The Shari’ah: Universal Principles of Human Responsibilities and Rights

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

Chart No.	Maqasid al Shari’ah Covered	Additional Reference
Chart 5.1	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
Chart 5.3	III. Respect for Family & Community (Haqq al Nasl)	Chapter 16: Democracy and Islam
Chart 5.4	IV. Respect for the Environment (Haqq al mahid)	Chapter 17: Ecology and Islam
Chart 5.5	V. Respect for Economic Justice (Haqq al Mal)	Chapter 6: Islamic Principles of Economic  and Social Justice
Chart 5.6	VI. Respect for Political Justice (Haqq al Hurriyyah)	Chapter 16: Democracy and Islam
Chart 5.7	VII. Respect for Human Dignity (Haqq al Karamah)	Chapter 15: Gender Equity
Chart 5.8	VIII. Respect for Knowledge (Haqq al ‘Ilm)	Chapter 18: The Role of Knowledge, Philosophy and Theology

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)

 Map 5.1 of the Muslim world with the main madhahib (madhhabs), retrieved from Wikimedia http://upload.wikimedia.org/wikipedia/commons/8/8d/Madhhab_Map2.png on March 31st, 2011.

Review Questions

1. 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

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[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