1. The Essence of Islamic Law; contributed by Robert D. Crane, Esq., co-founder of Muslim American Bar Association, formerly of Counsel to AMC, NM (and edited by Kareema Altomare)
2. Fiqh and the Fiqh Council of North American; contributed by Yusuf Talal DeLorenzo, Secretary, Fiqh Council of North America, VA
1) The Nature of Islamic Law
Islamic law, known as the shari 'ah, is the framework of ultimate reality and the ethical guidance that Muslim scholars have derived from the direct Revelation of Allah to man. Although Allah reveals the pattern of ultimate truth indirectly through the workings of the physical universe and in the observable nature of man, the ultimate source of knowledge about both physical and metaphysical reality - and therefore the ultimate source of the shari'ah - is the Qur'an. This divine text was revealed directly in human language to the Prophet Muhammad (saws), and is exemplified in the sunnah, which reports the Prophet's understanding of this Final Revelation as shown through his words and deeds.
All Revelation to the Jewish Prophets (saws) and to Jesus (saws) is binding on Muslims unless specifically abrogated in the Qur'an. The shari'ah is a specific form of the shar' or path to God which the Qur'an states was revealed to all the prophets of the Abrahamic succession.
Since the major purpose of Islamic law is to guide man's search for truth, shari'ah touches on both transcendent and material experience. All aspects of every person's spiritual understandings and undertakings, which come under the rubric of purification, or tazki 'yah, should be consciously subject to the reality-check of Islamic law. This deeply spiritual nature of the shari' ah provides the perspective for understanding and acting in accordance with the ethical
or moral standards that the creator has provided to guide every person's and cornmunity's
relations with other humans and with the rest of Creation. The shari'ah therefore provides the ultimate criteria for judgment on every aspect of one's individual and social life.
2) The Methodology of Islamic Law
The process of gaining knowledge of Islam through jurisprudence, and the body of legal advisements so derived, is known as fiqh. The shari'ah consists both of specific rules and regulations, known as ahkam, which are the subject of istifta, or fiqh analysis, and of general principles induced by scholars over many centuries from study of the Qur'an, sunnah, and their application in everyday life.
The specific directives in the Qur'an focus primarily on the elements of formal worship known as the five pillars of Islam, because man cannot reason to this knowledge alone. These elements consist of the profession of faith, including the 'aqidah or articles of faith common to all Abrahamic religions; and the rules for the five daily prayers, charity, fasting, and pilgrimage.
The general principles of Islamic law, also known as universals (kulliyat), essentials (dururiyat), and goals (maqasid), are derived by a system of reasoning known as istislah, which focuses on the common good of mankind. This system of thought, in turn, is part of the broader field of study known as usul alfiqh, or study of the sources of fiqh Analysis of the general principles of Islarnic law through the use of intellectual effort, known as iNtihad, gives meaning to the specific directives and also provides guidance on all aspects of Muslim life in the variable contexts of time and place. Islamic law thereby gives living expression to an elaborate science and art of interpreting and applying the injunctions of the Qur'an and the guidance of the Prophet Muhammad (saws). The development of an integrated and adaptable legal system which focuses on what is best for mankind as a whole is one of the most outstanding achievements of Muslim jurists. The methodology of Islarnic jurisprudence asserts that any ruling in the fiqh has meaning only to the extent that we can understand its rationale or higher purpose.
3) Human Responsibilities
The dignity of man derives from his acceptance, before the Creator of the Universe, of the responsibility to know right from wrong and to be a steward of the universe charged with caring for it and guiding it in accordance with the Divine Will. No beings in either the physical or metaphysical worlds have such a sllblime responsibility.
The rights of the human person and community derive from this responsibility, because every person and community must be free to carry out this stewardship. Every man and every woman, every Arab and every Jew, and every rich person and every poor person are equal in their responsibility to Allah and therefore in their dignity and in their human rights.
Islamic law focuses on human responsibility, because a focus on human rights can devolve into the selfishness of seeking to maximize one's own freedom to do whatever one wants at the expense of others. If everyone would fulfill all of his or her responsibilities, individually and collectively, then everyone would be accorded the full range of human rights.
The scholars of Islam, have identified a half dozen overarching responsibilities, though some scholars will condense these to five or expand the number by elevating a secondary responsibility to the level of the universal or essential. The first three concern the essentials of life itself, whereas the next three concern the quality of life.
The first three essential areas of responsibility or duty in Islamic law are:
a) Respect for life, or "the right to life" known as haqq al haya This requires not merely respect for the unborn after the spirit or ruh has been breathed into the fetus, but also such social duties as respect for non-belligerents in war and the use of dispute settling mechanisms whenever possible to avoid violence that might threaten the lives of oneself or others. Respect for life requires most basically an understanding that lasting peace can result only from justice, and that therefore stability should be sought as the by-product of sound foreign policy rather than as its direct aim. Similarly, crime should be combated primarily by addressing the causes rather than the results of the criminal mentality.
b) Respect for community, or right to one's identity as a member of a family, community, or nation, known as haqq al nasl. This focus on the family, and more broadly on expanding circles of community to include mankind and even all sentient beings in the universe, is unique to Islamic law, because it implies that sovereignty lies not in the extent of a country's or a government's power, as it does in Euro-American international law, but in the inherent dignity of the human person in community. This acknowledgment of the inherent right of the person to live in a series of legally recognized communities permits several levels of sovereignty, all subject to the highest sovereignty of God, and contrasts with the concept of exclusive sovereignty found in the so-called "nation-state" of the mid-twentieth century.
c) Respect for free, private enterprise, with broad capital ownership, known as haqq al mal. The principle of freedom for individual persons to own the means of production has been basic in all Islamic scholarship until the twentieth century. Unfortunately, the principle of equal opportunities to own capital or the tools of production has been largely ignored for over a thousand years because various "rulers" understood that concentrated political power requires concentrated property ownership. Denial of access to capital ownership in a capital-intensive economy can amount to the denial of the right to life itself. Therefore all institutions that work in practice to concentrate ownership, including the financing of economic growth through the use of interest rather than by risk-sharing in joint-ownership, are "illegal," that is, morally illegitimate, in Islamic law.
The next three of the universals, essentials, or purposes of Islamic law, which concern the quality of life, are:
d) Political self-determination, or haqq al hurriyah. This is usually known as "the right to political freedom." Islamically, however, this term emphasizes the responsibility of both the ruled and the rulers to establish permanent institutions designed to facilitate broad-based political participation by every member of a polity in its governance so that they can help determine their own immediate well-being and long-run destiny.
This universal, like each of the other five, contains a second-order level of responsibilities that serve to elucidate and carry out the primary responsibility. In the context of political self- determination, this next lower level of responsibility, known as hadyiyat, consists of iMma, which is the duty of the governed to reach consensus on critical issues, and shurah, which is the duty of the ruler to be responsive to this consensus. In a complex society, this might be accomplished best by using a concept of a hierarchy of assemblies that culminate in a national parliament.
The third necessary element in the system of government prescribed in Islamic law, in addition to the executive and legislative, is an independent judiciary charged with applying the principles of Islamic law, especially as they are spelled out in a formal constitution covering the organs, methods, and principles of governance chosen by the legislature. The judicial area of government is designed to limit both the ruled and the ruler so that the ultimate sovereign, both in theory and in fact, will be Allah.
5) Dignity, known as haqq al karama. The duty to respect human dignity is at the core of all Islamic law, because the essential purpose of the shari'ah is to help persons acknowledge and deepen their relationship to Allah and express this higher level of being especially in their relationships with each other. There are two major parts of this fifth universal principle of Islamic law.
The most important aspect of the principle of dignity is the duty to respect each person's need to seek and worship God in his or her own way. This is known in Western thought as "freedom of religion." In both traditional Islamic and traditional American thought, this most essential element of the dignity of man requires that the government avoid any sectarian bias in carrying out its duty to facilitate freedom of religion in public affairs.
Another aspect of this principle of dignity, which is second in importance only because it is so often ignored, is "gender equality." Whereas the Prophet Muharnmad (saws) and the Islamic teachings of the prophetic period were breathtakingly revolutionary in recognizing the divinely ordained rights and responsibilities of women in society, the practice of later Muslims degenerated to the level of their neighbors and has largely remained at this level while the rest of the world has begun to understand and share the sophistication of the original Islamic heritage.
Islamic law recognizes a greater responsibility of wife and mother to care for the home and children, and a greater responsibility of the husband and father to support the family. The family, however, is a mutual support group, whereby all responsibilities are held in common through the principle of collective responsibility, or fard kifaya. It follows from this that if any duty is not being adequately met, each member has a personal responsibility, or fard 'ain, to do whatever is required to fulfill that duty, whether it be the husband washing dishes or the wife working outside the home.
Similarly, to the extent that home duties and the work of financial support for the family have been satisfactorily accomplished, both husband and wife have equal responsibility to participate in social and political leadership when needed for the good of the community and even to accept the highest judicial, legislative, executive, or entrepreneurial position in the land if it is offered. There the criterion for judgment is not women's rights or men's rights, but individual responsibility. Gender is irrelevant when the issue is personal responsibility to meet the needs of society in accordance with the requirements of Islamic law.
f) Knowledge, or haqq al 'ilm. A key to success in every aspect of private and public life is the duty to pursue knowledge. Since the highest purpose of every person is spiritual understanding, freedom to pursue the path of spiritual knowledge is paramount. We were created, however, as humans not as angels, so we have a duty to pursue whatever knowledge is useful to us individually and collectively in carrying out our responsibilities: to help the marginalized in society, to promote justice among people and nations, to multiply the material bounties of Allah, to work constructively in the political process, to participate with people of other faiths in addressing all the problems of society, and otherwise fulfilling all the requirements placed upon us by Islamic law.
The duty to respect knowledge goes beyond the negative task of protecting freedom of thought and expression, limited only by the duties to respect human dignity, and extends to the positive obligation of every person to learn as much as one can throughout one' s life in order to fulfill the purpose for which one was created.
The nature and specific obligations inherent in Islamic law make it not only unique among mankind's legal systems but the best suited as the paradigm of thought within which all religions and all peoples can cooperate in building a better world.
As the Muslim community in North America grows to include more ethnically and culturally diverse elements, the process of istifta ' (in which consultation takes place between qualified experts on religious law and people for whom adherence to that law is an essential part of their faith) and the phenomenon of the "imported" mufti become more problematic. Immigrant and indigent American Muslims of whatever ethnic or cultural background have often been disappointed by the lack of appreciation for local conditions and circumstances on the part of such "imported" muftis. Likewise, community leaders and members alike have come to realize that the legal responum orfatawa obtained through the mail, so to speak, from muftis in Muslim majority countries often fail to address the crux ofthe issues presented to them for consideration. Quite often, their responses raise more problems than they settle. Certainly, this is only natural. For unless there is a clear understanding of the context of a legal question, there is little likelihood that the solution offered will be an adequate one. From here, the idea seems to have taken hold among American Muslims that the institution of istifta' or Fiqh consultation is one that is best supported by those who fully understand and appreciate the special characteristics of the North American Muslim community and the circumstances in which it strives to develop.
Over the past twenty years, the community has turned increasingly to local experts for the solutions to their Fiqh related problems. The experts consulted have not always had the sort of Fiqh qualifications traditionally required of muftis, but their understanding of local condition, coupled with backgrounds in Arabic or Islamic studies have placed them in the position of being called upon to give opinions on sensitive issues. With the rise of interest in Islamic studies in American academia, however, a number of Muslim scholars with Fiqh credentials have come to American universities for graduate studies, post graduate work, or to fill teaching posts in new or expanding departments. At the same time, American Muslims, especially converts and second generation converts (the children of converts), have sought in increasing numbers to obtain advanced Fiqh training abroad at Islamic universities and traditional Islamic institutions. All of these developments have made it possible for the community to draw upon a wider range of Fiqh expertise and experience.
In recent years, national organizations like the Islamic Society of North America, the Islamic Circle of North America and the ministry of Warith Deen Mohammed have seen the need to form committees of scholars to advise on matters related to Fiqh and the community. Out of one such committee grew the Fiqh Council of North America, an independent body of Fiqh councilors organized in view of the increasing need on the part of the growing Muslim community in North America for considered Shari'ah-based advice and counsel. Its functioning extends to the needs of individuals and organizations within the cornmunity and to those with whom they interact, Muslim and non-Muslim alike. By way of example, over the past year the Council has dealt with questions submitted by individual Muslims, by local and national Muslim organizations, by the Departments of Justice and Defense, by Muslim and non-Muslim trial lawyers, immigration lawyers, and journalists with interests as varied as biological engineering and third world politics.
The Fiqh Council of North America aims at participating, through its academic expertise, in the process of facilitating the Islamic way of life in the secular, non-Muslim environment of North America; and the way it intends to do this is by providing institutions and individuals with jointly considered legal opinions and advice that are based on the Qur'an and the Sunnah. The
Council's primary objectives, as outlined in its by-laws are:
1) To consider, from a Shari'ah perspective, and offer advice on specific undertakings, transactions, contracts, projects, or proposals, guaranteeing thereby that the dealings of American Muslims fall within the parameters of what is permitted by the Shari'ah.
2) To consider issues of relevance to the community and give, from a Shari'ah perspective, advice and guidelines for policy, procedure, and practice. Such advice may take the form of position papers, fatawa, research papers, sample forms for legal agreements, or whatever else is deemed effective.
3) To consult, on issues requiring specialized knowledge and experience, with professionals or subject specialists.
4) To establish and maintain working relationships with Shari'ah experts worldwide, including muftis, university professors, researchers, Shari'ah court justices, and members of national and international Fiqh councils and academies.
5) To assist local and national organizations in the resolution of conflicts.
6) To advise in the appointment of arbiters, and review arbitration proceedings and decisions for their consistency with Islamic legal principles.
7) To commission research on relevant Islamic legal issues.
8) To maintain and develop a comprehensive Shari'ah library.
9) To anticipate and serve the particular needs of minority groups within the community; youth, women, prisoners, recent converts, etc.
10) To develop a Fiqh for Muslims living in non-Muslim societies.
In terms of its philosophy, the council's by-laws state that it will make its decisions jointly, and base them on evidence derived from the two most reliable sources of revelation: theQur'an and the authentic Sunnah. In doing so it will employ the principles and methodologies of usul al Fiqh and consider, where relevant, the various opinions of earlier Muslim jurists. All legal schools will be considered equally as intellectual resources to be drawn from in the process of giving contemporary interpretations to the texts of revelation. In other words, the issue of madhhab or affiliation to one legal school of thought or another is one which the council considers valid only in regard to questions of worship or 'ibadat. Yet, even within that restricted area, new developments have brought about questions that the traditional imams never considered.
Among the most important approaches of the Council in its treatment of new issues and questions that apply particularly to the Muslim communities of North America is its policy of giving additional consideration, in the light of the higher purposes or maqasid of the Shari'ah, to the circumstances imposed upon Muslims by the non-Islamic environment that surrounds them.
In classical terms these circumstances are called the ahwal al mahkum 'alayki, and are mentioned only briefly, if at all, in the major works of usal. While decisions made by the council are the result of collective scholarship and consideration, members do have the right to write dissenting opinions. As a part of the process of istifta, the mustafti or questioner has the right to accept whichever opinion he feels is the more valid. And this is partly a function of his knowing better what his particular circumstances or ahwal might be.
Another matter for the consideration of the Fiqh councilor in North America is that since the tradition al Fiqh of Islam is essentially the Fiqh of the historical Muslim state and its Muslim majority, it pays little or no heed to the Fiqh of Muslim minorities except in the form of nawzil issued at times of crisis, such as during the Mongol invasions, or the crusades, or in the Moriscan period of Andalusian history. The Fiqh of these periods, however, was never developed or analyzed as it was considered to have come about under adversity and therefore fell under the category of legal exception by virtue of necessity. It is therefore essential that the councilor strive to interpret the teachings of Islam in a way that is consistent both with the higher principles of the Shari'ah and with the circumstances of Muslims living in predominantly non-Muslim societies. Such Fiqh might be known as the Fiqh of Muslims in non-Muslim environments, and its applications in today's world are probably without limit.