Archive for September, 2011

Institutions of Iftaa: Panel on the Fiqh Council of North America (FCNA)

Tuesday, September 13th, 2011

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #13

[This is the thirteenth 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. Names of participants in the general discussion have been omitted.]

Moderator: Iqbal Unus
“Institutions of Iftaa: Panel on the Fiqh Council of North America (FCNA)”
Mohamed Adam al Sheikh, Imad ad Dean Ahmad, Khaled Troudi

Adam al Sheikh: The Fiqh Council (FC) is a large issue to talk about. I joined the FC in 1985-86. It started as part of the Muslim Students Association and then was affiliated with the Islamic Society of North America. After becoming the Fiqh Council, Taha Jabir Al-Alwani became its chairman. Yusef DeLorenzo was serving as his assistant translating documents. I would drive from Baltimore on a weekly basis to meet with Dr. Taha on FC matters. I believe that period was a peak of productivity until 9/11. Then Dr. Muzammil took over and I served as an executive director and the constitution was written, but it was a long time before it was approved, and I don’t recall it ever being formally approved even though it has been accepted. Had it been implemented it could have promoted the FC to the Muslim community. FC was supposed to seek to be the sole reference to the US on Islamic affairs for the government. The proposal that it establish an arbitration and median council was never implemented. 90% of our funding was from or through IIIT.

Imad-ad-Dean Ahmad: Can the FC be the sole reference to the US on Islamic affairs without a violation of the First Amendment? That isn’t going to happen and we shouldn’t waste time on it. The experience of the DC-CCMO arbitration committee, which I am on, may have precautionary value. It has never been called on to adjudicate a case. Once there was a dispute between two organizations, one of which wanted to appeal to us and the other did not. On another occasion two organizations entered in to an agreement that lacked an arbitration clause. When one organization asked that an arbitration clause be inserted and recommended DC-CCMO be the arbitrator, the other accepted to insert the arbitration clause but demurred to name a specific arbitrator. FCNA’s constitution has a clause that says minority reports will be written but may not be published. I think this is a mistake as where there is a legitimate disagreement people should know about it. Dr. Jamal has suggested that iftaa should follow the model of the Supreme Court. Minority reports on the Supreme Court are not secret. As for my involvement with the FC, I have only been consulted on the single issue of moonsighting. I recall one particular occasion when the FC split over accepting a sighting that all the astronomical consultants agreed was impossible. The FC agreed to issue a statement that a majority of the council had agreed to accept the sighting, but the statement that was actually issued said that the Council accepted the sighting in consultation with astronomers. Mandating the inclusion of minority reports would make ignoring the dissenting minority and misleadingly mentioning consultants who also dissent form the final decision.

Khaled Troudi: The qualification requirements are unrealistic. Among them:

A.     Every Fiqh Council member should be a graduate of a bona fide Islamic University with a bachelor degree in Shari`ah Law.

B.     S/he must have been associated with the Shari’ah scholars for years and must have obtained knowledge of the Shari’ah.

C.     S/he must be fluent in the Arabic language.

D.     S/he must be a person of integrity, good conduct, and committed to the Islamic rules and guidelines.

E.      S/he must be an American citizen or a permanent resident of the US, and  be known as a scholar who cares for and  is concerned about Islamic jurisprudence in non-Muslim countries.

F.      S/he must have knowledge of the Shari’ah and have proper comprehension of the Western lifestyle.

I ask, does this follow the classical model or contemporary Middle Eastern model, and does it serve the American Muslim community?

Discussant: Jamal Barzinji

FCNA was housed here until 9/11 when it moved to ISNA. The glory days were, as stated, when Dr. Taha was the head and Yusef DeLorenzo was an able executive. We recognize the effort Adam Shaikh put into the constitution, but it never went through a review and approval process. Among the services it rendered was to give a fatwa to the Saudis that if a non-Muslim American soldier dies in Saudi they not only may touch the body but must provide it with all the necessary and appropriate rites. At a time when sectarianism was problem in Iraq, the FC was supposed to include Shia scholars as well as Sunni ones, but it defaulted. We have scholarship, but we lack leadership. We need management, which includes financial resources, office space. Finally they need promotion and transparency recognizing we are not in a basement in Egypt afraid of the mukhabarat. We spent decades debating hilal and lahm al-halal. The lahm ahl-al-kitab is hilal to us, and if we want to promote zabîha that is a different question. Eid is a problem for us. If we are going to rent a space for prayers we need to know when it is possible to sight the moon. At a conference on modernization of da`wa we were told it is kufr to believe the earth goes around the sun. There is a moral obligation for us to lead the ummah into the modern world. Dhulfikar Ali Shah has put the advice of the astronomers together with the classical fiqh to say calculation is permitted in the calendar determination.

General Discussion

The issue of the moon is not sighting problem; it is a fiqh problem.

Fiqh is considering all the issues at hand before giving a fatwa. If we can’t reach an agreement as to which day it will be, why not take two or three days off? Across from the ka`ba there is the world tallest clock tower with an observatory for moonsighting.

We investigated Christian councils and Native American councils similar to ours and they have been given some kinds of recognition. In the U.S. you cannot arbitrate if the two parties will not accept you. The members of the council must have some kind of judicial background. I am certified to do mediation in the state of Maryland and arbitration nationwide. Most of my arbitration is between Muslims. Arbitration will save Muslims time and money and give them the same judgment they would get in the courts. The non-publication of the minority report may or may not be in the final draft of the constitution.

It is correct that the moonsighting dispute is not over scientific issues, but there are disputes over fiqh, matla` (whether sighting is local or global and what conventions define either) and political problems. The matla` issue is not strictly a fiqh question. Dr. Ahmad has published a calendar which has been received by the masses who don’t want to hear the arguments, they just want to know what the dates are. There has been a convergence and the range of observed dates has been reduced. Perhaps the problem is that we try to legislate rather than educate. Some students reported seeing an impossible new moon, but agreed to go out the next night and realized they could see two crescents: the one they saw on both nights was Venus and the other was the new moon. They withdrew their claim.

The website is fiqhcouncil.org. The present FC are first generation immigrants, but we used to have Dr. Sherman Jackson for many years as the head of Sharia Scholars of North America, which is dormant for financial reasons. The FC need not stick to particular madhhabs. Adam Sheikh was a judge of the Shariah court in Sudan before coming here and took courses here in mediation. He was called by the court, as in the famous case in Fresno where two Muslim camps had been fighting for ten years. Many organizations including ISNA had unsuccessfully tried to settle the issue, and the two parties had spent over $1,000,000 in legal fees. Eventually the Jewish judge told them she was sick and tired of the case and instructed them to bring a Muslim judge to adjudicate the case. After 11 years they are back in court again and last month he was invited back. In another case in Maryland now that after the signing of the binding agreement and three weeks of sessions one of the parties walked out. Judicial background isnecessary. Dr. Taha refused to accept new questions on halal meat. Hilal is he only remaining point the FC is dealing with.

The dispute on the calendar is not between scientists; it is between conventions. I require that the moon be born before sunset in Mecca, to this FCNA adds that the moon must set after the sun in Mecca.

When we look at the broader Muslim community, it is growing away from the elite that has established not only the FC but most of the dominant Muslim organizations. Others have expanded their operations to try to meet the needs the FC has not. The weakness of the FC is a failure to be sensitive to the needs of the Muslim community and to legal, political, and cultural dynamics within the American society. Strengthen the organization by opening it up, embracing other organizations and adopting a new style of management. Otherwise other groups, including youth groups may set up their own competing organizations. I had the hardest time getting more members of the FC to attend this. We have encouraged other organizations to gain independence from IIIT, but the FC is central to our own mission.

Is the FC dead, alive, sick or asleep?

It’s in a coma.

We are critiquing the council in the absence of the leadership except for Dr. Sheikh. Maybe we need a one or two day conference on the need for a fiqh resource in this country for those who need it and the possibilities of reactivating or replacing the FC.

After Taha left for Cairo has there been any discussions as to integrating scholars from outside the US in order to boost he legitimacy of the FC?

Is it the FC that votes on membership for the nominees?

There was no one on the list under 50 years old. Muslim youth have many fiqh issues, even in middle school. They don’t even know there is a FC.

Even before Dr. Taha left, Dr. Muzammil was elected to replace him by consensus of the council. The term of each executive office is 3 years, renewable once, but due to lack of qualified people we have not pushed it. This is election year but where is a candidate familiar with the FC and qualified to take over from Dr. Muzammil. Qualified candidates are all so busy. We have two members under consideration, American born. One studied in Egypt and the other in Saudi Arabia. We hope they will play an important role and lead the organization in the future. There are 18-19 members now who will elect the members after nomination by two well-known scholars in the US.

In 1960s the religious affairs committee of MSA, the FC precursor, later the Fiqh Committee addressed very basic issues, the same ones with which they deal right now. At one time FC had a nice funding source outside IIIT, the Amana Trust, which paid a fee for advice on halal investments, etc., but the FC didn’t provide its reports timely, which is a problem in the highly regulated industry. For a long time the FC was called ISNA’s Fiqh Council. There are powerful fundraisers associated with the FC but they haven’t gotten into that frame of mind.

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

Regulating Fatwa in the Contemporary World: Discourses of Pluralism & Crisis in the Age of Globalization

Monday, September 12th, 2011

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #12

[This is the twelfth 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: Vinay Khetia
“Regulating Fatwa in the Contemporary World: Discourses of Pluralism & Crisis in the Age of Globalization”
Alexandre Caeiro, EZIRE-Friedrich-Alexandre University, Erlangen, Germany

Given the historical diversity in Islamic thought, valorized as a sign of Islamic tolerance, the current “narrative of chaos” requires some explanation. I shall explain the narrative and problematize it. I will focus on Shaikh Yusef al-Qaradawi who, I suggest, offers an alternative account to this common diagnosis. This is surprising since he is an active figure in the debate for regulation of iftaa. I will highlight some positions Qaradawi has taken but from which he seems to shy away.

There have been a number of high profile conferences calling for regulation, including the Amman declaration. A small conference in Mardan Turkey centered on Ibn Taymiyya’s criteria.  There have also been many shows on satellite TV like “Iqram” Also many books like Fawd al iftaa’ and countless articles in the press about the negative impact of proliferating fatwas. They invariably target both the state and the wider society calling for criminalization of unauthorized fatwas, self-restraint, public education, a formal covenant binding on muftis, the establishment of specialized institutes, university training for muftis, strengthening of existing institutions, the weakening of institutions, establishment of a supreme council. Many of these proposals rely on the regulatory power of Islamic tradition rather than coercive state power. There is a tension between social legitimacy from the community and the desire for political intervention by the sultan. Islam has tolerated a high degree of diversity in iftaa, at least in the Sunni world. Diversity of fatwas has been called a mercy. Islamic reformists have gone beyond the traditional distinction between binding hukm and nonbinding fatwa to stress the responsibility of the believer to choose the fatwa that best suits his condition and inclinations, citing the hadith “Ask your heart.”

I have a clip of Uthman Uthman’s interview with Shaikh Abdullah Bin Bayyah from AlJazeera. It emphasizes the need for fatwas in a changing world and cites the proliferation of sources. Is it even possible to regulate such a market? The new media are widely blamed for the chaos, depicted not as neutral instruments but as media that have displaced the traditional standards so that fame rather than knowledge becomes the new criterion of influence. They focus on “abnormal fatwas,” e.g. that smoking does not break the fast of Ramadan, or that normalization of relations with Israel is allowed, or the infamous breast-feeding fatwa. This is a broad understanding of fatwas that includes any oral statement by a qualified scholar. There is a claim that a market mechanism is being applied to an institution that is not subject to supply and demand. There is an implication that this has become a business when in fact many muftis give fatwas all day long for free.

Linking this issue to the fight against terrorism is most clear in the Amman Declaration of 2005, which was specifically designed to prevent radical groups from issuing fatwas justifying violence. Professor Michot’s paper on the new Mardin declaration is also relevant. The attempt to stop al-Qaeda by invoking Ibn Taymiyyah’s text is rooted in an impoverished understanding of what motivates terrorism.

In many ways this narrative is compelling, but the diagnosis is not unanimously shared. Sh. Ali Gomaa of Egypt downplays differences among muftis as due to differences in how questions are phased rather than deep disagreements. Sh, Bin Bayyah is quick t point out that the challenges facing iftaa are the same as those facing other fields of knowledge. The diagnosis of chaos is not as self-evident as it may seem.

There is always some kind of regulation in markets, even if it is the invisible hand of Adam Smith, so we need further exploration of the claim that there is a market in fatwas. There is also the charge of confusion. Muslims can identify fatwas as abnormal. In most cases the distinction between the permissible and the impermissible is evident to common sense. Many scholars often refer questions to more qualified ones. Recognized religious authorities rather than TV or Internet preachers have issued many of the controversial fatwas we have mentioned.

Yusef al-Qaradawi has been involved in these calls for regulation, but I think he actually offers an alternative as in his interesting book, al-Fata wa-sh-Shaddah. He does not blame the new media but says these problems have always existed due to lack of qualifications of the muftis, lack of respect for specialization, rush to issue fatwas, secular attachment to one’s own opinions, unwillingness to debate, political motives, and abuse of the notion of maslaha (public interest). He seems to accept the intrusion of non-qualified scholars as an inevitable feature of social life common to all arts and crafts. Consider an episode of the TV show “Al-Fatwa as-Siyâsa” debating a fatwa by Tantawi on a wall to seal off the Gaza tunnels. This episode was unusually less friendly in tone as Sh. Qaradawi repeatedly denies the questioner’s attempt to imply that there should be a separation of religion from politics. Fatâwa siyâsîya is used to mean fatwas that support the position of the ruler, rightly or wrongly. Some muftis are not knowledgeable about the fiqh and others sell out. Shouldn’t the mufti who issues a decision on politics understand politics first? No; everyone has a right to political participation. The argument of the contribution of political fatwas to the problem loses its force for someone like Qaradawi. The proliferation of fatwas during the Gulf War served the interests of the rulers. Qaradawi denies the opinions served the purposes of the states but rather were governed by the conditions within the different countries. Muftis diverge for various reasons and this is normal. Should there not be a single stance? No. He gives the example of ibn Abbas changing his view on an issue as great as repentance for murder in the middle of its issuance as he better understands the intention of the questioner. For Qaradawi the mufti is effective only to the extent the followers are willing to act on their opinions. Differences in fatwas have more to do with sensibilities and temperament.

Osama Umar al-Ashqar’s book is representative of a modern understanding that the fatwa is to help in the development of the modern nation.

Discussant: Jamal Al-Birzanji

I congratulate Alexandre for this quality paper. Chaos in fatwa is only a reflection of chaos in the ummah itself. As the ummah itself settles down, I think this will work itself out. The governments and rulers are not trusted by the people and have no right to criminalize iftaa. What is missing is a platform in which debate can take place. Until the new regime came into Turkey there was no Muslim country in which a free debate could take place that could marginalize the extreme views and make room for a meaningful debate.

I think Shaikh Yusef stopped short of pointing finger at those fatwas issued to please a ruler. In Saudi Arabia there was a real fear that Saddam Hussein would invade Saudi Arabia and there was an honest confusion; but Shaikh Tantawi faced a ruthless regime had no choice, though only Allah knows what was in his heart. I respect his position that the ummah has always confronted ridiculous fatwas, but this did not concern the ummah until now under pressure from the West about terrorism, or perhaps out of greater sensitivity we have become concerned. I think Tantawi was a sincere man trying to honestly address the question without alienating himself from the regime.

I don’t think it is an invisible hand but a very visible hand that regulate iftaa, the trust in the ummah; be patient for the scholars to regulate one another by their debate.

Discussant: Imad-ad-Dean Ahmad

Not supply and demand but price intermediation is the distinction between the “marketplace of ideas” and ordinary markets. The new media does not cause the problems of chaos, but it exacerbates them by reducing the costs of seeking and issuing fatwas. Qaradawi is correct that the mufti is effective only to the extent the followers are willing to act on their opinions, but to what degree is Qaradawi’s ambiguity itself political?

General Discussion

Caeiro: I did not want to circulate this paper because it is so chaotic. I wonder to what degree the perception that there is new crisis is due to an idealization of the past and to what degree the people who depict a crisis have an agenda. I wonder to what degree it is the military superiority of the West that is the crisis. Perhaps we pay too much attention to that. People sometimes think the establishment of a supreme council of iftaa will solve the problem and I question that. Maybe it is a good thing that he issuance of fatwa prompts a counterfatwa. The contrary view seems authoritarian. I like Dr. Jamal’s notion of the “visible hand” that leads to an eventual consensus over time.

Markets is a common metaphor in sociology, but it is a lazy one. If there is no price intermediation then is it really a market? Maybe it is the public rather than market that should be the focus. Qaradawi’s motives may be political, but he is aware of the need to create a disembedded Islamic thinking. We all operate in a politicized world, but maybe he is more willing to engage in the discussion than some others.

Mahmoud Ayoub: A measure of chaos is necessary and also healthy. Where there is an authority like a supreme council of Iftaa it may help where it is necessary, but what we really need is the character of the mufti. People are reluctant to give fatwas because they may make a mistake to people or to God. The alternative to chaos is much worse.  There are always those eager to replace chaos with dictatorship.

Sara Albrecht: Maybe we should look at chaos as a creative force.

Sami Ayoub: The difference between Tantawi and Qaradawi on the Gaza wall may be an example of differences due to phrasing.

Ahmad: Without dismissing your suggestion that an alternative metaphor to the market is needed when speaking of the public contestation of ideas; I would point out that the marketplace of ideas is not the only example of a markets without price intermediation: consider the blood supply. After disasters when the need for lood rises, so does the supply. When the crisis is over both suppluy and demand drop. Why market may be the appropriate metaphor is because there is a supply of and demand for fatwas.

Kenneth Honercamp: Are we speakiong of chaos or diversity? Is there a place in your paper for unity in diversity. Traditional Islamic society has been built on diversity. Modernism seems to see diversity as dispersive, as a threat. Seeing the chaos of fatwa as a threat is a little like the Communists seeing more than one brand of soap on the shelf as a threat.

Anwar Haddam: I want to set the record straight. In the huge demonstrations against in the buildup to the Iraq war there was a not a single sign supporting Saddam Hussein. Maybe this diversity is not chaos but is a mercy to the ummah. The elephant in the room is engaging in terrorism based on fatwas. I’m not sure putting the muftis under a single authority is not in the spirit of Islam.

Samy Mutwalli: perhaps some fatwas are shocking because they deal with subjects that have not been discussed for a long time.

Abubaker Al-Shingieti: Chaos is in the nature of iftaa. Crisis comes from the substance of the fatwas.

M. Ayoub: There seems to be a public ability in the Muslim ummah to always take the middle of the way and reject extremist tendencies. For instance, the Shia groups that have survived and done well are the most moderate. The others either disappeared or were pushed to the fringe. In Sufism too, Ibn Arabi is Shaikh-al-Akbar for a rather small minority of Sufi scholars. There is a level on which ijma operates and supports the hadith “My community does not agree on error.”

Al-Barzinji: Chaos is not diversity; fawda is not ta`abiyya. Chaos is that which cannot be predicted or regulated, like [long-term] weather. The creative chaos of diversity is positive.

Ayoub: The opposite of chaos is cosmos, not control, but order.

Hisham Altalib: Why need a council be an alternative to the chaos? Why can’t you have both, let the open issuance of fatwas continue, but also multiple councils of fatwas.

Adam Shaikh: I am from Sudan, but have been here for 23 years and would appreciate if this institutionalization supported by Dr. Hisham could give Muslims in the United States a role.

Dale Corre: I would question whether chaos is the right translation of fawda, which comes from a root that puts everyone on the same level, anarchistic as opposed to hierarchical.

Caeiro: There have been a number of suggestions about metaphors, which I will need to think about them. When I spoke of laziness in metaphors I was thinking of the term market logic that doesn’t really say anything since there are multiple markets with multiple logics. I need to look further into the question of social entropy. I chaos means unpredictability, that is in the nature of the social world. Merely having a website doesn’t make you equal to everyone else with a website. AMJA (Association of Muslim Jurists in America) are based all over the world. How do they incorporate that the fatwa should be responsive to local times and places? There is an intergenerational dimension to this perception of chaos. Thanks for the distinction between crisis and chaos, I shall give that thought. There are different concepts of order that need to be historicized and ask how Muslims conceive order.

M. Ayoub: The Bible says the heavens and the earth were in chaos until God imposed cosmos.

Alexandre Caeiro: What is missing from the notion of chaos is relating plurality to the notion of lack of qualifications in the scholars. There is the literal versus the purposive understanding. When Qaradawi tells people to vote, they ask for whom shall we vote? And he suggests the ones that oppose homosexuality, but there are no such parties in France.

Mujib Ar-Rahman: A scholar can be expelled from his own country or killed as an apostate because of his fatwa.

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

News and Analysis (9/12/11)

Monday, September 12th, 2011

China offers the U.S. lessons on how to ban Shariah law by “escorting” students to lunch during Ramadan, shutting down the cafeteria  on the feast day, and prohibiting them form going home for the holidays:

Is that a picture of Ayatollah Ruhollah Khomeini in the FBI Power point presentation on state-sponsored terrorism? Agents charged with improving relations with the Muslim community don’t know, and that highlights the problem:

“The only winners here are those who spend millions of dollars censoring any criticism of Israel and silencing the voices of children who live every day under military siege and occupation”:

The attack on the Israeli embassy in Egypt further strains relations between the two allies and provides a convenient excuse fo e the Egyptian military to escalate violent repression:

Israeli arrogance remains in place even as it alienates Egypt and Turkey …

… and even as “the U.S. is once again going to the mat for Israel at the United Nations, where Palestinians intend to seek recognition of an independent state in September,” Israel shrugs off the rising discomfort of its most submissive ally:

In the wake of 9/11 some Americans demonstrated Christian love; how an investigation into the smears of the Islamophobes led one Southern Baptist to embrace Islam:

Latest developments in Libya:

 

Interview with Panjereh on Islamophobia

Sunday, September 11th, 2011

[We were recently interviewed by Panjereh on the phenomenon of Islamophobia. Here are the questions and answers:

Q- What are the main aims of the US and West from Islamophobia?

A. Islamophobia is not an official strategy of the U.S. government nor, I believe, of Western governments in general, even though it has been effective in influencing government policies. It is a tool wielded by a small number of pseudo-“experts” on Islam funded by several wealthy organizations to advance the cause of  the neoconservative political movement to increase the power of the central governments  of Western nations at the expense of the civil liberties of their citizens and to advance an imperialist foreign policy.

Q. – Which actions they have done in this matter?

A. A number of books, videos, articles, op0ed pieces and many blogs have been published promoting falsehood and distortions about Islam, misrepresenting the nature and objectives of Sharia and conflating it with particular or imagined schools of fiqh. Interviews are frequently given to the media in which unfounded speculation is paraded as fact, individuals with disreputable histories are presented as converts to Christianity from Islam and/or as reformed terrorists, and people with poor scholarly credentials and heavy political agendas are provided platforms to demonize Islam and Muslims.

Q.- What are the internal and external consequence of this process?

A. Western foreign policy in general and American foreign policy in particular have been skewed in favor of support of a foreign interventionism that has more often than not aided and abetted dictators in the Muslim world, destabilized American allies, provided excuses for authoritarian regimes to suppress democracy, civil society institutions,  and rule-of-law movements within their own countries as fronts for American intervention, and enabled the continuation of the policies of apartheid, occupation, and aggression of the Israeli government against the Palestinians and of warfare against its neighbors. Domestically, the policy has enabled the institution of unwholesome laws and policies that have permitted unprecedented government intrusion in to the personal lives of its citizens, imprisonment of Muslims and those who defend them on flimsy or no charges and under harsh conditions, a wave of “anti-Shariah” legislation that jeopardizes the free exercise of religion, and contributes to the  explosion of government spending that threatens the credit rating of the U.S. government and the economic future of both the nation and the other countries whose economic futures have become interdependent with it.

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

IIIT Panel on the Jurisprudence of Minorities

Thursday, September 8th, 2011

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #11

[This is the eleventh 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: Imad-ad-Dean Ahmad
IIIT Panel on the Jurisprudence of Minorities

Magfirah Dahlan Taylor’s summary of
“Deliberative Ijtihad in Minority Fiqh: Legal Theory and Practice”
by Professor Abdessamad Belhaj, Catholiv University, Louvain, Belgium

Deliberative ijtihad practiced by minority fiqh is a symbolic form of collective action.  He first says that deliberation has a historical role in fiqh. He compares three modern views. For Taha Jabir Al-Alwani it is collective hermeneutics (epistemological complementarity). Yusuf Al-Qaradawi sees it as collective action and Abdullah Mahfudh ibn Bayyah uses the term deliberative fatwa (because ijtihad is by nature individual rather than deliberative). These views are complementary rather than competitive. Deliberative ijtihad is not a competitor to traditional fiqh but derives references from traditional fiqh, focusing on giving decision for Muslims in a minority situation. The goal is simplicity and proactiveness. Capacity of Western societies to accommodate Muslim practices requires Muslims to access the Western cultural code to negotiate their position. Any development of minority fiqh in the West must accept the Western public space and work within it. He illustrates this by the European Council for Fatwa and Research (ECFR)’s approach to the veil controversy in France. ECFR’s fatwa calls on Muslims to demand legitimate rights and oppose unjust law by using peaceful and legitimate means within the law, appeals to the government to stand by its own goals of national unity, social peace and solidarity, and on Muslims to engage in dialog with the appropriate government bodies. Belhaj says these points show the discussion of the veil is not reserved or Islamic jurists but must include many voices in the public space. Public deliberation includes voting, campaigning and letter-writing and must engage a variety of civil and political actors.

‘Dar al Islam Revisited: the Concepts of Territoriality in the Context of Fiqh al `Aqalliyyat
Sarah Albrecht, Ph.D. candidate, Berlin School Muslim Cultures and Societies

I became interested in the topic of minority fiqh in working on my Ph.D. thesis. The various approaches to the concept of minority fiqh are based on different concepts on territoriality. I begin with concepts developed by and for European Muslims. Although some Muslims have lived as minorities under non-Muslim rule from the beginning, only recently has it become an issue, especially regarding Europe and America. Coined by Dr. Taha in the 1990s, the term fiqh al `aqalliyyat (jurisprudence for Muslim minorities) was picked up immediately by other scholars, including Abdullah bin Bayyah, a prominent member of the European Council for Fiqh and Research, popular in the US due to his links to Hamzah Yusef. Others have suggested alternative approaches. I shall deal only with a selection of these approaches.

Tareq Oubrou promotes the reconciliation of Islamic values with French values. He does not address the transnational ummah but focuses on French Muslims and the laicitist setting. He rejects any legalistic approach, but limits himself to a moral approach. He opines that God has disappeared into the beard and headscarf.

Perhaps the most prominent participant in this discourse, Tariq Ramadan is a committed advocate of a European Islam. He rejects labeling Muslims as a minority as it conveys the impression they are not full members of the society but permanent strangers.

Another project is the Moroccan Council of Ulama for Europe. Taha Tishqani presides over 18 scholars, 4 of whom are women, and it seeks to be a marja for Moroccan Muslims in Europe. It is too young to evaluate, but it is clearly different from the others, with a more limited agenda, with a target audience identified by citizenship, all Moroccans and all Maliki. The term used in Morocco is fiqh al mahjar rather than fiqh al `aqalliyyat. Unlike the other fiqh councils we have considered, it is not an independent union of scholars, but a state appointed agency.

Traditionalist contestations have come from Europe and the Muslim world. Bin Baz and al-`Uthaymin reject permanent residency in these countries and a separate fiqh for them. Asif Khan (Hizb at-Tahrir) rejects minority fiqh as an attempt to undermine Islam. In the U.S., Salah as-Sawi (president of the Assembly of Muslim Jurists of North America) has repeatedly uttered harsh criticism against the notion.

Taqsîm al ard or Taqsîm al ma’mûra divide the world into two camps. Has the minority fiqh challenged the Islamic notions of territoriality? Dar al Islam, Dar al Harb, Dar al Kufr are not founded in the Qur’an or sunnah. They are historical concepts that rooted in political circumstances of the futahât (Islamic conquests). Khaled Aboul Fadl distinguishes two eras in this regard. In the first five centuries cases were decided individually. Only in the 6th century did the systematic and controversial discourse arise. At one time Dar al Islam was those lands ruled by Muslims. Jasser Auda identifies five criteria: application of Islamic rules (ahkâm al-Islâm); Muslim rule or control; security (amn); protection of public acts of worship (sha’ar al Islâm) and justice (`adl). Apparently a Muslim majority was never a necesary condition in determining what is the Dar-al-Islam.

The territorial concepts in the discourse are of four types: perpetuation of antagonistic worldviews, rephrased dichotomies, imagined territories, and thinking in national boundaries. Antagonist worldviews are found only in the categorical opponents of the concept of minority fiqh. Bin Baz, al-Uthaymin and al-Buti advise against contact with non-Muslim worldviews and against living under non-Muslim rule. Qaradawi in contrast, as president of ECFR, divides Dar-al-Islam from Dar-Ghair-al-Islâm, using the criterion of Muslim rule and majority population, alwatan al-islâmî v. ightirâb. He thus avoids traditional categories like Dar-al-harb, but by contrasting the Islamic homeland to the realm of alienation he implies Muslims cannot be completely at home in non-Muslim countries.

Shaikh Taha Al-Alwani’s view of territoriality is different, for he denies that Islam has geographic boundaries. Referring to Abu Hassan al-Mawardi and Ala ad-Din al-Kazani’s views, he sees the entire world as Dar al Islam. Following Fakhradin ar-Razi, there is the land of compliance (dar al-ijâba) and the land of propagation, dar ad-da’wa.

For Tariq Ramadan there is dar ash-shahâda with the criteria of security and freedom of religion. He rejects dar as-sulh and dar al-ahd as solutions to today’s problem. He calls upon Muslims to call themselves as shahâdah `ala-nâs, or witnesses to the world.

Fiqh al-mahjar (Moroccan discourse) and Tareq Oubro’s chari`a de minorité accept the political boundaries of the nation state, the former putting emphasis on the polity of origin and the latter on the polity of residence.

In summary, Qaradawi’s rephrasing of territoriality retains the notion of a conflict of identity which Al-Alwani’s deterritorialization rejects.

Alexandre Caeiro Discussant

The two papers resonate with each other; they invite us to compare descriptive with normative understandings of fiqh al aqalliyyât. The latter is a very modern idea. Given that Muslims have been minorities since the beginning, we ask why the need for fiqh al aqalliyyât appears now. The international circulation of the discourse on the setting of national fiqh is an interesting paradox. How neatly do these ideas of territoriality correspond to the different ways in which different advocates of fiqh al aqalliyât approach these issues? Sometimes they are tied to their positions on particular questions like political participation and mortgages. If we accept the link to particular issues, then how meaningful is the territorial aspect? Perhaps questions of moral agency, integration, or struggles of authority are more pertinent. The contexts in which these authors coined these territorial concepts are worth pursuing. Qaradawi’s main consideration is the establishment of an Islamic state. Other Muslim organizations are moving away from the establishment of the Islamic state, especially in the wake of the Arab Spring.

Vinay Khetia Discussant

Muslims view of the Other can predicate how they look at or divide up the world. Under what conditions is hijrah acceptable? Sistani and all the Shia say you can only migrate if you can practice your faith (both ibâdat and mu`amallât); otherwise, you are living in a state of sin. Thus women must be able to observe the dress code and all should be able to obtain halal meat. When Jafar al-Sadiq was asked if someone can marry in non-Muslim lands, he distinguished between the monotheistic and other parts of the world. Now scholars speak of abode of peace and abode of the contract. One must follow the laws of the land as long as they do not violate the Shariah. For the Shia your homeland is wherever you have your property, but the state was always a problem and one may be freer in a non-Muslim country.

Albrecht: Others are doing studies comparing Sunni and Shia perspectives that will be interesting to see when they are complete. Sistani’s Fiqh al Mukhtarabîn is now being translated into European languages. Can we really separate the questions of Muslims minorities from those of Muslim majorities, for example on bank loans?

General discussion.

Ahmad: I think that one of the reasons this question has arisen now is that confessional distinctions were once a given, but in the era of the nation state are contested as a challenge to the notion of citizenship.

Sami Shamma: Fiqh al aqalliyât was just called fiqh at one time, for example in India. What is happening in France is undoing everything Tarek Ramadan has called for, the notion of global citizenship.

Sami Ayoub: Sunnah played a role in the development of these territorial concepts.

Albrecht: Zaynab Alwani has spoken of Sh. Taha’s view in the Indian context. The vast majority of Muslim minorities are in India, Russia, etc. not in Europe or America. Qaradawi has traveled a lot but he has not, as Al-Alwani has, lived for an extended period of a time in a majority non-Muslim land.

Mahmoud Ayoub: Can one live a really Islamic life in a non-Muslim country? How can you keep your culture in a non-Muslim majority country?  Many of the issues are non-fiqh issues, but just daily life issues. The Hanafis said any place they can have a qadi (as the Jewish communities inn Europe were allowed their own judges) could be considered Dar al Islam. I don’t like to use the term diaspora for Muslim; it is a Jewish term meaning dispersion out of Palestine. Muslims believe the whole earth belongs to Allah, and there is no theology of the land.

Abubaker Al-Shingieti: The choice of territoriality is not only appropriate but significant because it is central to the nation-state notion and can also be related to culture, language, and many other things. I didn’t hear you address the role of European converts to Islam on this issue.

Anwar Haddam: The fatwa has always been defined by time and place. The real issue is people taking matters into their own hands, as well as how Muslims view the Other. I think we should ask how the West views the Muslims, for example in the context of EU membership for Turkey.

Adam Sheikh: Dr. Taha did not found the FCNA. It existed before he came to the U.S. Muhammad Sha`bani, a student of Abu Hanifa, identified the need of those in Spain for fatawa that would suit their condition. I think Muslims here and in Europe can benefit from the example of the Muslims in India.

Vinay Khetia: One of the sites of conflict is the tension of identity, negotiating the demands of society, school and work, and the demands of the fiqh. Jafari fiqh forbids shaking a woman’s hand. The creativity of new solutions of the Shia scholars in questions like inter-gender handshakes is a problem. The scholars produce the opinions, but they feel very bad about it. I think we should focus not on the scholars in Najaf, but the people on the front lines, the representatives of the marja in North America.

Hafas Furqani: I think regionality is more significant than territoriality. In the 1990s we had “Indonesian fiqh,” so it has nothing to do with minority status.

Kia: Are the opponents of fiqh al aqalliyât concerned about a brain drain? It would enhance your presentation if you talked about the relationship of traditional and modern ideas of jihad to Dar al Harb and territoriality, because I think jihad rather than territoriality drove the developments of these ideas. Jihâd kifa`iyyat survives and aggressive jihad is outmoded by the nation state system. These are descriptive ways by which scholars viewed the past, not prescriptive norms. If the presumption of war has been replaced by the presumption of peace, then everything changes.

Reed Taylor: I found your description of territoriality very similar to how Europe defined territoriality. Is it appropriate to impose a Eurocentric notion if territoriality on Muslim law?

Albrecht: I agree with Prof. Ayoub on diaspora and only used the term in the context of the Moroccan approach. I have not focused on the converts, who are a minority within the minority. There is a distinction between Western and Eastern Europeans; the latter might be considered traditional Muslim minorities not subject to fiqh al `aqalliyyât.

Caeiro: Qaradawi initially excluded the Eastern European Muslims but later included them. In France Imams can’t ratify a marriage.

Ahmad: A Moroccan woman, influenced by French law, came to me to do an Islamic marriage ceremony separate from her civil marriage, not aware that under American law a licensed Islamic marriage satisfies legal requirements.

Albrecht: I should have said Alwani was chairman, not founder of FCNA. As-Sawi rejected Alwani and Qaradawi’s role on the permissibility of American Muslims fighting in Afghanistan. It would be a good research project to see how imams put into practice these fatwas. If Alwani were to consider an American fiqh it would be outright rejected by the other scholars. The brain drain is mentioned but I don’t think it is a primary concern.

Al-Shingieti: The discourse on territoriality comes out of the Dar al Islam vs. Dar al Harb (or Dar al Kufr) terminology resurrected by the Orientalists. We don’t need to shy away from geopolitics because it was appropriated at a given time by the Orientalists.

Sami Ayoub: Dar al Harb means only the absence of a peace treaty and not necessarily an actual war. For the Hanafis it affects things like inheritance.

Moustafa Kassim: The allowance of mortgages is based on this Hanafi ruling.

Iqbal Unus: FCNA started in religious affairs committee of MSA. At that time it had no competition, and there were not many questions then. After ISNA it became Fiqh Committee of North America and later Fiqh Council. What significance does Muslim majority play in Dar al Islam unless it is a presumption of Islamic rule? But now we have Muslim majority countries with no influence by the majorities at all. At one time Alawis were not considered Muslims and when Asad came to power he removed the constitutional clause that Islam is the religion of the state.

Ezekial Babagario: In Nigeria the northern parties majority Muslim but the southern part is majority Christian so the northern Muslims consider themselves a minority. The Boko Haram consider all others non-Muslims. Are they minority Muslims?

Hisham Altalib: By Dr. Taha’s classifications of dar al ijâba and dar al da`wa: what of lands like the China where no one can practice religion?

Haddam: We should not take the Moroccan Council lightly. The ex-pats may be more amenable to the fatwas of their own from back home. We should ask how effective they are.

Sheikh: I haven’t been in Nigeria, but what we hear about Boko Haram is not the Islam we are advocating. I don’t consider them to be Muslims.

Albrecht: I agree with Sami on the importance of jihad, and I would also add hijrah. By my findings, there has never been in traditional approaches any majority Muslim population concept, and Jasser Auda’s research confirms this. It has never been the sole criterion and shouldn’t be. As to Nigeria, the whole notion of fiqh al aqalliyyât is already contested, by Tarek Ramadan among others, without forcing it into the Nigerian context. This question of land in which there is no freedom of religion is one of the problems I have with Alwani’s text. He defines Dar-al-Islam as an all-embracing concept but focuses only on those parts of the world in which he thinks there is freedom of religion.

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

News and Analysis (9/8/11)

Thursday, September 8th, 2011

“This smells of persecution….  In a free country … this should simply not be happening” — Father Wilfredo Benitez, rector of St. Anselm of Canterbury Episcopal Church in Garden Grove:

Without full implementation of  “the specific provisions laid out for the two states [of South Kordofan and Blue Nile] in the 2005 Comprehensive Peace Agreement,” the secretary-general of the Sudan People’s Liberation Movement- North (SPLM-N) says the spreading conflict is “about democracy and transformation. The issue is about how Sudan is going to be ruled”:

“The lesson, of course, is that too few check with snopes.com or some other reputable source. It’s more fun to hate, to reach for the rope…. Lincoln once said a lie can travel halfway around the world before the truth ever catches up with it. Sometimes by the time it does our foolish reactions can ruin lives”:

Describing himself as “a strict social conservative, a fiscal conservative, a very strict constitutionalist” Nezar Hamze tries to organize a Muslim Republican club and is greeted by a “un-Welcome Mat”:

As hunted strongman releases  an audio recording insisting that he hasn’t and won’t leave Libya, the “high cost of bringing down Gadhafi’s nearly 42-year-rule over the oil-rich nation, meanwhile, came into sharper relief, as the country’s interim health minister announced that at least 30,000 people were killed and 50,000 wounded during the six-month civil war”:

Sir William Gage condemns “members of the battalion for their lack of moral courage to report abuse'” with revelation that a ‘large number’ of soldiers assaulted Mr Mousa and the other detainees”:

“A special Bahraini court has released on bail 20 Shia Muslim medics being tried for their role in a month-long pro-democracy protest, including many who had gone on hunger strike”:

“There is very, very serious pressure on us but at the end of the day Abu Mazen [Palestinian president Mahmoud Abbas] … has no choice‚ and no one can blame him” after twenty years of failed negotiations — Mohammad Shtayyeh, a senior member of the UN bound Palestinian team:

Israel wil not be on Erdogan’s itinerary of his ” four-day tour [beginning] on September 12 to discuss ‘opportunities for co-operation’ with the countries undergoing democratic transitions”:

 

News and Analysis (9/7/11)

Wednesday, September 7th, 2011

“A ‘licence to kill’ (or to abduct and torture) only exists in certain films, and in dictatorial regimes. In democratic systems, parliaments, as representatives of the people, have a right and duty to know what the government is doing in the name of the people”:

“The leadership of many schools … have attempted to build a relationship of trust with the NYPD but no matter what they do, they are seen as targets and as suspects”:

“Killing bin Laden would have been the perfect moment when your president can say we’ve done it … this is the timetable that we’ve set for withdrawal of troops and goodbye and good luck,” says former Ambassador Turki al-Faisal. Instead, “It’s not just Pashtuns who are fighting back against Americans, now it is gaining a nationwide complexion”:

“The Obama administration is considering a plan to leave about 3,000 support troops behind at the end of the year, if Iraqis agree. But reports suggest that the Pentagon is angling for more”:

Canadian fans of “Little Mosque on the Prairie” have to wonder, do Brits and Yanks have no sense of humor when it comes to Muslims?

Having converted to Islam after his high school teacher “played the whole ‘Islam equals terrorism card” in the wake of 9/11,'” Caleb Carter is “disturbed by … critics who ‘blatantly misquote, take things out of context or makes things up” from the Quran, Islam’s holybook—just as his teacher did a decade ago”:

“Weren’t we clear before how we feel about terrorism? If people didn’t understand us for the past 10 years, what makes Muslims think they’re going to understand us now?”

Victims or offenders? Black Africans insist they are laborers not mercenaries while a young woman claims she killed for the regime to protect her family from Gaddafi’s goons:

“Family lawyers praised the perjury arrest after earlier criticism that the prosecution was not acting strongly enough to discipline its witnesses and present its case. Some have accused senior security officials and Mubarak supporters of pressuring the witnesses into changing their stories”:

News and Analysis (9/6/11)

Tuesday, September 6th, 2011

“Prosecution lawyers were visibly stunned by the testimony of the witness, Gen. Hussein Moussa, and angrily accused him of changing his story from the affidavit he initially gave prosecutors”:

“Before, I couldn’t say anything in my own home…. “But at least I was safe. I was only afraid of Saddam. It is not like now. Now, you open the door to your home and you could get killed” — Fawzia al-Attiya, “a Shiite Muslim who was interrogated by Iraq’s secret police and lost her job because she would not join the regime’s Baath Party”:

“I hope that all Somali people will forget what has been happening in the country and it is up to us to responsibly lead our society through a peace process and reconciliation” — Somali President Sharif Sheikh Ahmed:

While some engage in a propaganda campaign to convince the public that the army embraces a true Islam compared to a Taliban false one ….

… other believe reconciliation is the only road to peace:

Domestic politics explains why the President, who has visited mosques in Egypt, Turkey and Indonesia hasn’t visited one in America:

Turkey’s PM calls Israel a spoiled child as it continues to refuse to apologize for its piracy on the high seas that led to the death of several (including an American citizen):

As Niger’s foreign minister denies Gaddafi is with the convey en route to the capital city:

“’I don’t think it was a good idea to give her money beyond what was necessary to set her free,’ said Peter Singer, a Princeton University professor who has written extensively about ethics and charity. ‘But once it’s given to her, you can’t really have any expectations on what she does with it'”:

Shuratic Iftaa: the Challenge of Fatwa Collaboration

Tuesday, September 6th, 2011

NOTES FROM THE IIIT CONFERENCE ON IFTAA AND FATWA IN THE MUSLIM WORLD AND THE WEST: THE CHALLENGES OF AUTHORITY, LEGITIMACY AND RELEVANCE #10

[This is the tenth 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. Names of participants in the general discussion have been omitted.]

Moderator: Moustafa Kassem
“Shuratic Iftaa: the Challenge of Fatwa Collaboration”
Imad ad Dean Ahmad, Ph.D., President, Minaret of Freedom Institute

Moderator: Moustafa Kassem

“Shuratic Iftaa: the Challenge of Fatwa Collectivization”

Imad ad Dean Ahmad, President, Minaret of Freedom Institute

In the classical era of Islamic jurisprudence, the best scholars were those who not only possessed the keen intellect required for clear original analytical reasoning, but those with a broad general knowledge of all the fields that might bear on their legal reasoning. Today, extreme specialization of knowledge that is a hallmark of modernity poses one of the primary challenges to the process of juristic development in the modern world and has made the process of issuing legal opinions more difficult than ever before. It has been suggested that we must accept that no single scholar can possibly posses all the necessary knowledge to engage in ijtihad on issues that require significant technical knowledge in specialized fields, and that we must develop a new methodology for collectivized iftaa. I explore the arguments for fatwa collectivization, particular challenges faced in any attempt at such collectivization, and solutions to overcome the obstacles and objections.

A fatwa is a non-binding legal opinion and iftaa is the process for the issuance of such opinions. Such a legal opinion must be distinguished from the binding legal judgment called qadâ, which is issued by a judge (di). The judge is concerned with legal disputes, while the mufti provides juris-consultation on a very broad range of issues from ritual to family relations, to political questions. The mufti is the one who implements the process of iftaa and issues the fatwa. The mufti may be of two kinds, one qualified to engage in original legal thought is a mujtahid and may issue fatwas based on his own reasoning derived from the sources of Islamic law. One who is not so qualified, but who is well-versed in the analysis of mujtahids who have preceded him (a muqallad), who must cite the sources for his fatwa.

It is interesting that some of the issues we find in contemporary iftaa have been present form the earliest times, including “fatwa shopping” and evaluation of the competence of the muftis.  Because the overwhelming majority of such opinions were delivered orally, there is no record of them, but most were over routine matters that were not controversial and prompted only by the fact that low literacy prevented questioners from looking up the answers to simple questions themselves. In that environment, the paucity of the written record posed no problem to society. While issues of fiqh and iftaa overlap, the development of fiqh is distinguished by its formal systematic evolution. Iftaa is directed at providing answers to particular real-world inquiries, and is often unrecorded.

 

Initially, a mufti was anyone recognized by the community as capable of issuing fatwas ,but after the tenth a public office by that name was created and gradually the office was increasingly politicized until under the Ottomans there was a government appointed chief mufti, the shaykh al-Islâm.

With increasing frequency over the last couple of centuries, muftis have asserted a right not to be bound by taqlid to earlier fatwas. Further, the usurpation of the functionality of iftaa by the colonial powers and the postcolonial regimes that inherited their administrative structures resulted in a shift of the focus of the muftis’ attention from questions of daily living into political areas. Muftis must now wrestle with the challenges posed by various aspects of modernity as well. At the same time, there has been an exponential rise in the amount of knowledge possessed by humankind and in the degree of specialization in the proliferating fields of knowledge. How can a mufti answer a question about medical ethics, for example, if he has no grasp of the medical issues involved and no comprehension of the discourse of ethicists within the medical profession? With no familiarity with the technical information that is available and without the sophistication required to understand that information, the mufti must either make wild guesses or accept the advice of technical advisers who may have no familiarity with the Qur’an and Sunna.  In the West, we are confronted with the additional problems posed by the unfamiliarity of immigrant or foreign muftis with the cultural context in which their juristic decisions are applied.  Throughout the world, problems are posed by the increasing distance of the jurists from the original languages and contexts of the textual sources and by the complexity of the social conditions in which the decisions are to be applied.

The argument has been made that since no single scholar can master all of the knowledge necessary to arrive at a decision on a number of pressing issues, some mechanism of collective iftaa is necessary. Setting aside for a moment what the mechanism of a collective iftaa would be, let us only consider the abstract benefits of having multiple participants in the process. In what ways are n heads better than one? By allowing the multiplicity of parties to collaborate in the decision the iftaa group benefits from the complementarity of knowledge of its members. Medical researchers with no knowledge of Qur’anic Arabic, Arab grammarians with no knowledge of medicine, bioethicists unschooled in Islamic history, political theorists with no knowledge of hadith, and classically trained Islamic legal scholars without experience in modern scientific research, can compensate for one another’s weaknesses and provide context for each other’s contributions in addressing particular problems that might in theory be resolved by a hypothetical al-Azhar graduate in Islamic studies who had won the Nobel prize in medicine, had such a person existed.

Attractive as this fantasy may be, serious objections arise when we tried to imagine the mechanism by which such collaboration may be effected. Let us imagine the assembly of the committee to deal with the issue of embryonic stem cell research. Let us ignore problems posed by the size of such a committee. For the sake of argument, let us assume that every conceivable relevant discipline is represented in the assembly. If this assembly is a deliberative body modeled on a parliament, however, how are their relative areas of strength going to be integrated into the deliberative and decision-making process? Qualified mujtahids on the panel will object to giving any role whatsoever to medical technicians and would instead relegate the latter to the status of advisors who would be consulted for technical information, but should have no vote in the process. Medical experts may well feel that their insights are not sufficiently understood by religious legal experts who are incapable of integrating them into a coherent fatwa.

Another problem we must confront is the scope of the mission of such bodies. Is their mandate revolutionary or evolutionary? Are they to weave an entirely new understanding of the Shariah that would replace the old schools of fiqh? Or are they required to hew as closely to precedent as possible, and merely tweak old fatwas by the smallest quanta necessary to meet the challenges posed by the questions that are put to them?

Two different modes of collectivization that may be brought to bear. One mode I shall call the parliamentary mode and the other the academic research mode of interaction among the members of the collective. In the parliamentary mode, once we have identified the participants they engaged in a formalized debate on such fatwas as they may propose. As is customary for such debates the merits of each proposal are discussed. Amendments are proposed and considered in the course of debate. Votes are taken on amendments, substitute amendments, modifications, alterations, etc. until a final form of the fatwa can be agreed upon by a majority or some super majority as may be required.

The drawbacks to such an approach are enormous. As previously mentioned, there will be a debate as to who is entitled to have a vote in such a discussion. Some members of the deliberative body will be more equal than others in the sense that some may be allowed to participate in the debate, but not to vote. In the process of amendment political compromises may be made, and the final fatwa may be a hybrid, which has the full endorsement of few if any of the members of the constituent body, but is the only end product that can be arrived at by the parliamentary process. In other words, what should be a legal process will have been politicized. The similarity of such a method to the process of parliamentary legislation evokes the famous dictum that those who like legislation, like those who enjoy sausage, should never see it being made.

The alternative mode is the academic research mode in which the writer of a fatwa develops the opinion in an iterative fashion submitting it for expert review at each iteration. The criticisms of the peers are considered at each step and incorporated into the next iteration. Further, the publication of such fatwas allows competitors to publish alternative fatwas that are informed by the work of their peers. The drawbacks to this mode are it is slow and it does not guarantee that competing fatwas will not survive the process. I think these drawbacks are an acceptable price to pay for a process that promises to match the success of modern scientific research (which is also slow and often results in competing models) in arriving at the truth. One must recall that in Islamic history we often had competing fatwas. Those who require an instant fatwa may have to be content with an individualized fatwa and forgo the advantages of collectivization.

Rather than develop a totally new collective methodology, we suggest that the traditional Islamic concept of shura be combined with modern scientific methodologies of peer review and the new developments in online communication in order to implement techniques that take advantage of the latest developments in technology and scientific collaboration to preserve the fundamental principles of Islamic juridical development. This process supplements the classical texts with the discoveries of scientific inquiries, provides a means for the inclusion of social and physical scientists along with the scholars of the traditional Islamic disciplines, restores the separation between state and scholarship of early Islamic society, and avoids the sectarianization of institutions.

I use the initials OCI to signify an online collaborative iftaa to designate a method for the development of collectivized fatwas that combines academic research mode with the expert review capabilities of the latest technology, while still preserving the benefits of an evolutionary approach that remains linked to traditional methods. The wiki technology (best known for its implementation in Wikipedia, the online encyclopedia) is a popular method of online collaboration. The work of an initial drafter is published online and approved collaborators alter and add to it. However, it is plagued by problems of “thrashing” that result from persons of different perspectives repeatedly changing one another’s material. Our proposal is closer to what is called a collaborative Q&A site, such as those powered by the online technology called stackoverflow.

An OCI site may be established and the general public permitted to post questions for which they desire a fatwa. Responses of particular draft fatwas will be posted to a closed audience of reviewers and then revised by authorized peers and commented upon by a broader circle of experts permitted to comment but not change the posted text. Once a fatwa has been refined and stabilized into a final form, it will be available to the general public for reading and further comments. Nothing in this model prevents competing fatwas from being published in response to a single inquiry. Mechanisms for combing or reconciling such fatwas could be put in place, but the possibility of admitting to multiple solutions (even if mutually exclusive) must be retained if we are to avoid sectarianism. If, for example, there is both a Sunni and a Shia answer to a particular inquiry, there is no reason not to publish both. The traditions to which they belong would be clearly identified to make it easy for non-experts to select between them.

Writers for the initial draft may either be mujtahids with some knowledge of the technical areas of expertise in the question or technical experts with some familiarity with the traditional texts on related issues. Commentators and editors may base their comments and amendments on technical, maqâsidi, or traditional considerations, since it is desirable that the final product take all of these into consideration. As with scientific peer review, the writers of the fatwas need to take fully into consideration all possible criticisms, although they may rebut any of them as well. As much of the debate over controversial points would be retained in the final fatwa as is historically found in a well-written classical fatwa. All fatwas would conclude Allahu a`lam.

The implementation of this proposal will require cooperating teams of computer programmers and an administrative board to screen and appoint the fatwa writers, editors, and consulting experts. The propagation of the results is built into the mechanism itself as the Internet provides its own propagation. Civil society institutions, such as mosques and Islamic federations, can be motivated to make use of the product by giving them a role in the recruitment and administrative process. Muslim businesses can be invited to advertise on the site providing them with an incentive for its wide use provided there are safeguards to maintain the academic integrity of selection and review process. Constitutional safeguards would need to be in place to insulate operations from corruption such as, for example, an advertiser seeking a fatwa favorable to a halal designation for a particular food or financial product.

Calendar Reform provides a candidate for the proposed process. The attempt of the Fiqh Council of North America (FCNA) to engage in shuratic iftaa on the deliberative model demonstrates the politicization to which such a model is susceptible. The official members of the council consulted with three non-member scientists who presented their three competing proposals for dealing with the issue of defining the date of the hilal crescent. As the FCNA members made their iftaa arguments, the scientists were allowed to comment and question. A vote was taken settling on the adoption of the proposal of the astronomer, the “Uniform Islamic Calendar for the Western Hemisphere” (UIC) which I proposed many years ago that the date of the new month would be based on the convention of astronomical new moon before sunset at Makkah. In response to lobbying out of session, the FCNA reversed itself within 48 hours, adopting instead the convention of birth of the new moon at noon GMT, which would result in a one-day delay in the start of the Hijri month in about one case out of eight. The official position given at the FCNA website only says that “to determine a lunar Islamic calendar, a conventional point of reference must be used. The International Date Line (IDL) or the Greenwich Mean Time (GMT) may be used.” The very next year the FCNA changed its position again, this time adopting the position of the European Council for Fatwa and Research (ECFR) that that the conjunction must take place before sunset in Makkah and moon must set after sunset in Makkah. This allowed the date to be one day earlier than by the UIC about one time in eight and than the FCNA’s previous position about one time in four.

How might events have unfolded if an OCI had been employed? A fatwa based on the UIC could have been the original draft with the comments, questions, and criticisms of the consulting scientists and the FCNA members annotated and debate online with ongoing evolution of the proposal until it coalesced into a final form, or failing convergence into two or three variations. It seems to me that even in the event of divergence it is unlikely that we would have ended up with more than the three different positions described in the history above or that the process of evolution would have taken more than the five years that have passed since that original FCNA meeting in 2006 to arrive at the vague statement on the FCNA website cited above.

 

Embryonic Stem Cell Research provides another example. The Shi`a position on embryonic stem cell research is well established and research in Iran on the subject is reportedly well underway. The American Muslim community was still wrestling with this issue as recently as last year a panel of experts was convened by the Islamic Institute to use a deliberative model to develop an Islamic perspective. Their conclusion was that embryonic stem cell research is permissible subject to certain conditions, but they concluded their opinion with a disclaimer that the opinion was “subject to further enhancements in the case of scientific developments unknown to us at this time.”

An OCI could have started with the statement of the Shia position with the consultants participating in the conference making whatever comments and changes they wished. The unlimited varieties of areas of expertise that can be brought to bear in an OCI would provide a remedy for the lack of training in bioethics, which, as Abdulaziz Sachedina has shown in his paper at this institute, is a fact of life for the muftis who have dealt with this subject to date. The worst-case scenario is that convergence would not have been complete at this time, but in that case, the current state of opinion would be constantly updated and available to inquirers without the necessity of additional conferences being held. In other words, there would be a state-of-the-art fatwa available at all times.

We live in an era of high literacy, including computer literacy, when more and more Muslims can avail themselves of the ability to “look up” a fatwa rather than rely on an oral delivery. This has exacerbated the problems of fatwa shopping on the demand side and posting of fatwas of undetermined pedigree on the supply side. The creation of a well-organized OCI provides the mechanism by which both of these problems may be addressed. Participants will receive a real-time as-needed education in the relevant areas of texts, tafsir, context, science, and technology. A “one stop” site for online fatwas provides the opportunity for quality control on the demand side and a market deterrent to proliferation of fatwa sites (think of Wikipedia and Google) on the supply side. The inclusion of all experts in the process can act as a deterrent to sectarianism while enhancing the quality of the fatwas at the same time.  The mass marketing aspects of the Internet can facilitate education on iftaa and the propagation and adoption of the fatwas produced.

Discussant: Muhammad Adam al Sheikh

Collective fatwas something I believe is very important for the reasons stated by Dr. Imad. Asked what will happen after you are not here to answer our questions, the Prophet said to make a collective effort. Hilal and Halal are examples of areas identified by the Fiqh Council. It is unfortunately true that fatwa shopping exists. Some may ask you whether boyfriend/girlfriend relationship or mut`a marriage is better? If you say both are haram you will be ignored. One can say mut`a is not allowed, but at least you will not be subjected to hadd. Truly, Allahu a`lam. It is the one part of any fatwa that is beyond debate. It is better to say I don’t know rather than do tahbîz. As to FCNA, we invite Dr. Imad back.

Discussant: Jamal Barzinji

Whether a fatwa is binding depends on who’s issuing it. I would like more of a discussion of the Sunni v. Shia methods. I make a distinction between shura approach and collective fatwa. In Saudi they do consult with experts but they think they know more, so you should be advocating that the knowledge of the experts should be binding. We assume that those who go into shariah are inferior scholars, which is unfortunately true. Is it easier to teach a banker Islam or to teach an Islamist banking? I would like to see shariah be only to those who have first gotten an advanced degree in any other discipline. I would prefer a Supreme Court model. I worry about the control of advertisers. Dr. Taha took some really courageous positions in maqasid ash-shariah. Since we lost him to Egypt, we have found no replacement. Organization of Islamoic Conference would have been the right ones to take this on. NASA knows every second where the moon is and at what phase, so why do we not have political leadership to say we shall accept that? My suggestions are to: 1) revive FCNA; 2) beef it up with experts in medicine, astronomy, etc; 3) encourage more people in the sciences to take intensive courses in Shariah and expose our respectable scholars of Shariah to intensive courses of general knowledge and modern technology, because the brightest of them would appreciate this; 4) insist on the role of maqasid in taking us out of its stagnation; and 5. exhibit pride in fiqh-al-`aqalliyyât which, in sha Allah, will become fiqh-al-awlawiyyât.

Ahmad: I would be glad to consult with the FCNA, whether they agree with me or not, so long as my views not be misrepresented. The binding fatwas that Dr. Jamal has mentioned demonstrate the problems of state-scholar entanglement that I see as a problem. The great scholars of the early Islam were famous for refusing to cooperate with the state. Academic authority is different because it a non-coercive authority that comes from the respect of the listener for the professor. The Shias do have a more structured system than the Sunnis, and they do require the lay people to attach themselves to a scholar, but even their leading scholars of the degree of Ayatullah Sistani will allow people the flexibility to accept decisions from other scholars.  Knowledge of experts is binding in a way comparable to the peer review process. Scientific experts with no knowledge of Islamic law should be allow input into the process but they should not be allowed to impede the output of the process. The same goes for so-called “Shariah scholars” with no knowledge of the matter at issue. Dr. Jamal’s suggestion of making an advance degree in anything else a pre-requisite to Shariah scholarship is fascinating, and perhaps it would obviate the need for collective iftaa, but if not, I think it could be incorporated into my proposal so that those with editorial control over the published fatwas would have to be knowledgeable in both Islamic law and the secular science at issue. I will have to give your proposal of a Supreme Court model serious thought, but if you look at the U.S. Supreme Court, you will see it has not totally eliminated the problems of politicization. I worry about the adverse impact of advertisers too, but I think that can be dealt with constitutionally  because the Internet is so inexpensive that you are not a slave to the advertisers. In any case you always face the possibility of competition, so I think the objective of any site has to have such a degree of quality and integrity that all the most qualified scholars are drawn to it. I don’t have much faith in OIC because of my concerns over politicization. Why NASA doesn’t suffice is there are some strictly Islamic concerns on which NASA has no opinion, for example the fact that he Prophet did not take the science of his day into account. Those issues must be answered on grounds of maqasdid rather than science.

General Discussion

Mut`a marriage has nothing to do with fatwa; it is a fiqh debate. We all know it was practiced in the beginning and we disagree with whether it was abrogated. I would suggest fatwa institutionalization rather than collectivization. Some have proposed that research institutions be established to deal with these issues for mujtahids to sign off on, and much of Dr. Imad’s presentation could be incorporated into this. Now Sistani is the recognized international marja, but even those attached to him need not accept his fatwas. There is freedom and we have to be careful what we call fatwa. In jest I said shuratic fatwa is a contradiction in terms. Whether you accept a legal opinion or not, we shouldn’t call just any conclusion a fatwa.

The objective of institutionalization has always been there, but the challenge of authoritarianism has always been there as well. Why has Dr. Taha’s example not led to a tradition? The political culture and psychology has prevented it.

There is a fear of chaos if everyone would speak as a faqih. What we need is area research. Expertise and authority need not clash.

It is not just a question of competence; it is also a question of courage. One most respective scholar who has excellent positions on two highly controversial issues has declined to make them public because of his fear that were he to do so he would lose his following and his position.

Is collective fatwa like ijma? When an immediate fatwa is needed can we have a temporary fatwa without waiting for peer review?

Collective fatwa can lead to ijma. It has in the sciences. Relativity was shocking when it was first published, but is now the consensus view. Peer review need not be a drawn out process, but on controversial issues it will. On those controversial issues that require an immediate answer I think the questioner will have to be satisfied with an individual fatwa until the peer review process works itself out.

How does that legacy of colonialism affect the kind of questions being asked? Is the fragmentation of knowledge a part of the colonial legacy? Do you envision this as a multidisciplinary or interdisciplinary project? There is a lot of literature on interdisciplinary methodology. There are non-Muslims (“friends of other faiths”) who know a lot about Islam.

It is not colonialism per se that causes fragmentation of knowledge but the explosion of knowledge. Interdiscipinary study is a means of managing the fragmentation. There is a role for interdisciplinarians. Non-Muslims of friends of other faiths can have knowledge of Islam, but those who do not should be included in the discussion in an appropriate way.

Are we talking about an approach to iftaa in the United States or in a global scale. Who is the audience? Is the inclusion of non-Muslim experts in Islamic studies problematic in the area of authority? Is it really feasible to train people in Islamic studies in 6 months?

Yes. I would start with you.

My audience is initially Muslims in the United States, but it doesn’t end there. I see no problem with allowing non-Muslim experts in Islamic studies to have input, although to give them editorial control over fatwas would simply be inappropriate.

People need to master Shariah from the beginning of their lives. It can’t be done in 6 months.

Not master, but being able to pass the tests that are put to the graduates of these schools of Shariah. He will not master Shariah but will have enough knowledge to challenge the graduates of those schools. The dismantling of the awqaf has been an obstacle to obtain the best brains. It I take some brilliant scientists, doctors, IT specialists, with strong Islamic background twelve months of intensive study they will have access to that knowledge, know how to handle it, have access to it. Allahu a`lam.

The Imam Association in Michigan is an interesting model for the collectivization of fatawa in the North American context. Some of these ideas were shot down in Iran because each has his own khums and followers. Yet somehow they will sometimes issue a fatwa together. All the maraja are represented on the council in Qom.

I prefer the loose structure of the Sunnis over the hierarchical structure of the Shia, but I think the Shia have remained truer to the academic model.

It’s striking how conservative the use of Internet has been in the case of fatwa. Does not this election of participants politicize the process? The presentation indicates confidence in the capitalist model, even to the point of allowing advertising on the site. Do you see any limits? Also, what are the long-term consequences of academization? Will flexibility be lost?

It is hard to be brief with such a profound question. Selection of participants will politicize the process, but it need not be fatal. We have the same problem in selecting the editors of an academic journal. If I submit a paper to an academic journal and it is rejected by a reviewer who holds a view opposed to mine, I get an opportunity to rebut the criticism and ultimately the issue is resolved by another editor or reviewer. The constitutional structure of the site must be established in such a way as to minimize the politicization—and I would add the same for the risks of commercialization. As to the long-term consequences, I think that we are returning to an earlier model. In the early days of Islam the people who did this work were not political appointees, they were scholars whose ability to do this work was respected by their peers and by those who brought them the questions. I don’t think nuances will be lost. I outline a structure in which there is lots of input from lots of sources. If one person says something is haram and another says it is makruh, a debate will ensue and the final fatwa should reflect the nuances of that debate.

Years ago an alim said to me there are two births of the moon, the fiqh birth and the astronomical. I think there should be a happy marriage of the fitra of creation and the injunctions of al-wahi. Finally, I know a couple of scholars who when they start their research say we have some opinions contrary to the common understanding and they are afraid to publish them while they are alive. It is very sad. Can we at least convince them to write them while they are alive for publication after their death.

I’ve never asked anybody for any fatwa on how to live my life. I look at the knowledge floating around from the people I respect and make my own decisions, because that is all I am responsible for. I would weaken rather than strengthen this institution of non-enforceable fatwas. Science is not collective but individual; we should fear the loss of individual creativity.

The first established council of collective iftaa was in Egypt. The European Council was created in this mold. Independence doesn’t necessarily lead to openness. look at the fatawa of Muhammad Hussein Fadlallah. Do you think the institutionalization of fatwa in the American context, with its amazing ethnic, sectarian and doctrinal diversity, will work here?

I would compare non-binding iftaa to dietary advice. No one can stop me from eating junk food, but their advice is valuable. I think the mission should be not to weaken the institutions of iftaa, but to strengthen the sense of individual responsibility among the people. I don’t think American diversity is a problem. Consider Kuhnian paradigm shifts. When you look at the immigrant community here it looks hopeless, but their children all know they cannot argue something is right because his father does it because his interlocutor can say the same thing.

Without making any claim of mastery, I found myself in this field since I was very young, and I think the contempt of people in the field to others who have not been in it from the beginning is a problem. We have two valuable people on the FCNA who are not ulama’, but their contributions are very valuable. I appreciate the comment on mut`a, and as someone in the field I can tell you about three kinds of mut`a: temporary marriage, mut`a at-talâq (termination by unilateral divorce) which is sunnah but not applied, and the fatwa of bin Baz (marrying with the undisclosed intention of divorce).

No priest would ask a Muslim his opinion on Canon law and no rabbi would ask his opinion of rabbinic law but Islam is an open field.

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

News and Analysis (9/1/11)

Thursday, September 1st, 2011

If confirmed, this could be the first high ranking Syrian defection:

Children aren’t born hating; as Oscar Hammerstein II noted, “You’ve got to be carefully taught”:

In the appeal to be heard in oral argument today, the attorney for the Holy Land Fund’s co-founder argues, “The United States Agency for International Development—which had strict instructions not to deal with Hamas—provided funds over many years to zakat committees named in the indictment” that brought his client a 65 year internment:

While lauding the restoration of stolen property to non-Muslims, a columnist for Zaman call upon the Turkish government to go the next step:

Torture can be costly. “The crew of one of the jets involved made expenses claims for items such as $20 sandwiches and $40 wine bottles”:

The Internet communique claims the Taliban have learned from the mistakes of the past and promise “to safeguard all national installations, government departments and the advancements that have occurred in the private sector. Professional cadres and national businessmen will be further encouraged, without any discrimination, to serve their religion and their country”:

Iraq’s former PM asks, “Is this really what the United States sacrificed more than 4,000 young men and women, and hundreds of billions of dollars, to build?”

As the rebels tide of conquests continues and even Russia joins the list of foreign powers recognizing the NCT, Gaddafi persists in his defiance, branding the rebels collaborators of neocolonialists who hope to occupy the unoccupiable country: