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

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

3 Responses to “Institutions of Iftaa: Panel on the Fiqh Council of North America (FCNA)”

  1. Dr. Jamal Barzinji summarizes the current challenge to the moribund Fiqh Council of North America as follows:

    “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”.

    My own recommendation is that the IIIT, which led the Fiqh Council in its glory days under Shaykh Taha and his assistant, Yusuf DeLorenzo,should expand the scope of the Council under a new title: The Shari’ah Council of North America.

    This would reflect the need to develop the maqasid al shari’ah as a higher framework for jurisprudential guidance. This would expend the rationale to go beyond narrow fiqh issues proper for a qadi and would extend its purview to issues proper for a mufti.

    This, in turn, would educate both Muslims and others on the potential role of classical Islamic thought to enrich the national discussion on the nature of the Great American Experiment in order to rehabilitate the interfaith values that gave rise to it.

    The IIIT is providing the cutting edge of scholarship worldwide on Islamic normative jurisprudence. Therefore it is clearly qualified to resurrect the Fiqh council as an important American voice both in America and throughout the world.

    In a revived Fiqh council of North America, it is important that minority views be valued just as much as the majority opinions, because this practice, followed by the U.S. Supreme Court, should be an integral part of the entire institution of iftaa and would demonstrate, in sha’a Allah, the pluralism within a higher moral framework that traditionally has been recognized as part of the essence of Islam.

  2. Safi Kaskas says:

    During the good old times, we took for granted the need to establish “institutions of Iftaa” as if it is an integral part of Islam to have such institutions. However, there are maybe innovative new ways that are timelier and more appealing to American Muslims than the traditionally accepted orthodox solutions.
    If the purpose is to provide American Muslims with the necessary tools for survival, we then need to be courageous enough like Dr. Jamal Barzinji and admit that the elite’s view of what is important is not necessarily relevant to the average Muslim at this time. Hence, the lack of interest we are all witnessing among the community at large. Maybe the Institution of Iftaa is not at this time a priority for American Muslims.
    For any institution to be accepted it has to be a reflection of a real need felt by a constituency and proposed by representative leadership. The real problem at this time is the lack of a representative leadership. We as a community are very fragmented and this is not necessarily the fault of the IIIT. The Muslims that we are trying to serve through the “institutions of Iftaa” solution, might not be interested in our solutions because their definition of their present problems is different from ours.
    The real beginning to find good acceptable solutions becomes true representation. I still remember the early days of the MSA when visiting various communities to explain the importance of forming new chapters or to explain how to establish a new center was a real grass root effort. Shouldn’t we consider going back to the grass roots to ask what do they truly need to make their life easier under the present circumstances? To learn from them what is their priorities.
    Maybe if we convince our community to elect representatives to a national council we can replace Iftaa with Istiftaa (votes on issues requiring new Islamic resolutions). Is it possible that we can approach the function of Iftaa in a totally different way from what was acceptable historically? Can we come up with new but more reflective solutions to our people needs?
    The whole country is going through a process of rediscovering itself. The direction it will take is not clear yet. Islamophobes and others are looking for mistakes and succeeded to scare many. As a result many Muslims are shying away from public participation. At this time of great uncertainty, going back to our people to learn from them what they deem to be important is necessary if we are to grow together as a relevant community.

  3. Moving from Small Think to Big Think

    In discussing a Shari’ah Council of North America, the first question should be whether Muslims in America are concerned primarily with survival, as Safi Kaskas seems to contend. The second question is whether they should be. An even more important question is whether they should contribute to the recovery of America’s founding principles. The question then becomes how to do this.

    My basic principle in life and in all of my writings since I founded the third-grade school newspaper in 1937 (after the 1936 election practically wiped out the Republican Party) was that whoever seeks merely to survive will surely die. This applies especially to entire civilizations and religions, but also to political parties and ethnic groups. Every person’s purpose in life is to become the person that God created one to be, which may not be the artificial person that one would like to be. The same applies to every community from the family to the nation and all of humankind. The purpose of Muslims in America is not to survive but to revive the wisdom of classical Islam in order to rehabilitate the classical Great American Experiment in peace, prosperity, and freedom through interfaith, compassionate justice. As a bonus, this is the best and even the only way for Muslims to survive.

    The next question is how to educate Muslims to fulfill their higher purpose in America. Since individual Muslims have the amana directly from God and not from man-made institutions, like the State and IIIT, Dr. Kaskas is right that some kind of representative system is needed for bottom up, not top-down, guidance. For this purpose “direct democracy” is needed, not representative democracy. Such a system has become possible only in the internet age.

    This is a task of education, which requires bottom-up initiatives designed as a model for the entire American political system. The mechanisms were worked out by Senator Mike Gravel, http://www.mikegravel.us and ni4d.us (National Initiative for Democracy) back in the Year 2000, when I gave $1,000 to help found his Philadelphia Two organization. Its purpose initially was to develop a workable parallel system to complement the formal representative system developed for Philadelphia One 222 years ago.

    A key to all of this is the normative legal system developed first by classical Islamic scholars and later independently by the Scottish Enlightenment, both of which led to the Great American Experiment but need to be revived for America to fulfill its purpose. In Islam we call this system the maqasid al shari’ah. This is based not on any kind of democracy but on ijma among the scholars, which it would be the purpose of the Shari’ah Council of North America to develop first among themselves and then as a framework for a national Islamic system of direct democracy for Muslims, which could become a model for America.

    The real threat to Muslims in America is that the political leaders started to think small and have never recovered. The time has come to go beyond small thought and small talk and to think big as Americans concerned about its mission in the world. We must address the purpose of Muslims in America. The multiple crises of the past decade, with more crises foreseeable during the next decade, make this a good time to start thinking big.

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