here is list of 7 things you can do.Please feel free to improvise on this paper.
1. Jot down ideas about Sharia conferences to be held in March & July 2012*
2. Purpose is to help ease the tensions and mitigate the hype to build a cohesive America. It is to assure the moderate majority of Americans who are looking for leadership from Muslims, and hear that we are all in this together to make America safe and prosperous for everyone.
3. Develop your own contact list of at least 100 and ask your friends who are committed to contribute positively to building a cohesive America.
a. Mayor, council, fire and police
b. County commissioners
c. State Representative
d. US Senator, Congress person
e. Clergy from every religious tradition, bigger churches
f. Presidents of major corporations
4. Together, we can develop a good solid program that addresses the issues. The input will come from friends on the right and the left. Even a few Tea party members are willing to be a part of brain storming to share their concerns, so we can address it comprehensively.
5. I invite you to join me for the Unity Day USA on 9/11/11 in Dallas, details are at www.Unitydayusa.com - we can hold a meeting on September 12 and 13 to put together a solid plan and presentation material to go forward. Our goal is to make America a safe and secure place for every one of the 301 Million Americans.
6. As a volunteer myself, I have asked Dr. Basheer Ahmed and Hon. Imam Dr. Yusuf Kavakci to co-Chair the event. You may consider the process for your own town or city.
7. Let’s focus on ten cities including Dallas, Nashville, Chicago, Los Angeles, Atlanta, New York, Washington, Seattle, San Francisco and in Ohio (primaries) or other cities. If you have the committed volunteers, we can do this in more cities. We need to work on getting ample and continuous coverage from the media. I am talking with Sean Hannity and hope to reach a few more.
Mike Ghouse
Committed to build a cohesive America
Sunday, July 31, 2011
Thursday, July 21, 2011
Sharia as a Legal System - a few aspects
The best way to communicate an idea and practice is for the reader to relate with it through cultural or similar references and anologies. This Author Kennedy has simply done that. It is a long article, but if you have an interest in Sharia, it is a good one to read. By the way all postings on this site are articles that will make you think, inspire rather than react.
Mike Ghouse
www.MikeGhouse.net
................................
The following article is shared by Doug Roberts Author the author of an ebook "The Man Who Fooled SAVAK. "
Mike Ghouse
www.MikeGhouse.net
................................
The following article is shared by Doug Roberts Author the author of an ebook "The Man Who Fooled SAVAK. "
Mr. Kennedy was kind enough to email one of his recent lectures on this subject. I offer it here for anyone's perusal. Doug Roberts. (Mr. Kennedy, btw, was one of the 52 hostages held in Iran.)
Lecture II
September 7, 2010
Islam as a Legal System
By Moorhead Kennedy
This week, we are going to take up Islam as a legal system, or the Shari’a, a word meaning ‘path’, the path to man’s salvation. Of all the materials that I plan to present in this course, this is the toughest, and perhaps the most important, for it is at the very heart of Islam.
The Shari’a is very different in concept from our Western idea of law. If Western legal systems embody one’s rights, the Shari’a is based on one’s duties. It is the sum of duties required by God of human beings, not only to God but also to one’s fellows. It is the infusion of Divine Purpose into human relationships that distinguishes the Shari’a from the secular jurisprudence of the West.
Islamic Law has never been an empirical study distinct from religion. It is the practical application of religion. Although it embodies human intelligence, it is essentially of divine inspiration, and hence immutable.
I mentioned last week how westerners tend to look into Islam to find grounds for their disdain. Similarly the Shari’a, which is the key to Islam, a great intellectual edifice produced by a great civilization, is characterized in the West in terms of that which revolts us, for example, cutting off the hands of thieves, or the stoning of women taken in adultery. These penalties are part of Middle Eastern customary law dating back a long time before Muhammad. We run into the stoning of women in the New Testament.
Rather we are talking about a very sophisticated body of law, embracing constitutional law, jurisprudence, contracts, evidence, criminal law, inheritance, agency, a great range. It is still the basis of law in Saudi Arabia, applied not at all in Turkey, and applied only in part throughout the Middle East.
Today, the application of the Shari’a is generally limited to what we call family law (marriage, divorce, orphans), inheritance and charitable foundations. Law in other areas, notably commercial law, is generally borrowed from the West. You will have noticed how the restoration of the Shari’a has become a major constitutional issue in Iraq, and elsewhere.
Where did the Shari’a come from? Its initial source is the Qur’an, revealed in its entirety to humankind through the Prophet, Muhammad. There is another source, which we discussed earlier, based on the tradition, God has not invested in any human being what he placed in the prophet. A series of traditions about the prophet, what he said, what he did, are called hadith. We gave some dental examples earlier. These illustrate his way, or Sunna.
Let’s go over why the Qur’an, and the traditions, or Hadith, are not just convenient sources, the reality that you have to start somewhere. Rather, they are infallible. Understanding why this is so is really the opening to understanding Islam.
The infallibility of the Qur’an and the Hadith reflects a profound awareness of the imperfection of human reason, its inability to apprehend by its sole powers the real nature of the good, or indeed any reality whatsoever. Absolute good and evil can therefore be known to only through a divine revelation mediated through Prophets.
To review what was discussed last week, God has provided a succession of such Prophets ever since, by the creation of Adam, the human species has existed upon the earth. The revelations accorded to these Prophets were all identical in principle, but formed a gradually developing series adapted to the stages of man’s development. Each in turn expanded, modified and abrogated the preceding revelations.
The Qur’an is the final revelation, and therefore contains the final and most perfect solutions for all questions of belief and conduct. It is the primary source of law. But the Qur’an is short, and much of it is hortatory. There is no room for detailed explanations.
For example, the law of contracts has its source in Sura, or chapter, V, O ye who believe, fulfill your pledges. But that doesn’t exactly tell you when a contract arises, what considerations or formalities are required, what are the consequences of breach.
How are these initial revelations to be interpreted, developed and applied? Now, the natural interpreter is the Prophet himself. He possessed not only the book, as revealed to him, but hikma, or practical wisdom through which basic principles can be applied to the details of life.
So, via the Hadith, the actions and sayings of the Prophet, transmitted as we have seen by a chain, or isnad, of reliable reporters, formed what was originally a kind of commentary on the Koranic source.
From this starting point, it was easy to conclude that the commentary itself was indeed inspired. Ultimately, it was believed that in all his sayings and doings, the Prophet was acting under tacit inspiration. His Sunna, or way, together, of course, with the Qur’an, supplied solutions to the problems of good and evil.
How are these sources to be applied? Here begins Fiqh, the science of legal interpretation, which is one of the glories of Islamic civilization.
For example, the Prophet’s Sunna, is determined by a series of Hadith. But, how do you determine which hadith are authentic? Or, suppose two of equal authority are in conflict? Does one abrogate another? Is a hadith limited to particular historical circumstances, or to a particular class of persons? It was decided that unless a limitation was expressed or clearly implied, it was universally applicable.
Finally, jurists had to weigh the meanings of words, and decided that, unless they were clearly used metaphorically, they were to be taken in their plain Arabic meaning. Our Supreme Court has decreed much the same about construing statutes, with American English instead of Arabic.
A final source of revealed law is called ijma’, or consensus, in this case of the whole Islamic community. A hadith declared that however much individuals may err, God will not permit the whole community of Muslims to go astray. This could have been a source of continuing flexibility. As we will see, it hasn’t.
Soon there developed a class of learned doctors of the law, the ‘Ulama. They were perceived to possess ‘ilm, or legal/theological knowledge. The words ‘ilm and ‘Ulama come from the came root. By the end of the second century, ijma’ was exercised not by the whole community, but by the Ulama, who used it to fill up all the remaining gaps in the system.
Now, what of those points of law not clearly covered by the Qur’an or Hadith? Muslim jurists had resort to analogy, or qiyas. A problem left unanswered was compared to a similar one already dealt with. The logical steps that led to the solution of the answered problem indicated a parallel route along which a solution to the unsolved problem could be found.
Finally, when none of these yielded an obvious solution, a jurist could fill in the interstices, the hole between the Qur’an and Hadith, as validated by Ijma’, through the issuance of a legal opinion or fatwa. You have all heard of fatwa, once again popularly understood in terms of abuses, such as Khomeini’s calling for the death of an Anglo-Indian novelist.
A jurist entitled to issue a legal opinion, or fatwa,is called a Mufti. Same root word. The collections of leading fatwa are the very rough equivalent of leading cases in common law.
And if the new problem appeared to resemble two equally closely solved problems with different results, then the jurists could adopt the one that yielded the most just result. In deciding what is just, the jurist is guided by some basic principles.
Thus, “the fundamental rule of law is liberty”. But, says the Muslim jurist, human nature is weak, easily led astray, ungrateful and covetous. Right? Therefore, in the interests of both the individual and society, limits, ordained by the Wisdom and Mercy of God, have to be set on human freedom of action. There are two kinds of limits, corresponding to the dual nature of man, as soul and body. Limits to benefit the soul are principally the five pillars, prayer, alms, fasting, haj or pilgrimage, and jihad, discussed last week. Those related to the body are duties to one’s fellow man.
Islam recognizes that the majority of human actions do not come within the scope of law. The presumption, based on the principle of liberty, is that unless shown to be otherwise, actions are morally and therefore legally indifferent, and therefore ‘permitted’. From this basis, actions are classified in five grades:
1) Actions obligatory on believers
2) Desirable or recommended (but not obligatory) actions
3) Morally indifferent actions
4) Objectionable, but not forbidden, actions
5) Forbidden actions
Now, we turn to some practical examples of how this system actually works. Rather than doing a survey of all the different kinds of law, we will look at the Law of Inheritance, how it developed, and, above all, the ethical values which it reflects. At our stage in life, these issues are familiar, or should be, and most important. The examples I plan to cite represent issues that your own lawyers, accountants, or estate planners may raise.
There is no situation in which one’s ethical principles are put more to the test than in the family, particularly when family property is involved. Moreover, the law of inheritance, unlike most other branches of the Shari’a, is enforced to this day, throughout the Islamic world.
But first, a word on how the Islamic Law, as illustrated by the law of inheritance, developed. Its origins lay in the tribal customs of pre-Islamic Arabia, which was a society devoted to the blood feud and the raid. Wealth defended in one raid was often as not booty seized in a previous raid. Inheritance was therefore a redistribution of the spoils among those of the deceased’s kin who normally fought beside him. Women, being neither raiders nor defenders, inherited nothing.
As one means of raising the status of women, Muhammad established them in the inheritance scheme. In the Qur’an, at Sura or Chapter IV, 11, it is written: “ in the matter of your children a) to the male, the portion of two females, and b) if there be women two or more, then to them two-thirds of what he leaves, and if one, then to her one-half. This provision, that daughters inherit only half what sons inherit, has been seized on by the media as something that Iraqis and others should correct, if they want a democracy. But wait a minute.
It has been suggested that that (b) was the Prophet’s first intent. The daughters took out their required share, leaving the balance to be divided among the nearest male relatives. You can imagine what the male relatives thought of that one! With, say, two daughters and two sons, the daughters would divide the two thirds, taking a third apiece, while the once predominant sons, the good old boys, who in the ‘good old days’ took everything, would receive no more than one-sixth apiece.
Obviously, the males wouldn’t stand for it. So (a) was put in, ensuring that each son would twice what each daughter received, one-third, while each daughter received one-sixth. With his prestige and interests safeguarded, the tribal male could submit to God’s command.
Today, we hear feminists around the world pointing to this distribution as an example of unfairness to women. It is clear that the Prophet was doing his best, all that was politically possible in those times, to help women.
The problem is inflexibility. There is no flexibility here. These are required shares. The object of these dispositions is primarily religious. All property is God’s. Since men and women have only the use of it, God will direct its disposition to further his purposes, which include the recognition and rewarding of family relationships.
This contrasts with the prevailing Western concern over the integrity of property, keeping it together. Perhaps the most obvious example of the integrity of property is primogeniture, still in force where land is so entailed in England. The need to preserve landed wealth requires that land pass undivided to the eldest son, cutting out younger sons and daughters.
Because of the same concern for property, when an American dies intestate survived both by his parents and his children, his parents, however needy, take nothing, and his children take all. The law presumes an intent to pass family property down to the younger generation as intact as possible. I’m sure that we all follow that principle in our own testamentary dispositions.
A Muslim who dies leaving both parents and children has no such liberty. The aging parents together would take at least one-third of the estate, following the Qur’an’s reminder, “Your parents or your children, ye know not which of them is closer to you in the benefit they bring”. In Islam, God requires that men reward the affection and take care of the needs of aging parents in the widespread family. That wealth is thereby likely to be dissipated is a lesser consideration.
You will recall that the Islamic axiom, “the fundamental rule of law is liberty”. What of that ultimate freedom, to dispose of your worldly goods as you see fit? The Qur’an started with the freedom to make a will. “Bequeath” it says, “to your relatives in reason”. Later revealed verses, the ones we have just been discussing, set out the required shares.
This left open the problem of whether a Muslim, through a bequest, could leave something extra to relatives already taking required shares. So here, as I mentioned, where there is a gap in the Qur’an, the Muslim jurist turns to the Hadith, the tradition of the Prophet. A very authentic tradition quotes him, “ Surely, God has given to anyone entitled to anything his due – therefore there is no bequest to an heir.” You cannot substitute your desires for God’s decree.
A second problem not resolved in the Qur’an, how much of his estate a Muslim can leave by will, and how much must be reserved for division into required shares, also had to be resolved by Hadith. Reportedly, the Prophet fixed a bequeathable maximum of one third. Where did he get one-third?
It just so happens that this proportion, one third by will, two-thirds by required shares, was that of Roman law. This proportion may have entered Mecca and Medina during the Prophet’s time, or it may have been picked up when the Arabs conquered Syria, Egypt and other former Roman provinces. Certainly some of the hadith were spurious, convenient ways of incorporating tribal or other local custom, as well as Roman law, into the Sharia.
Earlier, I mentioned how an Islamic Qadi, or judge, makes judgments based on their ethical merit, a range going from required to permitted to forbidden. We said that God’s uses for property prevail over peoples. It is yet another way of saying that Islamic Law is less a statement of rights than of obligations. Let me give you a practical example.
In 1941, my grandmother, a long-time summer resident of this island, in her will left a series of legacies which amounted to more than she actually had to leave. The august Philadelphia law firm of Ballard, Spahr, Andrews and Ingersoll, I’m afraid, had neglected to tell her about estate tax.
In such a situation, some legacies normally are sacrificed, or abated, in some order. By what standards, reflecting what values, do you abate legacies? Here the difference between western legal norms and the Sharia is at its most stark. American courts first sacrifice property not specifically covered under the will, next property disposed of under a general residual clause, and finally property that has been specifically bequeathed.
The most specific legacies presumably are those that the decedent cared most about. In other words, the American judge is concerned with identifying and giving effect to the decedent’s intent, to his or her desires.
By contrast, the Islamic Qadi, concerned with the decedent’s obligations, will sacrifice legacies according to the inverse order of their ethical merit. First to go are morally forbidden legacies, then ones morally discouraged, then ones merely permissible, then those deemed meritorious, always preserving to the last where possible those that are obligatory.
Of course, bequests to pay unacknowledged debts are obligatory, since otherwise unknown creditors would suffer loss. Bequests owed to God enjoy less protection, since God can better stand the loss. But within the bequests to God, the same reasoning usually prevails. A bequest to have prayers said to God is sacrificed ahead of one to pay alms to the needy. This class of bequest is to be preferred, however, to bequests of no ethical merit. These classifications, applied to all human actions, pervade Islamic Law.
Not all Sharian jurists will come out the same way on these issues. There are variations among the four principal orthodox or Sunni schools of Islamic law. All are valid. With exceptions, each school, or madhab, recognizes each other. One basic difference among them is how much room they give to authority, how much to human reason.
The Hanafite School, founded by Abu Hanifa (died 767 CE) developed under the Abbasid Caliphs in Baghdad. Once the official school of the Ottoman Empire, and today the most widespread, the Hanafites tend to use their own judgment in deciding between which tradition to apply.
In reaction is the Maliki School, founded by Malik ibn Anas, a practicing judge in Medina. (He died in 795 CE) In Medina, you will recall, the theologians and jurists battled to maintain the true faith against the foreign influences pouring into Baghdad. This school profoundly disapproved of the speculative tendencies they found in the Hanafite School, relying instead on the exclusive validity of authoritative Hadith.
Today, the Maliki School is centered in North Africa, being the sole school recognized in the Sharian courts of Morocco and Algeria. Next week, when we discuss the status of women, we will look at a marriage contract according to the Maliki code, involving a young lady named Fatima.
One of Malik’s disciples, ash-Shafi’i, established a true juristic science based on the critical examination of Hadith. He combined the respect for tradition of the Malikis with Hanafi initiative but based more on analogical deduction, or Qiyas, than on speculation. The Shafi’i school is centered today in Indonesia, East Africa, Southern Arabia, and Lower Egypt.
Finally, we get to the Hanbali School, founded in Baghdad by Ahmad ibn Hanbal, who died in 855 CE. His school was a reaction against the liberalism of the Hanafi School. Centered in Saudi Arabia, it is strict constructionist, and somewhat intolerant of the other schools.
As an example of how these schools come out differently, let’s go back to the decedent’s will. All four schools recognize the hadith, or tradition, that entitles the believer to leave one third of his goods by will. But the tradition concludes with “a third is a good deal, and much, for leaving your heirs wealthy is better than leaving them in want, begging of others.” I’m sure we would all agree with that.
To what extent is this hadith a further guarantee of the right of bequest, and to what extent a restriction of this right in order to protect the fixed heirs from impoverishment? The distinction becomes important when a poor man dies, leaving barely enough for his relatives’ support. In this case, the Hanafi view, the most liberal one, respects the right of bequest, but considers it preferable that the decedent not exercise it.
The Hanbali School, the strict constructionists, stresses the restriction, refusing to recognize a will that leaves assets away from required heirs. Yet each recognizes the perfect orthodoxy of the position adopted by the other.
Finally, we have talked a lot about authority and restriction. But the Muslim testator is no different from the rest of. If in place of the Shari’a, the traditions, you were to substitute the IRS, you would find in both societies the desire to evade requirements that you don’t agree with..
For example, many of us have been advised by our attorneys to consider a Charitable Remainder Trust. So long as the principal goes at the end to a charity, you can provide income from a base not diminished by estate tax, and with the income until distributed, not subject to income or capital gain tax.
Well, the CRT was invented in Islam, through the Waqf, or charitable trust, which does much the same. This is one way in which perceived inequities in the treatment of male and female heirs can be corrected.
Let’s see how these requirements play out in two identical families, one in New England and the other in the Muslim world where the Hanafite Code is applied. Neither decedent has made a will. The Court will distribute the property of the American decedent according to the intestacy laws of Massachusetts.
Intestacy laws generally reflect how the legislature believes that most people would want property distributed. Like the Shari’a, therefore, they tend to reflect the values of society in a very sensitive area. I bring these up here to illustrate the values that are operative in the West, and in Islam, and how they are the same, and how they differ.
So we start with a typical family, illustrated in the handout. The propositus, the founder of the family wealth, is a widower. Since we will be discussing the female spouse’s inheritance rights next week, we will keep her out of this exercise. Also, we assume that he will not make a will. In fact, in this family, nobody makes wills. We further assume that none of them made any money in their father’s lifetime, and that the estate tax has been everywhere abolished. Everything the propositus has will be distributed according to intestacy laws over here, or the Shari’a over there.
The propositus has four children. As you will see in the handout, A and B are sons, C and D daughters. Son A has three sons, A1, A2 and A3, and one daughter, A4. Son B has a son, B1, and two daughters, B2 and B3. Daughter C has a son and a daughter, whereas daughter D has no children, and never will.
Now, in Massachusetts, the propositus dies. Each of his children, treated equally, receives 1/4 of his estate. When their time comes, each share is further divided, so that A1, A2, A3, and A4 each receive 1/16 of the original estate of the propositus. By the same rule, B1, B2 and B3 each receive 1/12; C1 and C2 each receive 1/8. When D dies without issue, each of her brothers and sisters receives 1/3 of her 1/4 or 1/12.
Now let’s suppose that members of the family do not die off in the order expected. Assume that C predeceases her father, the propositus. Then he dies. The ¼ that C would have taken is split evenly between her two children, each taking 1/8. That is exactly what they would have taken had C outlived the propositus.
In Massachusetts, and indeed throughout common law countries, the order of death should make no difference. Whoever dies first, the heirs of the next generation take what their parents would have taken, and not more or less. By the same token, the estate of the propositus is not redistributed evenly among all his descent per capita, regardless of which generation they are in.
This is the meaning of the phrase, per stirpes and not per capita that you see in wills and trust instruments. The principle whereby a grandson can represent his dead father and take the share upon his grandfather’s death that his father would have taken, is called stirpital representation. It goes back a long way, some say from the end of the 12th Century, from public indignation at King John’s usurpation of the throne at the death of his brother, King Richard I, otherwise the Lion Hearted, to the exclusion and death of Richard's son, Arthur.
Now, what Western values are here represented? One is that, to the extent possible, everyone is treated alike. Secondly, again to the extent possible, no one suffers the pain of disappointment. You can count on your expectations.
Now, let’s look at the same family, now Muslim, and located in the Middle East.
The propositus, a widower, dies. Both his sons are treated equally with each other. Each son gets a third. The two daughters are treated equally with each other. Each daughter gets a sixth. But, for the reasons already mentioned, men and women are treated unequally.
Suppose, now that daughter C predeceases the Propositus. When the Propositus dies, her children do not divide the 1/6 that their mother, C, would have taken. Indeed not.
There is a convenient hadith, Give the appointed shares to those entitled to them. Then, whatever remains is for the nearest male. In short, the Prophet was willing to do something for the women of a family whilst they were still alive. Once they were dead, they have no rights. Neither do their children. Instead, what would have been her 1/6 is redistributed according to the tribal rules of succession through males.
So, with C already gone, when the propositus dies, his estate is divided into fifths. Sons A and B each take 2/5, daughter D takes 1/5. The shares of the uncles and the aunt are increased at the expense of C’s children, their own nephew and their niece.
Now, suppose son A also predeceases the Propositus. A being no longer alive, he is not around to receive a share. His death therefore cuts out his 4 children. Son B takes 2/3, and daughter D 1/3.
OK, let’s visit a different misfortune on this family. When the Propositus dies, his daughters C and D are still very much alive. Sons A and B, however, have predeceased him. Since there are no longer brothers who have to be given twice that of their sisters, then C and D take their appointed Koranic two thirds of his worldly goods, each taking 1/3.
What of the residue, the third not appointed by required Koranic shares? As we have pointed out, the tribal rules enter back in to dispose of the residue. The residue is distributed back to the male line, to the children of A and B. Then the Qur’an steps back in. Each grandson takes twice what each granddaughter takes. Having been cut off in one way by their fathers’ untimely deaths, these inherit in another way, by tribal rules governing the residue.
Now, the point I am trying to make is that there is no certainty in this process. The heir of a younger generation cannot count on anything. It is aleatory, by the role of the dice, all depending on who dies first. An otherwise humane system seems to break down, when a nephew can be excluded by his own uncle.
Why did this happen? It has been suggested that Muhammad himself, an orphan had been excluded by his own uncle. Perhaps the impetus for reform having been exhausted, he just left this one alone.
But I like to think that there is a deeper reason here. The Prophet saw inheritance reforms, the Koranic rules as opposed to the tribal, as a means of recognizing closeness of relationship. It is observed in the Sura IV, which I quoted earlier, “Your parents or your children, ye know not which is closer to you in the benefit they bring”. Aging parents always got 1/6. And so live children are deemed to be closer to the Propositus than grandchildren. Therefore they get more.
I wanted to make the point that both systems, our stirpital application, and the Islamic system, are ethically founded. It’s a matter of the values to which you attach the greater weight. Still, the excluded grandson has been a matter of some concern.
In Morocco, without disturbing the Sharian rules which are immutable, they have found a way to resolve the problem. You will recall that the Islamic will, which can dispose of one third of the decedent’s property, has always been instinct with obligation. A convenient hadith was found, which reads, “If a man makes bequests to strangers, and passes over his relatives, bequests must be taken from the former, and given to the latter.” So the Moroccan Code of Personal Status provides that the will be used to take care of excluded grandchildren.
One final point. What about the many American Muslims of strict observance? They have come over here largely for economic reasons. They do not find here the legal and cultural autonomy that would permit them to function entirely satisfactorily as Muslims. They live, in Bernard Lewis’ words, “the essential difference between the classical Islamic and the modern Western views of the nature of law and authority, and therefore of the function and jurisdiction of the state”.
In strict Islamic legal theory, Muslims are either forbidden to reside in countries in which Islamic Law is not enforced, or discouraged from doing so. In the United States, however, the law is not a “respecter of persons”. Here there cannot be, as there is in varying degrees in the Middle East, one law for Muslims, another for Christians, and another for Jews.
Still, ours is a flexible society. Muslims need to take out mortgages, like anyone else, but cannot pay interest. So today, banks in Brooklyn and other areas of Muslim settlement will write Islamic mortgages. You don’t pay interest. You pay a fee.
In a nation that does not enforce the Shari’a, Muslims try to safeguard their Muslim collective personality in other ways. Just as Jews in Christian Europe clung to the dietary and other requirements of the Talmud in order to set themselves apart, so young Muslim women are at pains to wear the chador, and other marks of Muslim identity.
But, in the closing weeks of her first campaign for the Senate, Hillary Clinton sent back contributions from organizations with Muslim-sounding names, for fear of offending her Jewish supporters. The NY Times commented that this was hardly the way to encourage Muslims to assimilate into American society. .
We don’t want any group of our fellow Americans to feel invisible, powerless, subject to ridicule, dealt with according to a double standard, sensing that they really don’t count. People in that situation can dramatize their anger in the demolition of symbols of power. In a world in which we are likely to be the target of more Muslim terrorist attacks, let’s do all we can to make our country one which inspires loyalty among all its citizens, not excluding Muslims. And perhaps, in such areas as concern and support for one’s aging parents, we might even learn something from them.
Thank you
September 7, 2010
Islam as a Legal System
By Moorhead Kennedy
This week, we are going to take up Islam as a legal system, or the Shari’a, a word meaning ‘path’, the path to man’s salvation. Of all the materials that I plan to present in this course, this is the toughest, and perhaps the most important, for it is at the very heart of Islam.
The Shari’a is very different in concept from our Western idea of law. If Western legal systems embody one’s rights, the Shari’a is based on one’s duties. It is the sum of duties required by God of human beings, not only to God but also to one’s fellows. It is the infusion of Divine Purpose into human relationships that distinguishes the Shari’a from the secular jurisprudence of the West.
Islamic Law has never been an empirical study distinct from religion. It is the practical application of religion. Although it embodies human intelligence, it is essentially of divine inspiration, and hence immutable.
I mentioned last week how westerners tend to look into Islam to find grounds for their disdain. Similarly the Shari’a, which is the key to Islam, a great intellectual edifice produced by a great civilization, is characterized in the West in terms of that which revolts us, for example, cutting off the hands of thieves, or the stoning of women taken in adultery. These penalties are part of Middle Eastern customary law dating back a long time before Muhammad. We run into the stoning of women in the New Testament.
Rather we are talking about a very sophisticated body of law, embracing constitutional law, jurisprudence, contracts, evidence, criminal law, inheritance, agency, a great range. It is still the basis of law in Saudi Arabia, applied not at all in Turkey, and applied only in part throughout the Middle East.
Today, the application of the Shari’a is generally limited to what we call family law (marriage, divorce, orphans), inheritance and charitable foundations. Law in other areas, notably commercial law, is generally borrowed from the West. You will have noticed how the restoration of the Shari’a has become a major constitutional issue in Iraq, and elsewhere.
Where did the Shari’a come from? Its initial source is the Qur’an, revealed in its entirety to humankind through the Prophet, Muhammad. There is another source, which we discussed earlier, based on the tradition, God has not invested in any human being what he placed in the prophet. A series of traditions about the prophet, what he said, what he did, are called hadith. We gave some dental examples earlier. These illustrate his way, or Sunna.
Let’s go over why the Qur’an, and the traditions, or Hadith, are not just convenient sources, the reality that you have to start somewhere. Rather, they are infallible. Understanding why this is so is really the opening to understanding Islam.
The infallibility of the Qur’an and the Hadith reflects a profound awareness of the imperfection of human reason, its inability to apprehend by its sole powers the real nature of the good, or indeed any reality whatsoever. Absolute good and evil can therefore be known to only through a divine revelation mediated through Prophets.
To review what was discussed last week, God has provided a succession of such Prophets ever since, by the creation of Adam, the human species has existed upon the earth. The revelations accorded to these Prophets were all identical in principle, but formed a gradually developing series adapted to the stages of man’s development. Each in turn expanded, modified and abrogated the preceding revelations.
The Qur’an is the final revelation, and therefore contains the final and most perfect solutions for all questions of belief and conduct. It is the primary source of law. But the Qur’an is short, and much of it is hortatory. There is no room for detailed explanations.
For example, the law of contracts has its source in Sura, or chapter, V, O ye who believe, fulfill your pledges. But that doesn’t exactly tell you when a contract arises, what considerations or formalities are required, what are the consequences of breach.
How are these initial revelations to be interpreted, developed and applied? Now, the natural interpreter is the Prophet himself. He possessed not only the book, as revealed to him, but hikma, or practical wisdom through which basic principles can be applied to the details of life.
So, via the Hadith, the actions and sayings of the Prophet, transmitted as we have seen by a chain, or isnad, of reliable reporters, formed what was originally a kind of commentary on the Koranic source.
From this starting point, it was easy to conclude that the commentary itself was indeed inspired. Ultimately, it was believed that in all his sayings and doings, the Prophet was acting under tacit inspiration. His Sunna, or way, together, of course, with the Qur’an, supplied solutions to the problems of good and evil.
How are these sources to be applied? Here begins Fiqh, the science of legal interpretation, which is one of the glories of Islamic civilization.
For example, the Prophet’s Sunna, is determined by a series of Hadith. But, how do you determine which hadith are authentic? Or, suppose two of equal authority are in conflict? Does one abrogate another? Is a hadith limited to particular historical circumstances, or to a particular class of persons? It was decided that unless a limitation was expressed or clearly implied, it was universally applicable.
Finally, jurists had to weigh the meanings of words, and decided that, unless they were clearly used metaphorically, they were to be taken in their plain Arabic meaning. Our Supreme Court has decreed much the same about construing statutes, with American English instead of Arabic.
A final source of revealed law is called ijma’, or consensus, in this case of the whole Islamic community. A hadith declared that however much individuals may err, God will not permit the whole community of Muslims to go astray. This could have been a source of continuing flexibility. As we will see, it hasn’t.
Soon there developed a class of learned doctors of the law, the ‘Ulama. They were perceived to possess ‘ilm, or legal/theological knowledge. The words ‘ilm and ‘Ulama come from the came root. By the end of the second century, ijma’ was exercised not by the whole community, but by the Ulama, who used it to fill up all the remaining gaps in the system.
Now, what of those points of law not clearly covered by the Qur’an or Hadith? Muslim jurists had resort to analogy, or qiyas. A problem left unanswered was compared to a similar one already dealt with. The logical steps that led to the solution of the answered problem indicated a parallel route along which a solution to the unsolved problem could be found.
Finally, when none of these yielded an obvious solution, a jurist could fill in the interstices, the hole between the Qur’an and Hadith, as validated by Ijma’, through the issuance of a legal opinion or fatwa. You have all heard of fatwa, once again popularly understood in terms of abuses, such as Khomeini’s calling for the death of an Anglo-Indian novelist.
A jurist entitled to issue a legal opinion, or fatwa,is called a Mufti. Same root word. The collections of leading fatwa are the very rough equivalent of leading cases in common law.
And if the new problem appeared to resemble two equally closely solved problems with different results, then the jurists could adopt the one that yielded the most just result. In deciding what is just, the jurist is guided by some basic principles.
Thus, “the fundamental rule of law is liberty”. But, says the Muslim jurist, human nature is weak, easily led astray, ungrateful and covetous. Right? Therefore, in the interests of both the individual and society, limits, ordained by the Wisdom and Mercy of God, have to be set on human freedom of action. There are two kinds of limits, corresponding to the dual nature of man, as soul and body. Limits to benefit the soul are principally the five pillars, prayer, alms, fasting, haj or pilgrimage, and jihad, discussed last week. Those related to the body are duties to one’s fellow man.
Islam recognizes that the majority of human actions do not come within the scope of law. The presumption, based on the principle of liberty, is that unless shown to be otherwise, actions are morally and therefore legally indifferent, and therefore ‘permitted’. From this basis, actions are classified in five grades:
1) Actions obligatory on believers
2) Desirable or recommended (but not obligatory) actions
3) Morally indifferent actions
4) Objectionable, but not forbidden, actions
5) Forbidden actions
Now, we turn to some practical examples of how this system actually works. Rather than doing a survey of all the different kinds of law, we will look at the Law of Inheritance, how it developed, and, above all, the ethical values which it reflects. At our stage in life, these issues are familiar, or should be, and most important. The examples I plan to cite represent issues that your own lawyers, accountants, or estate planners may raise.
There is no situation in which one’s ethical principles are put more to the test than in the family, particularly when family property is involved. Moreover, the law of inheritance, unlike most other branches of the Shari’a, is enforced to this day, throughout the Islamic world.
But first, a word on how the Islamic Law, as illustrated by the law of inheritance, developed. Its origins lay in the tribal customs of pre-Islamic Arabia, which was a society devoted to the blood feud and the raid. Wealth defended in one raid was often as not booty seized in a previous raid. Inheritance was therefore a redistribution of the spoils among those of the deceased’s kin who normally fought beside him. Women, being neither raiders nor defenders, inherited nothing.
As one means of raising the status of women, Muhammad established them in the inheritance scheme. In the Qur’an, at Sura or Chapter IV, 11, it is written: “ in the matter of your children a) to the male, the portion of two females, and b) if there be women two or more, then to them two-thirds of what he leaves, and if one, then to her one-half. This provision, that daughters inherit only half what sons inherit, has been seized on by the media as something that Iraqis and others should correct, if they want a democracy. But wait a minute.
It has been suggested that that (b) was the Prophet’s first intent. The daughters took out their required share, leaving the balance to be divided among the nearest male relatives. You can imagine what the male relatives thought of that one! With, say, two daughters and two sons, the daughters would divide the two thirds, taking a third apiece, while the once predominant sons, the good old boys, who in the ‘good old days’ took everything, would receive no more than one-sixth apiece.
Obviously, the males wouldn’t stand for it. So (a) was put in, ensuring that each son would twice what each daughter received, one-third, while each daughter received one-sixth. With his prestige and interests safeguarded, the tribal male could submit to God’s command.
Today, we hear feminists around the world pointing to this distribution as an example of unfairness to women. It is clear that the Prophet was doing his best, all that was politically possible in those times, to help women.
The problem is inflexibility. There is no flexibility here. These are required shares. The object of these dispositions is primarily religious. All property is God’s. Since men and women have only the use of it, God will direct its disposition to further his purposes, which include the recognition and rewarding of family relationships.
This contrasts with the prevailing Western concern over the integrity of property, keeping it together. Perhaps the most obvious example of the integrity of property is primogeniture, still in force where land is so entailed in England. The need to preserve landed wealth requires that land pass undivided to the eldest son, cutting out younger sons and daughters.
Because of the same concern for property, when an American dies intestate survived both by his parents and his children, his parents, however needy, take nothing, and his children take all. The law presumes an intent to pass family property down to the younger generation as intact as possible. I’m sure that we all follow that principle in our own testamentary dispositions.
A Muslim who dies leaving both parents and children has no such liberty. The aging parents together would take at least one-third of the estate, following the Qur’an’s reminder, “Your parents or your children, ye know not which of them is closer to you in the benefit they bring”. In Islam, God requires that men reward the affection and take care of the needs of aging parents in the widespread family. That wealth is thereby likely to be dissipated is a lesser consideration.
You will recall that the Islamic axiom, “the fundamental rule of law is liberty”. What of that ultimate freedom, to dispose of your worldly goods as you see fit? The Qur’an started with the freedom to make a will. “Bequeath” it says, “to your relatives in reason”. Later revealed verses, the ones we have just been discussing, set out the required shares.
This left open the problem of whether a Muslim, through a bequest, could leave something extra to relatives already taking required shares. So here, as I mentioned, where there is a gap in the Qur’an, the Muslim jurist turns to the Hadith, the tradition of the Prophet. A very authentic tradition quotes him, “ Surely, God has given to anyone entitled to anything his due – therefore there is no bequest to an heir.” You cannot substitute your desires for God’s decree.
A second problem not resolved in the Qur’an, how much of his estate a Muslim can leave by will, and how much must be reserved for division into required shares, also had to be resolved by Hadith. Reportedly, the Prophet fixed a bequeathable maximum of one third. Where did he get one-third?
It just so happens that this proportion, one third by will, two-thirds by required shares, was that of Roman law. This proportion may have entered Mecca and Medina during the Prophet’s time, or it may have been picked up when the Arabs conquered Syria, Egypt and other former Roman provinces. Certainly some of the hadith were spurious, convenient ways of incorporating tribal or other local custom, as well as Roman law, into the Sharia.
Earlier, I mentioned how an Islamic Qadi, or judge, makes judgments based on their ethical merit, a range going from required to permitted to forbidden. We said that God’s uses for property prevail over peoples. It is yet another way of saying that Islamic Law is less a statement of rights than of obligations. Let me give you a practical example.
In 1941, my grandmother, a long-time summer resident of this island, in her will left a series of legacies which amounted to more than she actually had to leave. The august Philadelphia law firm of Ballard, Spahr, Andrews and Ingersoll, I’m afraid, had neglected to tell her about estate tax.
In such a situation, some legacies normally are sacrificed, or abated, in some order. By what standards, reflecting what values, do you abate legacies? Here the difference between western legal norms and the Sharia is at its most stark. American courts first sacrifice property not specifically covered under the will, next property disposed of under a general residual clause, and finally property that has been specifically bequeathed.
The most specific legacies presumably are those that the decedent cared most about. In other words, the American judge is concerned with identifying and giving effect to the decedent’s intent, to his or her desires.
By contrast, the Islamic Qadi, concerned with the decedent’s obligations, will sacrifice legacies according to the inverse order of their ethical merit. First to go are morally forbidden legacies, then ones morally discouraged, then ones merely permissible, then those deemed meritorious, always preserving to the last where possible those that are obligatory.
Of course, bequests to pay unacknowledged debts are obligatory, since otherwise unknown creditors would suffer loss. Bequests owed to God enjoy less protection, since God can better stand the loss. But within the bequests to God, the same reasoning usually prevails. A bequest to have prayers said to God is sacrificed ahead of one to pay alms to the needy. This class of bequest is to be preferred, however, to bequests of no ethical merit. These classifications, applied to all human actions, pervade Islamic Law.
Not all Sharian jurists will come out the same way on these issues. There are variations among the four principal orthodox or Sunni schools of Islamic law. All are valid. With exceptions, each school, or madhab, recognizes each other. One basic difference among them is how much room they give to authority, how much to human reason.
The Hanafite School, founded by Abu Hanifa (died 767 CE) developed under the Abbasid Caliphs in Baghdad. Once the official school of the Ottoman Empire, and today the most widespread, the Hanafites tend to use their own judgment in deciding between which tradition to apply.
In reaction is the Maliki School, founded by Malik ibn Anas, a practicing judge in Medina. (He died in 795 CE) In Medina, you will recall, the theologians and jurists battled to maintain the true faith against the foreign influences pouring into Baghdad. This school profoundly disapproved of the speculative tendencies they found in the Hanafite School, relying instead on the exclusive validity of authoritative Hadith.
Today, the Maliki School is centered in North Africa, being the sole school recognized in the Sharian courts of Morocco and Algeria. Next week, when we discuss the status of women, we will look at a marriage contract according to the Maliki code, involving a young lady named Fatima.
One of Malik’s disciples, ash-Shafi’i, established a true juristic science based on the critical examination of Hadith. He combined the respect for tradition of the Malikis with Hanafi initiative but based more on analogical deduction, or Qiyas, than on speculation. The Shafi’i school is centered today in Indonesia, East Africa, Southern Arabia, and Lower Egypt.
Finally, we get to the Hanbali School, founded in Baghdad by Ahmad ibn Hanbal, who died in 855 CE. His school was a reaction against the liberalism of the Hanafi School. Centered in Saudi Arabia, it is strict constructionist, and somewhat intolerant of the other schools.
As an example of how these schools come out differently, let’s go back to the decedent’s will. All four schools recognize the hadith, or tradition, that entitles the believer to leave one third of his goods by will. But the tradition concludes with “a third is a good deal, and much, for leaving your heirs wealthy is better than leaving them in want, begging of others.” I’m sure we would all agree with that.
To what extent is this hadith a further guarantee of the right of bequest, and to what extent a restriction of this right in order to protect the fixed heirs from impoverishment? The distinction becomes important when a poor man dies, leaving barely enough for his relatives’ support. In this case, the Hanafi view, the most liberal one, respects the right of bequest, but considers it preferable that the decedent not exercise it.
The Hanbali School, the strict constructionists, stresses the restriction, refusing to recognize a will that leaves assets away from required heirs. Yet each recognizes the perfect orthodoxy of the position adopted by the other.
Finally, we have talked a lot about authority and restriction. But the Muslim testator is no different from the rest of. If in place of the Shari’a, the traditions, you were to substitute the IRS, you would find in both societies the desire to evade requirements that you don’t agree with..
For example, many of us have been advised by our attorneys to consider a Charitable Remainder Trust. So long as the principal goes at the end to a charity, you can provide income from a base not diminished by estate tax, and with the income until distributed, not subject to income or capital gain tax.
Well, the CRT was invented in Islam, through the Waqf, or charitable trust, which does much the same. This is one way in which perceived inequities in the treatment of male and female heirs can be corrected.
Let’s see how these requirements play out in two identical families, one in New England and the other in the Muslim world where the Hanafite Code is applied. Neither decedent has made a will. The Court will distribute the property of the American decedent according to the intestacy laws of Massachusetts.
Intestacy laws generally reflect how the legislature believes that most people would want property distributed. Like the Shari’a, therefore, they tend to reflect the values of society in a very sensitive area. I bring these up here to illustrate the values that are operative in the West, and in Islam, and how they are the same, and how they differ.
So we start with a typical family, illustrated in the handout. The propositus, the founder of the family wealth, is a widower. Since we will be discussing the female spouse’s inheritance rights next week, we will keep her out of this exercise. Also, we assume that he will not make a will. In fact, in this family, nobody makes wills. We further assume that none of them made any money in their father’s lifetime, and that the estate tax has been everywhere abolished. Everything the propositus has will be distributed according to intestacy laws over here, or the Shari’a over there.
The propositus has four children. As you will see in the handout, A and B are sons, C and D daughters. Son A has three sons, A1, A2 and A3, and one daughter, A4. Son B has a son, B1, and two daughters, B2 and B3. Daughter C has a son and a daughter, whereas daughter D has no children, and never will.
Now, in Massachusetts, the propositus dies. Each of his children, treated equally, receives 1/4 of his estate. When their time comes, each share is further divided, so that A1, A2, A3, and A4 each receive 1/16 of the original estate of the propositus. By the same rule, B1, B2 and B3 each receive 1/12; C1 and C2 each receive 1/8. When D dies without issue, each of her brothers and sisters receives 1/3 of her 1/4 or 1/12.
Now let’s suppose that members of the family do not die off in the order expected. Assume that C predeceases her father, the propositus. Then he dies. The ¼ that C would have taken is split evenly between her two children, each taking 1/8. That is exactly what they would have taken had C outlived the propositus.
In Massachusetts, and indeed throughout common law countries, the order of death should make no difference. Whoever dies first, the heirs of the next generation take what their parents would have taken, and not more or less. By the same token, the estate of the propositus is not redistributed evenly among all his descent per capita, regardless of which generation they are in.
This is the meaning of the phrase, per stirpes and not per capita that you see in wills and trust instruments. The principle whereby a grandson can represent his dead father and take the share upon his grandfather’s death that his father would have taken, is called stirpital representation. It goes back a long way, some say from the end of the 12th Century, from public indignation at King John’s usurpation of the throne at the death of his brother, King Richard I, otherwise the Lion Hearted, to the exclusion and death of Richard's son, Arthur.
Now, what Western values are here represented? One is that, to the extent possible, everyone is treated alike. Secondly, again to the extent possible, no one suffers the pain of disappointment. You can count on your expectations.
Now, let’s look at the same family, now Muslim, and located in the Middle East.
The propositus, a widower, dies. Both his sons are treated equally with each other. Each son gets a third. The two daughters are treated equally with each other. Each daughter gets a sixth. But, for the reasons already mentioned, men and women are treated unequally.
Suppose, now that daughter C predeceases the Propositus. When the Propositus dies, her children do not divide the 1/6 that their mother, C, would have taken. Indeed not.
There is a convenient hadith, Give the appointed shares to those entitled to them. Then, whatever remains is for the nearest male. In short, the Prophet was willing to do something for the women of a family whilst they were still alive. Once they were dead, they have no rights. Neither do their children. Instead, what would have been her 1/6 is redistributed according to the tribal rules of succession through males.
So, with C already gone, when the propositus dies, his estate is divided into fifths. Sons A and B each take 2/5, daughter D takes 1/5. The shares of the uncles and the aunt are increased at the expense of C’s children, their own nephew and their niece.
Now, suppose son A also predeceases the Propositus. A being no longer alive, he is not around to receive a share. His death therefore cuts out his 4 children. Son B takes 2/3, and daughter D 1/3.
OK, let’s visit a different misfortune on this family. When the Propositus dies, his daughters C and D are still very much alive. Sons A and B, however, have predeceased him. Since there are no longer brothers who have to be given twice that of their sisters, then C and D take their appointed Koranic two thirds of his worldly goods, each taking 1/3.
What of the residue, the third not appointed by required Koranic shares? As we have pointed out, the tribal rules enter back in to dispose of the residue. The residue is distributed back to the male line, to the children of A and B. Then the Qur’an steps back in. Each grandson takes twice what each granddaughter takes. Having been cut off in one way by their fathers’ untimely deaths, these inherit in another way, by tribal rules governing the residue.
Now, the point I am trying to make is that there is no certainty in this process. The heir of a younger generation cannot count on anything. It is aleatory, by the role of the dice, all depending on who dies first. An otherwise humane system seems to break down, when a nephew can be excluded by his own uncle.
Why did this happen? It has been suggested that Muhammad himself, an orphan had been excluded by his own uncle. Perhaps the impetus for reform having been exhausted, he just left this one alone.
But I like to think that there is a deeper reason here. The Prophet saw inheritance reforms, the Koranic rules as opposed to the tribal, as a means of recognizing closeness of relationship. It is observed in the Sura IV, which I quoted earlier, “Your parents or your children, ye know not which is closer to you in the benefit they bring”. Aging parents always got 1/6. And so live children are deemed to be closer to the Propositus than grandchildren. Therefore they get more.
I wanted to make the point that both systems, our stirpital application, and the Islamic system, are ethically founded. It’s a matter of the values to which you attach the greater weight. Still, the excluded grandson has been a matter of some concern.
In Morocco, without disturbing the Sharian rules which are immutable, they have found a way to resolve the problem. You will recall that the Islamic will, which can dispose of one third of the decedent’s property, has always been instinct with obligation. A convenient hadith was found, which reads, “If a man makes bequests to strangers, and passes over his relatives, bequests must be taken from the former, and given to the latter.” So the Moroccan Code of Personal Status provides that the will be used to take care of excluded grandchildren.
One final point. What about the many American Muslims of strict observance? They have come over here largely for economic reasons. They do not find here the legal and cultural autonomy that would permit them to function entirely satisfactorily as Muslims. They live, in Bernard Lewis’ words, “the essential difference between the classical Islamic and the modern Western views of the nature of law and authority, and therefore of the function and jurisdiction of the state”.
In strict Islamic legal theory, Muslims are either forbidden to reside in countries in which Islamic Law is not enforced, or discouraged from doing so. In the United States, however, the law is not a “respecter of persons”. Here there cannot be, as there is in varying degrees in the Middle East, one law for Muslims, another for Christians, and another for Jews.
Still, ours is a flexible society. Muslims need to take out mortgages, like anyone else, but cannot pay interest. So today, banks in Brooklyn and other areas of Muslim settlement will write Islamic mortgages. You don’t pay interest. You pay a fee.
In a nation that does not enforce the Shari’a, Muslims try to safeguard their Muslim collective personality in other ways. Just as Jews in Christian Europe clung to the dietary and other requirements of the Talmud in order to set themselves apart, so young Muslim women are at pains to wear the chador, and other marks of Muslim identity.
But, in the closing weeks of her first campaign for the Senate, Hillary Clinton sent back contributions from organizations with Muslim-sounding names, for fear of offending her Jewish supporters. The NY Times commented that this was hardly the way to encourage Muslims to assimilate into American society. .
We don’t want any group of our fellow Americans to feel invisible, powerless, subject to ridicule, dealt with according to a double standard, sensing that they really don’t count. People in that situation can dramatize their anger in the demolition of symbols of power. In a world in which we are likely to be the target of more Muslim terrorist attacks, let’s do all we can to make our country one which inspires loyalty among all its citizens, not excluding Muslims. And perhaps, in such areas as concern and support for one’s aging parents, we might even learn something from them.
Thank you
Wednesday, July 20, 2011
Hilla:The Docu-Movie on Sharia law
Hasan Mahmud, the author and producer of the Docu-Movie “Hilla” is driven by justice in general and justice for women in particular, a fundamental value of Islam. Indeed, if Islam were to be defined in one word, it would be Justice.There were a lot of practices that Islam had negated but continue within a few societies. Culture runs deeper than religion, and some of the primitive practices like honor killing, female genital mutilation, and instant divorce without the consent of the wife continue till this day, even though Islam prohibits it.
Hilla is one such instrument; a deviant deterrent for men and women not to rush to divorce. If they do, the woman had to marry another man and fully consume the marriage and then if that other husband divorces her, she can come back and re-marry the first husband. What an agony! Even business is carried in such temporary marriages. Darn, that is again without her consent, the prophet liberated women and said, if a woman is unhappy with the marriage she can initiate divorce, it was a feminist idea in the 7th century while women were considered chattel everywhere in the world including Europe.
The Sharia laws like all other laws were devised to serve regret free justice. However the implementers have been men and mis-application of the law continues where ever there are divorces. Indeed, no society is free from the misapplication of laws including our own U.S of A. We have put many innocent people on Electric Chair in Texas.
This Docu-Movie is about dealing with Hilla marriage under Sharia law. The dialogues and characters of the Imam, father, bride, the teacher and college educated girl are authentic and are set in tiny Bangladeshi town. The language is Bengali with English subtitles. I have lived in a small village and a town and I can relate with the originality of the screenplay. I was absorbed and watched the 90 minute movie in one sitting.
When the movie Lagan was released, I wondered who is going to watch three hours of Cricket and the guys hitting the balls and fielders chasing it. But the movie became a classic and I have seen it twice and it’s been shown all over the world including Latin American resorts.
This documentary is gripping and dialogues are fascinating.
The Imam and the adopted father of the woman (her departed father’s friend and the Village-chief) want the marriage restored, as the husband, inadvertently uttered the words Talaq (divorce) three times inadvertently; it means the end of marriage, the divorce is final. What an oppressive tool!
They gather in the public square and bring all the books on Islamic jurisprudence, the Sharia books to read through to find solutions. It is a very powerful scene; the fact that so many books were to be read with different opinions will open up the eyes of those who are entrenched with a singular view. The local Imam asks the reader to read Imam Abu Hanifa and Imam Shafii opinion as well. This deliberation needs to become a part of the culture to bring about a positive change. At the end the Quran wins in restoring Women Rights. A happy ending to the tension the viewer endures.
Hasan has subtly introduced a new norm in a small town environment. It encourages research and truthfully portrays the differences in opinions, it opens up people’s hearts and minds to do the basic thing; Justice.
Please watch and share
Scroll down for each one of the 15 parts of about 6 minutes each.
# # #
Mike Ghouse is a speaker, thinker, writer and a frequent guest on Hannity show and nationally syndicated Radio shows and Dallas TV, Radio and Print Media. He presides America Together Foundation and is committed to building a cohesive America and offers pluralistic solutions on issues of the day. Over 1000 articles have been published on Pluralism, Interfaith, Islam, India and cohesive societies. Two of his books are poised to be released this fall on Pluralism and Islam. He is available to speak at your place of worship, work, school, college, seminars or conferences. His work is encapsulated in 27 blogs, four websites and several forums indexed at MikeGhousedotnet.
Saturday, July 16, 2011
SHARIA ISSUES IN 2012 AND SOLUTIONS.
The name Sharia produces fears and anxieties and gratuitous malice towards fellow Americans. Our mission at America Together Foundation is to work for a society where no one has to live in discomfort, apprehension or fear of the other.
What frightens Americans about Sharia?
Guest speaker will lay out the fears and phobias that Americans hear in their daily lives.
What are your concerns?
Experts on Constitution law and the legislative process will explain what it takes to introduce a Sharia bill in the house, senate and the process it has to go through to the final approval by the president.
What is it really?
Nation’s most recognized Scholar Imams will explain.
Your Questions
Your questions will be addressed by the Sharia and Anti-Sharia experts in the Q&A session. We will boldly face the issues that pit one American against the other.
Your questions will be addressed by the Sharia and Anti-Sharia experts in the Q&A session. We will boldly face the issues that pit one American against the other.
It is just not Sharia; we have programs lined up about issues that divide us. As responsible citizens, it is our obligation to find sustainable solutions for a secure and prosperous America.
America Together Foundation is a non-profit organization committed to building a cohesive America, where no American has to live in anxiety, apprehension, discomfort or fear of the other.
Saturday, April 21, 2012 | 10:30 AM tO 4:00 PM
Location and speaker names will be released soon.
Location and speaker names will be released soon.
Mike Ghouse
-------------------------------------------------------------
DO THE REPUBLICANS UNDERSTAND SHARIAH?
www.ShariaLaws.com
As American Muslims we are committed to the safety, security and prosperity of America. That's a pledge we take seriously and act upon it. We are considering a Sharia conference in every major city in the US to demystify the myths about it. Every Republican candidate is talking about it without a clue and much of his/her talk is anti-fellow Americans, rather Anti-American. It is embarrassing to hear their ignorance when a good reporter asks questions.
Sharia will become a dominant theme in the 2012 Presidential Elections; the one who speaks the loudest earns the tea party support assuming that Tea Party represents the main stream Americans. I am not sure, if we the Americans would gulp down their rhetoric or would have the time to question the veracity of the comments.
The responsibility falls squarely on us, the American Muslims to become contributors and participants in the well being, peace and prosperity of America.
We are considering a Sharia conference in every major city in the US, it will be professionally developed with the help of our Imams and Scholars and those who have problems with it. We have to answer every possible question that there is. If you are cooking things up in your mind and judging, you must be a darn Republican.
If you have the will, it’s easy to do it.
Muslims together can work and build a safer and secure America for every one of the 301 Million Americans. This is your conference in your town, organized and managed by you. I hope all of us can call ISNA, CAIR, ICNA and other national organizations to take this project up.
We can do this for under $ 5000.00 per city. I have done over 40 events including the ones over 600 attendees within that budget. We should not expect the national organizations to put this event out, we have to do it on our own with their supervision to standardize the event. You’ll have to raise the funds locally- 100 Muslims $50/each or other combinations will do it. The question we have to ask is, are we willing to do it or find it comfortable to talk about our love of Islam without doing a thing.
I am a volunteer and will be happy to assist anyone anywhere.
Together we can come up with great plans and just do it.
We can do this for under $ 5000.00 per city. I have done over 40 events including the ones over 600 attendees within that budget. We should not expect the national organizations to put this event out, we have to do it on our own with their supervision to standardize the event. You’ll have to raise the funds locally- 100 Muslims $50/each or other combinations will do it. The question we have to ask is, are we willing to do it or find it comfortable to talk about our love of Islam without doing a thing.
I am a volunteer and will be happy to assist anyone anywhere.
Together we can come up with great plans and just do it.
For the starters, I have pulled a few key articles together; there are much better articles out there, Insha Allah, we will gather them all and urge Muslims to post on their sites, the more places it is published, the better off we are.
10 ARTICLES
The articles range from simplicity for a lay person to understand ( Sumbul, Nezar , Nasim, Amjad and Mike’s articles) to Mainstream press writing ( Amy Sullivan and Justin Elliott), to Scholarly presentations ( Dr. Yusuf Zia Kavakci and Dr. Mohammad Omar Farooq) . I hope to gather article critical (Plenty) of Sharia as well. If you know a great article, please share, together we can complete the spectrum and add value to its understanding. I further request that you post this on your site or ask those who have a site to post. The more it shows up in search engines, the better off we are collectively.
The articles range from simplicity for a lay person to understand ( Sumbul, Nezar , Nasim, Amjad and Mike’s articles) to Mainstream press writing ( Amy Sullivan and Justin Elliott), to Scholarly presentations ( Dr. Yusuf Zia Kavakci and Dr. Mohammad Omar Farooq) . I hope to gather article critical (Plenty) of Sharia as well. If you know a great article, please share, together we can complete the spectrum and add value to its understanding. I further request that you post this on your site or ask those who have a site to post. The more it shows up in search engines, the better off we are collectively.
------ ------
Sharia in one Gulp – Mike Ghouse
Sharia in its simplest form is a how-to manual based on the Qur'an and the Hadith (Prophet Muhammad's sayings). It is a human effort to understand the concept of justice enshrined in the Qur'an for day-to-day living.
- http://sharialaws.blogspot.com/2011/07/sharia-in-one-gulp.html
- http://www.huffingtonpost.com/mike-ghouse/sharia-law-not-in-america_b_653250.html
- http://sharialaws.blogspot.com/2011/07/sharia-in-one-gulp.html
- http://www.huffingtonpost.com/mike-ghouse/sharia-law-not-in-america_b_653250.html
------ ------
What Sharia law actually means – Justin Elliott
Sharia is more than simply "law" in the prescriptive sense. It is also a methodology through which a jurist engages the religious texts to ascertain divine will. As a jurist-made law, the outcome of this process of ascertaining divine will is called fiqh (positive law), which is the moral and legal anchor of a Muslim's total existence.
http://sharialaws.blogspot.com/2011/02/what-sharia-law-actually-means.html
Sharia is more than simply "law" in the prescriptive sense. It is also a methodology through which a jurist engages the religious texts to ascertain divine will. As a jurist-made law, the outcome of this process of ascertaining divine will is called fiqh (positive law), which is the moral and legal anchor of a Muslim's total existence.
http://sharialaws.blogspot.com/2011/02/what-sharia-law-actually-means.html
------ ------
Who's Afraid of Sharia? – Sumbul Ali Karamali
Hasn't the whole notion of shariah in America gotten a bit out of control? No, it hasn't -- it's gotten hugely, obscenely, ignorantly out of control. Aha! The six principles must be about killing infidels, veiling women, stoning people for adultery, honor killings and female genital cutting, right? Nope.
Hasn't the whole notion of shariah in America gotten a bit out of control? No, it hasn't -- it's gotten hugely, obscenely, ignorantly out of control. Aha! The six principles must be about killing infidels, veiling women, stoning people for adultery, honor killings and female genital cutting, right? Nope.
------ ------
Sharia the law system inspired by the Quraan - Wikipedia
Sharia is often referred to as Islamic law, but this is wrong, as only a small part is irrefutably based upon the core Islamic text, the Koran. Correct designations would be "Muslim Law", "Islam-inspired", "Islam-derived," or even "the law system of Muslims."This is well known to most Muslims, yet Sharia is always referred to as "based upon the Koran", hence it is the "will of God."
http://sharialaws.blogspot.com/2011/03/sharia-law-system-inspired-by-quraan.html
http://sharialaws.blogspot.com/2011/03/sharia-law-system-inspired-by-quraan.html
------ ------
Sharia is Not what you think it is – Imam Abdul Malik Mujahid
When some American pundits call sharia, "a growing threat to the United States," Muslim Americans wonder what in the world are they talking about. Sharia is overwhelmingly concerned with personal religious observance, not with constitutions and laws.
When some American pundits call sharia, "a growing threat to the United States," Muslim Americans wonder what in the world are they talking about. Sharia is overwhelmingly concerned with personal religious observance, not with constitutions and laws.
------ ------
The Myths of Sharia Law in America – Amy Sullivan
If you are not vitally concerned about the possibility of radical Muslims infiltrating the U.S. government and establishing a Taliban-style theocracy, then you are not a candidate for the GOP presidential nomination. In addition to talking about tax policy and Afghanistan, Republican candidates have also felt the need to speak out against the menace of "sharia."
http://sharialaws.blogspot.com/2011/07/myths-of-sharia-law-in-america-httpwww.html
If you are not vitally concerned about the possibility of radical Muslims infiltrating the U.S. government and establishing a Taliban-style theocracy, then you are not a candidate for the GOP presidential nomination. In addition to talking about tax policy and Afghanistan, Republican candidates have also felt the need to speak out against the menace of "sharia."
http://sharialaws.blogspot.com/2011/07/myths-of-sharia-law-in-america-httpwww.html
------ ------
Sharia – Dr. Muhammad Omar Farooq
"While Islam under the leadership of Prophet Muhammad brought liberation and freedom from human bondage and ushered in scientific, technological, economic and cultural progress as part of a dynamic civilization, the Shariah as it is being presented today seems to do (and probably promise more of) just the opposite. Why? In this essay, it is argued that one pivotal problem has to do with some fundamental misunderstanding about Islam and Shariah.
------ ------
Sharia, Fiqh and Islamic Law – Imam Dr. Yusuf Ziya Kavakci
Dr. Kavakci is one of the 500 most influential Imams in the world
Sharia recently became a hotly debated subject. Archbishop of England made a statement at the middle of many statements, that has given the opportunity of Islamic law and Shari to be discussed and debated by westerners and some times the discussion apparently was taken out context. It is, as I believe, a fact that Sharia, Fiqh in its early stages got established and developed in the wide area of the world, mainly where Roman law was dominant.
http://sharialaws.blogspot.com/2011/07/sharia-fiqh-and-islamic-law_15.html
Dr. Kavakci is one of the 500 most influential Imams in the world
Sharia recently became a hotly debated subject. Archbishop of England made a statement at the middle of many statements, that has given the opportunity of Islamic law and Shari to be discussed and debated by westerners and some times the discussion apparently was taken out context. It is, as I believe, a fact that Sharia, Fiqh in its early stages got established and developed in the wide area of the world, mainly where Roman law was dominant.
http://sharialaws.blogspot.com/2011/07/sharia-fiqh-and-islamic-law_15.html
------ ------
Demystifying Sharia - Nasim Rehmatullah and Amjad Mahmood Khan
Shariah is a misunderstood and misused concept. Critics of Islam frequently employ terms like "creeping shariah" to stoke fear amongst the masses. The Park 51 controversy and the increasing media focus on Islam provide an opportunity to educate Americans about the true teachings and practices of Islam concerning shariah.
http://sharialaws.blogspot.com/2011/07/demystifying-shariah.html
http://sharialaws.blogspot.com/2011/07/demystifying-shariah.html
------ ------
Sharia law is not a threat – Nezar Hamze, Cair
You can’t turn on the news these days or pick up a newspaper without seeing or reading about Islam, Muslims or Sharia law. Unfortunately, most of what you hear is from politicians with a religious viewpoint or media outlets creating an illusion of an enemy.
------ ------
Mike Ghouse committed to nurturing the pluralistic values embedded in Islam. More about him at www.MikeGhouse.net
Friday, July 15, 2011
Sharia, Fiqh and Islamic Law
Sharia, Fiqh and Islamic LawAnalysis & Auto criticism
Dr. Yusuf Ziya Kavakci*
Sharia recently became a hotly debated subject. Archbishop of England made a statement at the middle of many statements, that has given the opportunity of Islamic law and Shari to be discussed and debated by westerners and some times the discussion apparently was taken out context. It is, as I believe, a fact that Sharia, Fiqh in its early stages got established and developed in the wide area of the world, mainly where Roman law was dominant.
Roman law (the law applied in Byzantine Empire was Roman law) developed in the Beirut, Istanbul (Constantinople) centuries long before Islam. Fiqh was established, acted upon and developed to answer the needs of people embracing Islam in Syria, Iraq, Jordan, Palestine, Saudi Arabia, Central Asia, Iran, Egypt, and North Africa where Roman law was dominant for centuries. Actually the relations between these two laws were made subject to theories and researches, as Fiqh’s relation with Judaic tradition and law was done. There was a Roman law text in Arabic at 5th Century AD applied in Syria where Islamic Law later applies, the relation between these two laws also made specifically subject to comparative studies not too long age, unfortunately in Turkish only. Actually the researcher compared the Arabic text of this Syrian Roman Codex, edited by German orientalists more than a century ago, with al-Majmu fi 'l-Fiqh by Zaid b, Ali (circa d. 120 AH), which was edited By Griffini, of which original manuscript is in Milan, Italy. The comparison is made in terms of systematic, subjects, forms and contents.
Abu Hanifa himself was not really an Arab, lived out side of Medina and Mecca that is in Kufa, city south of Iraq, and Baghdad. His grave is in Baghdad which is not well taken care of nowadays. He is the one who really established Fiqh, Sharia, I may say, as codified by his teaching, his two students, among thousands, Imam Abu Yusuf and Imam Muhammad al-Shaibani are the ones who wrote down and took notes and put into book forms the teachings of their ustad. These two taught and transferred their ustad's teaching to Muhammad b. Idris al-Shafi'i. So Shafii is the student of the students of Abu
Hanifa.
A few decades ago we have had strong orientalists like L. Massignon, Ch. Pellat (France), Bertold Spuler (Germany), M. Watt (Edinburgh, UK) and Bernard Lewis (England, USA). Before there were strong caliber orientalists like Carl Brockelmann, I. Goldziher, Snouck-Hugronje, and Wensinck, one of the important piece of Islamic literature being “Concordance” edited by his team, in whose time also first edition of Encyclopedia of Islam in French, English and German is produced. Annemarie Schimmel (Germany, US), Graef and Hans Kruse and Walter Hinz (Germany).
Now second edition of EI is continuing to be published only in English and French. But the fact is that not many of the orientalists were specialized in Islamic Jurisprudence and Fiqh area; there were a few of them only in the West, definitely not many in America. American universities were not that much interested in producing and educating specialists in Islamic Jurisprudence. Perhaps they were more pragmatists in approach. One needs to appreciate Brockelmann's GAL, Dr. Sezgin's GAS, also Concordance de La Tradition Musulmane (Mu'jam al-Mufahras li-Alfaz al-Hadith al-Nabawi), all being published by Brill at The Haque (Lahaye, Leiden). These are extremely important manuals Islamic Scholars can not afford not referring to, if we intend to raise research oriented western standard-type academic scholars among Muslim scholarship. George Sarton's chapter on Muslim Period in his magnificent book Introduction to the History of Science also deserves to be noted at this point.
.
The most important western Orientalists in Islamic Law was/is J. Schacht, who was here in USA but originally from German tradition. Dr. Schacht worked in Sharia and Fiqh area more than half century. His article on Ikhtilafat was published in 1926. His book Origins of Mohammedan Jurisprudence was one of the books yet has to be superseded, albeit criticized from the Muslim perspective. Dr. Sezgin with his Buharinin Kaynaklari must have added and corrected many of the presumptions made by Schacht in his works. His book Introduction to Islamic Law is more general, covering almost all areas of Islamic Law, but briefly with no details. Dr. Hamidullah had a lot of points in his lectures and classes as well in his writings, correcting the basis of Hadith literature. Dr. Mustafa Azami also worked a lot in early Hadith literature. He, too, stands criticizing and correcting many points against Schacht's and the likes' theories.
The Lebanese origin Majid Khadduri in US, also wrote in the field of Islamic law. Dr. Vogel, at Harvard, in the field of Law, managed to get a good amount of financing at Islamic Studies area from mainly Saudi sources. John Esposito is also very prolific author in Islamic Studies field in US.
We have In the US, as Muslim scholars and academicians, Dr. Akbar Ahmad, Dr. Mazzammil Siddiqi, Dr. Ingrid Mattson, Dr. Laila Ahmad, Dr. Mervat Hatam, Dr. Hussain Nasr, Dr. Ali Mazrui, Dr. Sulaiman Nyang, Dr. Zahid Bukhari, Dr. Abdullah Idris and Dr. Jamal Badawi (Canada). I must specifically mention Dr. Muhammad Hamidullah (France) and Dr. Fuat Sezgin (Frankfurt, Germany), both being my teachers, are to be considered giant scholars in Islamic Studies, Hamidullah being in Islamic Law. I don’t think we have today many people in his caliber in Islamic Law area.
Of course, Arabic department of Ann Arbor, Chicago Middle eastern and Islamic Studies, Harvard's related branches, Hartford Seminary's lately caring about Muslim Chaplainry and Islamic Studies programs are to be appreciated. Ann Arbor's Arabic grammar and middle eastern studies and what George Maqdisi and their colleagues did and are doing have to be appreciated. Georgetown University's Arabic teaching and American University's efforts in the field are modern efforts not to be ignored.
When we see the works of Minosrski, Fluegel, Ahlward, Kaziimirski and the likes, we really appreciate them today more than we may do the Islamic countries’ specialists, working as patchy and as culturists or historians. In U.K. Anderson and Coulson were in Islamic Law area. They also have works and articles on Islamic Law, but they seem more interested in generalities, application thereof in English Muslim colonies.
The west always was interested in the east, they have had relations with each other. Orientalism developed because of western interest in the east. East, middle east, gave divine texts, Towrah, gospels, Qur’an to whole world, including the west. East gave prophets, messengers such as Abraham, Noah, Moses, Jesus and Muhammad to the west and the whole world. But I must say, at no university and no place there is a real and at the same time strong Islamic Law program in US, may be in the entirety of the west, Nobody is teaching Tafsir, Hadith, Fiqh, Usul al-Fiqh, Khilafiyyat together with strong classical Arabic.
In US, many Islamic Law specialists are having a little training in general Islam, Muslim countries, history of Islam. They have never past any exam in real Islamic Law and Sharia branches in their life. Their Sharia and Fiqh education is some what cosmetics, just colored with glittering words. None of them have mastery of Qur'an. They never memorized it, they do not know how to read and recite Qur'an properly with rules and regulations. Qur'an is the source of Sharia together with Hadith/Sunnah and Ijma, Qiyas al-fuqaha, ijtihad and others. How can any body claim any authority in Sharia and Fiqh without mastering them? For all fairness, it is true that today's Sharia specialists in the West may not have half of the back ground in Islamic sciences of a middle level imam who is trained in a madrasa we all criticize.
Dr. Khalid Abou 'l-Fadl is one of the most qualified ones in US, of course so far what he writes shows that he is more philosophical, perhaps not generally fitting to traditional Islamic jurist category. Dr. Abdullah al-Naeem, in Atlanta, is more in criminal area. Knowing him from PhD days from Cambridge, UK, I can say that he seems to be more at odds with traditional approach to Islamic Law, even perhaps he is part of a reform trend, a trend which is representative of heretic Muslims. But with due respect to all, I must say that many of the orientalists who are writing in Islamic Law, Fiqh and Sharia today and who are considered in one way or another specialized in Sharia, had no education in basic Islamic studies and specifically in Fiqh field even at a Saudi high school level, or al-Azhar 's high school level. They are generally slipped away from Arabic, or history fileds to Islamic Jurisprudence field. They never studied Usul al-Fiqh, Multaqa or ahkam of al-Qur'an. They do not know how to recite Qur'an either. They have never passed any serious exams and have no ijazah in traditional sense at all. Yet they opine and write in Islamic Jurisprudence with extreme sense comfort.
The late Ismail alFaruqi was a strong scholar at Temple University. Dr. Ayyub has also contributed to Islamic field and its teaching. There were several attempts to establish Islamic universities here in the United States, but I do not see much academic work and establishment other than recruitment efforts or certifying already existing talents, and shaping them or forming them. Of course, I believe that this is patchy education, like distance education. There is no real talim and tarbiya and face to face teaching and instructing lasting for months, if not years. They never made an imam who is unable to recite Quran with tajwid rules able to do it, or did not know basic Fiqh educated them well enough. That education is not, in my opinion, real talim and tadris and tarbiya. Of course what Zaituna Institute is doing and attempting to do more is appreciated, but I think that it is not satisfactory at the moment for ummah's need. It needs to be developed more.
However the experience of IQA, IANT Quranic Academy and its Suffa Islamic Seminary in Dallas, Texas worth to be noted. The Quranic Academy was established 5 years ago. In this elementary- high school level school, the students are taken at 5 years of age at KG, and are educated all the way up to 10th grade. At the moment, it has 200 hundred students. Mission is to raise Muslim scholars, both male and female, here in US. They memorize Qur'an, study Arabic, Qira'a, Tajwiid rules, and practice them in the masjid, together with all core and secular subjects taught in public schools.
There is also Alim program, where the students of Quranic Academy study. In this program, students study Aqida form al-Fiqh al-Akbar by Abu Hanifa, Aqida of Tahawi, Aqaid al-Nasafiyya from Arabic original texts, Fiqh from Nur al-Idhah, Tafsir from Qadi Baidhawi. 17 of the students have already completed their hifz. The school is fully accredited as exemplary school. IQA is a whole year academic school, that is to say that, students have only a few weeks of vacation time in the summer. Even during this period they must continue to study under the observance of their parents. Students also lead the prayers in the mosque as traing on the field, they lecture and do presentations for the congregation.
Approximately 60 % of the school’s weekly education focuses on Arabic, Qur'an, Qira’ah, Tafsir, Hadith and Fiqh while 40 % in on other core subjects. At the moment 70 % of the students are honor roll students and they are at the top quarter at the national level core subjects exams. There is no intention of compromising academic and core subjects with less education. The core subjects, however, have to be connected to Islamic sciences and must be delivered in relation to Islam so that then students may not be confused or left with no guidance in the wilderness of ideas or chaotic ways of thinking.
Ummah needs leaders with strong personalities who are well educated. That is what the Ummah is lacking for some time. This is a unique school in the two Americas, there is no any other school similar to it. The hopes and prayers are that we can have a few buildings with hostel facilities, research supports, places to have students from other countries. This school must not be confused with other general Islamic Schools where 90 % of school program and curriculum is public school core work where academic subjects are managed privately by Muslims to provide a safe environment to the Ummah’s youth.
The education in IQA is and always must be mainstream Islam based on traditional scholarly texts with no indoctrination. The students are freely educated to be “lions and lionesses” of truth, justice and honesty in public sphere for the Ummah and whole humanity. It is planned that after they finish the IQA students may be educated at Suffa Islamic Seminary all in Arabic, in Islamic Sciences like Tafsir, Fiqh, Hadith, Sira, Usul al-Fiqh, Usul al-Hadith, Balagaha, Bayan and Badi with full authority and in the sciences like sociology of religions, psychology of religions, socio-psychology, Latin, Greek, Hebrew with a good deal of history of Christianity, Judaic traditions so they may be able to understand and address accordingly the roots of the Western civilizations in the proper context and act accordingly, and address the needs of Ummah and serve to humanity.
The Muslim scholarship must come up to a level that it may answer the western civilizational challenges, for that a strong education is necessity no doubt. What decades ago Osmania University had to plan in Hyderabad Deccan under Nizam, namely, to raise Muslim scholars well in Arabic, slamic Studies and well in English didn't work properly. Otherwise we could have had today scholars who could address the western mind fairly well. Now, we the Muslims in the USA have this opportunity, to do some thing dramatic for humanity here in the West of the West America.
It has been seen that so called scholarly papers, even theses prepared here in the west for example in Ottoman History without knowing Ottoman Culture, language, without visiting Ottoman Archives, based on the sources by simply picking up from here and there. Also some of the Islam's Orientalists are speaking and writing on Islam, advising the governments, guiding them in Sharia, Islamic law, democracy vis a vis Muslims and Islamic countries without having any strong academic education and knowledge, which is leading to no good results, even harming our country the USA, tarnishing the image of America and the West. This is only making things worse.
We must look at the commonalities and move forward from there. History is replete with evidences attesting to the interactions between east / Islam and the west. The army of the Alexander the Great went to Afghanistan. Napoleon visited Cairo and Azhar, French, English, Germans, Italians, Holland, Dutch, had centuries-long relations with the Muslim peoples. They colonized Muslim lands. The British administration had relations with the Ottomans and their administration. English and thereof American common law appears to be similar to the Ottoman system of administration and legal system in terms of functioning. The Napoleon Code civil of 1804, which is the mother civil code in the west in terms of continental and European legal system had a lot of commonalities with Islamic Jurisprudence. There are books comparing the Napoleon Civil Code with Islamic Law article by article and establising the differences and commonalities. Contrary to what common men may think there are more commonalities between western laws and Islamic law, namely Sharia.
When we say Sharia we must not confine our minds to cutting hands, stoning the adulteress, having four wives, letting women have half male’s share of inheritance. Islamic law is so wide, it covers the entire life of a person. A few needs to be explained type of issues may not even amount to 1/10000) of Fiqh. The amir (Imarah system) or Kahlifa (khilafa) has the immense right and authority of legislating as tazir in the Penal Code of Islam which could be usually more rigid field than any branch of law. There is only a few hudud, 5-6 of them, which are strictly defined and criminalized in Qur'an and sunnah with a lot of strings and conditions attached in terms application thereof in justice and fairness.
Surprisingly there is free bargain in American System if desired by the authorities. Actually the differences between the western laws and Islamic Law, Sharia law are not too rigid or too strict. I may dare to say that sometimes the difference in western codes of law as France, Germany, English or American legal sytems represent, are bigger than their differences with the Sharia laws of Islam. The differences in America among the states are at times so wide that one may wonder are all of these a part of one legal system as it is the case in alimony where it changes from on state to another, or the case of same sex marriages being recognized in one state while it is rejected in others.
It is known that Turkey adapted Swiss civil code which was based on Napoleon Code Civil and put aside Majalla-i Ahkam-i Adliyya of Ottoman Empire. This Majalla was prepared under the leadership of Ahmet Cevdet Pasha, a prominent historian and lawyer, together with a committee. It has been worked well by my colleagues in Turkey, mainly by Osman Ozturk as his PhD topic. This code is really marvelous in its content, great work, similar to Justinianus Code Civile or Napoleon Code Civil. Unfortunately, Majalla’s English translation does not reflect att all its Ottoman legal context to the readers. It has a lot of mistakes which necessitates the need of new translation thereof.
Dr. Yusuf Ziya Kavakci*
Sharia recently became a hotly debated subject. Archbishop of England made a statement at the middle of many statements, that has given the opportunity of Islamic law and Shari to be discussed and debated by westerners and some times the discussion apparently was taken out context. It is, as I believe, a fact that Sharia, Fiqh in its early stages got established and developed in the wide area of the world, mainly where Roman law was dominant.
Roman law (the law applied in Byzantine Empire was Roman law) developed in the Beirut, Istanbul (Constantinople) centuries long before Islam. Fiqh was established, acted upon and developed to answer the needs of people embracing Islam in Syria, Iraq, Jordan, Palestine, Saudi Arabia, Central Asia, Iran, Egypt, and North Africa where Roman law was dominant for centuries. Actually the relations between these two laws were made subject to theories and researches, as Fiqh’s relation with Judaic tradition and law was done. There was a Roman law text in Arabic at 5th Century AD applied in Syria where Islamic Law later applies, the relation between these two laws also made specifically subject to comparative studies not too long age, unfortunately in Turkish only. Actually the researcher compared the Arabic text of this Syrian Roman Codex, edited by German orientalists more than a century ago, with al-Majmu fi 'l-Fiqh by Zaid b, Ali (circa d. 120 AH), which was edited By Griffini, of which original manuscript is in Milan, Italy. The comparison is made in terms of systematic, subjects, forms and contents.
Abu Hanifa himself was not really an Arab, lived out side of Medina and Mecca that is in Kufa, city south of Iraq, and Baghdad. His grave is in Baghdad which is not well taken care of nowadays. He is the one who really established Fiqh, Sharia, I may say, as codified by his teaching, his two students, among thousands, Imam Abu Yusuf and Imam Muhammad al-Shaibani are the ones who wrote down and took notes and put into book forms the teachings of their ustad. These two taught and transferred their ustad's teaching to Muhammad b. Idris al-Shafi'i. So Shafii is the student of the students of Abu
Hanifa.
A few decades ago we have had strong orientalists like L. Massignon, Ch. Pellat (France), Bertold Spuler (Germany), M. Watt (Edinburgh, UK) and Bernard Lewis (England, USA). Before there were strong caliber orientalists like Carl Brockelmann, I. Goldziher, Snouck-Hugronje, and Wensinck, one of the important piece of Islamic literature being “Concordance” edited by his team, in whose time also first edition of Encyclopedia of Islam in French, English and German is produced. Annemarie Schimmel (Germany, US), Graef and Hans Kruse and Walter Hinz (Germany).
Now second edition of EI is continuing to be published only in English and French. But the fact is that not many of the orientalists were specialized in Islamic Jurisprudence and Fiqh area; there were a few of them only in the West, definitely not many in America. American universities were not that much interested in producing and educating specialists in Islamic Jurisprudence. Perhaps they were more pragmatists in approach. One needs to appreciate Brockelmann's GAL, Dr. Sezgin's GAS, also Concordance de La Tradition Musulmane (Mu'jam al-Mufahras li-Alfaz al-Hadith al-Nabawi), all being published by Brill at The Haque (Lahaye, Leiden). These are extremely important manuals Islamic Scholars can not afford not referring to, if we intend to raise research oriented western standard-type academic scholars among Muslim scholarship. George Sarton's chapter on Muslim Period in his magnificent book Introduction to the History of Science also deserves to be noted at this point.
.
The most important western Orientalists in Islamic Law was/is J. Schacht, who was here in USA but originally from German tradition. Dr. Schacht worked in Sharia and Fiqh area more than half century. His article on Ikhtilafat was published in 1926. His book Origins of Mohammedan Jurisprudence was one of the books yet has to be superseded, albeit criticized from the Muslim perspective. Dr. Sezgin with his Buharinin Kaynaklari must have added and corrected many of the presumptions made by Schacht in his works. His book Introduction to Islamic Law is more general, covering almost all areas of Islamic Law, but briefly with no details. Dr. Hamidullah had a lot of points in his lectures and classes as well in his writings, correcting the basis of Hadith literature. Dr. Mustafa Azami also worked a lot in early Hadith literature. He, too, stands criticizing and correcting many points against Schacht's and the likes' theories.
The Lebanese origin Majid Khadduri in US, also wrote in the field of Islamic law. Dr. Vogel, at Harvard, in the field of Law, managed to get a good amount of financing at Islamic Studies area from mainly Saudi sources. John Esposito is also very prolific author in Islamic Studies field in US.
We have In the US, as Muslim scholars and academicians, Dr. Akbar Ahmad, Dr. Mazzammil Siddiqi, Dr. Ingrid Mattson, Dr. Laila Ahmad, Dr. Mervat Hatam, Dr. Hussain Nasr, Dr. Ali Mazrui, Dr. Sulaiman Nyang, Dr. Zahid Bukhari, Dr. Abdullah Idris and Dr. Jamal Badawi (Canada). I must specifically mention Dr. Muhammad Hamidullah (France) and Dr. Fuat Sezgin (Frankfurt, Germany), both being my teachers, are to be considered giant scholars in Islamic Studies, Hamidullah being in Islamic Law. I don’t think we have today many people in his caliber in Islamic Law area.
Of course, Arabic department of Ann Arbor, Chicago Middle eastern and Islamic Studies, Harvard's related branches, Hartford Seminary's lately caring about Muslim Chaplainry and Islamic Studies programs are to be appreciated. Ann Arbor's Arabic grammar and middle eastern studies and what George Maqdisi and their colleagues did and are doing have to be appreciated. Georgetown University's Arabic teaching and American University's efforts in the field are modern efforts not to be ignored.
When we see the works of Minosrski, Fluegel, Ahlward, Kaziimirski and the likes, we really appreciate them today more than we may do the Islamic countries’ specialists, working as patchy and as culturists or historians. In U.K. Anderson and Coulson were in Islamic Law area. They also have works and articles on Islamic Law, but they seem more interested in generalities, application thereof in English Muslim colonies.
The west always was interested in the east, they have had relations with each other. Orientalism developed because of western interest in the east. East, middle east, gave divine texts, Towrah, gospels, Qur’an to whole world, including the west. East gave prophets, messengers such as Abraham, Noah, Moses, Jesus and Muhammad to the west and the whole world. But I must say, at no university and no place there is a real and at the same time strong Islamic Law program in US, may be in the entirety of the west, Nobody is teaching Tafsir, Hadith, Fiqh, Usul al-Fiqh, Khilafiyyat together with strong classical Arabic.
In US, many Islamic Law specialists are having a little training in general Islam, Muslim countries, history of Islam. They have never past any exam in real Islamic Law and Sharia branches in their life. Their Sharia and Fiqh education is some what cosmetics, just colored with glittering words. None of them have mastery of Qur'an. They never memorized it, they do not know how to read and recite Qur'an properly with rules and regulations. Qur'an is the source of Sharia together with Hadith/Sunnah and Ijma, Qiyas al-fuqaha, ijtihad and others. How can any body claim any authority in Sharia and Fiqh without mastering them? For all fairness, it is true that today's Sharia specialists in the West may not have half of the back ground in Islamic sciences of a middle level imam who is trained in a madrasa we all criticize.
Dr. Khalid Abou 'l-Fadl is one of the most qualified ones in US, of course so far what he writes shows that he is more philosophical, perhaps not generally fitting to traditional Islamic jurist category. Dr. Abdullah al-Naeem, in Atlanta, is more in criminal area. Knowing him from PhD days from Cambridge, UK, I can say that he seems to be more at odds with traditional approach to Islamic Law, even perhaps he is part of a reform trend, a trend which is representative of heretic Muslims. But with due respect to all, I must say that many of the orientalists who are writing in Islamic Law, Fiqh and Sharia today and who are considered in one way or another specialized in Sharia, had no education in basic Islamic studies and specifically in Fiqh field even at a Saudi high school level, or al-Azhar 's high school level. They are generally slipped away from Arabic, or history fileds to Islamic Jurisprudence field. They never studied Usul al-Fiqh, Multaqa or ahkam of al-Qur'an. They do not know how to recite Qur'an either. They have never passed any serious exams and have no ijazah in traditional sense at all. Yet they opine and write in Islamic Jurisprudence with extreme sense comfort.
The late Ismail alFaruqi was a strong scholar at Temple University. Dr. Ayyub has also contributed to Islamic field and its teaching. There were several attempts to establish Islamic universities here in the United States, but I do not see much academic work and establishment other than recruitment efforts or certifying already existing talents, and shaping them or forming them. Of course, I believe that this is patchy education, like distance education. There is no real talim and tarbiya and face to face teaching and instructing lasting for months, if not years. They never made an imam who is unable to recite Quran with tajwid rules able to do it, or did not know basic Fiqh educated them well enough. That education is not, in my opinion, real talim and tadris and tarbiya. Of course what Zaituna Institute is doing and attempting to do more is appreciated, but I think that it is not satisfactory at the moment for ummah's need. It needs to be developed more.
However the experience of IQA, IANT Quranic Academy and its Suffa Islamic Seminary in Dallas, Texas worth to be noted. The Quranic Academy was established 5 years ago. In this elementary- high school level school, the students are taken at 5 years of age at KG, and are educated all the way up to 10th grade. At the moment, it has 200 hundred students. Mission is to raise Muslim scholars, both male and female, here in US. They memorize Qur'an, study Arabic, Qira'a, Tajwiid rules, and practice them in the masjid, together with all core and secular subjects taught in public schools.
There is also Alim program, where the students of Quranic Academy study. In this program, students study Aqida form al-Fiqh al-Akbar by Abu Hanifa, Aqida of Tahawi, Aqaid al-Nasafiyya from Arabic original texts, Fiqh from Nur al-Idhah, Tafsir from Qadi Baidhawi. 17 of the students have already completed their hifz. The school is fully accredited as exemplary school. IQA is a whole year academic school, that is to say that, students have only a few weeks of vacation time in the summer. Even during this period they must continue to study under the observance of their parents. Students also lead the prayers in the mosque as traing on the field, they lecture and do presentations for the congregation.
Approximately 60 % of the school’s weekly education focuses on Arabic, Qur'an, Qira’ah, Tafsir, Hadith and Fiqh while 40 % in on other core subjects. At the moment 70 % of the students are honor roll students and they are at the top quarter at the national level core subjects exams. There is no intention of compromising academic and core subjects with less education. The core subjects, however, have to be connected to Islamic sciences and must be delivered in relation to Islam so that then students may not be confused or left with no guidance in the wilderness of ideas or chaotic ways of thinking.
Ummah needs leaders with strong personalities who are well educated. That is what the Ummah is lacking for some time. This is a unique school in the two Americas, there is no any other school similar to it. The hopes and prayers are that we can have a few buildings with hostel facilities, research supports, places to have students from other countries. This school must not be confused with other general Islamic Schools where 90 % of school program and curriculum is public school core work where academic subjects are managed privately by Muslims to provide a safe environment to the Ummah’s youth.
The education in IQA is and always must be mainstream Islam based on traditional scholarly texts with no indoctrination. The students are freely educated to be “lions and lionesses” of truth, justice and honesty in public sphere for the Ummah and whole humanity. It is planned that after they finish the IQA students may be educated at Suffa Islamic Seminary all in Arabic, in Islamic Sciences like Tafsir, Fiqh, Hadith, Sira, Usul al-Fiqh, Usul al-Hadith, Balagaha, Bayan and Badi with full authority and in the sciences like sociology of religions, psychology of religions, socio-psychology, Latin, Greek, Hebrew with a good deal of history of Christianity, Judaic traditions so they may be able to understand and address accordingly the roots of the Western civilizations in the proper context and act accordingly, and address the needs of Ummah and serve to humanity.
The Muslim scholarship must come up to a level that it may answer the western civilizational challenges, for that a strong education is necessity no doubt. What decades ago Osmania University had to plan in Hyderabad Deccan under Nizam, namely, to raise Muslim scholars well in Arabic, slamic Studies and well in English didn't work properly. Otherwise we could have had today scholars who could address the western mind fairly well. Now, we the Muslims in the USA have this opportunity, to do some thing dramatic for humanity here in the West of the West America.
It has been seen that so called scholarly papers, even theses prepared here in the west for example in Ottoman History without knowing Ottoman Culture, language, without visiting Ottoman Archives, based on the sources by simply picking up from here and there. Also some of the Islam's Orientalists are speaking and writing on Islam, advising the governments, guiding them in Sharia, Islamic law, democracy vis a vis Muslims and Islamic countries without having any strong academic education and knowledge, which is leading to no good results, even harming our country the USA, tarnishing the image of America and the West. This is only making things worse.
We must look at the commonalities and move forward from there. History is replete with evidences attesting to the interactions between east / Islam and the west. The army of the Alexander the Great went to Afghanistan. Napoleon visited Cairo and Azhar, French, English, Germans, Italians, Holland, Dutch, had centuries-long relations with the Muslim peoples. They colonized Muslim lands. The British administration had relations with the Ottomans and their administration. English and thereof American common law appears to be similar to the Ottoman system of administration and legal system in terms of functioning. The Napoleon Code civil of 1804, which is the mother civil code in the west in terms of continental and European legal system had a lot of commonalities with Islamic Jurisprudence. There are books comparing the Napoleon Civil Code with Islamic Law article by article and establising the differences and commonalities. Contrary to what common men may think there are more commonalities between western laws and Islamic law, namely Sharia.
When we say Sharia we must not confine our minds to cutting hands, stoning the adulteress, having four wives, letting women have half male’s share of inheritance. Islamic law is so wide, it covers the entire life of a person. A few needs to be explained type of issues may not even amount to 1/10000) of Fiqh. The amir (Imarah system) or Kahlifa (khilafa) has the immense right and authority of legislating as tazir in the Penal Code of Islam which could be usually more rigid field than any branch of law. There is only a few hudud, 5-6 of them, which are strictly defined and criminalized in Qur'an and sunnah with a lot of strings and conditions attached in terms application thereof in justice and fairness.
Surprisingly there is free bargain in American System if desired by the authorities. Actually the differences between the western laws and Islamic Law, Sharia law are not too rigid or too strict. I may dare to say that sometimes the difference in western codes of law as France, Germany, English or American legal sytems represent, are bigger than their differences with the Sharia laws of Islam. The differences in America among the states are at times so wide that one may wonder are all of these a part of one legal system as it is the case in alimony where it changes from on state to another, or the case of same sex marriages being recognized in one state while it is rejected in others.
It is known that Turkey adapted Swiss civil code which was based on Napoleon Code Civil and put aside Majalla-i Ahkam-i Adliyya of Ottoman Empire. This Majalla was prepared under the leadership of Ahmet Cevdet Pasha, a prominent historian and lawyer, together with a committee. It has been worked well by my colleagues in Turkey, mainly by Osman Ozturk as his PhD topic. This code is really marvelous in its content, great work, similar to Justinianus Code Civile or Napoleon Code Civil. Unfortunately, Majalla’s English translation does not reflect att all its Ottoman legal context to the readers. It has a lot of mistakes which necessitates the need of new translation thereof.
This has been well stated in the lecture series given in the subject (www.iant.com/link Majalla). The preparation of Majalla came after the attempt of translating of Napoleon Code Civil into Ottoman language and legalizing it at the time of Rashid Pasha in the middle of 19th century. Rashid Pasha is known as a western type of pasha, even allegedly affiliated with the Freemason. Ottomans, as we know already had accepted earlier the Italian penal code as their Ceza Kanunnamesi, their penal code. Also there was Qadri Pasha in Egypt who had developed Qanun al-Ahkam al-Shakhsiyya (Code of Personal Rulings) as answer to western system in terms of codification of laws.
It is interesting to see the similarities between legal systems even during the early periods of Islam. As stated above Islamic Law developed mainly in lands and areas under the jurisprudence of Roman Law, areas such as Beirut, Syria, Palestine, Egypt, Istanbul etc. Roman Codex Civile and Novellaes and edictums were commented, annotated by early glossators with their glossas, and later same texts were edited by postglossators with additional glossas, which is almost same method used by Muslim faqihs (jurists) when they commented and annotated the works Abu Hanifa, Imam Malik, Pazdawis, Kasani, Marghinani, Sarakhsi and their and fatwas by sharh (comment,commentary), by hashiya (footnote/side note/notes on margins) or notes between spaced lines as qaid / muqayyad Fiqh books, which are called in some literature fawaid and hawashi. Sometimes one may have in one bound volume three-four authors’ notes, comments and works, may be centuries difference in their lives. Of course human being always had relations with each other, civilizations, no matter what, had borrowed a lot from each other. Languages are clear examples of that borrowing. German language is structured as Persian, cut must be related with Arabic qat', mosque must be englishized form of Masjid, the place of sajda (prostration), mixer must have come from kasr root, to break into pieces.
Institutions and systems also had that type of relations in the past as they have today. Arabic is a very important source in Islamic Studies, hence for Sharia Law too.
Institutions and systems also had that type of relations in the past as they have today. Arabic is a very important source in Islamic Studies, hence for Sharia Law too.
Therefore in Islamic Studies Sarf and Nahw, parts of Arabic grammatical studies, are very important tools to study higher desciplines, such as Tafsir, Hadith, Fiqh, Usul al-Fiqh etc. These higher sciences are called al-Ulum al-'Aliyah. Tools and instruments are called al-'Ulum al-Aliyah. This last group comes first in education, the ones who don't have mastery in this tool group may not reach and climb to high levels. Therefore Arabic with its Ma’ani (semantics), Bayan and Badi’ (as literary arts) are very significant. They are sine qua non.
The Usul al-Fiqh, which is Methodology of Islamic Law, or Sharia Law has a lot of innovative service content. Muslim jurists and scholars were very innovative.
They innovated signs of Arabic letters, dots (nuqta), harakats and ashkal almost 100 years after the death of Prophet Muhammad (pbuh). They invented grammar, they invented Usul al-Fiqh, to answer to the questions like how to understand the divine texts, conflicts of laws, letters, meanings, semantics, special words, general words, contents. They also pondered upon questions such as is answer a part of question, is the case for which revelation came down a part of the text in terms understanding, is opposite of imperative ordered too? Is mentioned text covering meant but not mentioned? Is there any cancellation or abrogation in the the Scripture and sunnah and is there any modification thereof too? Can a verse or an imperative be understood independently from any other texts related to the same subject? I must say the rules like lex specialis derogat lex generalis as Latin rule were there before Islam too as a part of human wisdom.
In Turkish, there is a proverb which means reason has one way, wisdom gives same one way. This type of maxims (al-qawa'id al-Kulliyya) are very much favorably taken as the first 100 articles of Majalla mentioned above. This Majalla worked well and included written commentaries by Ali Haidar in Ottoman Turkish and taught by Abul Ula Mardin (Mardinizada Abu Ula) in Istanbul University during las decades of Ottoman Empire as well as in Modern Turkish Republican era. Dr. Sharif Mardin who is well known academician in the west gets his last name from this Abul Ula Mardin, though I am not sure how much the efforts of Abul Ula is appreciated by him in his works and the works of others today. With due respect to all of colleagues and scholars, I must say that I see so much chronic ignorance especially in the Islamic Law field, if not fear of unknown and perhaps resistance to know more. The Islam 101 level favorably sought for courses by universities and academics and firms working in Muslim countries are insufficient.
Sharia and Fiqh have strong flexibility by the institution of Ijtihad in the governance and administrative Law. There are very few limitations and defining verses in administration, management of the state in Qur’an and Sunnah. The khalifa/ amir has enormous authority and flexibility to form the rules and regulations, indeed, in fairness, truthfulness, justice and honesty, even when it comes to in Penal Code. I doubt today any legal system may have in our modern world in the east or the west that much flexibility and discretion for thekhalifa. Khalifa has a very wide authority and freedom of doing and acting for the larger benefit and interest of the people (ra'iyya), people under his care. He is ra'i, the one who has to attend, to care and to shepherd others in fairness, honesty, justice and integrity.
Ijtihad has legal ground for khalifa/leader’s authority, as long as mujtahids are qualified enough to sanction the leadership’s rulings and legislatures.
The Islamic governance and Public Law area, as we all know Islamic legal and state management system is very much similar to American presidential system where presidency has authority, secretaries (ministers) are just his representatives who get their authority from president’s original authority, much more different than French, German systems for example. Ijtihad, as said, may legalize new administrative initiatives as long as they are well established. The door of Ijtihad is theoretically at least wide open, its door is munsad as we say it, it is not masdud, which means it is closed by itself because of lack of qualified mujtahids, it is not closed by some other force. It may open any time when conditions meet.
There are many individual issues in Islamic Law. One may speak about women’s equality in shares of inheritance. But each law and legal system must be evaluated in its entirety within a context of the bigger picture. These issues have been studied by the author of this paper and found that these rules are not necessarily against the interest of woman. Woman is cared for by the father, the guardian before marriage. After the marriage, she is cared for by her husband financially etc. She does not need to spend her own money for her own food, dress and shelter too. Her guardian has to provide food, shelter and dress, as it is called nafaqa in Islamic Law terminologies. Woman is like the queen in Islamic legal system. There are many explanation written and said in this context.
As to the issue of witnessing of the women, there are cases where only one woman is enough for testimony. There are many witnesses in courts today but still the truth is not easily found by judges and juries. Where there is no fear from the Creator, a fear he/she will definitely be questioned by Him in the hereafter, nothing may work. Humanity is still struggling to find a humanly and secular way of establishing equality, justice and fairness in this world.
There is also an inherent collective Ijtihad like ijma (consensus) and qiyas al-Fuqaha (analogical analysis and synthesis done by Muslim Jurists) which add another dimension to the adaptability of Islamic Law. Therefore reform in the real sense is not the issue in Sharia Law. Ensuring that the system of Ijtihad functions well is sufficient.
The qazf crimen, one of the 5 hudud crimes in Qur'an, is uniquely interesting sanctions for the protection of woman from slandering, backbiting, accusing her with indecency acts. This crime is unique to Islam. It adds a lot to her honor, nobility, dignity, and integrity.
Yes, it is true that Sharia and Islamic Jurisprudence have to have faith and belief in Allah, in Muhammad as His messenger, has to fear from hereafter, has to have taqwa, khawf, khashya, piety, religiousness, and isitqamah to help Muslims have strong inner control on themselves in obeying Allah, not falling into sins and wrongs that may lead them to Jahannam (hellfire), in the hereafter. That is only good for everyone, this type of snction does not exist in modern secular legal systems. Thus, they have to have laws above laws, controls above controls with thousands ever changing institutions checking and supervising each other.
* Kavakci (yzk@iant.com), Ex-Professor of Islamic Law and Dean, College of Islamic Studies, Ataturk University, Erzurum/Turkey. He memorized Qur'an when he was 10 years old, passed national exams for Waiz (preacher) when he was 15 years old, Mufti exams when he was 18 years old. He studied at High Islamic Institute of Istanbul and College of Law of Istanbul University. He completed his PhD on the History of Islamic Law and Jurists at the time of Qarakhanid period in Central Asia. He is a board certified attorney in Turkey. He moved to USA for the purpose of providing education to his three daughters freely with their hijabs, when they were denied attending schools with their Islamic head-covering. He currently is a scholar-in-residence with the Islamic Association of North Texas (www.iant.com). He is the founder & teacher of Quranic Academy (www.quranicacedmy.org) and the founding dean & instructor of Suffa Islamic Seminary (www.suffa.org). He is a member of Shura of Islamic Society of North America, and a member of Fiqh Council of North America. He is on the list of speakers for US Department of State.
The Usul al-Fiqh, which is Methodology of Islamic Law, or Sharia Law has a lot of innovative service content. Muslim jurists and scholars were very innovative.
They innovated signs of Arabic letters, dots (nuqta), harakats and ashkal almost 100 years after the death of Prophet Muhammad (pbuh). They invented grammar, they invented Usul al-Fiqh, to answer to the questions like how to understand the divine texts, conflicts of laws, letters, meanings, semantics, special words, general words, contents. They also pondered upon questions such as is answer a part of question, is the case for which revelation came down a part of the text in terms understanding, is opposite of imperative ordered too? Is mentioned text covering meant but not mentioned? Is there any cancellation or abrogation in the the Scripture and sunnah and is there any modification thereof too? Can a verse or an imperative be understood independently from any other texts related to the same subject? I must say the rules like lex specialis derogat lex generalis as Latin rule were there before Islam too as a part of human wisdom.
In Turkish, there is a proverb which means reason has one way, wisdom gives same one way. This type of maxims (al-qawa'id al-Kulliyya) are very much favorably taken as the first 100 articles of Majalla mentioned above. This Majalla worked well and included written commentaries by Ali Haidar in Ottoman Turkish and taught by Abul Ula Mardin (Mardinizada Abu Ula) in Istanbul University during las decades of Ottoman Empire as well as in Modern Turkish Republican era. Dr. Sharif Mardin who is well known academician in the west gets his last name from this Abul Ula Mardin, though I am not sure how much the efforts of Abul Ula is appreciated by him in his works and the works of others today. With due respect to all of colleagues and scholars, I must say that I see so much chronic ignorance especially in the Islamic Law field, if not fear of unknown and perhaps resistance to know more. The Islam 101 level favorably sought for courses by universities and academics and firms working in Muslim countries are insufficient.
Sharia and Fiqh have strong flexibility by the institution of Ijtihad in the governance and administrative Law. There are very few limitations and defining verses in administration, management of the state in Qur’an and Sunnah. The khalifa/ amir has enormous authority and flexibility to form the rules and regulations, indeed, in fairness, truthfulness, justice and honesty, even when it comes to in Penal Code. I doubt today any legal system may have in our modern world in the east or the west that much flexibility and discretion for thekhalifa. Khalifa has a very wide authority and freedom of doing and acting for the larger benefit and interest of the people (ra'iyya), people under his care. He is ra'i, the one who has to attend, to care and to shepherd others in fairness, honesty, justice and integrity.
Ijtihad has legal ground for khalifa/leader’s authority, as long as mujtahids are qualified enough to sanction the leadership’s rulings and legislatures.
The Islamic governance and Public Law area, as we all know Islamic legal and state management system is very much similar to American presidential system where presidency has authority, secretaries (ministers) are just his representatives who get their authority from president’s original authority, much more different than French, German systems for example. Ijtihad, as said, may legalize new administrative initiatives as long as they are well established. The door of Ijtihad is theoretically at least wide open, its door is munsad as we say it, it is not masdud, which means it is closed by itself because of lack of qualified mujtahids, it is not closed by some other force. It may open any time when conditions meet.
There are many individual issues in Islamic Law. One may speak about women’s equality in shares of inheritance. But each law and legal system must be evaluated in its entirety within a context of the bigger picture. These issues have been studied by the author of this paper and found that these rules are not necessarily against the interest of woman. Woman is cared for by the father, the guardian before marriage. After the marriage, she is cared for by her husband financially etc. She does not need to spend her own money for her own food, dress and shelter too. Her guardian has to provide food, shelter and dress, as it is called nafaqa in Islamic Law terminologies. Woman is like the queen in Islamic legal system. There are many explanation written and said in this context.
As to the issue of witnessing of the women, there are cases where only one woman is enough for testimony. There are many witnesses in courts today but still the truth is not easily found by judges and juries. Where there is no fear from the Creator, a fear he/she will definitely be questioned by Him in the hereafter, nothing may work. Humanity is still struggling to find a humanly and secular way of establishing equality, justice and fairness in this world.
There is also an inherent collective Ijtihad like ijma (consensus) and qiyas al-Fuqaha (analogical analysis and synthesis done by Muslim Jurists) which add another dimension to the adaptability of Islamic Law. Therefore reform in the real sense is not the issue in Sharia Law. Ensuring that the system of Ijtihad functions well is sufficient.
The qazf crimen, one of the 5 hudud crimes in Qur'an, is uniquely interesting sanctions for the protection of woman from slandering, backbiting, accusing her with indecency acts. This crime is unique to Islam. It adds a lot to her honor, nobility, dignity, and integrity.
Yes, it is true that Sharia and Islamic Jurisprudence have to have faith and belief in Allah, in Muhammad as His messenger, has to fear from hereafter, has to have taqwa, khawf, khashya, piety, religiousness, and isitqamah to help Muslims have strong inner control on themselves in obeying Allah, not falling into sins and wrongs that may lead them to Jahannam (hellfire), in the hereafter. That is only good for everyone, this type of snction does not exist in modern secular legal systems. Thus, they have to have laws above laws, controls above controls with thousands ever changing institutions checking and supervising each other.
* Kavakci (yzk@iant.com), Ex-Professor of Islamic Law and Dean, College of Islamic Studies, Ataturk University, Erzurum/Turkey. He memorized Qur'an when he was 10 years old, passed national exams for Waiz (preacher) when he was 15 years old, Mufti exams when he was 18 years old. He studied at High Islamic Institute of Istanbul and College of Law of Istanbul University. He completed his PhD on the History of Islamic Law and Jurists at the time of Qarakhanid period in Central Asia. He is a board certified attorney in Turkey. He moved to USA for the purpose of providing education to his three daughters freely with their hijabs, when they were denied attending schools with their Islamic head-covering. He currently is a scholar-in-residence with the Islamic Association of North Texas (www.iant.com). He is the founder & teacher of Quranic Academy (www.quranicacedmy.org) and the founding dean & instructor of Suffa Islamic Seminary (www.suffa.org). He is a member of Shura of Islamic Society of North America, and a member of Fiqh Council of North America. He is on the list of speakers for US Department of State.
Subscribe to:
Posts (Atom)