Wednesday, September 11, 2024

Love grows with time in Arranged Marriages and decreases over time in "love marriages"

Studies show Love grows with time in Arranged Marriages and decreases over time in "love marriages":

How Love Emerges in Arranged Marriages: Two Cross-cultural Studies
Robert Epstein, Mayuri Pandit and Mansi Thakar

Journal of Comparative Family Studies
Vol. 44, No. 3 (MAY-JUNE 2013), pp. 341-360 (20 pages)
Published By: University of Toronto Press
Content source
https://www.jstor.org/stable/23644606

Abstract
Two studies (N = 52) examined how love emerged in arranged marriages involving participants from 12 different countries of origin and 6 different religions. The first study (n = 30), mainly qualitative in design, found that self-reported love grew from a mean of 3.9 to 8.5 on a 10-point scale. A number of factors were identified that appeared to contribute to the growth of love, the most important of which was commitment. In the second study (n = 22), mainly quantitative in design, 36 factors that might contribute to the growth of love were assessed, with participants indicating on a 13-point scale (from -6 to +6) whether each factor made their love grow weaker or stronger. Love grew from a mean of 5.1 to 9.2, and sacrifice and commitment emerged as the most powerful factors in strengthening love. These and other factors appear to work because they make people feel vulnerable in each other's presence, a hypothesis that is consistent with a growing body of laboratory research. The fact that love can grow in some arranged marriages—and that this process can apparently be analyzed and understood scientifically—raises the possibility that practices that are used to strengthen love in arranged marriages could be introduced into autonomous marriages in Western cultures, where love normally weakens over time.

Thursday, September 5, 2024

Cascades of Apostasy (Routes to Irtidad)

Cascades of Apostasy (Routes to Irtidad):


1. The 'Desires' cascade

Following the Shahawat (Desires) corrupts the ‘fitrat e saleema’ of a person which will gradually alter his worldview which leads to developing Shubuhaat (Destructive Doubts) about the Religion which, if not cured, lead to weakening and finally loss of imaan.


Following the Shahawat (Desires and sins) -> corrupts the ‘fitrat e saleema’ of a person -> alter his worldview ->  develop Shubuhaat (Destructive Doubts) about the Religion -> weakening and loss of imaan.


2. The 'Ideological' cascades

A Muslim’s worldview can be directly corrupted by education system, media exposure, effect of dominant Kaafir ideologies in society, wrong sohbat (online or offline), personal trauma, etc., leading to shubuhaat about religion.

Solutions involve a combination of both Spiritual and Intellectual approaches.

-Protecting one’s Fitrat e saleema by strengthening one’s spirituality through Tawbah, Taqwa and Zuhd to prevent the Desires cascade.

-Strengthening one’s Islamic worldview by acquiring proper Deeni Ilm (with a focus on Aqeeda, Usool of Deen and ideological undertanding) and safeguarding oneself from all gateways of ideological cascades. It will require a thorough intellectual dismantling of all unIslamic ideologies and worldviews, redesigning the education system (and if that’s not possible then) detoxifying it’s effects, avoiding unnecessary media and internet exposure, adopting Sohbat of good Ulama and knowledgable, pious Muslims, etc.

Further reading:
NO DOUBT : 10 Effective Strategies On How to Deal With Your & Other People's Doubts by Fahad Tasleem https://pressbooks.pub/nodoubt/

Friday, August 30, 2024

Fiqh of Organ Donation and Transplantation

Organ Donation and Transplantation

-Dr. Md. Habeeb Haris


The magnitude of the 'transplantation problem' and the organ demand - Indian scenario:


As of March 2024, India had over 300,000 patients on the waiting list for organ transplants, with at least 20 people dying each day while waiting. This is due to a shortage of organ donors, especially deceased donors, which has not kept up with increasing demand. The demand for deceased donors is substantial because many families lack suitable living donors.


In 2022, India performed over 13,300 living transplants and about 2,700 deceased donor transplants, but the number of donors only grew from 6,916 in 2014 to about 16,041 in 2022. India's organ donation rate is also low, at 0.52 per million people.


In India, living donors comprise 85% of all donors. Around 70%-75% of donors are female. Wives, mothers, and sisters have emerged as most prevalent sources of donation.


[The above figures were taken from https://www.thehindu.com/sci-tech/health/indias-poor-organ-donation-record-continues-to-cost-lives/article67161978.ece]

These figures show us how many lives are affected by this issue and why is it important for us to address the Fiqh aspects of it.

The Quran and Sunnah do not directly mention about organ transplantation. So, related Shariah topics such as ownership of the body, human dignity, prohibition of mutilation, necessity of treatment to save lives, and various Qawaid (Maxims) of Fiqh such as choosing the lesser harm to avoid greater harm, etc., are used by the Ulama to arrive at a ruling through Ijtihad. This is the reason for multiplicity of views on this and many other recent medical issues.

Types of Transplantation of organs


Transplantation of animal organs (Xenograft)

Transplantation of an organ from one place of the body into another place of the same person (Autograft)

Transplantation of organs of a living donor into recipient (Allograft)

Transplantation of the organs from a dead human donor



Transplantation of animal tissues/organs (Xenograft)

1. 
From Halal and Islamically slaughtered animals (goat, etc.) 
 It is permissible to use organs of such animals for transplantation or other medicinal purposes. 
 ‘There is no harm in treatment with bone if it is the bone of a goat or cow or camel or horse or any other such animal except the bone of swine.’ (Al-Fatawa Al-Hindiyyah: 5/354)

2. From Haram animals and swine 
Transplantation of their organs is not allowed normally. It's allowed only with the following conditions:

- The organ is necessarily for treatment.

- There is no halal substitute available.

- It has been prescribed by a God-fearing Muslim doctor. 


Transplantation of an organ from one place of the body into another place of the same person (Autograft)

Generally the classical jurists of all the four major schools of Fiqh (Fuqaha) have allowed it for treatment purposes when there is a medical need. (Imam Abu Yusuf’s opinion in Hanafi fiqh (see Badai us-Sanai: 5/133), Imam Ahmad (Al-Jame’ li ulum al Imam Ahmad: Hadith: 30711) and Imam Shafi (as explained by Imam Nawawi in Al-Majmou: 3/139) 


The International Islamic Fiqh Academy (IIFA) of the Organisation of Islamic Countries (OIC), Jeddah resolved, “
An organ may be transplanted from one part of the body to another part of the same body, provided it is ascertained that the benefits accruing from this operation outweigh the harmful effects caused thereby; also provided that its purpose is to replace a lost organ, reshape it, restore its function, correct a defect or remove a malformation which is a source of mental anguish or physical pain.” [IIFA Resolution No. 26 (1/4)]

The Fiqh Academy of the Muslim World League (MWL), Makkah resolved, “Taking a part of the human body--a piece of skin or bone and transplanting it into another place of the body of the same person in case of necessity is allowed”. ('Makkah Fiqh Academy': 200-201)

Islamic Fiqh Academy, India also passed a similar resolution. (see 'Naye Masail aur Fiqh Academy ke faisle': 215)


Conditions for Autograft permissibility:

  • The part was not amputated as a punishment in judicial amputation (Hadd or Qisas). 
  • It is medically necessary and there is no other alternative. It is not allowed just for beautification purposes.
  • Harm of this surgery is less than the harm caused if it is not done. 
  • There is a high probability for this surgery to be successful. 


Transplantation from a Living Human Donor

Allowed
 if the organ is:
-Self-regenerating, such as blood and skin.
-From part of an organ that was removed due to a medical deficiency, such as the cornea of the eye that had to be removed due to another disease.
-Is not single; and removing it doesn't cause significant loss of function or risk of death, like kidneys, then donation of these organs is allowed to save the life of another human being.

Forbidden if it is:
- a vital organ, such as the heart, without which the donor cannot remain alive.
- an organ such as the cornea of the eyes, donating which deprives the donor of a primary function of his body. 
-Transplantation of genitals and gonads is not allowed.
[Al Qadhaya al Tibbiya al Muasarah: 490 and IIFA Resolution No. 26 (1/4)]

General conditions:
-Allowed only when no alternative is available.
-
It should not be done for financial reasons (selling an organ), because under no circumstances should a person’s organ be sold.
-Proper consent should be taken, which should be fully voluntary and without any pressure (social, emotional, financial, family pressure, etc.).

-After transplantation of an organ, there should be no apparent unsightly changes in the body that resemble mutilation.
-There should be a good chance that the person to whom an organ is given will be benefited by the transplantation.

Mufti Taqi Usmani adds: 
Every effort should be made to find an organ donor who is a Muslim for a Muslim recipient and a Muslim's organ should not be given to a non-Muslim. (Fatawa Usmani: 4/225)
However, other scholars say that this is not an absolute condition but only desirable.

Transplantation from a Dead Human Donor

There is a difference of opinion on this too. The majority of the scholars and Fiqh bodies globally are in favour of it's permissibility.

The 
International Islamic Fiqh Academy (IIFA) says, "It is allowed to transplant an organ from the body of a dead person, if it is essential to keep the beneficiary alive, or if it restores a primary function of his body, provided it has been authorised by the deceased before his death or by his heirs after his death or with the permission of concerned authorities if the deceased has not been identified or has no heirs. [IIFA Resolution No. 26 (1/4)]


The Islamic Fiqh Academy, India is against it. It resolved, “If someone expressed his wish that after his death his organs may be used for transplantation purpose it cannot be considered as Wasiyat (will) according to Shariah and is invalid according to Shariah and such a wish is not to be honored.” (Islamic Fiqh Academy, India - Fiqhi Seminar in New Delhi 1-3 April 1989)


                                           Range of fatawa on transplantation of human organs


Arguments of those who Oppose human organ transplantation

-
Human Dignity and Sanctity: Human body, whether living or dead, should be honoured. The Quran says,
 “We have honoured the sons of Adam and conveyed them on land and sea and provided them with good things and favoured them greatly over many We have created.” (Surah Bani Israil, 17:70) 
 The prophet Muhammad 
 rebuked a man who broke a bone of a corpse that he found in a cemetery. The prophet said, “Breaking the bones of a dead man is like breaking the bones of a living man (in sin).” (Abu Dawud: 3207)


-
Commodification: Most of the classical Fuqaha have forbidden utilising parts of the human body so that man should not become a commodity. This is against his dignity. (for example, Al Bahr al Raiq 6/81)


-
Ownership: Human being is not the owner of his body. Charity requires ownership of the things which one wants to donate, or he should be permitted to do so from the real owner. Our body is an Amanah of Allah so its organs cannot be donated or sold. 

-Prohibition of Mutilation: Separating a part of a human being from his body, which brings no bodily benefit to him, is considered as an act of mutilation.


Arguments of those who Permit 
human organ transplantation

-Necessity: Harvesting the organs from living or dead human donors for transplantation is allowed due to medical necessity as according to the Shariah, even the prohibited things become permissible for saving life or a critical function of a person.
The Quran says,
“But whoever is forced (by necessity), neither desiring (it) nor transgressing (its limit), there is no sin upon him.” (Surah Baqarah, 2:173)  

The Scholars also cite the famous principles of Fiqh in this - ‘Necessities permit prohibited things’. (Al-Ashbah: 8/84) and 'Difficulty requires ease'. (Ibid.)

Al Binaya, the commentary on the famous Hanafi fiqh text 'Al Hidayah' states, "Drinking blood, urine and eating dead meat for medication and treatment is allowed if a Muslim physician states that his cure lies in it and he finds no lawful medicine which can substitute it." (Al-Binaya: 12/271)


-Organ harvesting is not mutilation or dishonouring: Surgical procedures for organ harvesting do not come under mutilation of human body as there is no disfigurement or disrespect involved in it. It is a professionally performed surgical procedure.
Moreover, it is known from various fiqh examples that even disrespect of honourable things is permitted for saving a life if needed. (Vide Khulasatul Fatawa: 4/361)

-Human dignity: If someone donates a part of his body to others, neither does he feel dishonoured nor do the other people feel so; rather he is more respected in the society. That is why prominent leaders and celebrities of the society bequeath to donate their body parts and this is considered as a virtuous, altruistic and humane act. 

-Sale of human organs is prohibited: Even those scholars who permit transplantation do not allow sale of organs so there is no question of reducing the human body to a 
commodity.

-Benefit to humanity: Transplantation is a source of removing pain and suffering from human beings and has individual, collective and social benefits. It is a great example of sympathy and sacrifice.

-
Ownership and Utilisation of human parts: Blood donation and transfusion from other human beings has been almost agreed upon as permissible in Shariah. If absolute utilisation of any part of the body is regarded to be an act of dishonour or crossing the limits of ownership, it should be unlawful too, as blood is also a part of the body. Moreover, we do not absolutely own our wealth too. It is also an Amanah of Allah but giving it to others is not considered as infringing upon the ownership of Allah. 

The early Fuqaha prohibited utilisation of human organs because in their time, utilisation of human organs was considered to be an act of insult, desecration and objectification. Such methods were also not invented in that age so that organs of the human body could be utilised gently and gracefully. 
(These arguments have been summarised from 'Jadeed Tibbi Masail' of Mufti Abubakar Qasmi)




Wednesday, August 21, 2024

How Ilm Must Be Sought! Avoiding the Modern Pitfalls in Learning the Deen

Ilm Must Be Sought!

We live in era in which technology is advancing like never before. Somewhere between the inspirational tweets on Twitter and the quick tutorials on YouTube, concepts of sacrifice and hard work have disappeared and become almost foreign to us. We have mistaken following scholars on Twitter or liking their Facebook pages as a modern form of sitting with a shaykh.

While we are no longer required to travel long distances like the scholars in the past, there are still sacrifices which must be made for ‘ilm. That sacrifice could be adjusting our schedules, taking out time to find a local scholar, and might even require giving up on Halo or Call of Duty for a couple hours of weeks (I never said it was going to be easy!). The ‘ulamā of the past were very particular in making sure they took the proper steps in acquiring knowledge, as doing so would help them appreciate the value of ‘ilm.

Ibn ‘Abbas, a prominent companion and relative of the Prophet ﷺ would say,

“I would sometimes hear that another companion had knowledge of a certain ḥadīth (which I did not know). If I had wished, I could have called him, and he would have taught me the ḥadīth here. But I, myself, would go to his door and learn the ḥadīth there.” [Sunan al-Dārami]

Yes, this is Ibn ‘Abbas, the greatest commentator of the Qur’ān. He understood the only way to gain true ‘ilm was through giving it its due respect and sacrifice.

Avoiding the Milk-Shaykhs

Allah's Messenger (ﷺ) said:

"Verily, Allah does not take away knowledge by snatching it from the people but He takes away knowledge by taking away the Ulama (scholars), so that when He leaves no Alim (scholar), people turn to the ignorant as their leaders; then they are asked to deliver religious verdicts and they deliver them without knowledge, they go astray, and lead others astray.” [Sahih Muslim 2673]

Another phenomenon which has become widespread today is studying without actual ‘ulamā; some choose the path of “self-studying” (with help from Shaykh Google of course), while others decide to study with unqualified teachers who might have good speaking skills (also known as “milk-shaykhs”). We would never adopt these methods to learn medicine, law, or anything else, so how can we be comfortable studying the commandments of Allah and his Messenger ﷺ this way? It is worth noting the Messenger ﷺ, when prophesizing the widespread and rampant ignorance to come before the Final Day, never said it would be due to a lack of resources. Rather, he mentioned two reasons: the absence of ‘ulamā and giving unqualified people positions they shouldn’t have. 

Alḥamdulilāh, many ‘ulamā are still around and can be easily found in our localities. The onus is on us to make sure they aren’t absent from our lives, thus opening the door for the unqualified to fill in the void.


[Adapted from an article by Shaykh Omar Baig (Mississauga, Canada) https://enterthesunnah.com/2015/12/02/seeking-knowledge-then-vs-now/]

Sunday, August 18, 2024

Philosophy of Medicine - Islamic vs. Western

Philosophy of Medicine - Islamic vs. Western

-Dr. Md. Habeeb Haris

Islamic and Western philosophies approach medical practice with distinct perspectives shaped by their broader worldviews, though there are some overlaps.

 1. Theological Foundation vs. Secular Foundation:

   - Islamic Philosophy: Islamic philosophy of Medicine is deeply rooted in the Islamic Epistemology. It's values are based on the Qur'an and Sunnah. The approach is theocentric, meaning it places God at the center of all considerations. Medical practice is seen as a form of worship, a part of fulfilling God's will, and serving humanity, with a strong emphasis on the sanctity of life, the spiritual role and moral responsibility of the physician, and the importance of intentions (niyyah).

   - Western Philosophy: Western medical practice often stems from a secular, humanistic foundation and is influenced by ancient Greek, Roman, and Enlightenment philosophies. Philosophical approaches in the West may vary widely, from utilitarianism to deontological ethics, often focusing more on individual rights and social contracts. 

 2. Holistic vs. Analytical Approach:

   - Islamic Philosophy: Islamic medicine tends to take a holistic approach, considering not only the physical aspects of a person but also the spiritual, psychological, and social dimensions. The mind, soul (ruh) and body are interconnected, and medical treatment often involves addressing all these aspects. Prayers, supplications, family and community support, and trust in God play a role.

   - Western Philosophy: Western medical practice is typically more analytical and reductionist, often focusing on the physical body and biological mechanisms. Cartesian duality which has significantly influenced the Western medicine envisions the mind and body separately. (Rene Descartes, a prominent philosopher, proposed the concept of mind-body dualism.) However, in recent years, there has been a growing interest in holistic approaches, but these are often seen as complementary or alternative to mainstream medicine.

 3. Ethical Decision-Making:

   - Islamic Philosophy: Ethical decisions in Islamic medical practice are guided by the objective morality of the Sharia (Islamic law), which derives from religious texts. Scholars may issue fatawa (legal opinions) to address new medical issues, ensuring that practices align with Islamic values.

   - Western Philosophy: In Western medical ethics, decision-making is based on a subjective morality primarily guided by secular ethics. Less influenced by religious or cultural norms. It often involves balancing the four main ethical principles—autonomy, beneficence, non-maleficence, and justice. Patient autonomy is particularly emphasized, with individuals having the right to make informed decisions about their own care, even if these decisions conflict with medical advice.

 4. Preventive vs. Curative approach:

   - Islamic Philosophy: There is a strong emphasis on disease prevention. Many Islamic teachings inherently have a benefit of disease prevention. Encourages the use of natural treatments alongside conventional medicine.

   - Western Philosophy: Often prioritizes treatment and intervention over prevention.

 5. Community vs. Individual Focus:

   - Islamic Philosophy: Learning and practicing medical science is a collective obligation (Fardh e Kifayah) on the community as a whole and the physicians are honoured for discharging this religious obligation on behalf of the entire community. There is a strong emphasis on community welfare in Islamic medical practice. The health of the community is often considered alongside individual needs, and public health measures are encouraged as a collective responsibility. Islamic teachings promote the idea of mutual care and responsibility among believers. 

   - Western Philosophy: While public health is an important aspect of Western medical practice, the emphasis is often on individual rights and choices. Medical decisions are typically seen as the domain of the individual, with less emphasis on the community’s role in personal health decisions.

 6. Understanding of Health and Disease, Life and Death:

 - Islamic Philosophy: Health and life are considered as a trust and gift of God to be preserved and protected as well as a means of test, to be utilised properly for achieving eternal success in the Hereafter. Disease, pain and suffering are considered as a part of Destiny and a test from God to be shown patience for, even as prevention and treatment are sought. Sickness is also considered as a means of spiritual growth, forgiveness of sins and increasing one’s rewards and ranks with God.

Seeking treatment is considered as  religiously encouraged (Sunnah) and, some times, even obligatory. Death is not considered as an end. Rather it is seen as a gateway to an eternal life and a means of meeting with God Almighty. However it is not to be sought or desired and generally all possible effort is to be made to preserve life.

   - Western Philosophy: Sees them only through a biological lens and disease is seen mostly in a negative light.

 7. Role of the Physician:

   - Islamic Philosophy: The physician in Islamic thought is seen as a Khalifa (Agent) of God in healing the sick on His behalf and as a steward of God's creation. They are not only responsible for the physical health of their patients but also their mental and spiritual well-being. The physician is expected to act with Ihsan (excellence) and Taqwa (God-consciousness), viewing their work as a form of worship.

   - Western Philosophy: In Western practice, the physician's role is primarily of a professional providing medical care based on scientific knowledge. The spiritual dimension is ignored.

In summary, the Islamic and Western philosophies differ significantly in their foundational principles, approach to ethics, and the role of spirituality in medical practice.

Tuesday, July 23, 2024

Islamic political governance vs Modern Democratic systems - How Fiqh preserved rule of law

What is Sharia? Part 3 of 3: Governance and the Rule of Law

by Dr. Wael Hallaq (Professor at Columbia University and award winning author)


[Transcribed from his speech delivered at the College of Islamic Studies (CIS) https://www.youtube.com/watch?v=xpbsxttTATY&t=1935s ]


(Describes the superiority of the Shariah legal and constitutional framework over Modern Liberal Democratic systems. It also shows how the Fiqh Madhabs preserved rule of law and generally  prevented manipulation of the law by the rulers and ensured the organic separation of the Legislative, Executive and Judiciary)

The 
Islamic political governance had a structure characterized by a robust rule of law 
in fact more robust than anything we see in modern liberal democracies and that the separation of powers was more delineated and more sharply drawn than we nowadays have in Democratic systems. This might shock some people but that's because they do not know enough really about the Islamic side. 


I would like therefore to address three points related to these claims:

- First the robustness of the rule of law.
- Second the quality of the law that rules - these are two different things and 
- Third the nature of the separation of powers in Islam.

1. As for robustness of the rule of law there is a serious serious difference between a law that is substantively and procedurally legislated by the people or rather by men and women and a law that is the result of interpreting statements that are ontologically autonomous.
 Here we ultimately speak of two very different sources of will - the will to rule or the will to law. The First Source is anthropocentric and since the will resides in human beings, the human beings can change them at will. In the Sharia, by contrast, there is a series of principles that are hierarchically organized that make legal interpretation bound by these higher principles


The attention is always geared in the service of the community, as I explained before, the interest of the Believers “being supreme”. but these interests, just because they are Supreme, do not have an autonomous will that decides for themselves what is and is not good for the community of Muslims. 

The fact that a society or culture posit for itself a set of unchangeable higher principles makes it very different from a culture that claims total and unqualified autonomy in determining its own way of life.

 But this is not the only important characteristic of a robust rule of law. One of the most important tests for rule of law is obviously the extent to which the law rules the spectrum of what I call Legal impermanency, ranging from the reasonably unchangeable to total suspension. 

In the Sharia, legal change was piecemeal and particularized reinterpreting very specific cases as they needed more flexibility or new solutions to old problems. This is what I call reasonable unchangeability, because the stability of the law is not to be equated with rigidity or inability to adapt; but with a successful control over arbitrary change, or change due to Will To Power, as we have it in the modern state in the modern period. It is the successful control over the crucial feature of suspending the law when a state declares a state of emergency.

 Radical or fast moving change that is a characteristic of the modern State and modern society is prevented by the notion of consensus (Ijma - which itself guarantees the solidity) and authorization of the madhab.

The Madhab (of Fiqh), that is the legal school in Islam, was not just a substantive legal phenomenon that is substantive law but also a constitutional one. that's why most people don't understand that generally the law everywhere, but in Islam in particular (and that's why it is more robust in itself) if it is formed or conceived of or practiced in a particular way, is itself part of the constitutionalization of the system.

The Madhab was one of the most powerful ways of curbing political decisionism that manipulated the law. The Madhab gave the law a sanctity that has no parallel anywhere in modern systems of governance. This explains why the law in Islam always emerged victorious over all political forces even after Bleak periods of political disarray or crisis. 

As, for instance, happened in the last several decades under Mamluk rule when the Judiciary effectively collapsed or when the early Ottomans instituted the canoon upon their conquest of the new territories in the balkans. Not that it is the same like the Mamluks but it's kind of a unique event in Islamic constitutional history that's when they conquered the balkans, greater Syria, Egypt and the Hijaz. 

In these and all other cases - except of course in the case of the systemically destructive European colonization in the 19th century - in all these cases the rule of the Sharia as the supreme law was eventually restored and really the Mamluk case is the most notorious because in the last 80 to 90 years of Mamluk rule things really collapsed badly but then when the Ottomans came, it's as if nothing happened. It's like everything is back to business. As if this period of 80 years did not almost destroy the material life of Egypt.


 2. Second, the quality of the law that rules. 
People shout ‘the rule of law’ at every turn, but the rule of law is not everything or rather it is not a sufficient condition for justice. there can be a rule of law without Justice being done. In fact many dictatorships insist on the rule of law, Nazi Germany being a spectacular example. 

In order for justice to be achieved the law must not only satisfy the condition of rule of law but also of being itself substantively good, Humane, compassionate, tolerant and primarily attentive to the human subject as the final goal. As the subject of the last lecture and if I were to sum up the findings of my almost five decades of scholarship on this point, I can confidently say that the Sharia scored high on all of these accounts, in fact higher than any modern system of law I know.

This was the gist of my second lecture as I said there is a massive difference between a law that rules for the final goal of creating a regulated ethical life and a law whose final aim is the imposition of order for the sake of increasing 'National' or class power. And that's what we have today. The first attends to the individual and the community. The second to politics and political power.

  1. Third, the nature of the separation of powers in Islam. 

On the surface, it looks as if the powers in both Islam and liberal modernity are the same in terms of division - legislative, judicial and executive. There is legislative power that is separate from the executive and both of these fulfill functions separate from the Judiciary. 

My argument however is that: 
First, the separation of powers in the modern state is a challenge that continues to plague liberal democracies. 

Second, Islam, without an artificial attempt at creating a separation, managed to establish a system of separation because it did not have a unitary state. And because of particular deeply theological beliefs which have a direct impact on constitutional organization. (so when somebody tells you theology, never think it's a bunch of abstract concepts that are not related to it. In Islam the connections are less obvious, but if you understand it correctly, it's quite politically potent.) 

This last consideration that the modern state is unitary gives rise to the starkest fact about Islam which is my third argument, namely, that the legislative power in Islam was more authoritative than its modern counterpart by Leaps and Bounds. 


Before I begin addressing these points and explain what I mean by authoritative, because it can have many meanings, let me say by way of introduction a few things about our modern constitutional predicaments. one of the most fundamental problems in modern constitutionalism is the blurring of lines and overlaps between and among the three powers this often results in conflicts between these powers and gives rise to challenges in interpreting and enforcing the separation.

 On the other hand it is widely acknowledged that a strict separation may lead to rigidity and efficiency, since cooperation between the powers is often needed, if not crucial, for addressing urgent matters. Excessive checks and balances can result in slow decision-making creating difficulty for a government to respond promptly to crisis or enact necessary reforms which are really the constant challenge of modern states. There are always crises and always reforms. there is always something to do for the modern state, if you notice.


 There is also the problem of an overactive Judiciary that's yet another problem where the judicial branch concentrates too much power in its hands. A fundamental concern is the question of democratic legitimacy of such hyper activism of the Judiciary in a liberal democracy where presumably popular will is the Supreme value and the Cornerstone of governance. unelected judges strike down laws that have been enacted by elected elected representatives but this is perceived by many influential voices as highly undemocratic. this effectively constitutes a major tension between a an unelected Judiciary and elected branches, not to mention the problem of imbalance between the branches. 

Finally we cannot overlook what is in my opinion the most devastating critique of modern governmental practices and modes of governance - namely the so-called bloodless constitutional Revolution. So what is this bloodless constitutional Revolution? Bureaucracies are characterized by unelected officials as well as by insulated decision making processes where they themselves legislate adjudicate and execute all at once without resorting to courts or to some organs that are elected. so bureaucracies tend to operate independently of public opinion raising questions about responsiveness to democratic mandates. they are led by professional experts who tend to prioritize technical efficiency and profit over Democratic deliberation; caring little about Democratic processes.

 If we put all these problems together, and there are many more but I don't have time to discuss them, and add to them the flagrant feature of interest groups which we live today very colorfully especially in the United States. I mean the lobbies or the public affairs committees they call them then we understand the problem of democracy in the presumably most democratic state in the world. 

Note that all these problems originate from a distinct European history and all of them except the last that is the bureaucratic domination are the result of reforms and changes that Europe had to implement in order to avoid the brutal life it lived under a merciless and cruel church and feudal and monarchical violence of pathological Dimensions. 


The separation of powers is a political doctrine that was strictly a European medication for a dangerous European disease. Reading Islamic constitutional history makes the reader look at this phenomenon as an anomaly, a painful medicine for a strange pathology. this is part of what I meant in my first lecture when I spoke about comparison and contrast as methods of inquiry.

 It is important to realize that Islam's constitutional division between the powers was not the result of a traumatic experience or a reaction to a violent and oppressive situation. Separation of powers (or what we have come to call separation of powers after Europe made the issue a universal one through colonization) was in its embryonic origins the result of a fairly basic but fundamental theological one, having to do with God's absolute power of ownership which bestows on him the full meaning and capacity of sovereignty. It was an absolutely logical inference to conclude from this robust doctrine that if God owns the world through the Act of Creation then there is no administrator or manager of the world other than him. Any such right to decide in the world must thus be a derivative right authorized by him in form and content. 

From this logical series one must conclude that if man were to act in this capacity - that is as God's delegate or Deputy - then the ultimate authority of rule and decision is not man's and so the punchline ‘no man shall rule man’. But what does it mean that ‘no man shall rule man’? It means that no human being is entitled to decide for others what law governs them by virtue of himself being either a source of law or even as a spokesman for an authority. Instead the law that governs must be communal and deducible from binding higher principles - two absolutely necessary conditions for laws’ validity - these are always there in the Muslim tradition. This is the summation of the madhab - a group of associated jurists who, over time, deduce law through a hermeneutical system on Whose principles they aggregately agree. A field of semiotics that shines a methodological light on God's Will and exemplarity. The collective doctrine of the madhab also meant that the law came from an aggregation of juristic voices representing the community's will. For it is important to note that a law that comes from above, from a higher authority top down is not the same as one that comes ‘from the people, for the people’ as they say. 


The jurists (Fuqaha) of early Islam who articulated the Fiqh, the substantive law, came from the populace. They lived among common people as part of these people and on average they belonged to what we call today middle or middle lower classes. This is the first two or three centuries when the law was formed in substance after that it's too late for the law to become suddenly seriously bourgeois or marxian with marxian kind of analysis. Although many people think that still Marxist analysis, like power analysis of Foucault, are applicable to Islam. A great many of them (the Fuqaha) were Artisans, Craftsmen and Shop owners while some were small merchants or the like.


The jurists were authorized as jurists because the basis of their competence was the very knowledge of the law, which is why the law is known as Fiqh - meaning understanding. Fiqh is to know the law and know it in the most ethical way. That is through a non separation of knowledge and ethics, between law and ethics which constitutes the very authority of the juristic voices. Which means that the law must always issue from an epistemic moral source, not a political one. 

I cannot emphasize for you the fundamental importance of this principle. The implications of this principle are staggering. This means that if a Khalifa or a sultan pronounces on a legal matter then the basis of his pronouncement is not a political but rather legal. For, it is his own personal knowledge of Ijtihad that makes what he says legitimate. That's why the Ottomans, in order to be able to have any real legal power, had to bring the Shaikh al-Islam and put him in the capital.

The Shaikh al-Islam could even depose and execute Sultans which he did. I mean not one, a series of them. So there was always price for the sultan to have a little bit of say in the law he had to depend on the figure of the Shaikh al-Islam. Look at how the circle goes. They couldn't escape it. There was no way of escaping the Sharia - and why - because it was the rule of law. It constituted the ultimate master because it was a culture, it was a habitus. 


But this legislative competence was not located in a narrowly defined body in the way our Parliament and congresses are defined nowadays. Because of their paradigmatic learning and ethical exemplarity, the jurists were the custodians of religion as represented in the Hadith: “The scholars are the Heirs of the

prophets”. One can then say that the so-called legislative has defined Islamic identity, the legislative. 

Notice here, in the three branches of power, the legislative is the most important one in the Muslim tradition. It defined the Islamic identity what is and what is not Islamic, how to go about living in that particular way. It was in other words constitutive of what we might call ‘Islamic culture’ as I emphasized several times. This is why I insist that the Sharia is the culture writ large. 


The cultural and Madhabic basis of the law therefore guaranteed the total autonomy of the legislative making it immune to political intrusions. The Sultans may violate the law but they could not ignore or replace it. They may violate the law but the law stood as their judge and the ultimate Benchmark of Truth. In other words the law stood above anything a king or an emperor did or said, decreed or commanded. The separation between the legislative and the executive the most important part of the doctrine of Separation was therefore not only natural and organic but also provided a robust model that transcends the modern meaning of separation exponentially.


 Suffice it to say that hundreds of Sultans came and went yet none of them even entertained the idea of suspending the Sharia and much less substituted with a law of his own. Now of course, the modern State as you know, suspension of the law is part of what we call the Marshal State. Any state can under pressure resort to this, without any Sultan who said, “oh no let's suspend the Sharia. Now it's my law that applies you cannot do anything in violation of this limited law.” That has never happened and was inconceivable.


To this picture we must add elements that are not structural but historical. So far we spoke about the structure of the legal in Islam. But structures are affected by their environments and the more drastic the force of the environment the more the structure is affected and changed in some way. What I have in mind is the interesting fact that during the third hijri Century Muslim rulers started bringing in mercenary forces to constitute their armies. This process reaching its Pinnacle in the Mamluk Dynasty. 


The introduction of foreigners helped in fortifying the separation and therefore the autonomy of the Legislature. Because these soldiers did not have any cultural or religious claims beyond their executive function. Foreigners who came to rule as the business of rule like dynasties specialized in Rule and so they did their Rule and they didn't bother with the rest of it. ‘Rule’ meaning to provide security, internal and external, and a few other things like taxes. That's the bottom line. And of course they also went to war and gathered booty. But the point is that because they were Foreigners it strengthened the concept of separation and the executive became even more separate from the legislative.


 This brings me finally to Executive competence. Let me Begin by nuancing the sultanic power to legislate. As I said a sultan, a khalifa or for that matter anyone else, including simple farmers and blacksmiths may exercise Ijtihad if they have the necessary juristic training meaning the knowledge, the Ilm. But if they do so they would not be acting in their capacity as Sultans, Caliphs, Farmers or peasants but rather as Mujtahids of one level or another. Sultans and Caliphs did have the right to exercise their own discretion, something that was also called Ijtihad, within a restricted sphere of responsibility. I cannot emphasize enough to you that this sphere was always defined by the Sharia and it is this sphere that was the most significant arena to debate constitutional boundaries. 


The sphere that was defined by the Sharia, that is the realm of executive governance, consisted of general categories that remained unchanged ever since they were conditionally identified in Mawardi's seminal works which he articulated as a schematic summary of Islamic juristic doctrine and practice. This is what I call administrative and Military practice. What interests me here is the comparative thinness of this administrative or bureaucratic practice compared to today’s bureaucratic administrative intrusion which is set to dominate over popular will as I spoke before. The Islamic parallel is a drop in the bucket.

 But let's look at the sultanic duties and functions, namely the executive functions. 


The first is ‘Hifz ud Deen’ that according to one of the most influential exposes of the sultanic functions and which were adopted by many many jurists for centuries and it is by Mawardi himself, the great

Mawardi. That is Preservation of religion. 

Significantly, this preservation must proceed according to the way the religion has been established and sanctioned by the predecessors, the way the tradition has been established. Politically, this is intended to reassert the supremacy of the Sharia over the interpretive and legislative impulses of the ruler, a constitutional act of first order and one that Mawardi as well as every other political Muslim writer insisted on. The implication here is that the ruler is not to initiate any divergent interpretation of the Sharia and must not let any other person or group engage in it either. 
Preservation of religion presumes another requirement to the effect that the Sultan's function includes the diligent application of Deen with a view to making it a praxis. Not just practice but a praxis - something that you do regularly as a ‘technique of the self’.

The second requirement relates to domestic and (third) external security including protection from heretical groups that are seditious and destructive.

The fourth is levying taxes according to the dictates of the law while maintaining proper conduct in the process of collecting and redistributing them. Of course, quite often this was violated but then there was always a friction and a sort of legal militancy to bring them down. 

The fifth is to administer Sharia and Mazalim in a just and fair manner.

The sixth is carrying out the complementary ordinances of the Quranic Hudood.

Finally the sultan must elect trustworthy and competent officials who will act as his deputies in running the affairs of the domains. This requirement implies that the duty of responsibility as well as the accountability in administering the polity, so he cannot just let things run loose.
 

These seven requirements sound like just general theoretical prescriptions but interestingly if you decipher the literature well you realize that each one of them constitutes the exposition of books or fields of knowledge. For example the protection of the Borders translates into what really is the

entire extent of the discourse on Jihad - meaning international law - how you fight, the laws of warfare, etc., etc., which seem to me - now it's interesting - that it seems to me that they are much more honorable than anything we see today.

Notice that this if you look at the seven carefully that none of them, none of these functions, intrude on the legislative. They don't involve legislative functions. You know, the executive executes. 

Finally, it is easy now to understand the Constitutional place of the Judiciary in Islam. Because of the nature of knowledge and ethics the executive can never make law. It can only give administrative pronouncements on the seven executive fields I just enumerated. Which means that it cannot dictate to the Judiciary the substance of the law that the latter applies in their courts. 


The only exception to this are the Ottomans who kind of pushed the jurist in the hierarchy of the Empire, not every everywhere, but the judicial hierarchy of the Empire to apply certain rules within the Madhab. That's the most radical interference in the Sharia. But that still is not the Sultan's law. It is just simply the Sultan's preference for one of the opinions or options available within the Madhab, within the Sharia. Only the legislative culture as a sociology of knowledge can supply the personnel to serve in the Judiciary. The substantive loyalty of the Judiciary was therefore to the legislative. The Judiciary was only appointed and dismissed by the executive. And so, in so far as the technicalities of appointments and dismisses were concerned, it was the executive that held sway.

These were the fundamentals of the system and because they were fundamentals they endured until the beginning of the 19th century. With colonialism, everything changed. The legislative was destroyed and the executive held almost total power. This is the key problem of modernity, that this balance, this ecology I've been describing disappeared in the 19th century because the executive took over the legislative. So the legislative collapsed totally. Where people wonder what happened to the crisis in modern Islam and the crisis of this and the crisis of that. This is fundamental to what happened to Muslims in the 19th century. The ecological balance developed in Islam since the Quran saw light in Mecca now underwent systematic and systemic destruction. But this is only half of the story, half of the destruction. The other half occurred when Muslims were converted to the colonialist orientalist narrative, to this new doctrine. Accepting to read their own history through the prism of colonial officers and Colonial Scholars who spoke about Islam and Muslims as human animals and effectively treated them as such. 


Wednesday, July 10, 2024

Is “hate the sin not the sinner” idea correct?


Revisiting the idea of “hate the sin not the sinner”


I used to say this phrase a lot during my speeches, like some other well- known and respected preachers. But recently, I’ve felt that this might not be a valid principle for Muslim speakers, activists, or scholars, for a number of reasons. So please see the following.

If “hate the sin not the sinner” is true, then we would ask a father to hate the act of rape, but not the rapist who raped his daughter. Think about it, is this even possible?

Furthermore, for Muslims, there is no definite evidence from our scriptures that reflects this distinction between the act and the actor (i.e., the sin and the sinner). In fact, it’s the other way around.
The Prophet  said: “A fornicator who fornicates is not a believer while he commits fornication...” (Bukhari).

There are numerous aḥādīth that say Allāh hates the sinner. Some examples are mentioned below:

A) Whoever does not call upon Allāh, He will hate him (Sunan Tirmidhi, Hasan)

B) The Khawārij (religious extremist) are among the most hated creations of Allāh (Sahih Muslim)

C) The most hated amongst people in the sight of Allāh are the ruthless argumentative (people) (Sunan Tirmidhi, Sahih)

D) Allāh hates the profligate and the obscene (Al-Jami’ As-Saghir, Sahih)


From a legal standpoint, the criminal gets punished for his crime by the court, and the sinner gets punished for his sin by Allāh. So how do we differentiate between the two?

From an Islāmic standpoint, we can consider the following ḥadīth:

“Whoever loves for the sake of Allāh, hates for the sake of Allāh, gives for the sake of Allāh, and withholds for the sake of Allāh has perfected the faith” (Al-Jami’ As-Saghir, Sahih)

The ḥadīth is clear about hating someone for the sake of Allāh. How can we reconcile this ḥadīth with the principle of “hate the sin not the sinner”?

Also, to put things in perspective, in recent years, “hate the sin not the sinner” is often revived by Christian denominations in debates about homosexuality and gay marriage. (https://www.usatoday.com/story/news/2017/01/04/kim-burrell-hate-the-sin-love-the-sinner/96158416/)

I also understand that there could be a problem with using the word “hate” in the English language as a translation of بغض, because hate sometimes entails potentially doing harm, like in the phrase “hate crime”, and can have negative connotations. But when we are talking about hating a sinner with a “religious hate”, it is different from the English connotations. So, we can consider the following points:

● Religious hate does not allow any harm to be done, as clarified by scholars ( Awn-ul-Mabood fi Sharh Abi Dawood no. 4681) 

● Religious hate also doesn’t mean absolute hate, rather it’s connected to that sin only; you might love the same person for some other positive aspect.
● Religious hate also means that this kind of hate should come out of love and goodwill, and that we should constantly wish and make du’ā` for the guidance of those people, just like the Prophet made du’ā` for Abu Jahl, the people of Ṭā`if, etc. 


Moreover, why would we teach people to hate? Why not teach absolute love?

A. We are not teaching people to harm others with this “religious hate” (as could be misconstrued via the English connotations). Rather, we are asking them to dislike the sinner because that dislike is something uncomfortable. By forcing ourselves to engage in this discomfort, we can avoid sinning ourselves, knowing that others may dislike us as well. The feeling of dislike that we are calling religious hate, is necessary to give us the motivation to avoid sin. (Carmen Marrick, Hating Evil: Understanding the Role of Evil in Interpersonal Hate)

With that in mind, arguments like “hate the sin not the sinner” serve to desensitize us, and actually push us towards sin by way of omitting hate of the sinner. 

B. Each culture has its own values and standards that predispose its denizens to love or hate certain things. If you go against the social and ethical norms of that society, they will invariably dislike you. For example, if I, as a Muslim father, teach my kids that homosexuality is prohibited in Islām, or that gender is biological and binary, then someone from this society might hate me and label me as homophobic or transphobic. Given my Islāmic values and standards, I will hate them for teaching my kid about these things, and I might call them Islāmophobic.

C. In Islām, we are not egocentric but God-centric. We don’t hate something because of our own personal disliking, rather whatever God dislikes, we dislike as well.

D. We can’t have an absolute love for criminals, rapists, murderers, oppressors, etc. Therefore, we would use the term conditional love rather than absolute love to be realistic/pragmatic.

Finally, I don’t know what the replacement for “hate the sin not the sinner” could be; it would have to be something that more closely aligns with Islām. Maybe we can say this, as suggested by Shaykh Hatem Al- Haj: “Hate of a sin is the hate of a hater, and hate of a sinner is the hate of a lover.” (Love and Hate in Islām, Page 62).


  • Taken from Islamic Vs Post-Modern Paradigm of Sexuality, by Dr. Asif Hirani