The Challenge to Islamic Jurisprudence

The Challenge to Islamic Jurisprudence

by Dr. Robert D. Crane


Part One: The Challenge
        Specialists in the study of comparative legal systems and their supporting religious frameworks have always been interested in the origins of religion as a cause of conflict. Recently, many have become even more interested in the future of religion as a cure for such conflict.

Recently, a powerful alliance of four disparate movements has come together to form a unified foreign policy in response to the new world disorder that emerged following the relative stability of the half-century-long Cold War. This quadruple alliance consists of two rationalistic trends that have originated during the past half century. These may be designated as the permanent foreign policy establishment, which seeks stability through the balance of power, and the movement known as neo-conservatism, which seeks to project America�s power to build a better world.

The other two movements may be called anti-rationalistic in the sense that a closed ideology trumps objective reason in understanding and dealing with the complex forces in the world. The origins of these two date back more than a century. They are the movement known as Evangelical or apocalyptic millenarianism, and the movement that one might call simply secular Zionism, as distinct from the older mainline Jewish concept of spiritual Zionism.

These four movements or trends differ in their potential to resolve conflicts and reduce the underlying causes. They differ especially in their understanding of Islam. They range in descending degree of openness from the permanent foreign policy establishment, perhaps best typified by Henry Kissinger, to the secular Zionists. The former have been basically indifferent to Islam, either because they thought that it might become useful in countering political radicalism or because they assumed that it is a declining force in the world and no longer will play a real role in orchestrating the global future. The secular Zionists, on the other hand, fear Islam as the only real threat to the security of Israel.

The alignment of the irrational led by Jerry Vines, past president of the Southern Baptist Convention, and the Reverend Jerry Falwell, with the proudly rational, neo-conservative movement, led by William Kristol�s Weekly Standard, is an unprecedented development in American intellectual history, much to the consternation of the permanent foreign policy establishment, but much to the delight of the those who fear for the security of Jews in their ancestral homeland.

Until their alignment after 9/11 in an alliance with the neo-conservatives, the extremists among the millenarian Evangelicals, namely, those who attacked Islam as a warlike religion and the person of the Prophet Muhammad by calling him a bandit and a paedophile, were a fringe phenomenon in American society. As these radicals have moved from the fringe into the mainstream, the formerly mainstream Evangelicals have concluded that these extremists are hijacking their own religion and that the moderates must actively counter the extremism that can compromise Christian love.

On May 7th, 2003, the National Association of Evangelicals convened a summit conference of forty leaders, representing 43,000 congregations, to address the issue of whether they should focus their efforts on countering or converting Muslims. Their conclusion was that the mission of proselytizing must have top priority and that this necessarily conflicts with the radical efforts to brand Islam and the Prophet Muhammad as inherently evil and violent.

As Protestant extremism declines in the aftermath of the successful war in Iraq, the negative assessment of Islam as a religion has been taken up by neo-conservative leaders within the Catholic Church. One of the most articulate of such leaders appears to be Michael Novak, one of the top intellectuals in America�s first policy think-tank, The American Enterprise Institute.

In the April, 2003, issue of America�s leading journal on religion in public life, First Things, Novak published a seminal article, �The Faith of the Founding.� In this lead article he brilliantly portrays the essential teachings of the traditionalist movement, led originally by Edmund Burke, that led to the founding of the Great American Experiment. He becomes controversial, however, in his contention that even though some Muslims may be good, Islam is inherently bad and un-American because it does not recognize a direct relationship of the person with God and therefore can have no conception of human rights or of government limited by recognition of the sovereignty of God.

This represents an entirely new approach to Islam, because it is based not on generalizing from the action of extremist Muslims but on denial of what centuries ago the greatest Muslim scholars, all imprisoned for their beliefs, considered to be the three basic fundamentals of Islam as a religion. The newest strategy apparently is to single out these essential truths of Islam, deny that they exist, and assert that their absence constitutes the Islamic threat. This sophisticated strategy may be more effective over the long run than are the simplistic claims of Pat Robertson and Franklyn Graham that Muslims are bandits.

The challenge to American Muslims, especially after 9/11, is to explain the difference between Islam as a religion and Muslims as its supposed practitioners.

Equally important is the challenge for Muslims to put their own house in order by marginalizing the extremism that can give rise to violence and by taking advantage of the post-Iraq environment to end the poverty and oppression that feed such extremism. American policymakers can not afford to deal only with benign theoretical formulations, when the facts on the ground, strikingly demonstrated by 9/11, are so malignant.

Part Two:  The Response
        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.

This is the only way to convince the extremists that their confrontational approach to the �other� is not necessary; that the threat mentality of those who think only about their own survival and are obsessed with catastrophe and conspiracy can backfire; and that only those can truly prosper over the long run who can transcend their own self-centered interests in order to develop an opportunity mentality together with those who are no longer merely the �other� but now are a single pluralist community.

In order to fill the intellectual void, Muslims need to emphasize the universal Islamic principles, the maqasid al shari�ah, which spell out precisely what Michael Novak says 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 the master of the art, Al-Shatibi, are considered to consist of seven responsibilities, the practice of which actualize the corresponding human rights.

The first one, 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. 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, 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 You.�

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 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 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.

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.


Originally published at http://www.irfi.org/articles/articles_301_350/challenge_to_islamic_jurispr.htm


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