Shari’ah Compliance in America by Dr. Robert D. Crane
The next 80 years are the subject of an astute analysis and global forecast by John Hillen of the Foreign Policy Research Institute in Philadelphia, Pennsylvania. Published in September, 2010, this perceptive analysis has only one glaring fault. Dr. Hillen conflates Islam with Muslim, whereas Islam is a religion, and Muslims include people who commit crimes against humanity in the name of Islam.
We see references all the time to “Islamic” tyranny in various countries of the world, and even to “Islamic terrorists”. Both of these terms are perfect oxymorons. There is, in fact, not a single Islamic regime in the world. This means that there is certainly no Islamic world, though arguably there is a distinct Muslim world in which the majority of people in 57 different countries are Muslims.
As long as we fail to distinguish the difference between Christianity and Christendom or between Islam and Islamdom, or between Judaism and Jews, the chances of civilization surviving on earth for as long as 80 years is distinctly problematic.
The most critical point that Hillen makes is that the United States by itself can no longer do much about the global future.
There are, however, signs of hope. Most of the people associated with the Foreign Policy Research Institute (FPRI) ever since Daniel Pipes re-energized it in 1991 have preferred collective guilt as a means to demonize a religion, specifically Islam, and thereby in a vicious circle to demonize all Muslims as a means to demonize Islam.
In reaction to the upsurge in Islamophobia in September, 2010, however, Professor Daniel Pipes reversed course and said that the greatest danger in trying to counter Muslim terrorism is to ascribe collective guilt to Islam as a religion and thereby to all Muslims in the world. This would eliminate Islam as the strongest and, in fact, the only effective counter to the growing extremism among Muslims and among a lot of people in the world.
The Mimetic War of Clashing Meanings
A hot-button term of political manipulation today is “shari’ah compliance”. The former Speaker of the House, Newt Gingrich, claims that this is an Islamic code-word for a totalitarian take-over of America.
The term “shari’ah” has many different meanings. Some Muslim extremists use it for political purposes as a codeword to identify their own closed ideological system of thought in a global battle for supremacy. Some so-called Islamophobes, significantly not including the scholar Daniel Pipes, support these perverters of all religion as truly representative of Islam.
The acknowledged leader of this extremism as a paradigm of thought is Syed Qutb, who half a century ago in its early development was the Muslim Brotherhood’s equivalent of Lenin or even of Trotsky, as described in my book, The Natural Law of Compassionate Justice: An Islamic Perspective. Qutb’s doctrine was embodied in his declaration that, “There is only one place on earth that can be called the House of Islam (Dar al Islam), and it is that place where an Islamic state is established and the Shari’ah is the authority and God’s laws are observed. … The rest of the world is the House of War (Dar al Harb)”.
Modern extremists may use different words, like Dar al Zulm, the land of evil, or Dar al Kufr, the land of those who are going to hell because they deliberately reject the truth. The substance of their war, however, is the same, namely, to invent and instigate a clash of civilizations and to declare a holy war with the slogan “No Substitute for Victory”. Such radical puritanical “reformers”, whether anti-establishment like the Salafis in Saudi Arabia, or pro-establishment like the fascist Wahhabis, claim to be Islamic, but their ultimate aim is to acquire absolute power here on earth, so that blowing up Jewish babies and oneself can be easily justified and even sanctified in the pursuit of a higher cause.
One of the most well-known and controversial Muslims in the world, Tariq Ramadan, has an exactly opposite understanding of the Islamic shari’ah. This approach is shared by the vanguard of Islamic intellectuals in the world today, including Imam Feisal Abdul Rauf, the founder of Cordoba House near Ground Zero in New York. Professor Ramadan explained his views in a long Q&A at the Pew Forum on April 27, 2010, entitled “Islam, the West, and the Challenges of Modernity”, which is the title of a book with the same title that appeared on Amazon four months later. He writes, “I’m trying to come up with a new framework for Islamic applied ethics. … Meaning what? That we have a common ground, a common area, where the Christian ethics, the Jewish ethics, the Muslim ethics, the humanist ethics … could provide reform for the better”.
Spelling It Out
Tariq Ramadhan and Feisal Abdul Rauf represent a long tradition in Islamic thought. The greatest Islamic scholars for more than a millennium have endured oppression and imprisonment because of their commitment to preserve the purity of Islam as a religion and of its enlightened jurisprudential expression from extremist revolutionaries, as well as from political oppression and perversion by tyrannical Muslim governments.
In traditional or classical Islamic thought the Shari’ah is the high level framework of universal principles in Islamic jurisprudence derived through intellectual effort to understand the meaning and coherence (nazm) of the Qur’an and of the Sunnah of the Prophet Muhammad. This higher framework is the subject of ‘Usul al Fiqh or the Principles (Roots) of the Fiqh. The system of specific laws, rules and regulations, which must reflect and conform to the highest principles, is called simply Fiqh.
The fiqh includes not only the set of punishments or hudud specifically mentioned in the Qur’an for deterrence and with strict evidentiary rules for application, but many man-made rules and punishments that have developed in various cultures to which Islam as a religion spread. For example, the contention of some Muslims that a husband may beat his wife, or that an adulterous should be stoned to death, or an enemy should have his throat slit have no solid basis in the Qur’an, hadith, Sunnah, or Sirah. Such punishments are strongly condemned by Islamic jurisprudential scholars, but remnants of such cultural practices survive even today.
The higher guidance that should guide the understanding and applicability of the fiqh was spelled out by two of the greatest Islamic scholars, Shamsuddin ibn al-Qayyim (who died in 748 A.H., 1347 A.C.) and his mentor Imam Ahmad ibn Taymiyah (d. 728). Ibn Qayyim wrote: “The Islamic law is all about wisdom and achieving people’s welfare in this life and the afterlife. It is all about justice, mercy, wisdom, and good. Thus any ruling that replaces justice with injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a ruling that does not belong to the Islamic law.”
Regardless of the various schools of fiqh or of the schools of thought (madhahib) that have been established by leading Islamic scholars or Imams, namely, the Hanafi, Maliki, Shafi’i, Hanbali, Ja’fari, and Zaidi, the common “constitutional” principles guiding the discussion of universal human responsibilities and rights derive from the essence of Islam and of every other world religion, namely, truth, love, and justice.
In classical Islamic thought of the third through seventh centuries, A.H., human responsibilities and the human rights that result from fulfilling them were systematized in what is known as normative law, that is, in norms or general principles. The entire field of Islamic normative law is a product of ijtihad or intellectual effort to understand the Qur’an and Sunnah. Over a period of four centuries, the greatest and wisest Islamic scholars engaged in this “third jihad”, the jihad al kabir, which is the only jihad specifically mentioned in the Qur’an. The ijtihad or intellectual effort to strive for greater understanding in this Great Jihad produced the principles or maqasid that spell out precisely the human rights that some skeptics have asserted do not exist in Islam.
These principles are based on four premises of Islamic law or shari’ah. The first is its holistic ontology embodied in the term tawhid, according to which the entire created order exists in unitary harmony. The things and forces we can observe are real, but their existence comes from God. They do not exist independently of His purpose.
The second premise is esthetic. The nature of transcendent reality, and of all being, is Beauty, which precedes and is independent of cognition. The flower in the desert is beautiful even if no person sees it. Beauty, and necessarily therefore Islamic law, consist of unity, symmetry, harmony, depth of meaning, and breadth of applicability. The greatest beauty is the unitive principle of tawhid itself, because without it there could be no science and no human thought at all. This is of controlling importance in the shari’ah, because it means that the ideal system of law should be simple, symmetrical, deep, and comprehensive.
The third premise is epistemological. All knowledge is merely a derivative and an affirmation of the unitary harmony inherent in everything that comes from God. All creation worships God because He is the Ultimate One and therefore the only one worthy of worship. Every person is created with a need and a corresponding intuitive capability to seek and to know transcendent reality and to submit lovingly to God in thought and action. This epistemological premise reinforces the first two, because it indicates that Islamic law serves to give meaning to everything man can observe. And meaning comes from God, Who gives purpose to everything He has created.
The fourth and most easily understood premise of Islamic law is its normative or purposive, goal-oriented nature. In their “Universal Principles of Human Rights,” Islamic scholars over the centuries have identified several irreducibly highest principles. These are known as the maqasid or purposes, as the kulliyat or universals, and as the dururiyat or essentials of justice.
A normative framework of human responsibilities and human rights was developed by intellectual induction from the primary Islamic sources, the Qur’an and Sunnah, with the help of the primary research tools, the ahadith and Sirah, in order to apply the details of fiqh within the coherent and comprehensive value system of divine revelation. Maqsudi jurisprudence expanded the discipline of usul al fiqh or roots of the fiqh beyond the limited vision of textual literalists in order to explore the Sunnat Allah or natural law and divine paradigm of justice (‘adl or ‘adala). The mujtahids, those who carry out ijtihad, of this normative jurisprudence sought out the higher hikmah or wisdom of this “natural law” in order to promote the general benefits (maslaha) of divine revelation for individuals and communities and to avoid the general harm (mafsadah) from the pursuit of material power at the expense of justice.
The classical five maqasid (al dururiyat al khamsah) or huquq (sing. haqq) of Al Ghazali in the 4th Islamic century were the protection of din (faith and religion), haya (life), mal (private property), karama (dignity and honor), and ‘ilm (mind and knowledge). Later scholars, especially Al Shatibi, added nasl or nasab (family and community) and hurriyah (self-determination or political freedom). Some twenty-first century scholars have added an eighth maqsad, known as haqq al mahid or respect for the physical environment.
While the Shari’ah provides a broad framework of principles, the qadi or lower-level judge is responsible within the framework of his own school of law for applying the detailed rules and regulations in any particular time and place. The diversity of such applications is known as the fiqh al ‘aqaliyat, which is now at the forefront of scholarly discussion among Islamic scholars.
One representation of the irreducible normative principles of the shari’ah identifies eight primary principles and their respective secondary and tertiary implications, along with examples of actions necessary to actualize the spirit of these principles of human rights in Islam. These eight are the following, as spelled out with extensive charts in the new textbook, Islam and Muslims, published in Basking Ridge, New Jersey, by The Center for Understanding Islam:
1. Respect for Divine Revelation and Freedom of Religion
The first principle, known as haqq al din, is the duty to respect divine revelation. Classical Islamic scholars interpret this to require freedom of religion, which means that each human has the right freely to seek truth. This primary belief in divine revelation requires freedom of religion and provides the framework for the following additional principles of human rights in Islam.
2. Respect for the Human Person and Life
The second principle, necessary to sustain existence is the duty to respect the human person and the duty to respect life. This principle provides guidelines for what in modern parlance is called the doctrine of just war.
3. Respect for Family and Community
The next principle is the duty to respect the family and the community at every level all the way to the community of humankind as an important expression of the person. This principle teaches that the sovereignty of the person, subject to the ultimate sovereignty of God, comes prior to and is superior to any alleged ultimate sovereignty of the secular invention known as the State. This is the opposite of the Western international law created by past empires, which is based on the simple principle of “might makes right.”
4. Respect for the Environment
This principle of the Sunnat Allah is haqq al mahid (from wahada) or respect for the physical environment. The issue of balance in the maqsad of haqq al mahid concerns the relative priorities in protecting the environment versus protecting the other essential purposes of human life. This is part of the broader problem of relating the spiritual and the social as foci in a single paradigm of tawhid.
5. Respect for Economic Justice with Broadened Capital Ownership
This requires respect for the rights of private property in the means of production, which is a universal human right of every human being. The essential purpose of Islamic monetary theory and practice is to promote such broadened capital ownership.
6. Respect for Political Justice with Self-Determination
This principle requires respect for self-determination of both persons and communities through political freedom, based on khilafa, shurah, ijma, and an independent judiciary, including the concept that economic democracy is a precondition for the political democracy of representative government.
7. Respect for Human Dignity with Gender Equity
This principle states that the most important requirement for individual human dignity is gender equity. In traditional Islamic thought, freedom and equality are not ultimate ends but essential means to pursue the higher purposes inherent in the divine design of the Creator for every person.
8. Respect for Knowledge and Dissemination of Thought
The last universal or essential purpose at the root of Islamic jurisprudence is respect for knowledge. This can be sustained only by observance of the first seven principles and also is essential to each of them. The second-order principles of this maqsad are freedom of thought, freedom for dissemination of thought, and freedom for assembly so that all persons can fulfill their purpose to seek knowledge wherever they can find it.
This framework of Islamic principles for human rights is at the very core of Islam as a religion. Fortunately, this paradigm of law in its broadest sense of moral theology is now being revived by courageous Muslims determined to fill the intellectual gap that has weakened the Muslim ummah for more than six hundred years. This renewed effort for a spiritual and intellectual renaissance in all faiths can transform the world for the good of all humankind.
These principles of the universal normative law are derived in every religion both from the text of scripture and from the context of both their origin and application throughout time and space. The shari’ah therefore is primarily a form of ethics derived by human reason but rooted in transcendent truth and transcendent justice, in accordance with the Qur’anic verse, “The word of your Lord is fulfilled and perfected in truth and in justice”.
These traditional principles are identical to the principles on which America was founded. In the modern world many people have forgotten their traditionalist origins. This is why the wise persons and scholars in every religion must work together in solidarity to revive the best of their past in the present in order to marginalize the extremists and build a better future for everyone.
A Traditionalist Strategy for America
This common ground of human responsibilities and human rights, which we might call classical traditionalism, is the basis of Cordoba House near Ground Zero in New York. It is also the basis for Muslim cooperation in marginalizing all forms of religious extremism both at home and abroad, because classical Islam and classical America together form the common ground of Islam and America in the world today.
Unfortunately, for most Muslims the term “classical traditionalism” is a synonym for backward ignorance. In contrast, for many Americans this term calls for return to the enlightened vision of America’s Founders.
These symantic problems are the bread and butter of pollsters and communications consultants, such as Frank I. Luntz, who wrote the book, Words that Work: It’s Not What You Say; It’s What People Hear, on the Gingrich Revolution in 1994 and on politics in general. Referring to the commonalities of Islam and America based on their congruity and even identity requires a symantic or terminological revolution. This might require even elimination of such buzz-words as “Progressive Muslims”, which for most boomer-age Americans smacks of Communism.
Classical American thought comes from the Scottish Renaissance, which was the opposite of the secularist, continental Renaissance and provided the religious and philosophical background of the minority Whig movement led by Edmund Burke in the English Parliament. Burke was the mentor of almost all of America’s founders.
Edmund Burke warned against both the European secular “renaissance”, reflected in the French Revolution, and the contract theorists (Locke, Hobbs, and Rousseau) as dangerous to a republican form of government. Posing man as the center of reality and as the source of truth and legitimacy constitutes a polytheistic and dangerous denial of ontological and epistemological transcendence as the source of absolute truth and justice, which persons as individuals and as a community must discern for application in everyday life.
Professor Ramadan as a European with little understanding of America’s origins understandably may not recognize that these origins are the opposite of the quite different mindset and governing principles of what has come to be regarded as European.
Professor Ramadan, however, who is more familiar with European thought than with America’s origins, rightly emphasizes the “common ground” in the applied ethics of Islam and “the West”. He stated in his Pew Forum Q&A that his major aim in all his books has been to advocate “radical reform”. This, he says, consists of going beyond the “fiqhi issues of Islamic law and jurisprudence to the fundamentals”, in order to “go from adaptational reform to transformational reform, which is not to adapt to the way things are, but to propose applied ethics to change them for the better”. This, he says, requires “a shift in the center of authority in Islam” from “the scholars of the text” to the “scholars of the context”.
This common ground, in fact, is what classical Islam has been all about for more than a thousand years, as well as what classical America was once all about and now can be so again.
Recognition of the near identity of classical Islamic and classical American thought is necessary for a new traditionalist movement based on it, which Ronald Reagan called a “Second American Revolution”. Such recognition is necessary to introduce Islam in America as a constructive part of the national dialogue.
Influences from secular Europe have raised a false barrier between political governance and spiritual wisdom that was quite alien to America’s founders. They based the “great American experiment” on opposition to “democracy”, except as a technique of practical governance, and in favor of a republic, which by definition accepts divine authority through revelation and/or natural law as the source of all legitimacy in human life.
Recognition of what some scholars have called paleo-conservatism, as distinct from neo-conservatism, requires translation of the term shari’ah, which linguistically means the path to water, holistically so that it is understandable in the traditionalist American context.
Tariq Ramadan in another of his books, Western Muslims and the Future of Islam, recognized this basic principle of American civilization by translating the term shari’ah as faithfulness toward higher purposes, objectives, and aims, which one may take as translations, respectively, of the Islamic jurisprudential terms maqasid, hajjiyat, and tahsiniyat.
He concludes, for example, that Muslims do not need a parallel legal system, because the flexibility of the Islamic legal system permits them to “abide by the common law”, known in classical Islamic jurisprudence as urf and as part of the fiqh al ‘aqaliyat.
He writes, “as to the objectives, we are closer to some of the Islamic ideals in Western countries than in the great majority of the Muslim-majority countries”.
He explains, “I’m not speaking about Islamic finance. I’m not speaking about Islamic medicine. … It’s for me [as an Islamic scholar from within Islam] to break this perception that we have our sciences, Islamic sciences, Islamic finance – and that we have an alternative, which is wrong. It’s not true. We don’t have an alternative. … In economy, for example, just to say that we have an Islamic economy by thinking with no riba, no interest, no usury – this is a dream; its not working. In fact, we are changing the words, but we are doing exactly the same. In fact, we are seeing the same results with other names. And I think that this is hypocritical. … The way we deal with justice … has to do with our ethics, our applied ethics.”
In still another book, What I Believe, which he wrote for a popular audience, Tariq Ramadan warns that when it “comes to being less formalistic, and comes to the deep essence of spirituality, this is where [the West] and Muslims are facing exactly the same crisis. This is where we need to reform our understanding of Islam: our educational processes and our educational methodology that we have within the Muslim communities in the West”.
Professor Ramadan recognizes that the common challenge of extremism in religion generally throughout the world can be overcome only through education. This was a foundation for Thomas Jefferson, who drafted the American Declaration of Independence. Jefferson taught that no nation can remain free unless the people are properly educated, that education consists above all the knowledge of virtue, and that no nation can remain virtuous unless both personal and public life are infused with awareness and love of God. The Preamble to the American Constitution stated the corollary of this principle by listing five purposes for establishing the United States of America. Of these, the first was justice, then order (domestic tranquility), national defense, and prosperity, and the last, the product of the others, was freedom.
This set of priorities is classically Islamic, as well as classically American, but this wisdom can be operationalized only when we recognize this fact as the basis for inter-faith understanding and cooperation in pursuit of peace, prosperity, and freedom through compassionate justice.
The praxis or actualization of universal human rights is the true meaning of shari’ah compliance.
Many Muslim scholars say that America is the most shari’ah compliant nation in the world, because it has maintained the vision of its founders as a model of justice, even though the practice has not always reflected this vision. The task of Muslims therefore in helping to develop a global vision and grand strategy for America is to help maintain this vision and apply it both at home and abroad in the pursuit of peace, prosperity, and freedom.