Archive for December, 2014

News and Analysis (12/31/14)

Wednesday, December 31st, 2014

“What Mr Hellyer longs to see is the emergence, at least in the wider world, of rigorously independent voices who are willing to denounce human-rights abuses by all sides”:

“The fundamental reason behind this shameful situation in many Muslim countries is clearly the failure of political leadership, exacerbated by the sheepish role of the religious scholars and an absence of a strong civil society”:

“We will work today to replace fear with hope. There is no future for Tunisia without consensus and without harmony between all the parties and civil society” — Beji Caid Essebsi, new President of Tunisia:

“Until shortly before the vote on Tuesday, council diplomats had expected the resolution to get nine yes votes. But Nigeria abstained, with its ambassador, U Joy Ogwu, echoing the US position in saying that the path to peace lay ‘in a negotiated solution'” …

… “Palestinian officials are meeting today to plan their next steps, including possibly setting a date to apply to join the International Criminal Court, Palestinian officials told the Associated Press.  Such a move could pave the way to war crimes prosecutions against Israel, the Financial Times reported”:

Last month Sisi “issued a new law that would technically allow him to deport [Peter] Greste, who is an Australian citizen, and possibly [Mohamed] Fahmy, a dual Canadian-Egyptian national. But fearing a backlash among his supporters, he has not yet shown strong intent to use the law, or to issue a pardon”:

In her New Year’s speech, the German chancellor Angel Merkel criticized the anti- Muslim movement in Germany, calling PIEGDA a threat to German values, and urged to”not follow people who organize these, for their hearts are cold and often full of prejudice, and even hate.”:

News and Analysis (12/30/14)

Tuesday, December 30th, 2014

In Philadelphia, Muslims organize a rally against racism. “Rally leaders decried those killings and said demonstrators were focused on improving policing practices and police-community relations, not on protesting against police per se”:

After a Muslim leader denounced the Ahmadis on a popular Pakistani television talk show, “Luqman Ahmad Shehzad was shot in the back of the head near Bhiri Shah Rehman village, a small community of Ahmadis in the Gujranwala district” …

… but in Britain a talk show host who described Lebanese men as “idiots” who hated “our country and heritage” pays the price of his fighting words:

Hindu militants have forced the invalidation of the marriage of two consenting adults on a technicality:

“When it comes to Muslim women, it’s still all about what we wear – and the last 12 months only serves to confirm this sad state of affairs. What we say, our achievements, opinions and self-determination continue to be brushed aside” …

… and women who wear the hijab or the niqab are more likely to experience hate- crimes than men, and the rate of the crimes is on the rise, “TELL MAMA, a national project measuring anti-Muslim incidents, has told Sky News that over the last 18 months they have seen a 5-10% increase”:

“None of the claimed long term objectives for the war in Afghanistan, either from the Bush or Obama administrations, have been achieved.”:

The country’s vice president claims it is. The evidence suggests otherwise:

John Kerry will no longer use the term “Islamic State” to describe Daesh. The idea is ‘to distinguish between Islam and the Islamic State. As French Foreign Minister Laurent Fabius explained, “I do not recommend using the term Islamic State because it blurs the lines between Islam, Muslims and Islamists”’:

What does Obama have in common with Winston Churchill?

In the Holy Land of Palestine where Jews, Christians and Muslims lived for many years, Palestinians celebrate Christmas, where people like Saleh Murtaja, “the owner of Hadayana gift shop, said he has sold many Christmas trees to both Christians and Muslims this year”:

 

News and Analysis (12/27/14)

Saturday, December 27th, 2014

“In Raqqa, once a city of more than 200,000 people, the militants have kicked locals out of their homes and doled out those houses as rewards to fighters and their families, many of whom come from impoverished backgrounds”: …

… but “Isis’s vaunted exercise in state-building appears to be crumbling, as living conditions deteriorate across the territories under its control”:

The U.S. 6th Circuit Court of Appeals upheld will reconsider its previous decision as to whether Evangelicals demonstrating shouting “crude messages at [Arab] festival attendees” engaged in “disorderly conduct” or merely practicing their 1st amendment rights to publicly express their hatred and ignorance”:

“More than one-third of the Netherlands’ 475 mosques have experienced at least one incident of vandalism, threatening letters, attempted arson, the placement of pigs’ heads, or other aggressive actions in the past 10 years”:

“The arrest of the boy … sparked an outcry, with opposition parties denouncing it as the latest example of the government’s descent toward authoritarianism and its crackdown on dissent. Dozens of lawyers volunteered to defend the teen and petitioned for his release”:

Kenya passes anti-terrorism laws where the country’s’ leading Muslim scholars must not make any negative speech against the government, and such meetings regarding this must be held. Any gathering that criticises the government will be considered a terrorist supported meeting.”:

Can new Muslim celebrate Christmas? The answer is “there is no reason for new Muslims to refuse to join their families on such festive occasions, as long as they do not practice rituals that are considered objectionable-from an Islamic point of view”; e.g., skip the rum in the egg nog:

In Nigeria, “More than 200 Muslim youth volunteers were part of those protecting Christians during church services to celebrate this year’s Christmas”:

The “Muslim community in Malawi has intensified efforts to use teachings from the Holy Quran in order to safeguard the sanctity of marriage and reduce soaring rates of divorce” sparked in part by gender-based violence:

Obama can make history if he recognizes Palestine’s statehood.  Citizenship, is a basic human right, and “Palestinians, as stateless, not only lack most basic human rights, they do not even have a right to have such rights”:

 

 

“Pluralism in Islamic Ethics”

Friday, December 26th, 2014

[This is the third in a series of my notes on the International Institute of Islamic Thought conference on Islamic Law and Ethics held in Herndon, VA in June  2014. These notes have only been lightly edited and represent my perception of the discussion. The proceedings will be published by IIIT at a later time. Responsibility for any errors in the notes is mine alone. Names of general participants (other than mine) in the general discussion have been omitted by request of the organizers.]

“Pluralism in Islamic Ethics”

Prof. Carl W. Ernst, William R. Kenan, Jr. Distinguished Professor and Co-Director of the Carolina Center for the Study of the Middle East and Muslim Civilizations, University of North Carolina – Chapel Hill

In thinking about a major topic one should go to the major reference works to see what the current status is. I saw that Kevin Reinhardt, Ebrahim Moosa, and Abdul-Aziz Sachedina had very different views from one another on the subject of Islamic ethics. How does one define the subject and what are the solutions proposed? The variations in the definition are fascinating.

Reinhardt says Islamic ethics must be defined exclusively in terms of Shariah, excluding philosophy, Sufi tendencies, and theology. Sachedina sees teleology as the key realm, excluding law from the primary focus. Moosa not only introduces the philosophical tradition, but also adab (manners) as a comprehensive norm. He also draws on the Persian tradition and salûk (behavior), Sufi norms of comportment, and even when discussing fiqh, he includes the inner intentions of the actor. I found myself in the uncomfortable position of wanting to argue against Hodgson, who stipulates we could separate Islamic as religious phenomena derived from scriptural sources from Islamicate, which constitutes a broader cultural realm. Where does culture fit into the discussion of ethics? Reinhardt acknowledges the impinging norms of civilizations in contact, but finds it easier to focus on the role of Islamic teachings. This orientation is common in Islamic discourse today.

While it is true that for both Moosa and Sachedina the dispute between the Mu`tazila and their rivals is central, I think they address different projects. For Moosa, the challenge is to take into account how law and ethics figure in change and secondly to ask how law and ethics retains its sacred character despite change—which he thinks is not being done. For Sachedina, the project is the reinstatement of reason as a partner with revelation in restoring ethics.

Islamic ethics is an outsider term. In Islamic writing, one speaks of “ethics” not “Islamic ethics.” “Islamic ethics” shifts us into the discourse of comparative religion. Perhaps this is necessary, but we need to acknowledge it. These analytical distinctions are useful for scholars, but they are not particularly reflective of the living world of Islamic moral choice, which I would like to suggest is more integral, in which there was a fusion of the horizons of what scholars would consider different ethical systems. Consider that the Pashtun see no difference between their customary ethical code and Islam. A Malay text from 16th century Java called “An Early Manual of Muslim Ethics” that was deeply embedded in the local culture includes the saints who brought Islam to Malaysia. The culture is inseparable from the authority that the people receive in their local environments. Thus, I think Hodgson’s distinction lends itself to ignore an interaction between culture and religious teaching, at our peril. I found a translation of a Persian text on fatâwa on chivalry, manliness, and virtue from which one may draw a similar conclusion.

I will focus on Greek philosophy and the colonial period. The encounter with Greek philosophy is important, as were other ancient cultures. The translation movement, mediated by Nestorian Christians, translated first into Syriac and then into Arabic, and resulted in a new series of categories and methods of thinking that became deeply embedded in the religious sciences as well. There were sectors of thought resistant to foreign thinking, but Ibn Rushd represents those who insisted that the study of philosophy was necessary, provided one was qualified. The Decisive Treatise on the Difference between Religion and Philosophy is a masterful demonstration of this method. For example, he explains that qiyâs means analogical reasoning in law but syllogism in philosophy. Even more ambiguous is al-Ghazali who famously repudiated the philosophers, notably Ibn Sina, but he took on a lot. Similar to ibn Rushd, but in a more Sufi manner, he draws on the Greek tradition but widens it to include the ideas of generations of Sufi thinkers. There is a vast literature on this. Muzaffar Alam has written how Islamic ethics comes out of the Greek tradition, not Shariah, but he underestimates the role of the Islamic tradition. We cannot understand Ghazali and Ibn Rushd without considering the embedding of Greek thought in Islamic civilization.

There were other traditions drawn on beside the Greek. The Persian and Mongol notions of kingship that antedate Islam and were not defined by Shariah affected the Islamic empires. Khalîl wa Dhimma originates in Sanskrit and is one of the most widely translated books in history and became a popular text on the dissemination of statecraft. Sachiko Murata has published studies on the influence of Confucian thought on Islam. If you didn’t know the author was a Muslim you would find it difficult to distinguish it from the standard literature composed in Chinese circles.

Darsay Nazami is an 17th century Indian text with a heavy emphasis on the intellectual tradition, but colonial rule eliminated the local patronage of intellectual institutions. So a new type of institution founded during the British period like Deoband (established 10 years after the Indian revolt against the British) had an entirely hadith-based curriculum. It moved in a different direction from the earlier curriculum and adopted a new bureaucracy in an understandable reaction to British pressure at the time. There were other changes such as the rejection of slavery. Moving to the 20th century, a new form of reflection continued on gender, the emergence of the modern nation state as an entity of unprecedented concentration of power and monopoly of violence in a position to create new definitions of religion.

This is a scattershot approach. Things that don’t fit easily into our categories require us to reflect on how to deal with the seemingly anomalous cases. Discussions of ethics today tend to take place in the context of writers like Allistair McIntyre and Charles Taylor, who provide important questions that can be addressed by people from various backgrounds. Sometimes culture is viewed as the realm of inauthentic elements in Islam. One looks at, for example, the Sunnah of Medina as something bracketed off from culture. I think Islamic culture needs to be theorized.

Respondents:

Prof. Abdulaziz Sachedina, IIIT Chair, GMU. Both fiqh and akhlâq deal with human action. Ethics wants to analyze human action in such a way that the actor and the act may be deemed laudable or blameworthy. Why must the one who enters a house greet the people in the house and not the other way around? Why must the one on a horse greet the person on the ground and not the other way around? “No harm should be done, no harm should be reciprocated” is ethical language. I say it is part of the Shariah, but it is something more fundamental: scriptural ethics. I want to understand the reasoning that makes an action right or wrong. George Hourani has shown us that legal categories and moral categories are not different, except in source. The Shariah categories of mandatory, laudable, optional, reprehensible, and prohibited antedates the revelation of the Qur’an.  Yes, we are influenced by our colleagues in Christian and Jewish studies. The Qur’an is a moral book. Al-Ghazali is a relativist. I think this is a modern discourse, but even if these ideas were not well-articulated, they were native to the classical tradition.

My starting point is not Charles Taylor, etc. I do not read them first; I read them afterward to see how I can refine my understanding. Mohamad Ghazali distinguished between the Sunnah of the Prophet and the sunnah of the Arabs (the fuquha) and was condemned for it. I remember asking Ayatollah Khoei in Najaf many years ago as to whether women could sit with men and listen to the religious discourse. He replied that things applied in Najaf cannot be applied in Toronto.

Prof. Mahmoud Ayoub, Hartford Seminary. Is ethics the study of religious morality or the study of proper behavior without due regard to morality or correctness? Takhalaqu bi ikhlaqAllah means what? Is ethics simply the study of etiquette? Shariah is more than the study of law; it is a set of moral imperatives by which human beings live. Why did Mansur kill Abdullah ibn Muqaffa? Ghazali was willing to look at ethics in the abstract. What is a just ruler? One who imposes justice or one who just guides society to the good? Should Machiavelli’s Prince be studied as literature or as ethics; and if ethics, where does it take us? Ayan At-Tawhidi talks about proper behavior that is expected of highly sophisticated ministers; yet, it is also entertaining. It is not fortuitous for me that the Thousand and One Nights came out of the Mamluke culture, where people enjoyed hearing about modes of living that symbolized different things. Draz Muhammad Abdullah called his book La Morale du Coran. Is enjoining good and discouraging evil just moral? Is al amr bil ma`rûf (enjoining the good) ethical? The opposite of ma`rûf is munkar, that which is rejected. Miskawai did Persian ethics as well as Aristotle. At-Tusi and others spoke not of moral action, but of how you beautify a woman in preparation for her wedding. Is this ethics? Broadly, yes, but how can we translate the Aristotelian Western term into Arabic? Akhlâq is not ethics but character, perhaps moral character. I want to address the idea that ethics is something definable to which all would agree. People who take about global ethics are really talking Western capitalism. Is that ethics? The only way I avoided failure in my ethics course at Harvard was to write a paper on a Quaker thinker.

General Discussion.

Q. There is an unsophisticated attempt to separate culture from Islam that presumes that the understanding of Islam of the sahaba, or of the proponent, is culture-free as opposed to the understanding of others.

Q. Many Muslims feel they own a privileged definition of Islam from which they can adopt an imperial notion of the self in identifying all around them. Naming (i.e., definition) is a process of inclusion and exclusion. The ethical dimension comes when you apply this to human relations and you privilege a human community by attributes that have no moral dimension to them (gender, color, tribe, etc.). Identity is important to the human project.

Q. I believe Hodgson has a point. Monotheism, although still hierarchical, tends to be more egalitarian than other traditions. Even ibn Rushd is hierarchical in stating philosophy is only for the elite. Louise Marlow has shown how egalitarian the first century of Islam was, until hierarchical structures were adopted from other civilizations.

Q. I was intrigued by Prof. Ayoub’s question on what is ethics? I think ma`rûf means to make virtue customary. As an immigrant I don’t have a clear cultural reference, so I turn to the teachings.

Ernst. The term culture is a modern term, but it hasn’t been looked at much in relation to Islam. See Elizabeth Qassam’s award-winning book on modern Arab culture, in which she says culture has become so important in Arab society because of the absence of political participation. Also see Charles Tripp’s Islam and the Moral Economy on the translation of Society into ijtimâ` and how it became a new way of thinking about identity.  A lot of this has taken place without conscious reflection. I am still a member of the Hodgson tarîqa, but remain concerned about the inauthentic use of `arf and ma`rûf. It is addressed to multiple communities.

Q. Salafism is so successful because it appeals to acculturated, deterritorialized Muslims.

Q.  The closest translation for the Greek word (ethos) that generated the word ethics in the Arab-Islamic perspective is fiqh. Islamic law is qanûn, not fiqh. Some say ma`rûf is what society agrees on and others say it is what Allah asks us to do. Taqâfa (culture) is not culture. Ibn Rushd distinguished between ethics and fiqh. The faqih did not benefit much from ibn Rushd the philosopher. Ghazali was not a relativist, but a musawwi (egalitarian). In the end he believed in al-haqq Wahid (absolute truth).

Q. Who are the makers of Islamic ethics today?

Q. The law may change but the morality that underlies it does not change. If you believe ethics can change, provide a historical example.

Sachedina. If we see no modern cognates, that doesn’t mean an idea didn’t exist. The absence of a word doesn’t mean there is no understanding of the concept. This applies to culture and to ethics. This is like the claim that there is no concept of conscience in Islam. Or like saying there is no secularity in Islam when Islam has no church and no ecclesia.

Ayoub. One of the problems today in discussing `urf and culture is the judgment implied. So many Muslims denied that the 9/11 bombers could be Muslims, but I cannot say anyone who calls himself is not a Muslim, only that they are wrong or mistaken in their actions.

Q. I want to return to the question of complimentarily. It implies diversity and an acceptance of different outcomes. Maybe the definition of ethics puts these together.

Imad-ad-Dean Ahmad. All agreed the definition of ethics is ambiguous. I don’t understand how the proposition that the Qur’an is ethical becomes controversial. It defines itself as a book of guidance. The central issue of the story of Eden is the tree of harm and transgression. Nafs is characterized by an ability to know right from wrong, which can be purified or corrupted. The condemnation of female infanticide is not presented in the form of divine dictate, but as a rhetorical question posed to the infant who is asked “for what crime was she killed?” Surely, this is an ethical rather than a legal appeal. Ghazali was not a relativist; he only acknowledged the role of culture without elevating it into an absolute source. He notes that if anyone simply accepted the culture in which he is raised he would always remain in the religion of his parents, making it possible to come to the truth. Thus he was presuming, rather than denying, the existing of an objective truth. Hypocrisy, not gender segregation was the issue in your anecdote about Ayatollah Khoei. “Disentangling culture from religion” is a current project of mine and I agree that the approach requires sophistication. We must seek to intellectually disentangle culture from religion, but to do that we must appreciate  and articulate the role culture plays in or own understanding of religion, and in that of the sahaba, as well as in those whose interpretations we seek to critique. `Urf is a source of fiqh, but not the only, nor even the supreme, one.  `Urf is what all societies know to be good. Some things accepted by pre-Islamic Makkan culture are unethical and repulsive to the purified nafs, e.g. infanticide.  Fiqh is jurisprudence, not ethics. Ethos means character, so akhlâq is nearer to it in meaning than is fiqh.

Q. Is it necessary to pass through law to get to ethics?

Q. The definition of ethics is shifting. For example, organic milk is now argued to be a more ethical alternative. Ibn Khaldun says philosophy is okay provided you study the Islamic sciences first.

Q. Karl Barth says culture is like a gun and religion is like the cartridge. When one is wounded by culture, he blames the religion. The Hanafis in India accepted elements of the caste system, for example punishing people at the bottom more than those at the top for littering.

Q. Tawhid began with a negation, la illâha ill-allah, a rejection of the dominant culture.

Q. I am confounded by this discourse because we have not come to a precise understanding, as if we are in a fluid state. The Prophet challenges the `asabiyya of tribe, yet he retained some customs like generosity. Izutsu may give us the underpinning we need to understand these issues.

Ernst. Ethics originally meant virtue, but it has come to mean reasoning about these issues. We will not resolve the tension between the view that something is good because God commands it and the view God commands that which is already good. This is the core problem of ethics.

Sachedina. We have been using some terms interchangeably and without precision, because that is how the literature uses these terms. How do we make a decision about an action? Should I tell a lie to hide a man I believe to be innocent from the police? Literature provides answers.

Q. I insist the solution to all these issues is in fiqh, but I distinguish between fiqh and fuquha. I mean the fiqh haqîqi (true jurisprudence).

Q. IIIT has requested the Islamic Fiqha Council of North America to have a seminar on the issue of `urf and ma`rûf.

Q. The permissibility of touching a woman in the course of medical treatment is a great example; but if the touching becomes sexual gratification it is only the individual who knows it is haram–and the cameras. Islam is not to regulate every aspect of life, only to perfect it.

Sachedina. I am interested in looking at the usûl al-fiqh and help the fuquha to make fiqh more relevant.

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

Ethics in Maqasid al-Shari’ah, Politics, and Policy

Friday, December 26th, 2014

[This is the fourth in a series of my notes on the International Institute of Islamic Thought conference on Islamic Law and Ethics held in Herndon, VA in June  2014. These notes have only been lightly edited and represent my perception of the discussion. The proceedings will be published by IIIT at a later time. Responsibility for any errors in the notes is mine alone. Names of general participants (other than mine) in the general discussion have been omitted by request of the organizers.]

“Ethics in Maqasid al-Shari’ah, Politics, and Policy”

Moderator: Carl W. Ernst, University of North Carolina – Chapel Hill

“Realizing Islamic Ethics in the Islamic Rules”

Prof. Jasser Auda, Qatar Faculty of Islamic Studies

I think the best way to develop ethical reasoning in the Islamic sense is to integrate it into fiqh, to renew fiqh (tajdîd) so it is provides the answers about virtue, which, in English, is a small part of ethics. There are a few proposals about the relationship of ethics to fiqh. One view is that they are distinct, with fiqh being about rules and ethics being about akhlâq. Another approach is to integrate knowledge from the scripture with knowledge from the universe, but to me this does not answer the question because knowledge of the universe should begin with the scripture. It is good to mix scholars of Shariah with scholars of various professions to make a fatwa, but knowledge itself must be Qur’an-based. Another view would replace fiqh with ethics. I do not think fiqh is replaceable with ethics. For me, including ethics with fiqh means including maqasid into fiqh, and henceforth I shall use the word maqasid in place of ethics. This is the case regardless of whether you view ethics as the right or as divine command; an Islamic ethics will incorporate my ethical theory either way.

Tajdîd [renewal] is not a new concept and is mentioned in a hadith. Understanding (fahm), interpreting (tafsîr) and applying (tanzîl) the texts are three stages. There is fiqh al jawârih (jurisprudence of the body) and fiqh al qalb (jurisprudence of the heart, spirituality).  The instructions of the Qur’an must be understood in the context of their objectives. Qarafi notes the intentions of the Prophet (saws) must be understood. It is a refined way of looking at the Sunnah, but it is necessary to distinguish what the Prophet addressed in his own culture from what is inherent in Islam. Among the Deobandis, I said the Prophet wore a thobe because he was an Arab, but one student objected that the thobe is Islamic. I explained that the kurta the student wore is not the thobe the Prophet wore. He replied but the thobe is Islamic. I said Abu Jahl and Abu Lahab also wore the thobe. He accused me of making fun of the Sunnah. We must distinguish the Prophet’s rulings as a judge from his instructions in religion. The Prophet’s judgments were not infallible. The Qur’an mentions his conviction of an innocent man and in a hadith he says if he awarded a piece of land to a man unjustly he had awarded him a piece of Hellfire. The enslavement of captives of war and jizya (despite its having been mentioned in the Qur’an) are ordinances based on politics of the time. In other cases he was illustrating solutions, and the illustrations are not unique.

Ta`ârud deals with contradictions between verses of the Qur’an or between the Qur’an and hadith. Scholars turned to abrogation as a solution. I reject abrogation and say what appears to be abrogation is merely the application of the same principles in different circumstances. Some scholars separate usûl al fiqh from maqâsid ash-shari`ah. It is important to keep the rules devised by the scholars but to subordinate them to the maqasid. There are huge areas of unaddressed issues, like art and entertainment.

The maqasid are fixed. Not because they are not objective, but because they are closer to the qat`i (definitive) proofs than anything else. Then there are the acts of worship that include not only ritual, but many matters of family law that are part of worship.

“Islam with the Heart”

Prof. Jonathan Brown, Georgetown University

Ibn Abbas’s was a companion of the Prophet who for all his life believed mut`a (temporary) marriage is halal. Ibn Taymiyya dissented from all his predecessors on triple talaq, quoting Ibn Abass. The diversity of rulings provides a resource for Muslims, but it is also a liability and a risk because it can be used to excuse illegitimate desires, agendas, and exploitation. Ibn Rashid said that certain selection of diverse opinions would make you the worst Muslim in history. To deal with this dilemma we deal with intentions, set limits, and look at qualifications and political considerations, by which I mean the interests of the regnant cultural ideas.

Muslim judges not only dealt with ethics, but they were judges concerned with the legal order. By the 1200s, in an area where one school dominated, as in North Africa, judges ruled by the predominant opinion within that madhhab (school of thought), although senior judges had more latitude to select among rulings within the madhhab. In some areas (e.g., Ottomans), the sultans would specify a ruling not predominant in the madhhab (allowing for example a cash waqf), which at the time was the dominant reality. In areas like Egypt, where multiple schools co-existed, people understood where you would go for certain issues. E.g., the Hanbalis would allow the tearing down of a mosque if it was “decrepit.”

There were other questions that did not involve entering a courtroom. Then, scholars acted as muftis and their approach was different. One approach was permissive that said you can engage in fatwa shopping. First, you will be judged by your intentions in any case. Second, this is what the companions did (although they had no schools of law). Zarqasi followed this approach.

A second approach was to set up a body of procedures. E.g. you could neither mix and match to hybridize contradictory rulings between schools, nor could you mix and match rulings to concoct a solution that would be accepted by no school. You could take a solution that addresses a legitimate need (hâja). (This is distinct from necessity.) This would not allow you to eat pork, but it would allow you to take a ruling from a competing madhhab.

The third view, most common among the Hanbalis and also among the Deobandis, is that you should follow only one school of law or one mufti, but this has an exception. The scholar is still able to choose among schools in cases of darûrah (necessity). This is only for the scholar, not the layman seeking the opinion.

Consider marriage age. Can Muslim scholars legitimately say it is illegal for men and women to marry under the age of 16? Such prohibitions have been instituted in most Muslim countries. How did this happen? The argument is that the ruler is not making a decision on what is halal and haram, but only exercising his administrative power. Ibn Shubrama, a respected scholar with no school, said you cannot make a marriage contract before bulugh (puberty/physical maturity). What is the motivation of the scholars? Are they trying to do God’s will and advance the interests of the Muslim community, or to please the British overlords?

Ibn Shubrama is also at the center of the debate over Islamic mortgages. None of the schools of law permit a sale with conditions. It is not legally enforceable, except under Ibn Shubrama. Palestinian scholar Muhammad al-Ashqar was among the objectors saying no one really knows what Ibn Shubrama’s opinion was because he left no madhhab. Is it the best argument that takes the day, or only what is politically popular?

Q. Jafari also do not allow triple talaq. This was during the period of taqrîb (coming together).

Brown. Muhammad Abu Zaffra is a fan of Ibn Taymiyya and suggests he may have been influenced by the Jafari school.

Q. Are we making a methodology for the elite?

Auda. People not versed in the Shariah should ask the people who know. I know there is an authority issue here. Authority should not be abused, but it should be respected.

Q. If Islamic ethics can be identified with maqasid, and maqasid is found in fiqh, and fiqh should be ethical, is this not clear reasoning?

Auda. Maqasid should be derived from the text.

Q.  Instead of trying to validate ourselves, shouldn’t we be looking at the consistency of particular arguments to the overall worldview? Can we interrogate the sahaba the way the Shi`a interrogate their mujtahids?

Brown. The fact that you cannot interrogate the companions is the reason that they are not considered valid for these purposes.

Imad-ad-Dean Ahmad. In saying the maqasid are fixed, are you precluding the addition of new maqasid such as liberty or the environment? Tariq Ramadan said after attempting to resort to usûl to reform the fiqh, he concluded the usûl themselves are part of the problem in need of reform.

Auda. I do agree that the usûl are the problem but I think they are also the solution. The maqasid are fixed but they are also changeable, like the sun that looks fixed but is actually moving. They can be reinterpreted and re-imagined.  For example, preservation of soul should be preservation of life.

Q. So if a legal scholar wants to make a ruling they either look at the Prophet’s example or go to a masjid. Why don’t modern scholars consider themselves as did Abu Hanifa or Malik? The hadith is contestable but we have a corpus. Why must I go to the medieval period?

Brown. We are in such disarray that modern scholars cannot even agree on how to proceed. Some are tradition bound and others want to dispense with it completely, and there others all between. Hegemonic pressure is too strong.

Auda. You work within a heritage of quoting people from the past. You have to refer to it.

Q. In Radd al Asubki by Ibn Taymiyya, he says it may be important to take into account the Jafari school if you want to make an ijma’. If you look at Al-`âlami, you see Aristotelian logic permeates that book. In the same way that our understanding of gravity has progressed, can our understanding of these issues not also progress? These things are not muqaddis (sacred).

Auda. There is no ijmâ’ on the definition of ijmâ’Usûl that is based on systems theory will go nowhere. We must begin with the classical literature and incorporate systems into that.

Brown. Aristotle is not a stupid person. What is problematic in Aristotle is not problematic for the usûl. Usûl is actually post-modern in its insights.

Q. The hadith of Aisha’s extremely early marriage has been discredited.

Brown. But all the schools of law have based their conclusions on this hadith. Musa Fervor did great research on how people react to fatwas and what makes them buy in. Traditionalist scholars can’t stop quoting so-and-so. What convinces the lay people is quotes from the Qur’an, and then quotes from the hadith. The scholarly opinions are drawn out of the madhhabs but packaged with Qur’an and Sunna for marketing purposes.

Auda. Can Bukhari be revised on the bases of matn (text)?

Brown. No. We’re stuck with it.

Q. I think the solution is not to include maqasid in fiqh but to distinguish fiqh from maqasid.

Auda. Abu Hanifa and Malik did not have usûl. Their work was on a case by case basis. Usûl is the work of the students of their students.

Q. There are references to Ibn Shubrama in the Majalla. Do you agree the problem is usûl?

Auda. Ethics must be in a book of today written in the language of today.

Brown. The Majalla treats Ibn Shubrama as outside the madhhab. The usûl is an enterprise outside of law that is there to reconcile the epistemology; it does not govern the outcomes.

Q. You can legislate when to fast in Ramadan but you cannot de-legislate the mandate to fast in Ramadan. We have to build on tradition. We need a fiqh for today’s world.

Auda. Maqasid is fiqh `alî, a higher form of fiqh.

Q. Maqasid are not fixed; they can be discovered.

Q. I am fascinated by the proposal that akhlâq can be brought into the discourse of fiqh. Carl Ernst argued that it is counterproductive to distinguish law from other forms of ethical discourse. I would like to know what whether bringing this will do justice to the fiqh.

Ernst. I do not approach this from a prescriptive point of view. I am not a faqih. I am trying to account for a wide range of history. I keep being reminded of these interesting declarations like tasawwaf being adab. The principles of akhlâq transcend the Islamic horizon, but are thoroughly consisted with it. I see my job to remind people that Islamic history and culture are put in a separate category for what are not always convincing reasons.

Auda. The fuquha had their fiqh and  as two different categories: We consider the fiqh of the `ulum ad-dunya and the real fiqh which is of the spirit, to say if you don’t pray with khushû` (humility) your prayer is not accepted; but I don’t think this can be done systematically. Renewal must be done in parallel lines. Shatabi said every religion has the same system of maqâsid ash-shari`a.

Brown. I heard a woman say Americans don’t have manners anymore; they only have law. I think in the pre-Islamic world there were strong social conventions that may or may not have been in line with Islam. In a fatwa you can tell people what they can or can’t do, or what they should do, or combine them.

Ahmad. You have to refer to the tradition, but you do not have to defer to it.

Auda. The politics of fiqh are interesting. Many scholars are unwilling to state very interesting opinions, like the shaikh who, just before he died, said he does not believe stoning is an Islamic thing. Often the mob dictates what the scholar will or can say.

Q. People who disagree do not say their predecessors are wrong, they say they were tailored to the situation.

Ahmad. But that is the problem. If we insist our new opinions are just variations on the opinions of previous scholars we will at best confuse our intended audience.

Q.  All sciences defer to tradition.

Brown. That there is something new is a post 16th century concept.

Q. I am not against tradition. I prefer the classical books to modern books; they have more layers. But the burden it puts on us is a problem. You know the Messenger is called ummi (illiterate) and when once I said there is a relationship between ummi and ummah and I was told I could not mention this unless someone else has said it earlier. Tabari said it, but that’s very limiting, dehabilitating, and confining. You cannot think of anything new.

Ernst. I am reminded of a criminal whose criminal actions were based on classical precedent.

Ahmad. The idea that there is something new does appear before the 17th century.  Galileo (16th c.) and Ibn Khaldun (14th c.) are among the examples.

Q. I think there are many hermeneutical tools available to us. ISIL is cutting off hands because they accuse people of stealing and because they want to apply Shariah. If we insist on defending the tradition are we enabling that kind of behavior. I approached the issue with a fresh eye and concluded the use of the word kat`a (cutting) in the Qur’an is not necessarily literal. But even when literal, as in Surah Yusuf, it doesn’t necessarily mean cutting off. As-sâriq (the thief) is different from saraqa (theft). It is not a crime but an identity label. When Yusuf’s brothers denied stealing the cup they said, “We are not thieves.” In the Sunnah there is no specification of at what place to cut the hand. We have no text that the Prophet did it. I think language is very important and very understudied.

Auda. This is called ta’wîl (elaboration). It is easier to do taqsîd, to tie the rule to the purpose, and I think more to the point.

Ernst. We’ve ended up with a kind of insoluble problem about the misuse of the term Shariah.

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

News and Analysis (12/25/14)

Thursday, December 25th, 2014

Why do Muslim countries such as the UAE use Christmas decorations in public spaces when Muslims don’t celebrate Christmas? …

… Meanwhile, Linda Sarsour explains that some Muslims celebrate Christmas because “Jesus is very central to Islam and is someone I take great inspiration from”:

… and “Rabbi Jason Miller, Imam Shamsi Ali and Fr. James Martin joined HuffPost Live host Caroline Modarressy-Tehrani to discuss what Jesus means to them.”:

Atheist C.J. Werleman “had intended to be as scathing of the Koran as I had been with the Bible, but” his research made it “glaringly obvious that New Atheists … and Islamophobes in general … were equally culpable of taking Koranic verses out of context as were terrorist groups like al-Qaeda” …

… dividing himself from those accusing actor Ben Affleck of “living in a ‘unicorn-like world’ for his critique of those who engage in uninformed polemic to suggest Islam is “an intolerable religion”:

“Several people close to the defendants … say that [they] are not being charged for defying the driving ban but for opinions they voiced online. They declined to elaborate on the specific charges due to the sensitivity of the case. All spoke anonymously for fear of government reprisal”:

What does  “Moderate Islam” mean? “The imperialist trend insists that Muslims condemn Muslim fanaticism, but do nothing to oppose the extremist agenda of the military industrial complex that too often (mis)guides American foreign policy or the prison industrial complex”:

This defendant was  defendant “was accused of apostasy ‘for speaking lightly of the Prophet Mohammed…. [He] explained that it was ‘not his intention to harm the prophet’ … but the judge agreed to the prosecutor’s request for the death penalty” even though “Mauritania … has not executed anyone since 1987”:

The number of protesters alarms German politicians because of support from far-right groups and concerns that anti-foreigner sentiment might be rising despite PEIGA claims that “they are protesting only against extremism and not against immigrants or Islam itself”:

After the Iraq war, all Iraqis have been experiencing injustices in the name of democracy, regardless of religion. Pope Francis “challenged Muslim religious leaders Tuesday to ‘unanimously’ condemn the violent persecution of Christians in the Middle East, as well as killing in the name of God.”:

News and Analysis (12/23/14)

Tuesday, December 23rd, 2014

Karen Armstrong sets out to dispell the bogeymen “that the idea that religion is a gratuitous cause of violence, whose elimination would promote peace[,] … that Islam is an egregious case of a religion that inspires violence[, and] that … the ‘Christian’ … is a more benign global force”:

“[H]alf of SALAM’s congregation is under 30, [the imam] characterized his clash with the board as “a struggle between two generations …, young and the old, the progressive and conservative, people who would like to maintain the status quo and those who would like to break through the roof”:

Instead of putting British Muslims on a one-dimensional “spectrum from ‘extremist’ to ‘normal’ … Bowen has produced a mapping of the adaptations – and maladaptations – that various forms of institutional Islam have made to British society, and their continuing closeness to [their] societies and histories of origin:

“[T]he staying power of PEGIDA in Dresden underlines a gap between East and West Germany, in which the former faces higher unemployment, exclusion, and crucially, far lower rates of immigration – and consequently less tolerance” …

… “Pegida’s organisers have been branded “Nazis in pinstripes” by the centre-left Social Democrats in the ruling coalition with Chancellor Angela Merkel’s Christian Democrats.”:

“Diversity is not a curse from God. It is a blessing, for in diversity we are saved from the withering effects of uniformity, from the boredom of the sameness…. One Quranic verse is particularly helpful in this regard:  ‘We made you into tribes and nations (different) so that you may know each other.’ (49:13)”:

If we “don’t hear the Muslim leadership speaking out against the radicals … [m]aybe we’re not listening hard enough (or it isn’t being reported enough)”:

“Religious leaders from the St. Cloud area are standing with the Muslim community after a mosque was damaged by vandals four times in one month”:

UN Reports  said that “displaced Muslim residents, forced to escape the conflict in other parts of CAR over the past 12 months, were now trapped in camps in the western half of the country, living in abysmal conditions and under constant duress”:

“Despite losing fighters by the hundreds, the IS has proved difficult to stamp out, maintaining a solid foothold in the frontier town. IS has also kept a grip on 381 villages in the wider district, villages the jihadi group seized with alarming speed in September”:

News and Analysis (12/21/14)

Sunday, December 21st, 2014

A “24-year-old Muslim woman has filed a lawsuit against an Ohio jail after Cuyahoga County corrections officers allegedly ordered her to attend Christian prayer services or face solitary confinement”:

“The arrest warrant for Gulen, who lives in self-imposed exile in the U.S. state of Pennsylvania, could test relations with Washington and raise questions about judicial independence in Turkey. A Turkish prosecutor has accused him of leading an armed terrorist group”:

“The men, who had been in the camp for more than 10 years … had been cleared for transfer for some time and are not considered to represent security risks in Afghanistan, where US troops are still deployed”:

“[T]he Islamists remain a powerful force after winning the second largest number of seats in the new parliament…. The presidency post holds only limited powers over national defense and foreign policy. The parliament … will be key to selecting a prime minister to lead the government”:

“‘I have been waiting for three months to leave, this is very bad,’ said Mnwar Shaath, 58, a Palestinian woman clad in a long black robe who lives in Saudi Arabia and came to visit family in Gaza. ‘I am sick and I was afraid I may die here, away from my children, I want to go back and die among them” …

… while the US resumes arming the authoritarian regime that overthrew a democratically elected government and routinely violates human rights:

“A Muslim leader in Australia, Keysar Trad, said that the imam of the Lakemba mosque ‘doesn’t want a bar of him’ but added that no Muslim can be denied a holy funeral unless they renounce their faith prior to death” …

… while “Manal Kassem was adorned in a white dress, hijab and veil when she laid her wedding bouquet on the river of floral tributes to the fatal Lindt cafe siege victims. After watching the wedding party approach, the city crowd broke into applause” …

… but “the community leadership told police ‘all of our resources are on the table’ in an attempt to identify Monis and end the siege … but it is believed he did not want to talk to them”:

“Kurdish peshmerga forces in northern Iraq have regained most of the ground they had lost. But the war grinds on, as a weakened Iraqi army and Shi’ite militia volunteers battle back and forth with Islamic State across central and western Iraq”:

“Pakistan’s interior minister says … the authorities have picked up several people suspected of involvement in the attack, although he did not disclose their identities or say how many they were”:

News and Analysis (12/19/14)

Friday, December 19th, 2014

The “Dharm Jagran Samiti (DJS) functionary … was reacting to the arrest of Nand Kishore Valmiki, a DJS activist [who] … was arrested on Tuesday for his alleged involvement in forcefully converting over 100 Muslims to Hinduism in Agra”:

“In Geneva, the international community delivered a stinging rebuke to Israel’s settlement construction in the West Bank and east Jerusalem, saying the practice violates Israel’s responsibilities as an occupying power” …

… while an EU procedural ruling that “inclusion of the group was not based on a ‘concrete examination’ of Hamas’s acts but on ‘imputations derived from the media and the internet'” paves the way for a more objective comparison of Hamas’s record and Israel’s” …

… and the European Parliament has finally voted to recognize statehood of Palestine “in principal.” The vote “was carried by 498 votes to 88 with 111 abstentions”:

Muslims and Jews come together in support of the victims of police brutality against African-Americans:

Despite the fear of a backlash after the Sydney Siege, the Australian community has shown solidarity through the “#illridewithyou” which has gone viral, “Silma Ihram, of the Australia Muslim Women’s Association, said she had faith that Australian would come together in the wake of tragedy.”:

“Physicians for Human Rights called [for] a commission of inquiry to examine the participation of CIA and private medical personnel in the interrogation program, including possible breaches of domestic and international laws”:

News and Analysis (12/17/14)

Wednesday, December 17th, 2014

“[T]here are [monsters] in every country, and there are some in this country. Our obligations are to deal with some of the warmongers we have here and the infractions of our liberties here at home. But there is no moral obligation, there’s no constitutional authority, and there’s no practical advantage for us [to go abroad]”:

Man Haron Monis is a “damaged good” as described by his doctor, so “[t]here is no point in trying to place him,  as some have attempted, in an overarching discourse of Islamist terrorism and history, because he was plainly not a terrorist but a mentally disturbed individual and serial sex offender”:

As the anti- Muslims demonstrators take the streets, the German Chancellor Angela Merkel warned that the protesters are being exploited by the organizers of these protests and there is “no space for hate campaigns and slander”:

Cheney is giving up politics to become a doctor: ‘Cheney said sticking pureed hummus, pasta and nuts up a detainee’s anus was “done for medical reasons,” and he said, repeatedly, that “waterboarding is not torture”’:

“This is a serious matter, and we don’t want to escalate the crisis, but at the same time [we] condemn the forcible conversions” — Maulana Khalilur Rahman Noorie, general secretary of the Association of Imams:

“Austria’s Muslim organizations said the government violated the rights of an estimated 600,000 Muslims in the country after officials sent a proposed law, dubbed the ‘Islamic Bill,’ to parliament without first consulting the Muslim community”:

“The latest escalation comes days after Houthi leader Abdel-Malek al-Houthi delivered a strongly worded speech … [accusing] President Hadi of harboring al-Qaida and leaving the country infested with corruption. Opponents of the Houthis … accuse them of being a proxy for Shiite powerhouse Iran”:

Who would have thought that fashion could unite Muslims and Jews? “A&F has brought American Muslims and Jews together…Nathan Lewin, the lawyer for these Jewish organizations, explained to the Los Angeles Times, men and women in the orthodox Jewish communities have also faced discrimination”: