The
Challenge to Islamic Jurisprudence
by Dr. Robert D. Crane - May 2003
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.
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