Chapter 5
The Shari’ah: Universal Principles of
Human Responsibilities and Rights
|
I.
The Foundation for Human
Responsibilities and Rights in Islam
II.
Principles or Maqasid of the Shari’ah
III. Structure
of the Principles and Actions under the Shari’ah
IV.
Fiqh: Rules and Regulations
V.
Thematic History
of Islamic Law
VI.
Essence of
Normative Islam
|
The Shari’ah is
the high level framework of universal principles in Islamic jurisprudence
derived through intellectual effort to understand the meaning and coherence (nazm) of the Qur’an and of the Sunnah of
the Prophet Muhammad as recorded in the Hadith.
This higher framework is the subject of ‘Usul al Fiqh or the
Principles (Roots) of the Fiqh. The
system of specific laws, rules and regulations, which must reflect and conform
to the highest principles, is called simply Fiqh.
The fiqh includes not only the set of punishments or
hudud specifically mentioned in the Qur’an for deterrence and with strict
evidentiary rules for application, but many man-made rules and punishments that
have developed in various cultures to which Islam as a religion spread. For example, the contention of some Muslims
that a husband may beat his wife, or that an adulterous should be stoned to
death, or an enemy should have his throat slit have no solid basis in the
Qur’an, hadith, Sunnah, or Sirah. Such
punishments are strongly condemned by the great Islamic jurisprudential
scholars, but remnants of such cultural practices survive even today.
The higher guidance that should guide the understanding
and applicability of the fiqh was spelled out by two of the greatest Islamic
scholars, Shamsuddin ibn al-Qayyim (who died in 748 A.H., 1347 A.C.) and his
mentor Imam Ahmad ibn Taymiyah (d. 728).
Ibn Qayyim wrote: “The Islamic law is all about wisdom and achieving people’s welfare in
this life and the afterlife. It is all
about justice, mercy, wisdom, and good.
Thus any ruling that replaces justice with injustice, mercy with its
opposite, common good with mischief, or wisdom with nonsense, is a ruling that
does not belong to the Islamic law.”
This chapter defines the highest level framework, akin to
constitutional principles, and introduces various schools of fiqh or
schools of thought (madhahib) that have been established by leading
Islamic scholars or Imams, namely, Hanafi, Maliki, Shafi’i, Hanbali, Ja’fari,
and Zaidi. Regardless of the school(s)
of thought one may follow, the discussion of the universal human
responsibilities and rights culminates in what is the essence of Islam, i.e.,
truth, love, and justice.
I. The Foundation for Human Responsibilities and
Rights in Islam
In classical Islamic thought of the third through seventh
centuries, A.H., human responsibilities and the human rights that result from
fulfilling them were systematized in what is known as normative law, that is,
in norms or general principles. The
entire field of Islamic normative law is a product of ijtihad or
intellectual effort to understand the Qur’an and Hadith. Over a period of four centuries, the greatest
and wisest Islamic scholars engaged in this “third jihad” to produce the
principles or maqasid that spell out precisely the human rights that
some skeptics have asserted do not exist in Islam.
These principles are based on four premises of Islamic
law or shari’ah. The first is its
holistic ontology embodied in the term tawhid, according to which the
entire created order exists in unitary harmony.
The things and forces we can observe are real, but their existence comes
from God. They do not exist
independently of His purpose.
The second premise is esthetic. The nature of transcendent reality, and of
all being, is Beauty, which precedes and is independent of cognition. The flower in the desert is beautiful even if
no person sees it. Beauty, and
necessarily therefore Islamic law, consists of unity, symmetry, harmony, depth
of meaning, and breadth of applicability.
The greatest beauty is the unitive principle of tawhid itself, because
without it there could be no science and no human thought at all. This is of controlling importance in the
shari’ah, because it means that the ideal system of law should be simple,
symmetrical, deep, and comprehensive.
The third premise is epistemological. All knowledge is merely a derivative and an
affirmation of the unitary harmony inherent in everything that comes from
God. All creation worships God because
He is One. Every person is created with
a need and a corresponding intuitive capability to seek and to know
transcendent reality and to submit lovingly to God in thought and action. This epistemological premise reinforces the
first two, because it indicates that Islamic law serves to give meaning to
everything man can observe. And meaning
comes from God, Who gives purpose to everything He has created.
The fourth and most easily understood premise of Islamic
law is its normative or purposive, goal-oriented nature. In their “Universal Principles of Human Rights,”
Islamic scholars over the centuries have identified several irreducibly highest
principles. These are known as the maqasid
or purposes, as the kulliyat or universals, and as the dururiyat
or essentials of justice.
II. Principles or Maqasid of the Shari’ah
A normative framework of human responsibilities and human
rights was developed by intellectual induction from the Qur’an, ahadith, and
sirah for purposes of applying the detailed rules of fiqh within the coherent
and comprehensive value system of divine revelation. Maqsudi jurisprudence expanded the discipline
of usul al fiqh or roots of the fiqh beyond the limited vision of
textual literalists in order to explore the Sunnat Allah or natural law
and divine paradigm of justice (‘adl or ‘adala). The mujtahids, those who carry out
ijtihad, of this normative jurisprudence sought out the higher hikmah or
wisdom of this “natural law” in order to promote the general benefits (maslaha)
of divine revelation for individuals and communities and to avoid the general
harm (mafsadah) from the pursuit of material power at the expense of
justice.
The classical five maqasid (al dururiyat al khamsah)
or huquq (sing. haqq) of Al Ghazali in the 4th Islamic century
were the protection of din (faith and religion), haya (life), mal
(private property), karama (dignity and honor), and ‘ilm (mind
and knowledge). Later scholars,
especially Al Shatibi, added nasl or nasab (family and community)
and hurriyah (self-determination or political freedom). Some twenty-first century scholars have added
an eighth maqsad, known as haqq al mahid or respect for the
physical environment.
While the Shari’ah provides a broad framework of
principles, the Fiqh developed by different schools of thought (madhahib)
spells out the detailed rules and regulations for guidance of Muslims. Fiqh is discussed in Section II below.
In this section, we present a brief discussion on this
subject with the aid of an overview chart of the eight primary principles of
the Shari’ah and their respective secondary and tertiary implications,
along with examples of actions necessary to actualize the spirit of these
principles of human rights in Islam. The
additional maqsad added by many scholars in recent times by the name of haqq
al mahid requires respect for the environment or ecological justice, as
discussed in Chapter 16 below, entitled “Islam and Ecology”.
1. Respect for Divine Revelation and
Freedom of Religion
The first principle, known as haqq al din, is
the duty to respect divine revelation. Classical Islamic scholars interpret
this to require freedom of religion, which means that each human has the right
freely to seek truth. This
primary belief in divine revelation requires freedom of religion and provides
the framework for the following additional principles of human rights in Islam.
2. Respect for the Human Person and Life
The second principle, necessary to sustain existence is
the duty to respect the human person and the duty to respect life. This
principle provides guidelines for what in modern parlance is called the
doctrine of just war.
3. Respect for Family and Community
The next principle is the duty to respect the family and
the community at every level all the way to the community of humankind as an
important expression of the person. This principle teaches that the sovereignty
of the person, subject to the ultimate sovereignty of God, comes prior to and
is superior to any alleged ultimate sovereignty of the secular invention known
as the State. This is the opposite of the Western international law created by
past empires, which is based on the simple principle of "might makes
right."
4. Respect for the Environment
This principle of
the Sunnat Allah is haqq al mahid (from wahada) or respect for the
physical environment. The issue of balance in the maqsad of haqq
al mahid concerns the relative priorities in protecting the environment
versus protecting the other essential purposes of human life. This is
part of the broader problem of relating the spiritual and the social as foci in
a single paradigm of tawhid.
5. Respect for Economic Justice with Broadened
Capital Ownership
This requires respect for the rights of private property
in the means of production, which is a universal human right of every human
being
6. Respect for Political Justice with
Self-Determination
This principle requires respect for self-determination of
both persons and communities through political freedom, including the concept
that economic democracy is a precondition for the political democracy of
representative government.
7.
Respect for Human Dignity with Gender Equity
This principle states that the most important requirement
for individual human dignity is gender equity.
In traditional Islamic thought, freedom and equality are not ultimate
ends but essential means to pursue the higher purposes inherent in the divine
design of the Creator for every person.
8. Respect for Knowledge and
Dissemination of Thought
The last universal or essential purpose at the root of
Islamic jurisprudence is respect for knowledge.
This can be sustained only by observance of the first seven principles
and also is essential to each of them.
The second-order principles of this maqsad are freedom of
thought, freedom for dissemination of thought, and freedom for assembly so that
all persons can fulfill their purpose to seek knowledge wherever they can find
it.
This framework of Islamic principles for human rights is
at the very core of Islam as a religion.
Fortunately, this paradigm of law in its broadest sense of moral
theology is now being revived by courageous Muslims determined to fill the
intellectual gap that has weakened the Muslim ummah for more than six
hundred years. This renewed effort for a
spiritual renaissance in all faiths can transform the world for the good of all
humankind.
III. Graphic
Representation of Maqasid
The normative principles of Islamic law lend
themselves well to representation in the form of a chart or series of charts
that show the four levels of specificity in spelling out the principles of
justice.
These are:
•
Primary Maqasid or Purposes. The
highest level of generalization consists of purposive principles that cannot be
reduced to still higher principles other than justice as the highest
principle. These maqasid spell out the
meaning of justice by providing paradigms of thought to identify still more
specific sub-paradigms.
•
Secondary Hajjiyat or Goals. The next highest level of generalization consists of a
secondary level of goals that spell out the meaning of their parent principle
and, in turn, provide a more specific paradigm for breaking each objective down
into still greater specificity.
•
Tertiary Tahsiniyyat or Objectives. The third level of specificity consists of objectives
that spell out the meaning of their parent goal and provide guidelines for
specific programs of action. The tahsiniyyat come from the term hasan, which means good and is often
translated as embellishments. Another
less common but more accurate term is takmiliyyat,
which comes from the term kamil or
perfect and means to enhance the higher purposes by perfecting them in
application.
•
Fourth-Level ‘Amaliyyat or Programs of
Action. The lowest level of guidance in spelling out
the meaning of justice and applying it in action is known as ‘amaliyyat from the word ‘aml or action (plural ‘amal).
Each such program, in turn, may be broken down into individual projects.
Although the maqasid al shari’ah originated
as a framework of purpose for use in developing jurisprudence for legal
decision-making, they serve also as guidance for good governance and public
policy. This broader purpose results
because the purpose of law in the Islamic view of life is to encourage creative
thought designed to identify and solve problems and to educate the citizens of
a polity in pursuing good order, general prosperity, and freedom through
responsible self-determination.
If the law has to be enforced, then the law
has failed in its purpose. This
contrasts with the positivist law taught in Western secular law schools,
whereby law exists only to the extent that it is enforced.
Below is a guide to the detailed charts, each
presenting one of the eight maqasid, showing the full set of four levels
of specificity for each of the eight maqasid, i.e., from the statement of basic principles to the actions required to
fulfill the intent of the respective principle.
Guide to the Detailed Charts on the Maqasid al Shari’ah
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Chart No.
|
Maqasid
al Shari’ah Covered
|
Additional
Reference
|
|
Chart 5.1
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I.
Respect for Divine Revelation
(Haqq
al Din)
|
Chapters
1: The Spirit of Islam
Chapter
2: The Faith
|
|
Chart 5.2
|
II.
Respect for the Human Person
(Haqq
al Nafs)
|
Chapter
20: Interfaith Dialogue and Cooperation - Bringing Out the Best of
All Faiths
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Chart 5.3
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III.
Respect for Family & Community
(Haqq
al Nasl)
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Chapter
16: Democracy and Islam
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Chart 5.4
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IV.
Respect for the Environment
(Haqq al mahid)
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Chapter
17: Ecology and Islam
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Chart 5.5
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V. Respect for Economic Justice
(Haqq
al Mal)
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Chapter
6: Islamic Principles of Economic and
Social Justice
|
|
Chart 5.6
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VI. Respect for Political Justice
(Haqq
al Hurriyyah)
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Chapter
16: Democracy and Islam
|
|
Chart 5.7
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VII. Respect for Human Dignity
(Haqq
al Karamah)
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Chapter
15: Gender Equity
|
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Chart 5.8
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VIII. Respect for Knowledge
(Haqq
al ‘Ilm)
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Chapter
18: The Role of Knowledge, Philosophy and Theology
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Chart 5.1
Universal
Principles of Human Rights and Responsibilities
1.
Respect for Divine Revelation
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
1.
Respect for Divine Revelation
(Haqq al Din)
(continued…)
|
Belief
in One God
|
Islam
Arkan
al Islam ………… →
(Pillars
of Islam)……….. →
Submission to the
Will of God, the first level of faith.
|
The
Five Pillars of Faith:
|
|
-
Declaration of Faith (Shahadatain)
|
|
-
Prayer (Salah)
|
|
- Charity (Zakat)
|
|
-
Fasting (Saum)
|
|
-
Pilgrimage (Hajj)
|
|
See details in chapter 1.
|
|
Iman
Arkan
al Iman (‘Aqida)…→
(Creedal
Principles of Faith)
Practicing pure faith
with sincerity in one’s heart thus achieving the second level of faith.
|
‘Aqida or
Belief in:
|
|
Existence
of God (Tawhid)
|
|
Angels
(Mala’ika)
|
|
Divine
Scriptures (Kutub)
|
|
All
the Prophets (Nabi, Rusul)
|
|
Day
of Judgment (Qiyama)
|
|
Absolute
Power of God (Qadr)
See note on Shi’a Aqida[1].
|
|
See details in chapter 1.
|
|
Other
Elements of Iman:
|
|
-
Loving Awe of God (Taqwa)
|
|
-
Love of God (Hubb)
|
|
-
Reliance on God (Tawakkul)
|
|
Ihsan
Achieving
perfection in worship based on one’s personal awareness of God’s presence,
love, and compassion. The Prophet Muhammad said, "[Ihsan
is] to worship God as though you see Him, and if you cannot see Him, then
indeed He sees you.” (Hadith of Gabriel.)
|
Absorption
of oneself in the presence of God (Fan’a)
|
|
Eternal
presence of God (Baqa’a)
|
Chart 5.1 (… continued)
Universal
Principles of Human Rights and Responsibilities
1.
Respect for Divine Revelation
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
(…continued)
1.
Respect for Divine Revelation
(Haqq al Din)
|
Freedom of Religion
|
Spiritual Purification (jihad al akbar)
|
Personal
relationship with God (Taqwa and Hubb)
|
|
Repentance
and forgiveness (tauba and ghafr or maghfirah)
|
|
Kindness
and softness with others (haina wa laina)
|
|
Peaceful
reconciliation
|
|
Good
deeds (a’mal al salihat)
|
|
Unity
in Diversity
|
Equality
in human dignity
|
|
Universal
conditions for salvation
|
|
Equality
of prophets
|
|
Diversity of legal systems:
-
shar’: universal
principles of normative law (maqasid) for all communities;
-
shar’ah / minhaj:
individual communities, e.g., separation of church and state”; and
-
shari’ah: for Muslims
only, -including specific punishments
|
Chart
5.2
Universal
Principles of Human Rights and Responsibilities
II.
Respect for the Human Person
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
2.
Respect for the Human Person
(Haqq al Nafs)
|
Respect for the Human Soul
(Haqq al Nafs and
Haqq al Ruh)
|
Personal
spiritual renewal
|
|
|
Peace Making and Peace Keeping
|
Societal
renewal (tajdid)
|
|
|
Peace
through justice (jihad al kabir)
|
|
|
Conflict
resolution
|
|
|
Respect for Life
(Haqq al Haya)
|
Doctrine
of the just war (limits on the use of violence to protect the human rights of
self and others)
|
Just
Cause and Intent
|
|
Violence
only in self defense
|
|
Legitimate
authority
|
|
Last
resort (attempts at conflict resolution must precede use of violence)
|
|
Probability
of success (realistic assessment of the threat and consequences)
|
|
Benefits
must exceed the harm
|
|
Minimize
civilian casualties
|
|
Cessation
of hostilities on offer of peace
|
|
Protection
and return of prisoners of war
|
|
|
Avoidance
of vengeance after war
|
|
|
Duty to Protect the Unborn
|
Recognizing
that God provides for all.
Recognizing
the rights of the unborn.
Stressing
the role of marriage and family
|
Abstinence
education to prevent pregnancy outside of wedlock
|
|
Foster
Care
|
|
|
Chart 5.3
Universal
Principles of Human Rights and Responsibilities
3. Respect for Family & Community
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
3.
Respect
for Family & Community
(Haqq al Nasl)
|
Personalism:
Every
community gets its meaning and sovereignty from its individual members, each
of whom is subject to the ultimate sovereignty of God.
|
A community with a common sense of
the past, common values in the present and common hopes for the future should
have legal standing in international law.
|
Right
to economic self determination
|
|
Right
to political self determination
|
|
Right
to International Recognition
|
|
Sacred
Nature of Marriage
|
Equal
Rights
|
Right
to own property
|
|
Rights
to choose a spouse
|
|
Equal
right to divorce with different procedures
|
|
Right
to education
|
|
Right
to work
|
|
Right
to community leadership
|
|
Equal
access to a Masjid
|
|
Equal
Responsibility
|
Equal
responsibility to care for the elderly
Equal
responsibility for household chores
|
|
Separate
Responsibility
|
Inheritance
based on different responsibilities by gender (See Appendix J and Chapter 14)
|
|
Women’s
right to retain and spend own earnings
|
|
Women’s
primary right to custody of young children
Women’s
primary responsibility to nurture young children
Men’s primary responsibility to provide for
personal and financial security of the family.
|
Chart 5.4
Universal
Principles of Human Rights and Responsibilities
4.
Respect for the Environment
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
4.
Respect
for
the Environment
(Haqq
al Mahid)
|
Stewardship
of creation (khilafa)
Respecting
the balance of all that God has created
Respecting
the Sacredness of nature
Preserving
Ecological Diversity
Preserving
the Ecological Balance (mizan)
|
Conducting
Scientific Study of Life
Creating
Awareness of the Issues through Education
Conducting
Cost-Benefit Analysis
Shaping
Environmental Policy
Developing
Institutions
Developing
Environmental Laws
|
Implement
conservation policies:
•
Protect the Atmosphere
•
Protect Water Resources
•
Protect the Forest
•
Develop alternative energy resources
•
Develop Organic Farming
•
Limit the use of harmful pesticides
•
Limit use of chemical fertilizers.
·
Limit nuclear weapons
·
Limit deep-well drilling
·
Protect Wildlife
|
Chart 5.5
Universal
Principles of Human Rights and Responsibilities
5. Respect for Economic Justice
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
5.
Respect
for Economic Justice
(Haqq al Mal)
|
Personal Responsibilities
(Fard ‘Ain)
|
Personal
Ethics
|
Avoid
immoral economic activities (bribery, unfair trade practices, gambling, sale
of alcohol, pork, etc.)
|
|
Concern
for the Poor
|
Charity
for the poor (Zakat and Sadaqa)
Interfaith
and broad community volunteering
|
|
Respect
the sacred nature of private ownership of the means of production.
Broaden
capital ownership
|
Remove
barriers in access to capital credit
|
|
Introduce
pure credit based on prospective future wealth
|
|
Tax
reform
|
|
Two-tier
monetary policies to eliminate interest on self-financing loans
|
|
Capital
homesteading for individuals and for Community Investment Corporations
|
|
Provide
a Safety Net for the Disadvantaged
|
Institution
building
|
|
Universal
Health Care
|
Institution
building
|
Chart 5.6
Universal
Principles of Human Rights and Responsibilities
6. Respect for Political Justice
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
6I.
Respect for Political Justice
(Haqq al Hurriyyah)
|
Responsibility of Leaders and Followers to
God
(Khilafa)
|
Practice
Virtue in Public Life
|
Education
to develop an awareness of God and virtue
|
|
Participatory Political Democracy
(Shurah)
|
Open
and Responsive Political System
|
Institution
building (broadly representative parliaments)
|
|
Consensus Building Among Community Leaders
(Ijma)
|
Through the Six Estates:
|
Leverage
the strengths of all institutions to bring out the best for the good of all.
|
|
Executive
|
|
Legislative
|
|
Judicial
|
|
Media
|
|
Think
Tanks & Foundations
|
|
Academia
|
|
Independent Judiciary
|
Equal
Justice Under the Law (‘Adl)
|
Institution
building
|
|
Freedom of movement, residence, and
citizenship
|
Policy
formulation
|
Institution
building
|
Chart 5.7
Universal
Principles of Human Rights and Responsibilities
7. Respect for Human Dignity
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
7.
Respect for Human Dignity
(Haqq al Karamah)
|
Gender Equity
|
Right
to own property
|
Build
social consensus for recognition, respect, and implementation of these rights
for women guaranteed by Islam more than fourteen centuries ago.
|
|
Rights
to choose a spouse
|
|
Equal
right to divorce with different procedures
|
|
Right
to education
|
|
Right
to work
|
|
Right
to community leadership
|
|
Equal
legal right to be a witness, originally limited for women in commercial transactions
|
|
Equal
access to a mosque
|
|
Respect for all of the Principles of
Islamic Law
|
Divine
Revelation
|
Institution
building
|
|
Respect
for the Human Person
|
|
Family
& Community
|
|
Environmental
Justice
|
|
Economic
Justice
|
|
Political
Justice
|
|
Human
Dignity
|
|
Knowledge
|
Chart 5.8
Universal
Principles of Human Rights and Responsibilities
8. Respect for Knowledge
|
PRIMARY
(Maqasid-
Purposes)
|
SECONDARY
(Hajjiyat- Goals)
|
TERTIARY
(Tahsiniyyat -
Objectives)
|
ILLUSTRATIVE
ACTIONS
(A’mal)
|
|
8.
Respect for Knowledge
(Haqq al ‘Ilm)
|
Duty to Seek Knowledge
|
Divine
Revelation (Wahy)
|
Apply
the knowledge through Ijtihad in
order to pursue the good and avoid the bad. (amr-bil-ma’ruf and nahi an al munkar[2])
|
|
Natural
Law (‘Ain al Yaqin)
|
|
Rational
Thought (‘Ilm al Yaqin)
|
|
Freedom to Acquire Knowledge
|
Policy formulation
regarding:
Freedom
of Speech
|
Legislation
for implementation
|
|
Freedom
of Press
|
|
Freedom
of Assembly
|
|
Duty to Share Knowledge
|
Outreach
Policy and Planning to preserve and expand knowledge
|
Teach
by Example
Build
Educational Institutions
|
The above charts give a bare outline of the
universal principles of Islamic jurisprudence, known as the maqasid al shari’ah. The ethical framework of the guiding juristic
principles in Islam is the good of the community, known as maslaha mursala. These principles originate from human
reasoning in the form of induction from what Islamic jurisprudents consider to
be the three sources of knowledge, which provide the usul al fiqh or
roots of legal reasoning. These are haqq
al yaqin, which is the sum of all the divine revelation to all of the
prophets throughout human history, ‘ain al yaqin, which is scientific
observation of the material world, and ‘ilm al yaqin, which is the use
of human reason to understand the first two sources.
An even higher paradigm of normative law
beyond the maqasid al shari’ah is sometimes called metalaw. This is based on reversing the Golden Rule,
which is found in all the world religions based in each case on an original
context of intra-civilizational rather then inter-civilizational
interaction. This original Golden Rule
reads, “Do unto others as you would have them do unto you”. Under the moral guidelines of a still higher
metalaw, the Golden Rule might read, “Do unto others as they would have done
unto themselves”. This could provide
guidelines for new disciplines in the study of peace, prosperity, and freedom
through faith-based, compassionate justice.[3]
In the face of conflicting forces, this
framework also could serve as a blue print for actions required to establish a
just society, provided there is real desire to do so as crystallized in the
parable of the two wolves.
One evening
an old Cherokee told his grandson about a battle that goes on inside
people.
He said, "My son, the battle is between two wolves inside us all". "One
is Evil - It is anger, envy, jealousy, sorrow, regret, greed,
arrogance, self-pity, guilt, resentment, inferiority, lies, false pride,
superiority, and ego". "The other comes from God - It is
joy, peace, love, hope, serenity, humility, kindness, benevolence, empathy,
generosity, truth, compassion, and faith.” The grandson thought about it for a
minute and then asked his grandfather: "Which wolf wins?” The
old Cherokee simply replied, "The one you feed."
IV. Fiqh: Rules and Regulations
A. Nature of Fiqh
Fiqh
or the rules and regulations of Islamic law gives further details on applying
the broad overarching principles of the Shari’ah, which generally are known as
the substance of Islamic jurisprudence.
Thus the Fiqh complements the Shari’ah and consists of the specific
rules and regulations that flow from the Shari’ah’s normative principles based
on the Qur’an and on the Sunnah of the Prophet Muhammad. Specifically, it deals with the observance of
rituals, morals, and social legislation.
A scholar who is trained in fiqh is called a Faqih (pl.,
Fuqaha).
While much of Islamic jurisprudence is derived directly
from the Qur’an or the Sunnah, there are areas on which these two basic sources
of guidance for Muslims are completely silent or at best ambiguous. In such situations, Islamic scholars used
either analogy (qiyas) or a consensus among scholars (ijma) to
settle an issue. The Shi’a avoided qiyas
because they thought that it is unnecessary within a system based on
normative principles. Differences of
opinion existed that have resulted in the emergence of different schools of
thought on various matters affecting performance of religious rituals and other
daily routines of Muslims’ lives.
Fiqh
rules are divided into four main parts:
1) Ibadat (on matters of worship, such as
prayer, fasting, and hajj.)
2) Mua'malat (on dealings and transactions among
people).
3) Hudud (punishments for crimes).
4) Qasas (rules of compensation for crimes)
As discussed in Chapter 1, Table 1.2, there are several
schools of thought or Madhahib led by different Muslim scholars or Imams who
interpreted the Shari’ah principles differently. There are four main schools of
thought among the Sunnis and two among the Shia. Map 5.1 below shows different
regions of the world where different madhabs dominate the daily practices and
observances.
B. The Four Sunni Schools of Thought
The
four schools (or madhahib) of Sunni Islam were each named by students of the
classical jurist who taught them. The Sunni schools (and where they are
commonly found) are
1. Hanafi (Syria,
Turkey, Pakistan, the Balkans, Central Asia, Indian subcontinent, Afghanistan,
China, and Egypt)
2. Maliki (North
Africa, the Muslim areas of West Africa, and several Arab states of the Khalij
(Persian or Arab Gulf)
3. Shafi'i (Arabia,
Indonesia, Malaysia, Maldives, Egypt, Somalia, Djibouti, Eritrea, Ethiopia,
Yemen, and southern parts of India)
4. Hanbali (Arabia).
These four schools share most of their rulings, but
differ on the particular hadiths they accept as authentic and the weight they
give to independent reasoning in making judgments.
The earliest Sunni school, the Hanafi, was established
under the jurist Imam Abu Hanifa, who was born and taught in Iraq. Imam Abu Hanifa (80A.H.–150A.H.), whose real
name was Nu'man ibn Thabit, was born in the city of Kufa (modern day Iraq) in
the year 80 A.H (689 A.D). Born into a
family of tradesmen, the Imam's family was of Persian origin. Under Imam Abu Hanifa, the witr prayer
was considered compulsory, and the Hanafis also differed with other schools in
relation to methods of making ablution, prayers, and payment of the tithe or
zakat. Imam Abu Hanifa also differed
from the other three schools in many areas, including the type of punishments
meted out for various crimes in Islam.
On the whole, the Hanafi School of jurisprudence could be said to differ
the most from the other three schools.
Students of Imam Malik established the Maliki School, of
which a majority now can be found in North Africa and some Persian Gulf states. Imam Malik, whose real name was Abu Abdullah,
Malik bin Anas, was born in Madina in the year 715 A.C. His ancestral home was in Yemen, but his
grandfather settled in Medina after embracing Islam. He received his education in Madinah, which
was the most important seat of Islamic learning, and where the immediate
descendants of Muhammad's followers lived.
Imam Malik was attracted to the study of law, and devoted himself to the
study of fiqh. His principal book, the Kitab
al Muwatta, is one of the earliest surviving books on hadith and fiqh. Differences under the Maliki school included
the fact that those following the Maliki school could state their purpose (or niyah)
once only for compulsory fasting, which is valid for the whole month of
Ramadhan, while for the Shafi'ii school one would have to state one’s purpose
every day of the month of Ramadhan for one’s fast to be valid the next day.
C. Shi'a Schools
The Shi'a
school, known as Ja'fari fiqh, followed by the Ithna ’Ashari Shias (Iran, Iraq,
Azerbaijan, Lebanon, Bahrain, Pakistan, India, and parts of Afghanistan and
Saudi Arabia), provides the fiqh (rules and regulations) propounded and
developed by the sixth Shi'i Imam, Imam Jafar Sadiq, the son of Imam Muhammad
Baqir.
The
fatwas, or time and space bound rulings of early jurists, are taken rather more
seriously in this school, due to the more hierarchical structure of Shi’a
Islam, which is ruled by the Imams. But, the jurisprudents are also more
flexible, in that every jurist has considerable power to alter a decision
according to his opinion.
The
Jafari school uses 'aql or "intellect" instead of qiyas
(the process of analogical reasoning used in the Sunni schools) when
establishing Islamic laws.
The fiqh
of the Zaidi school of law, followed by Zaidis (Yemen) is close to the Sunni
schools of thought.
V. A Thematic History of Islamic
Law
A detailed history of Islamic normative law is provided
in scholarly publications,[4]
but for the purposes of an introductory text three defining characteristics or
themes, namely, juristic independence, juristic pluralism, and juristic holism,
distinguish the shari’ah from Western
legal systems:
A. Juristic Independence
The shari’ah is “jurists’ law”, not “state law” as in the
West. The shari’ah was developed over a
period of decades and centuries by legal scholars from analysis of the Qur’an
and the normative practice or sunnah of the Prophet Muhammad, rather than by
decree from governmental rulers. In
fact, the great Muslim jurisprudents developed the Islamic legal system
primarily in opposition to political rulers, which is why most of them were
imprisoned for years and decades.
The different madhabs (pl. madhahib) or schools of
law, originally as many as twenty, of which only five major ones survived,
developed defensively as a means to protect juristic law as an exclusive
repository of legal authority. The
various Muslim empires or polities did not make law or possess their own bodies
of law.
This contrasted with European legal systems, in which the
corporate state exercised a monopoly over the enactment and interpretation of
law. In America, the legislature was to
make the laws, the executive branch was to carry them out, and the judicial
branch was to assure that the executive branch did so. Prior to the Treaty of Westphalia in 1648,
the Catholic Church exercised authority through the concept of natural law,
which resembled the Islamic concept of law.
In 1648, however, the concept of the corporate state became the highest
authority, replacing any source of law other than its own power.
Although the Shi’a maintained a system of higher
authority vested in imams independent of the State, the Sunnis maintained a
system based on the concept that the infallible authority of the Prophet
Muhammad passed upon his death to the interpretative community, which was bound
only by its own consensus, often militantly independent of the governing
political power.
This,
indeed, was why the great jurist, Ibn Taymiya, declared that the Islamic
caliphate was not a political institution but merely a consensus among the
jurists and wise men on justice.
B. Juristic Pluralism
The Islamic schools of law originated also to protect
pluralist interpretations of the major sources (Qur’an, ahadith, and Sunnah)
against centralizing imperial power. The
various schools of law differed sometimes substantially among themselves, but
they all recognized each other as equally legitimate interpreters of both
guiding norms and applied regulations.
They agreed that
time and place are important in applying the shari’ah, which is why, for
example, the Malikis emphasized the practices in Madinah as authoritative,
whereas the Hanafis emphasized the use of reason to adapt the interpretation of
the sources to different cultures and circumstances.
Unfortunately, the bureaucratic tendencies in the various
madhabs after the first Islamic centuries led to the practice of taqlid or reverence for the past and its
precedents, which undermined the protection of creativity that had originally
given rise to the madhhab phenomenon.
Only during the past century has the creativity of the early Islamic
jurists been matched or even exceeded by contemporary jurisprudents, who are
seeking to further develop the system of normative principles known as the maqasid al shari’ah or universal
essentials of compassionate justice as a paradigm best suited to address the
intractable problems of the modern world.
C. Juristic Holism
Unique in Islamic jurisprudence among all of the world’s
legal systems is its holistic or paradigmatic approach to transcendent
justice. This may be considered to be
the essence of Islam as a religion, because Islamic normative law is a product
of truth, love, and justice.
The maqasid al shari’ah, which spell out the
applicable principles of transcendent justice, were first pioneered by the
Prophet Muhammad, salla Allahu 'alayhi wa salam, together with his
student, ‘Ali ibn Ali Talib, 'alayhi as-salam, as basic to the
ordering of society in the pursuit of justice.
The origin of normative law in Islamic thought, according to Shaykh Taha
Jabbir al Alwani, a member of the World Fiqh Council in Makkah, in his book first
published in 1991 by the International Institute of Islamic Thought, Usul
al Fiqh al Islami: Source Methodology in Islamic Jurisprudence, can be
traced back to the practice of Prophet Muhammad and of Imam 'Ali. The Prophet used to gather his knowledgeable
companions or sahaba and put to them for judgment test cases, both
actual and hypothetical. When each gave
his judgment, the Prophet would comment, "I care less about what you have
concluded than about how you reasoned to your conclusion". Imam 'Ali, 'alayhi as salam, always
traced his judgment back to basic principles.
Some
early jurists, beginning with Imam Jafar al Sadiq (died 148 A.H.), the founder
of the first madhab or school of Islamic law, used rationally derived
principles to explain specific verses of the Qur'an, and from the very
beginning the early Muslim scholars examined the substance or matn of
important ahadith in order to evaluate their coherence with the Qur'an. Nevertheless, according to Dr. Jasser Auda,
in his erudite and comprehensive, 347-page, systems analysis of the maqasid,
entitled Maqasid al Shari'ah as Philosophy of Islamic Law: A Systems
Approach, IIIT, 2008, page 16, "The first known monograph
dedicated specifically to the maqasid was written by Ibn Babawayh al Saduq al
Qummi, one of the main Shi'a jurists of the fourth Islamic century, who wrote a
book of 335 pages on the subject, entitled 'Ilal al Shara'i. This was translated into English, but
never published, by Nasir Shamsi, who was a founder of the Universal Muslim
Association of America (UMAA) and was a principal peer-reviewer of this book on
Islam and Muslims.
This
iterative inductive/deductive systems analysis was the central focus of
classical Islamic thought of the third through seventh Islamic centuries, but
has been moribund or even dead for six centuries until recent times in most of
the Muslim world.
In undertaking the exploration of
normative law as perhaps the clearest expression of the Islamic essence, one
needs, like Ibn Khaldun, to look at the big picture and ask the big
questions of purpose, which go far beyond the purview of modern science. Does any of us have a purpose other then mere
survival? Does the world have any purpose? Do persons and
communities have any purpose in the larger world? We cannot avoid such
questions, because to ask them is part of our human nature.
It is no accident that the most popular
poet and teacher of purpose everywhere in the world today is Maulana Jalal al
Din Balkhy, known as Rumi. He lived in an era similar to our own, an era
of chaos and destruction, which was brought on by the Mongol invasion of his
homeland in what is now Afghanistan. This is said to have brought on the
destruction of all civilization and all purpose in life other than simple
survival.
What was his reaction to all of
this? As explained in the translation and commentary by Majid M.
Naini in his book, Mysteries of the Universe and Rumi's Discoveries on
the Majestic Path of Love, Universal Vision and Research Press, Florida,
2002, Rumi spent a lifetime teaching that there is no death, that life is an
everlasting journey through time and space within this universe and then beyond
in timelessness. This current life is like a dream and when our bodies
die, it is then that we feel awake. Rumi wrote, “My religion is to
be alive from Love. Being only physically alive is a disgrace.” He taught that the unending and open-ended
search for ultimate truth is universal and that this search is a product of
love. Dr. Naini emphasizes Rumi’s teaching that love is the reason for
the creation of the universe. Rumi ended one of his poems with the words,
“Were it not for love, the world would perish.” This was Rumi's answer at
a time when Ghenghiz Khan was carrying out a holocaust that wiped out half the
population of Persia.
This emphasis on God’s love and on
the individual person’s natural loving response is found throughout the Qur’an
and provides the basis for the holistic nature of Islamic law, which is merely
the expression of truth, just as ultimate truth is a manifestation of the Being
of God.
Oddly, the centrality of love in
Islam as its inner essence is precisely what its detractors insist does not and
cannot exist. The word Islam means
submission to God but implies both love as the means to submission, as well as
the resulting peace. The Qur’an often
uses the term taqwa, which means loving awareness of God. The common word for love, hubb, as the
basis for the reciprocal relationship of love intended between God and the human
person first appears near the beginning of the Qur’an in the second chapter, Surah
al Baqarah 2:165: “Those who have attained to faith love Allah
more than all else”.
The
combination of God’s love and mercy first appears in the next chapter, Surah A-li ‘Imran
3:31, which introduces
the Virgin Mary and the “Word from God,” Jesus, whose message is renewed by
Muhammad. The Prophet Muhammad is
instructed to say: “If you love God (in tuhibbuna Allaha), follow me, and Allah will love you (yuhibkum Allahu) and forgive you your sins,
for Allah is much forgiving, a dispenser of grace”. The term hubb is first used in conjunction with taqwa in 3:76, fa ina Allaha
yuhibu al mutaqin, “for Allah loves
those who live in awe of Allah’s love”.
The
first complete listing in English of all terms in the Qur’an referring to love
may be found in the Concordance of the Qur’an in English by H. E. Kassis, University of
California Press. In addition to hubb it also lists the related
terms radiya,
shaghata, and wadud (waada and wadda).
A
favorite prayer of Prophet Muhammad and of countless generations of Muslims for
more than fourteen hundred years has been Allahumma, asaluka hubbaka wa
hubba man yuhibbuka wa hubba kuli ‘amali yuqaribuni ila hubbika, “O Allah,
I ask you for your love, and for the love of those who love you, and for the
love of everything that can bring me closer to your love.”
VI.
The Essence of Normative Islam:[5]
A. Challenge
and Response
The Islamic concept of normative law as
developed in the first three sections of this chapter above may be considered
to form the essence of Islam as a justice-oriented religion. It derives from the unending search for
absolute truth, which is transformed through love into a search for
justice.
This
three-fold search is considered to be part of the fitra or natural instincts of
every person and of every traditionalist community, which is why it can help
address the major challenges in the world today. Perhaps the major challenge is to
rehabilitate the role of religion as a primary cure for conflict and
oppression, rather than as its primary cause. One of the major obstacles
to reviving appreciation for transcendent reality as the source of peace and
freedom is the current academic fascination with deconstructing religion by
denying that all religions have the same essence or that any religion even has
an essence.
In the
case of Islam, the major obstacle to rehabilitation has been the ideological
movement of modernization, one trend of which seeks to hijack Islam
for political purposes under the fraudulent disguise of returning
to origins. The extremists in this de facto modernization movement
are assisted by the so-called Islamophobes who claim not that there is no
essence of Islam but rather that the true essence of Islam denies truth, love,
and justice, and that therefore in Islam truth, love, and justice do not and
cannot exist.
This de facto alliance between the
Muslim extremists and the extremist opponents of Islam poses a challenge to all
religions, but especially to Muslims who want to rehabilitate Islam by
disassociating themselves from the most common Muslim perversions of it in
order to bring out the best of Islam and counter the worst of its Islamphobic
challengers.
Every challenge brings on a
response. The biggest challenge is how to be properly responsible,
that is, how to become able to respond. The rise and fall of persons,
communities, and entire civilizations depends on challenge and
response. The challenge to religion in the world, and especially to
Islam requires a response adequate to the challenges both from within and from
without.
Muslims are all familiar with the blatant
distortions by professional Islamophobes of the Qur’an and of the Prophet
Muhammad’s teachings and practice. Any knowledgeable Muslim can easily counter
the simplistic claims that Muslims are bandits and are programmed by their
vicious cult to kill the infidels, meaning anyone who opposes their presumed
plans of global conquest. A point by point scholarly response to these
attacks is provided by Crane (2010).[6]
More
important as a fundamental challenge is the more sophisticated new generation
of articles and books that attack the essence of Islam or claim that there is
no such thing.
The issue of whether there is an essence
of any religion, much less a common essence among all religions, has been
addressed by perhaps the most profound Christian theologian in the world today,
Hans Kung, in his trilogy on the paradigmatic periodization of religion,
especially in his 767-page book, Islam: Past, Present, and
Future. His conclusion is attractive, namely, that Islam is
necessarily different from one century to the next and from one country to
another, and that therefore Islam does not exist either ontologically or
epistemologically qua religion as either a subject or object in human history.
This
relativistic approach is best evidenced in the popular advocacy by so-called
"progressivist" or "liberal" or "secular"
Muslims, who say that Islam must be reformed. Marshall Hodgeson in his
magisterial set of tomes, entitled The Venture of Islam, published
in 1970, properly distinguished Islam from Islamdom, just as one distinguishes
Christianity from Christendom. Certainly, Muslims should be reformed,
because Muslims are the actors in Islamdom, but reforming the timeless essence
of Islam would remove the basis for any greatly needed reformation of Muslims
in the world.
The
issue of essence is best discussed in the context of Islamic normative
jurisprudence, known as the maqasid al shari'ah' as presented
in this chapter. The danger in
conflating Islam with Muslims by denying the possibility of any essence in
religion derives from the academic passion for deconstructing anything that
might have absolute meaning or reflect absolute truth as an object of heuristic
exploration. If Islam is strictly contextual, it can be manipulated
to become whatever individual Muslims might conceive it to be in
order to justify their actions, no matter how un-Islamic other Muslims may
claim them to be.
The Islamophobes say that Islam does have
an essence, and that this essence is evil. The more sophisticated
argument is that Islam, like all religions, evolves or devolves in
response to the changing needs, threats, and opportunities of time and
place. This argument stands behind the claims even by Muslims that
Islam must be reformed into a more appropriate religion for the modern world,
in contrast to those Muslims, the majority, who say that Muslims must be
reformed, not the religion.
One
answer to the contention that there is no such thing as a classical Islam and
that therefore no such thing as the essence of the Islamic heritage is to look
at Islam from the axiological perspective of jurisprudence, namely, ‘Ilm
al ‘Adl. This discipline of thought and action is merely a
product of a higher dimension of reality, known as taqwa or
loving awe of God as the source of truth, love, and justice. The Prophet Muhammad emphasized the
importance of seeking truth and justice, but he posited the motivation for the
search in the constant Qur’anic emphasis on love, as developed in Crane
(2010), The Natural Law of Compassionate Justice: An Islamic
Perspectoive.
B. The Spiritual Basis of Community
Self-Determination
The search for truth, love, and justice
is basically the issue of human responsibilities and rights, which has been
developed in Islamic thought over the centuries more systematically than in any
other religion or culture as the secret to civilizational rise and
fall. Classical Islamic thought of the third through seventh Islamic
centuries recognizes at least eight transcendent issues that serve as secondary
paradigms in the search for truth and its translation into justice. Each
of them serves to articulate the essence of Islam, because they are universal
in one way or another in every world religion. These issues and the
response to them shape the rise and fall of civilizations.
For example, the issue of haqq al
nasl, as one of the eight principles, requires respect for the
sacredness of the family and of the communities that derive from
it. This has been developed in a forthcoming book.[7]
This issue of "group rights" is
slowly gaining recognition in international law, but it has powerful opponents
in those whose self-interest is based on state sovereignty as the source of
ultimate authority. This principle of manmade sovereignty provides
the justification for the concept that might makes right. It therefore
delegitimizes the wisdom that right makes might.
One of the biggest questions in
both foreign and domestic policy is whether the drive for stability through
uniformity should triumph over the search for peace, prosperity, and freedom
through diversity. Should the imposition of centralized government
through the monopoly of coercion inherent in state sovereignty crush the human
search for both personal and group identity? And who has the right
to decide on these issues, and on what basis?
Denial of the family and of its
expression in larger communities as the moral basis of human life is seen most
clearly in those who ascribe collective guilt to Muslims as inherently
terrorist, or to Germans as inherently Nazis, or to Jews or to any
other human community as genocidal. Such moral collectivists, who
deny the legitimacy of any natural or organic community of human beings by
ascribing guilt to all because of the crimes of a few, are attacking the right
of communities and of their individual members not only to existence but to the
much more important right to dignity as creations of God.
In the current era of incipient
totalitarianism, those who want to use force to stamp out the existing or
imagined "other" are no less totalitarian than their imaginary
enemy.
Muslims are no exception. Some want unity in
their own organizations by imposing uniformity. Some want to impose a
global caliphate to impose their own view of justice, even though this would
violate all the basic premises of classical Islamic jurisprudence on human
responsibilities and human rights.
Some of these Muslims invoke the
teachings of the great scholar Ahmad ibn Taymiyah (1263 – 1328 A.C.) by
perverting his essential teachings on justice in order to support their
caliphatic delusions. Ibn Taymiyah wrote shortly after the Mongol
invasions when the political rulers of the day insisted that their own
tyrannical power was the only way to maintain what we nowadays would call
"national security". He insisted that the Islamic
caliphate was not a military institution, nor even a political one. He
taught that the Islamic global caliphate was exclusively the consensus of the
leading scholars and wise men on the purpose of human life. His basic
message was that destruction of a civilization by its own leaders was no way to
save it.
What was the solution to the chaos of
his day? He was not alone in insisting that the ultimate salvation to the
global chaos of his or any other century lies in the unending search for truth,
love, and justice.
In undertaking the exploration of
normative law as perhaps the clearest expression of the Islamic essence, we
need, like Ibn Khaldun, to look at the big picture and ask the big
questions of purpose, which go far beyond the purview of modern science. Does
any of us have a purpose other than mere survival? Does the world have
any purpose? Do persons and communities have any purpose in the larger
world? We cannot avoid such questions, because to ask them is part of our
human nature.
It is no accident that the most popular
poet and teacher of purpose everywhere in the world today is Maulana Jalal al
Din Balkhy, known as Rumi. He lived in an era similar to our own, an era
of chaos and destruction, which was brought on by the Mongol invasion of his
homeland in what is now Afghanistan. This is said to have brought on
the destruction of all civilization and all purpose in life other than
simple survival.
What was his reaction to all of
this? He spent a lifetime teaching that there is no death, that life is
an everlasting journey through time and space within this universe and then
beyond in timelessness. This current life is like a dream and when our
bodies die, it is then that we feel awake. Rumi wrote, “My religion
is to be alive from Love. Being only physically alive is a disgrace.” He
taught that the unending and open-ended search for ultimate truth is
universal and that this search is a product of love. He declared
that love is the reason for the creation of the universe. Rumi ended one
of his poems with the words, “Were it not for love, the world would perish.”[8]
This was Rumi's answer at a time when Ghenghiz Khan was carrying out a
holocaust that wiped out half the population of Persia.
This is one of many paradigms of purpose
in human life. Another is known as Secular Humanism, which is an ideology
that calls for worship of the Imperial Self. Another is Cosmic Humanism,
which worships the physical cosmos as a sentient being, of which we are an
indissoluble part. Another was Marxism-Leninism, which may be defined as
worship of collective man in the form of the State, which may be
regarded as the "perfect storm" in the assault on human dignity and
group identity.
The teachings of Rumi may be known in
Islam as the paradigm of ihsan, which is loving awareness of Allah
through awareness of one's own transcendent self, the ruh, so that
one's actions will aim not toward the good but toward the best. This
paradigm of purpose was described by Pope John Paul II as “personalism,” which
is the dignity of the person as a manifestation of the divine created by and in
the image of the Source, otherwise known as God. This reflects the
transcendent wisdom of St. John of the Cross, Maimonides, and the
Lord Buddha, who represent the other three major world religions as invoked in
the Qur'an.
This paradigm of purpose was best
described perhaps by the Trappist monk, with whom as a Franciscan I used
to correspond forty years ago, Thomas Merton. He declared, “Your true
identity is the person that God created you to be. So become it.”
This is your purpose. And the same is true of the communities that
reflect the identities of their members. This is true therefore of entire
civilizations. Just as every person has a transcendent purpose, so too do
entire civilizations.
Civilizations fall when they are
exploited by hypocritical, unjust, and vengeful persons organized in
institutional centers of organized power, corruption, and oppression, especially
when all this is done in the name of religion and God. This is why so
many people say they do not believe in God. Whenever anyone says that
they do not believe in God, one should ask them, “Tell me about this god that
you do not believe in.” Ultimately, we
end up agreeing in our love of truth, beauty, justice, mercy, and freedom,
which is the transcendent reason for our existence and both the cause and
purpose of every flourishing civilization.
C. Civilizations and Community as
Paradigms of Thought
This raises the question: What is a
civilization? A civilization is the highest form of human self-identity
other than our human species. Toynbee stated that the first person
ever to have looked at entire civilizations as actors in history was the
Muslim, Ibn Khaldun, who lived a century after Rumi. Modern Western
scholars consider Ibn Khaldun to be the first secular sociologist and
historian, but, in fact, he was profoundly spiritual and a great Islamic
scholar.
He introduced the concepts of both
civilizational essence and civilizational interchange. He said that the
dynamic of civilizational rise is community identity or asabiya.
This can be destructive if it takes the form of exclusivist tribalism, which is
the pursuit of one’s own power at the expense of others. In contrast,
community identity can be constructive if it takes the form of learning from
others in competition to benefit everyone.
The Qur'an emphasizes this positive
aspect of group identity inherent in diversity, beginning with the smallest
community in pairs. Surah Ya Sin 36:36 addresses the
polarity and mutual attraction in all physical creation: "Limitless in His
glory is He who has created opposites in whatever the earth produces, and in
men's own selves, and in that of which they as yet have no
knowledge". Surah al Dhariyat 51:47-49 tells us,
"And it is We who have built the universe (sama'a) with Our
creative power, and verily it is we who are steadily expanding it. And
the earth we have spread out wide - and how well we have ordered it. And
in everything have we created pairs (zawjayn), which some linguists
translate as "opposites", so that you might bear in mind that God is
One". This word as an abstract noun, zawjiyah, means
harmony or the mutual interdependency of opposites as the foundation of the
universe.
Surah al Ra'd 13:3 states,
"And it is He who has spread the earth wide and placed on it firm
mountains and running waters, and created on it two sexes of every kind of
plant; and it is He who causes the night to cover the day. Verily, in all
this are messages indeed for people who think". In Surah al
Shura 42:11, we read, "He is the Creator of the heavens and the
earth. He has made for you pairs from among yourselves, and pairs among cattle.
By this means he multiplies you. There is nothing whatever like Him, and
He is the One that hears and sees all things".
The dialectic of opposites produces a
unity of attraction in larger communities, which, in turn, produces a still
higher dialectic and a still higher unity. In Surah al Nahl 16:68 we
are reminded not merely of pairs but of entire communities as building
blocs of nature. "And your Lord taught the bee to build its
cells in hills, on trees, and in human habitations". One of the key
verses in the Qur'an, Surah al An'am 38 reads: "… There is no beast that
walks on the earth and no bird that flies on its two wings that is not a
community like yourselves".
In Surah al Hujurat 49:13,
we read, "O mankind! We created you from a single pair of a male and a
female, and made you into nations and tribes, so that you may know each
other." Surah al Ma'ida 5:48 teaches us:
"To each among you have we prescribed a Law and an Open Way. If
God had so willed, he would have made you a single Community (umma), but His
Plan is to test you in what He has given you, so strive as in a race in
all virtues. The goal of you all is to God".
In Surah Al-i 'Imran 3:103,
God urges the different tribes of the interfaith umma in
Madina to join in a single federation: "And hold fast together, by the
rope which God stretches out for you, and do not be divided among
yourselves". In the same surah, verse 200, we are advised, "O
you who believe! Persevere in patience
and constancy. Vie in such perseverence. Strengthen each other, and
remain in loving awe of God so that you may prosper".
In his footnote 5461 to verse 62:9
of Surah al Jumu'a, The Assembly, Yusuf Ali beautifully
explains the beauty of community identity and coherence embodied in the Friday
Prayer and in the Hajj as central to Islamic belief and practice, wherein the
diversity of human beings and their separate communities serves to glorify the
Oneness of their Creator.
Ibn Khaldun also pioneered the
interactive approach to the study of civilizations by showing that
civilizations do not exist as separate entities but borrow from each other in a
process of civilizational enrichment. This indeed is the dominant motif
throughout the five-thousand-year history of the Holy Land. Ibn
Khaldun warned against the clash of civilizations, but taught that such clash
was the exception rather than the rule.
D. The
Natural Law of Faith Based Justice
The three major purposes that transcend
the pursuit of power, privilege, prestige, and wanton pleasure in any
civilization are: 1) justice, known in Qur’anic Arabic as ‘adl, 2)
balanced order, known as mizan, and 3) freedom of religion, known
by some as haqq al din.
Islam is known as a religion of
peace, salam, which comes from submission to the only Being worthy
of human submission, namely, God. In classical Islamic thought, as
developed from the third through sixth Islamic centuries, peace as the essence
of Islam results from justice, and justice is merely the expression of truth.
The most profound verse in the Qur’an as a source of faith-based justice is Surah
al An’am 6:115, “The Message of your Lord is completed and perfected in
truth and in justice.” This teaches that
justice is an expression of truth and that truth originates in the transcendent
order of reality, indeed from the Being of God, not in man-made law.
Perhaps the second most profound verse
is Surah al Shura 42:17, which emphasizes the concept of balance,
known as mizan. This is central to all classical Islamic thought
in every aspect of both personal and social life. “It is God Who has
bestowed revelation from on high, setting forth the truth, and [thus given man]
a balance [wherewith to weigh right and wrong].” This verse of the Qur’an
teaches that divine revelation through the various prophets in human history is
considered to be a balance, an instrument placed by God in our hands by which
we can weigh all issues of conscience.
A third profound teaching of the Qur’an
is the importance and power of choice, of which the most important instance is
freedom of religion and the freedom to interpret divine guidance in the
practice of justice. The concept of choice is central, because, without
freedom to choose, neither balance nor justice would have any meaning. The
power to choose between good and bad is the greatest gift from the Creator
to the created, but it is also a profound test for every person, every
community, and nation, every civilization, and humanity itself.
The Qur’an emphasizes the importance of
the basic power to choose between purposes or higher paradigms of thought,
because the choice shapes the governing agendas of both persons and communities
and thereby controls action. According to the Qur’an, the choice that has
determined the rise and fall of entire civilizations throughout human history
is between the pursuit of transcendent justice and the pursuit of material
power as an ultimate goal in life.
The balance to be maintained in every
civilization as embodied in every world religion is among order, justice, and
freedom. This paradigm of balance teaches that order, justice, and
freedom are interdependent. When freedom is construed to be independent
of justice, there can be no justice and the result will be anarchy. When
order is thought to be possible without justice, there will be no order,
because injustice is the principal cause of disorder. When justice is
thought to be possible without order and freedom, then the pursuit or order,
justice, and freedom are snares of the ignorant.
Without consensus on the proper nature
of order, and of justice and freedom as essential parts of a single whole,
rather than as independent pursuits, no civilization can continue to
exist. The twin roles of religion in all of its traditionalist
manifestations, including the monotheistic and “revealed religions”, and
especially Islam, are the spiritual well-being or happiness of every person and
the maintenance of consensus on the responsibilities and rights necessary to
live in an ordered society.
E. Intellectual Jihad and the Essence
of Transcendent Justice
Students of comparative legal systems
differ on whether there is an essence to any particular religion and to any
given legal system, or whether each religion is an accumulation of human
practices and every legal system is a composite of accidentals developed in
response to changing exigencies.
Islam is by far the best example of a
religion that has very self-consciously developed a sense of its own
essence and sharply distinguished this from any perverted interpretation
and practice by self-professed Muslims. Whereas in Christianity the
essence is considered to be love, in Islam the essence is considered to be
justice as a product of love. As Michiel Bijkirk put it in an email
on May 18th, 2008, “Law in Islam has a soul or spiritual side.
Without that spiritual side, there is only the law, not justice.”
1. Ijithad –
Intellectual Jihad
In
Western positivist law, which by definition is entirely manmade, law exists
only to the extent that it is enforced. In Islam, if the law has to be
enforced it has failed, because the purpose of Islamic law is primarily
educational as a set of guidelines for action.
What are these
guidelines? Some of the best minds in human history developed this set of
guidelines over a period of many centuries. These guidelines are known as
the maqasid al shari’ah or purposes of the shari’ah, or as the kulliyat or
universal principles, or as the dururiyat or
essentials.
As presented in the Chart
5.1 at the beginning of this chapter, these may be categorized as the following
eight: haqq al din (freedom of religion), haqq
al nafs (respect for the human person and human life), haqq al
nasl (respect for marriage and human community), haqq al
mahid (respect for the physical environment), haqq al mal (respect
for the universal right to ownership of productive property), haqq al
hurriya (respect for the universal right of self-determination or
political freedom), haqq al karama (respect for human dignity,
especially gender equity), and haqq al ‘ilm (respect for the rights
to free speech, publication, and association).
Just
as important as the substance of these guidelines is their origin. How are they determined? The origins of
all Islamic thought are divine revelation, known as haqq al yaqin, observation of the sunnat Allah or laws of the universe, known as ‘ain al yaqin, and ijtihad or intellectual
processing, ‘ilm al yaqin to
reinforce the first two sources.
The scholars of Islam developed the
scientific method to study the coherence of the first two sources in the search
for truth, whereas the West copied this method in a more narrow search for
power.
The
scientific method in studying divine revelation, especially in the Qur’an, was
known as ijtihad or the intellectual jihad, which is one of the three jihads in
Islam and the only one specifically mentioned in the Qur’an, the other two
being the greatest jihad to purify oneself and the lesser jihad to defend the
human rights of oneself and others.
This
intellectual jihad focuses on studying the nazm
or coherence of the Qur’an, whereby every verse must be understood within the
context of its parent surah and each surah within the context of the
surrounding surahs, and each such group within the context of the entire
Qur’an.
The
meaning of each ayah must be explored also through the teachings in both
thought and actions of the Qur’an’s Messenger, The Prophet Muhammad. This gave rise in the second and third Islamic
centuries to new disciplines to authenticate the reliability of each hadith
through its chain of transmission or isnad
and through study of its matn or
coherence of its substance with the Qur’an.
Another means of understanding the Qur’an was to study the sunnah or life of the Prophet Muhammad
and the circumstances of his teachings in both thought and action in order to
give context both to the Qur’an and to the hadith. Still another means of studying divine
revelation was to make use of the wealth of stories handed down or invented
over the centuries. Unfortunately, these
were never subjected to the standards of authentication and Qur’anic guidance
that were required generally for the hadith generally and specifically for
assessing the hadith that were used at one time or another to legitimate the
hudud or punishments in Islamic law.
Ijtihad
serves also to apply the wisdom and teachings of the basic sources in practice,
which requires an equally rigorous methodology, particularly where the Qur’an and
hadith provide only general guidance, rather than the specifics as found in the
rules on ibadat or prayer, on
inheritance, and to a lesser extent on finance.
The
standard methodology accepted by all madhabib
or schools of law is to use analogy, known as qiyas, whereby a decision on a specific case may be based on its
similarity to a prior case.
Another
more sophisticated methodology to understand the Qur’an and apply it in
practice is to use ijtihad in understanding the general principles that derive
from the coherence of the Qur’an. This
was developed over the centuries within the framework of the good of the
community into what amounted to a code of principles known as maslaha mursala. This normative
methodology, which also includes the good of the individual person, can be used
for either judicial or public policy application.
2. Good of the community, maslaha mursala.
Three types of maslaha mursala are used, depending on the range of derivation
permitted from the basic sources in the Qur’an, ahadith, sunnah, and sirah.[9] The first of the three types is maslaha al mu’tabara, which is based
exclusively on an explicit hukm or
ruling in the basic sources.
Shafi’i and Al Ghazali recognized
only this strict use of maslaha.
The second and most widely used is
based on the principle of coherence in istislah.
This, like the first, is based on the values of Islam revealed in the
Qur’an and Sunnah, but they are identified by induction from the parts to the
whole.
The third is based on istihsan, which is derived from the word
hasan or good and means seeking a
preference for one principle or solution to an issue over another. This is rejected by some scholars as a source
of Islamic law and jurisprudential thought.
Istihsan is the most free-wheeling of the ‘usul al fiqh, but must be distinguished from the English equity,
with its own system of courts, as well as from the Arabic term, ra’y, which is nothing more than
personal opinion, however well informed.
The analysis of purpose resulting
from the more liberal istihsan can be
used to buttress the stricter istislah,
but the distinction must be preserved when one uses the maqasid al shari’ah or basic purposes of Islamic law as a framework
for public policy based on the modern art of “management by objectives”. One must be careful to assure that the
objectives are managing policy, rather than the other way around, as would be
the case when pragmatic political objectives begin to interfere with the
“agenda of Allah” and thereby corrupt the community.
3. Hikma As Spiritual Guidance
The
norms or guidelines of the shari’ah as a set of human responsibilities and
rights may be considered to constitute the essence of Islamic jurisprudence,
because they provide a sophisticated methodology for understanding the Qur’an
and evaluating the ahadith, so that the rules and regulations or ahkam can
be applied justly.
Nevertheless, there may in fact be two
essences of Islamic thought and law, one formative and the other derivative,
which must be maintained in a dialectical balance. One may think of human
rights as the intellectual essence, but this is an essential derivative of a
prior essence, which is love, both hubb and ‘ishq, coming from
beyond the human intellect. In systems terminology, there is an
input/output balance. The input is
transcendent, known as the batin, and the output is immanent,
known as the zahr. The combination is wisdom or hikma.
This is similar to the dialectic in all
of creation, but especially between the theory and practice of law. In
the intellectual processing, the theory should influence the practice, but the
practice should also influence the theory. In Islamic jurisprudence and
in Islamic thought generally, the theory itself comes from the transcendent
source of divine guidance, as best human beings can understand it in the
open-ended search for truth. But this understanding must also
reflect the experience of practice in a changing space-time universe. The
essence is indeed unchanging, but its application is or should be in constant
flux, because that is the nature of reality.
The controversial question then arises,
is there really a difference between thought and law, since law is the
basic framework of reference in Islamic thought, whereas in the Western
positivist paradigm human thought is the framework for law?
One might look at this new perspective
on the shari’ah by using the analogy of the hourglass. The shari’ah is
like an hourglass, which transmutes the transcendent into the immanent by means
of the art of intellectual processing. This processing from input to
output is what Allah in the Qur’an refers to as the jihad al kabir or
“great jihad,” the intellectual jihad, which is the only jihad mentioned in the
Qur’an, Surah al Furqan 25:52, wa jihidhum bihi jihadan kabiran,
“struggle with it [divine revelation] in a great jihad.” The other two,
the jihad al akbar and the jihad al saghrir, are
mentioned only in the ahadith.
Following the insights of Rumi, the
shari’ah would have two essences, the input of love and the output of human
rights. Without eternal input there will never be any lasting
output, since, as Rumi puts it, love is the reason for the creation of the
universe. Quite simply, who would care about justice unless one were
motivated by love? This, of course, would explain why in recent times justice
has gone out of style.
In
conclusion, it might be appropriate to remember the wisdom of “the throne
verse,” the Ayah al Kursi,Ya’alamu ma bayna ‘aydihim wa ma khalfahum;
wa la yuhituna bi shayin min ‘ilmihi illa bi ma sha’a,
“He knows all that lies open before men and all that is
hidden from them, whereas they cannot attain to any of His knowledge except
what He wills [them to attain]. (Surah Al Baqarah 2:255)
Review Questions
- Define each of the maqasid al
shari’ah and discuss its significance in the context of human rights?
2.
What is the foundation for human
rights in Islam?
3. Explain
the four-tiered structure of the principles and actions under the Shari’ah.
4.
What is
the Islamic Fiqh?
5.
Discuss
the history of the emergence of different madhahib in Islam.
6. How do the Islamic
dietary rules and regulations compare with similar injunctions in other faiths?
7. How do the Shi’a and Sunni traditions differ
with respect to the development and
implementation of Fiqh rules and regulations?
8.
What
is the essence of Islam?
Further Readings
Shaykh Taha Jabir
al-Alwani. Issues in Contemporary
Islamic Thought. London, Washington,
International Institute of Islamic Thought, 2005. 301 pp.
Taha Jabir al
Alwani. The Ethics of Disagreement in
Islam. Herndon, VA, 1993. 158 pp.
Taha Jabir al
Alwani. Source Methodology in Islamic
Jurisprudence: Usul al-Fiqh al-Islami. Herndon, VA, International Institute
of Islamic Thought, lst edition 1990, 3d ed. revised by Yusuf Talal DeLorenzo
and Anas S. Al Shaykh-Ali, 2003. 84
pp.
Muhammad al-Tahir
ibn Ashur, translated and annotated by Mohamed El-Tahir el-Mesawi. Ibn
Ashur: Treatise on Maqasid al Shari’ah.
London, Washington, International Institute of Islamic Thought,
2006. 489 pp.
Jasser Auda. Maqasid al-Shari’ah as Philosophy of
Islamic Law: A Systems Approach. London,
Herndon, VA, International Institute of Islamic Thought, 2008. 347 pp.
Laleh
Bakhtiar. Traditional Psychoethics
and Personality Paradigm: God’s Will Be Done.
Chicago, Kazi Publications, 1993. 160 pp.
Robert D.
Crane. The Natural Law of
Compassionate Justice: An Islamic Perspective.
Fort Washington, VA, Scholars Chair, 2010. 224 pp.
Khaled Abou El
Fadl. The Authoritative and the
Authoritarian in Islamic Discourses: A Contemporary Case Study. Austin TX, Dar al Taiba, Austin, TX, 2d
edition, 1997. 117 pp.
Khaled Abou El
Fadl. Speaking in God’s Name: Islamic
Law, Authority, and Women. Oxford,
2001. 361 pp.
Noah Feldman. The Fall and Rise of the Islamic
State. Princeton, 2008. 189 pp.
Maher Hathout. In Pursuit of Justice, The Jurisprudence
of Human Rights in Islam. Muslim
Public Affairs Council, 2006. 487 pp.
Mohammad Hashim
Kamali. Principles of Islamic
Jurisprudence. Cambridge, UK,
Islamic Texts Society, 1991. 417 pp.
Mohammad Hashim
Kamali. The Dignity of Man: An
Islamic Perspective. Cambridge, UK,
Islamic Texts Society, 2002 (1999). 118 pp.
Mohammad Hashim
Kamali. Shari’ah Law, An
Introduction. Oxford, One World
Publications, 2008. 342 pp.
Abu al Hasan al
Mawardi (died 1050 A.C.), trans. Wafaa H. Wahba. Al-Mawardi: The Ordinances of Government. Reading, UK, Garnet, The Great Books of
Islamic Civilization, 1996. 301 pp.
Yusuf
Al-Qaradawi. Approaching the Sunnah:
Comprehension and Controversy. Herndon, VA, International Institute of
Islamic Thought, 2006. 215 pp.
Ahmad al-Raysuni,
trans. Nancy Roberts, introduction by Taha Jabir al-Alwani. Imam Al-Shatibi’s Theory of the Higher
Objectives and Intents of Islamic Law. London
and Washington, International Institute of Islamic Thought, 2005. 441 pp.
Muhammad Baqir
as-Sadr, translated and introduced by Roy Parviz Mottahedeh. Lessons in Islamic Jurisprudence. Oxford, Harvard Center for Middle Eastern
Studies, 2005 (1978).208 pp.
Encyclopedia
of Islamic Law, A Compendium of Major Schools. Adapted by Laleh
Bakhtiar. ABC International Group, Inc.,
1996. 623 pp.
Endnotes
[1]
The Shi’i Aqida consists of the following five elements: 1) Tawhid, 2) ‘Adl
(Justice), 3) Nubuwwah (Prophethood), 4) Imamah (Intermediation
by the Imam), 5) Qiyamah (Day of Judgment).
[2] Follow the command of God: “and that there might grow out of you a community [of
people] who invite unto all that is good, and enjoin the doing of what is right
and forbid the doing of what is wrong: and it is they, they who shall attain to
a happy state!” (Surah ‘Al-Imran, 3:104)
[3] See the article by Robert D. Crane,
“Metalaw: The Ultimate Challenge,” in Humanomics: The International Journal
of Systems and Ethics, vol. 25, no. 5, 2010, which was shortened for
electronic publication in www.theamericanmuslim.org, December 20, 2009.
[4]
See Robert D. Crane, Rehabilitating the
Role of Religion in the World: Laying a New Foundation on the Natural Law of
Faith-Based, Compassionate Justice, Scholars Chair, 2010, Chapter One.
[5] This discussion on
the essence of Islam was adapted from an essay presented by Dr. Robert D. Crane at
The Prince Alwaleed Bin Talal Center for Muslim-Christian Understanding at
Georgetown University, Washington, DC on April 7, 2010, to introduce his book,
“The Natural Law of Compassionate Justice: An Islamic Perspective.”
[6] .Robert D. Crane, The
Natural Law of Compassionate Justice: An Islamic Perspective, Scholars
Chair, 2010, 224 pages.
[7] Robert D. Crane, Rehabilitating
the Role of Religion in the World: Laying a New Foundation on the Natural Law
of Faith-Based, Compassionate Justice, Global Vision,
2011. (Forthcoming)
[8]
These selections from Rumi are taken from the translation and commentary by
Majid M. Naini in his book, The Mysteries of the Universe and Rumi’s
Discoveries on the Mystic Path of Love, Universal Vision and Research
Press, Florida, 2002.
[9]
See Robert D. Crane, Part III, “The Search for Justice and the Quest for
Virtue: The Two Basics of Islamic Law”, in The
Sun Is Rising in the West, Muzaffar Haleem and Betty (Batul) Bowman, Amana,
Beltsville, Maryland, 1999, 317 pages, pp. 145-166
