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Presentation at the Islamic Studies School on November 25, 2020 10.00-11.00 ECT by Professor Omar Hasan Kasule MB ChB (MUK), MPH (Harvard), DrPH (Harvard)
1.0 ISLAM = CREED (‘aqidat عقيدة) + LAW OF WORSHIP (ibadat فقه العبادة ) + LAW OF SOCIAL INTERACTIONS (mu’amalaat فقه المعاملات ). الإسلام عقيدة (5 minutes)
1.1 CREED (عقيدة)
The two testaments of monotheism (tauhid توحيد ) and messengerhood (risaalat رسالة) of Muhammad are fixed, universally applicable, and invariable. Monotheism is the basis of civilization because it implies one Creator who created the cosmos and all its contents and who fixed social and physical laws that define relations among humans all components of the cosmos. The messenger is a crucial link between the Creator, the humans, and human civilization hence the great love and respect that Muslims have for their Prophet.
1.2 LAW OF WORSHIP ( فقه العبادات ):
The principles are fixed. The practice is fixed but is flexible within the general principles to deal with difficulty (مشقة) and necessities(ضرورة). The law of ibadat covers the 5 daily prayers (salat. صلاة), fasting of Ramadhan (saum صوم ), the poor tax (zakatزكاة), and pilgrimage (hajj حج ).
1.3 LAW OF SOCIETY (فقه المعاملات ).
The Principles are fixed. Practice is flexible according to space-time factors and local customs. Most of the law is openable to evolve using ijtihad (اجتهاد) and following the principles to deal with novel situations of time, space, and local customs or culture. The Law of society deals with activities of daily living (food, drink, dress, personal hygiene, physical exercise, sports, housing, environmental sanitation), family (marriage, child upbringing, gender equality/equity, divorce, inheritance, etc), economic transactions (selling, buying, loans, investments, gifts, endowments), governance (leadership, consultation, rights, and responsibilities).
2.0 GENERAL CHARASTERICS OF THE LAW (مميزات الشريعة): - 5 minutes
2.1 THE LAW IS PRIVATE (قانون خاص): More than 95% of the Law is privately applied by individuals and families on themselves without any external authority. Most rewards for fulfilling the law and penalties for breaking the law are moral either on earth or in the hereafter. Only a few aspects of the law that affect public interest are enforceable by an external authority for example environmental protection or economic regulation when markets are in disequilibrium or violent crimes. Islam has no priesthood to enforce its Laws. it has only scholars (ulama علماء) who know and interpret the Law for the individuals and families so that they can apply the Law on their own. The scholars are followed because of their knowledge and not because of their formal authority. Their legal interpretation (fatwa فتوي) is advisory. Many Muslim communities today suffer from problems of extremism because they promoted forms of priesthood among themselves.
2.2 THE LAW IS PRACTICAL (قانون عملي): The Law is practical and not utopian. It solves real problems and issues in real-time and space. It deals with humans with recognition of their human strengths and human weaknesses. It encourages and facilitates humans to aim at the ideal but tolerates failures on the way and encourages repentance and correction. Attempts to enforce a utopian vision by individuals or groups can lead to extremism.
2.3 THE LAW IS FLEXIBLE (قانمن مرن)
The general purposes and principles of the law are fixed but most of the practice is flexible to adapt to existing different circumstances. The law is practical with the aim of solving actual individual and societal problems. It starts with the reality and the problem and uses its principles to reach a solution. It does not impose a theoretical solution on all situations without discrimination. The following are examples of flexibility. Physical acts of ibadat are adapted for the weak and the sick. Dry ablution (tayammum تيمم) is carried out instead of ablution with water (wudhu وضوء) if there is a skin disease preventing the use of water or in extreme cold. The sick can pray sitting down, lying on the side, or just moving any part of the body for example the eyes. The sick can feed the poor if they cannot fast. Some pilgrimage (hajj) rites can be abridged for the sick and weak.
2.4 THE LAW EVOLVES AND EXPANDS (الفانون يتطور ويتوسع)
The law is evolutionary and expansive. It evolves new solutions to novel challenges that were not known before. This is achieved through the process of ijtihad. Examples are legal opinions on arising issues of organ harvesting and donation, in vitro fertilization, artificial life support, research on embryos, etc. It must be emphasized that the evolution and expansion of the law are in the applications of the basic principles. The basic principles remain stable and constant and cannot be changed.
3.0 THE LAW: HIGHER PURPOSES (maqasid مقاصد) and PRINCIPLES (قواعد)- 5 minutes
3.1 HIGHER PURPOSES OF THE LAW (maqasid مقاصد)
The law was revealed to achieve 5 higher purposes which are its legal theory and overall guide. Solutions to actual practical problems especially the complex ones should be from the vantage point of these purposes. The first purpose is the protection of religion and morality (hifdh al ddiin حفظ الدين). The second purpose is protecting life and health (hifdh al nafs حفظ النفس ), The third purpose is protecting the family and procreation (hifdh al nasl حفظ النسل). The fourth purpose is protecting the human mind and intellect (hifdh al aql حفظ العقل). The fifth purpose is protecting property and resources (hifdh al maal).
3.2 PRINCIPLES OF THE LAW (qawaid قواعد)
The law has five principles that guide practical applications: First: The principle of intention (qaidat al qasd قاعدة القصد) states that the validity of actions depends on the underlying intentions (al umuur bi maqasidiha الأمور بمقاصدهاMajallat Article No 2). Good intentions give rise to valid actions and bad intentions give rise to evil actions. The second principle is that assertions must be based on certainty and proof (qa’idat al yaqeen قاعدة اليقين ). Certainty cannot be voided by a doubt (al yaqeen la yazuul bi al shakk اليقين لا يزول بالشك Majallat article No 4). The third principle is of injury (qa’idat al dharar قاعدة الضرر) we should not cause harm and if it occurs, injury must be minimized and benefit must be maximized (la dharar wa la dhiraar لا ضرر ولا ضرار Majallat article No 19). The fourth principle is that of difficulty (qa’idat al mashaqqat قاعدة المشقة). In case of difficulty all rules and prohibitions are suspended in favor of saving life (almashaqqat tajlib al taysiir المشقة تجلب التيسير Majallat article No 17 al daharuuraat tubiih al mahdhuuraat الضرورات تبيح المحظورات Majallat article No 21). The fifth principle is that local custom has the force of Law (al ‘aadat muhakkamat العادة محكمةMajallat article No 36).
4.0 PRINCIPLE OF CUSTOM (قاعدة العادة)
4.1 INTEGRATION OF LOCAL CUSTOMS
Islam did not come to destroy existing customs but to reform and incorporate them into Islamic law. This is the basis of cultural diversity because we find within the body of Islam many cultures that have been Islamized. Prophetic medicine was the medical practice at the time of the Prophet. He accepted and use some while he did not talk about others (hence permissible). The prophet found farmers in Madina grafting their date trees and accepted their custom.
4.2 TOLERANCE OF DIVERSITY
Islam allows for cultural diversity. The prophet accepted the customs of the women of Madina who were more assertive and less shy than the women who migrated from Makka. Beduin women were even more assertive and vocal and could ask questions that Madinan women feared to ask. There are variations in the Muslim world of dress and food. Meat for example is allowed if it fulfills the basic laws of (not a carnivore, slaughtered, not pork).
4.3 INCORPORATION OF MORAL VALUES
The integration process was to introduce moral values into local customs. The Prophet accepted the pre-Islamic custom to help your brother whether he is oppressed or he is the oppressor(). He explained a moral modification that helping an oppressing brother is by stopping him from oppressing others.
4.4 ISLAM INCORPORATES EUROPEAN CUSTOMS
Islam therefore will not wipe away all that is good in European culture. It will renew and incorporate it in the law to become part of the cultural mosaic of the wide-wide ummat. Many European customs will be incorporated as they are because they conform to Islamic moral precepts. Some customs may require infusing Islamic values into them before incorporation. Some may need modifications to avoid contradicting fixed purposes, principles, and regulations of Islamic law.
5.0 PRINCIPLE OF CUSTOM FROM THE MAJALLAT
5.1 Article 36: (العادة محكمة) A custom is a legal ruling
What is customary is accepted as a legal ruling if there is no specific text from Qur’an and sunnat contradicting it. In this way, local customs can be incorporated into the law and can be applied. The following sub-principles are derived from the above principle.
5.1 Article 37 (استعمال الناس حجة يجب العمل بها) Custom is reliable evidence
A customary practice by people is accepted binding legal evidence. This means that a dispute can be resolved based on what is the customary practice in an area.
5.2 Article 38 (الممتنع عادة كالممتنع حقيقة): The improbable event by custom is considered improbable in reality
This principle implies that we reject the claim of occurrence of an event if it is not probable or possible customarily.
5.3 Article 39 (لا ينكر تغير الاحكام بتغير الازمان): Legal rulings change with time.
This principle reflects the flexibility of the law that with a change of time and conditions or people new legal rulings are necessary. This change is applications and not the basic principles and practices of social laws that are fixed. The changes are in the open part of the law based on ijtihad. This underlies the change of customs and cultures with time and place. For example, consultation is an obligation in reaching decisions of public implication (Surat Al Shuura: 38 and Al Imraan: 159) but the method of consultation can change from place to place and from time to time.
5.4 Article 40 (الحقيقة تترك بدلالة العادة): A reality can be rejected on the basis of customary evidence
This is similar to the principle in article 39. An example is given if a person takes an oath to eat a tree. He is not obliged to eat the trunk, roots, or leaves of the tree because the customary meaning of eating a tree is eating its fruits. This means that pronouncements or words are interpreted according to the custom and not their literal meaning.
5.5 Article 41(انما تعتبر العادة اذا اطردت او غلبت): A custom is what is consistent and predominant
The above-mentioned rulings relating to custom apply only to those customs that are consistently practiced and predominating among the majority of the people in an area.
5.6 Article 42 (العبرة للغالب الشائع لا للنادر) A custom is recognized as predominant, common and not rare:
This principle has the same implication as the principle in article 41 above.