Justice: The Origin, Framework, and Purpose of Representative Government in Islam


Within the shadow of Ground Zero across the Hudson River in northern New Jersey, three like-minded organizations, the Center for Understanding Islam, the Center for Spiritual Enrichment, and People of Peace and Justice, have cooperated in an interfaith outreach effort of education and coalition building to counter the hatred and bigotry that developed within the majority Christian community as a result of the 9/11 attack on America.  This ecumenical outreach effort has focused also on overcoming the fear and loss of self-confidence that threatened to radicalize elements of the minority Muslim community and paralyze any efforts by the mainstream Muslims in self-defense.

A fundamental purpose of this interfaith effort is to develop awareness of the fundamental identity between the wisdom of the great classical scholars of Islam and the wisdom of classical America in the traditionalist movement that led to the American Revolution.  This common vision can provide the framework for educating both Muslims and non-Muslims on the constructive role that Islam and Muslims can play in renewing American civilization so that it can become what its Founders envisioned as a moral leader in the world.  The Founders’ basic paradigm of thought, as well as the basic framework of Islamic thought, is justice.

An important step in this outreach effort has been the consensus reached among the three lead organizations, the Center for Understanding Islam, the Center for Spiritual Enrichment, and People of Peace and Justice, on the definition of justice as a set of specific human responsibilities and rights that derive from the spiritual nature of the human person.

The initial formulation presented by the Center for Understanding Islam was based on what the Muslim participants described as the “Legacy of the Prophet.”  In their ecumenical perspective, the legacy of all the Prophets of God , ‘alayhi al salam, is the revival of the essence of all religion, which consists of four essentials.  He revitalized personal awareness and loving awe of God, which Muslims call taqwa, and a resulting commitment to truth and justice.  These two essentials of faith in Islam and of every world religion reinforce each other.  The neglect of either one can result in extremism.  Without love and mercy, the pursuit of justice can result in cruelty and oppression.  And without a commitment to establish a just society wherever one lives, one’s love of God can not have real meaning in the world.

The other two essentials are the basic philosophical principles known as tawhid and mizan.  Tawhid refers to the concept that everything in the universe is interrelated with everything else in a coherent whole, and that this unity is the inevitable result of the Oneness of the Ultimate, the Creator of all, whom the Muslims and Arab Christians refer to as Allah, the non-Arab Christians call God, and the Jews call Elohim or Jehovah.

The second philosophical principle, known as mizan, comes from the first one.  Mizan means balance.  Since God created the universe as a balanced whole, as expressed throughout the Qur’an, a task of every human is to help perfect this balance by avoiding extremism.  When one over-emphasizes any one pursuit or goal in life, one can become an extremist by neglecting the others.

A framework for maintaining balance in life is provided by Islamic law and is its very purpose.  This framework is a hierarchical system of human responsibilities and rights.  For example, one has a responsibility to defend one’s family and community, and one has an equal responsibility to respect individual human life.  Those who kill innocents in the alleged defense of their community clearly have lost balance.  This violates the design of Allah.  It is extremist and therefore immoral. 

The indignities of miserable poverty and cruel oppression can produce alienation, desperation, and extremism.  Unfortunately, Muslims have suffered more than their share of both these causes and effects in the world, but this is no excuse for the resulting extremism.  Regardless of how understandable it might be, extremism and the resulting violence is immoral and un-Islamic. 

Extremism does not have to result from indignities, but it will unless there is a source and framework for hope.  The source must be spiritual, based on taqwa.  The framework must be a coherent body of human responsibilities and rights, based on a mutually reinforcing combination of divine guidance through revelation, wahy, and natural law, which Muslims call the sunnatu Allahi or signs of divine order in the universe.  Without this intellectual framework, people wander in an intellectual void, and this, in turn, can produce a spiritual malaise.

Over the long run, the most productive initiative by the still largely silent majority of Muslims in marginalizing Muslim extremists is to fill the intellectual and spiritual void that serves as an ocean in which the extremists can swim.  This initiative can provide the favorable environment needed for Muslims to ally with like-minded Christians and Jews in order to show that classical Islam and classical America are similar, even though many people do not understand or live up to the ideals common to both. 

Teaching and emphasizing that the founders of America and the great scholars of Islam shared the same vision is the best way to convince the extremists that their confrontational approach to the “other” is counter-productive. Recognizing this commonality of purpose in life is the only way to overcome the threat mentality of those who are obsessed with conspiracy theories and think only about their own survival.  Promoting an opportunity mentality of hope is the only way to convince the extremists that only those can truly prosper over the long run who can transcend their own self-centered interests in order to join with those who are no longer merely the “other” but now are members of a single pluralist community.

Shifting from a threat mentality to an opportunity mentality requires hopeful commitment to peace through justice in reliance on God.  Justice is another word for the Will or Design of God, the mashiyat.  It is also considered to be another term for the body of Islamic normative law.  These norms or general principles, according to Islamic thought, provide the intellectual framework to understand and address all of reality. 

The entire purpose of the Qur’an is implied in the last verse of Surah Ibrahim:  “Here is a message for humankind.  Let them take warning therefrom and let them know that He is (no other than) One God.  Let persons of understanding take heed.”  Yusuf Ali comments: “Here is another aspect of the Truth of Unity.  God being One, all justice is of one standard, for Truth is one, and we see it as one as soon as the scales of phenomenal diversity fall from our eyes.  The one true Reality then emerges.”

For the scholar, the best short introduction to this framework of Islamic thought may be found in the monograph, “Usul al Fiqh al Islami: Source Methodology in Islamic Jurisprudence,” by Shaykh Taha Jabir al ‘Alwani, who for more than fifteen years has been President of the Fiqh Council of North America, a member of the OIC Islamic Fiqh Academy in Jeddah, and a founding member of the Council of the Muslim World League in Makkah.  This monograph, published by The International Institute of Islamic Thought in Herndon, Virginia, in 1990 is a summation of his doctoral dissertation in 1972 at Al Azhar University in Egypt.

For discussion among scholars, it is important to note that the art of Islamic normative law is part of the Islamic science of ‘usul al fiqh or the roots of the shari’ah, and specifically was developed within the sub-context of maslaha mursala, which addresses the good of the community.  Within this discipline of maslaha, normative law was developed over the centuries by the use of three distinct methodologies.  The first is maslaha al mu’tabara, which is based exclusively on an explicit hukm or ruling in the Qur’an or Sunnah.  The second is based on istislah, which denotes restoration or reform, based on the root s-l-h, which means peace and prosperity through right order.  This methodology is based on the values of Islam revealed in the Qur’an and Sunnah through induction from the parts to the whole.  The third is based on istihsan.  This comes from hasana, which means simply to be good, and is the most free-wheeling of the three.  All reject ra’i or personal opinion in developing jurisprudential guidance and preserving the purity of divine revelation. These three can be mutually compatible and reinforcing, particularly in developing a framework not merely for law in a narrow sense but for public policy and for the development of Muslim think-tanks.

In order to fill the intellectual void both in the Muslim global community and in the minds of some Muslim intellectuals, Muslims need to emphasize the universal principles of Islamic normative law, known as the maqasid al shari’ah, especially as developed by the greatest master of the art, Al-Shatibi, using the methodology of istislah.  These principles spell out precisely the human rights that some skeptics have asserted do not exist in Islam.  These maqasid, following the methodology instituted by the Prophet Muhammad and perfected in the architectonics pioneered six centuries ago by Al-Shatibi, are considered to consist of seven responsibilities, the practice of which actualize the corresponding human rights. 

Al Shatibi taught that the number of maqasid is flexible, as are the subordinate levels and architectonics of purpose, the hajjiyat and tahsiniyat, because the entire field of Islamic normative law is a product of ijtihad or intellectual effort.  This commitment to ijtihad, which has been almost dead for six hundred years, is called for specifically in the Qur’an as the jihad al kabir, “And strive with it [divine revelation] in a great jihad,” wa jihidhum bihi jihadan kabiran (Surah al Furqan 25:52).

The first maqsud, known as haqq al din, provides the framework for the next six in the form of respect for a transcendent source of truth to guide human thought and action.  Yusuf Ali notes in reference to Ssurah al Baqara 2:193 that din is one of the most comprehensive terms in the Qur’an and can be translated simply as justice but with associated meanings in English expressed as duty and faith, all of which for a Muslim constitute religion.  In his monumental translation and commentary (tafsir), Muhammad Asad translates din in this verse as “worship” of God as the ultimate being.  Like many words in the Qur’an, the word haqq also contains many associated meanings, including God, truth, and human rights.

God instructs us in the Qur’an, wa tamaat kalimatu Rabika sidqan wa ‘adlan, “and the word of your Lord is perfected in truth and justice.”  Recognition of this absolute source of truth and of the responsibility to apply it in practice are needed to counter the temptations toward relativism and the resulting chaos, injustice, and tyranny that may result from de-sacralization of public life.

Each of these seven universal principles is essential to understand the next and succeeding ones.  The first three operational principles, necessary to sustain existence, begin with haqq al nafs or haqq al ruh, which is the duty to respect the human person.  The ruh or spirit of every person was created by God before or outside of the creation of the physical universe, is constantly in the presence of God, and, according to the Prophet Muhammad, salla Allahu ‘alayhi wa salam, is made in the image of God.  This is the basis of the intimate relationship between God and the human person as expressed in the Qur’anic ayah, “We are closer to him than is his own jugular vein.”

This is also the basis of the prayer offered by the Prophet and by countless generations of Muslims for more than a thousand years: Allahumma, inna asaluka hubbaka wa hubba man yuhibbuka wa hubba kulli ‘amali yuqaribuni ila hubika, “O Allah!  I ask You for Your love and for the love of those who love You.  Grant that I may love every action that will bring me closer to Your love.”

At the secondary level of this principle, known as hajjiyat or requirements, lies the duty to respect life, haqq al haya.  This provides guidelines in the third-order tahsinniyat for what in modern parlance is called the doctrine of just war.

The next principle, haqq al nasl, is the duty to respect the nuclear family and the community at every level all the way to the community of humankind as an important expression of the person.  This principle teaches that the sovereignty of the person, subject to the ultimate sovereignty of God, comes prior to and is superior to any alleged ultimate sovereignty of the secular invention known as the State. 

This principle teaches also that a community at the level of the nation, which shares a common sense of the past, common values in the present, and common hopes for the future, such as the Palestinians, Kurds, Chechens, Kashmiris, the Uighur in China, and the Anzanians in the Sudan, has legal existence and therefore legal rights in international law.  This is the opposite of the Western international law created by past empires, which is based on the simple principle of “might makes right.”

The third principle is haqq al mal, which is the duty to respect the rights of private property in the means of production.  This requires respect for institutions that broaden access to capital ownership as a universal human right and as an essential means to sustain respect for the human person and human community.  This principle requires the perfection of existing institutions, especially those that maintain a monopoly of access to credit, in order to remove the barriers to universal property ownership so that wealth will be distributed through the production process rather than by stealing from the rich by forced redistribution to the poor.  Such redistribution can never have more than a marginal effect in reducing the gap between the inordinately rich and the miserably poor, because the owners in a defective financial system need not and never will give up their economic and political power.

The next three universal principles in Islamic law concern primarily what we might call the quality of life.  The first is haqq al hurriya, which requires respect for self-determination of both persons and communities through political freedom, including the concept that economic democracy is a precondition for the political democracy of representative government.

The secondary principles required to give meaning to the parent principle and carry it out in practice are khilafa, the ultimate responsibility of both the ruled and the ruler to God; shura, the responsiveness of the rulers to the ruled, which must be institutionalized in order to be meaningful; ijma, the duty of the opinion leaders to reach consensus on specific policy issues in order to participate in the process of shura; and an independent judiciary.

This universal principle of Islam was observed only in the breech throughout much of Muslim history, and especially in the modern era.  All of the great Islamic scholars were imprisoned, often for years and even decades, for teaching this requirement of political freedom.  This speaks well for those who have tried to preserve the purity of divine revelation, but poorly for those who pretended to practice it.

The second of these last three maqasid is haqq al karama or respect for human dignity.  The two most important hajjiyat for individual human dignity are religious freedom and gender equity.  In traditional Islamic thought, freedom and equality are not ultimate ends but essential means to pursue the higher purposes inherent in the divine design of the Creator for every person.

The last universal or essential purpose at the root of Islamic jurisprudence, which can be sustained only by observance of the first six principles and also is essential to each of them, is haqq al ‘ilm or respect for knowledge.  Its second-order principles are freedom of thought, press, and assembly so that all persons can fulfill their purpose to seek knowledge wherever they can find it.

This framework for human rights is at the very core of Islam as a religion.  Fortunately, this paradigm of law in its broadest sense of moral theology is now being revived by what still is a minority of courageous Muslims determined to fill the intellectual gap that has weakened the Muslim umma for more than six hundred years, so that a spiritual renaissance in all faiths can transform the world.

 

 

 

 

 


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