“Social Justice and Islamic Legal/Ethical Code: A Case Study from the Prophetic Period”

[This is the thirteenth and last 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 are NOT a transcript, but a lightly edited presentation of  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 participants (other than mine) in the general discussion have been omitted by request of the conference director.]

“Social Justice and Islamic Legal/Ethical Code: A Case Study from the Prophetic Period”

Katrin Jomaa, University of Rhode Island

My paper is on categorizing the Medina Compact, a document from the Prophet’s era. It is a legal and political document, but neither religious nor secular. When Islamist political parties formed, the question arose as to whether non-Muslims would have to observe Shariah, whether women would have to wear hijab, and how majority-minority relations would be conducted. It is a case study in the problem of how to read a text to derive Islamic values in a way that can be applied to issues today.

Today we are confronted with the liberal model articulated by John Rawls under which religion is a private matter, not a public matter. This is how secularism addresses the issue of religious differences. They are tolerated as long as they do not enter the political and public realm. Critiques of liberalism, like communitarianism, say it is impractical. A politician cannot preclude his religion in the public sphere without becoming schizophrenic. Minorities are given rights but are they full rights? For example, when I ask my students if thry would accept a Muslim President, they say no way.

According to Lockerby, the Muslims were the minority in Medina. The Jews did not accept Muhammad as a prophet, yet they accepted him as an arbiter, a political leader. Then Medina compact defines itself as a kitâb and says the Jews with the Arab tribes are an ummah. Ahl as-sahîfa, the people of the document. All the tribes are referred to by name in a redundant manner. In the modern nation state the relationship is direct between the individual and the state. Clause 13 says all God-conscious believers shall unite against unjust acts or the infringement of rights. It is using social pressure to institute an Islamic legal order.  But when we come to the Jews, clause 25 says whoever commits a crime shall harm only himself and the members of his house. For the Muslims they have a choice of retaliation or blood wit. Not so for the Jews for whom there is no blood wit, so we have a concept of pluralism.

Not everything is at the center. Clause 42 says there is autonomy but in intercommunity disagreements the Prophet will rule. Wasat is how the individual and community can be balanced. In the cases of war, the Jews do not pay jizya because they join the Muslims in defending Medina. Medina is declared a haram (sacred place), there can be no bloodshed there. If you are going to fight you do so outside, but if Medina is attacked directly all must fight together (clause 37). If the Jews are invited to a peace agreement they shall adopt it and vice versa except in the case of war over religious issues.

Respondents.

Shahirah Mahmood, University of Wisconsin – Madison. Katrin’s data is on a document text. You talk of Medina compact as a template, but it is a template for 622 H. The critique of Rawls is abundant. His “veil of ignorance” is abstracted from real life. Is sacredness superior to religious interests? You didn’t discuss the decree of women at all. It goes against your argument.

Jacquelene Brinton, University of Kansas. The paper deals with ancient texts and how they are applied in the present, focusing on the opportunities they provide. Katrin, I think your work could add to the conversation in the world today. You make the public-private thing about internal and external which is an interesting take. There is some ambiguity in the document that could be discussed at greater length. I think “dismantling” the tribal system is too strong a word; it rather leads out of the tribal system. Clause 45 is fascinating. It’s inclusive but with a sense that it is the Muslim view that takes precedence.

Jomaa. I am not suggesting the document be applied today because it is too context specific, but rather to get ideas that might be useful today. That women cannot be protected without the permission of their tribe is an example of the limitation imposed by the condition of the time. I think we can derive not the Islamic political theory but an Islamic political theory. I agree that there is no complete equality, but it is a system of fairness. All systems are based on some kind of ideology, even modern secular systems. This is an ethical system based on a particular religion.

General Discussion.

[Name withheld]. The Medina constitution is interesting, but little reference is made to it in subsequent literature. The problem was not between the Arab and Jewish tribes but between the Aws and the Khazraj. The Jews did not pay jizya because there was no jizya yet. Look at Hamid Hamidullah’s analysis of the constitution and also Mohammad Mahdi Shamsuddin, who takes Montgomery Watt to task. Also at the time of the migration the tribes of Aws and Khazraj were considered Muslim. When you look at a Qur’anic verse it helps to look at the context.

[Name withheld]. Have you looked at the Ottomon period and asked how that could have been influenced by the Medina pact?

[Name withheld]. I am a little wary when it comes to using classical texts in modern language. Even the use of “constitution” rather than “agreement” defies modern constitutional language. This document comes into being when the city is still Yathrib and not yet Medina. Modern concepts like equality are not there yet. Jewish tribes had already rejected the Prophet’s message and were already in the process of forming an alliance with the Meccan tribes.  Polemics against the Jews have already started. The qibla changes in the second year of hijrah. Prophethood aside, the Jews did not want to accept the political leadership of Muhammad. I think Watt’s Muhammad at Medina is worth reviewing.

Jomaa. I do talk about the context, and I know the jizya came later, but I still think the constitution gives insight. For example, on abrogation, I do not think the arrival of jizya later abrogates that part of the Prophet’s life. Today we are often minorities and in our own societies we are often oppressed.

[Name withheld].  This is not pluralism because it is the difference between religious state and a secular state. A Jew will give you a completely different interpretation than of jizya than a Muslim.

Jomaa. There is no law for atheism, yes, but I am not saying it is equal to the secular state. It is a political document based on religious values. I was not saying we apply jizya later, I meant that there are contextual issues. Is there another aspect of the tradition that can deal with it?

[Name withheld]. We are not completely understanding what the jizya is. It applies to the People of the Book in specific situations. The Banu Talib a Christian tribe of Medina, said we will fight on your side but not pay the jizya, and they were accepted.

Imad-ad-Dean Ahmad: Rawls’s work was seminal, in that subsequent liberal theory is in dialog with it, but it cannot be taken as the totality of liberal thought on justice, as it was criticized within the liberal tradition. You need to read Robert Nozick’s Anarchy State and Utopia in addition to the other liberal critiques of Rawls. Nozick’s concluding chapter on the “Framework for Utopia” is harmonious with the religious pluralism embodied in the Medina Compact.  The American notion of secularity is not so absolute as others, such as the French. Besides Bishop Sheen, who was politically active, there is Father Drinan, a liberal activist who actually held a seat in Congress, as well social conservatives and, of course, the politically powerful Christian Zionists. Also I do agree with you that the Yathrib agreement is pluralistic. Yes, it is different from secular pluralism, but it is still pluralism. Jizya is still applicable. It makes an effective method to excuse people from fighting against their coreligionists. Abraham Lincoln accepted cash in lieu of military service.

[Name withheld]. Keeping jizya in context makes perfect sense. See Hamid Anayat’s Modern Political Thought.  We are affected by modern terminology. The challenge is to put oneself in the classical age.

Jomaa. Why can the works of Aristotle and Plato be part of the canon to be drawn upon to discuss universal principles, but not Islamic literature?

[Name withheld]. This is an important methodological question. I must pay attention to nuances or my work will become detached from the very sources in which I seek authenticity. Aristotle’s democracy is different from ours and we cannot take their statements verbatim. We can go through a hermeneutic process that will enable us to derive something relevant to our condition.

Jomaa. That is what I am trying to do. What am I missing?

[Name withheld]. Imam Ali’s instruction to the governor of Egypt was normative. You are dealing with a specific document which is the answer to a particular question and must be used carefully. Umar’s letter to the archbishop of Jerusalem that the Muslims will not harm Christian churches overtly makes a universal statement.

[Name withheld]. There is a long scholarly context of quoting verses out of context. This verse is a statement of historical fact being used as general statement.

[Name withheld]. Decree 25 makes your task impossible. It acknowledges a tension between religion and justice that you need to resolve.

Brinton. Civil society means religion is one voice among many. Lincoln offered a choice to individuals rather than communities.  Take the way that Christians or Jews see the compact in order to bring nuance to your analysis.

[Name withheld]. The issue is not to see when a theory is used but when it is not used. In India jizya was not applied. That permits us to make conclusions about principles.

Jomaa. Maybe I need to criticize the Medina compact. Rawls is the leader of secular liberalism.

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

ImadadDean