Islamicus No.4,2010 PDF

Hamdard Islamicus
Vol. XXXIII, Nos. 3 & 4
ALLAH IS THE LIGHT OF THE HEAVENS AND THE EARTH
Quarterly Journal of Studies and Research in Islam

Vol. XXXIII July-December 2010 Nos. 3 & 4
Editor-in-Chief
HAMDARD ISLAMICUS
Mrs. Sadia Rashid

Advisory Board Dr. Manzoor Ahmad Former Rector International Islamic University Islamabad, Pakistan Dr. Zafar Ishaq Ansari Vice-President (HSR) and Director Islamic Research Institute International Islamic University P.O. Box 1035, Islamabad, Pakistan. Prof. Dr. S.U. Balogun Chairman Department of Islamic Studies Usman Danfodiyo University Sokoto, Nigeria. Dr. Umar Chhapra. Research Advisor Islamic Research and Training Institute of the Islamic Development Bank, Jeddah Saudi Arabia. Prof. Dr. Khaled Abou El Fadl Prof. of Law, UCLA School of Law University of California, U.S.A. Prof. Dr. Murad Hofmann Graurheindorfer St. 23 D-53111 Bonn, Germany. Prof. Dr. Abdul Azim Islahi Islamic Economic Research Centre King Abdulaziz University Jeddah, Saudi Arabia. Dr. S.H.M. Jafri Former Professor Islamic/Pakistan Studies The Aga Khan University Karachi, Pakistan. Dr. A.H. Johns Professor Emeritus The Australian National University Canberra A.C.T. 2601, Australia. Prof. Dr. Ilzamudin Mamur, MA Professor of Education of the Faculty of Islamic Education The State Institute for Islamic Studies (IAIN) Sultan Maulana Hasanudin Jl. Jend. Sudirman No. 30, Serang, 42118 Banten, Indonesia. Dr. Hisham Nashabe Dean of Education Al-Makassed Philanthropic Islamic Association P.O. Box 5832, Beirut, Lebanon. Seyyed Hossein Nasr Professor of Islamic Studies The George Washington University Gelman Library 712 Washington, D.C. 20052 U.S.A. Prof. Dr. Sulayman S. Nyang Howard Univesity Washington D.C. U.S.A. Prof. Hakim Naimuddin Zubairy Life Research Professor Hamdard Institute of Research on Unani Medicine Hamdard University Madinat al-Hikmah Karachi-74700 Pakistan.
Hamdard Islamicus 2 Vol. XXXIII, Information for Contributors Nos. 3 & 4

Hamdard Islamicus is published by the Hamdard Foundation Pakistan, Hamdard Centre, Nazimabad-3, Karachi-74600, Pakistan. Manuscripts must be typed doublespaced with at least one-inch margins on all sides. References and notes should be marked serially and placed at the end of the manuscript. Authors are requested to quote the English translations of Quranic verses from the editions of A. Yusuf Ali or Pickthall only. Two complete sets of the manuscript, illustrations and tables should be sent to the Editor-in-Chief Hamdard Islamicus, Hamdard Foundation Pakistan, Hamdard Centre, Nazimabad-3, Karachi-74600, Pakistan. Contributors must send one electronic version of their manuscript, as MS Word file only, saved in CD or thorough e-Mail. All correspondence regarding the manuscript will be directed to the principal author. After the article is published in Hamdard Islamicus, 2 copies of the issue will be sent by air mail to each contributor. 25 reprints will be sent to the principal author by surface mail. The Hamdard Foundation Pakistan does not necessarily agree with all the statements made or opinions expressed by the contributors who are themselves responsible for their views or comments. The authors are requested to provide along with the manuscripts, their permanent and present postal addresses, phone numbers, mobile number, and e-Mail address. Authors must include in their articles, variants of Arabic and Persian terms in the original script also. Reviews For reviews Two Copies of the book must be sent, otherwise the book will not be reviewed. The sacred verses of the Holy Quran and the Traditions of the Prophet ( ) have been printed for the benefit of our readers. You are asked to ensure their sanctity. Therefore the pages on which these are printed should be disposed off in the proper Islamic manner.
Hamdard Islamicus
Quarterly Journal of Studies and Research in Islam

Vol. XXXIII
Editor-in-Chief: Mrs. Sadia Rashid Editor: Dr. Ansar Zahid Khan Associate Editor: J.H. Rizvi Published by Hamdard Foundation Pakistan, Nazimabad, Karachi-74600, Pakistan. Telephones: 36440184, 36616001-4, 36620945-49 Telefax: (92-21) 36611755 e-Mails: islamicus@hamdard.edu.pk hfp@hamdardfoundation.org Websites: www.hamdardfoundation.org [Hamdard Foundation Pakistan] www.hamdardlabswaqf.org [Hamdard Laboratories (Waqf)] www.hakimsaid.info [Idara-e-Said] Articles from this Journal are indexed in Religion Index One: Periodicals, American Theological Library Association, Chicago (U.S.A.) Articles and photographs in this issue may not be reproduced unless previous permission has been obtained from the Editor. Price Inland Foreign Pak. Rs. US $ Annual 500/90/Single Copy 125/25/This issue 250/45/(inclusive of airmail charges) Printed by MAS Printers, Nazimabad, Karachi-74600, Pakistan. * Editorial * The Hijrah Study of Date and Climatic Conditions Shahabuddin Ansari * The Evolution of the Notion of Jihd in the Makkan and Madinan Revelations Dr. Mohammed Farid Bin Mohammed Sharif * Sunnat al-ab A Source for Viable Political Culture Dr. Abubakr Yaqub Imam * Hermeneutics and the Renewal of Islamic Interpretations Dr. Roxanne D. Marcotte * Debatable Issues in Fiqh al-Zakt A Jurisprudential Appraisal Dr. Syed Sikandar Shah (Haneef)
Vol. XXXIII, HAMDARD3 ISLAMICUSNos. 3 & 4 July-December 2010

CONTENTS 5
Nos. 3 & 4
27
49
67
79
* The Poverty of Ijtihd A Case Study of Inellectual Property Rights 103 Samia Maqbool Niazi * PAS and its Islamist Fundamentalism in Malaysia 151 Dr. Ibrahim Abu Bakar * Book Reviews 177
* Affairs of Mutual Consultation (Gleanings from the Pakistani 185 Press) * Obituary 227
Hamdard Islamicus
Objectives
Hamdard Islamicus is an academic journal devoted to Islamic research and scholarship. It is to serve as a forum for scholars to write objectively, analytically and, wherever necessary, critically on Islamic history, philosophy, science, art, culture, archaeology, law and jurisprudence etc. It brings out the achievements of Muslims in the fields of Humanities, Social and Natural Sciences. It aims at defining Islam in terms of its fundamentals in a rational and liberal manner emphasising, at the same time, the basic Islamic ideals of universal brotherhood, tolerance and social justice. It aims at interpreting the teachings of Islam in such a way as to bring out its dynamic character in the context of the intellectual and scientific progress of the modern world. It provides an open forum for a dialogue among the Fundamentalist, Conservative and the Modernist schools of thought among the Muslims aiming at finding a balanced view. It endeavours, through dialogue, to find Islamic answers to the questions relating to the social, political, economic and moral problems of the fast and drastically changing world of today. It transmits through English translations the speeches, learned papers and discourses expressed in Urdu by highly qualified traditional scholars, the ulam, and, in this way, it communicates valuable material, otherwise inaccessible, to the non-Urdu readers. It endeavours to promote better understanding between the Islamic World and the West.
Hamdard Islamicus
Editorial
This is a combined publication of Nos. 3 & 4 issues of 2010 and tries to provide our clients and readers seven articles, book reviews, Gleanings from the Pakistani Press and an obituary on the sad demise of Dr. Mahmood Ahmad Ghazi, renowned scholar and member of our Editorial Advisory Board. The first article by Shahabuddin Ansari (India), who remains engaged in chronological studies of Srah of the holy Prophet ( ), discusses the climatic and seasonal conditions obtaining during approximately eleven or twelve days of the dangerous, arduous and difficult journey by the holy Prophet ( ) and arat Ab Bakr (R.A.) in his article entitled The Hijrah Study of Date and Climatic Conditions. From Malaysia Dr. Mohammed Farid Bin Mohammed Sharif analyses and brings out clearly The Evolution of the Notion of Jihd in the Makkan and Madinan Revelations. His argument is that in the holy Qurn the term jihd mainly referred to peaceful efforts than war. Dr. Abubakr Yaqub Imam (Nigeria) dilates upon the concept of the Sunnat al-ab A Source for Viable Political Culture. In the next article entitled Hermeneutics and the Renewal of Islamic Interpretations Dr. Roxanne D. Marcotte (Australia) deals with the need of renewal of ijtihd in the post modern world. In Debatable Issues in Fiqh al-Zakt A Jurisprudential Appraisal Dr. Syed Sikandar Shah (Haneef) (Malaysia) discusses the problem of levying Zakt in the modern corporate culture as well as in the new economic conditions, unknown to the classical scholars. Samia Maqbool Niazi (Pakistan) has provided us with a comprehensive study of Intellectual Rights in Islam in her research paper entitled The Poverty of Ijtihd A Case Study of Intellectual Property Rights. Dr. Ibrahim Abu Bakar (Malaysia) gives an insightful study of the inability of PAS party to gain majority rule and convert the Malaysian State to (its version of) an Islamic State in his paper, PAS and Its Islamist Fundamentalism in Malaysia. Gleanings from the Pakistani Press cover relevant discussions of various problems facing the Ummah. It is followed by the book reviews and an obituary. Editor-in-Chief
Hamdard Islamicus
Hakim Mohammed Said

Did you have life easy? No. But you made it your mission To make it a little easier for others. Orphaned at two, You opened your heart to all children, Giving them respect, education, care, Making sure their little voices didnt go unheard. As an adult, you had to start life twice: Once in your birthplace, once in your land of choice. You wore holes in your shoes, But your spirit of service stayed intact. Two rented rooms, pieces of rented furniture: You started small, but your heart was big. Your God-given gifts, you used in Gods name, And He blessed you hundredfold. Many mens pride is swelled with success; Yours increased your humility. So you turned your institution over to Allah Its profits to profit the poor. All men have dreams a thing apart from life. You said Why not? and worked to make them real. Free clinics and dispensaries on wheels, Hospitals, schools, colleges, even a university! You married modern science to ancient medicine, And bred respect for hikmat in doubting hearts. Journals, books, societies, and conferences, Assemblies, think-tank all bear witness to your drive. You spoke the truth, unwavering, unafraid. One morning a gun spoke, to silence you forever. O, vain attempt! Your words, your works live on. The gun but gave you a martyrs immortality! A tribute from Khaula Yasmin Qureshi. Hamdard Laboratories (Waqf) Pakistan Hamdard Foundation Pakistan Madinat al-Hikmah Hamdard University Hamdard al-Majeed College of Eastern Medicine Hamdard Research Institute of Unani Medicine Dr Hafiz Mohammad Ilyas Institute of Pharmacology & Herbal Sciences Hamdard Institute of Pharmaceutical Sciences Hamdard College of Medicine & Dentistry Hamdard Institute of Management Sciences Hamdard Institute of Information Technology Hamdard Institute of Education & Social Sciences Hamdard School of Law Hamdard Environmental Studies Centre Hamdard Centre for Horticulture Shifa-ul-Mulk Memorial Hospital of Eastern Medicine Hamdard University Hospital Hamdard Dental Hospital Hamdard University Naimat Begum Mother & Child Care Unit Hamdard Public School & College of Science & Commerce Hamdard Village School 30 Free Hamdard Clinics (Matab) 16 Free Mobile Dispensaries Shura Hamdard Naunehal Assemblies Hamdard Publications Hamdard Naunehal Hamdard-e-Sehat Historicus Hamdard Islamicus Hamdard Medicus
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STUDY OF DATE AND CLIMATIC CONDITIONS
THE HIJRAH
SHAHABUDDIN ANSARI Gopal Dhara, Almora-263601, Uttarkhand, India. e-mail: ansarishihab@yahoo.com.in
The name Hijrah is derived from an Arabic word meaning migration and it is so named because the Prophet Muammad ( ) migrated from Makkah to Madinah seeking for himself and for his Companions a safe abode for the practice of Islam. This crucial event happened in 622 A.D., when the Prophet Muammad ( ) was 53 years old. It is a very significant event in Islamic history, and later the Islamic calendar also commenced with that date in the reign of the second Caliph (in the 17th year of his reign). In Arabia in those days there was no definite calendrical system for projecting time of any happening in chronological order. The Arabs reckoned the time of any happening from any significant event which happened in their locale. Before the commencement of Hijrah, the Arabs used to reckon the time span of any event from the happening of the Ab al-Fl the People of the Elephant but when the Prophet ( ) went to Madinah they discontinued this practice and began to count the time span of all the events and happenings from the date of Hijrah, i.e. from the month of Rab al-Awwal. Among the historians and biographers there are divergent opinions about the date of commencement and completion of Hijrah. Hereunder, I would like to place all the divergent versions broadly in two categories: (i) the early biographers, and (ii) the later biographers.
Hamdard Islamicus
THE EARLY BIOGRAPHERS
Ibn Shihb Zuhr (d. 124 A.H./741 A.D.)
Zuhr reported that the Apostle of Allah ( ) arrived in Madinah (Qub) on Monday, the 12th of Rab al-Awwal.1 Ibn Isq (d. 151 A.H./768 A.D.) (a) Ibn Isq stated that the Prophet of Allah ( ) emerged on the 1st of Rab al-Awwal (from his house), and came down in Madinah when 12 nights of Rab al-Awwal had passed.2 The Prophet of Allah ( ) started his Hijrah from Monday, in the month of Rab al-Awwal, and went to Madinah on Monday at high noon, when 12 nights of Rab al-Awwal had passed.3 The Prophet of Allah ( ) came in Qub at the Ban Amr bin Awf on Monday the 12th of Rab al-Awwal at high noon.4
(b)
(c)
Apparently there is incongruity in the versions of Ibn Isq, but it is quite subtle. If all these three versions are joined they read as: The Prophet of Allah ( ) emerged (from his house) on the first day of Rab al-Awwal), (stayed three nights in the Cave Thawr), started for Madinah during the night of Monday and arrived at Qub (Madinah) on Monday, the12th of Rab al-Awwal. Moreover, on the basis of a universal acceptance, if in any lunar month, (according to Hijrah calendar), Monday occurs on the 12th day of the month, that month must begin on Thursday, and consequently the following Monday falls on the fifth day of the month (see my A Compendium of Calendars, (Table 27, page 152).5 Therefore, it is self-evident that the Prophet of Allah ( ) started from his house on Thursday, the first of Rab al-Awwal for the Cave Thawr, stayed there for three nights, left the cave for Madinah during the night of Monday, the fifth of Rab al-Awwal, and came to Qub (Madinah) on Monday, the 12th of Rab al-Awwal.
Hamdard Islamicus
Muammad Ibn Umar Al-Wqid (d. 207 A.H./822 A.D.) The Apostle of Allah ( ) arrived at Madinah (Qub) on Monday, the 12th of Rab al-Awwal. According to others this event occurred in the second (Rab al-Awwal), but (Wqid) states that the 12th day (of Rab al-Awwal) is proven and authentic.6 Ibn Hishm (d. 213 A.H./828 A.D.) Abd al-Malik bin Hishm reported that Abd Allah al-Bakki on the authority of Muammad bin Isq al-Mualabi reported to him that the Apostle of Allah ( ) reached Madinah on Monday at high noon, when 12 nights of Rab al-Awwal had passed. Ibn Hishm asserted that this is the date of the Hijrah.7 Ibn Sad (d. 230 A.H./844 A.D.) The Apostle of Allah ( ) came out from the cave during the night of Monday, when four nights of the month of Rab al-Awwal had passed, and the day on which he reached (Madinah) was Monday when twelve nights (of Rab al-Awwal) had passed. The above statement of Ibn Sad clearly shows that the Prophet of Allah ( ) must have left the cave on Monday during the night of the fifth of Rab al-Awwal, when four nights of Rab al-Awwal had already passed.8 Whereas, many biographers in their books on Seerah (Srah) had cited this statement, that the Prophet ( ) left the cave on Monday the fourth of Rabal-Awwal, which is not at all in consonance with Ibn Sads statement, and also it is not logically true, because when Monday occurs on 12th day of Rab al-Awwal, the preceding Monday falls on the 5th day, and not on the 4th day of Rabal-Awwal (see A Compendium of Calendars, p. 152). Ibn Qutaybah Dinawar (d. 276 A.H./889 A.D.) He reported that when the Prophet of Allah ( ) migrated, he was 53 years old and reached Madinah on Monday, the 12th of Rab al-Awwal.9
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Ibn Jarr abar (d. 310 A.H./922 A.D.) Ibn Jarr abar stated that the Prophet of Allah ( ) together with his guide reached Qub among the tribe of Amr bin Awf on Monday, the 12th of Rab al-Awwal at high noon.10 Muammad Ibn Ms Khwrizm (d. 236 A.H./850 A.D.) He reported that the Apostle of Allah ( (his house) on Thursday.11 kim (d. 405 A.H./1014 A.D.) He mentioned that the Prophet of Allah ( ) started from Makkah on Monday and reached Madinah on (the next) Monday, which is in accordance with the authentic versions. 12 Ibn ajar Asqaln (d. 852A.H./1448 A.D.) Ibn ajar Asqaln, coupling together the two above versions of Muammad Ibn Ms Khwrizm, and that of kim, recorded that it was true that the Prophet of Allah ( ) came out of his house in Makkah on Thursday, and halted three nights Friday, Saturday and Sunday in the cave, and then emerged from the cave on Monday during the night, and journeyed towards Madinah arriving there on Monday the 12th day of Rab al-Awwal.13 From the above statements of the early biographers one thing is common that the Prophet ( ) arrived at Qub (Madinah) on Monday, the 12th of Rab al-Awwal. It is a proven fact that if in any month (according to Hijrah calendar) Monday occurs on the 12th day of the month, then that month must begin with Thursday, and the fifth day of that month falls on a Monday. On the basis of this unquestionable fact the Prophet of Allah ( ) must have started from his house for the Thawr Cave during the night of Thursday, halted there for three nights Friday, Saturday and Sunday and left the cave for Madinah during the night of Monday the 5th of Rab al-Awwal, arriving at Qub (Madinah) on Monday, the 12th of Rab al-Awwal. ) started from Makkah
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THE LATER BIOGRAPHERS
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Kalb (d. 205 A.H./820 A.D.) mentioned that the Prophet of Allah ( ) emerged from the cave during the night of Monday, the first day of Rab al-Awwal, and arrived at Madinah on Friday when 12 nights of the month of Rab al-Awwal had passed.14 Further, in the same context Abdur Ramn al-Jawz (d. 597 A.H./ 1200 A.D.) in his book, Srah Sayyid Al-Anbiy had written that Muammad Umar al-Wqid (d. 207 A.H./822 A.D.) on the authority of his Shaykh narrated that the Prophet of Allah ( ) stayed in the house of Ab Bakr, and during the hours of darkness, both of them left the house and journeyed towards the cave. This stage of the Hijrah began when only three nights of the month of afar remained.15 Al-Jawzs above statement is contradictory, because Wqid in his book Maghz as-diqah (Urdu translation Maghz-i Rasool) had specifically written that the Prophet of Allah ( ) reached Madinah (Qub) on Monday, the 12th of Rab al-Awwal, and affirmed that this date of the Hijrah was authentic.16 Further, the majority of the later biographers and the ulema giving a detailed account of the Hijrah maintained that the Prophet of Allah ( ) journeyed from Makkah on Thursday, the 27th day of the month of afar, and spent three nights Friday, Saturday and Sunday in the Cave Thawr, then set out during the night of Monday, the first day of Rab al-Awwal, for Qub and reached there on Monday, the eighth of Rab al-Awwal at high noon. On the basis of these versions of the later biographers it can be summed up that the Prophet of Allah ( ) left his house for the Hijrah during the night of Thursday, the 27th of afar, and arrived at Qub on Monday the 8th of Rab al-Awwal and on the following Friday, the 12th of Rab al-Awwal he proceeded towards Madinah arriving there later that day. By going through all the versions of the former and the later biographers, it is concluded that in accordance with the early biographers, the date of Hijrah of the Apostle of Allah ( ) is Monday, the 12th of Rab al-Awwal, while according to the later biographers it is Monday, the 8th of Rab al-Awwal.
Hamdard Islamicus
THE DATE OF THE HIJRAH
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The Day and Date Muammad (
) left his House
The day the Prophet ( ) left his house for the Cave Thawr was, no doubt, Thursday which is unanimously accepted by all the biographers and historians, but as to the date, there are two variant versions: (i) (ii) 1st of Rab al-Awwal 27th afar
According to the first version, the Prophet ( ) left his house during the night of Thursday, the 1st of Rab al-Awwal and in accordance with the second version, it was the Thursday, the 27th afar. The Day and Date Muammad ( ) set out from the Cave
As regards the day of the leaving of the cave, all the biographers agree that it was Monday, but in the matter of the date, they are not unanimous, because according to the first version, the Prophet ( ) left the cave on Monday the 5th of Rab al-Awwal, and according to the second version, he left on Monday, the 1st of Rab al-Awwal. The Day and Date Muammad ( ) arrived at Qub
Likewise the day of the arrival of the Prophet ( ) at Qub (Madinah), there is no disagreement in the versions of the biographers, all agree that he arrived at Qub (Madinah) on Monday. However for the date, there are two versions: (i) (ii) Monday, the 12th of Rab al-Awwal, or Monday, the 8th of Rab al-Awwal.
The First Group According to the first set of statements, the Prophet of Allah ( ) set off from his house at late night of Thursday on the 1st of
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Rab al-Awwal, and reached the Cave Thawr. He halted there for three consecutive nights Friday, Saturday and Sunday and again set out on the night of Monday, the fifth of Rab al-Awwal for Qub (Madinah) reaching there at high noon on Monday, when 12 nights of the month of Rab al-Awwal had passed. The historians and the biographers who have recorded this version in their books on Srah are Imm Zuhr, Ibn Isq, Muammad Ibn Umar al-Wqid, Ibn Hishm, Ibn Sad, Ibn Qutaybah Dinawar, Ibn Jarr abar, fi Ibn ajar Asqaln, Muammad Ms Khwrizm, kim Ab Abdullah Nishpr and Amad Ibn Yay al-Baldhur. These biographers and the historians maintain that the Prophet of Allah ( ) reached Qub (Madinah) on Monday, the 12th of Rab al-Awwal at high noon and this is the authentic date of the Hijrah to them. The Second Group According to the second set of statements, the Prophet of Allah ( ) left his house in the late night of Thursday, the 27th of afar for the cave Thawr. He halted in the cave three nights Friday, Saturday and Sunday and on Monday, the first of Rab al-Awwal he left the cave for Madinah. He reached Qub at high noon on Monday, the 8th of Rab al-Awwal, where he stayed four consecutive nights Tuesday, Wednesday, Thursday, and Friday and in the forenoon of Friday he left Qub for Madinah and reached there on the same day, the 12th of Rab al-Awwal. Majority of the later-day historians and scholars have written this date in their books of biography and along with this date have also recorded the other date, i.e. Monday, the 12th of Rab al-Awwal. Stay at Qub17 As regards the time span, during which the Prophet ( ) stayed in Qub, there are divergent versions amongst the historians and the biographers ranging from three days to one month and four days. Three-Day Stay The later biographers maintain that the Prophet of Allah ( ) reached Qub on Monday the 8th of Rab al-Awwal at high noon, and
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stayed there the following Tuesday, Wednesday, Thursday, and on Friday, the 12 of Rab al- Awwal, he journeyed towards Madinah. According to these biographers, reaching of the Prophet ( ) at Qub is not a date of Hijrah, until he reached Madinah. Therefore, they affirm that Friday the 12th Rab al-Awwal the date of reaching Madinah is the date of the Hijrah to them. More than Three-day Stay Contrary to the above version, the earlier biographers maintained that the Prophet of Allah ( ) reached Qub (Madinah) at high noon on Monday when 12 nights of the month of Rab al-Awwal had passed. According to them, the reaching of the Prophet ( ) in Qub is the actual arrival in Madinah, because Qub is situated on the outskirts of Madinah. So the day he reached Qub on Monday, the 12th of Rab al-Awwal which is the actual date of Hijrah. The subsequent leaving of the Prophet ( ) from Qub towards Madinah is not so significant to them. As regards the stay of the Prophet ( ) at Qub, there are some reports from the a al-Bukhr, the a Muslim and the (Sunan) Ab Dwd that he stayed in Qub for more than three days, but as to which Friday of the month he left Qub and journeyed towards Madinah is not certain. Regarding the length of his stay at Qub, Anas bin Mlik (R.A.) reported that the Prophet of Allah ( ), when he reached Madinah (Qub), he stayed there with the Ban Amr bin Awf for fourteen days.18 ishah (R.A.) (the wife of the Prophet ( )) reported that the Prophet of Allah ( ) stayed (in Qub) between ten and twenty nights, and laid down the foundation of the Mosque at Qub.19 According to the version of Qasaln (d. 762 A.H./1360 A.D.), and Ms Ibn Uqbah (d. 141 A.H./758 A.D.) who quoted it from Imm Zuhr that the Prophet ( ) lived there twenty-two days. Muslim (d. 261 A.H./874 A.D.) reported the same. Also Zubayr b. Bakr confirmed this version as he had heard it from some people of the Ban Amr bin Awf that the Prophet ( ) stayed there twenty-two days.20 In this context Ibn Qutaybah Dinawar narrated that the Prophet of Allah ( ) on arrival at Qub sojourned there in the house of Kulthm bin Hidm, who came from the tribe of Amr bin Awf. After the death
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of Kulthm bin Hidm, he then moved to the house of Sad b. Khaythmah, where he lived for one month and four days.21 On the basis of these dependable versions it can be deduced that the Prophet ( ) lived in Qub for more than three days, but it is not certain as to which Friday of the month he proceeded towards Madinah. The Climatic Conditions The Hijrah happened in an extremely hot season. In this context the following examples will be helpful to ascertain the exact climatic conditions prevailing at the time of this event. In this regard Allama Nuruddin Al Ibn Amad al-Samhudy (d. 911 H/1505 A.D.) in his book Waf al-Waf bi-Akhbr Dar al-Mutaf has written that when the Prophet ( ) and his Companion, Ab Bakr (R.A.) reached Qub and stayed with the tribe of Amr bin Awf, whose chieftain was Kulthm bin Hidm, he, in their honour, ordered his slave, Nujayh to fetch some fresh dates for them. The slave went out and returned with a fresh bunch of Umm Jirdhn, the fruit of the best of dates. Within the bunch some dates were yellow and some half ripe.22 In this reference let us see the next example, as written in the a al-Bkukhr, and also followed by Ibn Isq, Ibn Sad and Ibn Hishm with certain changes in words to this effect: When the news of the arrival of the Prophet Muammad ( ) was spread in Madinah, at that very moment Abdullah b. Salam, a Jewish Rabbi (lim) from the Ban Qaynuq, was picking dates from a date palm in his family garden. Being in haste he forgot to put them down and hurriedly set off to see the Prophet ( ) with the dates still in his hands. He heard the words of the Prophet ( ) and went back to his home.23 Moreover, Ibn Jarr abar in the Trkh al-Umam wa al-Mulk (The Annals of abar) reported that Al, said, When we reached Madinah, we fell ill owing to (eating) too much dates and further aggravated by the hot and humid weather conditions. 24 From the weather conditions, it can be deduced that at that time of the Hijrah, the weather was very warm. It was the picking season of the dates. The date-palm trees were already bearing fruit, of which some
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were ripe and some were half-ripe, and also when Ali reached Qub, he found fruit (ripe dates) in abundance, and at that time the weather was hot and humid. This type of weather and climatic conditions can generally be found in the month of July (see Appendix 1 The Climate of Madinah). Synchronization According to former biographers the actual date of the Hijrah is Monday the 12th of Rab al-Awwal, which, in accordance with the Hijrah calendar, corresponds with Monday, the 15th Rab al-Awwal, 1 A.H.; and in the Julian calendar it will be Monday, the 27th of September 622 A.D. Moreover, according to the later-age biographers the date of the Hijrah is Friday, the 12th of Rab al-Awwal, which in the Hijrah calendar is the same, i.e., Friday, the 12th of Rab al-Awwal, 1 A.H., and in the Julian calendar it will be Friday, the 24th of September 622 A.D. From the above synchronism it appears that the Hijrah calendar date is ahead of the actual date by three days, while the date as written by the later-age biographers, is precisely that of the Hijrah calendar date (see Table 3). From this synchronism it also appears that the event of the Hijrah happened sometime in the last week of September, whereas according to the prevailing climatic conditions at the time of the year of the Hijrah, it should have happened approximately in the month of July (see Appendix I The Climate of Madinah). Thus, this synchronism does not coincide with the actual weather conditions prevailing at the time of the Hijrah of the Prophet ( ) from Makkah to Madinah. Findings Firstly, the actual date of Hijrah is only Monday the 12th of Rab al-Awwal. Moreover, though Friday, the 12th of Rab al-Awwal is precisely according to the Hijrah calendar date, yet it is at variance with the authentic versions of the early biographers.
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Secondly, it is correct to assume that the Prophet of Allah ( ) stayed at Qub for more than three days, but it is not certain as to which Friday of the month he left Qub for Madinah. Thirdly, the corresponding Julian date Friday, the 24th September 622 A.D. or Monday, 27th September 622 A.D. does not coincide with the actual climatic conditions prevailing at the time of the occurrence of the Hijrah. As according to the Christian (Julian) date the Hijrah occurred sometime in the last week of September, whereas, bearing in mind the specific weather conditions prevailing at the time of the Hijrah, it would have taken place sometime in the month of July. Thus, according to this synchronism, based on the present Hijrah calendar, the Hijrah of the Prophet ( ) happened two months earlier than the actual date of Hijrah. Fourthly, the Hijrah calendar date is three days ahead of the actual date of Hijrah. Thus, there is a three-day difference between the actual date and the date of Hijrah calendar (see Table 3). Conclusion The Hijrah is a significant happening in Islamic history. The Islamic calendar begins on this date. But what is the actual date of the Hijrah? As stated earlier there are two accepted estimates. According to the early biographers, the Prophet of Allah ( ) reached Qub (Madinah) on Monday, the 12th of Rab al-Awwal, which is the actual date of Hijrah for them. While the later biographers maintain that the Prophet of Allah ( ) went to Madinah on Friday, the 12th of Rab al-Awwal, and this is the date of Hijrah to them. As regards the date of Hijrah, Monday, the 12th Rabi al-Awwal, it has been recorded by the early biographers, especially Ibn Shihb Zuhr, Ibn Isq, Muammad Ibn Umar al-Wqid, Ibn Hishm, Ibn Jarr abar; whereas Friday, the 12th of Rab al-Awwal, has been maintained by the majority of the later-day biographers. This later date is according to the Hijrah calendar date. Further, as regards the stay of the Prophet of Allah ( ) at Qub, one body of the historians is of the view that he stayed at Qub three days only, and on the following Friday, the 12th of Rab al-Awwal left Qub for Madinah
TABLE 1
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Date of the Hijrah according to the Early Biographers Stages of the Hijrah Actual date Thursday, 1st Rab al-Awwal Corresponding Julian Date Thursday, 16th September 622 A.D.
18
Prophet Muammad ( ) left his house, along with Ab Bakr (R.A.), for the Cave Thawr in the late night of Thursday and halted there three nights Friday, Saturday and Sunday Monday, 5th Rab al-Awwal Monday, 12th Rab al-Awwal
They left the Cave for Madinah in the late night of Monday
Monday, 20th September 622 A.D. Monday, 27th September 622 A.D.
Reached Qub (Madinah) on Monday at high noon
TABLE 2
Date of the Hijrah according to the Later-day Biographers Actual Date Thursday, 27th afar (Three nights of afar remained) Monday, 1st Rab al-Awwal Monday, 8th Rab al-Awwal Friday, 12th Rab al-Awwal Corresponding Julian Date Thursday, 9th September 622 A.D.
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Stages of the Hijrah
The Prophet of Allah ( ) left his house along with Ab Bakr (R.A.), for the Cave Thawr in the late night of Thursday, and halted there three nights Friday, Saturday and Sunday
19
They left the Cave for Madinah (Qub) in the late night of Monday.
Monday, 13th September 622 A.D. Monday, 20th September 622 A.D. Friday, 24th September 622 A.D.
They reached Qub (Madinah) on Monday at high noon
They left Qub for Madinah in the forenoon of Friday
TABLE 3
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Date of the Hijrah of Prophet Muammad ( Date according to the Hijrah Calendar Julian Monday, 15th Rab al-Awwal 1 A.H. (+3 Days) Friday, 12th Rab al-Awwal 1 A.H. Monday, 27th September 622 A.D.
) according to the Earlier and the Later-day Biographers Date according to the Christian Calendar Gregorian
Actual Date of the Hijrah
20
Monday,* 12th Rab al-Awwal
Monday, 30th September 622 A.D.
Friday,** 12th Rab al-Awwal
Friday, 24th September 622 A.D.
Friday, Friday, 27th September 622 A.D.
*This date is according to the narrations of early biographers. **This date is according to the later-day biographers.
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Whereas, the other group maintains that the Prophet ( ) stayed at Qub for more than three days ranging from 14 days to one month and four days, but it is not certain as to which Friday of the month he left Qub for Madinah. To this group, the Prophets leaving Qub for Madinah is not so significant, because the Prophets arrival at Qub on Monday the 12th of Rab al-Awwal is actual date of the Hijrah to them. As regards the climatic conditions at the time of Hijrah, it was a very hot season. The date-palm trees were laden with fruit and the weather was hot and humid. Further, the synchronism of the date of Hijrah in the Julian date shows that Monday, the 12th of Rab al-Awwal corresponds to Monday, the 27th of September 622 A.D.; and Friday, the 12th of Rab al-Awwal 1 A.H. corresponds with Friday, the 24th of September 622 A.D. But both these Christian dates do not coincide with the actual climatic conditions prevailing at the time of Hijrah of Prophet ( ) from Makkah to Madinah.
Notes and References

1. Imm Abdur Ramn Ibn al-Jawz, Al-Waf bi Iwl Al-Muaf, Tr. Muhammad Ashraf Syalwi, (Srat Sayyidul Anbiy), Delhi, Eteqad Publishing House, 1983, p. 29. Muhammad Tahir bin Abdul Qdir, Kitb Al-Trkh Al-Qaweem, vol. I, Makkah, Maktaba Al-Nahdatul Hadithah, Sawq Al-Layl, p. 244. Ibid., vol. I, p. 244. A. Guillaume, the Life of Muammad, A Translation of Isqs Srat Rasl Allah, Karachi, Oxford University Press, 1987, p. 22. Shahabuddin Ansari, A Compendium of Calendars, New Delhi, B.R. Publishing Corporation, 1999, p. 152. Muhammad bin Umar Al-Wqid, Maghz Al-diqah, and Tr. Muhammad Basharat Ali Khan, (Maghzi-i Rasl), Lucknow, Nawal Kishore Press, 1874, p. 3. Ibn Hishm, Seerah Ibn Hishm, Tr. Maulana Abdul Jalil Siddiqui and Maulana Ghulam Rasul Mihr, Seeratun Nabi, vol. I, Delhi, Eteqad Publishing House, 1982, p. 680. Ab Abdullah Muammad Ibn Sad Ibn Mani Al-Zuhr Al-Basri, Kitb Al-abaqt Al-Kabr, vol. I, Trs. S. Moinul Haq and H.K. Ghazanfar, New Delhi, Kitab Bhawan, pp. 270-271. Ibn Qutaybah Dinawari, Seerat Rasl Allah, Tr. Talha Ibn Abi Salman Nadvi, Calcutta, Idara Tarjuma Wa Talif, p. 131.
2. 3. 4. 5. 6.
7.
8.
9.
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10. 11. 12. 13.
22
14. 15. 16. 17.
18.
19. 20. 21. 22. 23. 24.
Imm Ab Jafar Ibn Muammad Jarr abar, rkh abar, vol. I, (Urdu Translation), Deoband, Idara Tabligh Din, 1982, p. 244. Kitb Tarkh Al-Qaweem, vol. I, p. 244. Ibid., vol. I, p. 244. Ibid., vol. I, p. 244; and Muhammad Abdul Mabud, Trkh Makkah Al-Mukarramah, vol. I, Lahore, Maktaba Rahmania, p. 232; Fatah Al-Br, vol. 7, p. 188. Kitb Tarkh Al-Qaweem, vol. I, p. 244. Ibn Al-Jawz, p. 285. Wqid, p. 3. Qub is a habitation situated some three miles south on the outskirts of Madinah. There were settled some tribes of the Anr. Among them the tribe of Amr bin Awf was of note and affluence. The chieftain of that tribe was Kulthm Bin Hidm. When the Prophet ( ) reached Qub, he stayed in the house of Kulthm bin Hidm, and his Companion, Ab Bakr in the house of Khubayb bin Isaf. Ibn Qutaybah reported that after the death of Kulthm bin Hidm, the Prophet ( ) moved to the house of Sad bin Khaythmah, and there he stayed for one month and four days. Ab Abdullah Muammad Ibn Isml Bukhr, a al-Bukhr, Tr. Maulana Waheeduz-Zaman, vol. 2, Delhi, Eteqad Publishing House 1990, p. 535, Kitb Al-Maghz; Ibn Sad, vol. I, p. 275, and Srat Sayyidul Anbiy, p. 305. Srat Sayyidul Anbiya, p. 304. Misbahuddin Shakeel, Seerat Amad Mujtab, vol. II, Karachi, Publisher, Pakistan Oil Co. Ltd., p. 31. Ibn Qutaybah Dinawar, p. 132. Allama Nooruddin Ali Ahmad Samhudi, Wafa Al-Wafa Al-Akhbr Drul Muaf, vol. I, Beirut, Darul Kitab al-Ilmiyah, p. 25. a al-Bukhr, vol. II, p. 52, Para 15, Kitb Al-Maghz; Ibn Sad, vol. I, p. 275; Ibn Isq, p. 20; and Ibn Hishm, vol. 2, p. 75. Tarkh abar, vol. I (Urdu), p. 136.
Bibliography
Abdul Mabud, Muammad, Trkh Makkah Al-Mukarramah, Lahore, Maktaba Rahmania. Abdul Qdir, Muammad hir Bin, Kitb al-Tarkh Al-Qaweem, Makkah, Maktaba Al-Nahdatul Hadithah, Sawq Al-Layl. Ansr, Shahbuddin, A Compendium of Calendars, New Delhi, B.R. Publishing Corporation, 1999. , A Compendium of Muslim and Christian Dates, New Delhi, B.R. Publishing Corporation, 2005. Ansr, Shahbuddin and Prof. M.M Jinnah, Interchanging Muslim and Christian Era Dates, New Delhi, B.R. Publishing Corporation, Darya Ganj, 2008.
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Bukhr, Ab Abdullah Muammad Ibn Isml, a al-Bukhr, Tr. Maulana Waheeduz- Zaman, Delhi, Eteqad Publishing House, 1990. Dinawar, Ibn Qutayba, Seerat Rasl Allah, Tr. Talha Ibn Salman Nadvi, Calcutta, Idara Tarjuma Wa Talif. Guillaume, A., The Life of Muammad, a translation of Ibn Isaqs Srat Rasl Allah, Karachi, Oxford University Press, 1987. Ibn Hishm, Siratun Nab, Vols. I and II, (New Delhi, Ateqad Publishing House), 1982. , Siratun Nab, Delhi, Eteqad Publishing House, 1980. Ibn Jawz, Imm Abdur Ramn, Sirah Sayyid al-Anbiy, Urdu Translation Al-Waf Be Iwl Al-Muaf, New Delhi, Ateqad Publishing House, 1983. Ibn Sad, Muammad, Kitb Al-abaqt Al-Kabr, vol. I, Trs. S. Moinul Haq and H.K. Ghazanfar, phd. Pak Hist. Society, Karachi, 1972, reprint New Delhi, Kitab Bhawan, Darya Ganj. Mawdudi, Abul Ala, Srat Sarwar-i-lam, vol. II, Delhi, Markazi Maktabah Islami, 1997. Qsimi, Syed Husain Ahmad Shams, The Months of the Year of Islamic Calendar, Al-Muaf, vol. II (8), March, 2002. Samhudy, Allama Nooruddin Ali, Waf Al-Waf Al Akhbr Drul Muaf, Beirut, Darul Kitab Al-Ilmiyah. Shakeel, Misbahuddin, Seerat Amad Mujtab, Karachi, Pakistan Oil Co. Ltd. abar, Imm Ab Jafar ibn Muammad Jarr, Tarkh al-Umm Wa al-Mulk, vol. II, Misriyah, al-Matbah al-Husayniyah. Wqid, Muhamad bin Umar, Maghz Al-diqah, Tr. Muhammd Basharat Ali Khan, Maghaz-i Rasl, Lucknow, Nawal Kishore Press, 1874.
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APPENDIX 1
THE CLIMATE OF MADINAH
Studying the early period of Islamic history it becomes obvious that, more or less, almost all the significant battles and expeditions of that time either happened around Madinah or in its vicinity and occurred in the similar climatic conditions. Ascertaining the veracity of the given dates of the events of this period, it is essential to study the exact climatic conditions of those times, i.e., the time of the intense heat and extreme coldness of the weather; the time of the cold and stormy winds; the months of rains, the period of moderate climate; and the time of the fruitharvest, in which any event took place. Unawareness of these climatic factors makes it rather difficult to assess the accuracy of any date and the climatic conditions given. Keeping in mind these necessary factors I am placing the text of the meteorological report for the benefit of our readers. The text of the report runs as follows: December and January* are very cold months. During the year when it is snowing on the northern mountains the temperature varies between 10oC and 3oC. In the last days of January the climate becomes temperate, sometimes the sky is overcast and it rains. In February the climate is moderate, pleasing and salubrious In March and April stormy winds blow and rain falls accompanied by thunder and lightning. From the end of April the summer season begins, and it is the blossoming time of the date-palm trees.
*In the pilgrimage of 2007, in the period of December upto 1st week of January there was heavy rain and cold winds Ed.
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In June there is intense heat which lasts until the end of August. During these months temperatures vary between 36oC and 48oC. The nights are also very hot From the last of June the half-ripened dates called, Raab or Ratana can be seen in the markets, the dates become fully ripe in the earlier days of August. In July and August the sky is rarely overcast and sometimes it showers a little. From the end of August to September the wind blows again and creates sandstorms. In September and October the temperatures drop and clouds appear in the sky which precipitate rain. Until the end of November the climate is very temperate, and when the northern winds blow it turns very cold.
By courtesy of Absar Ahmad Faruqui, Civil Engineer, Madinah.
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APPENDIX 2
Ibn Sads abqat al-Kabr (Vol. III, Beirut, 1957, pp. 228-229) narrates on the authority of Muammad b. Umar, he from Abd Allah b. Jafar, he from Abd Allah b. akm b. uhayb b. Umar that uhayb b. Sinn (R.A.) migrated just after the migration of the holy Prophet ( ) whom he met at Qub. He was hungry and there was a bunch of the jirdhnn dates, large, very sweet and among the best ones, which had been presented to the Prophet of Allah ( ). uhayb (R.A.) began to eat them. Jirdhnn dates are noted for their sweetness and desert rats gather under their trees to eat the ripened fallen dates. It is said that they ripen in the last part of the hot season when the moon enters the 11th Mansion (when el-khartan rises aurorally after (auroral) rising of Suhail (Canopus) and before the season called al-Safariy. See Lane, Arabic English Lexicon, London, 1865, p. 408. The above facts show that the Hijrat occurred in the last part of the hot season Ed.
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THE EVOLUTION OF THE NOTION OF JIHD IN THE MAKKAN AND MADINAN REVELATIONS
DR. MOHAMMED FARID BIN MOHAMMED SHARIF Islamic Studies Section, School of Humanities, Universiti Sains Malaysia 11800, Penang, Malaysia. e-mail: faridusm@usm.my
This paper explores jihd in its general meaning and its concept in Islam and examines the evolution of jihd in the Makkan and Madinan texts. It also presents the clarification of jihd in Islam and clears up the misunderstandings or distortions given to the notion of jihd. In addition, it formulates the distinction between the concepts of defensive and offensive jihd. The paper is divided into two sections: the first section explains the meaning of jihd; and the second section scrutinizes the development of jihd in the Makkan and Madinan verses of the Qurn, and examines both the adth and srah sources, seeking to understand more adequately the term jihd as mentioned in the Qurn.
Introduction The analysis of Makkan and Madinan texts is focused in this paper on the views of the classical commentators, and sometime refers to the viewpoints given by the modern writers. From this discussion, it is attempted to show that a conceptual question can be posed in the light of the Qurnic verses. To what extent does looking at a Muslim writers work through the filter of the Qurnic texts yields a clearer understanding of jihd? To answer this question, it is needed to put jihd verses under close scrutiny. The Qurn contains several sets of verses that establish the basic concept of jihd. The very fact that jihd is given intensive concern results from the fact that it is a major theme
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in the Qurn.1 The analysis is confined to those verses that serve as the basis for the general notion of jihd held by the Muslim commentators. The Definition of jihd As mentioned earlier, in order to comprehend more adequately how the term jihd has been understood in the Qurn, adth and other literature, it is at first necessary to trace the meaning of terms with which it is closely associated: qitl and arb. In its Qurnic usage, jihd is different from qitl and arb. For the meaning of jihd is much broader and richer with a wide range of connotations and includes many activities extraneous to warfare. The term jihd is mentioned twentyeight times in the Qurn. The term qitl has a more specific meaning: it is fighting in the way of God (f sabl Allh) and thus overlaps with the meaning of jihd when it is understood as fighting in the battlefield. The term qitl is mentioned forty-two times in the Qurn. We shall examine some of the Qurnic verses for both usages later. Meanwhile, the term arb is found five times in the Qurn. It is always used in reference to the wars that are not in the way of God, 2 with one exception, where it refers to war in the way of God: And if ye do it not, take notice of war (arb) from Allah and his Apostle (Qurn, II:279).* The word jihd derives from the root j-h-d or juhd and it is a verbal noun of the third Arabic form of the verb jhada. This verb literally means to make effort or to exert oneself on behalf of something in order to achieve a goal, remove a barrier; or defend in the face of opposition.3 The word jihd is a noun and its singular past tense verb is jahada (male) or jahadat (female). The singular active participle of jihd is mujhid (male) or mujhidah (female). Meanwhile jihd and mujhadah mean the exerting of ones power and effort. 4 Another related word is ijtihd which means working hard or diligently.5 There are many forms and levels of jihd.6 For instance, there is a jihd in establishing good and removing wrong within oneself: this is to rid oneself of pride, prejudice, selfishness, greed, lust, anger, hatred and laziness; as such, it seeks to establish generosity, charity and a sense
*All the translated verses are quoted from Yusuf Ali, The Holy Qurn, Qatar ed. The verse deals with the abolition of usury, a theme which started with verse 274 and ended with 281. Here refusal to give up usury is threatened with war with Allah and His Prophet ( ) Ed.
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of responsibility. In other words, it is a form of jihd for the Muslims to observe akhlq (virtues) of Islam in ones daily life. Jihd also applies in the wider social context: for example, it is a form of jihd to fight against poverty, disease, ignorance, crime and injustice. Another form of jihd is to defend the ummah, the religion (Islam) and the country from the transgression of any enemy. This last form of jihd is sometimes called the holy war. Jihd in the sense of struggling in the way of God is commonly translated into English as political war or holy war and it fails to explain the actual meaning of jihd in Islam. The biggest misconception about jihd is to translate this term as holy war when, in truth; holy war is not a translation of the term jihd, either directly or subtly. Jihd and Holy War The idea of the holy war may have come from a result of the history of the Crusades. This mistranslation started during the Crusades when the phrase holy war was used to describe the war against the Muslims. 7 Centuries have gone by since the Crusades ended, yet unfortunately many Western scholars still translate jihd as holy war.8 There is, in fact, no equivalent in the Islamic vocabulary to the term holy war. However, if one were to actually translate holy war back into Arabic, the term would be al-arb al-muqaddasah or al-marakah al-muqaddasah. Furthermore, there is no mention of al-arb al-muqaddasah or al-marakah al-muqaddasah in the Qurn or adith. There are, however, the equivalent references to war in the Islamic vocabulary are either qitl or arb. War is not an objective of Islam nor is it the normal behaviour of Muslims. Nonetheless, one may argue that the Qurn implicitly understands war to be a necessity of existence or a fact of life. History shows that from the early days of human civilization up till now, man has suffered from local and global wars. In view of this fact: how could the Qurn overlook these realities of human life? That is why in the Qurn, war is allowed for self-defense and restoration of justice, freedom and peace. Here, it is useful to quote the opinion given by Karen Armstrong: Muammad ( ) and the first Muslims were fighting for their lives and they had also undertaken a project in which violence was inevitable. No radical social and political change has ever been
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achieved without bloodshed, and, because Muammad ( ) was living in a period of confusion and disintegration, peace could be achieved only by the sword.9 If the oppressive and repulsive system were not confronted militarily, the wrong would have overwhelmed the world. This is the reason why the past prophets ( ) had to fight for instance Dwd (David ]) (1013-973 B.C.) who as a young man or boy had to fight and kill the tyrant Jlt (Goliath). This story is mentioned in the Qurn: By Allahs will, they routed them: and David slew Goliath;* and Allah gave him power and wisdom (Qurn, II:251). In Islam, jihd is carried out on behalf of God in order to establish good against wrong. Jihd may take place within oneself or within the community. This term jihd can refer to any action, word, piece of writing or work connected with ones profession, community or family. It is done for ones spiritual welfare with the aim of achieving nearness to God, to be rewarded with Paradise. It is simply the process of exerting ones best efforts, involving some form of struggle and resistance, in order to achieve a particular goal. In other words, jihd is a struggle against, or resistance to, something for the sake of a goal. The meaning of the word jihd is independent of the nature of the invested efforts or the sought goal. Contrary to common belief, the word jihd does not necessarily imply any violent effort, let alone war and such instances of extreme violence. It is a general term that can mean violent as well as peaceful actions, depending on the context in which it is used, as we shall indeed see later. Similarly, jihd, as a generic word, is used erroneously when applied to the seeking of goals which are not Islamic or when used in a non-religious context. For instance, when it is used to condone violence or acts of terror and the killing of innocent lives. Occasionally, it is also used improperly to support the acts of opposition against the imm. Such acts are not properly termed jihd. Jihd and Dawah Another question can be raised about war and dawah concerning
* The Philistine warrior giant from Gath who challenged the Israelites in the time of Saul. He was killed by a single sling shot from David ( ) who was quite young rather a boy at that time. For details see Book 1, Samuel, Ch. 17:49, 52; King James Bible, 2 Samuel 21:18-19. For further details see Ant, VI:9 Ed.
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the words f sabl Allh which follow the reference to jihd in the Qurn, raising the question whether or not conversion of non-Muslims by force to Islam is allowed. This may be explained by the literal translation of the Arabic word f sabl Allh into English as in the way of God. Its mistranslation has misled people into believing that jihd in the way of God enjoined conversion of non-Muslims by force to Islam. But it is a misconception in regard to the word jihd. Jihd is not fighting against non-Muslims with the object of forcing them to become Muslims. In other words, it is generally accepted that the Muslims are forbidden to fight against non-Muslims who are on peace terms with them, and may not fight them because of their faith nor expel them from their homes. With regard to the compulsion found in Islam, one has to acknowledge the peaceful method of jihd or dawah. This was because the dawah of the Prophet ( ) was to proclaim the concept of oneness of God, 10 and the unity of mankind and to guide humanity to the path of virtue and righteousness.11 In conveying this message, the Prophet ( ) was not enjoining any compulsion. Non-Muslims were given the freedom to submit to Islam as a ruling system but not as a creed, because according to Islam force should not be resorted to in such matters. The Qurn states that: Let there be no compulsion in religion. Truth stands out clear from Error (Qurn, II: 256). This verse clearly indicates that there is no compulsion in Islam.* Moreover, any form of compulsion is incompatible with Islam, because Islam depends on faith and will and these would definitely be meaningless, if approached by force. Undoubtedly, dawah is very important in Islam and to strive hard in dawah is to be creative, to show initiative, to be able to present Islam in its true form, so people can choose between right and wrong, truth and falsehood. The dawah is a religious duty of every Muslim, but compulsion is rejected by the Qurn. Rather, Islam gives protection to the polytheist who asked for it, as the Qurn says: If one amongst the Pagans ask thee for asylum, grant it to him, so that he may hear the word of Allah and then escort him to where he can be secure, that is because they are men without knowledge (Qurn, IX:6).
*This was revealed when Arab boys living with Ban Qaynuq, the Jewish tribe wanted to leave Madinah with them and their parents wanted to restrain them. But they were allowed to go unmolested Ed.
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The Development of Jihd in the Qurn Before examining the verses, it is significant to understand the method of the Qurnic analysis which has developed in the Islamic thought. This method was introduced by the Muslim scholars to help people understand exactly what the Divine pronouncements were about. This method can be illustrated by reference to the tafsr on the verses in question. The second relevant method is that of contextual study: this approach involves reflection on the whole passages of the Qurnic text.12 In this case, the theme or the context of the text rather than the meaning of the text is under examination. For instance, all the jihd verses, that are selected for examination must be analyzed in the context of the verses before and after them. Failure to do so may lead to selectivity, which may distort the meaning of jihd. The third method involves identifying the occasions of revelation, known as asbb alNuzl. Consideration of asbb al-Nuzl, if known and authentic, affects the interpretation of a verse. This approach attempts to correlate specific verses with actual events in the history of life of the Prophet ( ).13 In other words, some Qurnic verses were revealed to deal with certain historical challenges which besieged the Muslim community at that time. Guided by the above methodology, one may move next to review the Qurnic values and precepts, which represent the underpinning of the development of the concept of jihd. The values and precepts underlying the evolution of jihd can be traced by the examination of the early Makkan texts and secondly by the Madinan texts. The Makkan Revelations In the Makkan texts, the emphasis is mainly on the peaceful meaning of jihd, and the efforts that an individual makes towards selfimprovement or to persuade others by way of promotion of the cause of Islam. Muammad ( ) was sent to admonish his people to leave polytheism and accept the concept of monotheism. It is reported in the srah and some exegetical works such as Tafsr Muqtil by Muqtil b. Sulaymn (d. 150/767),14 Jam al-Bayn an twl y al-Qurn by Abu Jafar Muammad b. Jarr al-abar (d. 310/923)15 and Tafsr al-Kbr by Fakhr al-Dn al-Rz (d. 313/925)16 demonstrate that the
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campaign of the holy Prophets dawah began after receiving the following verses: Therefore expound openly what thou art commanded and turn away from those who join false gods with Allah. For sufficient are We unto thee against those who scoff (Qurn, XV:94-5). Jihd in the sense of self-discipline and absolute devotion of the self to the moral and religious teaching of Islam occurs in many places in the Qurn, especially in the following verses that were revealed in Makkah: Invite all to the Way of thy Lord with wisdom and beautiful preaching; and argue with them in ways that are best and most gracious: for thy Lord knoweth best and who have strayed from His Path and who receive guidance. And if ye do catch them out catch them out no worse than they catch you out: But if ye show patience that is indeed the best (course) for those who are patient. And do thou be patient, for thy patience is but from Allah; nor grieve over them: and distress not thyself because of their plots (Qurn, XVI:125-127). Therefore listen not to the Unbelievers, but strive against them with the utmost strenuousness with the (Qurn) (Qurn, XXV:52). O ye who believe! Bow down, prostrate yourselves, and adore your Lord; and do good that ye may prosper. And strive in His cause as ye ought to strive, (with sincerity and discipline). He has chosen you, and has imposed no difficulties on you in religion; it is the cult of your father Abraham. It is He Who has named you Muslims, both before and in this (Revelation); that the Apostle may be a witness for you and ye be witnesses for mankind! So establish regular Prayer, give regular charity and hold fast to Allah. He is your Protector the Best to protect and the Best to help! (Qurn, XXII:77-78). From the above verses, the words used for to strive are jhid and jhid, which originated from the Arabic word jihd. If one refers to the word jihd in the verses above, one can discover that jihd is freely used in the context of struggling or making efforts with ones power and ability without suggesting war or aggression. In other words, this suggests
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to us that the way of the word jihd is not used exclusively for fighting on the battlefield. Indeed, jihd is used in its wider sense. For instance, pilgrimage or ajj is called jihd, as mentioned in the adth: The ajj is the most excellent of all jihds.17 Serving ones parents is also jihd, on this matter, the Prophet ( ) said in another adth: A man came to the Prophet ( ) and sought permission to participate in jihd, whereupon the Prophet ( ) asked: Do you have parents? The man said: Yes. The Prophet ( ) replied: Then strive by serving them.18 All the Qurnic verses quoted above suggest to us that jihd, in the early stages of the propogation of Islam, was not used in the sense of a military struggle. The first verse (Qurn, XVI:125) does not use the term jihd. Rather, the verse tells us that the Prophet ( ) was directed to be patient and wise by using the peaceful way of calling people to monotheism. This concept of dawah or non-military jihd is glossed by a adth: I was directed to give forgiveness and avoid any fighting.19 These suggest that the Prophets campaign in this Makkan period only involved non-military or non-aggressive jihd. Commentators, such as al-abar, Ibn Taymiyyah and Ibn Kathr agree that the verse refers to the campaign of education or dawah, which is the earliest peaceful jihd carried out by the Prophet ( ).20 Another method used by the commentators such as Al b. Amad al-Wid (d. 468/1075) is to identify the asbb al-Nuzl of the verse. Al-Wids opinion of the verse appears to be different from al-abar and Ibn Kathr. He dates verses 125 to 127 in chapter XVI of the Qurn to an incident after the Battle of Uud, which took place in the month of Shawwl on the third day of March of 625 A.D.21 According to al-Wid, these verses were revealed immediately after the battle and thus verse 125 is a Madinan text. But, it is suggested that alWids statement is still related to the main discussion for two reasons: first, there is no remark made by al-Wid which suggests that the verse refers to military jihd; second, if verse 125 were to be read and understood with verses 126 and 127, one can say that the whole text refers to a peaceful jihd. However, it does not mean that the Muslims must surrender to aggression. They must defend themselves and, if
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possible, avoid any fighting. Al-abar, on the other hand, separates verse 125 from verses 126 and 127 and relates the Battle of Uud to the latter verses only. In addition, al-abar notes that verse 126 is abrogated by itself. In verse 126, it is clear that mutilation was first allowed only in response to mutilation: And if you catch them out catch them out no worse than they catch you out. But this was covered by the second part of the verse calling for patience: But if ye show patience that is indeed the best (course) for those who are patient. 22 Another view given by Muqtil is that the verse 125 refers to the People of the Book.23 This interpretation seems to harmonize the distinction between a non-military and military jihd. The People of the Book are not to be converted to Islam by force, but are to be allowed to live as dhimms (protected peoples) if they agreed to pay the jizyah and live in peace with the Muslims.24 A similar understanding is also shown by al-abar.25 This strongly suggests to us that the verse 125 does not refer to any military jihd regardless of al-Wids statement about its Madinan context. Unlike above, verse 52 in chapter XXV and verse 78 in chapter XXII refer to the term jihd. However, it does not necessarily mean fighting in the battlefield. It is certain that the verse 52 mentions a peaceful method of jihd by recommending that the Prophet ( ) and his people should promote and defend the doctrine of Islam in a diplomatic way by using the Qurnic texts and avoiding the use of military power. In short, the carrying out of jihd is clearly enjoined, and it is to be carried out against the unbelievers. But this is to be a jihd not of the sword, but of the Qurn. Some commentators like al-abar,26 Abd Allh b. Umar b. Muammad al-Bayw (d. 685/1286)27 and Jall al-Dn al-Suy (d. 911/1505)28 demonstrate that the words of jhid and bihi in the phrase wa jhidhum bihi refers to preaching and the Qurn respectively and that therefore the reference to jihd in these verses has no obvious military connotation. Thus, the phrase wa jhidhum bihi jihdn kabrn suggests to us that the great jihd (jihdn kabrn) refers to the peaceful jihd. The last verse (Qurn, XXII:78) emphasizes sincerity and faithfulness. On the one hand, theoretically it could refer to a military jihd or non-military form of jihd. However, if the verse is read in context, the previous text refers only to prayer, worship and exhortation
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to do charity work. We can, therefore, conclude that jihd here also refers to a non-military form. Commentators like al-Rz and Jr Allh Mamd b. Umar al-Khawrizm al-Zamakhshar (d. 538/1144) maintain that the jihd mentioned in the verse is the jihd against evil and the lower human self.29 In addition, they agree that jihd is generally divided into three types: jihd against the enemy; jihd against evil; and jihd against ones lower self. Al-Zamakhshar further states that the types of jihd are glossed by another adth according to which the Prophet ( ) said upon his return from the battle of Tabk: We returned from a lesser jihd to a greater jihd. This is the greater jihd of striving against the capricious desires of the self.30 To sum up, verse 125 in the Srah XVI can be seen as unrelated to the verse that follows and does not necessarily refer to the Battle of Uud. The term jihd in verse 52 in the Srah XXV and verse 78 in the Srah XXII also do not refer to any aggressive or military jihd. It is clear evidence that references to jihd in that period carry a nonmilitary meaning. The Prophet ( ) was definitely applying himself to jihd in Makkah but only through the peaceful dawah. If one looks back to the situation in the early days of Islam in Makkah, Islam was a minority movement and had a small and weak community; therefore jihd in its military sense would not have been feasible. Indeed, the Muslims in Makkah strived hard to control their evil desires, improve their understanding of Islam and apply it by their words and deeds and in striving hard in propagating the message. After they migrated to Madinah, their striving eventually involved the taking up of arms in defence and fighting in the battlefield. This remarks a new development in the Muslims dimension of jihd and the full explanation of it will be properly discussed in the following passages. The Madinan Revelations In the Madnan period of the Qurnic revelation, the earliest development of jihd can be traced by the following verses: And their Lord hath accepted of them and answered them: Never will I suffer to be lost the work of any of you be he male or female: ye are members one of another; those who have left their homes
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or been driven out therefrom or suffered harm in My cause or fought or been slain verily I will blot out from them their iniquities and admit them into gardens with rivers flowing beneath; a reward from the presence of Allah and from His presence is the best of rewards (Qurn, III:195). To those against whom war is made permission is given (to fight) because they are wronged and verily Allah is Most powerful for their aid. (They are) those who have been expelled from their homes in defiance of right (for no cause) except that they say Our Lord is Allah. Did not Allah check one set of people by means of another there would surely have been pulled down monasteries, churches synagogues and mosques in which the name of Allah is commemorated in abundant measure. Allah will certainly aid those who aid His (cause); for verily Allah is Full of Strength Exalted in Might (Able to enforce His Will) (Qurn, XXII:39-40). Fight in the cause of Allah those who fight you but do not transgress limits; for Allah loveth not transgressors. And slay them wherever ye catch them and turn them out from where they have turned you out; for tumult and oppression are worse than slaughter; but fight them not at the Sacred Mosque unless they (first) fight you there; but if they fight you slay them. Such is the reward of those who suppress faith. (Qurn, II:190-191). They ask thee concerning fighting in the Prohibited Month. Say: Fighting therein is a grave (offence); but graver is it in the sight of Allah to prevent access to the path of Allah to deny Him to prevent access to the Sacred Mosque and drive out its members. Tumult and oppression are worse than slaughter. Nor will they cease fighting you until they turn you back from your faith if they can. And if any of you turn back from their faith and die in unbelief their works will bear no fruit in this life and in the Hereafter; they will be Companions of the Fire and will abide therein (Qurn, II:217). From the verses above, the words used to describe to fight are yuqtalna, waqtulhum, tuqtilhum, all of which originate from the Arabic word qitl. In every case, the carrying out of a qitl is enjoined
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and clearly refers to fighting in the battlefield or war. This suggests to us that the word qitl in the Qurn particularly refers to a form of fighting or a war. Thus, the word qitl further narrows the broad definition of jihd. Even here, the word jihd is not used. The Qurn allows fighting to defend the religion of Islam and the Muslims are credited for this effort. It is appropriate at this point to raise the question, why was there so much war between Muslims and unbelievers in the time of the Prophet ( ) and his Companions (R.A.)? This will be answered by examining the verses quoted above in the following passages. The first verse (Qurn, III:195) tells us about the early situation of the Muslims in Makkah where the Muslim community was still being mistreated and tormented unjustly by the Makkan polytheists. This finally forced the Muslims to migrate, first to Abyssinia and then to Madinah (this event happened on 12 Rab al-Awwal of the first Hijrah year/24th of September, 622).31 It is worth stating that the Hijrah marks a number of significant developments in Islam: firstly, the Islamic calendar begins with the year in which the Prophet ( ) and his followers migrated to Madinah. It is worth explaining that the Muslims in the 17th year of Umar b. Khabs reign preferred to date their era not from the birth of the Prophet ( , nor from the time of the first revelation, but from the year of the Hijrah; because they regarded Hijrat to Madinah as the greatest epoch making event for Muslims and Islam. 32 The concept of worship as a religious ritual and ceremony acquired social, political and economical overtones at this point in time. It most certainly also involved the development of a larger concept of jihd.33 This explains why the Madinan texts show a fundamental change in its quality and content. Before the revelation of verses 38, 39 and 40 in chapter XXII and in the early years of the persecution, the Prophet ( ) continued to advise his followers to conduct peaceful jihd and to avoid any fighting. However, jihd finally expanded to include a military dimension soon after these verses were revealed.34 Commentators such as al-abar35 and al-Wid36 say that Ab Bakr al-iddq and many Companions (R.A.) are reported to have complained to the Prophet ( ) that they would definitely be killed by the Makkan polytheists if they were not allowed to fight back. Therefore, the verses were revealed which allowed the Muslims to defend themselves. A similar understanding is also shown by other commentators such as
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al-Zamakhshar, 37 al-Rz, 38 al-Bayw 39 and Ab Abd Allh Muammad al-Qurub (Mlik jurist commentator d. 671/1273)40. In addition, these verses are important because it is agreed by such commentators that the verses were the first pronouncement of military jihd and were revealed in the year of the Prophets Hijrah, or the year 622 A.D., or thirteen years after the first revelation was sent down to him.41 Indeed, the permission was given to people upon whom war was being made by the enemies, but it was not a permission to make war in general, but only against people who made war on them. According to al-Mward, verse 39 in chapter XXII specifies that jihd at this stage is imperative for the Muhjirn (the emigrants) but need only be voluntarily be entered into by others. 42 However, others disagree and this text has been misunderstood. In my point of view, this revelation refers to both the Muhjirn and the Anr (the helpers), though it was only the Muhjirn who had been wronged by the Makkan polytheists when they had been driven from their homes in Makkah. But, in the Islamic tradition, all Muslims are regarded as one ummah.43 Because of this concept, Islam promotes strong ties amongst the members of the ummah who should look upon themselves as brethren under God. Therefore, it was the duty of the Anr to give protection, food and any other possible assistance to the Muhjirn. The revelation, however, should not be understood to indicate that the Prophet ( ) was thinking of an absolute war to meet the Makkan polytheists in the open. Instead, the Prophet ( ) was launching several sariyyah (smaller expeditions) as the modest form of fighting.44 In the Arab nomadic tradition, sariyyah was the common practice and an accepted way to overcome economic problems when the times were hard. Indeed, if we look back to the life of the Prophet ( ) and the first Muslims especially the Muhjirn, they had few opportunities of earning living expenses in Madinah. According to Armstrong, the Muhjirn were mostly merchants and bankers and they knew nothing about farming.45 So, it was not easy for them to begin their own agricultural ventures in the land provided. In Madinah, the opportunity for trade was too little for their needs and furthermore Makkah held a strong monopoly in the business area. In this hard time, the Muhjirn really needed the Anr in order to survive. Despite all these difficulties, the Prophet ( ) believed that the sariyyah could be the way to secure a fair circulation of the available
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wealth during the nomadic period. Here, one can say that the concept of sariyyah taken by the Prophet ( ) was to restore the Muslims ailing economy, after they had been transgressed by the Makkan polytheists.46 So, in my opinion, the sariyyah was a defensive form of jihd. In connection with this, the verses 190 and 191 in chapter II clearly tell the Muslims that someone who does not inflict any oppression on them must not be fought with. In these verses, the Muslims were not to be the first to attack, they could fight but only against those who attacked them first, aggression was expressly prohibited. This principle or permission to fight against the aggresor was/is still valid in later periods. So Islam is against aggression and permission is given only for war in self-defense. In other words, if the non-Muslims interact peacefully with the Muslims, there can be no ground or justification to declare war on them. According to al-Wid, these verses were revealed in the year 6/628, just after the occasion of the peace agreement between the Prophet ( ) and the Makkan polytheists at al-udaybiyah (a place bordering on the Sacred Precinct or aram of Makkah). 47 The agreement said that the Prophet ( ) and his followers were not allowed to enter Makkah for pilgrimage that year but would be allowed to return for the pilgrimage in the following year. Nonetheless, the Prophet ( ) and his followers still feared that they would be killed if they returned to Makkah. For this reason, the verses were revealed and allowed them to fight if attacked. Another point is that the aram of Makkah was a sacred place. According to pre-Islamic Arabic tradition also, any battle within the area was strictly forbidden. This matter puzzled the Prophet ( ) and his Companions (R.A.) for a time. First, they understood that the verse 190 told them that it is a duty to fight in defense of the Muslims. Second, what would they do if battle happened in the aram of Makkah? If verse 190 is read in with the verse 191, it gives the Prophet ( ) the solution: And do not fight them (wa l tuqtilhum) at the aram mosque until they fight you there. But if they fight you, then kill them. The verse suggests that because the aram of Makkah is a place in which fighting is prohibited, Muslims were not allowed to initiate the fighting therein against the enemies. Nonetheless, they were permitted to fight at the aram only if the enemies extended the fighting to that place. Once the
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enemies have stopped hostilities in the aram of Makkah, the Muslims must cease fighting there immediately. Therefore, this verse was revealed to give the Prophet ( ) the permission of fighting in self-defense if attacked at the aram of Makkah.48 A similar context is shown by the verse 217 in the Srah II. This verse, however, is particularly related to the event that involved a raid at a place to the south of Makkah, namely Nakhlah. 49 The raid was led by Abd Allh b. Jash al-Asad in the prohibited month of fighting. This raid took place either on the last day of Jumdah al-khirah or the first day of Rajab in the year 2/December 623. According to the pre-Islamic Arabic tradition, Rajab was one of the four sacred months in which fighting was strictly prohibited. (Some commentators maintain that the sacred months mentioned in the verse are Muarram, Rajab, Dh al-Qadah and Dh al-ijjah). 50 In this incident, a Makkan polytheist named Amr b. al-aram was killed.51 The Significance of the Prophets Jihd In particular, one can divide jihd in the early days of Islam into four stages: the first stage indicated that jihd was not legislated during the Makkan period, i.e. Hast thou not turned thy vision to those who were told to hold back their hands (from fight) but establish regular prayers and spend in regular charity (zakt)? (Qurn, IV:77). This was the approach taken by the Muslims when the mission of Islam was still new. If the Muslims had confronted the Makkah polytheists by force at that time, the Makkan polytheists would have uprooted and destroyed Islam at the outset. Therefore, it was important for the Muslims to concentrate on improving their faith by performing worship and struggling with their own nafs (soul) and inviting others to Islam. The second stage was marked when the Muslims migrated to Madinah and they got a support from the Anr. At this time, the Muslims had a territory which was under their own administration. In this respect, jihd was permitted only in self-defense as mentioned in chapter XXII, verse 39. The third stage came into being when the Muslims were ordered to fight in the protection of their beliefs; family and property (see the Qurn, II:190). Here, the purpose of jihd was highlighted which forbade all kinds of transgression. The last stage concluded that the Muslims were
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finally ordered to fight the Makkan polytheists using military force (see the Qurn, VIII:39): And fight them on until there is no more tumult or oppression and there prevail justice and faith in Allah altogether and everywhere; but if they cease verily Allah doth see all that they do (Qurn, VIII:39). The above discussion suggests that jihd against the Makkan polytheists was legislated under the specific conditions which existed after the Prophet ( ) had migrated from Makkah to Madinah. In Madinah, he secured a pact, defensive in nature, with the Jewish and Arab tribes of the city, who accepted him as the imm of their community.52 Under the Prophets immah, Islam attained the status of a nation with its co-requisite territory and the accompanying need to protect its selfinterests. The conditions that covered the background of the jihd legislation can also be divided into four categories: first, the Prophet ( ) faced the persistent refusal of the Makkan polytheists to allow the Islamic dawah in Makkah; second, the Prophet ( ) also witnessed the continuous persecution of the Muslims who remained at Makkah after the Prophets migration to Madinah; third, the Makkan polytheists themselves initiated the military campaigns against the Muslims at Madinah and lastly a number of tribes allied to the Prophet ( ) broke the key security covenant and forced the Prophet ( ) into a defenseless position. Thus, this gives us the picture that the permission to wage jihd against the Makkan polytheists was given in relation to the all the specific conditions mentioned above and it is not true to claim that military jihd is an act of transgression. With respect to this defensive form of jihd, the modern writer Muhammad Hamidullah claims that there are many adths that mention the precarious life in the early days of the Muslims in Madinah after the Hijrah. He also says that the Muslims used to guard the city and sleep at night in full war-kit.53 He, furthermore, asserts that several examples of the expeditions and battles such as the expedition of Tabk,54 the Battles of Badr, 55 Ud, 56 Trench 57 and unayn 58 were also defensive.59 Further, he quotes one adth that itemizes the kinds of defensive wars: Whoever fights in defense of his person and is killed, he is a martyr.
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Whoever is killed in defense of his property, is a martyr. Whoever fights in defense of his family and is killed, is a martyr and whoever is killed for the cause of God is a martyr.60* Watt, furthermore, claims that all the expeditions taken by the Muslims in the times of the Prophet ( ) were defensive. Quoted here below are some statements made by Watt (some clarifications on several terms used by Watt have been made): The emigrants (this refers to the Muhjirn) went on razzias (expeditions) because they thought they had been badly treated by their fellow-Makkans. One verse describes them as those who after persecution emigrated, then strove and patiently endured (this refers to Q, 16:110 but not 111 as stated in the book); strove here implies went on razzias. Another passage (Q, 22:40) makes their treatment by the Meccans the justification for their hostile activity: Permission is given to those who are fighting because they have been wronged those who were driven from their homes for no reason but they say that God is our Lord. It is conceivable, however, that this verse was an answer to the complaint of some of the more nominal Muslims in Medina that the razzias were endangering the safety of all Medina; the answer would consist in saying that they have been ill-treated because of their belief in God, and that God approves of their striking back. 61 In view of the above examples of the remarks given by the modern writers in regard with the issue of defensive jihd, it becomes obvious that those expeditions carried out by the Muslims in the early days of Islam could reasonably be considered to be defensive. Returning to the aforementioned Qurnic verses, one can say that the Makkan texts concentrate on defensive jihd. In the Madinan texts, however, it seems likely to arouse controversy if one were to say that *Said ibn Zayd reported that the Prophet ( ), said: He who is killed while
guarding his property is a martyr, he who is killed while defending himself is a martyr, and he who is killed defending his religion is a martyr, and he who dies protecting his family is (also) a martyr. This adth is narrated by Amad and Tirmidh. The latter considers it a sound adth Ed.
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these verses focused on defensive jihd as well. But if one makes a careful study, as done in this article, one would see that jihd in the Madinan texts is a response to aggression and oppression committed against the Muslims at the time of the Prophet ( ), whether by the Arab polytheists, some of the Jewish tribes in Madinah, or by some Christians, and therefore could also be considered defensive. It is also worth noting that in this respect; the Madinan texts provide a lengthy discussion on military jihd and focus on specific battles; for instance, the Battles of Badr, Uud, Trench, unayn and the expedition of Tabk. The above discussion should help us formulate the general principles and motives that guide jihd. To sum up, jihd in the sense of fighting in the battlefield or war, should only be regarded as a last resort after all other possible approaches have been exhausted in an attempt to solve whatever problems one faces. While other means exist untried to solve disputes, quarrels or squabbles, they should be used before war is even considered. Diplomatic means, negotiations, mediations and dialogue often are the best means to overcome problems. These efforts may look to be slow and tedious, but they can definitely save many innocent lives.
1.
2. 3.
4. 5.
John Wansbrough, Quranic Studies, Oxford, Oxford University Press, 1977, pp. 171-72; Yasin Dutton, The Origin of Islamic Law: The Quran, the Muwatta and Madinan Amal, London, Routledge Curzon, 2002, p. 161. Reuven Firestone, Jihd: The Origin of Holy War in Islam, Oxford, Oxford University Press, 1999, pp. 17-18. Muammad b. Mukarrm b. Manr (Ibn Manzr), Lisn al-Arab, vol. III, Qhirah, al-Matbaah al-Kubr al-Mryah, 1300-1307, pp. 133-134; E. W. Lane, Arabic-English Lexicon, vol. 1, Cambridge, Cambridge University Press, 1984, 473; Abd al-Salm Hrn, al-Mujam al-wast, vol. 1, Qhirah, Shirka Musahama Misriyah, 1960, 142; Ahmad Rid, Mujam matn al-lughah, vol.1, Beirut, Dr al-Maktabah al-Hayah, 1958-1960, 587; Khaled Abou El-Fadl, The Place of Tolerance in Islam, Boston, Mass, Beacon Press, 2002, pp. 3-23. Ibn Manr, Lisn al-Arab, p. 134. For more detailed information of the usage of term ijtihd and its relevance to jihd, see Mohammad Hashim Kamali, Issues in the understanding of Jihd and Ijtihd, Islamic Studies 41, (2002), pp. 617-634.
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45
07.
08.
09. 10. 11. 12.
13.
14. 15. 16. 17. 18. 19.
For these types of jihd, see, for example, Abu Ala al-Mawdudi, Towards Understanding Islam, trans. and ed. Khurshid Ahmad, Leicester, The Islamic Foundation, 2002, 94; M.A. Sattar, Islam: The True Religion of Allah, Penang, 1978, pp. 27-8; Majid Khadduri, War and Peace in the Law of Islam, Baltimore, Johns Hopkins Press, 1955, 55; Patrick J. Bannerman, Islam in Perspective, London, Routledge, 1988, 86; Firestone, Jihd, pp. 17-18. For more detailed information of holy war, see, for example, Karen Armstrong, Holy War, London, Macmillan, 1988, 99 ff.; H.E.J. Cowdrey, The Genesis of the Crusades: The Springs of Western Ideas of Holy War, in The Holy War, ed. Thomas Patrick Murphy, Columbus, Ohio State University Press, 1976, pp. 9-32; Carole Hillenbrand, The Crusades: Islamic Perspectives, Edinburgh, Edinburgh University Press, 1999, pp. 94-100. See, for example, Abd Allh Azzm, Fi al-jihd adb wa akm, (n.p.p., 1987), pp. 2-3; Abu al-Hasan Ali al-Nadwi, Islam and The World, Kuwait, I.I.F.S.O., 1977, 88; Colin Imber, Ebus-Suud: The Islamic Legal Tradition, Edinburgh, Edinburgh University Press, 1997, pp. 67-9; Bernard Lewis, Islam from the Prophet Muhammad to the Capture of Constantinople: I. Politics and War, New York, Oxford University Press, 1979, pp. 209-13 and The Political Language of Islam, Chicago; London, University of Chicago Press, 1988, 72; T.W. Arnold, The Preaching of Islam: A History of the Propagation of the Muslim Faith, Lahore, Sh. Muhammad Ashraf, 1961, pp. 445-451. Karen Armstrong, Muammad : A Biography of the Prophet, London, Gollancz, 2001, p. 168. See Qurn, CXII:1-4. See Qurn, I:6-7. Context here means a text consists of the word, sentences, or text before and after it which help to make its meaning clear. For a summary of this way, see Farid Esack, Qurn, Liberation and Pluralism: An Islamic Perspective, Oxford, Oxford University Press, 1997, p. 225. For the summary of this method, see Andrew Rippin, The Exegetical Genre Asbb al-Nuzl: A Bibliographical and Terminological Survey, Bulletin of the School of Oriental and African Studies, 48, (1985), pp. 2-15. Muqtil b. Sulaymn, Tafsr Muqtil, vol. II, ed. Abd Allh Mahmd Shihta, Cairo, al-Hayah al-Misriyah al-Ammah li al-Kitb, 1989, p. 437. Al-abar, Ab Jafar Muammad b. Jarr, Jm al-Bayn an twl y al-Qurn, vol. XIV, Beirut, Dr al-Kutub al-Ilmya, 1984, p. 68. Fakhr al-Dn al-Razi, Tafsr al-Kabr, vol. XIII, Cairo, Matba ah al-Husaynyah al-Misriyah, 1938, p. 73. See Sa Bukhr, Kitb al-mn, 25; Sa Muslim, Kitb al-mn, 118. See Sa Bukhr, Kitb al-jihd, 2782; Sa Muslim, Kitb Fail al-aml, 4623; Sunan Ab Dwd, Kitb al-jihd, p. 2167. This adth is taken from the collection of al-Nas, Ab Abd Allh al-Ramn Amad b. Shuayb b. Al, in his Sunan, vol. VI, Misr, Mustaf al-Bb al-Halab, 1965, Kitb al-jihd, p. 3.
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46
21.
22. 23. 24. 25. 26. 27. 28. 29.
30. 31.
32.
33.
34. 35. 36. 37. 38. 39.
Abu Jafar Muammad b. Jarr al-abar, Tarkh al-umam wa al-mulk, vol. II, Beirut, Dr al-Kutub al-Ilmya, 1961, 318; Imd al-Dn Ab al-Fid Isml b. Umar (Ibn Kathr), Srah al-Nabawiyyah, vol. I, Qhirah, sa al-Bb al-Halab, 1976, p. 421. Ab al-Hassan Al b. Ahmad al-Wid, Asbb al-Nuzl (Misr, Mustaf al-Bb al-Halab, 1991, pp. 162-63; Abd al-Mlik b. Hishm (Ibn Hishm), al-Srah al-Nabawiyyah, vol. III, Beirut, Dr Ihy al-Turth al-Arab, 1985, 63; Alfred Guillaume, The Life of Muammad: A Translation of Ibn Isqs Sra Rasl Allh, Oxford, Oxford University Press, 1955, p. 369. Al-abar, Jam al-Bayn an Twl y al-Qurn, vol. XIV, p. 195. Muqtil, Tafsr, p. 195. See Qurn, IX:29. Al-abar, Jam al-Bayn, vol. XIV, p. 195. Ibid., vol. X, pp. 22-23. Abd Allh b. Umar b. Muhammad al-Bayw, Anwr al-tanzl wa asrr al-tawl, vol. II, Beirut, Dr al-Kutub al-Ilmya, 1969, p. 148. Jall al-Dn al-Suy, al-Durr al-manthr f al-tafsr bi al-mthr, vol. IV, al-Riyd, Dr lam al-Kutub, 1990, pp. 62-63. Fakhr al-Dn al-Rz, Tafsr al-Kbr, vol. XIII, 73; Jr Allh Mahmd b. Umar al-Khawrizm al-Zamakhshar, al-Kashshf, vol. III, Beirut, Dr al-Marifah, n.d., p. 173. Fakhr al-Dn al-Rz, Tafsr al-Kbr, vol. XIII, p. 73. Al-abar, The History of al-abar, vol. V, trans. W. Montgomery Watt and M.V. McDonald, Albany, N.Y., State University of New York Press, 1988, p. 162; Ibn Hisham, al-Srah al-Nabawiyyah, vol. II, p. 590; Guillaume, The Life of Muammad, p. 218. G.S.P. Freeman-Grenville, The Muslim and Christian Calendars: being tables for the conversion of Muslim and Christian dates from the Hijra to the year A.D. 2000, London, Oxford University Press, 1963, 14; see also, John L. Esposito, The Islamic Threat: Myth or reality? New York; Oxford, Oxford University Press, 1992, p. 29. W. Montgomery Watt, Muhammad at Medina, Oxford, Clarendon Press, 1956, 242; Michael Cook, Muhammad, Oxford, Oxford University Press, 1983, pp. 18-24; Fred McGraw Donner, The Early Islamic Conquests, Princeton, N.J., Princeton University Press, 1981, pp. 54-55. Omar A Farrukh, Ibn Taymiyya on Public and Private Law in Islam, Beirut, Khayats, 1966, p. 136. Al-abar, Jam al-Bayn, vol. XVII, pp. 171-173. Ab al-Hasan Al b. Ahmad al-Wid, Asbb al-Nuzl, p. 177. Al-Zamakhshar, al-Kashshf, vol. III, p. 15. Al-Rz, Tafsr al-Kbr, vol. XXIII, p. 39. Ab Said Abd Allh b. Umar b. Muammad al-Shrz al-Bayw, Anwr al-anzl, vol. II, p. 93.
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44. 45. 46. 47.
48. 49.
50. 51.
52. 53. 54. 55. 3. 57. 58. 59. 60. 61.
Ab Abd Allh Muammad b. Amad al-Qurub, al-Jmi li akam al-Qurn, vol. II, al-Qhirah, Dr al-Kutub al-Misriyah, 1987, vol. VIII, pp. 68-69. Muqtil, Tafsr, vol. III, p. 129. Mustaf Wahbah al-Zuhayl, Athr al-arb f fiqh al-Islm, Dimashq, Dr al-Fikr, 1962, p. 88. For more detailed information on ummah, see, for example, Jaffary Awang, The Notion of Ummah in Islam: The response of Malay Muslim intellectuals in Malaysia, unpublished PhD thesis, University of Birmingham, 2000 (see Chapter Three and Four); Qamaruddin Khan, The Political Thought of Ibn Taymiyya, Islamabad, Islamic Research Institute, 1983, pp. 109-25; Fred McGraw Donner, The Early Islamic Conquests, pp. 55-62. Armstrong, Muhammad, p. 169. Ibid. Ibid. Al-Wid, Asbb al-Nuzl, 29; Muqtil, Tafsr, vol. I, p. 167; Ibn Hishm, al-Srah al-Nabawiyyah, vol. III, p.321; Guillaume, The Life of Muammad, pp. 499-503. Al-Zamakhshar, al-Kashshf, vol. I, p. 223. Nakhla is the name of two valleys on the way from Makkah Taif, distinguished as Shamaniyya (northern Syria) and Yamaniya (southern Yemen); see The Encyclopaedia of Islam, 2nd edition, vol. VII, Leiden, 1960, p. 924. Al-abar, Jam al-Bayn, vol. XIV, pp. 234-42; al-Zamakhsyar, al-Kashshf, II:261; al-Qurtub, al-Jam li akam al-Qurn, vol. VIII, p. 133. For more detailed information of this story, see al-abar, Jam al-Bayn, vol. II, pp. 299-315; Guillaume, The Life of Muammad, pp, 286-89; Ibn Hishm, al-Srah al-Nabawiyyah, vol. II, pp. 601-05; al-Qurub, al-Jam li akm al-Qurn, vol. III, pp. 40-5; al-Zamakhshar, al-Kashshf, vol. I, p. 258. For more detailed information of The Medina Agreement, see, for example, Firestone, Jihd, pp. 117-121. Muhammad Hamidullah, Muslim Conduct of State, Lahore, Sh. Muhammad Ashraf, 1977, p. 167. This expedition took place in the year 9/631. This battle took place in the year 2/624. This battle took place in the year 3/625. This battle took place in the year 5/627. This battle took place in the year 8/630. Hamidullah, Muslim Conduct of State, p. 167. Ibid., p. 168. William Montgomery Watt, Muammad: Prophet and Statesman, London; Oxford University Press, 1961, pp. 107-108.
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A SOURCE FOR VIABLE POLITICAL CULTURE

DR. ABUBAKR YAQUB IMAM Department of Religions, University of Ilorin, Ilorin, Nigeria. e-mail: Abubakar Imam[aaliagan2003@yahoo.com]
SUNNAT AL-AB
Introduction A general assumption which dominates the political scene among the orthodox scholars is that the Islamic political system is based on the application of shr as a guided electoral process of the Islamic polity. This assertion is strongly supported by the fact that the process which the second caliph Umar put in place to appoint his successor was based on the shr process. This truism led many scholars to support this assertion without adequate analysis of the historical antecedents which characterized the election or selection of the other caliphs. Admittedly, the principle of shr is mentioned in the Qurn and many academic works have been produced in favour of this assertion. It is, however, doubtful as an argument, that the shr, as a political structure, was applied in all the processes that produced the rightly guided Caliphs. This paper, therefore, attempts an appraisal of the dynamism of the sunnat al-ab which characterized the processes that produced the successful Caliphs and uphold its (present) effectiveness in the search for a vibrant and viable political culture within the Muslim ummah. Definition of Terms The contextual application, definition and technical meaning of adth and Sunnah have been a subject of heated debate. While some scholars subscribe to the occurrence of synonym between the two, others declare
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the attempt to strike a line of demarcation between them as mere emblematical and theoretical exercise. This section, therefore, attempts a brief definition of the terms and examines the scholastic arguments that surround them. adth, as an antonym of qadm, according to lexicographers, is derived from dth, which connotes various meanings in different contexts and circumstances. The attempt by scholars to harmonize its diverse meanings reveals that its connotations are endless. Cowan, for example, suggests more than fifteen meanings.1 Elias provides a list above twenty.2 Lane gives the lexical definition as: New, recent existing newly for the first time, not having before, information, a piece of information, intelligence a thing or matter that is talked of, told or narrated. 3 The word, as Siddiqi observes, was employed in this sense by the pre-Islamic poets and by the Qurn and adth.4 In as much as we agree with Siddiqi in this submission, its usage in the Qurn and adth is seen to have acquired a codified meaning. Its connotation in this regard, as Azami posits, is a reference to a religious communication, a story of a general nature, a historical study and a current story or conversation.5 It should be added here that the far-reaching influence of Islam on the Arabs gives the term a distinguished technical usage as summarized by the Encyclopaedia Britannica as follows: The record of the traditions or sayings of the Prophet Muammad ( ) revered and received as a major source of religious law and moral guidance, second only to the authority of the Qurn or scripture of Islam. It might be defined as the biography of Muammad ( ) perpetuated by the long memory of his community for their exemplification and obedience. 6 This submission tallies with the general belief that adth could be defined as the Prophetic statement, which is regarded as the second source of the Islamic law. However, two other concepts seem to have been harmonized here, whereas, they are supposed to be treated
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separately. These are the Sunnah and srah. Due to the importance of the word Sunnah to this paper, it shall later be discussed in some details. The jurists, however, define adth as the action, statement or tacit approval credited to the Prophet ( ) different from the Qurnic verses.7 It is also apposite to point out that the statements of the Prophet ( ) before his mission at the age of forty (40) are technically omitted. This definition, in our view, tallies with the exact meaning of the word Sunnah. Their usages as synonym stems out from this definition, though as we shall later discuss, the two terms are for different usage and purpose. The word Sunnah like adth was already in vogue in the preIslamic Arabia. The Arabs used it for past customs and exemplary conduct of their ancestors, i.e., for their customary or common law. 8 Muslim scholars, however, use it in the sense of tradition, good or bad. 9 The Prophet ( ) himself used the word in this general sense. 10 It is also used in the Qurn in eight places,11 which varies in meaning according to the context of its usage. It is used for example to mean Allahs providence and verdicts as could be seen in the following verse. (Such was) the practice (approved) of Allah among those who lived aforetime: no change wilt thou find in the practice (approved) of Allah (Al-Qurn, XXXIII:62). The early Muslims, as Siddiqi opines, employed the word for the practice of the community and in later years for the practice of the Prophet ( ) only.12 We find this position of Siddiqi plausible. The practice of the community is considered as the basis upon which the Prophets actions are based. Hasan, on the other hand, views this position from a different perspective. He says: Sunnah refers to the normative practice set up by the Prophet ( ) as a model, which, so long as he was alive, was his unique privilege. In the succeeding generations it stood for the usage of the early Muslims which was taken to represent Sunnah of the Prophet ( ).13 Thus the Sunnah in Islam refers to the Prophets opinions about matters good or evil, desirable or otherwise, as well as the practices
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that he approved for Muslims to follow. 14 The Sunnah can therefore be summed up as the ethical values of Islam as practised, mentioned or tacitly approved by the Prophet ( ). This assertion is in line with the division of Sunnah into two i.e. verbal Sunnah and Sunnatul-filiyyah, i.e., action Sunnah. The former is explained as the Prophets sayings heard by others while the latter means all the canonical acts of worship and institutions of Islam practised by the Prophet ( ).15 It could therefore be rightly asserted that the relationship between the Sunnah and adth is that every unit of the Sunnah conveying a report about the Prophets statement is called a adth.16 The adth, on the other hand serves as the vehicle which conveys the Sunnah. It is also implied that only the acceptable adth represent and portray the authentic Sunnah. There is also an indication that the Prophet ( ) used the word Sunnah to refer to the conduct of his Companions i.e., sunnatusab as recorded by al-Nawaw.17 The usage does not imply that it comes or takes precedence over the Prophets Sunnah, rather it could be rightly argued that during and after the lifetime of the Prophet ( ), Sunnah meant the conformity of the acts of the Companions to the acts of the Prophet ( ). Ibn Taymiyyah (1263-1328 A.D.), however, in a scholarly manner, draws a line of demarcation between the Prophets actions before and after his call to prophethood. He illustrates this distinction with a view that: Whoever secludes himself in mountains and valleys, claiming to be following the Prophets experience of cave irah is seriously mistaking because the Prophet ( ) himself discontinued the act after his call to prophethood.18 This illustration, in our view, is relevant and not out of place as some people accord the pre-prophethood actions of Prophet Muammad ( ) a position of sacredness meant to be religiously copied. Such actions include the climbing of the cave ira during the ajj pilgrimage.* It should, however, be mentioned here in passing that the
*It is a sacred site to visit but is not part of the ajj ritual Ed.
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adth and Sunnah cannot be used interchangeably as claimed by Hameed that (Sunnah) is a sister word to adth and that they are both identical and relatively synonymous.19 Similarly, Siddiqis position in this regard deserves investigation. He says: Some Muslim writers have regarded these philologically unconnected words as wholly synonymous, while others have attempted to draw distinctions between their connotations. Such distinctions, however have long been theoretical.20 It has been long discovered that the differences between the two words are both theoretical and practical as could be seen in al-Shafis submission, which, in our opinion, is precise. He says: Sunnah can be legitimately determined only by means of oral reports or adth that established the sayings, doings and approbation of Muammad ( ). When Tradition is said to be a source of authoritative teachings for Muslims it is normally the adth of the Prophet ( ) that are meant by Traditions.21 Al-Shfs reconciliation between the adth and Sunnah implies that the former serves as the vehicle for the latter, which is contained and can be extracted from the sayings, deeds and approval (even if tacit) of the Prophet ( ). In other words, Sunnah is contained in adth as it is also possible for a single adth to contain more than one Sunnah. It could, perhaps, be possible that the words were used as identical in the pre-al-Shf period which necessitates his objection to such postulation. Azami, to the best of our knowledge, is accurate when he says adth is the repository of the Sunnah.22 adth, is therefore seen to be more comprehensive than Sunnah, since the former comprises all that is related to the Prophet ( ), while the latter denotes the established rules of the prophetic mission, his adoption and tacit approval of the old practices of the Arabs, technically called sunnatus-ab as shall later be substantiated in what follows. Scholastic Polemics on the Definition of abah The definition of abah (Companions) attracts scholastic comments as explained below. Al-Asqaln,23 whose definition could
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be referred to as the most popular, submits that a ab is he, who had personal contact with the Prophet ( ), accepted his mission and died as a Muslim. These include those who spent their entire lives with the Prophet ( ) and those who met him occasionally. Those who reported adth from him and those who did not; those who accompanied him and participated in expeditions and those who did not; those who met him once and the blind who could not see him. 24 This general definition has been queried by a group of Shah scholars. They declare that: We do not share the view that those who saw the Prophet ( ) once, or visited him occasionally were abah but those who were always with him, helped him (in his mission) and followed his universal significant light; those are the winners. 25 The Shah further categorized the abah into groups based on political considerations. First are the highly-rated Companions, known as (al-ahbatul-akhyr). They were considered by the group as those who followed the prophetic mission to the letter. They stood firmly behind Imam Al Ibn Abi lib as the rightful successor of the Prophet ( ).26 This politically motivated definition, as far as we know, excludes the Companions who died in wars or naturally while the Prophet ( ) was still alive. Furthermore, the term, when viewed from its antonym, suggests that, there were lowly-rated Companions, which, in our view, negates the contextual meaning of the word abah and how it was used by the Prophet ( ) himself. This assumption is, however, overlooked by the Shah school of thought. They insist that some Companions were antagonistic to the Prophet ( ) as could be seen in their definition of al-munfiqn (hypocrites). The Shah regard majority of the Prophets Companions as hypocrites because, according to them, it was against the abah that a chapter of the Qurn was revealed to expose their diabolical motives and intentions.27 This group of Companions, according to the Shah, could not be referred to as abah.28 One then wonders why they classify them as abah in the first instance. The only group whom the Shah revered is the members of the Prophets household technically called the Ahal al-Bayt.29 It should be pointed out, however, that, the Shah do not regard every member of the
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Prophets ( ) household in their concept of Ahal al-Bayt. This appellation is limited to only four members. These are Fmah, the daughter of the Prophet ( ), her husband, Al Ibn Abi lib and their two sons, asan and usain.30 The Shahs affinity to the fourth Caliph, Al, is manifest in their rejection and castigation of all other abah. The other three Caliphs, Ab-Bakr, Umar and Uthmn are grouped among those who are said to had disagred with the Prophet ( ). They, therefore, according to the Shah, form part of the second group and as such they deserve no respect and sometimes they deserve condemnation. Samavi, for example, declares that there are verses in the Qurn where the abah are rebuked and threatened because of their attitude in certain matters and the Messenger of Allah ( ) warned them on many occasions, and warned other people about them.31 Most of his arguments therein have been discovered to be mere rhetoric and wishful thinking of the Orientalists scholars on whom he relied copiously. The fourth caliph Al is further regarded, according to Shah literatures, as the next source of Islamic law beside the Qurn and the Sunnah.32 He is rated to be the sole master of eloquence beside the Qurn.33 Thus, the Shah reject in totality the concept of sunnat al-ab and stated further that it cannot be cited as a source of Islamic law.34 This position of the Shah has been challenged by the Sunn scholars.35 Selected few are considered in what follows. Adib Salih states that the Companions were the best vehicles that linked the present generation with the Prophetic traditions. They also witnessed the period of revelation and learnt best examples from the Prophet ( ).36 Asibai, is more challenging by declaring that all the Companions are trustworthy people according to the Sunn school of thought.37 Al-Salaf on the other hand based his submission on the outstanding qualities of the abah on both the teaching of the Qurn and the adth. He opined that Allah certifies them as the best Companions,38 while the Prophet ( ) himself declares that the people of the tree39 would never enter the fire of hell.* 40 The Prophet ( ), in another instance, declared that you are more competent in devising
*Reference to bayat al-Riwn, when hearing that Uthmn (R.A.) who had been sent to negotiate with the Quraysh to allow the Muslims offer Umrah, had been killed all the Companions pledged to revenge his blood. Their firm determination made the Makkans accept truce of Hudaibiyah. For details see Sirat Ibn Isq. Eng. Tr. Guillaume, London, 1955, pp. 499-502. The holy Qurn also refers to it, XLVIII:18-23 Ed.
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the technical means to maintain your worldly matters. Thus the scholastic polemics on the abah has led to voluminous works from the Sunn and the Shah scholars. This needs a detailed research, which is outside the scope of this paper. It suffices to quote the definition of another Sunn scholar to conclude the argument on the definition which is also adopted for the purpose of this paper. A ab is he who accepted the mission of Muammad ( ), helped him to realize it, and laid down his life to support the noble cause, from the Anr and the Muhjirn. And his contemporaries who accepted his mission; and those that contributed to knowledge from available reports, about their activities. 41 Attention should be drawn to the fact that these set of the abah are specifically mentioned in the Qurn as having satisfied Allahs laid down criterion for the endless bliss. Principal to us among the numerous verses which cast doubt on the Shahs argument reads: The vanguard (of Islam) the first of those who forsook (their homes) and of those who gave them aid and (also) those who follow them in (all) good deeds well pleased is Allah with them as are they with him: for them hath He prepared gardens under which rivers flow to dwell therein for ever: that is the supreme felicity. (Al-Qurn, IX:100). And as if as to remove the chaff from the grain, the next verse informs the Prophet ( ) that: Certain of the desert Arabs round about you are hypocrites as well as (desert Arabs) among the Medina folk: they are obstinate in hypocrisy: thou knowest them not: We know them: twice shall We punish them and in addition shall they be sent to a grievous penalty. (Al-Qurn, IX:101). Thus the abah are revered by both the Qurn and the adth which renders any argument against their integrity and trustworthiness a baseless hypothesis. The alleged verses which address the hypocrites
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are self explanatory as they are not revealed with any ambiguity. And Allah has assured his Prophet ( ) the repercussion of their behaviours. It is, therefore, inconceivable that any of the abah whom Allah has certified to be trustworthy people would be declared as hypocrites as contained in most of the Samavi arguments on the abah. Origin and the Development of Sunnat al-ab Various attempts have been made to explain the development, basis and authenticity of sunnat al-ab as a point of reference in the Islamic law. Al-Shatibi is among the principal contributors in this regard. In his al-Muwfaqat, he states that the tradition of the abah is a source of law which must be acted upon and cited as evidence of jurisprudence.42 Shatibi, in this assertion, is seen to have lent weight to many Qurnic verses, which affirm the trustworthiness and the outstanding qualities of the abah. For example they are regarded as the best generation. And the Prophet ( ) himself affirmed superiority of the sunnat al-ab in various Traditions. Two Traditions are very prominent in this regard. In a long Tradition the Prophet ( ) observes that: I counsel you to fear Allah (May He be glorified) and to give absolute obedience even if a slave becomes your leader. Verily he among you who lives long will see great controversy, so you must keep to my Sunnah and that of the rightly-guided Caliphs. Cling to them jealously .43 In a yet another long Tradition the Prophet ( ) enquired from a Companion, (Mudh b. Jabal [R.A.], whom he sent to Yemen) how he would judge when occasion arose. The Companion argued that he would judge in accordance with Allahs book. The Prophet ( ) further asked what he would do if he could not find guidance on a particular matter in Allahs book; and he (Mudh) replied that he would act in accordance with the Sunnah of the Prophet ( ). He then asks if he could find no guidance in the Sunnah. And Mudh (R.A.) replied that he would do his best to form an opinion (on his own) (ijtihd) and spare no pains to
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get the right answer. The Prophet ( ) then patted him on the breast and said Praise be to Allah Who has disposed his messenger (Mudh) towards something with which Allahs Messenger is pleased. 44 In these two Traditions, the Prophet ( ) leaves no one in doubt as to the recognition he accords the sunnat al-ab. It could be deduced that whenever there is a situation for which the Muslims find no direct answer in the Qurn and the Sunnah, ijtihd could be resorted to. The preference of the ijtihd of the Companions otherwise known as sunnat al-ab is, however, affirmed in the two Traditions without any ambiguity. The Prophets blanket approval of the decisions of his abah clearly established that in matters concerning politics and general affairs, there is no absolute Divinely ordained instructions and that the Muslims are free to take any decisions about them for the general good and welfare of the people, in line with the requirements of the time and place, provided they do not break the bounds (udd) of Allah. It must also be admitted that the shr along with the process of ijtihd and ijm brought about the much needed political stability, economical growth, social welfare and above all the political integration of the ummah under the caliphate system. This unique system of succession has not been recorded in the history of mankind prior to its invention by the collective decision of the abah. It is a system different from the Western concept of democracy because the exalted position of the Prophet ( ), understandably, cannot be deputized, replaced or inherited. Though some modern scholars of Islam, like Al-Qarawi,45 in his State in Islam, attempts to harmonize the political system between the shr and the Western democracy, this has been long recognized as a marriage of inconvenience between two different world views and perspectives. While the shr was basically rooted in an unadulterated mn and Taqw (piety with fear of Allah) coupled with selfless services, the Western democratic system promotes sycophancy, hypocrisy, calumny, self aggrandizement, tribalism, personal vendetta and political brouhaha. A Base for Islamic Polity From the foregoing, it could be rightly asserted that the ummah
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would have been in chaos immediately after the demise of the Prophet ( ). For there is no specific successor mentioned in the Qurn and the Prophet ( ) himself did not mention a particular successor (not even Al). The claim that the Prophet ( ) had appointed Al to succeed him has been a subject of heated debate. Available data and records allude to the fact that what dominated the scene before a final choice was made were the consultative meetings which resulted in the choice (election) of Ab Bakr as the first caliph. It has been rightly observed that, the manner in which he managed the state affairs gives us an insight into the value of personality factor in the political process. He is on record to have declared that: I did not ask God for it (authority) in secret or public. God has entrusted me with a great responsibility for which I have neither power nor capacity O people, I have not been placed in my position because I am better than you, therefore whenever you see me upright, obey me and when I am wrong correct me. 46 This statement demonstrates Ab Bakrs policy of honesty and transparency. In the execution of his policies he leaves no one in doubt as regards his strict compliance with the Sunnah of the Prophet ( ). When he was confronted with the widespread rebellion of riddah (apostasy) during his first few days in office, he called the shr into session. Though majority of the members of the shr argued against the waging of war on grounds of expediency. He refused to accept their advice and exercised his veto. He held firm against the apostates and sent Usmah on a military expedition despite the warning from the other abah. 47 The exercise of veto by the Caliph, in this regard, should not be seen as totalitarian or autocratic policy. It was not also a war against those who opposed his choice as the caliph as wrongly claimed by some Orientalist and Shah scholars. The decision was to save the young Islamic state from disintegration and to further demonstrate that, the Divine injunction on zakh and the Sunnah of collecting it, which was the bone of contention then, could not be compromised. It is also to teach that a leader can decide on issues which he strongly deems
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would be in the best interest of the community.* The consolidation of the young Islamic state could, therefore, be considered as Ab Bakrs greatest contributions to the Islamic polity. This same consideration led to his choice of his successor having realized that the circumstance which brought him to power were momentary.** The same method may not be able to sustain the cohesion of the ummah as at the time Ab Bakr was ageing. The first Caliph, as documented by various sources, did not follow the step which brought him into power when he, in turn, was dying. Instead he appointed Umar to succeed him among the various Companions he considered suitable to lead the ummah. History, to our understanding, has proved the choice made by the first caliph a right decision for the general welfare of the ummah. The second Caliph Umar stands out as the chief architect of expansion and organization of the Islamic state. He further consolidated the achievement recorded by his predecessor, through fearless policies and forceful leadership for the Islamic community. He employed ijtihd more than the shr in executing state policies. He also laid a solid foundation for the independent of judicial system. On the welfare of the citizenry; Umar is on record to have put in place the system of registration of names of those entitled to a stipend from the Bait al-Ml.48 One would have expected the second caliph Umar to respect the process that brought him to power. He seemed to have thought for a better option. He in turn appointed a shr committee of six eminent Quraish Companions and enjoined them to appoint among themselves the most acceptable to lead the Muslim community within a period of seventy two hours after his death.49 This process produced Uthmn as the third caliph. The political authority and sovereignty coupled with the personality factor initiated by Ab Bakr and consolidated by Umar, unfortunately, suffered a set back with the selection of Uthmn as the third caliph. Though Uthmns most outstanding contribution was his decision to
*It also laid down the principle that no Muslim could over rule an order of the holy Prophet ( ) even after his death. Expedition under Usmah was already ordered by the Prophet ( ). Ab Bakr in spite of opposition carried out the order of the Prophet of Allah ( ) Ed. **It may be noted that selection of Ab Bakr, limited the selection of future Caliphs to the Quraysh only, disqualifying the Anr tribes for the supreme post Ed.
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compile an authentic version of the Qurn,* in other matters of public administration he could not match his predecessors. 50 The Umayyad governors turned the shr consultative forum to bureaucratic conferences attended only by the governors; this led to some negative comments on the simple life style of Uthmn, who only appointed men of reliance in key offices. Though, the governors whom Uthmn so trusted betrayed his austere life policy, his appointment of the Umayyads to the position of authority could be justified as he relied on people whom he believed he could trust. This policy is seen to be consistent with the modern day appointment of political office holders. It is an open secrete that Shaykh Uthmn Dn-fodio, the principal architect of the Sokoto caliphate movement in the then bild-Takrr, Western Sudan, divided the conquered empire nay the gains of the jihd between his full brother Shaykh Abdullhi Dn-fodio and his son Muammad Bello. Elsewhere the leader of the frontier emirate Shaykh Alimi of the Ilorin dynasty appointed his son Abdus-Salm to consolidate the gains of the jihd. The two great reformers lived in what was to be later known as the Northern Nigeria at the beginning of the 19th century. It is also on record that, a serving female commissioner ended up in becoming the governors wife in one of the states in Nigeria. Similarly, the immediate younger brother of a serving governor also held high political office in one of the North-East geo-political zone, while of recent; one of the newly elected governors in the North-West married the daughter of the president. And at the International scene two sons of a serving President were governors in different states in America, where the Western democratic rule is deeply rooted. And also the last president of the acclaimed democratic America was a direct son of one time president. Thus the allegation of nepotism and favouritism which Uthmn was accused of could not hold water. Admittedly he appointed members of his clan into public administration; this has been long recognized as a means of preserving the government from internal subversion.** 51
*An authentic version was prepared in the time of Ab Bakr and its copy was in the custody of afah (R), wife of the Prophet ( ). Uthmn had it copied and supplied throughout the Caliphate Ed. **However, under the second Caliph, without following any such system, the Caliphate worked perfectly well Ed.
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The fourth Caliph Al, could be regarded as the popular choice. The majority of the people of Madnah massively supported his candidature in view of the anarchy that characterized the end of Uthmns Caliphate, by some Umayyad governors. This spectacular popular revolt according to Qub is a clear indication that the Companions of the Prophet ( ) fully understood the nature, purpose and implications of the concept of ijtihd. 52 Conclusion In the light of our submission in this paper, the conclusions that we may draw may be summarized as follows: 1. That the manners of appointment, election and selection of the rightly guided Companions differ, as submitted in the above paragraphs, and none is contained in the Qurn or in the Prophetic Traditions. That the Islamic political system is not based on rigidity or dogmatic principles which cannot be amended within the frame work of the complexity of the modern world. That the processes that brought the Khulafa al-Rshidn to power and authority could be regarded as the collective decision of the Companions. That the Companions ijtihd, on the political scene demonstrates to us that the abah understood resolutely the importance of ijtihd in fashioning flexible political system according to the dictate of their time. That sunnat al-ab, as far as the political scene is concerned, is an open license for the subsequent generations to study, evaluate and adopt for a viable political culture. That sunnat al-ab, unlike the sunnat al-Nabaw, is not final and sacrosanct. It should be mentioned that, in the matters of Ibdt, the law of Allah as explained by the Prophet ( ) is the supreme authority. That the laws guiding the mumalt are flexible and could be based on ijtihd. This point is further illustrated by Shatibi as quoted by Maudd:
2.
3.
4.
5.
6.
7.
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The rule for worship is a little different from the one for the general affairs of life. In general the law is that where the sovereign is silent, the peoples are free to act on their own vision. This is the field of the permissible.53
01. 02. 03. 04. 05. 06. 07. 08.
09. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.
20.
J. Milton Cowan (ed.), Arabic English Dictionary, Macdonald and Evans London, 1961, p. 11. Elias A. Elias and Ed. Elias, Elias Modern Dictionary: Arabic English, Beirut, 1986, p. 138. Jamaal al-Din M. Zarabozo, The Authority And Importance of The Sunnah, Al-Basheer company for publication and Translations, U.S.A., 2000, p. 8. Muhammad Zubayr Siddiqi, adth Literature, its Origin, Development and Special Features, Islamic Text Society, Cambridge U.K., 1993, p. 2. Ibid. Encyclopedia Britannica, 1981 ed., adth, Vol. 8, p. 536. Muhammad Luqman Al-Salafi, Al-Sunnah Hujiyatuha Wa Makanatuha fil Islami wa radd ala Munkiriha, Beirut, 1989, p. 208. Ahmad Hasan The Sunnah Its Early Concept and Development in Islamic Studies, Journal of the Islamic Research Institute, Pakistan, Vol. VII, 1968, p. 47. Al-Balagh Foundation, Mabdi Fi ilmil-adth, Teheran, 1994, p. 16. Imm Muslim, Sa Muslim, Abdul-Hamid Siddiq (trans.), Darul Arabia, 1995, Vol. 4, p. 2059. The word Sunnah is contained in the following Qurnic verses VIII:38; XV:13; XVII:77; XVIII:55; XXXIII:38; XXXV:43; XL:85; XLVIII:23. Siddiqi, p. 2. Ahmad Hasan, p. 52. I.R. Al-Farq and L.L Al-Farq, The Cultural Atlas of Islam, Macmillan, New York, 1986, pp. 112-114. Ibid. Ibid. M. Bashir Sambo and Muhammad Higab, p. 104. Ahmad Ibn Taymiyyah, Majmul-Fatwi, Vol. 8, n.d, pp. 6-7. Abdullahi A. Hameed, The Contribution of the Sunnah of Prophet Muhammad ( ) To Ethics (Akhlaq), an unpublished M.A Dissertation, 1985, Dept. of Islamic Studies, Bayero University, Kano, p. 6. Siddiqi, p. 2.
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24. 25. 26.
Encyclopaedia Americana, 1981 ed., adth, Vol. 14, p. 496. M.M. Azami, Studies in Early Hadith Literature, Indianapolis, 1978, p. 8. Imm Al-fi Amad ibn Al ibn ajar Asqaln (773-805 A.H), was a distinguished scholar of adth. His most celebrated work is his commentary on Sa al-Bukhri known as Fat al-Br. Al-Balgh, p. 26. Ibid., p. 27. The Shah school of thought maintains that the Prophet Muhammad ( ), publicly announced the appointment of Al ibn Abi lib as his successor at a place called Ghadri Khum. Hence they castigate and condemn the previous Caliphs and their supporters for denying Ali what they consider his birth right. See Al-Imm Sharafuddi, Al Murajaat, Matbaah an Najah, Cairo, pp. 1315. Also see Muhammad at Tijani Al-Samawi Al-Shiah hum ahalus-Sunnah, Muasasatul-i-Fajr, London, 1993, pp. 93, 115-125. The Shah rest their claim on the fact that chapter LXIII, of the Holy Qurn focuses on the hypocritical stance of some Companions of the Prophet ( ). This submission, in our opinion, is faulty. The special feature dealt with in the chapter and the related verses of the Qurn was a result of the formative stage of the state. The insignia was not a permanent feature but a warning to the Companions to desist from the social vice. Al-Balgh, p. 31. The term refers to the Prophets household. The Sunn scholars make no distinction among them. Al-Samawi, Al-Shiah hum ahalus- Sunnah, Muasasatul-i-fajr, London, 1993, p. 298. Muammad Tijn Samavi, Then I was guided, Islamic seminary Publication, 1991, p. 119. Al-Balgh, p. 31. Muhammad Jarad Mugniyah, Imamatu Ali Bayna-i-aqli wal Quran, Muassasatu-l-alami, Beirut, 1970, p. 38. Al-Balgh, p. 31. The Sunn scholars regard the Companions as the vehicle that convey the Prophetic Sunnah to the latter generations; as such, their practical examples could be regarded as a supportive fact.
27.
28. 29. 30. 31. 32. 33. 34. 35.
36. 37. 38. 39. 40.
Muhammad Adib Salih, Lamhat Fi usulul hadith, Al-maktabul Islami, Beirut, 1985, p. 24. Mustafa Husni Al-sibai, (1960), Al-Sunnah Wa makanatuha fit Tashriil Islami, n.p, 1960, p. 61. Muhammad Luqman Al-Salafi, Al-Sunnah Hujiyatuha Wa Makanatuha fil Islami wa radd ala Munkiriha, Beirut, 1989, p. 208. Reference is to Bayt al-Riwn before Hudaibiyah. Muslim, Vol. 4, p. 1332.
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Abu-Hatim Muhammad Ibn Hiban, Trkhu-s-ahbah, Bawaran. Ibrahim Abi Ishaq al-Shatibi, Al muwafaqat fi Uli Sharah, Darul Maarifah, Beirut 1999, Vol. 4, p. 450. This adth is very prominent and quoted in many adth compilation. It forms the basis upon which Al-Mtri based his arguments on Bidah as could be seen in Mahamud Al-Mtri, Al Bidu wal Muhdatht, Darul ibn Huzaymah, Riyadh, 1999, p. 105. Afzalur Rahman, Muhammad: Encyclopaedia of Seerah, Muslim Trust London, 1986, Vol. 4, p. 413. Ysuf al-Qarw, State in Islam, El-Falah publishing, Egypt, 1998, pp. 195-224. Manzoorudeen Ahmed, Islamic Political System in the Modern Age-Theory and Practice, Adam Publishers, New Delhi, 2006, p. 171. Zarabozo, p. 205. For an elaborate discussion on the administrative policies of the second khalfah see, among other sources, Shehu Umar Abdullahi, On The Search for A viable Political Culture, New Nigeria Newspapers Limited, Kaduna, 1984 and Gaskiya Dokin karfe (by the same Author). Manzoorudeen Ahmed, ibid., p. 175. Ibid. Ibid. Afzalur Rahman, Muhammad: Encyclopaedia of Seerah, Muslim Trust, London, p. 416. Abu Ala Mawdd, The Islamic Constitution, Lahore, 1977, p. 81.
44. 45. 46. 47. 48.
49. 50. 51. 52. 53.
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HERMENEUTICS AND THE RENEWAL OF ISLAMIC INTERPRETATIONS*

DR. ROXANNE D. MARCOTTE Lecturer in Arabic and Islamic Studies (Assistant Professor), School of HPRC, University of Queensland, Australia.
In this day and age, many religious conservatives, whether they be Sunn or Sh, cling, more often than not, to medieval jurisprudential interpretations of Islam, as immutable and quasi-sacred interpretations of the Sharah or Islamic Law. Such a position implicitly posits some sort of closure of the interpretative process whose consequences a number of Iranian scholars** have questioned and tried to address. One such scholar is the Iranian theologian Muammad Shabistari who has tried to argue for what we might call greater open-endedness of the interpretative process. ujjat al-Islm Muammad Mujtahid Shabistar Among the generation of older, yet still influential Iranian intellectuals,
*This revised text was part of a seminar presentations given on January 5 (2005) at the end of our Visiting Fellowship at the Turkish Religious Foundation Centre for Islamic Studies = Trkiye Diyanet Vakfi Islam Arastirmalari Merkezi, ISAM, Istanbul, Turkey and at the Annual Conference of the Australian Association for the Study of Religions (AASR), July 2-4, 2010, Griffith University, Brisbane, Australia. **Other scholars from other regions and sects since the Twentieth Century have been arguing in the same vein. In South Asia Dr. Iqbal in his lectures published later as the Reconstruction of Religious Thought in Islam had emphasised this dynamic movement in Islamic law under the title The Principle of Movement in Islam. See also. Ilzamudin Mamur Theory of Ijtihd of Pakistani and Indonesian Muslim Scholars with Special Reference to Abul Ala Mawdd and Muammad asbi Ash-Shiddieqy (of Indonesia) in the Hamdard Islamicus, No. 2, 2010 Ed.
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ujjat al-Islm Muammad Mujtahid Shabistar (1936) is a member of Irans Sh clergy. He holds both a Doctorate from Irans most prestigious secular university and a degree of Ijtihd from the religious seminaries of Qum; moreover, he taught over two decades at Tehran Universitys Faculty of Theology. A contributor to the magazine Kayhn-i Farhang and to the now defunct reformist magazine Kiyn, Shabistari shares much with Kiyns other secular and religious contributors who were, for the most part, attracted to the ideas of Abd al-Karm Soroush, especially to the latters epistemological stances on the nature of religious knowledge. 1 Soroush proposed a theory of dynamic jurisprudence (fiqh-i py), whereas Shabistari focuses on the idea of a dynamic hermeneutical process, that is, a process of continuous religious interpretation.2 Shabistar shares with Soroush the belief that religious knowledge does not remain static and unchanging. During the nine years that preceded the 1979 Iranian revolution, Shabistar was the spiritual guide of the Shs of Germany and Europe and the director of the Sh Islamic Center in Hamburg. During his stay in Germany, he discovered and studied contemporary (Western) exegetical (Christian theologians, like Wilheim Dilthey, Paul Tillich, Karl Barth and Karl Rahner), hermeneutical and philosophical (philosophers, like Hans Goerg Gadamer) works which were to nourish his own understanding of the general principles and processes of interpretation. Not much is written on the works of Shabistar. Vadat has discussed Shabistars role within what he has labelled the post-revolutionary discourses on mediated subjectivity, 3 whereas Sadri has focused on his political theology, by defining it as a sacral defense of secularism. 4 Neither of these two contemporary scholars has addressed Shabistaris Islamic hermeneutics. In what follows, we will try to show how Shabistar articulates what he believes to be a more contemporary Islamic understanding of the process of religious interpretation, nourished by contemporary exegetical and hermeneutical ideas. He incorporates some contemporary discussions, concepts and analyses to demonstrate that religious interpretation in Islam can never be complete, comprehensive, final or unchanging. The understanding of religious interpretation of Shabistar and the arguments he introduces enable him to preclude any possible closure of
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the interpretative process. He prefers to uphold a principle of nonclosure or open-endedness of this process. He chooses to highlight the dynamic nature of the activity of interpretation which, he believes, is the only way Islam is able to evolve and, equally important, able to find ways to defend a number of novel and contemporary values that have been associated with modernity. Islamic Hermeneutics: Filters, Interpreters and Texts Shabistar readily uses the Persian neologism hermeneutics 5 to talk about the process of interpretation. In his Hermeneutics, the Book and the Tradition (1996a), a collection of articles and public lectures, he analyzes the meaning of the religious understanding of Scriptures and the nature of interpretation, from both exegetical-theological and hermeneutical-philosophical perspectives. 6 But how does Shabistar understand and present this dynamic conception of interpretation or what he calls hermeneutics? Shabistar, first, identifies and analyzes elements involved in the act of reading itself that are often overlooked. He identifies what are filters that are inherent in any activity of interpretation. He analyzes the relation that necessarily exists between interpreters and texts. He provides some arguments for the rejection of any closure of the interpretative process. And, finally, he emphasizes the particular nature and role of revealed texts. Let us proceed by commenting on each one of those elements. Shabistar turns his attention, first, to the conditions of interpretation. Filters are involved in and influence each and every activity of interpretation. These filters become part of the a priori knowledge that interpreters bring to their readings of any text. 7 All readings of texts involve filters, but these are seldom factored into the process of interpretation itself, or, for that matter, even acknowledged by the interpreters. Shabistar notes that, historically, this has not been discussed or acknowledged by Muslim scholars. Shabistar identifies a number of these filters, among which he includes presuppositions (pshfarh), prior understanding (pshfahmh), prior knowledge (pshdnistah), interests (alaqaha) and expectations (intirh) of the interpreters. All of these filters shape and inform the nature of the questions that the interpreters ask of the
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texts and determine, to a certain extent, the answers that they will produce. For instance, it is possible to take the belief that women are intellectually inferior to men, because they are emotionally weaker, as one of the presuppositions that has tainted interpretations of many religious scholars of the past (and still does). The interference of these filters provides one explanation for the production of various, and even divergent, judicial rulings and theological interpretations.8 Those filters become part of the epistemological structure of any interpretation. Shabistar, then, analyzes the nature of texts and the relation that necessarily exists between them and the interpreters. The unveiling or discovering of the meaning of any text occurs through the peculiar relation that interpreters establish with the text. This holds true for the interpretation of any text, but Shabistar has here in mind the relation that exists between interpreters and religious texts. Like any other text, religious texts require interpretation, because their meaning is never made a hundred percent clear or manifest.9 The task, therefore, is to try to isolate the different components involved in the process of interpretation. These filters are elements that influence its outcome, and that are not recognized as factors able to have an impact on the interpretative process. Shabistars Dynamic Hermeneutics Among the many causes responsible for the multiplicity of interpretations, Shabistar identifies two in particular. The first cause of the production of various and often divergent interpretations lies within the nature of the texts themselves. Texts often belong to times and places that are different and often quite remote from the ones that interpreters inhabit. This is certainly true in the case of the Qurn and of the sayings of the infallible Sh Imms. The historical distance between interpreters and texts increases the difficulties of interpreting these ancient yet still living texts. The second cause of the production of multiple interpretations is the various points of views (zviyah), the perspectives (chishmandzh), or the intentions (manrh) that are necessarily present when readers approach texts, and with which these are evaluated. These perspectives or intentions are, in part, determined by the filters that interpreters possess. 10
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In fact, Shabistar deconstructs the activity of interpretation and identifies some of the components and processes at the heart of this fundamental meaning giving activity. In order to shed some light on the complexity of the activity of interpretation itself, Shabistar identifies three important stages.11 The first stage of the interpretative process consists of an analysis of the relation that exists between the situation in which interpreters find themselves in their relation to the text to be interpreted and the meaning that interpreters think they can unearth from the text. The second stage of the interpretative process consists in considering all the possible interpretations that can exist for a given text and to evaluate all and every one of those interpretations, to criticize them, and to refute the least plausible ones. And the third stage of the interpretative process consists in determining the meaning that interpreters envision and select as their particular reading of a text, while providing cogent reasons for their selected interpretation. The identification of the different filters and the understanding of their role in the interpretative process, along with the application of the three stages required to uncover meaning, can provide the means to shed some light on particular interpretations that have been and are proposed and on the reasons that have led interpreters to select those particular interpretations. Interpreters should also be able to recognize a first layer of meaning, that is, the meaning which they are trying to unearth in the texts and which is, in part, defined by the particular relation that binds interpreters and texts.12 Interpreters should also be able to recognize a second, and more important, layer of meaning, that is, the hidden (mustatir) meaning behind the text and which inhabits the text. This is crucial for the understanding of Scriptures, as this second layer of meaning points to the Divine and the revealed nature of their message: this is the essential aspect of the significance of Scriptures. Interpreters need to be receptive, recognize and accept this second layer of meaning. 13 At both levels, the meaning of the text is, however, never offered to the interpreters as something explicit, clear and unambiguous. Meaning remains elusive; it perpetually needs to be uncovered. This analysis of the different elements at the heart of the activity of interpretation aims to secure more reliable grounds for the hermeneutical process and to incite interpreters to become aware of the
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various filters that can, and do colour their interpretations. Shabistar notes that the recognition of the particular mental condition (wadyat-i dhihn) in which interpreters find themselves, as they bring their own existence to their interpretative work,14 remains only a recent development in the field of hermeneutics. Against the Closure of Interpretation Shabistars analyses of the components and stages of interpretation provide the framework for his dynamic conception of the interpretative process. These become the foundations upon which he can propose a number of arguments for the rejection of any closure of the interpretative process to which some of his contemporaries subscribe and hold fast. 15 It is probably here that Shabistars reading of contemporary exegetical and hermeneutical works has had an impact on his understanding of interpretation. One of Shabistars arguments against the closure of the interpretative process appears to rest on an epistemological principle that shares much with Karl Poppers falsifiability principle. 16 This principle requires that any theory here, any religious interpretation be, in a sense, falsifiable. All interpretations must, therefore, be able to withhold the repeated tests of criticism. Any criticism that demonstrates the falseness or inappropriateness of a particular religious interpretation becomes a legitimate and valid criticism. 17 As a result, new and better interpretations can then be formulated to address those criticisms. This process is capable of generating endlessly new as well as better interpretations. Shabistar appears to propose what would amount to a scientific criterion that would enable interpretations, via the test of criticism, to get gradually closer to the original message of the text which, in this particular case, remains the Divine message of Gods absolute truth embodied in the Scriptures. A second argument against the closure of the interpretative process rests on the Gadamerian idea that meaning which exists both in the life of the text and in the life of the tradition always remains a meaning to be uncovered (kashf).18 The meaning of the text remains inseparable from the life of the interpretative tradition to which religious scholars belong, as each and every one of them tries to penetrate the text and
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uncover the various layers of meaning hidden in, behind, and beyond the text. For Shabistar, meanings that are uncovered are not the ones that interpreters seek to impose onto the text; they are the ones uncovered through this hermeneutical process.19 Another of Shabistars arguments against the closure of the interpretative process is the recognition that whenever interpreters encounter texts, a number of inescapable underlying presuppositions, beliefs, interests, and exceptions come into play. What interpreters need to do is to become aware of the existence of those filters, of their effects on the process of interpretation itself, and the role they as interpreters play in the selection of their particular interpretations. And finally, Shabistar addresses the issue of the particular nature of Scriptures as revealed texts. As a theologian, Shabistar needs to account for the revelatory components of Scriptures. If it is the case that interpretations can only amount to the sum of texts, filters (a priori knowledge, interests or expectations) and relations that bind both interpreters and texts, then indeterminate and relativistic claims could be made about texts and, by extension, even about religious texts. There would be no need to account for the presence of the revealed and Divine components of Scriptures. Shabistar needs (or wants) to preclude such relativism inherent in these types of historicist claims made about interpretation. Such claims would make interpretations contingent upon every particular interpretation that could be proposed at any given time.20 Similar criticism is often levelled against the Western literary criticism when it is applied to the Qurn. Shabistars anti-historicist stance to the second layer of the hidden meaning of religious texts attempts to preserve the idea that the Scriptures do contain Gods speech. Revelation consists of a Divine message, irrespective of the fact that religious texts belong to a time and a place that are different and often quite remote from the ones interpreters inhabit. Islamic Hermeneutics and Modernity Shabistars rejection of any closure of the interpretative process enables him to advocate for a dynamic hermeneutical process. This dynamic understanding of the process of interpretation can thus give new life to a variety of Islamic religious sciences that depend on the
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interpretation of Scriptures. Only a dynamic conception of the activity of interpretation can provide means for the introduction of new nonIslamic ideas and concepts and their incorporation into truly novel Islamic understandings of interpretation. Shabistar hopes that his new dynamic understanding of religious interpretation will pave the way for what Islam needs: a new theology that can address contemporary issues associated with modernity, for example, human rights, new biological and/or ethical issues, globalization, mass media, and even new technologies. A number of these ideas, such as the concept of international human rights standards, have not, according to Shabistar, yet been articulated by any traditional religious interpretations. Hence, only new interpretations will provide means to develop what needs to be an Islamic understanding of those rights. 21 In short, Shabistar does not shy away from and even engages with the products of modernity, in order to provide new Islamic reconfigurations of the understanding of interpretation. With his skilful deconstruction of the process of interpretation, he attempts to demonstrate that religious interpretations are never complete, comprehensive, final or unchanging. Such engagement with contemporary hermeneutical ideas clearly indicates that some Muslims are more than willing to engage in a constructive dialogue with concepts and ideas that the Western intellectual traditions have generated. The idea that Islamic religious sciences and tradition are impermeable to any type of intellectual development that occurs in other parts of the world is a claim that Shabistars work clearly disputes. The engagement of some Muslim scholars with the Western ideas may well be a sign of their recognition that some notions and concepts, first developed by modern social sciences, the Western Christian religious exegesis or philosophy, can bear fruits when integrated into the Islamic tradition by religious scholars. It is worth noting that Shabistaris hermeneutical approach has political implications. In fact, these seem to be attempts at preventing the advent of a religious interpretative hegemony that would impose a dogmatic official interpretation of Islam. In a sense, Shabistar is struggling against the imposition of certain Iranian official interpretations, which some of the countrys religious elite and ideologues have deemed to be the only accurate and legitimate interpretations. His approach implicitly and indirectly rebuff any claims of monopoly over religious interpretation and the
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institutionalization of any particular official religious interpretation. Conversely, the rejection of an interpretative monopoly and the ascription of greater role to the ijtihd of contemporary jurists and theologians work against any sacralization of jurisprudential works, on account of this emphasis on the contingent nature of human activities of interpretation. In fact, it points to the greater open-endedness of the interpretative process. An awareness of the various causes of the ambiguities and the distortions that are at play within the activities of interpretation itself is required in order to enable interpreters to get closer to the original Divine meaning found in Scriptures.22 Much of Shabistars work remains to be studied, such as a comparison of his hermeneutical positions with those of Soroush,23 in order to discover whether Soroushs ideas have exerted some kind of influence on the religious epistemology of Shabistar, as both thinkers appear to share a similar modern epistemology.

1. Abdolkarm Soroush, Reason, Freedom, and Democracy in Islam: Essential Writings of Abdolkarim Soroush, translated, edited, and with a critical introduction by Mahmoud Sadri, Ahmad Sadri (New York, Oxford University Press, 2000); cf. Paya (2006). Shabistars ideas, like those of Soroush and Kadivar, are important for the establishment of what Sadri (2001) has labelled the sacral defense of secularism; for Milani (1992), Shabistars political theology is a critique of the notion of the supreme authority of the legislator (velyat-e faqh) institutionalized by Khomein that prefers to interpret velyat-e faqh as a moral authority, rather than a legislative authority. Vadat (2000) and (2004). Sadri (2001). In a number of his articles, he tackles issues of religious knowledge and the meaning of exegetical knowledge (Shabistar, 1996c), the conditions for the understanding of texts (Shabistar, 1996c), religious pluralism (Shabistar, 199596), religious texts and the historical criticism (Shabistar, 1995a), revelation and human reason (Shabistar, 1995b), why religious ideas must be criticized (Shabistar, 1994), religion and modernism (Shabistar, 1992a), and the critique of traditional understanding in Islamic theology (Shabistar, 1992b).
2.
3. 4. 5.
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07. 08. 09. 10. 11. 12.
13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.
Along with Hermeneutics, the Book and the Tradition (1996a), of particularly relevance are Shabistars Faith and Freedom (1996b), where he explores the relation between religion, belief, tradition and their relation to politics and the State and his A Critique of the Official Reading of Religion (1999), where he examines notions of human rights from a number of varying perspectives (philosophical, historical, and practical) and discusses their compatibility with Islam (58 articles and conference papers all together). Shabistar (1996a), 21. Shabistar (1996e), 2. Shabistar (1996a), 15; cf. Shabistar (1996e), 2. Shabistar (1996a), 24, 27; cf. Shabistar (1996e), 3. Shabistar (1996e), 4. This layer of meaning is determined by the filters interpreters bring to the text, something akin to Gadamers notion of pre-understanding, cf. DiCenso (1990), 96-102; cf. Roberts (1995), 30. Shabistar (1996a), 31; Shabistar (1996e, 4) writes that it is the heart of the interpreter that opens up or closes up to in the face of these meanings. Shabistar (1996e), 6. Ibid. Ibid. Ibid. Shabistar (1996d), 2. Shabistar (1996e), 6. Shabistar (1996d), 2. Shabistar (1999). Shabistar (1996e), 5. Amirpur (2005) focuses on the difference with earlier commentators to illustrate post-1979 understandings of the Qurn by appealing, for example, to the work of Soroush who discussed issues of human rights, democracy and hermeneutic principles; cf. Marcotte (2010), pp. 69-90.
Bibliography
Amirpur, Katajun, The Changing Approach to the Text: Iranian Scholars and the Quran, Middle Eastern Studies, 2005, 41.3, pp. 337-350. David Roberts (ed.), Reconstructing Theory; Gadamer, Habermas, Lubmann (Melbourne University Press), 1995. James DiCenso, Hermeneutics and the Disclosure of Truth (Charlottesville, University Press of Virginia), 1990, pp. 96-102. Marcotte, Roxanne D., Un islam, des islam? (Paris, LHarmattan), 2010.
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Milani, Mohsen M., The Transformation of the Velayat-e Faqih Institution, From Khomeiny to Khamenei, The Muslim World, 82, 1992, pp. 175-190. Paya, Ali, Recent Developments in Shii Thought: A Brief Introduction to the Views of Three Contemporary Shiite Thinkers, in Islamic Democratic Discourse: Theory, Debates, and Philosophical Perspectives, edited by M. A. Muqtedar Khan (Lanham, Lexington), 2006, pp. 123-145. Sadri, Mahmoud, Sacral Defense of Secularism: The Political Theologies of Soroush, Shabistari, and Kadivar, International Journal of Politics, Culture and Society, 15.2; 2001, pp. 257-270. Shabistari, Muhammad Mujtahid, Critique of the Official Reading of Religion [Naqdi bar Qiraat-i Rasmi az Din] (Tehran, Tahr-i Nu), 1999. , Hermeneutics, the Book and the Tradition [Hirminutik, Kitab va Sunnat], ed. Murtada Asadi, (Tehran, Tarh-i Nu), 1996a. , Faith and Freedom [Imn va Azdi], (Tehran, Tarh-i Nu), 1996b. ,The First Stages in the Knowledge of Qurnic Interpretation [Nukhustin Manzilghh dar Marifat-i Tafsr], Hamshahri, vol. 4, no. 1117 (10 November); 1996c, pp. 1-4. , The Conditions of the Understanding of Texts [Shari-i Fahm-i Mutn], Hamshahri, vol. 4, no. 1116 (9 November); 1996d, pp. 1-6. , Hermeneutics, the Book and the Tradition, [Hirminutik, Kitb va Sunnat], Hamshahri, vol. 4, no. 1115 (7 November); 1996e, pp. 1-7. , Modernism and Revelation [Mudirnism va Vah], Kiyan, vol. 5, no. 29, (marsavril); 1996f, pp. 18-19. , Religious Texts and the Historical Criticism Worldview [Mutn-i Dn va Jahnbnyi Naqd-i Trkh], Kiyn, vol. 5, no. 26; 1995a,pp. 22-24. , Revelation and the Freedom of Human Reason [Va va zdi-yi Aql-yi Insn], Kiyn, vol. 5, no. 25, 1995b, pp. 16-20. ,Why Must Religious Ideas Be Criticized? [Chir Byad Andshah-yi Dn ra Naqd Kard?], Kiyn, vol. 4, no. 18; 1994, pp. 16-21. ,Religion and Modernism in the Islamic World [Dn va Mudirnism dar Jahn-i Islm], Kayn-i Havai, 29; 1992a, p. 12. , Critique of Traditional Thinking in Islamic Theology [Naqd-i Tafakkur-i Sunnati dar Kalm-i Islmi], Kiyn, vol. 2, no. 10; pp. 8-11. Shabistar, Muammad et al., Religious Pluralism [Pluralism-i Dn], Kiyn, vol. 5, no. 28; 1995-6, pp. 3-25. Vadat, Farzn, Post-revolutionary Discourses of Mohammad Mojtahed Shabistari and Mohsen Kadivar: Reconciling the Terms of Mediated Subjectivity. Part I, Mojtahed Shabistari, Critique: Journal for Critical Studies of the Middle East, 16; 2000, pp. 31-54. , Post-revolutionary Islamic Modernity in Iran: The Intersubjective Hermeneutics of Mohamad Mojtahed Shabestari, in Modern Muslim Intellectuals and the Qurn, edited by Suh Tji-Frouki (London, Oxford University Press), 2004, pp. 193-224.
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DEBATABLE ISSUES IN FIQH AL-ZAKT

A JURISPRUDENTIAL APPRAISAL
DR. SYED SIKANDAR SHAH (HANEEF) Associate Professor, Department of Fiqh and Usul al-Fiqh, International Islamic University, Malaysia. e-mail: haneef75@yahoo.com
Introduction Since early 20th century, some leading scholars have been fervently debating the possibility of making fresh ijtihd on a host of newly emerging issues of fiqh al-zakt. This is asserted to be so due to radical changes that have taken place in the methods of producing new forms of wealth and the way that the Muslims deal even with the traditionally designated zakt payable wealth. There are many issues 1 that have engaged serious scholarly debates surrounding the fiqh of zakt. But for the purpose of this paper, we briefly highlight the current debate about issues, such as the adequacy of growth as the criterion for zaktablity of the wealth, contemporary definition of nib, attempts at revising the rate of zakt, calculation of the hawl, and exemptible assets of the zakt payer. In this study therefore, different views for reform shall be examined with the prime idea of offering a jurisprudentially valid position on the about mooted points. Theoretical foundation of zakt Zakt2 literally means to grow and to increase and to purify. When it is said about a person, zak nafsahu, it means to have improved himself and have become a better person. 3 According to Ibn Taymiyyah it implies the idea of making the soul of the zakt payer better (morally
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and spiritually) and his wealth clean. 4 This is succinctly clear from the declared ratio legis of zakt commandment according to the Holy Quran, Of their goods take alms (adaqatan) that so thou mightiest purify and sanctify them; and pray on their behalf. Verily thy prayers are a source of security for them: and Allah is One Who heareth and knoweth.5 Technically it stands for an act of monetary worship according to which any Muslim who possesses a wealth (ml) equal to or exceeding a laid down limit (nib) has to give away (in person) or through (proxy), at the prescribed rate, a portion of it to specifically designated categories of people.6 Zakt as such derives its validity from numerous verses of Qurn and the Prophetic traditions, among which, the following are most explicit. The Qurn,7 among others, provides: And they have been commanded no more than this: to worship Allah offering Him sincere devotion being True (in faith); to establish regular Prayer; and to practise regular Charity; and that is the Religion Right and Straight.8 And in their wealth and possessions (was remembered) the right of him the (needy) who asked and him who (for some reason) was prevented (from asking).9 Of their goods take alms (adaqatan) that so thou mightest purify and sanctify them; and pray on their behalf. Verily thy prayers are a source of security for them: and Allah is one who heareth and knoweth.10 The substance of the Qurnic yt are affirmed by many adth11 of the Prophet ( ): Islam is based on five principles: to testify that there is no god but Allah and that Muammad ( ) is His Prophet, to offer the regular prayers, to pay zakh, perform ajj and to observe the fast.12 The Prophet ( ) sent Mudh b. Jabal to Yemen and told him, You are going to the people of a Divine Book. First of all, invite them
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to worship Allah (alone) and when they come to know Allah, inform them that Allah has enjoined on them five prayers in every day and night, and when they start offering these prayers, inform them that Allah has enjoined on them zakh which is to be taken from the rich among them and given to the poor among them. And if they obey you that, take zakh from them and do not take the best of their possessions.13 Accordingly, zakh like other pillars of Islam is another fundamental ibdah without whose fulfilment ones claim of loyalty to Islam will be seriously doubted and even negated. That is why Ab Bakr, the first righteous Caliph, resolved to fight those who defied paying it, contending, among others, that any one who discriminate between the two pillars of alh and zakt, by doing the former and wilfully rejecting the other, it would be legitimate to be fought against. 14 The Prophet ( ) is also reported to have said: He who pays it seeking the reward from Allah will be rewarded and he who refuses to pay it, we shall take it from him .15 The rationale for such stern position of the Sharah about enforcement of zakt is that it, aside from being spiritually invigorating, is designed to serve the following socio-economic objectives : 1. to promote economic growth and productivity through the circulation of wealth zakt stimulates economic growth in the sense that it either enables the poor and the needy to become economically productive or helps the state to channel the zakt fund to fund raising business sectors with the view of creating job opportunities for the needy and the jobless.16 to meet the consumption demand of the poor thereby enhancing their purchasing power for goods and services. to check the tendency for hoarding the idle money, hence leads to production of goods ad service. to finance projects such as education, medical care and social welfare again raising productivity of the poor. 17 to ensure equitable distribution of wealth through this means. Islam by instituting zakt aims at forestalling the creation of an unnecessary unjust gap between the living standard of the poor and the rich, thus avoiding the most serious malady that afflicts the capitalists
2. 3. 4. 5.
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society.18 Accordingly it serves as a basic system for implementation of socio-economic justice of Islam by which a certain portion of the income is transferred from the haves to the have-nots. 19 Some Fiqhi Issues in the Classical Fiqh 1. The criterion of zaktability
The classical jurists by looking at the application of zakt on the traditional sources of wealth, tried to identify the raison detre of zaktability of wealth. On the the principle of induction based the Prophets designation of zakt payable wealth,20 they, hence concluded that growth (nam) is the bases of zaktability. Nam in Islamic legal parlance refers to: First, something that provides the owner with profit or benefit. Second, something which is the result of growth in the form of surplus or a newly acquired item.21 For instance, profit in business is a kind of growth out of investment, livestock reproduction is another form of newly acquired asset. In these two examples money before investment has potential to grow, and animal naturally reproduces offspring. That is why they are considered zakt payable assets. Accordingly, they made it a condition that any asset to be liable to zakt, it must either be actually growing or have the potential for growth. For instance, al-Ksn is quoted to have reasoned: The meaning of zakt is growth and growth does not happen except when there is growing wealth. We do not mean by this that wealth automatically grows per se. But we mean that such wealth is susceptible to growth by some means such as grazing and trading. Grazing is the cause of having milk, reproduction and meat. Trading is the cause of realizing profits. In this context the cause substitutes the effect and the judgment is attributed to the cause .22 One of the implication of such a view in the field of corporate sector is that zakt would be on the circulating wealth and not on the fixed assets of the company. It is rational because, Zakt is legislated to help and relieve the poor without impoverishing the rich, by having the rich pay from their surplus, taking a little from the plenty. Imposing zakt on wealth that does not, by definition grow, reverses this purpose, since zakt is paid year after year, in addition to living expenses. 23
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In line with the above theory, the jurists ruled: i. ii. Assets held for personal and family use, such as household furniture and transportation are not subject to zakt. Assets that do not grow, such as bad debts are also not subject to zakt. But idle money is subject to zakt because it is the fault of the owner who is lax in investing it which robs it of its potential to grow.24 All growing assets, according to the preponderant view of among jurists except with the ahiryyah, are subject to zakt.25 Legal threshold for Zakt (nib)
iii.
2.
It is agreed by the majority of the classical jurists that there is no zakt on all growing wealth but those reaching the minimum laid down limit as set by the Sunnah (nib). The Prophet ( ) is on record to have exempted anything that is less than five camels, forty sheep, two hundred silver dirhams or five wasqs* of grain. Ab anfah, on the other hand, do not regard this to be a pre-requisite in the case of land crops, fruits and minerals. Nevertheless, the majority opinions is more rational as it would be imprudent to impose zakt on who themselves are in need of help.26 3. The ratio of zakt
It is to be noted that once the above properties reach nib, they will be subjected to four types of rates: 27 i. ii. iii. iv. 2.5% from the capital income 10% or 5% from the land crops according to detailed code of rates for livestock 20% of the found treasures
As to why not a flat rate for all the zaktable assets? Ibn Taymiyyah rationalizes by saying that the ratio of zakt has to vary for the above
(60 * Wasq (pl. wusq/awsq) means load of a camel, freight of a ship; load of cotton ) 1,040 dirhams Ed.
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types of wealth due to no or less involvement of human effort in acquiring them.28 4. The Passage of a year over possession of the asset
According to majority of the jurists, twelve full lunar months should pass over the possession of zakt payable asset from the beginning of its ownership. But this condition applies to capital assets, such as money, business stock and livestock. This is on a adth where the Prophet ( ) says: There is no zakh on ones wealth unless one lunar calendar year transpires over its possession.29 The jurists have differed about the time that earmarks the zakt year for the purpose of determining the nib. The Shfiyyah and anabilah held that the nib must remain constant throughout the year. To the anafiyyah the nib must be present at the end and beginning of the year and according to the Mlikiyyah the determining point of time is the end of the year. In the case of earned income, such as crops, fruits, minerals and found treasure, including wages, salaries and professional fees it is not a condition as they are classified as earned assets (ml mustafd). 5. What to exempt from the zakt
Some jurists held that before assessing the zakt, two requirements of the zakt payer must be subtracted from his zaktable income before deciding as to whether he has to pay any zakt. They are: i) Deduction of essential needs (awij aliyyah)
This is a condition set by the anafiyyah, Imm Bukhar and Ibn Kathr. As to what does it means? Ibn Abidn, fitting his own socioeconomic condition/standard of living, brilliantly delineate it as: Those things that are used to avoid the realized or potential destruction of human beings; realized ones, such as expenses for living, clothing, personal weapons; and potential ones, such as the need to pay ones debt, tools for handicraft, home furniture, animals for personal transportation and
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books for study. If a person has money designated for such needs, it is considered non-existent with regard to zakt. This is similar to the case of some one who has no water except that designed for drinking. This water is considered non-existent with regard to performing ablution, and one is allowed to perform tayammum instead.30 However, the majority disagreed by saying that this condition is unnecessary as the condition of growth takes care of such needs by classifying them as non-growing asset. Nonetheless, the anafiyyah position is more in keeping with present requirement of modern life and is in harmony with the current taxation practices which exempt a certain amount when clearing peoples payable taxes. Further, it is supported by the general legal implication of evidences from the Qurn and the Sunnah. 31 In The Qurn, we read: They ask thee how much they are to spend; say: What is beyond your needs (al-Qurn, II:219).32 According to Ibn Kathr, the surplus means what is in excess of you and your familys needs.33 One of the Prophets adth is also taken as supporting this understanding when he said: adaqah is taken only out of wealth.34 According to al-Bukhr, this adth makes it a condition that the payer and his family must not be in need.35 It is also supported by the Prophets edict in ordering the zakt collector (in case of fruit) to leave one third or one forth for the payer to spend on the neighbors, friends and relatives.36 Accordingly, the intention behind the above evidences is that all the spending must be made out of surplus wealth. But it must be noted, as al-Qarawi, cautions us that this condition only covers basic needs or essential goods and services that one needs to sustain himself and his dependents. It does not cover those things that are simply desired, or they may be considered luxury37. For instance, expenditure on holiday, desiring to make certain purchases not in the immediate future, or buying big bungalows or luxury cars to escape the zakt are some modern examples of luxury since such items are neither customary nor reasonable needs.38 I believe the state should set clear guidelines 39 from time to time as to what can be considered essential needs, taking into account the fluctuating inflationary movement of the market price for goods and services that Muslims need for their daily subsistence in our time.
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This condition emerges from the conditions of complete ownership and the assets being above ones basic needs. Accordingly, it is another prerequisite of zakt. But for the purpose of application, the jurists have differed in its details. Most importantly, they divided zaktable wealth into two categories: apparent (hir) can be seen by the poor and detected by zakt collector, such as livestock and crops, and non-apparent (bin) not easily known to others, such as money in the safe box and business assets. 40 With regard to the first category, some like the anafiyyah held that it would be free from zakt if overwhelmed by debt or reduces the zaktable assets owned by the debtor. The reason being that zakt is a financial right due to the poor, the right of the creditor comes first before their right. Majority on the other hand, including the Shfyyah differed on this, saying that zakt being an act of worship partakes in Allahs right, thus takes priority over the right of the zakt recipients.41 With regard to non-apparent type, again majority42 held that debt prevents zakt or at least reduces zakt on the assets by the amount of the outstanding debts. A minority of ulema held that it does not. Nevertheless, discussing the issue from the apparent and nonapparent type, even if not confusing, is irrelevant today. Because it is a relative concept, it may have suited the jurists time and circumstances. Today due to the advance in the field of accountancy in business and the practice of safe-keeping ones personal assets with the banks no one can hide such assets. The significance of the above juristic discourse, however, is that the opinion which says that debt prevents zakt is the preferred view because: i. ii. iii. iv. Caliph Uthmn asked the zakt payers to pay back their debts so that they could start paying their zakt,43 Ownership in the case of debtor is incomplete. The aim of zakt is to relieve those who are in need, debtor himself is one of them so his need comes first before that of the others. In our time, even wealthy people are burdened by loans of many kinds, and pay it by way of installments.44 Consequently, if such
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debts are not calculated as part of ones basic requirement for the purpose of calculating zakt, for the whole life one would not be able to stay free of debt and pay the zakt. . Contemporary calls for rethinking of the above issues Since eighties of the last century radical changes have occurred in the structure and nature of wealth, some thinkers have been calling for a fresh understanding of the above fiqhi issues for its just and consistent application in the modern time.45 As to what are the rationales for the case of renewal and reform (il wa al-tajdd), the proponents maintain as follows: 1. Sticking to classical fiqh frame of reference would obviously exclude many contemporary forms of wealth from the application of zakt. In a study Kahf made an estimation of zakt proceeds in eight Muslim countries and it was found that if the zakt was applied on livestock, agriculture, mining and monetary holdings, zakt proceeds would be between 0.9 % and 2% (except in Sudan where it is 4.3%) of the GDP. But when an estimation was made beyond the classical fiqhi position the rate of estimated zakt proceeds increased to between 2.0% and 7.5% of the GDP.46 2. Upholding some of the traditional views on zakt may divert wealth from poor to the rich. For instance, the nib of money if determined on the basis of silver, zakt may be imposed on the poor as silver has sharply depreciated in value as compared with gold. Similar anomaly will arise if we impose the zakt on the gross products of the crops as maintained by the classical jurists since all land produce will be subject to 10% or 5% zakt once the amount harvested reaches 653 kg of rice. Thus a paddy cultivator once obtains that amount (approximately RM 1800, 00) has to pay its zakt. However, to calculate the nib on the net amount after deducting the agricultural expenses and the farmers own basic requirements would resolve this anomaly. 47 Another way that this arises is by exempting the fixed assets from zakt. This is so because in the time of revelation business involved a very little fixed assets in a shop or a spot with a few business implements, but todays business involves large amounts of capital invested in fixed assets, such as land,
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buildings, machinery and fixtures. Hence, to impose zakt on stock and cash alone let say in the case of a manufacturing48 company would result in imposing zakt on the poor and sparing the wealthy. Issued to be revised Due to the above reasons, the case for reform presses for revising the following: Growth as the base of Zaktability The classical notion of growth as the criterion of zaktability has been seriously questioned by the Muslim economists. For instance, Kahf, criticizes it in many ways49 including the following: First, it is said to be faulty as a concept. The reason being that it exempts fixed asset of a business entity form zakt but this is not unproductive as the theory makes it to be. Instead, it equally contributes to the production process like the circulating wealth. To equate items devoted to personal use (quniah) to business fixed asset is invalid, since the latter is employed to make profit (in a sense is growing). The argument that the Prophet ( ) exempted primitive hand tools of production in ancient Madnah cannot be equated with modern machinery and plants of our time. Secondly, it is argued that the classical jurists have not been consistent when they applied this on assets that do not grow at all. For instance, idle money (is like idle fixed asset) or trade inventory which is in loss or in debt which are not growing. Or when they excluded its application from wealth that do grow. For instance, exclusion of fodder fed livestock, trees and domestic animals. Thirdly, it is also argued that the application of growth in agriculture produce is also arbitrary since they are not growing, actually or potentially, as they themselves are the result of growth process. 50 Moreover to assume that crops are the increase of land is also invalid as they are the increase of the seeds. Fourthly, if growth is the raison dtere (illah) of zaktability then its absence ought to be a reason for the waiving. This is not the case as trade inventory is still zaktable even if it incurs loss.
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Accordingly, thinkers such as Kahf feels that the classical jurists were mistaken in their ijtihd to shift from richness (ghin) as the textually declared illah for zaktability of wealth to that of growth,51 which needs to be reviewed. But what is the operational definition of ghin, he does not elaborate. Ab Sad seems to lay down a practical formula, though not in the context of ghin as the yardstick, when he says: The theory of growth as postulated by the past jurists is fraught with complexity and anomalies. In fact to apply it one must give the word so many arbitrary implications that the integrity of the theory itself is destroyed. At present we can hardly find any need or justification for such a theory. Suffice it to state that zakt is due on all economic goods once they exceed nib, except for those goods acquired for personal use or consumption, as well as on all the money in its different forms if the amount withheld exceeds the limit. 52 On the other hand, some other contemporary thinkers like al-Qarawi and official bodies/governmental still advocate the relevance and validity of growth as the base of zaktablity, which is reflected by the Saudi practice of exempting business implements and machineries from zakt because they do not grow.53 What should be the nib today? Nib as pre-requisite derives its validity from many adth, some important among which are: The best of adaqah is that which is paid out of opulence.54 There is no zakt on less than five camels, and there is no zakt on less than five wasuq of grain and there is no zakt on less than awq of silver (200 dirhams).55 Rationalizing the above limit of exemption, al-Dehlawi observed that the raison dtere for such was that in the time of the Prophet ( ) five volumes of grain (awsq) were sufficient for one family consisting of three persons for one year. Thus the idea was to subject to zakt what was in excess of the above.56 Building on this, Ab Sad maintains that unlike the traditional understanding that all the above limit of exemptions are permanently
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fixed, one would state that if five awsq was made a criterion for zaktablity of grains as it was enough to sustain a family in the time of revelation, it cannot be the case today. Accordingly the nib of assets should be reviewed in accordance with actual changes in circumstances, which is a well-established principle of fiqh.57 This is also justified by textual evidences, such as the Prophet ( ) stated, no zakt is due unless in case of affluence.58 Definitely a farmer harvesting five awsq of rice in a country like Malaysia is not affluent nor it suffices him for a duration of one year. Ab Sad therefore, suggests that there should be a flat rate of nib for all zaktable wealth, on the rationale that the basis of zakt is to exempt that amount of wealth which is considered, in a particular community, sufficient to sustain the family or individual for one year .59 According to him, the procedure would be: i. to determine the livelihood requirements of individuals and families (awij aliyyah), similar to goods and services that comes under the definition of consumer basket for the sake of taxation in the West. To determine the basket value in terms of money at the time of paying zakt. To regard the value of the basket as limit of exemption that should be deducted from the income before calculating the due zakt.
ii. iii.
In accordance with the above, Ab Sad suggests that we would overcome the disparity that arises from the classical notion of different nib for different items.60 Kahf offers the rationale for such a rethinking when he maintains: The reason why we need to rethink about the nib is that the relative prices of the items of zakh have been changing over time, for example, the values of the nib amounts of gold and silver are quite different in the contemporary world and hence the existing nibs of different new items do not correspond to cost of living. Moreover, the relative importance of items in the basket of basic needs have also changed significantly. Under these changed circumstances, we need to think of deriving a formula of nib on new items which are derived by fuqah, keeping in view the nibs of items in the Prophetic traditions, their relative prices and weight in the cost of living at that time and applying this
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formula to determine the nib of new items in the contemporary world. In particular, the nib of zaktable new items will have to be determined consistently. This is important in order to preserve the virtues of zakh and to achieve its objectives.61 Manan who also supports the same idea suggests the formula to consist of defining the standard of living of an average family in a given socio-economic context by following a national guideline so as to exempt that from zakh. Anything beyond this is subjected to zakh.62 Raquibuzzaman, another proponent of the same proposes that we need to allow different nibs and exemption limits for each country, as situations vary from country to country. His argument is that the Prophet ( ) fixed those to suit the conditions of the Arab society in the seventh century. Reviewing them in line with todays conditions would not violate the Sunnah as to him there is no adth to the effect.63 So to him nib should be the value of what is adequate to maintain a reasonable standard of living, and this should be changed from time to time to reflect the changes in the cost of living. 64 On the contrary others65 who oppose this idea in principle, some of them allow it when the conventional rates and nib are not sufficient to remove mass poverty. To this, they maintain that there is a precedent by Umar b. Khaab who changed the zakh rates on horse.66 Their main arguments are that nib and the rates of zakh are fixed by clear directives of the Qurn and Sunnah. Therefore, based on the established principle of uul al-fiqh, no ijtihd is allowed on issues covered by textual evidences (l ijtihd fi mawrid al-na). Accordingly such laws become part of immutable laws of the Sharah. Any deviation from this principle can lead to unfortunate results. The reason being that if changes in the zakt rates are allowed, this could lead to frequent changes in the zakt rates depending on the expediency of the ruling authorities (and it may even become an election issue in countries having multi-party systems) and this will destroy the sanctity of zakt which is a form of ibdah.67 Majlis Taqq Masil airah of Pakistan, a body representing this stand strongly opposed the government intention to revise the nib, among others, by contending that these laws do not derive their legislative validity from ijtihd to be revised and reopened but from the Qurn, adth and ijm. They rebutted the contention that due to big gap between the value of gold and silver, we
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need to rethink of the issue, by saying that it is not a new issue, it has happened in the time of the jurists but they did not alter the law as it would be ultra vires of the Sunnah and ijm.68 In terms of economic effect also, the Majlis said, an increase in nib will lead to a fall in the number of zakt payers and an increase in that of zakt receivers. It will result in two problems. First, demand for zakh will be more than supply. Second, it will appear that zakh encourages living on others, which is not really encouraged in Islam. 69 Al-Qarawi, also opposes any rethinking on areas such as nib and its rate, mainly because zakt, according to al-Shatibi is, the kind of transaction that have some characteristics of worship, thus we have to limit ourselves to the texts. Accordingly, to al-Qarawi, such matters are clearly defined by the texts and agreed by ijm. He thus concludes: I disagree with those who claim that the minimum exemption and rates of zakt are subject to change according to changing circumstances, on the grounds that such changes conform to the objectives and common benefits of zakt. I believe that such changes alter the features of zakt and reduce it to a mere civil tax, like any other taxes imposed by the government.70 The Saudi zakt administration while favour such a hard line stand on this issue, admits changes but within the sub-structure of textually defined nib. For instance, due to that fact that the relative prices of gold and silver have changed, it follows the value of gold (i.e., 85 grams of gold), ignoring the value of silver to determine the nib, which is the case in Pakistan.71 The problem with the proposed revised nib The rationale of nib according to classical fiqh was to impose zakt on the wealthy and not on the poor, i.e., it is an indicator (mazannah) of ghin (affluence).If this is taken literally, a farmer who today harvests five awsuq of wheat and needs multiple of that amount to fulfil his other needs, for all practical purposes is poor. Accordingly, as maintained by Shawqi, taken this rational together with the textual evidences which state that adaqah is on the affluent (ghan), we need to rethink about the nib. But this option itself is beset with complexity. For instance, how to objectively determine ghin? Even if we adopt the anafiyyah
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criterion of imposing zakt on the nib which is beyond the level of the zakt payers subsistence (al-jt al-aliyyah), the question is: why do we still need to require the surplus to amount to the jurisprudentially defined concept of nib? Or shall we stick to the condition of yearly term, arguing that any one who has a surplus/saving amounting to nib that is a sign of his ghin? If we abandon both the criteria of nib and ghin and advocate flat rate for all types of property, what would be the juridical base of such an option?72 Revision of the rate On the revision of the rate, Kahf though do not offer any practical formula, suggests that the fixation of rates should be consistent with the prescribed rates keeping in view the matters of wealth transformability and the multidimensional nature of dynamic activities in the contemporary world. This would enable the state to redistribute a sizeable amount of wealth from the rich to the poor, and in view of the fact that the rich tends to indulge in conspicuous consumption beyond social limits of consumable durables.73 This is again not agreed to by al-Qarawi and others as it would be ultra vires of the Sunnah.74 Al-Farah also subscribes to this view by maintaining that no need of ijtihd on textually defined measure of ibdt. It is also rationale that Islam in prescribing the rate has anticipated the interest of both the zakt payer and the beneficiaries.75 What to exempt? The scholars while agreeing with the traditional exemption of wealth that the zakt payer needs for fulfilling his livelihood requirements, they disagreed with the following: i. Fixed assets of the business
For instance, Kahf says: consistency requires imposition of zakh on fixed assets, for example. This is because both of circulating assets and fixed assets contribute to production process and hence, to be consistent, both should be zaktable.76 He continues by saying: it is not
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right to say that fixed assets are zaktable only if these produce any return. The latter opinion is inconsistent because idle cash is considered zaktable even if it does not produce any return, but fixed assets are exempted for not earning return. This will imply favoring large holdings and penalizing small ones, since the use of fixed assets varies directly with firm size. This lacks Islamic rationality. 77 Other scholars like Abu Zahrah, Khallaf, Hassan and Al- Qarwi differed with Kahf by maintaining that only the return would be zaktable and not the fixed assets.78 OIC Fiqh Academy in 1985 also held that fixed assets are not subject to zakt, which is reflected in the Saudi application of zakt.79 ii. Type of deductible loan
In our time situation where one incurs debt is different from the time of the classical jurists. Every one, particularly in the wealthy country starts to be burdened by the running debts the moment he steps into the primary school. By the time he becomes a bread earner, he is heavily burdened by loans against residential houses, cars even business. Accordingly, if the stipulation of exempting debt from zakt is not understood correctly, many affluent people with expensive cars, houses etc would be exempted from zakt. Shafiqur Rahman seems to advance an enlightened opinion on this by saying that by agreeing that loans that one incurs on these items definitely come under the definition of basic necessity. Now a question arises: are all types of debts deductible? He answers it in the negative and offers a formula of deductible loans as follows: i. Be of modest type and not of lavish and extravagant type. Thus the loan of a luxurious car and house would be deductible to the extent of the price of a modest type and any thing over and above it would not. Be considered as a basic necessity. For instance, one car in good condition that suffices for a small family is a necessity but the second one not. Hence only the loan of the first car qualifies as deductible debt. Interest accruing on such debts should not be deductible.
ii.
iii.
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In this way, he rightly points out, that we can strike a balance between the two extremes positions of either not exempting debts at all when calculating zakt or deducting all types of debts whether necessary or not.80 Analysis and Evaluation From the above, an ordinary citizen (layman) would have two sets of laws in accordance to which, he is supposed to fulfils his obligations of zakt. The most perplexing question confronting him in this process is obviously one of: which law, new or old, should he follow? Another dimension, mostly ignored by our well-intentioned scholars from a layman perspective, is which one is the correct law. In the lines that follow, my reading of both the old fiqh and the new debate suggest the following: 1. On the case-justification for reform Firstly, no one should dispute the need or the extension of zaktablity base to include the new sources of income within the structure of textually defined types of wealth known to us. To this, there is clear directive from the Qurn that every wealth (ml) has to be cleansed and its owner purified. Thus this point for rethinking as raised by Kahf should no longer be a point of polemics between the modern and conservative ulam. Secondly, the goal-frustrating juristic ruling of subjecting every five awsuq of grains or fruits to zakt, without considering the subsistence requirements of the farmer and his cost of farming though supported by the ruling of some fuqah, cannot stand the force of prohibiting the imposition of zakt on the poor, i.e, no zakt except on the opulence and the anafiyah requirement of zaktable assets to be above ones basic needs. Hence, this issue should also rest as settled as modern legislation in some jurisdictions like Pakistan have already enforced these maqid oriented and internally consistent position of the law. Thirdly, definitely, the distinction between modern types of fixed assets and the primitive tools of business is a real case for reform but it needs to be finally settled by legislation. 2. On the growth as the base of zaktability One would agree on the questionability of the growth theory from
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an economic stand point as well as its somewhat inconsistent application in identifying the zaktable wealth by its jurist architects. But to say that the classical jurists erred in applying this to impose zakt on idle money or trade inventory amounts to exceeding the limits of rationality when one deals with matters of the Islamic law. These two items were made zaktable by unimpeachable evidences from the Qurn and the Sunnah. Again dismissing such a well-established theory in favour of some vague concepts like ghin, I am afraid, would not advance any case for reform. On this issue, however, one would favour the proposition laid down by Ab Sad as a viable criterion (any economic goods that reaches the nib). 3. On the nib
Here we are confronted with two conflicting interpretations; one premised on the text of the adth, another on their purported ratio legis as construed by renowned al-Dehlawi. If we go by the ratio legis of the law and say good by to the textually fixed nib, then the questions is: can the human constructed reason deter of the law overrule the letter of the law itself? There is unanimity among the legal scholars that in matters of ibdt it would be ultra vires of the juristic activism in the context of Islam. That is why Kahf was aware of this restriction when he suggested that such may be the course in the case of new forms of wealth but not in the case of those specified by textual sources (nu). On this issue therefore, the stand by the opponents of change is to be upheld as is in line with the fixation of nib by unimpeachable evidences from the Sunnah (contrary to what has been the claimed). 81 4. On the rate
The question of rate, I believe, also involves touching the stable part of zakt with the intention of augmenting the zakt revenue. Definitely it may have good economic reason but jurisprudentially it raises the question of modifying the textual law by the flux of human rationally construed economic expediency. Thus, the classical position still reigns supreme and the economic reason for augmenting the zakt revenue, which is the motive for re-rating, can be fulfilled through developing the
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mechanisms for investing the zakt fund in productive ventures as maintained by Farah.82 5. On deductible assets
Excluding the fixed assets of business from zakt can no longer be supported by economic reality of their role in todays business productivity. One may agree with reform proposals in this area. This is similar to the redefinition of zakt beneficiaries in our time and well come within the province of human reasoning (ijtihd). But for the practical implementation, it still remains a point of academic interest unless it is backed by state legislation. Definition of deductible loans as proposed by Shafique is a judicious construction which should be regarded as correct statement of the law on the type of deductible debts. Conclusion and recommendation The main trends of thoughts emerging from a review of the available literature on debate about adjusting certain features of zakt jurisprudence are as follows: 1. Any discussant who deals with sensitive issues of the Islamic law such as zakt must bear in mind that there are parts of zakt laws that can be reviewed and there are other aspects that are not amenable to human extrapolations. On the renewable part, we argued and agreed with the extension of zakt base to include all economic goods and services of our time. We also agreed that todays fixed assets are a growing wealth in the economic sense and not in the legal sense as defined by the classical jurists, thus it has to be zaktable. We also favor the fresh understanding of deductible debts as today even most wealthy people are not free of running debts of some kind. On the fixed parts of the law, such as nib and rate we beg to differ with modern views as they represent the permanent features of zakt as an act of ibdh. To augment the zakt revenue, we alternatively, fully support the idea of utilizing zakt surplus fund in productive projects to create jobs, training and capital for the beneficiaries.
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2. It should also be noted that zakt though a fundamental component of the Islamic fiscal system, in the context of Islamic state, is not a tax per se. Accordingly, the idea of its reform must be informed by the principles of Islamic jurisprudence and not by the postulates that govern the taxation laws in a capitalist economy. [The above discussion is limited to the question of zakt in Sunn Muslim countries. Discussion on the Athna Ashriya fiqh and about the payment of zakt in non-Muslim countries needs further discussion].
01.
02.
03. 04. 05. 06. 07.
08. 09. 10.
Abu Al-Hasan Sadeq, A Survey of the Institution of Zakah: Issues, Theories and Administration (Riyad, Islamic Development Bank Islamic Research and Training Institute, 2004), Discussion Paper II, p. 29. It is to be remembered that Qurn also uses the word adaqah to imply zakt, for instance, see al-Arf: 156, Maryam: 31, al-Anbiy: 72, al-Muminn: 4. Similarly, the Prophet ( ) when dispatched Mudh to Yemen, said: inform them that Allah has prescribed adaqah on their funds . Nevertheless, it was later on that the jurists technically distinguished between adqah and zakt, the former refers to donation and voluntary charity while the later signifies compulsory financial obligation of the wealthy towards the poor. See Yusuf al-Qaradawi, Fiqh az-Zakt, Monzer Kahf (trns.), London, Dar al Taqwa Ltd., 1999, pp. xlv-xlvi. See also Muhammad Abu-Saud, Contemporary Zakat, Cincinnati, Zakat and Research Foundation, 1988, pp. 9-12. Ibid., p. xliii. Ibn Taymiyyah, Fatw, vol. 25, p. 8. Al-Qurn, IX:103. Wahbah al-Zuhayli, al-Fiqh al-Islami wa Adillatuhu, Beirut, Dar al-Fikr, 1989, vol. 2, p. 730. The word zakt occurs thirty times in the Qurn and in twenty-seven of them it is mentioned side by side with alh, for details see, al-Qaradawi, Fiqh az-Zakt, pp. 9-22. Al-Bayyinah, 5. Al-Dhriyat, 19. Al-Tawbah, 103.
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12. 13. 14.
15. 16. 17. 18. 19.
20.
21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.
34. 35.
adth the plural of which is adth means relayed information about the Prophets, statements, practices and tradition which may either contain a legislation or it may just relate the Prophets undertaking as administrator. In Islamic jurisprudence, the import of the adth as such is called Sunnah, which is the second primary source of the ukm (law/rule) in Islam. Mishkt al-Mabi, vol. 1, p. 96. Sunan Ibn Mjah, p. 416. This he said in response to Umars objection to such a policy. For details see Mustafa al-Khin et. al., al-Fiqh al-Manhaji, Beirut, Dar al-Qalam, 1996, pp. 274-275. Al-Bayhaq, al-Sunan al-Kubra, vol. 4, p. 105. Ibid., pp. 41-42. Imtiazi et al. (edits), Management of Zakat in Modern Muslim Society, Riyad, IDB, IRTI, 2000, p. 11. Al-Zuhayli, al-Fiqh al-Islami wa Adillatuhu vol.2, p. 372. Monzer Kahf, Zakat: Unresolved Issues in Contemporary Fiqh, in Development and Finance in Islam, Sadeq et all (edits.), International Islamic University Press, 1991, p. 174. The Prophet ( ) imposed zakt on certain heads of livestock other than those for work. He also declared business assets and idle money as zaktable. He also imposed zakt on certain types of agricultural crops, minerals and treasure troves. The classical jurists thus theorized that these implementations lead us to only one conclusion and that is, only naturally growing or potentially growing wealth are subject to zakt. See Sunan Ibn Mjah, pp. 416-422; Mishkt al-Mabi, vol. 2, pp. 55-56; al-Qarawi, Fiqh az-Zakat, pp. 77-81. Al-Qarawi, ibid., p. 76; see also ibid., pp. 66-72. Ibid., p. 77. This is opined by Ibn al-Humm, the author of Fat al-Qadr, cited in ibid. Ibid., pp. 80-81. For details see ibid., pp. 82-83. Ibid., pp. 85-86. Khan, Some Accounting Issues Relating to Zakat, p. 109. Abu Saud, Contemporary Zakat, p. 32. Sunan Ibn Mjah, p. 424. It is quoted in al-Qarawi, Fiqh az-Zakt, pp. 87-89, from his renowned commentary of al-Durr al-Mukhtar. See Abu Saud, Contemporary Zakt, pp. 72-73. Al-Baqarah, 219. This is according to the opinion by Ibn Abbs who by way of exegesis maintained so al-Qarawi, Fiqh az-Zakt, p. 89. See also Husayn, Musibat al-Zakat, p. 23. Sunan Ibn Mjah, p. 432. Al-Qarawi, Fiqh az-Zkat, p. 89.
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40. 41. 42. 43. 44.
45. 46. 47. 48. 49. 50. 51.
52. 53. 54. 55. 56. 57. 58. 59. 60.
Ibid., see also Dd, The Malaysian Zakat System: Law and Policy Reform, p. 15. Ibid. Ibid., p. 16. Abu Saud proposes the concept of consumer basket value that is normally determined by tax departments as we noted before. See Abu Saud, Contemporary Zakat, p. 77. Al-Qarawi, Fiqh az-Zakt, ibid., p. 90. See also Abu Saud, ibid., pp. 61-62. Al-Qarawi, Ibid., pp. 91-93. They represent Amad Ab anifah and al-Shfi in his new opinion. See ibid. Ibid., p. 92. The scholars when addressing the issue as to which kind of debts are deductible, expressed two views: both deferred and immediate, only the immediate type. However, for todays application, the first view which covers the deferred type encompassing the system of debt by part-payment in our time is the suitable legal stand to which we subscribe, for details see, ibid., pp. 94-95. Kahf, Zakat: Unresolved Issues in Contemporary Fiqh, p. 173. See for table based on an unpublished study in IRTI, 1987, ibid., pp. 185-186. See Khan who raises the problem in the context of Pakistan, Some Accounting issues relating to Zakat, pp. 104-105. Ibid. Kahf, Zakat: Unresolved Issues in Contemporary Fiqh, p. 181. Abu Saud says the theory is misleading and unscrientific. See Abu Saud Contemporary zakat, p. 70. Kahf, Zakat: Unresolved Issues in Contemporary Fiqh, p. 183, Mohammad Daud Bakr, also subscribes to the same view but like Kahf does not offer any practical formula for ghin as it can be more vague than the concept of growth, if left undefined. See Dd The Malaysian Zakat System: Law and Policy Reform pp. 4-12. Abu Saud Contemporary Zakat, pp. 71-72. Shaik and the fatwa by Majlis Tahqq Masil irah represent this groups stand, see Sadeq, A survey of the Institution of Zakat, p. 38. Sunan Ibn Mjah, p. 432. Ibid. Saud, Contemporary Zakat, p. 75. Ibid. Sunan Ibn Mjah, p. 432. Saud, Contemporary Zakat, p. 75. He seems to imply that the owner of five camels and harvester of five awsuq of grain would be subject to one standard limited of exemption. See ibid., pp. 76-77. See also Shawqi Ahmad Dunia, Taammulat fi Bad al-jawanib al-Fiqhiyyah li al-Zakat, in Abath Nadwat al-Tabq al-Maair li al-Zakt, al-Azhar, S.A. Kamel Centre for Islamic Economics, 2002, vol. I, p. 22.
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101
Kahf, Zakat: Unresolved Issues in Contemporary Fiqh, pp. 13-15 and 44-45. Sadeq, A survey of the Institution of Zakat, p. 34. Ibid. Ibid., p. 35. See also, Mushfiqur Rahman, Zakat Calculation Based on al-Qarawi, United Kingdom, The Islamic Foundation, 2003, pp. 3-5. People like Shaik suggest this see Sadeq, A survey of the Institution of Zakat, p. 35. Ibid. Ibid., pp. 35-36. Ibid., p. 36. Al-Qarawi, Fiqh az-Zakt, p. xxxviii. Ibid. Shawqi Ahmad Dunia, Taammulat fi Bad al-Jawnib al-Fiqhiyyah li al-Zakt, pp. 21-23. Sadeq, A survey of Institution of Zakt, p.34 see also, Muhammad Nejatullah Siddiqi Muslim Economic Thinking: A Survey of Contemporary Literature Part Three First International Conference On Islamic Economics (Slected Papers) at http://www.financeinislam.com retrieved on 26/01/2007.
74. 75. 76. 77. 78. 79. 80. 81.
Al-Qarawi, Fiqh az-Zakt, p. xxxviii. Abd al-Fattah Muhammad Farah, al-Tawjih al-Istithmari li al-Zakt, Dubai, Bank Dubay al-Islami, 1997, p. 28. Kahf, Unresolved Issues in Contemporary fiqh, p. 11. Ibid., p.13. Sadeq, A survey of Institution of Zakt, p. 32. Scholars like Maududi and Awad also propound the same legal stand, see ibid., p. 33. Mushfiqur Rahman, Zakat Calculation Based on al-Qarawi, pp. 32-37. The scholars of adth like al-Shawkn, al-Dar Qutn and al-Bayhaq regard the adth prescribing the nib as authentic., see al-Bayhaq, al-Sunan al-Kubra, vol. 4, pp. 81-107.
82.
Farah, al-Tawjih al-Istithmari li al-Zakt, p .28.
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A CASE STUDY OF INTELLECTUAL PROPERTY RIGHTS

SAMIA MAQBOOL NIAZI Assistant Professor, Faculty of Shariah & Law, International Islamic University, Islamabad, Pakistan, e-mail: samiamaqbool[jurist194@hotmail.com]
THE POVERTY OF IJTIHD
Introduction: The significance of Intellectual Property in the world today The importance of intellectual property (IP) in the modern world goes far beyond the protection of the creations of the mind. It affects virtually all aspects of economic and cultural life. 1 Intellectual Property Rights (IPRs) have never been as critical for economic development and growth as they are today. In the corporate world, almost every development revolves around intellectual property and the value associated with it. Thus, Dr. Horst Fisher, Corporate Vice President, Siemens AG, says: Any company wishing to prosper in the next millennium will also have to efficiently manage its IP portfolio. 2 This applies to nations too. A policy document issued by the Government of Japan says the following: In order to implement various reforms toward this objective, this Intellectual Property Policy Outline sets out the fundamental thinking of the Government of Japan (GoJ) toward making Japan a nation built on intellectual property.3 To protect the violation of IPRs, most countries of the world signed the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) in 1994, administered by the World Trade Organization (WTO). Yet, many in the underdeveloped countries tolerate the widespread sale
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of counterfeit version of IP products. The Islamic world continues to be part of this illegal activity with some claiming that such rights are un-Islamic. It is true that there may be some difficulties in dealing with such rights, but none of these is so radical that it cannot be overcome. It is imperative that the Muslims internalize concepts of IP so that they can participate in and carve out a share in this enormous source of wealth. Intellectual property, it can scarcely be doubted, is vital for the development and well-being of the Muslim Ummah. This form of property may be considered essential today even for the Islamic traditional heritage, at the core of which lies Islamic law and Islamic knowledge. The World Intellectual Property Organisation notes: The use of existing and new intellectual property approaches alone will not resolve the challenges confronting traditional communities today, who will need to draw on a range of legal and practical tools to strengthen respect for the customary laws that protect their traditional knowledge. 4 In short, the Muslim world must participate fully in the field of intellectual property to ensure its own progress and development. To participate in this activity, the Muslims must be morally and legally convinced that the protection given to intellectual property is indeed required by the Sharah. Without such conviction, there is little hope that the Muslim world will participate in developing intellectual property or grant it the protection it requires. The Muslim scholars who have to justify the use of intellectual property from the perspective of the Islamic Sharah have, so far, not taken the matter seriously. There have been very few attempts to understand, analyse and validate the intellectual property system. The few attempts that have been made have been inadequate; indeed, superficial. Verdicts have been issued, but without even understanding fully what intellectual property means and how it is to be dealt with. The complexity and uniqueness of this form of property is ignored in such verdicts. Indeed, the case of intellectual property rights represents the poverty of ijtihd in the present age. The major aim of this paper is to highlight for the Muslim scholars, and the Muslims scientists and thinkers, where the current state of our analysis for validating intellectual property stands. A few serious, though far from adequate, attempts have been made to understand the problem and to provide a justification of IP rights. This paper will attempt to record these attempts here. It will then subject them to analysis so that
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the weaknesses in ijtihd can be highlighted. The major aim is to highlight those issues on which the Muslim scholars need to focus for a comprehensive and convincing ijtihd that will bring the Muslim world into the mainstream of the IP world. It is to be hoped that the paper will help in understanding the magnitude of the problem, the huge scholarly efforts that are required to assimilate the new development into the fold of Islam, and finally the moral duty to undertake ijtihd in this field. Such ijtihd must come from the scholars who lead the Muslim world today. It is their responsibility and this paper is, in part, addressed to them. The four main types of non-physical things considered as IP are Copyrights, Patents, Trade secrets, and Trademarks. These rights mainly grant the owner a monopoly on the use or copying of the protected property. Contemporary Muslim jurists, however, are divided over the issue of IP. Those who fervently stick to the position of the classical scholars augment their position against the concept of IP by arguing that knowledge belongs to Allah alone, and is merely a trust for humans to use and share with others. They also rely on the tradition of the Prophet ( ) which says, Do not sell what you do not have, thus implying that IP rights cannot be possessed and owned. In addition, they allude to uncertainty (gharar), which may be an important attribute of almost all IPRs. On the other hand, there are scholars who have accepted the premise that ideas and methods can be protected under the rubric of intellectual property. Nevertheless, their arguments have not been found to be very convincing by the majority of Muslims. It is these arguments that need to be strengthened. The paper will first attempt to understand the Islamic concept of property. The first section will focus on the broad concept of property or ml in the Sharah. Insofar as the concept of milkiyyah (ownership) is intrinsically tied up with the concept of ml, the nature and types of ownership will also be discussed briefly. The main goal of this section, however, will be to isolate the characteristics of what are called uqq (pl. of aqq: right) of corporeal property, as these are relevant for the study of intellectual property rights. The section will also deal briefly with the assignment of commercial value to new things within the Islamic law. The intention will be to see how the Islamic law deals with the issue of gharar (hazard and uncertainty) in assigning such value.
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The discussion of ml alone is not sufficient. Rights play a much wider role in the Islamic law. In the next section, we shall deal with rights and their various classifications. The attempt again will be to isolate pure rights so as to identify their nature and basic characteristics in the Islamic law. The discussion of rights in this manner is also important from the point of view of analysis and justification of intellectual property, because the major attempts made by the modern Muslim scholars to validate this type of property are based on arguments of rights. The most important such attempt is by Justice Taqi Usmani. His analysis will be discussed in some detail to understand the arguments that he relies on for the justification and validation of intellectual property rights. Once the study of the first two sections is complete, we shall be ready to analyse and understand the arguments advanced for the justification of intellectual property rights. The two major attempts that will be analysed are by the Federal Shariat Court of Pakistan and by Justice Taqi Usmani. Once the arguments have been identified with some precision, we shall attempt to understand the weaknesses of these arguments so that some suggestions can be made for strengthening them where possible. The analysis, however, will be objective and no attempt shall be made to stretch rules and principles unnecessarily for arriving at the desired justification. In the end, a summary of our findings in the previous sections will be provided in the form of recommendations for a comprehensive, and indeed imperative, ijtihd in this vital area. The Crucial Issues that Ijtihd on Intellectual Property must confront Justice Brennan of the U.S.A. said: Much of the existing wealth in this country takes the form of rights that do not fall within the traditional common law concepts of property. 5 The complexity of intellectual property has increased manifold since this statement. A discussion of intellectual property and its kinds is beyond the scope of this paper. It is essential, however, to identify those characteristics that were once new for the common law and may be alien for the Islamic law.
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Most analyses of intellectual property rights by the Muslim scholars focus on a few well-known types, namely, copyright, patents, trademarks and trade secrets. The concept of intellectual property has now expanded to include many things.6 According to the WIPO Handbook, traditionally there are two branches of intellectual property. These are industrial property and copyright. These two main branches cover certain types and then have related rights. To these two is added a third category called scientific discoveries by the WIPO Convention. The main fields of intellectual property today are just six. This may appear simple at the first glance, but when we probe the meanings of these six types there is a huge complexity and many sub-types are visible. Each type must be analysed separately from the Islamic perspective. The six types are: 1. 2. 3. 4. 5. 6. Patents Copyright and Related Rights7 Trademarks Industrial Designs and Integrated Circuits 8 Geographical Indications Protection Against Unfair Competition9
In the light of the description of intellectual property above, we may raise a few initial questions here that must be answered by the Islamic law in order to conform to the international rules laid down for this form of property: 1. Nature of the right protected: Copyright law protects only the form of expression of ideas, not the ideas themselves. 10 Can expression alone be protected under the Islamic law? Does it give rise to some kind of right that requires protection? If so, what is the nature of such a right? In patents and industrial designs, it is the underlying idea that is protected. How does the Islamic law protect an idea? In other things, it is either a mark, name, geographical name and so on. Each requires separate analysis from the Islamic perspective. Protecting moral rights: Moral rights remain with the original author, in the case of copyright, even when he has transferred his
2.
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3.
4.
5. 6.
economic rights to another. Can this be permitted under the Islamic law? Does this amount to a conditional transfer and will the Islamic law permit this? A right that can be inherited, but is for a limited duration: Most intellectual property is limited by time. 11 Copyright has a duration of 50 years after the death of the owner. In some countries this has been extended to 70 years. This is for the benefit of the heirs. The question is: can such a limit be imposed on the basis of the Sharah? Malaah? A trade name or mark may be renewed forever it appears (for a fee), but what is its real life? Music and arts based copyright: Will the Islamic law acknowledge a right in a work that is based on musical compositions and performances? Rights of performers: Can the rights of performers be intermingled with this right? What is the basis according to the Islamic law? Repeat value: The expression protected by copyright can be sold again and again. What kind of right is involved here? Can one thing be sold again and again?
Further attributes of IPRs will be provided, where necessary, within the discussion of the Islamic position on ml (property). The Nature of Property and its Valuation in the Islamic Law The Nature of Property and Ownership in Islam The word used for property in the Islamic law is ml.12 In the literal sense, the word ml is applied to mean all those things that a human being can own.13 Thus, the idea of milk (ownership) is an integral part of this literal meaning. Technically, it is defined in different ways. Ibn Abidin says, The meaning of ml is anything towards which the nature of man is inclined, and that can be stored for the time of need. 14 He adds that commercial (or financial) value is established by all the human beings or some of them considering a thing to be valuable. 15 Al-Shib says that ml is something that can be the subject-matter of ownership and over
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which the owner has absolute control to the exclusion of others. 16 Ibn al-Arab defines it as something to which human desire extends, and it is suitable in practice and in law to be utilised. 17 As stated the word used by the Muslim jurists for ownership is milk or milkiyyah and that used for property is ml. In reality, it is the modern writers who use the term milkiyyah. The earlier jurists use the term milk more often. The term milk, however, is sometimes used for ownership and at other times for the subject-matter of ownership. The definition of ownership (milkiyyah or milk) and the discussions about its elements reveal that the meaning is not too different from the meaning of ownership in law. They emphasise that it is the relationship that exists between a person and a thing that gives absolute control and right of disposal over it to the exclusion of others. Thus, the dictionaries define milk as: It is the gathering and control over a thing with the right of individual disposal.18 This definition is very close to the definition of ownership given by Savigny on the basis of the Roman law. 19 Exclusion of Others Classifications of ownership (milk) are to be found spread over different topics like shufah (pre-emption), qismah, ijrah and so on.20 There are further classifications too. Thus, on the basis of participation, it is divided into sole ownership, co-ownership (also called sharkat al-milk) and communal ownership. Certain things have been excluded from individual ownership, and they always remain in communal ownership. These are fire, water, grass, air, public roads and commons. 21 Ownership is also classified on the basis of chattel (ayn), usufruct (manfaah), and use (istimt). It is in this context that the Mlik jurist al-Qarf defines milk as follows: Milk is a ukm shar that is assigned to the ayn and manfaah that enables the one with whom it is associated to benefit from the thing owned and to take a counter-value for it. 22 Another classification tries to distinguish between ownership proper, possession and right of disposal by calling them milk al-raqabah (proprietary rights), milk al-yad (possession), and milk al-taarruf (right of disposal).23 An important classification is made on the basis of primary and incidental rights. Primary rights are associated with the property itself, while incidental rights are those that may be related to other property
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because of the primary rights. These incidental rights give rise to easements like: 1. 2. 3. 4. the right of passage (aqq al-murr); the right to flow of water (aqq al-majr); the right to water (aqq al-shirb); and the rights of a neighbour (aqq al-jiwr). This category may also lead to the right of pre-emption.24
It is this last classification that comes into play in the analysis of IPRs within the discussions of scholars like Justice Taqi Usmani. Relationship between Ml and Milk There is an intimate relationship between the terms milk and ml. The word milk is sometimes applied to mean ownership and at other times to mean the subject-matter of ownership, and in this sense it includes four things:26
25
1.
2.
3.
Things that can be taken into physical possession. The corpus or body of such things can be destroyed or consumed independently of anything else.27 Once destroyed it may be liable to compensation. Such things qualify for being called ml according to all the jurists, unless the Sharah specifically excludes some of these due to unlawful attributes.28 Benefits arising from the ayn. Manfaah or usufruct or services fall in this category. These benefits cannot be destroyed or utilised independently of the body from which they are generated. In other words, they have no existence independent of the corpus from which they are generated. 29 The transactions through which ownership of benefits is transferred are commodate loan (irah), hire (ijrah), charitable trust (waqf) and bequest (wiyah). 30 Things that have a body and can qualify as ml, but are not considered ml due to some technical reason. The example is a slave owned by a person, but is not referred to as ml, because
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4.
a human being cannot be ml. The same applies to a mothers milk in the case of humans.31 Pure rights that do not have a body of their own. Like the right to stipulate an option, say khiyr al-shar.32
The position of the schools of law on the above categories is as follows: 1. According to the anaf school it is only things with a corpus, that is, ayn, that can qualify as ml (property).33 The other three are not ml, but can be the subject-matter of ownership. 34 Benefits arise in contracts like ijrah (hire). In such contracts, the anafs say that the corpus from which future benefits will arise is substituted in place of the non-existent benefits so that the offer and acceptance can be linked to it. They do not consider pure rights as ml.35 They also do not consider such incorporeal things like knowledge to have the quality of ml.36 The Mliks and Shfis consider benefits to be ml. They do not consider pure rights to be ml, because they do not arise directly from a corpus.37 The anbals consider pure rights to be ml although they have not clearly indicated this. They consider the arbn (earnest money) as legal on the basis of a solitary tradition.38 By validating the payment of earnest money they acknowledge the sale of options and pure rights. The OIC has preferred this tradition and opinion. 39
2.
3.
The narrow concept of property in the traditional Islamic law is now being stretched by modern jurists, courts and the Islamic Fiqh Academy of the OIC to include pure rights. The Value of Property in the Islamic Law THE MEANING
OF
VALUE
The basis on which human beings consider something to be valuable is their desire for the thing, the scarcity of things, and human practices. This issue is important for the discussion of intellectual property rights,
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because the value of intellectual property has not always been acknowledged. Wealth in order to have value must be marketable, that is, it should have commercial value. This concept is contained in what is called ml mutaqawwam in the Islamic law. The word qmah means the value of a thing. According to the dictionary meaning it is the price that is associated with a thing after valuation.40 It is also something with which another thing is assigned a value.41 As compared to this we have two terms mithl and qm that indicate the nature of things with respect to commercial value. Mithl is something whose similar can be found in the market without there being any significant difference. It applies to things subjected to cubic measure, weight or to those countable things that are identical. 42 This shows that mithl is a sub-type of the qm. THE LEGAL BASIS
FOR ASSIGNING
VALUE
The main issue facing us is: what is the basis for assigning commercial value to a commodity, benefit or right? The jurists usually refer to this basis as being urf, that is, the practice of people. This assertion occurs again and again in the writings of the earlier jurists. Here is what al-Sarakhs (d. 1090 A.D.) says: The conclusion is that what is taken into account here is urf. Each thing in which the people practice istithn is valid.43 This shows that acknowledged practice has a role to play in the commercial law, but he adds in another place: The reason is that the sale of shirb (right of access to water) is fsid. The reason is that it is one of the incidental rights of the sold property with the status of attributes. Thus, they cannot be separated for sale. In addition to this, it is uncertain in itself and it is not possible to deliver it, because the seller does not know whether or not water will flow in it. It is not in his power to make it flow. He said: Our Shaykh, the Imm, used to relate from his teacher that he used to render the verdict of permissibility for the sale of shirb without the land. He used to add that there is a manifest urf
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in it in our land, for they used to sell water on one-half. Therefore, on the basis of manifest urf he used to issue the fatw of permissibility. Urf, however, is considered where there is no na, (text) opposing it. The proscription about the sale with gharar is clearly opposed to this urf.44 Mawln Taq Usmn, after quoting this particular passage, goes on to quote the author of Fat al-Qadr as well as the author of al-Inyah to show that even if this is not permitted on the basis of gharar, it is still ml. In other words, the right of shirb is treated as ml by the jurists.45 Without going into too much detail, we have three points to make here: 1. The first point is about the assigning of commercial value to rights or things so that they are considered ml. The basis for assigning such value is the practice of the people, that is, what they consider valuable is to be acknowledged by the law. It is like the law merchant and its practices. Nevertheless, al-Sarakhs has clearly stated that any urf that is to be acknowledged must not oppose a text. In our view, that should include its implication too where such implication is in the form of general principles derived from the texts. The second point is that all the rights that have been called uqq by the fuqah are attached to an ayn or corporeal property (land in this case) in a manner that they are treated as additional attributes that do not really affect the nature of the property itself. Here we may again quote al-Sarakhs, who says: The basis of the issue in sales is that the price is in lieu of the primary property (al) and not the additional attributes. Thus, the loss of the additional attribute (waf) in the hands of the seller, without intervention of anyone, does not extinguish any part of the price.46 This should be sufficient in explaining the point. What we are interested in, for justifying intellectual property, are pure rights that exist independently of any other property. The third point is that of valuation. An important issue is the problem of valuation in the case of intellectual property. No one knows the
2.
3.
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real value that a patent sold today will fetch, or how much a publisher should pay to a writer, or in the case of passing off where trade marks are concerned, how much loss has been caused by the violation. Gharar is inherent in such rights.47 In the next section, we will talk about arbn (earnest money) and the relinquishment of office, which are pure rights. Rights and their Transfer in the Islamic Law Intellectual property revolves around a system of rights. It is, therefore, imperative that the types of rights related to property be discussed and analysed in order to understand the position taken by the Islamic law with respect to this type of property. In the previous section, we have analysed the concept of ml or property in the Islamic law. In this section, we shall discuss the types of rights associated with such property and whether there other pure types of rights that can be sold. It is also important to discuss the nature of these rights, because most scholars who have tried to justify the validity of intellectual property rights in Islam have relied, in their analyses, on a discussion of rights. They have tried to show that there are certain types of pure rights in Islam that are the subject-matter of claims even if they are not exactly classified as property. From such discussions, the scholars have tried to derive rules that can be used to justify intellectual property with respect to their sale and ownership. This is especially true of scholars like Taqi Usmn.48 There are a large number of classifications of rights in the Islamic law. Rights are viewed from various perspectives and classified according to a specified purpose. Not all such classifications are relevant for the present discussion.49 The classification we have selected is the one adopted by Mawln Usmn. The rules he derives for later justification will then be mentioned. The classification adopted by the learned scholar is quite complex and does not help in a precise understanding of the rights. Accordingly, we shall follow our own classification based on the writings of the earlier jurists in order to simplify the complexity surrounding the discussion of rights in Islam. This should prepare the ground for our analysis in the next section.
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The term used for the word right is aqq.50 In its literal meaning, the word aqq is the name of the Almighty. Some say that it is one of His attributes. Literally, it is a verbal noun and is considered the opposite of the word bil (falsehood). The literal sense also includes the meanings of claim, obligation, certainty, and the rights pertaining to real property and its easements.51 Technically, it is used in two meanings. First, the ruling that corresponds to the facts, and in this meaning it is the opposite of falsehood (bil). Second, it is used in the meaning of an obligation that is established, that is, a right. In this sense, it is said to have two types: the right of Allah and the right of the individual. The right of Allah is one that pertains to a general benefit that is not specific, and settlement has no role to play in it, as in the case of udd, zakt, kaffrt (expiations), and so on.52 Sometimes the words aqq and ukm are treated as synonyms, but in reality aqq is the legal effect of the ukm.53 These definitions are more common amongst ulis. The fuqah define a aqq as something to which a person is entitled. 54 Classification into Rights that can be relinquished and transferred and those that cannot The transfer and relinquishment of a right may be with or without compensation. Transfer is of property sold with compensation or it may be without compensation as in the case of a gift. Relinquishment may be for value as in the case of khul and pardon, or it may be without value. Transfer and relinquishment in the broader context are again seen by the jurists in terms of the right of Allah and the right of the individual. For this purpose, the idea of the right of Allah is expanded somewhat and to it are added even those cases of the right of the individual that are expressly laid down by the Sharah or by the texts. The right of the individual is divided into its various components and analysed. We shall see later that it is this classification that is employed by Taq Usmn for his analysis, although he changes the terminology somewhat to mean Shar rights and urf rights.55 We may now proceed with the description of this classification.
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RELINQUISHMENT OF THE RIGHT OF ALLAH AND THE RIGHTS EXPRESSLY LAID DOWN BY THE SHARAH The general principle is that the rights of Allah, whether these are acts of worship like prayer and zakt, or punishments like udd, or those vacillating between punishments and acts of worship like kaffrt cannot be suspended by an individual, because the individual does not possess this right in reality. To these are added personal rights that have been specifically granted by the Sharah like: the right of the wal over the minor, the rights associated with fatherhood and motherhood, the right of the child over his parents and his lineage. These too do no accept relinquishment, that is, the individual does not possess the right to give up these rights.56 Thus, if an entire community gives up the call to prayer, it may be subjected to military action. The same applies to those who deny the payment of zakt. Likewise, pleading for forgiveness of udd is not allowed: Do you intercede in a add laid down by Allah, the Exalted.57 In cases where the right of Allah and the right of individuals are mixed, as in the case of qadhf, where the right of the individual is predominant, it is permitted by the Shfis and anbals that the victim may take back the charge. The anafs do not permit this either. Tazr offences may be forgiven. The anafs classify them as the right of the individual. The cases where certain rights have been laid down for the interest of the individual by express provisions of the Sharah, the individual does not have a right to relinquish the right. One example in this category is the wilyah of the father over the child, it cannot be suspended by the father.58 The right of residence during iddah for a woman cannot be suspended or relinquished. The husband or any other relative is not entitled to expel her from the house. The option of inspection (khiyr al-ruy is another example.59 It is established by a tradition: He who buys something that he has not seen has an option when he sees it. 60 Here the right is not established by the parties to the contract, but is laid down by the text. Thus, this right cannot be extinguished or relinquished. This rule applies to all cases where the right of Allah is found and the matter is expressly laid down by the Sharah. The important point to note here is that non-extinction of the right means that it is also not permitted to take any counter-value or
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compensation in exchange for relinquishment. Nor can these rights be set aside on the basis of settlement (ul). When the right has to be extinguished or relinquished, it is the Sharah itself that provides relief in cases of harm and hardship. In other words, these rights accept relinquishment by the Lawgiver Himself. Consequently, many acts of worship may be avoided where the Lawgiver has acknowledged hardship. Likewise, the udd are waived on account of shubah (doubt).61 The exemption granted is called a rukhah, with the most well known examples being curtailment of prayer during journey and the consumption of the prohibited food in duress. RELINQUISHMENT
OF THE
RIGHT
OF THE INDIVIDUAL
The right of the individual with respect to extinction and relinquishment is divided into: the ayn (chattel), benefits, debts and absolute rights that are neither chattel, benefits or debts. 62 The rule is that the owner of a thing is not prevented from the extinction of his right if he can undertake valid transactions in his property, that is, not being prevented through interdiction, where the subject-matter is lawful and the right of another person is not linked to it. 63 This rule is analysed by considering the various types of these rights as follows: 1. The ayn (chattel): The ayn is something that can be taken into physical possession and is always subject to ascertainment. It includes most things like clothes, real estate, land, houses, animals and all things measured and weighed.64 The owner of such property has the right to dispose of it as he likes through a valid contract or transfer by way of gift. With respect to extinction of the right in such property, the jurists maintain that if a person says I have extinguished my right in this house in favour of so and so, where he intends the extinction of his right of ownership and the establishment of the right of another, then, this is absolutely void. The reason is that ayn do not accept extinction (isq). This is the general rule, however, there are exceptions. The emancipation of a slave, for example, is considered extinction of the right of the owner and so also a waqf (charitable trust).65
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3.
4.
Debt (Dayn): A debt may be extinguished and compensation may be taken in lieu thereof, by agreement of the jurists, whether the debt has arisen from a price, a claim or reparation for an injury. The debt may be relinquished in whole or in part. 66 Al-Qarf considers compensation for relinquishment as isq through settlement (ul).67 Benefits (manfi): Benefits may be relinquished too whether the person relinquishing them is the owner of the property or merely the benefits.68 As for relinquishment in return for compensation, the majority of the schools distinguish between the exclusive right to manfaah and a restricted permission to use premises. The latter concerns permission to be in a madrasah, a mosque or a market. The former means property that can be rented out or given through a commodate loan.69 The anafs permit compensation where the person owns the raqabah as well as manfaah, that is, when he has exclusive ownership of the property.70 Absolute Rights: As stated earlier, these are rights that neither fall under the category of ayn, nor dayn nor debts. The right of pre-emption, options in contracts, the right of a wife in sharing conjugal rights, the right of qi, the right to the period of deferment (ajal), and so on. The rule for taking compensation for such a right according to the anafs is that no right is to be compensated unless it is attached to some property. As for relinquishment, according to the agreement of the jurists, where the right concerns the right of another person it cannot be relinquished, as in the case of a interdicted person due to insolvency. Some of these rights are a matter of disagreement as in the case of deferment.
Classification of Rights adopted by Taq Usmn and the Rules derived by him THE CLASSIFICATION
INTO
SHAR
AND
URF
Usmn in reality adopts the previous classification discussed by us, that is, on the basis of transfer and extinction of rights. Nevertheless, taking the que from the writings of the anaf jurists, he changes the heading into uqq shariyyah and uqq urfiyyah. The distinction is
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found in Ibn bidns book while discussing valuation.71 Briefly, the details are as follows: 1. Al-uqq al-Shariyyah: These are rights that have been established expressly by the Lawgiver, and analogy has no role in establishing such rights. These are divisible into two types: (a) Rights that have not been instituted primarily for the benefit of the individual, but only to protect him from injury. Examples are the right of pre-emption. This is a right given to a third party (other than the two parties to the contract) to prevent injury to him. Further, there is a right of the woman to shared conjugal rights, that is, where there is more than one wife. This right has been established to prevent injury to the woman. The rule for such rights is that they cannot be transferred for wealth by way of sale nor by way of settlement. They cannot be relinquished in lieu of wealth. 72 Rights that have been established primarily for the benefit of the individual and not merely to prevent injury to him. These are like qi, the conjugal rights of a husband over his wife, the right to inheritance and so on. The rule for these rights is that these rights cannot be transferred to another for compensation, like selling away the right so that the buyer comes to enjoy the right like the seller. The owner, however, can relinquish such rights in lieu of wealth by way of settlement. In this sense, the owner loses his right, but the right is not transferred to another.73
(b)
2.
Al-uqq al-Urfiyyah: Taq Usmn says that we may call these rights as urfiyyah as they are established for the owner by the ukm of urf and practice. These are legal rights insofar as the Islamic Sharah has acknowledged them due to custom and practice, but the primary source of these rights is urf and not the Shar. These are like the right of way, the right to water for drinking and irrigation.74 These rules are divisible into several types: (a) Rights available through benefiting from property: These are rights available through benefiting from material things. The anaf jurists have termed these rights as uqq
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(b)
mujarradah (pure rights). Some jurists have permitted their sale in absolute terms, others have prohibited it absolutely, while the third group has permitted it for some rights and prohibited it for others. These rights are like the right of way, the right of access to water (shirb), the flow (passage) of water through property, placing a beam on the neighbours wall, the right to construct the upper level on anothers lower building. The well known view of the anafs is that these are mere rights and it is not permitted to sell them. 75 The view of the majority schools in general is that it is permitted to sell these rights.76 The major difference, among others, is that according to the Hanafs most of these are rights attached to property and go with the property. According to the majority, these are benefits with independent existence and can be sold. Taq Usmn quotes a recent jurist, a commentator on the Majallah, al-Ats to show that these rights may be sold or relinquished in certain cases, as in the case of relinquishing the right to construct the upper storey. Other Types of Rights: Taqi Usmani then includes other types of rights in the urf category. These are: the right of first occupation (asbaqiyyah), like revival of barren land; the right to enter into a contract; relinquishing office; vacating premises (also called pagr in common paslance).77
DERIVED FROM THE
THE RULES
CLASSIFICATION
Usmn then attempts to derive rules after a lengthy discussion of rights in which he quotes many jurists of all schools. The rules are stated very briefly below: 1. Rights stipulated by the Sharah for protection of the individual from injury and not primarily for his benefit cannot be transferred for compensation under any circumstances, neither by sale nor by relinquishment through settlement. These are like the right of preemption. Expected rights that are not established at the moment, but will accrue later cannot be transferred through compensation under any circumstances. These are like the right of inheritance during the lifetime of the person from whom one will inherit.
2.
121
4.
5.
6.
The Shar rights that have been established ab initio for the benefit of the individual, but that do not accept transfer, cannot be sold for compensation by way of sale, however, they can be relinquished by way of settlement in lieu of wealth. The illustration is the right to claim qi, and the right of the husband to conjugal rights through khul. The urf rights that are based upon permanent benefits arising from corporeal property (ayn), like the right of way, can be sold without restriction according to the Shfis and the anbals, and it also appears to be so according to some Mliks. According to the later anafs, as long as these rights are attached to corporeal property they are legally wealth and can be sold and bought, like the right of way, provided there is no other obstacle to the sale like gharar and uncertainty. The right to construct the upper storey is not permitted for sale according to them as it is not attached to a stable corporeal property. It is, however, permitted to relinquish the right for wealth according to Ats. Urf (custom) has a role to play in establishing rights related to wealth, because financial value depends on what the people consider valuable. He places the burden of this statement on Ibn bidn. The preferred view, according to the anafs, with respect to relinquishment of office is that though this right cannot be sold, it can be relinquished in lieu of wealth. The same may apply to vacation of premises.
Analysing the Rules and simplifying the relevant Classification A few observations about the rules derived by Taq Usmn and the classification adopted by him for analysis of intellectual property rights is in order. After this we shall attempt to simplify the classification. OBSERVATIONS
ABOUT THE
RULES
AND
CLASSIFICATION
The observations are as follows: 1. The classification into Shar and urfi appears to have been adopted intentionally to convey the idea that the category of urfi is more or less a free area in which human desires and practices are acknowledged relatively easily. Consequently, if intellectual property rights are examined, they should not pose a big problem for they belong to the urfi category. Our observation is that everything
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2.
3.
4.
5.
is Shar whether it is established directly by the na (text) or is established indirectly through extension on the basis of qiys or other rational principles. Urf does not grant a license to declare anything we practice as legal, just because there is no direct text prohibiting it. Custom is not an independent source even in the Western law. It has to pass through the examination of the courts. The courts analyse it in the light of the rest of the law and other conditions and then declare it to be a valid custom that can serve as a basis for a rule; this is the meaning of judicial notice. In the Islamic law, many things have been declared lawful when their basis has been custom or practice, but they have had to pass through the sieve of Islamic legal principles whether these principles have been stated directly in the texts or have been derived from the various cases laid down in the law. These are what jurists like al-Ghazl have called the taarruft of the Sharah. Consequently, anything that is declared as valuable by human beings is to be respected, but it has to be examined in the light of all the principles of the Sharah that the jurists have spent centuries in elaborating. Thus, if Ibn bidn is stating that a thing is valuable when human beings consider it as lawful, it is merely a statement of a fact. It obviously does not mean that anything that humans consider valuable is to be automatically declared lawful and valuable in the eyes of the Sharah. We are sure that Taq Usmn is not implying this. As an example, we may quote the opinion of al-Ats relied upon by Taq Usmn to say that relinquishing the right to construct the top storey in lieu of wealth should be lawful. The argument advanced by al-Ats is that if it is not allowed this will be injurious for the person having the right to construct the top storey. If we note the first rule listed in the previous section, the Sharah has declared that where the right is stipulated for preventing injury to the owner it cannot be sold or relinquished, it should be a primary right. Further, al-Ats does not respond to the argument advanced by Imm al-Sarakhs that it involves gharar. We may add to this that here the right of another person is also attached to this and that is the right of the person who owns the lower storey. Finally, the classification is somewhat incomplete as it does not attempt to classify ownership rights pertaining to ayn and manfi.
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Having said that, it must be acknowledged that the attempt made by Usmn to justify intellectual property rights for Islamic law is perhaps the only serious attempt. It is to be noted that his father Mufti Shafi held a different view and did not permit the sale of intellectual property. Another attempt by the Federal Shariat Court is a bit superficial. A SIMPLE CLASSIFICATION We may now attempt to simplify the classification. The main issue in the above classifications is whether a right can be transferred by way of sale or relinquished by way of settlement or otherwise. We, therefore, say that rights may be divided into those that are: 1. Fully transferable: These are rights associated with the normal lawful corporeal property and the benefits arising from them. Normal sale contracts and contracts of hire cover this. Where no compensation is taken, these rights are transferred through gift, bequest and so on.
Rights
Can be relinquished in lieu of wealth Isq
Non-transferable through gift, sale and cannot be relinquished
Fully transferable through sale or gift
Qiss, conjugal right of husband, inheritance
Manfaah
Ihy al-maw t Relinquishing office vacation of prmises
Fig. 1 Rights in the Islamic Law
Urfi (May be sold (Sh fis and anabals) Right of way Shirb, beam on wall
For protection against injury Pre-emption shared conjugal rights, a nah, Wilyah
Ayn
Shar
Gift
Sale
124
3.
Rights that can neither be transferred nor relinquished: These are described above as Shar rights that have been laid down for the protection of the individual against injury. The examples are pre-emption, shared conjugal rights of a wife, anah (custody of child), and wilyah. Rights that can be relinquished by Agreement and sold according to Shfis and anbals: These are rights that are attached to the corporeal property and are called pure rights according to the anafs. They can be relinquished in exchange for wealth. According to the Shfis and anbals such rights may be sold. The main point to note is that except for vacation of office, all these rights are attached to some corporeal property. For the illustrations see previous section.
Arbn and the sale of a pure Right To the above discussion we may add that bay al-arbn has recently been permitted by the Islamic Fiqh Academy. Allowing earnest money means permitting the sale of pure right. The technical meaning is that goods are bought and a certain sum of money is given to the seller on the condition that if the buyer takes the goods the amount will be included in the price, but if he does not take the goods, the amount belongs to the seller.78 Sale with earnest money, however, is not permitted by the majority of the jurists, unless the money deposited is returned. This is the view of the anafs, the Mlik, the Shfis and even some anbals. They view this transaction to be void.79 This is based upon a tradition that says that the Prophet ( ) prohibited such a sale.80 The tradition has been declared weak by Ibn ajar, however, it is consistent with the system of ml developed by the jurists. It is disallowed due to several reasons. First, it is a sale with two additional conditions: the return of the sold commodity and the gift of the earnest money to the seller. It is also considered the usurpation of wealth through bil. In addition to this, it is the stipulation of an amount without compensation for the seller. The anbalis permit it on the basis of a single report, which implies that Umar (R.A.) agreed to such a transaction, thus, Amad ibn anbal upheld it. The tradition quoted by the majority is considered weak by
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them, however, al-Shawkn has preferred that tradition as it is supported by other channels.81 Nevertheless, the Islamic Fiqh Academy has adopted the anbal opinion and has resolved that sale with earnest money is permitted. Adopting such a rule will open the door for payment for pure rights, besides affecting other commercial transactions. It is likely to disturb the system of ml adopted by the earlier jurists. We may conclude this section with the following observations: 1. In the general discussion about rights, whether it is the discussion by the jurists, or by Mawln Taq Usmn, it is the discussion of pure rights (uqq mujarradah) that is most relevant to our study about intellectual property rights. Such pure rights are usually attached to property, like the right of way and access to water. Matters like relinquishing office and arbn may be the exceptions. Under pressure from modern needs, matters like arbn are already being considered legal. The idea of relinquishing or extinguishing such rights through isq does not really help us. We are interested in the unhindered disposal of such rights and transactions in them. A major point discussed in this section, and also in the previous section, is that of attaching value to things. This, according to some jurists, is a matter of the practice of the people. Thus, whether a thing is to be assigned commercial value is to be examined in the light of the practice of the people. Attaching value to things on the basis of the practice of the people, even though it is based upon custom or customary practice, cannot be accepted without question; it has to go through the repugnancy test in the light of the Sharah. Such legal analysis must be based upon sound legal reasoning rather than on mere assertions like injury and arar. It is obvious from the above discussion that the issue of such rights needs a much deeper analysis, especially the question of the impact that acceptance of pure rights as ml will have on the traditional structure erected by the fuqah. Such an analysis is beyond the scope of the present paper. It may be suitable for a doctoral dissertation.
2.
3. 4.
5.
6.
7.
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The Justification of Intellectual Property Rights in Islamic Law In this section, we shall first recall all the rules that we have tried to identify in the previous sections. After identifying the rules, we will present the arguments of those who have attempted to declare intellectual property rights to be valid from the Islamic perspective. Although there are many people who have issued such rulings, we will focus mainly on two sources as detailed arguments and reasoning have been provided in such sources. The first is a 1983 case decided by the Federal Shariat Court of Pakistan.82 The second is the comprehensive work of Justice Muammad Taq Usmn in his book referred to in the previous chapters.83 After presenting the arguments from these two major sources, we will identify the main arguments and analyse them objectively in the light of the rules and the discussion that has preceded in the previous sections. The methodology adopted here will, we hope, have the following benefits:
It will help us identify the stronger arguments that support the validity of intellectual property and the associated rights from the Islamic perspective. It will highlight those arguments that are either weak or do not help in affirming such validation and should not be repeated again and again. The methodology will help us identify those points that are very important, but have not been covered by the arguments of the scholars or the courts. These are areas that need to be addressed in all future legal reasoning in support of intellectual property rights.
Major points that should figure in legal reasoning RULES

FROM THE ANALYSIS OF PROPERTY IN
WESTERN LAW
After a detailed analysis of the Western concept and nature of property, its classification, the origin and scope of property rights and the various theories governing them, one may understand where intellectual property was accommodated. Three main points emerged from such study that are relevant, and important, for our purposes:
That the law regards all kinds of property as a right and analyses it in those terms.
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That one classification of property was that into choses (things) in possession and choses in action. Choses in possession are physical objects that we call ayn in Islamic law. By their nature such property is capable of being physically possessed. The owner is able to exert physical control in different ways. Choses in action are all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession. The law makes no attempt to consider them the same as, or similar to, choses in possession. Their nature depends on the type of legal action to be taken. Thus, they are merely actionable rights. That intellectual property is classified as choses in action. It is of no consequence for the law that intellectual property does not resemble choses in possession or tangible property. It is merely an action to be taken in case the right is infringed.
METHOD OF APPROACHING INTELLECTUAL
THE
PROPERTY RIGHTS
A few general rules from Western law may be stated before we summarize the rules of Islamic law. Some of these have been stated in the beginning of this paper. The purpose is to indicate the nature of intellectual property rights and how they should be approached for analysis.
Copyright law protects only the form of expression of ideas, not the ideas themselves. Can expression alone be protected under the Islamic law? Does it give rise to some kind of right that requires protection? If so, what is the nature of such a right? In patents and industrial designs, it is the underlying idea that is protected. How does the Islamic law protect an idea? Should copyright and patents be analysed together? In other things, it is either a mark, name, geographical name and so on. Each requires separate analysis from the Islamic perspective. Copyright consists of a bundle of rights. Some of these rights are passed on to the buyer, while others are retained. Moral rights remain with the original author, in the case of copyright, even when he has transferred his economic rights to another. This amounts to some kind of conditional and incomplete sale. Can this be permitted under the Islamic law?
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Copyright and patents are rights of limited duration. These rights can be inherited, but the life of the right remains the same. In Pakistan, copyright has a duration of 50 years after the death of the owner. In some countries this has been extended to 70 years. This is for the benefit of the heirs. The question is: can such a limit be imposed on the basis of the Sharah? The life of a patent varies depending on the model under which protection is granted. A trade name or mark may be renewed forever it appears (for a fee), but what is its real life? If the fee is not paid it expires. Patents and other rights are being extended to food and genetic material. What do the scholars have to say about such rights? Rights are granted for the protection of musical compositions, performances, choreography and so on. What position do the scholars take on such issues? A distinction has to be made between copyright sold to another, and a book sold to a buyer. Do the scholars make such a distinction? The owner of the copyright can sell the product again and again. In other words, the product has repeat value. It is the expression protected by copyright that is being sold again and again. What kind of right is involved here? Can one thing be sold again and again under the Islamic law?
FROM THE ANALYSIS OF PROPERTY IN THE
RULES
ISLAMIC
LAW
Here we will list the points emphasised by scholars like Justice Taq Usmn , as they consider them important for the analysis of intellectual property.
The first point is about the assigning of commercial value to rights or things so that they are considered ml. The basis for assigning such value is the practice of the people, that is, what they consider valuable is to be acknowledged by the law. It is like the merchant law and its practices. Nevertheless, al-Sarakhs has clearly stated that any urf that is to be acknowledged must not oppose a text. In our view, that should include its implication too where such implication is in the form of general principles derived from the texts.
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Taq Usmn has stated time and again that qiys (analogy) is to be given up when it is faced with urf (customary practice). We would like to agree to the extent that there are certain rights that are against analogy and these have been established by a text of the Qurn or the Sunnah. In such cases analogy has been ignored by the texts. An example is shufah (pre-emption). From this it should not be concluded that urf has to be accepted without analysis and analogy is to be given up outright. The example we quote here is from Imm al-Sarakhss statement reproduced in this study. He says that selling the right of shirb (access to water) opposes the texts that prohibit gharar. Now, this right has not been mentioned specifically in the texts of gharar, then how is Imm al-Sarkhs saying that it is opposed to gharar? It is obvious that he means the qiys or legal reasoning arising from the texts of gharar oppose the sale of such a right. We, therefore, find it difficult to accept Justice Usmns position on this issue. Another point is that all rights that have been called uqq (or mere rights) by the fuqah are attached to an ayn or corporeal property (land in this case) in a manner that they are treated as additional attributes that do not really affect the nature of the property itself. Here we may quote al-Sarakhs, who says: The basis of the issue in sales is that the price is in lieu of the primary property (al) and not the additional attributes. Thus, the loss of the additional attribute (waf) in the hands of the seller, without intervention of anyone, does not extinguish any part of the price. 84 Now, the earlier jurists did not permit the separate existence and sale of such rights. Some anbal jurists may have done so, but is their legal analysis sound and acceptable to the established schools? We will discuss this in the following section. When an inventor sells his invention to a financier, or when the copyright to a book is being sold to a publisher, what is the value of such an invention or literary work? At the time of sale no one knows what its value will be in the future. How much is it worth then and what value should be paid. This is called the problem of valuation in the law. Gharar is, therefore, inherent in such rights. It is to be noted that the law does not bother about this problem of valuation. The WIPO Handbook says: It will be
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protected whether it be considered, according to taste, a good or a bad literary or musical work and even of the purpose for which it is intended, because the use to which a work may be put has nothing to do with its protection.85 RULES
FROM THE ANALYSIS OF RIGHTS IN THE
ISLAMIC
LAW
At the end of a previous section, after a detailed discussion of rights in the Islamic law, we identified certain points for analysis. We may rephrase them here to complete our list:
In the general discussion about rights, whether it is the discussion by the jurists, or by Mawln Taq Usmn, it is the discussion of pure rights (uqq mujarradah) that is most relevant to our study about intellectual property rights. Such pure rights are usually attached to property, like the right of way and access to water. Matters like relinquishing office and arbn may be the exceptions. Under pressure of modern needs, matters like arbn are already being considered legal. Now, the validity of the sale or relinquishment of these pure rights of the latter type that are not attached to property is based entirely on the writings of later writers. In most cases detailed legal reasoning is lacking. Even when there is some legal reasoning, it sounds highly unconvincing and is based on shaky ideas of arar (injury). Should such opinions and such reasoning be made a basis of declaring things legal? In our view, such opinions should only be accepted after proper legal reasoning and justification. The idea of relinquishing or extinguishing such rights through isq does not really help us. We are interested in the unhindered disposal of such rights and transactions in them. We know that copyrights, patents and other things are freely transferable. Isq (relinquishment) is not going to provide valid justification. The problem of valuation discussed in the previous section applies here again in the context of commercial value that depends upon the assignment of such value by the people. This, according to some scholars, is a matter of the practice of the people. The issue is: are the people assigning a value to pure rights that are free of
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gharar? Apparently not. Here the point made by Imm al-Sarakhs above about additional attributes being without value is relevant. Further, attaching value to things on the basis of the practice of the people, even though it is based upon custom or customary practice, cannot be accepted without question; it has to go through the repugnancy test in the light of the Sharah. Such legal analysis must be based upon sound legal reasoning rather than on mere assertions like injury and arar.
In the four sections above, we have a long list of points that should be taken into account by scholars, while undertaking legal reasoning. We are sure that many other points can be raised when we go into the details of new forms of intellectual property that are being recognised almost on a daily basis, genetic information being a case in point. Nevertheless, this list will suffice for the purposes of our study. We may now try to identify the scholars who have tried to participate in this important debate. Scholars who have supported or opposed the Validity of Intellectual Property Rights Our study will not be complete if we do not identify some of the important scholars who have taken part in the discussions about intellectual property and have either opposed or uphold their legal validity and valuation. Justice Taq Usmn has provided a list of those scholars who upheld the validity of intellectual property rights, even though they discussed individual categories like trade names, trademarks or copyright. Most of the scholars he lists belong to the Indian Sub-Continent. The most notable among them are: Mawln al-Shaykh Fat Muammad al-Lakhnaw (the student of Imm Abd al-ayy al-Lakhnaw); Allmah Shaykh al-Muft Muammad Kifyat Allah; Allmah Shaykh Nim al-Dn, Muft of the Dr al-Ulm at Deoband; and al-Shaykh Muft Abd al-Ramn al-Ljpur. The Federal Shariat Court refers to the work of Ysuf Ms, al-Amwl wa Naariyyt al-Aqd 86 quoting him as an authority who upheld the validity of intellectual property rights. The Court also refers to Ysuf al-Qaraw.87 There are others too. In fact, a number of fatw have been issued declaring intellectual property
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rights to be lawful and their infringement a theft. Some of these can be located on the Internet. The main problem with such rulings is that they lack legal reasoning, sometimes completely. Among those who opposed the validity of such rights is the illustrious father of Mawlna Taq Usmn, the late Muft Shafi. Justice Usmn, however, maintains that his father on reading the research of his son was inclined to review his opinion.88 The Court mentions Abd al-Ramn al-bn in his book al-Madkhal al-Dirsat al-Tashr al-Islm and considers his opinion to be too rigid.89 The arguments advanced by the Federal Shariat Court for justifying Intellectual Property Rights The Federal Shariat Court invited comments of the public about the Trademarks Act, 1940 and twenty-two other Acts, through a notice dated 15.7.1982. The ulema did not respond to the notice, therefore, the Court proceeded to examine the law on its own.90 The issue, with respect to the Tademark Act, was: Whether a trade mark, a copyright or patent is property that is assignable and tranferable. 91 TRACING
EARLIER CONCEPTS OF PROPERTY
The Court observed that as the concepts underlying such property were developed after the Industrial Revolution, it is not possible to find a precedent for such property in the Sharah. The Court then proceeded to trace the development of the concepts of property and ownership, trying to show that these concepts have changed with the change in ideas.92 Until the 19th century these concepts were limited to corporeal property. The elements of such ownership were identified as control and exclusive use along with the right to exclude others from its enjoyment. 93 This changed too, and the Court quoted Roscoe Pound to show that formerly there were no reservations about the absolute rights of the owner, but gradually the restrictions on these rights as well as the rights of others were recognised.94 The Court noted that the initial concept of property was that of tangible or intangible property, or movable and immovable property in Europe, but in English law the main classification was that of real and personal property, which meant choses in possession
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and choses in action.95 The reasons for such a classification were identified by the Court through a number of definitions. WIDENING
OF THE DEFINITION TO INCLUDE
INTELLECTUAL PROPERTY
According to the Court, it was John Salmond, who for the first time widened the definition of property to include intellectual property rights.96 The Court considerers this a vast improvement upon the law of property, 97 Paton, as the Court notes, disagrees. He states: The distinction between land, houses and things under the land (which are corporeal) and such things as rents (which are incorporeal) may be a convenient one but tends to confuse. 98 After this Paton raises another objection, which in our view should be the major focus of Muslim scholars undertaking ijtihd today. The Court notes this, and Paton says: Once we speak of ownership of things which are not corporeal, where are we to stop? My reputation is in a broad sense but it would be straining language to say that I own that incorporeal res. It is perhaps a pity that the word ownership was not confined to corporeal things and another term used where incorporeal res are concerned.99 Thereafter, the Court makes an observation to identify the latest meaning property current in the West, especially in the U.S.A. 100 MEANING
OF PROPERTY IN THE
ISLAMIC
LAW ACCORDING TO THE
COURT
The Court then turns to the meaning of property in the Islamic law. Relying on some source, the Court observes that property or ml in the Islamic law is a thing which one desires and which can be stored to meet the future requirements.101 The Court then notes the crucial point that property is something that is assigned a value by the people. The criteria for determining whether a thing is property is that it be treated by mankind as property (ml) and a thing of value.102 The Court then notes the distinction drawn by the anaf jurists between a thing and its usufruct. There is ownership (milk) in the case of usufruct, but it is not property. The Court then dwells on the view of
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Imm al-Shfi as elaborated by Ysuf Ms. Referring to his opinion, the Court observes, He approved of this definition because the object is not really the corporeality of the property but the benefit derived from it and this is also in accordance with the usage and customs among people. This according to his opinion also corresponds to contemporary law.103 The Court adds further that according to Ysuf Ms: Everything from which benefit can be derived is property provided that the acquisition of benefit therefrom is not prohibited in the Sharah.104 The Court, after describing what is perfect and imperfect ownership according to the anafs, moves on to the views of Abd al-Ramn abn. Sabooni says that the definition of the jurists [that is, of property] is rather limited than the definition of ml or property in the contemporary law.105 The Court then comments on this saying: But this view is fallacious since it does not appear to take into account the much wider definition of Imm Shfi that everything is ml which fetches value if it is sold and if it is destroyed raises a liability for reparation. 106 The Court then implies that trade-marks, trade-names, patents and copyrights can all be included in this definition. 107 In support the Court refers to Ysuf al-Qarw, who appears to agree with this view. The Court also refers to Mawln Ashraf Ali Thnw, to Muft Kifyatullah, and also to the adverse comments in the Fatw Rashdiah and the work of Muft Shaf.108 Thereafter, the Court refers to an adverse comment published in a journal where validity of copyright is opposed on the ground that it is not lawful to sell knowledge. The article is by Dr. Ahmad al-Hijji Kurdi. The detailed views of the writer are reproduced and then the views are rejected by the Court. What is of interest for us here is that this analysis is quite similar to the analysis presented by Taq Usmn, but the analysis of the learned Court came earlier. CONCLUSION
BY THE
COURT
In the end, the Court gives its conclusion as follows: It is important to note that the definition of Imm Shfi as accepted by Mlikis and anblis has included in the category of ml (property), everything which has a money value. It was a great advance on the jurisprudence in the world of that age since for the first time only
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Salmond could arrive at an analogous definition. The definition from Imm Shafi corresponds to the modern definition which is found in the precedents referred to above from the judgments of the Courts. The provisions of the Act are not repugnant to the Sharah. 109 COMMENTS
ON THE ANALYSIS BY THE
COURT
The main points relied upon by the Court, for its conclusion, are the following:
Intellectual property rights are a new category of rights, and with the changing times the definition of property has to change to accept the new types as was done in the law, otherwise it will kill all kinds of incentive for creative activity. That the definition of ml is not based upon the Qurn and the Sunnah and has been given by each jurist according to his own lights.110 That property is considered as such when people assign it such a value according to their usage and custom. The definition of ml given by Imm al-Shfi is quite flexible and wide and should obviously, and does, include this new category of rights. As such this definition represents a great advance and matches the definition given much later by Salmond.
The effort by the Court is commendable. In fact, this case (decided in 1983) appears to provide source material for much of what Justice Taq Usmn said later. Nevertheless, we would like to make the following observations. 1. It cannot be denied that concepts should change over time to take stock of the new realities. This, however, does not mean that concepts be expanded blindly. All new concepts must be analysed and assessed in the light of the principles of the Islamic law before they are declared valid. It is obvious that the Qurn and Sunnah do not mention things like copyrights, trade-marks, trade-names, patents and so on. These new concepts have to be subjected to
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2.
3.
4.
analysis before they are taken into the fold of Islamic law. As far as analysis goes, the detailed list we have given above is not reflected at all in the analysis of the Court, except perhaps tangentially where sale of copyright to a publisher is considered. If we start accepting concepts without proper analysis, the entire structure of Islamic law can be destroyed. Here the words of Paton quoted above may be reproduced: Once we speak of ownership of things which are not corporeal, where are we to stop? We find it difficult to agree with the statement of the Court that the jurists have come up with the definition of property according to their own lights. Without referring to the Qurn and the Sunnah. In fact, the Court has not tried to analyse why the anafs do not consider manfaah to be ml or why the majority of the jurists do. We may mention just one tradition here that does play a role in these definitions: Do not sell what you do not have. The statement that property is something to which the people assign value is true, but it has to be qualified. Such assignment of value must not oppose the texts or their implications, which means the acknowledged principles of the Islamic law as well. For this purpose, the discussion of urf and its acceptance above may be seen. We feel that the definition given by the Shfis has been unduly stretched. Yes, the Shfis do accept manfaah as ml, but they do not consider pure rights to be ml. This discussion has preceded in the earlier section. Reliance on Imm al-Shfis opinion for this purpose is, therefore, of no practical value here.
The Arguments advanced by Mawln Muammad Taq Usmn for justifying Intellectual Property Rights It may be stated at the outset that most of the arguments advanced by Taq Usmn, as well as the sources relied upon him, are quite similar to those stated in the case decided by the Federal Shariat Court 1983 and discussed above. This is not to imply that the material is identical or the arguments are exactly the same. Justice Usmn has presented the arguments with greater sophistication based upon his superior knowledge of the Islamic law.
Hamdard Islamicus ANALYSIS

OF
137
NAME AND
TRADE
TRADEMARK
Justice Usmani, after discussing rights and their relinquishment in detail, takes up the discussion of trade name and trademark first. 111 He tries to show first that even though trade names and trademarks are not tangible property, yet they have been accepted by traders as having value in the mercantile practice. 112 The main idea behind this argument is that, in his view, a thing acquires value if it is assigned value through urf.113 He relies on the statement of Mawln Ashraf Al Thnwi, who draws an analogy upon the right of office, to strengthen his argument. 114 The reason why protection of such names and marks was needed is explained in his own words below: When it appeared that some people started using the names of manufacturers who were well known among consumers, due to the acceptance of their goods under such a name, and it was feared that confusion would be created for the people in general, laws were made by governments for the registration of trade names and trademarks with the government. Traders were prevented from using trade names and trademarks that had been registered by others. Mawln Thnwi, however, restricts the permission to relinquishment and concludes that compensation be given for it in lieu of relinquishment, but not sale, because it is an established right, or a benefit (manfaah) that has accrued from an existing tangible property. 115 To allow the sale of such names and marks, Justice Usmn advances the second argument. He considers it to be a strong argument. The argument is that after registration this value is affirmed and in fact the certificates of protection in the hand of the bearer make them quite similar to tangible property. He says: It appears to this humble servant, may Allah protect him, that the right to a trade name or trademark, even though it was originally a pure right that was not established in an existing tangible property, but after governmental registration which requires immense efforts and the incurring of substantial amounts, acquires a legal form that
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resembles transcribed certificates in the hand of the bearer. In the official registers it resembles a right established in tangible property. It is, therefore, linked in mercantile practice with tangible property. It is, therefore, necessary that compensation be paid in lieu of it by way of sale as well. With due respect for the erudition of Justice Usmn, we find it difficult to accept these arguments. First of all certificates are not tangible property, they are choses in action as has been elaborated above. The Companies Ordinance, 1984, following an Indian amendment, declares a share certificate as movable property, but that rule has not been tested by the courts nor is its rationale visible. Second, these are not legal arguments. They may be adequate to convince a layman, but they cannot be considered legal reasoning. Third, even if this argument is considered adequate legal reasoning, it has nothing to do with the Islamic law. It amounts to saying the following: The Government of the United States has registered it and issued a receipt or a certificate, therefore, it is Islamic and can be sold under the provisions of the Islamic law. How can such an argument hold water? Usmn then adds that the registration should be done in a lawful way and there should be no element of deception. This, we feel, is merely window-dressing for a very weak legal argument. We may also mention here that he argues on the basis of custom and how it has dealt with electric power and gas, things that were not once accepted as wealth, but are now a source of tremendous wealth. This again is a weak analogy. The two things are distinguished. Electric power and gas, whatever their nature, are tangible property for they can be felt and stored. His conclusion is: It, therefore, appears that there is no Shar obstacle for their being treated as wealth whose sale and purchase is permissible.116 LEGAL
VALIDITY OF COMMERCIAL LICENSES
One would have thought that Usmn would be discussing trademark licensing117 and franchising118 of businesses under this heading. He, however, chose to discuss import and export licenses.
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His solution for such licenses is simple: What we have said about the rule (ukm) of the trade name and trademark, as to the permissibility of taking compensation for them, is true of the commercial license as well.119 To justify the legality of such licenses, he uses an argument quite similar to the one above: The bearer is granted a legal attribute that resembles written certificates, and the traders, by virtue of it, are granted facilities that are bestowed by the government on the bearer. This license has become, in mercantile practice, something with immense value that is treated like property. Accordingly, there is no harm if it is linked to tangible property for the permissibility of its sale and purchase.120 He does add that such transfer is to be allowed if there is a governmental regulation that permits the transfer of this license to another person.121 Our response to these arguments is exactly the same as the one above: they have nothing to do with the Islamic law. At the end we may add that obtaining import and export licenses in Pakistan was once a big problem. It is no longer a problem and the permits are freely available to any trader. JUSTIFYING
THE RIGHT TO INVENTION AND PUBLICATION
Under this heading, Usmn, while addressing the fundamental point in the issue whether the right to an invention or the right to publish is a right acknowledged by the Sharah, gives the following arguments.
Whoever first invents a new thing, whether it is a material thing or immaterial, possesses a prior right as compared to another. The basis is what has been recorded by Ab Dwd from Asmar ibn Mudris (God be pleased with him), who said: Whoever has first access to a thing not accessed by another, has a right to own it. The tradition, it is claimed, applies not only to revival of barren lands (iy al-mawt), but includes all tangible property, wells and minerals. Thus, whoever acquires them first has a right to own
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them.122 This argument presumes that the right to invention and copyrights are property. Not only this, the argument is taken to be proof of ownership in the Sharah.123 The relinquishment of the right to a seat in the mosque is taken to mean that it is permitted to relinquish the right to an invention or the right to publication in favour of another in return for money acquired by the person relinquishing.124 When this right is acquired by registration with the government for which the inventor spends in terms of effort, wealth and time, then there can be no doubt that this registered right is linked to tangible property and wealth due to the verdict of this prevalent practice. 125 Commercial value, according to Ibn bidn, is attained through assignment of such value by the people. This right, after registration, is taken into possession like tangible property, and is stored for the time of need like other tangible property. In the consideration of this urf, there is no opposition to any Shar text of the Qurn or the Sunnah. The maximum that can be said is that it is opposed to analogy when qiys is given up in the face of urf, as has been established during its discussion.126
Following these arguments, Justice Usmn takes up some weak arguments of those scholars who do not permit the sale of such rights. He responds to them in a manner that is adequate for the layman, but there is no legal content in them, therefore, the arguments do not merit consideration here. COMMENTS
ON THE
ANALYSIS
BY
TAQI USMN
The comments for this section are more or less similar to what was said for the analysis by the Federal Shariat Court of Pakistan. We give our observations below in the form of a list. Matters that have not been examined are listed first followed by analytical comments on those that have been considered.
No distinction has been made with respect to copyright with reference to the fact that copyright law protects only the form of expression of ideas, not the ideas themselves. The Islamic law must give a ruling on what it is protecting.
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Likewise, in patents and industrial designs, it is the underlying idea that is protected, but there is no indication of the awareness of this fact nor is there an indication of what exactly is being protected. Both patents and copyright have been analysed together. This appears to be an inappropriate methodology as the two are quite different in nature. Many other things that fall under intellectual property rights have not been included in the analysis. As indicated earlier, copyright consists of a bundle of rights. Some of these rights are passed on to the buyer, while others are retained. Moral rights remain with the original author, in the case of copyright, even when he has transferred his economic rights to another. Retaining such rights prevents the buyer from altering the contents of the work at his discretion. There is no discussion of such a distinction in the above analysis. There is also no discussion about the limited duration for which copyrights and patents are protected. Does the Islamic law admit of such a concept? There is no discussion in the analysis above. Nor is there any discussion about the renewal every year of a trade name or mark for a fee. What kind of right would this be under the Islamic law? The extension of patents and other rights to food and genetic material has not been taken into account. There is also no discussion about the granting of protection to musical compositions, performances, choreography and so on. These rights fall under copyright. In the analysis, no distinction has been made between copyright sold to another, and a book sold to a buyer. The latter issue alone has been discussed. The owner of the copyright can sell the product again and again. This repeat value of the product has not been taken into account. The arguments advanced in the analysis are not really legal arguments. There is no indication of why the jurists do not acknowledge pure rights for unhindered sale. After all, there must be some substantial reason. We have already indicated this in the discussion above. Unhindered urf has been taken into account for assigning value to
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new types of rights. This is not so in the Islamic law, as discussed above, and each urf must tally with the general principles of the Islamic law that have arisen from the texts. Registration by the government of such rights has been taken to be the main argument and is deemed sufficient to be considered a mere right as tangible property. This does not appear to be a legal argument, and in our view is mere insistence upon the granting of legal recognition to a right. Some other problems have already been discussed above.
Fatw validating Intellectual Property Rights A large number of fatw (legal rulings) are to be found on the Internet as well as in other sources. In most of these rulings there is just an acknowledgment that it is not proper to violate intellectual property rights. Some of the rulings even declare such violations to be theft. We have not included these rulings in this study as it will unnecessarily add to the length of the study without contributing much to the content. The main reason is that these rulings lack legal reasoning underlying the verdict. Consequently, they are not of much help to us. We have, therefore, considered the two main analyses discussed above to be sufficient. Conclusion This study has been an assessment of the contributions made to the law of intellectual property rights by the Muslim scholars. Such an assessment first needed to analyse the meaning of property in the Western law and its relationship with intellectual property itself. The study also needed to examine the state of the law of property and related rights in Islam so that a comparison could be made with respect to the gaps that need to be filled. Finally, the study needed to look at the contributions made by the Muslim scholars and institutions to the justification and legal validity of intellectual property rights. In broad terms, the study concluded that enough has not been done and tremendous amount of research and ijtihd is required in this field so as to fully justify such rights from the Islamic perspective.
Hamdard Islamicus Notes and References

1.
143
2. 3.
4. 5. 6.
WIPO, WIPO Intellectual Property Handbook: Policy, Law and Use, 2nd ed., Geneva, WIPO Publication No. 489 (E), 2004, p. 422 [hereinafter referred to as WIPO, IP Handbook]. According to William Fisher, The term intellectual property refers to a loose cluster of legal doctrines that regulate the uses of different sorts of ideas and insignia.The economic and cultural importance of this collection of rules is increasing rapidly. The fortunes of many businesses now depend heavily on intellectual-property rights. A growing percentage of the legal profession specializes in intellectual-property disputes. And lawmakers throughout the world are busily revising their intellectual-property laws. William Fisher, Theories of Intellectual Property, http://www.law.harvard.edu/faculty/tfisher/ iptheory.html (last visited May, 2008). WIPO, Fundamentals of Intellectual Property (IP) Management by Small and Medium Sized Enterprises (SMEs) (2002), 2. Strategic Council on Intellectual Property, Intellectual Property Policy Outline, July 3, 2002, http://www.kantei.go.jp/foreign/policy/titeki/kettei/ 020703taikou_e.html (last visited January, 2008). WIPO, IP Handbook, p. 448. Goldberg v. Kelly, 397 US 254 at 262 (1970). Intellectual property means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. WIPO, WIPO Handbook, 3. Such intellectual property is protected by laws in most countries. The reason for such protection are two: (1) To give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. (2) To promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development, ibid. In order to identify the various types protected, the WIPO Handbook refers to the Convention establishing WIPO; namely, the Convention Establishing the World Intellectual Property Organization (WIPO) that concluded in Stockholm on July 14, 1967. It states that Article 2(viii) of the instrument provides that [I]ntellectual property shall include rights relating to: literary, artistic and scientific works, performances of performing artists, phonograms and broadcasts, inventions in all fields of human endeavor, scientific discoveries, industrial designs, trademarks, service marks and commercial names and designations, protection against unfair competition,
and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields, ibid.
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07.
144
08.
09.
10.
11.
Article 2(viii) of the Convention Establishing the World Intellectual Property Organization (WIPO), mentioned in the note above, states that literary, artistic and scientific works belong to the copyright branch of intellectual property, ibid. Thereafter, the areas mentioned as performances of performing artists, phonograms and broadcasts are usually called related rights, that is, rights related to copyright, ibid. The areas mentioned as inventions, industrial designs, trademarks, service marks and commercial names and designations constitute the industrial property branch of intellectual property, ibid. The expression industrial property covers inventions and industrial designs. Inventions are new solutions to technical problems and industrial designs are aesthetic creations determining the appearance of industrial products, ibid. In addition, industrial property includes trademarks, service marks, commercial names and designations, including indications of source and appellations of origin, and protection against unfair competition. Scientific discoveries are not the same as inventions. The Geneva Treaty on Scientific Discoveries defines a scientific discovery as the recognition of phenomena, properties or laws of the material universe not hitherto recognized and capable of verification. Article 1(1)(i), The Geneva Treaty on the International Recording of Scientific Discoveries (1978). Inventions are new solutions to specific technical problems. Protection against unfair competition may also be considered as belonging to the industrial branch. Unfair competition was acknowledged as related to intellectual property in 1967, where any act of competition contrary to honest practices in industrial and commercial matters constitutes an act of unfair competition (Article 10bis[2]). In inventions it is the idea that is protected, while in copyright it is the expression and not the ideas that are protected. Inventions may be defined in a non-legal sense as new solutions to technical problems. These new solutions are ideas, and are protected as such; protection of inventions under patent law does not require that the invention be represented in a physical embodiment. WIPO, Understanding Copyright and Related Rights, Publication No. 909, p. 6. The protection accorded to inventors is, therefore, protection against any use of the invention without the authorization of the owner. Even a person who later makes the same invention independently, without copying or even being aware of the first inventors work, must obtain authorization before he can exploit it, ibid. Unlike protection of inventions, copyright law protects only the form of expression of ideas, not the ideas themselves. The creativity protected by copyright law is creativity in the choice and arrangement of words, musical notes, colors and shapes. So copyright law protects the owner of property rights against those who copy or otherwise take and use the form in which the original work was expressed by the author, ibid. One important point to be made is that the law does not give permanent rights to intellectual property rather it grants time-limited rights. This point can pose
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12.
13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41.
a real problem in Islamic law, and may become difficult to justify. The WIPO Handbook points out that the law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions, ibid. It adds that the rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such, ibid. It is to be noted that the word ml sometimes conveys the meaning of the term wealth, and by this we mean property that is subject to zakt. This meaning does not include land, as that is subject to ushr and kharj. Mib al-Munr, s.v. ml. Ibn bidn, Radd al-Mutr, Cairo, 1386-89/1966-69, vol. IX, pp. 4-3. Ibid. Al-Shib, al-Muwfaqt, Cairo, al-Maktabah al-Tijriyyah al-Kubra, 1975, vol. 2, p. 10. Ibn al-Arab, Akm al-Qurn (Cairo, Dr Ihy al-Kutub al-Arabiyyah, s al-Bb al-alab wa-Shurakuh, 1957-58 and 1967-68), vol. II, p. 607. Lisn al-Arab, al-Qmus al-Muht, Mib al-Munr: s.v. milk. R.W.M. Dias, Jurisprudence, London, Butterworths, 1979, see chapter on ownership. Imran Ahsan Khan Nyazee, Outlines of Islamic Jurisprudence, Islamabad, Federal Law House, 2005, p. 214. Ibid. This is based on a tradition implying that all mankind are partners in three things: water, grass and fire. Al-Qarf, al-Furq, Beirut, 1343, vol. 3, p. 209. Nyazee, Outlines of Islamic Jurisprudence, p. 214. Ibid. Ibid., p. 216. Ibid. Ibid. Ibid. Ibid. See al-Sarakhs, al-Mabs, vol. XV, p. 132. Nyazee, Outlines of Islamic Jurisprudence, pp. 216-17. Ibid., p. 217. Ibid. Ibid. See also al-Sarakhs, al-Mabt, vol. XV, pp. 82-83. Nyazee, Outlines of Islamic Jurisprudence, p. 217. Ibid. Earnest money (arbn) is discussed below. Nyazee, Outlines of Islamic Jurisprudence, p. 217. See Mib al-Munr, s.v. qumah. Ibn bidn, Radd al-Mutr, vol. IV, pp. 51, 166.
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42. 43. 44. 45.
146
Al-Ksn, Badi al-ani, vol. VII, pp. 15051; Majallat al-Akm al-Adliyyah, art. 145. Al-Sarakhs, al-Mab, vol. XV, p. 101. Ibid., vol. XIV, pp. 16162. See Muhammad Taqi Usmani, Buth fi Qay Fiqhiyyah Musarah, 2 vols., Karachi Maktabah Dr al-Ulm, vol. I, pp. 72-125, 93-94, Bay al-uqq al-Mujarradah [hereinafter referred to as Taq Usmn, uqq Mujarradah]. Al-Sarakhs, al-Mab, vol. XIV, p. 135. It is to be noted, however, that: The subject-matter of copyright protection includes every production in the literary, scientific and artistic domain, whatever the mode or form of expression. For a work to enjoy copyright protection, however, it must be an original creation. The ideas in the work do not need to be new but the form, be it literary or artistic, in which they are expressed must be an original creation of the author. And, finally, protection is independent of the quality or the value attaching to the work it will be protected whether it be considered, according to taste, a good or a bad literary or musical work and even of the purpose for which it is intended, because the use to which a work may be put has nothing to do with its protection, WIPO Handbook, 52 (Emphasis added). See Muammad Taq Usmn, Bay al-uqq al-Mujarradah, vol. I, pp. 72125. Rights are subjected to different classifications on the basis the perspective adopted. Some of these classifications, see Mawsah Kuwaytiyyah, s.v. aqq, vol. XVIII, p. 13): 01. 02. 03. 04. 05. 06. 07. 08. 09. 10. 11. 12. 13. From the perspective of the right being binding or permissible. From the perspective of the right being of general benefit or individual benefit (right of Allh and right of the individual). From the perspective of the ability or inability of the individual to relinquish the right. From the perspective of the underlying meaning of the right being rational or a matter of ritual obedience. From the perspective of each right containing an element of both the right of the individual and the right of Allah. From the perspective of the right pertaining to worship or to human practices. From the perspective of the right being perfect or imperfect. From the perspective of the claim underlying the right being limited or unlimited. From the perspective of the right being determinate or indeterminate. From the perspective of the right being qualified or unqualified. From the perspective of the right being communal or universal. From the perspective of the right being, or not being, subject to inheritance. From the perspective of the right being financial or non-financial.
46. 47.
48. 49.
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From the perspective of the right being justiciable or moral. From the perspective of the right being temporal or pertaining to the hereafter.
50.
According to Fakhr al-Islam al-Bazdawi, the source of these classifications is either from the point of view of the owner of the right, or from the point of view of the one from whom it is claimed, or it is in the light of the object of entitlement or the thing to which the right is related. Abd al-Azz al-Bukhr, Kashf al-Asrr, Beirut, n.p., n.d., vol. III, p. 157. The jurists employ the term aqq or right in different meanings. Some of these meanings are given below: 1. 2. 3. 4. 5. The application of the term to mean rights that pertain to financial claims as well as non-financial claims. The legal effects or obligations that flow from contracts. These are like entitlement to price or delivery of the commodity. The stipends given to the jurists, the judges and other officials from the treasury. Easements and servitudes pertaining to landed property. These are like the right of way, the right to water for drinking and irrigation. Pure rights (uqq mujarradah). These are like the right to acquire property, the option available to the buyer or the seller, the right of divorce possessed by the husband.
51. 52.
53. 54. 55. 56.
57. 58. 59. 60. 61.
The general view is that a right exists where the Sharah grants such a right. Where the Sharah does not grant a right there is no right. See Lisn al-Arab, s.v. aqq. See also al-Mib al-Munr and Tarft by al-Jurjn. Al-Sarakhs, Ul, vol. II, 332; adr al-Sharah, al-Tawh, vol. II, 729 passim; al-Bukhr, Kashf al-Asrr, vol. IV, pp. 134-35; and Ibn al-Qayyim, Ilm al-Muwaqqan, 4 vols., (Beirut, 1973), vol. I, p. 108. See al-Jurjn, Tarfat, Cairo, n.p, n.d, s. v. aqq. Ibn Nujaym, al-Bar al-Riq, vol. VI, p. 148. Taqi Usmani, uqq Mujarradah, pp. 72-125. Al-Ksn, Badi al-ani, vol. VII, pp. 55-56; al-Shib, al-Muwfaqt, vol. II, 376; al-Qarf, al-Furq, vol. I, pp. 140-41, 195. In addition to these sources see al-Mawsah al-Kuwaytiyyah, vol. XVIII, s.v. aqq, 21. In fact, we have relied on the excellent discussion in the Mawsah for this presentation. Al-Bukhr, a, vol. XII, p. 87; Muslim, a, vol. III, p. 1315. Al-Ksn, Badi al-ani, vol. V, p. 152, vol. VI, p. 48. Ibid., vol. V, p. 292; al-Marghnn, al-Hidyah, vol. III, p. 32. It is recorded by al-Drqun, vol. III, p. 5. See Al-Ksn, Badi al-ani, vol. VII, p. 61; al-Qarf, al-Furq, vol. IV, p. 172.
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62. 63. 64. 65. 66. 67. 68. 69. 70. 71.
148
72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97.
Al-Ksn, Badi al-ani, vol. VI, pp. 42-48. Ibid., p. 263 Ibid., p. 43. Ibn Nujaym, al-Ashbh wa-al-Nair, p. 352. Al-Ksn, Badi al-ani, vol. V, pp. 203, 314; al-Dusq, ashiyah, vol. II, pp. 220, 310; Ibn Qudmah, al-Mughn, vol. V, p. 22. Al-Qarf, al-Furq, Qidah, No. 30. Al-Ksn, Badi al-ani, vol. VII, p. 227. See al-Qarf, al-Furq, Qidah, No. 30. Al-Ksn, Badi al-ani, vol. VI, pp. 189-220; al-Marghnn, al-Hidyah, vol. IV, p. 253. He says: It is urfi and this is through gathering. The ungathered thing like hunt and grass is not mutaqawwam. And it is shar through permission of utilisation. He indicates that the classification is in Talw. The classification is also found in texts of jurists like al-Sarakhs and al-Ksn. Taq Usmn, uqq Mujarradah, pp. 7677. Ibid., pp. 78-80. Ibid., pp. 80-81. Ibid., p. 81. Ibid. Ibid., pp. 97-115. Al-Dardr, Shar al-Kabr al al-Mughn, vol. IV, p. 58. Al-Mawsah al-Kuwaytiyyah, s.v. arbn. See Ab Dwd, Sunan, vol. III, p. 786. Al-Shawkni, Nayl al-Awr, vol. V, pp. 154-55. In re: Trade Marks Act (V of 1940) and 22 Other Acts, PLD 1983 FSC 125. See Muammad Taq Usmn, Bay al-uqq al-Mujarradah, vol. I, pp. 72-125. Al-Sarakhs, al-Mabt, vol. XIV, p. 135. WIPO Handbook, 52. (Emphasis added). At page 162, quoted in PLD 1983 FSC 125, 132. PLD 1983 FSC 125, 134. See Muammad Taq Usmn, Bay al-uqq al-Mujarradah, vol. I, p. 125. PLD 1983 FSC 125, 134. Ibid., p. 127. Ibid., p. 127. Ibid. Ibid. Ibid., p. 128. Ibid. John Salmond, Jurisprudence, 12th ed., p. 110 quoted in PLD 1983 FSC 125, 129. Ibid., p. 129.
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098. Paton, Jurisprudence, p. 458 quoted in PLD 1983 FSC 125, 129. 099. Paton, Jurisprudence, p. 458 as quoted in PLD 1983 FSC 125, 129-30 (emphasis added). 100. PLD 1983 FSC 125, 130. The Court cites a number of cases in support of this statement: Eric v. Walsh, 61 A 2d 1, (4); 135 Conn. 85; Todeva v. Iron Min co., 45 N.W. 2d 782 (788); 232 Minn. 422; Waring v. Dunlea, DCNC 26 F. Supp. 338 (340); Button v. Hikes, 176 S W 2d 112 (115, 117) 296 Ky. 163; 150 ALR 779; Bogan v. Wiley, 202 P. 2d 824, (827); 90 Cal. App. 2d 288; Department of Insurance v. Motors Ins. Corpn. Ind. 138 NE 2d 157 (163); Button v. Drake, 195 SW 2d 66 (68, 69); 302 Ky. 517; 167 ALR 1046; and Downing v. Municipal Court of City and County of San Fransisco, 198 P. 2d 293 (926, 927); 88 Cal. App. 2d 345. 101. In our view, the source is Ibn bidn, Radd al-Muar, Cairo, 1386-89/1966-69, vol. IV, p. 3. 102. PLD 1983 FSC 125, 131. 103. The reference is to the work of Yusuf Musa, al-Amwl wa Naariyyat al-Aqd, p. 162, quoted in PLD 1983 FSC 125, 132. 104. Ibid. 105. Ibid., p. 134. 106. Ibid. 107. Ibid. 108. Ibid., p. 135. 109. Ibid., pp. 137-38. 110. Ibid., p. 137. For this the Court relies on the comments of Sabuni. 111. Muammad Taq Usmn, Bay al-uqq al-Mujarradah, vol. I, p. 116. 112. Ibid., p. 117. 113. This point has been discussed several times above. 114. Ibid., p. 18. 115. Ibid., p. 117. 116. Ibid., p. 119. 117. The WIPO Handbook says: It is common practice for trademark owners to license third parties to use their trademarks locally in the country where they exercise their own business. However, the main importance of the possibility of licensing the use of trademarks lies in its usefulness in international business relations. Licensing is indeed the principal means whereby the trademarks of foreign companies are used by local businesses. WIPO, WIPO Handbook, p. 94. 118. Even if the term franchising is unfamiliar to most consumers, they are familiar with the results of franchising. The most widely known results of franching appear to be fast-food restaurants, hotels or cosmetic retail shops. Franchising extends, however, to industries as diverse as the hiring of formal wear, car tuning, the preparation of taxation statements or returns, lawn care, day-care schools and dentistry. In short, it may apply to any economic activity for which a system
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119. 120. 121. 122. 123. 124. 125. 126.
can be developed for the manufacture, processing and/or distribution of goods or the rendering of services. It is this system that is the subject matter of franching, ibid., p. 97. Muammad Taq Usmn, Bay al-uqq al-Mujarradah, vol. I, p. 120. Ibid. Ibid. Ibid., pp. 122-22. Ibid., p. 122. Ibid. Ibid. Ibid.
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PAS AND ITS ISLAMIST FUNDAMENTALISM IN MALAYSIA

DR. IBRAHIM ABU BAKAR Associate Professor, Department of Theology and Philosophy, Faculty of Islamic Studies, National University of Malaysia, 43600 UKM Bangi, Selangor, Malaysia. e-mail: abi@ukm.my
Introduction Islamist fundamentalism is one of the categoriesin Islamic contemporary thought. PAS is a Malay political name for Parti Islam SeMalaysia or Pan-Malaysian Islamic Party (PMIP) in English language. This short study is an attempt to prove that the doctrines and approaches of PAS in Malaysia fallspecifically within the Islamist fundamentalism. PAS adamantly and persistently states that it wants to establish Islamic state in Malaysia through a democratic political system. Islamic government remains PAS goal and PAS is going to establish an Islamic state in Malaysia when the time comes as stated by Husm Ms and Abdul Hd Awng (Hamidah, 2009). Politically, Malaysia is a democratic parliamentary polity led bythe prime minister and his cabinet whose political parties have secured the majority votes in each Malaysian federal general election. The Malaysian federal election is for the registered Malaysian voters to elect the members of Parliament. The state level election is for the registered Malaysian voters to the members of State Legislative Assemblies. The political parties that win the majority votes at the state level election form the government and rule the state until next state election. Normally, Malaysia holds the state and federal general elections every four or five years. During the federal and state elections held in March 2008, for
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example, the loose alliance of the opposition parties namely Parti Keadlian Rakyat (PKR) or (People Justice Party), DAP (Democratic Action Party) and PAS won the majority votes against the political parties in Barisan Nasional or the National Front in the states of Kelantan, Pulau Pinang, Kedah, Perak and Selangor. The three political parties namely Parti Keadlian, DAP and PAS became the ruling parties in those five states. The member of DAP became the Chief Minister in Pulau Pinang, the members of PAS became the Menteri Besar* in Kelantan, Kedah and Perak while the member of PKR became the Menteri Besar in Selangor after the 12th Malaysian federal and state elections held in March 2008. PAS has been the ruling political party in Kelantan for many years before the 2008 election. PMIP has had many supporters and voters in the three statesof Kelantan, Terengganu and Kedah prior to the 2008 general election. Hence, this study has chosen PAS for at least five reasons for discussion. First, PAS is the only religion-based political movement in Malaysia. Its name has the direct link with Islam. No other political party in Malaysiais directly religion-based political movement. The political party nearest to PAS is the United Malays National Organization (UMNO). However, the name of UMNO does not have a direct link with the religion of Islam but with Malay nationalism even though the Malays in Malaysia are Muslims as stated in the Federal Constitution of Malaysia. Second, PAS has existed and been active in the Malaysian political arena even before the independence of Malaya in 1957: itdemanded the independence of Malaya from the British rule and colonial status.Third, politically and religiously PAS has been the opposition party to UMNO in state and federal elections although both political parties are Malay based-political movements or the Muslim based-political movements in Malaysia. Fourth, due to the Malaysian politico-ethnic and economic situations after May 1969, PAS joined the National Front from 1973 to 1977 and put aside its opposition against UMNO. The leader of PAS at that time was Mohamad Asri Muda and the leader of UMNO and of the National Front was Abdul Razak Hussain, Malaysian second prime minister after Tunku Abdul Rahman.
*Menteri Besar: In Malay language: Grand Minsiter. It is the Chief Executive of the state government in all the states of Malaysia with royal rulers Ed.
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Fifth, PAS is the religion-based political movement in Malaysia that has emphasized different ideologies and strategies at different times in its long history from its formation in 1950s to the years in 2000s. It has shifted from Islamic traditionalism and Malay nationalism to political Islam and Islamist fundamentalism. This study does not pretend to provide a complete and comprehensive history of PAS in all aspects since there have been many published studies about it. PAS has attracted a number of scholars and writers to study its history and ideologies. Some of the published studies on PAS are those by Farish A. Noor (2002), (2003) and (2004), Alias Mohamad (1978), (1987), (1991) and (1994), Ibrahim Abu Bakar (1993) and (2002), Bachtiar Djamaly (1976), Ibn Hisham (1993), Mansor Zakariya (1980), N.J. Funston (1980), Halim Mahmood (1983), and Safie Ibrahim (1981). This study is different from the previous studies mentioned here because its main focus is to tracehow PAS is an unambiguousfundamentalist religion-based political movement in Malaysia based on its leaders politico-theological doctrines and its election manifestoes. Moreover, this study looks into similarities between the politico-theological doctrines of PAS and those found in Muslim fundamentalism. Origins and Early Doctrines of PAS Historically and chronologically, PAS originated from the izbu Muslimn Malya (HMM) or Parti Orang-orang Muslimin Malaya (the Malayan Muslims Party) formed in March 1948. Later on in 1951, Persatuan Islam Se-Malaya (PAS) was founded to replace HMM (Panel Pengkaji Sejarah, 1999, 4 and 6). According to Farish, Today, PAS traces its founding to 24 November 1951 (Farish, 2004, 1:73). Hence the year for the establishment of PAS is 1951. Safie explains that the main early ideologies advocated by PAS are the products of its leaders and members understandings of Islam, its teachings and demands. He states, As Islam is the basis of its ideology, the party has its own understanding and interpretation of this religion. The party looks at Islam as an organic whole. It means that the PAS believes in all the teachings of Islam and adopts them as its complete ideology. It does not believe in parts but in the totality, i.e. all aspects
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of the Islamic teachings such as politics, economy, social values etc (Safie, 1981, 94). The main early ideologies of PAS as explained by him are the Malay nationalism and the Islamic state covering its purpose, doctrine, sovereignty, structure, citizenship and economic system (Safie, 1981, 79-134). The Malay nationalism of PAS during its struggle for the independence of Malaya from the British rule consisted of five demands. First, the Malay nation is the rightful owner of Malaya. Second, the Malays should be grantedspecial rights. The Constitution of Malaya should stipulate that not a single interest would be tolerated if it contradicts the interests of the Malays. Third, the loyalty to Malaya is the main condition of Malayan citizenship. Fourth, since Islam is the religion of the Malays in Malaya, Islam should be the official religion of the country. Finally, Malay should immediately be made the national, official language of the country (Safie, 1981, 86). The Malay nationalism advocated by PAS was spelt out in its 1959 election manifesto, the most comprehensive statement the party made on Malay nationalism (Funston, 1980, 148). Funston concludes, PASs main commitment, therefore, was to a Melayu nationality, an Islamic state, an Islamic-socialist economy, and anti-colonialism (Funston, 1980, 161). The Leaders and Doctrines of PAS From its establishment in 1950s until 2008, the federal leaders ofPAS have beenseven:Ahmad Fuad Hasan (1951-1953), Dr Abbas Alias (19531956), Dr. Burhanuddin al-Helmy (1956-1969), Mohamad Asri Muda (1969-1982), Yusof Rawa (1982-1988), Fadzil Mohamad Noor (19882002), and Abdul Hadi Awang (2002 until the present) (Jabatan Arkib PAS 2008). The federal leaders of PAS are different from the district and state leaders of PAS but sometimes or many times, they are the same persons. Since Malaysia has many districts and states, the leaders of PAS have been classified into three different levels namely district, state and federal. Those seven leaders of PAS are the federal leaders in this study. The leaders of PAS have different trends and outlooks during their leadership. From 1951 to 1956, PAS was under the leadership of the Malay Muslim traditional religious scholars. Due to their
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religious traditionalism, their main emphases were on Malay nationalism, anti-colonialism and the Malay socio-economic issues. However, they were not aggressive in opposing the British in Malaya. From 1956 to 1969, PAS was under the leadership of the Malay Muslim leftist nationalists. They were more aggressive than the earlier PAS leaders in demanding the independence of Malaya from the British. Their emphases were still on Malay nationalism, anti-colonialism and the Malay socio-economic issues. After the independence of Malaya in August 1957, its main concerns were Malay nationalism and the socio-economic conditions of the Malays. From 1969 to 1982, Mohamad Asri Muda (died in 1992) led PAS.He was considered a Malay Muslim rightist nationalist because he was able and successful to bring PAS into the National Front, the ruling political party and UMNO has been the backbone political party of the National Front in Malaysia. UMNO had been the arch political enemy of PAS and PAS, in turn, never agreed to cooperate politically and strategically with UMNO except when PAS was under the leadership of Mohamad Asri. Asri expressed his motives and directions for the party. For Asri, PASs main goal was to defend and improve the political, economic and cultural lot of the Malay-Muslims above all else. And he argued that none of the Alliance governments policies had actually improved the economic status of the Malays and Bumiputeras* of the country (Farish 2004, 1:229-230). PAS is the abbreviated short Malay name for PanMalaysian Islamic Party in English, and the Malay name or term Bumiputera is a political and economic term used for the natives of Malaya, and the natives of Sarawak and Sabah. However, very often the Malays in Malaya and Malaysia are included in the name or term Bumiputera because it literally means sons of the earth. Bumiputera is the politico-economic term to differentiate the natives of Malaya and the natives of North Borneo from the Chinese and the Indians who emigrated or were brought into Malaya and North Borneo during the British rule in Malaya and North Borneo. North Borneo was the former name for the present Sarawak and Sabah in Malaysia. Mohamad Asri was able to push the leaders and members of PAS to agree to join the National Front after the Malaysian general election
*Lit. sons of the soil Ed.
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of 1969 for the political and economic considerations. Asri had played his part in the bargaining process which revolved around 13 key demands, the chief of which was that PAS should be given the freedom to promote and defend Islamic concerns within the coalition and that the party should be free to reject and criticise any government policy that it felt was unIslamic (Farish, 2004, 1:254). According to Mohamad Asri, many political and economic events pushed his party to cooperate with UMNO. One of them was the tragic Chinese-Malay clashesof May 13, 1969 that took place immediately after the general election in the same year. The Malaysian Parliament was suspended. Another one was the State of Kelantan which lacked funds to build her infrastructural projects like the bridge over the Kelantan river in Kota Baharu. It was ruled by PMIP after the 1969 general election. The official cooperation between PAS and UMNO started on January 1, 1973 after both leaders signed the agreement on December 28, 1972. After the general election in 1974, Mohamad Asri became the Minister of Land and Rural Development, and other members of PMIP became the holders of the political and administrative posts in the Federal Government led by the National Front as well as in the state governments (Asri, 1993, 86-100). According to Funston, The Spectre of May 13 hovers over post1969 Malaysian politics Internationally, it brought Malaysia an unsought prominence. Internally, political ramifications extended far beyond its most obvious effect, the suspension of parliamentary democracy for some twenty-one months. It is, as Malaysians themselves perceive it to be, the most significant event in the countrys turbulent post-independence history (Funston, 1980, 208). Although Abdul Razak and Mohamad Asri were in agreement on many political and economic issues during the cooperation between PAS and UMNO, the other leaders of UMNO and PAS began to criticize their agreed cooperation after few years. In Kelantan, the strongest hold of PAS, the cooperation brought out the internal opposition from PMIP faction that disliked Mohamad Asri during the internal leadership crisis in Kelantan between Mohamad Asri and Mohamad Nasir who was the Menteri Besar of Kelantan from PAS. Moreover, PAS capacity to represent Malay have nots was weakened by coalition with the Alliance and participation in the National Front. In the 1974 election there was
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evidence of Malays shifting support to the United Independents in Kelantan and Party Rakyat in Terengganu (Funston, 1980, 282). Mohamad Asri provided three main reasons why the National Front expelled PAS from the National Front. The first was the political situation and conditions in Kelantan between the members of PAS and UMNO. The members of UMNO in Kelantan wanted to win over PAS and to rule Kelantan that had been under PAS for many years. The second was that the members of UMNO opposed the expansion of PAS into other states. The third was the miscommunications and often misunderstandings of certain political speeches, actions and approaches between the members of PAS and of UMNO (Mohamad Asri, 1993, 108-109). The Emergency Act imposed on Kelantan provided for the suspension of the rule of PMIP in Kelantan. The Federal Government appointed the Chief Administrator for Kelantan. Hence, in the Malaysian general election of 1978, PAS performed badly in Kelantan and in other states in Malaysia. The members of PAS and supporters seriously questioned and criticized the leadership of Asri. They wanted him to step down and they were successful in pulling down the leadership of Asri in 1982. From that year on, the leadership of PAS was shifted from the nationalist leaders like Dr. Burhanuddin Helmy, Zulkifli Muhammad, and Mohamad Asri to another type of leaders after 1983 (Wan Hashim, 1993, 25). Indeed, the other trends or types of PMIP leadership emerged after Asri left PMIP and he formed a new Malay-based political party named HAMIM. He led that party for few years and left it to join UMNO. Although he became the federal leader of PAS from 1969 to 1982 and the district and state leader of PMIP before that period, he was seen and depicted as a Malay Muslim nationalist leader. Yusof Rawa, the leader of PAS who succeeded Mohamad Asri alluded to this nationalist branding of Mohamad Asri. In his first principal speech delivered during the annual general meeting of PAS held in April 1983, Yusof Rawa mentions that some leaders of PAS who had led us were no longer among us (Kamarudin, 2000a, 30) alluding to Mohamad Asri Muda and his arch supporters who had left PAS in 1982. For Yusof Rawa, they left PAS because they were the leaders of an Islamic party but at the same time they declared themselves as liberal nationalists inviting the Malaysians to defend nationalism (Kamarudin, 2000a, 33).
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Although Yusof Rawa did not mention the names of the leaders of PAS who left the party in 1982, they were actually Asri and his arch supporters who left PAS in 1982. They did not attend the annual general meeting held in 1983 because they were no longer PAS members and leaders. PAS held that meeting in April 1983 at Dewan Bahasa dan Pustaka in Kuala Lumpur. Yusof Rawa began a new type of leadership of PAS. He rejected the nationalism of his predecessor Mohamad Asri. This shift of doctrine from nationalism to anti-nationalism was dueto many factors. First, Asri was unable to keep PAS in the National Front after the National Front decided to expel PAS in 1977. Second, in the Malaysian general election held in 1978, PAS lost miserably to UMNO in Kelantan and in other states. Third, externally the Iranian Islamic Revolution that deposed Shah of Iran in 1979 had inspirited some members of PAS to change their leadership to a revolutionary Islamist leadership. Yusof Rawa was the acting national leader of PAS in 1982 after Mohamad Asri stepped down. In their 29th annual general meeting held in April 1983, the members of PAS officially accepted Yusof Rawa to become their new leader. Yusof Rawa was the federal leader of PAS from 1983 until 1988 when he experiencedhealth problems. Fadzil Mohamad Noor was the acting leader of PAS after Yusof Rawa became ill in 1988. In their 35th annual general meeting held in March 1989, the members officially accepted Fadzil Noor to become their new leader (Kamarudin, 2000a, 5). During his leadership of PAS, Yusof Rawa (1982-1988) initiated a new leadership trend known as the leadership of Islamic religious clerics or in the Malay language known as Kepimpinan Ulama. The Islamic revolutionary leadership in PAS was also attributed to Yusof Rawa because of the external influence of Iranian Islamic Revolution during his ambassadorship of Malaysia for Iran, Afghanistan and Turkey for few years when PAS was in the National Front. This was the new leadership trend as Mohamad Asri and the earlier leaders of PAS were known as the Malay Muslim traditionalists first and then nationalists, but were not known as Islamists and revolutionists like Yusof Rawa, Fadzil Noor and Abdul Hadi Awang. Yusof Rawa joined PAS in the late 1950s, and became the state
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leader of PAS in Pulau Pinang in 1959 to replace Ahmad Azam. He was also one of the members of the federal administrative committee of PAS. As the member of PAS, Yusof Rawa contested in the Malaysian general election against Dr. Mahathir Mohamad, the member of UMNO in the 1969 Malaysian general election, and he won against Dr. Mahathir for the parliamentary seat of Kota Star Selatan in Kedah. When PAS cooperated with UMNO and joined the National Front in 1973, Yusof Rawa held the post of deputy minister for the ministry of primary industries. In 1975, he became the Malaysian ambassador to Iran, Afghanistan and Turkey. In 1977, the National Front expelled PAS. In the 1978 Malaysian general election, PAS could win only two state seats in Kelantan, but won five parliamentary seats, two in Kelantan, and two in Kedah and one in Pulau Penang respectively. In 1981, Yusof Rawa contested against Abu Bakar Umar for the post of PAS deputy federal leader in the 27th annual general meeting of PMIP and he won the post. No member of PAS contested against Mohamad Asri as the federal leader of PAS in 1981 (Kamarudin, 2000a, 4-5). However, after Yusof Rawa defeated Abu Bakar Umar in 1981, Asri lost his main supporters in the leadership of PAS and he was also under great pressure to step down from his federal leadership post. Under such severe pressure, Asri stepped down in 1982. In comparison with Asri and the earlier leaders of PAS, Yusof Rawa was different from them all. His knowledge and familiarity with the political situations and trends in Iran, Afghanistan and Turkeydistinguished Yusof Rawa from his predecessors politically and ideologically. In his fundamental speech for the 29th annual general meeting of PMIP held in 1983, Yusof Rawa presented three main themes namely the leadership of Islamic religious clerics, the success of the Iranian Islamic Revolution, and the stance of PAS toward the plurality nature of Malaysian nation. He emphasized that Islamic religious clerics must become the leaders of PAS and of Muslim community because they are the inheritors and defenders of Islam. Regarding the Iranian Islamic Revolution, he stressed that that revolution was successful in fighting and bringing down the Mustakbirn (the arrogant orungrateful) because it depended on Islam and relied on Allahs assistance while the arrogant relied on their material power and materialism tochangehuman history. Hence, PAS should learn from the success of the Iranian Islamic
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Revolution. Regarding the plurality of ethnic groups and religions in Malaysia, he did not agree with those who had doubtedthe ability and relevancy of Islam for the religious and ethnic pluralism in Malaysia. He did not want Malaysians to have in their minds that PAS had been for the Malays and Muslims only. He stressed that Islamic struggle was to free all humans from injustice, oppression and misery (Kamarudin, 2000a, 6-7). In his fundamental speech for the 30th annual general meeting of PAS in 1984, Yusof Rawa spoke aboutasabiah (originally it refers to the ethnic or clannish fanaticism among the Arabs and Persians),* Islamization of Malaysia introduced by UMNO, the failure of New Economic Policy (NEP) and education in Malaysia. Yusof Rawa stated that the Malaysians inherited nationalism and fanaticism from the Western colonialists who had opposed Islam. He called upon the Malays to abandon their nationalism and fanaticism because they were unjust and backward notions. The Malays were backward because of their unjust practices of Malay nationalism and fanaticism. Both led to corruptions and corrupt practices. Yusof Rawa did not believe that the Islamization policy introduced by UMNO for Malaysia would be successful because the members and leaders of UMNO were secularists and nationalists in his eyes (Kamarudin, 2000a, 7-8). In his fundamental speech for the 33rd annual general meeting of PAS in 1987, Yusof Rawa strongly supported the idea of PAS to establish Majlis Syura Ulama (the Consultative Councilof Islamic Religious Clerics). In his fundamental speech in 1988, he claimed that the Malaysian government detained about fifteen leaders of PAS under the Internal Security Act (ISA) in the Lalang Operation launched in 1987. This was not because these PAS leaders were dangerous to the Malaysian national security. They were detained under ISA because of the strategies of the government political leaders. Fadzil Noor who acted as the deputy leader of PAS read the last fundamental speech prepared by Yusof Rawa during the 35th annual general meeting of PAS in 1989 because Yusof Rawa was unable to attend the meeting due to his sickness. He officially stepped down and Fadzil Noor replaced him as the national leader of PAS in 1989 (Kamarudin, 2000a, 9-10). On
*For a detailed discussion see Ibn Khaldn, Muqaddimah, (Eng. tr. Franz Rosenthal, New York, Bollingen Foundation, 1958 Ed.
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April 28, 2000, Yusof Rawa passed away in Pulau Pinang (Kamarudin, 2000a, 3; Mohamad Hatta, 2000, 15). The doctrines and approaches of Yusof Rawa are clear and evident from the titles and contents of his fundamental speeches that he delivered during the annual general meetings of PAS under his leadership. His speech titles were The freedom of theMuslim Community, and Critique ofnationalist thought in April 1983 and 1984 respectively. He delivered his speeches on acting against injustice in April 1985, on strengthening society and continuing the struggle in September 1986, towards contemporary reformation in April 1987, and on having firm conviction to unite the society in April 1988 (Kamarudin, 2000a). Dr. Mohammad Hatta Ramli stated that under the leadership of Yusof Rawa, many Malay graduates from the universities in the United Kingdom (UK), the United States of America (USA) and Australia felt attracted towards PAS, and some of these graduates becamemembers of PAS. These foreign educated graduates were in the Islamic Revolution Council (IRC) and Islamic Voice when they studied in UK. During the leadership of Yusof Rawa also many professionals and corporate leaders became the supporters or members of PAS. The new wave of change in PAS took place during his leadership since he was able to attract the attention of the Malay foreign educated graduates, professionals and corporate leaders into PAS as its supporters or members. For the 1986 Malaysian general election, PAS cooperated with the Chinese through the formation of the Chinese Consultative Council (CCC). The cooperation between PAS and non-Malays through CCC began under the leadership of Yusof Rawa (Mohammad Hatta, 2000, 16-17). A medical doctor by profession and one of the present leaders of PMIP at state and national levels, Mohamad Hatta Ramli himself probably joined PAS during the leadership of Yusof Rawa. For M.G.G. Pillai, Yusof Rawa was the leader of PMIP who decidedly Islamized the political party, framing its political ideology within the framework of Islam Haji Yusof was the president of this revitalized PAS, and his quiet leadership strengthened its religious outlook (Pillai, 2000, 21). Pillai added that Yusof Rawa was the father figure the PAS Islamicists had, but his role went beyond that of a figurehead (Pillai, 2000, 23) Moreover, Yusof Rawa provided
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solidity that enabled the party to develop into what it is today. He was a protagonist in that struggle between its theocratic impulses and its supranational worldview. In 1983, PAS adopted the theocratic model (Pillai, 2000, 24). After Yusof Rawa in 1989, Fadzil Noor led PAS until his death in June 2002. Under his leadership, PAS won many state and parliamentary seats in the Malaysian general election held on 28 November 1999. PAS was able to rule the states of Kelantan and Terengganu. In addition, PAS also won few other parliamentary and state seats in Kedah, Pahang, Perlis, Selangor, and Perak. Regarding the victory secured by PAS in 1999, Farish states, When the results were announced, the country was rocked by the biggest election upset in its history. PAS had swept to power in Kelantan and Terengganu, and had come close to taking control of Kedah. It had also made significant gains in the predominantly Malay-Muslim states of Perlis, Perak and Pahang (Farish, 2004, 2:635). In the 1999 Malaysian general election, PAS won 27 parliamentary seats; Keadilan won 5 seats, and DAP won only 10 seats while the NF won 148 seats out of 193 total parliamentary seats (Kamarudin, 2000, 31). There were many crucial factors leading to the victory of PAS in 1999. One of them was the internal leadership crisis of UMNO. Dr. Mahathir Mohamad, the President of UMNO and the National Front was unhappy with his deputy president and minister of finance Anwar Ibrahim. On 1 September 1998, Anwar Ibrahim was sacked by Dr. Mahathir, one day before the government announced the imposition of capital controls. Throughout September, Anwar took to the streets and mobilised the public in his campaign against Dr. Mahathir and the UMNOled government. He launched the reformasi movement and soon won back the support of thousands of Malay-Muslim activists, students and UMNO members (Farish, 2004, 2:591). Some members of UMNO supported Anwars reformation movement against Dr. Mahathir and his supporters. Between late 1998 and mid-1999, an estimated 250,000-300,000 members left UMNO and follow their role model and leader Anwar. Many then joined the Keadilan (Justice) party set up by Anwar and led by his wife, Dr. Wan Azizah Wan Ismail. PAS also benefited from the split within UMNO, and its membership rose accordingly (Farish, 2004, 2:617).
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The second factor leading to the victory of PAS in 1999 was the young generation of PAS activists and intellectuals was sent out to convert the jaded masses. Among the young PMIP leaders were Dr. Hassan Ali, Nashruddin Mat Isa, Kamaruddin Jaafar and Dr. Hatta Ramli. They explained the views and stances of PMIP related to democracy, human rights democratic participation, representation, pluralism and cultural diversity as well as economic and political matters affecting the country (Farish, 2004, 2:621-623). The third factor for the victory of PAS in 1999 was the formation of Barisan Alternatif (BA) or the Alternative Front (AF) to oppose UMNO and the National Front. On 24 October 1999, the leaders of PAS, DAP, PRM and Keadilan signed the Common Manifesto of the Barisan Alternatif (Farish, 2004, 2:633) or Alternative Front: The Common Manifesto, dated October 1999, had six plans and programmes. The first plan was to strengthen economy by lessening the peoples burden by fair and dynamic economic growth. The second was to upgrade the transparency and accountability by moving toward the fair and democratic politics and by reviving the legal and juristic authorities. The third was to move towards the new century of social contract related to education, health, housing, social services, environment, consumers and prices, labour, women, youth, and old people and pensioners. The fourth was national solidarity through religions and cultures. The fifth plan was to builda pure democracy, and the sixth was to refurbish and rebuild the international image and status (Kamarudin, 2000, 72). For the 1999 Malaysian general election, PAS led by Fadzil Noor promoted three doctrines namely the Islamic state, the leadership of Muslim religious clerics, and the cooperation between the Muslims and non-Muslims in politics. PAS called on the Malaysian voters in 1999 to reject UMNO and the National Front because UMNO has been in alliance with non-Muslims for the political support and power. The two main non-Muslim political parties in the National Front have been MCA and MIC. PAS called on the Malaysian voters to vote for it because it was led by the Muslim religious clerics and it planned to form Islamic state in Malaysia (Ibrahim, 2000, 70-75). An Islamic state had been the main doctrine of PAS even before the 1999 Malaysian general election. The Islamic state advocated by
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PAS is a theocratic state or government because Allahs laws must be the state theology and legal system and Allahs laws must shape the states constitution and administration. The Islamic state must uphold Allahs laws (Ibrahim, 1993, 109). During his leadership of PAS, Fadzil Noor (1988-2002) stated his approaches and doctrines in his annual fundamental speeches that he delivered during the annual general meetings of PAS. The titles of his fundamental speeches are: Together progress with Islam in 1990, Unite to uphold Islam in 1991, Muslim religious clerics are the basis of Muslim leadership in 1994, and Establish sovereignty or supremacy of Islam in 1996, and Together establish justice in 1999 (Nasir, 2003). According to Farish, In the post-1998 crisis period, PAS assumed its latest avatar as the defender of human rights, democracy and constitutionalism in Malaysia. It was helped by the fact that party president Fadzil Noor was an ex-academic with a technocratic approach to Islam and politics (Farish, 2004, 2:721). Fadzil Noor passed away on Sunday 23 June 2002 due to some illnesses (Farish, 2004, 2:687). With the demise of Fadzil Noor, his deputy president Abdul Hadi Awang succeeded him. Under his leadership, PAS had contested the 2004 and 2008 general elections respectively. In the 2004 general election, PAS was still in the Alternative Front formed before the general election of 1999. However, the cooperation between PAS and DAP was not very strong like the cooperation between DAP and PKR. In the 2004 Malaysian general election, PAS lost many state and parliamentary seats to UMNO and the National Front. It lost Terengganu to its arch political enemy UMNO. UMNO almost recaptured Kelantan from PAS because PAS had gained three state seats over the seats won by UMNO and National Front in Kelantan. The opposition parties, PAS, PKR and DAP lost severely in the 2004 Malaysian general election. The March 2004 general election gave the BN, UMNO and Datuk Seri Abdullah Ahmad Badawi the largest mandate it ever had, with PAS the main loser(Ooi, 2006, 23). Before and during the 2004 general election, DAP did not like to be associated with PAS since DAP lost many state and parliamentary seats to MCA and GERAKAN candidates during the 1999 general election. In that general election, DAP won only 10 parliamentary seats while PAS won 27 parliamentary seats, and PAS
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replaced DAP as the opposition leader in the Malaysian Parliament (Kamarudin, 2000, 31). DAP lost many seats to MCA and GERAKAN in 1999 because of many reasons, and one of them was the cooperation between DAP and PMIP in the Alternative Front. MCA and GERAKAN went against DAP on the issue of Islamic state advocated by PAS in 1999. It seems that the Chinese voters did not support DAP in the 1999 general election due to the slogan of Islamic state advocated by PAS that joined DAP and KEADILAN to form the Alternative Front against the National Front for that general election. For the 1999 Malaysian general election, UMNO and MCA exhorted and appealed to the Malaysians not to lend their support to PAS and DAP because both parties planned to establish an Islamic state in Malaysia or to make Malaysia an Islamic state (Ibrahim, 2002, 75). DAP did not deny that it supported PAS during the 1999 Malaysian general election but DAP did not support Islamic state and Islamic law advocated by PAS. This was evident from Lim Kit Siang who explained about the purposes of the coming-together of DAP, PAS, KEADILAN and PRM are not to establish an Islamic state, but to restore justice, freedom, democracy and good governance. Moreover, DAP has made it very clear to PAS leaders that the DAP opposition to an Islamic state in Malaysia is constant and consistent (Ibrahim, 2000, 76-77). In the general election held on March 21, 2004, the National Front won a landslide victory over the opposition parties namely PAS, DAP and KEADILAN. The National Front won 198 parliamentary seats out of 219 seats, and 453 state seats out of 505 seats. Meanwhile the opposition parties consisting of DAP, KEADILAN, and PAS just won 21 parliamentary seats and 52 state seats (kiat net, 2004 elections). This general election was held about five months after Abdullah Ahmad Badawi succeeded Dr. Mahathir as the Prime Minister of Malaysia and the leader of National Front. It gave a strong mandate to Prime Minister Abdullah Badawi. He could take satisfaction in the symbolic toppling of PAS President Abdul Hadi Awang and several other conservative PAS clerics by UMNO candidates who stood for his concept of progressive Islam, or Islam Hadhari (Yang, 2004, 1). It seems that the concept of Islam Hadhari launched by Abdullah Badawi was able to attract Malaysian Muslims and non-Muslim voters
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in comparison with the concept of Islamic state advocated by PAS. It appears that the National Front was able to weaken and win over PAS supporters. The general election in March 2004 marked the rise of secular politics to halt the advance of political Islam in a plural Malaysian society PAS lost the public relations battle to the more sophisticated UMNO and BN, who werehelped bythe partisan media and a nervous non-Malay community post-September 11 (Yang, 2004, 2). However, the political scenario in Malaysia in March 2008 witnessed the unpredicted victory of the three opposition parties PAS, DAP and PKR against the National Front. They won more state and parliamentary seats in the Malaysian general election held on March 8, 2008. They witnessed victories in Kelantan, Kedah, Perak, Pulau Pinang and Selangor. PAS became the ruling party in Kelantan and Kedah after it won the majority of state seats. It also gained the state seats and parliamentary seats in Terengganu and other states. The 2008 general election saw the resurgence of PAS. It captured 23 parliamentary seats and 82 states seats (Mohamed Nawab, 2008, 1). PAS together with PKR and DAP formed the state governments of Penang, Perak and Selangor. The Chief Minister in Penang is from DAP, Menteri Besar in Perak is from PAS, andMenteri Besar in Selangor is from the PKR. Mohamed Nawab saw that although PAS electoral success is less impressive than in the 1999 elections when it won 27 parliamentary seats and 98 state seats, its current performance is significant in several ways. Firstly, PAS has been able to garner significant support from non-Muslim Malaysians in the current elections. Secondly, PAS was able to gain the support among the rural Malay voters in Kelantan, Terengganu and Kedah as well as among the urban Malay voters in Selangor and Penang (Mohamed Nawab, 2008, 1). The rise of PAS in the 2008 general election in Malaysia apparently was due to many factors: economic, political, religious and media. Economically, many Malaysian voters were not happy with or disturbed by the National Front after the rising prices of many necessary goods and services due to the rising price of the petrol. The government claimed that it had no choice but to raise the petrol price due to the global rise in its price. Many Malaysian voters felt that they had been too long under the rule of the National Front, about 50 years since the independence of Malaya in 1957 and they could change this political dominant party through
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their votes. They voted for the opposition parties because they promised economic improvements and pushing down the price of petrol. Politically, it seems many the Malaysians wanted to give a chance to the opposition parties to rule certain states in Malaysia to see if they could do better than the National Front, the ruling party. Religiously, the opposition parties promised to look into and settle many religious issues in Malaysia such as the inter-religious legal problems between the Muslims and the nonMuslims such as the inter-religious conversion, the guardianship of the converted minors and the legal status of the converts from Islam to other religions. The media also played its important role in promoting the opposition agenda and programmes especially through the electronic media such as the websites and internets. The Manifesto of PAS for the 2008 general election presents the catchword and persuasive statement, PAS FOR ALL In addition to that statement, the Manifesto writes at the outside page cover in the capital letter A TRUSTWORTHY, JUST and CLEAN GOVERNMENT: A NATION OF CARE & OPPORTUNITY. On its second page, the Manifesto states, For the last 5 decades, PAS has proven her democratic credentials as a political party that has consistently upheld the sovereignty of the nation, striven for the betterment of society regardless of race and belief and to safeguard the sanctity of Islam (MIPM, 2008, 2). The Manifesto presents the Malaysian nation in the state of crisis due to the four factors. First, Agonizing Rising Cost of Living. The people are suffering from the continuing price hike in literally everything of household needs, tariff, toll and various services. Second; Threatening Skyrocketing of Crime Rate. Similar scenario is the case with the hike of crime rate. Third, Debilitating Endemic Corruption Today, this nation stands staggering under the numerous debilitating and deleterious impact of corruption and abuse of power., and finally, Continuing Assault on Democracy and Election. The rakyat [peoples] are frightened and cowed down by strong-arm tactics of the Executive (MIPM, 2008, 2-5). PAS promised the Malaysian voters that it would change these four for the better economically, socially and administratively. PAS now implores and seeks the support of the entire society and electorates and all peace-loving rakyat; from the partisan and non-partisan civil or non-governmental society, women and youth groups, religious or
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non-religious-based NGOs, well-wishers of democracy, old and young, to support an agenda of reform and betterment of society (MIPM, 2008, 6). PAS promised programmes for the people in Kelantan to develop an Islamic vision that would bring grace, develop a fair economy, a balanced social life and culture, and the land, to guarantee and respect the federal and state relationship principles, and to improve the living standard of the peoples in Kelantan (BPPNK, 2008). Mohamed Nawab attributed the resurgence of PAS in the 2008 general election to many factors such as PASs Islam versus UMNOs Islam, and Malay Voters and Islamisation. However, PAS has softened its stance and left its Islamic state agenda on the backburner. Instead, its electoral manifesto was the formation of a negara kebajikan (welfare state). PAS strategy was to focus on the universal aspects of such as egalitarianism, tolerance and accommodation. This strategy paid off when many non-Muslims decided to throw their lot with PAS in the elections (Mohamed Nawab, 2008, 2). PAS and its Islamist Fundamentalism No one can questionthat PAS has participated in all the Malayan and Malaysian general elections thereby strengthening it image as a supporter of democracy. According to Farish, PMIP has been on the scene in Malaysia for more than five decades and it was the first Islamist party in Asia to come to power via constitutional means(Farish, 2004, 1:xliii). Thus PAS, the religion-based political movement in Malaysia, has attained political support and power through the legal and constitutional means since Malaysia is a democratic and constitutional nation. The role of PAS is in line with the religion-based political movements in other countries or areas. Darwis Khudori has stated, religion-based political movements are not new in the history of humanity, particularly in Asia. During the colonial period, these movements played an important role in emancipation of the people, as well as in the liberation movements for national independence(Khudori, 2008, 6). For the independence of Malaya in 1957, PAS played its role in pushing for Malayan independence from British rule and colonialism as stated in the early doctrines of PAS.
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According to Darwis Khudori, the religion-based political movements have participated through political parties in a democratic independent nation (Khudori, 2008, 7). In Malaysia, a democratic independent nation, PAS has become a religion-based political movement that participated in the democratic process for gaining political support and power. However, this overt practice of PAS to attain political support and power does not mean that it has given up Islamist fundamentalist doctrines or Islamist fundamentalism. To achieve their political support and goals, the religion-based political movements are varied in their approaches and doctrines. They are classified into many variants such as religious fundamentalism, fanaticism, extremism, or radicalism as well as religious pluralism (Khudori, 2008, 7-8). Based on its approaches and doctrines, PAS still has its fundamentalism. Since it claims to adhere to the religion of Islam, PAS is to be counted among the Islamist fundamentalist political movements. In other words, PAS has advocated Islamist fundamentalism or political Islam for its approaches and doctrines. This has made PAS differ greatly from its arch political party enemy UMNO because UMNO is not based on Islamist fundamentalism but on Islam, Malay nationalism and Malayan and then Malaysian nationhood. According to David Zeidan, Islamist fundamentalism is composed of a wide variety of movements and views that offer Islam as a total way of life and as a viable alternative to Western secular ideologies. Its aims at bringing all of the contemporary society under Gods sovereignty, rule of law as revealed in the scripture. The restoration of Islamic glory will be achieved by purifying society from un-Islamic teachings and practices, by a return to Islams original pure sources (the Qurn Gods written revelation through Muammad ( ), and adth, the Divinely inspired traditions of the Prophets sayings and deeds) as the only authority, and by the establishment of an ideal Islamic state modelled on that of the Prophet ( ) and his Companions (R.A.). Most fundamentalist movements are united in these goals of Islamizing the total social and political system of their societies and of establishing a revived authentic world-wide Islamic state based on Sharah (the all-encompassing law ordained by God for humans based on the Qurn and adth) (Zeidan, 2001, 26).
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Islamist fundamentalism of PAS is proven from its leaders doctrines beginning with Yusof Rawa (1982-1988) followed by Fadzil Noor (19882002) and then by Abdul Hadi Awang (from 2002 until the present day). Their views are either in agreement with or in line with Islamist fundamentalism stated by David Zeidan above as well as other scholars Cheryl Benard (2003), Ahmad S. Moussalli (1998), Ahmad S. Moussalli (1999), and Mansoor Moaddel (2005). The three federal leaders of PAS namely Yusof Rawa, Fadzil Noor and Abdul Hadi Awang persistently called on its members, supporters and Malaysian voters to establish an Islamic state in Malaysia although DAP persistently rejects the call for the Islamic state. In the 1999 Malaysian general election, DAP lost severely to MCA and GERAKAN because these two majority Chinese political parties attacked DAP on the doctrine of Islamic state advocated by PAS. MCA and GERAKAN claimed in 1999 that DAP supported PAS to establish an Islamic state in Malaysia although DAP relentlessly denied their claims. The political argument for MCA and GERAKAN was that DAP cooperated with PAS in the Alternative Front to win over the Malaysian voters against the National Front in the 1999 Malaysian general election (Ibrahim, 2000, 75-77). The Islamist fundamentalist approaches and doctrines of Abdul Hadi Awang are evident and proven from his book entitled, Islam: Fikrah, arakah and Daulah (Islam: Idea, Movement and State), published in 2003 and its second edition in 2005, and another book of his entitled, Islam and Demokrasi (Islam and Democracy), published in 2007. Abdul Hadi Awang states that Muslims must accept Islam and put all its teachings into practice in all fields of their lives. Muslims must seek solutions from Islam. Islam is the solution for all the Muslims problems and state problems. Muslims must support the party of Allah and reject or oppose the party of Satan, and Muslims must establish Islamic state and must implement Islamic laws (Abdul Hadi, 2005). Regarding Islam and democracy, Abdul Hadi Awang states three different Muslim responses to the Western democracy. The first belongs to the Muslims who hurriedly and totally accept the western democracy because they are influenced by secularist thought. The second is by the Muslims who hurriedly reject the Western democracy because they assume that all foreign ideas and concepts must be rejected as un-Islamic and there are no valid and strong Islamic indications and proofs to accept and
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implement the Western democracy. These Muslims judge the Western democracy as a deviated religious innovation or heresy or polytheism, and the Muslims who accept and implement the Western democracy are committing sins. The third comes from the Muslim scholars who have been involved in the Islamist movements such as the Muslim Brothers in Egypt, Islamic Parties in Turkey, Pakistan and Indonesia and PMIP in Malaysia who accept the Western democracy critically in its principles and concepts by rejecting what is bad and exposing its shortcomings and weaknesses. The Muslims in the Islamist movements accept the Western democracy because it may become a good means to establish Islam. Such Western style democracy that rejects the role of theology and ethics is to be put aside. The Western democracy is a man-made ideology and as such, it has some benefits and shortcomings (Abdul Hadi, 2007, 101-103). It is evident that the present federal leader of PAS, Abdul Hadi Awang, justifies his partys involvement in the Malaysian general elections and in the democratic political system. His justification is to establish Islams supremacy, Islamic state and Islamic law in Malaysia through the democratic political system. That is his justification. He has written about Islamic state and its concept and goals. According to Abdul Hadi, Islamic state has three goals, the caliphate, the trust and the worship. The caliphate is to establish and implement Islam through justice among human beings, commanding the good and preventing the evil in the human societies, respecting human status, peace and stability, fulfilling peoples needs, and promoting human and national development. The trust is to keep and protect the trust granted by Allah to human beings. The worship is for human beings to worship Allah (Abdul Hadi, 2005, 353-365). Kamarudin Salleh in his article has discussed the Islamic state according to PAS and UMNO. According to UMNO, Malaysia is an Islamic state but according to PAS, Malaysia is not an Islamic state because Malaysia does not implement in total the Sharah including the Islamic criminal laws. Moreover, Islamic law is not the supreme law or the law of the land in Malaysia (Kamarudin, 2006). For PAS as stressed by Abdul Hadi,an Islamic state has three characteristics namely the observation and implementation of Islamic law, its supremacy and authority, and the Muslims who accept and implement
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Islamic law, Islamic government that protects Islamic law and the Muslims (Abdul Hadi, 2005, 329-349). PAS wishes to establish an Islamic state in Malaysia through the Malaysian democratic political system. What Cheryl Benard states regarding the Muslim fundamentalists views and stances towards the Western democracy is still acceptable, reasonable and justifiable. She states, A number of authors believe that fundamentalist hostility to the United States and to the West primarily reflects anger over some aspects of our foreign policy or discomfort over the more-liberal aspects of Western culture. It is important to be aware that, while such concerns play a part, fundamentalism represents a basic and total rejection of democracy and of the core values of modern civil society (Benard, 2003, 28). Based on Benards opinion, PAS has to accept the Malaysian democratic system because it is the only legal and constitutional means to achieve its goals although it principally rejects democracy, its Western man made ideology and concept. PAS has advocated Islamist fundamentalism because it persistently intends to establish an Islamic state, theocratic in nature, in Malaysia like other Muslim fundamentalists such as the Muslim Brothers in Egypt and the Islamic parties in Turkey and Pakistan. Concluding Remarks No one is able to doubt that PAS has been a religion-based political movement in Malaya/Malaysia since its formation in the early 1950s. This study presented its four federal leaders approaches and doctrines. Under the leadership of Mohamad Asri Muda, PAS is different from PAS under the leaderships of Yusof Rawa, Fadzil Noor and then Abdul Hadi Awang. PAS under Mohamad Asri does not embrace Islamist fundamentalism. However, PAS began to advocate Islamist fundamentalism when it came under the leaderships of Yusof Rawa, Fadzil Noor and Abdul Hadi Awang. Based on the four categories of the religion-based political movements identified by Darwis Khudori (2008), PAS is in the category of a potential threat because PAShas vocally advocated Islamist fundamentalism, and has accepted democratic political system in Malaysia as a tactical and strategic means to win the support and votes from the Malaysian Muslim and non-Muslim voters.
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However, one may say the political realities ofMalaysia will not allow PAS to achieve its stated goals since its Islamic state has been rejected by DAP and other Malaysian voters of other political parties. Moreover, PAS has never contested on all the parliamentary seats in Malaysia in order to win the majority seats in the Malaysian parliaments. Unless it does so, it will never rule Malaysia through the existing democratic system and therefore PAS will perhaps never succeed in establishing an Islamic state in Malaysia.
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Mohamad Hatta Ramli, Allahyarham Haji Yusof Rawa. In: Memperingati Yusof Rawa, 2000, pp. 13-17, Edited by Kamarudin Jaafar, Kuala Lumpur, IKAS. Moussalli, Ahmad S. (Ed.), Islamic Fundamentalism Myths & Realities, 1998, Reading: Ithaca Press. , Moderate and Radical Islamic Fundamentalism The Quest for Modernity, Legitimacy, and the Islamic State, 1999, Florida, University Press of Florida. Nasir Ahmad (Ed.), Koleksi Ucapan Dasar Muktamar PAS Kali ke 36 hingga 48 (Selama13 Tahun) oleh Allahyarham Dato Haji Fadzil Mohd Noor, 2003, Johor, PAS Kawasan Ledang. Ooi Kee Beng, Era of Transition Malaysia after Mahathir, 2006, Singapore, Institute of Southeast Asian Studies. Panel Pengkaji Sejarah, Pusat Penyelidikan, PAS Pusat, PAS Dalam Arus Perjuangan Kemerdekaan Esei dan Dokumen, 1999, Siri Sejarah Perjuangan Ummah, Shah Alam, Angkatan Edaran Ent. Sdn. Bhd. Safie Ibrahim, The Islamic Party of Malaysia Its Formative Stages and Ideology, 1981, Pasir Puteh, Kelantan, Nuawi bin Ismail. Yang Razali Kassim, Enter the Badawi Era: Implications of Malaysias General Election 2004. In: IDSS Commentaries (10/2004), pp. 1-5. Wan Hashim Wan The, Kata Pengantar. In: Memoir Politik Asri Meniti Arus, 1993, pp. 13-29, Bangi, Penerbit Universiti Kebangsaan Malaysia. Zeidan, David, The Islamic Fundamentalist View of Life as Perennal Battle. In: Middle East Review of International Affairs (MERIA), Vol. 5, No. 4 (December 2001), pp. 26-53.
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BOOK REVIEWS
Suleyman Derim, Love in Sufism-From Rabia to Ibn al-Farid, an insan yayinlari publications, 2008, Istanbul, ISBN 978-605-594901-03, 251 pp., including index and bibliography, hard bound, price: US$ 50/-. Based on the Ph. D. dissertation submitted at the Institute of Arabic and Islamic Studies, Exeter University by Suleyman Derim, Associate Professor in the Faculty of Theology, Marmara University, Istanbul the thesis focuses on the concept of Divine love or love for the Divine, defining these relations as found among the f-shaykhs. The universality of taawwuf in the Muslim world, with local, periodical, spatial and individual variations and peculiarities but still a living and vibrant socio-religious phenomenon, makes a thorough and comprehensive study of such a vast field virtually impossible. The best way-out is to sample and study the contributions of leading pioneers and defining and determining the concept of love between man and God or vice versa a relationship apparently logically and physically contradictory. The author has selected five early f masters whose contributions clarify and define the contours and characteristics of these concepts. The book contains eight chapters but the content refers to only seven. The chapter on Ibn al-Fard (pp. 201-206) is not mentioned, perhaps a proof reading slip. Another jarring aspect for a reader is the break-up of words to conform to the page format e.g. ca-tegories, intenti-ons, conclu-de spread all over the book. It is a defect which could have been removed as was done in other insan publications. On page 179 the term mushtq is rendered as the one who is yearned while it should be one who yearns. The next page (180, para 2, line 6) remains incomplete. Obviously some matter is missing. The five pioneers selected are: The Shhidah al-Ilh (Rbiah Adwiyah), Intoxicated with Ishq-i Ilh (Manr allj), Mujaddid Imm Ghazl, Shaykh Akbar Ibn al-Arab and Suln al-shiqn (Ibn al-Fard).
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The whole study is anchored on the first two chapters which discuss the Nature of Love and the paradigms of Love in the Qurn and the Bible. The first includes a discussion on the philosophical and psychological dimensions of Love from Plato to Ibn Sn and latter provides a comparative study of the concept of Love between the two monotheistic Abrahimic religions. These discussions are followed by five chapters on the above f masters. They are presented in a logical framework giving brief life sketches of the shaykhs, their impact and individual contributions. The chapter on Rbiah (717-801 A.D.) refers to her unhindered focused devotion to the Divine Love for which she avoided the responsibilities of a married life. Though a devout Muslim still her total immersion in the Divine Love left no space for even ubb of the holy Prophet ( ). She defines the spiritual status from the perspective of pure selfless disinterested Love even abolishing space for negative thoughts. Her philosophy was to love God for His sake only and not for anything else (p. 97). Such love leads finally to kashf i.e. unveiling beatific vision. She was able to change the earlier fs fear of Allah to pure disinterested Love. Her approach influenced and overshadowed her contemporaries as well as later generations. It was simple pure love with no conflicts with beliefs and orthodox interpretations. The next interpretation of Divine Love was provided by allj (858-930 A.D.) whose restless search led to frequent changes of murshids and travels to distant lands. Eventually he settled down, developed his own interpretation (p. 106). Imbibing some exotic influences he became immersed into what is called intoxicated Love and in ecstasy came the shaiyt utterances which were used by his distracters to have him imprisoned and executed mostly for non-religious reasons. However, his execution converted him into a symbolic icon of a new vision of Divine Love. He believed that God loved man for His own image (dam: man). Thus God loves man and it requires reciprocity with worship, obedience leading to ascetic purification and final union (fan fiAllah). He also viewed Ibls refusal to prostrate before Gods image (i.e. dam) due to his own love for God. The mn of the dying Pharaoh is also in the same vein. These concepts, after his execution, became associated with popular fism all over the Muslim world. The concept of Divine Love, sobre or intoxicated became systematized under Imm Ghazl (1058-1111 A.D.). Ghazls earlier
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academic achievements and later adoption of sufistic life enabled him to reconcile fism with orthodox Islam, a movement stared by al-Sarrj, al-Kalabdh and al-Qushayr. This synthesis removed earlier frictions and strengthened both versions of Islam. Stressing efforts to purify soul or self in a gradual approach or ascent he refers to five stages of Love. All Love is due to God. Man is created not in a physical but spiritual image of God (p. 151) which provides internal affinity. The approach is intellectual; knowledge is the seed for the beatific vision in the next world. The happiest man in the hereafter will be one who has the most of this love and marifah proportionate to the knowledge of God. Ghazls interpretation of the signs of a servants love of God and Gods love of man is different from Rbinic concept because beloved of God also has to be loved. This combination of intellectual and f paradigms systematized the earlier versions and at the same time marginalized the hirite and Ismlite trends due to his mystical, philosophical, psychological and moderate approach. He does not criticize allj for his intoxicated utterances. The author then proceeds to discuss the contribution of al-Shaykh al-Kabr Ibn al-Arab (1165-1240 A.D.) whose writings constituted the apex of doctrinal fism by transforming many loose ideas into well defined doctrines. More intellectual than Rbiah he described himself as an Uways, a mystic who attains illumination outside a regular silsilah or path (p. 169). A prolific writer on taawwuf he developed the concept of love between man and God further. To him love is the cause of all creation. Worship in fact is obeying the Beloved. God loves Himself and when He created man, He loved him as a part of His own love for Himself. Gods presence is reflected in all His creations, hence hamah st (everything is He). This concept of wadat al-wujd became the most significant aspect of fism. He also uses the language and terms of profane love to express and explain Divine Love (p. 172). Like Ghazl he extensively uses references from the Qurn and adth particularly emphasising the verse of the Qurn where believers are told that God is nearer to them than their jugular vein (al-Qurn, L:14) so love is related to heart than reason. His emphasis on love completely replaced the early fears of wrath of Allah so dominant among the early fs. Hence his emphasis on al-Wadd (the Lover). According to him after achieving the three stages of Divine Love: creation for love, worship
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and praise for Allah with love for beauty plus isn (beneficence) complete the love leading to the final annihilation of the human self which is the heart of the cosmological order. But he emphasizes a middle course between Divine Love and Natural Love and in contrast with the early fs thinks that God manifests Himself best in women hence his acceptances of profane love is the first step in mans spiritual ascent. Ibn al-Fard (1182-1235 A.D.) transforms this terminology of profane Love for spiritual love or Divine love in poetry. The 767 verses of al-Taiyyah al-Kubr and also the Keemiyah revolutionized presentation of spiritual love in the intoxicated version in the language and the medium of profane love for the first time in Arabic literature. Its impact was felt all over the Muslim world. The author succeeds in presenting and analyzing the paradigms of Divine love during the historical evolution and all its five stages from the initial fear and practice of zuhd to disinterested love of Rbiah, the pessimistic intoxication of allj, the intellectual and mystic synthesis of Ghazl and the culmination and final synthesis of Ibn al-Arab with the poetic presentation of Ibn al-Fard providing lasting universal version of the f way of life. Transforming earlier fs withdrawal from the wicked life it led them to become more humane with innate goodness with beneficent concept of God and tolerance providing a soft image and glow of Islam which won hearts and minds of men. A good bibliography and index adds to the utility of this book. As a very good contribution to the study of fs and taawwuf it is highly recommended to the academia and the laymen. Dr. Ansar Zahid Khan **************** Dr. M.H.Qazi, Iqbal on Inner Religious Experience (Revisited), pbd. Iqbal Academy Pakistan, 6th Floor, Aiwan-i-Iqbal Complex, Off Egerton Road, Lahore, 2008, pp. 210, ISBN-978-969-416417-5, Hardbound, Price: Pak Rs.200/The book under review is unique in the sense that the author, a scientist, has remained focused on the lectures of Iqbal (Reconstruction of Religious Thoughts in Islam) without touching his poetry.
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He regards Iqbals lectures Reconstruction of Religious Thoughts in Islam as a kind of paradigm shift in the history of Islamic thought. The book, based on the lectures delivered in Madras (now Chinnoy in India) and at Aligarh Muslim University, was written at a time when the Muslim nation was under the yoke of Western servitude. The lectures were delivered with the intention of changing the mindset of the Muslim world. It was a kind of reminder to the Muslims that they have to march with time in the modern periods of almost explosive advancement of knowledge in Arts and Sciences. When this book was first published in 1930, Syed Nazir Niazi with the consent of Dr. Iqbal translated it in Urdu without caring for its negative approach for the Traditionalist Muslims (which still dominate the Muslim societies in South Asia). This is why Bernard Shaw used to say that the best religion is Islam and the worst Nation is Muslim. Dr. Qazi says that although a large number of publications on Iqbal have appeared in the last five decades, yet the real message of Iqbal has not been able to find adequate space in the intellectual crevices of the Muslim society especially among the emerging youth. The modern day rational minds continue search for an answer to the difficult issues interpreted in the classical pristine mode by the theologians. This dual approach fails to unclear the expanding frontiers of science and technology on the one hand, and status quo implicit in the classical Islamic teachings of theologians and on the other hand has retarded the progress of Muslim societies. However, in spite of his firm faith in the revealed knowledge, the modern Muslim continues to ask searching questions which are apparently in purely theological lexicon. The book under review is a good effort from a primary scientific approach taking into account most of the scientists who have discussed such problems to seek answers to the basic questions. The author has supported the concept of Dr. Iqbal that the day is not far off when religion and science may discover hitherto unsuspected mutual harmonies. He has rightly expressed his opinion that taking lead from these views of Iqbal, an attempt has been made to collect current evidences from science, philosophy, psychology and biology to fortify the arguments of Iqbal in the most difficult area of Inner Religious Experiences.
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And for this reason the world view of science alone is not sufficient. Accordingly a synthesis of all contemporary disciplines related to religion, philosophy and science has to be carried out in search for truth and reality. This is precisely what Iqbal has emphasized in his essays. The same question has been addressed more exhaustively in the book under review. Dr. Qazi has expressed his expectations that it will encourage the concrete mind to assimilate the true nuances of religion in sympathy with recent advances in knowledge. It has been pointed out by most of the known scientists that contemporary science has itself become self aware and self critic and more conscious of its epistemological and existential limitations. Nor is contemporary science singular having given rise to a number of radically divergent interpretations of the world many of which differ sharply from what was previously the conventional scientific visions. Iqbal after journeying through the Eastern and the Western philosophies and studying the rise of the Western civil societies came to the conclusion that the Muslim civil society needs a fresh wave of Reconstruction. The topics of his lectures are as follows: 1. 2. 3. 4. 5. 6. 7. Knowledge and Religious Experience. The Philosophical Test of the Revelations of Religious Experience. The Conception of God and the Meaning of Prayer. The Human Ego. Its Freedom and Immortality. The Spirit of Muslim Culture. The Principle of Movement in the Structure of Islam. Is Religion Possible?
The last lecture was given in Europe where its listeners were nonMuslims. The other lectures were originally given in Madras and Aligarh in India, and Lahore before their publication in 1930. The author in his book has chosen the following headings for revisiting these lectures as a scholar of science and has not discussed his poetry of Urdu and Persian nor his other writings. 1. 2. Chapter I: Chapter II: Insight (The main points) The world of Physics
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Mystique of Consciousness-I The Mystique of Consciousness-II The Biophysics of Consciousness A United Theory of Consciousness-I A Unified Theory of Consciousness-II (Synthesis)
So the consciousness or the Ego or has been spoken of in the book from a pure scientist point of view, not from a traditional religious or a philosophical one, with detailed conclusions and references from leading scientists. As has rightly been explained in this book the exact understanding of the theory of Ego is which the author has explained in the dialogue of Junaid Baghdd and Manoor allj. We find a different kind of mystic in Junaid of Baghdd and unlike allj and Bism who drank deep from their unitary experience and were intoxicated, Junaid advocates sobriety, because in this frame of consciousness, one maintains awareness of his self and does not lose sanity (as in intoxication). The story goes that when allj visited Junaid, he refused to accept him as his disciple. Yet, allj remarked O Shaykh sobriety and intoxication are two attributes of man, and man is veiled from his Lord until his attributes are annihilated. Junaids advocacy of the principle of sobriety combined with his deep knowledge of theology, jurisprudence and ethics made him a model f (mystic) who was acceptable to all schools of Islamic thought. A word about allj at this stage would be in order because of the prevailing confusions about him between the theologians and the students of mystic sciences. He was executed because of his two utterances; a) I am the creative truth (annl-aq) and b) Destroy your Kabah. Iqbal defending allj indeed thinks that experience in the religious life of Islam reached its culmination in the well known words of allj. I am the creative Truth. Dr. Iqbal referes to the French Orientilist Massignon whom he met in Paris. The fragments of allj collected and published by Massignon leave no doubt that the martyr saint could not have meant to deny the transcendence of God. The state of higher consciousness Iqbal thinks is the true interpretation of his experience. It is not the drop dripping into the sea, but the realization and hold of affirmation in an undying phase of reality and permanence of the ego
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(consciousness) in a profounder personality. This is an indication of unknown levels of consciousness. The author while discussing the spirit of Dr. Iqbals lectures from the scientific and creative level and after giving the findings of the greatest scientists of the world including the Noble Prize winners has clearly supported the faith of Islam that God is the Real and Inner Controller of souls. Since God has created man as His vicegerent so He has given his soul a creative spirit. One can sum up that this book may rightly be considered as a scientific interpretation of the Lectures of Iqbal given under the name of Reconstruction of Religious Thought in Islam. It has not touched the poetry of Iqbal so the lectures of Iqbal have been reshaped/rebuilt in a scientific colour/vision. Though there is no bibliography or index, it may still be regarded as an objective contribution to Iqbaliat.
Prof. Munir A. Faruqi
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AFFAIRS OF MUTUAL CONSULTATION (Gleanings from the Pakistani Press)
Author 01. Asghar Ali Engineer 02. 03. Dr. Abdul Karim 04. Gwynne Dyer 05. Nilofer Ahmed 06. Reviewer of Dawn 07. Amar Jaleel 08. Nilofar Ahmed
Title Politics of Identity, Caste and Religion in India Reformists at Work Banking Without Islamic Values Hysteria and the Veil Dowry is not Islamic Ibn Taimiyyas Shadow Whither Sufism? Polygamy and the Quran
Newspaper/ Date of Magazine Publication Dawn 13.6.2010
Dawn Dawn Dawn Dawn Dawn The News Dawn The News Dawn Dawn Dawn The News
2.7.2010 12.7.2010 20.7.2010 23.7.2010 25.7.2010 25.7.2010 6.8.2010 3.9.2010 19.9.2010 24.9.2010 25.9.2010 26.9.2010
13. Harris Khalique Become Ansaar 10. Karamatullah K. Ghori 11. Nilofar Ahmed 12. Shada Islam 13. Iftikhar Murshed Rise of anti-Islam Frenzy in America Injunctions on Divorce Islam and Europe The Quest for Interfaith Harmony
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POLITICS OF IDENTITY, CASTE AND RELIGION IN INDIA

ASGHAR ALI ENGINEER
Prime Minister Manmohan Singh recently informed parliament that caste will be included among the queries in the current census. This was after Yadav leaders and OBC (other backward communities) members of Parliament raised the issue which provoked a heated debate. The question arises why it is necessary to mention caste while counting people of India when even religion has not been included in the census form. It also raises doubts in the minds of minorities. Maulana Madani, a Muslim leader and Rajya Sabha member has threatened to launch an agitation if column of religion is not included in the census form. These are controversial issues. Some people feel why one should include caste and religion columns at all while making a count of the people because these are divisive categories and that people should be counted only as Indians. However, since there is reservation for Scheduled Castes and Tribes only these two columns should be included. The last caste census had taken place in 1931 during the British period. In post-independence India caste was abolished constitutionally and hence caste as a category was not included in censuses. The question of caste again became important when the recommendations of Mandal Commission were implemented in 1990 by V.P.Singh government. The exact number of OBCs was disputed. The Mandal Commission arrived at 52 per cent figure for OBCs through interpolation of 1931 data but the Supreme Court, in one of its judgments, had expressed its doubts about Mandal Commissions figure in the absence of counting.
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First, let us deliberate on the need for counting or not counting on the basis of caste. It is true caste is an anathema in a secular democracy and must be abolished and the constitution rightly abolished it. But what is the reality? India is highly stratified, multi-layered, multi-cultural and multi-religious society. This stark reality faces us all in society. The stratification has not diminished even a wee bit. On the contrary it has intensified several folds. Inter-caste marriages sometimes lead to brutal murders even by parents themselves or other members of the family. Today, many dalits cannot fetch water from village well; a low caste person cannot contest for the post of Sarpanch, and is murdered, if he does. For upper caste people, caste is not only an identity, it is also a great prestige. This sense of prestige increases if economic disparities increase, low caste people continuously going down the scale. Also, all the elections are fought on the basis of castes, clans and communal identities. These identities are fully utilised by political aspirants. Tickets are given not on merit but on the basis of these identities. Even those who were not aware of their sub-castes are demanding their share on that basis. The case of Gujjars in Rajasthan is a case in point. The Gujjars launched a prolonged agitation for reservation in government jobs in which more than 40 persons lost their lives and there was violence between Minas and Gujjars as the former with their tribal status were getting more jobs. India is going to live with increasing stratification for a long time to come. We can hide our head like ostrich in the sand of unrealistic ideas or ideals we violate on every step. Our very culture is caste culture and it is being reinforced by our ethos, our status symbols and above all our politics. Despite the constitution having abolished caste, in last sixty years no government can boast of a single concrete step taken to mitigate, let alone abolish, it. And implementation of Mandal Commission, though a right step in the prevailing political conditions, further enhanced the importance of caste in Indian politics. In view of all this, not to mention caste in the count would amount to defying Indias socio-political reality. It would also help find out exact number of OBCs though by no means it is an easy task. The Census Commission Report, reproduced by Indian Express in its Mumbai edition of May 9, 2010, shows it was quite a messy affair.
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Besides other factors, the status of castes varies from region to region. But nevertheless counting has to be done. If it is indeed 52 per cent or more, as being claimed, the 50 per cent moratorium on reservation in government jobs, presently imposed by the Supreme Court, may have to be revised upward as in some of the southern states reservation for various caste categories has reached 69 per cent. Not counting caste would be not only unrealistic but would create ever-mounting problems. The political culture of Indian society is leading to more and more social contradictions. On the one hand, we aspire to become an egalitarian society but the caste culture negates this very aspiration. And it is ironic that Indians cannot become egalitarian without the help of this very caste culture, at least in economic sense. In order to pull the backward castes up we must know their numbers thereby reinforcing caste identity. So, we are in a bind. We must do away with caste system to create an egalitarian society and our caste ethos and caste culture require that we do justice to them in terms of government jobs thereby reducing economic gaps and fulfilling aspirations of backward castes. There is hardly a way out. Thus caste will continue to play contradictory role in our society for quite some time to come. Our caste culture is so deep rooted that even an egalitarian society cannot be created without its help although caste leads to non-egalitarian social structure. Similarly, there is another sensitive demand for introducing column for religion and it is the religious minorities, especially Muslims, who are demanding it. Today, of course, there are no religion-based reservations at all and the constitution does not provide for them either. Constitution has given this concession only to Sikhs or Buddhists who are supposed to be offshoots of Hinduism. However, Justice Rangnath Commission Report which was submitted subsequent to Justice Sachar Committee Report has recommended 10 per cent reservation for religious minorities especially for Muslims and some political leaders are demanding implementation of Justice Rangnath Commission Report. Of course, this is a highly sensitive matter and the Congress government is hesitant to implement the Rangnath Commission Report. Not only that, it is even hesitant to table it in parliament.
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Therefore, since there are no religion-based reservations, there is no need to introduce religion column in the census but if it is introduced it will be much better. With greater democratisation and increased awareness minorities will agitate for religion-based reservations and then there will be need for knowing exact number of religious minorities as we need to know today exact number of OBCs. In multi-religious and multi-cultural societies the number of contradictions is on the rise. These include western societies as well for they are also becoming increasingly multi-religious and multi-cultural. Western democracy is essentially based on individual rights and this can work very well if the society is homogenous or monolithic, but there arise serious contradictions if it is multi-cultural. India had always been a highly diverse and stratified society and hence paid heavy price in the form of partition in 1947 as the two major communities could not agree to acceptable arrangements for power distribution. Now in post-independence period new contradictions are emerging which were then dormant (except in case of dalits which was solved through reservation) as religion became principal contradiction at the time of partition. In western society which is becoming multi-cultural due to immigration from various former colonies new political as well as social problems are emerging and political tensions and contradictions are causing grave problems. In western concept of democracy voting right is strictly individual but in multi-cultural society it becomes both individual as well as communitarian. An individual remains conscious of the religious or caste identity and his/her voting is affected by considerations of his/her community, justices or injustices done to it, and this brings pressure on the system. Also, since democracy supposedly is imbued with egalitarian ethos and communitarian inequalities militate against this egalitarian ethos, these contradictions often become explosive. In a way, one must accept the fact that India, with its amazing diversity, has been able to manage these contradictions more smoothly than many other countries which take India as a model in this respect. However, this is not to say that there are no serious problems of governance. Thus challenges of caste and communal identities are to be taken more seriously.
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These identities will continue to play contradictory roles both regressive as well as progressive and would not fit into any neat logic as many of us expect. Contradictions would remain very much with us for long time to come. The socio-cultural complex that we have inherited is very much part of our psyche and would continue to influence our political behaviour along with our socio-cultural behaviour. [The writer is chairman of the Centre for Study of Society and Secularism, Mumbai]. (Courtesy: Dawn, 13th June, 2010).
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REFORMISTS AT WORK
ASGHAR ALI ENGINEER
At a conference held at Oxford University last month it was encouraging to see many reformist Islamic scholars from across the world come together to discuss various issues pertaining to Islamic societies and contemporary challenges. The theme of the conference was Critical thinkers for Islamic reform the way forward. The moot began with the Friday prayers. The most important thing for Islamic reformers is to have a deep conviction in the faith whose practices they seek to reform. All those participating in the conference were from diverse cultures; they spoke different languages but had one thing in common: pride in being Muslim. They were convinced that Islamic laws, as developed during the medieval ages, need urgent change, and that the Quran needs to be interpreted in keeping with new challenges emerging around us in a globalised society. Edip Yuksel was once an orthodox scholar from Turkey. He has written extensively in the Turkish language from a conservative standpoint. However, over a period of time his views have changed after he became convinced that critical thinking on various Islamic issues is a must in modern times. He concluded that earlier translations by eminent Muslim commentators (mufassirs), however scholarly, are not satisfactory for this age. Along with two other Islamic scholars, Layth Saleh al-Shaiban and Martha Schule Nafeh, he has attempted a fresh translation of the Quran. It has been published under the title, Quran: A Reformist Translation. It is worth studying as these three scholars have gone into the roots of crucial Arabic words used in the Quran to capture the real spirit of the holy text, cleansing it of the superstitious approach of the early scholars.
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Some of the subjects discussed at the conference were: The paradigm of Islamic reforms history and heritage; Theological and philosophical imperatives for Islamic reform; New Quranic hermeneutics Muslim law and Islamic reformation; Islam, science, culture and freedom towards a Muslim renaissance; Gender, sexuality and human rights in Islamic discourse; and Media, war on terror and western foreign policy. All the discussions that took place were Quran-centric as against hadith-centric among those who stress on a conventional practice of interpreting Islamic law. Some scholars were of the opinion that a hadithcentric approach cannot admit reform and change, and that the Quran after all is totally Divine so there is absolutely no difference of opinion about its text. Many hadiths are not only controversial but also based on Arab culture, customs and traditions of the time. The Quran, on the other hand, goes beyond any geographical area and is not restricted by any time period. It is, in other words, beyond space and time and thus an eternal guide. Some of the participating scholars felt that though many hadiths are controversial, there are also those which are in conformity with the Quran and normative in nature (apart from those which are contextual). The reformists believe that such hadiths can serve a useful purpose even for re-understanding the Quranic text and for making reforms in the existing Islamic law structures. Despite some such differences on these issues all participants were united in their desire for reform. The participants also felt that values and principles are immutable, not laws based on these values and principles. Laws must remain dynamic and change with social needs. It is values which provide the moral base and stability to society, and that five values are most fundamental in the Quran. These are: the truth (haq), justice (adl), benevolence (ihsan), compassion (rahmah) and wisdom (hikmah). (Courtesy: Dawn, 2nd July, 2010).
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BANKING WITHOUT ISLAMIC VALUES

DR. ABDUL KARIM
Proponents of the Islamic banking claim great success by mentioning the growth of its assets and liabilities. Is this the only criterion or there are some other requirements to make banking truly Islamic, reflecting its value system? Looking from this angle, there is lot of use of Arabic terminology but hardly any effort to abide by the cardinal principles of Islam. In fact, there is much which is against Islamic teachings. Islam prohibits interest because of its inherent exploitation. This is explicitly mentioned in the Quran and it says: You shall have your original sums, thus you shall not wrong nor shall you be wronged. According to this acid test, the current Islamic banking is no less exploitative than the conventional variety. This is quite evident from their banking spread, which is almost that of conventional banks. As a result, these banks earned, during 2009, Rs31.6 billion from mark-up\return but their expense on that account was only Rs17.2 billion. Islam demands not only telling the truth but straight talk so as even an innocent person would not be deceived. The Quran says: O ye believer! Fear Allah, and say the right word. Islamic banks also offer profit and loss sharing (PLS) saving accounts and by no stretch of imagination, this can be called plain talking. Whose profit these banks share with their depositors, their own or those of the borrowers? It is neither. The returns are determined by these banks like other conventional banks with the difference that income of the banks is shared with depositors according to the formula laid down by the State Bank of Pakistan. By allowing a weight of up to five to equity of the bank, the SBP has become a party to exploitation of depositors, even though, as
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the central bank, it is expected to be even handed and looking after the interest of the poor small depositors. On the lending side, banks have adopted modes of business as modes of financing, even though the Quran has clearly directed that business deals should not be confused with loans. It says: Those who devour interest do not rise except as rises one whom Satan has smitten with insanity. That is because they say, Trade is also like interest, whereas Allah has made trade lawful and made interest unlawful. It would be a self-deception to believe that banks may be deemed to have purchased and sold goods. The basic problem is that those who manage Islamic banks their professions and use of Arabic terminology apart are in fact, steeped in the capitalistic system and follow its philosophy and practices The main purpose seems to be maximisation of profit and accumulation and concentration of income and wealth in a few hands. The latter is supposed to promote saving and investment to increase production. For this, there are no qualms about exploitation, as this will be eased through trickle down effect. There is no practical difference in lending policies and practices of Islamic and conventional banks. Both ignore the small man-depositor and borrower. Both want elite banking and prefer lending to the rich and influential even at concessionary terms. As a result, both have to face the same consequences in non-performing loans (NPLs) and debt writeoff. The amount of non-performing financing of Islamic banks has increased to Rs10 billion, or 6.3 per cent of outstanding credit as of end-December 2009.The CII has recommended that commercial banks should not have any power of writing off their loans. The current global economic crises, dubbed as the Great Recession of 2007-2009 had started in the US. It originated in the banking system and triggered off by subprime mortgages. It has amply exposed the basic weaknesses of interest-based banking system governed by capitalistic values. For profit maximisation, on which their remuneration depends especially bonus bank managements lower their guards as to the risk involved. The result is obvious. Experience has discredited interest as an instrument of monetary policy and the role of the banking system relying so heavily on interest is being questioned and drastic changes being talked about to reign it.
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The bonus culture has also come into limelight and may attract restrictive rules. Banking is going to be an altogether different ball game. Capitalism, instead of doing something for equitable distribution of income and wealth enabling every one to own things of his own, has come up with an ingenious device, which gives a false feeling of enjoying certain things but exploits them for the benefit of the rich through bank profits. This is consumer credit which gives the borrower the satisfaction of keeping up with Joneses but makes him intensely tense because of the worry about payment of instalments and fear of losing the facility in case of the slightest default Borrowers were quick to realise that it was no fun as they, in case of a default, had to confront rough necks hired by banks to effect recovery of loan. On court advice, the SBP had to issue instructions to banks to soften their approach. As a result, credit declined substantially. Islamic banks involvement has been more than the conventional banks. Islam is against living on borrowed funds and teaches simple living within ones means. The most important cardinal principle of Islam is justice tinged with compassion-Adal and Isn, and has the utmost concern for orphans, weak and the naive. Unless Islamic banks reflect these concerns in their policies and practices they cannot be truly Islamic. For this, they will have to give up the greed for maximisation of profits, and be content with modest profit, which Islam allows, and work for the general welfare of the society. Islamic banks must accept this social responsibility. While giving reasonable and fair return to depositors, they must re-orientate their lending of making the rich richer. In sum, Islamic banks have to be a unique breed of banking conforming to the basic values of Islam, not only in letter but also in spirit, overarching the guiding force of taqwa- fear of Allah. This is just not a religious dogma. The Quranic verse on prohibition of interest reads: O ye who believe! Fear Allah and relinquish what remains of interest, if you are believers. (Courtesy: Dawn, 12th July, 2010).
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HYSTERIA AND THE VEIL

GWYNNE DYER
Soon after Frances National Assembly passed a law making it illegal to wear a full-face veil in public, British MP Philip Hollobone announced a private members bill recently that would make it illegal for people to cover their faces in public in Britain. Neither bill mentioned Muslims by name, of course. Hollobone has previously called the Islamic veil offensive and against the British way of life, so we may safely assume that his bill is not aimed at people wearing motorcycle helmets. We can also assume that it will never become law, for British immigration minister Damian Green immediately replied that telling people what they can and cant wear, if theyre just walking down the street, is a rather un-British thing to do. But it cannot be denied that a great many Europeans feel profoundly uneasy when they see shrouded, masked women moving silently in their midst. The veil predates all the Abrahamic religions. They all come from the Middle East, and thats why they all Jews, Christians and Muslims used to be obsessed with female modesty. The principle of modesty was a way of controlling the behaviour of women who had the power to upset the social order, so how poor women behaved didnt matter. The early Mesopotamian laws ordaining the veiling of women applied only to the wives of powerful men. Several thousand years later, Greek, Roman and Byzantine upper-class women still went veiled, while their poorer sisters moved freely with their faces uncovered. The burka was largely confined to the hill tribes of what is now the Pakistan-Afghanistan frontier area. So why have women in non-rich Muslim families living in major European cities now taken to wearing
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full-face veils or even burkas? France estimates that only 2,000 women go about fully veiled, and the real numbers for Britain are unlikely to be much different. But why are they doing it at all? Two generations ago, their grandmothers almost certainly did not. One reason is fear, on their own part or that of their husbands, that the majority societys values are so powerful and seductive that good Muslims must be completely isolated from it. This also explains why you regularly see little girls as young as two or three wearing hijab in Paris and London: their parents believe that the habit must start very early. A second reason is defiance. Both anecdotal evidence and personal observation suggest to me that a large proportion of the fully veiled women in Britain are actually recent converts to Islam who grew up in the dominant post-Christian culture. Same for France. Converts often get carried away. So which part of this is a threat to public order? None of it, obviously. Why did a ridiculous law banning the full veil pass through the French parliament without opposition, whereas a similar bill will never reach the floor of the British House of Commons because the British are the heirs of one of the great battles between religion and the secular state. Britain hasnt seen such a battle since the 17th century, and the official religion just gradually retreated to the sidelines of modern life without a fight. And what about Belgium, the Netherlands, Austria and Switzerland, where similar bans have been or are being discussed at the national level? They should be ashamed of themselves. (Courtesy: Dawn, 20th July, 2010).
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DOWRY IS NOT ISLAMIC

NILOFAR AHMED
The giving of dowry is often equated with a religious ritual, but in the fiqh there is no mention of any such concept.
Despite the Prophets ( ) efforts to elevate women to the point where they, like men, acquired legal and social rights, in South Asia the birth of a daughter remains something to mourn or, at best, to tolerate with perseverance. Among other reasons for the low value given to daughters is the feeling that she will not be able to contribute anything to the family, and will only put a burden on finances because of the age-old custom of dowry, which will be given to her at the time of her marriage. The giving of dowry is often equated with a religious ritual, some even attributing it to the Sunnah. In the books of the fiqh, where such detail is found about other matters, there is no mention of any such concept regarding a bride. The Arabic word tajheez, means to prepare someone for a journey, etc. The goods prepared are called jahazun. From this the Urdu word jahez has been coined. In cultures where the daughter did not have the right to inherit property, she was given something at the time of her marriage as compensation. In India, the tradition of kanniya daan existed in which they tried to make up a little for the fact that the girl was not going to inherit any property. Also, because of the daughters weak legal position, the brides family gave expensive gifts to the grooms family but received nothing in return. In some cases, the custom of demanding jahez developed with extreme cases demanding expensive items at the time of the wedding or threatening to call the ceremony off. Muslims in India, most of them being converts, retained the tradition and gave it the Arabised name jahez. People try to outdo one another in giving dowry to their daughters, so much so that the custom has taken
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root of displaying the goods for public viewing. It is considered a good deed to help in the procurement of jahez for poor girls, who would not be able to get married otherwise. It has also become a compulsion for the girls families to spend beyond their means on wedding expenses, so that a father who has several daughters is constantly in debt and the family leads a miserable life because of it. Sometimes, a family has to dispose of valuable property simply to take care of the wedding expenses. In the case of the example of the Prophets daughter, Fatima, we learn that Ali came to the Prophet ( ) and expressed his wish to marry her. The Prophet ( ) asked him if he possessed anything to offer as mehr. He replied that he had a horse and a saddle. The Prophet ( ) advised him to keep the horse and to sell the saddle. So he went and sold the saddle for 480 dirhams to Usman and put all the money in front of the Prophet ( ). The Prophet ( ) prayed for the well-being of Usman for paying a good price and at the same time gifting the saddle back to Ali. The Prophet ( ) then sent for some perfumes and gave the rest of the money for wedding preparations. The necessary items of daily use found on record to have been prepared for this wedding were a cot or woven bed, two pillows made of leather, two striped bed sheets, one quilt, two amulets? one goat-skin for carrying water, two pots for water, one hand-grinding mill, one cup and one prayer mat. Whatever the list of items, it is confirmed without any shadow of doubt that these items were selected and prepared by the Prophets family, but the cost was borne by the groom. Ayesha, along with other women, cleaned the house in which Fatima was to move in; they prepared the floor by layering it with fresh clay, made the bedding, filled the pillows with a special grass and made wooden hangers for clothes. The Prophet ( ) is reported to have said that the best nikah is one in which the least amount has been spent. Those who can afford to give jahez should be the ones to oppose it and explain to the family of the groom that jahez is not an Islamic tradition. If, in every wedding, the families tried to do a little less than what their friends and relatives did, these wasteful customs could be contained to eventually die out. (Courtesy: Dawn, 23rd July, 2010).
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IBN TAYMIYYAS SHADOW

REVIEWER OF DAWN
On May 22, 2003, 10 days after a series of suicide bombings in Riyadh, a leading Saudi newspaper published an article entitled The individual and the homeland are more valuable than Ibn Taymiyya. The author, Khaled al-Ghanami, placed ultimate responsibility for the terrorist attacks on the medieval theologian and jurist Taqi al Din Ibn Taymiyya (1263-1328). For al-Ghanami, it was the blind adherence to Ibn Taymiyya, and his long posthumous shadow, that stimulated violence and intolerance: How did these murderers justify the shedding of the blood of Muslims and children? They did this based on a fatwa of Ibn Taymiyya on jihad, in which he rules that if infidels take shelter behind Muslims, and these Muslims become a shield for the infidels, it is permitted to kill the Muslims in order to get at the infidels. Ibn Taymiyya did not base his fatwa on any verse in the Quran, nor on any saying of the Prophet ( ). I dont see this fatwa as bringing about the ultimate goals of the Shariah, but rather it is a mistaken legal opinion, that goes against the way of the Prophet ( ). Let us say this honestly: Our problem today is with Ibn Taymiyya himself. Some of our jurists have taken Ibn Taymiyya to be their sole yardstick, and elevated him to a position he never enjoyed in his own lifetime, in his own land. It is not for the first time that Ibn Taymiyya had been identified as the ultimate trouble-maker. A refugee from a city in northern Syria that had been devastated by the Mongols, and a member of the minority Hanbali community in Damascus, Ibn Taymiyya rose to public prominence during the brief Mongol occupation of Syria in 1300 C.E. While most of the civilian and military elite fled, Ibn Taymiyya stayed put, bravely representing the ravaged city in front of the Mongol
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generals. When the Mongols withdrew and the authority of the Cairobased Mamluk sultans was restored, he set out to preach an increasingly radicalised programme of religious reform. Committed to direct action, on a few occasions he even led bands of disciples against what he perceived to be un-Islamic practices. But it was mostly his words that his contemporaries found inspiring or, more often, unsettling. He was put on trial three times, first for supporting a literal interpretation of Gods attributes, then for undermining the power of legal oaths, and finally for denouncing the popular practice of tomb visitation. Criticism also came from the direction of fellow scholars. His disciple and colleague al-Dhahabi thought he was cantankerous, arrogant and tactless, and the Moroccan traveller Ibn Battuta, when passing through Damascus, noted in his journal that Ibn Taymiyya had a screw loose. Today, few figures from the medieval Islamic period can claim such a hold on modern Islamic discourses. Revered by the 18-century Wahhabi movement in the Arabian Peninsula, Ibn Taymiyya also inspired like-minded reformers, as near as Iraq and as far away as Indonesia. Later on, Ibn Taymiyya was hailed as the architect of Salafism, the concept espoused by revivalist movements calling for a return to the pristine golden age of the Prophet Muhammad ( ). For these modern groups, Ibn Taymiyya stands out not only because he claimed to be following the footsteps of the salaf, the first three generations of Islam, but also because of his active involvement in society and his defiant stand against foreign occupation. In the last few decades Ibn Taymiyyas name has become associated with political violence and terror, especially since his works were cited by the radical group responsible for the assassination of the Egyptian President Anwar Sadat in 1981. A recent book on Islamic extremism, The Age of Sacred Terror, treats the entire history of modern Islamic movements; from the Syrian reformer Rashid Rida (d. 1935) through the Pakistani al-Mawdudi (d. 1979), the radicalism of the Egyptian Sayyid Qutb (d. 1966) and, eventually, Al Qaeda, in a single narrative improbably, yet significantly, entitled Ibn Taymiyya and his children. Yet Ibn Taymiyya is more often cited than understood, constantly evoked and not sufficiently studied. This is partly due to the wide scope
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of his interests and his immense scholarly output the modern incomplete edition of his works spans 35 volumes, which are written in a characteristically digressive, disjointed style that bears the marks of brilliant insights hastily jotted down. Both friends and foes acknowledged that Ibn Taymiyya had a breathtaking mastery of the Islamic intellectual tradition. The combination of rationalism and traditionalism is perhaps the most distinctive trait of Ibn Taymiyyas religious thought, and it is the focus of the contribution of Mehmet Sait Ozervarli, who terms Ibn Taymiyyas theology Quranic rationalism. For Ibn Taymiyya, rational and traditional proof exist together as two complimentary components of knowledge that are not truly separate from each other. Reason (aql) does not and could not contradict revelation (naql), because revelation, all inclusive and faultless, contains within itself perfect and complete rational foundations. (Courtesy: Dawn, 25th July, 2010).
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WHITHER SUFISM?
AMAR JALEEL
O Bahu, rainfall is a wasted offering Sultan Bahu
After an absence of fifty years, I visited the abandoned and forgotten hub of pure Sufism in Karachi. I had been a regular participant of the soul-soothing lectures delivered in the hub, call it centre. The period stretches from 1951 to 1965 the years when I was a student. The thought-provoking lectures inculcated peace, harmony, mutual respect for each other and love for the ailing humanity. The scholars, Ms Gool Minwala in particular, profusely quoted from the holy books of all religions to emphasise that no religion advocates hatred, violence and bloodshed. The philosophical sprit of all religions is the love, welfare and well-being of mankind. After delivering the lecture, the eminent educationists and scholars encouraged the participants to partake in question-answer sessions. Lively discussions eradicated the confusions lurking in the mind of the listeners. It was a period of great learning experience. It was the finest form of puritanical Sufism. There is no creator, but One Creator; the pagan and the pious are His creations. We all belong to Him. Those lectures were attended by Muslims, Hindus, Parsees, Christians and Buddhists. The people bestowed with a humane heart, irrespective of their faith, belief, caste and creed, were frequent visitors to the Sufi hub. It was managed by the Parsees, the most gentle and kind-hearted people of Karachi. At the top of the majestic gate of the centre was once inscribed Theosophical Hall. It is situated on Bunder Road, now called M.A. Jinnah Road, opposite the deserted Anglo-oriental building that till recently had housed the Radio Pakistan Karachi for over
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half a century. Prior to the partition of India, the abandoned building of the Radio Pakistan was the office of the District Local Board. Aghast, I stood dumbfounded in front of my hub of pure Sufism. The frontage gave melancholic impression of unhappiness. Seemingly gloom had descended on the centre that had inculcated peace, love, tolerance and respect for each other in the masses from the days when India was not partitioned. The huge gate painted black was closed. I raised my head, and looked at the magnificent entrance. I almost shuddered. The inscription, Theosophical Hall was missing. It was replaced. The hall was named after the kind-hearted Parsee philanthropist Jamshed Nusserwanjee. The inscription read, Jamshed Memorial Hall. It was mind-boggling. An inquisitive why got hold of me. Jamshed Nusserwanjee was a very dear personal friend of Quaid-e-Azam Mohammed Ali Jinnah. He had opened schools, charitable clinics, maternity homes and hospitals in Karachi. He, without making it obvious, funded educational institutions, and bore educational expenses of the poor and the orphans. He helped the needy in establishing their own small-time businesses. What made him so graceful was that he always kept a low profile. Humbleness was the hallmark of his personality. The Quaid-e-Azam in his company had visited a massive refugee camp on the Maripur Road. Seeing human misery at its worst, the Quaid was shocked. His eyes filled with tears and he murmured to Jamshed Nusserwanjee, It had never occurred to me that things would turn out to be like that. Incidentally, a few months thereafter, he arrived at the Maripur Airport from Quetta terminally sick. It was the unbearably hot and humid afternoon of September 11, 1948. While being taken to the Governor House his junky ambulance broke down near the same refugee camp. The Quaid was stranded on the road for hours in the agonising afternoon that quickened his departure from this world the same night. I knocked at the huge gate of Jamshed Memorial Hall. A uniformed guard partially opened the gate. I told him that the purpose of my visit was prearranged. Being aware of it, he let me in. I was interested to see the theatre-cum-auditorium and the library. Apart from attending the lectures on the philosophy of Theosophy and Sufism, my stage plays that I had penned, adapted or directed for Pakistan Theatres and The National Theatres were staged there between 1960 and 1963. I entered the deserted
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theatre/auditorium which gave a haunted look. At the same venue were staged remarkable plays like Taleem-e-Balghan, and Mirza Ghalib Bunder Road Par written by Khwaja Moenuddin. The auditorium has eight doors for entry and exit from the hall. In the olden days, when sanity had prevailed in society, icons or symbols of eight major religions of the world were fixed atop each door. To my dismay, the icons had been removed. Reason? The wave of terrorism! From the balcony in the auditorium I looked at the stage. My heart sank. The elegantly inscribed quote from Theosophy, No religion is higher than the TRUTH, atop the stage, was missing. Why was it removed? Due to the fear and threats from the extremists! What was irreligious in the quote from any religions point of view? Were there no religious scholars and the learned in Karachi when the quote had adorned the auditorium brow for over eighty years? The essence of the quote is simple. There is no creator, but One Creator. He is Infinite. Communities the world over have given Him various names and identities, but He remains One, and One Alone. Can any religion be higher than God? No. It is a perpetual truth. Thus, No religion is higher than the truth. It is puritanical Sufism. [The writer is a creative columnist and a short-story writer]. (Courtesy: The News, 25th July, 2010).
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POLYGAMY AND THE QURAN

NILOFAR AHMED
Polygamy is allowed only in a stressful situation to provide security to orphans, divorcees and widows.
Polygamy were something to be encouraged and supported in Gods scheme of things the ratio of men to women throughout history would not have relatively remained the same. The Arabic word for spouse in the Quran is zawj, meaning one of a pair. This word is applied even to a pair of shoes or socks. A husband is the zawj of the wife and the wife is the zawj of the husband. As a rule, and like in all pairs, husband and wife are supposed to be one each in number. It is only in exceptional situations that this rule is allowed to be broken. In his book Fiqh-ul-Quran, Maulana Umar Ahmed Usmani says that in Surah Al-Nisa it is stated that God created mankind from one nafs and created its mate from it and then produced from them an unlimited number of men and women (IV:1). Even at the time when there was a need to multiply in order to populate the earth, only one man and one woman were created. He also says that the verses about polygamy were revealed in connection with an increase in the number of women because of battles which left many widows and female orphans behind. We will have to look at the verse in the Quran which is said to sanction polygamy. Surah Al-Nisa, verse 3, was revealed after the battle of Uhud in which 70 out of a total 700 men were martyred. The problem of widows and orphans, especially orphaned young women, reached an alarming proportion. The traditional translation and interpretation of this verse is: If you
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feel you cannot be just to orphan [girls], then marry [other] women of your choice, two, or three, or four. But if you fear you cannot treat them with equity, then marry only one (IV:3). Maulana Usmani thinks there is no indication of other women in the original. These verses were also revealed to limit the maximum number of wives to four. According to some, this verse can be said to limit the number of wives to one. Later, in the same Surah mention is made of yatama an-nisa or orphaned women: Whatever is recited to you in the Book about orphaned women, whom you do not give their rightful dues yet desire to marry, and about young children, that you should remain steadfast in the matter of yatama (IV:127). The word yatama is also applicable to widows, or those women who do not have a supporter or a guardian. According to the Arabic-English Lexicon, amatun means, she became bereft of her husband by his death and remained without marrying. Imam Abubakr Razi says that the word yateem is sometimes used for the child who is left fatherless and sometimes for the woman who, either because of her husbands death or due to being divorced, is left single. Even aged women who have lost their husbands are called yateema. According to Maulana Usmani, in the light of the above definition of yateema, if we go back to look at verse 3 of Surah Al-Nisa, we understand it means that if you cannot be just to the yateema in your charge, then marry the yateema not in your charge, up to four. The use of al-nisa makes the women definite, that is those already mentioned. Usmani also thinks that this permission of polygamy is conditional upon social conditions, such as providing homes to the yateema. The Prophets ( ) wife Ayesha related that before these revelations, the guardians would be attracted to female orphans who were rich and beautiful. They would want to marry them for the least possible mehr. The Quran forbade them from marrying such girls since they did not plan to be just to them. When we look at the example of the Prophet ( ) we find that except for Hazrat Ayesha, all of his wives were yateema, or women who had lost their husbands. In the case of taking more than one wife, the conditions of equal treatment are stated clearly: You do not possess the power to treat your wives equally, even if you try. So do not become totally absorbed in one, leaving the other suspended (IV:129). Concern is shown at every step
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for women so that the conditional concession of polygamy might not be misused against them. From the above verses it can be concluded that monogamy remains the ideal while polygamy is discouraged and is only a special concession in a stressful situation, especially to provide security to the yateema: the orphans, divorcees and the widows. (Courtesy: Dawn, 6th August, 2010).
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RISE OF ANTI-ISLAM FRENZY IN AMERICA

KARAMATULLAH K. GHORI
It turned out to be the show that never was. Reverend Terry Jones farcical threat to burn the copies of the Holy Quran just fizzled out as a damp squib. But the phony reverend with the looks of a nightclub bouncer had his moments of cheap fame and glitz; and thats exactly what he set out to achieve from the moment he embarked upon his hate campaign. Seeking their 15-minutes of fame is a dream with millions of Americans; even a trifle spot on prime-time television, for the weirdest of reasons, is what pumps their heart and brings the adrenalin running. Terry Jones was no exception to this mad hunt for fame and stardom. However, it wasnt just a case of a prankster or a bigot whipping up media frenzy with his disgusting antics. To those keeping their focus on the American scene, Jones act was symptomatic of the disease stalking its socio-political landscape, from one end to another. Its, in more senses than one, the tip of the proverbial iceberg with the lethal potential to sink Americas pre-eminent Titanic of secularism and democracy. Terry Jones tempest in a tea-cup triggered frenzy not only in the media, to the delight of the jaundiced reverend, but it also jogged the Obama administration into serious damage-control. That fact alone underlined the gravity of the challenge felt by Obama, and every other establishment guru, from Terry Jones threat to burn the book thats sacred and inviolable to 1.5 billion Muslims of the world. Full credit should be given to the Obama White House that it proved equal to the gauntlet and nipped the evil before it could wreak real havoc.
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But the real show was never in Terry Jones circus in an obscure corner of Florida. It was right there, at Manhattans Ground Zero where it has been for weeks since plans were unveiled to build an Islamic cultural centre in the vicinity of Americas sacred new shrine on the debris of what was, until 9/11, the epicenter of its capitalist glory. The storm of phlegmatic and vitriolic protest unleashed over the Islamic cultural centres project which has been purposely dubbed by its rabid detractors as a mosque-at-Ground-Zero is the ultimate litmus test of Americas rising Islamophobia. The cultural centres project is the brain-child of Faisal Abdul Rauf and his wife, both of whom have won accolades, across the board, for their moderation. They have been hailed as model Muslims pioneering bridge-building across the faith divides and setting shining examples of inter-faith harmony. Theirs is the 21st century paradigm and personification of the old Sufi dictum of Sulhe kul, or peace and amity with all. The Islamic cultural centre was initially named the Cordoba Project, evoking that golden age of Muslim leadership in arts, sciences and humanities in Andalusia (modern Spain) in which Muslims, Christians and Jews, alike, excelled and made quantum contributions to the evolution of modern learning, thus presaging the dawn of Renaissance in Europe. Jews were the greatest beneficiaries of Muslim patronage in Spain. A great Jewish scholar, Memonides arguably the greatest Jewish scholar of all times who wrote the seminal commentary of the Torah was a product of those times. He was a worthy disciple of the great Muslim philosopher and thinker, Ibne Rushd, or Averross, to the West. But this historical fact is now being blithely ignored by Jewish and Christian scholars. It was also ignored by the Anti-Defamation League (ADL), a wellheeled Jewish lobbying group in the US, which had no compunction in pitching into the anti-mosque chorus unleashed by right-wing politicians and evangelists. Apparently, defamation of Muslims isnt in the same league with Jews in America. Muslims, on the contrary, are fair game for targeted hate campaigns, and the one blowing against the Manhattan mosque with gale fury is the latest proof of it, if any were still needed.
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The anti-mosque campaign is, ostensibly, being waged in the name of relatives of some of those 2700 victims of the 9/11 blowing up of World Trade Centres twin towers. The battle-cry is that a mosque on the hallowed site of Ground- Zero would hurt the sensitivities of those who perished there. But what about the sensitivities of the seven million Muslims in America who are thus being reminded, in no uncertain terms, that their sensitivities should take a lower berth? Are American Muslims secondclass citizens? And what thought, if any, is being given to the memory of those 60-odd Muslims who worked at WTC and also lost their lives in the disaster? Werent they equally American with others who perished? Michael Moore hit the bulls eye when he pleaded, recently on his blog read by millions across the globe, that the so much-maligned mosque should be built, not in the vicinity of Ground-Zero, but on Ground-Zero. Moore has his own logic for this: it was there that 19 fanatical Muslims hijacked their religion of peace; so let peaceful Islam be returned to its billion-plus followers by building a mosque at the very site where the hijacking had taken place. But all such pleas of sanity and reason are being lost and ignored in the cacophony of shrill voices against Muslims and Islam by those pretending to be the real American patriots. Terry Jones also wanted to blackmail Imam Faisal by arguing that hed call off his sinister charade if the mosque wasnt built on its chosen site. The hate-mongering crowd against Park51Project, the new name given to it by its protagonists, a good two blocks away from GroundZero, isnt only made up of right-wing evangelists and their Zionist sympathizers but includes politicians like Newt Gingrich, an erstwhile Speaker of the House of Representatives and an ultra-rabid rightist who has gratuitously unfurled the flag of Muslim-baiting in the wake of the frenzy generated over the issue. Opposition to President Obamas policies is being fueled, in a snide vitriolic campaign focused on his Islamic roots. The hard core, right-wing, conservatives who hog the Republican Party have been carrying on an anti-Obama tirade by denouncing him as a closet-Muslim. His stout defence of the religious right of Muslims in America to build a mosque or cultural centre at Park51 has been seized by these Obama-baiters as gun powder to blast him with.
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A development, in tandem with the Ground-Zero-inspired Muslim baiting frenzy gone largely unnoticed outside North America is the recent launching of a new Tea Party movement to rally anti-Obama forces round the flag. August 29 was the 47th anniversary of that historic I have a dream speech of the late Martin Luther King, delivered from the steps of the Lincoln Memorial in Washington D.C., and which heralded a new era of the Black Americans struggle for racial equality. Many political pundits have argued that Obamas march into the White House wouldve remained a distant dream hadnt King inspired awareness that electrified mainstream Americans. But the anniversary of that epochal event was callously sabotaged, this year, with the launching, at that very site, of a divisive, hate-oriented and exclusivist Tea Party movement, which is an affront to the spirit of the original Boston Tea Party, back in the 18th century that triggered the American Revolution. The force behind the new Tea Party campaign is Glenn Beck, a disc-jockey by profession, who is a bigoted rabble-rouser like Newt Gingrich and has been targeting Obama in his radio talk-shows, especially on the theme of his being a closet-Muslim. He counts among his avid supporters Sarah Palin. It doesnt matter that a fanatic like Terry Jones couldnt carry out his threat to desecrate the Holy Quran. But his agenda of hate is getting a lot of traction in his motherland with millions of evangelists and neoconservatives. They desperately seek Armageddon, because their skewed understanding of scriptures tells them that, in its wake, theyd be the only people going to Heaven while all others would rot in Hell. Hillary Clinton may dismiss it as an act of aberration, to soothe frayed nerves around a word that this mad monk brought so close to a violent conflagration. But it isnt an isolated occurrence; it is American history repeating itself and, as always, in a tragic context. The earliest European settlers of America, ostensibly fleeing religious persecution in the old continent called themselves pilgrims and not immigrants. Religion has always been at the heart of America. Armed with an open license-to-kill from their Church, they exterminated millions of Red Indians to claim the land for themselves, before turning on millions of slaves from Africa and treating them worse than animals. That
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predatory instinct to wipe off the enemy is gathering mass, once again, in 21st century America. Hedy Epstein, a respected American political activist a Holocaust survivor known for her unstinted support to the Palestinian cause perhaps best summed up the paranoia sweeping the US landmass, from Atlantic to Pacific oceans. The biggest danger, the biggest threat to America is that we will scare ourselves into fascism, or into war. (Courtesy: Dawn, 19th September, 2010).
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INJUNCTIONS ON DIVORCE
NILOFAR AHMED
The proper way of giving a divorce is to pronounce it three times at intervals, once a month, for three months, in front of two witnesses.
Saying Talaq three times to effect a divorce has become part of the psyche of some Muslims in South Asia, to have the word ready to be blurted out three times whenever stress is felt in the husband-wife relationship. This act of pronouncing all three talaqs in one breath and its destructive and tragic fallout is the result of lack of knowledge about the injunctions on divorce in the Quran and hadith. The Holy Prophet ( ) is reported to have said that divorce is one of those permitted acts which is most disliked by God. When Hazrat Umar was the caliph, he used to punish those men severely who pronounced a three-in-one divorce. This is why if husband and wife cannot get along, two arbitrators, one from each side, should provide counselling to avoid a divorce (IV:35). As a last resort, if steps have to be taken to bring about a divorce, then the prescribed method should be followed, which is to pronounce it once after the woman is clear of her monthly cycle. Then both should live in the same house (65:1) for a month, during which time the husband will have the right to revoke the divorce. If he does not, hell have to pronounce a second divorce after one month. Then after the second monthly cycle is over, he will either have to revoke it or pronounce the divorce for the third and the final time, making it irrevocable: either the woman should be asked to stay honourably or asked to leave in the best way. It is not lawful for you to take back anything from what you have given them(II:229). If the man initiates the divorce, he is not supposed to take back any of the dowry or mehr given at the time of marriage or later as gifts.
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The presence of witnesses at the time of divorce is necessary to make the procedure of divorce complete: And appoint two honest witnesses from among yourselves, and give testimony for God (65:2). The divorced woman should restrain herself for three months before she re-marries (II:228). If he divorces her (three times), she will not be lawful for him after this, until she marries another husband and if he (the second husband) divorces her, then there will be no blame on either if they re-marry. (II:230) If the woman marries another man, with good intentions, but the second husband divorces her as well, only then she may remarry the first husband. In Surah Al-Baqarah, it is stated, When you divorce women and they complete their period of waiting, do not prevent them from marrying the husbands of their choice, when they have agreed mutually, in a befitting manner (II:232). But in Pakistan, sometimes a man divorces his wife and when she re-marries, he accuses her of adultery and has her and her husband booked under Hudood Ordinances. This is made easier when the divorce is not registered officially. In the case of khula, the unconditional right of the wife to initiate and obtain a divorce, she has to approach the relevant authorities (II:229). This means if the husband and wife are not able to live together with love and harmony, the woman can ask for a divorce. When she sues for a divorce, without bringing any charges against the husband, she has to return the mehr and the husband is allowed to take it back. There was the case of a beautiful woman, Jamilah bint Abi bin Salul, who came to the Prophet ( ) and conveyed to him that she could not bear to be with her husband, Thabit bin Qais. She found him unattractive. The Prophet ( ) asked her if she was willing to return whatever mehr he had given her. When she consented, he sent for her husband, discussed the matter with him and brought about a divorce between them. In case pregnant women are divorced, there are instructions to treat them well, if they are pregnant spend on them till they lay down their burden (65:6). The father is responsible for all the needs of his child. During the time that the divorced wife nurses the child, the father should pay for the mothers upkeep as well. The parents should cooperate in the matter of the children: The mothers should nurse their children for a total of two years. This is for those who wish to complete the nursing
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period. And on him whose child it is, is (the responsibility of) feeding and clothing (even of the divorced, nursing mother), in a befitting manner (II:233). So the proper way of giving a divorce is to pronounce it three times at intervals, once a month, for three months, in front of two witnesses, right after the womans monthly cycle is over, while she should be living in the same house as the husband. All the jewellery or wealth, etc., given to her will be her property. In order to reform society and, to protect husband and wife as well as their children from undue suffering, the Quranic method of giving a divorce should be explained by our scholars, who should be convinced to make people aware of the right and wrong methods of giving a divorce by mentioning these details in their sermons and lectures. (Courtesy: Dawn, 24th September, 2010).
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ISLAM AND EUROPE

SHADA ISLAM
Having agreed to the last-minute cancellation of his self-declared International Burn a Quran Day, Pastor Terry Jones of Florida has thankfully disappeared from the headlines, his hate-filled Islamophobic diatribes no longer dominating the headlines or poisoning the airwaves. It would be a mistake to cry victory over madness, however. Even as Pastor Jones fades from the news, a string of Islam-hating European politicians appear to be taking his place, seemingly competing with each other to make the most outlandish and outrageous claims against Muslims and Islam. After gains made this year by far-right parties in Belgium and the Netherlands, Swedens anti-immigration Sweden Democrats party passed the electoral threshold for the first time in the recent elections and won 20 seats in parliament. The centre-right coalition of Swedish Prime Minister Fredrik Reinfeldt and the left-wing opposition are refusing at least so far to work with the Sweden Democrats, hoping to avoid a scenario similar to the one in the Netherlands where Geert Wilders Freedom Party dominates the political landscape and could end up in a coalition government if one is ever formed by that countrys bickering politicians. Like his far-right counterparts in other European countries, Sweden Democrats leader Jimmie kesson has a simple agenda: ending immigration, being tough on Muslims and demanding a much stricter integration policy. The Swedish politician could be the clone of his Dutch counterpart Wilders who has become an inflammatory critic of Islam by advocating a ban on the Quran, taxing women who wear headscarves, banning the construction of new mosques and ending all immigration to the Netherlands from Muslim countries.
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As the xenophobic parties become shriller, Europes mainstream parties are slowly but surely adopting some of the extremist rhetoric and get-tough on Islam messages of the far right. At an EU summit in Brussels last week, French President Nicolas Sarkozy was loudly criticised by his colleagues for his tough clampdown on Roma or gypsies. But in fact, many European countries are engaged in similar but less publicised schemes to send the Roma back to their countries of origin, including Romania and Bulgaria. France will also soon ban the burka, a move likely to be followed by several other countries in Europe, including Belgium. Switzerland has banned the construction of minarets while shops and restaurants selling halal meat are often derided as having sold out to Muslims. In Germany meanwhile, Thilo Sarrazin, a former economist with the Bundesbank, has stirred acrimonious controversy with his book, Deutschland schafft sich ab or Germany does away with itself. Mr Sarrazin argues among other things that the right sort of German women are having too few babies and that the wrong sort Muslims and those with little education are having too many. The result is that not only Germanys population is shrinking, it is also getting dumber. The anti-Islam rants in America and Europe may appear similar but there are differences. While the focus in America appears to be on Muslims as wouldbe terrorists and a security threat, the debate in Europe is dominated more by a discussion of identity: whether Muslims, with their conservative values and foreign customs, can ever be truly integrated as full-fledged European citizens. Europes anti-immigrant, anti-Muslim debate has an unpleasant racist undercurrent, which is often denounced by European Jewish leaders as an ugly reminder of the continents past. Economic uncertainty, fears for Europes future, concerns about globalisation and Europes place in the new world order are also fuelling the anti-Muslim discourse. Lost in this hysteria is any reference to the reality of European Muslims lives and their very real integration into the mainstream economic and political life of their country. One reason for the lopsided discourse is that while the hatemongers become ever more strident and outrageous in their comments, the voices of reason on immigration and Muslims remain strangely silent. I have yet
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to hear a European politician tell the real truth about Muslims and immigrants contribution to their countrys economy, culture or history. Business leaders may sometimes point out timidly that ageing and skills-deficient Europe needs foreign labour, but their arguments are lost in transmission. In all honesty, too, intelligent and reasonable Muslim voices are also heard much too seldom. Some European media, meanwhile, generate more hostility among communities by seeking out extremist opinion within European Muslims. The rise of the far-right is having an impact on Europes global standing, especially in the Muslim world. Indonesias ambassador to the Netherlands, Yunus Effendi Habibie, said in a recent interview that the planned October visit by Indonesias President Susilo Bambang Yudhoyono would be very much in doubt if Wilders is part of the next coalition government. Of course the president will not come here if there is someone in the cabinet who says Islam is backward. I do not want my president to be seen as a clown, the ambassador told the paper. He went on to say that the relationship between the Netherlands and its former colony would be hurt if Wilders joins the government. Turkeys bid to join the EU has also fallen victim to anti-Islamic sentiments. European Union Commission President Jose Manuel Barroso noted recently that Turkeys ambitions to join the bloc are being thwarted because of cultural differences and a change in attitude toward Turkey. Its no secret: when EU politicians talk about differences in cultures and values, what they really mean is that Turkey is a Muslim country, albeit one with a secular constitution. [The writer is Dawns correspondent in Brussels]. (Courtesy: Dawn, 25th September, 2010).
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THE QUEST FOR INTERFAITH HARMONY

S. IFTIKHAR MURSHED
When pastor Terry Jones vowed he would burn 200 copies of the Quran to commemorate the ninth anniversary of the 9/11 tragedy, he unwittingly demonstrated that it is not Islam alone that has a lunatic fringe of extremists. The fanatical cleric of Gainesville, Florida, and his small group of some fifty followers from the Christian non-denominational Dove World Outreach Centre held the world enthralled because the outrage would have had far-reaching consequences. Though only a miniscule minority may be responsible for such thoughtless acts in the name of religion, their ability to derail international peace and security cannot be underestimated. Only nineteen people were involved in the 9/11 incidents but the fallout was global and prompted the US-led invasion and occupation of Afghanistan and Iraq. At another and a far deeper level, a perception emerged about the inevitability of a conflict between Islam and the West. An outcome that Terry Jones had not foreseen is that his mad outburst would be roundly condemned by world opinion. The Vatican described it as an outrageous and grave provocation, Jewish leaders termed it as despicable, President Barack Obama said it had provided Al Qaeda an unexpected recruitment-windfall, Secretary of State Hillary Clinton implored the pastor to renounce his venomous agenda, and General Petraeus warned that the unconscionable sacrilege would endanger American troops in Afghanistan. The international reaction, if deftly handled, could facilitate the start of an interfaith dialogue for the purpose of establishing harmony between civilisations. This will take time because of the bitter experience in the past. The conflict between Islam and the West is not a post-Cold War phenomenon as Huntingtons Clash of Civilisations theory imagines
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it began with the early years of Muslim ascendancy in the seventh century and predated the Crusades by several centuries. According to Karen Armstrong, the bitter history of Muslim-Western relations began in Muslim Spain in AD 850, when some fifty Christians were executed after scurrilously blaspheming Islam. These so-called martyrs of Cordova were as far removed from true Christian doctrine as are the present-day Islam-professing suicide bombers from the teachings of the Quran. They were sternly criticised by the bishop of the city as well as by the majority of Christians in al-Andalus. Armstrong believes that this heralded the start of a cold war between Christendom and Islam which was to explode into hot-blooded conflict with the launch of the Crusades. With the collapse of Muslim power, Islam continued to be looked upon with ill-disguised contempt. The message of the Quran was distorted and its prophet was vilified. Even Oscar Wilde, an icon of the literati in Pakistan, succumbed to this temptation when he wrote in his The Fisherman and his Soul: Then he asked me who was the prophet of God, and I answered him Mohammed ( ). When he heard the name of the false prophet, he bowed and took me by the hand, and placed me by his side. The first step towards promoting interfaith harmony is to revisit the blasphemy laws that exist in several countries including those in the west. Such laws are incorporated into the penal and criminal codes, for instance, of Austria (article 188,189), Finland (section 10 of chapter 17), Germany (article 166), New Zealand (section 123 of the Crimes Act 1961), Switzerland (article 261), Norway (section 142), Denmark (section 140), Spain (article 525) and others. Although the First Amendment of the US Constitution guarantees almost unlimited right of free speech, some American states still have blasphemy laws, for example Chapter 272 of the Massachusetts General Laws prescribes imprisonment for not more than one year or, alternatively, a fine of not more than three hundred dollars. However the laws against blasphemy in western societies are seldom applied, this, at times, does result in unleashing vicious propaganda against those subscribing to a different faith. A case in point was the publication of twelve highly offensive cartoons of the Holy Prophet Muhammad ( ) by the Danish newspaper, Jyllands-Posten, on Sept 30, 2005. There was
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justified public outrage in the Islamic world but, to add insult to injury, the cartoons were reprinted in the newspapers of more than fifty other countries on the pretext of free speech. Though the Danish prime minister at the time, Anders Fogh Rasmussen (currently the NATO secretary general), described the fallout as the worst international crisis faced by his country since World War II, he did not agree to a request for a meeting forwarded from eleven ambassadors of Muslim countries and, instead, the envoys were told in a letter: The freedom of expression has a wide scope and the Danish government has no means of influencing the press. In October 2005, a number of Muslim organisations filed a complaint with the police against Jyllands-Posten under sections 140 and 266b of the Danish Criminal Code. However in January 2006, the Regional Prosecutor of Viborg terminated the investigation on the ground that the cartoons did not constitute a criminal offence. In fact, the only instance when a sentence was awarded under section 140 was in 1938 against an anti-Semitic group. Several Muslim-majority countries as well as those in the west go to diametrically opposite extremes in their laws on blasphemy. The former impose harsh penalties, including capital punishment, in the name of religion though these were never specifically authorized either by the Quran or the authentic traditions of the Prophet ( ). The latter, under the guise of unfettered freedom of expression, unwittingly condone the infliction of verbal violence and insult on entire communities for no better reason than their religious denominations. Although conflict and tension between Islam and the West have been prevalent through history, after 9/11, hasty, perhaps even thoughtless, opinions have emerged that the recurring and incremental acts of terrorist-violence demonstrate that Huntingtons warning of a clash of civilisations is fast becoming a reality. The opposite is probably more correct. For the first time, Muslims and non-Muslims alike face a common enemy in the form of terrorism. Though a majority of those who have carried out such acts profess Islam, Muslims themselves are the foremost victims of extremist violence. Moreover the Islamic world has ceased to be the unified monolith that it was in the early years of Muslim ascendancy and, therefore, cannot possibly pose any threat to the international community.
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The contemporary challenge to global peace and security is far more complex than the interstate conflicts of the past. The international community has not even been able to reach an agreed definition on terrorism, from which no nation is immune. Terrorism is the symptom of a malaise that feeds on perceived political and economic inequities. Till the causes are redressed, the symptoms will keep reappearing with or without Al-Qaeda and similar outfits, with or without persons such as Osama bin Laden and his likes. It is the idea, therefore, that has to be vanquished. Muslims need to wake up from their slumber of centuries and re-establish the fundamental tenets of their religion. Similarly, there is also need for the international community to stop stereotyping Muslims as extremists and understand the Qurans doctrinal emphasis on nonaggression and peaceful co-existence. If this is achieved, then genuine cooperation between Islam and the West will replace the hostility that has lasted for centuries. [The writer publishes Criterion quarterly, e-mail: iftimurshed@gmail.com]. (Courtesy: The News, 26th September, 2010).
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BECOME ANSAAR
HARRIS KHALIQUE
In a recent interview, Farooq Sattar referred to the present generation of post-1947 migrants from India as Urdu-speaking Sindhis. It is encouraging to hear that. For millions like Sattar, whose ancestors belonged to different provinces of India where Urdu/Hindi are not spoken as first languages, it is an accepted reality now that their identity is merged into a larger political identity of Urdu-speaking in Sindh. It will be ideal even if that distinction, the qualifier he used with Sindhi, doesnt remain valid over the years. There are people who speak more than one language as their mother tongues but being weaved inseparably into a socio-economic fabric, feel and behave as one national or political entity. Baloch, for instance, include both Brahvi and Balochi-speaking people. Sindhi is also spoken as the first language by many in north-eastern Balochistan. But they all see and define themselves as Baloch. Best would be that all children are seriously taught both languages in Sindh. Sindh has suffered a lot in the wake of the partition of 1947, both at the hands of the feudalist state and due to a combination of opportunism and insecurity displayed by the migrant elite of yesteryear. There are structural reasons also. Since a short-term administrative divide would inevitably lead to a political divide, the separation of Karachi from the rest of Sindh province in 1948 created a wide gap. That gap could not be filled even after the city was returned to Sindh at the time of the abolition of the one-unit and shifting of the capital to Islamabad. It is about time that Urdu-speaking Sindhis wholeheartedly own Jacobabad and Ghotki as much as they own Karachi and Hyderabad. They live all across Sindh with bigger concentration in four of its larger cities. When refugees arrived from India during and after partition, Sindhis
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embraced them in villages, towns and cities with open hearts. They were most hospitable and housed the largest number of refugees in proportion to their population. Punjab absorbed the most in terms of absolute numbers but it was different in the sense, that most had come from those districts of Punjab (and now Haryana), which had become part of India. Sindh welcomed diverse people from UP, Delhi, CP (now MP in India), Bihar, Rajasthan, Gujarat, Andhra, Tamil Nadu, Kerala, East Punjab, etc. Also, a large numbers of Biharis arrived and settled in Karachi after the fall of Dhaka in 1971. The demography, culture and polity changed, first in 1947 and then in 1971. The relationship between the old and the new population in Sindh was strained at times and the fire was stoked by political interests, sometimes resulting in bloody riots in the past. The responsibility for mistrust and tension cant be laid on one single actor but the migrant elites machinations from the initial days are perhaps more to be blamed. Who could ever question that common folk of Sindh provided food, water, shelter and security to the helpless migrants from India, the grandparents of those who have lived, worked and prospered in the province, particularly Karachi, over the last six decades? In Karachi, they form the largest group of permanent citizens. Ruthless flooding of the Indus and complete annihilation of peoples homes and livelihoods in Sindh gives the Urdu-speaking Sindhis a chance to acknowledge what the forebears of todays severely affected population did for their earlier generations. Time to open your doors to them in North Nazimabad, Federal B Area, Clifton, DHA and Gulshan-e-Iqbal. Why should they be restricted to neighbourhoods and camps in rural Karachi? [The writer is an Islamabad-based poet, political analyst and advisor on public policy, e-mail: harris.khalique@gmail.com]. (Courtesy: The News, 3rd November, 2010).
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OBITUARY
DR. MAHMOOD AHMAD GHAZI We regret to announce the passing away of Dr. Mahmood Ahmad Ghazi, one of the esteemed members of the Editorial/ Advisory Board of the Hamdard Islamicus on Sunday 26th September 2010 at the age of sixty. He was associated with the Hamdard Islamicus for nearly two decades, since 1991. His presence was always a source of strength for the journal and the management. Dr. Ghazi, belonging to a well known scholarly family was noted for his cosmopolitan approach and a policy of peace with all. He supported the cause of fulfilling the chasm separating different fiqh schools among the Muslim Ummah, a cause which has recently been supported by the Khadim al Haramain Sharifain King Abdullah Bin Abdul Azizs call for a common fiqh. Dr. Mahmood Ahmad Ghazi was a noted scholar. He started his academic career as a reader in the Islamic Research Institute. He later served as the Director General of the Dawah Academy, then as Vice President and finally as President of the International Islamic University Islamabad. For some time he also served as Federal Minister for Religious Affairs. Dr. Mahmood Ahmad Ghazi also had been Professor of Shariah and Law, International Islamic University, Islamabad besides Chairman, Shariah Board, State Bank of Pakistan; Chairman Shariah Advisory Cell, International Islamic University; and Chairman Shariah Supervisory Committee, Takaful Pakistan. After his retirement he was working as a Judge of the Federal Shariat Court.
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Dr. Ghazi had extensive teaching experience of Islamic law and Jurisprudence, and historical development of Muslim political thought among other issues. He was a linguist and was conversant with seven international languages. He authored a number of books e.g. Muirt-i Shariat, Muirt al-Qurn, Muirt al-adth, Muirt Sirat, Muirt Siyar bayn al-Aqwm, Islamic Renaissance in South Asia, 1707-1867: The Role of Shh Wal Allah and His Successors, Ul-i Fiqh, The Sanssiyyah Movement of North Africa, The Life and Work of the Prophet of Islam ( ) and The Shorter Book on Muslim International Law: Kitb Al-Siyar Al-aghr. It will be difficult to fulfil the academic gap left by him. May Allah bless his soul and give strength to his bereaved family to bear this loss. Amen! Hamdard Islamicus
HAMDARD ISLAMICUS Hamdard Islamicus 229 Vol. XXXIII, Nos. 3 & 4

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Hamdard Islamicus

Vol. XXXIII, Nos. 3 & 4

ALLAH IS THE LIGHT OF THE HEAVENS AND THE EARTH

Quarterly Journal of Studies and Research in Islam

Mrs. Sadia Rashid

Hamdard Islamicus 2 Vol. XXXIII, Information for Contributors Nos. 3 & 4

Quarterly Journal of Studies and Research in Islam

Vol. XXXIII, HAMDARD3 ISLAMICUSNos. 3 & 4 July-December 2010

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Hakim Mohammed Said

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STUDY OF DATE AND CLIMATIC CONDITIONS

SHAHABUDDIN ANSARI Gopal Dhara, Almora-263601, Uttarkhand, India. e-mail: ansarishihab@yahoo.com.in

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Ibn Shihb Zuhr (d. 124 A.H./741 A.D.)

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The Day and Date Muammad (

) left his House

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Reached Qub (Madinah) on Monday at high noon

Stages of the Hijrah

They reached Qub (Madinah) on Monday at high noon

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They left Qub for Madinah in the forenoon of Friday

Actual Date of the Hijrah

Monday,* 12th Rab al-Awwal

Monday, 30th September 622 A.D.

Friday,** 12th Rab al-Awwal

Friday, 24th September 622 A.D.

Friday, Friday, 27th September 622 A.D.

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Notes and References

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14. 15. 16. 17.

19. 20. 21. 22. 23. 24.

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THE CLIMATE OF MADINAH

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By courtesy of Absar Ahmad Faruqui, Civil Engineer, Madinah.

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