Archive for July, 2011

Fatwa in the Era of Globalization

Friday, July 29th, 2011

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #3

[This is the third in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]

Moderator: Abubaker Al-Shingieti
“Fatwa in the Era of Globalization”
Moustafa Kassem, Prof. of Islamic Studies, Effat University, Saudi Arabia

 

My goal is to discuss some issues regarding fatwa in the current world and for the future, approaching them from the standpoint of da`wa, so that those less informed than we can understand.   My first finding is that fatwa has a general and a religious definition in the Qur’an. The general or linguistic definition is a response to a request to make something clear. The first example is in Surat-Yusuf in which the Pharaoh asks his council for an explanation of his dream. Another example is when the Queen of Sheba asks her council for advice regarding the letter she receives from Solomon. The religious definition is a question for a religious ruling on a particular action. In response to such a question, the Prophet (saws) says an ithm (sin) is what bothers you in your heart, so that it is uneasy, even though people give you a fatwa that it is permitted.

The job of the mufti who gives the fatwa is not to give a decree, but to clarify an issue, and it is to the questioner to decide how to act on the advice. All actions that a responsible person may do fall into one of the five basic categories defined by the fuquha: wâjib or fard (mandatory), mustahib (preferable), mubâh (optional), makrûh (discouraged), or haram (forbidden). So when you hear someone say Islam is a complete way of life, it means the believer maintains an awareness of his Creator in all actions, whether in the category of traditional acts of worship (such as prayer and fasting) or outside traditional acts of worship. This many actions fall into the optional acts, such as whether to wear red or blue. The mufti gives you his opinion as to which category an act belongs.

Aisha characterized the Prophet’s life as the living Qur’an so the knowledge of his life is necessary, but it is not necessarily sufficient, because the status of an action may differ from situation to situation, and Islam is not a static religion. There is no guarantee that anyone can give you an accurate fatwa for your situation for there may be things about your situation that the respondent may not know.  For example a certain form of dress may be seen as respectful in one place and disrespectful in another. We confront new issues, new sciences, new disciplines, like new financial instruments, bioethical questions, intellectual property rights, etc., all of which require a broader knowledge than traditional religious studies like mastering hadith, recitation, and tafsir.

Methodology for issuing a fatwa requires consideration of Qur’an, hadith and Sunnah, ijmâ (which we can call legal precedent and consensus), qiyâs (the analogy of a known ruling an unknown ruling), public benefit, prevention of harm, and position of the Prophet’s companions, among others. These elements of the methodology are not a formula. The mufti may have to delay the response in order to do research. The importance of the legal precedents and consensus is the insight the analysis of previous mujtahids may provide to the mufti. The value of the positions of the Prophet’s companions is that they had the benefit of the Prophet’s corrections and that they were people of taqwa. It doesn’t mean that their circumstances were the same as ours, but that understanding their choices may give insight to ours.

Who is best suited to give a fatwa? Imam an-Nawawi in Adab al mufti wa’l mutsafti (The Manners of the One Asked and the One Asking) gives an answer. When you ask a question of a doctor he gives you recommendations that are only directed to this life, whereas the mufti gives answers that relate to the afterlife, so they must believe in the afterlife, be reliable people, free from traces of corruption and bad behavior. That doesn’t mean they should be perfect, since no one is, but their external character should reflect their internal state. Of course they should be fully conscious. Maybe they shouldn’t be too hungry but then they shouldn’t be too full either. Imam an-Nawawai says there should not be undue discrimination. Thus, a slave who is otherwise qualified can still give a fatwa. A blind person can give a fatwa as long as the blindness does not directly affect their apprehension of the issue. According to my research a woman can give a fatwa. Although in traditional Islamic society women were not in the position of giving enforceable decisions (hukm) they could be consulted in all matters regarding Islam (iftaa). The same for the physically disabled, even mutes though they cannot talk can answer questions as long as they have the means to do so.

Peer approval is a traditional means of determining who is qualified to give a fatwa. If other scholars say you are qualified, you are qualified. Designation by the government is another method, which has benefits of clarity and risks of politicization. Last year in Saudi Arabia the king gave a decree that only “acknowledged scholars” could give a fatwa, resulting in the closing of some radio shows and Internet sites. Finally, there are new means that can be employed not in lieu of traditional means but in addition, like the medical, legal, and accounting boards.

Abdullah at-Tahawy in “The Internet Is the New Mosque” notes that the Internet is not only conveniently accessible, but it allows for more frankness than traditional methods do. However, people might collect money from the website through advertising or they may be unqualified or they may be self-serving in other ways. I suggest that through some method of accreditation and peer review reliable websites can be established.

In the future we need to seek reliable and fair standards. The population is growing quickly and more people are studying Islam than ever before. We need to bring in experts from all fields and benefit from their knowledge. As math and English are the bases of tests like the SATs, we can in principle develop tests based on knowledge of Qur’an and Sunnah. We need to bring more women into the field of iftaa.

In Malaysia we have Shariah boards in the field of Islamic finance who advise banks as to whether their practices are or are not Shariah-compliant. Traditionally there was no barrier to entry to the field, one only needed to establish one’s personality in the field whether by accomplishments or contacts, resulting a network with individuals serving on multiple boards, creating room for conflict of interest. Eventually the government intervened with a regulation that no one could sit on more than one board at a time, opening new opportunities, which some women have taken up.

The challenges for the development of iftaa are several. 1. We need to produce scholars who are broadly informed and open-minded. To give fatwas on technology we need probably young people with knowledge in technology. 2. We need to establishment international guidelines which will be self-enforced by experts in the field.  3. We need to bring the study of Islamic law into the professional fields. 4. We need up-to-date case studies and not limit ourselves to ancient cases. 5. We need to increase accessibility to scholars and fatwa generating institutions. This will require more use of translators, of the Internet, and to increase the presence of Islamic education in higher education. My impression is that the world is ready to take a closer look at the Qur’an and Islamic knowledge and we should respond to this demand. My interest is in bridging the gap between learning about Islam and learning Islam. The analogy is the difference between being an expert in watching kung fu movies and being an expert in the practice of kung fu.

Discussant: Mahmoud Ayoub

The paper and the presentation are related, but are distant from one another. I will focus on the issues of the Internet and women. The Internet is creating confusion in many fields including this one, but we cannot deny its importance. You can write a question to someone like Yusuf Qaradawy and get an answer within three days. You should be careful of your high bar for the qualification of the mufti. The mufti is also a faqih usually and usually those who issue fatwas about medical or scientific matters ask experts in those areas. The maraja in the Shi`a system, because of the zakat system, often control a great deal of wealth. I think we should institutionalize iftaa rather than limit it to individuals. Asked if a conventional mortgage an alim may not know enough about finance or about the American environment, so you get peculiar fatwas like the alim who said you could have a car loan but not a home loan even though the latter is more important. Many fatwas today require more research that an institution can facilitate and then store in a fatwa bank.

Including women in iftaa is neither simple nor easy because of the fiqh limitations on women. You know the famous or infamous hadith related  on the authority of Ibn Mas`ud that a woman is deficient in reason and religion. The idea that the testimony of a woman is half that of a man has kept women out of the judgeships. We must deal with these issues before we can say women should be included in iftaa. We have a lot of work before we can have the situation with which you present us, but I admire your ideals and I hope we can rise to the standard you have set.

Discussant: Alexandre Caeiro

I think the paper provides a largely normative account of the fatwa that draws on the traditional genre. At first sight it looks like a mere repetition of previous accounts with a striking sense of continuity which allows Mustafa to draw legitimately and eclectically from a 13th century Shafi jurist, an-Nawawi, and a 20th-21st century Jordanian Usama Sulayman al-Ashqar. The genre is also reflexive with certain contemporary naivety that provides interesting material on the Muslim understanding of religious authority and in the future Mustafa might wish to explore the differences between Nawawi’s account and Ashqar. There is a familiar narrative of the decline of the fatwa both in terms of the quality and piety of the mufti. There is also the idea that the mufti has the right to paint a negative picture of society if it will prompt people to greater piety.

I would raise three questions: on standardization, on the Internet, and on the shifting fatwa –line. 1. The suggestion of standardization implies that the problem of strange fatwas today is due to the lack of qualifications of the uluma. Do you agree? 2. You have a nuanced analysis of the impact if the Internet. The social sciences never see the media as neutral (the medium is the message). Don’t you think that websites with known scholars are privileged over other websites? 3. The paper ends with a call for a shift in the fatwa paradigm from an individual to a collective process, which is already taking place with fiqh councils. How would you respond to the claim that such a shift would take us to a framework very different from the traditional Islamic legal tradition with which you open your paper.

Kassem: The Internet can educate and benefit or be used for personal gain like any other tool. It will ultimately reflect the international community of scholars. I was concerned with those people who do not know who is and who is not a scholar. My understanding of the hadith about women is that the Prophet said, “I have never seen a people so deficient in thinking and religion” and I took sit as a response to a particular situation and not a general comment pronouncement on the qualities or deficiencies of women.

General Discussion

M. Ayoub: The hadith, when you analyze it, is not a proper hadith, it is what is called mudras, because it is Masud’s words not those of the Prophet, but that is not the issue, the hadith “A people led by a woman will not prosper” is the problem.

Jamal al-Barzinji: The actual text of the hadith is invoking women to do more good deeds because no one takes away the common sense of a man than a woman.

M. Ayoub: I do not accept either of the two hadith because we know the Prophet loved women, saying three things were made lovable of this world, women and perfume (which are related) and then prayer.

Kassem: My goal was to bring up issues for consideration, including the inclusion of women in to consultative bodies, beginning with research. I don’t believe we shall ever be finished with iftaa because we will always have new more questions. Inclusion of youth is important. Islamic finance prompts a resurgence in fatwas as the science of economics becomes more familiar to people. As to the testing I suggested. I don’t think we can test taqwa on a bubble sheet, but we can test critical thinking and knowledge.

M. Ayoub: I don’t like this.

Kassem: I may not like it after consideration, but we need some tools for investigation and this might be among them. As to the shift in the fatwa paradigm, the instruction, “Consult your heart” is very important. It does not deal with issues that are completely clear like whether to pray or whether to drink wine. There are cases where you should ask the scholars about their methodology and proofs so you can make the decision yourself. We need to maintain “consult your heart” and treat the scholars as the servants of the dîn who are to serve the people and increase their knowledge.

Wael: You should have made a clear distinction between fatwas relating to ibadât and to mu`amalât. I thought your shift of paradigm was from the individual to the collective, but in my mind it should be from being a reactive mufti to a proactive mufti, so instead of deliberative bodies I think we should be promoting think tanks dealing with technology and globalization seeking to influence policy rather than just answering questions. As a process of question and answer iftaa has always had a small audience and has never been used as an educational tool that never exposes the ummah to larger questions.

Kassem: A fatwa is a response to a question or a need. Perhaps the need is the more important focus now. Some people may be qualified to answer a question in a limited area only. That could be extended to specialized think tanks. Having Islamic scholars on board with other experts is another way to address that problem.

Kenneth Honerkamp: You painted a bleak picture of the muftis, but also of the people who are doing the asking. The farther people move away from the qalb (heart) the more they need to ask questions. There is a different kind of educational process that would reduce the need for people to call an expert in Saudi Arabia for a fatwa. I don’t think the mufti does that kind of education. Peer review bodies like to mirror themselves. I think Islam has offered other solutions to these issues.

Mujiburohman Abas: The standards you gave for a mufti are those of the mujtahid. People follow popular religious leaders rather than apply standards. People are driven by the answers they desire.

Ridwan Basor: There is a difference between fatwa and irshâd (religious guidance) Also, I think we need social scientists to participate in the iftaa.

Hafas Furqani: Can we not ask the society instead of the mufti and have a fatwa by the nation?

Jourdan Hussein: Despite globalization, we have a multiplicity of cultures.

Kassem: In the past the qualifications have been only traditional ones, whereas now we are seeing a synthesis between academic and traditional qualifications. That can have a balancing effect and can address other issues such a cultural sensitivity. Cultural awareness should be one of the requirements of the mufti.

M. Ayoub: I am afraid we are broadening the definition of a fatwa too much for it to remain a fatwa. Irshâd may involve a fatwa, but not necessarily.

Kassem: Fatwa is a matter of clarification while irshâd may be aiding people.

M. Ayoub: The fatwa is good council whether it is done individually or collectively. Even when a fatwa comes out of a research institution, it could still be signed by the head of the institution. I do think we need a mechanism to make fatwas international.

Ezekiel Abdullahi Babagario: Where does this idea that women are not supposed to be heard come from?

M. Ayoub: There were women who issued fatwas at the time of the Prophet or at least who were respected scholars. I wish we were as liberal on this issue now as at the time of the Prophet.

Anwar Haddam: I believe that the reason that iftaa has become an issue is because of the atrocities that have taken place in the Muslim world. We need a clear definition of what is a fatwa and of who is a mufti. One of the conditions of the mufti is he must know the questioner; this condition cannot be met over the Internet. We need to distinguish between the imam, who is also a counselor, and the mufti, and the faqih.

Al-Shingieti: Even in face-to-face situations there is incomplete familiarity between the mufti and the questioner, so we should not discount the Internet too quickly.

Vinay Khetia: The Shia on the Internet will only give general answers and then refer the questioner to their local mufti for a more specific answer.

Jamal al-Barzinji: I think we have gone past the point described by Prof. Ayoub on the role of women. The role of women in these issues is a matter of qualification. The earliest Muslims consulted with women on the question of succession of the Khalifah. The politicization of fatwas deserves a paper of its own. In the Shariah Council in Pakistan the politicization was painful. We have no marjia among the Sunnis, but it is the ummah that gives credibility to the muftis, not the political leadership. What we have arrived at in the last 10-15 years is that the role of Shariah is the re-articulation of the maqâsid, regardless of the issue. With millions of Muslims living under non-Muslim rule, we have to articulate fiqh al aqaliyât. There have been a number of Ph.D. dissertations on fiqh al-jamiyyah (collective jurisprudence).  With all our reservations about Egypt, the Grand Mufti there has 30 paid researchers. We have a golden opportunity to bring Sunni and Shia together in madâras al-fatwa. It is a shame that every single iftaa body in the Sunni world does not have a single Shia scholar and vice versa. Commercialization has been a disgrace on scholarship. We need to look at Bin Bayyah’s recent book on fatwas. On the issue of incorporating education: I was once a member of a committee of three sent to al-Azhar to find members for our fatwa council. Out of 35 applicants only one survived on the basis of common sense shown in the interviews, but today the 34 are in positions around the world. If first generation scholars could consult with merchants and women in the issues that affected them, why can’t we?

Hisham Altalib: 20 years ago Shaikh Taha commented on this non-hadith that women are deficient in intellect and religion. How could the Prophet possibly, on the occasion of the Eid, disgrace a group of women in such a fashion?

Iqbal Unus: Suggesting governments should appoint the fatwa boards is an invitation to oppression.

Sarah Albrecht: The issues we discussed today come down to the question of authority. In many comments, authority was reduced to knowledge. I don’t think that applies in this era when other things have more impact than knowledge. If we want to speak of women in the iftaa process we should recognize it is the institutional authority rather than any hadith that determines their absence.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org

Iftaa: Historical Background, Contemporary Contexts

Thursday, July 28th, 2011

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #2

[This is the second in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]

Session 2 Moderator: Hisham Altalib
“Iftaa: Historical Background, Contemporary Contexts”
Mahmoud Ayoub, Prof. of Islamic Studies, Hartford Seminary

A religion requires authority in the form of a divine being or a human-divine being. Sometimes a seer or kahin is asked and what he proposes becomes a kind of fatwa. Fatwas have different levels of application all of which have to do with religious authority or law. The first to use fatwas as an instrument of law, even positive law, were the Romans. The Greeks used it in more of a mythical way, a means of managing the policy. The Romans were better administrators and had more of an interest in this aspect of law, usually called responsa, to ask questions and receive answers. The most important for the Romans was reponsa pruduntia, many of which were gathered together in the digests of law. Ninety such books were assembled by Julianus. Law can be to the good or bad. Sophistry (safsata) is a manner or speaking that makes the false seem true and the true seem false. The sophist cannot be taken seriously, but the responsa became a way to establish justice. We believe the Hebrew queries and answers developed to deal with daily issues, and it probably did not exist before the development of rabbinic Judaism. It was a series of blessings and curses into which the legal system was woven. We see this as far back as Hammurabi who probably wrote the first Semitic law that influenced later legal developments, including the style, if not the content, of Leviticus. The responsa developed as commentary on what the Christians call the Old Testament. This was the mishna (that which is repeated again), along with two other forms of commentary (the Talmud, or Gomorrah which developed into two talmuds, the Babylonian and the earlier Talmud of Palestine or Jerusalem). A third commentary is the midrash (Ar. Madris). Together these are the sources of Jewish law which is divided into halakha and hagadah. Halakha is fiqh, strictly speaking, dealing with diet, purity, family law etc. Hagadah means story and relates to law and belief from an allegorical point of view. An example is the story of a far away king with a beautiful daughter. When people come to ask for her hand he says I cannot be separated from my daughter so you must a room in her palace for me also. In this allegory God is the king and his daughter is the people of Israel.

Shallot (queries) and teshavod (response) dealt with basic matters of faith in the community. The centers of these responsa and much of Jewish learning were from the schools of Babylon and Palestine. I think Iraq was the cradle of civilization three times: the birth of agriculture, Islamic Baghdad, and rabbinic Judaism.

As-sadiya Fayumi was Geon (meaning leader) who translated the Torah into Arabic. In the Geonic period the geons would issue responsa that are important sources of Jewish history.  Jewish responsa after the eleventh century are studied century by century. Among the questions asked were what happens to a Jew forced to convert to Christianity or Islam? They ruled that it was better to convert to Islam since one would still have tawhid. In modern times we find questions like: Can electric lights be used for Hanukkah? and can the radio or telephone be used on the Sabbath? An Israeli astronaut who was orthodox wanted to celebrate Sabbath, but every 90 minutes was a cycle of night and day. The rabbi suggested that he follow earth time, but that raised the question where on earth. The rabbi suggested his place of departure, Cape Canaveral.

The rabbis often use qiyâs, seeking an analogy to the Talmud or classical literature. This is where the jurisprudence became very involved with responsa. The first mufti in Islam was Allah: “yas’alunika an ….” (“They ask you about ….”) There are several references in the Qur’an to fatwa. According to Jamal ad-din al-Kassimi, the companions of the Prophet issued fatwas based on their recollection of prophetic practice, then came the ta’ibÎn (successors to the companions). After the fourth century fatwas became pure imitation or taqlîd, not original, but according to a particular madhhab. Until then people did not speak of madhhabs. Perhaps the closing of the door to ijtihad stems from this development.

Every Muslim country now has its grand mufti and every region has its own mufti. In my view every mufti is a mujtahid. Sh. Ibn Taymiyyah and Muhammad Abdu did not accept the closing of the door to ijtihad. One of the characteristics of fatwa is it can be used in a non-positive sense. In 2:129-30 there is a discussion of divorce saying after a third divorce a woman may not remarry her ex-husband unless she first marries someone else. A subterfuge was made for a woman to marry someone else and divorce him for the purpose of going back to her ex-husband. Both the Prophet and the early mujtahids opposed this. The purpose of the verse was to prevent men from repeatedly marrying and divorcing women in order to prevent them from marrying someone else.

After the 19th century the Shi`a developed the marja at-taqlîd. I don’t do taqlid, but it is very important. Even when you do taqlid to a particular marja you can still shop for a fatwa. In Beirut we have a Shia mufti.

Sh. Mahmud Shaltut’s fatwa that you need not follow a particular madhhab and may on occasion turn to any school including Jafari, led to the rapprochement among the Islamic legal schools and makes me very happy.

There is a series of fatwas by Sistani online divided into two kinds of questions: ibidât (ritual) and mu`amalât (actions). The latter deals with music, interest, smoking, magic, even exploiting angels—however one does that—in addition to human relations, family planning, etc. I hope in the future we might consider fatwa collections and move beyond the theoretical treatment.

Discussant: Louay Safi, Georgetown University

I am neither a jurist nor a historian, but a political scientist. The argument that the “oral torah” supercedes the written torah reminds us of the claims that the hadith cannot be limited by the Qur’an. There are certain ayahs in the Qur’an that are responses to particular questions. The collection of fatwas is especially important to the Hanbalis and to a lesser extend the Shafis. These are important because of the difficulty for the individual to access the law. It has its analogy in modern times in the difficulty of the individual accessing the law that requires lawyers. Fatwa increased in importance to compensate a lack of clarity in the principles that distinguish between right and wrong. The Shariah is alien to the believer, who needs a mode of access. In the last centuries of Islam the mufti became an office, but the response was mainly to the inquiries of qudât, and they were not binding on the qâdi, who was limited by `urf (custom). Anyone can be a mufti but you require at least the appearance of religiosity or, to have a broad impact, a substantial following. The antidote to fatwa is maqasid (the higher objectives of the Law).

Discussant: Moustafa Kassem, Effat University, Saudi Arabia

The fatwa is the basis of religious authority, by which the mufti takes on the status of spokesperson for the Creator, which is why it’s such an often abused position, if they are not prepared with the proper knowledge. In hellfire are the one who gives an opinion without knowledge and the one who accepts bribes. A balanced approach is needed by both individuals and the establishment. Religious authoritarianism occurs when the issuers of fatwas overreach to give opinions on worldly matters beyond their authority, and on the other side is relativism where religion is no longer a factor in people’s lives. Another aspect of responsibility of the mufti is the role of qiyâs (analogy). A new situation is to be related to something established. Taqwa is as important as sound reasoning to arrive at a correct fatwa. I would like Prof. Ayoub to clarify the claim that the Jews had the first concept of one God in the light of Qur’anic mention of pre-Hebraic prophets.

M. Ayoub: Fatwa is much older than the Ottoman empire, but the shaikh al Islam (Grand Mufti) was a creation of the state. The empire imposed fatwas on Christians and Jews and everyone else through this office. After a while fatwas were issued by anyone who wanted to do so, without knowledge. There are positive functions for iftaa. Allah made riba haram, but what is riba? Fatwa is an important tool of Islamic law. It can be abused but so can any tool.

Vinay Khetia: There is insufficient literature on the Shia conception of fatwa in the peer-reviewed literature. There is a distinction between fatwa, for which Sistani does not allow followers to refer to others, and Ihtiyat for which he does, if after extracting hukm (judgement) from dalâ’il (evidence), there is room for uncertainty. Every marja has to have a published book. One particular marja has said you can marry people of the Book, but they are impure. Questioned on this, he said that these are two separate questions.

M. Ayoub: Why would the Qur’an say you may marry and share food etc. with the people of the book and still say they are impure?

Kenneth Honerkamp: We need expertise and taqwa; maybe we should tie them together. I understand there are fatwas from outside the domain of the fuqaha, and I hope we can address them.

M. Ayoub: The mufti no more speaks for the Creator than does the professor. We are both concerned with looking into the meaning of creation. The only mufti who speaks for God is the Prophet.

Mohammed Adam Sheikh: As a judge in Sudan (and here) I am expected to give a judgment based on the Qur’an and sunnah and the opinions of the scholars. I would ask Dr. Ayoub to elaborate on the relationship between the fatwa and the authority, since I have been doing this for more than 20 years and I know at home you cannot do this unless you have the authority from someone (God, the ulama, or the state). I may be the best-qualified person in the country, but unless authorized by the state I cannot be a judge. The sunnah can overrule the Qur’an through abrogation. I have encountered many cases in the U.S. where people have said a hadith has overruled the Qur’an on inheritance.

Anwar Haddam: Muftis are not qadis. The qadi’s decision is binding, that of the mufti is not. We need a method of accreditation for muftis.

M. Ayoub: The wasˆiya (will of inheritance) verse is not necessarily abrogated by the hadith. Many did see it as abrogated, but many did not.

Khaled Troudi: Why can’t we consider the fuquha muftis?

Safi: The issues that come out of iftaa are of two kinds, the ethical and the legal, The latter should go to the courts. I feel we have an ethical laxity now as people want to abdicate their moral responsibility and put it on the shoulders of someone else, thus they go shopping for fatwas.

Ahmad: There is a distinction between a qadi and a mufti. Iftaa may or may not require ijtihad.  The question of abrogation has been explored at previous IIIT summer institutes, and I reject the notion that the Qur’an is abrogated.

M. Ayoub: The only ijtihad among the sunnis now is iftaa.

Ahmad: I agree, but there is great ambiguity among Sunni Muslims as to whether the door to ijtihad was closed or is closed. It is something we must discuss and I will discuss it when we get to shuratic iftaa.

Khetia: Those who provide no justification for their iftaa are not taken seriously.

Ayoub: There is no fiqh aqaliyât (jurisprudence of minorities) except that if a non-Muslim country allows Muslims to have their own judges they are part of Dar al Islam. I don’t know if it began here.

Alexandre Caiero: Many scholars buy into this claim of the closing of the door to ijtihad.

Honerkamp: Fiqh al waqi’ (jurisprudence of current affairs) or fiqh az zamân (jurisprudence of the time) must also fit into the present discussion.

M. Ayoub: Shi`a have bana al `uqala’ which means building on the knowledge of the wise. We must examine the givens of Western scholarship, such as there was no creative fiqh after the 14th century, but when you look at the majallah and the Egyptian work it is not true.

Imad-ad-Dean Ahmad, Ph.D
Minaret of Freedom Institute
www.minaret.org

News and Analysis (7/28/11)

Thursday, July 28th, 2011

The FBI has been recommending some of the same disinformation pieces that pushed Norwegian terrorism suspect Anders Behring Breivik over the edge to its own agents:

Your tax dollars at work: Israelis destroy agricultural land and rough up and detain five Israelis and two Palestinians:

Three months after the murder of the theater’s Palestinian Jewish director by persons unknown, Israeli soldiers vandalize the theater and the home of its board chairman arrest him and another theater associate:

Indonesia, once admired for religious tolerance, now shows more tolerance for violent fanatics than for varieties of religious belief:

“I’d love for other minority women and religious minorities [in the U.S.] to believe they can excel in something outside the norm—not just sports, anything where they’re breaking the barrier,” she said, “and not be deterred by what the image is just because they fall outside that box”:

“What we are doing here will not change the situation, but it is one more activity to oppose the occupation. One day in the future, people will ask, like they did of the Germans: ‘Did you know?’ And I will be able to say, ‘I knew. And I acted.’ ” — Hanna Rubinstein, Israeli activist in smuggling landlocked Palestinian women to enjoy a day at the beach:

While standing by his Shariaphobia, Cain concedes most American Muslims “are peaceful … and patriotic Americans whose good will is often drowned out by the reprehensible actions of jihadists.” Uh-huh. Like most Tea-party Republicans are peaceful and patriotic Americans whose good will is often drowned out by the reprehensible ravings of demagogues like Herman Cain …

… and like Alan West:

It is common to the point of a cliche for a candidate for U.S. Congress to pose next to a flag, but when it is an Israeli flag rather than an American flag, we have to consider the implications:

Apostasy and the Challenge to Religious Freedom

Wednesday, July 27th, 2011

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #1

[This is the first in a series of my notes on the International Institute of Islamic Thought conference on iftaa and fatwa held in Herndon, VA. These notes are raw material for an edited report I will write on the conference and represents my perception of the discussion. The proceedings will be published by IIIT at a later time. The Minaret of Freedom Institute thanks IIIT for the grant that makes the publication of these notes possible. Responsibility for any errors in the notes is mine alone.]

Session 1. Moderator: Yakub Mirza
Paper Presentation by Abdullah Syeed (University of Melbourne, Australia)
“Apostasy and the Challenge to Religious Freedom”

Abdullah Saeed: IIIT has been at the forefront of Islamic thought.  Dr. Alalwani’s conclusions in la iqraha fi-dîn [No Compulsion in Religion] on apostasy, although independently derived, are similar to my own. We need to move away from the classical Islamic position on the death penalty for apostasy to something like the modern position on religious freedom. There is nothing in the Qur’an or the Prophet’s actual practice to support the classical position.

The standard of religious freedom that Muslims, Christians, Jews, Hindus and Buddhists are comfortable with is article 18 of the declaration of human rights: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In general Muslims have no problem with this article except with “freedom to change his belief or religion.” Most Muslim majority countries today are in the company of countries like China, Burma, North Korea in terms of restriction on religion-and I don’t mean on non-Muslims, I mean on Muslims.

Historically, with the exception of particular atypical incidents, Muslims have been very tolerant not only of other religions, but of differences among Muslims. The freethinker ar-Razi died a natural death, and even al-Ghazali was unharmed as he went through periods of very different thinking in his life. You don’t have to go far into European history to find religious restrictions even beyond those now practiced in Muslim majority countries.

Even Muslim countries that have approved the declaration of human rights have expressed reservations about the freedom to change religion clause. At the time of its debate, the phrase was included at the insistence of the Lebanese delegate and objected to as unIslamic the by the Saudi delegate, but approved of by the Pakistani delegate.

Dr. Alalwani said that some of his colleagues urged him not to publish la iqraha fidîn while he was president of IIIT as it might adversely affect the institution. We have also seen ministers in Pakistan gunned down for challenging the anti-blasphemy laws.

It is important to rethink these laws because religion is the most important thing in our society. It is a fundamental human right in international and Islamic documents (like the Cairo document). To deny a person religious freedom is to deny him his humanity. Without religious freedom life in the U.S. would be very different. Without implying a casual connection, one must acknowledge the connection between religious freedom and gender equality, prosperity, and a host of other things.

Ridda means apostasy and the word and its cognates occur in the Qur’an as well as the hadith. Apostasy laws rely heavily on the hadith especially one hadith that “whoever changes his religion kill him” and there is remarkable agreement among the jurists, Sunni and Shi`a on the death penalty for apostasy. But such a law is counter-productive, turning apostasy into a political act. It allows authoritarian regimes to curtail all kinds of freedom of their Muslim majority. IIIT could not publish the books it publishes in such countries and leaders would likely be in prison.  I am not relying on any Western notion of human rights; I am relying on what the Qur’an literally says, although we can have debates on interpretation.

I make a clear distinction between what the Prophet did and assertions about what he said.  I shall focus on hadithic claims and claims of ijma`. There is no Qur’anic text supporting the death penalty for apostasy.

One hadith says whoever changes his religion kill him and another is similar. Both are in authentic compilations. We must question authenticity not only of the transmission chain, but of the substance of the text.  The number of verses in the Qur’an supporting freedom of religion is, according to al-Alwani, about 200 and I myself have identified a hundred and fifty. What could have abrogated these?

Imam Shafi tried to remove the distinction between sunnah and hadith. Others like Abu Hanifa did not just jump onto hadith, but applied reason. We must retain the role of hadith in our tradition, but bring new methods of approaching them.

There are many problems with “who changes his religion kill him.” First, with chains of transmission. It was transmitted by a student of Ikramah and is well known in the second century of Islam but was not well known in the early era. Some very senior Muslim scholars believed Ikramah was a liar, including Ibn Abbas the mentor of Ikramah. Imam Muslim would accept no hadith from Ikramah. Next there is the contradiction between this hadith and the actual practice of the Prophet. Some apostasized after night journey. There were a number of apostates in Medina, and even one of his scribes apostasized, but he killed none of them. Dr. al-Alwani said there is no evidence the Prophet ever ordered an apostate to be killed, a conclusion reached by other scholars as well. The principle that a saying of the Prophet should have precedence over the practice of the Prophet must be questioned.

Granting for the sake of argument that the Prophet actually said this, we still need to know the context. Classical jurists were aware of the issue of context but they never formalized it. There were conspirators who urged hypocrites to feign Islam and then repudiate it. If a Muslim in the context of the wars at that time left Islam he would literally go over to the enemy side. Religious and political identities are intertwined. Another hadith says the person who leaves his religion and separates himself from the community should be killed. What does this mean if not that one joins the enemy? Ibn Rushd and Mawardi make a close connection between apostasy and fighting on the side of the enemy. Yet, Mawardi discussed apostasy apart from the question of hadd. Both Abu Hanafa and Jafari exclude women from the death penalty for apostasy. Abu Hanafa says explicitly it is because women do not take up arms against the community.

This leaves the claim of ijmâ`(consensus). Of course, there is no ijmâ` on the concept of ijmâ` itself, but I claim there is no ijmâ` on this question either. When Umar heard of apostates being killed, Umar said “I did not order it; I had nothing to do with it,” indicating that he would have imprisoned them and encouraged them to return to Islam.  Hadd has been used to mean compulsory enforcement vs. ta`zîr (discretionary enforcement).

Given this, why did the jurists develop the death penalty? My theory is that under Mawiyya, Yazid, etc., the punishment was common.  “I see lots of heads in front of me ready for harvest” reflects the spirit of the time. It was also the period in which many hadith were fabricated.

Accountability is a personal, not a collective thing. The state does not drag us to paradise. Lâ iqrâha fiddîn is not a commandment against coercion in religion, but a negation of the very concept. For what was Hallaj killed? If it was for saying “I am the Truth” then there are many others who should be killed, including al-Ghazali.

The notion of protection of religion needs to be broadened. We need to keep a clear sense of the hierarchy of texts. Linguistic analysis is the starting point for understanding the text, but it cannot be the end. Context, chain of transmission, and evaluation of the text must all be considered. We must consider both the meaning of the text and how we can relate to it in the contemporary period.

Mahmoud Ayoub: There are people who are forced to feign apostasy. This is the Qur’anic verse “except for him who is coerced but his heart is full of faith.”  Lâ iqrâha fidîn is in the context of a young man who was converted by some Christian oil merchants from Syria and his father asked the Prophet if he would be held accountable for not preventing his son from conversion. The hadith in question is Abassi propaganda against the Alawis and should not be considered hadith at all. The alternative hadith gives three cases only in which capital punishment is authorized and does not use cognate of ridda.

The `uraina tribe is a complicating factor. Were they killed for apostasy or hirâba (war on society)? Bukhari has no chapter on ridda, only on hirâba. The case of Umar was when Mu`az ibn Jabar found a man who was a Jew who converted to Islam and then apostasized and Mu`az insisted he should be killed on the spot. Umar said he should have been given three days to repent and then be killed.

Kenneth Honerkamp: What is the downside of religious freedom? Most of the Ten Commandments are religious prescriptions that limit religious freedom. For Evangelists religious freedom means the right to proselytize anywhere in the world.

M. Ayoub: Zaffarullah Khan was the man representing Pakistan at the time of the debate on declaration of human rights and Jamil Barudi a Lebanese Christian represented Saudi Arabia.

Vinay Khetia: Patricia Crone in her Freiberg Lecture says Muslims love to talk about these things but have yet to implement them.

Imad-ad-Dean Ahmad: I find the speculation on the origin of the jurist’s acceptance of this hadith unconvincing.  Instead we should ask what are the jurists trying to achieve when they incorporate the hadith into their fiqh.

Daoud Nassim: The Qur’an is clear about the punishment of apostasy by God on the day of judgment.  The only question is whether it is punishable by people in this life.

M. Ayoub:  Umar used to beat an unrepentant alcoholic who converted to Christianity and Umar exiled him. The man joined the Byzantine army against the Muslims and Umar swore he would no longer exile people; so there is no doubt he was defending the death penalty against traitors.

Saeed: Having the freedom to convert is better than encouraging hypocrisy. In Medina this openness existed and the Prophet is the best example for us.

M. Ayoub: My belief is the third source of Islamic law is ijtihad. Both Shafi and Maliki jurists said this hadith is vague as it seems to require killing Christians who become Muslims. It is the other hadith that we need to address, because it does suggest that  an apostate could be killed.

Ahmad: The Prophet punished treason rather than apostasy.

Saeed: A new book by IIIT on authenticating hadith may be very helpful. Bukhari focused on chains of transmission only, which at that time was the primary concern.

Louay Safi: Historically the hadith were peripheral compared to the emphasis we find today.

M. Ayoub: Bukhari and Muslim are really fiqh manuals, organized topically.

Saeed: There was a hadith movement in early Islam with tension between them and other jurists, but over time they came to dominate. The question is confusion between hadith and sunnah.

Ahmad: The distinction between hadith and sunnah was addressed in a previous IIIT summer institute.  Imam Malik was concerned with the living sunnah, the practice of the people of Medina, rather than with hadith per se and his book is not one of the sittah (the six hadith collections of the Sunni).

Abubaker al-Shingieti: How should the legislators in Muslim countries deal with converts to Christianity who become propagandists against Islam?

Alexandre Caeiro: How do we think about hegemonic discourses? How do questions of religious freedom connect with geopolitical concerns.

Anwar Haddam: Was punishment for ridda or for actions by the apostates, not just as combatants, but as spies?

Ahmad: A hypocrite makes a better spy than an apostate.

Rashid Lamptey: There is a hadith that the blood of Muslims can be spilled in only three cases: the married person who commits adultery, the murderer, and the one who forsakes their religion and forsakes the community to take up arms against Allah. There are two categories of those who forsake Islam, the one who is born Muslim and the convert. The Zaidis believe that both classes should be killed immediately, but the Ibadis say the woman must be given life in prison so she might repent.

Safi: I would challenge this notion that the apostates go to Hell.

Saeed: It’s true the so-called Ridda wars are used as evidence for killing apostates, but it is a misnomer. Umar disagreed with Abu Bakr’s decision to fight these wars where some rebels were renegades, but others were simply tax resisters.

We love freedom of religion when we are the minority, less so when we are the majority.  Without religious freedom the authorities control everything in the name of religion, but the advice the Prophet got from God was only to communicate his message, and I am for reciprocity and freedom of belief for all.

Contemporary debates are colored by how Muslims see their position visa vis the rest of the world. It’s about our pride, not simply a theological or legal matter; but I didn’t have time to go into all of that. Even in the historical debate it was heavily political.

Apostasy may well be about treason or other political acts, particularly in the early period of Medina, but not so much later.

Imam Malik distinguishes the sunnah from hadith in clear terms. Shafi takes the hadith as the clear statement of the sunnah.

The Qur’an uses the term imân for belief and makes a clear distinction from Islam. This is about freedom. Lack of freedom is the problem we confront in the Muslim world.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org

News and Analysis (7/27/11)

Wednesday, July 27th, 2011

A new definition of khutzba, the vandal suing his victim: “Israel is suing a group of Bedouin in the Negev desert for the costs of demolishing their village each time they rebuild it”:

“Supporters evoked the Arab Spring … as a fitting backdrop for an endorsement of the Palestinian people’s release from 44 years of Israeli occupation. Opponents, essentially Israel and the United States, condemned the idea as an ineffective ‘shortcut’” — like the “shortcut” that established Israel at the U.N. in 1948?

“The worst case scenario’s pessimistic variant is a military candidate for President and a total military takeover. That’s likely” — Ahmed Naguib, “a leading activist, organizer and spokesman from Tahrir Square during the Egyptian Revolution”:

“Assassinations are horrific acts — they are acts of terror and can have major impacts”–Ryan Crocker, American ambassador to Afghanistan commenting on the third assassination of an Afghan power broker following the U.S. assassination of Usama bin Ladin:

Mustafa Akyol “argues that the recipe for Turkey’s success is a liberal economy tempered by Muslim values”:

News and Analysis (7/26/11)

Tuesday, July 26th, 2011

In a manifesto describing himself as a Christian Knight Templar “operating as a jury, judge and executioner on behalf of all free Europeans,” the murderer of Norwegian children expresses his support for apartheid Israel while condemning the U.S. for letting in too many Jews:

“The Americans deny everything. The Israelis also deny everything — but with a smile, according to a senior U.S. official”:

“The  council’s female members have not been allowed to take part in the initial talks, leaving them exposed to allegations by their fellow women that their presence on the council is merely for show…. Many women support the idea of talks with the Taliban, but not without sufficient preconditions and substantial representation”:

With “the surge of US forces at its zenith and the summer fighting season in full swing … Taliban forces in the east appear to be launching offensives of their own, with no intention of giving up easily, US military officials say”:

“With millions of flood victims still in urgent need of aid, western charities say their efforts are being hit by the fallout from Osama bin Laden‘s death as the government hunts for CIA spies”:

“The Palestinian Centre for Human Rights (PCHR) condemned the executions, saying there was no legal justification for the failure to seek Mr Abbas’s ratification of the sentences”:

“Opposition groups derided the law as evidence that the Syrian government is not serious about democracy”:

News and Analysis (7/25/11)

Monday, July 25th, 2011

The Norwegian terrorist (who now claims that “he has ‘two more cells’ working with him”) is “a 32-year-old who contends he is waging a Christian crusade against multiculturalism in Europe, believes the killings were ‘gruesome’ but ‘necessary,’ … to preserve a Christian Europe” from Muslim immigration:

US House Foreign Affairs Committee slashed foreign aid for the Palestinians, Egypt, Lebanon, and Yemen, but not for — You guessed it!

“It isn’t world Jewry that is driving members of minorities to the streets of Kuala Lumpur, but the failure of a democratic government to provide equal rights and opportunities to all their citizens”:

Despite “documented, credible evidence . . . of involvement in a criminal enterprise or support for the enemy,” the contract for “all of the trucking firms involved in the work” has been extended”:

“More than 400 civilians were killed by foreign and Afghan forces last year and over 2,000 killed by Taliban-led insurgents, according to UN figures”:

 

News and Analysis (7/22/11)

Friday, July 22nd, 2011

Is the long-time Kashimiri lobbyist the victim of the cross-fire in the strained relationship between the U.S. and Pakistan?

In Mecca, Rais Bhuiyan realized that if he could forgive the man who murdered two others and tried to murder him then  “we can all work together to forgive each other … and take a new narrative on the 10th anniversary of ” 9/11; on his way to a lethal injection his white supremacist assailant said, “[D]ue to Rais’ message of forgiveness … I am more content now than I have ever been”:

As one activist speculates that “the government is trying to stop the activists before Ramadan,” because “in Ramadan, each day is like a Friday,” another thinks that “as many as 1.2 million people were taking part across the country”:

Australian Muslims who want Islamic law applied to “private issues that go to the heart of their religious beliefs, and is only used when all parties agreed to its application” oppose vigilantes “trying to introduce a sub-culture into Australia under the guise of sharia law”:

“Amnesty International warned on Friday that a draft anti-terrorism law being considered by Saudi Arabia would allow authorities … to prosecute dissent as a terrorist act”:

“Somalia’s militant group Al Shabab announced that a ban on some aid groups remains in place. The decision stems from a distrust of outsiders and a desire to deny the famine’s existence”:

 

News and Analysis (7/21/11)

Thursday, July 21st, 2011

The “army will announce a date for the elections by the end of next month,” and underlines its hold on power by banning foreign election monitors:

After the Bin Ladin assassination,  the views of “”political liberals and moderates … shifted to become more like those of conservatives”:

“Through these families and their diverse experiences, we will explore how they blend their values and traditions with everyday life in America, providing insight into their culture with care and compassion”–Amy Winter, GM, TLC:

Still bearing “the scars from the attack that left him blind in one eye and with 35 pieces of metal in his face,” Rais Bhuiyan “claims his rights as a victim in regards to sentencing have been overlooked by the state, as has his attempts to meet” the white supremacist who attacked him:

“Barring a successful appeal by the company, Elauf plans to save the $20,000 and apply it toward the costs of opening her own clothing store someday, she said.  When asked how it will compare to Abercrombie, a smiling Elauf said, ‘It’ll be better'”:

“Gilani’s remarks, in an interview with the Guardian, contradict assertions by the US president, Barack Obama, and other American officials that US forces would take similar action against other al-Qaida leaders if necessary”:

“The challenge lies in moving from a general understanding of factors at work in Boko Haram’s existence to a specific understanding of the movement’s grievances and, finally, to nuanced policy tools that could reintegrate members of the movement into society or undercut its grassroots support”:

News and Analysis (7/19/11)

Tuesday, July 19th, 2011

Contrary to popular opinion, “‘Islam-bashing’ proved a strikingly poor campaign tactic” in 2010 and in most cases, “candidates who focused on illusory Muslim ‘threats,’ tied ordinary American Muslims to terrorists and radicals, or characterized mosques as halls of triumph (and prayer in them as indoctrination) went down to defeat” …

… but you can still cash in on taxpayer’s money by making unproven and apparently unfounded smears against Muslims; “Chief Blackwell says even more than a year after the episode, he’s still upset …

… on the other hand, the FBI finds that culturally sensitivity enables the Muslim and Arab community to be “really helpful in informing us and disrupting plots against the United States…. So it is really a win-win for both sides'”:

Mubarak was the military’s man; when the new pharaoh comes in, nothing will have changed:

“Officials confirm talks lasting three hours took place in Tunisia – but Washington and Tripoli disagreed on what comes next”:

At a time when the Church’s “newspaper in Malaysia has been embroiled in a legal battle against a government ban on the use of “Allah” as a Malay-language translation for God”:

“Uighur activists said the security forces had provoked clashes by opening fire on a peaceful demonstration”: