Teddies, Shariah law and civil society
Tue 04 Dec 2007
The early release of Ms Gibbons and 'pardoning' of her 'crime' by Sudanese president Omer el-Bashir has been welcomed by all. This was after the hard work of the two Muslim peers Lord Nazir Ahmed and Lady Warsi.
Lord Nazir issued a statement, saying that the misunderstanding is over. Gordon Brown said that she never should have been arrested. The Sudanese ambassador said the pardon meant that the initial error had not been 'forgotten', rather it was 'forgiven', whilst maintaining the original 'mistake' - and the conviction therefore - still 'stood'.
This, however, does not really address a number of fundamental questions; amongst them: Muslims may well belie the relationship between such an incident and Islam, but how does it take place in the name of Islam? What if she was guilty? Do Muslims advocate flogging and imprisonment in that case? It seems in some circles they go even further. "Moderate" Islamist movement leaders such as el-Sheikh el-Nur of the Muslim Brotherhood added, "If she intended the prophet by naming the teddy bear, she should be killed".
In the same vein are punishments such as amputation of limbs, stoning of adulterers, and lashing/imprisoning/killing those that dare name a teddy bear Muhammad. Are these really aspects of Islam, and the "Shariah" that are essential aspect of divine wisdom, as understood by Muslims?
Muslims and Muslim scholars have attempted to address this and many other issues that pertain to Muslims, Islam and modernity and civil society, but the question still arises amongst Muslims and mainly propounded by Islamists. Muslim scholars have traditionally viewed the Shariah as seeking to preserve certain fundamental goals (Maqasid) as vital necessities, upon which the whole of the Shariah is built and in fact the rest of the rules are just means (Wasail) to realize them.
These would be the preservation of religion, intellect, family/lineage, life and property. Muslim theologians also believe that these are universal values. Muslim scholars have explained that these aims are fundamental interests (Masalih) that societies seek. And the rest of the rules were means to do so.
So Muhammad (saw) organised his community, alongside the Jewish tribes, and polytheists by negotiating an agreement in Mithaq ul-Madinah 'The document of Madinah'. This was in his time, and situation, how best to realize these aims. He described the Muslims, Jews and Polytheists who were signatories to this document as 'one Ummah, separate from the rest of mankind' and incorporated a plurality of legal traditions including Jewish and Polytheistic local tradition e.g. blood money (see Ibn Hisham).
The Prophet made other agreements; He agreed with the tribe of Thaqif that they would have their own leader for prayer from amongst themselves, they would not join the congregation of Madinah, they would not pay the Zakat (alms) nor would they take part in the Jihad (armed conflict) alongside the Muslims (Sunan Abu Dawud).
Muslims maintained this political tradition. They asked Abu Bakr to appoint the next leader to prevent the discord that occurred after the appointment of Abu Bakr. Umar separated the power of judging from the governors to ensure justice. The Muslims appointed Uthman, after Umar had restricted the nominees, on condition that he follows the rules and laws of Abu Bakr and Umar (See Bukhari). The court of Mazalim (Unjust Acts) was established by the Abbasids (al-Qadi al-Mawardi the judge and writer notes this was an imitation of the Persian system present at the time) to bring about justice and account the governors.
Al-Mawardi describes in his work both the functioning of polity in his time, and dictates some rules pertaining to them. He gives an incident where Judge (Qadi) Abu Yusuf was adjudicating in a case with competing interests. The Qadi informed the Caliph, Harun al-Rashid who advised discretion by not imposing the old traditions in a manner that would create political discord, as it was completely out of sink with the views of Society. Imam al-Mawardi states that Abu Yusuf did so, and that this is perfectly permissible as it was aimed at seeking Muslims’ interests (Maslaha - see Ahkam al-Sultaniyah). In the same context Imam Ahmed al-Hadawi al-Murtada explains that the 'Hudood' ("prescribed punishments") should be dropped when there is an interest (Maslaha) in doing so (See 'al-Azhar').
In today's day and age, we can have various means to ascertain lineage and parental responsibility, maintenance measures; DNA testing involved in detecting crimes and various means of rehabilitation; a developed and developing understanding (there is still huge disparity in the West between salaries across gender) of the social value of women in the work place and their understanding of socio-economic-political matters - we can seek to redress any imbalances and outdated or outmoded expressions of the means by which the these important goals (Maqasid) are realized. All of this can be realised away from the influences of the medieval mindset. We can relieve ourselves of ancient and outmoded punishments, such as 'flogging' and 'stoning' as not being consistent with the actualizing of the Maqasid (Something that the Ottomans had abandoned for the last 300 hundred years in its imperial life).
Professor Imran Khan Nyazee in his work 'Theories of Islamic Law', explains that today we should re-evaluate the disparity between female testimony, their apparent economic value as being equal to that of men, and more importantly, the most appropriate political system as a democratic political system which would facilitate the best means of Muslims realizing the above aims in a just political order.
It should also be clear that the Prophet and the early Muslims were able to establish a 'social contract' that facilitated harmony in their own societies, allowing the political means to develop pragmatically, as necessitated. Where are we in this respect? How close are we to developing our own 'home-grown' organic conception of civil society and develop a discourse where we can replicate the same notion of 'Ummah', that the Prophet (saw) managed to create in multi-faith Madinah, whilst maintaining social cohesion? This for me is the question of our age.
Rashad Ali
Civil Society – Addressing Apparent Islamist Grumblings
Islamists' objections to civil society and political agreements centered around a number of issues, such as the references for particular points, for example: the development of political and judicial systems; the view of the Zaydi Imam on Hudood implementation; Social Contract as a principle; determining an Interest (Maslaha); and the “Hadd” or ordained punishment for blasphemy.
To start with the historic development of the political and judicial systems, Professor Imran Ahsan Khan Nyazee [1]states:
“For example, we know that certain institutions existed from very early times. These, among others were the Mazalim courts (Courts of Unjust Acts) and the institutions of Hisbah (spot checks). Muslim jurists almost never mention these institutions in their law books, not even to declare them legal or illegal according to the Shariah. It was al-Mawardi, followed by Ibn Khaldun, who mentioned these institutions in some detail in his book al-Ahkam al-Sultaniyah… It also appears that the personality of the ruler has always been deemed more important than sound institutions… It also becomes obvious that what is binding upon us is the fixed part of the law. Nothing is binding upon us from the flexible sphere that changes with the times, unless we consciously follow a system of precedents. If the rulers in the earlier ages chose to establish Mazalim courts, it is not binding upon us to do the same. We can possibly establish better and more effective institutions today…”
It is well known that the political and judicial processes developed and evolved through time. Imam al-Mawardi in his text explains this process thus;
"No one sought redress for a wrong from any of the four Khulafah (Caliphs) as they were at the beginning of the affair when the Deen (the religion) had just appeared.... admonition sufficed...
After him (Ali), however, such cases became more frequent - so much so that people would openly act unjustly to each other and try to get the better of each other; admonition and exhortation were not sufficient to prevent them from mutual hostilities and recriminations. Thus there was a need for judiciary - which combined the power of authority with the fairness of a legal system - to investigate cases of wrong doing and abuse in order to prevent people from taking advantage of each other, and to see justice was done... the first to assigning a specific day for the investigation of wrong actions (Mazlama) – without actually taking part directly himself was Abd al-Malik ibn Marwan. If the latter had to deal with a problem or if he needed some executive judgment, he would hand it over to his Qadi (judge), Abu Idris al-Awdi... Thus Abu Idris was actually conducting the case and Abdul Malik was giving the orders...
Umar ibn Abd al-Aziz may Allah have mercy on him was the first person to undertake judicial investigation of (Mazlama) wrong actions and abuse: he would reject all such wrong doing and would maintain respect for just and fair practices, or re-establish such practices if necessary... Later several of the Abbasid khulafah sat in Judgment, the first of these being al-Mahdi, then al-Hadi. al-Rashid, al-Mamun and
finally al-Muhtadi...
The kings of Persia had considered it to be amongst the fundamental practices of sovereignty and the rules of justice: correct behaviors amongst the general population could only be established by observing such practices."[2]
In the explanation of this Taqi ul-Din al-Nabhani states: "It is permissible to have a special judge for Mazalim (Unjust Acts), because anything that falls under the mandatory powers of the Khaleefah (Caliph), he is allowed to appoint deputies to perform that duty on his behalf. It is also permissible to have a specific time and a specific style, because all of this falls under the Mubah (allowed)."[3]
The issue of not applying particular ahkam (judgments) and the affair narrated in Ahkam al-Sultaniyah of al-Qadi al-Imam Abu Yusuf and Khalifah Haroon al-Rashid is the perspective of al-Qadi Abu’l Hasan al-Mawardi
As for the issue of preventing the ruler from ruling by his own opinions, the following example set by the companions can explain this in more detail.
Taqi ul-Din al-Nabhani states: “The definition of Taqlid linguistically and in the Shariah, implies that everyone who follows someone else’s (point of view) is a termed a Muqallid; so the issue is following someone other than oneself. From this perspective a person, with regards their knowledge of Hukm Shari is of two types: one of them a Mujtahid, the second Muqallid, there is no third type.”
He goes: “The Mujtahid when he is of the capability of making Ijtihad, completely, in any particular issue, and has made Ijitihad in an issue, which leads to him embracing a specific opinion, is not allowed to imitate (taqlid) the opinion of another Mujtahid differing from his own. He is not allowed to abandon his opinion in that matter except in four situations:
When it becomes apparent that the evidence that he based his Ijtihad on was weak, and the evidence of another Mujtahid was stronger…
When it becomes apparent that the other Mujtahid is more capable in his ability to link, or has more awareness of the reality, or a stronger understanding of the evidence…
If the Caliph adopts a rule that differs to the rule that his Ijtihad has led to…
When there is an opinion, around which it is desired to unify the word of the Muslims for the Maslaha (interest) of the Muslims. In that scenario it is allowed to for a Mujtahid to leave what his own Ijtihad has concluded, and adopt the opinion that he seeks to unite the Muslims upon. This would be like that which occurred with Uthman (ra) when he took the pledge. It has been narrated from Abdul-Rahman bin Awf (ra) that he had asked the people, the elect and the masses, collectively, in groups, secretly and openly. He gathered the people in the Mosque in front of the Minbar, and supplicated a long supplication. Then he called Ali, and took his hand and said: “Will you take the pledge, to act in accordance with the Book, the Sunnah, and the two successors who followed him, Abu Bakr (ra) and Umar (ra)?” Ali (ra) replied: “I take the pledge upon the Book, the Sunnah and to make Ijtihad and follow my opinion”. So he let go of his hand and called Uthman (ra) and said to him: “Will you take the pledge according to the Book and Sunnah, and the opinions of the successors after him, Abu Bakr (ra) and Umar (ra)?” Uthman (ra) said: “O Allah Yes!” Then Abdul-Rahman (ra) raised his head to the courtyard of the Mosque and placed his hand in the hand of Uthman (ra) and said three times “O Allah, hear and bear witness!”
The details are narrated in Imam Bukhari’s Sahih
Taqi al-Din al-Nabhani explained: “However this is permitted for a Mujtahid, not Wajib (obligatory). The evidence for that is the fact that Ali (ra) did not accept to abandon his Ijtihad for that of Abu Bakr (ra) and Umar (ra), and none of the companions (ra) made inkar (rejection of the practice), and this indicates that this is permitted and not Wajib.”[4]
So we can conclude two points
That, in the opinion of Taqi al-Din al-Nabhani, it is allowed to adopt an opinion for the sake of calling the people to it and uniting them upon it if there is a Maslaha (interest) intended in this.
The legislature, and even the Ijtihad of the people, will bind the Government.
Imam Mawardi in the section of criminal actions and judgments governing them explains that certain judgments should not, and actually cannot, be implemented at all. In his words, and the context that he gives, is the following:
“However as people take care not to do this, or even refuse to do this, those who are of this opinion do not put it into practice.”
The Imam then narrates an incident where the point of view of a certain Qadi – in this case none other than Imam Abu Yusuf, chief judge (Qadi ul-Qudah) in the time of the Ummayads – faced an incident where his legal opinion (Fiqh) was not accepted by the society in which he was judging, and was likely to create a reaction from the society. In this case it was actually a case of Qisas (retaliation) involving the application of the death penalty upon a Muslim for allegedly killing a non-Muslim. He approached Haroon al-Rashid, the Caliph, who advised caution; “Deal discreetly with the affair so as to avoid discord”.
In the end it appears that Imam Abu Yusuf, was able to dismiss the case through dismissing the claim, and avoiding the legal measure – in this death penalty being applied. Imam Mawardi used this anecdote to make the point that even if one believes that this is the rule of the Shariah, one should not implement it if that is not the view of the people. He further stated that, “Recourse to such action is permitted if there is a Maslaha (benefit) to be seen in it”.
Opinions, therefore, that are not embraced by the society, though they may have a sound legal argument, are not to be enforced if there is a Maslaha in doing so.
Imam Ahmed bin Murtada al-Hadawi al-Mahdi explicitly stated this, and went further: “wa lahu (al-Imam) isqaatuhaa (hudood) wa takheeruhaa li-maslahatin wa fil-qisasi nazar (ala-Wajoobihi).” “It is up to him (the leader) to repeal them (the legal punishments) or delay them for the sake of an interest (maslaha). With regards to retaliatory punishments, there is room for investigation (regarding it being obligatory in origin).”[5]
In fact regarding the hudood in general and the punishment of apostasy specifically, Professor T J Winter, states; “The Ottoman Caliphate, the supreme representative of Sunni Islam, formally abolished this penalty in the aftermath of the so-called Tanzimat reforms launched in 1839. The Shaykh al-Islam, the supreme head of the religious courts and colleges, ratified this major shift in traditional legal doctrine. It was pointed out that there is no verse in the Qur’an that lays down a punishment for apostasy (although chapter 5 verse 54 and chapter 2 verse 217 predict a punishment in the next world). It was also pointed out that the ambiguities in the hadith (the sayings of the Prophet) suggest that apostasy is only an offense when combined with the crime of treason. These ambiguities led some medieval Muslims, long before the advent of modernisation, to reject the majority view. Prominent among them one may name al-Nakha’i (d.713), al-Thawri (d.772), al-Sarakhsi (d. 1090), al-Baji (d. 1081), and al-Sha’rani (d.1565). The debate triggered by the Ottoman reform was continued when al-Azhar University in Cairo, the supreme religious authority in the Arab world, delivered a formal fatwa (religious edict) in 1958, which confirmed the abolition of the classical law in this area.”[6]
We find that the Hanbali Ulema endorsed this position too; Ala ul-Din Kharufah, an Alim of the Ibn Saud University explains in his book, ‘Hukm al-Islam fi-Jara’im Salman Rushdie’, that the Hudood such as the “rules of apostasy” are all based upon, and only implemented in, the interest of Muslims; “li-maslahat il-Islam…” and presents the true and wholesome nature of Islam (“dai’yah tayyibah l’il-Islam”).[7]
How does one ascertain these Masalih?
This was explained by ‘Sultan of the Ulema’, Imam al-Izz Ibn Abdul-Salam al-Sulami[8]:
“The masalih (interests) and mafasid (harms/corruption) of this world and their means are known by necessity, experience, custom and careful conjecture (zann). If any of that is ambiguous, its meaning should be sought from it proper proofs. Anyone seeking to know how to distinguish between the masalih and the mafasid and which outweighs the other, must submit it to the test of reason on the assumption that the shariah has not mentioned it. Let him build his judgments on it; he will discover that almost none of them violates the rules of the shariah except the prescriptions and proscriptions that God has imposed on His Servants as merely devotional matters without revealing to them the relevant aspects of the maslaha or mafsadah.”
Najm ul-Din al-Tufi the Hanbali Usuli; defines the masalih as the purpose upon which the application of the shariah depends.[9]
Professor Hashim Kamali explains this in his work ‘Principles of Islamic Jurisprudence’[10] that:
“As for transactions and temporal affairs (ahkam al-muamalat wa al-siyasat al-dunwayiayah), al-Tufi maintains that if the text of the maslaha happens to conform to the maslaha of the people in a particular case, they should be applied forthwith; but if they oppose it then maslaha should take precedence over them. The conflict is really not between the nass (text) and maslaha, but between one nass and another, the latter being the hadith of la darar wa la dirar fil Islam (there is no harm or reciprocating harm in Islam). One must therefore not fail to act upon that text which materialises the maslaha. This process would amount to restricting the application of one nass by reason of another nass and not to a suspension or abrogation thereof. It is a process of specification (takhsis) and explanation (bayan), just as the Sunnah is sometimes given preference over the Qur’an by way of clarifying the text of the Qur’an.
In areas of transactions and governmental affairs, al-Tufi adds, maslaha constitutes the goal whereas the other proofs are like the means; and the ends must take precedence over the means. The rules of Shariah on these matters have been enacted in order to secure the masalih of the people, and therefore when there is a conflict between a maslaha and nass, the hadith la darar wa la dirar clearly dictates that the former must take priority. In short al-Tufi’s doctrine, as Mahamassani has observed, amounts to saying that after each ruling of the text, ‘Provided public interest does not require otherwise’.”
This is the opinion of an Allama and Usuli of the Mazhab of Imam Ahmed Ibn Hanbal and though may not be shared by other usuliyeen is recognised by al-Nabhani as a valid Islamic position; al-Nabhani states[11], that the above view is Hukm shari for those that adopt it and for those that disagree with it, it is still nonetheless a hukm shari.
Regarding the issue of blasphemy itself the Islamist perspective is – unsurprisingly – the harshest stance possible. The ‘Moderate’ 'Muslim Brotherhood' spokesperson, al-Shaykh al-Nur [aged 27 - vetinery scientist] said; "if she meant the prophet she must die". He said this speaking of the “Teddygate affair”.
Assuming that someone did insult our noble messenger (saw) what should our attitude be? I mean Muslims do profess a love for God and his prophet. Why not let us take our precedent from the Qur'an and the Sunnah (example) of our Messenger Muhammad (saw)? After all it is for his sake that we get upset and not some type of political-religious identity politics. Surely?
Let us take the Qur'an first; it was narrated by Ibn Kathir the Qur'anic exegete in his Tafsir ul-Qur'an il-Azim that some people from one of the Jewish tribes came to the Prophet and spoke to him in words implying insolence, saying raa'ina which in Arabic also meant 'look upon us' but alluded to some type of derision in their own dialect.
God revealed a verse regarding this incident addressing the Muslims and Jews saying, "O you who believe! Say look unto us (unthurna) and do not say raa'ina (look at us)" So God advises us not to address people in an ambiguous manner.
Ibn Kathir also adds in his exegesis that the Prophet (saw) told the companions how not to address servants and young children in a similar manner, but with words that didn't hurt or upset them. In another incident mentioned by Imam Bukhari – the famous Muslim polymath and collector of what is considered by Muslims to be the most authentic collection of prophetic teaching - we are informed of the following:
They came into the presence of the Messenger Muhammad (saw) and addressed him with the words 'Saamu alaikum' meaning, 'Death be upon you', instead of
salam (meaning peace). Aisha (r) responded immediately 'wa alaikum al-saam' 'and upon you be death'! To which the prophet told Aisha (r), not to do so, but rather be kind and gentle as Allah loves Kindness, and the gentle, and it would have been sufficient to say ‘alaik' (upon you) and not cross the boundaries!
This is an emphatic example of not just tolerance, but the Rahma (mercy) that was the Messenger (saw).
This is why Imam Bukhari (ra), as explained by Badr ul-Din al-Ayni (ra) in his commentary on the Imam's collection of hadith (Umdat ul-Qari volume 24), believed that the Prophet (saw) never took any recompense on any non-Muslim for insulting him. This was considered by him to be the sunnah, as there was no divine punishment prescribed upon the Zimmi (non-Muslim) living amongst Muslim society. This was a matter for the politicians and rulers to decide how to deal with, and going to extremes in dealing with such a scenario was forbidden. In fact, according to the prophetic precedent, even reciprocating in a like manner was too much and inflicting capital punishment was absolutely prohibited.
Imam Bukhari, like other scholars such as Imam Abu Hanifah (ra) reminded Muslims that one of the most well known traditions of the prophet, narrated by many of his Companions (considered mutawatir by Khattani), held that "whoever harms a non-Muslim under Muslim protection harms me" i.e. the Messenger Muhammad (saw). Imam Ibn Hazm lists the above as the position of Imam Abu Hanifah.[12]
Returning to the repealing of Hudood, though other jurists who comment on this text may ostensibly differ with Imam al-Murtada, such as the Qadi al-Imam Muhammad bin Ali al-Shawkani, they differ not with the substantive issue itself. Al-Shawkani accepts, from another perspective, the principle that political agreements with apparently ‘invalid’ conditions are permitted. To elaborate further, Imam al-Shawkani states[13]:
“It is reported on the authority of Asim al-Laythi that a man amongst them said verily he went to the prophet (may Allah bless and grant him peace) and agreed that he would embrace Islam on the condition that he would pray two prayers, and he (saw) accepted this from him (Narrated by Ahmed).
It was mentioned in another narration that he would not pray but a single prayer, and that the Prophet (saw) accepted that from him.
Wahb is reported to have said: I asked Jabir regarding what transpired at Thaqeef when they gave the Bayah (pledge) and he said: they placed the condition (shart) on the Prophet (saw) that there would be no Sadaqa upon them, and no jihad. I heard from the Messenger (saw) himself say: They will give the sadaqa and the will fight Jihad! (Narrated by Abu Dawud, Hadith number 3210)
Anas reported: Verily the Messenger (saw) said to a man, "embrace Islam" and he responded, "I find myself somewhat averse/forcing myself (ajidunee kaarihaan)". He (saw) said, "embrace Islam, even so (in kunta kaarihaan)" (Narrated by Ahmed, Hadith number 3211).
In these ahadith there is evidence of the permissibility of taking the Bayah (pledge of allegiance) and the acceptance of Islam from a non-Muslim even if he stipulates (Batil) invalid conditions, or an element of aversion. Abu Dawud was silent (i.e. he viewed it as authentic because he stated that anything he remained silent about in his Sunan is at least acceptable [Hasan]) and al-Mundhiri said, regarding the hadith that we have mentioned, that Wahb is Wahb ibn Munbih and its isnad (chain of narration) is authentic (la bas bih – lit. no problem with it).
Abu Dawud has also narrated the Hadith of al-Hasan al-Basri from Uthman bin Abi’ al-Aas that “when (the tribe of) Thaqif presented themselves to the Messenger, Allah bless him and grant him peace, he met them in the Mosque, so as to soften their hearts. They placed conditions on him that they should not be summoned, nor should their wealth be subject to the tenth, and that they would not lower their heads by bowing. So the Messenger, peace be upon him and his family, said: “It is granted, that you will not be summoned, and your tenth will not be taken, but there is no good in a religion without bowing (ruku’)”. Al-Mundhiri said: It was said (“qeela” – used in this way because such a view is not accepted by al-Mundhiri) that al-Hasan al-Basri did not ‘hear’ from Uthman bin Abi’ al-Aas; what is meant by not being summoned is being requested to come for Jihad and going out for it (an expedition).
And his saying ‘tenth’, is referring to the ‘tenth’ of the property that is taken as Sadaqa (mandatory alms).
And his saying ‘not bowing’, (omitting some text on the morphology) the basic meaning of ‘bowing’ is a man standing in the position of ruku’, and what was intended by that was that they would not pray (make the mandatory ‘Salat’).
Al Khattabi said: ‘it is possible to opine (There is ‘Shubha’) that he was magnanimous to them regarding Jihad and Sadaqa because these two obligations (wajibatayn) were not immediately obligatory, as alms are due only after the passing of a year, and Jihad is only obligatory if you are surrounded (by an enemy force); as for the Salat, this is set-determined (ratibah) and therefore it is not permitted to place a condition to abandon it.’
In contrast to this view is the Hadith of Nasr bin Asim mentioned in this Chapter. For it expressly mentions that the Prophet may Allah bless him and grant him peace, accepted from a man that he would pray only two prayers or one prayer, depending on the different narrations. The problem remains though in the saying (of the Messenger) in the Hadith: “there is no good in a religion without bowing”. The apparent meaning (Zahir) indicates there is no goodness in someone embracing Islam on the condition that he doesn’t pray. It is possible though to say; the Prophet’s, Allah bless him and grant him peace, negating goodness does not indicate the impermissibility (adam ul-jawaz) of someone accepting Islam on condition that they don’t pray. The fact he, Allah bless him and grant him peace, did not accept this condition from Thaqif, does not necessarily mean an absolute prohibition.”
The people, therefore, can negotiate political agreements around which their social and political interaction is built, without any specific restrictions imposed by the Shariah. Taqi ul-Din Ibn Taymia (the grandson) used the above examples to make the following point, regarding forbidding “evils” and understanding the consequences in doing so. He explained that one would, and in fact should, refrain from forbidding an evil,
“…when forbidding a matter, which necessarily leads to the abandonment of a preponderant Maruf (good matter). This would be the same when doing so would lead to a greater Mafsada (harm). A case in hand would be for someone to embrace the faith, Islam, on condition that he prays only two prayers, as is related regarding a man in the time of the Prophet (May Allah bless him and grant him peace).
So too would it be for one of the rulers who, having by the grace of Allah embraced Islam, drinks wine or undertakes other forbidden actions which if prohibited to him may lead to him abandoning Islam.
Thus there is a differentiating factor, for say a ruler or scholar, between the act of abstaining from prohibiting a certain thing to some people, when doing so entails a greater harm (Mafsada), and the act of making it permissible (Halal). This will also vary from one situation to another, which may entail making public the prohibition, so that it may be known and persuades people to abandon it, or become fearful of performing it, or in the hope people will abstain, or expressing indignation towards the act; all of these (and other responses) will vary from situation to situation.
This is why we find the various and different approaches taken by the Prophet, whether it was him enjoining the good (Maruf) or forbidding the evil (Munkar), or pertaining to waging Jihad, exonerating an act, imposing a penalty or to be exacting or merciful.”[14]
As for those that do not wish to accept this position and the views of our present day scholars, we should mention two points:
Imam al-Nawawi (ra) comments on the Hadith, "Whosoever sees (removed apostrophe) an evil let him change it...” explaining that it is not allowed to reject an opinion merely because one’s Ijtihad is different. He states, "The Ulema condemn (any divergence from) that which is unanimously agreed upon (Ijma); as for where there is no Ijma, then it is not permitted to condemn (the divergent opinion)."[15]
Furthermore, it is a principle adopted by our scholars that any action already undertaken is to be judged retrospectively as being in accordance with the juristic (Fiqhi) position that it is congruent to.
Hence, we judge actions according to the juristic verdict that they match, not according to the juristic verdict that we may prefer them to have followed, nor by our opinion. This is part of a broader discussion of Muru’at al-Khilaf or the ‘Doctrine of Synchronizing Diversity’. Imam al-‘Izz ibn Abd al-Salam explained this point of view, which was shared by major Maliki authorities such as Tilimasani. For those interested in further reading about this concept and the various views – including the above Imams, this was recorded by al-Wanshirisi in ‘al-Miyar’, volume 4 pages 254 to 280.
Naturally, the above leads to the concept of the Social Contract, and people being able to live together through mutual agreement.
The document of Medina (Mithaq ul-Madinah) states:
“Conditions must be fair and equitable to all… The Jews of the Banu Auf are one Ummah (community) with the believers… the Jews must bear their (military) expenses and the Muslims theirs. Each must help the other against anyone who attacks the people of this document. They must seek mutual advice and consultation… The wronged must be helped… The contracting partners are bound to help one another against any attack on Yathrib. If they are called to make peace and maintain it they must do so… the Jews of al-Aus, their freedmen and themselves have the same standing with the people of this document in pure loyalty from the people of this document.”[16]
Muslims have a cultural heritage that allows them to meet the challenges facing them today such as civic engagement and contributing to society. T J Winter, one of our leading western Muslim scholars, quotes a leading eastern scholar thus:
“… in a lecture given in California by Shaykh ‘Abdullah bin Bayyah, one of the most distinguished Maliki scholars of Mauritania, Bin Bayyah told his American Muslim audience that ‘the relationship between Muslims living in this land is a relationship of peace and contractual agreement – of a treaty. This is a relationship of dialogue and a relationship of giving and taking […] It is absolutely essential that you respect the laws of the land that you are living in.’ The Shaykh proceeded to explain the classical fiqh (rules of religious conduct) required conviviality and respect for non-Muslim neighbours, and allowed adaptations even of the fundamental religious rules, such as the timing of prayers, to facilitate the integration of Islam in society and the work place.”[17]
T. J. Winter goes on to make the above point, with poignant local and historic examples:
“Traditional Sunnism’s legal and theological capacity to allow conviviality and adaptation has, of course, been demonstrated in many historical context. From an almost unlimited list, examples might include the ancient Muslim communities in Poland and Lithuania, which became so solidly embedded in their Catholic surroundings that they produced two of Poland’s national heroes: Jalal al-Din, who supported the Grand Duke against the Teutonic knights at Tannenberg in1421, and Marshall Joseph Piludski (d1920), after whom one of the greatest city squares of Warsaw still takes its name.”
Muslim scholars and thinkers are not averse, in their heritage to embracing their “Ummah” or people, whether they are Muslim, Hindu’s, Jews Christians or Atheists. Civil engagement within society, as human beings trying to live together, creating our own ‘social contract’, is not beyond Muslims or outside the teachings of Traditional Islam.
In the words of T. J. Winter, Muslims need to recognize “… that the united Kingdom has produced many expressions of the religious quest among which they can feel a genuine sense of belonging, and which can remind them of the fundamental unity of humanity.”
Rashad Ali January 2008
--------------------------------------------------------------------------------
[1] ‘Theories of Islamic Law’ Page 124
[2] al-Ahkam as-Sultaniyyah The Laws of Islamic Governance by Imam al-Qadi Abu'l Hasan al-Mawardi page 117-118 (Ta Ha Publishers)
[3] The Ruling System in Islam (Nidham ul-Hukm fil Islam) page 227 Khilafah Publications.
[4] Shakhsiyah Islamiyah Juz’ al-Awwal Bab ‘Waqi ul-Taqlid’ 221 -223 Islamic Personality Volume 1 chapter entitled ‘Reality of Taqlid’ (adopting opinions from Jurists) Dar ul-Ummah Publications
[5] Sayl ul-Jaraar Mutadaffiq ala Hadaiq ul-Azhar, Kitab ul-Hudood in volume 3, page 487, from the matn (text of Imam Ahmed commonly abbreviated to as; al-Azhar) not the shar’h of Imam al-Shawkani. Dar Ibn Kathir, Damascus - Beirut
[6] ‘The Washington Post’ article entitled ‘The Meaning of Jihad’, article is found on www.radicalmiddleway.com
[7] Published by Dar al-Isfahani 1410-1989 Pages 105-106
[8] al-Qawaid ul-Ahkam fi masalih ul-Anam volume 1 page 13
[9] al-Masalih page 139-141
[10] ‘Principles of Islamic Jurisprudence’ on page 361
[11] ‘Muqaddimat ul-Dustur’ page 75
[12] al-Muhalla. (Volume 11 page 416, Cairo, Idarah Tibi' al-Muniriyah
[13] ‘The Validity of Islam with a Fasid (irregular) Condition’, Volume 4 page 210 Dar al-Kutub al-'ilmiyah Beirut; Nayl ul-Awtar min Ahadith Sayid al-Akhbar Sharh Muntaqa al-Akhbar by Imam Muhammad bin Ali al-Shawkani on the collection of hadith collated by Majd al-Din Ibn Taymia (the grandfather and judge, Hadith number 3209)
[14] Majmou al-Fatawa volume 35 page 31-32 Shaykh al-Islam Ibn Taymia
[15] Sharuh Sahih Muslim Chapter al--Amr bi'l-Maruf wa Nahiy ani'l-Munkar and quoted verbatim by Ibn Taymia in Majmou al-Fatawa Volume 2 page 33 Dar al-Marifa
[16] A. Guillaume The life of Muhammad – A translation of Sirat Rasul Allah pages 231 -233 Oxford Press
[17] T. J. Winter, ‘British Muslim Identity – Past, problems, prospects’, THE M. A. T. PAPERS
Tue 04 Dec 2007
The early release of Ms Gibbons and 'pardoning' of her 'crime' by Sudanese president Omer el-Bashir has been welcomed by all. This was after the hard work of the two Muslim peers Lord Nazir Ahmed and Lady Warsi.
Lord Nazir issued a statement, saying that the misunderstanding is over. Gordon Brown said that she never should have been arrested. The Sudanese ambassador said the pardon meant that the initial error had not been 'forgotten', rather it was 'forgiven', whilst maintaining the original 'mistake' - and the conviction therefore - still 'stood'.
This, however, does not really address a number of fundamental questions; amongst them: Muslims may well belie the relationship between such an incident and Islam, but how does it take place in the name of Islam? What if she was guilty? Do Muslims advocate flogging and imprisonment in that case? It seems in some circles they go even further. "Moderate" Islamist movement leaders such as el-Sheikh el-Nur of the Muslim Brotherhood added, "If she intended the prophet by naming the teddy bear, she should be killed".
In the same vein are punishments such as amputation of limbs, stoning of adulterers, and lashing/imprisoning/killing those that dare name a teddy bear Muhammad. Are these really aspects of Islam, and the "Shariah" that are essential aspect of divine wisdom, as understood by Muslims?
Muslims and Muslim scholars have attempted to address this and many other issues that pertain to Muslims, Islam and modernity and civil society, but the question still arises amongst Muslims and mainly propounded by Islamists. Muslim scholars have traditionally viewed the Shariah as seeking to preserve certain fundamental goals (Maqasid) as vital necessities, upon which the whole of the Shariah is built and in fact the rest of the rules are just means (Wasail) to realize them.
These would be the preservation of religion, intellect, family/lineage, life and property. Muslim theologians also believe that these are universal values. Muslim scholars have explained that these aims are fundamental interests (Masalih) that societies seek. And the rest of the rules were means to do so.
So Muhammad (saw) organised his community, alongside the Jewish tribes, and polytheists by negotiating an agreement in Mithaq ul-Madinah 'The document of Madinah'. This was in his time, and situation, how best to realize these aims. He described the Muslims, Jews and Polytheists who were signatories to this document as 'one Ummah, separate from the rest of mankind' and incorporated a plurality of legal traditions including Jewish and Polytheistic local tradition e.g. blood money (see Ibn Hisham).
The Prophet made other agreements; He agreed with the tribe of Thaqif that they would have their own leader for prayer from amongst themselves, they would not join the congregation of Madinah, they would not pay the Zakat (alms) nor would they take part in the Jihad (armed conflict) alongside the Muslims (Sunan Abu Dawud).
Muslims maintained this political tradition. They asked Abu Bakr to appoint the next leader to prevent the discord that occurred after the appointment of Abu Bakr. Umar separated the power of judging from the governors to ensure justice. The Muslims appointed Uthman, after Umar had restricted the nominees, on condition that he follows the rules and laws of Abu Bakr and Umar (See Bukhari). The court of Mazalim (Unjust Acts) was established by the Abbasids (al-Qadi al-Mawardi the judge and writer notes this was an imitation of the Persian system present at the time) to bring about justice and account the governors.
Al-Mawardi describes in his work both the functioning of polity in his time, and dictates some rules pertaining to them. He gives an incident where Judge (Qadi) Abu Yusuf was adjudicating in a case with competing interests. The Qadi informed the Caliph, Harun al-Rashid who advised discretion by not imposing the old traditions in a manner that would create political discord, as it was completely out of sink with the views of Society. Imam al-Mawardi states that Abu Yusuf did so, and that this is perfectly permissible as it was aimed at seeking Muslims’ interests (Maslaha - see Ahkam al-Sultaniyah). In the same context Imam Ahmed al-Hadawi al-Murtada explains that the 'Hudood' ("prescribed punishments") should be dropped when there is an interest (Maslaha) in doing so (See 'al-Azhar').
In today's day and age, we can have various means to ascertain lineage and parental responsibility, maintenance measures; DNA testing involved in detecting crimes and various means of rehabilitation; a developed and developing understanding (there is still huge disparity in the West between salaries across gender) of the social value of women in the work place and their understanding of socio-economic-political matters - we can seek to redress any imbalances and outdated or outmoded expressions of the means by which the these important goals (Maqasid) are realized. All of this can be realised away from the influences of the medieval mindset. We can relieve ourselves of ancient and outmoded punishments, such as 'flogging' and 'stoning' as not being consistent with the actualizing of the Maqasid (Something that the Ottomans had abandoned for the last 300 hundred years in its imperial life).
Professor Imran Khan Nyazee in his work 'Theories of Islamic Law', explains that today we should re-evaluate the disparity between female testimony, their apparent economic value as being equal to that of men, and more importantly, the most appropriate political system as a democratic political system which would facilitate the best means of Muslims realizing the above aims in a just political order.
It should also be clear that the Prophet and the early Muslims were able to establish a 'social contract' that facilitated harmony in their own societies, allowing the political means to develop pragmatically, as necessitated. Where are we in this respect? How close are we to developing our own 'home-grown' organic conception of civil society and develop a discourse where we can replicate the same notion of 'Ummah', that the Prophet (saw) managed to create in multi-faith Madinah, whilst maintaining social cohesion? This for me is the question of our age.
Rashad Ali
Civil Society – Addressing Apparent Islamist Grumblings
Islamists' objections to civil society and political agreements centered around a number of issues, such as the references for particular points, for example: the development of political and judicial systems; the view of the Zaydi Imam on Hudood implementation; Social Contract as a principle; determining an Interest (Maslaha); and the “Hadd” or ordained punishment for blasphemy.
To start with the historic development of the political and judicial systems, Professor Imran Ahsan Khan Nyazee [1]states:
“For example, we know that certain institutions existed from very early times. These, among others were the Mazalim courts (Courts of Unjust Acts) and the institutions of Hisbah (spot checks). Muslim jurists almost never mention these institutions in their law books, not even to declare them legal or illegal according to the Shariah. It was al-Mawardi, followed by Ibn Khaldun, who mentioned these institutions in some detail in his book al-Ahkam al-Sultaniyah… It also appears that the personality of the ruler has always been deemed more important than sound institutions… It also becomes obvious that what is binding upon us is the fixed part of the law. Nothing is binding upon us from the flexible sphere that changes with the times, unless we consciously follow a system of precedents. If the rulers in the earlier ages chose to establish Mazalim courts, it is not binding upon us to do the same. We can possibly establish better and more effective institutions today…”
It is well known that the political and judicial processes developed and evolved through time. Imam al-Mawardi in his text explains this process thus;
"No one sought redress for a wrong from any of the four Khulafah (Caliphs) as they were at the beginning of the affair when the Deen (the religion) had just appeared.... admonition sufficed...
After him (Ali), however, such cases became more frequent - so much so that people would openly act unjustly to each other and try to get the better of each other; admonition and exhortation were not sufficient to prevent them from mutual hostilities and recriminations. Thus there was a need for judiciary - which combined the power of authority with the fairness of a legal system - to investigate cases of wrong doing and abuse in order to prevent people from taking advantage of each other, and to see justice was done... the first to assigning a specific day for the investigation of wrong actions (Mazlama) – without actually taking part directly himself was Abd al-Malik ibn Marwan. If the latter had to deal with a problem or if he needed some executive judgment, he would hand it over to his Qadi (judge), Abu Idris al-Awdi... Thus Abu Idris was actually conducting the case and Abdul Malik was giving the orders...
Umar ibn Abd al-Aziz may Allah have mercy on him was the first person to undertake judicial investigation of (Mazlama) wrong actions and abuse: he would reject all such wrong doing and would maintain respect for just and fair practices, or re-establish such practices if necessary... Later several of the Abbasid khulafah sat in Judgment, the first of these being al-Mahdi, then al-Hadi. al-Rashid, al-Mamun and
finally al-Muhtadi...
The kings of Persia had considered it to be amongst the fundamental practices of sovereignty and the rules of justice: correct behaviors amongst the general population could only be established by observing such practices."[2]
In the explanation of this Taqi ul-Din al-Nabhani states: "It is permissible to have a special judge for Mazalim (Unjust Acts), because anything that falls under the mandatory powers of the Khaleefah (Caliph), he is allowed to appoint deputies to perform that duty on his behalf. It is also permissible to have a specific time and a specific style, because all of this falls under the Mubah (allowed)."[3]
The issue of not applying particular ahkam (judgments) and the affair narrated in Ahkam al-Sultaniyah of al-Qadi al-Imam Abu Yusuf and Khalifah Haroon al-Rashid is the perspective of al-Qadi Abu’l Hasan al-Mawardi
As for the issue of preventing the ruler from ruling by his own opinions, the following example set by the companions can explain this in more detail.
Taqi ul-Din al-Nabhani states: “The definition of Taqlid linguistically and in the Shariah, implies that everyone who follows someone else’s (point of view) is a termed a Muqallid; so the issue is following someone other than oneself. From this perspective a person, with regards their knowledge of Hukm Shari is of two types: one of them a Mujtahid, the second Muqallid, there is no third type.”
He goes: “The Mujtahid when he is of the capability of making Ijtihad, completely, in any particular issue, and has made Ijitihad in an issue, which leads to him embracing a specific opinion, is not allowed to imitate (taqlid) the opinion of another Mujtahid differing from his own. He is not allowed to abandon his opinion in that matter except in four situations:
When it becomes apparent that the evidence that he based his Ijtihad on was weak, and the evidence of another Mujtahid was stronger…
When it becomes apparent that the other Mujtahid is more capable in his ability to link, or has more awareness of the reality, or a stronger understanding of the evidence…
If the Caliph adopts a rule that differs to the rule that his Ijtihad has led to…
When there is an opinion, around which it is desired to unify the word of the Muslims for the Maslaha (interest) of the Muslims. In that scenario it is allowed to for a Mujtahid to leave what his own Ijtihad has concluded, and adopt the opinion that he seeks to unite the Muslims upon. This would be like that which occurred with Uthman (ra) when he took the pledge. It has been narrated from Abdul-Rahman bin Awf (ra) that he had asked the people, the elect and the masses, collectively, in groups, secretly and openly. He gathered the people in the Mosque in front of the Minbar, and supplicated a long supplication. Then he called Ali, and took his hand and said: “Will you take the pledge, to act in accordance with the Book, the Sunnah, and the two successors who followed him, Abu Bakr (ra) and Umar (ra)?” Ali (ra) replied: “I take the pledge upon the Book, the Sunnah and to make Ijtihad and follow my opinion”. So he let go of his hand and called Uthman (ra) and said to him: “Will you take the pledge according to the Book and Sunnah, and the opinions of the successors after him, Abu Bakr (ra) and Umar (ra)?” Uthman (ra) said: “O Allah Yes!” Then Abdul-Rahman (ra) raised his head to the courtyard of the Mosque and placed his hand in the hand of Uthman (ra) and said three times “O Allah, hear and bear witness!”
The details are narrated in Imam Bukhari’s Sahih
Taqi al-Din al-Nabhani explained: “However this is permitted for a Mujtahid, not Wajib (obligatory). The evidence for that is the fact that Ali (ra) did not accept to abandon his Ijtihad for that of Abu Bakr (ra) and Umar (ra), and none of the companions (ra) made inkar (rejection of the practice), and this indicates that this is permitted and not Wajib.”[4]
So we can conclude two points
That, in the opinion of Taqi al-Din al-Nabhani, it is allowed to adopt an opinion for the sake of calling the people to it and uniting them upon it if there is a Maslaha (interest) intended in this.
The legislature, and even the Ijtihad of the people, will bind the Government.
Imam Mawardi in the section of criminal actions and judgments governing them explains that certain judgments should not, and actually cannot, be implemented at all. In his words, and the context that he gives, is the following:
“However as people take care not to do this, or even refuse to do this, those who are of this opinion do not put it into practice.”
The Imam then narrates an incident where the point of view of a certain Qadi – in this case none other than Imam Abu Yusuf, chief judge (Qadi ul-Qudah) in the time of the Ummayads – faced an incident where his legal opinion (Fiqh) was not accepted by the society in which he was judging, and was likely to create a reaction from the society. In this case it was actually a case of Qisas (retaliation) involving the application of the death penalty upon a Muslim for allegedly killing a non-Muslim. He approached Haroon al-Rashid, the Caliph, who advised caution; “Deal discreetly with the affair so as to avoid discord”.
In the end it appears that Imam Abu Yusuf, was able to dismiss the case through dismissing the claim, and avoiding the legal measure – in this death penalty being applied. Imam Mawardi used this anecdote to make the point that even if one believes that this is the rule of the Shariah, one should not implement it if that is not the view of the people. He further stated that, “Recourse to such action is permitted if there is a Maslaha (benefit) to be seen in it”.
Opinions, therefore, that are not embraced by the society, though they may have a sound legal argument, are not to be enforced if there is a Maslaha in doing so.
Imam Ahmed bin Murtada al-Hadawi al-Mahdi explicitly stated this, and went further: “wa lahu (al-Imam) isqaatuhaa (hudood) wa takheeruhaa li-maslahatin wa fil-qisasi nazar (ala-Wajoobihi).” “It is up to him (the leader) to repeal them (the legal punishments) or delay them for the sake of an interest (maslaha). With regards to retaliatory punishments, there is room for investigation (regarding it being obligatory in origin).”[5]
In fact regarding the hudood in general and the punishment of apostasy specifically, Professor T J Winter, states; “The Ottoman Caliphate, the supreme representative of Sunni Islam, formally abolished this penalty in the aftermath of the so-called Tanzimat reforms launched in 1839. The Shaykh al-Islam, the supreme head of the religious courts and colleges, ratified this major shift in traditional legal doctrine. It was pointed out that there is no verse in the Qur’an that lays down a punishment for apostasy (although chapter 5 verse 54 and chapter 2 verse 217 predict a punishment in the next world). It was also pointed out that the ambiguities in the hadith (the sayings of the Prophet) suggest that apostasy is only an offense when combined with the crime of treason. These ambiguities led some medieval Muslims, long before the advent of modernisation, to reject the majority view. Prominent among them one may name al-Nakha’i (d.713), al-Thawri (d.772), al-Sarakhsi (d. 1090), al-Baji (d. 1081), and al-Sha’rani (d.1565). The debate triggered by the Ottoman reform was continued when al-Azhar University in Cairo, the supreme religious authority in the Arab world, delivered a formal fatwa (religious edict) in 1958, which confirmed the abolition of the classical law in this area.”[6]
We find that the Hanbali Ulema endorsed this position too; Ala ul-Din Kharufah, an Alim of the Ibn Saud University explains in his book, ‘Hukm al-Islam fi-Jara’im Salman Rushdie’, that the Hudood such as the “rules of apostasy” are all based upon, and only implemented in, the interest of Muslims; “li-maslahat il-Islam…” and presents the true and wholesome nature of Islam (“dai’yah tayyibah l’il-Islam”).[7]
How does one ascertain these Masalih?
This was explained by ‘Sultan of the Ulema’, Imam al-Izz Ibn Abdul-Salam al-Sulami[8]:
“The masalih (interests) and mafasid (harms/corruption) of this world and their means are known by necessity, experience, custom and careful conjecture (zann). If any of that is ambiguous, its meaning should be sought from it proper proofs. Anyone seeking to know how to distinguish between the masalih and the mafasid and which outweighs the other, must submit it to the test of reason on the assumption that the shariah has not mentioned it. Let him build his judgments on it; he will discover that almost none of them violates the rules of the shariah except the prescriptions and proscriptions that God has imposed on His Servants as merely devotional matters without revealing to them the relevant aspects of the maslaha or mafsadah.”
Najm ul-Din al-Tufi the Hanbali Usuli; defines the masalih as the purpose upon which the application of the shariah depends.[9]
Professor Hashim Kamali explains this in his work ‘Principles of Islamic Jurisprudence’[10] that:
“As for transactions and temporal affairs (ahkam al-muamalat wa al-siyasat al-dunwayiayah), al-Tufi maintains that if the text of the maslaha happens to conform to the maslaha of the people in a particular case, they should be applied forthwith; but if they oppose it then maslaha should take precedence over them. The conflict is really not between the nass (text) and maslaha, but between one nass and another, the latter being the hadith of la darar wa la dirar fil Islam (there is no harm or reciprocating harm in Islam). One must therefore not fail to act upon that text which materialises the maslaha. This process would amount to restricting the application of one nass by reason of another nass and not to a suspension or abrogation thereof. It is a process of specification (takhsis) and explanation (bayan), just as the Sunnah is sometimes given preference over the Qur’an by way of clarifying the text of the Qur’an.
In areas of transactions and governmental affairs, al-Tufi adds, maslaha constitutes the goal whereas the other proofs are like the means; and the ends must take precedence over the means. The rules of Shariah on these matters have been enacted in order to secure the masalih of the people, and therefore when there is a conflict between a maslaha and nass, the hadith la darar wa la dirar clearly dictates that the former must take priority. In short al-Tufi’s doctrine, as Mahamassani has observed, amounts to saying that after each ruling of the text, ‘Provided public interest does not require otherwise’.”
This is the opinion of an Allama and Usuli of the Mazhab of Imam Ahmed Ibn Hanbal and though may not be shared by other usuliyeen is recognised by al-Nabhani as a valid Islamic position; al-Nabhani states[11], that the above view is Hukm shari for those that adopt it and for those that disagree with it, it is still nonetheless a hukm shari.
Regarding the issue of blasphemy itself the Islamist perspective is – unsurprisingly – the harshest stance possible. The ‘Moderate’ 'Muslim Brotherhood' spokesperson, al-Shaykh al-Nur [aged 27 - vetinery scientist] said; "if she meant the prophet she must die". He said this speaking of the “Teddygate affair”.
Assuming that someone did insult our noble messenger (saw) what should our attitude be? I mean Muslims do profess a love for God and his prophet. Why not let us take our precedent from the Qur'an and the Sunnah (example) of our Messenger Muhammad (saw)? After all it is for his sake that we get upset and not some type of political-religious identity politics. Surely?
Let us take the Qur'an first; it was narrated by Ibn Kathir the Qur'anic exegete in his Tafsir ul-Qur'an il-Azim that some people from one of the Jewish tribes came to the Prophet and spoke to him in words implying insolence, saying raa'ina which in Arabic also meant 'look upon us' but alluded to some type of derision in their own dialect.
God revealed a verse regarding this incident addressing the Muslims and Jews saying, "O you who believe! Say look unto us (unthurna) and do not say raa'ina (look at us)" So God advises us not to address people in an ambiguous manner.
Ibn Kathir also adds in his exegesis that the Prophet (saw) told the companions how not to address servants and young children in a similar manner, but with words that didn't hurt or upset them. In another incident mentioned by Imam Bukhari – the famous Muslim polymath and collector of what is considered by Muslims to be the most authentic collection of prophetic teaching - we are informed of the following:
They came into the presence of the Messenger Muhammad (saw) and addressed him with the words 'Saamu alaikum' meaning, 'Death be upon you', instead of
salam (meaning peace). Aisha (r) responded immediately 'wa alaikum al-saam' 'and upon you be death'! To which the prophet told Aisha (r), not to do so, but rather be kind and gentle as Allah loves Kindness, and the gentle, and it would have been sufficient to say ‘alaik' (upon you) and not cross the boundaries!
This is an emphatic example of not just tolerance, but the Rahma (mercy) that was the Messenger (saw).
This is why Imam Bukhari (ra), as explained by Badr ul-Din al-Ayni (ra) in his commentary on the Imam's collection of hadith (Umdat ul-Qari volume 24), believed that the Prophet (saw) never took any recompense on any non-Muslim for insulting him. This was considered by him to be the sunnah, as there was no divine punishment prescribed upon the Zimmi (non-Muslim) living amongst Muslim society. This was a matter for the politicians and rulers to decide how to deal with, and going to extremes in dealing with such a scenario was forbidden. In fact, according to the prophetic precedent, even reciprocating in a like manner was too much and inflicting capital punishment was absolutely prohibited.
Imam Bukhari, like other scholars such as Imam Abu Hanifah (ra) reminded Muslims that one of the most well known traditions of the prophet, narrated by many of his Companions (considered mutawatir by Khattani), held that "whoever harms a non-Muslim under Muslim protection harms me" i.e. the Messenger Muhammad (saw). Imam Ibn Hazm lists the above as the position of Imam Abu Hanifah.[12]
Returning to the repealing of Hudood, though other jurists who comment on this text may ostensibly differ with Imam al-Murtada, such as the Qadi al-Imam Muhammad bin Ali al-Shawkani, they differ not with the substantive issue itself. Al-Shawkani accepts, from another perspective, the principle that political agreements with apparently ‘invalid’ conditions are permitted. To elaborate further, Imam al-Shawkani states[13]:
“It is reported on the authority of Asim al-Laythi that a man amongst them said verily he went to the prophet (may Allah bless and grant him peace) and agreed that he would embrace Islam on the condition that he would pray two prayers, and he (saw) accepted this from him (Narrated by Ahmed).
It was mentioned in another narration that he would not pray but a single prayer, and that the Prophet (saw) accepted that from him.
Wahb is reported to have said: I asked Jabir regarding what transpired at Thaqeef when they gave the Bayah (pledge) and he said: they placed the condition (shart) on the Prophet (saw) that there would be no Sadaqa upon them, and no jihad. I heard from the Messenger (saw) himself say: They will give the sadaqa and the will fight Jihad! (Narrated by Abu Dawud, Hadith number 3210)
Anas reported: Verily the Messenger (saw) said to a man, "embrace Islam" and he responded, "I find myself somewhat averse/forcing myself (ajidunee kaarihaan)". He (saw) said, "embrace Islam, even so (in kunta kaarihaan)" (Narrated by Ahmed, Hadith number 3211).
In these ahadith there is evidence of the permissibility of taking the Bayah (pledge of allegiance) and the acceptance of Islam from a non-Muslim even if he stipulates (Batil) invalid conditions, or an element of aversion. Abu Dawud was silent (i.e. he viewed it as authentic because he stated that anything he remained silent about in his Sunan is at least acceptable [Hasan]) and al-Mundhiri said, regarding the hadith that we have mentioned, that Wahb is Wahb ibn Munbih and its isnad (chain of narration) is authentic (la bas bih – lit. no problem with it).
Abu Dawud has also narrated the Hadith of al-Hasan al-Basri from Uthman bin Abi’ al-Aas that “when (the tribe of) Thaqif presented themselves to the Messenger, Allah bless him and grant him peace, he met them in the Mosque, so as to soften their hearts. They placed conditions on him that they should not be summoned, nor should their wealth be subject to the tenth, and that they would not lower their heads by bowing. So the Messenger, peace be upon him and his family, said: “It is granted, that you will not be summoned, and your tenth will not be taken, but there is no good in a religion without bowing (ruku’)”. Al-Mundhiri said: It was said (“qeela” – used in this way because such a view is not accepted by al-Mundhiri) that al-Hasan al-Basri did not ‘hear’ from Uthman bin Abi’ al-Aas; what is meant by not being summoned is being requested to come for Jihad and going out for it (an expedition).
And his saying ‘tenth’, is referring to the ‘tenth’ of the property that is taken as Sadaqa (mandatory alms).
And his saying ‘not bowing’, (omitting some text on the morphology) the basic meaning of ‘bowing’ is a man standing in the position of ruku’, and what was intended by that was that they would not pray (make the mandatory ‘Salat’).
Al Khattabi said: ‘it is possible to opine (There is ‘Shubha’) that he was magnanimous to them regarding Jihad and Sadaqa because these two obligations (wajibatayn) were not immediately obligatory, as alms are due only after the passing of a year, and Jihad is only obligatory if you are surrounded (by an enemy force); as for the Salat, this is set-determined (ratibah) and therefore it is not permitted to place a condition to abandon it.’
In contrast to this view is the Hadith of Nasr bin Asim mentioned in this Chapter. For it expressly mentions that the Prophet may Allah bless him and grant him peace, accepted from a man that he would pray only two prayers or one prayer, depending on the different narrations. The problem remains though in the saying (of the Messenger) in the Hadith: “there is no good in a religion without bowing”. The apparent meaning (Zahir) indicates there is no goodness in someone embracing Islam on the condition that he doesn’t pray. It is possible though to say; the Prophet’s, Allah bless him and grant him peace, negating goodness does not indicate the impermissibility (adam ul-jawaz) of someone accepting Islam on condition that they don’t pray. The fact he, Allah bless him and grant him peace, did not accept this condition from Thaqif, does not necessarily mean an absolute prohibition.”
The people, therefore, can negotiate political agreements around which their social and political interaction is built, without any specific restrictions imposed by the Shariah. Taqi ul-Din Ibn Taymia (the grandson) used the above examples to make the following point, regarding forbidding “evils” and understanding the consequences in doing so. He explained that one would, and in fact should, refrain from forbidding an evil,
“…when forbidding a matter, which necessarily leads to the abandonment of a preponderant Maruf (good matter). This would be the same when doing so would lead to a greater Mafsada (harm). A case in hand would be for someone to embrace the faith, Islam, on condition that he prays only two prayers, as is related regarding a man in the time of the Prophet (May Allah bless him and grant him peace).
So too would it be for one of the rulers who, having by the grace of Allah embraced Islam, drinks wine or undertakes other forbidden actions which if prohibited to him may lead to him abandoning Islam.
Thus there is a differentiating factor, for say a ruler or scholar, between the act of abstaining from prohibiting a certain thing to some people, when doing so entails a greater harm (Mafsada), and the act of making it permissible (Halal). This will also vary from one situation to another, which may entail making public the prohibition, so that it may be known and persuades people to abandon it, or become fearful of performing it, or in the hope people will abstain, or expressing indignation towards the act; all of these (and other responses) will vary from situation to situation.
This is why we find the various and different approaches taken by the Prophet, whether it was him enjoining the good (Maruf) or forbidding the evil (Munkar), or pertaining to waging Jihad, exonerating an act, imposing a penalty or to be exacting or merciful.”[14]
As for those that do not wish to accept this position and the views of our present day scholars, we should mention two points:
Imam al-Nawawi (ra) comments on the Hadith, "Whosoever sees (removed apostrophe) an evil let him change it...” explaining that it is not allowed to reject an opinion merely because one’s Ijtihad is different. He states, "The Ulema condemn (any divergence from) that which is unanimously agreed upon (Ijma); as for where there is no Ijma, then it is not permitted to condemn (the divergent opinion)."[15]
Furthermore, it is a principle adopted by our scholars that any action already undertaken is to be judged retrospectively as being in accordance with the juristic (Fiqhi) position that it is congruent to.
Hence, we judge actions according to the juristic verdict that they match, not according to the juristic verdict that we may prefer them to have followed, nor by our opinion. This is part of a broader discussion of Muru’at al-Khilaf or the ‘Doctrine of Synchronizing Diversity’. Imam al-‘Izz ibn Abd al-Salam explained this point of view, which was shared by major Maliki authorities such as Tilimasani. For those interested in further reading about this concept and the various views – including the above Imams, this was recorded by al-Wanshirisi in ‘al-Miyar’, volume 4 pages 254 to 280.
Naturally, the above leads to the concept of the Social Contract, and people being able to live together through mutual agreement.
The document of Medina (Mithaq ul-Madinah) states:
“Conditions must be fair and equitable to all… The Jews of the Banu Auf are one Ummah (community) with the believers… the Jews must bear their (military) expenses and the Muslims theirs. Each must help the other against anyone who attacks the people of this document. They must seek mutual advice and consultation… The wronged must be helped… The contracting partners are bound to help one another against any attack on Yathrib. If they are called to make peace and maintain it they must do so… the Jews of al-Aus, their freedmen and themselves have the same standing with the people of this document in pure loyalty from the people of this document.”[16]
Muslims have a cultural heritage that allows them to meet the challenges facing them today such as civic engagement and contributing to society. T J Winter, one of our leading western Muslim scholars, quotes a leading eastern scholar thus:
“… in a lecture given in California by Shaykh ‘Abdullah bin Bayyah, one of the most distinguished Maliki scholars of Mauritania, Bin Bayyah told his American Muslim audience that ‘the relationship between Muslims living in this land is a relationship of peace and contractual agreement – of a treaty. This is a relationship of dialogue and a relationship of giving and taking […] It is absolutely essential that you respect the laws of the land that you are living in.’ The Shaykh proceeded to explain the classical fiqh (rules of religious conduct) required conviviality and respect for non-Muslim neighbours, and allowed adaptations even of the fundamental religious rules, such as the timing of prayers, to facilitate the integration of Islam in society and the work place.”[17]
T. J. Winter goes on to make the above point, with poignant local and historic examples:
“Traditional Sunnism’s legal and theological capacity to allow conviviality and adaptation has, of course, been demonstrated in many historical context. From an almost unlimited list, examples might include the ancient Muslim communities in Poland and Lithuania, which became so solidly embedded in their Catholic surroundings that they produced two of Poland’s national heroes: Jalal al-Din, who supported the Grand Duke against the Teutonic knights at Tannenberg in1421, and Marshall Joseph Piludski (d1920), after whom one of the greatest city squares of Warsaw still takes its name.”
Muslim scholars and thinkers are not averse, in their heritage to embracing their “Ummah” or people, whether they are Muslim, Hindu’s, Jews Christians or Atheists. Civil engagement within society, as human beings trying to live together, creating our own ‘social contract’, is not beyond Muslims or outside the teachings of Traditional Islam.
In the words of T. J. Winter, Muslims need to recognize “… that the united Kingdom has produced many expressions of the religious quest among which they can feel a genuine sense of belonging, and which can remind them of the fundamental unity of humanity.”
Rashad Ali January 2008
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[1] ‘Theories of Islamic Law’ Page 124
[2] al-Ahkam as-Sultaniyyah The Laws of Islamic Governance by Imam al-Qadi Abu'l Hasan al-Mawardi page 117-118 (Ta Ha Publishers)
[3] The Ruling System in Islam (Nidham ul-Hukm fil Islam) page 227 Khilafah Publications.
[4] Shakhsiyah Islamiyah Juz’ al-Awwal Bab ‘Waqi ul-Taqlid’ 221 -223 Islamic Personality Volume 1 chapter entitled ‘Reality of Taqlid’ (adopting opinions from Jurists) Dar ul-Ummah Publications
[5] Sayl ul-Jaraar Mutadaffiq ala Hadaiq ul-Azhar, Kitab ul-Hudood in volume 3, page 487, from the matn (text of Imam Ahmed commonly abbreviated to as; al-Azhar) not the shar’h of Imam al-Shawkani. Dar Ibn Kathir, Damascus - Beirut
[6] ‘The Washington Post’ article entitled ‘The Meaning of Jihad’, article is found on www.radicalmiddleway.com
[7] Published by Dar al-Isfahani 1410-1989 Pages 105-106
[8] al-Qawaid ul-Ahkam fi masalih ul-Anam volume 1 page 13
[9] al-Masalih page 139-141
[10] ‘Principles of Islamic Jurisprudence’ on page 361
[11] ‘Muqaddimat ul-Dustur’ page 75
[12] al-Muhalla. (Volume 11 page 416, Cairo, Idarah Tibi' al-Muniriyah
[13] ‘The Validity of Islam with a Fasid (irregular) Condition’, Volume 4 page 210 Dar al-Kutub al-'ilmiyah Beirut; Nayl ul-Awtar min Ahadith Sayid al-Akhbar Sharh Muntaqa al-Akhbar by Imam Muhammad bin Ali al-Shawkani on the collection of hadith collated by Majd al-Din Ibn Taymia (the grandfather and judge, Hadith number 3209)
[14] Majmou al-Fatawa volume 35 page 31-32 Shaykh al-Islam Ibn Taymia
[15] Sharuh Sahih Muslim Chapter al--Amr bi'l-Maruf wa Nahiy ani'l-Munkar and quoted verbatim by Ibn Taymia in Majmou al-Fatawa Volume 2 page 33 Dar al-Marifa
[16] A. Guillaume The life of Muhammad – A translation of Sirat Rasul Allah pages 231 -233 Oxford Press
[17] T. J. Winter, ‘British Muslim Identity – Past, problems, prospects’, THE M. A. T. PAPERS
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