Al-Huda
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Newsletter for August 2012
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Shari’ah Thought:
Guidelines and Qualifications for
Knowledge
by Dr. Robert D. Crane
I. Challenge and
Response
The twentieth-century
mega-historian, Arnold Toynbee, author of the seven-volume
“History of Civilizations”, chose the dynamics of challenge and
response as his analytical paradigm.
Ibn Khaldun, whom Toynbee
credited with inventing the study of civilizations seven
centuries earlier, applied this approach by focusing on what he
called asabiyah.
This can be defined as a combination of political and
religious tribalism designed to maintain one’s communal identity
at the expense of all other tribes.
Successful response to such tribal particularism is not
to eliminate it but to expand it into a universal framework of
thought in which confident pride in oneself
fosters respect for
others. Asabiya
thereby becomes a positive response to its own challenge.[1]
Applied to interfaith
understanding and cooperation, as in the new movement of Common
Word and Common Ground, this requires movement along a spectrum
from tolerance to diversity to pluralism.[2]
In practice, though not in theory, tolerance often means
merely “I won’t kill you yet”.
Diversity means, “You’re here, and I can’t do much about
it”, whereas pluralism means, “We welcome you because we each
have so much to learn from each other”.
During the year 2010 in response
to Shaykh Feisal Abdul Rauf’s planned interfaith center near
Ground Zero in New York, the subject of
“shari’ah compliance” posed a new challenge.[3]
This posed a boomerang challenge to Muslims, because one
response to the Islamophobic demonization of Islamic law was to
argue that its application is contextual and that it means one
thing in America and another thing in Saudi Arabia.
As in all things, such
oversimplification taken to extremes in this case can backfire
by transforming Islam into a strictly human invention that has
no meaning at all.
The response to the challenge boomerangs and poses a much
greater challenge, not from without but from within.
II. Essence versus
Context
One common response to the Islamophobic perversion of
Islamic jurisprudence can be to postulate different forms of
shari’ah and fiqh even to the point of infinity, so that Islamic
law means whatever any one wants it to mean.
The proper response to this challenge is to ask
whether Islam has an essence or is
entirely contextual, in which latter case it does not exist.
The relativistic approach of extreme contextualization employed
by some “progressivist” or “liberal” or “secular” Muslims is
evidenced in their call to “reform Islam” rather than to reform
Muslims. The
temptation to conflate Islam with Muslims may result from the
academic passion to deconstruct anything that might have
absolute meaning or reflect absolute truth as an object of
heuristic exploration.
This tendency was
addressed in Marshall Hodgeson’s magisterial set of tomes,
entitled The Venture of Islam, published in 1970, which properly
distinguishes Islam from Islamdom, just as one distinguishes
Christianity from Christendom.
Certainly Muslims should be reformed, because Muslims are
the actors in Islamdom, but reforming the timeless essence of
Islam would remove the basis for any greatly needed reformation
of Muslims.
The proper response
to the either/or issue of essence versus context is to recognize
contextualized essence. The task of Islamic normative law or
jurisprudence, defined as a set of irreducible and universal
purposes and principles known as the
maqasid al shari’ah,
is to recognize this essence of traditionalist Islamic thought
developed by the greatest Islamic scholars over a period of many
centuries until it all but died out six hundred years ago.
This must be distinguished from the
fiqh or specific rules
and regulations that judges or
qadis are charged with
applying in individual cases.
The main challenge in applying
the fiqh is to apply the maqasid
al shari'ah as guidelines in circumstances of changing time
and place, as well as to apply those few rules or
ahkam and the still
fewer hudud or
punishments that are independent of time and place, recognizing
that the hudud merely
set outer limits and thus are subject to merciful application in
the cause of compassionate justice.
Both the
maqasid and the
fiqh are a product of
revelation (haqq al yaqin),
of scientific observation ('ain
al yaqin), and of human reason ('ilm
al yaqin). The
task of human reason is to interpret the first two sources by
recognizing that they reinforce each other as witnesses to the
coherent diversity of existence and its role in pointing to the
Oneness of God (tawhid).
This is part of the eternal search for knowledge of truth
and justice referred to in Surah al An’am 6:115, wa tamaat
kalimatu Rabbika sidqan wa 'adlan, "The Word of your Lord is
completed and perfected in truth and in justice".[4]
The U.S.
constitution, as an excellent example of Islamic jurisprudence,
was created by man based on the above three sources, though its
first source is now denied in America during an era of
secularist pragmatism. The primary source of Islam, the Qur'an,
is created by Allah and therefore reflects not the Attributes
but the Being of Allah, Who is perfect truth and justice and has
provided the Qur'an not as an uncreated divinity independent of
human reason but as a guidance.[5]
The most important such qualification is that one should not
question or debate things about which one can know little or
nothing. An example may be whether Jesus,
‘alayhi al salam, as
the Prophet of Love was hung on the cross and died on the cross.
The only thing certain, according to the Qur’an, is that,
as a unique human being without an earthly father, he did not
die on the cross.
Whether he was hung on the cross has been debated, but the
implication is that indeed he was.
Whether he died on the cross is important, because the
doctrine of the vicarious suffering and death of Jesus on the
cross for our sins is the crux of Christianity.
The second qualification is that not everyone has the
knowledge necessary to question intelligently. A good example
is the meaning of the Qur'anic term
daraba, in as much as
this term is used with more than a dozen meanings according to
the context. Translations include the English word "beat", as
in “beat your wife” in Surah al Nisa'a 4:34, where the meaning
clearly is to "separate".
Abdulhamid Abu Sulayman addressed this issue in his monograph,
"Marital Discord: Recapturing the Full Islamic Spirit of Human
Dignity", which was published as Number 11 in the IIIT's
Occasional Paper Series, and was approved by Shaykh Taha Jabir
al Alwani, the founding chairman of the Fiqh Council of North
America and a long-time member of the World Fiqh Council in
Makkah. Abu Sulayman
lists twenty examples of the verb
da-ra-ba in the
Qur’an. They range
from "Allah propounds a
parable" 16:75, et al; "held up Mary
as an example" 43:57; "similes they strike" 17:48;
"when you travel
through the
earth" 4:101; "then we covered their
ears" 18:11; they should draw
their veils over
their bosoms" 24:31; "shall We then take
away the
Revelation from you" 43:5; "when you go
abroad " 4:94; to
"so a wall shall
be erected between
them" 57:13.
Abdul Hamid analyzes all these meanings in the Qur'an, as well
as the practice of the Prophet,
salah Allahu ‘alayhi wa
salam,and concludes that the only possible meaning is
"separate" as the last step before invoking reconciliation by
the respective families and perhaps eventually divorce, which is
the worst of all permitted things.
One may argue that if any man beats his wife, even with
the ridiculous siwak
or “toothpick”, this should mean automatic divorce.
One may support punishing him with one hundred lashes for
adultery, which the Qur'an prescribes as a maximum and thereby
rules out the death penalty.
These positions, however, are merely personal opinions or
ra’ i, because the
provision for a hundred lashes is a maximum not a minimum.
The legislation in six Muslim countries today requiring
stoning to death for adultery has no basis in the shari’ah at
all, because the sole hadith invoked to justify stoning to death
is from Mussayab, reported in Imam Malik's Muwatta, who said he
heard Caliph Umar, radi
Allahu anhu, say
that the Prophet approved of this, even though Caliph Umar died
when this narrator Mussayab was two years old.
A prime example in the Sirah is the myth about the so-called
massacre of the Banu Qurayza.[6]
This case of an alleged massacre of Jews is an example of
uncritically using sirah accounts
as a source and of the need to apply higher standards in the use
of the sirah as
history.
This myth is found in the first full-length biography of the
Prophet, by Muhammad ibn Ishaq ibn Yasar (704-773 A.C.), which
appeared some 150 years after his death. Moreover, since
the original text of Ibn Ishaq was lost, the account available
to us is a later revised and shortened version by Ibn Hisham,
who died in 834, sixty years after Ibn Ishaq, and in fragments
quoted by other early Muslim writers, including Muhammad ibn
Jarir al Tabari (839-923 A.C.).
The Sirah is accepted by all Muslims as a source of early
Islamic history and as an historical account of the life of the
Prophet Muhammad. The Sirah differs, however, from Ahadith,
because the hadith were subjected to an evaluation process that
required authentication of the chain of narrations (isnad)
as well as the coherence of its substance (matn) with the
Qur’an. This
standard was not always met, but at least the requirement was
there.
The historical background of this myth is that
Arabia was home to several Christian and Jewish communities at
the time of the Prophet Muhammad. The
Christians originated largely as refugees from the Byzantine Empire, which imposed the doctrine of
the dual nature of Jesus and therefore persecuted primarily the Nestorians, who
emphasized the human nature of Jesus, and the Monophysites, who emphasized his divine nature. Jewish
communities had been present throughout
Arabia for many centuries. The
largest of them was the Jewish kingdom of Nawas in the far
south, but major Jewish tribes lived in the Khaybar
Oasis in the north and in the two major cities, Medina and
Mecca. The
three Jewish tribes in Medina were the Banu Qurayzah, the Banu Qaynuqa, and the Banu Nadir. The
latter two were expelled for treason.
The Banu Qurayzah was one of the three Jewish tribes that together
with the resident Arab tribes had originally invited the Prophet
Muhammad, salah Allahu ‘alayhi
wa salam, to
Medina in order to bring peace among the warring parties in the
city. All of these
tribes signed the Medina Covenant, which was the first known
constitution of any city or country. In
it, each tribe promised to support the others
in the common defense and to work together for the common good
of the interfaith community (designated as the umma).
The alleged massacre of the Jewish tribe of
Banu Qurayzah in Medina came in the Year 627 immediately after the third of
the three great battles between the Quraysh from Mecca and the
Medinans, known as the Battle of the Trench (Al
Khandaq),the first two being the Battle of Badr in 624 and
the Battle of Uhud in 625. When it
became known that the Makkans were
planning to bring a great army from many Arabian tribes to annihilate the
Muslims in Medina, the Medinans dug a trench (khanduq) around
the city to hold off the attack. After
three weeks of siege, when conditions in the city were becoming desperate, the Banu Qurayzah leaders in Medina secretly
connived with the
Makkans to attack the Muslims from within. Beaten
up and disarrayed by an unexpected hurricane, however, the
Makkans took to their heals and retreated to Makkah, leaving the
Banu Qurayzah to their fate.
After the siege was over, the Prophet decided
that the Banu Qurayzah had to be held accountable for their
violation of the pact with the Muslims. He
organized his followers to lay siege to the Banu Qurayzah. The
Banu Qurayzah surrendered after about 25 days and it was decided
that their punishment for treason would be determined according
to their own laws.
This called for the death penalty for treason, which used to be
standard in America and everywhere else. Thus
some of the male members of the tribe were killed, in punishment
for breach of the pact.
The Qur’an refers to this incident in Surah Al-Ahzab (The Confederates) where no numbers are mentioned:
… and He
brought down from their strongholds those of the followers of
earlier revelation who had aided the aggressors, and cast terror
into their hearts: some you killed, and some you made captive. (Surah al Ahzab, 33:26)
The story of how many were killed and who
carried out the punishment has been a subject of speculation. It
was first explored in modern times by W. N. Arafat in 1946 in
his article, "New Light on the Story of Banu Qurayza and the
Jews of Medina," published in the Journal
of the Royal Asiatic Society.[7] Regardless
of the details and how many Jews may have been killed in this
incident, it is important to note that it involved punishment
according to Jewish law for betrayal of a treaty between the two
communities and of the Madina Covenant.
IV. Transcendent
Guidance for the Transmission of Knowledge
According to traditional thought in Islam, as best
represented perhaps by Professor Hossein Nasr in his whole
library of books on the subject, the Qur’an contains the roots
of all knowledge. It
is Al Huda, “the guidance”, for in it is contained not only moral
guidance, but also educational guidance, the
hidaya, or guidance that educates the whole human being in the most
profound and complete sense.
It is the ultimate source, inspiration, and guide for all
knowledge, though not for the details, for these are to be
developed and transmitted through what may be known as the
intellectual jihad, the
jihad al kabir.
Islamic jurisprudence in the sense of the
maqasid al shari’ah
was never divorced from the sacred, because the object of every
type of knowledge was either Allah or what has been created by
Allah. This is true
equally of Islamic thought generally, which encompasses the
shari’ah and also reflects it. The
traditionalist corpus of Islamic thought was sacred also because
the intelligence by means of which human beings know is itself
sacred and a Divine gift, a supernaturally natural faculty of
the human microcosm, in which even the categories of thought are
seen as reflections of the Divine Intellect upon the plane of
the human mind.
So writes Professor Nasr in his
latest book.[8]
These are the ultimate guidelines and qualifications for
jurisprudence and for every aspect of both the essence and form
of Islam.
[1]
See Robert D. Crane,
Shaping the Future: Challenge
and Response, Santa Fe, New
Mexico, Center for
Civilizational Renewal, 1997,
159 pages, Chapter Three, “The
Vision of Communitarian
Pluralism, pp. 25-40.
[2]
See Robert D. Crane, “From
Clashing Civilizations to a
Common Vision,” in
Islam and Global Dialogue: Religious Pluralism and the Pursuit of Peace,
Roger Boase, editor,
Ashcroft, 2005, 310 pages, pp.
155-177; also, Crane, “Common
Word and Principles of Respect:
Transforming Interfaith Dialogue
into Interreligious
Solidarity for Justice”, Harvard
Divinity School, October 24,
2008,
www.amss.org,
and Crane, “Interfaith Dialogue
and Cooperation to Bring Out the
Best of all Faiths”, 65th
Convention of the Catholic
Theological Society of America,
Cleveland, Ohio, June 12, 2010.
[3]
See Robert D. Crane, “Cordoba
House: A Strategic, Legal, and
Political Analysis”, September
11, 2010, and “Shari’ah
Compliance in America:
Strategies for Common Ground”,
September 28, 2010,
www.theamericanmuslim.org.
[4]
See Muhammad Ali Chaudry and
Robert Dickson Crane,
Islam and Muslims, Chapter
5, “Universal Principles of
Human Responsibilities and
Rights in the Shari’ah”, Section
V, “A Thematic History of
Islamic Law”, which
distinguishes three themes,
namely,
Juristic Independence, Juristic
Pluralism, and
Juristic Holism.
[5]
This formulation of the nature
of the Qur’an has been debated
for more than a thousand years
and reflects the position of the
Mu’tazillites, as distinct from
the Salafis and later by the ‘Asharites,
who said that the Qur’an is
uncreated, which meant that any
ruler could justify unjust rule
by taking a verse out of context
and rejecting the relevancy of
human reason.
[6]
This is discussed in some detail
in Robert D. Crane,
The Natural Law of Compassionate
Justice: An Islamic Perspective,
Scholars Chair, Fort
Washington, MD, 2010, 224 pages,
pp. 144-150.
[8]
Seyyed Hossein Nasr,
Islam in the Modern World:
Challenged by the West,
Threatened by Fundamentalism’
Keeping Faith with Tradition,
HarperOne, 2010, 472 pages,
Chapter Eight, “Islamic
Education, Philosophy, and
Science”, pp. 129-148.
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