricated the Qur’an, that “this is nothing but the tales of the ancient,” and that the Qur’an is mere poetry. “We have not instructed the [Prophet] in poetry,” says the Qur’an. Reaffirming its relationship with previous revelations, the Qur’an presents the concept of the Mother Book. From this Mother Book are derived the Old Testament, the New Testament, and the Qur’an. “This Qur’an is not such as can be produced by other than Allah; on the contrary it is a confirmation of [revelations] that went before it, and a fuller explanation of the [Mother] Book – wherein there is no doubt – from the Lord of the worlds.” Therefore, the fiqh markets also connect the Qur’an with Christian and Jewish sources. And yet external scholarship and the fiqh markets stand apart on the subject. External scholarship sees the connection in terms of secular borrowing, while the fiqh markets view the connection in terms of spiritual unity of all revelations. The two viewpoints cannot be reconciled, meaning that on this point the disengagement principle offers the best solution. The defamatory scholarship creates dangerous chasms between religions and cultures when it argues that the Qur’an is wicked. In past centuries, few European publishers dared to publish translations of the Qur’an, because even the publishers of Latin translations that had smeared the Qur’an were “rebuked for disseminating such damnable material.” Most writers attacked the Qur’an on hearsay without reading it in Arabic or in their own tongue. The first English translation of the Qur’an appeared in 1649 without a named translator, publisher, or printer. Its lack of credibility was further illuminated by Alexander Ross, who introduced the translation with a 193

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Contemporary Ijtihad scathing preface to mitigate the act of publication. The translator, wrote Ross, bared a monster whose ugliness enhanced the beauty of the Gospels and therefore no reader should consider this translation as an act of proselytizing. The Qur’an is “without head or tail . . . being immethodical and confused, contradictory in many things, written in rude language, consisting of lies and useless follies.” It was not enough, however, to portray the Qur’an as “immethodical” and “rude.” The portrayal of Muhammad as the incarnation of the Devil or Anti-Christ was a favorite theme of the Middle Ages that lasted until the beginning of the eighteenth century. In fact, some of these conceptions originated in Byzantine literature during the period when the Byzantine Empire was fighting for its survival. The more recent attacks on the Qur’an’s integrity have come from a pair of scholars who wrote a book in their youth in England. Michael Cook and Patricia Crone argue that there exists “no hard evidence for the existence of the Koran in any form before the last decade of the seventh century.” They surmised that the Qur’an was assembled from a plurality of materials, put together possibly by Al-Hajjaj, who governed Iraq during the suggested period. The authors also insist that the literary character of the Qur’an, which lacks an overall structure, links disparate materials, repeats whole passages in variant versions, and uses obscure language; all of these editorial imperfections suggest that the Qur’an was “a sudden, not to say hurried, event.” This charge challenges a core belief of the fiqh markets that the Qur’an was revealed to Prophet Muhammad over a period of twenty-two years and collected soon after his death. Under the disengagement principle, the fiqh markets, for the most part, ignored the Cook and Crone thesis. Additionally, the Cook and Crone thesis was condemned in Western intellectual circles. Michael Morony called it a “thin piece of Kulturgeschichte full of glib generalizations, facile assumptions, and tiresome jargon.” Leon Nemoy questions the sources that Cook and Crone used to attribute a Machiavellian tour de force to the seventh-century Arabs, including the Prophet. Cook and Crone, however, shower gratitude on J. Wansbrough for giving them the courage to rethink the conventional Islamic sources. Nemoy remarks that the “eccentricity” of Hagarism “lies as much in its historical methodology as in its controversial thesis.” Indeed, in interviews with the authors of this book, Cook and Crone remarked that they no longer subscribe to their thesis about the Qur’an, though Crone was more forthcoming in her repudiation. As indicated earlier, the fiqh markets are likely to disre194

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Western Views of Islamic Law gard all scholarship that Cook and Crone produce about Islam and Islamic law, simply because the fiqh markets will no longer trust their motive and research. Scholarship on the Prophet The fiqh markets resent the defamatory scholarship that portrays the Prophet Muhammad disrespectfully. Respect for the Prophet Muhammad and all biblical prophets is a cardinal principle of Islamic faith. Even more generally, the Qur’an prohibits annoying believers. Even though Muslims worship one God and no one else, the principle of respect defines the ethos of Islam. In external scholarship, almost all prophets have been accused of being mad men. Moses, Noah, and Muhammad have all been called sorcerers, men possessed. Defamatory scholarship has relentlessly demonized the Prophet of Islam over the centuries. Because the Prophet was the transmitter of the Qur’an and the author of the Sunnah, he is the ultimate source of the Basic Code from which the entire Islamic faith is directly or indirectly derived. All roads of Islamic law lead back to the Prophet. All Muslim scholars know this fundamental fact. If it can be successfully shown that the Prophet was a fraudulent operator, as the defamatory scholars seem to believe, the edifice of Islamic law borne of God’s word (Qur’an) and God-inspired wisdom (Sunnah) would crumble. Scholarly attempts to discredit the Prophet have been inefficacious. The fiqh markets refuse to cast doubt on the Prophet’s piety, sincerity, or credibility. The defamatory scholarship about the Prophet makes no positive contributions to the fiqh markets, but generates disrespect for Islam and deepens misunderstanding between cultures and civilizations. Elie Salem researched the Elizabethan literature to retrieve the images of the Prophet found in the writings of travelers, historians, and publicists. For the most part, substandard research informed the literature.10 Even Muhammad’s basic biographical facts were reported inaccurately. Some writers presented Muhammad as being of Jewish ancestry, some as a Persian, some as of unknown origin, and some as a slave sold to a Palestinian merchant. Some took his wife Khadijah as his mother; while others reported that he finished writing the Qur’an at the age of twenty-five. In the Latin literature, Muhammad was portrayed as a citizen of Rome who, upon failing to become a pope, rebelled against the Church. Disrespectful stories most popular in Europe were invented during 195

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Contemporary Ijtihad the Middle Ages; they lingered in the Elizabethan era and have not yet vanished completely from Western consciousness. One story presents the Prophet as suffering from epilepsy or “falling sickness,” a disease that “took him so extremely, that he groveled along the ground and foamed piteously at his mouth.” The story about the Prophet’s death is also inaccurate, as it incorporates all things forbidden in Islam. According to the story reported by several authors, the Prophet drank a large quantity of poisoned wine and subsequently suffered a seizure and died. This resulted in his body – which was partly eaten by boars – to begin to rot in the open as it waited to be resurrected, and when nothing happened it was transported to the famous temple of Mecca. Such stories not only show disrespect for the Prophet, but they also paint Muslims as ignorant believers. Even US Supreme Court cases refer to an untrue story known as “Mahomet’s coffin.” A story popular in Europe, but unknown in the Islamic world, narrates that Prophet Muhammad’s coffin is hung in the air separating the ground and the sky, the iron coffin held there by two powerful magnets. Edward Pococke (1604–91), the first chaired professor of Arabic studies at Oxford, repudiated the story with ridicule. The story, however, lingered in popular fables. The story’s metaphorical meaning survived even longer. In 1799, the US Supreme Court referred to the story in regard to a legal action that failed in both law and equity jurisdictions because the remedy was suspended between law and equity.11 This metaphor has not totally disappeared from court opinions. It has been used thirty times in the state courts of Michigan, Kansas, Texas, Pennsylvania, Florida, and others. More recently, the Georgia Court of Appeals used the metaphor in 1970. It is unclear whether the American courts were aware of the historical meaning of the metaphor. If they were, the use of the metaphor demonstrates a highly negative image of the Prophet Muhammad prevalent even among the educated classes. Disrespectful stories about the Prophet may have been written in missionary circles that wanted to promote Christianity by all means necessary, but have since been accepted and promoted in subsequent scholarly works. Non-Muslim scholars who knew better made little effort, perhaps out of cultural or political fears, to present a more accurate account of the Prophet. Consider another story contending that the Prophet kept a dove and trained the bird to eat from his ear. This charade, as the story goes, was perpetrated to fool the Arabs that the dove was the archangel, the Holy Ghost, uttering God’s revelations in the Prophet’s ears. The story was perpetuated 196

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Western Views of Islamic Law in the works of Hugo Grotius, a great Dutch jurist and the father of modern international law, who knew that the story was not based on Muslim authority. This story was so popular that even Shakespeare could not resist its inclusion into one of his plays: “Was Mahomet inspired with a dove?” Ironically, Voltaire, himself guilty of writing a scandalous play on the Prophet, offered a line delivered through the Prophet that ridicules false stories: “prejudice rules o’er the vulgar with despotic sway.”12 When the most learned scholars embrace false stories, the fiqh markets begin to apply the disengagement principle even more strictly. Mistrust disrupts even positive communications between internal and non-Muslim scholars. During the twentieth century, defamatory scholarship continued to generate speculative but disrespectful theories about the Prophet. In 1928, William Worrel acknowledged that the old Western view that the Prophet was epileptic had been abandoned. However, he presents his own speculative thesis that the Prophet suffered from some sort of sexual ailment that, in its suppressive stage in Mecca, produced poetry and prophecy. However, the Prophet lost these gifts after his many marriages. His tranquil life with several wives in Medina, says Worrel, released him from his poetic prophecy, causing a “sore decline in poetic quality, sincerity, humility, idealism, and spirituality.”13 Defamatory scholarship is determined to revise history to show that at no point did there exist any respect for the Prophet in the external circles of scholarship. Yehuda Shamir argues that Maimonides, a great Jewish philosopher, who was raised in the Islamic culture, believed that Muhammad was a madman and a plagiarist who stole from the prophecies of Moses.14 Shamir begins with the assumption that Maimonides, who lived in Egypt and who had experienced fanaticism, could not have openly spoken his mind about Islam and its Prophet. Accordingly, Maimonides left subtle and indirect clues in his writings to reveal his innermost thoughts. Decoding overt and covert messages in Maimonides’ writings, Shamir discovers that Maimonides held Muhammad to be a false prophet for many reasons, including that the Prophet was illiterate and had too many wives. True prophets are supposedly rational and unimaginative; and they banish all pleasures of the flesh. This reading of Maimonides’ scholarship fails to explain why numerous biblical prophets were polygamous. It also fails to note, for most scholars of faith, that reason is not opposed to imagination or vice versa. In our own times, the caricatured views of the Prophet of Islam 197

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Contemporary Ijtihad continue to occupy popular and scholarly Western consciousness. In the popular media, cartoons of the Prophet have been published to portray him as a terrorist. Pope Benedict XVI quoted a fourteenthcentury Christian emperor to insinuate that the Prophet of Islam brought the world only evil and inhuman things. Gratuitous defamation of Islam fuels the rage of Muslims, and provides public relations ammunition to Muslim militants engaged in wars with the United States and its allies. Note, however, the overt and media-driven disrespect for the Prophet is nearly absent in the largest non-Muslim nations of India and China. An exclusive obsession in the West, the defamation of the Prophet is a losing proposition that turns off the fiqh markets, infuriates the Muslim world, disrupts scholarly communications between Muslim and non-Muslim scholars, and can incite young Muslims living in the West to resort to violence.

Dubious Scholarship Not all external scholarship can be divided into two neat categories of gracious and defamatory. Some external scholarship may fall into the middle. This scholarship may be founded on questionable assumptions about Islam that nonetheless raises serious and difficult questions that the fiqh markets must attempt to answer. Controversies about the Prophet’s Sunnah, for example, are not foreign to the fiqh markets. Early Muslim opiniojurists spent decades sorting out the authentic ahadith. The fiqh markets may engage with non-Muslim scholars who challenge the authority of what Muslims consider to be authentic ahadith. Similarly, the question of whether Muslim opiniojurists borrowed from external sources may be examined. The fiqh markets are open to external ideas compatible with the Basic Code. Muslim opiniojurists commit no wrong if they borrow useful methodologies, even substantive rules, from external source and demonstrate that borrowed methodologies and rules are compatible with the principles of the Qur’an and Sunnah. The following discussion provides examples of where non-Muslim scholars might be engaged. Western scholars need to be watchful about potentially dubious scholarship produced in prestigious institutions and departments of Islamic studies. They must ask a simple question: is the scholarship they rely on credible in the fiqh markets? The creditworthiness of external scholarship does not, of course, depend upon its acceptance in Muslim juristic circles. However, Western scholars, looking for 198

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Western Views of Islamic Law influence in the Muslim world, should employ the test of the fiqh markets. If the fiqh markets ignore a certain form of scholarship, a presumption can be made that the ignored works are probably dubious in the eyes of Muslim opiniojurists. Future Western scholars may continue to refine the works ignored in the fiqh markets, but they run the risk of spending time and resources on a form of scholarship that will produce no tangible benefits in the Muslim world. Needless to say, Western scholars need not always seek influence in the fiqh markets and instead may continue to produce scholarship in a spirit of free inquiry. The following discussion illustrates the failed Western attempts to reform Islamic law and theology. Scholarship on the Sunnah More than a thousand years after Muslim opiniojurists perfected the science of identifying authentic ahadith, the controversy over the authenticity of the Sunnah erupted again, this time not in the fiqh markets but in external circles of the West that had colonized almost the entire Muslim world. A new generation of Western scholars, Jews and Christians, began to attack the veracity of the Sunnah. Some of these scholars spent time in Muslim countries and learned Arabic and Persian in order to gain legitimacy and inside information found in the ancient manuscripts of Islamic religious tradition. They concluded that the entire enterprise of the Sunnah was fabricated and fraudulent. Ignaz Goldziher, an Austrian Jew who experienced “the best, the happiest, and the most fruitful time of his life” in Damascus and Cairo, led the charge on the Sunnah authenticity. Goldziher contended that the hadith served as an open-ended source, as a convenient mode, to borrow rules and principles from “Old and New Testaments, rabbinic sayings, quotes from apocryphal gospels, and even doctrines of Greek philosophers and maxims of Persian and Indian wisdom.”15 This contention implies that a mass fraud was being committed in the Muslim world, and Muslim scholars were deceitful plagiarists who, disregarding their faith, were freely stealing materials from external sources and putting them in the Prophet’s mouth with impeccable chains of transmission. It also implies that Muslim scholars who spent their lives identifying the fabricated ahadith were intellectual dopes who either completely failed in their research or they themselves were fabricators. These conclusions, exposing a massive fraud in the Sunnah, are unlikely to influence the free markets of Islamic law. 199

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Contemporary Ijtihad Joseph Schacht, a Polish Catholic who was raised in Poland and who spent several adult years in Cairo learning Islamic law, carried on the attack of the Sunnah, providing legitimacy to Goldhizer’s dubious findings. Schacht praised Goldziher and his conclusion that the Sunnah is “not the inherited knowledge of the views and practices of Muhammad . . . but rather reflect opinions held during the first two and a half centuries after the hijra.” Schacht calls it a “fundamental discovery.” “For the first time,” says Schacht, “our study of early Islam” has been put “on a sound basis.” Rejecting the Islamic conceptions of the Sunnah, Schacht concludes that the West “must . . . abandon the gratuitous assumptions that there existed originally an authentic core of ahadith going back to the . . . Prophet.” The recognition of any such core, says Schacht, is prejudicial to the historical understanding of ahadith. As far as legal ahadith are concerned, Schacht posits a broad thesis that all these traditions containing legal elements must be presumed “fictitious” until the contrary is proved.16 This shifting of presumption and burden on the veracity of legal ahadith turns Islamic fiqh on its head, throwing away centuries of scholarly efforts to extract and refine rules from the rich mines of the Sunnah. Schacht emphasizes the fraudulent nature of isnads (chain of transmission), which confer legitimacy on the contents of ahadith. Islamic legal methodology places special emphasis on isnads for tracing the accuracy and reliability of a reported hadith. Isnads are transmission lines, and each isnad constitutes a chain of persons through which the contents of a hadith were transmitted. An isnad may work as follows: D heard from C, C heard from B, B heard from A, and A heard from the Prophet. D, C, B, and A are persons belonging to different periods. If any person in the chain was of doubtful character, the hadith was not rated highly. But if all the transmitters in the chain are persons of credible knowledge and piety, the hadith is considered authentic. Challenging this methodology, Schacht argues that the reliability of the chain is a sure indication of its fraudulent nature: “the more perfect the isnad, the later the tradition hadith.” In this fraudulent enterprise of manufacturing prophetic traditions, Schacht focuses on what might be called the family fraud. Schacht points out that manufacturing ahadith within a family occurs when the sequential transmitters are related to each other, “e.g. from father to son and grandson, from aunt to nephew, or from master to freedman.” Whereas Muslim scholars of ahadith analyze each hadith 200

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Western Views of Islamic Law on its own merit, Schacht presents a broad thesis of fraud, asserting that “the existence of a family isnad, contrary to what it pretends, is a positive indication that the tradition in question is not authentic.” Schacht furnishes good insights into the dynamics of intellectual fraud. If someone is going to invent a hadith for worldly gain, he might as well do it right. A consummate crook will therefore forge the isnad as well as the matn (substance). A hadith with a highly reliable chain of transmitters, which include the Prophet’s family members and highly regarded companions of the Prophet, will obviously look good on its face, adding apparent legitimacy to the matn. By contrast, only a stupid forger will invent a momentous hadith to advance or protect worldly matters, but will choose a dubious line of transmission that includes thieves, liars, or other criminal characters as the intergenerational transmitters who ultimately attribute the matn to the Prophet. It does not take a genius to figure out the dynamics of such a fraud. And if so, one wonders why ahadith with dubious transmitters would ever enter the fiqh markets. Schacht’s fraud theory would have some credibility if the Sunnah was fabricated in the secret chambers of an imperial government. The ahadith freely circulated in the fiqh markets, and any scholar was perfectly free to judge the validity of any hadith. The free markets in the Muslim world would raise a storm if state officials or fraudulent theologians were pumping fabricated ahadith into the system. To believe in Schacht’s fraud theory, we are left with no option but to assume that the fiqh markets of private opiniojurists and scholars were corrupt or that there existed a grand and monolithic conspiracy to deceive ordinary Muslims with fabricated sayings of the Prophet. Historical facts, and even common sense, do not support the existence of a monumental fraud industry working in tandem to manufacture ahadith for crass, worldly gains. The fiqh markets produced dozens of competing schools of jurisprudence that were fiercely independent of imperial government as well as each other. Each school of scholars was free to judge and critique each other’s assumptions, materials, analysis, and conclusions. These schools did show profound respect for each other, but no evidence exists that they cooperated with each other to hoodwink their followers. Furthermore, the schools came up with competing solutions to the same problem. This jurisprudential diversity constructed in the fiqh markets demonstrates that legal scholars were not engaged in some monumental scam to fabricate the materials in the Sunnah. Goldziher and Schacht stunned Western scholars with their “fraud 201

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Contemporary Ijtihad findings,” as if an unassailable truth had been found to discard an essential part of the Basic Code. Any further investigation into the truth of the Sunnah was abandoned for the most part in the Western literature. Dismissing the scholarly works of Muslim opiniojurists spanning over fourteen centuries, Goldziher and Schacht were also determined to shock the Muslim world with their fraud discoveries. But the fiqh markets were too seasoned to discard an entire past on the basis of fraud charges that non-Muslim jurists made a thousand years later. For the most part, the fiqh markets did not receive the Goldziher and Schacht studies. Even Muslim scholars who might have known about these studies would dismiss them as enemy propaganda. Goldziher and Schacht challenge an established presumption in the fiqh markets. For over twelve hundred years, and after an intense controversy over fabricated ahadith in the first two centuries of Islam, the fiqh markets have settled the issue of the authenticity of the Sunnah. It is unlikely that the fiqh markets would discard the Sunnah on the basis of reasoning offered by two non-Muslims, far removed in time and from original sources, especially when they challenge the Qur’an as God’s Word. Goldziher and Schacht may shine in external circles, but the pietistic and rational fiqh markets have no place for non-Muslim scholars who analyze the Basic Code in a state of unbelief. Despite the vacuity of his thesis, Schacht remains a scholar of Islamic law in the Western world. His works are cited as an authority on the subject, even though non-Muslim scholars have also criticized Schacht’s findings. The fiqh markets have dismissed his work without much debate, but non-Muslim scholars continue to pay homage to him.17 Once an erroneous work on Islamic law gains influence in external circles, subsequent scholars begin to rely on it, and the ripple effect compounds the error for generations. Scholarship on Borrowing Another theme that runs through Western scholarship is the charge that Muslim opiniojurists, including the Prophet himself, borrowed laws and jurisprudence from Jewish, Christian, Greek, and Roman sources. Implicit in this charge is perhaps the presumption that the Islamic tradition has been inherently incompetent in generating its own laws. Goldziher contends that Prophet Muhammad borrowed from Zoroastrianism that the Sabbath day was not a rest day. 202

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Western Views of Islamic Law According to the Qur’an, God made the universe in six days, but there is no mention that He rested on the seventh day. In another verse, the Qur’an declares that God needs no rest, slumber, or sleep because He feels no fatigue. Accordingly, there is no Sabbath in Islam. Muslims are obligated to leave work for the Friday afternoon community prayer (al-Jummah) but they are free to do business before and after the service. Jacob Lassner argues that in finding parallels between Moses and Muhammad, Muslim exegetes were linking the Islamic tradition with the Jewish tradition and claiming the Jewish history to be their own.18 In selecting Muhammad to the Prophethood at the age of forty, an age that embodies a perfect balance of physical and intellectual powers, God was invoking the ancient Jewish tradition, says Lessner, because Moses too was summoned to Prophethood at the same age. Lessner relies primarily on Ibn Ishaq’s biography (the first biography of the Prophet that has survived) to advance his thesis of linkage. Lessner leaves the impression that Ibn Ishaq was deliberately fabricating Muhammad’s age of prophecy for an ulterior motive. That is, Ibn Ishaq was not simply reporting a fact but constructing a mystical linkage between Moses and Muhammad. Lessner knows that the Qur’an itself declares that the man achieves his full strength at the age of forty years. The Qur’an, however, makes no connections between Moses’ ministry and the age of forty. On the contrary, the Qur’an clarifies that Moses was given forty nights, and not forty years, for pre-prophetic solitude. Lessner offers no explanation as to why Ibn Ishaq would create the age linkage that the Qur’an does not support. Seemingly inspired by the works of Goldziher and Schacht, and relying heavily on the linguistic findings of other scholars, Judith Romney Wegner claims that the four basic sources of Islamic fiqh – Qur’an, Sunnah, ijmah (consensus), and qiyas (reasoning) – have all been borrowed from the Torah and the Talmud.19 The first two sources, the Qur’an and the Sunnah, are related both etymologically and conceptually to the Hebrew terms. The Qur’an is derived from Miqra (Torah) and the Sunnah is drawn from Mishnah (Jewish oral law). Ijmah, the third source, is conceptually related to ha-kol in that each term means juristic consensus. The fourth source of Islamic law, qiyas, tells the story of what Wegner calls “misborrowing” from Jewish sources. Qiyas, which is reasoning by analogy, was indeed a Talmudic legal method, says Wegner, which Muslim opiniojurists imported into the Islamic fiqh. However, in borrowing the 203

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Contemporary Ijtihad concept, the Arabs misapplied the Hebrew phrase. Finding no clear etymological connections between qiyas and some Hebrew/Talmudic phrase, Wegner conjectures that “what must have occurred here was a misreading of the Talmudic maqqi’s.” Wegner seems resolute in finding connections between Islamic and Talmudic jurisprudence. When Wegner cannot find direct borrowing from Hebrew/Talmudic sources, she paves a more belabored route to show the way. In furnishing these connections, however, Wegner does not explain the reason and motive behind juristic borrowings. Hebrew and Arabic were related languages, as are Urdu, Persian, and Arabic today. Words in closely related languages may have shared roots, but the shades of meaning frequently change as words cross languages. Some words undergo dramatic changes and are “misborrowed” when they enter into other languages. If Wegner is indulging in Hebrew/Arabic linguistic cross-influences, she will find hundreds of words to prove her point, words both inside and outside Islamic and Talmudic jurisprudence. What she seems to be doing is establishing the superiority and originality of Talmudic jurisprudence over Islamic fiqh. She is painting a picture in which first the Prophet and then later Muslim opiniojurists freely borrowed, over a period of more than two hundred years, from Jewish sources without crediting the Torah and Talmudic law. Wegner comes close to laying the charges of jurisprudential plagiarism. To promote her creditor–debtor thesis, Wegner relies on etymology as much as she does on concepts. In her analysis, she seems to be suggesting, hopefully unwittingly, how a lesser people with a lesser language and lesser minds appropriated developed concepts from a superior legal tradition, instead of applying rigor and industry to the intricacies of their new faith-based jurisprudence. Wegner’s thesis of Islam’s clandestine acquisitions from Jewish texts is momentous in the case of the Qur’an. The concept of the Qur’an, both as a book of divine revelation and as a primary code of law, says Wegner, is Jewish in origin. Wegner invokes linguistic parallels that supposedly exist between the words Qur’an and miqra to show that “in coining the term qur’an, Muhammad used Hebrew/ Aramaic terminology.” The word Qur’an was apparently invented to absorb the meaning of miqra, which refers to Torah read aloud during public worship. Wegner allows the possibility that the word Qur’an might have been derived from the Aramaic word qeryana, itself a term for “reading,” a word that Christians used for their scriptures. However, Wegner notes that miqra, both as a word and 204

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Western Views of Islamic Law as a concept, was in ritual practice over five centuries before the beginning of the Christian era. Thus, per Wegner, even if the Qur’an is morphologically closer to Christian qeryana, both words qeryana and qur’an on “a first come, first served” basis would be derivatives of Jewish miqra. Wegner offers no original research of her own to trace the origin of the word Qur’an from miqra. She credits her linguistic thesis to Arthur Jeffrey, an author of a book on the foreign vocabulary in the Qur’an.20 Borrowing from Jeffrey, Wegner intimates that the word Qur’an is derived from qara’a. To this extent, Wegner breaks no new ground, as other scholars would agree to a similar origin. The next step Wegner takes, however, is critical. She asserts that the word qara’a has no native root in Arabic but is derived from Hebrew/Aramaic sources. Wegner proposes that the word qara’a first appeared in the north Semitic languages (Hebrew and Aramaic) and not in Arabic, “because of the earlier development of literacy among the northern Semites.” Put simply, Wegner is saying that since northern Semites could read long before Arabs, the word qara’a (translated as reading) is a Jewish invention. While Wegner might be correct, the problem with her bold assertion is that qara’a also means “to recite,” a fact that Wegner admits in a footnote. Since qara’a (translated as recitation) is the ritual of an oral culture, as the culture of southern Semites (Arabs) is portrayed, it is equally likely the root word qara’a originated in oral communities. It must be kept in mind that the Qur’an was revealed as an oral text, for God did not send the Qur’an in a written form. Indeed, suppose that the root word qara’a originated in literate north Semitic communities. Even then, Wegner’s thesis need not be damaging, since an additional question must be asked: in which period did the word originate? Since miqra is derived from qara’a and since miqra denoted Torah read in synagogues, the root word qara’a must have preceded miqra. Wegner herself assumes that the ritual of miqra had been invented at least 500 years before Christ, “since the time of Ezra in the fifth century bc.” In terms of Islam, this would mean that the word miqra existed in north Semitic languages for at least 1,100 years before the Qur’an was first revealed to Prophet Muhammad in 610. In these 1,100 years, we cannot assume that qara’a remained confined to the north and did not enter the south Semitic dialects. Scores of Jewish tribes lived in south Arabia, including Medina and other towns. These tribes were reading Torah in synagogues. It is highly unlikely that the Jews in Medina were 205

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Contemporary Ijtihad equally unfamiliar with the word qara’a. A more sensible conclusion would seem to yield that the word qara’a had entered the Arabic language, perhaps due to the courtesy of local Jewish tribes, long before the Prophet began to receive the Qur’an. It is highly improbable that the word qara’a was a foreign word in seventh-century Arabia. According to the Islamic tradition, the very first word revealed to the Prophet was iqra, another word derived from qara’a. If qara’a and its derivatives were foreign words, it is unclear why the Qur’an would use a foreign word as its first word, a word foreign to the Prophet. After all, the purpose of the revelation was to empower the Prophet to convey God’s message to the people of Arabia: “And thus: We have revealed to you a Qur’an in Arabic so that you may warn the major cities and those who dwell around it.” It defies common sense that, according to external scholarship, neither the Prophet nor his Arab audience knew the very first word of the first revelation of the Qur’an. Wegner is not alone in asserting the presence of foreign words in the Qur’an. There has been a sturdy scholarly industry devoted to finding foreign words in the Qur’an. For example, the word iman (faith), which connotes believing, embodies a fundamental concept of the Qur’an. Muminin is a person who possesses iman, one who believes. The Qur’an repeatedly addresses Muslims as muminin. Helmer Ringgren correctly points out that the word muminin and its plural mu’miniin appear more frequently in the Qur’an than the word Muslim.21 Ringgren makes these accurate observations, though, to further argue that the word – amana – from which the words iman, mu’miniin, and muminin are derived – in the sense of “believing” is “a loan-word,” borrowed from Syriac, Aramaic, Ethiopic, or Hebrew. He concedes, however, that the word amana in the sense of “safety” did exist in Arabic. But the native meaning of amana, concludes Ringgren, does not fully explain most verses of the Qur’an in which amana connotes the belief of the mind and of the heart. It is unclear how Ringgren’s linguistic assertion, even if it is credible, will change any article of faith in the fiqh markets. External scholarship that is determined to find foreign words in the Qur’an aims at refuting the claim that the Qur’an was revealed in clear Arabic, contrary to the Qur’an, which says, “Behold, We have made it a Qur’an in clear Arabic language that you may fully understand” (12:2). By showing the presence of foreign words in the Qur’an, external scholarship is also suggesting, as discussed above, that the Prophet was writing the Qur’an by consulting foreign 206

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Western Views of Islamic Law sources. At the time of revelation, however, the objections were raised from the opposite side. The critics were questioning why the Qur’an was revealed in Arabic and not in another language. To these objections, the Qur’an offers the following answer: Now if We had made it a Qur’an in a non-Arabic tongue they would surely have said, “Why is it that its verses have not been made clear? Why – a foreign tongue and an Arab (messenger)?” Say, “For those who accept it, this is a guidance and a healing for a wholesome life. But as for those who will not believe [Arabs or non-Arabs], in their ears is deafness, and so it remains obscure to them.” They are like a people who have been addressed from a faraway place. (41:44)

This feisty divine rebuke makes the simple argument that the Qur’an was revealed in Arabic so that the Prophet, who spoke Arabic, could teach it to the first audience. The metalingual Qur’an was revealed for the entire world. In light of the metalingual universality of the Qur’an, the fiqh markets disregard etymological scholarship that belabors to show that numerous words of the Qur’an originated in other regional languages. If the Prophet knew the foreign words, the Qur’an’s argument is intact. Furthermore, the point is trivial. According to the Qur’an, God is the creator of all languages: “And among His Signs is the creation of the heavens and the earth, and the variations in your languages and your colors” (30:22). The presence of foreign words does not diminish the revelatory character of the Qur’an. In the ultimate sense, the Qur’an is metalingual. For Muslims, speaking all the languages of the world, the message of the Qur’an is in the meaning of the verses. Contemporary fiqh markets, active in numerous languages, a point discussed in Chapter 2, are less preoccupied with the language as were the classical fiqh markets.

Muslim Vigilance In recent decades, Muslims throughout the world have become highly vigilant about what is being written and said about Islam, the Qur’an, and the Prophet. This vigilance is both scholarly and popular. At the scholarly level, Muslim opiniojurists are vigilant about external scholarship that defames Islam. They are also aware of international pressures exerted upon Muslim governments to modify certain rules of Islamic law. With the popular law, Muslims react forcefully, and sometimes violently, when Islamic beliefs are ridiculed as rubbish. This new phenomenon of Muslim vigilance may 207

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Contemporary Ijtihad have a restraining influence on defamatory scholarship. It may also spark counter-reactions in the Western world, producing even more hostile and prejudiced views about Muslims and Islam. Contemporary ijtihad must reckon with external forces, including international institutions, which pressure Muslim opiniojurists and governments to respond to external concerns over certain fiqh rules. Because Islam is not an organized religion, however, external forces are rarely successful in shaping the Islamic fiqh. Organized religions, such as the Mormon Church, are more susceptible to external pressures. Its leadership may be persuaded, coerced, or threatened to change Church law. The US Supreme Court, for example, outlawed the Mormon Church’s permissive rules on polygamy. The Mormon Church was threatened with forfeiture of its property if it did not comply with the laws of the federal government in outlawing polygamy. In order to preserve itself, the Mormon Church changed its doctrine on polygamy. External coercions may likewise pressure Muslim governments not to enforce certain rules of the fiqh, but they are unlikely to coerce the fiqh markets. Thus, free markets protect what Muslim governments cannot. For example, Muslim states have come under external pressure to change some rules of the Islamic fiqh. An international campaign has been launched to change the Islamic law of apostasy, under which a Muslim who converts to another religion faces the death penalty. Since conversions from Islam are few and far between, the campaign has been unable to gain momentum. But even when a Muslim’s conversion to another religion receives international attention, Muslim states diffuse the matter by finding a loophole, such as the convert’s mental illness, for not enforcing the apostasy law. Some resist the pressure and uphold the law. Even when Muslim states succumb to external pressures, the fiqh markets are immune from any forced changes. And even when Muslim governments are forced to modify well-established rules of the fiqh, the fiqh markets continue to uphold the validity of impugned rules. The fiqh markets may adopt more flexible rules on apostasy through a genuine reconsideration of the freedom of religion that the Qur’an preserves and mandates. External pressures will only stall the action of the fiqh markets. That pressure can coerce rulers but not the fiqh markets is evident from colonial coercions. Western colonial powers played a big role in forcing occupied Muslim communities to abandon some rules of fiqh. In Algeria, for example, colonial France passed laws to neutral208

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Western Views of Islamic Law ize the restrictive elements of waqf property. According to the Islamic law of waqf, property placed in a public trust could not be sold in the free market. Such public trusts are created to provide charitable services in perpetuity. This forcible change, however, did not dismantle the Islamic law of waqf property, which has served Islamic civilization for centuries.22 Geopolitical Rivalries In the twentieth century, independence movements against European colonialism provided a backdrop for non-Muslim scholars to deform the letter and spirit of Islam. Even today, Bosnian Muslims seeking separation from Christian Serbs, Arabs struggling to regain occupied Palestine from European Jews, and Chechens fighting for independence from Russia, all these liberation movements have been successfully labeled as terrorism – as violent pictures of Islam. A new Western consensus has emerged, portraying Islam as essentially violent. Propagandists disguised as terrorist experts have been boldly arguing that the roots of terrorism sprout from the puritanical faith of Islam, and not from oppression, territorial theft, settlements, assassinations, and occupations. The 9/11 terrorist attacks proved a godsend for the propagandists. As before, geopolitical rivalries produced a massive scholarship of distortions. In pre-9/11 America, the Muslim world was seen through racial caricatures of Arabs and other Muslims and through the mixed menace of the Middle Eastern oil power and general social backwardness that had gripped most Muslim nations. In post-9/11 America, the understanding of Islam has been shockingly simplified. Islam is often equated with gratuitous violence. Since Muslims living in America constitute a marginal minority, they have few resources with which to turn the tide of distortions. The establishment of Israel in the Middle East has also spawned external scholarship that does not view Islam kindly. It is no secret that the Qur’an speaks more softly about Christians than Jews, even though in many aspects Islam is closer to Judaism. Sir William Muir notes the Qur’anic verses that capture the differing view of Jews and Christians and offers an explanation as to why the Qur’an treats the two communities of believers differently.23 The Prophet fully acknowledged the scriptures of Jews and Christians. The Christians were pleased that the Prophet had accepted the truth of their gospels, though with modifications. This acceptance was a welcome relief 209

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Contemporary Ijtihad as compared with the complete Judaic repudiation of the New Testament. Christians and Muslims were also aligned because they both believed in the Jewish scriptures. Furthermore, Muir states that per the Qur’an, Christians were not arrogant and they “are never accused of wresting the Scriptures, or dislocating passages from the context.” The scholarly distortions about Islam, whether written by Jews or Christians, are not mere theological disputes, but can lead to war: “At the time of the Crusades, preposterous tracts against Islam were common in the West. Some fabricated outrageous lies about Mohammed.”24 These lies paved the way for aggression and genocide. European warriors committed to the liberation of Holy Jerusalem “saw Muslims as godless heathens; others thought them polytheists who worshipped a blasphemous trinity of gods; still others thought they worshipped Muhammad himself.” Most of this confusion was introduced through scandalous scholarship. A similar phenomenon to paint Islam as a source of terrorism and fascism is brewing in parts of the Western world, particularly in the United States, where a legion of scholars are committed to misrepresent Islam. The role of non-Muslim scholars in intense periods of geopolitical rivalries, classical and contemporary, has been complex and complicit toward distortions. In such times, some non-Muslim scholars of Islam did have a more accurate understanding of Islam but said nothing, others fanned the ignorance, while still others manufactured their own distortions to perpetuate ignorance. The European age of distortions produced crusades. The American distortions have given birth to the war on terrorism. In every conflict-ridden period, some non-Muslim scholars, Jews and Christians, stood up against the tide and refused to lay the blame on the Basic Code or Islamic fiqh. Erosion of Language Barriers For centuries, external scholarship has been written in languages inaccessible to Muslim scholars, particularly European languages. For the most part, Islamic scholarship produced by Muslims was also inaccessible to non-Muslim scholars. There has been a language barrier between the two scholarships, with each enjoying its own audience. External scholarship is written primarily for non-Muslims, whereas internal scholarship is written for Muslims. Even internal scholarship is not always accessible to all Muslims. For example, 210

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Western Views of Islamic Law Islamic scholarship written in Arabic remains inaccessible to Muslims who do not speak Arabic. Even in external circles, language has been a barrier. It is unclear how frequently and how promptly the scholarship published in different European languages was accessible to non-Muslim scholars of Islam. The language and audience barriers may have emboldened external scholars to attack Islamic law more ferociously, and somewhat irresponsibly, because they knew that their theses would not reach Muslim scholars for rebuttal.25 Even in these segregated times, external scholarship was not free of all restraints. Some non-Muslim scholars were more sympathetic to Islam than others. This division among non-Muslim scholars created some scholarly rivalry, providing some checks and balances over their research methodologies and scholarly products. However, as Muslim scholars equipped with European languages begin to read and react to external scholarship, non-Muslim scholars will no longer be free to get away with inaccurate or sensational research. In the new world, the language barriers are quickly disappearing. Major works are promptly translated into the major languages of the world. Muslim scholars in the West can read the external literature, and the Islamic literature is now available in the external circles. Furthermore, Muslims speaking both Arabic and European languages have translated the Qur’an, the Sunnah, and other basic texts into European languages. These translations of basic Muslim texts furnish more reliable sources for scholarly research, free of distortions caused through negligence, incompetence, or malice. A new breed of scholars is producing external scholarship that is markedly different in tone and competence. This new external scholarship is owed to non-Muslim scholars from the Muslim world. Philip Hitti (1886–1978), a Christian Lebanese, has had great influence in introducing Islamic studies to the United States.26 Edward Said (1935–2003), a Christian Palestinian, has been even more influential in exposing distortions of the Orientalists.27 Even though these authors were not Muslims, they understood the culture, language, and traditions of the Muslim world. Scores of non-Muslim scholars from the Islamic world occupy influential positions at premier colleges and universities. Scholars who speak to both worlds with authority and credibility are a rare breed. Non-Muslim scholars unfamiliar with Islamic cultures, languages, and communities muster little credibility in the fiqh markets. Their scholarship has little positive influence on the 211

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Contemporary Ijtihad development of Islamic law – just as a Muslim scholar who loathes the Western world and holds Western values in open contempt ceases to speak to the Western world. Non-Muslim scholars with double connectivity may be able to produce more effective scholarship. Double connectivity, however, is not an automatic ticket to influence the fiqh markets. Some Muslim and non-Muslim writers with dual connections have produced highly scandalous scholarship that contributes nothing to the fiqh markets.28 Effective double connectivity emerges from a genuine understanding of, and authentic respect for, Islamic law as well as Western values. Popular Protests In the mix of new developments, a disturbing trend has arisen in the Muslim world. Popular Muslim reactions against external attacks on the Basic Code and the Prophet demonstrate that the principle of disengagement is no longer fully obeyed. The controversy over the cartoons of Prophet Muhammad, showing him as a terrorist, demonstrates that Muslims throughout the world have become increasingly more assertive in reacting to gratuitous distortions of their faith. The murder of Dutch filmmaker Theo van Gogh, who made a movie called Submission that highlighted the ill-treatment of women in the Islamic world by showing verses of the Qur’an tattooed on the seminaked bodies of dancing girls, is another example of militant popular defense of Islam. Under the disengagement principle, Muslims should ignore attacks like those of the Muhammad cartoons and van Gogh’s film – not react violently. Respect for other religions is an issue that the external legal systems must address under their own values. Whether the people in external cultures should be free to trash prophets and holy books, and whether it is appropriate under their laws to inflict emotional distress on communities of believers is not an Islamic problem, because Islam forbids Muslims from making fun of any religion. Muslims may simply ignore the attacks on the Qur’an, the Sunnah, and the Prophet under the disengagement principle: lakum diinukum walayi diin (To you be your Way, and to me mine). It appears, however, that a new rule has emerged in the fiqh markets. If an artist or writer publicly insults the Prophet or the Qur’an, Muslim populations will protest and show their resentment. In conclusion, the fiqh markets are founded on the belief that the Qur’an and the Sunnah are the primary sources of Islamic law. 212

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Western Views of Islamic Law Muslim opiniojurists, pious and able, may offer opinions on new issues. An opinion compatible with the Basic Code that is broadly followed in the Muslim world becomes the rule of Islamic law. Because opiniojurists may offer competing rules on the same issue, the fiqh markets are tolerant of pluralist rulings that may coexist. Islamic law in this sense is not monolithic. The fiqh markets do not allow non-Muslim jurists to issue opinions. However, non-Muslim scholars may provide constructive criticisms that might persuade Muslim opiniojurists to apply more rigor in proposing new rules of Islamic law. Unfortunately, the external scholarship has often been disrespectful of the Qur’an and the Prophet. Such blasphemous scholarship has had little impact on the fiqh markets, and it negatively affects the interfaith discourse, straining relations between the West and the Muslim world.

Notes 1. Ira M. Lapidus, A History of Islamic Societies (Cambridge: Cambridge University Press, 1988), pp. 23, 26. 2. Jane Dammen McAuliffe, Quranic Christians: An Analysis of Classical and Modern Exegesis (Cambridge: Cambridge University Press, 2007). 3. Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press, 2000). 4. Patricia Crone and Michael Cook, Hagarism: The Making of the Islamic World (Cambridge: Cambridge University Press Archive, 1977). 5. R. W. Southern, Western Views of Islam in the Middle Ages (Cambridge, MA: Harvard University Press, 1962), p. 13. 6. Norman Daniel, Islam and the West: The Making of an Image (Oxford: Oneworld, 1993), p. 17. 7. Alphonse Mingana, “The Transmission of the Kuran,” Journal of the Manchester Egyptian and Oriental Society, (1916), 25. 8. John Wansbrough, Qur’anic Studies: Sources and Methods of Scriptural Interpretation (Oxford: Oxford University Press, 1977). 9. Estelle Whelan, “Forgotten Witness: Evidence for the Early Codification of the Quran,” Journal of American Oriental Society, 118 (1998), 1. 10. Eli Salem, “The Elizabethan Image of Islam,” Studia Islamica, 22 (1965), 43. 11. Sims’ Lessee, 3 US 454. 12. Voltaire, Mahomet: The Prophet. (New York: E. P. Dupont Publishers, 1901 [1741]). 13. William H. Worrel, “The Case of Muhammad,” Journal of American Oriental Society, 48 (1928), 145. 14. Yehuda Shamir, “Allusions to Muhammad in Maimonides’ Theory of 213

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15.

16. 17. 18. 19.

20. 21. 22.

23. 24.

25.

26.

27. 28.

Prophecy in His Guide of the Perplexed,” Jewish Quarterly Review, 64 (1974), 212, 215, 222. Ignaz Goldziher, Introduction to Islamic Theology and Law, trans. Andras and Ruth Hamori (Princeton, NJ: Princeton University Press, 1981), p. 40. Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950), p. 149. Muhammad Mustafa Az’ami, On Schacht’s Origins of Muhammadan Jurisprudence (Riyadh: King Saud University Press, 1985). Jacob Lessner, “The Covenant of the Prophets: Muslim Texts, Jewish Subtexts,” Association of Jewish Studies Review, 15 (1990), 207. Judith Romney Wegner, “Islamic and Talmudic Jurisprudence. The Four Roots of Islamic Law and their Talmudic Counterparts,” American Journal of Legal History, 26 (1982), 25. Arthur Jeffrey, The Foreign Vocabulary of the Quran (Piscataway, NJ: Gorgias Press, 2009 [1938]). Helmer Ringgren, “The Conception of the Faith in the Koran,” Oriens, 4 (1951), 1. Timur Kuran, “The Provisions of Public Goods Under Islamic Law: Origins, Impact, and Limitations of the Waqf System,” Law and Society Review, 35 (2001), 841–8. Sir William Muir, “Sura V, v. 91 (The Coran),” Hebrew Student, 1 (1882), 14. J. Kritzeck, “Moslem–Christian Understanding in Mediaeval Times: A Review Article,” Comparative Studies of Society and History, 4 (1962), 338, 395. Edward Said argues that Western governments, corporations, and experts constitute a closed circle that distorts Islam for domination and exploitation. Edward Said, Covering Islam: How the Media and the Experts Determine How We see the Rest of the World (London: Vintage Books, 1997 [1981]). Philip K. Hitti, Islam: A Way of Life (Minneapolis, MN: University of Minnesota Press, 1970); History of the Arabs (London: Macmillan, 1964). Edward Said, Orientalism (London: Penguin, 2003). Ibn Warraq, Why I am not a Muslim (Amherst, NY: Prometheus Books, 2003 [1995]).

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7

Muslim Diaspora Law

Muslim diaspora law is the Islamic law that deals with specific and unique issues facing Muslim diasporas, that is, Muslim populations permanently settled in non-Muslim states. Muslim diaspora law, just like any other part of Islamic law, must be compatible with the Basic Code, the Qur’an and the Prophet’s Sunnah. Because Muslim emigrants face social, economic, and political circumstances that Muslims living in Islamic states do not, Muslim diaspora law dealing with worldly matters (muamalaat) may differ from the conventional norms of Islamic law. The difference of circumstance, however, cannot compromise the basic principles of Islamic law. For the most part, Muslim diasporas are not exempt from the primary obligations of ibadaat (acts of worship), including daily prayers, fasting in the month of Ramadhan, and paying zakah. Nor are Muslims authorized to make changes in laws dealing with ibadaat. The fundamental principles, including piety in lifestyles, reverence for parents, kindness for children, respect for spouses, and care for neighbors remain unchanged and apply to all Muslims, regardless of where they live or work. Muslim diaspora law discussed in this chapter does not answer all the predicaments that Muslims face in non-Muslim states. However, this chapter discusses a few general ideas and invites scholars to further develop Muslim diaspora law. The diaspora law is also applicable to occupied Muslim communities. Occupied Muslim populations share one simple but momentous fact with Muslim diasporas, that is, each population lives as a minority among non-Muslims. Occupied Muslim communities living under the sovereignty of non-Muslim states face many social, economic, cultural, and religious challenges similar to Muslim diasporas settled in non-Muslim states. Many such occupied communities assert the right of self-determination to seek independence. Palestinians, Chechens, Kashmiris, and Uighurs are prominent Muslim communities that seek independence from their respective non-Muslim occupiers. Even though Iraq and Afghanistan are currently under non-Muslim invasion, their occupation appears to be 215

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Contemporary Ijtihad transient. It is unclear whether Chechens, Kashmiris, and Uighurs will obtain independence from Russia, India, and China, respectively, for these non-Muslim states are unwilling to allow what they call secession. The case of Palestinians is more complex, because even if a Palestinian state is established, Palestinians living within Israel would continue to face social conditions similar to that of a Muslim diaspora. Occupied Muslim communities, such as the Chechens and Kashmiris, frequently inhabit well-defined territories where Muslims constitute a substantial majority. In most cases, occupying states are not hostile to Islam and do not wish to interfere with Islamic practices of the occupied communities. The occupation continues mostly for economic and territorial objectives. Even if the occupying state respects Islam, occupied Muslim communities face tough predicaments. Muslims must obey the laws of the non-Muslim state and they must also resist the influence of the non-Muslim culture on Muslim children born under occupation. Such cultural influences may muddle or compromise the integrity of Islamic beliefs. Occupation turns into an intolerable condition if the occupying state, as was the Soviet Union, is hostile to Islam and employs state resources to stamp out Islamic practices. Adverse circumstances that Muslim diasporas face may vary from one non-Muslim state to another. Some Muslim diasporas may face outright discrimination, hostility, and persecution. Some may be prevented from practicing the faith of Islam, particularly in community with other Muslims. Mosques may be kept under state surveillance or not allowed to be built. Muslim women may be forbidden from wearing hijab at the workplace or in public. Muslim children may be harassed at school and forced to learn anti-Islamic secularism. Forced into poverty and segregation, Muslim diasporas, such as the Palestinians in Gaza, may live wretched and unfulfilling lives. These conditions can lead Muslim populations, living under dishonorable conditions, to resort to periodic violence to register frustration or protest against subjugation. The condition of practicing Islam as a persecuted minority is no different than that of early Muslims, including the Prophet himself, who lived among non-Muslims, including Jews, Christians, polytheists, and pagans with no defined religion. The early Muslims were persecuted, degraded, captured, injured, and murdered. Under persecution, self-defense is inevitable and allowed under the Basic Code. Using the Islamic principles of patience, perseverance, goodwill, and 216

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Muslim Diaspora Law forgiveness, the early Muslims continued to disseminate the message of Islam, not through words but deeds. Just like the early Muslims, Muslim diasporas in diverse parts of the world and occupied Muslim communities must recognize the opportunity of living among nonMuslims and conduct their individual and communal lives in a manner that embodies the best teachings of Islam. Gratuitous violence, unproductive social segregation, sentiments of rebellion, and disengaged citizenship cannot be the defining principles of living among non-Muslims.

Islamic Emigration Emigration (hijra) is a profound part of Islamic history and Islamic law. The Basic Code mentions emigrants, al-muhajirin, and the act of emigration with approval. (Throughout this chapter, the word “emigrants” and not “immigrants” is used to describe Muslims living in non-Muslim states.) Leaving homes for foreign places and living among non-Muslims is anything but new to Muslims. Diaspora in Islam began with the Prophet Muhammad himself when he with his followers migrated to Medina, a city hundreds of miles away from his hometown, Mecca, where he was born, where his family was rooted, where he received the first and many subsequent revelations as part of the Qur’an, and where he declared himself to be the Prophet of God. In Medina, the Prophet established a model Islamic city-state under a social compact, called the Constitution of Medina, to live side by side with non-Muslims, a theme discussed in prior chapters of this book. Historically, emigration has been closely tied to the institution of prophecy. Other prophets also left homes. Prophet Abraham, in old age, departed out of Haran, saying “Verily, I shall go wherever my sustainer shall guide me” (37:99). Likewise, Prophet Lot said, “I will be muhajir [emigrant] and turn to God” (29:26). God’s earth is spacious, reminds the Qur’an, and there is no excuse for any persons to continue living wretched and dark lives (4:97). Through these stories and reminders, Islam presents the concept of emigration as a refuge – a physical, mental, and spiritual departure from oppressive places, harsh conditions of life, and unbearable religious persecution. In all cases, however, Islamic emigration occurs under and toward God’s Law, and not in opposition to, or away from, it. Leaving homes in pursuit of lawless behavior or moral corruption does not fall within the precincts of Islamic emigration. 217

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Contemporary Ijtihad Islamic emigration is undertaken in accordance with God’s Law. It is lawful to emigrate to seek education or superior economic prospects. Bear in mind the Prophet’s saying that Muslims should go even to China (a metaphor for faraway places) in quest of knowledge. Unquestionably, Islamic law allows emigration to non-Muslim countries and permits living among non-Muslim people, provided Muslim emigrants do not abandon God’s Law. Facing intense persecution, the Prophet allowed a group of Muslims to leave Mecca and voyage across the Red Sea to Ethiopia, a Christian nation under the reign of King Negus. Muslims migrated to Ethiopia neither to convert Christians to Islam, nor to bring disorder to the host country, nor to overthrow the king, but simply to seek refuge from persecution in their home state. In Ethiopia, Muslim emigrants did not abandon Islam, nor did they cease to practice their faith. In fact, they truthfully professed their faith and told King Negus that Muslims believe that Jesus is God’s prophet, not His son. King Negus, a soft-hearted man who understood religious persecution, allowed Muslim emigrants to live and freely practice their faith in Ethiopia. This remarkable historical story demonstrates not only the possible accommodation that can exist between Christians and Muslims, but it also opens the earth for Muslims to live in non-Muslim states, provided they obtain lawful permission from host nations. Illegal immigration is not part of Islamic emigration. Regardless of the reasons for which they leave home states and settle in non-Muslim countries, Muslim emigrants cannot compromise, much less discard, obligations under Islamic law. Their persons, speech, deeds, way of life, everything they do, alone or in families, are associated with Islam, unless they abandon Islam and thus lose the status of Muslim emigrants. As Muslim emigrants, Islamic identity outweighs all other identities, though racial, ethnic, linguistic, or gender identities may continue to assert themselves within the Islamic framework. Moroccans living in Spain, Indonesians living in the Netherlands, Turks living in Germany, and Pakistanis living in the United Kingdom, all share one thing in common and that is their status as Muslim emigrants. This status and obligations attached to this status, under Islamic law, continue to be valid as long as Muslim emigrants and their children live in non-Muslim states. This status does not change until they leave the non-Muslim state or the nonMuslim state embraces Islam.

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General Obligations As a general principle, Muslim emigrants are obligated to obey the laws of the host state. Muslims living in France must obey the laws of France and Muslims living in the United Kingdom must obey the laws of the United Kingdom. This general obligation is valid with respect to all nations, whether they are secular, Christian, Buddhist, or Hindu. Furthermore, Muslim emigrants safeguard the tranquility, security, and social welfare of the host state. As noted several times in this book, non-Islamic laws must be distinguished from anti-Islamic laws. Muslim emigrants may seek from the host state, through lawful channels, exemption from the burdens of anti-Islamic laws. Until anti-Islamic laws are repealed or an exemption is granted, Muslim emigrants should comply with anti-Islamic laws, though under protest. If the compulsion to obey anti-Islamic laws is accompanied with criminal or civil penalties, the Basic Code allows Muslim emigrants to do, under the doctrine of necessity, what is normally prohibited under Islamic law (2:173). Doctrine of Necessity On necessity, the Qur’an states: He [God] has forbidden to you only carrion, and blood, and the flesh of swine, and that over which any name other than God’s has been invoked; but if one is driven by necessity – neither coveting it nor exceeding his immediate need – no sin shall be upon him: for, behold, God is muchforgiving, a dispenser of grace. (2:173)

When this injunction is applied, by analogy, to compliance with antiIslamic laws, Muslim emigrants must not volunteer to obey such laws, nor must they obey more than what is minimally required. The sole purpose of compliance is to lawfully avoid the attendant punishment. While complying with an anti-Islamic law, Muslim emigrants must bring it to the notice of the government that the law is antiIslamic. Most anti-Islamic laws are permissive and not obligatory. For example, Kansas law allows Muslim emigrants to sell liquor though it is prohibited under Islamic law. However, Kansas law does not obligate Muslims, or anyone else, to sell liquor. Muslim emigrants cannot take advantage of this permissive Kansas law to engage in a trade prohibited under Islamic law. Suppose Kansas law prohibits 219

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Contemporary Ijtihad female students from wearing hijab in public schools (there is no such law at this time in Kansas). Instead of passively abiding by the law, Muslim students must peacefully protest against the law. Muslim female students may have other options. They may attend private schools where hijab is not banned. Home schooling is also a way to escape the obligation of the law. If no meaningful option is available, the doctrine of necessity would allow Muslim female students not to wear hijab during school hours. However, forsaking education altogether for the sake of wearing hijab would be an irrational choice under the principles of Basic Code, which requires Muslim men and women to obtain religious and worldly knowledge in their respective trades and professions.1 The doctrine of necessity is unavailable to engage in avoidable anti-Islamic behavior. As discussed before, the payment of riba on mortgaged properties has been defended under the doctrine of necessity. Riba-based ownership of real and personal properties, contracted for household purposes, may be excusable under Islamic law to the extent of necessity. A modest house or automobile obtained through financing for the security and welfare of the family might fall under makruh (disfavored) rather than haram (prohibited). But necessity cannot be used to engage in a riba-based real estate business, automobile dealership, or any other trade that involves extensive use of interest-based credit. Likewise, the doctrine of necessity is unavailable to conduct other forms of haram businesses. It is generally permissible for Muslim emigrants to join the armed forces of the host state. Just as non-Muslims may serve in the armed forces of the Islamic state, Muslims can likewise serve in non-Muslim armies. Modern armed forces, in addition to fighting wars, provide a number of humanitarian services to prevent wars and mitigate national and international crises. It is no harm for Muslim emigrants to participate in the fruition of humanitarian causes and peaceful objectives. As a general principle, Muslim emigrants serving in the armed forces cannot participate in wars waged against Muslims, because the Basic Code prohibits Muslims from joining non-Muslims in wars against Muslims. Many non-Muslim states allow abstinence from war on the basis of conscientious objection. When a war is waged against a Muslim nation or community, Muslim soldiers should seek exemption as conscientious objectors. For pragmatic reasons, the non-Muslim state itself would rarely compel Muslim soldiers to defy religion and kill fellow Muslims. During the 2003 invasion of Iraq, the episodes of Muslim soldiers attacking fellow 220

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Muslim Diaspora Law soldiers demonstrate the stress of a war in which American Muslim soldiers were ordered to fight against Iraqi Muslims.

Zakah and Taxes Related to the obligations of Muslim emigrants are questions about state-imposed taxes and zakah. Muslim emigrants have no option but to pay state-imposed taxes in non-Muslim states. Even though some states grant tax-exempt status to mosques and Islamic centers, no Muslim emigrant is personally exempt from paying income, consumption, and property taxes. The non-payment of taxes is violation of laws, frequently accompanied with fines and, in some cases, criminal sanctions. Tax evasions and tax frauds are punished even more severely than the non-payment of taxes. No data demonstrates that Muslim emigrants oppose or evade paying taxes to non-Muslim states for religious reasons. Muslim emigrants may oppose some policies that the non-Muslim state adopts and spends tax revenues to execute such policies. In the United States, for example, Muslim emigrants, like other Americans, may oppose governmental funding of abortion, sacrilegious art, and highly secular, almost atheistic, education in public schools. Muslim emigrants may oppose, even more strongly, the funding of aggressive and unjust wars waged against Muslim nations and communities. Despite these objections, Muslim emigrants must pay taxes. Disagreement with governmental policies may be lawfully aired, if allowed, through employing freedom of speech, supporting appropriate political campaigns, and exercising voting rights. The refusal to pay taxes, as pretextual opposition to state policies, is rarely a lawful option. In addition to recognizing the coercive aspects of tax laws, Muslim emigrants must also appreciate that the non-Muslim state, like any other state, needs tax revenues to implement security and welfare policies for its people. Muslim emigrants directly benefit from state policies that assure the safety of neighborhoods from crime and drug trafficking. They enjoy roads and public parks maintained with tax revenues. Muslim emigrants in Europe, North America, and in many other non-Muslim states receive unemployment allowance, medical care, disability benefits, social security, and a number of other services, sometimes unavailable in Muslim states, many of which are supported with tax revenues. It is simply unfair to receive benefits without making any contributions to the state treasury. This fundamental principle of Islamic law does not cease to exist when Muslim 221

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Contemporary Ijtihad emigrants rely on the treasury of a non-Muslim state to receive lifesustaining services from its government. If Muslim emigrants must pay taxes to the non-Muslim state, are they also obligated to pay zakah under Islamic law? This question needs a careful analysis, even though the first answer is in the affirmative. Several related questions must also be answered, for these answers must guide Muslim emigrants in the distribution of zakah. For example, if zakah is mandatory in addition to taxes paid to the non-Muslim state, are non-Muslims entitled to zakah? An understanding of the zakah obligation is critical for answering these questions. Zakah, one of the five pillars of Islam, is an obligation explicitly mentioned, and frequently emphasized along with the mandatory daily prayers, in the Basic Code (2:43). Zakah is necessary for obtaining purity and excellence. While the Qur’an lays emphasis on the obligation of zakah and identifies lawful recipients of zakah, the Sunnah furnishes many other details. Classical fiqh has added even more rules to the fulfillment of this duty. Most rules revealed and developed focus on Islamic communities in which zakah is normally distributed. Zakah finances a community support system, a mechanism to take care of poorer members of the community. Islam, though it supports free commerce, corrects social conditions under which some Muslims acquire wealth while others, for a host of reasons, live in poverty. Instead of blaming the poor, Islam protects their fundamental needs by laying an obligation of support on wealthier members of the community. The Qur’an states: The sadaqaat are for the poor and the needy, and those who collect them, and to attract the hearts of those who have been inclined [towards Islam], and to free the captives and the debtors, and for the cause of Allah, and [for] the wayfarers; a duty imposed by Allah. Allah is knower, Wise. (9:60)

Most Islamic scholars read this verse to explain the obligatory zakah, even though the verse opens with the word sadaqaat. This interpretation is sound because the verse, soon after listing the lawful recipients, refers to “a duty imposed by Allah.” Because the sadaqaat are a duty imposed by God, verse 9:60 refers to obligatory zakah. Accordingly, Muslim scholars interpret this commandment to confine the payment of zakah to the eight categories of recipients mentioned in the verse. They further conclude that the recipients ought to be Muslims, including those who have recently converted to 222

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Muslim Diaspora Law Islam and may need financial support, cultivating in them a sense of belonging. Al-Ghazali opines that the recipients listed in verse 9:60 may also qualify to be the recipients of sadaqaat.2 Zakah is distinguishable from sadaqa in that zakah is a legal duty, whereas sadaqa is a voluntary act of charity over and above the payment of zakah. Verse 9:60, however, poses no barrier in expanding the list of recipients. Numerous verses of the Qur’an emphasize the ethic of giving, whether giving is monetary or provisions of services. Even kind words constitute sadaqa. Wealthy Muslims are free to give sadaqaat to persons who are disqualified to receive zakah, including close members of the family. Islamic generosity of giving knows no racial, ethnic, religious, national, or any other borders that divide human beings. In the case of voluntary sadaqaat, Muslims may expand the list of recipients to include non-Muslims. The Qur’an does not restrict the giving of sadaqaat only to Muslim poor and needy. The sadaqaat may be used to facilitate the freedom of non-Muslim slaves, prisoners, and to reduce the crushing debt of persons. Muslim emigrants should use sadaqaat to create goodwill for their communities in non-Muslim states. They must contribute sadaqaat to the construction and maintenance of hospitals, public parks, schools, poor houses, and other charitable organizations, even if these institutions primarily serve non-Muslims. Even though an overwhelming majority of classical and contemporary scholarship recommends paying zakah only to Muslims, a door may be opened for zakah to be distributed to the poor and the destitute among non-Muslims. Verse 9:60 does not specifically state that the poor, the needy, or wayfarers have to be Muslims. Most importantly, verse 9:60 allows zakah for the captives (alrriqab), who, as Al-Ghazali points out, were rarely Muslims3 (compare this with verse 47:4). No authentic hadith of the Prophet explicitly prohibits the distribution of zakah to non-Muslims. The Qur’an approves giving sadaqaat to prisoners, who were almost always non-Muslims during the Prophet’s era. In the early and formative period, keeping zakah within Islamic communities was absolutely necessary. In instructing Mu’adh ibn Jabal who was being sent to Yemen, the Prophet said: “It [zakah] is to be taken from the rich among them and given to the poor among them.”4 In its contextual meaning, the text “rich among them” and “poor among them” may be interpreted either to mean rich among Muslims or the rich among the people of Yemen, who were not all Muslims at the time. Because zakah is an 223

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Contemporary Ijtihad obligation imposed only on Muslims, the rich and poor mentioned in the hadith must mean Muslims. If the hadith is read in a geographical context, zakah, though collected from Muslims, may be donated to non-Muslims. This minority juristic view may be acceptable to some Muslim emigrants who live among poor and destitute non-Muslims.5 Here, one caveat is rather obvious: Zakah cannot be given to nonMuslims who oppose Islam or wish to harm Muslim communities. Zakah fortifies a realm of purity comprised of givers and takers. Good intentions, on both sides, are important to sustain the institution of zakah. Bear in mind, however, that not all non-Muslims are opposed to Islam. Verse 9:60 specifically allows Muslims to give zakah “to attract the hearts of those who have been inclined [toward Islam] and to those who strive in the path of God.” These two categories of recipients may include non-Muslims who are inclined to embrace Islam, but fear that they would lose resources or that their families would abandon them. Likewise, non-Muslims who defend Muslim communities and Islamic territories with their physical and intellectual resources could be eligible recipients of zakah. One point is non-controversial. Muslim emigrants must take care of their own communities, particularly if the non-Muslim state practices discrimination against Muslims in the job market. Under such circumstances, Muslim emigrants are obligated to first assist fellow emigrants with zakah and sadaqaat monies and items. The Islamic law of zakah affirms natural relational affinities, obligating Muslims to take care of their families, relatives, tribes, and communities. However, this relational affinity does not justify ignoring non-Muslims who are suffering from starvation or disease. Muslim emigrants can prioritize the needs of Muslims over those of non-Muslims and allocate zakah funds in a rational and morally upright manner. Ignoring the plight of non-Muslims cannot be justified, for under such a rule the non-Muslim state would also be justified in ignoring the needs of Muslim emigrants. Muslim emigrants can take the initiative in showing compassion for the non-Muslims instead of waiting for the non-Muslim state to act for the benefit of Muslim emigrants. Another question is related to the priority Muslim emigrants must draw between paying zakah and paying taxes to the non-Muslim state. Muslim emigrants have no option but to pay the state-imposed taxes, all of them, including income, property, and consumption taxes. The question of priority is moot because no Muslim emigrant can avoid state-imposed taxes in order to pay zakah. Furthermore, zakah is a tax on surplus funds that Muslim emigrants might have 224

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Muslim Diaspora Law after meeting all legitimate personal and household expenses. Stateimposed taxes are rarely based on the concept of surplus funds, even though income tax is frequently graduated so that wealthier individuals pay higher amounts of tax. Nonetheless, income tax is imposed on earnings rather than surplus funds. Ordinarily, the taxpayer must pay income tax and adjust expenses accordingly. Likewise, consumption tax is imposed for consuming goods and services, regardless of whether these goods and services are need-based or luxury-based. The state also imposes annual taxes for owning a house, an automobile, a boat, and other tax-designated goods. Because Muslim emigrants must pay state-imposed taxes, otherwise they risk fine and imprisonment, zakah, by force of necessity, is ranked second. Muslim emigrants are obligated to pay zakah only if they have surplus funds after paying all state-imposed taxes and meeting lawful personal and household expenses.

Islamic Way of Life Muslim emigrants are obligated to practice and preserve the Islamic way of life. Muslims settled in the West, including Europe, North America, Australia, and New Zealand, experience tremendous pressures to assimilate into the Western secular culture that values material self-development, personal liberty, and pursuit of happiness. These values are compatible with the Islamic way of life provided Muslims maintain piety, accountability to God, and fulfill religious obligations of saying prayers, fasting, and giving alms to the poor. When individuals pursue personal liberty, self-development, and happiness without a commitment to piety, and observance of religious duties, they adopt a lifestyle that no longer conforms to the teachings of Islam. Some Western states appear to be more open to accepting the Islamic way of life. It is unlikely, for example, that the United States would force Muslims to give up their religious practices and adopt the mainstream lifestyle. Although anti-Muslim groups and even some political and religious leaders fear Islam, common law countries have been open to accepting unique cultures and religious practices. In Wisconsin v. Yoder, a ground-breaking constitutional case, the US Supreme Court recognized that: the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized 225

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Contemporary Ijtihad group, and intimately related to daily living. That the Old Order Amish daily life and religious practice stem from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, “be not conformed to this world . . .” This command is fundamental to the Amish faith.6

This generous ratification of religious liberty extended to the Amish may be extended to Muslims. Although Muslims rarely adopt a reclusive way of life similar to that of the Amish, they do spend a considerable amount of time with their families within the precinct of households and avoid social gatherings, including workplace parties, where men and women mix freely, where liquor is served, and where the party atmosphere demands intimacy. Muslims avoid such parties even more so in the holy month of Ramadhan. “Behold! We have made all that is on the earth as attractions so that we may test them: which of them is best in conduct” (18:7). Ancestral Cultures It is necessary to distinguish the Islamic way of life from traditional cultures that first-generation Muslim emigrants bring to non-Muslim states. First, it is important to understand that Islam produces a culture of its own. Saying daily prayers, giving alms to the poor, eating clean and halal food, taking care of old and frail parents, avoiding foul speech, living within one’s means, sexual abstinence before marriage, avoiding free gender mixing, these and many other aspects of Islam create a culture that transcends boundaries of language, color, ethnicity, prosperity, and geography. Second, local cultures may vary from nation to nation, and language to language. For example, dress, food, clothes, household furniture, art, poetry, folk songs, stories, humor, and numerous other artifacts may vary from one Muslim community to another. Islamic law does not mandate that all Muslim communities follow the social and cultural elements of the founding cities of Islam, much less the culture of any one particular nation or region of the world. Each cultural community constructs its own dynamic and ever evolving balance between local culture and the Islamic way of life. This distinction is important in order to understand that the Islamic way of life is open to Western culture, as it was open to preIslamic Mecca and Medina cultures. Therefore, the efforts of firstgeneration emigrants to preserve the ancestral culture in non-Muslim states may be fruitless, and even counterproductive. This distinction 226

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Muslim Diaspora Law is also important in order to understand that the children and grandchildren of Muslim emigrants may not be able to retain the ancestral culture of their parents and grandparents. Muslims born in France, Switzerland, Canada, or any other Western state must develop durable ways and strategies to preserve the Islamic way of life within the culture of non-Muslim states. The obligation of Islamic law to maintain the Islamic way of life must never be confused with the desire to pass on ancestral cultures to children and grandchildren living in the West. First-generation Muslim emigrants arrive in the host non-Muslim state with strong memories of the culture of their home state. Their mother tongue is rarely the same as that of the host state, and some do not learn the language of the host state. Their food, clothes, manners, etiquettes, sense of humor, social conceptions of a good life, and numerous other habits and practices reflect more the culture of the home Muslim state than that of the host non-Muslim state. Many emigrants have close family members still living in the home state. Some, including the authors, make periodic visits to the home state out of cultural nostalgia and to meet relatives and friends. Some entertain the possibility of returning to the home state. A few actually do. The existential gravity of first-generation emigrants rarely lies in the host non-Muslim state. First-generation Muslim emigrants, however, understand that their children and grandchildren born and raised in a non-Muslim state cannot relate to the language, culture, and social practices of the ancestral state. Knowledge of the ancestral cultural is a source of education. There is no harm, only benefit, in learning the language and the culture of forefathers who migrated from a Muslim state. Yet for all practical purposes, children and grandchildren of first-generation Muslim emigrants are the cultural product of the non-Muslim state. As first-generation Muslim emigrants pass away, contacts with the ancestral state begin to weaken rapidly. After a few generations, memories of the ancestral state may still linger in family stories but rarely do they shape the behavior of future generations of Muslim emigrants living in the non-Muslim state. While preserving ancestral Muslim cultures in non-Muslim states is unsustainable, if not undesirable, the maintenance of an Islamic way of life is a realistic goal and an obligation under Islamic law. That the Islamic way of life can be retained without an ancestral Muslim culture is historically validated. The culture of Mecca and Medina, including its food, dialect, speech, manners, and clothes could 227

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Contemporary Ijtihad not acquire universality, even though Muslims of the world hold these cities, where the Prophet lived and the Qur’an was revealed, in respect and love. The Muslim cultures of Iran, Uzbekistan, Indonesia, Turkey, and Afghanistan are not the same, though each culture is compatible with the Islamic way of life. Bear in mind that all these pre-Islamic nations developed their cultures centuries before they embraced Islam. This historical insight is instructive in guiding Muslim emigrants who live in non-Muslim states. Muslim diasporas face a difficult task of maintaining the Islamic way of life for themselves and for their children, and some may, in frustration, abandon Islam and some may, in resentment, adopt an overly critical, even hostile, attitude toward the Western culture. Muslim diasporas need to build neighborhood and community structures to preserve the Islamic way of life, without embracing warped segregation or mindless assimilation. European Urf Voluntary assimilation into any culture by compromising fundamental Islamic principles has never been an acceptable solution under the Basic Code, whether such assimilation was demanded in Egypt, Uzbekistan, or Malaysia. Coerced assimilation, as discussed below, violates the Basic Code. It is also contrary to the emerging law of human rights. With respect to voluntary assimilation, local customs compatible with the Basic Code have always been part of Islamic law. Since local customs vary from region to region, Islamic law is open to all compatible customs and social habits, and Western customs are no exception. Any assertion that Western customs are inherently contrary to Islamic law has little bearing on reality. Of course, the Basic Code cannot be distorted or interpreted in bad faith to adapt its principles to accommodate Western customs. Muslim jurists settled in Western nations are presumptively more qualified to rule on the compatibility of local customs with the Basic Code. Muslim jurists settled in the Muslim world are free to issue opinions on these matters as well. However, their opinions may carry less weight, because jurists who do not understand Western culture may not be qualified to issue actionable opinions (fatwas). In affirming the cultural diversity of the peoples of the world, the Qur’an states, in unambiguous terms, that “O human beings! We created you from a single [pair] of male and female, and made you into nations and tribes, so that you may know each other” (49:13). 228

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Muslim Diaspora Law Further, reaffirming cultural diversity, the Qur’an mentions the difference of languages and colors (30:22). The Qur’an also commands that “O believers! Enter Islam whole-heartedly” (2:208). These commandments, read together, approve the social paradigm of aggregative living under which individuals and families bond with other individuals and families to form communities through national, ethnic, and linguistic commonalities. Muslim historian, Ibn Khaldun, points out that group feelings are natural human phenomenon since individuals pursue personal lives through the formation of groups.7 Though cultural identities derived from language, ethnicity, and social customs are part of the divine plan, and completely acceptable under Islamic law, culture cannot preempt or override the principles of Islam. Entering Islam whole-heartedly means the rejection of elements of culture that cannot be reconciled with the Basic Code. Muslim diaspora in the West strives to achieve a balance between local customs and the commandments of the Basic Code. Western states are also under international obligations not to forcibly assimilate Muslims into local cultures. The law of human rights obligates states to preserve cultural and religious identities and refrain from coerced or structurally enforced assimilation of minorities into the dominant culture. The rights to religion, language, family, culture, and community protect the composite right of Muslim emigrants to retain the Islamic identity in non-Muslim states. Muslim emigrants may come under pressure to adopt local names in order to seek social adjustment or, in some cases, hide their Islamic identity. Under the doctrine of necessity, which the Qur’an provides, Muslims may change their names (and in the worst cases of persecution they may even abandon Islam but never in their hearts) to avoid unnecessary injury to themselves and their families. Abu Jihad, for example, is a name that might invite discrimination and even hostility if the person is living in a Western state. The doctrine of necessity, however, is unavailable to merely seek social comfort. In the matter of names, Islamic law is most flexible. The Basic Code does not require that Muslims have Arabic names, even though Muslims all over the world name their children after notable Muslim men and women, including the Prophet. Islam allows non-Muslim men and women to retain their ancestral names even after conversion to Islam. Hence, after embracing Islam, Jews, Christians, and others may retain their family names. On one occasion, the Prophet said: “You will be 229

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Contemporary Ijtihad called on the Day of Resurrection by your names and the names of your fathers, so have good names.”8 On other occasions, the Prophet recommended, but did not mandate, that persons and places take names with good meaning, a recommendation that applies to naming conventions in all languages. As a general rule, Muslim emigrants and converts need not change their family names. However, they are free to take respectable names from local languages, which are well-liked in non-Muslim states. Adopting names that are popular among non-Muslims, however, may cause suspicion within Muslim communities, raising questions about whether the persons so named are indeed Muslims. While abandonment of the Islamic way of life is not a lawful option available under the Basic Code of Islam, Muslim emigrants can nonetheless adjust to some cultural aspects of the host nation. At all costs, Muslim emigrants must learn the national language of the host nation. The Qur’an teaches that “among His signs are the creation of the heavens and the earth and the difference in your languages and colors. Verily in these are clues for those who have knowledge” (30:22). All languages and colors represent the beauty and complexity of the physical universe that God has created. It is incumbent upon Muslim emigrants to learn the European languages, for without learning and excelling in the language of the host nation they will remain marginalized and interpose unnecessary barriers between them and the native population. Learning the language would establish beneficial ties with the natives, and open the door to landing high paying jobs and even political office. The academics and intellectuals among Muslim emigrants can translate important works, including poetry and literature, of their ancestral languages into the language of their adopted nation. For example, the north Africans settled in France must not only learn the French language, they must contribute toward the richness and beauty of this excellent language of the world. Likewise, Muslim emigrants may adopt the clothing conventions of the host nation. Under all circumstances, however, the Islamic dress for both men and women must be modest and nonexhibitionist. The Qur’an identifies the purposes of wearing clothes: “O Children of Adam! Indeed, We have revealed on to you [the knowledge of making] garments for covering your nakedness, and for dignified adornment” (7:26). Note that dignified adornment is as important as is hiding nakedness; the two purposes are inseparably fused. Note further that the clothing verse is addressed to all of 230

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Muslim Diaspora Law humanity, to all cultures and generations, and not just to Muslims. Among Muslims, acceptable clothing conventions vary from nation to nation and culture to culture. Islamic clothing is not confined to any one style or to cultural preferences of any one nation. According to the clothing verse, all attires of the world are potentially Islamic. Accordingly, Muslim emigrants should seriously consider adopting the clothing conventions of the host nation, whether it is China or Germany, so that they can culturally relate to the native population. In adopting clothing conventions of the host nation, Muslim men and women do not discard the notion of haya or personal privacy. They simply infuse haya into the clothing conventions of the host nation. It is unnecessary, though it ought to be permissible, for Muslim emigrants of the Pakistani origin, for example, to don shalwar kamiz in the streets of London or Edinburgh. They can select modest and conservative clothing from among English and Scottish garments. This practice would be most helpful for local inhabitants to embrace Islam without rejecting their native garments. Cultural adjustments to the host nation take place over a period of time. First-generation Muslim emigrants hold on to the culture of their home state. Succeeding generations of emigrants, however, begin to adapt. In some cases, such as in the United States, the pressure to be “an American” is so great that the children of Muslim emigrants rebel against their parents’ culture and language. As a general observation, children born in the West resist the culture of Egypt, Nigeria, Indonesia, and other Muslim nations from where their parents emigrated. The culture at public schools, in neighborhoods, and on television is so powerful that the children of Muslim emigrants do not have the tools to mount an effective resistance. It is not even good for the children’s mental health that they should be asked to adopt the “foreign” culture of their parents and resist the home culture of their own country. However, most children would be willing to accept the Islamic identity within the context of their home culture.9 The parents have the right to teach their children about the Islamic faith. Not to do so would be neglect of an important duty. Just as parents direct their children to avoid un-Islamic behavior in Muslim countries, so must parents direct their children in non-Muslim countries. The balance between Islamic identity and culture creates the most beneficial and durable adjustments. This balance can prepare the present and future generations of Muslim emigrants to fight Islamophobia with self-confidence and with the necessary cultural tools of the host nation. 231

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Contemporary Ijtihad In summary, the concept of engaged citizenship encourages Muslim emigrants to make creative and durable offerings to the host culture. Just as Muslims in medieval Europe contributed to sciences, languages, aesthetics, architecture, philosophy, urban planning, and education, Muslims in twenty-first century Europe are poised to do the same. Living disengaged from the community, drawing benefits from the community without benefiting the community, threatening the safety or security of neighborhoods, and most important, refusing to fully utilize God-given talents for the advancement of self, family and communities cannot be reconciled with the cardinal principles of Islam, nor do they comport with Islamic history. Islam always arrives as a stranger but it does not remain so. Islam is inherently transformative of communities for the good. Muslim emigrants constitute a moral force that guides the communities in which they live. This guidance is derived from submission to the God’s Law that protects and sustains all humanity regardless of difference in languages, colors, tribes, and nations. Contemporary ijtihad disseminates mercy to all peoples, repudiating whispers of evil, including open and secret forces, which sow the seeds of confusion and mutual hatred. Mixed-Belief Marriages The Qur’an prohibits Muslim men from marrying mushrik women and in the same verse the Qur’an also prohibits Muslim women from marrying mushrik men (2:221). A mushrik is a person who does not believe in the oneness of God or associates partners with Him. Muslim men and women are forbidden to marry atheists and polytheists. With respect to believers in One God, Muslim men are permitted to marry chaste Christian and Jewish women (5:5). No such permission is granted to Muslim women. Muslim women must marry Muslim men. They can marry Christian and Jewish men provided the man converts to Islam. In fact, many Muslim women are married to European and American men who have embraced Islam. Ignoring the restrictions of Islamic law, some Muslim men and women enter into marriages with secular and non-religious spouses who practice no religion. Most such marriages fail, causing intricate custody disputes over the faith of the children. Facing the intricacies of a broken household, some Muslim emigrants unlawfully take their children to ancestral Muslim states. Others let their former spouses raise the children without the faith of Islam. Inter-faith marriages, like inter-racial marriages, are the products 232

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Muslim Diaspora Law of social forces. In the United States, inter-racial marriages were prohibited for centuries under the threats of criminal law. In the 1960s, the US Supreme Court declared inter-racial marriage barriers to be unconstitutional. Since then, there has been no dramatic increase in inter-racial marriages because marriage choices are frequently determined within the context of social norms. The same is true for mixed-belief marriages. Even though the secular law places no religious restriction on marriage, social norms determine whether such marriages will take place. If the Muslim community is strong and Muslim families practice the Islamic way of life, mixed-belief marriages are unlikely to occur. If the Muslim community or a Muslim family is weak in adherence to Islamic faith, Muslim men and women would seek marriages contrary to the restrictions of Islamic law. On the other hand, native populations may have their own prejudices against marriage with Muslim emigrants. In addition to religion, racial and social factors may not allow Western men and women to seek marriage with Muslims. Thus, barriers to the mixedbelief marriage can be mounted from both sides. If the Islamic way of life discourages marriage with non-Muslims, the European or the American way of life might also discourage marriage with Muslims. Social barriers to marriage serve to preserve traditional racial and religious communities. But, by the same token, marriage barriers also erect walls between racial and religious communities, deepening mutual suspicion and sentiments of aversion. Mixed-belief marriages in which one spouse is a non-Muslim may dilute social prejudice as the children of mixed marriages serve as bridges between the communities. Mixed-belief marriages, though good for deepening contact between Muslim and non-Muslim communities, negatively influence the Islamic way of life. The children of mixed marriages may not even know that they are Muslims, or they may simply abandon Islam and convert to another religion. President Barack Obama of the United States presents a representative example of mixed-belief marriages. President Obama’s father was a Muslim from Kenya, and his mother a Christian from Kansas. He is, indeed, the product of a marriage lawful under the Basic Code. President Obama, though he expresses respect for Islam, practices Christianity. In electing Obama to the highest office in the United States, the American electorate furnished an opportunity for the federal government to mend relations with the Muslim world. Whether President Obama has drawn the Muslim world closer to the United States is still an open question. 233

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Halal Foods and Riba Two important sets of rules of Islamic law have come to define the Islamic way of life in Western nations. The first set is the dietary restrictions. Islamic law mandates that Muslims eat halal and clean foods. Compliance with dietary restrictions is relatively easy, and even non-practicing Muslims are inclined to observe dietary rules. Most Muslim emigrants, for example, do not eat pork, and many refrain from drinking alcohol. With respect to halal and clean foods, some Muslim emigrants, mostly from south Asia, insist upon consuming only zabihah meats, whereas others, mostly from Arab states, eat meats sold in Western grocery stores. The Qur’an permits Muslims to consume the foods that Christians and Jews eat (5:5). This permission, in the case of meats, presupposes that animals are not ruthlessly killed, for Islamic law forbids cruelty against animals. Even some Christians and Jews strongly object to the “commercially efficient” machine-killing of animals, and raise credible concerns of torture and cruelty practiced against animals in some Western slaughterhouses. Fortunately, many Western states allow Muslim butchers to slaughter animals in accordance with the zabihah rules that minimize pain inflicted on the animal. Muslim butchers, however, must comply with health and hygiene laws of the non-Muslim state. For a variety of reasons, Muslim emigrants support zabihah shops. Such shops create jobs for Muslim emigrants, build a sense of local community, and even attract non-Muslim customers who object to consuming meats processed in commercial slaughterhouses. The second set of rules prohibits receiving or paying riba on loans. Muslim emigrants face serious difficulty in navigating a credit-based economy. Credit is coterminous with the power to borrow monies, mostly on interest. A person without credit can face immense barriers in a normal life because fewer and fewer individuals can afford a loan-free life. Most Western states, particularly the United States, have turned into interest-bound credit economies. Many states are turning away from cash transactions. In fact, carrying large amounts of cash raises suspicions of unlawful activity. While money may be used as a medium of exchange in small transactions, major transactions involving higher sums of money are rarely cash transactions. Consumers use credit to buy goods and services. Almost everyone in the United States buys automobiles, primary household goods, and the house on credit. Even education, particularly professional educa234

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Muslim Diaspora Law tion in law and medicine, is obtained on credit. Businesses borrow funds to produce goods and services. Governments themselves are running on credit. Caught in this unending spiral of an interest-based credit economy, Muslim emigrants make the most testing choices by avoiding interest-based transactions. The easiest choice is, of course, for Muslim jurists to declare that modern interest is permissible for it is distinguishable from riba, which is prohibited in Islam. While some Muslim jurists take such a position, many others see no difference between interest and riba. Some jurists rely on the Islamic doctrine of necessity, where what is haram under normal circumstances is permissible under abnormal conditions, to allow Muslim emigrants to engage in interestbased transactions. Whether modern interest is permissible under Islamic law is a serious question over which Muslim economists and financial experts disagree. The recent crisis in housing mortgage markets and the related debt-laden financial instruments indicates that modern interest can generate economic dislocations, fail financial institutions, bankrupt businesses, cause unemployment, and ruin ordinary lives. The economic crisis in some Western European states, including Greece and Portugal, reinforces the negative fallout of leveraged economies. These episodes invite Muslim economists, financial experts, and jurists to seriously reflect upon the similarities between interest and riba. While the Islamic law debate over modern interest remains inconclusive, Muslim emigrants are generally reluctant to completely embrace a credit-soaked life. Some do not use credit cards that charge usurious interests. Some pay off their monthly credit card bills, thus avoiding paying interest. Some repudiate the notion of a mortgage and live in rental properties. Some purchase new or pre-owned automobiles on zero interest. Some do not open interest-bearing checking accounts. Other methods to avoid interest are gaining currency in Western markets. For example, “Islamic loans” are available, under which the lender and the buyer co-own the property, real and personal, until the loan is fully paid off. Such interest-free loans, however, increase the purchase value of the property. Likewise, Muslims can invest their surplus monies in Shariah-compliant financial instruments and investment funds. Some Muslim economists and jurists see gamesmanship in these financial strategies and find the so-called Shariah-compliant financial devices as subterfuges to obfuscate the presence of riba.

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Engaged Citizenship What options do Muslim emigrants have for combating Western Islamophobia? Contemporary ijtihad underscores two distinct approaches. First, Muslim emigrants accept the concept of engaged citizenship. Second, they interweave elements of Western culture into their Islamic identity. Local customs, as discussed above, have been an ancient and well-recognized source of Islamic law. Muslim emigrants are free to fuse local customs with the immutable principles of the Basic Code, just as Muslims in other nations, including Egypt, Iran, Pakistan, and Indonesia combine local customs with the principles of Islam derived from the Basic Code. With respect to the first approach, Muslim emigrants understand that the modern concept of citizenship is not merely a status that the state confers upon individuals, though modern laws confer citizenship upon persons born within the jurisdiction of the state and formally “naturalize” aliens to state citizenship. In the evolution of Islamic law, the state may be defined as a tribe, nation, empire, or territorial state as under contemporary international law. State is thus an entity that binds an individual with a community. Just as individuals invest personal resources to build families, they likewise invest personal energies, labor, and intellectual assets to build states. Individual investments in a state may be defined as an integral part of citizenship. Legally, therefore, citizenship is a mutually beneficial relationship between individual and state. The relationship is dynamic, not static, as individuals benefit from the state, and the state relies on individual investments for sustainability and development. A strong sense of citizenship is a prerequisite for a strong state. The Basic Code does not allow Muslims to be a burden on any state, Muslim or non-Muslim. Muslims must share the burdens of the state as they draw benefits from the state. Islam endorses the concept of engaged citizenship and disapproves activities and attitudes that harm or weaken the state. It is easier, and natural, for Muslims to practice engaged citizenship in Islamic states. However, as discussed below, Muslims are under a similar, or perhaps heavier, obligation to invest personal resources for the welfare and moral guidance of a non-Muslim state where they exercise citizenship. Muslim emigrants share two broad responsibilities. First, they must be engaged citizens of the non-Muslim state. Second, they must practice the faith of Islam in the best manner. These two responsibilities cannot be separated. The combined effect of these responsibilities 236

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Muslim Diaspora Law ensures that Muslim emigrants are loyal and productive citizens of the non-Muslim state. It also ensures that Muslim emigrants practice their faith with dignity and wisdom, cultivating social contexts in which fellow citizens, including non-Muslims, may study the faith and virtues of Islam and observe it in the practice of the neighborhood Muslim community. Muslim emigrants must note that Islam does not authorize evangelism or proselytization to non-Muslims. Specifically stating that there is no compulsion in matters of faith (2:255), the Qur’an reaffirms the freedom of conscience, taking away the power of the state to forcibly change the religion of its subject. However, the Qur’an does allow Muslims to “invite” non-Muslims to study the Qur’an and Islam. This invitation, called d’awah, is highly restrained in manners and outcomes. In terms of manners, the Qur’an states: “Invite [nonMuslims] to the Way of your Lord with wisdom and beautiful discourse; and engage with them most graciously” (16:125). Aggressive, manipulative, sarcastic, irritating, overpowering, self-righteous, and degrading methods of religious discourse are incompatible with the concept of invitation. Furthermore, the engagement with nonMuslims is not confined to verbal debates or conversations. The invitation can be through gentle and caring conduct derived from mercy, forgiveness, and understanding. In terms of outcomes, no Muslim has been empowered to convert any non-Muslim to Islam. God alone gives guidance to whomever He pleases. Thus, Muslims bear no burden in bringing non-Muslims into the realm of Islam. Muslim emigrants must accept civic obligations of the nonMuslim state. First, they must follow the laws of the host nation, except for laws that are manifestly anti-Islamic. Any belief that all laws of a non-Muslim state are contrary to Islam and hence open to violation has no grounding in the Basic Code. Such a belief jeopardizes the welfare and safety of Muslim emigrants. With respect to anti-Islamic laws, Muslim emigrants may consider several options. They may consider petitioning the host government, particularly if the population of Muslim emigrants, such as in France, is substantial, to seek relief from the observance of anti-Islamic laws. They may also consider using the courts to find remedy for their grievances. Now that the freedom of religion is a universal value, affirmed in numerous global and regional human rights treaties and national constitutions, courts in most nations are increasingly willing to review laws and practices that obstruct the practice of Islamic faith. American and European courts, despite their robust inclination 237

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Contemporary Ijtihad toward secularism, and in some cases toward irreligion, have shown considerable leadership in the protection of Islamic faith. In the United States, for example, Muslims are free to worship, build mosques, and live family lives according to Islamic rules. Even Muslim prisoners enjoy the freedom to say daily prayers, read the Qur’an, fast, and even invite Muslim scholars for discussions on Islamic issues. One author of this book has visited female prisons in Kansas and was permitted to freely talk about Islam. Hundreds of inmates are turning to Islam – a development that prison authorities facilitate because conversion to Islam reforms the behavior of inmates and, thus, promotes law and order within the prison system. Many inmates who converted to Islam, including Malcolm X, when released, become community leaders. In Europe too, courts are willing to enforce the freedom of religion for Muslim emigrants. Consider Spain: after several centuries of hiatus, Islam is revisiting Spain and rapidly growing. The public perception of Muslims in Spain is mixed. A majority of Muslim emigrants in Spain have come from Morocco, Senegal, Algeria, and Pakistan. Even though the Muslim population has doubled in the past ten years, the native Muslim population in Spain remains small. There is little evidence that Spaniards are turning to Islam. Muslims have built over 600 mosques in all parts of Spain. The four grand mosques are located in Madrid, Valencia, and Granada, and two other big mosques are being built in Seville and Barcelona. Neighborhoods oppose the construction of mosques, but Spanish courts have been willing to settle disputes. In Spain, the juridical doctrine of “notorio arraigo” (“notorious influence”) establishes a protective relationship between the state and religious communities. Religious communities deeply rooted in Spain gain the status of notorio arraigo. Although Catholicism is the supreme Spanish religion, Muslims too have a historically validated claim to the notorio arraigo status. In 1992, Muslims formally earned this status and entered into Cooperation Agreements with the state for receiving certain benefits and privileges. According to the Agreements between Spain and the Islamic Commission of Spain, mosques are inviolable and cannot be demolished or expropriated without due process of law. The Agreements also guarantee that Muslim communities can receive religious education in schools. The Islamic Commission of Spain has been empowered to select books and teachers for an effective religious education for Muslim children. However, the education agreement has not yet been fully enforced. 238

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Muslim Diaspora Law If no legal remedy is available, and if the host nation forbids Muslim emigrants from practicing God’s Law, Muslim emigrants may, if practicable, leave the hostile nation and seek refuge elsewhere. Islamic emigration is not confined to leaving the home state, it means seeking refuge from any hostile state, domestic or foreign. If relocation is not viable, and if the hostile nation forcibly opposes public observance of the Islamic faith, Muslim emigrants may practice their faith in privacy as did the people of Chechnya and other Muslim republics under the communist rule of the Soviet Union.

Islamophobia Most Western nations have conflicting views about immigration in general. On the one hand, they are most generous in allowing immigrants, including Muslim emigrants, from all parts of the world to come, work, live, and become citizens. (Note that many Muslim states are anything but generous in allowing foreigners of diverse cultures and faiths to live among them and acquire citizenship. Some Muslim states, such as the Gulf States, do not allow even Muslims from other nations to acquire citizenship.) On the other hand, Western nations do not respect immigrants they admit, particularly non-white immigrants. In the United States, for example, immigrants from Mexico, Africa, and Asia continue to face an uphill battle to be fully accepted into the mainstream American culture; it is relatively easy for immigrants from Western Europe to melt away into the mainstream. Some Western nations practice social and economic discrimination, and institute social structures to exploit immigrants and keep them at the lower rungs of the social hierarchy. It is no surprise that Western countries continue to treat Muslim emigrants as “immigrants” even if they are born and raised in European countries. For many centuries, European civilizations have been overly racially conscious and still hold on to the racial prism for classifying and even judging other peoples. It is no surprise, therefore, that Europeans see Muslim emigrants through the racial prism. However, unlike immigrants of other faiths, Europeans also associate Muslim emigrants with Islam. Muslim emigrants settled in European countries need not resent that the system does not treat them as equal to the natives. If social and political equality is offered, Muslim emigrants should thankfully accept it and exercise the rights that come with the equality. Nonetheless, they need not forget that they live in non-Muslim countries and that they are indeed Muslim 239

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Contemporary Ijtihad emigrants and will remain so for a long period of time. In China, where Muslims have lived for over 1,300 years, and even though they are citizens, they are nonetheless called “Chinese Muslims” or “Sino-Muslims.” This identification in China or anywhere else does not reduce Muslim emigrants to a status of inferiority, or secondclass citizenship, but confers on them and on their children a durable Islamic identity. Muslim emigrants face Islamophobia in non-Muslim states, particularly in Western nations where Muslim emigration is relatively new and the native people’s familiarity with Islam is sporadic and negative, mostly acquired through the media, and rarely derived from sustained and long-term contacts with the Islamic way of life. Islamophobia in Western nations is distinguishable from the weatherproof views about Islam in nations, such as India, where millions of Muslims have lived for hundreds of years, contributing to the culture, economy, architecture, and literature of the host nation. In 711, about eighty years after the Prophet Muhammad’s death, Muslims entered Sindh, the western parts of India (what is now Pakistan), and roughly the same year Muslims entered Spain. In 713, Muslims established the first Islamic government in western India. Since then, diverse Muslim dynasties have ruled parts or the whole of India. Even after carving out Pakistan and Bangladesh from the ancient territory, Muslims constitute about 15 percent of the total population in contemporary India. While a few Hindu parties formed negative sentiments against Muslims, sometimes leading to riots and killings, the Hindus understand Islam in ways that Europeans do not. The history of India, closely interwoven with Islam for 1,300 years, is not written to demonize Islam or to ignore the contributions of Muslims to the Indian civilization. The Taj Mahal, a mixture of romance drawn from the Hindu scriptures and calligraphy drawn from verses of the Qur’an, stands as a symbol of historical goodwill between Hindus and Muslims. Neither Hindus nor Indian Muslims would wish to dismantle the common history that the monument represents. Furthermore, Islam has penetrated deeply into Hindu and Sikh cultures. Millions of Hindus visit Muslim Sufi shrines on a regular basis. Sikhism is partly Islamic and its holy book, Guru Granth Sahib, contains numerous Sufi poems that the Sikhs recite daily as psalms. With these and numerous other ties, the Indians do not, and cannot, fear Islam even when they express negative views about Muslims in response to transient events, such as the terrorist attacks on Mumbai. Even social discrimination against Muslims, 240

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Muslim Diaspora Law though worrisome in some parts of India, is unlikely to generate a nationwide Islamophobia. Unlike India, the West sees Islam as a threat. For many centuries, Islam was perceived as a theological threat that challenged the core beliefs of Christianity. Now Islam is perceived as a threat to European secularism. The right of self-determination movements weakened the Western colonial domination over Muslim lands and communities. The resurgence of Islam in the entire Muslim world challenges Western theories that religion is the opium of oppression, or the creed of the oppressed, or the enemy of reason, or a barrier to development, or incompatible with democracy. Contemporary ijtihad embraces democracy, development, human rights, political accountability, free markets, social justice, international cooperation, and even modernity within the framework of piety and morality. On all counts, therefore, the fear of Islam as a fierce and unrelenting competitor causes frustration. Now millions of Muslims are born in Western countries, speak European languages and are educated in Western schools and colleges. The fear of Islam further intensifies when these home-grown Muslim men and women refuse to abandon Islam. Western Islamophobia, however, has deep roots in the Western mind and stems from numerous distinct but interrelated factors. First, the Europeans do not know Islam in the same way that India does. As noted before, Muslims entered Europe in 711, the same year as they entered India. Muslims remained in Europe for nearly 700 years. During these centuries, even though Al-Andalus, southern Spain, experienced a fine civilization that blended faith, intellect, and science; the rest of Europe, which lay in fruitless darkness, could not profit from the offerings of Al-Andalus. During the Enlightenment, European scholars studied and greatly benefited from Muslim scholars and physicians, such as Averroes and Avicenna, but rarely in the positive context of Islam. The mass expulsion of Muslims from Spain in the fifteenth century nearly obliterated the memories of Islam and Muslims. The Muslim monuments in Spain were corrupted and altered to defuse the spirit of Islam. For example, a cathedral was built in the center of the Cordoba Grand Mosque to underscore the Christian triumph over Muslims. Furthermore, negative stereotypes of Muslims were generated to cleanse Spain of any remaining Islamic influence. Contemporary Spaniards are starting to relearn the history of Al-Andalus. Yet negativity against Islam lingers. In the words of 241

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Contemporary Ijtihad Fernando Bravo: “Most people know nothing about Islam, and they cannot even elaborate a negative discourse about it. Negative attitudes toward Muslims used to be based on the traditional aversion towards ‘moros,’ based on traditional racist stereotypes: ‘the Moor is dirty,’ ‘the Moor is a liar,’ ‘the Moor is a thief,’ ‘the Moor is lazy,’ etc.”10 Such views are not confined to Spain. Other European nations have invented similar stereotypes about Muslim emigrants. The root problem lies in a lack of authentic familiarity with Islamic viewpoints. Second, Western Islamophobia is deeply planted in colonial memories of Western nations. Not too long ago most Muslim countries were reeling under Western colonial domination. The Middle East, North Africa, south Asia, and other parts of the Muslim world succumbed to the British, French, and Dutch colonial empires. While Europeans colonized Muslim nations with a sense of selfconfidence and feelings of superiority, Muslim emigrants arrived in Europe with wounded pride and unresolved sentiments of inferiority. Colonialism had established hierarchical relationships between Europe and Muslim communities, instituting the cultural, scientific, legal, and economic supremacy of Western methods and systems. Dismissing Islamic history and its contributions to the sciences and literature, Western colonialism had degraded the relevance and validity of Islamic viewpoints. Colonialism had bred disrespect for almost everything that was Islamic, including the Shariah. The Algerians, Moroccans, Indonesians, Pakistanis, and many other ethnic and national groups that now reside in European nations as immigrants or children of immigrants carry the badge of colonial inferiority. This blend of disrespect and inferiority extracted from the colonial experience continues to feed Western Islamophobia. Third, Western Islamophobia draws its sustenance from negative views about the Islamic way of life that Muslim emigrants wish to enforce for themselves and their families. Regardless of their ethnic and national background, Muslim emigrants tend to segregate and refuse to fully assimilate into the mainstream culture of the host nation. Many Europeans believe that Muslims, like Romanians and gypsies, do not mix with the rest of society. Segregation between men and women at mosques and other social gatherings reinforces the European belief that Muslims do not believe in gender equality. To some, Muslim attitudes toward families come across as authoritarian. Islamic food prohibitions against drinking and eating pork, Islamic preferences for conservative clothing, Islamic rules against 242

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Muslim Diaspora Law the free mixing of men and women, and Islamic obligations for saying the daily five prayers that punctuate the working hours, these and other elements of the Islamic way of life do not allow Muslims to embrace mainstream Western culture that in every way appears to do the opposite. Muslims will have to leave core Islamic values to completely absorb into the Western culture. While some Muslim emigrants abandon Islam, most do not. Adherence to the Islamic way of life, which continues among the children and grandchildren of Muslim emigrants, will remain a source of Islamophobia unless the mainstream Western culture develops respect for the Islamic way of life. Fourth, some Western politicians and political parties exploit the fear of Islam to gain popularity and achieve electoral victory. Fanning prejudice against vulnerable groups, including Muslim emigrants, to seek votes has become an ugly dimension of many Western democracies. The political rhetoric painting Islam as “backward” or “inherently violent” or “inimical to Western lifestyles” reinforces Islamophobia. Even though most Europeans, Americans, and Canadians disapprove of such inflammatory rhetoric, a sizeable portion of the population falls for it. Austria’s Freedom Party and the Swiss People’s Party have been successful in attracting votes and seats in the legislature by adopting anti-Islamic platforms. The Northern League, an Italian political party, campaigns to deny government jobs to Muslims. In France, the opposition to niqab (full veiling of the face) is widespread among political parties, including the ruling party. Even though there are fewer than 2,000 Muslim women who fully cover their faces in France, the politics of niqab acquires disproportionate attention in the media and among the concerns of the people, intimating a broader message that Muslims are dismantling the secular foundation of France. Fifth, the Western paradigm of free speech allows artists and journalists to launch attacks on the Prophet of Islam who, though a human being, is highly revered among Muslims. Muslims, as a matter of faith, do not paint or draw real or imaginary pictures of the Prophet. Drawing inspiration from Islamophobia, Western artists have drawn and published cartoons that caricatured and degraded the Prophet. Western governments, though they did not support the publication of the cartoons, refused to interfere with the independent press in their secular democracies. Likewise, several United States presidents have invited Salman Rushdie, who wrote a highly offensive book degrading the Prophet and his wives, to the White House 243

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Contemporary Ijtihad to affirm the Western conception of freedom of speech. Such political affirmations of free speech against Islam and its Prophet rarely come across as a matter of principle, because Western politicians condemn, and do not endorse, unacceptable expressions of speech exercised against Jews and other minority groups. Except for the United States, most Western states have enacted laws that prevent and punish hate speech that incites violence, hostility, and discrimination against religious groups. Islamophobic art and journalism, however, are protected under freedom of speech. Sixth, some Western states use the tools of direct democracy, such as referenda, to legitimize Islamophobia. In 2009, Switzerland held a referendum to ban the construction of minarets on Swiss mosques. For hundreds of years, mosque minarets represented a profound cultural, historical, and architectural heritage of Islam. A blanket state ban on minarets, without any demonstrable and non-discriminatory zoning explanation, offends fundamental human rights, including the freedom to manifest religion and social and cultural rights of religious minorities. Submitting the availability of human rights to the sentimentality of politically engineered popular referenda would practically dismantle the modern edifice of human rights, the very purpose of which is to shield vulnerable minorities from what is known as the “tyranny of the majority.” The United Nations High Commissioner and the Human Rights Committee described the ban on minarets as discriminatory and divisive, which puts Switzerland on a collision course with its human rights obligations. The UN Special Rapporteur on freedom of religion cautioned against negative social consequences of the minaret ban and reminded Switzerland of its obligations under the International Covenant on Civil and Political Rights, which it has ratified. Islamophobia is no mere theory or viewpoint. It generates concrete negative social consequences. Islamophobia causes and reaffirms discrimination, hostility, and violence against Muslim emigrants settled in Western states. Negative images of Muslims make it difficult for Muslim emigrants, including those born and raised in Western states, to freely adopt the Islamic way of life. Islamophobia negatively affects freedom of religion and conscience because it creates social sanctions and provides social and economic incentives to abandon Islam and adopt a secular, non-religious lifestyle. Muslim emigrants are more likely to be acceptable to neighbors and employers if they show no social markers of being Muslims. Thus, Islamophobia acts as a behavior modification tool to force Muslim 244

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Muslim Diaspora Law emigrants away from public manifestations of the Islamic way of life. Furthermore, Islamophobia facilitates threats and acts of hatred and violence against Muslim emigrants. Daily news stories draw an ugly picture of emerging patterns of hatred and violence. Copies of the Qur’an are regularly burned. Swastikas, pig heads, and other hateful graffiti are sprayed on mosques in France, the United Kingdom, Sweden, and other Western nations. Muslim women wearing hijab are harassed. In Sweden, an unknown assailant opened fire on Malmo’s main mosque, injuring the mosque’s Imam. In Hamilton, Canada, the largest mosque was firebombed. Professors Jonathan Githenz-Mazer and Robert Lambert report in their study that negative views about Islam and Muslims proliferated in national and extremist media to stigmatize and isolate Muslim communities as threats to security and social cohesion.11 It will be a mistake to conclude, however, that Western nations, politicians, or legal professionals think alike or that they are determined to malign Islam or persecute Muslims. Serious state-sponsored and private efforts are under way to combat Islamophobia. The Dutch Public Prosecutor is prosecuting Geert Wilders, a member of the Dutch Parliament, for incitement to hatred and discrimination against Muslims. In New York, the Metropolitan Museum of Art withdrew images of the Prophet Muhammad from display. An overwhelming majority of Danes support the media’s decision not to reprint the Prophet’s cartoons, the first printing of which sparked angry and violent protests throughout the Muslim world. Fast-food chains have begun to serve halal food in numerous French cities. Spain has authorized the establishment of the first Islamic radio and TV stations, in Spanish, for broadcasting the basic teachings of Islam. The first Islamic bank is debuting in Mannheim, Germany, which would provide baking services in accordance with Islamic law. German universities have established academic programs offering degrees in Islamic theology.

Expulsion of European Muslims The question arises whether Muslim emigrants will be expelled from Europe, as they were from Spain in the fifteenth century. At first, it seems improbable that an enlightened Europe, fortified with regional and human rights treaties, would expel or slaughter millions of Muslims living in more than forty countries that constitute 245

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Contemporary Ijtihad contemporary Europe. It seems even more improbable that Europe, in order to ethnically cleanse itself, would resort to the genocide of Muslims. The contemporary reality of Europe is complex because in addition to Muslim emigrants permanently residing in many European nations, some European nations themselves are Muslim. The Council of Europe, a large European aggregation of forty-seven states, has in its fold three Muslim-majority nations: Azerbaijan, Bosnia-Herzegovina, and Turkey. Russia, with millions of Chechens, is also part of the Council of Europe. While the Council of Europe is heterogeneous, the European Union, the more powerful aggregation of regional nations, remains the bulwark of Old Europe, carrying historical inertia, habits, and memory. Ironically, a supermajority of Muslim emigrants live within territorial boundaries of the European Union. Islamophobia discussed above is rampant in the European Union. There is little surprise that the European Union resists the admission of a secular, though overwhelmingly Muslim, Turkey into the Union. The possibility of en masse expulsion and genocide of Muslims cannot be ruled out, since Europeans, despite their sophisticated civilization, periodically succumb to cruelty and inhumanity. The expulsion of Jews and Muslims from Spain and the holocaust of Jews in Germany are teaching points that cannot be dismissed as abhorrent history unlikely to repeat itself. The expulsion of Jews and Muslims from Spain occurred after the Crusades. The expulsion was an attempt to purify Spain for Catholics. The genocide of Jews in Germany was an attempt to purify Germany for the super race. Spain saw Jews and Muslims as religious contaminations, whereas Germany saw Jews as racial contamination. The more recent ethnic cleansing of Bosnian Muslims was predominantly territorial with religious and racial undertones. In each case, Spain, Germany, and Bosnia, the target was not a population of immigrants. The Muslims expelled from Spain had been in Spain for centuries. The Jews in living in Germany were German-born. The Muslims in Bosnia were not new arrivals from the Middle East. The target population in each case was the natives of the nation. In contemporary Europe, extreme right-wing parties propose to cleanse Europe of Muslims and Islam. These parties repulse many Europeans but continue to garner votes. The call for en masse expulsion could gather traction if Muslim emigrants were to be actively involved in violence against local targets. So far, incidences of violence attributed to Muslim emigrants have been sporadic, though some, like the train bombings in Madrid, were deadly. Reaction 246

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Muslim Diaspora Law to violent attacks among Europeans, though revolting, is mitigated by the fact that many Europeans themselves disapprove of invading Muslim lands and offering unconditional support to Israel in suppressing the Palestinians. Some Jewish American scholars have argued that Islamic violence is endemic to Islamic faith and bears little relationship to grievances, like invasions of Iraq and Afghanistan or the establishment of Israel over Palestinian lands.12 Most Europeans reject the view that Islamic violence is gratuitous. It is quite probable that European nations, in part due to the presence of Muslim emigrants in Europe, would adopt a more pragmatic foreign policy anchored in international law and human rights, which reduces tensions, and augments goodwill, with the Muslim world. Muslims living in non-Muslim states must preserve the Islamic way of life as engaged citizens of host states. They must actively contribute toward the safety, social order, and moral wellbeing of local populations. Western and other non-Muslim states must respect Islam and protect Muslim emigrants living under their jurisdiction from prejudice and discrimination. Laws that allow hateful speech and intentional defamation of Islam must be repealed. Muslim diasporas and non-Muslim nations bear the shared burden to make room for peaceful Islam to coexist with respectful secularism and other belief systems.

Notes 1. Abu Hamid Al-Ghazali, Kimiya-ay-Sa’adat (Persian), trans. Muhammad Asim Bilal, Alchemy of Eternal Bliss (Lahore: Kazi Publications, 2001), pp. 151–5. Al-Ghazali explains the obligation of seeking knowledge, for both men and women, arguing that the scope of knowledge is not restricted to religious knowledge. Traders, for example, must seek professional knowledge in their respective trades. 2. Abu Hamid Al-Ghazali, Ihya Ulum al-Din, bk. 5 (Arabic), trans. N. A. Faris, The Mysteries of Alms-Giving (Lahore: Sheikh Muhammad Ashraf, 1966), pp. 56, 74. 3. Al-Ghazali, Ihya Ulum al-Din, bk. 5. 4. Sahih Bukhari, bk. 23, hadith 478. 5. The authors differ on this point. Hisham Ramadan does not subscribe to this minority view, the other author does. 6. 406 US 205 (1972). 7. Ibn Khaldun, Al-Muqaddimah, trans. Franz Rosenthal, The Muqaddimah (Princeton, NJ: Princeton University Press, 1969), pp. 123–36. 247

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Contemporary Ijtihad 8. Sunnan Abu Dawud. bk. 41, hadith 4930. 9. Tariq Ramadan, Western Muslims and the Future of Islam (Oxford: Oxford University Press, 2005), p. 68. 10. Fernando Bravo, Islam in Spain, available online at http://www.euroislam.info/2010/03/08/islam-in-spain. 11. Islamophobia and Anti-Muslim Hate Crime: A London Case Study, European Muslim Research Centre, January 2010, available online at http://centres.exeter.ac.uk/emrc/publications/Islamophobia_and_AntiMuslim_Hate_Crime.pdf. 12. This point has been discussed in detail in Liaquat Ali Khan, “The Essentialist Terrorist,” 45 Washburn Law Journal, (2005), 47.

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Glossary

‘aam – general adat – customs ahadith – see hadith ajami – non-Arabophone al-fitra – natural law al-ghaib – the invisible al-hikma – wisdom (Prophet’s Sunnah) al-kitab – the book (Qur’an) al-masdar – the source al-mizan – balance al-muhajirin – emigrants al-siyada – sovereignty al-urf – local customs alrriqab – captives amal – deeds or conduct aman contract – safety contract aqd dhimmah – covenant with non-Muslims as’r – late afternoon prayer ashab – followers Ayliya – Jerusalem bidah – innovation d’awah – invitation dalil – reasoning dar al-Islam – domain of Islam daruriyyah – essentials deen – way dhamm – blame or insult dhimmis – non-Muslims residing permanently among Muslims dhur – afternoon prayer diya – monetary compensation for homicide fatwa – legal opinion, see fatwas fiqh – rules derived from the Qur’an and Sunnah 249

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Contemporary Ijtihad furu – branches or rules of fiqh as distinguished from usul (principles) hadith – sayings of Prophet Muhammad hajiyyah – needs hakmiyat – sovereignty halal – lawful under Islam haram – unlawful under Islam; also may refer to a holy site harbis – non-Muslims without contractual relationship with the Islamic state hijab – head covering for Muslim women hijra – emigration to Medina in 622 hikmat – wisdom hudood – serious crimes under Islamic law ibadaat – acts of worship iftra – invention ijmah – consensus of jurists ijtihad – the process of making rules iman – faith infaq – spending Injeel – New Testament isha – night prayer Islamiat – Islamic studies isnad – chain of transmission istidlal – reasoning istihsan – equity as a legal method of ijtihad istislah – public good as a legal method of ijtihad iswaq al-fiqh – markets of law jihad – striving and fighting oppression and occupation jizya – special taxes imposed on non-Muslims who are permanent residents of the Islamic state juhd – effort kara – steel bracelet (Punjabi) karpan – knife (Punjabi) khas – specific madhab – school of Islamic law maghrab – evening prayer Majella – Ottoman civil code makruh – disfavored but legal maqasid al-Shariah – objectives of Islamic law mas’alah – issue and the rule of Islamic law maslahat – understandings or interests 250

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Glossary matn – substance maysir – speculative risk mihna – ordeal minhaj – path Mishnah – Jewish oral law mohkamat – plain mostamen – visitors muamalaat – worldly transactions mubayyan – explicit muftis – scholars who give opinions on Islamic law mujmal – comprehensive mujtahid – a jurist who engages in ijtihad mullah – Muslim man learned in Islamic law muminin – believers munkirin – non-believers muqayyad – restricted mushrik – a person who associates partners with God mutashabihat – allegorical Mutazilis – Islamic school of rationalism mutlaq – absolute naskh – abrogation, repeal nass – text niqab – full veil for a woman’s face qadi(s) – judge(s) qanun – law (legislation) qara’a – reading or to recite qawwali – a form of singing qeryana – Aramaic word for reading qiyas – analogy as a legal method of ijtihad quroo – menstruation period riba – interest on loans sadaqa – a voluntary act of charity, pl. sadaqaat sama – listening to music shan – majesty (freshness) shirk – associating partners with God shura – consultation siyar – international law ta’wil – interpreting the Qur’an with allegory, intuition, and meditation tafsir – interpreting the Qur’an with plain meaning, grammar, logic, and reason 251

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Contemporary Ijtihad tahsiniyyah – embellishments talfiq – crossing from one madhab to the other taqlid – the practice of following past precedents tarjih – rule selectivity Torah – the first five books of the Hebrew Bible ulema – persons learned in Islamic studies ulema al-sultan – state scholars Ummah – All Muslims forming a single community usul – principles wajd – ecstasy waqf – trust wudu – ablution zabihah – animals slaughtered according to Islamic rites zakah – mandatory alms

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Index

Abu Talib, 187 adat, 36 Afghanistan, 15, 45, 50, 64, 75, 77, 89, 93, 120, 149, 177, 215, 228, 247 ajamis, 43 al-fitra, 70 al-ghaib, 184 al-Ghazali, 20, 58, 72–5, 85–6, 223, 247n al-Hajjaj, 194 al-masdar, 120 al-Mawardi, 13n, 163 al-mizan, 126 al-Sanhuri, 95 al-Shaybani, Muhammad, 157 al-siyada, 118 al-urf, 65 amal, 22, 49, 79n Anderson, J. N. D., 3 Arab customs, 24 ashab, 47 Averroes, 19, 241 Azerbaijan, 246 basic law, 118 bidah, 44–5, 50, 68–9, 75 Buddhism, 8, 10, 146, 155, 167, 173–4, 219 Cairo Declaration on Human Rights in Islam, 154, 160 caliph, 6–7, 24–5, 29–34, 39, 44, 59, 114–15, 121, 141–3, 153, 163 Caliph Abu Bakr, 29, 37, 73, 191 Caliph Malik, 192

Caliph Omar, 25, 29, 37, 148, 153, 171, 173 Caliph Umar, 191 Caliph Uthman, 191–2 Canada, 53, 227, 245 Carlyle, Thomas, 190 Christian, 10, 37, 69, 94, 122–3, 146, 148–9, 151, 154–5, 162, 165–7, 169, 171–6, 178, 184, 187, 189–91, 193, 196, 198–9, 202, 204–5, 209–11, 216, 218–19, 229, 232–4, 241 classical fiqh, 2–3, 7, 9, 11–12, 15–16, 24, 26–9, 31–6, 38–9, 43–5, 51–2, 54–5, 58, 66–7, 71, 75, 80–1, 85, 87, 94–7, 102–3, 105, 107, 113, 119–20, 123–6, 131–2, 137–8, 154–5, 157, 173–5, 186, 207, 222 119–20, 123–6, 131–2, 137–8, 154–5, 157, 173–5, 186, 207, 222 Hanafi, 3, 14–15, 37, 50, 64, 69, 75 Hanbali, 3, 15, 50, 69, 75 Jafari, 15, 50 Maliki, 3, 15, 37, 50, 131 Shafi, 3, 14–15, 24, 37, 40, 50, 60, 72, 75 classical period, 14, 16, 43, 69 constitution, 2, 12, 51, 80–4, 87, 89, 91, 93, 100, 113–23, 125, 131, 133–5, 141–3, 147 150–1, 153, 156, 166–72, 174, 181, 237 constitutional ijtihad, 128–40 consultation principle, 8, 113 shura, 132 contemporary fiqh markets, 51–3, 207

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Contemporary Ijtihad contemporary ijtihad, 1, 4–5, 8, 10, 14, 45, 51, 58, 60, 63, 65–6, 75, 83, 89–93, 95, 97, 99–100, 106–7, 110, 113, 123–4, 126, 130, 140, 146, 153–4, 156, 158–9, 167, 174–5, 178, 181–2, 208, 232, 236, 241 Cook, Michael, 188, 192, 194, 195 Copt Christian, 155, 169 Coulson, Noel, 4 covenant, 146–9, 151–2, 154–6, 160, 162, 166–73, 182 aman contract, 156–60, 171 Covenant of Medina, 90, 147, 168 Crone, Patricia, 188, 192, 194, 195 cultism, 55 dalil, 42 Daniel, Norman, 189 dar al-Islam, 107 defamatory scholarship, 188, 190–1, 193, 195, 197, 208 diaspora law, 215 Dien, Izzi, 155 divine text, 1–7, 16–18, 20–1, 27, 48, 51–3, 56, 80–2, 85–6, 95, 100, 105, 119–21, 125, 141, 143, 181, 183–4, 186 diya, 63–4 doctrine of necessity, 106, 219–20, 229, 235 Egypt, 2, 7–9, 15, 21, 43, 55, 60, 89, 92–6, 111, 118–19, 122, 125, 154–5, 160, 169, 177, 197, 228, 231, 236 emigrants, 167, 215, 217–40, 242–7 engaged citizenship, 232, 236 English, 9, 53, 58, 124, 189, 193, 231 European Union, 108, 246 familism, 143–4 fatwa, 47, 50, 138, 153, 178, 228

fiqh markets, 7, 47–56, 58–69, 72, 75–8, 113, 138–9, 181–9, 191–5, 197–9, 201–2, 206–8, 211–13 disengagement principle, 185–6, 193–4, 197, 212 dubious scholarship, 198 external scholarship, 154, 181, 185–7, 191, 193, 195, 198, 206–7, 209–11, 213 gracious engagement, 11, 185–7 France, 93–4, 167, 208, 219, 227, 230, 237, 243, 245 free speech, 76, 122, 165, 243–4 furu, 28 fusion state, 12, 83, 106, 122–3 Germany, 94, 177, 218, 231, 245–6 Goldziher, Ignaz, 24, 199–203 gracious coexistence, 10 Grotius, Hugo, 197 hadith, 5–6, 14–15, 17, 20–7, 31, 35–6, 40, 44, 52, 56, 73–4, 77–8, 139, 198–202, 223–4 isnad, 6, 200–1 matn, 6, 201 hakmiyat, 118 halal, 67, 226, 234, 245 Hallaq, Wael, 41, 59 haram, 78, 175, 220, 235 hate speech, 166, 244 haya, 231 hijab, 216, 220, 245 hikmat, 126 Hindu, 8, 10, 65, 146, 148, 152–3, 155, 165–7, 169, 173–4, 176–7, 219, 240 Hitti, Phillip, 211 hudood, 89 ibadaat, 47, 81, 215 ijtihad, 1, 14, 18, 23, 26–30, 33, 35–6, 38–42, 44, 49, 53, 56, 68, 123–7, 129–40

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Index ijtihad and bidah, 68 imam, 15, 22, 30, 32–4, 40, 44, 52, 55, 59–60, 63, 69, 72–3, 245 immutable right, 150–2, 168 personal law, 152–4 India, 2, 15, 65, 148, 152–3, 175, 177–8, 198–9, 216, 240–1 Indonesia, 2, 8–9, 15, 55, 63, 92, 111, 155, 218, 228, 231, 236, 242 International Covenant on Civil and Political Rights, 127, 178, 244 Iran, 7, 15, 33, 62, 87, 89, 93, 111, 118, 120–2, 125, 130, 142–3, 172, 174–5, 178, 228, 236 Iraq, 15, 33, 50, 63, 77, 93, 98, 116, 119–20, 125, 149, 160, 173, 194, 215, 220–1, 247 Islamiat, 130 Islamic Constitution, 4, 113–14, 116, 119, 123–8, 130–2, 134–40, 143–4, 167–70, 172, 174 Islamic legislation, 2–3, 5, 51, 56, 80–1, 84–5, 94, 96, 98, 100–5, 116, 119–20, 126–7, 131, 134–7, 169, 181 local custom, 2, 5, 29, 36–7, 51, 53, 63–5, 80–1, 89, 91, 95, 100, 104, 123, 128, 132, 140, 181, 228–9, 236 positive law, 2–4, 6, 80–3, 86–7, 93–5, 98–100, 104–5, 117, 181 qanun, 80, 84 siyar, 106 Islamic state, 30–1, 38, 40, 55, 82, 84, 93, 117–18, 121, 127, 131–2, 134, 136, 140, 146, 148, 150–1, 153–63, 169–70, 173, 176, 215, 220, 236 Islamophobia, 110, 231, 236, 239–46 Israel, 77–8, 92, 148–9, 153, 209, 216, 247 iswaq al-fiqh, 47

Jeffrey, Arthur, 205 Jesus Christ, 10, 81, 123, 166, 176, 192, 205, 218 Jewish, 10, 37, 94, 146–9, 151, 154, 162, 167, 171–4, 176–7, 184, 189, 193, 195, 197, 199, 202–6, 209–10, 216, 229, 232, 234, 244, 246–7 Jordan, 7, 95, 98, 143, 160 juhd, 1, 31, 140 Kemalist, 62, 119 Khadduri, Majid, 155 Khadija, 190, 195 Khaldun, Ibn, 229 kingdom, 2, 7, 93, 107, 118, 120, 124, 190 Lambert, Robert, 245 legal maxims, 97–9 legal methods, 4, 28, 35–8, 41–2, 47, 50, 54, 70, 73, 77, 80, 54, 99–100, 123, 125–7, 131, 133, 135, 137–8, 140, 200, 203 ijmah, 4, 27, 36–8, 75, 100–1, 132, 136, 203 istidlal, 36–7 istihsan, 36–7 istislah, 36–7 qiyas, 4, 36, 38, 73–4, 100, 203–4 tafsir, 20–1, 187–8, 192 Lessner, Jacob, 203 Lewis, Bernard, 148 Libya, 7, 93 madhab, 7, 14–16, 25, 28, 34, 36–42, 47, 49–50, 67, 69–70, 75–7, 123–5, 131–2, 153 deen, 16 Malcolm X, 238 Maliki, 3, 15, 37, 50, 131 maqasid al-Shariah, 85 maslahat, 126 Mayer, Ann Elizabeth, 148

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Contemporary Ijtihad maysir, 66–7 McAuliffe, Jane Dammen, 187–8 Mecca, 2, 8, 24, 40, 43, 55, 62, 72, 104, 110, 158, 171, 196–7, 217–18, 226–7 Medina, 2, 8, 14, 24–5, 40, 43–4, 50, 55, 60, 62, 72, 104, 147, 158, 171, 197, 205, 217, 226–7 Mesopotamia, 2, 43–4, 93 mihna, 59–60 Mingana, Alphonse, 192 miqra, 203–5 Mir, Aimen, 160–1 Mishnah, 203 mjutahids, 47 mohkamat, 19 Mormon, 166, 175, 179n4, 182, 208 Morony, Michael, 194 Moses, 81, 195, 197, 203 muamalaat, 47, 81, 215 muftis, 47, 135 Muhammad, 3, 10, 26, 45, 68, 78, 81, 148, 165–6, 175, 189–91, 194–7, 200, 202–5, 210, 212, 217, 240, 245 Muir, William, 209–10 mullahs, 134 mushrik, 232 Muslim culture, 227–8 mutashabihat, 19 Nemoy, Leon, 194 new Muslims, 42–4, 63 New Testament, 184, 192–3, 199, 210 Injeel, 184 niqab, 243 non-Muslim scholars, 3, 11, 16, 22, 85, 178, 181–3, 185–7, 190–2, 196–8, 202, 209–13 non-Muslims classical covenant, 154, 167 dhimmi contract, 155–7, 171 dhimmis, 147, 154–5, 157, 159, 173 harbis, 154, 159–60

immutable rights, 150–2, 168 mostamen, 154 protection rights, 157, 170–1, 173, 175 normative hierarchy, 25, 134 Obama, Barack, 233 One People, 91–2 opiniojurist, 1, 3–4, 7, 9, 12, 14, 21, 27, 32, 34–40, 42, 44, 47–52, 54–6, 58–71, 73–8, 96, 101, 120, 129, 131, 138–9, 186–7, 189, 191, 198–9, 201–4, 207–8, 213 Ottoman Empire, 43, 92, 98, 114, 141–2, 148, 150, 190 Pakistan, 7, 9, 15, 48, 60, 75, 83, 87, 89, 93, 101, 103–5, 111, 118–22, 130, 132, 143, 158, 165, 174, 218, 231, 236, 238, 240, 242 Palestine, 15, 78, 108, 115, 149, 195, 209, 211, 215–16, 247 Persia, 2, 8–9, 43–4, 53, 93, 130, 147, 195, 199, 204 Pococke, Edward, 196 political rights, 168–9 right to hold office, 168 right to representation in the legislature, 168 right to vote, 168–9 Pope Benedict XVI, 198 proselytize, 177–9, 194, 237 qadis, 30, 34, 95 qawwali, 75 quroo, 57 Ramadhan, 9, 17, 88, 150, 215, 226 rationalism, 35 reasoning methodologies, 69 reception of foreign law, 93–4, 96 religious dignity, 167, 173 riba, 60, 66–7, 106, 220, 234–5 Rightly-Guided Caliphs, 29–31

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Index Ringgren, Helmer, 206 Ross, Alexander, 193 Rushdie, Salman, 178, 243 Sahih Bukhari, 6, 23, 25, 73, 79n2 Sahih Muslim, 6, 23, 25, 35, 73, 79n2 Said, Edward, 211, 214n25 Salem, Elie, 195 sama, 72–5 Saudi Arabia, 7, 15, 45, 55, 62, 83, 89–90, 93, 107, 117–22, 133, 143 Schacht, Joseph, 46n5, 200–3 secular state, 12, 83, 122–3, 131, 151, 154 Shamir, Yehuda, 197 Shariah, 3–5, 9, 11, 38–9, 65–7, 78, 85, 90, 95, 105, 107, 115, 119, 153, 177–9, 235, 242 Shia, 12, 14–15, 25, 27, 33–4, 39, 41, 43, 50, 62–3, 121, 143 shirk, 17 Sikh, 10, 158, 166–7, 173, 176, 240 Spain, 2, 85, 87, 188, 218, 238, 240–2, 245–6 state jurists, 58, 94 submission principle, 5–7, 12, 83, 86–7, 89, 91, 94–8, 102–6, 115–20, 142, 178 compatibility doctrine, 84–5, 100, 106 supremacy clause, 113, 116 supreme law, 5, 18, 95, 120–2, 151 Sunni, 6, 12, 14, 25, 33–4, 37, 39–41, 50, 62–3, 75, 126 Switzerland, 94, 227, 244 Syria, 2, 7, 43, 92–3, 160, 169, 206 talfiq, 50 Talmud, 189, 193, 203–4 taqlid, 15, 39, 41–2, 44–5 tarjih, 75–6 tax obligations, 161, 164 jizya, 161–4, 172–3 welfare, 86, 110, 124, 126, 131, 143, 162, 164, 172–3, 219–21, 236–7

technocrat, 132 textual analysis, 84 aam, 20 khas, 20 mubayyan, 20 mujmal, 20 muqayyad, 20 mutlaq, 20 naskh, 27 nass, 73 Torah, 18, 184, 203–5 treaty, 5, 106–7, 109, 116, 136, 147, 159, 162, 167, 178 Turkey, 2, 8–9, 11, 15–16, 62, 94, 115–16, 119, 141–3, 150–1, 153, 218, 228, 246 ulema, 132 ulema al-sultan, 137 Ummah, 5, 9–10, 49, 54, 64, 81, 90–3, 101, 107, 109–10 United Kingdom, 218–19, 245 United Nations Charter, 109, 159 United States, 9, 12, 43, 53, 55–6, 68, 76, 83, 88, 94, 106, 122, 144, 156, 179n4, 198, 210–11, 221, 225, 231, 233–4, 238–9, 243–4 Constitution, 47, 58, 83, 107, 113–14, 122 Supreme Court, 196, 208, 225, 233 usul, 28 wajd, 72 Wansbrough, John, 192, 194 waqf, 96–7, 209 Wegner, Judith Romney, 203–6 welfare rights, 162, 172–3 Western literature, 4, 202 wudu, 75 Yakoob, Nadia, 160–1 zakah, 9, 40, 52, 88, 150, 161–4, 172, 215, 221–5

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