Muslims, Islamic Law and Public Policy in the United States

THE THREAT OF DOUBLE-CONSCIOUSNESS

Two basic challenges confronting Muslims in America inform the present essay. The first has to do with the enterprise of self-definition, that is, of defining for oneself who one is and which actions and non-actions are therefore consistent with one’s choice of selfhood. The second has to do with the problem of self-determination, or how to gain the requisite control or influence over the social and political institutions that affect one’s life. These challenges are intimately connected to each other. They are also connected to the issue of Muslim participation in American society, socially and politically. This latter point is obvious in the case of self-determination. It becomes equally obvious, however, in the case of self-definition, once it is recognized that the real goal of any act of self-definition is both to affirm one’s subjectivity vis a vis the world around one and to gain public recognition for one’s subjectivity chosen self. Self-definition, in other words, is always and fundamentally a social cum political act; it is never a purely intellectual one.

From the outset, the enterprise of Muslim self-definition is complicated by the fact of the heterogeneous make-up of the Muslim community in America. American-born converts (the majority of whom are African-Americans) are a product of American history, as are their hopes, fears, fantasies and proper ambition. They are both repelled by the American experience, by virtue of their history as a marginalized minority, and attracted to it, by the virtue of their connection to a uniquely rich Afro-American historical and cultural tradition. Their search for a bona fide Muslim identity is still in its exploratory stage. To this point, however, the record of successive turns and turnabouts has proved one thing if nothing else: Whatever this Afro-American-Muslim identity turns out to be as a final product, if it is to be life-affirming as opposed to a paralyzing agent, it will have to embrace, however discriminately, rather than ignore the reality and history of African-Americans, just as effectively as it fortifies for them the boundaries between Islam and non-Islam.

Foreign-born Muslims, on the other hand, are the heirs of a much older tradition of Muslim identity formation. For them, a basic feature of self-definition is in fact the very preservation of the cultural tradition that has been handed down to them. To be sure, they too are engaged in a process of exploration, as they seek to determine which aspects of the received tradition are essential and which coincidental. But this is done with extreme caution and in the context of a conscious rejection of the proposition that their coming to America imposes upon them any obligation to assimilate. In fact, as one observer has recently noted, coming to America is now seen by many immigrants as the greatest ensurer of the right to remain themselves!

1. Thus, even as the notion of an “American-Islamic” identity gains acceptance among foreign-born Muslim (and especially their children), whatever this “American-Islamic” identity turns out to be, it will have to accommodate, and in part confirm, received tradition. It will not be accorded the authority to override or negate that tradition.

As these two groups of Muslims move closer, then, to their respective choices of Islamic identity in America, one wonders if they are not at the same time moving away from each other, seeing how vastly different the sources of their respective new identities are. Both groups are engaged, meanwhile, in a battle against what W.E.B. DuBois referred to as “double-consciousness,” i.e., the seemingly inescapable tendency to look at oneself through the eyes of some other, to “measure one’s soul by the tape of a world that looks on in amused contempt…” DuBois saw this phenomenon as contributing to the ineffectiveness (largely perceived as weakness) among blacks, because it foisted upon them a “contradiction of double aims”. The black craftsman, for example, had to struggle, on the one hand, to escape white contempt for being a mere draftsman, while, on the other hand, striving to turn his skills to the needs of his people. This, DuBois observed, could only result in making him a poor craftsman, because “he had but half a heart in either cause”. This double-consciousness and contradiction of double aims are an even greater threat to the Muslim, black, white or immigrant. For the simultaneous struggle against being a Muslim along with the struggle to be a Muslim necessarily reduces the amount of energy devoted to the latter. As such, the threat of double-consciousness has a direct bearing on the matter of salvation and how successfully Muslim can live a life that earn’s God’s pleasure in the Hereafter! Like George Orwell’s, “How many fingers am I holding up Winston?,” this kind of psychological pressure can turn even the clearest Qur’anic verses into matters of doubt and speculation and even the most basic religious obligations into matters of choice. What greater threat could there be to the Muslim and Islam in America?

We are brought, then, back to the issues of self-definition and self-determination in the most serious and meaningful sense. And given that both of these are always and necessarily socio-political activities, both foreign-born and American-born Muslims are equally confronted with the question of how they should seek to influence American social and political institutions to the end of gaining public recognition and respect for themselves as Muslims and contribute to the creation of a social reality that is free of double consciousness. Whether in concert with each other, or as distinct and separate movements, American-born and foreign-born Muslims will have to think about and develop approaches to this task.

MUSLIM IDENTITY BETWEEN CULTURE AND POLITICS

No serious discussion of the role to be played by Muslims in shaping or influencing social and political institutions in America can avoid the prior question of whether it is legitimate for Muslims to participate in the social and especially the political life of a non-Muslim polity. At the same time, I would like to warn against the all-too-common fallacy or perhaps the ruse – of over politicizing matters to the point that legislative politics (i.e., voting, nominating candidates, holding political office) emerge as the only or even the main means of affecting social and political life in America. For, legislative politics are neither the only nor in every instance the most effective means of influencing society. As such, we should be careful about how uncritically we surrender to the loaded, zero-sum proposition: Either get involved in legislative politics or forfeit the opportunity for self-definition, not to mention self-determination.

What is needed is a balanced approach in which the potential benefits, functional limitations and possible religious impediments to Muslim participation in American social and political life all receive their due. For some time now, however, the main trust of Muslim attention has been in the direction of legislative politics. Some have stressed the practical benefits of Muslims involvement. Both sides, however, seem to be fixated upon the same object: legislative politics. In the meantime, very little attention has been paid to the functional limitations of legislative politics, or to other possible means of effecting social and political change. This, I think, is a telling oversight that provides some useful insights into some of the inadequacies of Muslim though in the West, as well as some of the obsessions and biases that tend to limit the scope of its vision. Before entering, therefore, into the main issue of Islamic law and participation in American legislative politics, I should like to register a few points about the limitations of that enterprise, with the aim of excavating a few conceptual tools that might aid us in our thinking about the proper modality of political participation and its relationship to other means of effecting social and political change.

ON THE LIMITS OF LEGISLATIVE POLITICS

I begin with an insight borrowed from the Italian neo-Marxist, Antonio Gramsci (d.19-). Gramsci had witnessed the collapse of the American economic system during the Great Depression of 1929. He also observed that despite the economic ruin that came to many among the elite, there was virtually no change in the social cum political relations among America’s haves and have-nots. Whereas one would have expected the haves’ loss of wealth to reduce them – socially and politically – to the status of have-nots, in the end they lost virtually nothing of their status as premier citizens who both assumed and received the right to deferential treatment. On this observation, Gramsci developed his concept of “hegemony,” via which he concluded that it was not control over the means of material production that determined relations of power and authority in society but control over the means of producing and disseminating intellectual products, namely, ideas and images. It was the educational, cultural and religious institutions along with the media and entertainment industry, that held the keys to how people saw themselves and interacted with each other in society. And where there existed no challenge to the views and images created by these institutions, politics and economics would do little to change the status quo.

Gramsci’s theory goes a long way in establishing the fact that he attitudes and assumptions, the stereotypes and habits of deferential or contemptuous treatment, which form the basis of how people see themselves and interact with others in society are far more the product of how effectively ideas and images are manipulated through cultural and educational institutions then they are the product of pure politics or economics. One of the most glaring confirmations of this can be gleaned from developments in the United States during the 1960s, when black cultural figures like Muhammad Ali (I am the greatest!) and the singer James Brown (Say it loud; I’m black and I’m proud!) succeeded in altering the language and categories through which white supremacy had sustained its status as normal. By smashing the boundaries between the imaginable and unimaginable, between the valued and the valueless, their contributions to the American cultural landscape paved the way for blackness to take on meanings and to occupy psychological spaces therefore unknown to it. Legislative politics would in turn confirm this transformation in the 1970s with the unprecedented proliferation of black elected officials and other beneficiaries of such government initiatives as Title and Affirmative Action.

Even the more overtly political successes of figures like Martin Luther King Jr. were ultimately indebted to developments outside the realm of legislative politics. The touch-stone of King’s genius lay in his success at developing what Hobbes referred to as a political “trump-card,” i.e., a legally sanctioned activity outside of legislative politics via which concessions can be forced from a government. Trumps operate outside the realm of legislative politics precisely because governmental systems are not in the business of legislating themselves out of existence. As such as long as one works within the system, change is almost always slow, almost never radical, and usually perceived as necessary to the health and survival of the system. “Dissidents,” meanwhile, who wish to bring about more fundamental change must recognize and act in accordance with one basic rule: Where there is no recognized political trump-card, clubs become trumps, and the government assumes the right to put down dissent through violence. Martin Luther King Jr. located his trump card in the ability to subject the government to public shame and embarrassment. The daily images, televised and printed, of police-dogs, billy clubs and hoses turned against peaceful, unarmed blacks literally embarrassed the United State government into instituting change.

But the secret behind King’s success actually runs much deeper than this. For, shame is not a sensibility into which the sponsors of unjust social and political orders are easily coerced. How was it, in other words that actions and attitudes that had for centuries been accepted as part of the “normal” operation of the regime of white supremacy suddenly came to constitute a public embarrassment? It is here, in this new attitude toward the meaning of blackness and, concomitantly, toward the unjust treatment of blacks that we come to appreciate the aforementioned role of such cultural figures as Mohammed Ali and James Brown.

If the aim of any would-be Muslim participation in U.S. legislative politics is to promote a dignified existence for Muslims in America, to contribute to the fight against the plague of double-consciousness – not to indulge inflated egos or to feign inclusion in the American melting pot – the parallel necessity of effecting cultural change in America, i.e., of changing the language and categories of thought and common experience, of developing and effectively using a Muslim trump-card, must certainly be accorded at least equal importance. For the effectiveness of the former depends fundamentally on success in the latter. And it is here, to my mind, in the cultural realm, that Muslims face the greater challenge. For it is here, more than any place else, that essentialism and the politics of identity among Muslims (American born and immigrants) tend to obliterate the distinction between the successful indigenization of Islam or the successful appropriation of aspects of American culture – as positive achievements, and assimilation into the ways of the slavemaster/colonizer, as a proscribed capitulation to Stephen Carter’s “culture of unbelief”. And as long as this remains the case, there will be no unleashing of the kind of God-given talent and cultural imagination that will enable Muslims to engage in the kind of cultural production that is not doomed to be marginalized and treated as a spectacle. In a real sense, the future of Islam in America will depend not on whether Muslims can arrive at an understanding of scripture and tradition that allows for home-mortgages or inheritance between Muslims and non-Muslims, but on whether that understanding will liberate the Muslim cultural imagination and allow it come into its own, here in America For the fact is – and every honest Muslim knows it – that one can live with a lot of broken rules of shari’ah. But what repentance can there be from a broken soul or psyche? And how can the latter be avoided if the world outside the masjid reflect nothing of the Muslim’s thoughts and creative spirit? If Muslims are to establish a real existence here in America, one that will enable them not only to consume but to shape American reality, the Muslim cultural imagination will have to be liberated. Once this is done, Muslims will be able to move beyond the relatively safe arena of sports (Hakeem Olajuwan, and until recently, Mahmud ‘Abd al-Ra’uf, etc.) into those of literature, poetry music, fashion design, comedy, interior decorating, etc., just as has existed throughout Islamic history, and just as exists in virtually every Muslim country in the world!

All of this has serious implications, of course, for such questions as “Muslim identity,” “Islamic culture,” and the legitimacy of Muslim involvement in American society as a whole. This may explain why such issues as cultural production have received such scant and inadequate attention to date. It may be that the growing consensus among Muslims on the necessity of participating in legislative politics is in the end a cop-out, a safe haven into we have begun our retreat from the more difficult task of penetrating, appropriating and redirecting American culture. Muslims may enjoy the initial warm feeling that goes along with this; but it may not be long before this cools and we are forced to acknowledge that we wet our pants! For, even the most successful incursions into American law and politics will not change the reality of what it means to be a veiled woman (or girl!) in America. And who can deny that blacks in America did more to change their reality during the 1960s, when the doors to legislative politics were virtually closed to them, than they have in the subsequent era of black political empowerment?

MUSLIMS AND AMERICAN LEGISLATIVE POLITICS

The foregoing should be understood, however, only as an attempt to point out some of the limitations of legislative politics, to insist that there is a dialectical, give-and-take relationship between culture and self-determination, that power (or politics) contributes to but does not determine the shape of society. At the same time, there are laws and policies in this country that have a real or potentially devastating effect on Muslims, practically and religiously. One need only consider, e.g., the RICO act, or the new Anti-Terrorism bill, or banking regulations, or divorce and inheritance laws; or one could look at such policies as the Immigration and Naturalization Service’s use of “secret evidence” against alien Muslims, or Child Protective Services’ discriminatory intervention into Muslim family life. No amount of isolation will place Muslims beyond the reach of these laws and policies. And it is only through the medium of legislative politics that laws and policies are made and unmade. On practical grounds, then, there would seem to be no question about whether Muslims should get involved in legislative politics. The question, however, is whether such involvement can be legitimized on the basic of shari’ah.

ISLAM AND AMERICAN LEGISLATIVE POLITICS

The question of the legitimacy of Muslim involvement in American legislative politics raises two important prior question. The first is whether or nor Muslims are permitted to live in a non-Muslim land. For, if it is not permissible for Muslims to live in a non-Muslim polity, it is a fortiori, not permissible for them to participate in its political system. The second question arises out of the assumption of a positive answer to the first. If it is permissible for Muslims to reside in a non-Muslim polity, what are the conditions and circumstances that warrant such a permission? What, if any, are the Muslims’ obligations towards effecting self-determination once they have decided to live in a non-Muslim land? These two questions enjoy a rich and lively pedigree among pre-modern-and even modern-jurists. Some of them have insisted that it is not permissible for Muslims to live in a non-Muslim land, that is not permissible for Muslims even to travel to non-Muslim lands, and that it is incumbent upon those who convert to Islam in a non-Muslim land to migrate to the lands of Islam. Others have had taken a more lenient approach, concluding that, depending on circumstances, it may not only be permissible to migrate to a non-Muslim country, it may even be forbidden to leave it! Between these two poles there is a lot of detail, much of which underscores the role played by history and experience – above and beyond interpretations of scripture – in informing the conclusions of the various schools and individuals. One thing, however, seems to emerge clearly from all of this: No school and no jurist has ever held (to my knowledge) that is permissible for Muslims to reside in a non-Muslim land and remain completely passive, doing nothing to promote the safety and welfare of the Muslims and the dignity of Islam! This amounts, in effect, to what some jurists have construed to be a type of consensus (ijma) to the effect that if Muslims do decide to take up residence in a non-Muslim land they must, as a community (ala wajh al-kifayah), do everything that would appear necessary to ensure the safety and welfare of the Muslims and, above all, the dignity of Islam. This may or may not include participation in legislative politics. But once the permissibility of Muslim residing in a non-Muslim territory is conceded, as a matter of shari’a-law, as is the obligation upon those Muslims to act in a manner appropriate to their circumstances, the question of the propriety of their involvement in legislative politics becomes a question of fact that is subject to the discretionary judgments of Muslim individuals and groups. It cannot be treated as a question of law that is subject to a permanently binding assessment of wajib (obligatory) or haram (forbidden). This is a crucial point that is often confused in the minds of many. And since an adequate assessment of the positions taken in traditional Islamic law depends on a fair understanding of this distinction, I shall take a moment here to digress for clarification.

THE LAW-FACT DICHOTOMY IN ISLAMIC JURISPRUDENCE

In a number of his jurisprudential works, the great Maliki jurist, Shihab al-Din al-Qarafi (d.684/1285) takes up the issue of the distinction between jurisdiction of law and jurisdiction of fact. Basically speaking, jurisdiction of law is the authority to interpret the meaning of scripture (including hadith). Jurisdiction of fact, on the other hand, is the authority to determine the existence of facts. Now, it is obvious that say, a medical doctor’s authority to speak on the existence of certain diseases does not render him an authority when it comes to interpreting scripture. What is equally true, however – and this was al-Qarafi’s point – is that a jurist’s mastery of scripture does not render him an authority when it comes to the determination of facts. According to al-Qarafi:

There is a difference between Malik’s statement, Engaging in homosexual relations necessitates stoning, and his statement, “So and so committed a homosexual act.” We may follow him in the first statement but not in the second. Rather, this second statement falls into the category of testimony (shahadah). If three other upright witnesses testify along with Malik, the ruling is established; if not, it is not. And in this regard, the testimony of any other upright witness would be absolutely equal to that of Malik. His status as a mujtahid would be of absolutely no consequences in this regard. Nor would the status of any of the other mujtahids.

When it comes, in other words, to questions of fact, i.e., Did X occur? Or Does X exist?, the views of a jurist are not authoritative and should not be treated as such. Al-Qarafi indicates that many errors had been committed as a result of overlooking this distinction. As an example, he holds up the position upheld in the Maliki school on the status of public lands and utilities in Egypt following the coming of the Muslims.

According to Malik, agricultural lands and public works of territories conquered by force are public trusts (waqf) for the general benefit of the community. As such, they are exempt from private ownership. It was also Malik’s view that Egypt had been conquered by force. Based on these two views, Maliki jurists in al-Qarafi’s day upheld the ban on privately owning public utilities in Egypt. Now, according to al-Qarafi, it was proper (though not obligatory) to accept Malik’s opinion regarding the status of lands conquered by force. For this was a legal interpretation, based on Malik’s reading of scripture. But it was wholly improper for Maliki jurists to accept as authoritative Malik’s opinion to the effect that Egypt (or any other territory) had been conquered by force. For, this was a question of fact of which a followers of Malik (or any historian) might have greater knowledge than Malik. The position of al-Qarafi’s contemporary Maliki jurists on this question was thus neither correct nor permissible to follow.

If a jurist, then, states that such and such is permissible or impermissible because of the existence of this or that fact, it remains the right – indeed the responsibility – of individuals to ascertain for themselves (or through other qualified determiners of specific facts), whether or not the jurist’s pronouncement of permissibility or impermissibility applies to the matter at hand. This may or may not lead to consensus within a community. But the fact remains that when it comes to observable facts, every individual Muslim is his or her own authority.

THE DISCUSSION AMONG THE SCHOOL OF LAW

We may turn now to the legal discussion among the Sunni schools of law on the permissibility of Muslims residing in non-Muslim lands. Of the four schools of law, the Maliki school is by far the strictest and least compromising on this question. We might begin, therefore, with the Maliki school, since any concessions or insights gained from them may be justifiably assumed to apply to the others.

The Maliki tradition on Muslim residence in non-Muslim territory goes all the way back to Malik himself (d.179/769). In the Mudawwanah, Suhnun (d.240/854) asks the long-time disciple of Malik, Ibn al-Qasim (d.190/805) if Malik disapproved of merchants travelling to non-Muslim territory for the purpose of conducting business. Ibn al-Qasim responds, “Yes, he strongly disapproved of this. And he used to say, “They should not go to their lands where they will become subject to the laws of polytheism (ahkam al-shirk)”. Subsequent Maliki scholars confirm this position, and the basic prohibition on Muslims residing in non-Muslim territory is sustained in the Maliki school for over a millennium, right down into modern times. The great Spanish authority, Ibn Rushd (the grandfather) (d.520/1122) for example, insisted that not only was it forbidden for Muslims to travel to non-Muslim territories, but that anyone who converted to Islam in a non-Muslim land had to leave and migrate to a Muslim polity. Such a danger did Ibn Rushd consider Muslim residence in non-Muslim lands that he proposed that check-points be built on land and sea to prevent Muslims from leaving the lands of Islam for non-Muslim territories. These sentiments are repeated several centuries later in the fatwas of the great North African jurist, Ahmed b. Yahya al-Wansharishi (d.914/ 1508). Writing after the fall of Granada in 1492 C.E., al-Wansharishi rejects, time and again, what would seem to be even the most plausible excuses and insists categorically that the Muslims must leave Spain for Muslim-controlled territory. At one point, for example, al-Wansharisi is asked about a Muslim-controlled territory. At one point, for example, al-Wansharisi is asked about a Muslim who stayed behind in Spain and acted as an intermediary between the Christian authorities and the Muslim community, often gaining for the latter concessions that they would otherwise not have enjoyed. Al-Wansharishi rejects this as a justification and insists that this man, and all other Muslim residents of Spain, must migrate, regardless of whatever material losses they might suffer.

The great Nigerian Maliki jurist and reformer, Shaykhu Uthman b. Fudi (d. 1233 /1817) eloquently laid out his position on the matter in a well-known book entitled Kitab bayan wujub al-hijrah ala al-ibad wa bayan wujub nasb al-imam wa iqamat al-jihad, i.e., Clarifying the Obligation Upon the Muslims to Migrate (from the lands of unbelief) and to Install an Imam and to Prosecute the Jihad. Here shaykhu, citing several other Maliki authorities to authenticate his stance, insists emphatically that it is absolutely forbidden for Muslims to reside in non-Muslim territory. He states, in fact, that this is a point of consensus (ijma) on which no two scholars disagree. All the way down through shaykh Muhammad Ulaysh, who died in 1299/1882-, this uncompromising Maliki position is repeated with astonishing fidelity.

Again, the basic reason underlying this position was the fact that residing in non-Muslim territory would subject Muslims to the laws of the polytheist unbelievers (ahkam al-shirk, ahkam al-mushrikin). It is important, however, to understand exactly what this implied for these jurists. Falling under “the laws of the polytheist unbelievers” was not simply a matter of Muslims being subject to engaging in activities forbidden by Islam, e.g., certain criminal laws or certain commercial transactions, while at the same time enjoying the right to maintain their faith and their basic religious institutions. Rather, “the laws of the polytheist unbelievers” was a much broader construct that assumed, first and foremost, the precariousness if not impossibility of remaining Muslims.

This is clearly born out by the position of none other than the above cited Ibn Rushd, who argues, for example, that it is permissible for Muslims to deal in riba with non-Muslims in a non-Muslim territory. Such an activity, in other words, though normally forbidden, would not constitute a violation of Islamic law for Muslims in a non-Muslim land. Thus, this could clearly not have been the object of Ibn Rushd’s fear. Similarly, in the staunch shaykhu Uthman b. Fudi, there is a clear sense that syncretism, or the mixing between Islamic and pagan beliefs and customs, was feared to be the inevitable result of African Muslims residing in non-Muslim African lands. This was apparently based on what shaykhu understood to be a cultural-political reality, namely, that where African Muslims lived under non-Muslim African rulers they generally followed the latter’s cultural-religious ways and customs. For this reason, even lands where the overwhelming majority was Muslim, were not considered by shaykhu Uthman to be Muslim lands, if the rulers were not Muslims. Nor were lands, however, where the rulers were Muslims if the majority of the population was not. For in this case, it was feared that the Muslims would be overwhelmed by popular pagan culture. Thus, for shaykhu Uthman, only in lands where both the overwhelming majority and the rulers were Muslims was it permissible for Muslims to reside.

Turning to al-Wansharisi, here again there are clear signs that his thinking was informed not simply by fear of the imposition of un-Islamic laws on Muslims but by fear of the humiliation and possible forced apostacy that the Muslims might suffer at the hands of Christians. In one of his fatwas, for example, in which he insisted that all Muslims must leave Spain following the Christian take-over, al-Wansharishi lays down the following list of reasons:

1) that the word of Islam and the testimony of truth (kalimat al-islam wa shahadat al-haqq) would not be honored and respected but humiliated and debased;
2) that the prayer (salah) would not be openly displayed but would be subject to humiliation, being scoffed at and made fun of, which could lead to its abandonment;
3) that the zakah would be nullified, since there would be no Imam to collect it;
4) that the fast of Ramadhan would be subject to nullification, since there would be no Imam to oversee and validate its beginning and end;
5) that the hajj would be rendered defunct, since it would fall outside the capability of the Muslims (li adam istita atihim);
6) that the Muslims would suffer contempt and humiliation, while the Prophet (alayhi’s-salam) has said, “The Muslim should not subject himself to humiliation”;
7) that the Muslims would suffer ridicule of a type and magnitude that no self-respecting person would needlessly tolerate;
8) that the honor and integrity of the Muslims, and may be their person and property, would be jeopardized; 9) that the Muslims would be constantly exposed to all manners of vice, impurities (najasat) and religiously questionable foods.

Clearly, for scholars like Ibn Rushd, shaykhu Uthman, and al-Wansharisi, a world in which Muslims could live under non-Muslim rule and not be subject to official (and non-official) pressure to renounce their faith, or where the cultural affinities between the Muslims and non-Muslims did not threaten to blur the boundary between Islam and non-Islam was part of the unimaginable. Their thinking, however, was perfectly consistent with the reality of their time and place. Thus, rather than being criticized or scoffed at for being “rigid,” or “reactionary,” or “conservative,” these scholars should be commended for being the realists that they were. Having said this much, however, rather than uncritically accepting and applying their views to present circumstances, these views should be examined in light of the above-cited distinction between law and fact.

The views of these scholars was clearly informed, if not dictated, by what they understood to be the customs and habits obtaining in non-Muslim lands in their time. This, however, is clearly a question of fact, and the only question that remains is whether contemporary Muslims should themselves to the views of these men, even if they differ with the latter in their assessment of these facts. The answer to this question is provided, once again, by the Maliki jurist, Shihab al-Din al-Qarafi. At one point, al-Qarafi is asked:

What is the correct view concerning those rulings found in the madhhab of al-Shafi, Malik and the rest, which have been deduced on the basis of habits and customs prevailing at the time these scholars reached these conclusions? When these customs change and the practice comes to indicate the opposite of what it used to, are the fatwas recorded in the manuals of the jurisconsults rendered thereby defunct, it becoming incumbent to issue fatwas based on the new custom? Or is it to be said, we are muqallids (lay followers). It is thus not our place to issue new rulings, as we lack the qualifications to perform ijtihad (independent interpretation). We issue, therefore, fatwas according to what we find in the books handed down on the authority of the mujtahids ?

Al-Qarafi’s response is both clear and pointed.

Holding to rulings that have been deduced on the basis of custom, even after this custom has changed, is a violation of consensus (ijma) and an open display of ignorance of the religion.

To acknowledge, then, that America, or any other country for that matter, is a place where Muslims enjoy constitutionally guaranteed rights to freedom of religion, protection of life and property and the opportunity to contribute to the shape of American society does not at all involve a challenge to the integrity of these Maliki jurists as jurists. At the same time, once the right of contemporary Muslims to assess their own reality is acknowledged, the application of these pre-modern Maliki views to the question of Muslims residing in modern America can be seen to be a misappropriation of an otherwise valid tradition.

Turning to the views of the remaining schools, we find a different situation. While Maliki-dominated territories had suffered great losses at the hands of pagans and Christians, two of the greatest Muslim communities in history, Spain and Sicily, being irretrievably lost to Christian conquerors, this differed from the situation in the East, where the Shafi and especially the Hanafi schools dominated. It is true that the Eastern lands of Islam also suffered losses at the hands of both the Mongols and the Crusaders. But in both cases, these lands were subsequently returned to Islam, through voluntary conversion in the case of the Mongols, through military re-conquest in the case of the Crusaders. During the interim, however, between the time these Eastern lands were lost to these non-Muslim conquerors and the time they were returned to Muslim control, Muslims lived, as a simple matter of fact, under non-Muslim rule, including a three-year period during which there was no caliph! This did not lead, however, to any sustained syncretism or to any mass exit from Islam, and it seems that this informed the perspective of the Shafi, Hanfi and Hanbal jurists, just as the historical reality in the West (al-maghrib) informed that of the Malikis.

Generally speaking, for the Shafi’s, Hanafi’s and Hanbali’s, the operative issue is whether Muslims living in a non-Muslim polity are safe and enjoy enough freedom to practice the rudiments of their religion. Such Muslims should seek to conduct their affairs in such a way that they do not contribute to the military strength of their host-country, such that other Muslims would suffer at the latters’ hands. But, unlike the Malikis, these three schools do not begin with the premise that it is not permissible under any circumstances for Muslims to reside in non-Muslim territory and that it is incumbent upon those who convert to Islam while in a non-Muslim country to migrate to a Muslim land. Hanafi jurists, for example, appear to be generally unopposed to Muslims residing in non-Muslim lands, assuming that Muslims are able to establish congregational prayers there, especially Jumu’ah and Id, fast Ramadhan, and they can work to procure the appointment of Muslim governors to oversee their affairs.

The Hanabali’s by and large hold a position similar to that of the Hanafis. Shafi’i jurists, meanwhile, take matters a step further, as is demonstrated in the position of the great Shams al-Din al-Ramli (d.1004/1596), also known as “Little al-Shafi’i. At one point, al-Ramli is asked about a community of Muslims residing under a Christian king who exacted taxes from them but allowed them to practice their religion, i.e., to build mosques, hold Friday prayer, fast Ramadhan, and generally apply the laws of Islam. Al-Ramli’s questioner indicates that although this was the situation at present, there were no guarantees that this would last and that the Muslims would not subsequently come under the jurisdiction of Christian laws or pressure to apostacize. Al-Ramli’s answer is that not only is it not incumbent upon these Muslims to migrate but in fact it is forbidden for them to do so, because in leaving this territory it was less likely to be guided to Islam.

In sum, the majority (i.e., three of the four schools) hold it to be permissible for Muslims to live in non-Muslim territories. This license was conditioned, however, albeit implicitly, by the assumption that these Muslims would be in a position to promote and protect their interests and that they would in fact do just that. Even among the Maliki’s there are signs that where this was understood to be the case, the general prohibition might be relaxed. The real issue, then, was the concrete situation of the Muslims on the ground, a situation for which the Muslims-not the non-Muslim-must assume responsibility. On this understanding, it would seem to me that there are only two tenable positions on the matter of Muslims residing in America: Either the Muslims are obligated to migrate; or they must actively pursue the welfare and dignity of Islam and the Muslim. Inaction – even inaction that hides behind rhetoric or dogmatic and uncritical appropriations of tradition – is not a justifiable choice.

MUSLIMS AND THE U.S. CONSTITUTION

The issue of the active pursuit of Muslim interests brings us finally to the question of Muslims and the U.S. Constitution, since, obviously, the constitution provides the legal framework within which any such activity will have to operate. This is a huge topic, which no single essay could hope to do full justice. In the space remaining, however, I would like to direct a few remarks towards two aspects of the relationship between Muslims and the constitution. The first of these is the Muslim attitude toward accepting the provisions and advantages afforded by the Constitution. The second concerns the challenge that operating within this constitutional framework poses for Muslims.

The First Amendment of the U.S. Constitution guarantees the freedom of religion. Muslims, however, are often hesitant, if not hostile, toward accepting or acknowledging the validity of this provision. This is because such acceptance and acknowledgment raises in the minds of many Muslims the question of sovereignty and authority, what Sayyid Qutb often referred to as al-hakimiyah. If part of the meaning of the shahadah is that God and God alone has the authority to confer rights and impose obligations, then certainly a man-made constitution that does not derive its authority from God must be illegitimate, as a violation of God’s rightful monopoly on authority. By the same token, any Muslim who recognizes the validity of such a constitution is guilty of attributing legal authority and sovereignty to someone other than God. To be sure, there is a certain forcefulness to this logic that renders it difficult at times to resist, at least at face-value. Closer examination, however, suggests that while this might apply to Muslims who arrogate to themselves the right to rule independent of god, this is by no means the only or even most plausible construction to be put on the relationship between Muslims and the U.S. Constitution.

To begin with, the U.S. constitution was the result of an agreement among a group of non-Muslims about how to distribute political rights and power within a non-Muslim polity. Not being Muslims, it was only natural that this agreement not be based on Islamic law. To recognize this fact, and concomitantly the validity of such an agreement, is not necessarily a recognition of the right to ignore or flaunt God’s law. Rather, it is more akin to the jurists’ recognition of the validity of a formerly Christian or Jewish couple’s Christian or Jewish marriage even after the couple has embraced Islam.

Obviously, this marriage did not take place in accordance with Islamic law; in fact, it may have explicitly violated specific rules of shari’ah e.g., by not having witnesses present or including a bride-price consisting of some Islamically banned commodity, such as wine or pork. Still, the marriage of this couple is recognized by Muslim jurists as a valid marriage, both in the event that the couple remains Jews or Christian, and if they convert to Islam. Or, take the issue of buying from and selling to non-Muslims. Obviously, this entails a recognition of the property rights of these non-Muslims, since both of these transactions assumes a legal transfer of property. This obtains despite the fact that this right could not have acc to these non-Muslims on the basis of their recognition of any divine authority. And if they do not recognize God’s authority, how is it that such rights accrue to them? Yet, when, shortly following the fall of Mecca, the Prophet (alayhi’s-salam) asked Safwan b. Umayyah if he could borrow some tools and weapons and Safwan asked whether the Prophet was in fact borrowing these things or simply taking them, the Prophet (alayhi’s-salam) responded that he was borrowing them. In other words, the Prophet acknowledged Safwan’s right over his belongings. Of course, it could be argued that what is really going on here is that this right is effectively being established by God’s command to the Prophet not to confiscate the Meccans’ property. But if this is so, then recognition of these non-Muslims’ right can in no way be seen to constitute an affront to God’s monopoly as Right-Giver.

The Qur’an and Sunnah are full of exhortions to the Muslims to honor treaties and agreements brokered by non-Muslims. Again, however, this implies a tacit acknowledgment of the legitimacy of non-Muslims as bargaining parties. In other words, were it not legitimate for non-Muslims to broker agreements (since such agreements are neither derived from divine authority nor likely to be based on the law of Islam) it would not be legitimate, a fortiori, for Muslims to honor these very agreements. Yet, we find that even agreements to which the non-Muslims attached stipulations that appeared to curtail or infringe upon certain rights of the Muslims, as occurred, for example, in the Treaty of Hudaybiyah, where Quraysh stipulated that Muslims who leave Mecca to join the Prophet (alayhi’s-salam) at Medina must be sent back to Mecca, were honored and recognized by the Prophet as legally binding. Clearly, however, none of this in any way implied any acceptance – as a matter of conscience – of the right of non-Muslims to challenge or violate God’s rightful monopoly as Law-Giver.

All of this is reminiscent of a very rich discussion in classical Islamic jurisprudence over the question of whether non-Muslims are responsible for the concrete rules (furu)- as opposed to the basic principles (usul), such as tawhid, the prophethood of Muhammad, belief in the Hereafter, etc. – of Islam. The well-known position of the Hanfi school was that they were not.

This was also the view of the Shafi’i, Fakhr al-Din al-Razi and, with some important qualifications, the Maliki, Shihab al-din al-Qarafi. On this view, contracts, property rights, etc. that non-Muslims enjoyed over each other (or with Muslims in a non-Muslim territory) were accorded full legal validity, even if they had not been carried out in accordance with the stipulations of Islamic law. Yet, none of this implied the belief on the part of these jurists that these instruments were religiously valid, and that by recognizing their legal validity, they were somehow attributing to someone other than God the right to confer legal rights in any ultimate sense.

It would seem, then, to be problematic, at the very least, to insist that Muslim recognition of the validity of the U.S. Constitution implies a violation on their part of God’s rightful monopoly as Law Giver. How can a decision among non-Muslims to confer certain advantages upon Muslims be said to amount to an act of shirk? The U.S. Constitution defines the parameters of a non-Muslim state, not a Muslim state. How can Muslims be shouldered with the responsibility for these parameters? If in the future America becomes a predominantly Muslim country (politically or numerically) then Muslims will be responsible for ensuring that its legal and political order are consistent with the dictates of Islam. In the meantime, this becomes a questionable demand at best. The kind of confusion that has been generated over this issue is, I think, another example of what happens when Muslims in the West blindly import views and ideologies from the modern Muslim world.

A more profitable approach for Muslims would be to look at the opportunities the Constitution affords them to promote their interests as Muslims and to take full advantage of those opportunities. According to the Constitution, the U.S. government cannot force a Muslim to renounce his or her faith; it cannot deny him or her the right to pray, or fast, or perform the pilgrimage; it cannot force him or her to eat pork, shave his beard or remove her hijab; it cannot deny Muslims the right to build mosques or to hold public office; it cannot deny them the right to criticize government officials and policies, including the person and the policies of the president. The U.S. government cannot even force a Muslim to pledge allegiance to the United State! Surely it must be worth the Muslims’ time and energy to ask if these (and many other) rights and opportunities should be squandered in the name of dogmatic minutae and uncritical readings of Islamic law and history, rather than turned to the benefit and welfare of Islam and the Muslims.

MUSLIMS, ISLAMIC LAW AND THE SEPARATION OF CHURCH AND STATE

The U.S. Constitution does, however, pose at least one challenge to Muslims, namely, in its insistence on the separation between religion and state. Many Muslims understand this to mean that Islamic law (or Jewish or Christian law for that matter) is, as a permanent constitutional provision, disqualified form becoming the basis of law and or public policy. Could therefore never become the law of the land. This, in their view, renders the Constitution unacceptable from their perspective as Muslims.

My understanding, however, of the so-called separation between church and state is somewhat different. On my understanding, the real challenge resides not so much in the Constitutional ban on admitting religious values and rules into the public domain but in the inability or unwillingness on the part of Muslims to articulate Islamic law in terms that show its benefit and utility to American society. The doctrine of separation between church and state in American Constitutional discourse does not means that religion can play no role in public policy, or even that religious rules cannot be applied as law. What it means is that religious rules cannot be applied simply because someone’s religion says they should. Law, in other words, is conceived of as a being both secular (i.e., this-worldly) and a public trust. As such, only those laws that prove serviceable to the public here and now can qualify as law. In other words, the doctrine of separation between church and state might be likened in many ways, to use the language of Muslim jurists, to a ban on treating mu’amalat (matters of public utility and civil transactions) as if they were ibadat (matters of religious observances).

In Islamic law, there is a basic distinction between mu’amalat and ibadat. Ibadat are generally identified as those rules through whose application the primary benefit (maslahah) accrues to humans in the Hereafter, not in this world. These would include such things as prayer, fasting, pilgrimage, and the like. Mu’amalat, on the other hand, consist of those rules through whose application humans enjoy some benefit in the here-and-now, in addition to the reward they receive in the Hereafter for complying with God’s command. These would include such rules as those governing sales, contracts, theft, drinking, divorce, etc. It is precisely because the worldly benefits contained in these rules are apprehensible by human reason that the Law can be extended to cover cases not explicitly addressed by scripture. This is done through the use of analogy, or qiyas, a basic application of qiyas would run something like the following. Drinking wine is forbidden; the reason (known in Arabic as the illah) for this is that drinking wine corrupts one’s faculties for reasoning; by extending the prohibition on drinking wine to any substance that contains the illah of corrupting one’s mind, a substance like crack-cocaine can be adjudged forbidden, even though it was not around at the time of revelation. Obviously, the key to all of this is the ability to analyze the rules of shari’ah in order to be able to penetrate the reason or illah underlying them. For without this illah, there can be no analogy, and numerous social and other problems would go unaddressed.

Now, all of the four Sunni schools of Islamic law recognize analogy as a valid mechanism for deducing the law. In addition, they all recognize that virtually all of the rules of mu’amalat contain illahs or reasons that can be known to man. Moreover, there is a general recognition of the idea that all of the mu’amalat are legislated for the purpose of promoting the worldly welfare and happiness (masalih) of man. It is because of this that Muslim jurists are able to debate the application, modification, suspension, etc. of rules of mu’amalat depending on whether or not the purpose, or illah, for which they were legislated is likely to be served. It was on this basis, for example, that Ibn Taymiyah once reportedly stopped one of his disciples from interrupting a group of Mongol Muslims who were drinking wine. Ibn Taymiyah’s explanation was that the ban on wines was issued because intoxication turns people away from prayer and from the remembrance of God. But when these Mongols drink, it turns them away from looting, rape and murder.

It is precisely through this ability to penetrate and articulate the rules of Islamic law in ways that clearly define their benefit and utility to society at large that Muslims are likely to be able to influence the legal order in America. And it should be understood that once this is done, there are no Constitutional impediments to having these laws applied in the public domain. Muslims must be vocal and confident in articulating the public utility underlying the rules on things like riba, adultery, theft, drinking, contracts, pre-marital sex, child-custody and even polygyny. This should all be done, however, in the context of an open acceptance of American custom (urf) as a legally valid source in areas where the shari’ah admits the reliance upon custom. Muslim Americans to take them. And they should be willing to recognize areas of common interest and concern.

This much said, it would be foolish to deny that the prospects for American acceptance of such institutions as stoning, or flogging or amputation are virtually nil, at least for the foreseeable future. Here, however, two things, I think, should be born in mind. The first is that the specific punishments for criminal offenses in Islamic law are precisely the ibadah aspects of these rules. In other words, while many other forms of punishment (e.g., jailing, fines, public announcement) could have served the purpose of deterring from these acts, God chose these specific punishments. Since, however, there is no necessary or exclusive relationship between these punishments and deterrence, these punishment are assigned a status akin to that of ritual acts of worship. This “ritualistic” aspect is captured in the jurists’ common reference to these punishments as “right of God (huquq Allah)”.

Meanwhile, the primary maslahah, or worldly aim, behind these rules remains the avoidance of the harm and evil contained in the forbidden acts. Now, where there is a conflict between these two aspects of these rules, jurists differed over whether or not the rights of man (e.g., protection of property) should take precedence over the rights of God (e.g., amputation of the hand). Many, if not most, gave precedence to the rights of man. Al-Wansharisi, for example, stated openly that if a Muslim has a choice between living in a land where there is injustice while the rights of God are observed, the Muslim should choose the land where there is justice. In other words, if it is not possible to ensure the rights of God, this should lead Muslims to give up on trying to ensure the Islamically sanctioned rights of man.

The second thing to keep in mind is that notions of what is cruel and unusual, of what is barbaric, of what is draconian (which is the real basis upon which America rejects these punishments) are a function of culture, not law. It is only through changes in American culture that American attitudes towards such things are likely to change. Thus, in the end, as in the beginning, we are brought face to face with the inextricable connection between American culture and Muslim self-determination. May God grant us the courage and the vision to rise to the task before us.

End Notes

1. See S.P. Huntington, “The Erosion of American Identity,” Foreign Affairs, vol 76 no. 5 Sept. – Oct. (1997) : 33.

2. See W.E.B. Dubois, The Souls of Black Folks, 8th ed. (Greenwich, Conn.: Fawcett Publications, 1969), 17.

3. Souls, 17.

4. Souls, 17.

5. In George Orwell’s classic novel, 1984, there is a scene where the state wants to be assured that the protagonist, Winston, sees reality in whatever way it interprets it. To this end, Winston is placed in a “pain-chair,” and an official holds up three fingers. Then, Winston is asked, “How many fingers am I holding up, Winston?” When Winston responds, “three,” the official tweaks up the dial on the pain-chair and asks the question again. This continues until Winston finally sees four fingers.

6. Ron Borges, a white writer for the Boston Globe, wrote back in 1996. “My father, who is eighty years old now, isn’t the most liberal person in the world. He was a construction worker for most of his life and never liked people who talked a lot. But when Ali was willing to go to jail for his beliefs, that got my father’s attention. He told me, You know, I don’t agree with what this guy is doing, but he’s alright. You get very few chances to be a man in life, and this guy takes advantage of them. And I’ll tell you something else. My father voted for (the then racist, segregationist) George Wallace in 1968 and for (the social liberal) George McGovern in 1972. That’s quit a change, and I have to believe that watching Ali was part of what influenced him. See T.Hauser, Muahmmad Ali in Perspective (San Francisco: Collins Publishers, 1996), 104.

7. King himself openly acknowledged this. Following the failed non-violent demonstrations in Albany, Georgia in 1962, for example, he stated that the success of non-violent resistance actually depended on a combination of attacks by whites, full coverage by the media, consequent national outrage and then government intervention. See J. White, Black Leadership in America: 1895-1968, 134-35.

8. I think it is important to understand that, outside the area of religious observances, shari’ah is basically a code of limits, beyond which the Muslim should not venture in pursuing his or her worldly ambitions. It is not a “blue-print” for life that outline everything the Muslim should (or should not) do. Within those limits, in other words, Muslims should not be looking to shari’ah to tell them what to do. For example, the shari’ah is not going to describe in any detail for a man who the woman of his dreams would be or what activities are likely to bring him pleasure in his spare time. This s up to him to figure out. What the shari’ah will do is simply let him know if his desires and activities fall within the scope of what God permits. In short, in the same way that it is necessary to understand the limits of legislative politics, Muslims need to understand the limitations of the shari’ah as well as those who represent it. While adherence to the shari’ah is not inconsistent with the Muslim’s pursuit of happiness, it will not relieve individual Muslims of the responsibility for pursuing their own individual happiness. If there is (or is going to be) such a thing as “Islamic culture,” it can only be the product of Muslim cultural imagination that is sanctioned or approved of by the shari’ah. It is not (nor has it ever been) the result of simple adherence to shari’ah, in the sense of Muslims keeping their religious duties.

9. This is actually a larger point than space permits me to explicate here. Suffice it for now to point to the universally agreed-upon rule among the fuqaha, to the effect that “necessity renders the impermissible permissible,” (ad-darurat tubih al-muhzurat). Or, outside the area of what may be perceived as necessities, one need only consider issues like binding oaths (ayman sg. yamin) and how many of them are daily broken and not expiated for.

10. The question to music is, of course, a controversial one, the majority of pre-modern (and modern) jurists holding it to be forbidden. My inclusion of music here is not a veiled attempt to slip it in under the rug. But if the content of American culture is as important for Muslims as I have presented it here, then music can no more be omitted from the purview of “matters that require study,” than, say, riba or inheritance, or, for that matter, participation in politics!

11. Which suggests, again, that the problem is not fashion or literature per se but with involvement with fashion or literature in the West!

12. Blacks suffered as well from a phenomenon I call “Qarunism” or (al-Qaruniyah), after the Qur’anic figure, Qarun, who, upon arriving at a position of wealth and power, disassociated himself from the legitimate aspirations of his people. Muslims will have to devise ways of resisting this temptation, especially since ethnic differences among Muslims blurs (or perhaps answer) for many the question of who “one’s people” are.

13. In this regard, professor Khaled Abou EI-Fadl has written an excellent and absolutely indispensable study, “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities From the Second/Eighth to the Eleventh/Seventeenth Centuries,” Islamic Law and Society, 1:2 (1994) : 141-187. This article should serve as the starting point for anyone interested in the topic.

14. Ihdath qawl thalith

15. Tamiyiz, 201.

16. See his Tamyiz, 207-08.

17. The Prophet (alayhi’s-salam) alluded to this reality in a famous hadis:

“You people present your disputes before me, and I judge according to what I hear. And some of you may be more eloquent at presenting matters than others. So if I should award to one of you a right that properly belongs to his brother, let him not take it. For in such a case I shall have but cut out for him a piece of the Hell fire!”

18. I have not included the Shi’ite contributions in the present essay only out of fear that doing justice to that tradition would require a framework much broader than space permits here.

19. Al-Mudawwanah al-kubra, 3:278.

20. Muqadimmat ibn Rushd (on the margin of Mudawwanah), 3:345-47.

21. See, e.g., al-Mi’yar al-mu’rab, 2:137-41

22. Kitab bayan wujub al-hijrah ala al-ibad wa bayan wujub nasb al-imam wa iqamat al- jihad, ed. Fathi Hasan al-Misri (Khartoum: University of Khartoum Press, 1977). See, pp. 12-17, 100, 112-13.

23. Muqadimaat ibn Rushd. 3:28-39. Among other things, Ibn Rushd bases his opinion on his interpretation of the Prophet (alayhi’s-salam) having allowed his uncle Abbas to deal in riba in Mecca prior to Mecca’s conversion to Islam. This, Ibn Rushd acknowledges, is based on the view that Abbas was a Muslim who concealed his Islam throughout the time he emained in Mecca, following the Prophet’s (alayhi’s-salam) migration to Medina. This is disputed among scholars, some holding that Abbas did not become a Muslim until shortly before the conquest of Mecca, in year 8 A.H. Here, however, Ibn Rushd points to the hadis of the Companion, al-Hajjaj b. Ilat, which occurred at Khaybar, which was after the conquest of Mecca. Here the Prophet confirmed the riba-based transactions of Abbas, who was now definitely a Muslim, that had been contracted prior to Mecca’s fall. It was only the riba-based transactions that came after Mecca’s fall that the Prophet overturned during his Farewell Pilgrimage.

24. Bayan Wujub, 14-15

25. Bayan Wujub, 14.

26. Bayan Wujub, 13-14. This was clearly related to the fact the shaykhu was operating in areas that shared a common cultural background, such that the threat of “lapsing” back into pagan ways or conflicting the meaning of Islamic with pagan ideas and ways was a constant threat. This, I submit, is actually similar to the situation of the Prophet (alayhi’s-salam) in Arabia, which suggests to my mind that the exaggerated obsession with bid’ah is later development, i.e., arising after Islam had spread outside of Arabia. Prior to that, the primary concern was far more likely to have been with sliding back into the already familiar Arab paganism, as opposed to the introduction of new ideas and customs.

27. See Mi’yar, 2:138-40.

28. Tamyiz, 231. See also, for a more detailed explanation of this principle, my Islamic Law and the State, 130.

29. Tamyiz, 231.

30. Abou El-Fadl, Islamic Law and Muslim Minorities, 172.

31. See, e.g., Abou El-Fadl, 157.

32. Abou El-fadl, Islamic Law and Muslim Minorities, 160.

33. See, e.g., al-Wansharisi, Mi’yar, 2:133-34

34. I know of no disagreement among the four Sunni schools that if a Christian or Jewish couple convert to Islam, their marriage remains valid and they do not have to be re-married Islamically.

35. See the record of this incident in Malik b. Anas, Muwatta 2 vols. ed. Muhammad F. Abd al-Baqi (Cairo: Dar Ihya al-kutub al-Arabiyah, 1336/1918), 2:543-44.

36. In other words, if a non-Muslim refused to pray or fast, could he or she be punished as could a Muslim?

37. See, e.g., Abd al-Rahman b. Muhammad Shaykhzadah, Majma al-anhur sharh multaqa al-abhur, 2 vols, (Istanbul?: Uthmaniyah Press, 13271908/), 1:660.

38. See al-Mahsul fi ‘ilm usul al-fiqh, 6 vols. ed. Taha Jabir Fayyad al-Alwani (Beirut: Mu’assasat al-Risalah, 1412/1992), 2:237-42. Al-Shafi’i himself, however, and according to al-Razi, the majority of Shafi’is strongly disagreed with this position. Even they however, did not argue that a non-Muslim could be punished, e.g., for not fasting or praying.

39. See Sharh tanqih al-fusul, ed. Taha Abd al-Ra’uf Sa’d, (Cairo: al-Maktabat al-Azhariyah, 1393/1973), 162-67.

40. See the discussion by Yusuf al-Qaradawi, “Fiqh al-ma’rakah…fiqh al-awraq,” Majallat al-amal, May-June (1991):63. Ibn Taymiyah’s argument is actually based on what jurists commonly refer to as the hikmah, which is really ‘the reason behind the reason or illah”. In other words, the reason (illah) that wine is forbidden is because it intoxicates. But why in intoxication bad? It is bad because it promotes violence, licentiousness, etc. This is the hikmah. Ibn Taymiyah’s example, then, actually demonstrates the tendency among jurists to go farther than the illah in considering the application of the law.

41. This is why, for example, once a theft has been reported to the Muslim authorities, the punishment cannot be set aside, even if the victim wishes to pardon the perpetrator. Because this specific punishment is a right of God and not a right of man, it cannot be forfeited, unlike, say, a woman’s right to maintenance or a creditor’s right to be paid a debt.

42. Mi’yar, 2:121: “Baladun fihi ma asin fi huquq allah fa huwa awla min baladin fihi ma’asin fi mazalim al-ibad.”

-Taken from “ISPI Home”

Sherman [Abd al-Hakim] A. Jackson