Global Intifada

The following are my notes from “First Things First: Understanding the Priorities and Purposes of the Sacred Law” with Dr. Sherman Jackson and Dr. Umar Abdallah.

These are my own notes and they may or may not accurately reflect the speeches given by the respected Academians named above. I have inserted some terms and changed around the words in order to organize the information better.

First Things First: Understanding the Priorities and Purposes of the Sacred Law (Sherman Jackson and Dr. Umar Abdallah)

1. Introduction
1. We have a very superficial understanding of this term; we focus more on the criminal aspect.
2. Dr. ‘Umar Farooq ‘Abdallah
1. “A Muslim Victorian America: The Biography of Alexander Russel Webb” - Available at Astrolabe
2. Islamic law is a law of priorities. Islamic law has always been the province of scholars (men and women). Not really talking about that today, but rather, today we are talking about “Islamic Literacy”. It is not our duty to make specific legal judgments. It is our duty to make judgments about people who make judgments and judgments about judgments. This is called “general ijtehad” that is required of the lay men and that is the ijtehad to criticize the scholar, look at the scholar, and to make the judgment “will I follow this person or not?” Is this opinion appropriate to our time or not? We don’t slander scholars but we go to the one’s we trust. The priorities of different eras are different. The prophetic law can never be applied mechanically. We cannot take a book and say ‘there is the answer’. You must have a tailor-made answer that fits the situation that you live in. It is misguidance and disobedience to the creator to follow fiqh manuals in a rote manner.
1. Islam is not a ‘one-size fits all’
3. Different Aspects of the Prophetic Law
1. Some aspects of the Prophetic Law are rational and open to analysis.
2. Other aspects of the Prophetic law are acts of worship and are not open to revision or analysis. Example: you can’t change the number of prayers in a day.
3. Basic principle of Islamic Law is “that everything in it has a rational until you prove the contrary”. Therefore, we must know what those rationales are and in the application of the law, those rationales are protected and preserved.
4. Four Fives and One Three
1. Firstly, you must know the five pillars:
1. Shahadah
2. Prayer
3. Fasting
4. Charity
5. Pilgrimage
2. Secondly, the five evaluations:
1. Obligatory
2. Recommended
3. Neutral
4. Reprehensible
5. Forbidden
3. Thirdly, the five basic necessities. Al Maqasid al Khamsa “The Five Ultimate Objectives.” The five things that the application of the law, in the living our lives, in the foundations of our masajid, they must be absolutely preserved:
1. Real religion
2. Life from disease, attack, etc
3. Intellect - foster the intellect and teach and create clear minds and protect the mind from ignorance, insanity, and give clarity
4. Family
5. Property - the economy
4. Fourthly, the five maxims that are based on legal consensus, including the Sunni and Shi’i. Al Qawaid al Fiqh:
1. “Things are judged by their objectives.”
2. “Certainty shall not be removed by doubt.”
3. “Harm shall be removed.”
4. “Hardship shall bring alleviation.”
5. “Good custom shall be arbitrate.”
5. Lastly, there are three priorities in Islamic Law (Al Daruriyat - “Absolute Necesities”)
1. Necessity. Religion, Life, Intellect, Family, and the Economy
2. (Hajjiyah) Needs that are important in life that make life easy and fulfilling, but not necessary. Life becomes difficult, but still livable.
3. (Tahsiniyat) [t: “Translation”] Beautification. Can’t do these if it violates a need or a necessity.
6. Just because something is necessary does not necessarily make it obligatory. Example: Such as buying and selling. It is a necessary for a society to exist, but it is not an individual obligation, it is merely neutral. Therefore, it is a community obligation. Priorities comes first, then needs, and then the beautifications.
5. Everything we talked about today is contained under one supreme maxim:
1. “The ultimate purpose of the law is to bring benefit and to ward off harm.”
2. Another legal maxim “Nothing can be obligatory that it is impossible to do.”
3. Another legal maxim “Nothing is prohibited in the face of dire necessity.”
4. Another legal maxim “Warding off harm always takes priority over taking of benefits.” If you have a problem in life, you should make a list of the harms and benefits. If the benefits are greater, then do it. If the harms are greater, it is forbidden even if it is not explicitly forbidden. If the harms and benefits are equal, then you cannot do it because of the legal maxim described above.
6. Conclusion
1. Imam Malik (rahmutullah alayhi) said “Half of knowledge is saying ‘I don’t know.’”
2. Can’t say something is forbidden if there is disagreement between the scholars.
3. The law is polysemic; it has different interpretations.
3. Dr. Abdul Hakeem Sherman Jackson
1. Its important, for the sake of “Islamic literacy” to place the maqasid into context. What does this entail in modern times?
2. Maqasid al Shari’ah
1. Why are we concerned about this today? Why is everyone all over the Muslim Ummah talking about it? Maqasid is not about finding our interests and then superimposing it upon Islamic law.
2. Maqasid developed as one of two ways of reading Islamic laws: Juristic empiricism versus juristic induction.
1. In empiricism we say “the only thing we can have knowledge is through our” such as direct sensory perception. We assume that no reality exists beyond the experience derived from sensory perception.
2. Induction says we can use the senses to gain access to certain types of information, but we can go beyond the senses by assuming that the realities we understand through the senses points to a reality beyond them.
3. Islamic Legal History
1. Muslims were spreading out of the Arabian peninsula and into the known world. The Middle East became dominated by people who referred to themselves as “Arabs”. The majority of the people who lived after the period of Arab expansion were not Arabs. These people adopted the Arabic language and aspects of Arabic culture. They had different interpretive presumptions. They had a different understanding of things despite their background. Even though they became Arabs, their backgrounds affected how they interpreted things.
2. Different peoples from different backgrounds and different histories coming into the interpretative process, you will get very different interpretations. This lead to the rise of a movement that wanted to minimize the use of backgrounds in the interpretative process. This became known as “juristic empiricism” and advocated that one must rely upon direct empirical scriptural evidence to support one’s position. This movement came to dominate the Islamic legal tradition. This was an achievement for Islamic jurisprudence because it stated that all backgrounds, biases, historically informed perspectives are equally banned. The legal discourse must use the black letter of the law of the evidence for the argument on a particular legal issue. This enabled equal access to the law and eliminated racial, ethnic, cultural, or other means of interpretation.
1. Example: The Dhahirites
1. Depicted as ‘literalists’ but in reality were juristic empiricists. They rejected analogy because it implied affirming the reasons God had legislated something although God himself had not labeled reasons himself. If God did not describe to us why He legislated something, then we cannot claim this.
2. Example: The School of Juristic Induction lead by Imam Shatibi
1. People say that salah is obligatory and it is obligatory because the Qur’an says “Establish salah.” Imam Shatibi says this is wrong because it is grounded in juristic empiricism and advocates an inductive reading of scripture. Salah is incumbent not just because God says to establish prayer, but because God speaks highly of people who pray salah, the Prophet (sallahu alayhi wa sallam) established prayer, etc. Imam Shatibi said that we need to have a global reading of scripture and not an atomistic reading of scripture. A broader reading of scripture leads us to the broader objectives of the law. Even if there is no explicit text such as a verse of the Qur’an or hadeeth, a ruling may be justified on the inductive reading of scripture.
2. Imam Shatibi was the farthest in theorizing these principles of Islamic law, all of the schools headed in this direction. Imam Izz id Deen Abdel Salam said that there is no text that prohibits the smearing of feces on the Kab’a, yet based on an inductive reading of the sacred texts that mention the sanctity of the Ka’ba, we can conclude that smearing feces on the Ka’ba would be a major sin.
4. Many people today think that when we talk about the broader objectives of the law think we can take the issues we find problematic and explain it away with these principles. What we must understand is that the broader objectives are inductively deduced from the law. In other words they are not merely our whims that we superimposed upon the law but rather, are deduced from reading the totality of the sacred texts.
5. Our challenge in modern times, and especially in the West, is not that the law meets the broader objectives even in the absence of a specific text. This is the easy part. The difficult part is how do concretize these broader objectives in the context of our own reality.
1. For example: preservation of the intellect is an important objective of the law. Anything that corrupts the mind is not permissible such as wine, drugs, etc. Most people stop here. We must realize that there are other things that damages the intellect besides intoxicants. We may now say things such and such is forbidden or something is fardh kaffayah. Today people are in a state where they are incapable of accommodating certain things about Islam because their mind has been corrupted by images and information that has bombarded. Even if we banned every intoxicant in the world, their minds would not be able to accommodate what we have to say about Islam. We might come to the conclusion that television is not permissible. Or we might come the conclusion that Muslims developing antidotes to those things that destroy the intellect is a fardh.
6. Conclusion
1. What we hope to see is a healthy cooperation between juristic empiricism and juristic induction.
4. Q & A
1. What advice can you give to future fuqaha on how they should study fiqh, what methodology they should use, and what pitfalls should they use?
1. Dr. Umar Abdallah:
1. We need seminaries that are attached to the best universities in the US. This way when you get a degree as a legal scholar, you also get a PhD from a prestigious university. You also study sociology, anthropology. To understand the law, you must understand the culture or history of a people.
2. Apostacy - a matter of consensus, none of the punishments of Islamic law can be applied outside of an Islamic state that has Muslim law. The whole question of huddud does not apply in this country.
2. Dr. AbdulHakim Jackson
1. It is extremely important that we gain some understanding between the difference between an empirical and inductive approach to Islamic law. The questioner usually has an empirical approach and thus, the only thing that they will accept as proof is a sound hadeeth from the Prophet (sallahu alayhi wa sallam) or an ayah of the Qur’an that expressly addresses that topic. If you don’t give them that, then they feel that is not an Islamically viable or justifiable position. We are addicted to juristic empiricism and are not comfortable by juristic induction. This is the approach of the fuqaha for a thousand of years.
2. Example: Do we kill the apostate?
1. In the era of the Prophet (sallahu alayhi wa sallam), everyone knew that Abduallah ibn Obeid was a munafiq who was also the one who initiated slander against Aisha (radhi allahu anha). However, he was not punished like the others. This person was seen as a personal opponent to the Prophet (sallahu alayhi wa sallam), so perhaps the reason why he wasn’t killed was to make it not look like the Prophet (sallahu alayhi wa sallam) killed his opponents.
2. Ibn Taymiyyah and the drunk Mongols. The Mongols were drinking wine. He said that Allah banned wine in order to safeguard one’s prayer and prevent fitnah, but he said that when the Mongols drank wine, they weren’t able to oppress people so he said that they should be left to drinking.
3. There are often competing principles and we need to weigh them.

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