Jurisprudence: The Ultimate Arena for Existential Clash or Cooperation Within and Among Civilization

Jurisprudence: The Ultimate Arena for Existential Clash or Cooperation Within and Among Civilizations?

by Dr. Robert Dickson Crane


I.  Positivist versus Normative Law

From the traditionalist perspective of the world religions, the underlying issue in the world today is whether the ultimate reality is man’s autistic pursuit of unlimited power through the modern state with its monopoly of coercion as a substitute for God, or whether a higher reality of universal truth is accessible to persons and communities as guidance for a normative system of compassionate justice.

The conflict between these two paradigms of jurisprudence boils down to the question whether law is “positivist” or “normative.”  Is it instrumentally created and sustained by human command or is it a system of heuristic norms that always wait to be discovered? 

Orientalists have always used Western positivist law as the base case and thereby set the stage to denigrate Islamic law as non-existent or at least inferior because it is utopian and is not enforced.  Traditionalist Muslims, on the other hand, especially the more mystical Shi’a, consider that Islamic law is primarily educational and is designed to motivate both persons and communities to fulfill their spiritual and moral potentials.  From this perspective of Islamic law as the base case for comparative jurisprudence, it appears that Western law is grossly inferior.  One may legitimately argue that in recent centuries the pragmatic result of the “Western” and the “Eastern” legal systems in the actualization of justice may favor Western law, at least for domestic consumption.  Civilizational clash, however, stems more from philosophical points of origin as part of identity politics than from “practical” results.

Perhaps the three most seminal books to appear during the past year or two on the role of jurisprudence in the renewal of civilization as a means to marginalize violent extremists in every religion have been published by Harvard Law School, by the International Institute of Islamic Thought, and by the Institute of Ismaili Studies in London. 

The thirteen scholarly chapters in the new book from the Harvard Series in Islamic Law, The Islamic School of Law: Evolution, Devolution, and Progress, explore the origin, dynamics, and function of the madhhab or “school of law” and particularly of its institutionalization as a means to provide legitimacy and effectiveness in government.  Of its three editors, namely, Frank Vogel, who is head of Harvard’s Legal Studies Program, Peri Bearman, who is his alter ego, and Rudolph Peters, only the latter has contributed a chapter to this symposium.

Professor Peters’ chapter on the Hanafi school of law adopted by the Ottoman Empire confirms the dynamic and fluid nature of the Islamic shari’ah as developed by the four Sunni madhhabib and the four Shi’a related ones, especially in their formative period before they became institutionalized as a matter of survival in competition with the many now extinct schools of law.  In his introduction, Peters asks how “such a fluid doctrine full of contradictions could be enforced by the courts.  Or, in other words, how Islamic legal doctrine with its many conflicting views and rulings could be transformed into positive law.”

This question is central to Western jurisprudence, political science, economics, and sociology.  According to Black’s Law Dictionary, which has been authoritative at Harvard Law School ever since I earned a J.D. there in comparative legal systems half a century ago, positive law is “law actually and specifically enacted or adopted by proper authority for the government of an organized jural society. … Positive laws are those enforced by a sovereign political authority.  They are distinguished from rules like the principles of morality … enforced by an indeterminate authority that is either superhuman or politically subordinate and therefore not authoritative.”

This definition of law reflects the uniquely Euro-American concept in jurisprudence known as philosophical positivism, typified by the Austinian school of positivist law that has reigned at Harvard since the time of the American Civil War.  Legal positivism asserts that all genuine law is man-made.  It rejects the existence of natural law, which reigned at Harvard prior to the Civil War, whether it is derived from divine revelation or from human nature and the de facto laws of the physical universe, known in Islamic law as the sunnatu Allahi. 

    The demands of state sovereignty in the modern age and their force as a rationale for “reforming” Islam are presented by Professor Mark Cammack of Southwestern Law School in Los Angeles in his chapter on “Forging an Indonesian Madhhab” to reconcile Islam and nationalism.  The rise of the madhhab movement in the first three hijra centuries, he says, resulted from the use of ijithad to develop a consensus or ijma on the limits of disagreement both on the relative priorities of reason and revelation and on the role of customary law in developing the shari’ah.  He quotes Joseph Schacht’s writings of the 1950s contending that much of the substantive content of the law was originally not “Islamic” and suggests that the modern dissolution of the traditional madhhab gives rise to the opportunity to develop new madhhabs better designed to address social conditions different from the ones of a thousand years ago in the Middle East. 
   
His case in point is the half-century old movement in Indonesia to reshape the laws of inheritance by reinterpreting the Qur’an and hadith so they will no longer be bound by the patriarchal customs of Arabs and instead will reflect the matriarchal customs of parts of Indonesia or at least abandon the “two for one” principle and institute “bilateral inheritance law.”  In support of this argument that the patrilineal model does not reflect the only possible interpretation of the Qur’an, the founder of the Indonesian-madhhab movement, Hazairin, who was a reformer rather than a legal theorist, “pointed to the differences between Sunni inheritance rules and Shiite doctrines, which developed in a different social milieu and grant greater rights to female blood lines.”  The modern dissolution of the madhhab as an instrument of “historically contingent” identity and authority may open the way to revive ijtihad, which originally gave rise to the madhhab movement in Islamic jurisprudence, and thereby adapt Islamic law to the demands of the nation-state.

The driving force for such “modernization” of Islamic law, perhaps especially in the realm of gender equity, is not justice reflecting the essentials or universal purposes (maqasid) of Islamic jurisprudence, but the felt need to “adapt the Islamic legal tradition to political realities inherent in the nation state.”  The issue is not merely whether the law should mirror society’s morals, rather than serving as a moral guide to society, but whether the law can serve its positivist role to consolidate political power in the imagined community of the corporate state. 

For centuries, the Dutch colonialists accentuated and fostered the differences among the many indigenous cultures in the Indonesian archipelago based on their various forms of customary law or adat, which were rooted in an indigenous, mystically-oriented and syncretic form of Islam known as abangan.  The object was to counter the threat of shariah-oriented or santri Islam as a potential unifying force against foreign rule.  After independence the political incentives were reversed as indigenous nation-building based on a national form of shari’ah Islam came to serve the interests of centralized power. 

Cammack concludes his chapter with the statement, “The imperative for the creation of national Islamic law is also to some extent universal, since the ideal of national law is inherent in the concept of the nation state, and the nation state has become the ubiquitous model for political organization.”

The bulk of this valuable book on the dynamic history of the interpretative communities known as madhhabib is by modern scholars who explore the origins and unique natures of the better known madhhabs, as well as the interrelationships among them and with political rulers.  Not one of these scholars referred to the term “positive law” except as a synonym for substantive law, furu’al fiqh, as distinct from procedure and from legal theory, usul al fiqh.  Two of the most valuable chapters are by Camilla Adang of Tel Aviv University dispelling the myths about the role of the currently controversial Andulusian, Ibn Hazm, in the spread of the extinct Zahiri madhhab, and by Daphna Ephrat, director of the Islamic section at the Open University of Israel, on the variously competing and reinforcing roles of madhhabs and madrasas in eleventh-century Baghdad. 

At the opposite end of the spectrum from positivist law to sacred law in Harvard Law School’s latest production is the chapter by Robert Gleave of the University of Bristol, England, on the Shi’ite conception of the madhhab and its role in bringing men and women closer to God.

In Shi’a Islam, the concept of a madhhab goes beyond the furu al fiqh and even the usul al fiqh to the broader theological realm of combining reason with revelation.  According to Professor Gleave, the principal conflict within the dominant Shi’a madhhab, known as the madhhab of the Ithna-ashari Imamiyya or the Jafari Madhhab, named after the sixth Shi’a imam, was between the Akhbaris and the traditionists or ‘Usuli who emphasize knowledge of all past scholarship.  This use of the term “traditionist” is the opposite of that in Sunni Islam, as is also the term “Usuli” or “fundamentalist.”  The Akhbaris focused exclusively on re-examining the texts of revelation.  Their name comes from the verb khabara, to know by experience, and the nown khabar, message or hadith, for which the plural is akhbar.

The soundness of the Ithna’ashari Imamiyya madhhab is judged by its appeal to authority.  This is understood very specifically not in the political sense, because one of the two major differences between Shi’a and Sunni jurisprudence are the Shi’a emphasis on gender equity and the Shi’a condemnation of any moves to combine religious with political authority, Imam Khomeini’s doctrine of wilayat al faqih being a bizarre modern anomaly.

Authority in the Imamiya and related madhhabs includes the hadith or sayings not only of the Prophet Muhammad but of the inspired successors to the spiritual successor of the Prophet Muhammad, namely, ‘Ali.  It includes also two tiers of scholarly interpretation.  The first tier is known as the ihktilaf generation of scholars who laid out the range of acceptable diversity of opinion.  The second tier consists of the later jurists who summarize and restate the earlier scholarship with explanatory notes.  I have compared this with the Jewish concept of the Talmud and Midrash as successive levels of understanding the Torah.

The key to this process is how to “reveal the opinion of the Imam,” whether living as in earlier times or later “in occultation.”  The task is to reach a constructed consensus (ijma’ murakab) on possible answers to a legal problem, beyond which no further answers are permitted.  The opinion of the Imam by definition supports this range of answers.  If further scholarship and ijtihad produce a consensus on one of these answers, this then reveals the opinion of the Imam.  The Shi’a concept of authority therefore reflects a body of scholarly opinion that develops over time in response to changing conditions.  Since this required continual ijtihad or intellectual effort, the Sunni reliance on analogy (qiyas) was unnecessary.  Instead, reliance was required on the formulation of basic normative principles from which every hukm or regulatory rule must derive its meaning. 

According to both Sunni and Shi’a historiography, Imam Ali always excelled in tracing all decisions to higher principle, as was demanded by the Prophet Muhammad himself in instructing his followers.  The deadening practice of taqlid, following detailed rules without informative principles, can produce injustice.  Following principle in the search for compassionate justice is the key to combining reason and revelation in always up-do-date understanding and response to changing conditions of life so that both individual persons and the communities derived from them will have optimum conditions to remain close to God and thereby fulfill the purpose of their existence. 

The final chapter in the Harvard publication on the Islamic school of law addresses the declining relevance of the traditional madhhab and the threat of chaos from individual faux ijtihad developed on the internet in the form of what the author Ihsan Yilmaz from Turkey describes as “inter-madhhab surfing” in the practice of talfiq, which is the syncretic search among madhhabs for whatever supports one’s selfish interests. 

His solution to this problem is to “raise the level of Islamic consciousness by indicating the connection between reason and revelation [in order to] raise individuals who would meet the criteria of a mujtahid.”  This can be done only through “faith-based movement leaders with effective organizations to implement their ideas.”  Ihsan Yilmaz’s chapter focuses on the movement of Fethullah Gulen as a model.  Other possible models would be the Islamist movements of the past half century modeled after the former Sufi, Hassan al Banna, who today is still the mentor of enlightened Islamist movements throughout the Sunni world.

II. The Maqasid al Shari’ah

None of these faith-based movements has succeeded in developing a jurisprudence adequate to the demand for Islamic leadership in pursuing human responsibilities and rights as the major requirement for peaceful engagement among civilizations in the third millennium.

The missing dimension has been supplied by perhaps the greatest Islamic legal scholar of the twentieth century, Muhammad al-Tahir ibn Ashur, who taught at Al Zaituna, was a follower as a young man of the reformer Muhammad Abdu, and rose to become the Grand Mufti of Tunisia.  His major work, first published in Arabic in 1946, was translated and annotated for a modern reader with incredibly thorough footnotes by Mohamed el-Tahir el-Mesawi under the title Ibn Ashur, Treatise on Maqasid al Shari’ah.  This was funded and published by the International Institute of Islamic Thought in 2006 just in time for a conference in Malaysia on the subject, which marked the first serious attention given by Muslims in the Sunni world to normative Islam in six hundred years.

In this seminal work of scholarship Shaykh al Islam Mufti Ibn Ashur critiques and updates the work of the master in the maqasid al shari’ah, Al Shatibi, who dominated scholarship in the last half of the 8th century hijra until his death in 790, almost exactly a century before Columbus “discovered” America.  As a Maliki jurist, Abu Ishaq Ibrahim al Shatibi built on the intellectual efforts of his Hanbali predecessor, Ibn Qayyim al Jawziyyah, who died half a century earlier, because both of these two madhhabs, more than the Hanifis and Shafiis, emphasized the inner purpose of acts rather than merely their form.  The corresponding dichotomy between the intent and the letter of the law, which exists in all religions but to my knowledge has never been studied from an interfaith perspective, had recently split the Roman Catholic Church both internally and from the Eastern Orthodox Church and thereby consolidated the permanent hostility between the Neo-Roman and Byzantine empires.

Ibn Ashur’s preface to his master work begins with the statement, “Nobody would contest that the provisions and ordinances of any divine law (shari’ah) instituted for humankind aim at certain objectives intended by God, the Lawgiver.  It is proven beyond doubt that God does not act in vain, as plainly shown in His fashioning of creation.  Thus, we are informed in the Qur’an: ‘For [thus it is:] We have not created the heavens and the earth and all that is between them in mere idle play.  None of this have We created without [an inner] truth: but most of them do not understand it’ (Surah al Dukhan 44:38-39). … Moreover, one of the most important qualities of human beings is their God-given disposition for, and acceptability of, civilization, whose greatest manifestation is the making of laws to regulate their lives.” 

We might add that this is precisely why jurisprudence goes to the heart of cultural identity and forms the ultimate arena for either cooperation or clash among civilizations. 

Once one accepts the premise that purpose is paramount, one must decide which of the many possible purposes of civilization is number one.  The 18th-century Whig movement in England, which spawned the American Revolution based on the deeply spiritual Scottish Enlightenment, established order, justice, and freedom as the trinity of ultimate purpose in any civilization.  America’s founders in the Preamble to the Constitution reordered this to read justice, order, and freedom, none of which is possible without the others.

Ibn Ashur followed up the above quotation from the Qur’an with the statement, “God sent messengers and revealed laws (shari’ i) only for the purpose of establishing human order,” by which Ibn Ashur was referring to the Qur’anic concept of furqan or “balance” whereby persons can distinguish and weigh right and wrong and live together in equity by avoiding what he calls “the extremes of excessiveness (ifrat) and negligence (tafrit)” (page 87). 

For “order” he uses the word nidham (nizam), which refers to the order of a string of pearls and to constitutional law (nidham asasi).  He uses this term on page 81 as a synonym for human nature or a person’s natural disposition (khilqah) to maintain the inward (batin) and the outward (dhahir), the soul and body, in balance.  This is known as fitrah nafsiyyah and fitrah Allah, as reflected in Surah al Tin 95:4, “We have created man in the best of moulds (ahsan taqwim),” free to follow the wisdom of divine revelation “for the orderly functioning of the world,” but free also, as indicated in 94:4, to “sink to the lowest of the low (asfala safilin)” (page 83).

On page 94 he refers to nidham al haqq as the divine order in the shari’ah, which, in turn, is a synonym on page 92 also for salah and salihin in the sense of righteousness (page 96) and setting things to rights (page 92) in contrast to corruption.  On page 85 Ibn Ashur even suggests that one higher purpose or maqsud of the shari’ah is “the preservation of the fitrah,” since “it is the inner person that actually motivates one to righteous deeds” (page 94), and “human beings have a natural disposition for perfection” (page 95).

This contrasts starkly with the positivist concept of order, which refers exclusively to stability through material dominance, superficial security, and short-term expediency without any reference to morality and the Divine Will.  This is what Ibn Ashur means by the term jahiliyyah or “law of pagan ignorance” referred to in Surah al Ma’ida 5:50 (page 194).

The entire purpose of classical Islamic jurisprudence, according to Ibn Ashur’s maqsudi paradigm, is to raise awareness and respect for tawhid, which is the coherent order in diversity that points to the Oneness of its Creator, and to strengthen one’s taqwa or love of God.

Two of the notable positions of Ibn Ashur were his warning against the doctrine of abrogation, whereby one part of the Qur’an can abrogate another rather then merely augment it, and the doctrine of necessity, whereby the inner or higher purposes of the shari’ah were to be invoked only when the external regulations of the shari’ah made no sense in the given circumstances.  According to the doctrine of necessity, for example, the right to life, haqq al haya, is to be applied to eliminate the prohibition against eating pork if one is starving in the desert in the presence of pigs.  In Ibn Ashur’s system of thought it was incorrect to say that out of necessity the shari’ah did not apply, when one could more easily say that the duty to respect life as a universal principle of the shari’ah took precedence over the duty to respect health, both of which still applied but with different priorities.  Ibn Ashur warns that following the Dhahiri reliance on examining individual words without contextually normative content, which led to the doctrine of necessity, “Might eventually deny the relevance and applicability of Islamic Shari’ah at every time and in every place” (page 63).  Although Ibn Ashur did recognize a very limited use of abrogation as an interpretative technique (page 290), he warned that the doctrines of abrogation and necessity could eliminate the coherence not only of the Qur’an but of the entire system of Islamic law.

The standard set of the shari’ higher purposes, known as maqasid, and as universals or kulliyat, and as essentials or dururiyat, was formulated by Abdul Hamid al Ghazali in his book Al Mustasfa in the early classical period of the fourth hijra century as haqq al din (protection of religion), haqq al nafs (or nufus, protection of the person), haqq al nasl (or ansab, protection of lineage or the family), haqq al mal (or amwal, protection of property), and haqq al ‘ilm (or ‘aql, ‘uqul, protection of reason).  Others were advanced over the years, such as preserving honor (hifz al ‘ird), which was emphasized during the late classical period of Islam by perhaps the leading Shi’a theoretician of the maqasid, Najm al Din ibn ‘Abd al Qawiyy al Tufi, who preceded the last great Islamic scholar, Al Shatibi, by half a century, but these “add-ons” were not taught in places like Al Azhar (pages 118 and 386).

All of the maqasid were induced by human reason from the two major sources of revelation, the Qur’an and ahadith, and therefore were thought to be subject to further ijtihad or human reason in expanding their number, redefining them, or reordering priorities.  Unfortunately, in the Sunni world, the doctrine of taqlid or mindless following of earlier scholars gained dominance shortly after Al Shatibi’s death.  This “closing of the door of ijtihad” killed the entire concept of maqasid al shari’ah and shut down the creativity and dynamism of Islamic civilization for six hundred years.  Ibn Ashur sought to revive it by renewing the maqasid as a paradigm of thought and as the core of the shari’ systems analysis that six centuries earlier had produced the first code of human rights.  This sophisticated paradigm of human responsibilities and corresponding human rights has never been matched since then or even rivaled by any other legal system.

For six hundred years, until the advent of Ibn Ashur, any attempt in the Sunni world to expand or in any way alter the standard formulation of the maqasid by what Ibn Ashur called istiqra (translated as inductive examination (page 5), or “thematic inference” (page 57), as distinct from istinbat or “juristic deduction (page 52), was considered to be the grossest bida’ or condemnable innovation and to disqualify the guilty scholar from any teaching position.  In fact, this prohibition obtained almost universally in the Sunni world until a decade ago, which is why the very concept of universal principles of jurisprudence has been almost universally unknown.  Perhaps the major contribution of the International Institute of Islamic Thought has been to select, translate, and publish the classics in the field of normative Islamic law and volumes of commentary, including the 441-page book, Imam Al-Shatibi’s Theory of the Higher Objectives and Intents of Islamic Law by Dr. Ahmad al-Raysuni, with a foreword by the principal pioneer in this field, Dr. Taha Jabir Al-Alwani, who is one of the IIIT’s early founders and has long been a leading member of the World Fiqh Council in Makkah.

Perhaps the most daring of Ibn Ashur’s teachings was his redefinition of the primary maqsud, haqq al din, from its taqlidian meaning of “protect the true religion” to “respect and protect freedom of religion,” thereby recognizing the principle stated again and again throughout the Qur’an that all paths to God are legitimate providing only that one is aware of God (taqwa), recognizes the justice of God both in this world and the next (qadr), and performs good works (salihat).  Freedom of religion is important in two other maqasid, namely, the duty to respect human dignity (haqq al karama), including gender equity, and to respect freedom of thought, speech, and association (haqq al ‘ilm).

The introduction of freedom as a new maqsud might be considered, however, as a spin-off from haqq al hurriya, which is the duty to respect political self-determination of both persons and nations.  The generic concept of freedom does not appear as a term in the Qur’an, but it is inherent as a result of reasoning from its specific components.  Ibn Ashur uses as an example of such “inductive inference … the examination of the repeated commands to free slaves, which means that realizing and implementing freedom is one of the higher objectives of the Shari’ah” (page 17).  He concludes his chapter on “Establishing Maqsud al Shari’ah” with the statement by Al Shatibi, “In instituting the commands (ahkam), the Lawgiver [God] has primary and secondary objectives.  Some of these are explicitly stated (mansus), some merely alluded to, while others are to be inferred from the texts.  We therefore conclude from this that whatever is not clearly stated but can be arrived at from induction, is intended by the Lawgiver.” 

Ibn Ashur was acutely aware that human rights have not been part of the traditional Muslim’s lexicon, but also aware of the fact that the concept of human rights is new in the history of human thought.  This concept is a product of the secular thought that originated in the European Renaissance, which was a unique movement to liberate humankind from religion.  Most people still view human rights in a religious context.  What we today call human rights were always conceived to be the result of virtues.  Rights were considered to be the result of carrying out responsibilities, not as ultimate ends in themselves.  The concept of rights, other than the rights of God, was even considered to be a false god.  The objective was not to pursue freedom from moral values, as in positivist law, but to practice the values that produce freedom and have been taught in all the world religions. 

Classical American thought perfectly illustrates the Islamic position.  Thomas Jefferson warned that no people can remain free unless they are properly educated, that education consists primarily in learning virtue, and that no people can remain virtuous unless their entire personal and social lives are infused with awareness and love of God.  It is noteworthy that the U.N. Declaration of Human Rights carefully does not refer to God or morality because the Soviet delegate, Maxim Litvinov, refused to sign it unless all references to religion were eliminated.

Within the religious context of both classical American and classical Islamic thought, which is universal in human history, human rights have always been explored and developed as part of the higher concept of justice.  Justice is the most universal value in all civilizations, which is why there is so much negative reaction to the failure of American policy-makers to include freedom and democracy within the concept of justice as a higher paradigm of thought.

The core teaching of the Qur’an, though Ibn Ashur did not cite it in his magnum opus, is contained in Surah al An’am 6:115: wa tama’at kalimatu Rabika sidqan wa ‘adlan, “The Word of your Lord is perfected and completed in truth and justice.”

The purpose of all religion is to empower the truth, which exists independently of human beings but requires religion in order to be translated into principles of compassionate justice.  Justice therefore is not produced by majority vote but is transcendent.  The classical study of justice is heuristic in the sense that it seeks knowledge about the sources, nature, and praxis of justice, with the challenges lying more in the present as a means to build on the best of the past in search of a better future.

In highly simplified explanation of what required several hundred pages in Ibn Ashur’s book on the subject, the architectonics of justice in the Islamic shari’ah consist of a hierarchy of levels proceeding from the general to the specific.  The highest are the maqasid, also known as ultimate purposes or maqasid ‘aliyyah.  The intermediary or secondary, which spell out and serve as means to implement the maqasid, are the hajjiyat, also known as maqasid qaribah.  The tertiary level, known as tahsiniyat, might be compared to the specific courses of action in program planning.

Differences in interpretation depend in part on whether one is referring to the maqasid narrowly as law or more broadly as functional guidelines for public policy.  The strictest definitions are called maslaha al mu’tabara, the broader as istislah, and the broadest as istihsan.

The maqasid that seem to be recognized today by general ijma or consensus are seven in number, consisting of haqq al din and three related pairs.  These form the chapter headings of a book that I have been asked to write, because they are important in both classical American and classical Islamic thought.

The highest priority of the seven irreducibly highest principles is haqq al din.  This can lead one from the bare level of tolerance expressed in the phrase “I won’t kill you yet,” to the level of diversity embodied in the phrase, “I can’t stand you, but you are here, and I can’t do much about it,” all the way to the level of pluralism, in which one welcomes those of other religions with the insight, “We have so much to learn from each other because we each have so much to offer.”

The first of the three pairs consists of haqq al nafs and haqq al nasl.  The first of these, haqq al nafs or hifz al nafs, requires respect for the human person. At its secondary level it requires respect for life itself (haqq al haya), including the tertiary principles of the just war doctrine, “because the well-being of society and preservation of the order of the world depend on the sanctity and protection of human souls under all conditions” (page 98).  The second one, haqq al nasl, was reinterpreted by Ibn Ashur to mean not merely respect for one’s progeny but respect for the nuclear human family and every level of community all the way to the human species.  This introduces the principle of subsidiarity, which recognizes that legitimacy expands upwards from community or nation to state, and not the reverse as in positivist international law and in American occupation policy in Iraq.

The second set consists of responsibilities that deal with institutionalizing economic and political justice.  These are, respectively, haqq al mal and haqq al hurriya.  Both emphasize subsidiarity and self-determination.  Ibn Ashur has revolutionary things to say about these two, perhaps even more than on the other five.

The third pair of maqasid consists of haqq al karama and haqq al ‘ilm.  These are the duties, respectively, to respect human dignity, including especially gender equity based on distinguishing nurture from nature, and the duty to respect knowledge, including the secondary level of hajjiyat requiring implementation through freedom of thought, publication, and assembly. 

The major place where Ibn Ashur hints that reinterpretation equivalent to abrogation might be in order is Surah al Nisa’a 4:34 in view of the Prophet Muhammad’s strong aversion to the interpretation that calls for chastising one’s wife by beating her (daraba).  The translator helps him out by referring to the publication by the president of the International Institute of Islamic Thought, AbdulHamid AbuSulayman, Marital Discord: Recapturing the Full Islamic Spirit of Human Dignity, in which Professor AbuSulayman points out that the term daraba has a dozen different meanings in the Qur’an and that one of them is not “to beat” but “to separate” (page 145).  In his chapter on the family, Ibn Ashur emphasizes that in Islam marriage is not a mere contract with the wife as an object, as it was in the period of jahiliyah, but a sacred bond with a religious purpose (page 252).  The duty of the husband to support his wife [in every way], according to Ibn Ashur, is part of infaq, which is the natural inclination of every person to give rather than merely take in life (page 260).

In the field of Islamic economics, which for many decades was and still is dominated by the Marxist paradigm of thought among most Muslim intellectuals, both liberals and conservatives, Ibn Ashur thundered that Marxism is un-Islamic in theory and would be catastrophic in practice.

His most radical proposal in this field in his magnum opus published in 1946 was that wealth in capital intensive economies is created by capital rather than by labor.  He thereby stood Karl Marx on his head, who had asserted, contrary to all the evidence, that labor is the only factor in wealth creation and that capital is merely a “congealed form” of it.  The so-called labor theory of value justified the expropriation of all private ownership of capital by the state on behalf of the workers, who otherwise would be doomed forever to the status of wage-slaves. 

Marx recognized the evils of the wealth gap and correctly predicted that in an age of globalization it would continue indefinitely without major changes in human institutions.  The principal evil of Marxism was its refusal to recognize the universal human right of every individual to earn from ownership of capital in a capital intensive age when almost all wealth is produced by machines and only peripherally by their operators.  It therefore failed to recognize that the institutions of society can and should be perfected to make possible the broadening of capital ownership and even its universality as a fundamental human right.

Grand Mufti Ibn Ashur devoted an entire chapter of his book on maqasid to his introduction of a new maqsud which he termed “equality,” based on the teaching that “Islam is fundamentally the religion of nature” (din al fitra, page 146).  This maqsud calls for equality in all the maqasid.  “It thus becomes clear that human beings in the Shari’ah are equal with regard to what is indispensable (dururi) and necessary (haji)” (page 147).

He related the maqsud of equality to the maqsud of freedom in a statement very pertinent to the current institution of wage slavery among those who do not have personal, individual ownership of the means of production (including entire nations in hopeless debt from interest-burdened financing), and are dependent on those who own capital for their survival.  He wrote, “Having one’s hands tied describes a person who, owing to powerlessness, poverty, lack of protection, or pressing need, is driven into a situation similar to that of a slave, in which he or she is subject to the will of someone else in all his or her dealings.  One is thus deprived of all sense of self-respect and condemned to accept humiliation” (page 155). 

He included in the maqasid of equality and freedom the principle of equality of opportunity and associated it with access to and preservation of private wealth.  He insisted accordingly that justice calls for free markets and transparency in all transactions.  He considered that respect for private property in the means of production and its preservation and safe-guarding (hifz) form the core principle of haqq al mal and a key to both personal and community prosperity.  In this regard he quoted Surah al Tauba 9:41: “Strive hard in God’s cause with your possessions and your lives” (page 272).  He posed as a basic principle of subsidiarity that “the preservation of private wealth leads eventually to the preservation of the community’s wealth, because the preservation of the whole is achieved by preserving its constituent parts” (page 121).  This principle applies to self-determination in both economics and politics. 

Ibn Ashur was almost a century ahead of his time by inventing not merely binary economics but trinary or three-factor economics, which is critical to such tools of expanded capital ownership as community investment corporations.  He wrote: “Earning (takassub) depends on three primary factors (usul): 1) land (ard), 2) labor (amal), and 3) financial capital (ra’s al mal). … Owning capital (tamalluk) … is the basis of wealth formation by humans” (pages 280-281).

He was not equipped to devise specific institutional means to create money and credit based on future rather than on past savings, which is the key to modern binary and trinary economics.  His framework, however, leads inevitably to the concept that it is a universal human right for every person to participate in owning productive wealth.  This leads to the concept of social justice, according to which it is a universal responsibility of individuals working together in moral community through government to perfect existing institutions in order to make this possible.  This is a community obligation or fard kifayah (pages 221-225). 

Ibn Ashur devotes several chapters in his magnum opus to financial transactions, and reaches clear conclusions on addressing the superficial results of underlying institutional inequities.  Thus he notes that “Islam abolished enslavement in payment of debt, a practice that was part of the Roman law,” in which human beings had become “things” (page 157).  His conclusions, however, make it clear that fundamental reform in the creation of money and credit designed to broaden rather than constantly narrow the ownership of productive wealth in a globally capital intensive world is an essential objective of compassionate justice.  He was perhaps too far ahead of his time in recognizing that the appellation “the dismal science” applies especially to Islamic economics, with its obsession about the single word riba.  He offered hope, however, by stating: “If some or all of the scholars of a given period fail to discover some or all of these objectives, this does not necessarily mean that the scholars who come after them will also fail” (page 66).

A current example of this hopeful opportunity concerns the ownership of the oil in the Fertile Crescent (nowadays known as Iraq).  Ibn Ashur cites Surah al Baqara 2:29, “He it is Who has created for you all that is on earth,” in support of his statement that, “This Qur’anic text stipulates explicitly that all the bounties of the world are the right of humankind” (page 238).  Whatever is owned by state power (sultan) that could be owned privately therefore should be owned individually as part of a process of expanding capital ownership and narrowing the wealth gap within and among countries.  In Iraq this would mean that the oil resources there should be privatized through individual, inalienable voting shares of stock to every person resident there, so that every Sunni, Shi’a, and Kurd would have an equal vested interest in maintaining a federal government committed to protecting the profitability of their major source of income against foreign exploitation.

Ibn Ashur discusses the ultimate crime of hiraba, which is the attack by highway robbers on an entire people, and defines it as “the waging of war” (page 73).  He quotes the sayings of the Prophet Muhammad, “No Muslim’s property should be allowed to be taken from him without his own accord,” and “Whoever is killed while protecting his property is a martyr” (page 296).

In his magnum opus on the maqasid, Ibn Ashur states that he had three objectives in writing this book.  These are to: 1) present the maqsudi paradigm as a frame of reference for both Muslim and non-Muslim students of Islam; 2) marginalize extremism (ghuluw) and counter hate-filled fanaticism (hirabah) by developing enlightened ijma or consensus among Muslim jurisprudents based on the underlying universal wisdom (hikmah) of the shari’ah (to be distinguished from ‘ilm al hikma or the science of philosophical epistemology, pages 59 and 366), including the adab of leniency (takhlif) and “softness” (haina wa laina), page 164; and 3) institute a process of global reform (islah amm, page 95) for which reason he has emphasized the highest transcendent good of the human community, known as masalih to distinguish it from the secular utilitarian, individualistic, and “demo-cratic” concept of “the greatest good for the greatest number.” 

Ibn Ashur has left the subjects of faith (aqidah), spirituality, and personal morality to another of his books, Usul al Nizam al Ijtima’a fi al Islam, which is scheduled to be published in translation as a companion to his volume on maqasid in June 2007 with annotations by Mohamed al-Tahir al Mesawi.  This volume expands on some of the maqasid, with detailed discussion on the maqsud freedom of religion (haqq al din) and on freedom of expression (hurriyat al-aqwal) as part of the maqsud freedom for knowledge (haqq al ‘ilm). 


III.  Sophia Perennis

The most profound of the recent books addressing the past, present, and future of existential clash or cooperation within and among civilizations is the monumental, 558-page, Festshrift, entitled Reason and Inspiration in Islam: Theology, Philosophy, and Mysticism in Muslim Thought, Essays in Honour of Hermann Landolt, edited by Todd Lawson and published by the Institute of Ismaili Studies in London.  This magnum opus on a major world religion was well worth the more than fifty hours required to read, annotate, and index the work of many scholars, both Ismailis and others, who have devoted their lives to exploring a thousand years of scholarship on the interdependent roles of reason and inspiration in seeking out the Will of God.  This task is essentially jurisprudential, because the paradigm of all Islamic thought, and indeed of all religion, is the search for a higher reality of universal truth accessible to persons and communities as guidance for a normative system of compassionate justice.

This collection of studies, each one a model of careful scholarship on the historical development of what is known as Shi’ism and especially of its Ismaili branch, is particularly interesting for the typical American who believes only what he or she has directly experienced and is attracted by the traditionalist Islamic emphasis on immediate awareness and love of God and on its natural manifestation in the search for universal justice.  This independence of spirit is why the typical American hanif or Muslim by primordial fitra, like those in Makkah fourteen hundred years ago, is skeptical of all institutionalized religion but eager to learn about the deeper insights that are obscured in all religions by identity politics.  Of course, this is also the reason why ethnic and ideological Muslims from abroad distrust American converts and why this distrust, especially among African Americans, often is reciprocated.

Mysticism is at the core of all religion, including often lapses into superstition and polytheism, which is precisely why a major purpose of divine revelation is to bound it by right reason.  The tension between these two capabilities of the human being, the esoteric and the exoteric, is what gave rise in the Muslim world to Sufism. 

All the schools or tariqat of Sufism, with the single exception of the Shadhili tariqa from North Africa which provided all the terminology used by Saint John of the Cross, arose in Asia beyond the purvey of Western empires.  This may explain why the Arabs almost universally declare that the Lord Buddha was a kafir or heathen, whereas most Muslims from Persia to the Pacific consider him to be not only a Muslim but a prophet.  This is why the Saudi perversion of the Yusuf Ali rendering of the Qur’an, which has been donated in millions of copies around the world, eliminated the esoteric from Yusuf Ali’s original translation, including his footnote to Surah al Tin indicating that the term Tin refers to the Bo Tree under which the Buddha received enlightenment.

The magisterial work, Reason and Inspiration in Islam, explicates Shi’ism as a path to compassionate justice in the form of what scholars might, but never have, called ‘Ilm al ‘Adl, the combined esoteric/exoteric science of jurisprudence.  In point of fact, though not by intention, this tour de force presents a chronological history of Sufism in four parts: Classical Islam, Early Medieval, Later Medieval, and Pre-Modern and Modern.

Following European custom, whereby the individual professor rather than the educational institution carries maximum prestige, this undertaking was prepared by the former students of Hermann Landolt in his honor as a foremost advocate of what nowadays is often termed the Sophia Perennis or science of the permanent things.  Landolt started his career in his hometown, Basel, Switzerland, where he wrote his dissertation in its then dominant environment of post-war existentialism epitomized by Karl Jaspers and Karl Barth.  These were identified as the two leading beasts of the Anti-Christ (bete noir) by my professor at the time, the famous Roman Catholic theologian Romano Guardini at the University of Munich, where I was the first American student at a German university after World War II.  Landolt left this dead-end corner of intellectual life to earn another diplome under Henry Corbin at the Sorbonne.  In 1964 he moved to McGill’s Institute of Islamic Studies in Montreal, Canada, founded ten years earlier by Wilfred Cantwell Smith, where Landolt spent the next thirty-five years as a “Persianist” exploring Islamic mysticism, including the controversial subject of wahdat al wujud, about which I have published an extensive critique in http://www.theamericanmuslim.org and t,he legacy of the leading mystical jurisprudents, ranging from Imam Jafar al Siddiq, who founded the first of the major schools of Islamic law, and the early Ismaili philosopher Abu Hasan al Hujwiri (Datta Ganjbaksh), the author of Kashf al Mahjub, which was the first history of tasawuf and introduced me to Islam during a two-week khalwa on top of a mountain in New Hampsure; to Suhrawardi, who led the cause of ijtihad during the Dark Ages of the Sunni naqba; to William Chittick, Toshihiko Izutsu, Hossein Nasr, and many others, who carried the flame of sophia perennis in the face of the cold winds that threaten to bring on the intellectual winter of a global naqba today.

The studies in this book reflect amazing detective work by many young scholars uncovering the interconnections among the seminal spiritual and intellectual leaders of Islam’s Southwestern and Central Asian heartland over the past more than one thousand years, as well as the historical backdrop of their respective eras. 

Since this is a compilation for scholars by scholars, the reader would be well advised first to read Hossein Nasr’s chapter, “The Spectrum of Islam” in his book, The Heart of Islam, as background in order to distinguish the more orthodox intellectual and spiritual leaders among the Shi’a from the less orthodox and to identify the movements that originated from the latter but developed into sects within Islam and even into new religions outside its widest boundaries.  For example, the Akhbaris, mentioned in the Harvard Law School publication on schools of law, flourished in the middle Safavid period (early 1600s) but spawned the Shaykhi movement of the early Qajar period (1700s), which gave rise in the early 1800s to the new Bahai religion.  This modernist response to Western cultural imperialism essentially reversed the mindset of its origins by developing the anti-intellectual piety of the Akhbaris into a form of 21st-century post-modernism.

The more mundane backdrop, which is available in textbook accounts of events and their relation to political, military, economic, and sociological trends, is considered by the young scholars only as a framework in which the true prime movers of civilization worked in seeking the higher realities (haqa’iq) of the permanent things that have always transcended the ephemeral.  Like the great river of Heraclitus, discussed by Isma’il Raji al Faruqi in his book, Meta-Religion: A Framework for Islamic Moral Theology, which I was able to rescue from oblivion after his death and publish through the Islamic Institute for Strategic Studies, June 2000, 104 pages, one never steps in the same river again, but the water never ends.  New intellectual and political flotsam is always flowing out to the sea, but the life-giving water is always recycling at both its origin and end, bi ithni Allah.

The knowledge encompassed within the gathering of thirty-eight life-long scholars on Islam in this symposium on reason and inspiration should not be summarized but rather experienced.

Here it may be sufficient merely to suggest that a common thread running throughout the symposium is the insight that theology and philosophy are not ends but preliminary paths to mysticism, which in all the world religions is based on awareness that intuition is the highest human faculty, because it has immediate access to the highest reality, unlike sense experience and reason, which are merely mediate.  As Golam Dastagir, the Muslim professor of philosophy at Jahangirnagar in Dhaka defines it in his article “The Global Mystical Union,” The World and I, Winter 2006, “Knowledge by intuition is immediate in the sense that the subject is merged in the object. … The mystic’s first and foremost activity is love, which is higher even than acts of complete surrender and supreme perfection. … This view is shared by the Christian mystic, Meister Eckhart, who says, ‘I receive God into myself, and through love I enter into Him. … We are transformed into God, so that we may know Him as He is’.”

“Truth can be understood,” Golam Dastagir writes, “not just in the remembrance of God through prayer but in the realization of God in the pure heart, in which there is no difference between the knower, the known, and the knowledge.  Communion of the individual soul with the Divine is the ultimate goal of human life.”  “The methods of reaching this goal vary according to peoples’ customs, cultures, and beliefs,” but they are all converging from the outer circumference of a circle toward the center which is God.  He concludes that the cause of most conflict in the world today is the failure of religious people to recognize this, which is why they are vulnerable to emotions of despair, fear, and hatred. 

We fear the specter of growing chasm between civilizations in an age of advanced technologies, but Dastagir warns, “The human mind-set is at the center of all contentions and conflicts among divergent faiths and nations. … Our first and foremost endeavor should be to bridge the chasm between God and humanity.”

This is the task of ‘Ilm al ‘Adl, the science of compassionate justice, which is based on the cycle of apophatic spirituality (the via negativa associated with islam), cataphatic spirituality (the via positiva or “yes” stage of the spiritual path associated with iman), and the highest level of ihsan, which completes the dynamics of tawhid.  This might also be termed ‘ilm al ‘adl al muta’aliy or transcendent law, similar to al hikmat al muta’aliyah of the seventeenth-century Shi’i polymath, Sadr al Din Shirazi, who, like Al Ghazali, created a major synthesis of philosophy, doctrinal Sufism or gnosis (‘irfan), and theology (kalam) in a new school that Syed Hossein Nasr has translated as “transcendent theosophy.”

The best modern translation of ‘ilm al ‘adl, however, is simply “meta-law.”  Metalaw is the substance of what America’s founders called “traditionalism.”  In the 379-page Summer/Fall 1987 issue of Modern Age, which has long been the most sophisticated journal of functionally Islamic thought in America, Henry Regnery defined traditionalism in terms of its opposite, which for more than a century has been known as “modernism.”  Modernism, he says, is “the loss or rejection of the divine paradigm” and is “the desacralization of life.” 

This concept of traditionalism was further developed in my book, Shaping the Future, Challenge and Response, especially the chapter entitled “Moral Law for Cyber-Civilization: A Tawhid Cybernetic Framework for Applying Islamic Thought.”  The golden rule of metalaw, as first advanced in 1957 by the unknown mystic, Andrew Haley, is not “do unto others as you would have done unto yourself,” but “Do unto others as they would have done unto them.”  This is a higher level of law designed for relations among sentient beings wherever they live in the universe, because it is based on loving recognition that all beings are divinely created for the same purpose and that one’s capacity for self-knowledge is God’s greatest gift to every sentient being.  Metalaw is the basis of compassionate justice and is the ultimate arena for cooperation both within and among civilizations.

This insight was first brought home to me in 1982 when I was asked to entertain two Buddhist monks who had just arrived at the invitation of the Aspen Institute to found a Buddhist monastery as part of an interfaith community of monasteries in Baca, Colorado.  Not knowing how one entertains Buddhist monks deputed by the Dalai Lama for such a mission, especially those with a very tight schedule, I asked them to explain Buddhism in five minutes.  They laughed and replied that one minute is more than enough.  First, one must understand Hinayana Buddhism, which teaches that one must separate oneself from the material world and the search for illusory power.  Next comes Mahayana Buddhism, which teaches that one can then unite with nirvana, which is nothing in the sense of no-thing, i.e., what is beyond the material.  Finally comes Tantrayana Buddhism, at which level one will have an over-powering desire to bring compassionate justice to the world. 

Although I was a hidden Muslim at the time, invited as an expert on Native American religions, I could not help but exclaim, “Al hamdu li Allah, you have just explained everything there is to know about Islam in thirty seconds.”  In retrospect, I would add that these two Buddhist monks had just identified the jurisprudence of compassionate justice as the ultimate arena for either cooperation or clash among civilizations.

 

“Justice, Justice, thou shalt pursue” Deuteronomy 16:20

“If you want peace, work for justice” Pope Paul VI

“And the word of your Lord is fulfilled in truth and in justice” Qur’an 6:115

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Dr. Crane is Director for Global Strategy at The Abraham Federation: A Global Center for Peace through Compassionate Justice, Menefee Mountain Private Lane, Washington, Virginia 22747, cell 312.402.0121, o. 703.243.5155, .(JavaScript must be enabled to view this email address), http://www.globaljusticemovement.org


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