Islam and Civilisational Renewal
A journal devoted to contemporary issues and policy research
Volume 9 • Number 3 • July 2018
Produced and distributed by ISLAM AND CIVILISATIONAL RENEWAL
EDITOR-IN-CHIEF Professor Mohammad Hashim Kamali
EDITORIAL TEAM Dr Mohamed Azam Mohamed Adil Dr Alexander Wain Ilham Ramli Tengku Ahmad Hazri Norliza Saleh Siti Mar’iyah Chu Abdullah
REGIONAL EDITORS Americas: Dr Eric Winkel Africa & Middle East: Mahmoud Youness Asia: Dr Syed Farid Alatas Europe: Dr Afifi al-Akiti Australasia: Dr. Daud Batchelor
ADVISORY BOARD Dr AbdulHamid A. AbuSulayman, Professor Carl W. Ernst, Professor Ingrid Mattson, International Institute of Islamic University of North Carolina University of Western Ontario Thought Professor John Esposito, Professor Abbas Mirakhor, Professor Rüdiger Wolfrum, Georgetown University Retired Professor of Economics Max Planck Foundation, Professor Silvio Ferrari, and Finance Germany Università degli Studi Dr Chandra Muzaffar, Professor Azyumardi Azra, HRH Prince Ghazi bin Muhammad, International Movement for a State Islamic University Jakarta Jordan Just World Professor David Burrell CSC, Professor Claude Gilliot, Professor Seyyed Hossein Nasr, University of Notre Dame Aix-Marseille Université George Washington University Dr Mustafa Cerić, Professor Tariq Ramadan, Former Grand Mufti of Bosnia- Professor Ekmeleddin İhsanoğlu, Oxford University Herzegovina Organisation of Islamic Cooperation Professor Mathias Rohe, Professor Hans Daiber, Friedrich-Alexander-Universität Johann Wolfgang Goethe Professor Yasushi Kosugi, Kyoto University Professor Abdullah Saeed, Universität University of Melbourne Ahmet Davutoğlu, Emeritus Professor Hermann Landolt, McGill University Professor Miroslav Volf, Former Prime Minister of Turkey Yale University Professor W. Cole Durham, Jr Professor Muhammad Khalid Professor Tore Lindholm, Brigham Young University Masud, International Islamic University of Oslo Professor Abdal Hakim Murad, University Islamabad University of Cambridge
AIMS AND SCOPE
· Islam and Civilisational Renewal (ICR) offers an international platform for awakening the civilisational potential of the Islamic legacy. Revitalising synergies between Islamic and other civilisations in a spirit of self enrichment through discovery and research may facilitate renewal within Muslim societies and the global human community. · ICR explores contemporary dynamics of Islamic experience in legal and religious practice, education and science, economic and financial institutions. · We seek viable policy-relevant research yielding pragmatic outcomes informed by the best values and teachings of Islam as well as of other contemporary civilisations. · ICR is inter-disciplinary, non-political and non-sectarian. It seeks to contribute to prospects of peace among all nations, and assist the conceptual and societal transformation of Muslims. · ICR encourages fresh discourse for self renewal informed by an inclusive tolerant approach to diverse schools of thought and expression of ideas. The intent is to integrate over 1,400 years of Islam’s civilisational resources of diversity, dialogue and coexistence for meaningful exchanges with other world civilisations. · ICR promotes the Malaysian initiative of Tajdīd Haḍārī or Civilisational Renewal, with its component principles: 1. Faith, Ethics & Spirituality, 2. Just Governance, 3. Independence & Self-Determination, 4. Mastery of Knowledge & Science, 5. Islamic Economics & Finance, 6. Human Dignity & Ecological Wellbeing, 7. Cultural & Aesthetic Integrity, 8. Equity & Fraternity, 9. Diversity & Dialogue, 10. Peace & Security. · ICR considers plagiarism a serious violation of its objectives and principles. - This journal is indexed by Google Scholar and Mycite.
CONTRIBUTIONS AND EDITORIAL CORRESPONDENCE Comments, suggestions and requests to: [email protected] Online journal: icrjournal.org
Published by IAIS Malaysia, Jalan Ilmu, Off Jalan Universiti, 59100 Kuala Lumpur Printed by Vinlin Press Sdn Bhd, Jalan Meranti Permai 1, Meranti Permai Industrial Park, 47100 Puchong, Selangor CONTENTS
Editorial 263–265 Mohammad Hashim Kamali
Articles
Justice, Jihad and Duty: The Qur’anic Concept of Armed Conflict 267–303 Joel Hayward
Stoning as Punishment of Zina: Is it Valid? 304–321 Mohammad Hashim Kamali
The Farewell Sermon of Prophet Muhammad: An Analytical Review 322–342 Mohammad Omar Farooq
Globalisation, Human Rights and Islam: Competing Narratives and 343–361 Discursive Practices in the Muslim World Asif Mohiuddin
Implications of Child Custody in Islamic Family Law: A Case Study of 362–376 Customary Courts in Oyo State, Nigeria Aminullahi Adetoro Yusuff
Revisiting Traditional, Modern and Islamic Values when Addressing Haze 377–389 Issues Shahino Mah Abdullah and Muhammad Adha Shaleh
Viewpoints
Licence to Operate in the Halal Market: A Matter of Alignment 390–393 Marco Tieman
Intelligent Robots and the Question of their Legal Rights: An Islamic 394–397 Perspective Shahino Mah Abdullah
Is Unilateral Conversion the Best Solution? 398–400 Mohamed Azam Mohamed Adil
The Moral Foundations of the Constitution 401–404 Tengku Ahmad Hazri 262
Thinking Through Signs - The Ayah Zeitgeist 405–408 Elma Berisha
Significant Speeches, Events and Developments
Public lecture on Islamophobia and the New Policy of US Towards the 409–410 Muslim World (IAIS Malaysia, 21 April 2018) Wan Naim Wan Mansor
Public lecture on The Future of Maqasid al-Shari’ah Discourse 410–411 (IAIS Malaysia, 27 April 2018) Ahmad Badri Abdullah
Seminar on Hamka’s Thought: Fiqh Ta’ayush in Cultural Development and 411–412 Nation Building (IAIS Malaysia, 28 April 2018) Razi Ahmad
Crusing with Islamic Finance Experts (CWIFE) 412 (29 April 2018) Muthanna Saari
Book Review
Ahmed M. Abohebeish, Introduction to Islamic Rules of Financial 413-415 Accounting Rubaiyat Ahsan Bhuiyan EDITORIAL
This latest issue of IAIS Malaysia’s flagship journal,Islam and Civilisational Renewal (ICR), includes six substantive articles, all with actionable policy recommendations, in addition to five viewpoints, several event reports and a book review. I am confident that our readers will benefit from this expert body of work, characterised by honest scholarship, depth of learning and originality of thought. Our lead article, a focus piece, has been contributed by Joel Hayward of the UAE’s National Defense College. Entitled ‘Justice, Jihad and Duty: The Qur’anic Concept of Armed Conflict,’ it explores Islam’s stance on the validity of military force. Hayward focuses on the ethical directives contained within the Qur’an, interpreting them as an attempt to emphasise the sanctity of human life. Hayward concludes that Islam forbids all military conflict save in instances of self-defence. Even under such circumstances, all acts of war must be set within strict ethical boundaries akin to those characteristic of the West’s ‘Just War’ philosophy. Our second substantive article is my own, ‘Stoning as Punishment for Zina: Is it Valid?’ Addressing the controversial subject of stoning as an Islamic punishment for adultery (zina), I trace this ruling’s origin to the Sunnah, while noting that the Qur’an prescribes only 100 lashes. I conclude that the Prophet most likely applied stoning for zina prior to the revelation of the relevant Qur’anic passages, rendering its continued implementation doubtful. I recommend that: 1) in line with the Islamic legal principle that doubt suspends the implementation of hudud, death by stoning cease; 2) the maximum punishment for zina be set at the Qur’anic 100 lashes, both for married and unmarried persons alike; 3) more attention be paid to the high standards of proof set by the Qur’an for establishing zina (four eye witnesses); and 4) judges consider all relevant factors when trying a case of zina (including the nature of any existing relationship between parties, the use or otherwise of force, age, whether a first time offence, etc.). Mohammad Omar Farooq of the University of Bahrain contributes our third article, ‘The Farewell Sermon of Prophet Muhammad: An Analytical Review.’ According to tradition, the Farewell Sermon (khutbah al-wida) was delivered during the Farewell Hajj, to a gathering assembled at Mount Arafat. Subsequently, the principles contained within that address came to occupy a prominent position in Islamic teachings. Utilising a critical textual analysis, Farooq dismantles the text of this sermon, arguing that it actually represents a composite work constructed from multiple sayings of the Prophet, all made during his final pilgrimage. On this basis,
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Farooq proposes it be renamed the ‘Farewell Message’. This composite structure does not diminish the value of the text’s teachings, however, which Farooq recommends be more systematically integrated into the collective and individual behaviour of modern-day Muslims. Since these teachings are universal, Farooq also suggests disseminating them more widely amongst non-Muslims. ‘Globalisation, Human Rights and Islam: Competing Narratives and Discursive Practices in the Muslim World’ constitutes our fourth article, written by Asif Mohiuddin of the University of Kashmir (India). Drawing upon debates surrounding neo-imperialism, Mohiuddin re-examines the fluid and often tense relationship between Islam and global human rights. Arguing that these two entities actually share many commonalities, Mohiuddin proposes that their synergy be more fully realised via the creation of a truly global and multi-cultural human rights regime rooted in normative conventions upheld by international bodies. Mohiuddin recommends that: 1) Muslim nations develop and adopt a common body of basic human rights rooted in Islamic ideology; 2) Muslim nations embrace globalisation while also warding off hegemonic Western ideologies and institutions; 3) contemporary Muslim scholars cease to portray human rights as contradictory to Islamic values; 4) the existing global human rights discourse become more inter-civilisational; and 5) the relevance of human rights be more effectively underscored within the context of the politically and economically repressive realities of the Muslim World. Our fifth article, ‘Implications of Child Custody in Islamic Family Law: A Case Study of Customary Courts in Oyo State, Nigeria,’ is by Aminullahi Adetoro Yusuff of the Federal College of Education, Oyo. Taking his impetus from the bitter disputes that have characterised several child custody cases in Nigeria over recent years, Yusuff re-examines Islamic child custody law in order to settle several important misconceptions. He concludes by recommending that: 1) the results of his study be disseminated across Nigeria; 2) child custody be granted only to sane and healthy Muslims capable of providing for a child’s religious and social needs; 3) Nigeria’s Supreme Council for Islamic Affairs (SCIA) persuade the nation’s judiciary to enact laws obliging Nigerian courts to treat those appearing before them in accordance with their religious beliefs; 4) when deciding child custody cases, courts must consider the wishes, security and betterment of the child; and 5) Muslim children should not be adopted by people of other faiths for fear of conversion. Our final article, ‘Revisiting Traditional, Modern and Islamic Values when Addressing Haze Issues,’ is co-authored by Shahino Mah Abdullah and Muhammad Adha Shaleh, both Research Fellows at IAIS. Discussing the transboundary haze that has blighted Southeast Asia over recent years, the authors highlight the necessity of rooting any remedy to this problem in collective action cognisant of traditional wisdom and Islamic teachings. The paper recommends that: 1) a holistic approach to sustainable resource management be found; 2) local communities be empowered to
ISLAM AND CIVILISATIONAL RENEWAL EDITORIAL 265 manage their own natural resources effectively, with a focus on the use of traditional wisdom; 3) religious experts engage with local communities regarding the importance of environmental protection; 4) sustainable land use planning become the norm; 5) the rule of law be enforced; and 6) value-based investments be encouraged as a means of combatting irresponsible practices. We also carry five insightful viewpoints: ‘Licence to Operate in theHalal Market: A Matter of Alignment’ by Marco Tieman (HELP University, Malaysia); ‘Intelligent Robots and the Question of their Legal Rights: An Islamic Perspective’ by Shahino Mah Abdullah (IAIS); ‘Is Unilateral Conversion the Best Solution?’ by Mohamed Azam Mohamed Adil (IAIS); ‘The Moral Foundations of the Constitution’ by Tengku Ahmad Hazri (IAIS); and ‘Thinking Through Signs: The Ayah Zeitgeist’ by Elma Berisha (Asian Institute of Finance, Malaysia). Finally, let me extend my heart-felt appreciation to all of our authors. Their well- informed and enlightened contributions will, I feel sure, be of interest to scholars worldwide.
Mohammad Hashim Kamali Editor-in-Chief
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ISLAM AND CIVILISATIONAL RENEWAL ARTICLES
JUSTICE, JIHAD AND DUTY: THE QUR’ANIC CONCEPT OF ARMED CONFLICT
Joel Hayward *
Abstract: The Qur’an is among the most widely read books on earth, yet it is also commonly misunderstood and misquoted. Islam’s critics say that it contains exhortations of violence against non-Muslims and a concept of war that is far more unbridled and indiscriminate than the western Just War theory. This study is not a general overview or critique of the Islamic laws of war, which are the varied and sometimes contradictory opinions of medieval Islamic jurists ― mainly from the ninth to thirteenth centuries CE. Instead, this study analyses only the Qur’anic text itself and, by putting its verses into historical context, attempts to explain its codes of conduct in order to determine what it actually requires or permits Muslims to do in terms of the use of military force. It concludes that the Qur’an is clear: Muslims must not undertake offensive violence and are instructed, if defensive warfare should become unavoidable, always to act within a code of ethical behaviour that is closely similar to the western Just War tradition. This study attempts to dispel any misperceptions that Islam’s holy book advocates the subjugation or killing of non-Muslims and reveals that, on the contrary, its key and unequivocal concepts governing warfare are based on justice and a profound belief in the sanctity of human life. Keywords: Qur’an, Islam, war, jihad, qital, fighting, combat, scriptures, verse of the sword.
The world’s revulsion at the outrageous, barbaric and widespread violence perpetrated by the so-called Islamic State of Iraq and Syria (ISIS) as it sought to establish and expand its self-declared caliphate in Syria and Iraq strengthened a seemingly pervasive view that Islam is inherently violent, or at least that its laws and norms are more tolerant of violence than the other major religions. Even before the Bush Administration initiated a concentrated campaign against anti-American terrorists around the world in 2001 — a campaign which quickly came to be known as the War on Terror — several states including
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America and Israel had already experienced terrorism undertaken unmistakably by Muslims. For example, the bombings of American embassies in Nairobi and Dar es Salaam in 1998 brought Osama bin Laden and Ayman al-Zawahiri to the focused attention of American security services for the first time. These terrorists and their ideological bedfellows embraced an extreme minority opinion within Islam. According to that opinion, militant opposition to any ostensibly oppressive political activity which weakens Islamic states and their interests constitutes a fi sabi Lillah, literally ,يف سبيل الله) jihad) on God’s behalf ,جهاد) righteous struggle “in the path of Allah”). Yet these so-called jihadists did not garner much public interest until that dreadful day when nineteen of them hijacked four aircraft and carried out history’s worst single terrorist attack. It is impossible to deny that Western attitudes towards Islam changed for the worse at that time and have not returned to the way they were before 2001. Among widely held negative views of Islam is a perception (or at least a concern) that, while Western states adhere to the Just War tenets, other states and peoples, particularly Muslims in general and Arabs in particular, have no comparable philosophical framework for guiding ethical behaviour during international disputes and during warfare itself. According to this misperception, the Western code of war is based on restraint, chivalry and respect for civilian life, whereas the Islamic faith contains ideas on war that are more militant, aggressive, tolerant of violence, and indiscriminate. The atrocities conducted by ISIS between 2014 and 2017 advanced this misperception further, with beheadings, impalements, crucifixions and prisoner burnings creating the appearance that medieval barbarity could somehow be condoned by Islam. This study is not a general overview or critique of the Islamic laws of war, which are the varied and sometimes contradictory opinions of medieval Islamic jurists ― most from the ninth to thirteenth centuries CE. How those scholars later translated the Qur’an’s original framing concepts regarding the ,combatants, fighters) املحاربني and ,أهل القتال ,املقاتلني responsibilities and rights of non-fighters, non-warriors) into written) غري املحاربني and غري املقاتلني warriors) and laws and philosophies as part of the Islamic fiqh is covered elsewhere in books of jurisprudence. Instead, this study analyses only the Qur’an and attempts to explain its codes of conduct in order to determine what it actually requires or permits Muslims to do in terms of the use of military force. It concludes that the Qur’an is unambiguous: Muslims are prohibited from undertaking offensive violence and are compelled, if defensive warfare should become unavoidable, always to act within a code of ethical behaviour that is closely akin to, and compatible with, the Western warrior code embedded within the Just War doctrine. This study attempts to dispel any misperceptions that the holy book
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 269 of Islam advocates the subjugation or killing of unbelievers and reveals that, on the contrary, its key and unequivocal concepts governing warfare are based on justice and a profound belief in the sanctity of human life.
The Qur’an
Unfortunately, people do not tend to read the holy scriptures of other faiths so it is not surprising that, although Muslims constitute one-quarter of the world’s population,1 very few Muslims have studied the Jewish Tanakh, the Christian Bible or the Hindu Vedas and equally few non-Muslims have taken the time to study the Qur’an. Not many people ever even “dip” into other holy books to get a quick feel for the language, tone and message. Yet, given the geographical location of several major wars throughout the last two decades, the strategic importance of the Middle East, as well as the cultural origin of some recent terrorist groups, it is surprising that very few non-Muslims have read the Qur’an. It is a relatively short book of approximately 77,000 words, which makes it about the size of most thrillers or romance novels and roughly half the length of the New Testament or one-seventh the length of the Old.2 It is not deeply complex in its philosophy or written as inaccessible poetry or mystical and esoteric vagueness. Muslims believe that the Qur’an was revealed episodically by the angel Jibril (the biblical Gabriel) to Muhammad, a Meccan merchant in what is now Saudi Arabia, through a series of revelations from Allah, over a period of twenty-three years beginning in the year 610. Muhammad’s companions memorised and wrote down the individual revelations almost straight away and compiled them into the Qur’an’s final Arabic form within two decades of his death in 632. That Arabic version has not changed in the last fourteen hundred years. The Qur’an is therefore held by Muslims to be the very words of Allah, recorded precisely as originally revealed through Muhammad. This explains why most of the world’s 1.6 billion Muslims3 endeavour to learn at least the basics of Qur’anic Arabic so that they can read and more importantly hear Allah’s literal words as originally revealed.4 An impartial reading of the Qur’an will draw the reader’s eyes to hundreds of scriptures extolling tolerance, forgiveness, conciliation, inclusiveness and peace. These are the overwhelming majority of the scriptures and the central thrust of the Qur’anic message. A clear indication of that message is found in the fact that every one of the 114 Surahs (Chapters) of the Qur’an except one opens with a reminder of Allah’s loving and forgiving attitude towards humans: -Bismillahir Rahmanir Rahim, “In the name of God the All) ِب ْس ِم ِالله َّالر ْح ٰم ِن َّالر ِحيْ ِم Compassionate and the Ever-Merciful”). Muslims believe that the compassion
ICR 9.3 Produced and distributed by IAIS Malaysia 270 JOEL HAYWARD and forgiveness extended by God to humans must be mirrored as much as is humanly possible by their compassion and forgiveness to each other. Yet readers will also find verses in the Qur’an that seem to be “Old Testament” in tone and message and are more warlike than, for example, Christians are used to reading in the words of Christ and the New Testament writers. Critics of the Qur’an who advance what I consider to be an unsustainable argument that Islam is the world’s most warlike major faith — among whom the American scholar and blogger Robert Spencer is both the most prolific and influential5 — routinely highlight those Qur’anic passages to support their argument that Islam has a clear tendency towards aggressive and indiscriminate war, not inclusive peace.6 These writers commonly focus their attention on a few passages within the Qur’an which seem to suggest that Allah encourages Muslims to subjugate or drive out non-Muslims — and even to take their lives if they refuse to yield. The critics especially like to quote Surah 9, Ayah (Verse) 5, which has become known Ayat al-Sayf). This verse explicitly enjoins ,آية السيف) ”as the “Verse of the Sword Muslims to “kill pagans wherever you find them, and seize them, beleaguer them, and lie in wait for them in every stratagem [of war].”
فَاقْتُلُواْ الْ ُم ْ ِش ِك َني َحيْ ُث َو َج ُّدت ُُوه ْم َو ُخ ُذ ُوه ْم َو ْاح ُ ُص ُوه ْم َواقْ ُع ُدواْ لَ ُه ْم َّكُل َم ْر َص ٍد َحيْ ُث َو َج ُّدت ُُوه ْم 7ٍ َو ُخ ُذ ُوهم َو ْاح ُ ُص ُوه ْم َواقْ ُع ُدواْ لَ ُه ْم َّكُل َم ْر َصد The critics often add to their condemnation of the aforementioned Surah 9:5 with equally strong attacks on Surah 9:29. This verse directs Muslims to “fight قَاتِلُواْ الَّ ِذ َين الَ يُ ْؤ ِم ُن َون ِباللّ ِه َوالَ) ”those who believe not in Allah and the Day of Judgment who do not comply with Muslim laws, as well as those Jews and Christians ,( ِبالْيَ ْو ِم ), a state taxجزية) who reject the religion of Islam and will not willingly pay jizya after their submission.8 Many critics assert that this verse directs Muslims to wage war against any and all disbelievers anywhere who refuse to embrace Islam or at least to submit to Islamic rule.9 The critics also place negative focus on Surah 2 : 1 9 0 - 1 9 4 , w h i c h s t a t e s :
َوقَاتِلُواْ ِيف َس ِبِيل اللّ ِه الَّ ِذ َين يُ َقاتِلُونَ ُك ْم َوالَ تَ ْعتَ ُدواْ ۚ ِإَّن اللّ َه الَ يُ ِح ِّب الْ ُم ْعتَ ِد َين ﴿190﴾ َواقْتُلُ ُوه ْم َحيْ ُث ثَ ِقفْتُ ُم ُوه ْم َوأَ ْخ ِر ُج ُوهم ِّم ْن َحيْ ُث أَ ْخ َر ُج ْوكُم ۚ َوالْ ِفتْ َن ُة أَ ُّشَد ِم َن الْ َقتْ ِل ۚ َوالَ تُ َقاتِلُ ُوه ْم ِع َند الْ َم ْس ِج ِد الْ َح َر ِام َحتَّى يُ َقاتِلُ ْوكُم ِف ِيه ۖ فَ ِإن قَاتَلُ ْوكُم فَاقْتُلُ ُوه ْم ۗ َكَذلِ َك َج َزاء الْ َك ِاف ِر َين ﴿191﴾ فَ ِإ ِن انتَ َه ْواْ فَ ِإَّن اللّ َه َغ ٌفُور َّر ِح ٌيم﴿192﴾ َوقَاتِلُ ُوه ْم َحتىَّ الَ تَ ُك َون ِفتْ َن ٌة َويَ ُك َون ِّالد ُين لِلّ ِه ۖ فَ ِإ ِن انتَ َهواْ فَالَ ُع ْد َو َالان ِإَّ َعلَ الظَّالِ ِم َني﴿193﴾ 190. Fight in the cause of Allah those who fight you, but do not
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 271
transgress limits: for Allah does not love the transgressors.
191. And slay them wherever you catch them, and turn them out from where they have turned you out; for tumult and oppression are worse than slaughter; but fight them not at the Sacred Mosque [in Mecca], unless they [first] fight you there; but if they fight you, kill them. Such is the reward of those who suppress faith. 192. But if they cease, then Allah is Oft-forgiving, Most Merciful.
193. And fight them on until there is no more tumult or oppression, and there prevail justice and faith in Allah; but if they cease, let there be no hostility except to those who practise oppression.
You could not imagine gentle Buddha or the peaceful, cheek-turning Jesus ever saying such things ― the critics of Islam assert ― ignoring the heavily martial spirit and explicit violence of some sections of the Old Testament; a revelation passionately embraced in its entirely by Jesus. They also brush off some of Jesus’ seemingly incongruous statements as being allegorical and metaphorical — such as Luke 22:36, wherein Jesus encourages his disciples to sell their garments so that they can purchase swords, and Matthew 10:34 (“Do not think I come to bring peace on earth. I did not come to bring peace, but a sword”).10 The opponents of the Qur’an’s message place little importance on the obvious differences of experiences and responsibilities between Jesus and Muhammad. Jesus was the spiritual leader of a small and intimate group of Jewish followers at a time of Roman occupation but relative peace and personal security throughout the land. He suffered death, according to the Christian scriptures, but his execution by the Rome-governed state came after a short burst of state anger that actually followed several years of him being able to preach throughout the land without severe opposition and with no known violence. By contrast, the Prophet Muhammad found himself not only the spiritual leader but also the political and legislative leader of a massive community that wanted to be moderate, just and inclusive but suffered bitter organised persecution and warfare from other political entities which were committed to his community’s destruction. Like Moses, Joshua and David, his responsibilities included the sustenance, education, governance and physical protection of tens of thousands of children, men and women. A double-standard also seems to exist. Many of the scholars and pundits who dislike the fact that Muhammad had to fight military campaigns during his path to peace, and who consider his religion to be inherently martial, overlook the fact that many biblical prophets and leaders — including Moses, Joshua, Samson, David and other Sunday School favourites — were also warriors through
ICR 9.3 Produced and distributed by IAIS Malaysia 272 JOEL HAYWARD necessity. Despite our Children’s Book image of these warriors, their actions included frequent killing and were sometimes couched in highly bloodthirsty language. For example, the Book of Numbers (31:15-17) records that Moses ordered war against the Midianites, his wife’s own people, but was gravely disappointed when, after having slain all the men, his warriors chose not to kill the women. He therefore instructed his warriors to kill every male child and to leave alive no females except virgins, whom the Israelites were allowed to keep as slaves. This hardly fits with our Charlton Heston-esque view of a very popular Jewish and Christian prophet. It is worth observing that among the scriptures that form the bedrock and bulk of the Judeo-Christian tradition — the Old Testament — one can find numerous verses like these that explicitly advocate (or at least once advocated) large- scale violence incompatible with any codes of warfare that Jews and Christians would nowadays condone. For instance, when Joshua led the Israelites into the Promised Land and promptly laid siege to Jericho, which was the first walled city they encountered west of the Jordan River, “they destroyed with the sword every living thing in it — men and women, young and old, cattle, sheep and donkeys.”11 The lack of what we would today call discrimination between combatants and non-combatants accorded with God’s earlier commandment that, in areas which God had set aside for their occupation, the Israelites were to ensure that, “without mercy,” they did not leave alive “anything that breathed.”12 The ancient world was certainly brutal at times, with military excesses sometimes involving deliberate widespread violence against whole civilian communities. “It is a wonderful sight,” Roman commander Scipio Aemilianus Africanus gushed in 146 B.C. as he watched his forces raze the enemy city of Carthage to the ground following his order that no trace of it should remain. “Yet I feel a terror and dread lest someone should one day give the same order about my own native city.”13 No-one can doubt that humanity has since made tremendous progress in the way it conceives the purpose and nature of warfare and the role and treatment of non-combatants. Yet we would be wrong to believe that the “Carthaginian approach” has disappeared entirely. The Holocaust of Jews during World War II, history’s largest mass murder of civilians, involved the intended murder of around six million Jews by Germans and others who considered themselves Christians or at least members of the Christian value system. Other crimes perpetrated by Christians during recent wars have included the (Orthodox Christian) Bosnian Serb massacre of 8,300 Bosnian Muslim men and boys in and around the town of Srebrenica in July 1995. A fair assessment of historical evidence reveals that Christianity is a faith of justice that cannot reasonably be considered blameworthy in and of itself for
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 273 the Crusades, the Holocaust, the Srebrenica massacre or the Timothy McVeigh terrorist attack in Oklahoma City in 1995, even though Christians committed those horrendous acts and many others. Similarly, a fair assessment of Islam reveals that it is equally a faith of justice that cannot fairly be seen as blameworthy in and of itself for the Armenian Genocide, the Iran-Iraq War, Saddam Hussein’s invasion of Kuwait, the Al-Qaeda attacks on America in 2001 or the ISIS atrocities between 2014 and 2017, even though Muslims committed those disgraceful deeds. Certainly Islam’s framing scriptures, the Qur’an, contains no verses which are as violent as the biblical scriptures quoted above or any Qur’anic verses more violent than those already quoted. In any event, even the most ostensibly violent Qur’anic verses have not provided major Islamic movements, as opposed to impassioned minority splinter groups, with a mandate to wage aggressive war or to inflict disproportionate or indiscriminate brutality.
Understanding Abrogation
While Muslims hold the Qur’an to be God’s literal, definitive and final revelation to humankind, they recognise that it is not intended to be read as a systematic legal or moral treatise. They understand it to be a discursive commentary on the stage-by-stage actions and experiences of the Prophet Muhammad, his ever- increasing number of followers and his steadily decreasing number of opponents over the twenty-three year period which took him from his first revelation to his political hegemony in the Hijaz region of Arabia.14 Consequently, several legal rulings within the Qur’an emerged or developed in stages throughout that period, with some early rulings on inheritance, alcohol, law, social arrangements and so on being superseded by later passages; a phenomenon known in Arabic as that the Qur’an itself describes. For example, Surah 2:106 reveals (نسخ) ”naskh“ that when Allah developed any particular legal ruling beyond its first revelation and He therefore wanted to supersede the original verses, He would replace them with clarifying verses. The removal or annulment of one legal ruling by a subsequent legal ruling in some instances certainly does not mean that Muslims believe that all later scriptures automatically cancel out or override everything, on all issues, that had appeared earlier. The Qur’an itself states in several Surahs that Allah’s words (ِلَِّّلناس) ”constitute a universally applicable message sent down for “all mankind to all (بَ ِشرياً َونَ ِذيراً) ”and that it was “a reminder with both “glad tidings and warnings of humanity.15 With this in mind, Muslims believe that to ignore scriptures on the basis of a that-was-then-this-is-now reading would be as mistaken as conversely believing that one can gain meaning or guidance from reading individual verses
ICR 9.3 Produced and distributed by IAIS Malaysia 274 JOEL HAYWARD in isolation, without seeing how they form parts of consistent concepts which only emerge when the entire book is studied. Adopting either approach would be unhelpful, self-serving and ultimately misleading. It is only when the Qur’an’s key concepts are studied holistically, with both an appreciation of the context of particular revelations and the consistency of ideas developed throughout the book as a whole, that readers will be able to understand the Qur’an’s universally applicable ethical system. Islam’s critics take a different view. Incorrectly believing that all later Qur’anic scriptures modify or cancel out all earlier ones, they have devised an unusual narrative. They argue that, in the early years of his mission while still in his hometown of Mecca, the powerless Muhammad strongly advocated peaceful co- existence with peoples of other faiths, particularly Jews and Christians. Despite mounting resistance and persecution, some of it violent and all of it humiliating, Muhammad had to advocate an almost Gandhian or Christ-like policy of forbearance and non-violence. Then, after he and his followers fled persecution in 622 by escaping to Medina, where they had more chance of establishing a sizeable and more influential religious community, the increasingly powerful Muhammad became bitter at his intransigent foes in Mecca and ordered warfare against them.16 Finally (the critics claim), following the surprisingly peaceful Islamic occupation of Mecca in 630, the all-powerful Muhammad realised that Jews and others would not accept his prophetic leadership or embrace Islamic monotheism, so he then initiated an aggressive war against all disbelievers.17 The critics furthermore claim that, because Muhammad did not clarify or change his position before he died two years later, in 632, after Allah’s revelation to mankind was complete, the verses encouraging the martial suppression of disbelief (that is, of the disbelievers) are still in force today. These supposedly include the so- called “verse of the sword” of Surah 9:5 (and 29), quoted above and revealed to Muhammad in the year 631.18 As scholar David Bukay, a strong critic of Islam, wrote: Coming at or near the very end of Muhammad’s life … [Surah 9] trumps earlier revelations. Because this chapter contains violent passages, it abrogates previous peaceful content.19
Islam’s critics who hold this view insist that these warlike verses abrogate (cancel out) the scores of conciliatory and non-confrontational earlier verses which had extolled spiritual resistance (prayer and outreach) but physical non- violence. They note that Osama bin Laden and other leading radical “Islamists” — who also insist that the later Qur’anic verses on war have cancelled out the earlier peaceful and inclusive verses — have justified their terror attacks on America and
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 275 other states by quoting from the “verse of the sword” and the other reportedly aggressive scriptures mentioned above. Bin Laden certainly did draw upon the verse of the sword and other seemingly militant Qur’anic scriptures in his August 1996 “Declaration of War against the Americans occupying the Land of the Two Holy Places”20 as well as in his February 1998 fatwa.21 The first of thesefatawa (verdicts) instructed Muslims to kill Americans until they withdrew from their occupation of Saudi Arabia, and the second more broadly instructed them to kill Americans (both civilians and military personnel) and their allies, especially the Israelis, for their suppression of Muslims and their exploitation of Islamic resources in various parts of the world. Of course, the obviously partisan Bin Laden was not a cleric, a religious scholar or a historian of early Islam. He was a murderous extremist without judgement or moderation. Like Abu Bakr al-Baghdadi the ISIS leader, Bin Laden was not representative of Islamic belief or behaviour and he has no recognised status as an authority in Islamic Sciences that would allow him to issue a fatwa. His assertions that the verse of the sword and other martial Qur’anic verses are still in place and universally applicable therefore do not hold a shred of authority or credibility, except perhaps among already-radicalised fanatics who share his worldview and consider him worth following. Thankfully they are very few in number. Certainly most Islamic authorities on the Qur’an and Prophet Muhammad today, as opposed to scholars from, say, the war-filled medieval period, are firm in their judgement that the most warlike verses in the Qur’an, even those revealed very late in Muhammad’s mission, do not cancel out the overwhelming number of verses that extol tolerance, reconciliation, inclusiveness and peace.22 For example, according to British scholar Zakaria Bashier (author of many books on early Islam including a thorough analysis of war), all the beautiful verses throughout the Qur’an which instruct Muslims to be peaceful, tolerant and non- aggressive are: Muhkam [clear in and of themselves] verses, i.e. definite, not allegorical. They are not known to have been abrogated, so they naturally hold. No reason exists at all to think that they have been overruled.23
Bashier adds that even the contextual information revealed within the Qur’an itself will lead readers to the inescapable conclusion that the verse of the sword related only to a particular time, place and set of circumstances, and that, in any event, claims of it superseding the established policy of tolerance are “not borne out by the facts of history.”24 British scholar Louay Fatoohi agrees, arguing that an “overwhelming majority” of Muslim scholars reject the abrogation thesis
ICR 9.3 Produced and distributed by IAIS Malaysia 276 JOEL HAYWARD regarding war.25 Fatoohi highlights the fact that throughout history the Islamic world has never acted in accordance with this extreme view. He observes that Muslims have almost always co-existed very well with other faith communities and that the 1600 million peaceable Muslims in the world today clearly do not accept the view otherwise, if they did, they would all be at war as we speak. Muhammad Abu Zahra, an important and influential Egyptian intellectual and expert on Islamic law, summed up the mainstream Islamic view by rejecting any abrogation thesis pertaining to conflict and stating that “War is not justified … to impose Islam as a religion on unbelievers or to support a particular social regime. The Prophet Muhammad fought only to repulse aggression.”26
Explaining the Verse of the Sword
It is quite true that, taken in isolation, Surah 9:5 (the verse of the sword) seems an unusually violent pronouncement for a Prophet who had for twenty years preached tolerance, peace and reconciliation. Yet it is equally true that, when read in the context of the verses above and below Surah 9:5, and when the circumstances of its pronouncement by Muhammad are considered, it is not difficult for readers without preconceptions and bias to understand it more fully. Here is the verse again:
فَ ِإ َذا َانسلَ َخ األَ ُشْه ُر الْ ُح ُر ُم فَاقْتُلُواْ الْ ُم ْ ِش ِك َني َحيْ ُث َو َج ُّدت ُُوه ْم َو ُخ ُذ ُوه ْم َو ْاح ُ ُص ُوه ْم َواقْ ُع ُدواْ لَ ُه ْم َّكُل َم ْر َص ٍد ۚ ْفإن تَابُواْ َوأَقَ ُامواْ َّالصالَةَ َوآتَ ُواْ َّالزكَاةَ فَ َخلُّواْ َسبِيلَ ُه ْم ۚ ِإَّن اللّ َه َغ ٌفُور َّر ِح ٌيم﴿5﴾ 5. Then when the forbidden months are past, then fight and slay the pagans wherever you find them, and seize them, beleaguer them, and lie in wait for them in every stratagem [of war]. …
The fact that the verse actually starts with the Arabic adverb “fa,” translated above as “then,” indicates that its line of logic flows from the verse or verses above it. Indeed, the preceding four verses explain the context. Ayah 1 gives the historical context as a violation of the Treaty of Hudaybiyyah, signed in 628 by the State of Medina and the Quraysh tribe of Mecca. In short, this was a peace treaty between Muhammad and his followers and those Meccans who had spent a decade trying to destroy them. Two years after the treaty was signed, the Banu Bakr tribe, which had allied with the Quraysh, attacked the Banu Khuza’a tribe, which had joined the side of the Muslims. Muhammad considered the Banu Bakr attack a treaty violation, arguing that an attack on an
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 277 ally constituted an attack on his own community.27 Then, following his extremely peaceful seizure of Mecca and his purification of its holy site (he destroyed no fewer than 360 idols in the Ka’aba), the Qur’anic revelation contained a very stern warning. Other sources reveal that Muhammad then explained it publicly from the steps of the Ka’aba and sent out deputies to the regions around Mecca to destroy pagan shrines and idols and utter the warnings to local communities.28 The scriptural warning was clear: anyone wanting to undertake polytheistic pilgrimages to Mecca (or immoral rituals within it, such as walking naked around the Ka’aba29) in accordance with existing agreements with the Quraysh tribe or with Muhammad’s own community should understand that henceforth they would not be permitted to do so. No polytheism (worship of more than one god) and idolatry (worship of any man or object instead of the one god) would ever again be tolerated within Islam’s holy city. From that time on it would be a city devoted to Allah alone.30 As Surah al-Tawbah 9:17 and 18 says:
َما َكَان لِلْ ُم ْ ِش ِك َني أَن يَ ْع ُم ُرواْ َم َس ِاج َد الله ِشَاه ِد َين َعلَ أَ ِنفُس ِه ْم ِبالْ ُك ِفْرۚ أُ ْولَ ِئ َك َحبِطَ ْت أَ ْع َملُ ُه ْم َو ِيف َّالن ِار ُه ْم َخالِ ُد َون ﴿17﴾ ِإَّنَا يَ ْع ُم ُر َم َس ِاج َد اللّ ِه َم ْن َآم َن ِباللّ ِه َوالْيَ ْو ِم ِاآلخ ِر َوأَقَ َام َّالصالَةَ َوآتَ َّالزكَاةَ َولَ ْم يَ ْخشَ ال ِإَّ اللّ َه ۖ فَ َع َس أُ ْولَ ِـئ َك أَن يَ ُكونُواْ ِم َن الْ ُم ْهتَ ِد َين ﴿18﴾ 17. It is no longer proper for idolaters to attend Allah’s mosques, since they have admitted to their unbelief. … 18. Allah’s mosques should be attended only by those who believe in Allah and the Last Day, who observe prayer and give alms and fear none but God….
Ayat 2 and 3 were revealed through Muhammad to give polytheists or idolaters living in Mecca and its environs as well as any polytheistic or idolatrous pilgrims in transit along Muslim-controlled trade and pilgrimage routes a clear warning that they should desist or leave. The scriptures generously included a period of amnesty that would last until the end of the current pilgrimage season. Thus, Arab polytheists and idolaters would gain a four-month period of grace. Ayah 4 makes clear that during that period of amnesty, polytheists or idolaters were to be left untouched so that Muslims would not themselves become promise-breakers. (“So fulfil your engagements with them to the end of the term; for Allah loves After clarifying that the (فَأَِتُّواْ ِإلَيْ ِه ْم َع ْه َد ُه ْم ِإلَ ُمَّدتِ ِه ْم ِإَّن اللّ َه يُ ِح ُّب الْ ُمتَّ ِق َني ,”the righteous threatened violence would apply only to those who had ignored the warnings and continued to practice polytheism or idolatry in and around the holy city and its
ICR 9.3 Produced and distributed by IAIS Malaysia 278 JOEL HAYWARD sanctuary, and were still foolish enough not to have left after four months, Ayah 5 — the sword verse — clearly warned them that there would be a violent military purging or purification in which they seriously risked being killed. Although this is sometimes omitted by critics of the Verse of the Sword, the verse actually has a secondary clause which, after the direction to root out and kill anyone who had ignored the clear and solemn warnings and continued their polytheism or idolatry in the sacred city, enjoined Muslims to remember that to those who repented (فَ َخلُّواْ َسبِيلَ ُه ْم ,”they must be merciful (“to open the way and accepted their penitent obligations in terms of Islam. Moreover, the Verse of the Sword is immediately followed by an unusually charitable one — again ordinarily left out of Islam-critical treatments — in which any of the enemy who asked for asylum during any coming violence were not only to be excluded from that violence, but were to be escorted to a place of safety.
َو ِإن أَ َح ٌد ِم َن املُ ِش َكني استَ َجارَك فَأَ ِج ُره َحتّ ٰى يَ َسم َع َكَالم اللَّ ِه ثَُّم أَ ِبل ُغه َم َأم َن ُه ۚ ٰذلِ َك ِبأَنَّ ُهم قَ ٌوم ال يَعلَ َمون ﴿6﴾ 6. If anyone among the Pagans asks you for protection, grant it to him, so that he may hear the word of Allah; and then escort him to where he can be secure. That is because they are people who do not know [the truth about Islam].31
The rest of Surah 9 contains more explanation for the Muslims as to why they would now need to fight, and fiercely, anyone who broke their oaths or violated the sanctity of holy places, despite earlier hopes for peace according to the terms , pledge of loyalty) made toبَيَْعة) of the Treaty of Hudaybiyyah and the bay‘ah Muhammad when he entered Mecca. Clearly, this surah is not requiring violence against all unbelievers, but only those who broke their agreements, as Ayah 12 makes clear:
َو ِإن نَ َكثوا أَميانَ ُهم ِمن بَ ِعد َع ِهد ِهم َوطَ َعنوا يف ِدين ُكم فَقاتِلوا أَ ِئَّ َة ُالك ِفر ِإنَّ ُهم ال أَ َميان لَ ُهم لَ َعلَّ ُهم يَنتَ َهون ﴿12﴾ 12. And if they break their oaths after their agreement and revile your religion, then fight the leaders of unbelief ― surely their oaths are nothing ― so that they may desist.
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 279
The “controversial” Ayah 29, which talks of killing polytheists and idolaters, actually comes right after Ayah 28, which speaks specifically about preventing them from performing religious rituals or pilgrimages in or around the newly purified sanctuary in Mecca. Ayah 29 thus also refers to the purification of Mecca and its environs as well as to the need to secure the borders of the Arabian Peninsula from greater external powers which might smother the Islamic polity in its infancy. The rest of Surah 9, revealed a little later, also contains scriptures relating to the campaign against Tabuk, when some groups which had treaty obligations with Muhammad broke their promises and refused to join or sponsor the campaign. It is worth noting that, in this context also, Muhammad chose to forgive and impose a financial, rather than physical, penalty upon those who genuinely apologised.32 It is clear, therefore, that the Verse of the Sword was a context-specific verse relating to the purification of Mecca and its environs of all Arab polytheism and idolatry so that the sanctuary in particular, with the Ka’aba at its centre, would never again be rendered unclean by the paganism of those locals and pilgrims who had long been worshipping idols there.33 It was proclaimed publicly as a warning, followed by a period of grace which allowed the wrong-doers to desist or leave the region, and qualified by humane caveats that allowed for forgiveness, mercy and protection. It is thus not bloodthirsty or unjust, as Robert Spencer and his colleagues portray it. Indeed, it is so context-specific that, even if itwere still in force — and I share the assessment that it has not abrogated the scriptures encouraging peace, tolerance and reconciliation — it would only nowadays have any relevance and applicability if polytheists and idolaters ever tried to undertake and re-establish pagan practices in the Saudi Arabian cities devoted only to Allah: Mecca and Medina. In other words, in today’s world it is not relevant or applicable. Critics apparently fail to grasp the specific nature of the context — the purification of Mecca from polytheistic and idolatrous pilgrimages and rituals — and even misquote the famous medieval Islamic scholar Isma’il ibn ‘Amr ibn Kathir al-Dimashqi, known popularly as Ibn Kathir. Spencer claims that Ibn Kathir understood the Verse of the Sword to abrogate all peaceful verses ever previously uttered by the prophet.34 Ibn Kathir said no such thing. He quoted an earlier authority, Ad-Dahhak ibn Muzahim, who only stated that the Verse of the Sword cancelled out every treaty which had granted pilgrimage rights to Arab pagans to travel along Islamic routes, enter Mecca and perform unpalatable rituals there.35 Because this earlier source referred to the Verse of the Sword “abrogating” something, Spencer mistakenly extrapolates this to claim that this one single verse cancelled out all existing inter-faith practices and arrangements and that it forever negatively changed attitudes to non-Muslims in general.
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In case any readers are not convinced, there is another verse in the Qur’an — also from the later period of Muhammad’s life — which (using words virtually identical to the Verse of the Sword) also exhorted Muslims to “seize and slay” Yet this .( َحيْ ُث َو َجَّدت ُُوه ْم) ”wrongdoers “wherever ye find them (فَ ُخ ُذ ُوه ْم َواقْتُلُ ُوه ْم) verse, Surah al-Nisaa 4:89, is surrounded by so many other explanatory and qualifying verses that its superficially violent meaning is immediately moderated by its context of tolerance and understanding. First, it threatened violence in self-defence only against those people or groups who violated pacts of peace with the Muslims and attacked them, and those former Muslims (backsliders from the Banu Ghatafan and Banu Asad tribes) who had re-joined the forces of oppression and now fought aggressively against the Muslims. Secondly, it stated that, if those aggressors left the Muslims alone and free to practice their faith, and if they did not attack them, but offered them peaceful co-existence, then Allah would not allow Muslims to harm them in any way (lit. “Allah hath opened no way for you against them”, 36 The verse went even further. It not only offered .(ًفَ َم َج َعلَ اللُّه لَ ُك ْم َعلَيِْه ْم َسبِيال peaceful co-existence to those who formally made peace with the Muslims, but also to anyone, even backslidden Muslims, who merely chose to stay neutral; that is, who did not take either side in the tense relations between the Muslims on the one hand and the Quraysh and their allies on the other.37
The Just Cause: Self-defence
It is worth remembering that, for the first twelve or more years of his public life (from 610 to 622 or 623), Muhammad had practiced and proclaimed a policy of peaceful non-resistance to the intensifying humiliation, cruelty, and violence that the Quraysh, the dominant tribe of Mecca, attempted to inflict upon him and his fellow Muslims. As Ibn Hisham writes: “The Prophet had not been permitted to fight or shed blood … He had simply been ordered to call men to Allah, to be patient when harmed, and to forgive the ignorant.”38 Throughout that period he had strenuously resisted “growing pressure from within the Muslim ranks to respond in kind” and insisted “on the virtues of patience and steadfastness in the face of their opponents’ attacks.”39 The persecution at one point was so severe that Muhammad had to send two groups of followers to seek refuge in Abyssinia. Even after he and the rest of his followers fled the persecution in Mecca and settled in Medina in 622, the developing ummah (Islamic community), experienced grave hardship and fear. Some of the non- Muslims in Medina passionately resented the presence of Muslims and conspired to expel them. From Mecca, the Quraysh tribe and its allies waged a relentless
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 281 campaign of hostility against Muhammad and the Muslims, who had now become a rival power and a threat to his lucrative trade and pilgrimage arrangements. The confederation of hostile tribes sought no accommodation whatsoever with Muhammad. In their minds, and according to the norms of Arabic tribal warfare,40 the only solution was the ummah’s eradication. Describing his intention to destroy the Islamic polity, the Quraysh leader Abu Sufyan ibn Harb once told Muhammad in a letter: “In the name of God, I swear by al-Lat and al-‘Uzza [his pagan gods], surely I came to you with my allies and indeed, we vowed not to return until we had eliminated you.”41 At one point, Abu Sufyan had even sworn to abstain from sexual relations until he had attacked and defeated the Islamic polity.42 It was not just military defeat he sought, but “extermination” also. Shortly after the migration of Muslims to Medina in 622 CE, Muhammad finally announced a revelation from Allah that Muslims were allowed physically to defend themselves to preserve themselves through the contest of arms. Most scholars agree that Surah al-Hajj 22:39 contains that first transformational statement of permission.43 Including the verses above and below, it says:
ِإَّن اللَّ َه يُ ِداف ُع َع ِن الَّ َذين َآمنوا ۗ ِإَّن اللَّ َه ال يُ ِح ُّب َّكُل َخ ّو ٍان ٍكَفور﴿38﴾ أُ ِذ َن لِلَّ َذين يُقاتَ َلون ِبأَنَّ ُهم ظُ ِلموا ۚ َو ِإَّن اللَّ َه َع ٰل نَ ِص ِهم لَ َق ٌدير﴿39﴾ الَّ َذين أُ ِخرجوا ِمن ِد ِيار ِهم ِب َغ ِري َح ٍّق ِإ ّ ال أَن يَقولوا َربُّ َنا اللَّ ُه ۗ َولَوال َد ُفع اللَّ ِه ّالن َاس بَ َعض ُهم ِببَ ٍعض لَ ُه ِّد َمت َص ِوام ُع َو ِبيَ ٌع َو َصلَ ٌوات َو َم ِساج ُد يُ ُذكَر َفيها ُاسم اللَّ ِه ًكَثريا ۗ َولَيَ ُ َنصَّن اللَّ ُه َمن يَ ُ ُنص ُه ۗ ِإَّن اللَّ َه لَ َق ِو ٌّي َع ٌزيز ﴿40﴾ 38. Truly Allah will defend those who believe: truly, Allah does not love anyone who is a traitor to faith, or shows ingratitude. 39. To those against whom war is made, permission is given [to fight], because they are wronged — and truly, Allah is Most Powerful for their aid. 40. [They are] those who have been expelled from their homes in defiance of right except that they say, “Our Lord is Allah” …
These verses continue by pointing out that, had not Allah in previous eras allowed people to defend themselves from the aggression and religious persecution of others, there would surely have been the destruction of “monasteries, churches, synagogues and mosques, in which the name of Allah is commemorated in abundant measure.” The verses add that Allah will surely aid those who aid him, and that he is truly mighty and invincible.
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The references to defending the faithful from harm in Ayah 38, to those on the receiving end of violence in Ayah 39 and those who have been driven from their homes in Ayah 40 reveal very clearly that Allah’s permission to undertake armed combat was not for offensive war, but self-defence and self-preservation when attacked or oppressed. Qur’anic exegetes (textual analysts) believe that this divine permission to fight coincides with the Prophet Muhammad’s declaration of unity issued shortly after arriving in Medina, a town populated by competing and sometimes warring Jewish and pagan Arab tribes. Wanting to create “a single community to the ”he drafted a “constitution ,(”انھم امۃ واحدۃ من دون الناس“) ”exclusion of other people that would bind all these tribes together as a community in terms of what we now call domestic and foreign policies. This constitution — the text of which survives in Ibn Hisham’s Al-Sirah al-Nabiwiyyah and Abu ʿUbayd al-Qasim ibn Sallam’s Kitab al-Amwal — contains a mutual defense pledge.44 Should one tribe within the new community be attacked, the others would come to its aid. ,qital ,قتال This permission for self-defensive warfighting (the Arabic word is or combat) corresponds precisely with the first Qur’anic passage on war that one reads when one starts from the front cover: Surah 2:190, which, as quoted above, states: “Fight in the cause of Allah those who fight you, but do not transgress limits: for Allah does not love the transgressors.” Thus, the purpose of armed combat was self-defence and, even though the need for survival meant that warfare would be tough, combat was to adhere to a set of prescribed constraints.45 The following verse’s instruction to “slay them” wherever they turn up commences with the conjunction “wa,” here translated as “and,” to indicate that it is a continuation of the same stream of logic. In other words, Muslims were allowed to defend themselves militarily from the forces or armies which were attacking them wherever that happened. Tremendous care was to be taken not to shed blood in the environs of Mecca’s sacred mosque, but if Muslims found themselves attacked there they could kill their attackers while defending themselves without committing a sin. This series of verses actually ends with instructions that, if the attackers ceased their attacks, Muslims were not to continue to fight them because Allah is “Oft-forgiving, Most Merciful.”46 Thus, continued resistance could — and nowadays can — only be a proportionate response to continued serious direct oppression.47 In every Qur’anic example in which warfighting (qital) is encouraged for protection against serious direct oppression or violence, verses can be found that stress that, should the wrongdoers cease their hostility, then Muslims must immediately cease their own fighting. The Qur’anic permission for defensive resistance to attacks or serious direct oppression does not mean that Muhammad enjoyed war, or took pleasure
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 283 whatsoever in the fact that defensive warfare to protect his ummah from extinction or subjugation would involve the loss of even his enemies’ lives. He was no warmonger and forgave and pardoned mortal enemies whenever he could. This “reluctant warrior,” to quote one scholar, urged the use of nonviolent means when possible and, often against the advice of his companions, sought the early end of hostilities.48 At the same time, in accordance with the revelations he had received, he accepted that combat for the defence of Islam and Islamic interests would sometimes be unavoidable. Hadiths record Muhammad instructing his followers not to look forward to combat, but if it were to come upon them then they should pray for safety and remain patient.49 Critics of Islam are fond of quoting Surahs that seem to reveal a certain savagery that today seems bloodcurdling to them. They often quote Surah Muhammad 47:4,
فَ ِإذا لَقيتُ ُم الَّ َذين كَفَروا فَ َض َب ِّالر ِقاب َحتّ ٰى ِإذا أَ َثخنتُ ُموهم فَ ُّشُدوا َالو َثاق فَ ِإ ّما َم ًّنا بَ ُعد َو ِإ ّما ِف ًداء َحتّ ٰى تَ َض َع َالح ُرب أَ َوزارها ۚ ٰذلِ َك َولَو يَ ُشاء اللَّ ُه َ النتَ َ َص ِم ُنهم َولٰ ِكن لِيَبلُ َو بَ َعض ُكم ِببَ ٍعض ۗ َوالَّ َذين قُ ِتلوا يف َس ِبيل اللَّ ِه فَلَن يُ ِضَّل أَعملَ ُهم ﴿4﴾ 4. So when ye meet [in combat] those who disbelieve, you can strike at their necks until, when you have subdued them, you can bind them [as prisoners of war], and [for them] afterward shall be either magnanimity or ransom until the burdens of the war are over. That is it. And if Allah had willed He could have punished them, but [thus it is] that He may test some of you by means of others. And those who are slain in the way of Allah, will not lose their good deeds.50
In Surah 8:12 the Qur’an likewise commands soldiers in battle to strike at necks and fingers. Although these verses may seem out of place in a religious text, they are not out of place within advice given by a military commander before a battle. That was precisely the context of those particular revelations. Muhammad’s community had not yet fought a battle or formed a standing army and those Muslims who were about to become warriors needed to be taught how to kill immediately and humanely. Decapitation, as opposed to wild slashes at limbs or armoured bodies, ensured humane killing instead of ineffective and brutal wounding. Even better, if a soldier could make an enemy drop his weapon by striking at his hands, he might be able to take him prisoner. Having him alive as a captive who could later be freed, even with a wounded hand, was preferable to leaving him as a corpse.
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Today all military or security forces in the world teach weapon-handling skills with the same focus. Recruits and officer cadets are taught how to kill or wound on firing ranges where instructors teach them which target areas will bring humane death and which ones will cause someone’s incapacitation without death. The two Qur’anic passages mentioned above should be read in that light. Moreover, they do not represent an instruction to all Muslims anytime to kill or wound all non-Muslims anywhere. That would violate every concept of justice embedded within Islam. The instructions were to one group of Muslims (the nascent ummah, which had not yet experienced combat) in anticipation of a specific conflict: the Battle of Badr fought in March 624. The fact that these combat-related instructions are contained within a religious book which has powerfully clear central messages of forbearance, toleration and inclusiveness is easily explained by the fact that the Qur’an, revealed episodically over decades, was (and is) considered by Muslim’s to be God’s word. Every revelation on every issue was thus faithfully recorded and retained, including ones dealing with all sorts of things — war, combat, diplomacy, finance, marriage, child-rearing, divorce, death, education, science and so forth — with which the first Muslims had to deal. It is thus a manual for life, with sections on war and combat which are relevant when Muslims go to war for defensive reasons, and on, say, pilgrimage when Muslims go on the Hajj for spiritual fulfilment. The Qur’an and the ahadith (the recorded words and actions of Muhammad) show that Muhammad took no pleasure in the fact that — as also taught in later Western Just War theory — the regrettable combatant-versus-combatant violence inherent within warfare would sometimes be necessary in order to create a better state of peace. Explaining to fellow Muslims the need in some situations to undertake combat, Muhammad acknowledged Allah’s revelation that warfare was something that seemed very wrong, indeed a “hateful” activity, but was morally correct and necessary nonetheless. As Surah al-Baqarah 2:216 says:
ِكُت َب َعلَ ُيك ُم ِالق ُتال َو ُه َو ٌكُره لَ ُكم ۖ َو َع ٰس أَن تَ َكرهوا شَيئًا َو ُه َو َخ ٌري لَ ُكم ۖ َو َع ٰس أَن تُ ِحبّوا شَيئًا َو ُه َو َ ٌّش لَ ُكم ۗ َواللَّ ُه يَعلَ ُم َوأَنتمُ ال تَعلَ َمون ﴿216﴾ 216. Warfare is ordained for you, though it is hateful to you, but it may happen that ye hate a thing which is good for you, and it may happen that ye love a thing which is bad for you. Allah knows while you do not know.
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There is no moral blame for self-defensive warfare, the Qur’an says: 41. Those who successfully defend themselves after being wronged cannot be blamed. 42. The blame is only [held] against the ones who oppress the people and rebel upon the earth without right. For them [is] a painful punishment.51
Frightening and dreadful, in extremis war is better than continued serious persecution and attack. Not defending the persecuted would in fact be morally negligent.52 Muhammad’s greatest political triumph — his eventual return to his hometown Mecca in 630 CE at the head of an army of 10,000 — was itself a bloodless affair marked by tremendous forgiveness and mercy. After his forces entered the city, the panicked Quraysh tribe, which effectively surrendered after realising that resistance to the Muslim army was futile, anticipated that their leaders and warriors would be slain.53 After all, for two decades they had humiliated, persecuted and tried to assassinate Muhammad and had maltreated and even waged savage war against him and his followers. Yet, aside from four murderers and serious oath-breakers who were judged to be beyond rehabilitation, Muhammad chose to forgive them all in a general amnesty. There was no bloodbath. He reportedly asked the assembled leaders of Quraysh what fate they anticipated. Expecting death, but hoping for life, they replied: “O noble brother and son of a noble brother! We expect nothing but goodness from you.” This appeal must have relieved Muhammad and made him smile. In reply, he quoted the Prophet Joseph, who had forgiven his eleven brothers for throwing him down a well and leaving him for dead. In words attributed to Joseph which are now memorialised in a Qur’anic revelation as Surah Yusuf 12:92, Muhammad told all Meccans:
َقال ال تَ َرثيب َعلَ ُيك ُم اليَ َوم ۖ يَ ِغف ُر اللَّ ُه لَ ُكم ۖ َو ُه َو أَ َرح ُم ّالر ِاح َمني ﴿92﴾ 92. ‘There shall be no reproach upon you this day. God will forgive you, for He is the most merciful to those who show mercy.’54
He even showed mercy to Hind bint Utbah, Abu Sufyan’s wife, who was under a sentence of death for having horrifically and disgracefully mutilated the body of Muhammad’s beloved uncle Hamza ibn ‘Abdul-Muttalib during the Battle of Uhud six years earlier, in 624 CE. Hind bint Utbah had cut open Hamza’s body, ripped out his liver and chewed it.55 She then reportedly strung the ears and nose
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Proportionate Response, Last Resort and Discrimination
Mercy between humans, based on forgiveness of someone else’s acknowledged wrongdoing, was something that Muhammad believed precisely mirrored the divine relationship between the Creator and humans. The concepts of patience, forgiveness and clemency strongly underpinned the early Islamic practice of warfare. Proportionality — one of the core principals of Western Just War — also serves as a key foundational principle in the Qur’anic guidance on war. Doing no violence greater than the minimum necessary to guarantee victory is repeatedly not transgressing limits”). So is“ ْ,الَ تَ ْعتَ ُدوا stressed in the Qur’an (and described as the imperative of meeting force with equal force in order to prevent defeat and discourage future aggression. Deterrence comes by doing to the aggressor what he has done to the innocent:
فَ ِإ ّما تَ َثقَّفَن ُهم ِيف َالح ِرب فَ َ ِّشد ِب ِهم َمن َخ ُلفَهم لَ َعلَّ ُهم كيََّذَّ َرون﴿57﴾ 57. Should you encounter them in war, then deal with them in such a manner that those that [might have intended to] follow them should abandon their designs and may take warning.57
With this deterrent function in mind, the Qur’an embraces the earlier biblical revelation to the Israelites, which permits people to respond to injustice eye for eye, tooth for tooth. Yet, like the Christian Gospels, it suggests that there is expiation”) in forgoing revenge in a spirit“ ,َّكَف َارةٌ more spiritual value (bringing of charity.58 This passage, interestingly, is from the same period of revelation as the Verse of the Sword, which further weakens the abrogation thesis mentioned above. Moreover, even on this matter of matching one’s strength to the opponent’s 59 the Qur’an repeatedly ,(ْفََم ِن ْاعتََدى َعلَيْ ُك ْم فَ ْاعتَُدواْ َعلَيِْه ِِبثْ ِل َما ْاعتََدى َعلَيْ ُكم) strength enjoins Muslims to remember that, whenever possible, they should respond to provocations with patience and efforts to facilitate conciliation. They should avoid fighting unless it becomes necessary after attempts have been madeat achieving a peaceful resolution (which is a concept not vastly different from the Western Just War notion of Last Resort) because forgiveness and the restoration of harmony remain Allah’s preference.60
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Wanting to avoid bloodshed whenever possible, Muhammad created a practice of treating the use of lethal violence as a last resort which has been imitated by Muslim warriors to this day, albeit at times with varying emphases.61 Before any warfighting can commence — except for spontaneous self-defensive battles when surprised — the leader must make a formal declaration of war to the enemy force, no matter how aggressive and violent that enemy is. He must communicate a message to the enemy that it would be better for them to embrace Islam. If they did (and Muhammad liked to offer three days for reflection and decision, a policy practiced by his followers62) then the grievance ended. A state of brotherhood ensued. If the enemy refused, then a proposal would be extended that offered them peace in return for the ending of aggression or disagreeable behaviour and the paying of a tax. If the enemy refused even that offer, and did not cease his wrong-doing, they forfeited their rights to immunity from the unfortunate violence of war.63 Islamic concepts of war do not define and conceptualise things in exactly the same way as Western thinking has done within the Just War framework. Yet the parallels are striking. The reasons for going to war expressed within the Qur’an closely match those within jus ad bellum, the Just War criteria which establishes the justice of a decision to undertake combat. The criteria include Just Cause, Proportionality and Last Resort. The behaviour demanded of warriors once campaigning and combat have commenced also closely match those within jus in bello, the Just War criteria which establishes the proper behaviour of warriors that is necessary to keep the war just. The Qur’an described this as a prohibition against “transgressing limits”.64 Ibn Kathir, a noted fourteenth-century scholar of the Qur’an, accepts earlier interpretations that the “transgressions” mentioned in the Qur’an refer to “mutilating the dead, theft (from the captured goods), killing women, children and old people who do not participate in warfare, killing priests and residents of houses of worship, burning down trees and killing animals without real benefit.”65 Muhammad had himself stated that these deeds are prohibited, as we see, for example, in his instructions to the army he dispatched to Mu’ta in 629 CE:
Attack in the name of Allah, and fight His enemy and yours in Al-Sham. You will encounter men secluded in monasteries, withdrawn from others. Do not attack them. You will find other people seeking out Satan and sin. Draw your swords against them. Do not kill a woman or a young child, or the old and senile. Do not destroy the date palm, cut down trees, 66.[”بيتاً“] or destroy a dwelling
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dwelling” or “house”) makes it clear that“) بيت The Prophet’s use of the word he intended for family homes to be left untouched. We also know how he felt about the need to protect not only homes, but also religious buildings. Allah had himself spoken in the Qur’an (Surah al-Hajj 22:40) about the evil of destroying religious buildings, including Jewish synagogues:
الَّ َذين أُ ِخرجوا ِمن ِد ِيار ِهم ِب َغ ِري َح ٍّق ِإ ّ ال أَن يَقولوا َربُّ َنا اللَّ ُه ۗ َولَوال َد ُفع اللَّ ِه ّالن َاس بَ َعض ُهم ِببَ ٍعض لَ ُه ِّد َمت َص ِوام ُع َو ِبيَ ٌع َو َصلَ ٌوات َو َم ِساج ُد يُ ُذكَر َفيها ُاسم اللَّ ِه ًكَثريا ۗ َولَيَ ُ َنصَّن اللَّ ُه َمن يَ ُ ُنص ُه ۗ ِإَّن اللَّ َه لَ َق ِو ٌّي َع ٌزيز ﴿40﴾ 40. [There are] those who have been evicted from their homes without right - only because they say, “Our Lord is Allah”. And were it not that Allah checks the people, some by means of others, there would have been demolished monasteries, churches, synagogues, and mosques in which the name of Allah is much mentioned. And Allah will surely support those who support Him. Indeed, Allah is powerful and exalted in might.67
In the year after Muhammad’s death in 632 CE, his close friend and immediate successor, Abu Bakr al-Siddiq ‘Abdullah bin Abi Quhafah, famously issued to the Muslim army before a campaign against the Byzantine armies in Syria what have been called the “Ten Commandments” of Islamic warfare. There is a version in Imam Malik’s seminal Al-Muwatta,68 but the most common version is recorded in Al-Tabari’s Tarikh (History). Based directly on the prophet’s guidance on the conduct of war into a code that has served ever since as the basis of Islamic thinking on the conduct of battle, this celebrated address to the army heading north to Syria under the leadership of Yazid ibn Abu Sufyan reads as follows: Oh people! Stop, and I will tell you ten things. Do not be treacherous; do not steal from the booty; do not engage in backstabbing. Do not mutilate; do not kill a youngster or an old man, or a woman; do not cut off the heads of the palm-trees or burn them; do not cut down the fruit trees; do not slaughter a sheep or a cow or a camel, except for food. You will pass by people [priest and/or monks] who devote their lives in cloisters; leave them and their devotions alone. You will come upon people who bring you platters in which are all sorts of food; if you eat any of it, mention the name of Allah over it.69 There is no explicit phrase or statement within the Qur’an that defines the difference between combatants and non-combatants during war, just as there is not in either the Torah or the New Testament. We should not be surprised. In
ISLAM AND CIVILISATIONAL RENEWAL JUSTICE, JIHAD AND DUTY: THE QUR'ANIC CONCEPT OF ARMED CONFLICT 289 the West, the English word “civilian” (from an Old French root with a different meaning) only gained its current meaning in the nineteenth century as someone who is not in a military or paramilitary force. Yet readers of the Qur’an must not think that any man of fighting age (children under fifteen, women and the aged having been excluded)70 is therefore to be considered fair game. The Qur’an does not allow this. The verses that talk of combat are clear that war is only permissible against those who are waging war; that is, those in combat. Aside from those combatants and anyone acting unjustly to prevent Muslims from practising their faith or trying to violate the sanctity of Islam’s holy places, no- one is to be harmed. The rationale for this is clear. Central to the Qur’anic revelation and stated unequivocally in many passages is the message that the decisions that pertain to life and death are Allah’s alone, and that Allah has proclaimed that human life 71 In the .ال( ِإَّ ِب َالح ِّق) ”a “sacred” gift — may never be taken “without just cause — Qur’anic passages narrating the story of Cain and Abel (Surah al-Ma’ida 5:27- 32, revealed very late in Muhammad’s life) one can read an explicit protection of the lives of the innocent. Surah 5:32 informs us that, if anyone takes the life ,, which means seditionفساد) ”of another human, unless it is for murder or “fasad insurrection or serious persecution), it is as though he has killed all of humanity:
ِمن أَ ِجل ٰذلِ َك كَتَبنا َع ٰل بَني ِإرسائيلَ أَنَّ ُه َمن قَتَلَ نَ ًفسا ِب َغ ِري نَ ٍفس أَو فَ ٍساد ِيف األَ ِرض فَ َكأََّنا قَتَلَ ّالن َاس َج ًميعا َو َمن أَحياها فَ َكأََّنا أَحيَا ّالن َاس َج ًميعا ۚ َولَ َقد َجاء ُتهم ُر ُسلُنا ِبالبَيِّ ِنات ثَُّم ِإَّن ًكَثريا ِم ُنهم بَ َعد ٰذلِ َك ِيف األَ ِرض لَ ُم ِرس َفون ﴿32﴾ 32. For that cause We decreed for the Children of Israel that whosoever kills any person for other than murder or sedition/insurrection, it shall be as if he has killed all mankind, and whoso saves the life of one, it shall be as if he had saved the life of all mankind. Our messengers came with clear signs, yet, even after that, many people continued to commit excesses in the land.
To discourage war, the very next verse is clear: those who undertake warfare against the innocent do not count as innocent, nor do those who inflict grave injustice or oppression upon the innocent. They forfeit their right to what we would nowadays call civilian immunity, and are liable to be killed in battle or executed if they are caught and have not repented.72
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Jihad
It should already be clear that, far from serving as the foundation of a callous faith in which human life is not respected, or a bellicose faith in which peace is not desired, the Qur’an presents warfare as an undesirable activity. It should be undertaken only within certain constrained circumstances and in a manner that facilitates the quick restoration of peace and harmony and minimises the harm and destruction that war inevitably brings. An analysis of such matters would not, of course, be complete without making some sense of jihad, that famous word and concept that nowadays is most controversial and misunderstood. Interestingly, given that jihad is now associated with extremists who are full of hatred, like Al-Qaeda, ISIS, Boko Haram and Al-Shabaab fighters and terrorists, the Qur’an does not allow hatred to form the basis of a military or other armed response to perceived injustices. In Surah al-Ma’ida, one of the very last surahs revealed, it explicitly states that the hatred of others must not make anyone swerve to wrong and depart from justice:
يا أَيُّ َها الَّ َذين َآمنوا كونوا قَ ّو َامني لِلَّ ِه َشُه َداء ِب ِالق ِسط ۖ َوال يَ ِجر َمَّن ُكم َشَن ُآن قَ ٍوم َع ٰل أَ ّ ال تَ ِعدلُوا ۚ ِاعدلوا ُه َو أَ َقر ُب لِلتَّ ٰقوى ۖ َواتَّ ُقوا اللَّه ۚ ِإَّن اللَّ َه َخ ٌبري ِبا تَ َعم َلون ﴿8﴾ 8. O you believers, be steadfast for Allah as witnesses in justice. Do not let hatred of a people cause you to deviate from justice. Be just, for it is closer to piety. Have fear of Allah; for Allah is well aware of what you do.73
The Qur’an likewise praises those who “restrain their anger and are forgiving 74 These and other verses .( َوالْ َك ِاظ ِم َني الْ َغيْ َظ َوالْ َع ِاف َني َع ِن َّالن ِاس) ”towards their fellow men communicating the same message are clear enough to prevent crimes perceived nowadays by Muslims from turning them into criminals.75 They certainly made an impact on Muslims during Muhammad’s lifetime. During the Battle of Khandaq in 627, for example, Ali ibn Abi Talib (who later served as Caliph) reportedly subjugated Amr ibn Abd al-Wudd, a powerful warrior of the Quraysh. Ali was about to deal a death blow when his enemy spat in his face. Ali immediately released him and walked away. He then rejoined battle and managed to slay his enemy. When later asked to explain why he had released his foe, Ali replied that he had wanted to keep his heart pure from anger and that, if he needed to take life, he did it out of righteous motives and not wrath.76 Even if the verity of this story is impossible to demonstrate (it is first found in a thirteenth-century Persian Sufi poem), its survival and popularity attest to the perceived importance within Islam of acting justly at all times, even during the heightened passions inevitable in war.
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We certainly know that the Prophet Muhammad urged his followers to seek calmness and avoid anger. We have many hadiths testifying to his detestation of anger. For example, he asked: Whom do you consider a wrestler among you? The people replied: [the man] whom the men cannot defeat in wrestling. He said: No, it is he who controls himself when he gets angry.77 Likewise, Muhammad is recorded as having stated that even a judge in a court should refrain from making a ruling whilst angry: ‘Abdur-Rahman ibn Abi Bakrah narrated: My father wrote to ‘Ubaidullah ibn Abi Bakrah who was a judge: “Do not pass a judgement between two people while you are angry, for indeed I heard the Messenger of say: The judge should not judge between two people while ﷺ Allah he is angry.”78 Despite some popular misperceptions that jihad is based on frustration or anger that many non-Muslims consciously reject the faith of Islam, the Qur’an is quite clear that Islam can be embraced only by those who willingly come to accept it. Islam cannot be imposed upon anyone who does not. Surah al-Baqarah .(الَ ِإ َكْر َاه ِيف ِّالد ِين) ”is emphatic that there must be “no compulsion in religion 2:256 Truth is self-evident, the verse adds, and stands out from falsehood. Those who adopt faith grasp “the most trustworthy hand-hold that never breaks.”
ال ِإ َكراه ِيف ّالد ِين ۖ قَد تَبََّ َني ُّالر ُشد ِم َن َالغ ِّي ۚ فَ َمن يَكفُر ِبالطّ ِاغوت َويُ ِؤمن ِباللَّ ِه فَ َق ِد استَ َمس َك ِب ُالع َرو ِة ُالو ٰثقى َال ِانف َصام لَها ۗ َواللَّ ُه َس ٌميع َع ٌليم﴿256﴾ 256. There is no compulsion in religion. Truth stands out clearly from falsehood: whoever rejects evil and believes in Allah has grasped the most trustworthy hand-hold that never breaks. And Allah hears and knows all things.
Those who accept falsehood instead will go forth into “the depths of darkness”: the same hell that Christ had preached about. The fate of individuals, based on the choice they make, is therefore Allah’s alone to decide. The Qur’an repeats in several other verses that coerced religion would be pointless because the submission of the heart wanted by Allah would be contrived and thus not accepted as genuine. When even Muhammad complained that he seemed to be surrounded by people who would not believe, a divine revelation clarified that Muslims were merely to turn away from the disbelievers after saying “peace” to them “for they shall come to know.”79 The Qur’an itself enjoins believers to invite disbelievers using the sweetest appeal:
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ُادع ِإ ٰل َس ِبيل َربِّ َك ِب ِالح َكم ِة َواملَ ِوعظَ ِة َالح َس َن ِة ۖ َو ِجاد ُلهم ِبالَّتي ِه َي أَ َحس ُن ۚ ِإَّن َربَّ َك ُه َو أَعلَ ُم ِبَن َضَّل َعن َس ِبيل ِه ۖ َو ُه َو أَعلَ ُم ِباملُهتَ َدين ﴿125﴾ 125. Invite [all] to the way of your Lord with wisdom and beautiful preaching; and argue with them in ways that are best and most gracious: for thy Lord knows best who have strayed from His path, and who receive guidance.80
At no point in Muhammad’s life did he give up hope that all peoples would want to get along harmoniously. Despite his grave disappointment whenever communities competed instead of cooperated, in one of his later public sermons he revealed the divine message that Allah had made all of mankind “into nations and tribes, so that you may know each other.”81 Surah al-Hujurat 49:13, revealed after the liberation of Mecca, contains that very revelation:
يا أَيُّ َها ّالن ُاس ِإنّا َخلَقناكُم ِمن َذ ٍكَر َوأُ ٰنثى َو َج َعلناكُم شُعوبًا َوقَبائِلَ لِتَ َعارفوا ۚ ِإَّن أَ َكر َم ُكم ِع َند اللَّ ِه أَتقاكُم ۚ ِإَّن اللَّ َه َع ٌليم َخ ٌبري﴿13﴾ 13. O People, We have created you all male and female and have made you nations and tribes so that you may know each other. The most honorable among you in the sight of Allah is the most pious of you. Allah is all-knowing and all-aware.
This desire for tolerant coexistence even included other faiths and Muhammad never stopped believing in the commonality of belief between Muslims and the )أهل God-fearing among those who identified themselves as Jews and Christians Ahl al-Kitab, the “People of the Book”). They shared the same prophetic ,الكتاب line of revelation, after all. Despite rejection by several powerful Jewish tribes, and frustration over trinitarian concepts, Muhammad remained convinced that the Jewish and Christian faith communities — as opposed to some individual tribes which acted treacherously — should obey Allah by actually following their own scriptures. Two verses in Surah al-Ma’ida saying precisely this were revealed very close in time to the Verse of the Sword. The verses encourage the Jews and Christians to submit to God and act faithfully according to their own scriptures, the Torah and the Gospel. The verses state that, if they do so, they, along with Muslims (fellow submitters82), will have no need to fear or grieve on Judgement Day.
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قُل يا أَهلَ ِالك ِتاب لَستُم َع ٰل َش ٍء َحتّ ٰى تُ ُقيموا التَّوراةَ َو ِاإلنجيلَ َوما أُ ِنز َل ِإلَ ُيكم ِمن َربِّ ُكم ۗ َولَيَ َزيدَّن ًكَثريا ِم ُنهم ما أُ ِنز َل ِإلَ َيك ِمن َربِّ َك طُغيانًا َو ًكُفرا ۖ فَال تَ َأس َعلَ َالق ِوم ِالكاف َرين﴿68﴾
ِإَّن الَّ َذين َآمنوا َوالَّ َذين هادوا َو ّالص ِاب َئون َوَّالن ٰصارى َمن َآم َن ِباللَّ ِه َواليَ ِوم ِاآلخ ِر َو َع ِملَ صالِ ًحا فَال َخ ٌوف َعلَ ِيهم َوال ُهم يَ َحز َنون ﴿69﴾
68. Say, O People of the Book! You have nothing unless you obey [lit. stand firmly on] the Torah and the Gospel and that which was revealed unto you from your Lord. That which is revealed unto you from your Lord is certain to increase the obstinacy and disbelief of many. But do not grieve for those disbelievers. 69. Surely those who do believe and those who are Jews and the Sabians and the Christians whoever believes in Allah and the last day and do good, they shall have no fear nor shall they grieve [on the Day of Judgement].83
The revelation of these religiously inclusive verses very late in Muhammad’s life further undermines the thesis that the verses revealed late in his life undid all of the inter-faith outreach that Muhammad had preached years earlier. So what, then, is jihad and why does it seem so threatening? The answer is that jihad, far from meaning some type of fanatical religiously directed war against all unbelievers, is the ordinary Arabic word for “exertion” or “effort” and it actually describes any Muslim’s struggle against the things that are difficult or ungodly within him or her and within the wider world. One major form of jihad is an Arabic word that may be ,نَفْس :”the Muslim’s struggle against his or her “nafs translated as the “lower self” and refers to the individual’s ego, carnal nature and the bad habits and actions that come from failure to resist temptation or desire.84 For example, a Muslim who consciously strives to break the habit of telling lies, or drinking of alcohol, or who struggles against a bad temper, is involved quite properly in a jihad against those unfortunate weaknesses. In Surah at-Ankabut (jahada , َج َاهد) the Qur’an explains this by pointing out that if anyone strives 29:6 against their personal ungodliness it will bring personal, inner (that is, spiritual) growth. The very next verse goes further by exhorting believers not only to work on their personal faith, but also to do “good deeds” to others.
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َو َمن َجاه َد فَ ِإَّنا يُ ِجاه ُد لِ َن ِفس ِه ۚ ِإَّن اللَّ َه لَ َغ ِن ٌّي َع ِن العالَ َمني﴿6﴾ َوالَّ َذين َآمنوا َو َع ِملُوا ّالصالِ ِحات لَ ُن َك َفِّرَّن َع ُنهم َسيِّئَاتِ ِهم َولَ َن ِجزيََّن ُهم أَ َحس َن الَّذي كانوا يَ َعم َلون ﴿7﴾ 6. And if any strive [jahada], they do so for their own souls: for Allah is free of all needs from all creation. 7. And [as for] those who believe and do good deeds, We will most certainly blot out their evil deeds and We will certainly reward them the best of what they used to do.
In verse 69 of the same surah we find another statement identifying striving [jihad] as the doing of good deeds:
َوالَّ َذين َجاهدوا فينا لَ َن ِهديََّن ُهم ُسبُلَنا ۚ َو ِإَّن اللَّ َه لَ َم َع املُ ِحس َنني﴿69﴾ 69. And those who strive hard [jahadu] for Us, We will certainly guide them in Our ways; and Allah is surely with the doers of good.85
Devoting time and giving money to the welfare of the poor and needy (of all communities, not just Muslims), and to the upkeep and governance of the ummah, is mentioned in several scriptures as this type of divinely recommended effort (jihad). We find inSurah al-Hajj 22:78, for example:
َو ِجاهدوا ِيف اللَّ ِه َحَّق ِج ِهاد ِه ۚ ُه َو اجتَباكُم َوما َج َعلَ َعلَ ُيكم ِيف ّالد ِين ِمن َح َر ٍج ۚ ِملَّ َة أَ ُبيكم ِإ َبراهيم ۚ ُه َو َس ّم ُكُم املُ ِسل َمني ِمن قَبلُ َويف ٰهذا لِيَ َكون َّالر ُسول ًشَهيدا َعلَ ُيكم َوتَكونوا َشُه َداء َعلَ ّالن ِاسۚ فَأَ ُقيموا َّالصالةَ َوآتُوا َّالزكاةَ َواعتَ ِصموا ِباللَّ ِه ُه َو َموالكُم ۖ فَ ِن َعم املَو ٰل َونِ َعم َّالن ُصري ﴿78﴾
78. And strive hard [wajahidu] in the cause of Allah. Such striving [jihadihi] is due to Him; He has chosen you and not laid upon you any difficulty in religion, which is the faith of your father Abraham; He named you Muslims before and in this, that the Messenger may be a bearer of witness to you, and you may be bearers of witness to mankind. Therefore, keep up prayer and give charity and hold fast to Allah; He is your Guardian; how excellent the Guardian and how excellent the Helper!
This identically matches the spirit of a beautiful hadith: “One who strives to help a widow or the poor is like one who strives in the cause of Allah.”86
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Winning souls to Islam through peaceful preaching is likewise a worthy effort. Muhammad himself revealed a divine exhortation to “strive” with “all effort” (in Arabic it uses two forms of the same word jihad) using the powerful words of the Qur’an to convince unbelievers.87 Jihad is also used in the Qur’an to mean physical defensive resistance to external danger. It appears in thirty verses, six of them revealed during Muhammad’s years in Mecca and twenty-four revealed during the years of armed attack by the Quraysh tribe and its allies and then the protective wars to create security within and around the Islamic polity.88 Islam’s claim that this ratio reveals that jihad and qital (warfighting) are effectively synonymous regardless of context. This is incorrect. The exertion against ego and personal vice is a greater, non-contextual and ever-required struggle, as Muhammad revealed. After returning from a battle he told his supporters: “You have come back from the smaller jihad to the greater When asked what the greater jihad .(قَ ِد ْمتُ ْم َخ ْ َري َم ْق َد ٍم ِم َن الْ ِج َه ِاداألَ ْص َغ ِر ِإلَ الْ ِج َه ِاداألَ َ ِكْب) ”jihad was, Muhammad replied: “The striving of [Allah’s] servant against his desires” 89 .( ُم َج َاه َدةُ الْ َعبْ ِد َه َو ُاه) Some scholars doubt the authenticity of this particular hadith, not because of its content but because of what is considered a weak chain of narration, yet in any case there are many similar reliable hadiths showing that various forms of spiritual effort were considered the optimal jihad. For example: “it was narrated by Tariq ibn Shihab that a man asked the Prophet Muhammad, when he had put his leg in the stirrup: “What kind of exertion [Jihad] is best?” He said: “a word of truth spoken before an unjust ruler.””90 Another hadith records that Muhammad yajtahid) during the last ten days of the Ramadan ,يَ ْجتَ ِه ُد) himself exerted himself fast more than he had to exert (yajtahid) during the rest of it.91 Moreover, the Verse of the Sword and the other supposedly bloody verses quoted in this article do not even use the word “jihad” for the recommended defensive warfighting. They use qital“ ,” which simply means fighting or combat. Yes, qital is permitted as part of a defensive struggle against serious oppression or persecution, but that does not mean that all jihad is fighting. That would be using logic similar to saying that, because all fox terriers are dogs, all dogs are fox terriers. All lawful qital is jihad — a legitimately approved and rigorously constrained military struggle against evil — but not all jihad (or even much of it or the “greater” type) is warfare. Questions about who can legitimately call for or initiate qital as part of any jihad, in a world which no longer has caliphs ruling Islamic empires, are debated by Islamic scholars, with a vast majority arguing that only state leaders in Islamic (or Muslim-majority) lands would be legitimately able to do so if a genuine just cause emerged. The fact that fatawa and other calls for fighting made in recent years by Al-Qaeda, Taliban, ISIS,
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Boko Haram and other leaders have not been accepted by the overwhelming majority of the world’s 1.6 billion Muslims is a clear sign that very few Muslims see them as legitimate leaders or agree that armed fighting would be a just and appropriate response to the alleged grievances. Interestingly, all the verses mentioning jihad as armed struggle in defence of the Islamic people and polity are exhortative in nature: with pleas for effort, urgings of courage and a fighting spirit, assurances of victory and promises of eternal rewards for those who might die in the service of their community. This emphasis reveals that Muhammad recognised that wars were so unpalatable to his peace-loving community that, even though the causes of Muslim warfighting were just, he had to go to extra lengths — much as Winston Churchill did during the dark days of the Second World War — to exhort frightened or weary people to persevere, to believe in victory and to fight for it. On 4 June 1940 Churchill gave a magnificent speech to inspire the British people to continue their struggle against the undoubted evils of Nazism, even though the German armed forces then seemed stronger and better in battle. His speech includes the fabulous warlike lines: We shall fight on the seas and oceans We shall fight with growing confidence and growing strength in the air, we shall defend our Island, whatever the cost may be We shall fight on the beaches We shall fight on the landing grounds We shall fight in the fields and in the streets We shall fight in the hills We shall never surrender.92 No-one would dream of calling Churchill warmongering, much less murderous. Muhammad’s exhortations for Muslims to do their duty — a phrase used by Churchill in that speech and others — and to struggle against the threat of defeat at the hands of the Muslims’ enemies are best seen in the same light. Indeed, most of the verses which urge qital as part of the struggle (jihad) against enemies relate to the self-defensive wars mentioned above, with the remaining verses relating to the broader need to protect the nascent Islamic polity from both the local spiritual pollution of intransigent Arab polytheism and idolatry as well as the external threat to unsafe borders around the perimeter of the state. No verses in the Qur’an encourage or permit violence against innocent people, regardless of faith, and no verses encourage or permit war against other nations or states that are not attacking the Islamic state, threatening its borders or its direct interests, or interfering in the ability of Muslims to practice their faith.
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Armed effort against any states that might do those oppressive things would still be permitted to this day, at least according to a fair reading of the Qur’an93— just as it is within Western Just War theory. Yet such a situation would involve a very different set of circumstances to those existing in the world today; those which somehow wrongly prompted a very small number of radicalised terrorists to undertake aggressive and offensive (not justly motivated and defensive) struggles. Their reprehensible actions, especially those that involve the taking of innocent lives, fall outside the behaviours permitted by a reasonable reading of the Qur’an.
Conclusion
This analysis is not an attempt at religious apologetics. It is written by a scholar of military wars, laws and ethics in an endeavour to demonstrate that the world’s second largest religion includes at its core a set of scriptures that contains a clear and very ethical framework for understanding war and guiding the behaviour of warriors. That framework only supports warfare when it is based on redressing substantial material grievances (especially attack or serious direct persecution), when it occurs after other means of addressing the grievances have been attempted, and when it includes the cessation of hostilities and the restoration of peace as soon as a resolution has been attained. It demands of warriors that they uphold the concepts of proportionality (doing no more harm than is necessary) and discrimination (directing violence only at combatants whilst minimising harm to civilians and their possessions and infrastructure). That framework is very compatible with the Western Just War philosophy that, for example, gave a moral underpinning to the United Kingdom’s war against Argentinean troops occupying the Falkland Islands in 1982, the US-led Coalition’s eviction of Saddam Hussein’s troops from Kuwait in 1991, and NATO’s seventy-eight day air war against Slobodan Milošević’s Yugoslavia in order to protect Kosovars from ethnic violence in 1999. So, then, if the Qur’an itself condemns any violence that exceeds or sits outside of the framework for justice revealed within its verses, how can we explain the barbarous 9/11 attacks, countless suicide-bombings around the world, and murders and atrocities by ISIS, Boko Haram, Al-Shabaab and other groups, all of them claiming to act in the name of Islam? British scholar of religion Karen Armstrong answered this obvious question so succinctly in the days after 9/11 that her words make a fitting conclusion to this study. During the twentieth century, she wrote, “the militant form of piety often known as fundamentalism erupted in every major religion as a rebellion against modernity.” Every minority
ICR 9.3 Produced and distributed by IAIS Malaysia 298 JOEL HAYWARD fundamentalist movement within the major faiths that Armstrong has studied “is convinced that liberal, secular society is determined to wipe out religion. Fighting, as they imagine, a battle for survival, fundamentalists often feel justified in ignoring the more compassionate principles of their faith. Butin amplifying the more aggressive passages that exist in all our scriptures, they distort the tradition.”94 Armstrong is correct, but her word “distort” is too weak for Al-Qaeda-style terrorists and ISIS murderers. They have not merely distorted the Qur’anic message; they have entirely perverted it and in the process created additional unhelpful hostility towards Islam — a faith of justice that seeks to create peace and security for its believers and a state of harmony and peaceful co-existence with other faiths.
Notes * Joel Hayward is a New Zealand scholar, writer and poet who currently serves as a Professor of Strategic Thought at the National Defense College of the UAE. He has held various academic posts, including Chair of the Department of Humanities and Social Sciences at Khalifa University (UAE) and Dean of the Royal Air Force College (UK). He is the author or editor of over a dozen books and many peer-reviewed articles, mainly in the fields of history and strategic studies. These include “War is Deceit”: An Analysis of a Contentious Hadith on the Morality of Military Deception (2017). He has given strategic advice to political and military leaders in several countries, has given policy advice to prominent sheikhs, and was tutor to His Royal Highness Prince William of Wales. In 2011 he was elected as a Fellow of the Royal Society of Arts and in 2012 he was elected as a Fellow of the Royal Historical Society. In 2016 he was named as the "Best Professor of Humanities and Social Sciences" at the 2016 Middle East Education Leadership Awards. Professor Joel is also active in the literary arts. He has published three books of fiction and four collections of poetry.
1. Muslims make up 23 percent of the world’s 6.9 billion humans. See the Pew Forum on Religion & Public Life, The Future of World Religions: Population Growth Projections, 2010-2050 (Washington, DC: Pew Research Center, 2 April 2015), 7. 2. The King James Version of the Holy Bible contains 788,280 words: 609,269 in the Old Testament and 179,011 in the New Testament. Cf.: http://www. biblebelievers.com/believers-org/kjv-stats.htm 3. Mapping the Global Muslim Population. 4. The very first word revealed to Muhammad was “Iqra,” ( ), which means اقْ َرأْ “recite” and the word Qur’an itself originates from the root word Qara’a, which means “to read out” or “to recite”. 5. The title of Mr Spencer’s most controversial bestseller is: The Truth about Muhammad, Founder of the World’s Most Intolerant Religion (Washington,
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DC: Regnery Press, 2006). Spencer’s other books include: Islam Unveiled: Disturbing Questions about the World’s Fastest Growing Faith (New York: Encounter Books, 2002); Ed., The Myth of Islamic Tolerance: How Islamic Law treats Non-Muslims (New York: Prometheus Books, 2005); The Politically Incorrect Guide to Islam (And the Crusades), (Regnery, 2005); Religion of Peace? Why Christianity Is and Islam Isn’t (Regnery, 2007). 6. Cf. the published works, journalism and internet articles of Daniel Pipes, Benny Morris, David Horowitz, Bernard Lewis, Sam Harris, David Bukay and David Pryce-Jones, among others. I need to make my position clear. As a political liberal and an academic I strongly support the liberal arts education model and the enhanced societal contributions made by critically educated minds. At the heart of my philosophy lies a passionate belief in the value of dialogue and debate. I therefore do not challenge the right of these scholars and pundits publicly to express their concerns about Islam, even though I do not share them. 7. There are numerous English-language translations of the Qur’an which give slightly different wordings, but the translation that I consider most reliable, easiest to read and closest to the meaning of the Arabic text is: The Meaning of the Holy Qur’an by ‘Abdullah Yusuf Ali (in very many editions). I also recommend the readability and reliability of Maulana Wahiduddin Khan’s translation, The Quran (New Delhi: Goodword, 2009). Another very popular modern translation is the so-called “Wahhabi translation”: Interpretation of the Meanings of the Noble Qur’an in the English Language: A Summarized Version of At-Tabari, Al- Qurtubi and Ibn Kathir with Comments from Sahih Al-Bukhari: Summarised in One Volume by Dr Muhammad Muhsin Khan and Dr Muhammad Taqi-ud-Din Al-Hilali (Riyadh: Darussalam, 1996. Revised edition 2001). It must be pointed out, however, that this easy-to-read translation has not been immune from criticism, particularly with regard to many interpolations that seem to provide a deliberately negative portrayal of Christians and Jews. For that reason I do not use it, and I believe others should read it, should they wish, with this caveat in mind. Cf. Khaleel Mohammed, “Assessing English Translations of the Qur’an,” Middle East Quarterly, Volume 12 No. 2 (Spring 2005), 59-72. 8. Jizya was an annual tax levied by the Islamic state on adult male non-Muslims. In return they gained exemption from military service and guarantees of safety within the state. This taxation arrangement, essentially a type of tribute, was a pre-Islamic practice merely continued by the Muslims. Cf. Majid Khadduri, War and Peace in the Law of Islam (Baltimore: Johns Hopkins Press, 1955), 178. 9. Cf. Ibid., 96, 163; Majid Khadduri, The Islamic Conception of Justice (Baltimore: Johns Hopkins University Press, 1984), 165. Spencer, ed., The Myth of Islamic Tolerance, 43-44. 10. Cf. Spencer, The Politically Incorrect Guide to Islam, 28. After negatively quoting a statement praising Muhammad as “a hard fighter and a skillful military commander,” Samuel Huntington writes that “no one would say this about Christ or Buddha.” He adds that Islamic doctrines “dictate war against unbelievers … The Koran and other statements of Muslim beliefs contain few prohibitions on violence, and a concept of nonviolence is absent from Muslim doctrine and practice.” Huntington, The Clash of Civilizations and the Remaking of World Order (London: Simon & Schuster, 1996), 263.
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11. Joshua 6: 21. 12. Deuteronomy 7: 1-3 and 20: 16-17. 13. Polybius, Histories, XXXVIII.21. 14. Sohail H. Hashmi, ed., Islamic Political Ethics: Civil Society, Pluralism, and Conflict (Princeton: Princeton University Press, 2002), 196. 15. Q. Surah 34:28, Q. Surah 39:41 and Q. Surah 81:27. 16. Spencer, The Politically Incorrect Guide to Islam, 24-26. Cf. also: http://www. answering-islam.org/Bailey/jihad.html 17. Cf. David Bukay, “Peace or Jihad: Abrogation in Islam,” in Middle East Quarterly, Fall 2007, 3-11, available online at: http://www.meforum.org/1754/ peace-or-jihad-abrogation-in-islam. Access date: 1 April 2011. 18. Zakaria Bashier, War and Peace in the Life of the Prophet Muhammad (Markfield: The Islamic Foundation, 2006), vii—viii; Khadduri, War and Peace, 105. 19. Bukay, “Peace or Jihad,” cited above. 20. https://is.muni.cz/el/1423/jaro2010/MVZ448/OBL___AQ__Fatwa_1996.pdf 21. https://fas.org/irp/world/para/docs/980223-fatwa.htm 22. See for example, Louay Fatoohi’s thorough analysis of abrogation: Abrogation in the Qur’an and Islamic Law: A Critical Study of the Concept of Naskh and its Impact (Kuala Lumpur: Islamic Book Trust ed., 2013. First published by Routledge in New York and Oxon, 2013). 23. Bashier, War and Peace, 284. 24. Ibid., 288. 25. Fatoohi, Abrogation in the Qur’an and Islamic Law, o cit., 180. See also Fatoohi, Jihad in the Qur’an: The Truth from the Source (Birmingham: Luna Plena, 2009). 26. Muhammad Abu Zahra, Concept of War in Islam (Cairo: Ministry of Waqf, 1961), 18, quoted in Hashmi, ed., Islamic Political Ethics, 208. 27. Muhammad ibn ‘Umar-al-Waqidi, Kitab al-Maghazi (Beirut: Muassassat al- ‘Alami, 1989), Vol. 2, 780-95. 28. Ismail Ibn Kathir, Tafsir ibn Kathir (Beirut: Maktaba al-Assrya, 2013 edition), Volume 4, 332ff; Lt. Gen. A. I. Akram, The Sword of Allah: Khalid bin al- Waleed, His Life and Campaigns (New Delhi: Adam, 2009), 97-98; Bashier, War and Peace, 237-8, 241. 29. Tafsir Ibn Kathir, Volume 4, 332. 30. W. Montgomery Watt, Muhammad at Medina (Oxford University Press, 1956. 2004 Edition), 311; Ibn Kathir, The Life of Muhammad (Karachi: Darul-Ishaat, 2004), 516, 522; Shaykh Muhammad al-Ghazali, A Thematic Commentary on the Qur’an (Herndon: International Institute of Islamic Thought, 2000), 182. 31. Q. Surah 9:6. 32. Sayyid Ameenul Hasan Rizvi, Battles by the Prophet in Light of the Qur’an (Jeddah: Abul-Qasim, 2002), 126-130. 33. Ibn Kathir, Life of Muhammad, 516, 522. 34. Spencer, Religion of Peace? 78. 35. Although Ad-Dahhak bin Muzahim, as quoted by Isma’il ibn Kathir (Tafsir Ibn Kathir, Volume 4, 338) — sees this as a repudiation of Muhammad’s pilgrimage agreements with all pagans, other early sources insist that this was not the case and that it would have reflected intolerance that Muhammad was not known to
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possess. Rizwi Faizer, “Expeditions and Battles,” in Jane Dammen McAuliffe, ed., Encyclopaedia of the Qur’an (Leiden and Boston: Brill, 2002), Vol. II, 151. 36. Q. Surah 4:90. 37. Fatoohi, Jihad in the Qur’an, 34. 38. Ibn Hisham, Al-Sirah al-Nabawiyyah (Beirut: Maktaba Allassrya, 2012), 249. 39. Hashmi, ed., Islamic Political Ethics, 201. 40. Cf. Ibn Hisham, Al-Sirah al-Nabawiyyah, 74. 41. Al-Waqidi, Kitab al-Maghazi, Vol. 2, 492. 42. Ibn Hisham, Al-Sirah al-Nabawiyyah, 435. 43. This is certainly Ibn Hisham’s view: Al-Sirah al-Nabawiyyah, 249. For modern writers who agree, see: Fatoohi, Jihad in the Qur’an, 31; Zakaria Bashier, War and Peace in the Life of the Prophet Muhammad (Markfield: The Islamic Foundation, 2006), 2-4; Martin Lings, Muhammad: His Life based on the Earliest Sources (London: George Allen & Unwin, 1983. Islamic Texts Society edition, 2009), 135; Sohail H. Hashmi, “Sunni Islam,” in Gabriel Palmer-Fernandez, ed., Encyclopedia of Religion and War (London: Routledge, 2004), 217. Sohail H. Hashmi, ed., Islamic Political Ethics: Civil Society, Pluralism, and Conflict (Princeton: Princeton University Press, 2002), 198. 44. Cf. Michael Lecker, The Constitution of Medina: Muhammad’s First Legal Document (Princeton, NJ: Darwin, 2004). 45. Tafsir Ibn Kathir, Volume 1, 609. 46. Q. Surah 2:192. 47. Q. Surah 2:193. 48. Hashmi, ed., Islamic Political Ethics, 204. 49. Sahih al-Bukhari (Cairo: Dar Al-Afaq al-Arabia, 2004), 607, hadith 3025: َحَّدثََنا يُ ُوس ُف بْ ُن ُم َوس، َحَّدثََنا َع ِاص ُم بْ ُن يُ ُوس َف الْ َ ْريبُ ِوع ُّي، َحَّدثََنا أَبُو ِإ ْس َح َاق الْ َفَز ِار ُّي، َع ْن ُم َوس بْ ِن ُع ْقبَ َة، قَ َال َحَّدثَِني َسالِ ٌم أَبُو َّالن ْ ِض، َم ْولَ ُع َم َر بْ ِن ُعبَيْ ِد اللَّ ِه ْكُن ُت كَاتِبًا لَ ُه قَ َال كَتَ َب ِإلَيْ ِه َعبْ ُد اللَّ ِه بْ ُن أَِب أَ ْو َف ِح َني َخ َر َج ِإلَ الْ َح ُر ِوريَّ ِة فَ َق َرأْتُ ُه فَِإ َذا ِف ِيه ِإَّن َر ُس َول اللَّ ِه صل الله عليه وسلم ِيف بَ ْع ِض أَيَّ ِام ِه الَّ ِتي لَ ِق َي ِف َيها الْ َع ُدَّو انْتَظَ َر َحتَّى َمالَ ِت َّالش ْم ُس. ثَُّم قَ َام ِيف َّالن ِاس فَ َق َال " أَيُّ َها َّالن ُ اسالَ َتََّن ْوا لِ َق َاء الْ َع ُد ِّو َو َسلُوا اللَّ َه الْ َع ِافيَ َة، فَ ِإ َذا لَ ِقيتُ ُم ُوه ْم فَ ْاص ِ ُبوا َو ْاعلَ ُموا أََّن الْ َجَّن َة تَ ْح َت ِظ ِالَل ُّالسيُ ِوف ـ ثَُّم قَ َال ـ اللَّ ُهَّم ُم ْن ِز َل الْ ِكتَ ِاب َو ُم ْج ِر َي َّالس َح ِاب َو َه ِاز َم األَ ْح َز ِاب ْاه ِز ْم ُه ْم َوانْ ُ ْصنَا َعلَيْ ِه ْم ". َوقَ َال ُم َوس بْ ُن ُع ْقبَ َة َحَّدثَ ِني َسالِم أَبُو َّالن ْ ِض ْكُن ُت كَاتِبًا لِ ُع َم َر بْ ِن ُعبَيْ ِد اللَّ ِه فَأَتَ ُاه ِكتَ ُاب َعبْ ِد اللَّ ِه بْ ِن أَ ِب أَ ْو َف ـ رىض الله عنهم أََّن َر ُس َول اللَّ ِه صل الله عليه وسلم قَ َال "الَ َتََّن ْوا لِ َق َاء الْ َع ُدو" 50. Q. Surah 47:44. 51. Q. Surah 2:216 and see Q. Surah 42:41. 52. Q. Surah 2: 217, 2:191 and 4:75-78. 53. Bashier, War and Peace, 229-233. 54. Q. Surah 12:92. 55. Ibn Ishaq, Kitab al-Maghazi, Vol. 1, 285-286; Abu Ja’far Muhammad ibn Jarir al-Tabari, Tarikh al-Rusul wa al-Muluk (Beirut: Dar al-Sadr, 2008), Vol. 1, 397. 56. Ibn Ishaq, Kitab al-Maghazi, Vol. 2, 850; Al-Tabari, Tarikh, Vol. 2, 459. 57. Q. Surah 8.57. 58. Q. Surah 5:45. 59. Q. Surah 2:194: “if any one transgresses against you, you may retaliate against them to an equal extent”. 60. Cf. Q. Surah 42:40-3. 61. Cf. Khadduri, War and Peace, 96-8. 62. Ibid., 98. Cf. Sunan al-Tirmidhi (Cairo: Dar al-Hadith, 1999), Vol. 3, 526, hadith 1548: Abu al-Bakhtari narrated that an army of the Muslims, commanded by
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Salman al-Farisi, besieged one of the Persian fortresses. They said: ‘O Abu ‘Abdullah! Should we attack them?’ He said: ‘Leave me to call them [to Islam] as I heard the Messenger of Allah (pbuh) call them.’ So Salman went to them and said: ‘I am only a man from among you, a Persian, and you see that the Arabs obey me. If you become Muslims then you will have the likes of what we have, and from you will be required that which is required from us. If you refuse, and keep your religion, then we will leave you to it, and you will give us jizya from your hands while you are submissive.’ He said to them in Persian: ‘And you are other than praiseworthy and if you refuse then we will equally resist you.’ They said: ‘We will not give you jizya. We will fight you instead.’ So they said: ‘O Abu ‘Abdullah! Should we attack them?’ He said: ‘No.’ He said: “So for three days he made the same call to Islam, and then he said: ‘Attack them.’” He said: “So we attacked them, and we conquered the fortress.” حدثنا قُتَيْبَ ُة، َحَّدثَ َنا أَبُو َع َوانَ َة، َع ْن َعطَ ِاء بْن السائب َّالسائِ ِب، َع ْن أَ ِب الْبَ ْخ َ ِت ِّي، أََّن َجيْشًا، ِم ْن ُجيُ ِوش الْ ُم ْس ِل ِم َني َكَان أَ ِم َري ُه ْم ِ َسلْ َم ُن الْ ِفَارِ ُّس َح َ ُاصوا قَ ْ ًصا ِم ْن قُ ُص ِور فَ ِار َس فَ َقالُوا يَا أَبَا َعبْ ِد اللَّ ِه أَالَ نَْن َه ُد ِإلَيْ ِه ْم قَ َال َد ُع ِون أَ ْد ُع ُه ْم َكَم َس ِم ْع ُت َر ُس َول اللَّ ِه صل الله عليه وسلم يَ ْد ُع ُوه ْم. فَأَتَ ُاه ْم َسلْ َم ُن فَ َق َال لَ ُه ْم ِإَّنَا أَنَا َر ُجلٌ ِم ْن ُك ْم فَ ِارِ ٌّس تَ َر ْو َن الْ َع َر َب يُ ِط ُيعونَِني فَِإ ْن أَ ْسلَ ْمتُ ْم فَلَ ُك ْم ِمثْلُ الَّ ِذي لََنا َو َعلَيْ ُك ْم ِمثْلُ الَّ ِذي َعلَيْ َنا َوِإ ْن أَبَيْتُ ْم ِإالَّ ِد َين ُك ْم تَ َر َكْن ْاكُم َعلَيْ ِه َوأَ ْعطُونَا الْ ِج ْزيَ َة َع ْن يَ ٍد َوأَنْتُ ْم َص ِاغ ُر َون. قَ َال َو َرطَ َن ِإلَيْ ِه ْم ِبالْ ِفَار ِسيَّ ِة َوأَنْتُ ْم َغ ْ ُري َم ْح ُم ِود َين. َوِإ ْن أَبَيْتُ ْم نَابَ ْذنَ ْاكُم َعلَ َس َو ٍاء. قَالُوا َما نَ ْح ُن ِبالَّ ِذي نُ ْع ِطي الْ ِج ْزيَ َة َولَ ِكَّنا نُ َقاتِلُ ُك ْم. فَ َقالُوا يَا أَبَا َعبْ ِد اللَّ ِه أَالَ نَْن َه ُد ِإلَيْ ِه ْم قَ َ الالَ. فَ َد َع ُاه ْم �ثَالَثَ َة أَيَّ ٍام ِإلَ ِمثْ ِل َه َذا ثَُّم قَ َال انْ َه ُدوا ِإلَيْ ِه ْم. قَ َال فََن َه ْدنَا ِإلَيْ ِه ْم فَفَتَ ْحَنا َذلَِك الْ َق ْ َص. قَ َال َوِيف الْبَ ِاب َع ْن بُ َريْ َدةَ َو ُّالن ْع َم ِن بْ ِن ُم َق ِّر ٍن َوابْ ِن ُع َم َر َوابْ ِن َعبَّ ٍاس. َو َح ِد ُيث َسلْ َم َن َح ِد ٌيث َح َس ٌ نالَ نَ ْع ِرفُ ُه ِإالَّ ِم ْن َح ِد ِيث َعطَ ِاء بْ ِن َّالسائِ ِب. َو َس ِم ْع ُت ُم َحَّم ًدا يَ ُق ُول أَبُو الْبَ ْخَِت ِّي لَ ْم يُ ْد ِرْك َسلْ َم َنألَنَّ ُه لَ ْم يُ ْد ِرْك َعِليًّا َو َسلْ َم ُن َم َات قَبْلَ َعِ ٍّل. َوقَ ْد َذ َه َب بَ ْع ُض أَ ْه ِل الْ ِعلْ ِم ِم ْن أَ ْص َح ِاب َّالن ِّبِي صل الله عليه وسلم ِإلَ َه َذا َوَرأَ ْوا أَ ْن يُ ْد َع ْوا قَبْلَ الْ ِقتَ ِال َو ُه َو قَ ْوُل ِإ ْس َح َاق بْ ِن ِإبْ َر ِاه َيم قَ َال ِإ ْن تُ ُق ِّد َم ِإلَيْ ِه ْم ِيف َّالد ْع َوِة فَ َح َس ٌن يَ ُك ُون َذلَِك أَ ْهيَ َب. َوقَ َال بَ ْع ُض أَ ْه ِل الْ ِعلْ ِ مالَ ِد ْع َوةَ الْيَ ْو َم. َوقَ َال أَ ْح َم ُدالَ أَ ْع ِر ُف الْيَ ْو َم أَ َح ًدا يُ ْد َعى. َوقَ َال َّالش ِاف ِع ُّ يالَ يُ َقاتَلُ الْ َع ُد ُّو َحتَّى يُ ْد َع ْوا ِإالَّ أَ ْن يَ ْع َجلُوا َع ْن َذلِ َك فَِإ ْن لَ ْم يَ َفْعلْ فَ َق ْد بَلَ َغتْ ُه ُم َّالد ْع َوةُ. 63. Imam Muhammad Shirazi, War, Peace and Non-violence: An Islamic Perspective (London: Fountain Books, 2003 ed.), 28-9. 64. It even applied to the quarrels that the Qur’an criticises most: those between different Muslim groups. If one side aggressively “transgressed beyond bounds,” the other side was permitted to fight back in self-defence, but only until the aggressor desisted, at which point war was to end and reconciliation was to occur. Cf. Surah 49:9-10. 65. Tafsir Ibn Kathir, Volume 1, 609. 66. Al-Waqidi, Kitab al-Maghazi, Vol. 2, 758. 67. Q. Surah 22:40. 68. Al-Muwatta Iman Malik bin Anas (Cairo: Dar al-Hadith, 2005), page 319, Book 21, Chapter 3, Hadith 10: “Do not kill a woman or a child or an aged person. Do not cut down fruit-bearing trees. Do not destroy any place of dwelling. Do not slaughter sheep or camels, except [if you need them] for food. Do not burn bees and do not scatter them. Do not steal from the booty, and do not be cowardly.” َو َحَّدثَ ِني َع ْن َمالِ ٍك، َع ْن يَ ْحيَى بْ ِن َس ِع ٍيد، أََّن أَبَا بَ ْك ٍر ِّالص ِّد َيق، بَ َع َث ُجيُوشً ا ِإلَ َّالش ِام فَ َخ َر َج َميْ ِش َم َع يَ ِز َيد بْ ِن أَ ِب ُسفْيَ َان - َو َكَان أَ ِم َري ُربْعٍ ِم ْن تِلْ َك األَ ْربَ ِاع - فَ َز َع ُموا أََّن يَ ِز َيد قَ َال ألَ ِب بَ ْك ٍر ِإَّما أَ ْن تَ ْر َكَب َو ِإَّما أَ ْن أَنْ ِز َل . فَ َق َال أَبُو بَ ْك ٍر َما أَنْ َت ِب َن ِاز ٍل َو َما أَنَا ِب َر ِاك ٍب ِإنِّ أَ ْحتَ ِس ُب ُخطَ َاى َه ِذ ِه ِيف َس ِبِيل اللَّ ِه ثَُّم قَ َال لَ ُه ِإنَّ َك َستَ ِج ُد قَ ْو ًما َز َع ُموا أَنَّ ُه ْم َحبَّ ُسوا أَنْ َفُس ُه ْم لِلَّ ِه فَ َذ ْر ُه ْم َو َما َز َع ُموا أَنَّ ُه ْم َحبَّ ُسوا أَنْ َفُس ُه ْم لَ ُه َو َستَ ِج ُد قَ ْو ًما فَ َح ُصوا َع ْن أَ ْو َس ِاط ُر ُء ِوس ِه ْم ِم َن َّالش َع ِر فَ ْ ِاض ْب َما فَ َح ُصوا َع ْن ُه ِبَّالسيْ ِف َو ِإنِّ ُم ِوص َيك ِب َع ْ ٍش الَ تَ ْقتُلََّن ْام َرأَةً َوالَ َصبِيًّا َوالَ . ًكَبِريا َه ِر ًما َوالَ تَ ْقطَ َعَّن شَ َج ًرا ُمثْ ِم ًرا َوالَ تُ َخ ِّربََّن َع ِام ًرا َوالَ تَ ْع ِق َرَّن شَ اةً َوالَ بَ ِع ًريا ِإالَّ لِ َمْكُلَ ٍة َوالَ تَ ْح ِرقََّن نَ ْحالً َوالَ تُ ِّفَرقََّن ُه َوالَ تَ ْغلُلْ َوالَ تَ ْج ُ ْب 69. Al-Tabari, Tarikh, Vol. 2, 518. 70. Muhammad Munir, “The Protection of Civilians in War: Non-Combatant Immunity in Islamic Law”, Hamdard Islamicus, Vol. XXXIV, No. 4 (October-
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December 2011), 7-39; Ahmed Mohsen Al-Dawoodi, The Islamic Law of War: Justifications and Regulations (New York: Palgrave , 2011), 111-4. 71. Q. Surah 6:151, 17:33, 25:68. 72. Q. Surah 5:33-4. 73. Q. Surah 5:8 (and see 5:2). 74. Q. Surah 3:134. 75. Fatoohi, Jihad in the Qur’an, 73. 76. Mathnawi I: 3721ff. published online at: http://www.dar-al-masnavi.org/ n-I-3721.html 77. Sunan Abu Dawud (Riyadh: Dar al-Haddarah lil-Nasha wa al-Tawziyyah, 2015), 599, hadith 4779: َحَّدثَ َنا أَبُو بَ ْك ِر بْ ُن أَ ِب شَ يْبَ َة، َحَّدثَ َنا أَبُو ُم َع ِاويَ َة، َع ِن األَ ْع َم ِش، َع ْن ِإبْ َر ِاه َيم التَّيْ ِم ِّي، َع ِن الْ َح ِار ِث بْ ِن ُس َويْ ٍد، َع ْن َعبْ ِد اللَّ ِه، قَ َال قَ َال َر ُس ُول اللَّ ِه صل الله عليه وسلم " َما تَ ُع ُّد َون ُّ َالص َع َة ِف ُيك ْم". قَالُوا الَّ ِذي الَ يَ ْ َص ُع ُه ِّالر َج ُال. قَ َال "الَ َولَ ِكَّن ُه الَّ ِذي َميْ ِل ُك نَ َفْس ُه ِع ْن َد الْ َغ َض ِب". 78. Sunan al-Tirmidhi, Vol. 3, 400, hadith 1334: َحَّدثَ َنا قُتَيْبَ ُة، َحَّدثَ َنا أَبُو َع َوانَ َة، َع ْن َعبْ ِد الْ َم ِل ِك بْ ِن ُع َم ْ ٍري، َع ْن َعبْ ِد َّالر ْح َم ِن بْ ِن أَ ِب بَ ْك َرةَ، قَ َال كَتَ َب أَ ِب ِإلَ ُعبَيْ ِد اللَّ ِه بْ ِن أَ ِب بَ ْك َرةَ َو ُه َو قَ ٍاض أَ ْن الَ، تَ ْح ُك ْم بَ ْ َني اثْ َن ْ ِني َوأَنْ َت َغ ْضبَ ُان. فَ ِإنِّ َس ِم ْع ُت َر ُس َول اللَّ ِه صل الله عليه وسلم يَ ُق ُول "الَ يَ ْح ُك ُم الْ َح ِاك ُم بَ ْ َني اثْ َن ْ ِني َو ُه َو َغ ْضبَ ُان". قَ َال أَبُو ِع َيس َه َذا َح ِد ٌيث َح َس ٌن َص ِح ٌيح. َوأَبُو بَ ْك َرةَ ْاس ُم ُه نُفَيْ ٌع. 79. Q. Surah 43:88-9. 80. Q. Surah 16:125-8. 81. Q. Surah 49:13. 82. Q. Surah 2:62. 83. Q. Surah 5:69. 84. Fatoohi, Jihad in the Qur’an, 25-6. 85. Q. Surah 29:69. 86. Sunan an-Nasa’i (Riyadh: Darussalam, 1999 edition), 357, hadith 2578. 87. Q. Surah 25:52. 88. Fatoohi, Jihad in the Qur’an, 87. 89. This hadith is found in Jalal al-Din al-Suyuti’s book, Al-Durar al-Muntathira fi al-Ahadith al-Mushtahara, ed. by Muhammad ‘Ab-al-Rahim (Beirut: Dar al- Fiqh, 1995 ed.). 90. Sunan an-Nasa’i, 587, hadith 4214: أَ ْخ َ َبنَا ِإ ْس َح ُاق بْ ُن َم ْن ُص ٍور، قَ َال َحَّدثَ َنا َعبْ ُد َّالر ْح َم ِن، َع ْن ُسفْيَ َان، َع ْن َعلْ َق َم َة بْ ِن َم ْرثَ ٍد، َع ْن طَ ِار ِق بْ ِن ِش َه ٍاب، أََّن َر ُجالً، َسأَ َل َّالنَّبِي صل الله عليه وسلم َوقَ ْد َو َض َع ِر ْجلَ ُه ِيف الْ َغ ْر ِز أَ ُّى الْ ِج َه ِاد أَفْ َضلُ قَ َال " ِكَل َم ُة َح ٍّق ِع ْن َد ُسلْطَ ٍان َجائِ ٍر." 91. Sunan al-Tirmidhi, Vol. 3, 100, hadith 796: َحَّدثََنا قُتَيْبَ ُة، َحَّدثََنا َعبْ ُد الْ َو ِاح ِد بْ ُن ِزيَ ٍاد، َع ِن الْ َح َس ِن بْ ِن ُعبَيْ ِد اللَّ ِه، َع ْن ِإبْ َر ِاه َيم، َع ِن األَْس َو ِد، َع ْن َعائِ َشَة، قَالَ ْت َكَان َرُس ُول اللَّ ِه صل الله عليه وسلم يَ ْجتَ ِه ُد ِيف الْ َع ْ ِش األَ َو ِاخ ِر َما الَ يَ ْجتَ ِه ُد ِيف َغ ْ ِري َها . قَ َال أَبُو ِع َيس َه َذا َح ِد ٌيث َح َس ٌن َص ِح ٌيح َغ ِر ٌيب Cf. Sahih Muslim (Cairo: Dar Al-Ghad Al-Gadid, 2007), 398, hadith 1175. 92. http://www.winstonchurchill.org/learn/speeches/speeches-of-winston- churchill/1940-finest-hour/128-we-shall-fight-on-the-beaches 93. Cf. Chapter V in Khadduri, War and Peace. 94. Karen Armstrong, “The True, Peaceful Face of Islam” Time, 23 September 2001, available online at: http://www.time.com/time/magazine/ article/0,9171,1101011001-175987,00.html. Access date: 1 April 2011.
ICR 9.3 Produced and distributed by IAIS Malaysia STONING AS PUNISHMENT OF ZINA: IS IT VALID? Mohammad Hashim Kamali*
Abstract: Three issues are explored in this article with regard to death by stoning as a punishment for adultery. First is its total absence in the Qur’an; the Qur’an makes no reference to stoning, providing a punishment of one hundred lashes of the whip for all adulterers, without any further qualification. Stoning as a punishment originates in the Sunnah of the Prophet, who applied it in the case of married adulterers, thus seemingly reserving the Qur’anic punishment for the unmarried adulterer. This perspective has dominated legal practice ever since. The second issue arising is as to how the conflicting rulings in the Qur’an and Sunnah relate to one another. Is it a case of specification (takhsis) or of abrogation (naskh)? If the latter, is it in order for the Sunnah to abrogate the Qur’an? The third issue is over the chronological sequence of the two rulings. If it is accepted that the Qur’anic ruling was revealed in Madinah after the few cases in which the Prophet applied stoning, then the Qur’an would have effectively overruled/abrogated the Prophetic practice. It is also said that the Prophet applied stoning by reference to the Torah, which was then set aside by the Qur’an. A minority opinion has also held that the Prophet applied stoning by way of ta’zir. A number of prominent twentieth-century shariah scholars have advised against the enforcement of stoning altogether. Keywords: Qur’an, Sunnah, stoning, abrogation, ta’zir, modern opinion.
Zina in shariah is inclusive of adultery and fornication. The latter refers to consensual sexual intercourse between unmarried adults, whereas adultery is extramarital sex. Zina is defined as illicit sexual intercourse outside of marriage between a man and a woman while both know that they are prohibited to one another. Initially the Qur’an penalised adultery with imprisonment and detention of the accused women in their houses “until death came to them, or God ordained for them some other way,” (sura al-Nisa’, 4:15) provided that the charge was proven by the testimony of four upright witnesses. This was taken to mean a temporary measure awaiting a more definite pronouncement, which subsequently came in sura al-Nur (24:2), which determined one hundred lashes of the whip for both parties as standard Qur’anic punishment for the offence. In both of these two separate verses, the emphasis on repentance and reform is clearly articulated. Later it was claimed that the second of these punishments (of 100
ISLAM AND CIVILISATIONAL RENEWAL STONING AS PUNISHMENT OF ZINA: IS IT VALID? 305 lashes) was abrogated in respect of married persons by the Sunnah of the Prophet, who ordered stoning to death (rajm) for a married adulterer. This meant that the Qur’anic 100 lashes remained applicable only to unmarried adulterers. A general consensus (ijma’) was also claimed, although disputed by many, for this instance of partial abrogation of the Qur’an by the Sunnah.1 The Qur’an makes no reference to stoning, and the hadith that imposes this punishment is open to many questions. Yet the majority (jumhur) of Muslim jurists have upheld stoning for zina by a married person (muhsan), restricting the Qur’anic one hundred lashes to unmarried persons. The variant opinion on this subject, as elaborated below, maintains that the Qur’anic punishment of one hundred lashes applies to everyone, married and unmarried alike. This article ascertains the veracity of these views by looking at the evidential bases of each in the Qur’an, Sunnah and fiqh. This is then followed by a round-up of modern opinion on the subject among prominent shariah scholars, and a conclusion. We begin with a review of the Qur’anic verses. The principal Qur’anic verse on zina and slanderous accusations of zina provides:
ّالزانِيَ ُة َو ّالزان فَ ِاجلدوا َّكُل ِواح ٍد ِم ُنهم ِمائَ َة َج َلد ٍة ۖ َوال تَ ُأخذكُم ِب ِهم َرأفَ ٌة يف ِدين اللَّ ِه ِإن كُنتُم تُ ِؤم َنون ِباللَّ ِه َواليَ ِوم ِاآلخ ِر ۖ َوليَ َشهد َعذابَ ُهم طائِ ٌفَة ِم َن املُ ِؤم َنني﴿2﴾ َوالَّ َذين يَ َرمون املُ َحص ِنات ثَُّم لَم يَأتوا ِبأَربَ َع ِة َشُه َداء فَ ِاجل ُدوهم َث َانني َج َلدةً َوال تَقبَلوا لَ ُهم َشَهادةً .أَبَ ًدا ۚ َوأُولٰ ِئ َك ُه ُم ِالفاس َقون﴿4﴾ 2. The adulterer and adulteress, flog each of them a hundred lashes. Let not compassion move you in their case from carrying out God’s law, if you believe in God and the Last Day. And let a party of the believers witness their punishment…
4. And those who lay a charge against a chaste woman, and produce not four witnesses (to prove it) flog them with eighty lashes, and do not admit them to be witnesses ever again, for they are evil- doers – unless they repent thereafter and correct themselves. For God is Forgiving, most Merciful. (Sura al-Nur, 24: 2-5)
The majority position, as well as that of the Shia Imamiyah, upholds that the Prophet implemented stoning for zina during his ten-year rule in Madinah. They add that the available hadith on stoning specify the general of the Qur’an; the 100 lashes are thus applied generally, which has then been specified with regard to married persons.2 Qur’an commentators understand the phrase “let
ICR 9.3 Produced and distributed by IAIS Malaysia 306 MOHAMMAD HASHIM KAMALI not compassion move you in their case” to mean that the punishment in their case should not be postponed nor reduced in severity on grounds of compassion. This interpretation is attributed to three Successors (tabi’in), namely Mujahid, ‘Ikrimah, and Sa’id bin Jubayr. According to another interpretation, since the verse makes no reference to married or unmarried persons as such, the 100 lashes therein apply to all without any distinction.3 The majority view elaborates that the Prophet applied stoning in the widely reported cases of Ma’iz b. Malik al-Aslami and al-Ghamidiyyah, as reported by the Companion Abu Hurayrah. It is then added that the Pious Caliphs also applied stoning; their precedent is generally seen as conclusive evidence on the continued validity of this punishment. We look at the reported details of these cases as follows. Ma’iz belonged to the Aslam tribe and was an orphan. He was brought up by Hazal bin Na’im, and it was in Hazal’s house that Ma’iz committed adultery with a freed slave girl. Upon learning this, Hazal, who did not know about the punishment of stoning, as the report says, sent Ma’iz to the Prophet. He instructed Ma’iz to admit to his guilt before the Prophet and request him to pray for the atonement of his sin. Ma’iz came to the Prophet and said: “Purify me for I have committed adultery.” The Prophet turned his face away from Ma’iz and told him to go away and repent. Ma’iz repeated what he had said twice, but the Prophet avoided answering him on both occasions. Abu Bakr (later caliph) who was also present reminded Ma’iz that if he repeated it for the fourth time, the Prophet would have to order him stoned. But Ma’iz repeated the same for the fourth time. The Prophet then inquired about minute factual details. He inquired whether Ma’iz might have been drunk, which he denied. Then the Prophet inquired from the people of his tribe over the sanity of Ma’iz. Finally, the Prophet addressed Hazal with this remark, “I wish you had pulled a curtain over it,” and ordered the stoning of Ma’iz.4 The variant view that questions the validity of stoning is based on the observation that the Qur’an is totally silent on stoning; had God Most High intended to validate stoning as a punishment, surely the Qur’an would make reference to it. This view has also questioned the evidence in the Sunnah by saying that the reported instances of stoning actually took place prior to the revelation of sura al-Nur (24:2-5), which prescribes 100 lashes as the only punishment for zina. If this is accepted, it would mean that the Qur’an overruled and abrogated stoning. It is further argued that the evidence in the Sunnah is only in the form of solitary (ahad) hadith. The fact that there is inconsistency in the contents of these hadith reports only aggravates the situation further. It is further stated that some of the hadith reports on al-Ghamidiyyah contain a reference to banishment (al-taghrib) as a supplementary punishment to stoning,
ISLAM AND CIVILISATIONAL RENEWAL STONING AS PUNISHMENT OF ZINA: IS IT VALID? 307 although this element is absent in other hadith reports concerning this case. There is a similar discrepancy in other hadith concerning the question of combining stoning with flogging. In some reports, flogging is held to be supplementary to stoning, whereas other hadith reports mention stoning as the only punishment, without reference to flogging. The Maliki and Shia schools have also upheld banishment for a year as a supplementary punishment, but while applying it only to men, as banishment for women could expose them to corruption. The other schools require that women be accompanied by a male relative (mahram). In a chapter entitled “stoning for zina by a muhsan, and flogging for a non- muhsan,” al-Shawkani (d.1839) has recorded six hadith reports in Nayl al-Awtar, in which the following is observed:5
1. In the hadith of al-‘Asif (lit. employee or servant) an unmarried young man committed zina with a married woman who had employed him. The hadith provides further details to the effect that the Prophet sentenced al-‘Asif to 100 lashes and banishment of one year, while the woman was convicted to stoning only. The case has been reported in all Six Collections of hadith. The substance of this hadith, in so far as it concerns the woman, has also been confirmed by the hadith of Ma’iz. The conclusion has therefore been drawn that the Prophet did not combine lashing and stoning.
2. According to a hadith al-Bukhari recorded on the authority of Abu Hurayrah, the Prophet determined the punishment of zina by an unmarried person to be one hundred lashes and banishment for one year. وعن أب هريرة )رىض( أن النبي )ص( قىض يف من زنا ومل يحصن بنفي عام وإقامة الحد عليه 3. The hadith of ‘Ubadah b. al-Samit, in which the Prophet declared: “Take it from me, take it from me: Allah has opened a way for them. The unmarried and virgin are liable to one hundred lashes and banishment for a year. For a married person the punishment is one hundred lashes and stoning.” خذوا عني خذوا عني قد جعل الله لهن سبيال : البكر جلد مائة ونفي سنة , والثيب بالثيب ,جلد مائة والرجم Except for al-Bukhari and al-Nasa’i, this hadith has been recorded in the rest of the Six Hadith collections. Al-Zayla’i records that this is probably one of the earliest hadiths on the subject.6 This hadith is apparently in conflict with the hadith of al-‘Asif, cited above, and also the hadith of Ma’iz in which the punishment of a married person was confined to stoning only, without flogging. Al-Sarakhsi has stated the Hanafi
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position, which is also that of the majority: that stoning and flogging may not be combined together because flogging a person who is sentenced to stoning seems superfluous and does not serve any good purpose.7 The leading schools of law have maintained that the Prophet never combined the two punishments of stoning and flogging.8 But unlike the majority, who combine flogging with banishment, the Hanafis do not accept this combination either. 4. The hadith of Jabir b. Samurah to the effect that “the Prophet ordered that Ma’iz b. Malik be stoned to death but did not mention flogging.” Al-Shawkani wrote concerning this hadith that, notwithstanding the fact that only Imam Ibn Hanbal and al-Nasa’i reported it, “its transmitters are reliable.” 5. The report from al-Sha’bi, recorded by al-Bukhari and Ahmad b. Hanbal, to the effect that the fourth caliph, ‘Ali b. Abu Talib, applied the prescribed punishment of zina on a married woman by the name Sharahah al-Hamadaniyyah consisting of both stoning and flogging. She was flogged on a Thursday and stoned on the Friday, and the Caliph is reported to have said “I flogged her in accordance with the Book of God and stoned her in accordance with the Sunnah of the Prophet.” This is once again inconsistent with the hadith of both al-‘Asif and Ma‘iz, in which flogging was not applied in combination with stoning. A further inconsistency here is that al-Bukhari (Kitab al-Muharibun, Bab Rajm al- Muhsan) has recorded only a shorter version of this hadith, in which there is no mention of flogging. According to this version, Caliph ‘Ali only said “I stoned her in accordance with the Sunnah of the Prophet.”9 6. The hadith of Jabir b. ‘Abd Allah, reported by Abu Dawud, that “a man committed zina with a woman and the Prophet applied the prescribed punishment on him. Then he was informed that the man was a muhsan, upon receiving this information the Prophet sentenced him to stoning and he was stoned”.
Al-Shawkani has also recorded the hadith of Sahl b. Sa’d, to the effect that the Prophet flogged but did not banish an unmarried man from the tribe of Bakar who confessed to having committed zina.10 The Hanafi jurist al-Zayla’i wrote that the hadith of ‘Ubadah b. al-Samit (no. 3 above) has been abrogated, explaining this by stating that initially the punishment for zina was unspecified, but could be any painful al-idha’ act( ).
ISLAM AND CIVILISATIONAL RENEWAL STONING AS PUNISHMENT OF ZINA: IS IT VALID? 309
Then it became incarceration, as prescribed in the two verses of sura al-Nisa 4:15- 16, where it states fa-adhuhuma (punish/annoy them both) and famsikuhunnna fi’l buyut (detain the women in their houses) respectively. These portions of the Qur’an were subsequently abrogated by the hadith of ‘Ubadah b. al-Samit, which fixed the punishment of an unmarried person at one hundred lashes and banishment for one year, and that of the married person at flogging and stoning. But all this happened, al-Zayla’i adds, before the revelation of sura al-Nur, as has been indicated in the hadith of ‘Ubadah b. al-Samit, which began with the words khudhu ‘anni (take it from me). Had the Prophet uttered this hadith after sura al-Nur, he would most likely have said khudhu ‘an Allah (take it from God). The hadith of ‘Ubadah was thus abrogated by sura al-Nur, which established flogging of one hundred lashes as the only punishment for all cases of zina. But then, al-Zayla’i further adds, this verse was also partially abrogated in regards to a married person by the application of stoning to Ma’iz and al-Ghamidiyyah.11 There is further information, however, which casts doubt upon the timings of the punishments metered out to Ma’iz and al-Ghamidiyyah. The relevant report recorded by al-Bukhari has it that a Companion, Ibn Abi Awfa’, was asked by one al-Shaybani, who was a Follower (tabi’i): “Did the Prophet apply the punishment of stoning?” Abi Awfa’ said “Yes.” He was then asked whether this was before the revelation of sura al-Nur or after, to which he replied “I do not know.” This raises doubts as to whether the ahadith which validated stoning and the actual cases in which stoning was implemented preceded the revelation of sura al-Nur, and so whether they were consequently abrogated by it. That prior to this event the Prophet might have simply applied stoning by reference to the ruling of the Torah is therefore possible.12 Even al-Zayla’i, who considered the hadith of al-Ghamidiyyah to have partially abrogated the Qur’anic verse in sura al-Nur, recorded two variant versions of that hadith, one of which is explicit to the effect that the Prophet postponed the stoning of al-Ghamidiyyah until the weaning of her child, and the other which omits this part and suggests that she was stoned to death as soon as a man from the Anhar undertook custody of her child. To this al-Zayla’i commented that “It is possible that there were two women from the tribe of Ghamid, one whose punishment of stoning was delayed until the weaning of her child, and the other who was stoned without such a delay. It is also possible that one of them was from the tribe of Ghamid and the other from another tribe but that the narrator made a mistake in reporting, and God Knows Best.”13 The various references above to abrogation (naskh) raise methodological questions and warrant a brief discussion. A basic question arises as to whether abrogation is of any relevance to the issue before us. In answer, it may be noted that only the Hanafis consider it
ICR 9.3 Produced and distributed by IAIS Malaysia 310 MOHAMMAD HASHIM KAMALI relevant, not the majority. The majority, including Imam al-Shafi’i, have viewed the provisions of the Qur’an and Sunnah on the punishment of zina within the context of specification of the general takhhih( al-‘aam), saying that the general provision of the Qur’an has in this instance been specified by the Sunnah. The Qur’an laid down a certain punishment and the Sunnah adjusted it in respect of married persons. The Hanafis have, however, seen this as a case notof specification, but of partial abrogation of the Qur’an by the Sunnah on the analysis that death by stoning is a capital punishment on which the Qur’an is silent, and if the Sunnah validates it over and above the Qur’anic provision of flogging, then the issue involved is one of abrogation rather than mere specification. This seems a sound argument as flogging can logically not be specified by death, which far exceeds flogging and the logical boundaries of ‘specification’. Another question is whether the Sunnah can actually abrogate the Qur’an. Although the majority admit in principle the validity of abrogation of the Qur’an by the Sunnah, many prominent scholars, including Imam al-Shafi’i, have held otherwise, stating that it is the proper role of the Sunnah to explain and supplement the Qur’an, not abrogate it. This is again a sound statement of principle, which Imam al-Shafi’i has explicitly adopted in his exposition on the theory of abrogation.14 This would naturally imply that abrogation should not be too readily utilised, that it must be seen as the last resort. The fiqh scholars have consequently shown reluctance in invoking abrogation in order to resolve the discrepancy between the Qur’an and Sunnah on the punishment of zina. The Hanafis have further added that all the ahadith on the subject of stoning are solitary (Ahad) reports which are not totally devoid of doubt; it would be incorrect to validate death by stoning on the basis of doubtful evidence. Indeed, Imam Abu Hanifah has considered the hadith of al-Ghamidiyyah to be doubtful, meaning it should not be given credibility.15 By contrast, the Qur’anic text on the punishment of flogging for zina is perspicuous (muhkam), definitive and conclusive, leaving no room for speculative interpretation. Certainly, Imam al- Shafi’i’s understanding of abrogation is that only the Qur’an can abrogate the Qur’an. Since the Qur’an is the first source of shariah, it is superior in respect of both authority and authenticity to the Sunnah. Hence any incidence of conflict between the definitive text of the Qur’an and Ahad hadith should naturally be determined in favour of the Qur’an. But al-Shafi’i, along with the majority, maintains that the general of the Qur’an has been specified by the Sunnah in respect to zina and married persons. There is also the report attributed to the second caliph ‘Umar, in which he stated that the Qur’anic text on flogging for zina was abrogated by the Qur’an itself. It is thus stated that a verse was revealed as a part of sura al-Ahzab (33),
ISLAM AND CIVILISATIONAL RENEWAL STONING AS PUNISHMENT OF ZINA: IS IT VALID? 311 which declared that “when a married man or woman commits adultery, stone them to death as a deterrence from God, and God is Most Powerful, Most Wise.” الشيخ والشيخة إذأ زنيا فارجموهم البتة نكاال من الله والله عزيز حكيم It is stated that, although this verse did not become part of the Qur’anic text, its ruling did become part of the shariah. The reported addition was not incorporated into the standard text simply because it did not amount to something continuously proven (mutawatir), and anything less than mutawatir cannot, as a rule, become a part of the Qur’an. ‘Umar al-Khattab has widely been quoted as having said “had it not been for people saying that ‘Umar made an addition to the Qur’an, I would have added this to the Qur’an.” The renowned Qur’an commentator, Shihab al-Din al-Alusi (d.1854), however, after related this incident in his Tafsir al-Ma’ani, concluded that the evidence in support of it is doubtful, adding that the prominent Hanafi jurist, Kamal al-Din ibn al-Humim (d.1457), arrived at the same conclusion. Both scholars have also said that the actual wording of the alleged verse falls short of the eloquent style of the Qur’an, besides which the notion that there was an addition to the Qur’an on stoning that God Most High ordered the Prophet to eliminate from the text while retaining its ruling sounds rather imaginary. This is also the position taken by the Kharijites and the Mu’tazilah who have held that, had God willed stoning for zina, He would have made a clear provision in the Qur’an for it. The conclusion is thus drawn that ‘Umar’s report of the added verse remains doubtful and cannot overrule the clear text on flogging. The claim that the Companions reached a consensus on ‘Umar al-Khattab’s version of events has also been questioned, both by Ibn al-Humam and al- Alusi. They have stated that it is debatable whether a tacit consensus (a1-ijma’ al-sukuti) of this kind could present credible evidence in the face of the clear text of the Qur’an. The fact is that by the time of caliph ‘Umar, most leading Companions had either lost their lives (in the wars of apostasy etc.) or were away from Madinah. This weakens the claim of general consensus (ijma’) in support of ‘Umar’s version of events, for which there is only ‘Umar’s word, with other Companions having remained silent concerning it.16 Concerning banishment as a supplementary punishment, the Hanafis and the Shia Imamiyyah have held that the punishment of an unmarried person is one hundred lashes only, but if the head of state decides to banish the fornicator, he may do so by way of shariah-oriented policy (siyasah shar’iyyah). They maintain, however, that this is not a requirement. Imam Shafi’i maintained, on the other hand, that banishment for one year was a requirement and an integral part of the prescribed punishment for an unmarried person, be they male or female.
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This was also the position of the Hanbalis and the Zahiriyah. But Imam Malik (d.795) and al-Awza’i (d.774) have exempted women from this ruling based on considerations of public interest (maslahah), so as to prevent further indulgence in corruption. It is also stated that the requirement that a woman may only be banished with the company of a close relative would mean that an innocent person is also condemned to banishment. The Hanafis have further added that the Pious Caliphs, including ‘Umar al-Khattab, are on record as having punished zina by unmarried persons with flogging only, without banishment.17
Modern Opinion on Stoning (Rajm)
This section examines the views of Muhammad ‘Abduh and his disciple, Muhammad Rashid Rida, in addition to those of Muhammad Abu Zahrah, Mustafa Ahmad al-Zarqa, Yusuf al-Qaradawi, Sheikh ‘Ali Gomma, and others on both death by stoning as a punishment for adultery and the meaning of muhsan (lit. guarded person) on whom it is applied. As already noted, the majority of the leading schools of Islamic law have upheld the validity of stoning for adultery. This position is, however, disputed by the proponents of a minority view, including the Mu’tazilah and Kharijites, who maintain that stoning was the punishment at an early stage before its abrogation by the revelation of the Qur’anic verse al-Nur 24:2 declaring 100 lashes for both men and women adulterers.18 As already reviewed, there are also differences of opinion as to how the ruling of the Sunnah on stoning relates to the Qur’an, whether by way of specification takhsis ( ) or of abrogation (naskh). Current practice in many Muslim countries, however, is dominated by the ruling of the Sunnah on stoning. Twentieth century scholars have reflected further on this and offered additional clarifications and insights. ‘Ali Mansur, author of Nizam al-Tajrim wal-‘Iqab fil-Islam(1976) and former President of the Constitutional Court of Egypt and Chairman of the Committee on the Harmonisation of Shariah and Law, wrote that “Muhammad Abu Zahrah, who is one of the leading scholars of shariah of this century sent to me in writing his opinion on the subject of stoning where he concluded that the evidence for this punishment was doubtful and it was therefore preferable not to apply it.”19 Mansur added that Abu Zahrah expressed his views at a conference in the Moroccan city of Casablanca on 22 Rabi’ al-Awwal 1392AH (6 May 1972). Abu Zahrah’s views on this matter have also appeared in his own book, Al-Jarimah wa’ l ‘Uqubah fi‘l- Fiqh al-Islami: al-‘Uqubah, published in several editions (initially in c.1959), which may be summarised as follows:
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1. There is no disagreement among the jurists and ulama of the four leading schools of Islamic law that the punishment of flogging forzina prescribed in the Qur’an applies to unmarried men and women. The majority (jumhur) have added that a male fornicator is also liable to banishment or imprisonment for a year so that he is not ostracised for what he has done and that, in course of time, the people may forget about it. Imam Malik has held that banishment should not apply to women convicted of zina for fear of immorality and corruption.20 2. As for the punishment of stoning for a married person, Abu Zahrah refers to the relevant ahadith, especially those of al-‘Asif, of ‘Umar al-Khattab (concerning the verse of stoning), Ma’iz and al-Ghamidiyyah. But then he notes that all of these ahadith are solitary; the mere fact that there are several of them does not elevate them to the rank of continuously proven, which status alone would inspire conviction and preclude the possibility of lying and doubt in the transmission of hadith. 3. Abu Zahrah draws attention to the hadith recorded in Sahih al-Bukhari that one of the Followers (tabi’un) asked a leading scholar (mujtahid) among the Companions whether sura al-Nur was revealed before the ahadith on stoning or after. As already noted, the Companion answered that he did not know. The full text of this hadith is as follows:
حدثني اسحاق كم حدثني خالد عن الشيبان قال :سألت عبد الله ابن أوف :هل رجم رسول الله )ص(؟ قال نعم قلت قبل سورة النور أم بعدها؟ قال : ال أدري Narrated from Ishaq - from Khalid - from ash-Shaybani: I asked ‘Abd Allah Ibn Abi Awfa, “Did God’s Messenger carry out the stoning punishment?” He said “Yes.” I then asked: “Before the revelation of sura al-Nur or after it?” He replied “I do not know.”21
Hadith scholars have, however, attempted to resolve the doubt raised in this report by saying that the ahadith of stoning came after the revelation of sura al-Nur, meaning the former abrogate the latter. This is why ‘Umar al-Khattab acted on the rulings of these ahadith. This position is seen to be supported by the fact that sura al-Nur was revealed in year four of the Hijrah (or according to some reports, year five or six), while the transmitters of the ahadith on stoning, namely Abu Hurayrah and Ibn ‘Abbas, came to Madinah in year seven and nine respectively. But, these individuals may have reported the ahadith from other Companions without actually saying so - hence the question still remains unanswered
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as to the timing of the hadith reports. The issue is then addressed on methodological grounds, as the majority maintain that the general (‘aam) does not abrogate the specific khas( ), but is itself specified even if the specific is later in time. The general terms of the verse of zina in sura al- Nur are thus seen as having been specified by the hadith. But the Hanafis, as already noted, do not allow this by means only of a solitary hadith, saying that the hadith in question must be either continuously proven or widely known (mutawatir or mashhur), and the ahadith on stoning do not qualify as either. The Hanafis have also considered the issue as one of abrogation and not specification. Furthermore, the Hanafis do not follow the hadith of al-‘Asif, despite the fact that it has been recorded by four of the Six Compilations of hadith, because the provision of banishment therein is an addition to the Qur’an and this cannot be done by means of a solitary hadith. The Qur’an has made no reference to banishment, and that must prevail over the doubtful addition of a solitary hadith. Although the Hanafis do not consider banishment to be obligatory, they maintain that the head of state is within his rights to combine it with flogging if he deems that this would serve a good purpose. Banishment, in other words, is not a part of the hadd punishment but may be added to it by way of ta’zir. This is also the view of the Imami and Zaydi Shia. The Imams Malik, Shafi’i, Ibn Hanbal, and the Zahiri school have, on the other hand, held that banishment is an integral part of the prescribed punishment on the authority of the hadith of al-‘Asif.22 4. At this point, Abu Zahrah relates the views of the Kharijites, some Shia, and Mu’tazillah to the effect that there is no other punishment for zina other than flogging. Had God intended to validate stoning, they argue, the Qur’an would have been explicit about it. Moreover, they further argue that stoning, as the most severe of all punishments, should be proven by decisive evidence from either the Qur’an or hadith mutawatir before being implemented. Although solitary hadith can create obligation and a shariah ruling, they cannot override what is proven by decisive evidence. Added to this is the unresolved doubt expressed by a Companion as to whether the stoning of Ma’iz and al-Ghamidiyyah preceded or succeeded the Qur’anic text. Stoning as a punishment also collapses on the basis of the ruling of a separate hadith, which is also a legal maxim of fiqh, that doubt suspends the implementation of hudud. ‘Ali Mansur then observes that “based on these reasons and the attending doubts concerning the proof of stoning and its severity, the learned author (Abu Zahrah) was not inclined to recommend its
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enforcement.”23 This is also intimated in Abu Zahrah’s own writings some fifteen year previously, which nevertheless stopped short of making a categorical statement on whether enforcement should be suspended.24 Abu Zahrah’s own analysis, however, contains additional information to the effect that stoning was initially introduced in the Torah, which was applied by the Jews and Christians. There is, in fact, clear confirmation in the Qur’an that the Jews of Madinah were governed by their own scripture:
َو َكَيف يُ َح ِّكمونَ َك َو ِع َند ُه ُم التَّوراةُ فيها ُح ُكم اللَّ ِه ثَُّم يَتَ َولَّ َون ِمن بَ ِعد ٰذلِ َك ۚ َوما أُولٰ ِئ َك ِباملُ ِؤم َنني And how do they make you a judge and they have the Torah wherein is God’s judgement! Yet they turn away after that! And these are not [true] believers.25
Qur’an commentators have identified the occasion of revelation for this verse as follows: a leading Jewish figure resident in Madinah had committed zina and the Jewish community was distressed by the predicament of having him stoned in accordance with the Torah. So they came to the Prophet in the hope of securing a lighter punishment for the accused. The Prophet, however, mentioned the ruling of the Torah to them.26 Mohammad Suleman Siddiqi’s research leads him to the conclusion that the above verse was revealed to the Prophet as late as year seven of the Hijra, whereas sura al-Nisa’ was revealed in year three and sura al-Nur in year five, all of which deal with the punishment of unmarried offenders. With reference to married offenders, the Prophet therefore referred to the Torah, thereby providing stoning for married offenders. Siddiqi also mentions that the case of adultery committed by a man and woman from the Jewish tribe of Khaybar occurred in the first year of the Hijra, immediately after the Prophet’s migration to Madinah.27 It was probably during the closing months of year five of the Hijra and the beginning of year six that the verses 2-5 of sura al-Nur were revealed. The events between the first Hijra year until the revelation of this verse leave little doubt that the Prophet had implemented the punishment of stoning by reference to the Torah.28 ‘Ali Mansur, who quoted Abu Zahrah’s view on this, adds that the prominent Syrian jurist, Mustafa Ahmad al-Zarqa, was present at the same conference and heard Abu Zahrah’s views on the subject of stoning: “He too sent his opinion in writing to me in my capacity as Chairman of the then United Arab Republic’s Committee for Harmonisation of Shari’ah and Law, wherein he had reached the conclusion that stoning as a punishment for zina should not be enforced, not
ICR 9.3 Produced and distributed by IAIS Malaysia 316 MOHAMMAD HASHIM KAMALI because of the doubt in the authenticity of hadith but because it is quite possible that the Prophet imposed stoning as a ta’zir punishment.” Al-Zarqa then added that this was also the opinion of Shaykh Mahmud Shaltut, then Rector of al- Azhar. The text of al-Zarqa’s letter contained the following:
In my view there is a distinct possibility that the Prophet ordered stoning, in the related incidents by way, not of hadd, but of ta’zir punishment. For he saw under the circumstances that only a strong and decisive stand on this issue could curb the rampant immorality and corruption of the Time of Ignorance (jahiliyyah). Since the lawful government and the ulu al-amr are within their rights to introduce ta’zir punishment in their effort to combat criminality and to secure benefit for the community, it is likely that the Prophet also exercised his authority in this way and introduced stoning as a ta’zir punishment.29 Al-Zarqa then referred to the prevailing modern opinion among the ulama that stoning “is a ta’zir punishment, not one of the hudud, and it is as such, a matter for the head of state to apply it in aggravated circumstances. This view also finds support in the Sunnah of the Prophet and the manner he actually applied stoning as a punishment for zina.”30 Zarqa continued that the textually- prescribed punishment for zina is 100 lashes of the whip. He added further that the shariah made the application of hudud, including in cases of zina, contingent on strict conditions that must be observed in the material aspects of the offence, its evidence and proof. If all these conditions are properly observed, hudud can only be expected to be rarely applied as they will, for the most part, be converted to ta’zir penalties that the qadi determines by reference to the attending conditions of the crime. The presence of any doubt, however slight, will suspend the hadd in question. This is the clear directive of the hadith: “suspend the hudud whenever there is doubt.”31 With reference to the proof of zina, Zarqa is of the view that “it is impossible to prove zina except by the confession of its perpetrator,” simply because proof by witnesses would require eye-witnessing by four upright persons, which is almost impossible to obtain. Confession by the perpetrator “must also be four times in four different sessions, and when these strict conditions are not met in the proof of zina, the punishment in question, be it lashing or stoning, would be abandoned and recourse had to be made to ta’zir punishment, the type and quantity of which is determined by the ruler/judge in accordance with its attending circumstances.”32 In the event of retraction of a confession, the prescribed punishment is also abandoned and substituted with a ta’zir punishment. With reference to the meaning of muhsan, Abu Zahrah observed that there is no clear text to determine that a divorced woman, or a man whose wife has
ISLAM AND CIVILISATIONAL RENEWAL STONING AS PUNISHMENT OF ZINA: IS IT VALID? 317 died, be classified as muhsan. Somewhat like the musafir (traveler) who is no longer a musafir after returning from his journey, or the sick person (marah) who enjoyed certain concessions under the law until he recovered, so is the case of the muhsan who is no longer a muhsan after the termination of his marriage. There is even a view that the word muhsanah in the Qur’an, as quoted below, means ‘virgin women’ and not, as is commonly said, ‘married women’. This is because virginity is a great disincentive and preventer from zina as it is a means of proving the woman has not been intimately involved with men. How is it then justified to subject a woman who might have lost two great protections against zina, namely virginity and marriage, to heavier punishment? Is it because her previous marriage is still regarded as her protector and, if so, where is the logic in this? Reason would surely tell us that a woman who was once married but is married no longer should not be treated more harshly than a virgin. If anything, the former should be given a lighter punishment, not harsher. Or preferably, the two should be treated equally, and there is nothing in the Qur’an and Sunnah to say otherwise.33 Even before Abu Zahrah, Muhammad ‘Abduh (d.1905) and his disciple Muhammad Rashid Rida (d.1935) held that the punishment of zina was only applicable to offenders who were parties to a valid marriage at the time of committing the offence: “A muhsan is a person who is protected (physically and morally), in the case of a woman, by her husband, and when there is a separation, or divorce, she no longer qualifies as a muhsanah in the same way as she is no longer a mutazawwijah, or a married woman.” As for the offender who had been married but was no longer so, he or she should be punished lightly or equally to that of the unmarried offender.34 This they said notwithstanding the majority opinion that it mattered little if the married person had separated or divorced and had no access to his/her spouse for a long time – i.e. that he/she was still a muhsan. While referring to the views of Muhammad ‘Abduh and Rashid Rida, Selim el-Awa, himself an expert and author of important works on Islamic criminal law, concurred with them.35 Cheriff Bassiouni also wrote concerning the punishment of zina that the Qur’an provides flogging as the punishment for this offence and not stoning, as is often assumed. Death by stoning “was first imposed by the Prophet during his days in Madinah (620-632 CE), when he applied Jewish law to the Jewish tribes in and around Madinah, and whose laws required such a penalty. In other words, Islam itself does not require stoning, and its use was mistakenly transposed onto Islam.”36 Yusuf al-Qaradawi has forcefully spoken on another aspect of hudud enforcement: that it is a matter for the ruling authorities, not individual Muslims,
ICR 9.3 Produced and distributed by IAIS Malaysia 318 MOHAMMAD HASHIM KAMALI to attempt its implementation. Even if individual Muslims know the perpetrator and are able to enforce the punishment, their role is merely to report the matter to the authorities, not to take the law into their own hands. Doing otherwise would only lead to chaos and confusion. It is not for individuals to cut off the hand of the thief, nor to lash the adulterer, nor to lash the wine drinker, nor to retaliate in the case of murder, and so forth. While some people may think this is expected of them, and thus appoint themselves as “police, judge and enforcement officers,” this would be patently erroneous. It is not their role, and they should not take it on themselves.37 Al-Qaradawi further adds that, when the government and the ulu al-amr fall short of enforcing the rules of shariah, or when they breach the trust and order of duty entrusted to them, it is for the community to advise their leaders by way of constructive advice (nasihah). Otherwise the people should resort to all lawful means until they succeed in impressing their message on their leaders. But they should also bear in mind the shariah guideline that one should not try to repel an evil with a bigger evil. It is an obligation under such circumstances to take the lesser of two evils. Hence the role of the individual in regard to law enforcement is to assist the honest employees and enforcement officers of the authorities and work with them to apply the law, not to take their place and become law enforcers themselves.38 In a fatwa issued with regard to the modern applicability of Islamic corporal punishment, the former Grand Mufti of Egypt, Sheikh Ali Gomaa, observed:
Hudud have not been implemented in countries such as Egypt for a very long time. This is because the legal conditions for their implementation, which describe specific means for establishing guilt and stipulate the possibility of retracting a confession, are not met. Most of the penal codes of the remainder of the Islamic countries remain silent on the issue of corporal punishment (hudud). This is because our age is one of general uncertainty (shubha), and the Prophet, may the peace and blessings of God be upon him said, ‘Suspend the enforcement of corporal punishments when there is doubt.’39
Conclusion and Recommendations
• Our enquiry supports the conclusion that the Prophet most likely applied stoning for zina prior to the revelation of sura al-Nur (24:2-5) as a ta’zir punishment to curb widespread immorality and corruption. Yet, the evidence we have examined falls short of clarifying the question of
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whether stoning was applied before or after the revelation of sura al-Nur and its stipulated punishment of 100 lashes. • Certain questions require clarification and present, in turn, a case for a serious reconsideration of the validity of death by stoning. These are: unresolved doubts about the chronological sequence of the two rulings; whether stoning was applied as a ta’zir; whether or not the Prophet actually took recourse to the Torah; and whether it is correct for the Sunnah to overrule the Qur’an on a capital punishment issue. • Most leading twentieth-century scholars of shariah have taken the view that enforcement of death by stoning for zina is doubtful. This doubt invokes, in turn, the hadith directive that hudud be suspended when there is doubt. • Leading ulama who have doubted the continued validity of stoning have further held that the maximum punishment for zina is 100 lashes of the whip for married and unmarried persons alike. All claims and prosecutions of zina that fail to present the textually stipulated proof (four eye-witnesses) reduce zina from a hadd to a ta’zir offence, in turn enabling the trial judge to order a suitable punishment. • When the Qur’an set the standard of proof for zina at four eye witnesses, the purpose was obviously to set a high moral standard for Muslim individuals – one which cannot be readily enforced, as it is next to impossible for anyone to produce that kind of proof. Yet this aspect of the Qur’an is not duly reflected in the overly punitive approaches of the fiqh manuals and judicial practices of many present-day Muslim countries. • In trying the ta’zir offence, it would be in order for the judge to take into consideration all relevant factors, including the nature of the relationship (if any) between parties, use or otherwise of force, trickery and temptation, age, whether a first time offender or a recidivist, indications of repentance and remorse, social mischief, lessons to be had for others, and so forth.
Notes * Mohammad Hashim Kamali, Founding CEO of IAIS Malaysia, graduated from Kabul University, and then obtained his PhD in Islamic and Middle Eastern Law at the University of London in 1976. He served as Professor of Islamic Law and Jurisprudence at the International Islamic University Malaysia (1985–2004), then Dean of the International Institute of Islamic Thought and Civilization
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(ISTAC) from 2004-2006. He was Asst Professor at McGill University’s Institute of Islamic Studies; Visiting Professor at Capital University, Ohio; and the Wissenschaftskolleg, Berlin. He was a member of the Constitution Review Commission of Afghanistan (2003), and a UN shariah expert on the constitutions of Iraq, the Maldives and Somalia (2004-2005). He has published over 200 academic articles and 35 books. He can be contacted at [email protected].
1. Cf., al-MawsË’ah al-Fiqhiyyah, vol. 14, 21; Shi’i law records similar positions and a roughly parallel discourse over the issues involved. See for details, Muhaqqiq al-Hilli, Mokhtasar-e Nafi’, tr. in Persian (from Arabic) by Muhamad Taqui Danish-pazhoh (Tehran: Bongah-e Tarjomah wa Nashr-e Kitab, 1964/1343), 351f. 2. Abu’l-Walid Muhammad Ibn Rushd Al-Qurtubi (known as Ibn Rushd al-Hafid), BidÉyat al-Mujtahid wa NihÉyat al-MuqtaÎid (Lahore: Faran Academy, n.d.), II, 325. 3. Al-Jaziri, al-Fiqh ‘al’l-MadhÉhib, 1211. 4. Mohammad Suleman Siddiqi, “The Concept of Hudud and its Significance,” Islamic Culture 55 (1981), 198. Sayyid Abul A’la Maududi, Tafhim al-Qur’an (Delhi, 1963), Vol III, 321-3. 5. Muhammad b. Ali al-Shawkani, Nayl al-AwÏÉr SharÍ MuntaqÉ al-AkhbÉr (Cairo: Mustafa al-Babi al-Halabi, n.d.), vol. VII, 97-100; see also for these and other aÍÉdÊth JamÉl al-Din a1-ZaylaÑi, NaÎb a1-RÉyah li-AÍÉdith al-Hidayah (Beirut: Al-Maktab al-Islami, 1393 H), 2nd edn, vol. III, 328-83; al Sarakhsi, Al- MabsËÏ vol. IX, 36ff. 6. Al-ZaylaÑi, Nasb al-RÉyah, vol. III, 329. 7. Al-Sarakhsi, A1-MabsËt, vol. IX, 43-4. 8. ShihÉb al-Din MahamËd al-AlËlsi, RËÍ a1-MaÑÉni fi Tafsir aI-Qur’Én al-’AÐim (Cairo: IdÉrah al-TabÉÑah al-Muniriyyah, 1985/1405), 4th edn, vol. XVIII, 79. 9. Muhammad Muhsin Khan, The Translation of the Meaning of ØahÊh al-BukhÉrÊ (Lahore: Kazi Publications 1983), 6th edn. vol. VIII, 526 Hadith No. 803. 10. Al-Shawkani, Nayl al-AwÏÉr, vol. VII, 100. 11. Jamal al-Din al-ZaylaÑi, TabyÊn a1-×aqÉ‘iq fi SharÍ Kanz ai-DaqÉ‘iq (Egypt, Bulaq: Al-MatbaÑah al-Amiriyyah, 1313H), vol. III, 174. 12. Cf. ÑAli MansËr, NiÐÉm al-Tajrim wa’l-ÑIqÉb fil-Islam (Madinah al-Munawwarah: Mu‘assasah al ZahrÉ, 1976/1396), 175 ff. 13. See for details Al-ZaylaÑi, Tabyin, vol. III, 175; ManÎËr, NiÐÉm al-TajrÊm, 176. 14. For further detail on naskh and the differences of madhÉhib therein see Mohammad. H. Kamali, Principles of Islamic Jurisprudence (Cambridge: Islamic Texts Society, 2003), 202-28. 15. Cf. ManÎËr, NiÐÉm al-Tajrim, 172. 16. Al-AlËsi, RËÍ a1-MaÑÉni, vol. XVIII, 79. 17. A1-Sarakhsi, A1-MabÎËt, vol. IX, 44-5; Ali ManÎËr, NiÐÉm. at-TajrÊm, at 181-2. 18. Cf., Al-Jaziri, al-Fiqh ‘ala’-Madhahib, 1179. 19. ManÎËr, NiÐÉm al-TajrÊm, l81-2. 20. Ibid., 182-3; Abu Zahrah, Al-ÑUqËbah, 100ff. 21. ØaÍÊÍ al Bukhari, Muhsin Khan’s trans. vol. VII, 527, Hadith 804; Abu Zahrah, Al-ÑUqËbah, 101 ManÎËr, NiÐÉm, 182-3.
ISLAM AND CIVILISATIONAL RENEWAL STONING AS PUNISHMENT OF ZINA: IS IT VALID? 321
22. AbË Zahrah, Ibid, 101-2; ÑAwdah, al-TashriÑ a1-JinÉ ‘i, vol. II, 380. See also al- Sarakhsi, A1-MabsËt, vol. IX, 45. 23. ManÎËr, NiÐÉm al-Tajrim, 182. 24. AbË Zahrah, al-ÑUqËbah, 98-105. 25. Q. Surah al-MÉÑidah, 5:43. 26. Abu Zahrah, al-‘Uqubah, 104. 27. Suleman Siddiqi, “The Concept of Hudud,” 191-207 at 195. 28. Ibid., 197. 29. Mansur, NiÐÉm al-TajrÊm, 182-3. 30. Mustafa Ahmad al-Zarqa, al-Madkhal al-Fiqhi al-‘Amm: Ikhraj Jadid fi’l-Tartib wa’l-Tabwib wa’l Ziyadat (Damascus: Dar al-Qalam, first ed., 1991/1418), vol. 1, 290., 31. Ibid., 283. 32. Al-Zarqa, al-Madkhal, vol.1, 291. 33. Abu Zahrah, al-UqËbah, 103-4. 34. Muhammad Rashid RiÌÉ. TafsÊr al-ManÉr (Cairo: MatbaÑah al-Manar, 1953/1373H), 4th edn., vol. V, 25. 35. El-Awa, Punishment, 19. 36. Cheriff Bassiouni, The Shari’a and Islamic Criminal Justice, 136. 37. Yusuf al-Qaradawi, Hawla Qadaya al-Islam wa’l-‘Asr (Cairo: Maktabah Wahbah, 2006/1427), 3rd edn, 96. 38. Ibid., 96-7. 39. http://www.virtualmosque.com/islam-studies/faqs-and-fatwas/review-of- gomaas-responding-from-the-tradition/ (Accessed on: 2 October 2015). See also One Hundred Contemporary Fatwas by the Grand Mufti of Egypt, Sheikh Ali Gomaa (Louisville, KY: Fons Vitae, ), 2011.
ICR 9.3 Produced and distributed by IAIS Malaysia THE FAREWELL SERMON OF PROPHET MUHAMMAD: AN ANALYTICAL REVIEW Mohammad Omar Farooq *
Abstract: Historically, the Farewell Sermon (khutbah al-wida) of the Prophet Muhammad (pbuh)1 has occupied an important place in Islam. The sermon was delivered during the Farewell Hajj (pilgrimage), on 9 Dhu al-Hijja 10AH (6 March 632), at Mount Arafat. The sermon consisted of summarised exhortations reflecting some of the core teachings of the Qur’an and Sunnah. There are multiple versions of the sermon, with no single consolidated source being in existence. The sermon therefore seems to have been weaved from multiple sources over time. This brief essay examines the substance of the Farewell Sermon based on its various versions and presents an analysis to determine whether it should be more appropriately called the ‘Farewell Message’. Keywords: Muhammad; Farewell Pilgrimage; Farewell Sermon; Hajj; Khutbah al-wida.
Introduction
The life of the Prophet Muhammad (pbuh) culminated in the events of the Farewell Pilgrimage. Some narrations indicate that he anticipated that this would be the last major hajj gathering for him. For the period, this was a historic, massive gathering, as it also happened to be hajj akbar (major hajj), a hajj that coincides with Jum‘ah (Friday) prayer. The Prophet utilised this august occasion to deliver his Farewell Sermon, underscoring some key aspects of Islam while also conveying his major concerns regarding fundamental challenges and tribulations facing the ummah. Any educated or informed Muslim is generally familiar with the Farewell Sermon, or at least various parts of it, because some of the statements in this sermon became statements of principle. The main purpose of this article is to help readers appreciate the beauty of this sermon and to reflect on some general and specific issues concerning it. Most notably, we consider how, contrary to popular belief, the text of the sermon as we have it is a composite, not a single narrated piece. That’s why it is more appropriate to call it the ‘Farewell Message’ rather than Farewell Sermon. While this does not lessen the relevance or value of the sermon, the sermon does not have to be sanctified as one single speech.
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The analysis in this paper is based on the primary collections of hadith (Prophetic narrations), with priority being given to these over history (tarikh) or biography (sirah) resources, and based on the premise that anything attributed to the Prophet must be consistent with the Qur’an. The rest of the paper is divided into the following sections: the importance and legacy of the sermon; review of the sources of the sermon; some general observations and premises; the main themes of the sermon; and a general analysis of those main themes. In modern times, Islam’s historical sources are being explored and scrutinised with ever more intensity, both positive and negative. Instead of letting those with negative biases scrutinise and expose weaknesses in popular narratives, pursuit of truth and accuracy desires that Muslims themselves take the lead in any critical approach to the study and understanding of their own faith and, wherever appropriate, to try and set the record straight.
The Importance of Legacy of the Sermon
Known as the Farewell Sermon, it took place on 9 Dhu al-Hijjah 10 AH (6 March 632 AD), during the Hajj. The relevance of ‘farewell’ in this context is that in this sermon there is a hint that the Prophet (pbuh) would be returning to his Lord soon. Indeed, he passed away just a few months later. This sermon is commonly recognised as a single sermon, but in fact, at best, it is a composite of various statements made during the Hajj ceremony: The Farewell Sermon is a compilation of several sermons which were delivered at different times in Mina, Muzdalifa, and Arafat during the Prophet’s pilgrimage in AH 10 (631). The Prophet addressed more than 100,000 believers who were observing the hajj, the major pilgrimage to the sacred precincts in Mecca…The Prophet delivered his sermon in different locations and heralds repeated his words to the great number of people who attended. This sermon was called ‘Farewell’ Sermon because in this sermon the Prophet implied that he would soon die and that he would not be able to perform the pilgrimage another time. The days-to-come bore out this predication and he was reunited with his Beloved with[in] three months of the final sermon.2 The sermon’s transcending importance and status cannot be overemphasised, especially given the context wherein it occurred, that it constituted the Prophet Muhammad’s (pbuh) last such sermon, and due to the message it contained. With his Farewell Sermon, Muhammad abolished these time and place limitations on human rights, thus universalising human inviolability to
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all times and places. This was a large step away from traditional Arab custom and could easily be rejected by the community. The Prophet thus emphasised his injunction through the prominence of his wording as well as the time and place he uttered it. The sermon was delivered during the hajj, which took place at a sacred time and in a sacred place, and he repeated his injunction several times on several occasions. He also made it explicit that this injunction was from God and that God was the witness when Muhammad conveyed it to the people. Muhammad spoke as a prophet of God but also as a state leader and a lawmaker.3 The Sermon has been treasured by Muslims, not just as a sacred sermon, but also as a sermon of univeralist orientation with contemporary, modern relevance. The Farewell Sermon has been rediscovered and put to a new use by Muslims in support of the 1948 United Nations Declaration of Universal Human Rights. From this modern perspective, the Farewell Sermon constitutes what could be considered an earlier attempt at a human rights declaration. This view is advance to serve both … as a justification to enhance human rights compliance by Muslim societies and states.
Down through the generations, the teachings and practice of the Prophet Muhammad pertaining to human rights have been interpreted differently. The universalist Muslim jurists extrapolated from them universal human rights for all people around the world regardless of their religion and citizenship.4
The Farewell Sermon of Prophet Muhammad vividly illustrates his contribution to the development of human rights and how he laid the foundations of the idea of universal human rights in a world previously dominated by tribalism.5 This is a landmark speech, comparable to Jesus’s Sermon on the Mount, which will remain part of humanity’s legacy, with a very special place in the annals of human history.6 To Muslims, of course, it means more than that. Some non-Muslim scholars have been skeptical about the “textual authenticity” of the sermon.7 However, this skepticism is not necessarily about the content of the sermon, as this basically corresponds to the teachings of the Qur’an. Rather, doubts seem to be directed at the assumption that the sermon is one whole piece, not a composite constructed from fragments of Prophetic sayings.
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Review of the Sources of the Sermon
There are two types of sources for this sermon: (a) hadith and (b) history/biography. From amongst the second category, the longest versions are available in Sirah Ibn Ishaq by Muhammad Ibn Ishaq (d.761) and Kitab al-Bayan wa al-Tabiyin by al-Jahiz al-Basri (d.869). However, historical/biographical sources are less rigorous and are not based on any process of authentication of the sources. Thus, in this work of limited scope only hadith sources have been used, since hadith supposedly preserve the sayings and actions of the Prophet (pbuh) accurately. Seven hadith collections are covered in this study, including the Sihah Sitta8 (the six canonical texts: Sahih al-Bukhari, Sahih Muslim, Sunan Abu Dawood, Jami at-Tirmidhi, Sunan Ibn Majah and Sunan an-Nasai) and the Musnad Ahmad of Imam Ahmad Ibn Hanbal. While there are many other secondary collections, most of those are dated later than these selected texts and have not earned the same kind of reputation and stature within the Muslim scholarly community.
Some General Observations and Premises
The longer versions of the sermon are not available in the hadith collections, but rather only in the biographies and histories, which are less reliable as sources. The versions in the hadith are much shorter and appear in scattered fragments. The themes covered in the sermon are placed under different headings in a table of the seven hadith collections produced as an appendix at the end of this article, which can be referred to for the purpose of comparison.
Theme #1: Sanctity Only Sahih al-Bukhari and Musnad Ahmad mention the Prophet (pbuh) posing questions to the congregation about the month, day, city, etc. The other five collections do not mention those questions. Given that this sermon was before the largest gathering ever in the life of the Prophet, it is anomalous that five of the seven collections studied here do not mention those conversational queries at all.
Theme #2: Transition from Jahiliyyah (the Age of Ignorance) The reference to Jahiliyyah and the society’s coming out of it is mentioned only in Sahih Muslim and Sunan Abu Dawood. The other five do not mention it. The Qur’an mentions about Jahiliyyah when inviting the people to light and illumination of Islam: Then is it the judgement of [the time of] Jahiliyyah they desire? But who is better than Allah in judgement for a people who are certain (in faith). (Surah Al-Ma’idah, 5:50).
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Theme #3: Freedom from bloodshed Abolition of all prior claims to blood revenge is mentioned only in Sahih Muslim and Sunan Abu Dawood. The other five do not mention it. Sanctity of human life is emphatically and universally mentioned in the Qur’an: Because of that, We decreed upon the Children of Israel that whoever kills a soul unless for a soul or for corruption [done] in the land - it is as if he had slain mankind entirely. And whoever saves one - it is as if he had saved mankind entirely. And our messengers had certainly come to them with clear proofs. Then indeed many of them, [even] after that, throughout the land, were transgressors. (Surah al-Maidah, 5: 32)
Theme #4: Riba (Abolition) As part of this Farewell Sermon, the theme of riba (usually equated with interest) and its prohibition/abolition is mentioned only in Sahih Muslim and Sunan Abu Dawood. The other five do not mention it.Riba is categorically prohibited in the Qur’an: Those who consume riba cannot stand [on the Day of Resurrection] except as one stands who is being beaten by Satan into insanity. That is because they say, “Trade is [just] like riba.” But God has permitted trade and has forbidden riba. So whoever has received an admonition from his Lord and desists may have what is past, and his affair rests with God. But whoever returns to [dealing in riba] - those are the companions of the Fire; they will abide eternally therein. (Surah al- Baqarah, 2: 275). Riba is serious matter for society, as it is directly related to zulm (injustice and exploitation). A society that values Islam should try to eliminate the deleterious effects of riba as well as any other source of zulm.
Theme #5: Gender issues Gender issues are generally thought to feature prominently in the Farewell Sermon. However, only three hadith collections (Sahih Muslim, Sunan Ibn Majah and Jami al-Tirmidhi) deal with it specifically. The longest coverage of gender issues occurs in Sunan Ibn Majah. Moreover, only Ibn Majah specifically mentions the reciprocity of rights between men and women. The other four are silent regarding this gender-related theme. Also, only Sahih Muslim and Sunan Ibn Majah mention the permissibility of chastising women (without being harsh or injurious). The others do not
ISLAM AND CIVILISATIONAL RENEWAL THE FAREWELL SERMON OF PROPHET MUHAMMAD: AN ANALYTICAL REVIEW 327 mention this aspect. This part of the message is consistent with the orthodox, literal and non-contextual understanding of Qur’anic verse 4:34. However, this orthodox understanding is being questioned.9 Notably, contemporary female Muslims scholars are challenging this orthodox understanding and interpretation, considering it the source of an abusive culture in generally male-dominant Muslim societies.10 Indeed, the orthodox interpretation is inconsistent with the later verse 9:71, which presents gender relationships in the framework of mutual guardians or patrons (awliya): The believers, men and women, are guardians/patrons (awliya) of one another. They enjoin the ‘common good’ (al-ma‘ruf) and forbid the bad (al-munkar), they observe prayers (salat) and give charitable alms (zakat) and obey God and his Prophet.
Mutual guardianship (wilayah) is inconsistent with the orthodox, literal understanding of 4:34. As the Qur’anic verses have been revealed in stages, with specific examples, as in the case of prohibition of intoxicants khamr( ), where later revelations abrogate earlier ones, the latter must therefore be given due priority when defining and taking a position on such issues. Such a perspective must be understood in the context of Islam’s hierarchy of values.11
Theme #6: Legacy and Witness Except Jami al-Tirmidhi and Sunan an-Nasai, all the collections mention about the Prophet asking the congregation to witness and spread his message to those who were absent. Only Sahih al-Bukhari and Sunan Ibn Majah, however, mention the stern warning from the Prophet that after him the Muslims should not become disbelievers, striking the necks of each other. Quite importantly, a theme that has become critical to Islam is that the Prophet apparently mentioned leaving something behind that, should the believers adhered to it, would keep them from going astray. This matter, in the context of the sermon, is mentioned only in Sahih Muslim, Sunan Ibn Majah and Jami al-Tirmidhi. Other collections are silent. Even more notably, Sahih Muslim and Sunan ibn Majah only mention the Qur’an within this context, unlike many other hadith that (in other contexts) mention two things: the Qur’an and Sunnah or the Qur’an and the Ahl al-Bayt (the Prophet’s household). Given that this was his Farewell Sermon, delivered openly to a large congregation, if the Prophet mentioned only the Qur’an this would be significant. In Jami al-Tirmidhi, both the Qur’an and Ahl al-Bayt are mentioned.12
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It should be noted that the two things – the Qur’an and Sunnah – are not mentioned like this in the Sihah Sittah. They are mentioned in other sources, such as the Muwatta of Imam Malik13 and al-Mustadrak of Hakim al-Nisharburi.14 Another version with two weighty things (thaqalain) is mentioned in only Sahih Muslim (as part of Sihah Sitta).15 This issue of leaving behind something to guide Muslims has another anomalous aspect. We see that none of the hadith concerning the Farewell Sermon in Sihah Sitta mention both the Qur’an and Sunnah in this context. However, Sirah Ibn Ishaq does mention both the Qur’an and Sunnah.16 Another long version, much later than Ibn Ishaq, is by al-Jahiz and mentions only the Qur’an, without the Sunnah.17 But whether it is only the Qur’an, or the Qur’an and Ahl al-Bayt (itrah), or the Qur’an and the Sunnah, a related anomaly is found when one compares the Farewell Sermon with an incident that occurred around the Prophet’s death bed. According to many hadiths, including in Sihah Sitta, shortly before his death, the Prophet (pbuh) asked those around him to bring him a piece of paper so that he could dictate something that, if the believers followed it, would stop them from going astray. However, there was a commotion and confusion, which prevented the Prophet (pbuh) from dictating whatever he had in mind: When the time of the death of the Prophet approached while there were some men in the house, and among them was ‘Umar bin Al-Khatttab, the Prophet said, “Come near let me write for you a writing after which you will never go astray.” ‘Umar said, “The Prophet is seriously ill, and you have the Qur’an, so Allah's Book is sufficient for us.” The people in the house differed and disputed. Some of them said, “Come near so that Allah's Messenger may write for you a writing after which you will not go astray,” while some of them said what ‘Umar said. When they made much noise and differed greatly before the Prophet, he said to them, “Go away and leave me.” Ibn `Abbas used to say, “It was a great disaster that their difference and noise prevented Allah’s Messenger from writing that writing for them.”18 This raises an important question. The Prophet (pbuh) had already pronounced openly before the largest congregation during his life that he was leaving behind one (the Qur’an) or two things (the Qur’an and the Sunnah, or the Qur’an and Ahl al-Bayt). So why again the idea of needing to write down something which, if followed, would prevent the Ummah from going astray?
Theme #7: The Repudiation of Racism One of the most salient aspects of the Farewell Sermon is the repudiation of all forms of racism, with it being explicitly affirmed that no Arab has any superiority
ISLAM AND CIVILISATIONAL RENEWAL THE FAREWELL SERMON OF PROPHET MUHAMMAD: AN ANALYTICAL REVIEW 329 over a non-Arab, or a White over a Black, except in taqwa (God consciousness). This resonates with the Qur’anic verse: O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of God is the most righteous (God- Conscious – having taqwa) of you. Indeed, God is Knowing and Acquainted. (Surah al-Hujurat, 49: 13). Quite remarkably, this repudiation is not included in any of the Sihah Sittah. It is mentioned only in Musnad Ahmad. Also, a report circulated in some contemporary writings that the sermon included a statement that there was no superiority of one gender over another. However, that seems to be a clear misattribution, as no early source mentions this.19
Theme #8: Obedience/Adherence The theme regarding the importance of obeying those in authority, even if that person be a black slave, is mentioned only in Sahih Muslim. It is not mentioned in any of the other six collections. This obedience is not unconditional, meaning that it does not apply to those who grab power, by whatever means. This obedience is only to those in leadership who have been appointed by people through their free and mutual consent and those who adhere to the guidance of God. Adherence should not be accorded to those whose footsteps are not on the path of God and His Messenger: O you who have believed, obey God and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to God and the Messenger, if you should believe in God and the Last Day. That is the best [way] and best in result. (Surah an-Nisa, 4: 59).
Theme #9: Rights That all rights originate from God, and that He has given due rights to everyone, is mentioned only in Sunan Ibn Majah, not in any of the other six.
Theme #10: Salat/Zakat The theme of salat/zakat in the context of the Farewell Sermon is mentioned in only one collection: Jami al-Tirmidhi. The other six collections do not mention it. As salat and zakat are clearly and frequently mentioned in the Qur’an, separate mention in the sermon is not warranted. The point is that, if it had been included in the sermon, it is notable that only one of the hadith collections includes it as part of the sermon.
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Theme #11: Debt The theme affirming the importance of repaying debt and honouring promises and guarantees is mentioned only in Jami al-Tirmidhi.
Analysis of the Themes
Having identified all these themes and how they appear in these seven collections, it is important to note that it is quite possible that different narrators/reporters from those who were in attendance at the Farewell Sermon picked up bits and pieces of the narrative. It is also possible that the narrators/reporters have narrated selectively, as per what they perceived to be important or relevant in a particular context. However, several important things should be noted. Given that there are so many, rather long hadiths in various collections,20 it is puzzling as to why there is no one single complete narration of this special, historic sermon. What is available seems to be a composite that a later generation has put together from bits and pieces. Thus, whenever the sermon is shared or mentioned, it should be noted that it is actually a composite of many fragments. The variation in the coverage of the narrations in these seven hadith collections is so huge that one should be careful when drawing firm conclusions, positions or rulings based on any aspect of this sermon. A more appropriate reference is the Qur’an and the legacy of the Prophet. Yet, except for some aspects of the gender issue (e.g. the issue of chastising women in certain situations), which are seriously questionable, the sermon does affirm some core values and principles of Islam and reflect the essential message of Islam. However, since this sermon is based on fallible human narrative, its contents should be scrutinised in the light of the Qur’an, which is the only Divine source in Islam.
Conclusion
The purpose of this paper was to explore what is popularly known as the Farewell Sermon of the Prophet Muhammad (pbuh). Even when not viewed through a Muslim religious lens, this address undoubtedly constitutes a valuable treasure for all humanity. From the viewpoint of the Muslims, however, it was the Prophet’s final, formal address to the faithful, through which he aimed to reach all humanity. However, to call it a sermon is problematic. As explained and documented in this paper, the address seems to be a composite of bits and pieces picked up by various narrators, as presented through various hadith collections.
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Lacking one single rendition and abounding in variation, it is more appropriate to identify and present it as a Farewell Address or Farewell Message.
Recommendations
1. Given the profound importance of the Farewell Sermon or Message, it should be more systematically and widely disseminated among non- Muslims as well as Muslims, especially the younger generation, with aspirations of civilisational renewal. 2. Muslims should take the synoptic message given during the last pilgrimage of the Prophet (pbuh) to identify and determine their contemporary priorities. 3. Though delivered to the largest congregation of his time and, through them, to future Muslim generations, as Islam is universalistic (ukhrijat lin-nas, see al-Qur’an 3:110), so was this Farewell Message, with humanity as its target audience. Muslims need to re-embrace and uphold that universalistic, humanity-orientation in their thoughts and actions, individually and collectively.
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” ” You You “ They They ” Then ” ” and your They Then he “ He said, Then he ” ” ” ” Let whomever is “ 27 You have conveyed You Sanctity ) as sacred this day They replied, “ ” ” What city is this? A sacred day. A sacred month. A sacred city. A “ “ “ “ He said, or not ” What day is this? What month is this? ” “ “ Allah has made your blood and I don't know if he said “Have I conveyed the message? They replied, Allah! it, Messenger of said, replied, said, replied, he said, replied, “ your property (the narrator said, “ honor of yours, in this month this city of yours. Have I conveyed the message? have conveyed it, Messenger of Allah! present tell whomever is absent. Musnad Ahmad 26 Sanctity Sunan an- Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. 25 Sanctity Only about the day is asked. An additional aspect not mentioned in other collections: No one is accountable for someone else. Jami at-Tirmidhi Narrator: Sulariman bin Amr bin Ahwas Kitab al-Fitan 24 Sanctity Sunan Ibn Majah Narrator: Sulaiman bin Amr bin Ahwas Kitab an- Nikah No mention. 23
Sanctity Jahiliyyah Sunan Abu Dawud Narrator: Sulaiman bin Amr Kitab al-Buyu Lo, all claims for blood-vengeance belonging to the period have been abolished.
22
” Sanctity Verily your blood, Verily Sahih Muslim Narrator: Jabir bin Abdullah Kitab al-Hajj Then he came to the bottom of and the valley, addressed the people saying, “ your property are as sacred and inviolable as the sacredness of this day of yours, in this month of yours, in this town of yours. ” , It “ It is “ It is the He said, “ ” By Him in “ He asked, O Allah! ” “ Day of Nahr He asked again, s Messenger ’ They replied, ” ” The Prophet repeated They replied, ” ” Allah Sanctity
“ Abbas added, 21 ‘ t I conveyed Your Message Your t I conveyed ’ The people replied, ” Ibn O people! (Tell me) what is the O people! (Tell “ ”” t I conveyed (Your Message) to t I conveyed (Your ’ Abbas said: ‘ What town is this? Which month is this? blood, your properties, Your No doubt! Ibn delivered a sermon on the and said, day today? forbidden (sacred) day. “ the forbidden (sacred) town. “ is the forbidden (sacred) month. “ and your honour are sacred to one another like the sanctity of this day yours, in this (sacred) town (Mecca) of yours, in this month of yours. After that his statement again and again. he raised his head and said, Haven them. Haven to them? Whose Hand my soul is, the following was his will (Prophet's will) to followers. Sahih al-Bukhari Narrator: Ibn Abbas Kitab al-Hajj 1
ISLAM AND CIVILISATIONAL RENEWAL THE FAREWELL SERMON OF PROPHET MUHAMMAD: AN ANALYTICAL REVIEW 333 Jahiliyyah Bloodshed Freedom from from Freedom Transition from from Transition Musnad Ahmad No mention. No mention. Jahiliyyah Bloodshed Freedom from from Freedom Transition from from Transition Sunan an-Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. No mention. Jahiliyyah Bloodshed Freedom from from Freedom Transition from from Transition Jami at-Tirmidhi Narrator: Sulariman bin Amr bin Ahwas Kitab al-Fitan No mention. No mention. Jahiliyyah Bloodshed Freedom from from Freedom Transition from from Transition Sunan Ibn Majah Narrator: Sulaiman bin Amr bin Ahwas Kitab an- Nikah No mention. No mention. ” Jahiliyyah Bloodshed Freedom from from Freedom Transition from from Transition The first of Sunan Abu Dawud Narrator: Sulaiman bin Amr Kitab al-Buyu No mention. “ those murdered among us whose blood-vengence I remit is al- Harith in Abdul Muttalib, who suckled among Banu Layth and killed by Hudhayl. ” ” Freedom from Bloodshed from Freedom Transition from Jahiliyyah from Transition Behold! Everything pertaining to The first claim of ours on blood- Sahih Muslim Abdullah Narrator: Jabir bin Kitab al-Hajj “ the Days of Ignorance is under my Abolished feet completely abolished. are also the blood-revenges of Days of Ignorance. “ revenge which I abolish is that of the son of Rabi'a b. al-Harith, who was nursed among the tribe of Sa'd and killed by Hudhayl. Freedom from Bloodshed from Freedom Transition from Jahiliyyah from Transition Sahih al-Bukhari Narrator: Ibn Abbas Kitab al-Hajj No mention. No mention. 2 3
ICR 9.3 Produced and distributed by IAIS Malaysia 334 MOHAMMAD OMAR FAROOQ Riba Musnad Ahmad No mention. Riba Sunan an-Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. Riba Jami at-Tirmidhi Narrator: Sulariman bin Amr bin Ahwas Kitab al-Fitan No mention. Riba Sunan Ibn Majah Narrator: Sulaiman bin Amr bin Ahwas Kitab an-Nikah No mention. Riba
” Lo, all claims to usury Sunan Abu Dawud Amr Narrator: Sulaiman bin Kitab al-Buyu On the authority of I heard the his father, Allah say in Messenger of the Farewell Pilgrimage: “ of the pre-Islamic period You have been abolished. shall have your capital sums, deal not unjustly and you shall not be dealt with unjustly. Abd ‘
Riba ” Abbas b ‘ And the usury of Sahih Muslim Narrator: Jabir bin Abdullah Kitab al-Hajj “ pre-Islamic period is abolished, and the first of our usury I abolish is that of al-Muttalib, for it is all abolished.
Riba Sahih al-Bukhari Narrator: Ibn Abbas Kitab al-Hajj No mention. 4
ISLAM AND CIVILISATIONAL RENEWAL THE FAREWELL SERMON OF PROPHET MUHAMMAD: AN ANALYTICAL REVIEW 335 Gender Issues Gender Musnad Ahmad No mention. Gender Issues Gender Sunan an-Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. ”” A “ During s They ’ “ ” He said, O Messenger ” “ Gender Issues Gender That is our most Jami at-Tirmidhi Narrator: Sulariman bin Amr bin Ahwas Kitab al-Fitan Abu Umamah al- Bahili said, a sermon of his in the year of Farewell Hajj, I heard the Messenger of Allah say: woman is not to spend anything from her husband's house without her husband permission. said, of Allah! What about food? “ virtuous wealth. I “ ” Gender Issues Gender My father told me that he was present Sunan Ibn Majah Ahwas Amr bin Narrator: Sulaiman bin Kitab an-Nikah “ on the Farewell pilgrimage with Allah. He praised and Messenger of Allah, and reminded glorified Then he said, exhorted (the people). enjoin good treatment of women, for they are prisoners with you, and you have no right to treat them otherwise, unless If they do they commit clear indecency. that, then forsake them in their beds and hit them, but without causing injury or leaving a mark. If they obey you, then do not seek means of annoyance against have rights over your women You them. and your women have rights over you. rights over your women are that Your they are not to allow anyone whom you dislike on your bedding (furniture), not allow anyone whom you dislike enter And their right over you are your houses. that should treat them kindly with regard to their clothing and food. Gender Issues Gender Sunan Abu Dawud Narrator: Sulaiman bin Amr Kitab al-Buyu No mention. ” Gender Issues Gender Fear Allah concerning Sahih Muslim Narrator: Jabir bin Abdullah Kitab al-Hajj “ you women! Verily have taken them on the Allah, and security of intercourse with them has been made lawful unto you by words of too have right You Allah. over them, and that they should not allow anyone to sit on your bed whom you do not like. But if they do that, you can chastise them but not Their rights severely. upon you are that should provide them with food and clothing in a fitting manner.
Gender Issues Gender Sahih al- Bukhari Narrator: Ibn Abbas Kitab al-Hajj No mention. 5
ICR 9.3 Produced and distributed by IAIS Malaysia 336 MOHAMMAD OMAR FAROOQ Witness Legacy and Musnad Ahmad Asked about the months, and asked to convey to those who were not present. Witness Legacy and Sunan an-Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. Witness Legacy and Jami at- Tirmidhi Narrator: Sulariman bin Amr bin Ahwas Kitab al-Fitan No mention. Do “ 28 ” Abdullah 29 ‘ ” Make the “ Then he said, ” Legacy and Witness I have left behind you something which Sunan Ibn Majah Ahwas Amr bin Narrator: Sulaiman bin Kitab an-Nikah It was narrated from Jarir ibn Allah said, during that the Messenger of the Farewell Pilgrimage, people pay attention. not turn back into disbelievers after I am gone, striking one another's necks. “ which, if you adhere to it, will never Allah. go astray; the Book of
” They ” ” Yes, O Allah, “ “ Witness Legacy and O Allah, have Sunan Abu Dawud Narrator: Sulaiman bin Amr Kitab al-Buyu He then said, “ I conveyed the message? said, saying it three times. He then said, be witness, saying it three times.
O ” “ saying it thrice. ” He (the narrator) ” Legacy and Witness I have left among you will bear witness that We “ Allah, and the Book of if you hold fast to it, would never go astray. And you would be asked about me (on the Day of Resurrection), (now tell me) what would you say? They (the audience) said: “ you have conveyed (the (the message), discharged ministry of Prophethood) and given wise (sincere) counsel. said: He (the Holy Prophet) then raised his forefinger towards the sky and pointing it at the people and said, Allah, Allah, be witness O be witness, Sahih Muslim Abdullah Narrator: Jabir bin Kitab al-Hajj
” t renegade ’ It is incumbent Legacy and Witness Sahih al-Bukhari Narrator: Ibn Abbas Kitab al-Hajj “ upon those who are present to convey this information to those who are absent. Beware don (as) disbelievers (turn into infidels) after me, striking the necks (cutting the throats) of one another. 6
ISLAM AND CIVILISATIONAL RENEWAL THE FAREWELL SERMON OF PROPHET MUHAMMAD: AN ANALYTICAL REVIEW 337 ”” . taqwa Someone who “ Arabs vs. Non-Arab narrated to me that he said, O people! Indeed, your Lord is one Musnad Ahmad From Abi Nadrah: heard the sermon of Messenger Allah in the middle of days of at-Tashriq “ and your father is one. Indeed, there Arab over a non- no superiority of an Arab, Arab, nor of a non-Arab over an nor of a white over black, black over a white, except by Arab Arabs vs. Non- Sunan an- Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. Arab Arabs vs. Non- Jami at- Tirmidhi Narrator: Sulariman bin Amr bin Ahwas Kitab al-Fitan No mention. Arab Arabs vs. Non- Sunan Ibn Majah Narrator: Sulaiman bin Amr bin Ahwas Kitab an-Nikah No mention. Arab Arabs vs. Non- Sunan Abu Dawud Narrator: Sulaiman bin Amr Kitab al-Buyu No mention. Arabs vs. Non-Arab Sahih Muslim Abdullah Narrator: Jabir bin Kitab al-Hajj No mention.
Arabs vs. Non-Arab Sahih al-Bukhari Narrator: Ibn Abbas Kitab al-Hajj No mention. 7
ICR 9.3 Produced and distributed by IAIS Malaysia 338 MOHAMMAD OMAR FAROOQ Adherence Obedience/ Musnad Ahmad No mention. Adherence Obedience/ Sunan an- Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. Adherence Obedience/ Jami at- Tirmidhi Narrator: Sulariman bin Amr bin Ahwas Kitab al-Fitan No mention. Obedience/Adherence Sunan Ibn Majah Amr Narrator: Sulaiman bin bin Ahwas Kitab an-Nikah No mention. Adherence Obedience/ Sunan Abu Dawud Narrator: Sulaiman bin Amr Kitab al-Buyu No mention.
30 ” s ’ If a “ and returned Aqaba ‘ s Messenger said so ’ Obedience/Adherence Jamrat al- Sahih Muslim Abdullah Narrator: Jabir bin Kitab al-Hajj Allah's I performed Hajj along with Messenger on the occasion of Farewell Pilgrimage and saw him when he flung pebbles at while he was riding the camel, and Bilal and Usama were with him. One of them was leading his camel, while the other Allah raising his cloth over the head of Messenger to protect him from the sun. She (further) Allah said: many things, and I heard him saying: slave having some limb of his missing and having dark complexion is appointed to Allah govern you according to the Book of the Exalted, listen to him and obey him.
Adherence Obedience/ Sahih al- Bukhari Ibn Narrator: Abbas Kitab al- Hajj No mention. 8
ISLAM AND CIVILISATIONAL RENEWAL THE FAREWELL SERMON OF PROPHET MUHAMMAD: AN ANALYTICAL REVIEW 339 Rights Salat/Zakat Musnad Ahmad No mention. No mention. Rights Salat/Zakat Sunan an- Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. No mention. Be , “
salat zakat of your Jannah during the month Rights Salat/Zakat saum
32 ” Jami at-Tirmidhi Amr Narrator: Sulariman bin bin Ahwas Kitab al-Fitan No mention. Allah be Abu Umamah (May pleased with him) said: Allah I heard Messenger of during the sermon of Farewell Pilgrimage saying, Allah; mindful of your duty to perform your five daily observe (of Ramadan), pay the on your properties and obey your leaders; (if you do so) will enter the Rabb. 31 Rights Salat/Zakat Sunan Ibn Majah Amr bin Narrator: Sulaiman bin Ahwas Kitab an-Nikah Al- Shurahbil bin Muslim Abu Khawlani narrated from Al-Bahili that he heard Umamah Allah say in the Messenger of his sermon, during the year of the Farewell pilgrimage: “Allah (SWT) has given each person who has rights his rights, and there is no bequest for the heir.” No mention. Rights Salat/Zakat Sunan Abu Dawud Narrator: Sulaiman bin Amr Kitab al-Buyu No mention. No mention.
Rights Salat/Zakat Sahih Muslim Narrator: Jabir bin Abdullah Kitab al-Hajj No mention. No mention. Rights Salat/Zakat Sahih al- Bukhari Ibn Narrator: Abbas Kitab al- Hajj No mention. No mention. 9 10
ICR 9.3 Produced and distributed by IAIS Malaysia 340 MOHAMMAD OMAR FAROOQ Debt Musnad Ahmad No mention. Debt Sunan an- Nasai Narrator: Ibn Abbas Kitab Tahrim ad-dam No mention. The “
””
33 Debt Eisa said:] There are Eisa said:] ‘ During the year of Farewell Jami at-Tirmidhi Amr Narrator: Sulariman bin bin Ahwas Kitab al-Fitan Abu Narrated Umamah: “ Pilgrimage, I heard the Prophet saying during the Khutbah: borrowed is to be returned, and the guarantor is responsible, and the debt is to be repaid. [Abu narrations on this topic from Samurah, Safwan bin Umayyah, and Anas. Another version. Debt Sunan Ibn Majah Amr bin Narrator: Sulaiman bin Ahwas Kitab an-Nikah No mention. Debt Sunan Abu Dawud Narrator: Sulaiman bin Amr Kitab al-Buyu No mention.
Debt Sahih Muslim Narrator: Jabir bin Abdullah Kitab al-Hajj No mention. Debt Sahih al- Bukhari Ibn Narrator: Abbas Kitab al- Hajj No mention. 11
ISLAM AND CIVILISATIONAL RENEWAL THE FAREWELL SERMON OF PROPHET MUHAMMAD: AN ANALYTICAL REVIEW 341
Notes * Mohammad Omar Farooq is Associate Professor at the Department of Economics and Finance, University of Bahrain.
1. It is customary among Muslims to give the salutation ‘Peace be Upon Him’ whenever naming the Prophet Muhammad. This is abbreviated here as (pbuh). 2. Hakan Kosova (Ed.), A Tribute to the Prophet Muhammad (Somerset, NJ: Tughra Books, 2007), https://books.google.com.bh/books/about/The_Farewell_ Sermon_of_Prophet_Muhammad.html?id=CMn_PAAACAAJ&redir_esc=y (Accessed on: January 20, 2018). 3. Coeli Fitzpatrick and Adam Hani Walker (Eds), Muhammad in History, Thought, and Culture: An Encyclopedia of the Prophet of God, 2 Volumes (Santa Barbara, CA: ABC-CLIO, 2014), 269. 4. Ibid., 269. 5. Recep Senturk, ‘Human Rights in Islamic Jurisprudence: Why should All Human Beings Be Inviolable?’ in The Future of Religious Freedom: Global Challenges, ed. Allen Hertzke (Oxford, UK: Oxford University Press, 2013), 290-314, 293. 6. Suzanne McIntire, Speeches in World History (New York: Infobase Publishing, 2009), 79-81. 7. Benjamin Walker, Foundations of Islam: The Making of a World Faith (Peter Owen, 1998), 170. 8. Initially with four, the scholars identified six books (Kutub al-Sitta) or the Authentic Six (Sihah Sitta). J. Brown, The Canonization of al-Bukhari and Muslim: The Formation and Function of the Sunni Hadith Canon (Leiden: Brill, 2007), 8-9. 9. Abdulhamid AbuSulayman, ‘Chastising Women: A Means to Resolve Marital Problems?’ ILMU Ushulddin 1, no. 1 (2013), http://journal.uinjkt.ac.id/index. php/ilmu-ushuluddin/article/view/1020 (Accessed on: January 18, 2018). 10. Nafiseh Gharournia, ‘Towards a New Interpretation of Quran, 4:34,’ Hawwa 15, no. 3, 279-292; Nada Ibrahim and Mohamad Abdalla, ‘A Critical Examination of Qur’an 4:34 and Its Relevance to Intimate Partner Violence in Muslim Families,’ Journal of Muslim Mental Health 5, no. 3 (2010), 327-349, https:// research-repository.griffith.edu.au/bitstream/handle/10072/38916/69246_1. pdf%3Bsequence=1 (Accessed on: January 25, 2018); Shaheen Sardar Ali, ‘Equal before Allah, Unequal before Man? Negotiating gender hierarchies in Islam and International Law,’ PhD thesis, University of Hull (1998), https://core. ac.uk/download/pdf/2731703.pdf (Accessed on: February 18, 2018). 11. Abdullah Saeed, Interpreting the Qur’an: Towards a Contemporary Approach (London, UK: Routledge), 2006. See Chapter 11, ‘Ethico-legal texts and a hierarchy of values.’ 12. #4155, https://sunnah.com/urn/636690. 13. Muwatta Imam Malik, Kitab al-Qadr, #1628, https://sunnah.com/urn/416890. 14. Kitab al-Ilm, Bab Khutbatihi fi Hajj al-Wida, #324. Complete Islamic Reference (Digital Database). 15. Sahih Muslim, Kitab al-Fadail as-Sahaba, #2903, https://sunnah.com/ muslim/44/58. In this hadith, thaqalain is mentioned, but only the Qur’an is
ICR 9.3 Produced and distributed by IAIS Malaysia 342 MOHAMMAD OMAR FAROOQ
identified. In the other hadith in Sahih Muslim, #5920, both the Qur’an and Ahl al- Bayt are mentioned. https://sunnah.com/muslim/44/55. This hadith has become the mainstay of Shi’ism as it is deemed to support the view that the Prophet taught the Muslims to adhere to the example of the Ahl al-Bayt along with the Qur’an. However, this view also limits the Ahl al-Bayt to only Ali, Fatima, Hasan and Hussain (May God be pleased with them all). However, exclusion of wives from anyone’s household is not sensible and, more importantly, is inconsistent with the Qur’anic use of the term, see the 33:33; 11:72-3. 16. https://en.wikipedia.org/wiki/Farewell_Sermon. 17. https://en.wikipedia.org/wiki/Farewell_Sermon. 18. Sahih al-Bukhari, Kitab al-I’itisam bi al-Kitab wa Sunnah, https://sunnah. com/bukhari/96/93; Sahih Muslim, Kitab al-Wasiya, https://sunnah.com/ muslim/25/31; 19. Mohammad Omar Farooq, In Search of a Hadith: A Journey in Scholarly Due Diligence,’ https://ssrn.com/abstract=3062947 (2017) (Accessed on: February 17, 2018). 20. Some rather long hadiths in various collections include: Sahih al-Bukhari, Book of Revelations, #7, https://sunnah.com/bukhari/1/7; Book of holding fast to the Qur’an and Sunnah, #37, https://sunnah.com/bukhari/96/36; Book of Tawhid, #39 https://sunnah.com/bukhari/97/39; Book of Mi’raj, #113, https://sunnah. com/bukhari/63/113. 21. http://www.sunnah.com/bukhari/25/217. 22. http://sunnah.com/muslim/15/159. 23. http://www.sunnah.com/abudawud/23/9. 24. https://sunnah.com/urn/1261680. 25. https://sunnah.com/tirmidhi/33/2. 26. http://sunnah.com/nasai/37/166. 27. http://library.islamweb.net/newlibrary/display_book.php?idfrom=22393 &idto= 22393&bk_no=6&ID=1079. 28. http://sunnah.com/ibnmajah/36/17. 29. https://sunnah.com/urn/1281040. 30. http://sunnah.com/muslim/15/342. 31. http://sunnah.com/urn/1270300. 32. http://sunnah.com/riyadussaliheen/1/73. 33. http://sunnah.com/tirmidhi/6/73.
ISLAM AND CIVILISATIONAL RENEWAL GLOBALISATION, HUMAN RIGHTS AND ISLAM: COMPETING NARRATIVES AND DISCURSIVE PRACTICES IN THE MUSLIM WORLD Asif Mohiuddin*
Abstract: Globalisation — the growing interpenetration of ideas, states, and markets across borders — has not only fostered the very blurring of distances but also growing avenues of appeal for citizens suppressed by their own states. There is no doubt that, in contemporary times, international norms and institutions for the protection of human rights are more developed than at any previous point in history. However, assaults on basic human rights continue, and the emergence of a global human rights regime may also be engendering new sources of human rights abuse. This paper examines how these developments have transformed the complex and mutable relationship between human rights and Islam and how this relationship is readjusting in response to the changing global situation. Focusing on the dramatic expansion of human rights discourse in the Muslim world, the paper argues that, for critics of Islam, the position on the incompatibility of Islam and human rights, which assumes two settled entities in an unstable relationship, is becoming hard to sustain — as is the position on the Western origin of human rights. The main implication of this study is that human rights principles can be a binding international norm in a globalised world and that many normative conventions can play a pioneering role in promoting these rights and contribute to the emergence of a multicultural society. Keywords: Globalisation; Ethics; Human Rights; Islamic Law; Maqasid al- Shari‘ah; Middle East.
Introduction
Across a wide array of disciplines and perspectives, the terms “globalisation” and “human rights” encapsulate two of the most spectacular areas of concern that have brought on new forms of domination and new ways of alleviating social suffering through interventions in the realm of social and economic freedom. One of the main issues in the study of the globalisation of human rights is the way universal ideas of human rights intersect with local or regional ideas of rights, which are often seen to be contradicting and even hostile to the rights specified in particular cultural and religious traditions.1 While not specifically couched
ICR 9.3 Produced and distributed by IAIS Malaysia 344 ASIF MOHIUDDIN in the language of relativism, many anthropologists argue “that there could be no such thing as rights outside of particular cultures and that Western ideas of human rights represented a form of cultural imperialism.”2 In this context, while criticising the destructive nature of human rights language, representatives of world religions such as Islam found the fundamental character of the intersection of a universalising human rights culture and local culture contrary to the norms and values in various locales. For decades, however, Muslim scholars have debated whether Islam contradicts modern human rights norms and conventions, or whether Muslim traditionalists “feel compelled to use the language of human rights to justify their political ambitions.”3 Having generated a rich body of academic literature, the debate regarding the compatibility between Islam and human rights has often focused on a literalist reading of the authoritative texts emphasising the gaps between the parameters of tolerance and acceptability in the textual sources (i.e. the Qur’an and Sunnah) on the one hand, and internationally- sanctioned standards concerning the status of women, religious freedom, matters of legal judgment, on the other. It is perhaps ironic that the literalist reading of the texts have made some traditionalist Muslim leaders oppose the idea of a human rights regime. They believe that the Western powers have set the agenda for human rights, which is seen as nothing more than a pretext for a neo-colonial attempt at regaining domination over the Muslim world.4 This has led some Muslim jurists to reject the 1948 declaration as un-Islamic, since, according to them, the principles enshrined in the Universal Declaration of Human Rights contravene the authoritative corpus of the Islamic tradition.5 Resting on a belief in the immutability of the Islamic tradition, the above position accentuates the timeless and eternal nature of Islamic injunctions, which cannot be continuously modified to suit changing times. Indeed, some authors have used the same point regarding the temporal alteration of Islamic law to criticise ruling classes. For instance, Sayyid Qutb, the famous Egyptian Muslim reformist, repudiated the Egyptian state for allowing society to follow the path of secular reformation.6 Focusing on this theme, Saeed argues that there is nothing certain and undeniable about the literalist approach to the text. The Qur’anic verses that were revealed over more than two decades during the Prophetic era often refer to specific cases involving a certain degree of interpretation and choice. In recognising the uncertainty of the literalist readings of the texts, Saeed advocates recognition of human agency, which not only gives meaning to the texts, but also offers innovative opportunities for exploring the relevance of Islam to contemporary situations and challenges faced by Muslims today.7 The above recommendation holds significant promise on the compatibility between human rights and Islam since many Muslim scholars have moved away from ideological inflexibility, emphasising instead the unity between God and humankind and the
ISLAM AND CIVILISATIONAL RENEWAL GLOBALISATION, HUMAN RIGHTS AND ISLAM 345 core values embedded in the textual corpus of Islam. In this perspective, religious freedom, freedom to pursue a personal path to divinity, freedom of thought and expression, including freedom from government control and suppression, and freedom of women are seen to be in consonance with the Islamic faith. As Dalacora notes, Muslim scholars/jurists defend human rights not only “because they are concerned with protecting their own rights, as individuals and as an organisation. They also defend rights because they are intent on presenting a picture of a moderate and respectable movement.”8 This approach, which places the individual, particularly the Muslim believer, in the centre by emphasising the intrinsic values of individual piety and freedom to pursue social and economic development, may therefore be called the humanist approach. In what follows, this paper will explore the impact of globalisation on human rights by considering how the globalisation of rights as a process involves the movement of universal ideas of human rights into new cultural locales and spaces. While shedding light on the local conception of rights, the paper treats in a theoretical and practical vein the relationship of human rights to Islam. It argues that this relationship adds innovative positive dimensions to the human rights debate, since, unlike international conventions, it connects them to a divine source, thereby adding a new ethical/normative motivation for complying with them. Finally, the paper rejects monolithic conceptualisations of both Islam and human rights and looks at the situation of human rights in the Muslim world in the context of shifting political, social and economic dynamics.
Globalisation and the Local Conception of Human Rights: Thinking Beyond the Global/Local Divide
Since globalisation has generated a vast body of literature, it comes somewhat of a surprise to notice that relatively few works have focused on the relationship between globalisation and human rights.9 Perhaps the lack of studies on globalisation and human rights might be explained by the vagueness of many works, which fail to offer refining concepts and evidence to assess the meaning and implications of economic, political, cultural, technological and transnational dimensions of globalisation.10 One such gap in the literature concerns how human rights-related institutions and policies are globally enforced, and how human rights are affected by conflict, politics, and exchanges in technology, culture, and society. It is very important to explore the relevance of globalisation for human rights in countries, particularly in the Muslim World, where limited political freedoms, socioeconomic inequality and state repression pose grave challenges to human rights. However, if globalisation is addressed effectively, “it potentially
ICR 9.3 Produced and distributed by IAIS Malaysia 346 ASIF MOHIUDDIN could lift millions out of poverty while granting them greater political freedoms; if, on the other hand, it forms part of a hegemonic project that merely advances Western or other narrow economic and political interests, then vast numbers of the world’s citizens stand to see what limited rights they may currently hold eroded yet further.”11 It has been argued that globalisation accelerates the process of cultural diffusion, and one of the central ideas that has been affected as a result of this diffusion is the idea of human rights. This idea serves as a template for actors who wish to assist other marginalised groups and individuals in their quest for freedom and development. According to Engle, the implementation of human rights has been conditioned by the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, which provoked an intense critical response from scholars, who believed that there could be no universal conception of human rights that would be valid across the world’s wide variety of cultures.12 The UDHR was subjected to a process of intense debate and dialogue among representatives of different groups arguing for civil political rights (representatives of Western democracies), and social and economic rights (representatives of communist regimes).13 Nevertheless, while there was no consensus on what constituted ‘rights’ among the drafters, such differences were overlooked because the latter were fully aware that the declaration would not challenge the authority of, say, the obdurate power of the state in autocratic societies. So, even though the UDHR emerged as a normative template for human rights and was seen to be valid across the globe, it lacked the power of authentic, collective agreement and consensus. Nevertheless, this declaration remains a key platform by which the ideas of human rights can advance and possibly be accomplished on a more global scale. As noted by Cowan et al., scholars have focused on a dialogical project in which advocates of universal human rights attempt to assist vulnerable individuals in escaping the universalism-relativism dichotomy.14 In the contemporary phase of globalisation, this dialogical practice proceeds with an understanding of one’s cultural ideals and negotiates and persuades members of a culture regarding the authenticity and sacred meaning of certain practices to produce new hybrid practices that can protect the vulnerable. It also recognises, as Dembour has argued, that the validity of certain cultural practices is based on pure relativism, which might lead to indifference and acquiescence, since any intervention making human rights a universalising project would be considered an intrusion into other peoples’ cultures.15 The dialogical practice represents a new facet of the contemporary globalisation of human rights, with activists in indigenous movements seeking assistance from human rights experts across the globe in framing their causes in the language of human rights.16 However, the dialogical approach does not
ISLAM AND CIVILISATIONAL RENEWAL GLOBALISATION, HUMAN RIGHTS AND ISLAM 347 address the problem of relativism, nor does it respond to the charge made against human rights advocates in regard to cultural imperialism—despite accepting the validity of other cultural practices.
A Maqasid-based Approach to Human Rights
Islam aims to establish a code of ethics, or a legal framework, that balances the protection of the rights of the individual with the rights of the society collectively. It achieves that by outlining the essential requirements that would ensure that the rights of the individual are fulfilled without damaging the public good (maslahah)—or, in other words, preserving “the general availability of all the basic human requirements, balanced with public welfare.”17 The primary objective of the shariah is to secure benefits for the people and safeguard their interests in this world and the hereafter. Characterising public interest as the only principal objective of the shariah, al-Shatibi placed a great deal of emphasis on the objectives (maqasid) of the shariah, pointing out that God revealed the shariah for the benefit of mankind, which can be seen as a unifying factor in all detailed rulings of the shariah. For Kamali, while the objectives of the shariah are “rooted in the textual injunctions of the Qur’an and the Sunnah,” their focus is on “the general philosophy and objectives of these injunctions often beyond the particularities of the text.”18 This makes shariah more accessible, since it avoids atomism, literalism and the intricacies associated with the usul methodology. Muslim scholars have classified the objectives of the shariah into three categories, listed in descending order of importance as the essentials (daruriyyat), the needs (hajiyyat), and the complementaries (tahsiniyyat). These objectives are usually enumerated into five elements: faith, life, intellect, lineage and property. The essential interests across the five objectives are considered as absolute minimums for the material and spiritual welfare of individuals. These constitute the central theme of the shariah, with all its laws aiming to preserve these benefits. The needs not only seek to promote the essentials, albeit in a secondary way, but also to remove sternness and hardship in cases where such severity and harshness do not pose a threat to the very existence of normal order. The third category of objectives seeks to enhance, refine and perfect the customs and conduct of the people, at all levels, extending beyond the institutional application of almost all aspects of the shariah.19 Since the Qur’an has conferred many rights on human beings in the realms of the social, ethical, political, cultural and other fields, it can be argued that the main objective of shariah is to protect the interests and rights of man. These rights cannot be altered, repealed or invalidated under any circumstances, except with
ICR 9.3 Produced and distributed by IAIS Malaysia 348 ASIF MOHIUDDIN regards to what is specified in the divine revelation.20 Therefore, the maqasid- based approach is a formulation of ideas, concepts and a philosophy of human rights that enhances the aims of the shariah, as opposed to postmodern liberalism and social anarchy, which promote a monolithic view of human rights devoid of any moral significance. While incorporating human rights into the framework of social justice, the maqasidi approach, in the context of preservation of faith, focuses on two types of rights, namely freedom of worship and freedom of belief. These rights are realised when the religious beliefs of a person are not considered as an offence, leading to the preservation of individual and social rights. Similarly, in regard to the protection of life, the basic rights include “right to life, right to security, right to necessities and right to freedom from fear.”21 Life is an indispensable aspect of development and, as such, covers all dimensions of sustenance, including the rights of those “who are designated as vicegerents of God for ensuring justice and stable governance.”22 Regarding the preservation of mind, some of the basic rights, such as freedom of thought, right to freedom of expression, and capability rights, are discerned to be extremely important for achieving freedom and liberating the human soul from oppression. Accordingly, some jurists situate these rights in the context of daruriyyat, which is in line with the universal right to freedom of conscience and belief.23 For Chapra, “no civilization can survive if its future generations are spiritually, physically, and mentally of a lower quality than the previous ones and are, therefore, unable to respond successfully to the challenges that they face. There must, therefore, be continuous improvement in the quality of the future generation…”24 Announced in 1981, the Islamic Declaration of Human Rights includes “the entire list of basic rights that were mentioned in the Universal Declaration of Human Rights (UDHR), such as rights to life, freedom, equality, justice, fair trial, protection against torture, asylum, freedom of belief and speech, free association, education, and freedom of mobility.”25 However, some members of the United Nations High Commission for Human Rights (UNHCHR) were apprehensive of the changes brought via the Islamic declaration, because they think that such transformations undermine the international human rights instruments which are based on inter-cultural consensus. For others, the declaration “adds new positive dimensions to human rights, since, unlike international instruments, it attributes them to a divine source thereby adding a new moral motivation for complying with them.”26 Supporting the latter view, while addressing the concerns of the former, a maqasid-based approach to the issue of human rights rectifies the partial picture of Muslim opposition to universal human rights, and plays a fundamental role in juridical reasoning, especially in the evolution of purposes of Islamic law, giving human rights and human development targets a firm base in the Muslim world.
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Competing Tendencies: Debating Human Rights in the Muslim World
Since the beginning of the twentieth century, the differences between classical and contemporary interpretations of Islamic law have deepened, with some scholars emphasising a clear distinction between the universality of human rights and Islamic ethical constructs. Conceding to several claims made by the supporters of international human rights, Muslim reformists agree that there is a global consensus, in both theoretical and practical terms, regarding the fundamental standards of human dignity. The debate regarding the right to development has assumed a renewed significance in the wake of the ICT revolution, which has resulted in changing attitudes about a broad implementation of human rights and fundamental freedoms.27 The realisation of the right to development hinges on necessary organisational changes. However, the willingness of developed countries in the Global North to support such transformations is doubtful. At the same time, the recognition of such a right, when it takes the form of ethno- development, in the wake of an ethnonationalist revival among minority communities in the Middle East, will have profound implications for some states in the region.28 Middle Eastern states are organised around a nation-state system. As Beeley has noted, “Islam can replace nationalism as a basis for legitimacy and allegiance if it is permitted to do so by individuals, groups and states, but it shows no sign of replacing the state.”29 While Muslims differ over the question of adjusting to the state of global politics, they also contest the authoritative definitions of culture, Western values, institutions, and practices, which reflect the current struggle in the Muslim world in which power interests assert competing claims to cultural symbols that are highly valued in the region.30 Some Muslim scholars oppose the influence of Western ideas, practices and values. For them, Islam is an immutable religion that transcends time and space. Their purported objectives include the establishment of an Islamic state based on shariah and “the execution of a constitution that is compatible with Islam.”31 In regard to human rights, they have objected to at least two Articles of UDHR: Article 16 and 18. According to Article 16-1: Men and women of full age, without any limitation due to race, nationality and religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution.32 Islamists, however, challenge the status of women and question gender roles, marriage rights and obligations, while also advocating a strong version of cultural relativism in which political and socio-economic equality of the sexes is unnatural. Islamists also question the universality of Article 18:
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Everyone has a freedom of thought, consciousness and religion; this right includes freedom to change his (or her) religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.33 According to some jurists, leaving one's religion clearly presents a danger of falling away from Islamic teachings, and thus proselytisation and apostasy should be forbidden by law. Such a monolithic interpretation of Islamic law has invited controversy and debate from leading cadres of Muslim scholars, who seek a balance between traditional, modern and Islamic principles. Thus, for other Muslim jurists, nothing in the law relating to apostasy derives from the letter of the Qur’an as there is no mention therein of any penalty for those who renounce Islam. Nor do any Qur’anic verses refer, explicitly or implicitly, to use force if apostates refuse to return to Islam.34 Accordingly, a number of prominent classical Muslim jurists, such as Ibrahim al-Nakhai (d.714), Sufyan al-Thawri (d.778), and Sarakhsi (d.1096) argued that although apostasy is a great offence, an apostate should be asked to repent indefinitely but never condemned to death.35 This view was also held by Mahmud Shaltut (the former Rector of al-Azhar), who argued that the prescription of the death penalty for apostasy was aimed at prevention of aggression against the Muslim state. As noted by Ramadan, since there can be no compulsion or coercion in matters of faith because free choice and willing submission “are foundational to the first pillar (declaration of faith) and essential to the very definition of Islam,” it should be stated that one who leaves his/her religion should be free to do so and his/her choice must be respected.36 Similarly Brown argues that the Qur’anic proclamations regarding compulsion in religion (“There is no compulsion in religion. The right path has been distinguished from error”) and freedom of religion (“whoever wants, let him believe, and whoever wants, let him disbelieve”) are absolute and universal statements by virtue of which the Qur’an grants religious freedom to Muslims.37 In his exhaustive investigation of penal laws in Islam, Khalid El-Fadl emphasises that belief and conviction cannot be coerced or contradicted by isolated traditions attributed to the Prophet, making it clear that there is no punishment prescribed for apostasy.38 These scholars advocate a paradigm shift in Islamic thinking, promoting a model of vibrant civil society and a pluralistic political rule by calling for religion to adapt its norms and ethical principles to those of universal human rights conventions. While calling for the renegotiation of gender relations, they argue for the incorporation of new social norms into the framework of gender equality in the midst of the new technological revolution and the international division of
ISLAM AND CIVILISATIONAL RENEWAL GLOBALISATION, HUMAN RIGHTS AND ISLAM 351 labour in the Muslim world. In short, although some Muslim jurists warn about the implications of globalisation in the realm of economics and politics, they see it as a liberalising process with palpable consequences to human rights.
Human Rights and the Expanding Global Ethical Space
With the emergence of revolutionary modern technology and communications, new global awareness has given credence to the universal standards of human rights, which represent, in the most basic sense, the ethical dimensions of an evolving global culture.39 In this context, it is important to understand how proper human rights standards are defined by both the Muslim diaspora and those living in Muslim-majority contexts who believe that the considerations of local cultures must be adapted to the concerns of an evolving global civil society. Since the globalisation process has transformed traditional cultures, Muslims have often responded to these changes with anger and frustration. For example, in the cases of the Rushdie Affair and the Gulf War, Muslim responses were based on resentment and passion rather than reflection and pragmatism. This has resulted in, as Ahmad and Hastings have argued, “a more pronounced polarisation in the Muslim world, one which creates a disjunction between radical Islam and the West.”40 Some human rights practitioners have argued that since a global communication space is evolving with definitive normative implications, the irreversibility of the space has given a political orientation to the application of global human rights standards, which in terms of the inclusion or exclusion of values in a global culture gives preference to politics rather than the underlying philosophy behind rights.41 Regarding the role of Islam in this emerging culture, particularly against the backdrop of growing economic, political and social transformations, it is important to note that it has generated distinctly Islamic responses to the growing forces of modernisation and globalisation. The powerful movements spawned by globalisation have forced Islamists to search for pragmatism in the realm of human rights in order to create an effective balance between universal civility and cultural integrity. Against this backdrop, liberal Muslim reformers admit that it is imperative to have a normative consensus across cultural and religious boundaries to resolve tensions between traditional shariah norms and the requirements of human rights, to seek out ways to genuinely mediate between competing normative requirements. Some scholars focus on the original significance of the shariah based on certain ethical and religious principles. The conjoining of these principles with medieval reasoning recaptures the normative requirements of Islam that have been overshadowed by a legal body of detailed regulations. This
ICR 9.3 Produced and distributed by IAIS Malaysia 352 ASIF MOHIUDDIN body of particulars took a rigid and formalistic turn alien to the original substance of the shariah, leading to the situating of incidental worldly matters in the context of essential and immortal provisions of religion.42 While advocating an emancipated understanding of the shariah, Muslim reformers demand the recovery of ijtihad in order to achieve justice and address modern needs.43 For An-Na‘im, the task of the Muslim community is to formulate normative criteria in light of theological principles, not only to facilitate reform, both in the fields of law and theology, but also to evolve a new awareness of the human character of the Qur’anic revelation.44 It is no coincidence, in that context, that Muslim reformers place a great deal of emphasis on human dignity and focus on the vicegerency of man (Qur’an 2:30). They cite the verse of the Qur’an that emphasises honouring the children of Adam and point out that, according to Qur’anic verse 33:72, God has bestowed a special trust upon His creation, elevating the human being above all cosmic powers. In order to contest traditional hierarchies, Hassan refers to the main doctrine of Islam, the oneness of God (tawhid), and rejects all human pretensions of guardianship, since the ultimate judgment of a person’s vocation and destiny lies exclusively with God.45 The monotheistic creed thus yields emancipatory consequences, because it questions all claims of absolute obedience by which a human being takes a quasi-divine role, which would come close to polytheism, which is strictly forbidden in Islam. In his writings, the Tunisian scholar Muhammad Talbi focuses on the same argument in order to demand religious freedom beyond the confines of limited tolerance. For him, a Muslim’s submission to God should lead to the recognition of an individual’s freedom of conscience. With regard to the traditional forms of corporal punishment, Talbi distinguishes between the essential Qur’anic principles and historical circumstances, with the former remaining valid, even though the modes of implementation can change in accordance with new situations and possibilities. From the above discussion, it seems that the traditional impediments to the endorsement of human rights can be critically overturned, because for many Muslim scholars there is no contradiction between the principles and emancipatory claims of universal human rights as embodied in the existing global standards. The idea of human dignity requires a political commitment to human rights, and in a world where crimes perpetrated against others are blatantly ignored, it is the responsibility of Muslim theologians to repudiate all forms of discrimination as crimes explicitly condemned by the Qur’an.
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Current Realities and Human Rights Alternatives
Behind common images of the Muslim world, which coalesce around issues of extraordinary violence, as currently epitomised by the omnipresent images of al-Qa‘ida, genocides in Iraq and the unending Palestinian-Israeli conflict, lies a dreary authoritarian landscape. Virtually all independent human rights monitors have listed the Muslim world as the worst violator of human rights. During the last several decades, notwithstanding democratising experiments in Bahrain and Yemen, “the average level of freedom has declined within the Middle East,” with regimes showing no commitment to establishing rights to non-discrimination, health, education and political liberties.46 The region’s catalogue of violations ranges from torture and extra-judicial disappearances and killings, to political, economic, and social discrimination against non-Arab minorities. While linking human rights to equitable economic development, scholars and practitioners have claimed that the failure to implement human rights in the Middle East has led to a process of economic underdevelopment characterised by the exclusion of social, economic, political as well as civil rights. When these rights are incorporated into a state’s constitutional framework, they can be conceptualised in a manner that acknowledges the context for rights violations and the range of issues that would lead to an increased awareness of the activities of government in violating human rights and civil liberties. While the Middle East has a comparative advantage in terms of human development relative to Asia and Latin America, the regimes in the region have abused the centralisation of economic resources as a tool for gaining power— doling out economic favours to gain political support undermines civil society cohesion. Overall, economic levels have become stagnant, with minimal efforts being made to empower the political and economic status of the population and establish sustained economic development within the region.47 With the evolution of the Middle East’s post-revolutionary republics into family-run empires, regimes have focused on the overdevelopment of external and internal security apparatuses, resulting in increased military spending. Flowing out of a lack of political, economic and cultural freedoms and rights, the Middle East’s autocratic regimes have flourished in a climate in which the systematic violation of human rights are bred by the ill-effects of colonial structures of power that have enabled these regimes to acquire the support of superpower patrons, regional and international organisations, domestic institutions and intellectual elites. In the region, civil societies have been co- opted, while individuals who have mobilised in opposition to the region’s central power structures and ideological establishments have been suppressed. Members of these civil societies are rhetorically tarnished by incumbent regimes as political
ICR 9.3 Produced and distributed by IAIS Malaysia 354 ASIF MOHIUDDIN or cultural traitors. Such structures of power remain a threat to human rights. Thus, while the region has remained superficially stable, rights violations have been a source of fundamental opposition to the domestic situation, making the region’s political status quo a flashpoint for violence and instability.48 Repressive norms are so longstanding that many reject the possibility of the implementation of human rights in the Muslim world, seeing the political culture of the region as irremediably dictatorial. This is not entirely unfounded, since there is a combination of tyrannical structures and ideological nihilism at the heart of the region’s current political formations. According to Sharabi, whether secular, monarchical or republican, all forms of rule in the Middle East are akin in their patrimonial foundations and oppressive results.49 This raises the crucial question of alternatives and how they might be given political space that would advance the political and economic rights of individuals and direct the region’s energies towards genuine economic and political development.50 From secular to human rights-based critiques, the Arab world’s political ideas have always been understood vis-à-vis dialogue with global currents. However, the region is not a parochial backwater that merely takes note of normative shifts that occur in a transnational context, conceptualising the Arab world as open to change — given the political space — in response to the evolving normative models of change. It is this political space that is essential with regards to guaranteeing individual and group agency, as well as protection of rights in terms of political and economic participation, which “allow peoples to be the subject defining their political structures, rather than the object of structures imposed upon them from above.”51 In this sense, human rights provide a structure through which alternatives can evolve from within society and out of the global exchange of ideas.
Human Rights Conventions in the Muslim World: Ratification and Reservations
Given the view that human rights are intrinsically antithetical to Islam, it is noteworthy that the formal discourse on Islam has always promoted compatibility between the two. Nevertheless, while Islam does not deny the universal value of human rights, it does not agree with the universal human rights concept as based on Western imperialist connotations. Referring to the preamble of its charter of 1972, the Organisation of the Islamic Conference (OIC) declared that fundamental human rights are compatible with Islamic values, including the aim of protecting the individual from the state. Thus, for any Muslim state, the reciprocity of the rights of the individual and the duties of the state should be a core area of
ISLAM AND CIVILISATIONAL RENEWAL GLOBALISATION, HUMAN RIGHTS AND ISLAM 355 concern.52 In the declaration, the recognition of rights was a major development, since individual rights were actually discussed in canonical authoritative corpora in Islam (Qur’an and Sunnah). This was an important innovation at the principle level.53 The hybrid character of the Cairo declaration can be understood from the role it grants to the state in guaranteeing the rights of the individual, while also presenting fundamental rights and universal freedoms as an integral part of Islam. This hybridity is also displayed when Muslim states implement human rights conventions. While some countries have expressed reservations on shariah grounds, others have argued for incorporating shariah into the framework of human rights to give legitimacy to the UDHR. In relation to three major conventions on human rights, namely the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention against Torture (CAT), Muslim countries have ratified all three while maintaining the shariah as an important source of legitimisation. However, references to international human rights in the constitutions of various Muslim countries differ. For example, although Saudi Arabia has no formal constitution, the kingdom refers to human rights under its Basic Law of Governance. Some countries, such as Yemen, refer explicitly to the UDHR or the Charter of the United Nations.54 Concerns over gender equality, criminal law and freedom of religion as espoused by the UN conventions continue to pose a challenge from the Islamic point of view. They must be rigorously discussed before they can receive Islam’s seal of approval. In regard to freedom of religion, inter-religion dynamics might not pose much of a problem. Classical Islamic scholarship, for instance, accorded special provisions to the “People of the Book,” (Jews and Christians), while many modern Muslim constitutions have adopted preferential treatment for non- Abrahamic religions, too (such as Hinduism in Indonesia and Zoroastrianism in Iran). But, problems arise concerning intra-Muslim religious communities, such the Baha’is in Iran, the Alawites in Turkey or the Ahmadis in Pakistan. This complication is derived from the formal status of Islam as part of the state. The Cairo Declaration reads, “Islam is certainly seen as the ultimate revelation” and is formally accorded special treatment “on many fronts (for example, in the marriage and inheritance laws, religious education, access to high state functions).”55 Due to the formal position of Islam in the state, intra-Muslim minorities whose beliefs are not acknowledged by the state can become victims of discrimination. This implies that the definition of apostasy can be drawn very broadly. However, according to Mayer, at least on paper there is Muslim acceptance of important human rights conventions, with many Muslim countries making concrete and constructive progress in their implementation over the last decade.56 Shifting
ICR 9.3 Produced and distributed by IAIS Malaysia 356 ASIF MOHIUDDIN political landscapes in the Muslim world have made it more feasible to reconcile Islam with human rights, and to even regard Islam as a source of human rights. Without creating polarised positions on national and international discussions, this serves as a very important reference point for the development of a Muslim constitutional state guaranteeing equal rights to all peoples, regardless of their religious affiliation.57 Focusing on the ICCPR convention, Baderin argues that the primary areas of conflict between human rights and Islam concern the scope of gender equality, freedom of religion, freedom of expression and the death penalty.58 However, even in these cases, differences can be minimised due to the breadth of interpretations within the Islamic schools of law. In this regard, Islamic jurists should be given the right to choose appropriate rulings in order to make shariah more flexible and humane, thus enabling it to serve as a platform for the realisation of human rights in Muslim countries.
Conclusion
Contemporary debates within the Muslim world regarding state formation, globalisation, human rights and nationalist particularisms, are divided into two opposing camps. One side denounces Islam for historically legitimising despotic rule, whereas the other finds that the liberal tendency within Islam is suppressed by modern secular authorities. A critical view of cultural heritage and the identity constructions based on it, as well as the influence of the more powerful cultural “Other,” reveals the first interpretation to be an attempt to isolate religion from the secular public sphere.59 The advocates of the second approach argue that in order to resist globalisation, individualisation and interdependence, there is a need to embrace their opposites, such as universal liberties, alongside increased nationalism and particularism.60 Redefining politics, according to this side, must primarily refer to human rights reform. Secularists view local cultures as outdated concepts to be replaced by innovative ideas and universal norms, whereas Muslim intellectuals incline towards preserving authentic identity in defence of local culture. Some moderates, however, emphasise the relevance of local cultures in accepting positive global changes, including universally accepted human rights standards. This approach allows human rights values to be incorporated within a religious framework, and thus further facilitate the universalisation of human rights norms. The above process also takes us further away from a view that has bedevilled human rights thinking and practice for a long time: that “the West” is to be identified with liberalism and human rights while “other” cultures are seen as opposing them.
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In this context, the universalisation of human rights principles, which many see as part of a process of globalisation, becomes an important point pertaining to the political transformation of the Muslim world. Given that globalisation does not undermine the authority of a state, it remains for the state to bridge the gap between its domestic standards and universal norms. From the 1970s to the 1990s, in countries such as Egypt and Tunisia, this process created extreme reactions, with Islamists responding to the situation by adopting human rights principles. The status quo indicated that, since this was a reaction to global norms, as well as the states which represented those norms, globalisation and the universalisation of human rights could be reversed.61 However, the present situation in the Muslim world is no less favourable than in developing countries. The various indices of human development measure the impact of globalisation on human rights discourse by looking at how human rights have advanced in the face of the grim realities that characterise much of the Muslim world.62 Given the trend of religious moderation and political secularism in most Middle Eastern states, important developments have been made, although not to the point of full acceptance of human rights norms. Rights and freedoms are still filtered through an ideological lens that often compels states to undermine human rights principles. However, this does not exclude further rapprochement, and signs of a new transformation can, in fact, be observed in a normative model of human rights that successfully reduces the strain between shariah and international law.
Policy Recommendations:
• Given that the era of globalisation has energised the moral force of human rights, Muslim nations must focus on developing the most fundamental and basic of those rights —a “minimal morality”— on which a large number of societies can agree. • While embracing the challenges and opportunities of globalisation, Muslim nations must ward off hegemonic Western ideologies and institutions that have disruptive effects on Muslim societies. • The process of transformation may require a paradigm shift in contemporary Islamic thinking regarding the relationship between human rights and Islam, a shift that will result in balance and control without necessarily sacrificing Muslim values and ethical perspectives. • To overcome West-centric biases, the raison d’etre of human rights discourse should be grounded in an intercivilisational perspective. This approach represents a significant scaling back of the imperial aspirations sometimes attributed to the Western project of human rights.
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• Further investigations must explore the relevance of human rights by studying the politically and economically repressive realities that characterise the Muslim world.
Notes * Asif Mohiuddin, Senior Research Fellow, SH Institute of Islamic Studies, University of Kashmir, Srinagar, India. He can be contacted at asif. [email protected].
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15. M.-B. Dembour, ‘Following the Movement of a Pendulum: Between Universalism and Relativism,’ in Culture and Rights: Anthropological Perspectives, ed. Jane K. Cowan, Marie-Bénédicte Dembour and Richard A. Wilson (Cambridge and New York: Cambridge University Press. 2001), 56-79. 16. Clifford Bob, The Marketing of Rebellion: Insurgents, Media, and International Activism (Cambridge: Cambridge University Press), 1-5. 17. Abdur Rahman Sheha, Human Rights in Islam and Common Misconceptions (Alexandria: Abu Salman Deya Ud Deen, 2010). 18. Muhammad Hashim Kamali, An Introduction to Shari‘ah (Kuala Lumpur: Ilmiah Publishers, 2006), 130-1. 19. Muhammad Hashim Kamali. Freedom, Equality and Justice in Islam (Cambridge: Islamic Texts Society, 1999), 196-7. 20. Imran A. K. Neyazee, ‘Islamic Law and Human Rights,’ Islamabad Law Review 1, no.1 (2003): 34. 21. Asif Mohiuddin, An Islamic Approach to Human Development: Democracy and Human Rights in the Light of Maqāsid al-Sharī‘ah. Available at: www. iais.org.my/e/attach/2015/maqasid2015/pdf/s3s1_paper.pdf. (Accessed on: 27/12/2018). 22. Muhtari A. Kano and Atallah Fitzgibbon, Human Development in Islam (Birmingham: Islamic Relief Worldwide, 2014), 7. 23. Najib Ghadbian, Democratization and the Islamist Challenge in the Arab World (Boulder: Westview Press, 1997), 74. 24. Umar Chapra, The Islamic Vision of Development in the Light of Maqasid al- Shari‘ah (London: International Institute of Islamic Thought, 2008), 11. 25. Jasser Auda, ‘Islam,’ in Encyclopedia of the Developing World, Vol 1, ed. Leonard Thomas (London: Routledge, 2006), 875-9. 26. Jasser Auda, Maqasid al-Shari‘ah: A Beginner’s Guide (London: International Institute of Islamic Thought, 2008), 25. 27. Asbjorn Eide, ‘National Sovereignty and International Efforts to Realize Human Rights,’ in Human Rights in Perspective: A Global Assessment, ed. Asbjorn Eide and Brent Hagvet (Oxford: Blackwell, 1992), 3-30. 28. Rudolfo Stavenhagen, ‘Universal Human Rights and the Cultures of Indigenous Peoples and Other Ethnic Groups: The Critical Frontier of the 1990s,’ in Human Rights in Perspective: A Global Assessment, ed. Asbjorn Eide and Brent Hagvet (Oxford: Blackwell, 1992), 135-151. 29. Brian Beeley, ‘Islam as a Global Political Force,’ in Global Politics: Globalization and the Nation State, ed. Anthony McGrew and Paul Lewis (London: Polity Press, 1992), 293-311. 30. Roy Andersen, Robert Seibert and Jon Wagner, Politics of Change in the Middle East: Sources of Conflict and Accomodation, 5th ed. (Upper Saddle River, NJ: Prentice Hall, 1998), 145. 31. Mir Husain, Global Islamic Politics (New York: Harper Collins 1995), 156. 32. 24 Human Rights Documents (New York: Centre for Study of Human Rights, Columbia University, 1992), 8. 33. Mahmood Monshipuri, ‘Islam and Human Rights in the Age of Globalization,’ in Islam Encountering Globalization, ed. Ali Mohammadi (London: Routledge, 2002), 102.
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34. Asma Afsaruddin, Striving in the Path of God: Jihad and Martyrdom in Islamic Thought (Oxford: Oxford University Press, 2013), 242. 35. Kamali, Freedom, Equality and Justice, 203-34. 36. Tariq Ramadan on Apostasy. Available at: http://www. https://berkleycenter. georgetown.edu/quotes/tariq-ramadan-on-apostasy. (Accessed 5 April 2018). 37. Jonathan Brown, Misquoting Muhammad: The Challenges and Choices of Interpreting the Prophet’s Legacy (Oxford: Oneword Publications, 2014), 186- 9. Quran 2:256 and 18:29. 38. Khaled Abou El-Fadl, The Great Theft: Wrestling Islam from the Extremists (New York: HarperCollins, 2007), 158-9. 39. Dean Paterson, Delores Wunder and Harlan Mueller Harlan, Social Problems: Globalization in the Twenty-First Century (Upper Saddle River, NJ: Prentice- Hall, 1999), 38-9. 40. Akbar Ahmad and Hastings Donnan, ‘Islam in the Age of Postmodernity,’ in Islam, Globalization and Postmodernity, ed. Akbar Ahmad and Hastings Donnan (New York: Routledge, 1997), 17. 41. Meyer, Human Rights, 216. 42. Heiner Beilefeldt, ‘Muslim Voices in the Human Rights Debate,’ in Islam and Globalization, Vol 4, ed. Shahram Akbarzedeh (London: Routledge, 2006), 226- 254. 43. Fazlur Rahman, Islam (Chicago: Chicago University Press, 1979), 27. 44. Abdullahi An-Na‘im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (New York: Syracuse University Press, 1990), 75. 45. Riffat Hassan, ‘On Human Rights and the Qur’anic Perspective,’ in Human Rights in Religious Traditions, ed. Arlene Swidler (New York: Pilgrim Press, 1982), 51-65. 46. Available at: https://escholarship.org/uc/item/7bv4b2w1(accessed 5 April 2018). 47. Anthony Chase, ‘The State and Human Rights: Governance and Sustainable Human Development in Yemen,’ International Journal of Politics, Culture, and Society 17, no.2 (2003): 213-236. 48. Since the 2011 popular uprisings, human rights in the Middle East and North Africa have suffered at the hands of authoritarian regimes willing to use any means necessary to stifle the democratic aspirations of their citizens. Even in stable countries such as Egypt and Bahrain, human rights violations have spiraled. Egyptians since the 2013 coup have endured rights violations unthinkable, even during the worst days of former president Hosni Mubarak. Likewise, in Bahrain, “once something of a beacon of pluralism in the Gulf, opposition political leaders are imprisoned and tortured, while human rights activists are treated as enemies of the state.” At the heart of the global retreat of human rights is the Syrian tragedy. The causal chain is discernable. The entrenched regime resorted to unpunished mass murder, which led to the rise of extremism within the country. The combination resulted in the flight of millions of Syrians to Europe in the summer of 2015, which culminated in “a characteristic entrenchment of anxious populations worried about the impact of poor and destitute immigrants on already diminishing entitlements.” Thus, it reinforced “intolerant populism across the Western world, and led to the arrival to power of [such] leaders in Eastern Europe and in the United States.” The defense of human rights is now
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mostly left to international civil societies, with human rights and humanitarian organisations in the lead. Available at: http://carnegie-mec.org/diwan/75607. (Accessed on: 21/06/2018). 49. Hisham Sharabi, Neopatriarchy: A Theory of Distorted Change in Arab Society (Oxford: Oxford University Press, 1988), 66-70. 50. Muhammad Hafez, Why Muslims Rebel: Repression and Resistance in the Islamic World (Boulder: Lynne Rienner Publishers, 2003), 19-20. 51. Chase, ‘The State and Human Rights,’ 11. 52. Meyer, Human Rights, 14. 53. Available at: http:// http://edoc.vifapol.de/opus/volltexte/2008/487/pdf/ AP_13_1999.pdf. (Accessed on: 05/04/2018). 54. Said Mahmoudi, ‘International Human Rights Law as a Framework for Emerging Constitutions in Arab Countries,’ in Constitutionalism, Human Rights, and Islam after the Arab Spring, ed. Rainer Grote and Tilman Roder (Oxford: Oxford University Press, 2016), 537. 55. Donk et.al. Dynamism in Islamic Activism: Reference Points for Democratization and Human Rights (Amsterdam: Amsterdam University Press, 2006), 138. 56. Mayer, Human Rights, 10 57. Shireen Ebadi, Human Rights, Women and Islam, ISIM-Lecture, The Hague, 16 April 2004. 58. Mashoud Baderin, International Human Rights and Islamic Law (New York: Oxford University Press, 2003), 20. 59. Amr Hamzawy, ‘Globalization and Human Rights: On a Current Debate among Arab Intellectuals,’ in Human Rights in the Arab World, ed. Anthony Chase (Pennsylvania: University of Pennsylvania Press, 2008), 62. 60. James Spickard, ‘Human Rights, Religious Conflict, and Globalisation,’ International Journal on Multicultural Societies 1, no.1 (1999): 16. 61. Fred Halliday, Islam and the Myth of Confrontation: Religion and Politics in the Middle East (London: I. B. Tauris, 1999), 134. 62. Abdulaziz Sachdena, Islam and the Challenge of Human Rights (Oxford: Oxford University Press, 2009), 145.
ICR 9.3 Produced and distributed by IAIS Malaysia IMPLICATIONS OF CHILD CUSTODY IN ISLAMIC FAMIILY LAW: A CASE STUDY OF CUSTOMARY COURTS IN OYO STATE, NIGERIA Aminullahi Adetoro Yusuff*
Abstract: Studies carried out to investigate the immediate and remote causes of marital discord arising from many of the customary courts in Oyo State, Nigeria, revealed that out of 127 divorce-related cases, 87 involved Muslim couples. Out of this number, 53 were linked to custody of children (al-hadanah which is a regulation that has to do with whom should a child stay after the dissolution of marriage for his/her proper nourishment, protection and wellness in the process of upbringing). This issue has led to many serious disputes among Muslim couples and their families in many localities of the state so much that, in many cases, it has led to street fights, vandalisation of property, civil unrest and legal battles. To worsen the situation, without recourse to Islamic marital jurisprudence, judgments are passed in the customary courts in favour of either of the couples. Therefore, the aftermath of the court verdict does not end this debacle in some cases, with to snowballing into spiritual fighting, where family members of the couples bewitch one another to take custody of the children. This problem is not new but it has risen to an alarming proportion these days. It is against this backdrop that an attempt is made in this paper to examine the practice of child custody after divorce or separation in Islam with a view to laying to rest the series of crises associated with the determination of who is to take care of children after divorce and to bring to people’s awareness the shariah rulings on child custody. The paper concludes that al-hadanah is a measure in disguise to safeguard indiscriminate severance of the cord of marriage and that Islam, through its system of law, has provided practical and lasting solutions to every imagined and real problem of man and that adoption of children in its various forms and types is forbidden in Islam. Keywords: Adoption, al-hadanah, child custody, customary court, marital jurisprudence, shariah.
Introduction
Islam is a complete way of life that legislates on every aspect of man’s life and provides measures that safeguard such legislations. Marriage is one of the enactments of Islam which is held in high esteem and elevated far and above
ISLAM AND CIVILISATIONAL RENEWAL IMPLICATIONS OF CHILD CUSTODY IN ISLAMIC FAMILY LAW: A CASE STUDY OF 363 CUSTOMARY COURTS IN OYO STATE, NIGERIA other contracts which people venture into. In the words of the glorious Qur‘an, an enviable position of honour has been accorded to the marriage contract and, therefore, it is regarded as ‘a solid and powerful undertaking’.1 To this end, the Qur’an declares:
And how could you take it when you have gone in unto each other, and they have taken from you a solemn covenant. (Q.4: 21).2
Ghaanim reiterates that the marriage contract unites the couple with the bond of love. Although they are two separate individuals, as a couple they now count as one as each resembles the other and carries each other’s dreams, hopes and pains.3 Among the chief aims of marriage is the establishment of the best environment for the partners to benefit from each other by sharing happiness, support and intimacy. Attaining to this requires the fear of Allah and establishment of a relationship based on sincerity and faithfulness. These would bring about mutual happiness, tranquility, comfort, solace, love and mercy which will permeate permanently among them and thereafter extended to the children, from there to the in-laws and to the community at large.4 However, the shariah according to Doi, does not in any way preclude the possibility of a time in a couple’s life when it becomes evidently impossible for them to tolerate one another and live together as spouses. In the event that wise counsels and thought-provoking sermons do not help, rather than enduring in a marriage towards ruin and discomfort, Islam permits amicable separation between the parties. This differs from what obtains in some religions where divorce is not permitted and the couple will have to linger under the pretense of hopes, enjoyments and merry-making.5 However, Islam recommends reconciliation between spouses as a measure to safeguard the relationship from being severed. But, if in the long run it becomes crystal clear that the couple can no longer co-exist in peace and tranquility, they are not chained together to a painful and agonising end; Islam recommends mutual divorce for both. The fall-outs from divorce include: remorse-elation, waiting period, maintenance during the waiting period, custody of children, bride price settlement and re-marriage.6 Without doubt, children are the immediate victims of divorce which has an overbearing effect on their upbringing and overall wellbeing. Against this background this paper seeks to examine child custody as a measure in Islam to prevent indiscriminate divorce and to sustain the overall welfare of the children.
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The Concept of Divorce in Islam
Divorce is common across different civilisations and cultures and therefore reflects a human phenomenon.7 The prevalence of dissolution of marriage which take different conceptions, forms and styles, predated Islam.8 In Judaism, the power to divorce is only a prerogative of the husband who uses it indiscriminately; in Christendom, divorce is seriously frowned at and only allowed in such a case when one of the spouses becomes irreligious and once separated, the two remain unmarried for life; while Hinduism holds that a marriage once consummated can never be ended.9 The religion of Islam allows repudiation of marriage only as a last resort when the couple can no longer live together in love, peace and tranquility.10 Should there be a need for divorce, the couples are enjoined to conduct themselves in the whole atmosphere of loving kindness such that no love-lost relationship will rent the air and thereby the home will not turn to a hell for either or both.11 To bring about the desired-harmony in society, after every effort towards reconciliation between spouses has proved futile, the religion then permits divorce as a way to end a disturbed marriage and also introduces certain reforms into its operations. Many reasons could serve as factors for bringing a once consummated marriage to an end. The chief among them is the desire not to live together as husband and wife again.12 As soon as this development is noticed within a family, the Holy Qur’an encourages the “people of neighbourhood” to do a number of things in preventing the severance of the cord of marriage.13 If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers....(Q.4:35).14
The above scriptural quotation allows both the husband and wife right to seek for marriage dissolution if there are cogent reasons to do so. Thus, in Islam divorce is not only a prerogative of the husband alone but in certain circumstance the wife is allowed to initiate it in all kindness.15 Islam allows repudiation of marriage yet it puts in place measures that are regarded as self-restricting, self-correcting and self- preventing that are all enveloped in the question of precluding the incidence of divorce just for the betterment of the spouses, children and the society at large that they are to be separated is better than forcing them to live together in sorrow and perdition. This is because a marital home that is devoid of love is not worthy of the name hence divorce comes in as a succor from marital wrangling and lack of peace.16 Therefore, Islam allows divorce when there is ample justification for it. However, the Holy Qur’an also establishes many mechanisms to prevent
ISLAM AND CIVILISATIONAL RENEWAL IMPLICATIONS OF CHILD CUSTODY IN ISLAMIC FAMILY LAW: A CASE STUDY OF 365 CUSTOMARY COURTS IN OYO STATE, NIGERIA indiscriminate occurrence of divorce. One example is the institution of ‘iddah (waiting period after divorce or separation) mentioned in Q.2:228 and Q.65:4. The most prominent among the aims and objectives of ‘iddah is to effect reconciliation among the disputing parties17 even with the pronouncement of third divorce; the thrice divorced woman will have to stay and live in the same husband’s house for a period of three months as evidenced in Qur’an 65:1-2. The intent of the holy Qur’an, among other things, is to bring about a possibility of amicable reconciliation between the couple who are already separated but living together18 in the midst of every chance to re-establish marital life. Even if the two do not reconcile after the expiration of ‘iddah, both can still remarry each other according to Q.2:230 just to show how Islam enjoins marriage to be permanent in all love, peace, harmony and tranquillity.
Child Custody under Customary Courts in Oyo State, Nigeria
Deciding cases of contentious child custody may not follow the same patterns in different places and climes since it is one of the social interactions in Islam, hence social norms of people take precedence. Over the years, different changes and developments have appeared in adjudicating contested cases of child custody in many customary courts in Oyo State, Nigeria.19 Deciding disputed cases of child custody in these localities do not make recourse to the principles and directives put in place by the shariah to safeguard uncalled for circumstances. Instead, the courts hold onto the statutory laws, customs and traditions of people and therefore this led to serious debacles due to different and conflicting rulings through attribution of absolute right to custody of the children to the father in accordance with common law.20 Moreover, in some of the customary courts, mothers are always awarded custody of female children while that of male children goes to the father.21 In others, the father has absolute right to custody of the children of the marriage and, upon his death, the right automatically becomes that of the male head of the matrilineal family.22 Four towns in Oyo state have been considered for this study, namely, Ibadan, the state capital, Oyo, Ogbomoso and Saki, which are the state’s zonal headquarters with high concentration of Muslims and, thus, may be deemed as fairly representative of other towns in the state. It has to be noted that investigations conducted at the various customary courts in the selected towns reveal similarities in the patterns of decisions taken on the decided cases that were examined.
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Firstly, it was observed that the right to child custody is awarded either to the mother or father and not to any third party regardless of his/her closeness to the couple in dispute. Secondly, it was observed that the main factors in awarding the right to custody was the age and sex of the children, and whether special pleas are made by either of the parties in dispute. Customarily, the custody of children six years and above in age is awarded to the father while children who are less than six years in age are given to their mothers. In the event of verifiable and confirmed complaints by a wife against the husband, custody of children is awarded to her if the husband is found to be a regular absentee from home due to work or being highly negligent of children. However, child custody is awarded to a husband in cases where he complained and the wife was found to be negligent of her home (including children) or has even deserted the home to join another man before the divorce case is initiated and thus is guilty of child abandonment.
Period of Survey Beneficiary 2013 2014 2015 2016 2017 Total Children granted fathers’ custody 52 73 38 49 27 239 (based on child age) Children granted mothers’ custody 36 45 39 28 49 197 (based on child age) Children granted to fathers (based on 7 4 9 5 4 29 pleas) Children granted to mothers (based 2 1 5 2 3 13 on pleas) Older children granted to fathers 6 3 5 4 7 25 (based on sameness of sex) Older children granted to mothers 5 2 1 7 2 17 (based on sameness of sex) Grand Total 108 128 97 95 92 520 Below is a table showing the number of children involved in divorce cases between 2013 – 2017 Source: Result of field work conducted between January 2017 and July 2017
Within the last five years (2013 – 2017) two hundred cases of disputed child custody involving five hundred and twenty children were sampled. The verdicts of the courts were as shown in the table above.
ISLAM AND CIVILISATIONAL RENEWAL IMPLICATIONS OF CHILD CUSTODY IN ISLAMIC FAMILY LAW: A CASE STUDY OF 367 CUSTOMARY COURTS IN OYO STATE, NIGERIA
239 children gained the fathers’ custody because the children were six years of age. 197 children were assigned to their mothers since they were less than six years of age. Another 25 older children were given to their fathers basically because they were males. 17 older children were also given to their mothers because they were female. 29 children were granted to their fathers as a result of strong pleas (in relation to the reports and complaints of waywardness, promiscuity and that the women concerned were already dating other men). The remaining 13 children went in favour of the mothers on the strength of the pleas made by their mothers, and because the men in question were irresponsible, drunkards and adulterers with no wives or female relatives who could adequately take care of the children.
Implications of Islamic Marital Jurisprudence on Child Custody Cases in Oyo State Customary Courts
Islam as a religion and a complete way of life has provision for every aspect of man’s life and, if he follows it, his earthly sojourn will not be blemished but peaceful and devoid of all means that are capable of precluding his blissful life in the hereafter. Going by the various findings from different cases of disputed child custody that were decided upon in the state as shown earlier, one would notice that human nature has affected sense of judgment and, therefore, the aftermath of the verdicts in most cases presented grave consequences. Islamic marital regulations are divine codes that are free from real and imagined weaknesses and indeed have no ‘sacred interest’ to protect whatsoever. Thus, the marital life of Muslims must be governed according to these faultless provisions. Nearly all the sampled cases decided in the customary courts in Oyo state did not follow the spirit of the shariah to the letter and, therefore, led to chaotic situations. Take for instance, the 239 children granted to the fathers simply because the children were six years of age, contrary to Islamic prescriptions which entrust their care to the mothers. Hammudah opines that the care of young children remains with the divorced mother except when she becomes unfit.23 This view is also expressed by Al-Hakim when he quotes the Prophet: A mother has every right to look after her children. The son of Abdullah has established this principle in a response which tradition has handed down to us. A woman had just been divorced by her husband, by whom she had a son. She took the child in her arms and lodged a complaint with the Prophet: “Prophet of God”, she said, visibly affected, “this child is my son, my womb is the vessel that contained him, my breasts
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are the vessels whence he fed, my garment forms the cover in which I hold him wrapped up. And his father has divorced me, and wants to take away my child; he wants to separate me from my son.” “To thee,” said the Prophet, “belongs the right to keep that child, until thou marries again, and hast consummated the marriage.”24
However, it is the father’s responsibility to look after the moral education of his children, correct them, and send them to school or to a master or mistress who may instruct them. He must also see to their circumcision. And while the mother practically nurses and cares for the children, the father should also bear the full cost of the said cares and compensate the mother for the services rendered.25 Hammudah contends further that while this may be a source of tension and litigation, it is also an avenue through which reconciliation can be effected.26 According to Doi and ‘Awdatu, Muslim jurists maintain that the custody and guardianship of the child rests with the mother until seven years of age (for male) or maturity (for female).27 In case the mother remarries or becomes disqualified, Wahbah Zuhayli argues that according to the shariah the duty becomes necessary upon the children’s relatives in the following order:28 i. Mother’s mother ii. Father’s mother iii. Mother’s grand-mother iv. Father’s grand-mother v. Full sister vi. Uterine sister vii. Daughter of full sister viii. Daughter of uterine sister ix. Full maternal aunt x. Uterine maternal aunt xi. Full paternal aunt In the cases surveyed above, no proofs are adduced that the mothers were unfit when custody was granted to the fathers. Also, Islamic law maintains that if a mother becomes unfit, custodial right does not devolve on the father but on the mother’s mother, father’s mother, in that order. It is only in the absence of female relatives that the right becomes that of the father. Doi further notes that in the absence of female relations the custody of the children will devolve on the male relations in the following order of priority in tandem with Islamic law:29
ISLAM AND CIVILISATIONAL RENEWAL IMPLICATIONS OF CHILD CUSTODY IN ISLAMIC FAMILY LAW: A CASE STUDY OF 369 CUSTOMARY COURTS IN OYO STATE, NIGERIA
i. Father ii. Nearest paternal grand-father iii. Full brother iv. Consanguine brother or any other paternal relative within the prohibited degree.
Still, in the absence of legal guardians, the Qadi or the Islamic court will appoint a guardian to protect the minor’s property. The importance of early nurturing and physical custody of a child by the mother is emphasised and protected in many Islamic countries. Preserving the bond between mothers and their young children is so important that it may result in the children accompanying their mother to prison.30 In Saudi Arabia, for instance, it has been observed that nearly half the population of the Central Riyadh Woman’s Prison in 1983 consisted of children under the age of seven. Another American mother, who was also imprisoned in the Kingdom during a divorce dispute with her Saudi husband in the early 1990s, also reported the number of young children who accompanied their mothers into prison. One American woman told of a Saudi woman who had been imprisoned because her husband’s family accused her of infidelity when she became pregnant several months after her husband’s death. The shariah court did not separate a breast-feeding infant from its mother. It was after two years that the court found the mother unfit on religious grounds and the child was taken from her.31 As regards the 197 children released to the mothers since the children were less than six years of age, it is apt to state that the decision of the courts appeared to a large extent to be in consonance with the spirit and letter of shariah, but the intent may not be the same. However, other conditions like new marriage of the mothers to another men and change of religion on the part of the mothers can debar them from having right to custody of young children. Wahbah Zuhayli asserts further that regarding physical custody, many juristic schools hold that a new marriage of a mother must not be between her and a stranger (a non-relative) or to a relative who is not a non-mahram to the child. Only the Shafi‘i school wants sameness of religion between the mother and father as a requirement before she could have physical custody of a Muslim child. Also, the Hanafi school accepts a change of religion as a factor to debar a Muslim mother’s right to child custody. Jurists of the other Sunni schools hold that the mother must ensure that the child is reared in an Islamic way.32 However, the Sunni schools agree that a mother loses her right to custody if there is evidence to prove that she can adversely affect the religious understanding of the child. Among others this may include instances when she goes to church with the child; indoctrinates the child with the belief system of a different faith or
ICR 9.3 Produced and distributed by IAIS Malaysia 370 AMINULLAHI ADETORO YUSUFF practices the ideals and rituals of a different religion before the child. Some other conditions must also be met for a mother to have custody e.g. the mother must not raise the child in an environment hated by him/her.33 These all important factors are not all that matters in awarding custodian right to mothers in customary courts in Oyo State since the benchmark of less than six years of age of the children was already invoked. Moreover, 25 older children went in favour of the fathers because the children were male and 17 older children were given to the mothers because the children were female. The courts adopted this decision as a result of a common belief that male children are best nurtured by their fathers with an injection of masculine traits into their lives, while for the proper inculcation of feminine characteristics in a female child, the mother should rear such a child. These verdicts ran counter to the Islamic marital jurisprudence because the sex of both the child and either of the parents do not count in awarding the right to custody but, rather, the ability to take proper care of the child by either of the parents. In taking charge of the education and general well-being of the children of a divorced couple certain conditions which relate to the guardians must be fulfilled; otherwise the right of custody of such a guardian ceases. The conditions as laid down by the shariah in Islam according to Wahbah Zuhayli are the following:34 i. He/she must be sane, soft and not wicked. ii. Must possess the ability of looking after the child in such a way that he/she is of middle age and not very old. This provision may debar the mother’s grandmother and father’s grandmother from having the custody of a child. iii. His/her accommodation and environment must be free from exposing the child to bad characters and loss of property. iv. He/she must be of impeccable character and free from contagious diseases. v. He/she must be truthful with regards to the child’s property. He also observes that the guardian should be of the same faith as the child to prevent the possibility of conversion to other faith. A male guardian must of necessity possess a family capable of looking after the child. A newly married woman forfeits her chance to custody as a result of her new role in the house of her husband which may not allow her to take proper care of the child. When a woman forfeits her right to custody of her child by reason of her new marriage to another man, the right does not devolve on her again after dissolution of that marriage. At the tender age of upbringing, Islam favours mothers to have custodial right unless she becomes disqualified. Therefore, awarding custodial
ISLAM AND CIVILISATIONAL RENEWAL IMPLICATIONS OF CHILD CUSTODY IN ISLAMIC FAMILY LAW: A CASE STUDY OF 371 CUSTOMARY COURTS IN OYO STATE, NIGERIA right on the basis of the sameness of the sex of both the child and either of the parents does not hold, because the child may end up not being properly maintained. The other 29 children and the remaining 13 were decided based on the strength of the pleas emanating from the fathers and mothers respectively. Here, the allegations from both sides of the parents against each other influenced the decisions of the courts. The instruments used in deciding the above 42 cases to a very significant extent agrees with the spirit of the shariah. According to Wahbah Zuhayli, the presence of claims like various accusations contained in this case may warrant a parent to lose his/her custodian right if upon serious investigation it is established that the alleged parent is guilty. It can be deduced from the foregoing exposition that the shariah is all about according human beings respect and ensuring peaceful co-existence in all conditions. Yet out of 520 children involved in 200 cases of disputed child custody sampled for this study, only 42 of them (8% of the sampled population) appear to have been awarded to the most qualified parents. Arising from the above, it can be conveniently stated that the particular parent, together with his/her family members, who loses rights of custody upon the strength of the allegations levelled against him/her would reasonably accept the decision of the court and see no reason for fomenting trouble This is unlike when the decision of the court is based on the sameness of the sex of the child and either of the parents or when the age of a child is six or less. This therefore suggests that following Islamic jurisprudential provisions in awarding right to custody of children will prevent rancorous situations and allow all concerned to live together with desired peace, love and kindness, whatever be the circumstance.
Custody of a Child after Divorce
In the event of divorce, children often bear the most painful consequences.35 Islamic law takes their needs into account and makes sure that they are cared for. The financial support of children - both during marriage and after divorce - rests solely with the father.36 This is the children’s right upon their fathers, and courts have the power to enforce child support payments, if necessary. The amount is open to negotiation and should be in proportion with the husband's financial means.37 Qur’an 2:233 advises the husband and wife to consult each other in a fair manner regarding their children’s future after divorce. Also, this verse specifically holds that infants who are still at nursing stage may continue to
ICR 9.3 Produced and distributed by IAIS Malaysia 372 AMINULLAHI ADETORO YUSUFF breastfeed until both parents agree on the period of weaning through ‘mutual consent and counsel’. Islamic law stipulates that physical custody of the children must go to a Muslim who is in good physical and mental health, and is in the best position to meet the children’s needs. Different jurists have established various opinions on how this might best be done. Some have ruled that custody is awarded to the mother if the child is under a certain age, and to the father if the children is older. Others allow older children to express a preference. Generally, it is recognised that young children and girls are best cared for by their mother.38 To provide needed female care for the infant, Wahbah Zuhayli observes that all the juristic schools ascribe first preference to a mother’s claim to physical custody of her young child so long as she meets the prescribed conditions for a female custodian. The father is required by law to provide for the mother’s finances while she is taking custody of the divorced father’s child. However, the duration of female custody lapses once the child attains a certain age of custodial transfer.39 The Hanbali and Shafi‘i schools do not differentiate between girls and boys concerning the period of female custody. The Hanbalis hold that the female custodian should be given custody from birth till the child attains the age of seven, at which point he or she may choose between parents. The Shafi‘is allow female custody up till the child attains the age of puberty and can choose either parent as custodian. The Malikis express that female custody of a boy extends till he attains age of discretion and for a girl till she marries. With the Hanafi school, female custody of a boy ends when the child can feed, clothe, and cleanse himself. The majority of Hanafi jurists put the age of discretion at seven years while others put it at nine. Hanafi jurists disagree on the duration of a mother’s custody of her female child. The majority believe that the mother’s custody ceases when the girl attains maturity, which is nine or eleven years of age. However, others permit the mother’s custody to remain until the girl attains the age of marriage.40 The school does not therefore attach a particular age of custodial transfer. Since there are differences of opinion among Islamic scholars on child custody, one might find variations in local laws. In all cases, however, the main concern is that children are cared for by a fit parent who meets their emotional and physical needs.41 Therefore, while deciding the cases of contested child custody in the customary courts of Oyo State, Nigeria, the welfare, wellness, upbringing, education, protection and interest of the children must be considered while every ulterior motive must be done away with.
ISLAM AND CIVILISATIONAL RENEWAL IMPLICATIONS OF CHILD CUSTODY IN ISLAMIC FAMILY LAW: A CASE STUDY OF 373 CUSTOMARY COURTS IN OYO STATE, NIGERIA
Adoption in Islam
Islam does not sanction adoption of a child as a practice for mankind due to its harmful effects on the society. The shariah recognises the paternity of a child through legal marriage contract and therefore rejects legal adoption of a child outside biological fatherhood. According to Islamic law, the actual status and rights enjoyed by a biological child will never be conferred on an adopted child; he is and continues to remain the real child of his original biological father42 “... nor has He made your adopted sons your sons...” Q.33:4. The Holy Qur’an in chapter 33:4-5 stipulates that adopting a child does not in any way affect the status quo though, because of deep love, one may want one’s adopted child to become one’s real son or daughter. This is just a wish which cannot be realistic; an adopted child remains a child through adoption and can never become one’s real child. Moreover, in order not to cause confusion as regards fatherhood of the adopted child, the Qur’an enjoins Muslims to call them by the name of their real father “...call them by after their fathers...” and that is better and most just inasmuch as adoption can never bring about a natural parent – child relationship and it is incapable of transferring genetic features from an adopted father to his adopted sons or daughters. Legal adoption is banned in Islam. According to Islamweb.net, the following are some of the reasons for it: • It falsifies the natural setting of society and reality. • It blocks the legitimacy and paternity of a child. • It deprives the deserving heirs of their lawful and rightful shares of the property left behind by their dead father. • It leads to deception because it involves taking a stranger into a family where he is not a bona fide member and be in privacy with women who are his non-marriageable relatives and, therefore, in a way affects marriage relationships in Islam.43
However, it is allowed in Islam to look after an orphan, clothe, feed, educate him and provide for all his basic daily needs so that he will not feel alienated from society or weighed down by the death of his biological father. This is regarded as a meritorious act in the word of the glorious Qur’an, chapter 2:220, which advocates taking care of the affairs of orphans in the best way and without ascribing to them the status and rights of one’s biological children, for the Qur’an refers to them as brethren, not real children. With this, Islam has basically defined the line of family lineage without an alien element entering into it.44
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Conclusions and Recommendations
An attempt has been made in this paper to explore some salient issues on the implications of al-hadanah in Islamic marital jurisprudence. Therefore, the paper concludes that despite noticeable differences among Sunni schools concerning child custody, the law is capable of bringing about reconciliation between disputing parties and thus it is a measure in disguise to safeguard indiscriminate severance of the cord of marriage in Islam. This is because rendering assistance, especially financial, as part of the law to a divorced wife on account of taking care of the child of the divorced husband unavoidably brings the two together and may bestow again on them the natural feelings of love, affection and sympathy that were once lost between them. This does not mean that it may not lead to practices contrary to Islam if not done with the utmost fear of Allah. The basic consideration for deciding child custody cases in customary courts in Oyo State Nigeria must be the well-being, education, training, protection, overall welfare and general interest of the child and that adoption in its various forms and types is forbidden, for it stands as antithetical to what Islam represents.
Finally, the study makes the following recommendations: • Further studies should be carried out in other states of Nigeria to assess the implications of al-hadanah in Islamic marital jurisprudence to avoid heated crises within Muslim families and to educate the faithful as to why shariah should dictate every practice of their existence. • Physical custody of Muslim children after separation must be granted to a Muslim who is sane and healthy and is in the best position to provide for the children’s religious and social needs. • The Supreme Council for Islamic Affairs (SCIA) as the apex Muslim religious body in Nigeria should persuade the nation’s judiciary through the federal government to enact and enforce law that will allow everybody in the Nigerian courts to be treated in accordance with his/her religious personal and family laws inasmuch as freedom of religion is entrenched in the constitution of the Federal Republic of Nigeria. • The custody of a child is her/her sole right and not of that either of the parents. Thus, while deciding disputed cases of child custody in court, the wishes, security and betterment of the child must matter most. • Muslim parents should not allow their wards to be adopted children by people of other faiths irrespective of their relationship, for fear of a possible conversion.
ISLAM AND CIVILISATIONAL RENEWAL IMPLICATIONS OF CHILD CUSTODY IN ISLAMIC FAMILY LAW: A CASE STUDY OF 375 CUSTOMARY COURTS IN OYO STATE, NIGERIA
Notes
* Aminullahi A. Yusuff is a lecturer in the Department of Islamic Studies, Federal College of Education (special), Oyo, Oyo State, Nigeria. He holds M.A. in Islamic Studies. Email: [email protected].
1. Saalih A. Ghaanim, Marital Discord (al-Nushooz) (Riyadh: Al-Basheer Publications and Translations, 1993), 11. 2. Abdullah Y. Ali, The Holy Quran English Translation of the Meanings and Commentary (India: Sh. Muhammad Ashraf Publishers, 1934), 214. 3. Ghaanim, Marital Discord, 11 4. Ibid.,12. 5. Abdur Rahman I. Doi, Shari‘ah The Islamic Law (London: Ta Ha Publisher, 1984), 168. 6. Abd alʿAṭi. Hammudah, The Family Structure in Islam (Maryland: American Trust Publications, 1977), 245-8. 7. Hammudah, The Family Structure, 246. 8. Ibid., 217. 9. Ibid., 218. 10. Maulana M. Ali, The Religion of Islam: A Comprehensive Discussion of the Sources, Principles and Practices of Islam (New Delhi: S.Chand & Company Ltd, n.d.), 671. 11. Abdur Rahman I. Doi, Shari‘ah The Islamic Law, 80. 12. Ali, The Religion of Islam, 273. 13. Ghaanim, Marital Discord, 55. 14. Yusuf Ali, The Holy Quran, 220. 15. Hammudah, The Family Structure, 243. 16. Ali, The Religion of Islam, 273. 17. Abdur Rahman I. Doi, Women in Shari’ah (Islamic Law) (London: Ta Ha Publisher, 1989), 95. 18. Hammudah, The Family Structure, 235. 19. Akintunde Esan’s Legal Illumination, Custody of a Child: What the Court will consider in Awarding Custody of Children in Nigeria, Available at: https:// akintundeesan.blogspot.om>cus.... (Accessed on: 22/3/2018). 20. Ask Nigeria, Child Custody in Nigeria, Available at: asknigeria.com.ng > legal system. (Accessed on: 22/3/2018). 21. Mz Agams, Child Custody in Nigeria. Available at: https://mzagams.wordpress. com > child-c…. (Accessed on: 22/3/2018). 22. Be Oniha, Dissolution of Marriage and Custody of Children under Customary Law in Nigeria. Available at: edojudiciary.gov.ng>uploads>201… (Accessed on: 22/3/2018). 23. Hammudah, The Family Structure, 246. 24. Al-Ḥakim, Al-Mustadraka ‘alaṣ Sahihayn (Bayrut: Dar-l kutubi l-‘ilmiyyah), 1990), vol. 22, Ḥadith no: 2830. 25. Abdur Rahman I. Doi, Shari‘ah The Islamic Law, 206.
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26. Hammudah, The Family Structure, 246. 27. Abdur Rahman I. Doi, Shari‘ah The Islamic Law, 214. ‘Awdatu –l – ‘Awayishah Ḥusayn, Al-Mawsu‘atu’ l - fiqḥiyyatu’l Muyassarah (Jordan: Al-Maktabatul Islamiyyah, 2005), vol. 5, 413-20. 28. Wahbatu Zuḥayliyy, Al-Fiqhul Islamiyyu wa’adillatuhu (Damascus: Darul Fikir, 2001), vol. 10, 44-7. 29. Abdur Rahman I. Doi, Shari‘ah The Islamic Law, 215. 30. Uhlman U. Kristine, Overview of Shari‘ah and Prevalent Customs in Islamic Societies - Divorce and Child Custody. Available at: www.expertlaw.com/ library/family_law. (Accessed on: 10/1/2015). 31. Ibid. 32. Zuḥayliyy, Al-Fiqhul Islamiyyu, 49-53. 33. Ibid., 44. 34. Ibid., 49-55. 35. Aisha B. Lemu, Islamic Studies for Senior Secondary School Book Two, 203. 36. Abdur Rahman I. Doi, Women in Shari’ah, 102. 37. Abdur Rahman I. Doi, Shari‘ah The Islamic Law, 206. 38. Kristine,Overview of Shari‘ah. 39. Zuḥayliyy, Al-Fiqhul Islamiyyu, 44 40. Kristine,Overview of Shari‘ah. 41. Ibid. 42. Adoption in Islam. Available at: www.islamweb.net/..../adoption-in-islam. (Accessed on: 25/3/2015). 43. Ibid. 44. Ibid.
ISLAM AND CIVILISATIONAL RENEWAL REVISITING TRADITIONAL, MODERN AND ISLAMIC VALUES WHEN ADDRESSING HAZE ISSUES Shahino Mah Abdullah* Muhammad Adha Shaleh**
Abstract: Almost every year, widespread forest fires from western Sumatra and southern Kalimantan in Indonesia have caused a series of transboundary hazes that have enshrouded parts of Southeast Asia. This disaster has jeopardised health, the economy, agriculture and biodiversity. It has also worsened climate conditions due to its large addition of global greenhouse gases (GHG) to the atmosphere. As a result, Indonesia has received great criticism from its neighbours. This disaster is mainly caused by the slash-and-burn methods used to clear land, claimed by many to be a local indigenous farming practice. However, instead of blaming the Indonesian authorities for their inefficient actions, other countries that benefit from Indonesia’s resources should take responsibility and assist in addressing the issue by finding the root of the problem. A thorough understanding of this matter is necessary and must be initiated by revisiting and exploring local community welfare, culture, and traditional wisdom in order to address and prevent transboundary haze issues. This paper discusses the causes and results of transboundary haze and highlights the importance of traditional wisdom and Islamic teachings for the preservation of the environment (hifz al-bi‘ah) and achieving sustainable development goals. It concludes with several policy recommendations for policymakers to consider as a means of preventing this issue from recurring in the future. Keywords: haze, climate change, traditional culture, environmental wisdom, ethical values, sustainable development.
Introduction
Most climate scientists have unanimously agreed that the main cause of current global warming is human activity - ‘anthropogenic climate change’.1 Globally, the emission of carbon dioxide (CO2) is the most significant factor in this process, with this gas having the largest concentration in the earth’s atmosphere compared to other greenhouse gases (GHG). This gas traps thermal infrared radiation, preventing it from escaping into outer space, and thereby becomes the main cause of global warming, leading to climate change. Despite the widely
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known causes of CO2 emissions, which stem from industry, transportation and energy production using carbon-based fuels,2 the sum of agricultural activities, food production, land-use and forestry also made a large contribution of up to 29 percent (i.e. above one-fourth) of the total global GHG emissions.3,4 In this regard, the world needs sustainable resources management and development practices to curb climate issues. The transition from fossil fuels to renewable energies has taken place in developed nations, vigorously reducing their carbon footprints.5 Among their progressive measures has been the increasing of facilities for renewable energy, including solar farms, wind turbines, hydroelectric plants and electric vehicles. However, the GHG emissions that have been released by agricultural activities, food production, land-use and forestry are beyond the control of a single country. To date, the most frequent anthropogenic transboundary haze in the world related to these issues has taken place in Southeast Asia, caused by land-use changes, open burning, peat combustion, wildfires, and other farming activities.6 A series of some of the most serious hazes7 ever recorded took place in 1983, 1997, 2005, 2006, 2009, 2010, 2013, 2015 and 2016, and originated from large- scale forest fires from western Sumatra and southern Kalimantan, Indonesia.8 These hazes brought adverse effects to both local communities and neighbouring countries concerning health, the economy, agriculture, and biodiversity.9 For instance, there were increases in respiratory mortality due to toxic airborne particles,10 jet crashes,11 ships collisions12 due to restricted visibility, reduction of crop growth rates due to limited solar radiation,13 and the extinction of endangered primates due to habitat loss14 in the aftermath of these hazes. Neighbouring countries like Malaysia15 and Singapore16 closed their schools in order to prevent exposing people to air pollution as well as to reduce carbon emissions from traffic. This paper aims to identify the root cause of the wildfires in Indonesia that have been responsible for these transboundary hazes around Southeast Asia and, at the same time, highlight several preventative measures to stop this issue recurring in the future. In this regard, we conclude with a set of policy recommendations taking into account the importance of local community welfare as well as the role of countries that benefit from Indonesian resources.
Role of Ethical Values in Addressing the Anthropogenic Impact
Transboundary haze caused by forest fires in Indonesia has been an annual problem due to the widespread use of the easiest and cheapest method to clear land, slash- and-burn. This practice, reports claim, is a traditional farming method practised by the indigenous people of Indonesia. It is also used, however, by corporations
ISLAM AND CIVILISATIONAL RENEWAL REVISITING TRADITIONAL, MODERN AND ISLAMIC VALUES WHEN ADDRESSING 379 HAZE ISSUES for pulpwood and palm oil plantations. According to Herry Purnomo, a professor at Indonesia’s Bogor Agricultural University and a scientist at the Center for International Forestry Research (CIFOR), there are two offenders: poor small- scale farmers attempting to expand their farmland, and scoundrel operators intent on clearing forests illegally for land acquisition.17 He also highlighted influential patronage networks involving local Indonesian elites and individuals who are responsible for the burning which hinder the government’s capacity to allocate economic resources efficiently. For a long-term solution, fire prevention must be the priority rather than firefighting. There are several possible preventive measures for urgent implementation by the authorities. For instance, the elimination of market demand for illegal land for plantations could mitigate deforestation. The authorities must pledge mandatory requirements for companies to ensure fire prevention, while also enforcing strict fines and punishments for the lawbreakers. There is also a necessity for an anti-corruption body that can work against patronage networks to ensure efficient government bureaucracy. Last but not least, the authorities and stakeholders must develop and provide clear plans for landholders to manage their land sustainably. These measures will require crucial ethical values from every individual, regardless of their position in society. In this respect, the standard- setting action taking place in the field of bioethics is pivotal and indispensable. Most importantly, all people, including leaders and stakeholders, must follow and adopt the ethical benchmark outlined in the ‘Universal Declaration on Bioethics and Human Rights’ (UDBHR).18 This declaration, which was drafted by UNESCO in consultation with the Intergovernmental Bioethics Committee, can be used as a guideline for policymakers, while also enhancing laws and regulations in tropical countries. Some of the main provisions of the UDBHR include cultural diversity and pluralism (Article 12), international cooperation (Article 13) and the promotion of health and social development for all people (Article 14). The declaration also highlights the importance of human beings in the protection of the environment (Article 17) and the establishment of an ethics committee to assess scientific developments and provide advice on ethical and legal problems in clinical settings (Article 19). In the context of the haze issue in Southeast Asia, these provisions could be the key points for policymakers to consider, to revisit and promote in terms of local pluralism, traditional wisdom and environmental ethics. In theory, local traditional wisdom encompasses indigenous, religious and cultural values in which core teachings are in line with sustainability. In the past, local Malay folk advice and abstentions, known as petua and pantang larang respectively, figuratively disseminated guidance, recommendations and prohibitions emphasising the purpose and reason of human actions.19 The
ICR 9.3 Produced and distributed by IAIS Malaysia 380 SHAHINO MAH ABDULLAH AND MUHAMMAD ADHA SHALEH messages this advice brought were not limited to the betterment of individuals and societal life, but also included the right manner of interaction between human and the environment.20
Traditional and Modern approaches to Preserving the Environment
It is noteworthy that traditional practices do not promote greed, which will eventually compromise its own goal. The new generation should learn this precious value wisely and appreciate the lesson it imparts. In the case of haze in Southeast Asia, the ‘slash-and-burn’ method adopted by irresponsible individuals, farmers and companies in clearing the land for various profitable purposes is contrary to the objective of the original traditional practice. The traditional practice did not aim at maximising profitable outcomes, but was intended to fulfil the needs of the local community for food through traditional sustainable farming and homes, amenities and boats using the felled wood, as well as widening the source of side income for the local people by making handicrafts from the leftover resources. Interestingly, even traditional food wrapping materials were completely based on leaves collected from shrubs and planted trees, such as dillenia suffruticosa, tectona grandis, hibiscus tiliaceus, banana, pandan, and coconut leaves, all of which are free from toxic compounds and allow the return of soil nutrients upon decomposition.21 Today’s farming activities are more than just for subsistence. Large-scale farming and plantation sectors keep expanding and involve deforestation. Indonesia and Malaysia, for example, are the largest palm oil producers and exporters in the world. As both countries practice a monoculture system for their plantations, they will compromise the earth nutrients and soil strength. A monoculture technique will potentially cause a drastic loss of nutrients from the earth and weaken the soil’s ability to support healthy plant growth in the future. However, the Malaysian government has started several initiatives to ensure a sustainable palm oil plantation system. By 1 January 2020, the entire production and supply chain in Malaysia must be certified under the Malaysian Sustainable Palm Oil (MSPO) Certification Scheme. This is aimed at achieving a balance between economic development, social development and the protection of the environment through the implementation of the MSPO standards (MS 2530 series of standards). The main principles of MSPO certification emphasise the importance of: (1) management commitment and responsibility, (2) transparency, (3) compliance to legal requirements, (4) social responsibility, health, safety and employment conditions, (5) environment, natural resources, biodiversity and ecosystem,
ISLAM AND CIVILISATIONAL RENEWAL REVISITING TRADITIONAL, MODERN AND ISLAMIC VALUES WHEN ADDRESSING 381 HAZE ISSUES
(6) best practices, and (7) development of new planting. The second principle, transparency, will certainly benefit producers, traders, consumers, the public and regulatory bodies. Most importantly, the third principle promotes energy efficiency, use of renewable energy, reduction of pollution and emission, natural water resources, protection of endangered species, high biodiversity, and zero burning practices. The Malaysian sustainable palm oil plantation strategy could actually be a model for those countries that plan to carry on with the palm oil industry in the long term. Systematic enforcement by regulators to curb wildfires, including new innovative ideas that promote environmental preservation (hifz al- bi‘ah), is necessary in order to face future challenges in actualising a sustainable practice in the palm oil industry overall.
Preservation of the Environment from an Islamic Perspective
The local communities in the Malay Archipelago mostly adhere to Islam, which has become their way of life, shaping their traditional culture and finally marking their identity. Islamic teachings have spread throughout the Malay World and are well accepted by the people. Islamic teachings address the human-earth relationship through a set of principles, namely tawhid (Divine Oneness), khalifah (vicegerency of man), and amanah (trusteeship).22 Firstly, the principle of tawhid is manifested in the unity of God’s creation, which includes men, women and the whole universe that exists in balance. It means that human beings are part of a natural equilibrium that must not be disturbed. Secondly, the principle of khalifah implies that humanity holds a position of power, trust and responsibility to build the earth. It also means that humanity has a responsibility to safeguard the rights of fellow humans and other inhabitants of the earth. Thirdly, the principle of amanah, as an integral part of the faith of a Muslim, highlights the entrusted role of humanity as custodian on the earth. While the most important of all amanat is justice (ʿadl), the doing of good (ihsan) towards fellow humans and the natural environment is also important. Further, these principles lead to the concept of iʿmar al-ard (building of the earth) that encourages human progress in developing the earth without compromising environmental well-being. For this reason, the practical approach to leveraging natural resources must be set within a sustainable context. In terms of the haze issue in Southeast Asia, the slash-and-burn technique should be banned to address the spread of wildfires. An environmentally friendly zero burning technique must adopted for land clearing instead, as such a technique has been proven to save a lot of valuable forest resources in Malaysia. Zero burning involves the extraction of saleable and usable timber to be utilised as temporary bridges, to strengthen road
ICR 9.3 Produced and distributed by IAIS Malaysia 382 SHAHINO MAH ABDULLAH AND MUHAMMAD ADHA SHALEH foundations, construct drains, create natural streams that avoid rapid drying, to aid soil compaction to avoid shrinkage, to construct proper road systems to ensure sufficient access, to construct well-planned terraces strengthened by debris, and to establishment a legum cover crop to enhance the decomposition of that debris.23 This method certainly ensures all assets in the forest will be fully utilised, well-managed and used to promote efficient consumption of resources, which is in line with Islamic teachings to avoid wastage and pollution (fasad). The role of human beings in managing natural resources must be made clear. They are not created to be consumers but vicegerents of the earth (khalifah). As stated, in Islam a vicegerent encompasses important aspects of trusteeship (amanah), such as justice (‘adl) and the doing of good (ihsan) towards fellow humans and the natural environment, in order to keep the ecosystem in balance (mizan). In this regard, it is of considerable importance to include a holistic framework that integrates religious aspects into a conceptual model of the built environment by taking a maqasid al-shari‘ah (higher objectives of Islamic law) approach as a guide.24 The maqasid highlight the importance of preserving five essential goals: faith (din), life (nafs), progeny (nasl), intellect (‘aql), and property (mal). The advancement in maqasidi discourse has included the significance of environmental preservation hifz( al-bi‘ah). Further, this particular objective is in line with the Qur‘anic principle of iʿmar al-ard (building the earth) that encourages human progress in developing the earth without compromising environmental well-being.25
Issuance of Fatwa to Protect the Environment and Ecosystem
According to Mohammad Hashim Kamali, Muslim jurists have stressed the importance of reality-based Islamic jurisprudence (fiqh al-waqi’) that is suitable to our time and place. Therefore, shariah-oriented policy (siyasah shar‘iyyah) must be strengthen as currently it is mainly concerned with politics and the management of community affairs. Siyasah is characteristically concerned with real-life issues and reads the specific rules offiqh in light of the overall objectives and purposes of shariah. Kamali has added that fiqh al-waqi’ must pay attention to rapid advances in scientific progress, especially in matters of concern tofatwa that require specialised knowledge. Issuance of any fatwa of concern to issues of a specialised nature must have adequate input from an expert, with the mufti being well-informed about the required expert knowledge.26 Therefore, Islamic leaders and clerics are recommended to work together with environmental organisations, whether from governmental or non-governmental organisations, to protect the ecosystem. The key indicator to the issuance of correct fatwa is
ISLAM AND CIVILISATIONAL RENEWAL REVISITING TRADITIONAL, MODERN AND ISLAMIC VALUES WHEN ADDRESSING 383 HAZE ISSUES that it has a significant impact on existing law, since most people, especially in majority Muslim communities in Southeast Asia, are more impressed with the calls of religious messages. Interestingly, this approach has prevailed in recent years with the issuance of the first fatwa by the Indonesian Council of Ulama aimed at preserving the ecosystem by declaring it forbidden (haram) to hunt or illegally trade in endangered species. As the country with the largest Muslim population in the world, Indonesia’s top Muslim clerical body has issued this fatwa that will apply to both individuals and government institutions. According to Hayu Prabowo, chair of the Council of Ulama’s environment and natural resources body, “This fatwa is issued to give an explanation, as well as guidance, to all Muslims in Indonesia on the shariah law perspective on issues related to animal conservation.”27 The fatwa was originally inspired by a field trip to Sumatra for Muslim leaders in September 2013. The visit was co-organised by Indonesia’s Universitas Nasional (UNAS), WWF-Indonesia, and the Alliance of Religions and Conservation from the UK, with additional consultation offered by Indonesia’s Ministry of Forestry and HarimauKita (the Indonesian Tiger Conservation Forum). The fatwa that was officially issued in 2014 was not limited to the protection of animals, but reached further, as far as the oil palm business that endangers wildlife when companies clear the forest by means of setting a devastating wildfire. In this case, even though the main aim of the fatwa is to protect endangered wildlife, it can simultaneously be a useful instrument to restrict such wrongdoing and minimise the haze issue in Indonesia. Malaysia became the second country to implement a similar approach in the following year, 2015, with the issuance of a fatwa against wildlife poaching. This fatwa, which is likely the first of its kind issued by a Malaysian state, Terengganu, recognises that illegal hunting is forbidden (haram).28 It calls upon Muslims to protect Allah’s creation and forbids them from hunting any species to extinction. The state Mufti Department worked together with experts from the state’s Department of Wildlife and National Parks (PERHILITAN), Universiti Malaysia Terengganu (UMT), and James Cook University, Australia.29 Terengganu mufti Datuk Dr Zulkifly Muda said, “I urge Muslims to stop all forms of hunting in general to prevent species extinction and to safeguard our environment,” at a fatwa and falak seminar organised by Terengganu’s Mufti Department, which was attended by over 500 local people. The issuance of this fatwa will play a pivotal role in Terengganu since many of those who are involved in poaching belong to communities that are predominantly made up of practicing Muslims and who are not aware that the Malayan tiger and sambar deer are facing extinction.30 Malayan tigers, for example, are hunted for their medicinal properties and in retaliation for killing livestock. Even though this fatwa will not instantly stop poaching, it is
ICR 9.3 Produced and distributed by IAIS Malaysia 384 SHAHINO MAH ABDULLAH AND MUHAMMAD ADHA SHALEH expected to create peer pressure among poachers to stop killing those animals. Experts hope that other Malaysian states will follow Terengganu’s example and issue similar fatwas against poaching since it is a national problem. At the moment, this approach will play only a relatively small role in eradicating the haze problem since the wildfires in Terengganu are not due to the wrongdoing of oil palm companies or irresponsible individuals but to the El Nino phenomena.31 Not long after the issuance of Terengganu’s fatwa on illegal hunting, the Perlis Fatwa Committee came up with a fatwa on environmental pollution in early 2016. Perlis, Malaysia’s smallest state, located in the north, is proactive in addressing the religious and environmental issues that have stirred the country. State Mufti, Mohd Asri Zainul Abidin, said, “The act of polluting the environment which directly affects nature’s ecosystems causing harm to living things is in conflict with the teachings of Islam.” He added, “Islam is a religion that calls upon its followers to preserve the wellbeing of human life and the universe, and not perform harmful acts.” The fatwa issued by the Committee seems to be generalised as it mentions that “any act that pollutes the environment and affects direct physical harm to humans, animals and plants is forbidden, except if there is a greater interest (maslahah) or in order to avoid a clear harm (mafsadah).” Asri specifically pointed out that the bauxite mining case in Kuantan threatens to pollute rivers and burn the forests.32 He reminds the public, especially Muslims, that Islam is a religion that upholds the well-being of human life and nature and that the purpose of shariah (maqasid al-shari’ah) is to uphold the best interests (mafsadah) of humanity. With the issuance of this fatwa, including brief explanation by the Muftis, Malaysia has, through its state religious bodies, made clear that the violation of the ecosystem is totally prohibited and that the protection of the environment (hifz al-bi‘ah) is a priority in order to preserve the well-being of the people and their surroundings. The issuance of fatwas that supplement existing law is not the only available approach and measure to curb environmental issues. By law, fatwas have no legal force, but are rather aimed at encouraging devout Muslims to take a certain course of action. Therefore, practical enforcement to prevent and curb widespread environmental pollution should be an obligatory measure in the context of stopping wildfires that cause haze. This can be seen from a recentfatwa from Indonesia’s Ulama Council. Issued in late 2016, it forbade the intentional starting of fires in the forest or on plantation land on the grounds that the practice goes against Islamic law.33 Dr Huzaemah Tahido Yanggo, who now leads the council, said, “The fatwa specifically addresses the intentional burning of forest and plantation land, we are not referring to accidental fires.”34 She added, “The Qur’an states that we are not allowed to harm the environment, and forest burning causes damage not only to the environment but also to people’s health.” Siti
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Nurbaya Bakar, Indonesia’s Environment and Forestry Minister, welcomed the fatwa and said, “The most important follow-up is communicating it to the public,” stating that she hoped Islamic preachers would spread the message to local communities. During the most recent fire disaster in Indonesia, the nation’s National Disaster Management Agency (BNPB) deployed about 3,500 fire- fighters, while President Joko Widodo himself ordered the deployment of more than 10,000 police and soldiers and water-bombing planes to contain the fire.35 The Indonesian government also filed a number of lawsuits against plantation firms, with some of the companies being shut down permanently after having their licences revoked. More measures can be added to strengthen government policy and action designed to curb pollution due to illegal fire burning. Although the issuance of fatwas is clearly one, at the same time other preventative measures can be adopted, such as strengthening anti-corruption bodies, increasing forestland conservation, and eliminating patronage networks and market demand. The latter in particular will play a vital role in ensuring preventive action is really effective. Stricter enforcement actions, like filing lawsuits, revoking licences, and seizing land, are also necessary to prevent such disasters from reoccurring. A new policy that will favour small farmers and improve company activities must be developed so that the next plantation cycle will be more sustainable. At the same time, investors are encouraged to choose value-based investments (VBI) as these look at the environmental and social impact of a company’s actions, products and leaders. Moreover, VBIs make the protection of the environment a core aim of running a business. VBIs are currently being studied and developed further to strengthen their presence in the Islamic financial sector and put them in line with the objectives of Shariah.
Conclusions and Recommendations
The above examples include traditional ways of life and religious principles that contain a lot of wisdom worth sharing between the communities and peoples of the world. The promotion of traditional wisdom, which includes cultural and religious aspects, could encourage local people to manage their surrounding environment in the most sustainable way while also maintaining their original identity. It is of great importance for people to inculcate a sense of belonging, especially within the land in which they reside, as an aid to environmental preservation. Conscientious restoration works are also necessary to fill in subtle gaps in their environmental wisdom as this has gone through the long process of inheritance across many
ICR 9.3 Produced and distributed by IAIS Malaysia 386 SHAHINO MAH ABDULLAH AND MUHAMMAD ADHA SHALEH generations. Within this context, the role of the international ethics committee and local scholars must be as a crucial guide to help indigenous communities address ethical and legal issues. At the same time, it is necessary to consider the ‘sustainable community development’ approach when addressing environmental and societal related issues.36 Indeed, this is an important component to ensure sustainability in community survival and development, since those who are poor and hungry will often destroy their immediate environment to survive, as stated in the Brundtland Report.37 The modern sustainable touch through smart technological advancement would also be beneficial to rejuvenate traditional foundations as such an approach is more capable of attracting the interest of new generations. Reinvigorated traditional practices that originate with local cultures will always find room for acceptance, making it much easier to implement and achieve global sustainable development. Therefore, it is important to revisit, support, and promote local cultures when addressing climate issues such as the human-made transboundary haze of Southeast Asia. In achieving this target, it is highly recommended to synthesise the current ethical model of ‘sustainable community development’ with the traditional environmental wisdom of local people, as well as with Islamic teachings on the role of humanity in preserving the environment. Serious efforts to curb transboundary haze have already successfully reduced the number and size of wildfires as of 2017. However, we should not be complacent. Haze always occurs unexpectedly and might be repeated if current efforts are inconsistent, compromising the future environment. Therefore, several key solutions are needed to ensure all people unite in addressing this same issue. The following are several recommendations to mitigate environmental issues involving transboundary haze:
• A multidisciplinary collaboration, including representatives from the humanities, anthropology, sociology, and science, together with religious institutions, would offer a holistic approach towards sustainable resource management. • Empower local communities in natural resource management, with a focus on their traditional wisdom, as this is known to promote sustainable environmental protection. • Encourage religious experts to engage and communicate with local communities, sharing important messages regarding the environment and its ecosystem. • Provide clear plans for how landholders and small farmers can manage their land sustainably. Malaysia, for example, has developed sustainable
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palm oil plantation techniques to protect the environment. This plan should also include the protection of community welfare so that local people will find it easy and realistic to implement. • Develop a strict rule of law as a reminder to all people and companies. Punishment can be a lesson to prevent incidents from reoccurring. • Encourage people, companies, and nations to invest in environmentally friendly businesses. Additionally, empower value-based investment by inculcating it with Islamic values. The latter could be a medium to filter out investments that involve illegal or unethical activities.
Notes This article was written as the result of the authors’ participation in the Expert Group Consultation meeting for the UNESCO project, ‘Addressing Haze through Bioethics and Sustainability Science’. The meeting was held at the Institute of Islamic Understanding Malaysia (IKIM) on 18 September 2017.
* Shahino Mah Abdullah is a Research Fellow at the International Institute of Advanced Islamic Studies (IAIS) Malaysia. He can be contacted at shahino@ iais.org.my. * * Muhammad Adha Shaleh is a Research Fellow at the International Institute of Advanced Islamic Studies (IAIS) Malaysia. He can be contacted at adha@iais. org.my.
1. John Cook, Naomi Oreskes, Peter T Doran, et. al. “Consensus on Consensus: A Synthesis of Consensus Estimates on Human-caused Global Warming”, Environmental Research Letters, vol. 11 (2016), 048002. 2. Global Greenhouse Gas Emissions Data, U.S. Environmental Protection Agency. 3. Sylvia H. Vetter, “Greenhouse Gas Emissions From Agricultural Food Production to Supply Indian Diets: Implications For Climate Change Mitigation,” Agriculture, Ecosystems and Environment, 237 (2017), 234-41. 4. Sonja J. Vermeulen, “Climate Change and Food Systems,” Annual Review of Environment and Resources, vol. 37 (2012), 195-222. 5. Payam Nejat, Fatemeh Jomehzadeh, Mohammad Mahdi Taheri, et. al. A Global
Review of Energy Consumption, CO2 Emissions and Policy in the Residential Sector (With an Overview of the Top Ten Co2 Emitting Countries), Renewable And Sustainable Energy Reviews, vol. 43 (2015), 843-62. 6. Tim Forsyth, Public Concerns About Transboundary Haze: A Comparison of Indonesia, Singapore, and Malaysia, Global Environmental Change, vol. 25 (2014), 76-86. 7. Helena Varkkey, The Haze Problem in Southeast Asia: Palm Oil and Patronage, (Oxford: Routledge, 2015). 8. Sinan A. Abood, Janice Ser Huay Lee, Zuzana Burivalova, et. al., Relative
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Contributions of the Logging, Fiber, Oil Palm, and Mining Industries to Forest Loss in Indonesia, Conservation Letters, vol. 8, issue 1, (2015), 58–67. 9. Fay H. Johnston, Sarah B. Henderson, Yang Chen, et al, Estimated Global Mortality Attributable to Smoke from Landscape Fires, Environmental Health Perspectives, vol. 120, no. 5 (2012), 695-701. 10. Shannon N Koplitz, Loretta J Mickley, Miriam E Marlier, et. al., Public Health Impacts of the Severe Haze in Equatorial Asia in September–October 2015: Demonstration of A New Framework for Informing Fire Management Strategies to Reduce Downwind Smoke Exposure, Environmental Research Letters 11: 9 (2016), 094023 11. Robert Cribb, “More Smoke Than Fire: The 1997 Haze Crisis and Other Environmental Issues in Indonesia” in Ecological Change in Southeast Asia, (Centre for Southeast Asian, Åbo Akademi University, 1998), 1-13. 12. C. Y. JIM, The Forest Fires in Indonesia 1997-1998: Possible Causes and Pervasive Consequences, Geography, vol. 84, no. 3 (1999), 251-60. 13. Tang Yanhong, Kachi Naoki, Furukawa Akio, and Muhamad Awang, Light Reduction by Regional Haze and Its Effect on Simulated Leaf Photosynthesis in A Tropical Forest of Malaysia, Forest Ecology and Management, vol. 89, no. 1–3, (1996), 205-11. 14. Catherine M. Yule, Loss of Biodiversity and Ecosystem Functioning in Indo- Malayan Peat Swamp Forests, Biodiversity and Conservation, vol. 19, no. 2, (2010), 393–409. 15. Rafia Afroz, Mohd Nasir Hassan, and Noor Akma Ibrahim, Review of Air Pollution and Health Impacts in Malaysia, Environmental Research, vol. 92, no. 2, (2003), 71-7. 16. Djamil Yudha, Lee Wen-Chien, Tien Dat Pham, Kuwata Mikinori, Large-Scale Weather Dynamics During the 2015 Haze Event in Singapore, 19th EGU General Assembly, EGU2017, Proceedings from the Conference held 23-28 April, 2017 in Vienna, Austria, 14180. 17. Oliver Balch, Indonesia’s Forest Fires: Everything You Need to Know, The Guardian, 11 Novermber 2015. 18. Universal Declaration on Bioethics and Human Rights, Records of the UNESCO General Conference, 33rd Session, Vol. 1, Paris (2005), 74-80. 19. Husni Thamrin, Kearifan Lokal dalam Pelestarian Lingkungan (The Local Wisdom in Environmental Sustainable), Kutubkhanah, vol. 16, no. 1, (2013), 46-59. 20. Tenas Effendy, Tunjuk Ajar dalam Pantun Melayu (Yogyakarta: Adicita Karya Nusa, 2004). 21. Normiadilah Adnan, Noriah Othman, The Relationship between Plants and the Malay Culture, Procedia - Social and Behavioral Sciences, vol. 42, (2012), 231- 41. 22. Mohammad Hashim Kamali, Environmental Care in Islam: A Quranic Perspective, Islam and Civilisational Renewal, vol. 3, no.2, (2012), 261-83. 23. M. Mohd Noor, Zero Burning Techniques in Oil Palm Cultivation: an Economic Perspective, Oil Palm Industry Economic Journal, vol.3, no.1, (2003), 16-24. 24. Azila Ahmad Sarkawi, Alias Abdullah, Zaleha Kamaruddin, Nurul Aida Salim, and Norimah Md Dali, A Survey on the Understanding of Maqasid al-Shari’ah
ISLAM AND CIVILISATIONAL RENEWAL REVISITING TRADITIONAL, MODERN AND ISLAMIC VALUES WHEN ADDRESSING 389 HAZE ISSUES among Local Authorities in Malaysia in the Pursuit of Urban Sustainability, International Conference on Maqasid al-Shari’ah in Public Policy and Governance, at International Institute of Advanced Islamic Studies (IAIS) Malaysia on 15 & 16 June 2015. 25. Mohammad Hashim Kamali, The Middle Path of Moderation in Islam: The Qur’anic Principle of Wasatiyyah, (Oxford: Oxford University Press, 2015). 26. Mohammad Hashim Kamali, What is Fiqh al-Waqi?, Bulletin on Islam and Contemporary Issues, IAIS Malaysia, no. 39 (2017), 1-4. 27. Bryan Christy, First Ever Fatwa Issued Against Wildlife Trafficking, National Geographic, 5 March 2014. 28. Adrian David, Terengganu First to Issue Fatwa Against Wildlife Poaching, New Straits Times, 30 November 2015. 29. Shreya Dasgupta, Malaysian State Issues ‘Fatwa’ Against Wildlife Poaching, Mongabay, 14 December 2015. 30. Jani Actman, Muslim Council Issues Fatwa Against Poaching, National Geographic, 16 December 2015. 31. Adrian David, Terengganu Firemen Battle Forest and Peat Fires Caused by El Nino, New Straits Times, 1 May 2016. 32. Rashvinjeet S. Bedi, Perlis Issues a Fatwa on Environmental Pollution, The Star, 1 March 2016. 33. Berndatte Christina Munthe, Kanupriya Kapoor, and Nick Macfie, Indonesian Islamic Council Issues Fatwa on Forest Fires, Reuters, 14 September 2016. 34. Francis Chan, Indonesian Islamic Council Issues Fatwa Against Forest-Burning, The Straits Times, 13 September 2016. 35. Sarah Porter, Can Indonesia’s Forest Fires be Put Out for Good?, BBC News, 14 March 2016. 36. Mark Roseland, Sustainable Community Development: Integrating Environmental, Economic, And Social Objectives, Progress in Planning, vol. 54, no. 2, (2000), 73-132. 37. Brundtland Commission, Our Common Future, (Oxford: Oxford University Press, 1987).
ICR 9.3 Produced and distributed by IAIS Malaysia VIEWPOINTS
‘Licence to Operate’ in the Halal Market: A Matter of Alignment Marco Tieman *
The Middle East and Southeast Asia are amongst today’s leading consumer markets for food, cosmetics and pharmaceuticals. All major brand owners want to serve these Muslim markets. However, Muslim markets have stringent requirements regarding halal, demanding not only halal compliance for ingredients and production, but increasingly for the end-to-end supply and value chains. When doing business in Muslim markets, corporate halal reputation is therefore an important strategic asset. A corporate halal reputation is the collective representation of a firm’s past actions and halal performance, including the firm’s future ability to meet halal requirements. Halal reputation is undoubtedly valuable for corporations, but at the same time an intangible asset. Although intangible, the corporate halal reputation is important to measure and track. Muslim societies are less prepared to tolerate risks (whether real or perceived), meaning Muslims want a near zero- risk halal environment. Companies serving Muslim markets need to earn their licences to operate. The key drivers for a licence to operate are the ability to anticipate halal market requirements, addressing them through a solid halal authenticity, trustworthy halal certification body (HCB), right messaging by both companies and supply chain partners, and positive messages by external stakeholders. This relationship is shown in figure 1.
Trustworthiness of Messages by Messages Halal x x x halal certification company & supply by external Authenticity body chain partners stakeholders Licence to = ______Operate Halal Market Requirements
Figure 1: Licence to Operate
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1. Halal authenticity is the halal character or DNA of a company. Halal authenticity is the most valuable asset for halal reputation. The likelihood of companies being targeted by whistle-blowers has increased significantly. The only way companies can truly protect themselves from halal reputation risks is by having solid halal authenticity through an evident contribution to Islamic resources, Muslim obligations and Muslim lifestyle. 2. Based on the ingredients used, the manufacturing process employed, and organisation, a HCB certifies a production facility and its products as halal. There is a grand spectrum of HCBs—in total, an estimated 500— ranging from absolutely untrustworthy to highly trustworthy. Choosing the right HCB for a particular Muslim market is therefore of the utmost importance. 3. Messages by the company and its supply chain partners are a third factor in corporate halal reputation. Internal alignment within the organisation and supply chain is at this moment essential for an excellent halal reputation. 4. Messages by external stakeholders, the fourth factor, are a result of the level of connectivity with Muslim communities, current media coverage, and the company track record with halal issues. Halal market requirements are a critical denominator in the formula of the licence to operate in Muslim markets. Hence, effective alignment between the halal market requirements and the above four factors should be in place.
Internal and External Alignment
Halal alignment has two dimensions, internal and external, thus: Internal alignment within an organisation and supply chain requires intelligence, information sharing, training, and monitoring. Intelligence is required regarding existing halal practices and halal awareness so that gaps are mapped and analysed. Staff and supply chain partners are to be informed on the corporate halal strategy, its intent (niyyah), and implications for their operations. Training enables a company’s staff and supply chain partners to develop the right skills and ensure consistent halal practices within the end-to-end supply chain. Monitoring is necessary to track the progress of alignment and make adjustment where needed. Halal audits are not only important within an organisation but throughout the supply chain.
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External alignment with external stakeholders requires market intelligence and a mix of strategies and tactics to achieve total stakeholder support. Emerging halal market requirements, in particular changes in public opinion regarding Islamic values and expected changes in halal standards, must be monitored. This intelligence can be complemented by the benchmarking of a corporate halal reputation with its competitors. Hence, systematic scanning of halal market requirements is important for brand owners in order to identify gaps between (emerging) market requirements and their own practices, and thereby proactively address any shortfalls to ensure a sustainably high halal reputation. External alignment strategies and tactics must, amongst other things, involve informing (Muslim) consumers, lobbying HCBs, advocating activities with the media, taking part in halal forums and conferences, participating in halal industry research and societies, and horizontal collaboration with competitors in the industry.
Conclusion
In recent years, high-profilehalal crises involving top brands have shown that the world is getting smaller and that people are far more aware of how the economy is interlinked. Companies need to deal with international expectations in a local context and local halal requirements in an international context. Muslim society’s diminishing risk tolerance is related to declining trust in that Muslims are less prepared to tolerate risks (whether real or perceived). The licence to operate in Muslim markets needs to be earned and is a function of halal authenticity, trustworthiness of HCB, messages by company & supply chain partners, messages by external stakeholders and halal market requirements. Halal authenticity, choice of HCB, halal management of company & supply chain, and management of external stakeholders need to be aligned with the halal market requirements. An imbalance with the halal market requirements affects the licence to operate in Muslim markets. A good halal reputation comes from living authentic Islamic values; making good decisions; meeting and exceeding halal standards; and demonstrating halal behaviour across the supply and value chains. Building a strong halal reputation that is trusted by Muslim consumers is the result of an on-going, steady stream of consistent small efforts, not a series of one-off huge pushes. HCBs should educate halal certified manufacturing and exporting companies about the importance of maintaining their corporate halal reputation and seeking internal and external alignment.
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Notes * Marco Tieman is Professor in ELM Graduate School at HELP University, Malaysia. He conducts research on halal supply chain management and halal risk & reputation management. He obtained his Master’s degree in industrial engineering & management science [logistics] with the University of Twente (the Netherlands) in 1997 and his PhD in business management [halal supply chain management] with Universiti Teknologi MARA (Malaysia) in 2013. He is also the CEO of LBB International, a supply chain strategy consultancy & research firm with a specialisation in purchasing, production, and supply chain management. He chaired the development of the international halal logistics standard (IHIAS, 0100:2010) under ICCI-IHI Alliance between 2008 and 2010. Dr. Marco Tieman is the corresponding author and can be contacted at: marco. [email protected].
ICR 9.3 Produced and distributed by IAIS Malaysia Intelligent Robots and the Question of their Legal Rights: An Islamic Perspective
Shahino Mah Abdullah*
Ismail al-Jazari was a prominent inventor in the Islamic world and is known today as the father of robotics. His magnum opus, ‘The Book of Knowledge of Ingenious Mechanical Devices,’ gathered together instructions for building 100 devices he had designed. He invented a variety of water-rising machines, clocks, and humanoid automata, such as a drink-serving waitress, a hand-washer with flush mechanisms, a peacock fountain with automated servants, and a musical robot band. The latter was an early programmable automaton invented in 1206, making al-Jazari the first person to introduce the concept of programming and automation. In the modern era, Isaac Asimov, the modern father of robotics, proposed that future machines would help humans. He introduced ‘The Three Laws of Robotics’ (1942) to outline the interactions between humans, robots, and morality. The First Law states that a robot may not injure a human being or, through inaction, allow a human being to come to harm. The Second Law states that a robot must obey the orders given it by human beings, except where such orders would conflict with the First Law. Finally, the Third Law states that a robot must protect its existence as long as such protection does not conflict with the First or Second Laws. In the following decade, Joseph Engelberger and George Devol invented the first practical robot for the car manufacturing industry, making them the fathers of industrial robotics. Further developmental work, however, has since led to a transition from industry to service robotics. Today’s robots are about more than just having the intelligence to change their algorithm to accomplish a given task; they are also designed to have the intuition to understand and respond to human emotions. A futuristic robot with the ability to read emotions is now commercially available. A humanoid robot from Japan called Pepper can supposedly read emotion by analysing human facial expressions, body language and voice tones. It was designed to interact with humans, to perceive emotions, and adapt its behaviour to the mood of its interlocutor. It also has the ability to sing, dance, and tell jokes aimed at making people happy. It has the capability to carry out multiple roles, from being a babysitter to manning a store. With an affordable price of just under $2000, Pepper is currently employed at restaurants, banks and medical facilities across Japan. Pepper is also used as a receptionist at several
ISLAM AND CIVILISATIONAL RENEWAL VIEWPOINTS 395 offices in the UK to facilitate and attract customers. Many companies are still experimenting with robots like Pepper to see how they might fit with their businesses. As Pepper continues to work in many companies across Japan and Europe, there are reports emerging related to its performance. Most customers are happy to interact with it, while others are not. In some instances, customers find Pepper unhelpful as the responses they receive from it are considered limited and below their expectations. Some customers even get no response at all, as Pepper’s built- in microphones do not efficiently work in noisy ambience. Additionally, some customers are quite suspicious of robots offering food. These issues have resulted in robots like Pepper being removed from some stores. In one instance, Pepper was assaulted by a drunken man in Japan, who did not like the attitude of a human member of staff at the store. According to the Japan Times, the damaged Pepper now moves slower due to a damaged internal computer system. The above incidents have led a robotics ethicist to call for a new type of legal protection that would apply specifically to robots. Robotics academic, Dr Yueh-Hsuan Weng, proposed that humanoid robots should have legal status and be regarded as a ‘third existence’. This status is different from normal machines and property, which are regarded as the ‘second existence’, while also contrasting with the status of humans as the ‘first existence’. Weng raises the issue that the current laws “do not help human beings to project their empathy while interacting with humanoid robots.” A similar concern was observed by animal rights charity, People for the Ethical Treatment of Animals (PETA), when it received complaints about a video of a Boston Dynamics employee kicking an animal-like robot to demonstrate its self-stabilising ability. The video received an unexpected backlash and raised concerns about robotic ethics. As a result, groups of animal rights activists forced PETA to issue a statement on this incident.
Islamic Perspectives Currently, intelligent robots face a public acceptance issue, as some people consider them to be job thieves. Making this situation worse are the actions of some irresponsible individuals, who vandalise robots and leave them broken. Scientists and legal rights activists have issued several suggested draft laws to protect these robots, at least as the property of their owners. At the same time, the legal necessity to protect humans from the harmful acts of robots has to be prioritised, as proposed by Asimov in the Law of Robotics. These measures are in line with the objectives of Islamic Law (maqasid al-shari’ah), namely to protect human benefits (masalih) and welfare. In this case, there are two main essentials
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(daruriyat) that must be highlighted, namely the protection of life (hifz al-nafs) and the protection of wealth or property (hifz al-mal). It is noteworthy that the Islamic concept of ownership and accountability should come first if the intelligent robot is to be regarded as an object under human possession and responsibility. Generally, ownership means a conventional relationship between an individual or group and an object, which entails the legitimate right to its possession by the owner. Safeguarding property means protection of ownership and property from damage, harm, theft, exploitation, or injustice. It means property laws protect any property, including robots, that are owned by a human. The creation of ‘robot rights’ in this case is favourable as it will protect robots from harm. At the same time, it will also promote the protection of human property (hifz al-mal) from the actions of irresponsible persons or groups of people. On the other hand, the person or group who is in charge of the activity of a robot is obliged to bear responsibility for it in case of violation. The second caliph, Umar al-Khattab, emphasised the important concept of owner accountability in the case of a slave who stole some food but was not directly punished. Instead, Umar took his master to task for failing to provide enough to satisfy his needs. Consequently, his master had to pay double the amount stolen as a punishment (Muwatta’ of Imam Malik, Book 36, Hadith 38). This story showed fair and good judgement by the ruler or government, which emphasises the accountability of the owner for what they own. There is also a great lesson to be learnt from a historical event mentioned in the Qur’an, related to the destruction of property during the time of Prophet Sulaiman. There was an occasion when sheep owned by certain individuals were destroying crops belonging to another group of people. Prophet Sulaiman ruled that the owner of the sheep be obliged to pay compensation in kind until the field was restored to its former state (Anbiya 21:28). At the same time, he also took into account the loss of benefits while waiting for the field to be restored. Therefore, he ruled that the owners of the field be compensated in the form of sheep and their by-products (such as milk) up to the equivalent of the produce of the field. A similar approach might be applied to robots in case of violation; in order to protect human life and property from the loss caused by a robot, the owner of a robot must take full responsibility to pay compensation, if applicable. If the recovery or return process takes some time, then additional compensation must be included to cover the loss of benefits during that period. More specifically, the criterion of bearing rights and duties in Islamic law is known as ahliyyah, and is borne by any human who can understand the meaning of responsibility. According to Muslim jurists, ahliyyah begins when a foetus possesses life. Nevertheless, an unborn foetus has deficient legal capacity
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(ahliyyah al-wujub), in that he or she can receive a right but cannot bear an obligation. An unborn foetus, for example, receives an inheritance. It thus appears that life is the criterion of ahliyyah. When this test is applied, a robot does not possess ahliyyah. But, since robots can act in a manner that may bring either benefit or loss, like animals, the most one can say legally is that they equate to an animal. Liability for loss is therefore ascribed to the owner or manufacturer of the robot. However, this may still be subject to further developments in technology – hence a tentative opinion. The issue of legal rights involving both humans and robots is not limited to the examples mentioned above. We need more suggestions and appropriate approaches that favour both humans and intelligent robots, to ensure suitable legal rights that could harmonise their interaction. The concept of ownership, accountability, protection of life (hifz al-nafs) and protection of property (hifz al-mal) may provide important values and guidelines in the development of a legal rights framework. However, the construction of this framework is not only limited to the above concepts, but is also open to other beneficial concepts that could further strengthen it. Also, there are other issues related to other types of legal rights that need equal attention. Among the issues are: robot copyrights for the art they produce, the rights of owners to the art of their robots, the citizenship rights of a robot, the right to make a robot a sexual partner, and other legal issues involving robots in the human world. More research is necessary as technology is rapidly evolving. A maqasid discourse should move forward so that it can address these issues in the future.
Notes * Shahino Mah Abdullah is a Research Fellow at the International Institute of Advanced Islamic Studies (IAIS) Malaysia. He can be contacted at shahino@ iais.org.my.
ICR 9.3 Produced and distributed by IAIS Malaysia Is Unilateral Conversion The Best Solution?
Mohamed Azam Mohamed Adil*
The issue of unilateral conversion of minors has once again generated widespread uproar in Malaysia when the Federal Court unanimously decided, in the case of Indira Ghandi on 29 January 2018, that both the parents’ consent was required in determining the faith of minors. In Malaysia, Article 12 (4) of the Federal Constitution provides that "For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian." The Federal Court held, in this case, that the word 'parent' must be understood in the plural form, denoting both 'parents’, based on Schedule Eleven of the Federal Constitution and sections 5 and 11 of the Guardianship Act 1961. This decision marked a departure from the previous Federal Court judgement in Subashini (2007) in which ‘parent’ was defined as one of the parents. The Federal Court in the Indira Ghandi case also rejected the argument put forth by some parties that the decision in the case of Susie Teoh (1990), who voluntarily converted to Islam at the age of 16, had a bearing on the interpretation of the word ‘parent’ as singular or plural. It may be useful to refer, in this regard, to some points discussed in two of the International Institute of Advanced Islamic Studies (IAIS) Malaysia’s policy papers, “Conversion in Malaysia: Issues and Reform Proposals” (2012) and its Malay-language version, “Penukaran Agama Kanak-Kanak - Isu dan Cadangan” (2016 & 2017), which updated and enhanced the previous edition. Muslim jurists have held that when both parents convert to Islam, their underage children automatically become Muslims. Problems arise if one of the parties has converted to Islam and the other remains a non-Muslim, leading to an interesting jurisprudential debate. Jurists have held different opinions in such a scenario. The majority views in the Hanafi, Shafi‘i and Hanbali schools revolve around whether the convert was the mother or the father. Things are more straightforward in the Maliki school, which stipulates that the child's religion follow that of the father. Thus, if the father converts, so will the child. The argument behind this Maliki ruling is that the identity and lineage of descent are through the father. Even so, there seems to be no final and authoritative view on this matter, especially since no clear-cut Quranic verses address it. Nor have the jurists reached any consensus on the question of whether a child can embrace any religion, including Islam.
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Many scholars are of the view that children can embrace Islam, based on the precedents of many close companions of the Prophet Muhammad who converted to Islam during their childhood. Among them were ‘Ali bin Abi Talib, Zubayr bin al-Awwam, Abdullah ibn Umar and Asma’ binti Abu Bakr. Imam Abu Hanifah and his disciple, Muhammad ibn Hassan al-Syaibani, are of the view that children that have attained mumayyiz (prudence) can legitimately convert to Islam – or, for that matter, opt for apostasy. However, Abu Yusuf is of the view that the child’s decision is legitimate only when he converts to Islam, and invalid in the case of apostasy. Zufar ibn Hudhayl, another disciple of Imam Abu Hanifah, views that a child can neither convert to Islam nor leave Islam if he or she has not reached puberty. Several important points can be drawn from the popular hadith “Every child is born in ‘fitrah’ (natural state). His parents are the ones who will determine whether he is a Jew or a Christian until he is able to accept or reject it.” First, it is implied that a child cannot determine his religion. Second, it is also implied that a child’s disposition is clear of sin and cannot be held responsible for his religious status or other religious requirements. Additionally, this hadith also mentions ‘parents’ in the plural. What is most important throughout this whole issue, however, is that the welfare of the child should come above all else. What is happening now in Malaysia is that there have been cases where a father or mother embraces Islam and later converts their child to Islam even before the court resolves the issue of custody. This scenario will undoubtedly lead to further problems. Similarly, an automatic decision to keep the child in his original religion following his non- Muslim parent will also lead to future problems, for instance when the Muslim parent gains custody and wishes to enrol the child for Islamic religious education. Therefore, the determination of a child’s religion should take into account the custodianship of the child. Solving this predicament would require cooperation by all parties, especially parents, guardians and the authorities, to prioritise the welfare of the child. This cooperation can be actualised through a mediation process which involves a third party that will facilitate both parents towards reaching a compromise regarding the religious status of their child, for the sake of the children’s welfare. For that reason, IAIS Malaysia proposed several policy reforms in its above mentioned policy papers relating to conversions in interfaith marriages. Among the recommendations were, firstly, to ensure that the issue of conversion does not get in the way of ensuring the child’s welfare and the ensuing custodial responsibilities by the disputing parents. Secondly, to establish a particular branch of the judiciary with mixed jurisdiction where both shariah and civil law judges can sit and adjudicate cases of conversion and religious identity of
ICR 9.3 Produced and distributed by IAIS Malaysia 400 MOHAMED AZAM MOHAMED ADIL children. Thirdly, to set up a judicial committee of the Conference of Malay Rulers with a mixed composition of Muslims and non-Muslims. The former can be the majority, and female members shall be included.
Notes * Mohamed Azam Mohamed Adil Deputy CEO, International Institute of Advanced Islamic Studies (IAIS) Malaysia, Jalan Elmu off Jalan Universiti, 59100 Kuala Lumpur/Associate Professor, Academy of Contemporary Islamic Studies (ACIS), Universiti Teknologi MARA Selangor, 40450 Shah Alam, Selangor ([email protected]/[email protected]).
ISLAM AND CIVILISATIONAL RENEWAL The Moral Foundations of the Constitution
Tengku Ahmad Hazri*
Despite the primacy of Malaysia’s written constitution and despite its lofty status as the very foundation of the nation and the embodiment of the social contract, recent trends reveal a shift away from the black letters of the law towards a search for the moral foundations of the constitution, foundations that are largely unwritten. Significantly, from all sides of the debate the sanctity of the constitution itself has been upheld and, although different parties have advanced different interpretations of its ideals and history, none have gone to the point of challenging its validity. This is interesting, especially with reference to Malaysia, because the constitution itself was drafted by the Reid Commission, comprising five members, none of whom were Malayan. The constitution could have easily been construed as a remnant of neo-colonialism, but this has not happened. At least not so far. The search for the moral foundations of the constitution has been driven in part by the realisation that as a written law, albeit the supreme law, the constitution is nevertheless vulnerable to change and amendment that could depart significantly from the cherished ideals of the founding fathers and the earliest community. Such change to the constitution can be effectuated with ease by the political party that commands a majority of seats in Parliament, particularly if it wields more than a two thirds majority. Yet to be clear, unlike in other parts of the world, this fear has less to do with concern about an elite few versus an upsurge in populism. This pertinent point explains why the scenario in Malaysia cannot be framed as that of “constitutionalism-versus-democracy”, a framework that has been so carelessly applied in analysing political transitions throughout the world. The fear, rather, is that the ruling elite will use the instruments of government at its disposal, such as the re-delineation of electoral constituencies or use of government-linked media, to unfairly promote the ruling political coalition. There is, in other words, no fear that democracy itself would jeopardise the rule of law and constitutionalism. Thus, it can be said that, despite an increase in global cynicism towards democracy with the rise of populism and right-wing nationalism, Malaysia remains optimistic about democracy’s role in the service of the rule of law. To anchor the constitution in a strong moral footing, advocates have sought to look beyond the black letters of the law to situate the constitutional text within a historical and moral context. The eminent constitutional law scholar, Shad
ICR 9.3 Produced and distributed by IAIS Malaysia 402 TENGKU AHMAD HAZRI
Saleem Faruqi, aptly words it thus, “A constitution is not mere words written on paper. It is animated by inarticulate values and ideals. It has a spirit and a soul... The constitution’s core values are not written in the sands to be washed away by incoming political tides.” Such reference to “core values” carries an implicit moral overtone, amplified by recent judicial pronouncements to that effect, as explained below. The idea that the constitution is underpinned by moral aspirations was recognised early on. Former Lord President (as the Chief Justice was once known), Tun Salleh Abbas, once referred to what he called the “traditional elements” of the Malaysian constitution, namely: (1) the position of Islam as the religion of the Federation; (2) the Malay language as the national language; (3) the position of the sultans and rulers of each state; and (4) the special position of the Malays. With these “traditional elements,” Salleh Abbas highlighted the constitution’s distinctive identity and foundation for national unity, bringing together the country’s diverse communities around shared symbols. Abdul Aziz Bari would later describe these as the “indigenous elements” rather than “traditional” elements. Following the constitutional crisis of the 1980s, Tunku Abdul Rahman called for a “review of the constitution.” What especially worried the Tunku was not only the erosion of the status of the Malay rulers, but more importantly the ease with which the constitution could be amended. He had in mind the amendment which allowed bills to be passed even without the consent of the Yang di- Pertuan Agong. On 31 August 1984, Tunku wrote, “If we look at the constitution today we find it difficult to lay our hands on any particular subject which has been retained in its original form,” and lamented that “the Constitution can be amended as and when the government finds it expedient.” Tunku then proposed the establishment of a Royal Commission of Inquiry to review the constitution and make recommendations thereof. The past few years have witnessed mounting calls for a return to what has been called the “Merdeka Constitution”, i.e. the constitution that was adopted when the nation achieved independence (called “Merdeka Day”). This call has been raised by a number of parties. In 1987, prominent constitutional lawyer Tommy Thomas (now the Attorney-General) identified several amendments which “radically altered the basic structure and spirit of the original constitution,” namely: (1) the amendment to Article 149 in the 1960s; (2) the 1971 amendment; and (3) the 1973 amendment. Curiously enough, Tommy Thomas made no reference to the 1983 amendment, which removed the powers of the sultans, not counting this amongst the changes that transformed the “basic structure” of the constitution. In 2005, Lim Guan Eng (then Secretary-General of the Democratic Action Party, DAP), in a speech at the Perak DAP State Leadership Retreat, described the 1957
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Merdeka Constitution and the 1963 formation of the Malaysian Constitution as the “driving force towards national unity” and called for its restoration. These developments have not been confined to the worlds of academia and politics alone. In 2018, the Federal Court, in Indira Gandhi v Pengarah Jabatan Agama Islam Perak, explicitly overturned the thirty-year-old precedent of not recognising the basic structure doctrine in Malaysian law, instead embracing such principles of political morality as the independence of the judiciary, separation of powers and fundamental liberties. The court cited with approval the earlier case of Sivarasa Rasiah v Badan Peguam Malaysia, which affirmed Part II of the constitution on fundamental liberties as part of the basic structure, even though the provision was not originally intended to be part of the constitution, as it was believed to be adequately protected at the legislative level. The earlier Supreme Court case of Loh Kooi Choon v Government of Malaysia (1977), while rejecting the basic structure doctrine, nevertheless acknowledged that the constitution embodies three “basic concepts,” namely: (1) the fundamental rights of the individual; (2) the distribution of powers between the Federal and state governments; and (3) the distribution of powers between the executive, judiciary and legislature. In 2017, yet another attempt was made to infuse the constitution with a moral compass. Given the constitution’s lack of a Preamble, an initiative led by, among others, Shad Saleem Faruqi and leading public intellectual, Chandra Muzaffar, sought to advance the Rukunegara (National Charter) as a Preamble to the Federal Constitution. The Rukunegara was adopted by the National Consultative Council (NCC) in the aftermath of the tragic racial riots of 13 May 1969 and proclaimed by the Yang Dipertuan Agong on 31 August 1970. The following year, the prominent intellectual, Syed Hussein Alatas, advanced this very proposal. In his essay, “Rukunegara as the Preamble,” Chandra appealed to the perennial values of the Rukunegara, as well as its inclusiveness, as an antidote to the growing communal polarisation in Malaysia that threatens to rupture the fabric of national unity. More recently, the Sultan of Perak, Sultan Nazrin Shah, has firmly proclaimed the imperativeness of safeguarding the “basic elements” of the constitution and the legitimate interests of all groups. In His Royal Highness’ speech at the inauguration of the 14th Perak State Legislative Assembly on 6 August 2018, Sultan Nazrin further emphasised that the “basic elements” were part of the “Merdeka Constitution,” which should not be compromised despite the change of government following the 14th General Election. Exactly a week later, on 13 August 2018, the Sultan of Kedah, Sultan Badlishah, when officiating over the 14th Kedah Legislative Assembly, declared that the “traditional elements” of the constitution should be left untouched as they represent the consensus of the diverse communities which represent the social contract.
ICR 9.3 Produced and distributed by IAIS Malaysia 404 TENGKU AHMAD HAZRI
These developments demonstrate how, despite the strictest fidelity to the constitution, and despite optimism in its continued role in the life of the nation, there has been a quest to find the moral foundations of this document. From the identification of the “traditional elements” of the constitution, to calls for a return to the Merdeka Constitution and the preservation of the “basic structure” of the constitution, to the initiative to introduce the Rukunegara as the Preamble to the Constitution, there has been a realisation that even the supreme law of the land must ultimately rest on a shared moral framework. These disparate developments must come together towards a harmonious and equitable solution for all that genuinely reflects the shared moral ethos of all Malaysians.
Notes
* Tengku Ahmad Hazri is Research Fellow, International Institute of Advanced Islamic Studies (IAIS) Malaysia. He can be contacted at [email protected]. my.
ISLAM AND CIVILISATIONAL RENEWAL Thinking through Signs: The Ayah Zeitgeist
Elma Berisha*
Imagine you are living in a seventh-century desert town and a new book, which is not even a ‘book’ yet, is being recited in scattered verses, urging ordinary people to look around for ‘signs’. What would one see in that sky-is-blue earth- is-flat age if one had attentively and eagerly looked around? Then,“ do they not look at what is before them and what is behind them of the heaven and earth?... Indeed in that is a sign…” (Q.34:9). How to respond to this invitation to probe for signs when there are no telescopes or microscopes available? You would have looked up at the stars unaware that many of them were galaxies. You would have looked at your hands, observed their skin, but without a way to know that it is made up of highly-specialised cells composed of extraordinarily complex and coordinated sub-cellar organelles. To discern signs “in your selves” (Q.51:21) you would have tried to become introspective and look within your mind, but without the slightest chance of fathoming the dynamic nature of your brain’s neurochemical underpinnings. You might have thought for a moment of the languages and dialects heard around you, or of the differing facial features, skin colours or cultural habits of other tribes and nations—all of which the book you have heard recited claims are signs of the greatness of God. This book, the Holy Qur’an, was urging ordinary people to peek beyond what is visible and interrogate conventional wisdom. Initially, many refused to heed this invitation because it did not resonate with what they were used to. Some even ridiculed it (Q. 37:14). In hindsight, and perhaps even more so today, answering this reality-penetrating call would have essentially meant an act of faith. Thus, it is intriguing that the inductive and empirical thinking that paved the way for our modern-day scientific method started as an act of belief. This is well in the sense that, if the Creator is urging us to investigate and explore the surrounding environment, there should be something wondrous in it. The Ayah zeitgeist was born when, ultimately, many heeded the call to engage with reality through this new sign-based method (manhaj). It is well-known that inductive thinking was hitherto premature, if not completely unknown. Muslim scientists subsequently adopted and advanced it as an extensive tool for hunting for signs, patterns and trends in factual data that could be generalised into tentative explanations or broader theories. As a worldview, thinking through signs had many incentives: (a) a reality not to be denied, full of wonders to be explored, (b) a capable human talent not to be oppressed into conformity, and (c) an eternal reward, for
ICR 9.3 Produced and distributed by IAIS Malaysia 406 ELMA BERISHA every hour spent contemplating through signs (tafakkur) is loftier than years of ritualistic worship. When I highlight the manhaj of thinking through signs, I am not introducing anything new. Thinking through signs is our default way of thinking, to the degree that everyone unwittingly expects to exchange meaning via a sign-based paradigm. References are made in the Qur’an to how people expect this standard of reasoning and exchange to work, including amongst sages (Q.19:10), common believers (Q.2:248), sceptics (Q.6:37, 2:118), as well as non-believers (Q.13:7, 7:106). Conventional discourses explain thinking through idealistic models, snapshots that, although descriptive and useful in limited domains, fail to capture the everyday habits and tendencies of human thinking. These have for too long theorised the objectives and the limits of our thinking in a very reductionist and mechanical way. That is precisely the reason why mainstream scientists often end up saying ‘humans are irrational’ when discussing typical consumer or religious behaviour. The positivist models cut to describe us do not fit. Thus, we end up cutting our toes trying to fit the theoretical shoe. Thinking through signs takes into account intuition and belief as an inevitable part of the whole semiosis. The standard theory of thinking advanced by J. Baron resonates well with semiotic interpretations of the process of semiosis. To briefly paraphrase Baron, thinking is a purposive process; we think to make decisions, to form beliefs and to choose our personal goals. For Baron, thinking is about the search for goals, possibilities, and evidence, and then inferring or using evidence to determine how well these possibilities meet goals. When deciphering Baron’s theories, I became aware of how belief is acknowledged to be part and parcel of our daily reasoning processes and rationality. Ideally, the search for possibilities and evidence should be infinitely exhaustive before we settle on any kind of conclusion. Nevertheless, in real life we do not always have unlimited time or the resources needed at hand. This is where pragmatism comes in. We typically make decisions based on this kind of thinking process, which is probabilistic in nature. In turn, our beliefs, emotions, personal experiences, memories, attention, intention and much more can bias our thinking processes. No wonder that modern therapeutical work aimed at curing certain behavioural patterns attempts to achieve this through modification of beliefs. Personal beliefs and attitudes, selective attention, remembrance, emotions and much more are part and parcel of human rationality. This does not mean, however, that we must open the door to free-ranging superstitions and baseless symbolisms of all kinds. As Baron highlights, we are often biased in our thinking given that we selectively look for evidence to match and confirm our beliefs and we look for beliefs to explain the available evidence. This implies that, like life itself, thinking habits need continuous cultivation and care-taking, mandating an
ISLAM AND CIVILISATIONAL RENEWAL VIEWPOINTS 407 openness to new experiences. The Qur’anic injunction for sign-based thinking is a life-long pursuit, a fluctuating state of belief iman( ) proportional to the scale and depth of one’s experience of signs. With reality taking supremacy over one’s subjective relativities, a believer is in a constant sign-search towards certainty (yaqin). With openness to signs as the very fiber of reality, sign-based thinking is transformative in the sense that it drives a believer to rise above self-serving bias, certain mental frameworks and cultural habits, as well as above current possibilities (Cf., Q.4:135, 5:8, 6:152, 11:49). Thinking through signs involves the exertion of human cognitive powers. That implies consistent effort to maximise reality-checks and safeguard against any personal biases while searching for goals, possibilities and evidence. In this way, thinking through signs is more than a reliance upon isolated empirical facts. Visibility of facts without the gestalt and pragmatic sign-thinking paradigm will not go far. One needs to see the world as signs. Signs are beyond facts, not only from an in-depth perspective, but also from a reach perspective. Moreover, some people highlight how change can come only through sign-thinking, as only signs have the power of suggestibility to otherness. The more you zoom into a certain object under study, the more the complexity of its interior opens up, the more one understands that they are not individual units of facts but a complex structure of interrelated signs. Ideally, as in the Ayah zeitgeist, there should be no avoidance attitude towards empirical facts per se as reality is not to be feared. On occasions when there is seemingly contradictory empirical evidence, dedicated scientists have gone further with sign-based research and discovered something entirely new. The apparent contradiction was just a sign or a signal of a shortfall in our formulated beliefs and explanations. The Qur’anic invitation to heed signs is still open and valid. However, as likely as 1,400 years ago, asking ordinary people today, including believers, to ‘look around for signs’ falls on deaf ears. Swept away as we are by both technological wonders and mundanity, prima facie ordinary people may not see much anyway. A creative pause may alert us to the necessity of pursuing this reality-penetration call. Prophet Jesus once said “I declare to you what ye eat, and what ye store in your houses” (Q.3:49), a statement that is reminiscent of the increasing surveillance possible due to prevailing global connectivity. Progression in human knowledge has made what was once miraculous seem ordinary. Reality is in a constant state of communicating from all sides and at all microscopic and macroscopic levels, a constant exchange of meaning for those “who use reason” (Q.30:24) or “care to understand” (Q.29:35). One thing about signs is that they are accessible to all (Q.54:2). A sign remains a sign regardless of relative human interpretation. By the same token, certain human interpretations are so rigid that they remain fixed regardless of what one comes to experience or
ICR 9.3 Produced and distributed by IAIS Malaysia 408 ELMA BERISHA witness. Qur’anic references are made to examples of such deep-rooted states of denial, so that at times people are ready to accept magic as reality but not reality as a sign! “But if they see a Sign, they turn away, and say, ‘This is (but) transient magic’” (Q.54:2, 46:7). The challenge to infer God through accessible signs is not unique or exclusive. As mentioned, a more in-depth look at standard human thinking processes shows how we are cut to work as such, to infer from accessible signs higher-level objectives. Within the semiotic freedom we are endowed with, we often fail to take up this elevating intellectual task.
Notes
* Elma Berisha is an alumni of the International Islamic University Malaysia. She is a social researcher, psychologist by training, data scientist by profession, with a recent research interest in cognitive semiotics. In the past decade, Elma has worked with a wide spectrum of public institutions in Malaysia, including top universities, international organisations and professional bodies. Until 2015, Elma was the Regional Manager for Consumer Research in Asia Pacific, with Frost & Sullivan. Her focus research area was on the evaluation of public perceptions in Malaysia and Singapore, primarily monitoring issues of public safety, corruption and urban development. Currently, Elma is attached to the Asian Institute of Finance, a Bank Negara think tank in Kuala Lumpur established to enhance human capital development.
ISLAM AND CIVILISATIONAL RENEWAL SIGNIFICANT SPEECHES, EVENTS AND DEVELOPMENTS
Public Lecture on Islamophobia and the New Policy of the US towards the Muslim World (IAIS Malaysia, 9 January 2018)
Wan Naim Wan Mansor
The rise of President Donald Trump and his subsequent policies regarding Muslims have spurred grave concerns surrounding the institutionalisation of Islamophobia in the US. The xenophobic and anti-immigrant sentiments which fueled Trump’s presidential campaign have since defined his administration’s policies. Controversial foreign policy decisions have included the ‘Muslim travel ban’ (his first executive order) and the recognition of Jerusalem as the capital of Israel, issued amidst international uproar. At the domestic level, since September 11, 194 anti-Shari’ah bills have been introduced across 39 states, and there are 15 federal programmes currently targeting and affecting Muslims. Against this backdrop, IAIS Malaysia, in collaboration with the Academy of Islamic Studies, Universiti Malaya, organised a public lecture by Professor John L. Esposito, a world-renowned expert on Islam and international relations. The event was the first in a series of five lectures Esposito gave across the country. Esposito began by outlining the epistemological framework behind Islamophobia, notably the questioning of Islam’s religious status. This narrative relies on the suggestion that Islam is more ‘ideological’ than ‘religious’. The notion that Islam is an ideology appeals to the Huntingtonian perception that Islam is at war with the West. Islam thus becomes the ideological and national enemy of the US, supplanting the communism of the Cold War era. Pandering to this view, however, prolongs many misconceptions surrounding Islam and further alienates Muslims in the economic, social and public spheres. Esposito iterated the need to intellectually tackle those misconceptions which paint Islam as inherently intolerant, anti-democratic, and authoritarian, without any shared values with the West. These misunderstandings are not only far from the truth, but have long served to sow the hatred and negative stereotypes that fuel Islamophobia and anti-Islamic rhetoric. An organised and unified initiative is
ICR 9.3 Produced and distributed by IAIS Malaysia 410 THE FUTURE OF MAQASID AL-SHARIAH DISCOURSE essential to counter Islamophobia, which has now grown beyond its function as a political tool of fear to become a multi-million dollar industry with its own set of benefactors. Prof Esposito’s works and initiatives on this matter can be accessed via the website: http://bridge.georgetown.edu/. Overall, the event witnessed a turnout of about 120 people, consisting mostly of activists, academicians, and postgraduate students. After an engaging Q&A session, Esposito was invited, together with Professor Mohammad Hashim Kamali, to officiate over IAIS’s ten year anniversary pre-launch ceremony, a fitting task since Esposito also gave a public lecture at IAIS ten years ago.
Public Lecture on The Future of Maqasid al-Shariah Discourse (IAIS Malaysia, 3 March 2018)
Ahmad Badri Abdullah
On 27 April 2018, IAIS and the Maqasid Institute of Malaysia (MIM) jointly organised a public lecture entitled ‘The Future of Maqasid al-Shariah Discourse,’ delivered by Prof. Jasser Auda, currently a Distinguished Professor at the Sultan Omar 'Ali Saifuddien Centre for Islamic Studies (SOASCIS), Brunei. Auda explained that, similar to other ideas, fiqh needs renewal and rejuvenation in order to stay relevant. With the current rapid pace of economic and technological advancement, new fiqh categories are needed, such as the fiqh of the environment, the fiqh of construction, and the fiqh of performing arts. Auda argued that the objectives (maqasid) of the shariah should underpin such renewal, as derived directly from the Qur’an and Prophetic traditions. But, the maqasid discourse too needs to extend beyond its conventional five necessities daruriyat( al-khamsah) and three-fold hierarchy of daruriyyat, hajiyyat and tahsiniyyat, as these reflect only some of the dimensions of the overall theory and are unable to fulfill the intellectual requirements needed for a new, modern-day fiqh. Auda proposed three tools for the construction of a new maqasid: i) identifying concepts in the Qur’an that are described as objectives; ii) identifying the universal laws (sunan) enshrined in the Qur’an and Sunnah that demand preservation and enhancement; and iii) the development of an interactive discourse between scholars who are multidisciplinary, each specialising in a number of fields. This last point is, according to Auda, crucial as contemporary maqasid requires a synergistic balance between revealed knowledge and experimental wisdom. The lecture was preceded by the signing of a MoU between IAIS and MIM and followed by the launch of two new books published by IAIS and ILHAM Books: Dr. Mohamed Azam’s Perlaksanaan Shari’ah di Malaysia: Khayalan
ISLAM AND CIVILISATIONAL RENEWAL SIGNIFICANT EVENTS AND DEVELOPMENTS 411 atau Realiti and the present author’s Maqasid al-Shari’ah, Nas dan Maslahah: Satu Pendekatan Sistem.
Seminar on Hamka’s Thought: Fiqh Ta’ayush in Cultural Development and National Building (Seminar Pemikiran Hamka: Fiqh Ta’ayush Dalam Pembinaan Budaya Dan Bangsa) (IAIS Malaysia, 28 April 2018)
Razi Ahmad
On 28 April 2018, a seminar on Hamka was jointly organised by IAIS Malaysia, the National Union of Malaysian Muslim Students (PKPIM), and the Muslim Youth Movement of Malaysia (ABIM), with the cooperation of Jejak Tarbiah and the Academy of Islamic Studies Alumni Association (ALIM). This seminar was an exploration of Hamka’s ideas about and approach towards conceptualising Fiqh Ta’ayush, the art of peaceful co-existence. Prof. Dr. Haji Abdul Malik Karim Amrullah, or Hamka, was well-known for his attempts at promoting moderation amidst theological and political pandemonium in Indonesia. During his lifetime, it was a great challenge to live the spirit of Bhinekka Tunggal Ika (Unity in Diversity) due to Indonesia’s multi- cultural and multi-ethnic society, post-colonial ideological rivalries, and plurality of Muslim discourse. The event saw a keynote speech delivered by Buya Hamka’s ninth child, Drs. H. Afif, on Living‘ in Harmony in a Plural Society: The Understanding and Practice of Hamka’. According to Afif, Hamka was a pragmatic scholar who expressed inclusivity and tolerance, tried to harmonise many streams of thought, and treated his non-Muslim neighbours with respect and fairness while also being firm and bold in safeguarding truth and justice. The keynote speech was followed by a sequence of presentations by Prof. Dr. Abdul Latif Samian (Principal Fellow, Institute of Malay World and Civilisation, UKM), Assoc. Prof. Dr. Hafidzi Mohd Noor (Chairman of MyCare), Muhammad Faisal Abdul Aziz (ABIM’s Secretary General) and Muhammad Hanapi Jamaludin (a Jejak Tarbiah fellow). The session was moderated by Assoc. Prof. Dr. Mohamed Azam Mohamed Adil, Deputy CEO of IAIS. Two books were launched during this event: Pemikiran Dan Perjuangan Hamka (ABIM Publications), encapsulating Hamka’s biography, thought and struggle to revolutionise the minds of modern Muslims, and Di Tepi Sungai Dajlah (At the Bank of the Tigris River), a long-lost masterpiece by Hamka.
ICR 9.3 Produced and distributed by IAIS Malaysia 412 CRUISING WITH ISLAMIC FINANCE EXPERTS (CWIFE)
First published in 1952, this novel-cum-history was recently rediscovered and republished by Jejak Tarbiah.
Cruising with Islamic Finance Experts (CWIFE) (29 April-2 May 2018)
Muthanna Saari
IAIS Malaysia made an exceptional attempt to bring its training on Islamic Finance out of its typical setting by organising ‘Cruising with Islamic Finance Experts’ (CWIFE). Staged by the SuperStar Libra cruise ship, this event saw participants travel from Port Klang to Phuket to Penang, and then back to Port Klang, in a four-day, three-night cruise held from 29 April to 2 May 2018. Breezing across the blue ocean of the Straits of Malacca and Andaman Sea off the south-west coast of Thailand, CWIFE comprised two training programmes in one event, covering the topics ‘Shari’ah Compliance and Regulatory Framework’ and ‘Understanding Bank Negara Malaysia’s (BNM) Shari’ah Standards: Murabahah, Tawarruq, Ijarah, Rahn, Qard, Waad, Hibah, and Wakalah’. Specifically, the training was conducted to equip participants with an understanding of the application of the laws, rules and standards governing the Islamic finance industry in Malaysia, as per the requirements of the BNM standards on various contracts in Islamic financial practice. The training was facilitated by IAIS Research Fellows Dr. Mohammad Mahbubi Ali and Mrs. Apnizan Abdullah. In addition, IAIS’s Founding CEO, Professor Mohammad Hashim Kamali, and Deputy CEO, Associate Professor Dr. Mohamed Azam Mohamed Adil, were also present in a special interactive session, where participants were given the chance to raise any issues related to Islamic finance, especially in the Malaysian context. Participants also engaged in a workshop in which deliberated on various operational issues and case studies rooted in their respective organisations and experiences. As part of the event’s ethos, which was geared towards an informative yet less stressful training session, participants were able to enjoy numerous side activities available on the cruise ship. The participants also disembarked twice to join a pre-arranged tour of Phuket, Thailand, and a free-and-easy time in Georgetown, Penang. It was an unforgettable moment for those participants who enrolled in such a unique training opportunity. As the ship berthed at Port Klang, marking the end of the programme, the encouragement and positive remarks we received from the participants indicates the necessity of repeating such training in the future.
ISLAM AND CIVILISATIONAL RENEWAL BOOK REVIEW
Ahmed M. Abohebeish - Introduction to Islamic Rules of Financial Accounting (Malaysia: A S Noordeen, xxxx), 244 pp ISBN: 978-983-065-347-1 by Rubaiyat Ahsan Bhuiyan, International Islamic University Malaysia (IIUM)
Introduction to Islamic Rules of Financial Accounting by Ahmed M. Abohebeish can be considered a recent addition to the growing literature on Islamic accounting. He taught accounting at many universities in USA and Middle East. He has more than 30 years of experience in the field of accounting in national and international corporations. The author has researched the subject matter for 25 years. Rather than using a common title such as ‘Islamic Accounting’, the author uses ‘Islamic Rules of Financial Accounting’. The author mentions that this book can be helpful for both Muslims and non-Muslims. Muslims will be able to know about this issue in the light of their own religion and non-Muslims can evaluate and criticise the Islamic theories. One important aspect of this book is that the author makes a comparative analysis of the Western practices and the Islamic rules of financial accounting. The book comprises eleven chapters. The first chapter introduces the content of the book, gives an overview of Islamic economics and provides an introduction to Islam. The discussion in this chapter may confuse the readers about the purpose of the book. While the title of the book suggests that it focuses on financial accounting, this introductory chapter talks largely on Islamic economics. In Chapter Two, the author describes the principles and methods of accounting. At the beginning of the chapter, the origin/historical development of accounting was presented. This description is incomplete as the development of formal accounting tools and techniques in Europe has been omitted by the author. Chapter Three focuses on equity maintenance. According to the author, this is the core of Islamic accounting. Throughout the chapter, the author explains the concept of riba (usury) extensively, substantiated by various fatawa, illustrations and some mathematical examples. In Chapter Four, the author measures changes in monetary purchasing power. There are two main issues highlighted in this chapter, namely (1) Historical
ICR 9.3 Produced and distributed by IAIS Malaysia 414 FORUM ON UNDERSTANDING THE JERUSALEM CONTENTION
Purchasing Power and (2) the use of price index. The author describes Islam’s emphasis on measurement through the value of gold and silver. Chapter Five focuses on creditors’ and owners’ equity maintenance. In this easy reading chapter, the author provides a comparison between the Islamic and the Western rules (especially the rules proposed by the Financial Accounting Standards Board (FASB)). The author explained some of these issues using simple mathematical examples. In Chapter Six, the author explains the issue of income determination and presentation by making a comparison between the Islamic and the Western rules. In this chapter, the author proposes a new format of income statements according to Islamic rules. However, this chapter fails to capture the realities of today’s business world as though it deals with ‘income’, it does not deal with the issue of earnings management. Chapter Seven of the book deals with Islamic rules pertaining to debt equity. Though the chapter title includes the words ‘accounting for debts receivable and payable’, the accounting treatments were totally ignored by the author in this chapter. In Chapter Eight, the author compares the American financial accounting rules with Islamic rules. This descriptive chapter mainly provides a theoretical idea about the similarities and dissimilarities of these rules. The author discusses financial reporting and disclosure in Chapter Nine. He emphasises that, according to Islam, all debts must be recorded. The recording of debts is the main emphasis of this chapter. The last two chapters of the book (Chapter Ten – ‘Management Controls’ and Chapter Eleven - ‘Continuing Education’) seem to come abruptly. However, the author mentions that these two chapters are not directly related to the ‘subject of financial accounting’ (p. 7). Though the book mostly emphasises Islamic rules, it ignores how these rules can be applied in the accounting discipline. The readers may get confused about the application of these rules as the discussions are too short, descriptive, and not in-depth. Thus, this book is not at all ‘practice-oriented’. Though the book describes several Islamic rules that can be applied in financial accounting, ignoring the application of these rules (with enough in-depth examples) makes this book as an ‘incomplete’ work. What’s more, the recent developments in International Financial Reporting Standards (IFRS) has been omitted in this book. It is surprising that the author did not mention the issues of harmonisation of accounting practices and the role of the IFRS in this harmonisation. The author argues that this book is mainly for the countries that desire to apply ‘Islamic economy’ in its ideal form (p. 19). However, in this globalised era, no economy can operate alone. This is one of the main reasons behind the initiation of several accounting harmonisation projects by international accounting bodies. The book encounters major problem
ISLAM AND CIVILISATIONAL RENEWAL BOOK REVIEW 415 in presenting statements and equations. Clear and understandable presentation of the statements and equations remain as the most important characteristic of any accounting book. This book failed to fulfil that requirement. However, one of the unique contribution of this book is to shed some light on the application of the International Accounting principles in Islamic countries. The author examines the present financial accounting practices prevailing in the USA, and then compares them with the Islamic rules. This book is also an endeavour to explore a number of perceived differences that may represent road blocks for implementing international accounting standards and practices in Muslim countries. As the book deals a lot with ethical issues, the author could have highlighted the issue of professional ethics of accountants in the light of Islamic teachings. The issue of professional ethics of accountants is getting immense importance these days mainly because of accounting scandals over the last decade. Religion as a source of ethical guidelines can play an important role in this case. The author can consider this issue in the future editions of this book. Though the author demanded that this book is a ‘research’, its structure resembles that of a textbook. However, even after these limitations, this book can be considered a contribution to the limited number of textbooks on Islamic accounting. Moreover, in some cases, the author raises some issues that can be considered as research agenda for future research on Islamic accounting. Though the book is not in-depth, it can be considered a primary reference to some Islamic rules that can be applied in financial accounting. But it cannot be regarded as the ‘main-text’ for any Islamic accounting course. Though the literature on Islamic accounting has seen immense growth over the last decade, there is a limited number of textbooks on this issue. From that ground, the effort of the author demands praise. It is expected that the author will go for more in-depth description of the issues in future editions and come up with more practical examples that can be implemented in this complex globalised business environment.
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ISLAM AND CIVILISATIONAL RENEWAL