Foundation, NJ U. S. A
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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.
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. 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. 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".
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.
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. 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. 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. These are the ultimate guidelines and qualifications for jurisprudence and for every aspect of both the essence and form of Islam.
 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.
 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.
 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.
 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.
 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.
 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.
 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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