WELCOME TO TRADITIONAL ISLAMISM

This article will deal, Allah willing, with the ideas portrayed by Majid et al in their talk “In out and Out of Islamism” and the utter heretical article by Rashad Zaman “Teddies Sharia law and Civil society”

A questioner was puzzled with the position of Majid on Islam’s role in the public sphere (i.e. it has no role!). Surely he told us, Islam has alot more to say then this. What about the Huduud for example? Well, Majid was ready, Oh boy was he ready! Majid replied that a certain position in Islam allows us to remove the Hudood when it violates the Maqasid of our religion. I assume in this modern time it always does when we have quotes like this from Rashad

We can relieve ourselves of ancient and outmoded punishments, such as ‘flogging’ and ’stoning’ as not being consistent with the actualizing of the Maqasid (Something that the Ottomans had abandoned for the last 300 hundred years in its imperial life).

Majid also wants us to believe that the scholar Najm Deen Tufi believed this as well. Here is his quote from the City Circle Talk

If it is not in the interest of the people to implement a particular punishment that punishment is not implemented

When asked “According to whom?” He replied

Somebody that catches everyone is Imam Tufi, Najm Deen Tufi ,3allamah

What are the Maqasid?

Well let us stick with the “duririaat” for now i.e. the essential ones which include the preservation of life, propert, intellect, lineage and religion. These according to a number of Usuli scholars are the objectives of our glorious Shariah. Now the set of “essential maqasid” is differed on but I don’t want to go into that now. My concern is with the opinions of the scholars that they claim support this view i.e. heretical secularism

Najm Deen Tufi

“Somebody that catches everyone is Imam Tufi, Najm Deen Tufi ,3allamah”

“3allamah” Majid (should be “somebody that catches Majid out is Tufi, Najm Deen Tufi 3allamah”)

Najm Deen Tufi is Suliman bin Abd Al qawa Alkarim bin Sa’d Ibn Al Safa who is known by the colloquical label Ibn Abbas Al Hanbali Najm Deen Al Tufi. He was born in 657 AH. Tufi is derived from a district in Baghdad that was called “Tuff” . He is especially famous for his Risala Fi Riayat Al Maslaha among the modernist pro regressive scholars. Many scholars have written harsh things about him including Ibn Abdul Barr, Imam Kawathari, Shiekh Muhammad Abu Zahra, Dr Mahmuud Saad Al ‘Yubi, and Shiekh Buti among others

Scholars who wrote favourably about him include Imam Dhahabi, Kamal Jafar,Jamal Deen Qasami Al Dimashqi and of course Rashad Rida.

But alot of the scholars say (those at least in the Classical generations) that he innovated in the Usul when he said that the masaleh can potentially qualify texts when they conflict in an apparent manner. Interestingly Tufi only allows this if the text is not Qati al Dalalah and Qati al Thabut. It is also important to note that an orthodox reading can be made for his text. In fact the Maliki Madhab (or at least those in it) allow the Hajiaat to qualify a weak general text (more later on that in part II of this article) . Whether Tufi took it further into an innovative unrestricted manner is a good topic for further study. Anyway his Risala does seem to take it quite far.

Shiekh Muhammad Abu Zahra his book “Ibn Hanbal” when talking about the Shia

…… they did not limit the process of abrogation or qualification of the texts when our prophet met his Lord, in fact they allowed their Imams to go against the texts… and we found Tufi approaches this in a similar manner when he allowed the “public interests” to abrogate and qualify the texts. “Public Interests” took the place of the infallible Imams.

Much harsher words have been said about this man but I am not here to engage in character assassinations. My concern is with Majid’s twist of even this apparent innovated principle of Tufi! He claims that Tufi supports the position that we can drop the Huduud if it goes against the “interest” of the people. Of course we have no idea what “interests” he is talking about. Is it the Darooririat, the 7hajiaat, or the Ta7seenat? This whole idea of Majid is a self refuting mess which I will go into later.

What did Najm Deen Tufi actually say? After going through 19 sources of the Sharia he says

And of these 19 sources of evidence, the strongest is the text and Ijma. They hence can either agree with the public interests or go against them. If they do agree with them then they are blessed and they cannot be disputed because they have agreed with three sources of the Hukm and these are the text, the Ijma and the public interests which are derived from the saying of the prophet “There should be neither harming nor reciprocating harm.”. If they do go against the public interests then the interests outweigh them by qualification and clarification and not by abrogation

So even if the Hudood did apparently go against the public interests we are not to abrogate their application but qualify and clarify them. So where is that and the statement of Rashad

We can relieve ourselves of ancient and outmoded punishments, such as ‘flogging’ and ’stoning’ as not being consistent with the actualizing of the Maqasid (Something that the Ottomans had abandoned for the last 300 hundred years in its imperial life).

Still a further problem, note that Tufi divides the Islamic Ahkam into two types, those that agree and those that potentially disagree with the “public interests” of the people. Remember if they agree with the public interests of the people then they are in no way to be qualified or clarified. In fact we cannot even dispute them!

So I wonder what category does Tufi place the Hudood in? Well later on in his Risala he has this to say

For the public interests and the rest of the Islamic proofs either are in agreement or disagreement. If they do agree then it is blessed ( the meaning which is hard to translate) as the the texts, the Ijma and the public interests are in agreement on the establishment of the five Maqasid that are categorical and essential and these (i.e. the ahkam that do agree with the maqasid) are : The Capital punishment for those that murder, the apostate, the cutting of the hand of the thief and the Hadd for those who drink alcohol and defame and similar rulings from the Ahkam that are in agreement with the text
and the public interests

It is just amazing that the example that Majid quoted “the cutting of the hand of the thief” is just the same example that Tufi said cannot be disputed!

Maybe Majid has another excuse. Could it be “narrated” that Tufi held this position? Remember that classical excuse ya “ahki”?

Let us say that these ahkam that agree with the masaleh are not fixed. I mean some could say that this is the spirit of intent of Tufi anyway. We are then left with two options

1-The Maqasid are categorical in a strict sense

2-The Maqasid are subject to the “utilitarian” paradigms

Of course in the first instance if we can qualify the Maqasid in one instant then we can qualify them in all instances unless we have another principle to remove an ad hoc accusation. Surely Majid would allow Islam at least one moment in history where, say, the Maqsad “the preservation of life” was qualified. Remember these are categorical in the strict sense and are ahistorical (think of Kant’s categorical imperative). Did the prophet engage in Jihad in at least one instance? I think he did! Now, no one can refer back to the Maqasid in a general sense to give us a criterion for when and where we should qualify or abrogate because that would be circular reasoning.

In the end we are left with option two. Now Utilitarianism as an ethical stance has largely been discredited among modern philosophers despite its various versions. There are still modern philosophers who do hold onto to it in some manner but you will always find a philosopher who supports something. Here are some problems that Majid must encounter

1-What is happiness (Mill) or pleasure (Bentham)?

2-How do we estimate the amount of happiness that is needed? How in the world is this thing measurable?

3-Can we sacrifice the happiness of the minority for the majority in the population?

4-How do we identify the “majority” and the “minority” in a state? After all there are an infinite number of ways to do this. How about the set of people who drink a Cappuccino on Tuesday Morning? How about the set of people who suffered from alopecia when they were 20? How about the set of secular muslims? They certainly are a minority!

I think the third point is very interesting. You can get a whole lot of hair raising moral dilemmas! (Rule based Utilitarianism does not help by the way). What about this scenario Majid? We can preserve the minority muslim population as donars for the non muslim population. So if a non muslim has an accident and needs a liver we just execute the muslim! (Remember the film “The Island”) Hey why not? After all we are pushing forward the interests of the “majority”.

I do not think that the Muslims want a French Revolution, thank you, Majid. As the late Bernard Williams has argued in a convincing way, if Utilitarianism was a true theory then we ought to on utilitarian grounds prevent people from believing it. A theory that deflates itself is
not really a good paradigm for a moral truth (See Utilitarianism for and against by J.J.C Smart and Bernard Williams).

A right based ethics is another avenue for Majid , but I would like to see how Majid can abrogate all the Islamic texts that qualify the inalienable rights of people in at least one moment in history!

Remember they are inalienable like Kants categoricals are, well, categorical.

Of course we have the responses to Najm Deen Tufi ready and waiting, but that is another story Shiekh Dr Mahmuud Saad Al ‘Yubi in his Phd thesis “The Maqasid of the Islamic Sharia and their relationship to the Islamic Sharia” had an excellent section refuting Najm Deen Tufi

Haroon Al Rashid, Abu Yusuf and that Incident

Rashad has this to say in his article “Teddies Sharia law and Civil society”

“Mawardi, the Judge and scholar from the Abbasid era describes in his work both the functioning of polity in his time, and dictates some rules pertaining to them. He gives an incident where Qadi Abu Yusuf was adjudicating in a case with competing interests. The Qadi informed the Caliph, Harun al-Rashid who advised discretion and not imposing the old traditions in a manner that would create political discord as it was completely out of sink with the views of Society. Imam Mawardi states that Abu Yusuf did so, and is perfectly permissible as it was seeking the maslaha (see Ahkam al-Sultaniyah).”

I am just amazed at the wonderful detail! We have wonderful phrases like “he give an incident” where Abu Yusuf is “adjudicating in a case with competing interests” and then Harun al Rashid advises him on not “imposing the old traditions” that will be “completely out of sink with the views of Society”

Then on top of this he gives this wonderful reference! “see Ahkam al-Sultaniyah” Things don’t get better than that do they? Hey at least he gave us the name of two characters in the story “Abu yusuf” and Haroon al Rashid”

There is an underlying suspicion that he just does not want to be caught out! I think for good reasons as well.

Unfortunately for him we have chased up the incident and here is what Mawardi has to say in his Ahkam al Sultaniyaa ( a rough translation)

“It has been told that a case was brought forward to Abu Yusuf the Qadi were a Muslim killed a Kafir so he passed a verdict of similar retribution. A man then came to him and passed to him a parchment that had hastily written on it some poetry

Oh you the Killer of a Muslim for a Kafir

You have out stepped your bounds and the just are not those who do this
Oh those from Baghdad and the surrounding districts

from the scholars and poets

Return, cry for your religion and be patient for the reward is with the patient

Abu Yusuf has allowed for this religion the capital crime of killing a Muslim for a Kafir

Abu Yusuf then read the parchment to Haroon and Haroon al Rashid said “Be careful with this issue and find a way out otherwise there will be tribulation” Abu Yusuf left and then asked the prosecuting party for proof and they provided none. As result the retribution did not follow through.”

Mawardi then goes onto to say that this is allowed when the public interest is at stake i.e. to find a legal “excuse” to avoid tribulation

Clearly the story has a lot more detail than meets the eye! Anyway a lot more then Rashad gave us. Now let us summarise the essential issues here.

1-Mawardi narrated it without an isnad he said “7ukia” i.e. “it has been told” giving the impression that it is a story that does not have proper historical chain

2-The legal “fiction” that Abu Yusuf used was no fiction at all! In fact the prosecuting party had no proof! Surely that is a textual issue.

3-Mawardi’s statement must be taken in light of this. If there is going to be controversy and a possible tribulation then look at the case from all angles and see if you can avoid the H’aad. Even if there is public interest in it you still need a “legal fiction”.

This had nothing to do with and I quote

“not imposing the old traditions in a manner that would create political discord as it was completely out of sink with the views of Society”

The old tradition that Abu Yusuf was applying was the equal retribution for the non muslim and muslim. Isn’t that something the “modernists” would want? Was it really out of sync with the views of the society? After all the Abbasid, like the Ottoman Caliphate, did use Hanafi Fiqh as the main source of legislation!

The “Ahlu Bait” are Innocent

Rashad then goes on and quotes a Zaydi Imam of the Hadawi inclination. He is a certain Imam Ahmed al-Hadawi al-Murtada. He was born in 763 A.H. in San’aa. He teachers included his brother Hadi bin Yayha and his maternal uncle Ali Muhammad Bin Ali. He is the author of the famous Zaydi book on fiqh called “3aun al Azhaar fi Fiqh al’aimaat al al’atahar. This book has a number of commentaries including one by himself i.e. Al Ghaith al Madaar Laka’mam’m Alzhaar. This also had a number of commentaries including one by his son Sharaaf Al Deen Al Mahdi, and another one Dawuu al Nahaar by the Allaamah al Jalaal. There are many others but another famous one to consider is Sayl Al Jararr by Imam Shokani himself. Rashad has this to say about the Imam. In the same context Imam Ahmed al-Hadawi al-Murtada explains that the ‘Hudood’ (”prescribed punishments”) should be dropped when there is an interest (Maslaha) in doing so (See ‘al-Azhar’).”

Note how he attributes this general statement “Hudood should be dropped when there is interest” and again we have a vague reference to a very large Book on Fiqh called “al-Azhar”. Unfortunately for him we have found the reference as well. Online we have two commentaries one which includes the standard Zaydi understanding

http://www.yasoob.org/books/htm1/m004/06/no0679.html

The other one is a slightly more harsher commentary by Imam Shokani which is available online as well. I can provide the link if necessary. Interestingly there has been a Zaydi refutation called Al Ghatmatam al Tiyar by the Qadi Muhammad Bin Saleh al Samawi

The quote of concern is in the first section of Kitab al Hudood. See page (or section) 334-335 in the link. Also see Sayl al Jarar page 288-296.

The crucial phrase is

“and he i.e. the Imam can drop (the Haad) or delay it for public interests and one has to further look into matters of Qisas.”

Now Imam Shokani in Sayl al Jarar had very harsh words to say about this general statement ( in line with his rejection of the illah al mursala).

“…..the Imam or Sultan have an example in the prophet and he i.e the prophet used to establish the Huduud when it was obligated and it has not been “heard” from him that he abandoned the Haad after it was imposed as a duty and after the matter was brought towards him”

The Zaydi commentary has understood it in line with matters where the Sharia has given some leeway. These include times where an Imam has lost authority and then gained it. In other words a case was brought to him when he had authority but then he could not implement it when he lost power. Does he implement the case when he gains power again? It also talks about cases that are not brought to the Imam i.e. the hadith of the prophet when he said “…would you not have left it between you and Allah may have pardoned him” i.e. in matters of Zina. It also talks about cases where the Imam commits Zina himself. Is he to implement it on himself? Also it talks about cases where his relations are involved. Is he to implement the Haad?

So clearly the “public interests” are not unrestricted and the cases of concern are generally within the bounds of Ikhtilaaf .

What makes this understanding of the Imam more clear is his position further on in Kitaab al Huduud. If the matter is brought to the Imam and the person is found guilty, can he repent and have the Haad dropped? The Imam says that the Sultan is “not allowed to forgive“!

That is why Imam Shokani later on in his commentary on the Imam’s position in these cases i.e. cases brought forward to the Imam, said that he has hit the mark here and missed the mark in his introduction to Kitab al Huduud.

In matters of Qisas the Imam also, as noted in the Zaydi commentary, is hestitant because Qisas in the traditional parlance of the scholars involves the “rights of man”. Hence the Imam is not allowed to drop it for interests if the opposing party demands retribution or at least blood money. Further more it happens that he has an Usul which treats Maslaha in the same way that Imam Shatibi and the Maliki Jurists do. In the same work cited by Rashad we have a totally opposite understanding. There are two sections were he talks ( or at least the Zaydi commentator who is clarifying his views) about the Ilaah al Munasib, which is another word of Masaleh mursalah. In other words causes based on the 5 maqasid. For example in Volume 1 section 32 in Sharh of Azhar he goes through a “dialectic” process of when it is allowed for a Muqalid to act on evidence. Can the Muqalid for example knowing that the Mujtahid believes in the maqsad of “preservation of the intellect” act on the generality of the maqsaad in other matters? Can he do Qiyas? What is the position of the Mujtahid? I need not bore you about the details. What concerns me is the scenario that may pop up for the Mutjahid and the Muqalid. What if we find a text that in some way goes against the Maqasid i.e. partially ( any qualification after all is an apparent contradiction and a partial abrogation to the general text it qualifies). In this case we qualify the Maqsad if we have a specific Nass! So Imam Ahmad Al Murtada does not believe that a specific Hukm can be abandonded if it goes agains the Maqsaad. He in fact believes the totally opposite position. The Maqsaad is qualified by the specific text. This interestingly is the same view reiterated in his own book on Usul al Fiqh when dealing with al Munasab al Mursal

Dr Isam Muhammad Abdul Ghanem also in his two articles has a nice introduction to the development of the Hadawi Doctrine in the Zaydi Madhab and he has put across the Zaydi understanding of Masaleh Mursalah. ( The Development of the Hadawi Doctrine, the Neo-Rationalistsof the Zaydi school Since 1948 and the Current Role of Ilm al Kalam(or Scholasticism) in the Yemani Courts: Part I and II Arab Law Quarterly, Vol. 3 No. 4. (Nov. 1988 ) pp 329-344, also see Feb 89 pp 3-19) )

Their Usul (although not for all the Zaydi groups) includes the Quran, the Sunnah, the Ijma of the Sahaba and the Ijma of Al Itra. They also accept “Aql” as a source. Al Masaleh al Mursalah is accepted too but it is has subdivisions which include

(1) Qiyas

(2) Istidlal Mursal

(3) Al Munasib Al Mursal

(4) Al Munasib al Gharib

They only go to Masaleh Mursala if there is no specfic clear text from the Quran and Sunnah. In other words they have a similar understanding to the Maliki Madhab.

Of course with their Mutazilite (well close enough) aqueedah they have a concept of natural justice. They believe that the normative values of moral judgements are part of the intrinsic nature of the act. This is also similar to the view of Ibn Rushd.

the Zaydi scholars generally agree that in the presence of specific text we do not resort to masaleh.

There are many other references, but it is easy to go any standard Zaydi book on Usul and read their conditions on Masaleh Mursala. i.e Minhaaj al wasul ilaa Sharh Miyaar al Aquul by the same Imam himself!
In conclusion

(1) The Imam holds onto Masaleh as long as they are not restricted by Nass. The phrase is to be understood in this manner

(2) The Imam even on a radical reading does not eliminate the Huduud as outmoded or archaic. He says it can be removed on certain occasions and delayed on certain occasions. In matters of Qisas he does not allow this if it applies to the “right of man”. In other words he would be in group 2 of Najm Deen Tufi where the implications of the Huduud are clarified and qualified.

(3) This is an unlikely reading especially because he does not allow the Imam to forgive the culprit once the case is brought before him.

For more details on the Imam see also Al Zaydiaah by Dr Ahmad Mahmud Subhi who is a professor of Islamic Philosophy at Alexandria University page 340-394.

The Ottomans and Flogging

Finally I will deal with a historical issue that Rashad has raised. It does puzzle me this because this is a standard point that is made by many liberal muslims. Strangely though Rashad distorts it! ( assuming that it is from a common source). Ali Eteraz has this to say in his article in the Guardian commentary (Sept 28 2007)

“According to 18th century records, the Ottoman empire – Islam’s ruling power – had not flogged, imprisoned, or passed the death sentence on adulterers for nearly 400 years”

Yet we have Rashad putting a different twist on it. No longer is this abandonment restricted to adultery but now we have a general abandonment of all the Hudud to do with flogging. I quote

“We can relieve ourselves of ancient and outmoded punishments, such as ‘flogging’ and ’stoning’ as not being consistent with the actualizing of the Maqasid (Something that the Ottomans had abandoned for the last 300 hundred years in its imperial life) “

Unfortunately for him we have Ottoman records that say otherwise. It is amazing what you get online. There is an actual MA thesis on just that!

“Treating Outlaws and Registering Miscreants in the Early Modern Ottoman Society : A Study on the Legal Diagnosis of Deviance In SeyhulIslam Fatwas” by Emine Ekin Tusalp
This is a Master of Arts Thesis submitted to Sabanci University in Spring 2005. It is online as well! You can also see an interesting article by Dora Glidewell Nadolski “Ottoman and Secular Civil Law” Int. J. Middle East Stud 8 (1977) 517-543.

Alot more has been written on this and there are plenty of references ( I can provide more if anyone wants to request further studies) that show the Haad of the Sharia which includes flogging was practiced late into the 300 period that Rashad talks about.

May Allah relieve us from the mental diarrhoea of Rashad. Amen!

Inshallah in part II that is coming soon we will deal in much more detail with the views of the classical scholars on this source of law i.e. Masaleh Mursala and Allah knows best!