rosales 2015 zawiyah 2014 notes Dr . Umar Faruq Abd Allah Sh Musa Furber Sh Jihad Brown Dr. Karim Lahham Confidential. Do not distribute. Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate Modernity and Post-‐Modernity: Definitions, History and Responses By Dr. Umar F. Abd-‐Allah Executive Summary: [p. 1] I. Introduction [p. 2] II. Towards Defining Modernity and Post-‐Modernity [pp. 3-‐7] This section begins by analyzing the etymological roots of the term ‘modern’. It then goes on to discuss the most essential aspects of modernity and post modernity. These include a new conception of time, intolerance towards tradition and religion, and a new politics of victor and vanquished. This section end by considering the most appropriate vocabulary to employ when speaking about modernity. III. The Historical Trajectory of Modernity [pp. 8-‐11] This section provides a broad strokes history of the transition from the medieval to the modern period, focusing in particular on the 16th-‐18th centuries. The major historical moments and epistemological ruptures in Europe and the Middle East are described. IV. Responses to Modernity [pp. 12-‐14] The concluding section begins by discussing the impact of modernity on Muslims. It then goes on to outline a blueprint for an intelligent response to modernity, comprising three elements: i) examining the most important engagements with modernity undertaken by Muslims to date; ii) reinstating the metaphysical capacity and developing theological cognitive frames; iii) rooting knowledge and building institutions. 1 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah I. Zawiyah Rosales, 2014 DRAFT – Please do not circulate Introduction The purpose of this brief is to examine the ideas and epistemological ruptures at the heart of modernity. While some of the problematic ideas of modernity may not be unanimously shared, or they may not constitute the essential definition of modernity, they are nonetheless notions endemic to the modern mindset. Our present purpose is to improve our understanding of modernity, to determine our attitude towards it, and to articulate what is valid and true in it and what is not. We also intend to outline the beginning of a response to modernity and to determine where we can make a contribution towards establishing a more humane existence in modernity. 2 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate II. Towards Defining Modernity and Post-‐Modernity 1. Etymology of the ‘modern’ Language is the essential means by which thought is structured and the measure by which we determine the integrity of thought. If language is not clear, thought will not be clear either. Words are also intimately connected to cognitive frames and paradigms; a word brings with it much more than its etymology. The word “modern” has a rudimentary etymology. It is connected to “mode” of living, which denotes “the way we are doing things right now”. The first time it was used was in the early 17th century, when it was employed to describe the way things were being done at that time or in the recent past. It is a new word that developed with the onset of early modernity, and is used much the same way in French, English and Spanish. Later, the word became a historical construct that is associated with important cognitive frames and even as a construct that is a reflection of a culture. 2. What is Modernity? Islamic civilization is based on very careful definitions. We avoid the use of plastic words, no matter the subject matter. 1 There is no one modernity; there are as many definitions of modernity as there are philosophers. We have to beware of generalization and broad stroke descriptions of a very complicated phenomenon. Nonetheless, there are important aspects or elements that figure in most conceptions of modernity. These include: • • • A new conception of time that dismisses the value of the past and emphasizes progressing into the future Intolerance towards other worldviews, especially those rooted in tradition and religion A new politics of victor and vanquished a) A new conception of time All definitions and conceptions of modernity are strongly connected to a particular conception of the passage of time. Modernity always invokes an image of a past that is fading and drifting further and further into the background, contrasted with a present that is dynamic and an even more promising future. The present is seen as a revolution against an archaic or static past and a rupture from a stable past that is forsaken. One consequence of such a worldview is the dismissal of the value of history and the collected wisdom of the past. Weber and other modernists describe history as an oppressive and burdensome thing best renounced. Presidents Nixon and Carter regarded history to be of no value whatsoever. When Carter was told that he should know something about Iranian history when developing his foreign policy towards Iran, he considered the suggestion absolutely absurd. This is a very modern dilemma, despite the fact that moderns have done some of the best historical work ever. 1 It may be worth including the discussion in the scholars’ meeting wrt whether or not it is even possible to define modernity given that it has no essence. 3 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate As for the future, modernity evokes progress. Its synonyms – which include advanced, innovative, forward-‐looking – are indicative of this impulse. The modern frame of mind has a strong sense of becoming while never actually arriving to its destination or even ignorance of one’s destination. There is no arrival for the modern mind; it is always looking at and dreaming of the future to which it never actually arrives. It is always about progress and ceaseless becoming of a world that is developing and that is getting better all the time. Modernists believe that they can create a world that is better than the one they lost. The present is concomitantly always in flux as it lacks permanence. It is devoid of meaning and truth, which are always in a process of being made. This is very harmful to the human psyche because it lacks a sense of fixidity and stability. Some modernists, like Weber, recognized this. b) Intolerance towards other worldviews, especially those rooted in tradition and religion Modernity is most frequently contrasted with tradition, which is generally considered its antithesis. As Heidegger put it, modernity is “post-‐traditional”. While “tradition” is also difficult to define, it is fundamentally connected with transmission, from living people to living people. In Islamic civilization, that sense of tradition through transmission applied to everything; foremost the Qur’an and ḥadīth, but also to less religiously-‐oriented fields, like chemistry and mathematics. For Muslims, tradition is a positive term, one of God’s greatest gifts to humanity. Insofar as traditions are principial – strongly rooted in principles – modernity tends to be experimental and innovative. Islam comprises principles of both fixity and flexibility; the former are intended to ensure that innovations are introduced in a proper manner that does not vitiate the principles of continuity. Max Weber wrote: “If we could return to tradition we would have meaning and humane living at the price of freedom and truthfulness.” He uses tradition as the antithesis of modernity. But even he has a slightly romantic vision of the past and he acknowledges that premoderns had something – meaning and humane living – which is absent in modernity. The problem in his vision is the belief that in tradition there is a lack of freedom and truthfulness. We believe that in servitude to God there is both the truest freedom and truthfulness. How can Weber speak about “truthfulness” while not believing in principial truths like the Creator of heavens and earth? Weber seems to conceive of truthfulness as bluntness or the capacity to say to people things that they will not appreciate. One of the most targeted ‘traditions’ that modernity is contrasted against is religion. For a long time, the assumption was that religion would inevitably decline and slide into irrelevance when the transition to modernity was complete. The reality is that man is fundamentally religious (homo religioso), and this is why historically, we never encounter human beings without expressions of religion central to their being and societies. Toynbee discusses this at length, and maintains that the most essential element in any civilization is religion. Modern study of primitive peoples has consistently shown that they were always monotheists, even if some of them may have associated lesser deities with the One God, as did the Arabs in jahiliyya. 4 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate Religion can never be dispensed with, and when this is attempted, an alternative is always produced. Whenever human beings come together, create a ferment, that requires a new religious synthesis or articulation, this happens over and over again in human history. The modern globalized world has brought us all together in a way inconceivable in the past. In the twentieth century, those who rejected religion had to articulate alternatives to religion to fill that gap so essential to human nature. Hitler was a great manipulator of symbols. He took the swastika from India and turned it into something that became for the Christian psyche an essential simulacrum for the cross. He used lights, poetry and sound in magnificent ways that acted as secular alternatives to religion. Similarly, although the Soviet Union was a very secular Marxist Leninist state, a secular alternative to religion was developed in the form of a cult around the person of Joseph Stalin himself. He was called ‘our father’ and spoken about in the same way as God and Lenin was visited in a mausoleum. In The Secular Age, Charles Taylor argues that in the Modern West, religion never disappeared, but simply diversified. He also shows that religion is always coming back in the secular age, often in ways more popular than it was before. For example, religious movements in the US, many are communists, Shakers or Amish. Still, Taylor contends “we are at the beginning of a new age of religious searching.” People are searching; what religious alternatives exist that can serve humanity in the age of post-‐ modernism? Toynbee believed that Islam contained all the elements to win the day, but he didn’t think that this would materialize, but only because he did not belive that Muslims were capable of achieving that. c) A new politics of victor and vanquished Modernity always entails winners and losers, victors and vanquished, the old and new fashioned. The project of modernity has not been without its victims, especially in the third world. 3. From Modernity to Post-‐Modernity Just as modernity defies definition, so too does post-‐modernity. Described as a ‘second modernity’ or a ‘liquid modernity’, post-‐modernism starts sometime between 1949 and the 1960s or 1970s. There are important aspects/elements that figure in most conceptions of post-‐modernity. These include: • • • Break down and dissolution Disillusionment towards the idea of never ending progress Championing the cause of the the vanquished and subaltern a) Break down and dissolution The genealogy of post-‐modernity begins with the development of the mechanistic world in which everything can be explained through laws. This quickly led to materialism, which was a dominant philosophy in the 19th and 20th centuries, peaking in the 1950s-‐1960s. After materialism came dissolution when everything broke down. Taylor argues that over the past few decades, modernity’s “Supernova” has collapsed. This is his way of describing a break down in the philosophical underpinnings of modernity that others before him called dissolution. For several centuries modernity was associated with moralism and the rise of a modern moral order. Some claimed that when religion is renounced, it would be replaced by sentimentality and morality. The clear understanding of what constitutes the moral order to which modernity was striving has slowly unraveled over the past 50 years ago, to be replaced by a culture of personal choice, autonomy, subjective truths and the expressive revolution, including the sexual revolution. 5 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate b) Skepticism about modernity’s unfulfilled promise of never-‐ending progress Post-‐modernity takes a critical stance towards modernity and fixes modernity in a particular historical moment, which is very problematic for its self-‐conception. It questions whether modernity can actually lead us to something better and entertains the possibility that after the breakdown something the outcome will be worth than what previously existed. In this sense, post-‐modernity recognizes that something was lost in the transition to modernity. This is one of the redeeming features of postmodernity: a tendency to recognize failures and to “look the negative in the face and live with it”, like pollution and rising crime rates. However, postmodernism is also deeply cynical: whereas modernity demanded deeper and better rewards, post-‐modernism concedes that these do not exist. It posits that we simply choose our values and life-‐style and then deal with the consequences as they arise. But what if the consequences are insanity and the destruction of the planet? The loss of self-‐confidence in the project of modernity is fundamentally related to the ways in which the underpinnings of modernity were challenged in the 20th century, particularly during WWI, WWII and the Cold War. These events showed many people in the North Atlantic world that the project of modernity was faulty. Prior to the world wars, it seemed that modernity had fulfilled the promise of achieving peace since there were no large-‐scale wars since the Napoleonic wars. However the savagery witnessed during the world wars led to widespread discontent with the underlying assumptions of modernity and an intuition that things had reached their limit. Radical change had taken place in the way we lived that was clearly very destructive. The future was unclear. There were also questions about who controls the project of modernity. When you don’t control and root the knowledge you have – you don’t know what it is and where it is going. Technological and scientific achievements took on a course of their own. There were no limits guided by higher values; progress as the ultimate imperative. To some extent, postmodernity also recognizes that the decline of religion does not necessarily follow from the progress of modernity. This was experienced first-‐hand during the 20th century, when religion came back to life in ways completely unexpected by modernists. c) Supporting the vanquished/subaltern Part of post-‐modernity’s critical stance towards modernity has been an incisive criticism of how the project of modernity has entailed oppression to the subaltern and to third world cultures in particular. Post-‐modernity is concerned with the vanquished elements on whose shoulders modernity in the North Atlantic world was built. * * * Many describe post-‐modernism as a phase of modernity, and there is a belief among some that post-‐ modernism will become quickly outdated. Ideologies often take a long time to become clear in society. Post-‐modernism is very strongly entrenched in many universities in the West. It will take time to discern the full effects of the supernova. 6 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate 4. Choosing Terminology We have to think very carefully about whether we want to use the word “modernity”. There are two problems with the term. First, the term ‘modernity’ is wedded to particular connotations, like secularism, to which we object. Second, ‘modern’ remains in Western languages in a very positive light. Were we to use the term in a negative way, it may be counterproductive and we may be dismissed as anti-‐modern, which we are not. Other terms that scholars studying modernity have used include: • • • • • Secularity or Secularization (Taylor) – this term connotes a certain attachment to the world, so it may not be an ideal choice. Anthropocentrism – connotes making the human being the center. Secular humanism – Islam’s tradition of humanism affects Western humanism, and may have even contributed to the renaissance. George Makdisi studies this in his excellent study The Rise of Humanism. Reductionism – This captures the idea that the only thing you can ever know is what you can see, touch or smell, and therefore the negation of the metaphysical capacity. It may be too negative. Exclusivist Humanism. We must also think carefully about using other terms like the ‘West’. The “North Atlantic” – a term designating the geographical territories of Europe, the United States and Canada, but excluding Russia and South America – may be a better option. 7 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah III. Zawiyah Rosales, 2014 DRAFT – Please do not circulate The Historical Trajectory of Modernity A simple periodization of Islamic history is divided into four periods, each comprising four centuries: • 1st-‐4th/ 7th-‐10th – Classical Golden Age • 5th-‐8th/ 11th-‐14th – Breakdown of central power and division into principalities and Crusade movement • 9th-‐12th/ 15th-‐18th – Gunpowder empires: Ottomans, Safavids and Mughals • 13th/18th century-‐Present – Modernity For Muslim civilization, the modern period is by far the most challenging. However, at the outset we must remind ourselves that while our transition to modernity may have been very traumatic for us as individuals, collectivities and societies, all of it happened by God’s will and it is He who chose to test us. Key Moments: The Early Modern Period (15th-‐18th centuries) The 15th and 16th Centuries During the 15th and 16th centuries, the Ottoman Empire was the most powerful state without peer. No European power could even look them in the eyes. The Ottoman Empire was largely a meritocracy, meaning were afforded opportunities based on their abilities. Many Europeans were attracted by what they saw as a more egalitarian society and came to live there, often becoming Muslim. The second most powerful, wealthy and scientifically advanced was Moghul India. Third were the Safavids of Iran and the fourth was Bukhara. All were gunpowder empires with efficient administrations. Outside the Muslim world, Great Britain and Portugal were the emergent European powers. 1492 is watershed moment when the balance of power began to shift. This was a pivotal year that saw both the fall of Granada and Columbus traversing the Atlantic and finding America. With the fall of Granada, the Inquisition took hold of Muslim Spain and Portugal. Up to this point, the inquisition had existed in Europe for over 1000 years. When it comes to Spain, Jews and Muslims in the millions were wiped out, along with dissenting Christians from the Catholic creed. The discovery of the New World led to a significant shift of the economic balance of powers. Prior to this the Central lands of Eurasia and Africa were under Muslim control, and they contained a great deal of wealth. In contrast, Europe was quite bereft and traders had to travel through Ottoman territory to access the far Eastern markets. This is one of the reasons why Columbus wanted to make it to India; because Europe felt boxed in and desperately needed access to the far Eastern markets. This was the argument he used to justify the considerable expense involved in his three trips. With Columbus’s discovery of the new world, wealth was brought from the new world in quantities so large that the boats nearly sunk on their return journeys to Europe. During this period, even as European states were growing and expanding, they did so anxiously, always under the shadow of Ottoman power. It is also during this period that the world became centered on sea-‐trade. This is part of what impelled them to establish America; they intended it as a Christian empire to which they could emigrate were Spain and Portugal to be re-‐conquered by the Ottomans. The major rupture in European civilization during this period is the Protestant Reformation of 1517. In some ways, it is facilitated by the Inquisition, because when Luther went to tack his Theses on the door of the Castle Church of Wittenberg, the religious establishment wanted to put him through the Inquisition, but the Princes had had enough and would not allow it. The Reformation constituted a break with Catholic tradition that significantly altered the course of European history. The Reformation 8 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate was also supported by the Ottoman princes who were allied with the Protestant princes of Europe at the time. The Protestant Reformation is closely followed by the religious wars that were extremely disruptive in Europe. At times, the male population of Western Europe was nearly completely wiped out. Bitter conflict like these contributed to a very antagonistic view towards religion in the West in the modern period. The Reformation also created a new type of subjectivity that contrasted strongly with the medieval personality. The medieval Catholic personality was very porous, vulnerable and unpredictable. The Catholic self was a strong believer in the unseen and the sacred, and took for granted the distinction between the common population and a revered elite committed to the religious life. In contrast, the Protestant self was highly disciplined, predictable and rational. Veneration of saints and sacred relics was extinguished, and an anti-‐hierarchical ethic was assumed. Protestant Christianity shaped a personality that could be the foundation of a highly ordered and disciplinary society, one committed to work, industry and saving money, which in turn opened up new possibilities for the economy. Europe developed much of its capital through its Protestant population, particularly Calvinists, which contributed to the rise of Capitalism. This also laid the foundations for anthropocentrism. While none of this was intended by the progenitors of the Reformation, this was the new image of Europe, and Christian America, that it produced. The 17th and 18th Centuries Ibrahim Müteferrika (d. 1745) was one of the first modernist voices in the Muslim world. He tried to bring the major changes underway in the world order to the attention of the Ottoman Empire. A Hungarian Unitarian who embraced Islam and served the Ottomans on diplomatic missions to Europe, he was the first to bring the printing press to the Ottoman world. But the Ottomans only really started to look at Europeans in a different light after they started losing to them on the battlefield. It didn’t take long for the Ottomans to realize that the emergent European empires were in fact their rivals, and unless something changed, they may not be able to hold them off for long. It was through the desire to modernize the military in the late 18th century that modernist ideas first entered the Muslim world. During this period, Europe was undergoing another major transformation: the Enlightenment. In many ways, the roots of the Enlightenment are found in the Protestant Reformation. A major part of the enlightenment comprised the dis-‐embedding of nature from its inhabitants. Weber called this the “disenchantment of nature”, but it may be better described as the de-‐sacralization of the world. The non-‐material aspects of reality were effaced. First it was witches and demons, but soon it was also the miraculous and then the Biblical God of the Middle Ages. It wasn’t total at first. It began as a shift towards Deism, which conceived of God as a distant and transcendent Designer of the natural laws of the universe who was not directly involved in the world. Enlightenment philosophers conceived of the human being as a rational being who only conformed to empirical experience and was devoid of a metaphysical capacity. This was not only the completion of the anthropocentric shift, but it also contained a crucial epistemological shift. Natural religion, rooted in exploring the mechanical order of nature through disengaged reason, obviated the need for Prophets and the Church. The transition into modernity was largely completed in Europe by the 19th century, which marked the beginning of classical modernism. 9 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate Major Developments in the Emergence of Secular Modernity Secular modernity emerged as the dominant contemporary worldview through a series of crucial epistemological shifts. The most important of these are: 1) The gradual decline of the Biblical religious worldview and the weakening of Christianity The study of Biblical criticism gave rise to the realization that what it contains is contradictory and probably not authentic. This resulted in the repudiation of the Biblical narrative and the Christian concept of God. 2) Subjectivity of truth When God and the Church are no longer guarantors of the Truth, truth exclusively applies to our subjective, tentative understanding of things. This shift begins with Descartes who maintained that nothing could be based on anything higher than the subjective self. From here, anthropocentrism is developed as a sense of the autonomous individual imbued with independence, privacy and alienation. The modernist mind has great unease with absolute, realist truth claims, including beliefs about God’s existence and the Day of Judgment. 3) The birth of a new cognitive model (rationalist materialism) and methodologies for producing and classifying knowledge Many of these cognitive models do not correspond to our understanding of reality. For example, Kant defines objects as “extended bodies of space”, which is a view of reality that is too reductionist and results in the desacralization of nature. The key for us is to investigate the presumptions and assumptions of modern methodologies. Modernity’s proof for its virtue is never philosophically based; it is based simply on its material achievements. 4) Ascendancy of Science [relates closely to 3] This is the Kantian shift in epistemology. Modernity’s cosmic view is that the world is basically created by science. It contains a vision of astronomic space which is almost infinite and in which earth appears very small and insignificant. 5) Massive Social and Economic Change The driving force behind modernity is economic change, especially the rise of capitalism and the world market. The roots of Capitalism are likely in the economic world of the Muslim world in the 13th and 14th centuries. The 14th century saw a wholesale economic and social collapse wrought by the Black Death plague, which devastated the Muslim world as it did Europe. With the rise of capitalist markets in Europe in the 15th century, the fatal mistake of the Ottomans was not establishing proper economic power to support their military power. From the 18th century onwards, all their Reforms were oriented towards reforming the army and gaining more advanced weaponry. Ottomans did not understand until it was too late that European power was in their banks. 10 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate 6) Secondary factors: (that economic developments gave rise to These include the rise of new political systems based on the nation state, technological advances, and an all-‐embracing culture and experience of modernity that qualitatively alter how people perceive of and experience themselves. Concluding Remarks: Seeking inspiration from our past for our future The French philosopher Jacques Ellul maintains that the civilization of Muslim Spain and Portugal was so developed to the degree that they could have produced much of the technological developments of the modern period. He argues that they wisely chose not to pursue an aggressive course of technological development because of the adverse consequences that they know such development necessarily entailed. Another significant paradigm for Western Muslims today is the historic Muslim community in China. Since Islam came to China during the days of the Caliph Umar I, Chinese Muslims have been an extraordinary part of the ummah who practiced a unique and culturally-‐embedded Islam. In Chinese, the word denoting the religion of Islam literally means “the religion of the real and pure”. They were always on good terms with the Emperor who honored them, and many Emperors chose their personal guards from among the Chinese Muslim community. 11 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate V. Confronting Modernity: The Way Forward for Muslims Muslims and Modernity When compared to the average North-‐Atlantic citizen today, a Muslim’s connection to his past seems very strange to them. For Muslims, the past is always at hand; it is as though the Prophetic period was yesterday. Our connection to the past through our tradition gives us a very different psychology in how we relate to history and to the past. Modernity is not the first philosophy with which Islam has been confronted. When Islam spread across the world, it was faced with philosophical ideas that completely destroyed Christianity, and yet, Muslims were able to respond to these with incredible authenticity and integrity. They had a great teacher in the Prophet (saws), but they also had great self-‐confidence and esteem. Even early Muslim modernists, like Jamāl al-‐Dīn al-‐Afghānī (d. 1884) and Muhammad ʿAbduh (d. 1905), were certain and confident that Islam was compatible with modernity. This spirit is sorely lacking in the Muslim world today: Muslims lack self-‐confidence, rooted in reliance on God, and a concomitant belief that their tradition contains in it the resources necessary to experience modernity with their religious integrity in tact. And yet, even as many Muslims claim to reject modernity or assume themselves unaffected by it, contemporary Muslims have been strongly affected by modernism. Many modern Islamic movements are shaped by modern ideologies – be they nationalism, socialism, or jihadism – more than they are by the Islamic tradition. The Salafi movement is a case in point. Its basic impulse is to dispense with history and to begin over again. Jihadism is a fanaticism that is about the search for certainty pursued through violent methods that are foreign to the pre-‐modern world. Unfortunately, these ideologies exploit religious language that convincingly conceals their modern genealogies. Essential Elements in Responding to Modernity What of the way forward? Our response to modernity will comprise several elements, which, at the outset, must include: (1) Examining the most important engagements with modernity undertaken by Muslims to date. There are several important Muslim intellectuals who have made noteworthy interventions in the debate about Islam and modernity that merit thorough study. One of the earliest is René Guénon (d. 1951), a brilliant metaphysician whose work are a valuable source for ideas, though they can be easily misunderstood by a reader lacking strong metaphysical grounding. His work has had a lasting impact on the thought of William Chittick and Seyyid Hussein Nasr, two contemporary scholars whose writings are equally worthy of attention. Other thinkers and scholars to consider include Seyyed Naquib al-‐ Attas, Frithjof Schuon (with caveats about his perennialist philosophy) the anthropologist Talal Asad, and metaphysician and physicist Wolfgang Smith. In many ways, the most rigorous understandings and the best critiques of modernity have originated in the West. Muslim scholars in particular need to study the work of these scholars, take what is beneficial and improve on what is inadequate. While these scholars and their like were very sophisticated thinkers, in many instances their analysis is not deep enough, particularly as their thought relates to Western philosophy and methodologies. In other cases, they may not be sufficiently aware of what is at stake. Their work is a good start, but we can do better. 12 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate (2) Reinstating the Metaphysical Capacity One thinker2 says with respect to the problem of modernity that the only thing that needs to be restored in modernity is the metaphysical capacity in human beings. This involves removing the reductionism that has undermined many modern accomplishments. Reducing human knowledge and experience to what can is perceived by the physical senses completely strips human being of his or her metaphysical capacity. This has a significant impact on how we experience nature; instead of seeing it as the handiwork of God in which there are metaphysical realities – like angels, sacred places and times, and awliyā’ – nature is stripped down to bare, physical reality. Desacralized nature no longer indicates a higher reality; the existence and perpetual presence of the Divine. The centrality that God used to occupy in reality is replaced by the human being, who becomes the center of existence; he is no longer a vicegerent, but an autonomous self. This is the basis of secular humanism. For Muslims, the human being is the center of a transcendental humanism. We are only at the center on account of our belief and certainty in God’s existence and the special relationship of wilāya we have with our Lord. In turn, we are the ones whom the creation asks God to forgive, for whom the creation weeps when one of us dies. Human beings are the spirit and breath of the world, but only when we transform ourselves and become what is pleasing to God. We are what makes the world work. When God wills to destroy the world, he takes the souls of those saying “Allah, Allah, Allah”. Only then does the world break down and is then destroyed. Considered in this light, when the human being becomes secular and loses his knowledge of God, he becomes systematically superficial; he loses his ability to relate to God and the concomitant language to talk about reality. This is not only a loss for human kind, but also a tremendous abuse of creation; it reduces it to a meaningless existence. Reality works in very complex and sophisticated ways. If we find the truth and are able to live by it, when we open our hearts to the metaphysical reality of existence, our relationship to reality is completely reconstituted and we become agents of positive transformation in the world. It begins by an individual responsibility to embody true knowledge through virtuous practice. The fruit is beauty; the splendor of truth. It is this beauty, always in harmony with nature, which we see manifested in so many aspects of Islamic civilization. We are a very important community at a strategic point in history. Once we imbibe truth we have to express it beautifully, to build something new that is beautiful and that will contribute to the aspiration of the millions for a more humane existence. (3) Rooting Knowledge and Building Institutions In the modern world, knowledge has become very fragmentary and specialized such that it can never truly be mastered; it is as though the more you learn the less you know. “Rooting knowledge” means that knowledge is sought in the proper order and through the right avenues. Every science has its key that facilitates its access and permits the student to grow in that science. For example, the key to the study of the Arabic language is the didactic text al-‐Ājurrūmiyya. A student who masters this text, which is only a few pages long, can go on to read more advanced texts and to understand nearly any advanced work of grammar. The purpose of rooting knowledge is to give it a human proportion; it makes it accessible, beneficial, and allows human beings from all walks of life to relate to them in a way that is enriching. For example, rooting the natural sciences would humanize technology; it would allow us to control it and to harmonize its use with other aspects of our human identity. 2 Who does this refer to? 13 Modernity and Post-Modernity: Definitions, History, Responses Umar F. Abd-Allah Zawiyah Rosales, 2014 DRAFT – Please do not circulate In the modern world, we need to rewrite history to include the rightful story of Muslim civilization in it. We need to create theories of economics that are built on our moral principles. We also need quality cultural production, like first-‐rate movies and cartoons that manifest ultimate truths. The first step is returning to our worldview and reconnecting to our theology, which is the crucial beginning by which we can grow and put down roots in knowledge. It is in our theology that we will find the transformative cure for modernity. It contains the first principles of our religion, rooted in both revelation and in the intellect. It is on the foundation of our theology that all other sciences are rooted. This is the work of thousands of people over many centuries; it cannot be accomplished in a decade or two. Islamic civilization has achieved this in the pas. We were heirs to all the traditions of late antiquity – Greek, Roman and Byzantine. Every science that we received we allowed to ferment, to grow, and we rooted it deeply in our civilization. This cannot be accomplished without good institutions. Zaytuna College is a wonderful beginning, but we need many more. We need spaces in the universities or in institutions closely connected to universities in which we can honestly communicate what we believe and challenge the very problematic metaphysical and philosophical underpinnings of secular modernity. 14 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Islamic Law in Modernity and Postmodernity By Shaykh Musa Furber Executive Summary: [p. 1] I. Introduction to Modernity and Postmodernity [pp. 2-‐4] This section introduces the main themes and intellectual contributors to modernity and postmodernity, and considers a possible periodization for the transition from early modernity to postmodernity. Finally, it considers some criticisms of modernity, particularly those aspects that challenge an Islamic worldview. II. Introduction to Fiqh and Uṣūl al-‐Fiqh [pp. 5-‐7] Section II provides a brief introduction to the disciplines of fiqh and uṣūl al-‐fiqh, such as the sources for legal rulings and the nature of rulings as legal injunctions. It also presents a simplified workflow that a legal scholar uses to address new issues, which situates the relative importance of legal precedent, legal maxims and textual evidence in the process of developing new legal rulings. III. Legal Maxims Relevant to Contemporary Issues [pp. 8-‐21] This section begins with an introduction to legal maxims and controllers as devices for distilling the fiqh corpus and for extending rulings to new cases. The five primary maxims are briefly presented, followed by maxims that are particularly relevant to applying the law in contemporary circumstances. These are divided into three themes: maxims related to removing harms and obtaining benefit; maxims related to easing difficulties, and maxims related to temporal fixity and flexibility. IV. Interests and Welfare (Maṣlaḥa) [pp. 22-‐29] This section introduces interest (maṣlaḥa) as a secondary source of law that is particularly relevant to addressing new issues in the absence of textual evidence. The concept of interest is first defined and compared to similar concepts in contemporary moral philosophy. The five universal interests, their degrees of need and a typology are then presented. Finally, framework for applying unrestricted interests is introduced. V. Contemporary Juristic Efforts to Address Legal Issues [pp. 30-‐38] This section examines the efforts of contemporary jurists and fiqh councils to address new issues. It presents a list of some of the major issues demanding ijtihād in the areas of finance, social realities and biomedical issues. Several specific biomedical issues are analyzed in detailed. 1 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate I. Introduction to Modernity and Postmodernity There is a great deal of disagreement about what modernity is, when it begins, and when it ended – or even if it has ended. One proposed definition is that “modernity typically refers to a post-‐ traditional, post-‐medieval historical period, one marked by the move from feudalism (or agrarianism) toward capitalism, industrialization, secularization, rationalization, the nation-‐state and its constituent institutions and forms of surveillance…” Another describes modernity as “the fashion of societies, cultures, and civilizations, which is constantly being brought ‘up to date’, that is, forced by the flow of time to refashion itself.” In a nutshell, modernity refers to the social relations associated with the rise of capitalism alongside the intellectual and cultural movements that emerged between 1436 and 1789 and continued to develop up to the 1970s. Modernity is particularly intertwined with secularization, post-‐industrial life, and the formal establishment of the social sciences. Main Themes and Prominent Figures in Modernity Common themes in the various descriptions of modernity include: • • • • • The transition from monarchies to republics, the development of nation states, constitutionalism and democracy Capitalism and industrialization Rationalism, secularization and emancipation from religion Abandoning how things should be for how things actually are, and a capacity to remake the world as we wish it to be without consideration of God’s role in the world Materialistic empiricism which reduces existence to that which is perceivable by the physical senses alone and the ascendancy of science Some of the main intellectuals who contributed to developing the philosophical underpinnings of modernity include: 16th-‐17th Centuries Niccolò Machiavelli (1469–1527) Copernicus (1473–1543) Francis Bacon (1562–1626) Kepler (1571–1630) Galileo (1564–1642) René Descartes (1596–1650) John Milton (1608–1674) Baruch Spinoza (1632–1677) Thomas Hobbes (1588–1679) • • • • • • • • • 18th Century • • • • • • • • John Locke (1632–1704) Isaac Newton (1642–1727) Montesquieu (1689–1755) David Hume (1711–1776) Voltaire (1693–1778) Rousseau (1712–1778) Adam Smith (1723–1790) Edmund Burke (1729–1797) 19th -‐20th Centuries • • • • • • • Immanuel Kant (1724–1804) Jeremy Bentham (1748–1832) August Comte (1789–1857) John Stuart Mill (1806–1873) Karl Marx (1818–1883) Friedrich Wilhelm Nietzsche (1844–1900) Sigmund Freud (1856–1939) 2 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Periodization for Modernity and Postmodernity Zawiyah Rosales 2014 DRAFT – Please do not circulate Marshall Berman divides modernity into three phases: • • • Early Modernity (1500–1789) Classical Modernity (1789–1900) – This period saw the growth of modern technologies, the ascendancy of industrial capitalism, and the introduction and proliferation of new forms of mass media like the newspaper and telegraph Late Modernity or Postmodernity (1900–1989) – During this period there were major efforts towards combating oppressive politics, economist, and other social forces. Some scholars maintain that modernity ended sometime in the 20th century, at which point a new age began: postmodernity. Postmodernity describes the economic and cultural state or condition of society after modernity, one in which culture is “stripped of its capacity to function in any linear of autonomous state as opposed to the progressive mind state of modernity”. At its core, it is a reaction to modernity’s failure to fulfill its promises. Main Themes of Postmodernity Some of the common themes at the heart of postmodernity are: • • • • • • • A shift from universals and normative behavior to relativism A shift from metaphysics and objective truth to skepticism and a rejection that the possibility of knowing anything with certainty The death of history and progress and a renunciation of the past An increased focus on civil rights, equal opportunity and multiculturalism, alongside a critique of all of these concepts A growing resistance to sacrificing the environment in the name of progress A decentralized and media-‐dominated society A shift from manufacturing to service economies and the ubiquity of mass production and consumerism Criticisms of Modernity One of the major critiques of modernity is that it is Euro-‐centric. It emerged from a particular set of historical events in Europe, like the clashes between Church and state and the rivalry between science and the Church. With the rise of non-‐Western powers, scholars from the third world are increasingly advancing a critique of modern philosophies and institutions on the grounds that they do not meet the needs of non-‐Western cultures and societies. 3 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Unfortunately, many Muslims also take modern philosophies and ideologies for granted or, at least, accept them as inescapable or inevitable features of the world – even though many of these are remedies to perceived sicknesses in the European-‐Christian world that were not present in the Islamic world. If Muslims and Islam did not share the symptoms or, even if they did, if they didn’t agree on the diagnosis – why accept the prescription? Second, while we have identified what comprises the features of modernity of the 20th century of the Common Era, we need to question whether they should be part of the 15th century after Hijra. We grew up in the Western 20th century, and have been exposed to its values and institutions. But do we strive to be products of this or of the Prophetic values of the 15th century after Hijra? Answering these questions requires a deep and broad understanding of Islamic beliefs (imān), outward obedience (islām), and moral perfection (iḥsān). Aspects of modernity that pose a challenge to Islam’s worldview There are two primary aspects of modernity that challenge Islam’s worldview. The first is that in modernity and postmodernity there are no real lasting, universal, or absolute truths. This idea is very much at odds with our theology and jurisprudence, which affirms that Islam is both the final religion and truth; its theology, law, and spiritual practices will all endure and are sound and suitable until the end of time. This enduring character of Islam requires a certain mix of fixity and flexibility. Without fixity there would be no enduring characteristics by to identify Islam. Without flexibility, that which endures would not be sound and suitable for all the myriad situations we encounter. While modernity (or any other age) does play a role in issues that are flexible, it does not play a role in determining issues that are fixed in Islam. It is crucial that we acknowledge both the fixity and flexibility, and correctly identify whether an issue falls within the fixed or the flexible. In addition, when it is within the flexible, we must determine whether there is sufficient reason for it to change. Fixity and flexibility must be given their proper due. Excessive fixity leaves the impression that Islam automatically rejects everything modern or that it is too rigid to address the legal needs of Muslims in a given age. Excessive flexibility leaves the impression that Islam automatically accepts everything modern or that past legal rulings can be simply cast aside whenever they conflict with modern customs, habits, and comforts. The second troublesome aspect of modernity is that the world is constantly new and changing. New issues must be evaluated and changing issues must be re-‐evaluated. Since many new issues are not easily found in legal books or sources, scholars often turn to legal maxims, which enable them to provide quick answers to novel issues that are congruent with existing rulings and evidence. 4 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber II. Zawiyah Rosales 2014 DRAFT – Please do not circulate Introduction to Fiqh and Uṣūl al-‐Fiqh The original meaning of “fiqh” in Arabic has to do with deep understanding. Imam al-‐Ghazālī and others note that early generations use the term “fiqh” to refer to knowledge of the path to the Afterlife, knowing the subtle vitiations of the tongue, spoilers of deeds, having strong comprehension as to the paltriness of this life, intense desire for the bounties of the Afterlife, and fear being dominant in heart. Later the word came to have a technical meaning referring to a specific discipline, defined as “knowledge of the legal rulings related to actions, derived from their particular evidence.” Knowledge of fiqh allows one to carry out what one has been ordered to do while avoiding what one has been ordered to avoid, enabling happiness now and in the Afterlife. It is among the most important disciplines of the Islamic Sciences after the study of fundamental beliefs (īmān). Fiqh makes use of all other sources of knowledge, but it draws most heavily on the methodological and interpretive principles established in uṣūl al-‐fiqh. The sources of legal rulings The basic sources for legal rulings that are accepted by all the Sunni schools of law are: the Qur’an, Prophetic narrations, scholarly consensus, and legal analogy. The latter is the primary mechanism for extending known law to new cases. Individual schools also accept additional sources of law, though each school differs in which additional sources are valid and to what degree. Included among these additional sources are: • • • • • • The presumption of continuity (istiṣḥāb al-‐ḥāl) Customs and habits which do not violate Islamic norms (al-‐ʿurf wa al-‐ʿāda) The consideration of public interests, facilitating benefits and warding off harms (iʿtibār al-‐ maṣāliḥ) Prohibiting an otherwise lawful means because of its potential to lead to that which is prohibited (or permitting an otherwise unlawful means because of its potential sought-‐after benefits) (sadd al-‐dharāʾiʿ) Juristic preference (istiḥsān) Other sources of knowledge can include scientific knowledge, empirical knowledge, etc. 5 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Legal rulings and statements Fiqh focuses on the legal value of actions. For example, the five basic injunctive rulings (ḥukm sharʿī) related to the responsibility to perform actions are: Perform Compulsory Obligation (wujūb) Perform Non-‐compulsory Abstain Compulsory Abstain Non-‐compulsory Prohibition (ḥurma) Offensiveness (karāha) Perform / Abstain Non-‐compulsory Choice1 (ibāḥa) Recommendedness (nadb) Table 1: Injunctive legal rulings. There are also circumstantial rulings (ḥukm waḍʿī) that are concerned with whether one thing serves as a cause, condition, or preventer for something else; and whether the way something is done is valid or invalid. Fiqh produces declarative sentences of the form: • “x is [obligatory / recommended / optional / offensive / unlawful]” • “x [causes / is a condition of / prevents] y” • “x is [valid / invalid]” Addressing New Issues: An Oversimplified Workflow In the contemporary era, legal scholars have already addressed a wide range of modern issues. Areas that receive a great deal of attention include: responding to societal change, finance, medical issues, new technologies, consumer products, and halal certification. In many cases, addressing modern issues simply requires applying existing rulings found in books of law to new goods, services, and situations. In other cases where issues do not appear to be analogous to existing rulings, scholars have been prompted to explore the use of other legal tools such as legal maxims, consideration of likely consequences, and general interests. In some cases they may even 1 It is included among injunctive rulings because it is associated with the actions of those legally responsible (mukallafūn). 6 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber reexamine the textual evidence in the Quran and ḥadīth. Zawiyah Rosales 2014 DRAFT – Please do not circulate When a new issue emerges, the faqīh must first strive to have an accurate conceptualization of the issue as a whole, and in particular, the aspects that are relevant to its legal ruling. Following this step, an over simplified process for how a faqīh today searches for the legal ruling of an issue is as follows: 1. First, use an existing, ready-‐made ruling • Is there consensus that is not based on custom or habit? Follow it. • Is there a ruling that is not based on qiyas? Follow it. These existing rulings are found in books of fiqh and fatwa. Things are less complicated and resource-‐intensive when precedent exists, although there is still the difficulty of keeping track of the huge number of individual fiqh issues that serve as precedent. Here legal maxims make it much easier to remember all the similar individual fiqh issues and to extend them to new issues. This makes maxims a useful tool to master for addressing new issues and changing environments. 2. Second, adapt a ready-‐made ruling offered by precedent • Is there consensus that is based on custom or habit? Re-‐evaluate the custom or habit.2 • Is there a ruling that is itself based on analogy? Verify that the analogy is still sound. • Is there a ruling that resembles it (or more than one)? Apply analogy. Finding a consensus on an issue is not always enough. If the consensus is based on custom or habit, when this custom changes, so will the ruling. 3. Third, return to the primary sources of law • Are there Qur’anic verses and ḥadīths related to the issue? Interpret these according to the hermeneutic tools of uṣūl al-‐fiqh. • Do other forms of evidence – starting with the strongest, then next strongest – apply? Use if appropriate and when their conditions have been met. • If nothing else applies: assume permissible (mubāh) unless harmful. This final option of going back to legal sources is very complicated and resource-‐intensive as it requires extensive knowledge and skills related to legal methods, and vast knowledge of sources. 2 Note: When re-‐evaluating custom or habit, and making analogies, one must observe the universal maxims, general plan of the Legislation [al-‐itijahād al-‐ʿām li-‐l-‐tashrīʿ], and the overall objectives of the Shari’ah. 7 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber III. Zawiyah Rosales 2014 DRAFT – Please do not circulate Legal Maxims Relevant to Contemporary Issues Introduction to Maxims and Controllers Maxims (qawāʿid, sing. qāʿida) and controllers (ḍawābiṭ, sing. ḍābit) are devices for managing and distilling the large number of issues already mentioned in fiqh books, and for extending general rulings to new cases. The technical definition for a maxim is “A general rule which applies to most members of a species of rulings”. Maxims are general rules, such that by their very definition they have exceptions. One needs to be familiar with the exceptions and example cases to correctly apply a maxim to a new case. Nonetheless, maxims are an excellent tool for economizing the search for answers since the exceptional cases tend to be relatively small. Where a maxim’s scope is confined to a single topic, such as sales transactions, it is known as a “controller”. In this sense, controllers are a subset of maxims, and they function the same way in all other regards. Maxims are often inferred by noticing a pattern of reasoning used in several fiqh issues. Sometimes the inferred rule is supported by explicit textual evidence. When maxims are used deductively to generate rulings for new scenarios, it is the textual evidence that serves as the actual proof for the ruling, even though the maxim is often mentioned in place of the evidence as a type of shorthand. Some of the benefits of maxims include: facilitating memorizing and correctly applying a large number of individual issues, demonstrating regularity and consistency in the body of fiqh, and facilitating the achievement of the overall purposes of the Sharīʿa. The development of maxims goes back to an early Ḥanafī scholar, Abū Ṭāhir al-‐Dabbās, who reduced his madhhab’s rulings to 17 general rules. When news of this reached the Shafiʿi judge al-‐ Qāḍī Ḥusayn, he similarly reduced the Shāfiʿīs madhhab’s rulings to four general rules. By the 6th/12th century, a separate body of literature emerged around the study of legal maxims. Some of the most prominent works on maxims include: • Al-‐Ashbāh wa al-‐Naẓāʾir, by Ibn Nujaym (970AH) • Al-‐Furūq, by al-‐Qarāfī (684AH) • Al-‐Ashbāh wa al-‐Naẓāʾir, by al-‐Suyūṭī (911AH) • Al-‐Qawāʿid wa al-‐Fawāʾid al-‐Uṣūliyyah, by Ibn al-‐Laḥḥām (803AH) Five Primary Maxims There are five primary maxims that capture almost all fiqh issues. Each of these five primary maxims encompasses many secondary maxims that clarify and delimit its application. The five primary maxims are: 8 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber 1. 2. 3. 4. 5. Zawiyah Rosales 2014 DRAFT – Please do not circulate “Matters are judged according to the intent behind them” (al-‐umūr bi maqāṣidihā) “Certainty is not overruled by doubt” (al-‐yaqīn lā yazūl bi’l-‐shakk) “Hardship begets ease” (al-‐mashaqqa tajlibu al-‐taysīr) “Harm is removed” (al-‐ḍarar yuzāl) “Custom is a basis of judgment” (al-‐ʿāda muḥakkama) Maxims Related to Removing Harms and Obtaining Benefits This section examines maxims specifically concerned with removing harms, easing difficulties, and rulings changing due to changes in time. These specific maxims are chosen because they are used frequently when addressing new issues, and sometimes they are misapplied and abused. They are useful guides for many of the types of decisions we make in our daily lives and can assist in settling dilemmas, especially between two permissible matters. 1. “Do not harm and do not reciprocate harm.” (lā ḍarar wa lā ḍirār)3 This maxim is the foundation for preventing and responding to harmful actions that may be occasioned throughout the entire scope of Islamic law. It is a tool for judging new issues and a measure for resolving dilemmas. The main evidence for this maxim is the ḥadīth where the Prophet (God’s Peace be upon Him) said: “Do not initiate harm and do not reciprocate harm” [Ibn Majah]. This ḥadīth is an explicit declaration against the existence of harm. Since harms do exist, it is understood to indicate an obligation to block harm and to never reciprocate harm with harm. This obligation includes harms that befall the Umma as a whole or just a part, and harms that are imminent possibilities or already present realities. Legal scholars have based many rulings upon this maxim. For example, if land is leased for growing crops and the lease expires before harvest, the renter continues to use the land until harvest (with compensation typical for its use). The extension prevents harming the renter by removing the crops before their time; the payment of rent prevents harm against the owner. Another example is that if a trade good that perishes quickly, like fruit, is sold and the purchaser disappears before paying the price and taking possession of the goods and the seller fears they will perish, the seller can void the sale and sell the goods to someone else. This allows both the seller and buyer to avoid harm to their part of the exchange without compensation. 3 [Daʿas: #15, Zarqa: 81:18, Majalla: §19, Zaydan: #30] 9 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Is punishment a form of reciprocal harm? Punishing criminals does not contradict this maxim – even though it results in their harm – since punishment leads to justice and preventing even greater and more universal harms. The prohibition against reciprocating harm refers to reciprocation that achieves no purpose except escalating the overall harm. When harm is permitted, it is only permitted as a means to justice and never as an objective itself. Even then, the Sharīʿa resorts to it in a limited range of crimes (mainly crimes against life and limb) where nothing else is as effective. When it comes to property crimes, the usual legislated response is reimbursement rather than reciprocal destruction. If, for example, someone transgresses and destroys another’s property, it is not permissible to counter the damage by destroying the transgressor’s property, since this increases the overall harm. A more beneficial measure is to have the transgressor reimburse the value of what he destroyed, since this has the benefit of compensating the victim, and transferring the transgressors’ harm back against himself. This is in contrast to crimes against life and limb, for which reciprocal punishments are legislated: whoever kills is killed; whoever cuts off a limb has theirs cut off. This is because crimes are not are not stopped except by retaliation of their kind, thereby serving as a disincentive to the criminal, who knows that, in the final judgment, committing the crime against another was akin to attacking himself. No punishment restores the victim’s lost life or limb. But reciprocity alone removes the intense bitterness and rancor over the loss that prompts seeking revenge, dragging in its wake additional harms and corruption. The maxim “do not harm and do not reciprocate harm” encompasses several sub-‐maxims that guide and restrict its application. These are discussed below. 2. “Harm is repelled as much as possible.” (al-‐ḍarar yudfaʿ bi qadr al-‐imkān)4 This maxim is about deterrence: It is obligatory to prevent harm from occurring, as much as possible, since prevention is better than cure. Examples of its application include being prepared to undertake jihad in order to deter enemy invasion, punishments to deter crime, and allowing partners and neighbors to pre-‐empt sales to outside parties (al-‐shufʿa).5 4 [Daʿas: #16, Zarqa: 81:19, Majalla: §31, Zaydan: #33] 5 You mentioned the khilāf between the Shāfiʿīs and Ḥanafīs briefly. I assume that this is unnecessary to include here. 10 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber 3. “Harm is removed” (al-‐ḍarar yuzāl)6 Zawiyah Rosales 2014 DRAFT – Please do not circulate It is obligatory to remove harm once it has occurred. This maxim applies to many areas of the law, for example: the rulings regarding returning damaged goods, the various options for voiding a sale, bankruptcy laws, allowing partners and neighbors to pre-‐empt sales to outside parties (shufʿa), annulling marriage due to defects in either spouse, punishments, penalties, and reimbursements, self-‐defense laws, fighting invaders and renegades and establishing leaders and judges. 4. “Harm is not removed by its equal” (al-‐ḍarar la yuzāl bi mithlihi)7 This maxim clarifies and restricts the application of the previous maxim (“harms are removed”). Harms are removed because they are oppressive, wrong, evil, or corrupt. However, it is not permissible to remove harm by producing an equal harm, or by causing an even larger harm. It is, however, permissible to use a lesser harm to remove one that is greater. Examples of the application of this maxim include the impermissibility of closing a new store just because it causes a neighboring or nearby store reduction in business or loss,8 the prohibition of protecting one’s property from destruction by destroying someone else’s, the prohibition repelling flooding to one’s property by diverting it to someone else’s and the prohibition of consuming some else’s food if they themselves need it. 5. “The more severe harm is ended through a lesser harm.” (al-‐ḍarar al-‐ashadd yuzāl bil-‐ ḍarar al-‐akhaff)9 The previous maxim (“harm is not removed by its equal”) states that harms are not removed by their like, though they can be removed by lesser harms. This means that lesser harms are endured in order to remove or prevent greater harms. Lack of equivalency between two harms can be due to the quantity of individuals affected by the harms, or the severity of the respective harms. For example: if one harm is universal in that it impacts the entire Ummah, while another is restricted because it only affects a part, the universal harm is repelled by enduring the restricted harm. Examples of how this maxim is applied include: compelling the payment of debts and obligatory support; if a hen swallows a pearl, it is examined which is most valuable and owner of the most valuable reimburses the owner of the lesser; breaking dams in order to save the land from flooding, even though it leads to flooding some lands and farms; divorce in the event of harm or lack of 6 [Daʿas: #17, Zarqa: 81:20, Majalla: §20, Zaydan: #31] 7 [Daʿas: #18, Zarqa: 81:21, Majalla: §25, Zaydan: #32] 8 E.g.: open falafel store next to an existing falafel stand. If you ask either of them to close, the harm to one party would be problematic. So neither should be asked to close their store on the grounds that they are harming someone else. 9 [Daʿas: #19, Zarqa: 81:22, Majalla: §27, Zaydan: #35] 11 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate support; if a pregnant woman dies, it is permissible to violate the sanctity of her body by cutting her open in order to remove a viable fetus and prevent its death; to avoid death from starvation, one can take another’s food to the amount necessary to repel his death, unless the owner does not himself have similar needs. 6. “When two harms conflict, the greater is dealt with by committing the lesser.”10 (idhā taʿāraḍat al-‐mafsadatān rūʿiya aʿẓamuhumā ḍararan bi-‐irtikāb akhaffihimā), and, “The lesser of two harms is preferable.” (yukhtār ahwan al-‐sharrayn)11 These maxims concern cases where there is no escaping that one of several harms will take place. The first maxim concerns harms that are present; the second concerns harms that are expected. Where one of the two harms is definitely going to occur, necessity allows a person to perform the lesser of the two harms. In such cases, one should choose the occurrence of the lesser, since carrying out harm is not permitted except out of necessity, and there is no necessity in carrying out the harm in excess of that of the lesser. These maxims are loosely supported by the ḥadīth: “Whosoever of you sees an evil, let him change it with his hand; and if he is not able to do so, then [let him change it] with his tongue; and if he is not able to do so, then with his heart – and that is the weakest of faith.” [Muslim] Some examples of where these maxims are applied include: taking wages for performing acts of worship like making the call to prayer or teaching Qur’an so that these acts are not abandoned; lying to save a life that is sacrosanct; the permissibility of obeying a despotic leader if rebelling against him will lead to a greater evil; and consuming carrion to prevent loss of life taking precedence over consuming another’s property without permission. 7. “Restricted harms are endured in order to repel universal harms.” (yuḥtamal al-‐ḍarar al-‐ khāṣ li-‐dafʿ al-‐ḍarar al-‐ʿām).12 Harm is considered universal when it presents a risk to every member of the Ummah, while it is restricted when it is a risk to only some individuals or a small portion of the Ummah. Given two harms of equal severity, where one is universal and the other restricted, the universal is considered the greater harm, so it must be repelled even if warding it off will lead to the occurrence of the restricted harm. In other words: restricted harms are endured to repel or prevent universal harms. 10 [Daʿas: #21, Zarqa: 81:24, Majalla: §28, Zaydan: #36] 11 [Daʿas: #20, Zarqa: 81:23, Majalla: §19, Zaydan: #37] 12 [Daʿas: #22, Zarqa: 81:25, Majalla: §26, Zaydan: #34] 12 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Some examples of how this maxim is applied include: Suspending negligent and ignorant physicians (and incompetent muftis) even if they are personally harmed, in order to repel their harm to the lives (and religion) of the Ummah; removing a wall that encroaches upon a public pathway; suspending individuals who are insolvent from trade and disposing of their property; setting prices of staple foodstuffs and needed items when merchants refuse to sell at the fair market price; and, barring the export of local goods to prevent an increase of prices within the land. 8. “Avoiding wrong takes priority over obtaining benefits” (ḍarʾ al-‐mafāsid awlā min jalb al-‐ maṣāliḥ)13 In a situation where preventing a wrong and obtaining a benefit are both possible, mitigating the wrong is usually given precedence, since the Sharīʿa is more attentive to prohibitions than it is to commands. This is why the Prophet said, “When I order you to do something, do it as far as you can; and when I forbid you from doing anything, eschew it" [Muslim]. Some examples of this maxim’s application include: the recommendation for vigorously rinsing the mouth and nose during ritual purification is removed when fasting due to the possibility of invalidating the fast and the impermissibility of trafficking in the unlawful even when it is profitable. Another case is prohibiting property owners from making use of their property in ways that present considerable harm to a neighbor (like building a mill or latrine adjacent to his neighbor’s house) because mitigating wrongs to the neighbor takes priority over the owner’s obtainment of benefits. Maxims Related to Easing Difficulties There is a class of maxims specifically addressing the removal of hardships and easing of difficulties. As a starting point, the vast majority of individual rulings are built upon wisdom, discernible underlying causes (ratio legis) and consistency. The mercy and ease intended by the Sharīʿa is further manifested in several ways: that individual rulings are easy with respect to the most common situations and that difficult rulings are eased in light of hardships experienced by individuals or by the community. The combined means of manifesting mercy and ease leave legally responsible individuals without any excuse for failing to abide by its rules. While the Sharīʿa acknowledges mercy and ease, it is always within limits that do not lead to circumventing or rendering inoperable its overall objectives.14 Types of Hardships 13 [Daʿas: #23, Zarqa: 81:26, Majalla: §30, Zaydan: #38] 14 (From Obligations to Future Generation piece:) 13 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate There are two types of hardships. The first are hardships that are typically present in or inseparable from a legal responsibility. This includes purification from cold water, fasting when in a hot climate or during long days, travel which is required for pilgrimage and jihad, the pain of a punishment of flogging and the toils of seeking one’s livelihood. This maxim is not concerned with this type of hardship, since removing a responsibility because of a hardship that is typical to the action would lead to dereliction and negligence of religiously mandated duties. The second are hardships that are typically absent or separable from a legal responsibility. This category is further sub-‐divided into overwhelming and light hardships. Overwhelming hardship are those in which there is fear of loss of life or limb, or loss of the benefits of a limb. This type of hardship needs to be removed and facilitates dispensations, because mitigating the resultant harm takes priority over obtaining the benefits of discharging the religious duty. In contrast, light hardships, like slight pain, a mild headache or mild sickness are not significant and do not facilitate dispensation, since obtaining the benefits associated with religious duties takes priority over preventing these light hardship. Where it is not clear if a hardship is light or heavy, we give it the ruling of whichever one it approximates. Situations Commonly Involving Hardships The Sacred Law identifies some situations that involve hardship so commonly that whenever the situation is occasioned we presume that there will be dispensations involved. These situations include: travel, sickness, compulsion, forgetfulness, ignorance, difficulty and general calamity, and diminished capacity. All of these situations invite dispensations and ease. 1. Travel Travel is a hardship because the traveler is typically away from family and friends, in a place unknown or less known to him, making it more difficult to find essentials and necessities. For this reason, there are many dispensations associated with travel, such as shortening and joining prayers, not fasting during Ramadan, praying non-‐obligatory prayers while riding one’s mount and foregoing the obligation of performing the Friday Prayer. 2. Sickness: Due to the pain and difficulties associated with sickness, it is a cause for a multitude of dispensations. For example, dry ablution is permitted in place of ablution when fearing loss of life or limb, or an increase in one’s sickness or delaying recovery; the dispensation for sitting, lying down or gesturing while praying obligatory prayers; permitting someone else to throw stones at 14 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate the Jamarāt during Hajj; and permitting the consumption of medicines mixed with alcohol proven to be effective when there is no alternative. 3. Compulsion Compulsion is defined variously as “making someone else do something without their consent which they would not choose to carry out if left to their own volition,” and “making someone else do something they refuse to do by scaring them with something that the compeller is capable of executing…” Compulsion can be a cause for dispensation and facilitation subject to certain conditions: • The compeller is capable of carrying out his threat; • The person being compelled fears fulfillment of the threat; • The person being compelled acts under the influence of that fear, • The threat is something harmful that destroys life or limb, or something that the individual is not typically able to withstand, like a severe beating, destruction of property of significant value, or threatening severe harm to someone important to the individual compelled. Verbal and emotional abuse is considered close to physical harm or something that would lead to it. When these conditions are met, compulsion can be a cause for dispensations in utterances and deeds. In the case of utterances, like divorce, transactions or statements of disbelief, these are voided of their legal consequences when uttered under duress. As for deeds normally unlawful, like drinking wine and eating carrion, these are rendered permissible for one under compulsion. However, unlawful acts like murder that comprise harming another are not rendered permissible due to compulsion. 4. Forgetfulness: Scholars agree that failing to remember something one knows when it is needed cancels out sin, whether it relates to duties owed Allah or duties owed individuals. This is due to the ḥadīth: “Allah has forgiven my nation for mistakes and forgetfulness, and what they are forced to do”. Examples of actions that are excused due to forgetfulness are eating or drinking while fasting and a debtor forgetting a debt he owed which is sought after his death. Forgetfulness can also be a cause for doubt (shubha) for warding off prescribed punishments, in view of the Prophet’s statement: “Avert the prescribed punishment by rejecting doubtful evidence” [Al-‐Bayhaqi]. 5. Ignorance 15 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Ignorance is defined as not knowing what should be known. There are specific conditions governing ignorance as a legitimate legal excuse. 6. Difficulties and general calamity: Difficulties that are so extensive that they cannot be avoided with ease, and calamities that are so widespread that they are unavoidable are both causes for dispensations and ease. For example, praying is permitted while there is the after-‐trace of filth on the body which is difficult to remove and women are not required to make up prayers missed during menstruation because of the burden this would comprise. 7. Diminished capacity “Diminished capacity” indicates the existence of an attribute or state that renders a person incapable of carrying out some legal responsibilities or makes it difficult or overly exhausting to perform them, which are normally required of those lacking the same, attribute or state. There are numerous applications of this pertaining to children, the insane, the blind, slaves and women. In the case of women, their ‘diminished capacity’ pertains to the fact that in most societies, women tend to household responsibilities and typically have fewer opportunities for earning money. They are therefore excused from such tasks as attending the Friday prayer, participating in jihad and contributing to paying blood indemnities in the case of accidental manslaughter. Maxims Related to Easing Difficulties 1. “Hardship Begets Ease” (al-‐mashaqqa tajlibu al-‐taysīr)15 Extraordinary difficulty that leads to hardship is a cause for ease and accommodation. The evidence for this includes the verses: “Allah intends for you ease and does not intend for you hardship” (Q 2:185) and “[Allah] has not placed upon you in the religion any difficulty” (Q 22:78). It is also supported by the ḥadīth in which the Prophet said: “Allah has forgiven my nation for mistakes and forgetfulness, and what they are forced to do” [Ibn Majah]. 2. “When a matter becomes restrictive it is accommodated” (al-‐amr idhā ḍāq ittasaʿ)16 15 [Daʿas: #27, Zarqa: 81:30, Majalla: §17, Zaydan: #20] 16 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate 3. “Once a matter is accommodated, it re-‐constricts” (idhā ittasaʿa ḍāq) Combined, these two maxims convey that when circumstances change in a way that makes it difficult and burdensome to discharge a duty in its default mode without excessive hardship, the duty is lightened and accommodated. When circumstances change and the hardship is removed, the default ruling is reinstated. For example, debtors who are insolvent and without guarantor are left alone until they are able to pay and it is encouraged to make repayment debt easier by allowing the debtor to repay the debt in installments. Another case is the allowance for a widow observing her waiting period to leave her home during the daytime if she needs to earn her livelihood. However, once she has what she needs, the default of remaining in her home during her waiting period comes back into effect. 4. “Necessities render permissible the impermissible.” (al-‐ḍarūrāt tubīḥ al-‐maḥẓūrāt)17 This maxim, which has often been misapplied and overused, is understood from several Qur’anic verses that provide exceptions in difficult situations. Allah Most High says “But whoever is forced [by necessity], neither desiring [it] nor transgressing [its limit], there is no sin upon him. Indeed, Allah is Forgiving and Merciful” (Q 2:173), “excepting that to which you are compelled” (Q 6:119) and “but whoever is forced by severe hunger with no inclination to sin – then indeed, Allah is Forgiving and Merciful.” (Q 5:3). Necessity has been defined as “a state that is inescapable without resorting to the unlawful” or “a state where one will perish if he does not use what is unlawful.” Some examples of this maxim’s application include the dispensation to consume what is normally unlawful in the absence of permissible food and drink, the dispensation for a doctor to look at and touch what a patient must typically cover for the sake of diagnosis and treatment and the dispensation making lying and even false oaths permissible when these acts are necessary to save an innocent life, to protect a woman from being raped or to safeguard property from theft. However, there are limits to what necessity renders permissible. For example, necessity does not permit killing an innocent person, even under threat of death. This is because the sanctity of the life of an innocent person is the same as that of the compelled, so the person who is being compelled is not more deserving of safeguarding his own life is than that of the innocent person. Therefore, killing the innocent will be killing without justification, and Allah Most High commands: “do not kill the soul which Allah has forbidden, except by right” (Q 17:33). 5. “Necessities are limited by their degree.” (al-‐ḍarūrāt tuqaddar bi-‐qadrihā)18 16 [Daʿas: #28, Zarqa: 81:31, Majalla: §18, Zaydan: #11] 17 [Daʿas: #29, Zarqa: 81:32, Majalla: §21, Zaydan: #22] 18 [Daʿas: #30, Zarqa: 81:33, Majalla: §22, Zaydan: #23] 17 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate This maxim clarifies the intent and boundaries of application of the previous maxim, namely that necessity renders the unlawful permissible to the degree needed to repel the harm, and once the necessity is eliminated, the ruling of impermissibility is reinstated. For example, a person who must consume unlawful food due to the absence of permissible food and drink should eat of it only the quantity necessary to remove the risk of death and a little more than that to sustain him self. When a doctor treating a patient needs to expose parts of the patient’s body that must otherwise be covered, this exposure is limited to what is required for treatment. Additionally, it is not permissible for a woman to expose her body to a male physician when a suitable female physician is available and vice versa. If someone is contracting an interest loan to purchase a home, it should be a modest home that fulfills his needs and his family’s rather than an extravagant mansion. 6. “Dire need does not void the rights of others.” (al-‐iḍṭirār lā yubṭil ḥaqq al-‐ghayr) 19 Necessity removes the sin for doing the unlawful, but it does not void the rights of others, so whenever necessity justifies destroying another’s property, the owner of the property must be reimbursed for his loss – otherwise is would be a case of removing harm via harm, which violates other maxims discussed above. When the necessity to violate the rights of others is the result of compulsion, it is the compeller who must reimburse the person whose rights were transgressed. 7. “Need is given the status of necessity, whether universal or restricted.” (al-‐ḥāja tunazzal manzilat al-‐ḍarūra ʿāmatan aw khāṣatan)20 “Need” (ḥāja) mentioned in this maxim is less severe than the necessity discussed in previous maxims. However, left alone, necessity leads to harm, whereas need leads only to hardship and difficulty. A necessity or need is “universal” when it encompasses the entirety of the Ummah, and it is “restricted” when it encompasses only part of the Ummah, like the people of a land or those engaged in a particular trade. The meaning of this maxim is that when it comes to dispensations and facilitation, needs that are shared by a part of the Ummah, large or small, are given the same status as necessities. For example, due to widespread need, there is a dispensation to sell in advance of receiving a product (bayʿ al-‐salam), even though it involves selling something absent which is normally impermissible. 19 [Daʿas: #31, Zarqa: 81:34, Majalla: §33, Zaydan: #27] 20 [Daʿas: #32, Zarqa: 81:35, Majalla: §32, Zaydan: #24] 18 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Considering this maxim in light of the previous maxims indicates that necessities and needs are judged differently. Necessity renders the impermissible permissible, whether it affects individuals or groups, while need does not render the impermissible permissible unless it entails a common need experienced by a group. In addition, only individuals who experience the necessity can apply the ruling of the dispensation, and the modified ruling is suspended once the necessity is removed. In contrast, rulings established by need are authorized in general for the benefit of all individuals even if they do not personally experience the need. Maxims Related to Temporal Fixity and Flexibility Custom, habit, and context change throughout time, and those changes play a role in determining how rulings are modified. This theme is especially relevant to our discussion given how modernity is linked to massive changes, like new technologies, societal organization, institutions and social customs, many of which require legal rulings. Due to globalization, many Muslim societies have been heavily influenced by the customs and habits of non-‐Muslim societies, so most contemporary issues are equally relevant to the East as the West. Many modernists argue that certain rulings must be modified because the social customs and habit of today are not the same as those at the time of the Prophet (peace be upon him). A more extreme form of this argument is that even linguistic meanings are a form of custom and habit, and so rulings will change as the linguistic use of words do. But how far does this go? Valid and Invalid Customs Custom (ʿurf) and habit (āda) are often significant when determining legal rulings. According to uṣūl al-‐fiqh, custom is defined as “what people have become accustomed to applying and putting into practice”. This includes not only actions, but also phrases which people use to mean something that departs from the original linguistic meaning and is not obvious to those who hear it [e.g. idioms and technical terms]. Whereas consensus (ijmāʿ) depends upon the agreement of scholars, custom depends upon agreement of the masses – specialists and non-‐specialists alike. Most examples of custom fall under the general heading of unrestricted interests (al-‐maṣāliḥ al-‐ mursala) – which are those things we deem good that the Sharīʿa neither confirms nor denies. Jurists observe “everything which the Sharīʿa has mentioned in absolute terms without any specific guidelines in the Sharīʿa or language, is determined through custom”. This includes for example what determines concluding a deal and taking possession of one’s [new] property, and the requirements for claiming abandoned lands. In modern times, determining what it means to take possession of things like bonds goes back to convention also. Books of uṣūl al-‐fiqh divide custom into two categories with respect to their legal status: valid and invalid customs. The first, valid customs, are those which people have become accustomed to which 19 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate do not render the prohibited lawful nor the lawful prohibited. Examples of valid customs include sales transactions in which a price is given and money handed over without a verbal acceptance and dividing a woman’s dowry into a portion given upon marriage and a portion deferred until death or divorce (muqaddam and mu’akhkhar). The second category comprises invalid customs, which are those which people have become accustomed to but which do render the prohibited lawful or the lawful prohibited. Examples of invalid legal customs are engaging in transactions involving interest, giving a dowry to the husband instead of the wife, and shaking hands with the opposite gender. Conditions for the Validity of Custom There are certain conditions that must be met in order for custom to be considered valid and legally significant: 1. That the custom be widespread and consistent among all who use it, or at least the majority of those who use it; 2. That the custom have general acceptance in all Muslim lands; 3. That the custom not be in conflict with textual evidence; 4. That the custom be present at the time an individual transaction is initiated; 5. That the custom be considered binding according to the masses; 6. Absence of a verbal or written statement indicating that the opposite of the custom is desired. Customs that meet all of these conditions are significant, and they can then play a role in determining rulings and in settling disputes in court. 20 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Legal Maxims Related to Customs Zawiyah Rosales 2014 DRAFT – Please do not circulate 1. “It is not denied that rulings change with the change of time” (lā yunkar taghayyur al-‐ aḥkām bi-‐taghayyur al-‐azmān]21 The overall aims of the Sharīʿa include obtaining welfare, warding off harms, and establishing justice. Because of this, legal rulings have a strong connection to the temporal context in which they are implemented. Many rulings were well suited to accomplish their purpose in a specific time, and after a generation or two, they no longer accomplish their purpose, or they may even lead to the opposite outcome. This is why scholars of one generation give fatwas on many issues that differ from fatwas issued by scholars of an earlier generation – they do this knowing that if places were reversed, each would give the opinion of the other. However, foundational rulings that the Sharīʿa established through the Quran and ḥadīth intended for all times and places are not open to changing with changing times. Rather, these rulings are intended for the betterment of all times and generations. However, the means for carrying out these rulings and the manner in which they are applied can change according to the age. Foundational rulings are usually those based upon explicit univocal texts (naṣṣ) which do not admit change over time and are considered stronger than custom. Some examples of these foundational rulings intended as eternal fixed principles of Islam include the unlawfulness of oppression, the obligation of securing consent in transactions, the obligation of removing crime and protecting rights and the impermissibility of fornication, ribā, drinking wine and theft. In contrast, rulings that are open to change include those based on legal customs and habits, and interests (maṣāliḥ). When the context, customs or habits change, it becomes necessary to re-‐ evaluate the rulings to ensure that they are still suitable for their time. When these rulings cease to be suitable for obtaining their intended purpose, the rulings must change or else they will be pointless, if not harmful. Examples of rulings that can change based on prevailing customs and changing contexts include the permissibility of taking wages for the performance of religious duties, such as leading prayers or teaching Quran, reducing the conditions for a witness to bearing testimony and the recording of ḥadīth. In reality, the legal rulings that change due to the change of time are all built upon the same legal basis: delivering rights, obtaining interests, and mitigating harms. The change in ruling is simply a change in the means and manners for arriving at the Sharīʿa’s goal. In most cases, the Sharīʿa does not specify the particular means by which to achieve those aims, but leaves them for the Muslims in each age to choose what is most suitable and efficacious for producing the desired results.22 21 [Daʿas: #43, Zarqa: 81:46, Majalla: §39, Zaydan: #40] 22 For more information, see Shaykh Abdullah Bin Bayyah, “Islamic Discourse: Between the Conclusive and the Variable” (http://j.mp/1nrqNgV) 21 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber IV. Zawiyah Rosales 2014 DRAFT – Please do not circulate Interests and Welfare (Maṣlaḥa) Maṣlaḥa, translated as “public welfare”, “public interests,” “welfare,” or “benefit” is one of the secondary sources of law often used for addressing issues in the absence of textual evidence and for resolving dilemmas related to determining priorities. Like maxims, interests provide regularity and purpose to Islamic law, and there is considerable overlap between the legal reasoning behind maxims and that supporting interests. Definition of Interests Allah’s legislation for human beings is never arbitrary. When we take a careful look at His commands and prohibitions, we find that there is nothing He has commanded or prohibited except that it serves our best interests in this world and the next. Scholars often discuss the benefits of individual rulings, and how they contribute to the overall interests that Allah Most High intended for His servants. The topic of maṣlaḥa is discussed in classical legal literature, especially in uṣūl al-‐ fiqh when discussing the discovery of bases for analogy (qiyās). It is particularly important in discussions on how to determine rulings in the absence of textual evidence related to specific issues. In his famous book on uṣūl al-‐fiqh, a-‐Maḥṣūl, Fakhr al-‐Din al-‐Razī (d. 605/1209) defined maṣlaḥa as “the benefits which the Wise Legislator intended for His servants, including preservation of their religion, their lives, their intellects, their progeny, and their property’… and ‘benefit’ is pleasure or its means, and removing pain or its means.” 23 This definition mentions some of the most fundamental interests preserved in Islam: protection of religion, life, intellect, progeny, and property. All other interests can be subsumed under these five. Comparison to Similar Concepts Terms similar to the interests of uṣūl al-‐fiqh are found in the writings of moral philosophers and ethicists when they speak about “interests,” “welfare,” and “utility.” Perhaps the concept with the greatest similarity is utilitarianism and other forms of consequentialism. The basic claim of consequentialism is that the moral status of an act is determined solely by its consequences – not something intrinsic to the action or the circumstances in which it is carried out. While there are many similarities between consequentialism and the Islamic concept of interests, there are also several significant differences. One difference is that maṣlaḥa and mafsada (interests and harms) are not limited to this life, but can also include the Afterlife or even be limited exclusively to the Afterlife. So when it comes to an 23 [Ḍawābiṭ al-‐Maṣlaḥah] 22 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate action’s consequential pleasure, happiness, pain associated with it, we must look at its consequences both in this life and the Hereafter. When an action has consequences in both this life and the Afterlife, those consequences can be positive in both, negative in both, or a mix. Some actions lead to pleasure in this life and pain in the Afterlife. We must look at the consequences in both this life and the Afterlife. A second difference is that maṣlaḥa and mafsada (interests and harms) refer to the body, mind, and the spirit (rūḥ). Common themes to modernity include reducing existence to the physical world that is accessible to our senses, and the denial of the Unseen, the Afterlife, and the spirit. A third difference is that religion is the authoritative source for knowing maṣlaḥa and mafsada – not human reason, nor trial and error. While human reason and experience do identify some things as good and others as bad, reason and experience alone often lead to disagreement about the status of an individual action. Trial and error are limited to matters of this life and are only useful to determine what pleases us, but not what pleases Allah. Thus neither experience nor rationality can tell us anything specific about an action’s goodness or lack thereof in the Afterlife. Only revelation is an authoritative source for knowing which of the things we deem good are truly worthwhile interests to be pursued and preserved by the Sacred Law. Universal Interests There are a number of interests which are considered “universal” in that all scholars accept them, and do so in a particular order: religion, life, [religiosity,] intellect, progeny and property. These interests are placed in this order because of the punishment instituted to protect each of these interests: • Religion takes priority over life since it is permissible to take lives during jihad in order to protect religion • Life takes priority over intellect because even though drinking wine is a punishable offense in order to protect the intellect, it is still permitted to drink wine in order to save the life of someone who is choking. • Intellect takes priority over lineage because among the conditions for carrying out the punishment for fornication (which was legislated to preserve lineage), is that the punishment not lead to injuring senses or the intellect • Lineage takes priority over property because of the prohibition of prostituting one’s slaves in the interest of increasing property. Some scholars also add an additional category (“religiosity”) between life and intellect. 23 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Degrees of Need Zawiyah Rosales 2014 DRAFT – Please do not circulate Scholars also divide interests into categories based on the degree of their need: 1. Necessity (ḍarūrī) is that which is necessary in order to protect the universal interests of religion, life, religiosity, intellect, progeny and property. What is deemed a necessity is what is just sufficient to fulfill basic needs of food, shelter, clothing; everything above this is considered a “need” or “supplementary.” Examples of needs include: • Permissibility of jihad (religion) • Reciprocal punishments (life) • Permissibility of eating (life) • Permissibility of eating carrion & otherwise unlawful foods (life) • Punishment for drinking wine (intellect) • Punishment for fornication (progeny) • Punishment for theft (property) • Protecting & earning (property) 2. Need (ḥājī) is that which is necessary in order to protect the above, but falls below the level of necessity: Examples include: • Leniencies (rukhaṣ) (religion) • Eating wholesome foods (life) • Hunting (life) • Knowledge and learning (intellect) • Marriage (paternity, protection, support) (progeny) • Requiring a guardian or public announcement in marriage (progeny) • Requiring a suitable matche in marriage (progeny) • Punishment for accusation of fornication (progeny) • Various forms of trades and transactions (property) • Option to cancel a sale (property) • Various individual transactions: sales, rental, lending, farming (property) • Impermissibility of ribā (property) 3. Supplementary (taḥsīnī) – that which is deemed useful towards preserving the above, without reaching the level of need, such as: • Removing filth (religion) • Covering nakedness & adorning oneself (religion) • Voluntary good deeds (religion) • Etiquette associated with purification (religion) • Recommended actions for purification (religion) 24 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber • • • Zawiyah Rosales 2014 DRAFT – Please do not circulate Etiquette of eating & drinking (life) Avoiding filthy foods (life) Avoiding entertainment & other things that distract from priorities (intellect) Types of Interests: Affirmed, Denied and Unrestricted Interests Scholars of uṣūl al-‐fiqh divide maṣlaḥa into three types, based upon which legal source it is mentioned in an how it is discussed. These categories are: 1) Affirmed Interests (maṣālih muʿtabara). These are specific interests affirmed by textual evidence. These affirmed interests have the potential to be extended to new cases through legal analogy. An example is the impermissibility of intercourse during menstruation in order to minimize or prevent harms. This is mentioned in the verse “And they ask you about menstruation. Say, “It is harm, so keep away from wives during menstruation…” (2:220). This interest is extended to post-‐natal bleeding, which shares many similarities with menstruation. 2) Denied interests (maṣālih mulghā). These are interests which textual evidence has mentioned and denied. Denying an interest is an indicator that it is imaginary, is less weighty relative to interests, or that it entails harm in the afterlife. For example, terminating one’s own life due to physical or psychological pain (suicide, euthanasia, or mercy killing) to realize the interest of mercy has been precluded by the verses: “And do not kill yourselves [or one another]. Indeed, Allah is to you ever Merciful. And whoever does that in aggression and injustice -‐ then We will drive him into a Fire. And that, for Allah, is [always] easy” (4:29–30). It is further buttressed by a ḥadīth in which the Prophet indicates that pain and misery experienced in this life does serve another interest: erasing bad deeds and increasing one’s rank in the Afterlife. Another example is giving sons and daughters an equal share in inheritance to realize the interest of gender equality. This interest has been specifically ruled out in this case by the verse: “Allah instructs you concerning your children: for the male, what is equal to the share of two females” (4:11). 3) Unrestricted interests (maṣālih mursala). These are specific interests which textual evidence has not mentioned. Examples include recording the muṣḥaf in a single volume, establishing an organized army, establishing prisons, minting coins, or requiring marriage contracts to be written down, all of which entail obvious benefits. So when faced with one of modernity’s myriad of new issues, scholars may look to see whether the issue falls under an affirmed interested (in which case one examines extending the affirmed interest to the new issue via analogy), a denied interest (in which case it is also denied), or whether it is unrestricted interest (in which case one sees which of the universals it serves). Unrestricted interests in particular offer a great deal of flexibility for addressing new issues. But there are conditions and constraints that must be met when applying interests (maṣlaḥa) in legal reasoning. 25 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Guidelines for Applying Unrestricted Interests Zawiyah Rosales 2014 DRAFT – Please do not circulate In his book Ḍawābīt al-‐maṣlaḥa (first published in 1385AH/1965CE), Dr. Muḥammad Saʿīd Ramaḍān al-‐Būṭī outlines specific guidelines for the proper usage of interests in the following way: 1. That the interest must fall under the general interests, namely: religion, self, intellect, progeny, and property; 2. That the interest does not conflict with the Qur’an; 3. That the interest does not conflict with the Sunna; 4. That the interest does not conflict with qiyās; 5. That the interest does not undermine an interest of a higher priority. Determining Priorities The fifth guideline is the most subtle and involved. Where conflicts arise, al-‐Būṭī devised a series of tests to determine which interest is to be given priority. When a given test results in a conclusion that the two interests are on an equal plane, the jurist moves to the subsequent test until the dilemma is resolved. 1) Test 1. Likelihood of occurrence: certain > expected (versus doubted or imaged) The result from this test is that an occurrence is determined to be certain, doubted or expected in terms of its leading to the realization of the interest, or to its opposite; the incidence of harm. An example of an occurrence that is certain to lead to harm is digging a hole directly in front of someone’s door when it is dark. An occurrence that is expected to lead to harm would be selling weapons during a time of unrest, or selling grapes to a winemaker. Finally, an occurrence described as doubted in terms of it leading to harm is digging a hole in the middle of the path while people are watching, or selling grapes to someone who doesn’t know how to make wine. 2) Test 2. Rank of its interest: religion > life > [personal] religiosity > intellect > progeny > property 3) Test 3. Rank of need: necessity > need > supplementary An example of a conflict that demonstrates the application of these two tests is that between marriage, which is among the necessities legislated in order to protect progeny, and the purchase of luxury goods, which is supplementary to the protection of property. Since marriage requires that the male provide for his family, it may prevent him from purchasing luxury goods. On the basis of Tests 2 and 3, it becomes necessary to give priority to the former over the latter, since marriage is among the necessities and luxury goods are among the supplements, and because marriage is associated with lineage whereas luxury goods are related to property. 4) Test 4. Scope of benefit: everyone > many > individual 26 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate This test is only administered if both interests are certain to occur; both concern the same rank among universal interests; and both are at the level of necessity At this point, the rule that the goods of the many outweigh the goods of the few is applied. For instance, when there is a conflict between protecting the masses from misguidance, and protecting individual freedom of expression, both of which are considered needs, the former is given priority since it affects more people. Additionally, the consequences resulting from ignoring the first would lead to far greater harm than the consequences of ignoring the second, since the second’s consequences will spread to others. Other examples would include: giving benefit of water and herbage growing on public lands to the general public instead of a single individual and busying oneself with non-‐obligatory religious knowledge instead of voluntary acts of worship since the benefit of the former extends to others. Case Studies: Applying Interests Aḥmad’s Trip to the Hospital Version I: Aḥmed plans a trip to the hospital. To get there he must travel through a shady neighborhood. There is no alternative path to the hospital. A storm is coming in, so there is an ever-‐so-‐ slight possibility of being struck by lightning. Aḥmed suffers from arcotophobia [fear of being attacked by bears]. Although there are no bears in his vicinity, he is always worried about being attacked. Aḥmed wants to know the legal ruling of his trip to the hospital. What is the legal ruling for Ahmed’s trip to the hospital? If we treat all risks as significant, then the risks of being struck by lightning or attacked by bears would be enough to prohibit his trip. However, since the risks in this scenario are very unlikely if not imaginary, the risk is effectively ruled out. Version II: The same scenario as above, with the following addition: Aḥmed may get beaten up and injured while walking through the shady neighborhood. Now we have a risk that is likely enough to be legally significant and render his trip prohibited. Here there is a fear for his life, which is the most significant of the universal interests. Asking about actions involving risk to life or limb tends to prompt an immediate prohibition due to the obligation to preserve of life. Version III: The same scenario as above, with the following addition: Aḥmed is already late for a vital 27 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate treatment at the hospital. If we look only at the risks related to Aḥmed walking through the neighborhood, they would be enough to render his trip prohibited. But if we also look at the [longer-‐term] risks if Aḥmed did not walk through the neighborhood, the prohibition no longer seems justified. The prohibition for version II may be unjustified in this because of the need to take into account the nuances involved in this scenario. Here we have to consider which risks are legally significant and which are not as well as the risks of not performing the action. The main take-‐away from this case study is that a jurist needs to take into account both the consequences of doing and of not doing the action. Ticking Time Bomb Scenario Suppose that a perpetrator of an imminent terrorist attack, that will kill many people, is in the hands of the authorities and that he will disclose the information needed to prevent the attack only if he is tortured. Should he be tortured? A utilitarian argue that torture is legitimate in this scenario because it would save more people, while a human rights activist would argue that torture is never justified and moreover, that it is not an effective way to elicit a truthful confession. If we consider torture a potential unrestricted interest, we can apply Dr. Būṭī’s guidelines for applying the validity of an unrestricted interest, which proceeds as follows: 1. That the interest must fall under the general interests, namely: religion, self, intellect, progeny, and property; 2. That the interest does not conflict with the Qur’an; 3. That the interest does not conflict with the Sunna; 4. That the interest does not conflict with qiyās; 5. That the interest does not undermine an interest of a higher priority. a. Likelihood of occurrence (certain > expected; not doubted or imagined) b. Rank of the interest (religion > life > intellect > progeny > property) c. Rank of need (necessity > need > supplementary) d. Scope of benefit (everyone > many > individual) 28 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Below is a potential application of these guidelines to the ticking time bomb scenario: 1. In this scenario we have a conflict between the actual preservation of life of a single individual that is undermined in torture, versus the potential threat to the preservation of life of a larger group of people from the imminent terrorist attack. 2. The permissibility of torture to elicit a confession is an area of disagreement. Based on the relevant Qur’anic verses, ḥadīths and relevant analogies, a minority view considers it permissible while a majority consider it impermissible. 3. [See above] 4. [See above] 5. In this assessment, we must consider a number of factors to determine the likelihood of the occurrence of the terrorist attack: Is he likely the perpetrator? Does the suspect in custody really know where the bomb is? Is the information he gives likely to be accurate? Is the information likely to be available in time? If we are uncertain about the existence of the bomb or that the person is really the perpetrator, it would be very difficult to justify the torture because it is unlikely to save the lives of others. Another relevant line of questioning is whether the target of the attack is people (protection of life) or buildings (protection of wealth)? Another question is how many people would have to be tortured to locate the bomb versus how many people are potential victims? In short, considering this casein isolation, if torture is indeed expected to avert the bomb exploding, then maybe there is a maṣlaḥa-‐based justification for torturing the perpetrator. While this might be an acceptable answer when we look at things in isolation, we also need to look at the likely consequence of one when one side of a conflict using torture because it is likely to result in retaliation of torture against captives without consideration of the justifications and necessities that rendered the impermissible permissible in the first place. Using torture opens the doors for others to follow suit. In a final assessment, it is difficult to justify torture even in the scenario described because of the likely consequences that will ensue. This is further supported by the fact that torture rarely produces credible evidence, and many studies have argued that there hasn’t been a single case of successful intelligence gathered from torture. 29 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber V. Zawiyah Rosales 2014 DRAFT – Please do not circulate Contemporary Juristic Efforts to Address Legal Issues A Sampling of Legal Issues Addressed by Contemporary Jurists The faqīh is constantly bombarded with modern issues that require a legal ruling. To show the range of issues with which the contemporary faqīh must contend, below is a list compiled by an Egyptian scholar, Dr. Saʿd al-‐Dīn Musʿab Hilāli, that enumerates the issues he was asked to address.24 While some of these issues are specific to an Egyptian context, it nonetheless shows the degree of specialization demanded of the faqeeh and the wide range of skills and knowledge outside the Sacred Sciences required to provide answers to these questions. Trade and Finance • • • • • • • • • • • • • • • • • • • • • • • • • Trading on the foreign exchange market Trading through stock brokers Trading in promissory notes Bank checks Bills of exchange Stocks Trading in bonds Dividends Credit cards Electronic banking cards (ATM) Futures Options Letters of guarantee Electronic transactions (Never actually take possession of the object) Transactions via electronic voice communications Interest banking Compensating parties hurt by debt inflation Commercial insurance Life insurance Intellectual properties, patents, trademarks Contract with tenant to vacate for subleasing (khulū) Rebates Cost-‐plus sales (murābaḥa) Selling in installment plans Rentals ending in ownership 24 Al-‐thalathunat fi al-‐qaḍāya al-‐muʿāṣara, Maktaba Wahba 30 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber • • • • • Zawiyah Rosales 2014 DRAFT – Please do not circulate Partnerships ending in ownership Cost-‐plus-‐sale financing Partnership in manufacturing (al-‐istiṣnāʿ al-‐mawāzī) Immediate payment against future delivery (al-‐sulm al-‐mawāzī) Limited investment (al-‐muḍāraba al-‐muqayyada) Social issues • Engagement gifts [e.g.: who owns it once they break up?] • Compensation for breaking off an engagement [e.g.: money gets invested into booking a hall] • Unregistered marriages (al-‐zawāj al-‐ʿurfi) • Marriage minus cohabitation (zawaj al-‐misyar) • Civil marriage • Older men marrying young women • Marrying foreigners • Marrying Israeli nationals • Marital relations when one spouse has HIV or AIDS • Validity of divorce requiring civil endorsement or witnesses • Giving a wife a right to divorce • Divorce issued by drug addicts while under the influence • Divorce due to drug addiction or smoking • Health spouse requesting annulment since other has HIV or AIDS • Judicial enforcement of wife-‐initiated separation (khulaʿ) agreements • When only one spouse enters Islam • Mothers indicted by HIV or AIDS raising or nursing her children • Abortion for mothers infected by HIV or AIDS • Lineage for street children of unknown parentage • Women working outside the house [e.g. marrying a woman who works then forcing her to stop] • Forcing working wives to share in family expenses • Husbands demanding wives quit their job • Female circumcision • Family planning and birth limits • Ostracizing those infected by HIV or AIDS • Care for the elderly • Mixed public beaches • Celebrating Christmas and beginning of spring (Shām el-‐Nessim) as public holidays • Celebrating Christmas, mothers day, labor day • Public receptions for consoling the family of the dead 31 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Biomedical • Genetic fingerprinting • Human and animal cloning • In vitro fertilization (IVF) • Making use of aborted embryos or leftover from IVF • Surrogate mothers • Determining maternity for children born of surrogate mothers • Abortion • Sterilization • Cosmetic surgery • Hymen restoration • Sex change and reassignment [e.g.: child born as a hermaphrodite] • Sex selection • Harvesting human organs [e.g.: heart transplant from someone who is still alive; from someone close to dying? Donating an organ that would still allow a person to survive but with difficulty; like removing an eye?] • Human skin grafts • Brain death [e.g.: Removing life support after brain death] • Human skin banks • Human milk banks where milk is mixed • HIV/AIDS as a mortal/terminal sickness • Intentional spread of HIV/AIDS [e.g.: a person who goes around spreading HIV/AIDS intentionally; do we treat them as a murder?] • Decoding the human genome and its legal implications • Human genetic engineering & its guidelines • Plant and animal genetic engineering • Human stem cells • Animal stem cells for human treatment • Premarital genetic testing [e.g.: Whether it is permissible to do given that the spread of some genetic diseases like birth defects can be avoided if genetic testing is done, especially in some gulf states where people intermarry frequently and it affects the entire society]. • Material and legal perspectives to care for the elderly • Legal insurance for the elderly • Privacy and physician responsibility 32 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Fiqh Councils & Group Ijtihād Given the number, breadth and demanding nature of contemporary issues, scholars are sometimes helped in addressing these issues through collaborating on Fiqh councils. Fiqh councils were created to facilitate the evaluation of new issues by pooling the skills and knowledge of senior jurists and by drawing upon expertise from other fields. By consulting with experts from other fields, such as physicians and economists, jurists are provided with more accurate information for their legal assessments. These councils endeavor to build consensus on legal issues and the identification of the acceptable opinion most appropriate to apply given the current circumstances. Nonetheless, the opinions, decisions, and recommendations issued by a fiqh council are non-‐ binding. However, individual nations and institutions can choose to adopt them as official policy, which would render them legally binding. Muftīs can also use fiqh council opinions as a basis for their own fatwās, though they should be reviewed before being applied outside the region where they were originally formulated. The major councils in the Arab world include: Ø Islamic Research Council at Azhar University, Cairo, established in 1961 Ø Islamic Fiqh Council of the Muslim World League, Makkah, established in 1978 Ø The Islamic Fiqh Academy founded by the Organization of the Islamic Conference (MFA), in Jeddah, established in 1981 Ø Islamic Organization for Medical Sciences (IOMS), established in 1984 Outside the Arab world similar councils exist in the Indian sub-‐continent and in South East Asia. Case Studies: Biomedical issues Fiqh councils have researched and discussed a wide range of bioethical issues. Issues are often interrelated, so the answer to one issue impacts the determination of another. It is also important to note that issues require answers, even when they are the consequence of unlawful actions. In the sample case studies discussed below, understanding the legal reasoning is key; the texts used as evidence and the application of maxims and interests are more significant than the final conclusion which is not necessarily decisive or final. Since these are matters of ijtihād, we cannot ascertain the objectively correct answers, so any position held by a by valid scholar can be followed. The case studies discussed below include: • In vitro fertilization (IVF) • Superfluous embryos • Surrogate mothers and assigning maternity in cases of surrogate motherhood • Sex selection (IVF) In vitro fertilization (IVF) 33 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate In vitro fertilization (IVF), also known as artificial insemination, is a process by which an egg is fertilized by sperm outside the body and subsequently implanted into the body. It was first successfully performed in 1978. IVF is a major treatment for infertility when other methods of assisted reproductive technology have failed and it is also used when there is a need to profile embryos for sex and genetic disorders. The fuqahāʾ have taken two contrasting approaches to addressing this issue: (1) Deeming it impermissible because IVF is entangled in a host of problems that can cause mixed lineage by carrying someone else’s child. It also enables carrying the child of a deceased spouse (who donated the sperm), which can lead to inheritance problems (is he really deserving of inheritance when there was no marriage?). Furthermore, it has a low rate of success, and has turned into a commercial enterprise that makes cheap profits by taking advantage of couple’s dreams of having children. All of these reasons justify blocking the means to the unlawful (sadd al-‐dharāʾiʿ). (2) Deeming it permissible for spouses to do IVF when there is a need, such as when they want a child but are unable to conceive one naturally. The reasoning buttressing this view is that IVF is a means to achieve the legally sanctioned goal of procreation, and it is a medical treatment for sterility. Some of the proof texts supporting this opinion include the Prophet (God’s peace and blessings be upon him)’s statement: “Make use of medical treatment, for Allah has not made a disease without appointing a remedy for it…” [Ibn Ḥibbān, Abū Dāwūd] “…with the exception of one disease, namely old age” [Abū Dāwūd]. Proponents of this view further maintain that many of the issues presented by those opposing IVF can be avoided through safeguarding certain policies and procedures, namely, only taking the egg and sperm from a married couple, doing the implantation while the couple is still married and taking due precaution to ensure that no outside sperm or egg is mixed with what is implanted. The Islamic Organization for Medical Sciences (IOMS, 1983) and the International Fiqh Academy (MFI, 1986 and 1992) hold this view, with the stipulated conditions. Medical use of superfluous embryos Embryos are a source for stem cells and genetic material. Early abortion and IVF are both a source of unwanted or superfluous embryos. Can these embryos be used in medical research? Or must they be discarded, and if so, how? Can they be flushed or must they be buried like an aborted fetus? Contemporary scholars have taken three approaches towards this issue: 34 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate (1) General prohibition. Because it will serve as a means to immoral behavior, such as cheap trade in stem cells and killing fetuses as an excuse to abort them for medical use. Physicians working in IVF must make sure they do not fertilize more eggs than are actually used and superfluous embryos must be left without assistance to perish naturally on their own (i.e.: deprived of nutrients) and then respectfully buried out of honor for the human dignity. The reasoning follows the principle of sadd al-‐dharāʾiʿ and the maxim that “Warding of harms trumps obtaining benefits.” (2) General permissibility. Embryos are dead and must be buried. They do not have a soul, so they are similar to human blood that can be used to save and treat others. Superfluously fertilized eggs do not have any sort of legal sanctity since their sanctity does not begin until they have been implanted in the womb. Based on the above, there is nothing to prohibit employing them in scientific research. (3) Permissible with certain conditions. The stipulations are designed to guarantee the source of the sperm and egg to avoid causing mixed lineage and any misuse of the embryo or fetus. It is not permissible to arbitrarily initiate abortion as a means to obtain material for medical use; rather this is limited to spontaneous abortion (miscarriage) or legally justified abortion, such abortion done to save the mother’s life. It must also be supervised by a trusted agency to ensure that the embryos are not used for commercial purposes, out of respect for human life and dignity. This third approach is most in line with a moderate approach that countenances the needs of research and medical treatment, as the Sharīʿa is built upon seeing to interests and warding off harms. Surrogate Mothers A surrogate mother is a woman who is capable of bearing children carries another woman’s child in her womb – voluntarily or for a fee – with the agreement to surrender the child to the egg donor upon birth. A surrogate may be used when the recipient of the child is not herself capable of carrying a child or does not want to bear the burden of pregnancy and birth. There are two types of surrogacy. In “gestational surrogacy,” the surrogate carries someone else’s embryo; there is no genetic relation between surrogate and child. In “traditional surrogacy,” the surrogate’s own egg is impregnated naturally or artificially; there is a genetic relation between surrogate and child. There is consensus among the scholars that it is not permissible to use a surrogate mother when the surrogate is not related to the sperm and egg donors, because this is the same as a pregnancy resulting from fornication. However, since it is possible for a husband to have multiple wives, it is 35 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate possible for the surrogate to be the wife of the sperm donor and co-‐wife of the egg donor, which would remove the analogous grounds to a pregnancy through zinā. In this particular case, contemporary scholars tend to offer two views on the permissibility of surrogacy, both of which are considered strong: (1) Most consider surrogacy impermissible. The reasoning for this view is that surrogacy leads to mixed lineage and to disagreements over maternity. It also leads to many ethical and human violations, such as rich families taking advantage of poor women. It also leads to loosing the meaning of motherhood, which ties a mother to her child through her natural role of childbearing. Allah Most High says, “And We have enjoined upon man [care] for his parents. His mother carried him, [increasing her] in weakness upon weakness (Q 31:14), and “Those who pronounce ẓihār among you [to separate] from their wives – their wives are not their mothers. Their mothers are none but those who gave birth to them (Q 58:2). The Islamic Organization for Medical Sciences (1983 & 1997) upheld this view that it is always unlawful when a third party is involved – whether it replaces the womb, egg, sperm, or includes cloning. (2) Surrogacy with a co-‐wife is permissible in cases of need. Surrogacy comprises assisting in goodness and helping a woman who cannot carry her own child realize the legally sanctioned goal of having offsprings. In this scenario there is no fear that surrogacy sanctions unlawful sex or pregnancy, since the sperm donor is husband to both wives and it is permissible for him to place his sperm in either one of them. As for implanting a co-‐wife’s egg, this is permitted on the basis of need, and needs are given the status of necessity. The Islamic Organization for Medical Sciences (MFI) upheld the second opinion that it is permissible when the 3rd party is a co-‐wife. Whether the view of permissibility or impermissibility is espoused, the question remains open as to which woman is assigned maternity in cases where couples choose to employ a surrogate. This ascription is significant due to the various rulings related to kinship that it affects, such as mutual inheritance. At a basic level, the biological inheritance of a child born through a surrogate arrangement comes from the egg; the surrogacy itself is not a cause for biological inheritance and the surrogate’s role is only to host and nourish the child until birth. 36 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber Zawiyah Rosales 2014 DRAFT – Please do not circulate Contemporary scholars have taken three approaches concerning assigning maternity when a surrogate is involved: (1) The true mother is the one who carried and gave birth to the child; the child bears no relation to the egg donor. The Quran says that the mother is the one who gave birth to the child, who nourished and carried it throughout pregnancy: “And We have enjoined upon man [care] for his parents. His mother carried him, [increasing her] in weakness upon weakness…” (Q 31:14), and “Those who pronounce ẓihār among you [to separate] from their wives – their wives are not their mothers. Their mothers are none but those who gave birth to them” (Q 58:2) (2) The true mother is the donor of the egg – not the surrogate. The surrogate is like a nanny or wet-‐nurse. No matter how much a net-‐nurse nurses a child and contributes to its growth, she will never become its actual mother. It is the egg donor who contributes her genetic material to the child, so the child must be ascribed to her. (3) Motherhood is a description that is shared by the egg donor and surrogate, so the child is ascribed to them both and both are mothers to the child. Motherhood does not depend upon inherited traits alone; it also goes back to the difficulties of pregnancy. Fiqh does not preclude the possibility of multiple fathers or multiple mothers, due to the general phrasing of the ḥadīth “What becomes unlawful (for marriage) through breast-‐feeding is that which becomes unlawful through lineage” [Bukhari, Muslim], which is a basis for multiplicity in relations rending things unlawful (qarābat al-‐taḥrīm). This approach combines the evidence of the two other approaches. The Islamic Organization for Medical Sciences (1983) listed the three approaches without deciding. In contrast, the Islamic Organization for Medical Sciences (1992) maintained that motherhood is given to the egg donor since parentage is a product of genetic material. However, if the surrogate is a co-‐wife, she is given the status of a mother-‐through-‐wet-‐nursing since her contribution here is even greater than that of a wet nurse. Sex selection Sex selection, or family balancing, is the attempt to control the gender of the offspring. It can be accomplished in several ways, before implantation of an embryo, after its implantation, and at birth. Depending on when it is pursued, its ruling differs. Selection at birth falls under the rulings related to murder. Selection post-‐implantation falls under the rulings related to abortion. It is the third method, sex selection before implantation, that is considered a new issue. Contemporary scholars have taken to approaches to this issue: 37 Islamic Law in Modernity and Postmodernity Shaykh Musa Furber (1) (2) Zawiyah Rosales 2014 DRAFT – Please do not circulate Sex selection is not permissible with humans. This is because human beings have no right to interfere with matters in the womb as it conflicts with the desire of Allah Most High, who said: “Indeed, Allah [alone] has knowledge of the Hour and sends down the rain and knows what is in the wombs (Q 31:34), and “Allah knows what every female carries and what the wombs lose [prematurely] or exceed. And everything with Him is by due measure” (Q 13:8). Tampering with the sex of a human embryo changes Allah’s creation and interferes with His decisions, as Allah Most High says, “To Allah belongs the dominion of the heavens and the earth; He creates what he wills. He gives to whom He wills female [children], and He gives to whom He wills males. * Or He makes them [both] males and females, and He renders whom He wills barren. Indeed, He is Knowing and Competent” (Q 42:49–50). Interfering with the gender of human embryos disturbs the demographic balance between males and females, to say nothing about sexism and reviving the practice of infanticide. It also presents the risk of mixed lineage if the physician makes a mistake during the fertilization procedure. Sex selection is permissible with conditions. These guidelines are meant to ensure that mixed lineage are not created, and that it is not become widespread as a broad social phenomenon resulting in a societal gender imbalance. Furthermore, interfering with the gender of a human embryo does not fall outside the desires and decisions of Allah Most High, since it is performed using knowledge that Allah Most High permitted humanity to access. It is a not a form of tampering with Allah’s creation but rather a type of medical treatment or taking of means. Sex selection helps the parents achieve their preference and enables the physician to assist them towards goodness. Also, Allah’s Prophet Zakariya (as) asked Him to provide him with a male. If this request was unlawful, he (as) would not have requested it, since everything that is unlawful to do is unlawful to request [this is a legal maxim] and the conditions for a supplication being answered include not asking for anything unlawful. This interference does not include any sort of infanticide, as it does not involve any sort of killing, but rather simply driving off unwanted sperm. The Islamic Organization for Medical Sciences (1983) was undecided on a decisive answer to this issue. However, they recommends against it becoming a widespread practice through a national mandate. There was disagreement when it is a matter of personal choice – provided it does not lead to societal sex imbalance. Legal rulings for this issue will be demanded more and more as advancement in medical techniques facilitate these procedures. This is one of the factors obligating fuqahāʾ to continue to follow this issue and to articulate guidelines to guarantee a couple’s privacy and realize their natural wishes while still protecting the needs to balance gender in society. 38 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate Modernity and the Muslim Worldview Shaykh Jihad Brown Executive Summary: [p. 1] I. Introduction: The Challenge of Modernity to North American Muslims [p. 2] II. Pre-‐Modernity, Modernity and Post-‐Modernity [pp. 3-‐5] This section discusses the most salient aspects and philosophical underpinnings of modernity, post-‐ modernity and pre-‐modernity. It also elaborates on the way in which Muslims have been impacted by modernity in their understanding and practice of Islam. III. Timeless Principles for Rootedness in Modernity [pp. 6-‐17] This section presents the core content: an elaboration and elucidation of the most essential principles of an Islamic worldview that is timeless and eternal and relevant s in our times just as it applies in every other time and place. It begins by explaining the value of timeless principles in the uncertain and fluctuating times in which we live. It then proceeds with a discussion of timeless principles organized into three main themes.: • The first is “Reason, Rationalism and Reality”, which discusses how Muslim theologians resolved the tension between reason and revelation, the multi-‐tiered understanding of reality essential to an Islamic worldview, and the limits of the human intellect. • The second theme, “ Venerating The Sacred” draws attention to the sacred times, places and people that every Muslim should hold dear and emphasizes the role of Qur’anic stories in cultivating our capacity for awe and reverence. • The third theme, “The Relevance and Timelessness of Sacred Law”, presents an illustrative overview of the timeless principles, meanings and methodologies in Islamic Law that are at our disposal in elaborating a relevant Islam in North America today. I. Conclusion: Timeless vs. Time-‐bound Meanings [p. 18] A brief conclusion emphasizes the need to bring to the forefront of our Islamic discourse today the timeless meanings of our tradition, and the crucial role of institutions in accomplishing this task. 1 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate I. Introduction: The Challenge of Modernity for North American Muslims The inability to understand the phenomenon of modernity has represented the biggest stumbling block North American Muslims. Modernity is at the heart of our moon sighting debates, of the ‘unmosqued’ trend and the need to develop third spaces and of our crippled approach to aesthetics manifested in the unattractive architecture of our mosques. More significantly, it is at the core of what prevents Muslims in North America from unlocking their potential that would enable them to make a valuable contribution to the story of Islam in the world. To this point, we have not contributed anything of serious value to Islam; we are not doing Allah or Islam a favor by being Muslim in America. This summary brief presents differing and overlapping iterations of a deconstruction of modernity through the lens of the timeless and eternal principles of Islam, Iman and Ihsan. Developing a deep understanding of modernity has been a life’s work for our scholars; there is no one book, discussion or principle that can clarify our current predicament. As we undertake a serious inquiry about these issues, we are essentially seeking a crescendo of realization as we comprehend more deeply the reality of modernity and the tools in our tradition that may enable us to thrive in and contribute to our societies. 2 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate II. Pre-‐Modernity, Modernity and Post-‐Modernity Modernity Modernity as a concept or ideology comprises several key elements. First, it teaches that the only thing of value is tomorrow, which implies that yesterday, and all that preceded today, is of little value. The present moment is only as valuable as it facilitates our movement towards an imagined future. Second, modernity entails reducing the value of the human being to his or her monetizable productivity. An individual who is no longer financially productive is considered useless and superfluous, even if he or she is a repository of wisdom, experience and adab. In the debates around the legality of euthanasia for example, one of the arguments made in support of legalizing it is that a person is no longer ‘productive’, in the financial sense of the word, and therefore, their continued existence is futile. Third, modernism is fundamentally tied to physicalism, which is closely related to naturalism. It reduces reality, and all phenomena in the world, all instances and events, to the material. In this worldview, the science of physics is sufficient to explain all of reality and it is difficult to sustain a genuine belief in the world of the unseen. The study of metaphysics today is largely limited to physicalist metaphysics that does not permit a multi-‐tiered reality in the world. Fourth, modernity is characterized by an absence of center and essence, and the primacy of structure, complexity, and a law-‐like mechanism that culminates in logical positivism. Logical positivism finds its origin in a quest for uncovering the absolute laws of the universe through empirical observation in the world. In the Islamic tradition, empirical observations (ḥukm ʿādī) only permit inductive reasoning that allows us to make an educated guess about the laws governing the universe. Yet, we never posit certainty, as does empiricism because a margin of fallibility always remains. Finally, anthropocentrism is at the center of what it means to be modern. Anthropocentrism makes man the center of all things and makes his subjective opinion the determinant of truth and value rather than timeless, eternal reality. Whereas in pre-‐modernity God is paramount and at the center of the world, in modernity, man is at the center even as he is devalued as an insignificant being without purpose in the world. Anthropocentrism is also related to the redefinition of reason and rationalism in which human reason is the consummate arbiter of all things. 3 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate Post-‐Modernity As far as Western historians and philosophers are concerned, modernity is over. Its disintegration began in the 1940s and was complete by the 1950s. Historians disagree about the exact moment it ended; some say it was the publication of Jean-‐François Lyotard’s Post-‐Modern Condition in 1979, while others pinpoint Jacques Derrida’s address at John Hopkins in 1966. Post-‐Modernity is characterized by an absence of depth and of an objectively knowable truth and an acceptance of superficiality owing to the loss of logic and First Principles, the philosophical tools needed to arrive at truth. Heidegger, the precursor to post-‐modernity, did away with the epistemology of truth, elaborated by ancient and premodern philosophers alike as a classical correspondence theory of truth. In its stead, he described truth as akin to coming out of a forest into a clearing where the sun is shining: truth is merely as things appear to you, like that first encounter with the sun. There is no depth or essence behind it. Such an unstable conception of truth means that post-‐modernity is characterized by constant fluctuation in which nothing can be relied upon; there is no persistent and grounded meaning. Heidegger also redefined being as one without essence. Michael Zimmerman, a scholar of Heidegger, explains that the problem with stripping being of essence is that it enables pushing human beings and animals beyond what they were created for; they can be used as cogs in a machine because their existence is superfluous. Mankind is now staring into an abyss of nihilism and meaninglessness. This creates a widespread experience of individual and communal anxiety, which people have sought to cure through numbing diversions like television, movies and extreme sports to try to recapture what it means to feel alive again. Every purpose and pursuit undertaken by humanity is deemed equally valid, so long as the utilitarian majority of human society adopts it as a convention. In this way convention becomes as if it is itself a First Principle; even though it changes with the changing of utilities. For example, if we decide that human rights are no longer useful than we can dispense with them because they are only based on convention rather than a set of God-‐given prerogative of rights. Muslims and Modernity Even though modernity is over and has been succeeded by post-‐modernity, Muslim societies continue to live according to an outdated framework inherited from 18th century Western modernity. Modernist interpretations of Islam continue to be preached in so many of our institutions in the West. In the Muslim world, intellectual inquiry still functions according to logical positivism, under the erroneous assumption that it can produce certainty. For example, we emphasize the scientific miracles of the Qur’an even though its sine qua non was always its linguistic miracles. We seek certainty about the miraculousness of God’s Word through 4 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate the standards of scientific findings that may very well be amended in our lifetime. Many Muslims are also invested in modernity through the ideology of nationalism or have only learned Islam through a modernist understanding that conceives of the Islamic state as a Westphalian state model only. We also find the tendency to project the schisms of Western civilization unto ours, like the conflict between science and religion even though our understanding of theoretical metaphysics has historically resolved this tension in a very sophisticated way. Young Muslims in America today think that they are rebelling against Islam when they are actually rebelling against the version that they were taught at Sunday school, which was developed by the politicized Islamist movements that have dominated American Muslims’ institutions and educational curricula since the 1960s. Pre-‐modernity and the need for timeless principles The term ‘pre-‐modern’ is imbricated in a set of negative connotations. It is understood by the modern mind as moving backwards technologically and in terms of human development and civil rights. Yet, pre-‐modernity was characterized by the idea of a center and of universal principles. In the pre-‐modern world, things had an essence. This is the valuable aspect of pre-‐modernity: a way of understanding reality that is timeless and eternal and reigns in the use of technology through philosophy and ethics in a way that serves the higher aims of Sacred Law (maqāṣid). These principles are the subject of the next section. 5 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate III. Timeless Principles for Rootedness in Modernity In relation to changing times, two extreme positions exist: that nothing is fixed and that everything is fixed. Our way is one of balance between these two extremes: we differentiate between timeless principles and fixed elements of creed and doctrine (thawābit) and the flexible and changing aspects (maḥāwir rather than mutaghayyirāt).1 We seek to experience the pivoting of changing items while attached to universal precepts, a fixed pole, that guide our navigation through changing circumstances. Our timeless principles are like the North Star guiding us through the dark night; like a compass guiding us through the wilderness. What are some of these constants? On the one hand we have logical principles we rely on in our systematic thought, like the Law of Non-‐Contradiction and the Law of the Excluded Middle. In relation to the Qur’anic verse “weigh with a balance that is straight” (17:35), Imam Ghazālī (d. 505/1111) discerned an indication of the primacy of logical principles for elaborating correct thought. Our logical tradition should not be naively dismissed as Aristotelian logic; there were modifications made by Ibn Sīnā (d. 428/1037) and by Muslim logicians after him. Furthermore, logic preceded Aristotle; he was the first to capture it as a set of rules and principles, just as Abū’l-‐ Aswad al-‐Du’alī (d. 68/688) was the first to capture the rules of the correct Arabic speech that Arabs had been employing for centuries. Other constants are drawn from core scriptural principles, like God’s Mercy outstripping His Wrath (Raḥmatī sabaqat ghaḍabī), from the higher intents of the law like the protection of life being the foremost goal of the Sharīʿa, and from universal legal maxims like “certainty is not removed by doubt”. Anchoring ourselves through the constant principles of our religion will provide us with internal composure and serenity even when we are in the eye of the storm. This is extremely rare in our society today, where most people are internally scattered and overwhelmed by anxieties and fears. Being a presence of tranquility and serenity in these times would constitute a significant contribution to our societies. This state of peace of mind is attained by living a God-‐centered life and bringing all of our crises and troubles before Allah, for “It is He who has sent down tranquility to the hearts of the believers to add faith to their faith” (48:4). As Ibn ʿAbbas (God be pleased with him) reports from the Prophet (peace be upon him): “He who makes all of his concerns one concern – the worry about the hereafter – Allah will take care of all of his concerns for this world (In another transmission: the concerns of this world and the next). And he whose worries are scattered among all the situations of worldly life, Allah does not care in which of its valleys he meets his destruction.” 1 It would be useful to explain why the choice of maḥāwir rather than mutaghayyirāt, which has become standard usage. 6 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate Theme #1: Reason, Rationalism and Reality This theme is concerned with how understandings of reason and rationalism have fluctuated from the pre-‐modern to modern periods and grasping the rational tools and points of reference in our tradition that can enable us to navigate these shifting understandings. First, how has the definition of reason changed historically? During the enlightenment, especially from Descartes onwards, reason replaced religious authority as the primary source of knowledge and truth. The Church no longer dictated to Christians what to think; subjective autonomous thought provided each individual with his or her own personal standard of the good and the true. This trend was combined with utilitarianism, which a constituted pragmatic approach to happiness that gave primacy to the idea of the greatest happiness for the greatest number. How does this compare to the classical approach to reason? In The Caliphate of Logic, John Walbridge maintains that the classical Islamic approach to reason was based on four qualities; reason was systematic, well grounded, coherent and consistent. Logic and mathematics are the disciplines that best illustrate these features, and classically, metaphysics was supposed to be underpinned by the same consistency. The Tension Between Reason and Revelation God instructs us to connect deeply with our intellect: “Verily we have sent it down as an Arabic Qur’an so that you may use your intellect” (12:2). In the Islamic tradition, reason has been understood as seated in the soul of the human being, and intellection as a capacity of the soul. This is indicated by the verse: “Do they not travel through the land, so that their hearts (and minds) may thus learn wisdom and their ears may thus learn to hear?” (22:46). In Islamic intellectual history, various theological sects took different positions on reconciling reason and revelation. Scholars discussed whether it is possible for them to contradict, and if so, how a conflict should be resolved. The Muʿtazila contended that everything that is knowable can be known by the unaided intellect. In the event of a conflict or an apparent contradiction between reason and revelation, they would reinterpret revelation to accord with what they believed were the dictates of intellect. At the other extreme were the Dhāhirīs who took an approach of textual literalism that gave primacy to the text. The Māturidīs maintained, like the Muʿtazila, that the intellect could discern God’s existence in the absence of revelation and therefore that on the basis of the human being’s endowed intellect, every individual could discern God’s existence and was accountable if they failed to do so. However, they are differentiated from the Muʿtazila because they did not expect that the intellect to apprehend theological details beyond God’s existence 7 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate The Ashʿarīs took the middle ground by maintaining that while the existence of God can be arrived at by the intellect, people are not accountable for that knowledge, nor are they accountable for the details of Sacred Law until the message has been conveyed to them. They rely on the verse “We never punish until we have sent a messenger” (17:15) as evidence. They also contend that when a sound intellect puts revelation before reason, it will understand revelation properly and in a way that does not contradict with reason. For example, the existence of angels or the punishment in the grave does not contradict logic because it is ‘supra-‐rational’. However, revelation and empirical science may conflict. In logic and theology, the separation between legal judgments, rational judgments and empirical judgments are very important. With the enlightenment, we see a major epistemological shift from rational judgment to empirical judgment that posits that only what can be proven in the laboratory is substantiated by reason and rationality. The Multi-‐tiered Levels of Reality and the Nature of the Soul Islam presents a multi-‐tiered understanding of reality, most of which is opaque and inaccessible to the physical senses. The realm of mulk is the physical world that we can observe and engage with our physical senses. The world of the malakūt is that of immaterial objects (mujarradāt), like the angels, the intellect, and abstract principles of logic and mathematics. The realm of the jabarūt is a deeper mystical realm, which is the subject of diverse understandings and is only accessible to some. Finally, the highest level of existence is the Lahūt, the realm of the Divine Essence, which is completely inaccessible to human beings. The human being is composite, comprised of body, mind, soul and intellect. The soul is what makes the human being unique among creation. As one scholar counseled: “Oh servant of the body, how much you race to its service. Are you seeking profit from a failing investment. Turn to your soul and complete its perfections, for you are by your soul not your body a human being”. The majority of theologians after the 12th century agreed that the body is part of the realm of mulk while the soul is immaterial and pertains to the realm of the malakūt. Mulk and malakūt are always together and inseparable; they are not spaces that are traversed, as is maintained by the Neoplatonists. The human being is in two worlds -‐ in between the mulk (like animals) and the malakūt (like the angels). Some people overemphasize the appetitive side and cannot perceive the malakūt reality, while others stress the soul in the malakūt and its intellection. The latter stand guard at the door of their soul and only permit into it what Allah loves; they are more in touch with the malakūt world than the mulk world. These possibilities are available to all of us if we expose ourselves to the gentle breezes of Allah. 8 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate Prior to the 12th century up to the time of Imām al-‐Juwaynī (d. 438/1046), the vast majority of theologians upheld that the soul was a subtle body not like opaque bodies, but like a mist or vapor, or a light that shines into the extremities of a body just as light illuminates a dark house. From Imam al-‐Ghazālī (d. 505/1111) onwards, the majority of theologians maintained that the soul is an immaterial substance (jawhar mujarrad). Nonetheless, both positions are valid Sunni positions and many scholars invoke the subtle body position when speaking to a lay audience because it is easier to understand. The nature of the soul is an issue of major debate among contemporary philosophers of mind. In our theology and in Sufism, the soul is very prominent and underlies the entirety of our relationship with Allah. We cannot acquiesce to the philosophies of nominalism and physicalism. Before we can contribute to this inquiry, we need to restore a proper understanding of the traditional understanding of the soul and our model of human reality. This is what the Prophet (peace be upon him) would want us to do in a time like ours. The Limits of the Intellect: Inspired Knowledge and Divine Support God communicates to His creation foremost through formal revelation, conveyed through a Messenger from the realm of the unseen. However, there is also inspired knowledge (ilhām) which comprises the meanings and understandings that God injects is the heart of individuals as a Divine manifestation. We also receive spiritual and intellectual provisions (tawfīq, qabūl, madad) from beyond the physical realm. As we travel the path seeking nearness to God, we must remember that our physical nature only gives us a place and direction in this physical world. We should not limit our view of reality and of the world by the methods and measures of engineering and science, nor should it dictate how we approach matters of sacred law and even the nature of God Himself. It is sometimes difficult to extricate ourselves from that way of thinking unless we are exposed to the classical disciplines and sciences. Whenever we use an instrument in a way that it was not intended, it tends to break or fall into disuse. The intellect is the same way; knowledge and reason should ultimately lead us to understand that the finite human mind cannot comprehend the infinitude of its Creator. We will be helped in this process of realigning our intellect through orienting our heart to Allah, who is without physical direction and place. “To Allah belong the East and the West: wherever you turn, there you will find His Countenance. For Allah is All-‐Pervading, all-‐Knowing” (2:115). In our dhikr, we endeavor to turn our hearts away from the dunya of the physicalists and to empty it of all others but God. 9 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate Theme #2: Venerating The Sacred The second theme is that of the Sacred, which is a timeless understanding of the special significance of particular times, places and people. The idea of the sacred is a reification of our belief in the unseen and a demonstrated consciousness of God’s unceasing engagement in the world. The word ḥurma in Arabic has resonances with both the English terms inviolable and sacred. In English, “sacred” connotes something connected with the Divine; dedicated to a religious purpose and so deserving veneration; consecrated and esteemed and especially dear to a Deity; and set apart or exclusive. The human soul’s need for the sacred is irresistible and flies in the face of physicalism and secularism. The tolling of bells and institutionalized moments of silence in the West are like a secular concession or surrogate for the sacred in diverse religious traditions. Unfortunately, in secular societies and among some modern Muslims, the sacred is often unfairly conflated with superstition and the irrational. The way to ensure that we accurately identify the sacred is to examine whether a thing is singled out as special by the Divine, or whether a special baraka is associated with it. Sacred Seasons Allah lays claim to particular seasons and moments in time that He highlights and emphasizes. “And teach them to remember the days of Allah. Verily in this (in these days) are signs for those who are firmly patient and constantly grateful” (14:5). The “days of Allah” are an envelope of time – whether a moment or a season – that has been made special for something. It is a time in which Allah makes Himself known and brings to our attention some wisdom, lesson or spiritual renewal. These days can be days of tribulation and test that require patience while also being significant in terms of the growth and connection they engender. They can also be those particular religious seasons, like Ramaḍān, Ḥajj, ʿĪd, or a gathering of dhikr in which we try to empty ourselves from the internal noise and distraction and gather our hearts on Allah. Sacred Places Sacred spaces are a well-‐known concept to Muslims. Foremost among these is the Masjid al-‐Ḥarām, which is set apart from the rest of the dunyawī world by its inviolability, which precludes both visitors and residents from performing certain acts in its precinct. The Masjid al-‐Nabawī also holds a special significance for believers, may God’s peace and blessings be upon God’s beloved interred therein. The third of the sacred sanctuaries is the Masjid al-‐Aqsā, whose precincts God described as blessed (17:1). These three are set apart from all other mosques because the Prophet (peace be upon us) taught that they are sites to which pilgrimage is worship in and of itself. 10 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate To a lesser degree, every mosque that is legally endowed as such is also a sacred space, in which spiritual retreat (iʿtikāf) is rewarded. Giving due reverence to the mosque is achieved by learning and adhering to the etiquettes and courtesies owed to the mosque. The graves of the righteous, of those whom history tells God loved, are also sacred spaces. Visiting them raises our aspirations to develop a Muhammadan personality and legacy like theirs. Sacred Times In sacred times, we believe that the ontological reality of the world is altered; we gain access to another dimension of reality that is opened for a limited time. Foremost of the sacred times are the days of Ḥajj, particularly ʿArafa, and the month of Ramaḍān. In the holy month, the dunyā is different; the sensitive heart can sense this. When there is a critical mass of sensitive hearts alert to this reality, it has an effect on their limbs and attitudes and may even impact unconscious hearts. The Prophet (peace be upon him) tells us of the special breezes (nafaḥāt) of Allah that are available for us to avail ourselves of if we are only awake to this this reality. Sacred Persons The blood, wealth and dignity of a Muslim to a fellow Muslim are sacred. This principle underlies many of the legal rulings and etiquettes governing personal and communal interactions. The relationships between husband and wife, and among family members are also sacred and must be given their due attention and care. The person of Muhammad (peace be upon him) is the greatest symbol and banner of Islam to which we owe the greatest part of our esteem and veneration. We have in the example of Companions, who revered even the minutes aspects of the Prophet’s person, like his spit and his hair, a model for how to show due reverence to the person of the Prophet (peace be upon him). The Blessing of the Sacred How should we behave towards sacred things? We must begin by raising our awareness of the inviolability of the sacred, which will lead us to be careful not to trespass or neglect its rights and duties upon us. The reward for showing reverence to the sacred is experiencing the baraka or grace with which God imbued His Sacred symbols. God praises those who venerate His sacred signs “And whoever honors the sacred things of Allah, for him it is good in the Sight of his Lord” (22:30) and “Whoever holds in honor the symbols of Allah, it is surely from piety of heart” (22:32). 11 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate Cultivating our Capacity for Awe and Reverence Through Qur’anic Stories When awe is concurrent with veneration, it yields reverence, which is a deep and requisite respect, admiration and deference felt or shown for something or someone on account of its position with God. While awe and reverence are unfortunately lost in the cynicism of modernity, we can increase our reverence through both knowledge and experience with the sacred. One felicitous entry point into this realm are the numerous awe-‐inspiring stories in the Qur’an, many of which recount the awe of the Prophets in witnessing the manifestations of God’s Beauty and Majesty. We find many such instances in the story of Moses (peace be upon him). Surat al-‐Aʿrāf narrates his deeply moving encounter with Allah during the exodus of the Children of Israel: “And when Moses came to Our appointed tryst and his Lord had spoken unto him, he said: My Lord! Show (Thyself) to me, that I may gaze upon Thee. Allah said: You will not see Me, but gaze upon the mountain! If it stand still in its place, then you will see Me. And when his Lord revealed (His) glory to the mountain He sent it crashing down. And Moses fell down senseless. And when he recovered his senses he said: Glory unto Thee! I turn unto Thee repentant, and I am the first of (true) believers.” (7:143) At the beginning of this verse, God tells us of a sacred boundary or meeting place where Moses was gifted with a Divine audience. The answer to Moses’s request to see God teaches us an important lesson: the physical sight (baṣar) cannot perceive God in this realm, but the internal eye (baṣīra) may behold the Divine in this world. It also teaches us how to behave in our moments of Divine Manifestation (tajalliyāt), which often strike us when we least expect them as opening bestows of His Grace and Bounty. The dry spells when we feel distant from Allah may be times of collecting capital investment with Allah that will suddenly pay off when we least expect it. There is also a very important lesson for us in Moses’s repentance when he realized that he had overstepped his bounds by his request. Another awe-‐inspiring story is that of Solomon and Bilqīs, the Queen of Sheba: “But the hoopoe stayed not long and said, "I have encompassed [in knowledge] that which you have not encompassed, and I have come to you from Sheba with certain news. Indeed, I found [there] a woman ruling them, and she has been given of all things, and she has a great throne. I found her and her people prostrating to the sun instead of Allah, and Satan has made their deeds pleasing to them and averted them from [His] way, so they are not guided, [And] so they do not prostrate to Allah , who brings forth what is hidden within the heavens and the earth and knows what you conceal and what you declare -‐ Allah -‐ there is no deity except Him, Lord of the Great Throne." [Solomon] said, "We will see whether you were truthful or were of the liars. Take this letter of mine and deliver it to them. Then leave them and see what [answer] they will return." She said, "O eminent ones, indeed, to me has been delivered a noble letter. Indeed, it is from Solomon, and 12 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate indeed, it reads: 'In the name of Allah, the Entirely Merciful, the Especially Merciful, Be not haughty with me but come to me in submission [as Muslims].' " She said, "O eminent ones, advise me in my affair. I would not decide a matter until you witness [for] me." They said, "We are men of strength and of great military might, but the command is yours, so see what you will command." She said, "Indeed kings -‐ when they enter a city, they ruin it and render the honored of its people humbled. And thus do they do. But indeed, I will send to them a gift and see with what [reply] the messengers will return." So when they came to Solomon, he said, "Do you provide me with wealth? But what Allah has given me is better than what He has given you. Rather, it is you who rejoice in your gift. Return to them, for we will surely come to them with soldiers that they will be powerless to encounter, and we will surely expel them therefrom in humiliation, and they will be debased." [Solomon] said, "O assembly [of jinn], which of you will bring me her throne before they come to me in submission?" A powerful one from among the jinn said, "I will bring it to you before you rise from your place, and indeed, I am for this [task] strong and trustworthy." Said one who had knowledge from the Scripture, "I will bring it to you before your glance returns to you." And when [Solomon] saw it placed before him, he said, "This is from the favor of my Lord to test me whether I will be grateful or ungrateful. And whoever is grateful -‐ his gratitude is only for [the benefit of] himself. And whoever is ungrateful -‐ then indeed, my Lord is Free of need and Generous." He said, "Disguise for her her throne; we will see whether she will be guided [to truth] or will be of those who is not guided." So when she arrived, it was said [to her], "Is your throne like this?" She said, "[It is] as though it was it." [Solomon said], "And we were given knowledge before her, and we have been Muslims [in submission to Allah]. And that which she was worshipping other than Allah had averted her [from submission to Him]. Indeed, she was from a disbelieving people." She was told, "Enter the palace." But when she saw it, she thought it was a body of water and uncovered her shins [to wade through]. He said, "Indeed, it is a palace [whose floor is] made smooth with glass." She said, "My Lord, indeed I have wronged myself, and I submit with Solomon to Allah, Lord of the worlds." (27:22-‐44) The exegetes describe the Queen of Sheba as exceedingly intelligent. Some say that one of her parents was of the jinn, while the other was human. This created a problem at the end of the story because some of the jinn who worked for Solomon wanted him to marry her. He addressed the letter inviting her to Islam in God’s name, not in his own name. Her response was to send a gift, which was intended as a test; if he kept it, then he was a only a worldly king, while if he rejected it, then he was something more, as his intriguing letter seemed to indicate. 13 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate When the Queen of Sheba arrives at Solomon’s court, she finds him on his throne, placed in the center of a hall with a glass floor beneath which was water with fish and surrounding Solomon were animals all around. This display of power was intended to drive home the greatness of Prophethood given by Allah to a woman who was used to the usual trappings of royalty. Finding her throne only slightly altered is a test for the Queen of Sheba. Her reaction bespeaks her intelligence; “it is as if it is my throne” she says while admitting that even before this instant she already knew known that Solomon was a Prophet, yet she was prevented from worshipping Allah as a Muslim because of the unbelievers who surrounded her among her advisers. In relation to the esoteric meaning of the sudden appearance of the throne at the hands one of jinn who was given knowledge of the book, Ibn ʿAjība (d. 1224/1809) comments that the throne is like the heart or soul; while it takes some people a long time to come to Allah, others who are given insight into the book come to Allah immediately, before the blink of an eye. At first, the Queen of Sheba thought that she had arrived in the middle of a massive body of water. She is struck by this to the extent that she pulls up her robe from veneration and revealed her legs. This indicates that she let her guard down and humbled herself in that moment; she was willing to step through the water to reach where Solomon was seated when she could have had people carry her there. This also allowed Solomon to confirm that she was indeed human because there was uncertainty about whether she was half jinn and half human and what this meant. When she is told that it is just a palace hall paved with glass, that engenders the culmination of her awe, and having already acknowledge Solomon’s Prophethood, she immediately turns to God in repentance: “My Lord, indeed I have wronged myself, and I submit with Solomon to Allah, Lord of the worlds”. 14 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate Theme #3: Relevance and Timelessness of Sacred Law In the year 10/632, the last verse of the Qur’an was revealed to the Prophet (peace be upon him), declared on the occasion of the ʿĪd Sermon of the farewell pilgrimage on the back of the mountain of ‘Arafa: “This day have I perfected your religion for you and completed My favor unto you, and have chosen for you as religion al-‐Islam” (5:3). When ʿUmar (God be pleased with him) heard this, he realized immediately that it meant that revelation was coming to an end and that the Prophet (peace be upon him) would not be with them much longer. Sure enough, three months and three days later, he passed away (peace be upon him). While 1425 years later we maintain our confidence that the dīn we have today is complete and perfected, how do we ensure that it is also relevant? The short answer is that the seed of eternal relevance of Islam and its renewal are its universal meanings and principles. The Meaning of Dīn and its Universality The dīn that Allah describes as completed and perfected is comprised of a transaction between Creator and creation. Dīn is defined as “a Divine convention or transaction that drives or incites those of sound intellect to that which is essentially good for them” (al-‐dīn wadʿun ilāhiyyun al-‐sa’iq li-‐dhawīʾ al-‐‘uqul al-‐salīma limā huwwa khayrun lahum). The religion is and will remain a motivator for those of sound intellect until the end of time. In other words, it speaks to the intellect of every time and place. This meaning is affirmed by the Prophet (peace be upon him)’s statements: “I have been sent to the entirety of mankind” and “I was sent to every red person and black person.” It is patently clear from our scholars, Arab and non-‐Arab alike, that the Prophet’s message is not exclusively for the Arabs, but for people of all backgrounds. In fact, in his commentary on the Jawhara, al-‐Bājūrī (d. 1277/1860) stipulates that to believe that Muhammad was sent to the Arabs alone is disbelief (kufr) because it violates so many explicit texts to the contrary. While the Arabic language is special because it was chosen for the final Prophet (peace be upon him), he was selected in pre-‐eternity before languages existed. Allah tells us: “we do not send a Messenger except with the tongue (lisān) of his people that he might make (the message) clear for them” (14:4). This verse has implications for speech, language and culture. The point of sending a messenger is for him to convey the message in the clearest way possible. The meaning of the “tongue” of a people is the logic of a people. Merely being able to speak a language is not enough because “tongue” comprises the context, assumptions and ways of thinking of a people, and the concomitant ability to craft a discourse that is relevant for them. 15 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate The Timeless Methodology of Ijtihād The science of uṣūl al-‐fiqh provides us with rules of interpretation for reading the texts of the Qur’ān and Sunna that strike a balance between the flexibility and timelessness intended by these primary sources. For example, the interpretive principle “The import of a text is the general application of its meaning not the specific circumstances of its revelation” (al-‐ʿibratu bi ʿumūm al-‐lafḍ lā bi-‐khuṣūṣ al-‐ sabab) acknowledges and takes into account the circumstances in which a verse was revealed or a Prophetic principle promulgated while simultaneously respecting its universal meaning. For example, in Surat al-‐Mujādila, we have a set of verses pertaining to the story of Khawla bint Thaʿlaba when her husband Aws b. Sāmit declared zihār: “Allah has heard the saying of her that disputes with you (Muhammad) concerning her husband, and complains unto Allah. And Allah hears the arguments between both sides among you: for Allah hears and sees (all things). Such of you as put away your wives (by saying they are as their mothers) -‐ They are not their mothers; none are their mothers except those who gave them birth -‐ they indeed utter an ill word and a lie. And lo! Allah is Forgiving, Merciful. Those who put away their wives (by saying they are as their mothers) and afterward would go back on that which they have said, (the penalty) in that case (is) the freeing of a slave before they touch one another. Unto this ye are exhorted; and Allah is Informed of what ye do” (58:1-‐3). While the particular aspects of the verses pertains specifically to Khawla, the general ruling pertaining to a declaration of zihār and the even more general meaning, which is a censuring of emotional abuse, and by extension, physical abuse, pertains to all times and communities. Another example of a general interpretive principle is that the verses of ambiguous meaning (mutashābihāt) are to be understood in light of the texts that convey a clear and decisive meaning (muḥkamāt). The oft-‐cited and contentious verse 4:34, which speaks of ḍarb in the context of a marital dispute, is one such ambiguous word. While it literally means ‘to hit’, its ambiguity can only be resolved by reference to the overarching principle of protecting the dignity and well-‐being of every Muslim, texts that exhort honorable and virtuous conduct towards one’s wife like “live with them on a footing of kindness and equity” (4:19) and “treat women kindly” (wa awṣū bil-‐nisā’ khayran), as well as the exemplary behavior of the Prophet, who never struck neither a woman nor a child. Interpretive principles like these reflect the sophisticated methodology of a properly trained jurist who does not produce a legal ruling on the basis of a single text, but rather examines all potentially relevant texts together, alongside the broader principles and higher intents of the Sacred Law. This is the true meaning of ijtihād, which connotes an exhaustive and thorough effort to reach the correct conclusion. When texts seemingly contradict, there are entire disciplines devoted to resolving a conflict, like the science of mukhtalaf al-‐ḥadīth and al-‐qur’an, which seize upon the nuanced meanings of the texts to resolve an ostensible contradiction. 16 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate The Five Universals (maqāsid) and the Five Primary Maxims (qawāʿid) The five universal maxims represent the most consistent patterns of thinking and reasoning in the Sharīʿa, and as such, they are timeless principles that apply in every time and place: 1. “Matters are judged according to the intent behind them” (al-‐umūr bi maqāṣidihā) 2. “Certainty is not overruled by doubt” (al-‐yaqīn lā yazūl bi’l-‐shakk) 3. “Hardship begets ease” (al-‐mashaqqa tajlibu al-‐taysīr) 4. “Harm is removed” (al-‐ḍarar yuzāl) 5. “Culture is given consideration” (al-‐ʿāda muḥakkama) The five universals are the higher aims or intents of the law, namely the preservation of life, religion, intellect, lineage and honor, and property. The preservation of religion is the aim that most significantly differentiates Sacred Law from secular law. In the Islamic worldview, faith should be facilitated in society so that no one in society has any difficulty in coming to know his or her Lord. Just as our religion has defined objectives, the Muslim community needs its objectives as well. The three communal objectives that will enable us to cultivate healthy communities are: 1. ʿIbāda -‐ devotion to Allah and its constant improvement and enrichment 2. Khidma -‐ serving our community and humanity. As Prophet (peace be upon him) taught “Allah does not cease to be in the assistance of his servant so long as the servant does not cease to be in the assistance of his brother.” 3. Adab – our communities must celebrate and manifest beautiful adab so that those who come into the community naturally internalize and assume a beautiful way of conduct. The Fruit of the Eternal Message of Islam: The Believers Allah likens the believer firmly rooted in lā ilaha illa Allāh to a beneficial tree: “Have you not considered how Allah presents an example, [making] a good word like a good tree, whose root is firmly fixed and its branches [high] in the sky? I t produces its fruit all the time, by permission of its Lord. And Allah presents examples for the people that perhaps they will be reminded” (14: 24-‐25). The universal principles of the religion are like seeds planted in every time and place. The trees that they produce are the believers who are cultivated through its message. The deeper the roots of the believer in his or her knowledge of the sources and timeless principles, the higher its branches will reach in terms of his aspirations and the sweeter and more nourishing its fruit will be for his or her community and society. Allah describes this fruit as one that is constantly present; a tree usually only bears its fruit in season, but the believer is always productive and valuable. 17 Modernity and the Muslim Worldview Shaykh Jihad Brown Zawiyah Rosales 2014 DRAFT – Please do not circulate IV. Conclusion: Timeless vs. Time-‐bound Meanings Shaykh Ramadan al-‐Būṭī once said: “The only thing that will protect the religion of young men and women in the coming age is a strong a deep acculturation of the worldview of Islam (thaqāfa islāmiyya).” Muslims today are greatly in need of elaborating timeless rather than time-‐bound meaning. We have to acknowledge that many of our understandings of the dīn are time bound in that most of them were generated in the 1950s by people reacting to particular political circumstances like the encounter with the West, the colonial experience or the post-‐colonial search for identity. We perpetuate this mistake when we read texts through our time bound acculturation, which necessarily renders our understanding time-‐bound. Creating a context-‐sensitive understanding of Islam today that remains true to the timeless and universal aspects of Islam is the work of institutions, which we are desperately in need of establishing in North America. We are living in times of mass ignorance when the trust and responsibility of elucidating a context-‐ sensitive iteration of Islam is in the hands of individuals who are simply not qualified for it. The Prophet (peace be upon him) predicted that such a time would come: “There will come upon the people confusing times when the liar will be looked at as truthful and the honest person will be branded a liar. A deceptive person will be trusted, and the honest person will be looked at with suspicion. And the ruwaybida will speak.” The ruwaybid literally refers to the young man whose wisdom teeth have not yet grown in, but when the companions asked him who they are, he said: “a petty man speaking on serious public affairs”. He also warned us “When the trust (amāna) has been lost, then wait for the end of time.” This trust is the dīn itself, and losing its proper understanding is the prelude to the end of time. 18 Notes on the Philosophy of Modernity Dr. Karim Lahham Zawiyah Rosales 2014 DRAFT – Please do not circulate Notes on the Philosophy of Modernity Dr. Karim Lahham The Beginning of Modernity When exactly did modernity begin? What is its starting point? This was a major concern among 19th century intellectuals, especially in French literature and in German idealist circles. Was it at the beginning of industrialization in the late eighteenth century? Did it begin much earlier, such as at the time of Petrarch in the fourteenth century? Or did it begin with the Renaissance? The problem with these questions is that in our intellectual tradition, we always begin first with concept or philosophy we intend to assess, and then we consider the events that are extensions of that concept or idea. When we approach modernity as a philosophy, it is not only about trying to identify a historical period relating to a particular event and for us to construct a defense on that basis. It is much more complex. As Richard Weaver explained in his 1948 book Ideas Have Consequences, consequences are the events we see in the extra-‐mental world which are preexistent in the conceptual world. Usually the delay between a bad philosophy and a bad event that takes place in the world is two to three centuries. If we want to know the origin of a mood or trend we witness emerging in the socio-‐ political realm, it is of limited use to analyze the secondary causality around why the event happened. To get to the actual origin, we have to trace the conceptual genealogy for the event. For example, in the beginning of the 14th century, when the terminist logicians attempted to defy scholasticism and its understanding of reality, they came up with the notion of nominalism:1 that universals exist only as a function of the mind and have no real existence in the extra-‐mental world. In the West, the consequences of nominalism were only manifested several centuries later. For these reasons, we have to carefully examine the conceptual genealogy of modernity and its attendant philosophies, beginning with its etymology. 1 We have the same discussion in our own tradition, specifically around the notion of nafs al-‐amr. Fakhr al-‐Dīn al-‐Rāzī took an anomalous position in relation to extra-‐mental reality and the notion of the validity or existence of conceptual matter. 1 Notes on the Philosophy of Modernity Dr. Karim Lahham The Etymological Genealogy of Modernity Zawiyah Rosales 2014 DRAFT – Please do not circulate The modern tends to connote something new, up to date and fashionable. One of the characteristics of modernity is to focus on what is right in front of us and to neglect the deeper origin of ideas and events. To be modern is also to be self-‐liberating from a prior tradition of self-‐definition, one that has an element of narcissism and is tied to the rise of individualism. At its core, to think of one’s self as ‘modern’ is to define one’s being in terms of time. This is the leitmotif of the notion of modernity. In previous ages, people defined themselves in terms of many different things: their land, race, traditions or deities, but never explicitly in terms of time. It is true that ancient peoples sometimes located themselves in terms of a seminal event, like an exodus or a cosmogonic event, but this temporal self-‐location was never the primary or fundamental way in which they defined themselves, as is the case for the modern subjectivity. The term ‘modern’ comes from the Medieval Latin derivative modernus, which connotes a measure, or even a measure of time. Cassiodorus (d. c. 585), who first developed the Trivium and Quadrivium, used the term as early as the sixth century to distinguish his time from that of his predecessors among the Roman and Patristic writers. This was quite unprecedented at the time, because in the Christian world, people tended to conceive of the Pagan and early Roman Christian periods as one, without any separation or discontinuity. Even up until the 16th century, Europeans were not conscious about a separation of eras nor did they conceive of a periodization of time; we have authors as late as 1539 that still described Alexander the Great as though he were their contemporary.2 There was a perceived continuity between the Ancient world, the Pagan world and the Medieval Christian world. The term modernitas, from which we get ‘modernity’, was first used in the 12th century to distinguish the contemporary age from the past. From the 13th century onwards it was used with increasing frequency in the Western vernacular. Dante used the Italian moderno around 1300; Nicolas Orseme used moderne for the first time in 1361. The term was not used to distinguish between Ancient and Modern as opposing categories until 1460 and it wasn’t until the 16th century that it was used to differentiate a particular historical period. This was predominantly the achievement of two Germans: Hans-‐Gail Orge (?) and the more important Christopher Cellarius (known as Christopher Keller). In his Historia Universalis, he innovated the concept of the periodization of time through the creation of particular periods of history: Ancient, Medieval and New. This was the first time that the notion of history was imbued with a sense of linearity. The English term modern as a referent for modern times first appear in 1585 and the term modernity was first used in 1627. 2 This is not unlike how Muslims to this day still speak of the Prophet (peace be upon him) as though he were present, or of prominent historical figures like Salaḥuddin al-‐Ayyūbī. 2 Notes on the Philosophy of Modernity Dr. Karim Lahham Zawiyah Rosales 2014 DRAFT – Please do not circulate All of these dates are significant because people do not employ terms like these unless they are self-‐ conscious of their particular period of time being distinct and set apart from another. The date when these terms appear provides an insight into the intellectual understanding and consciousness of the people using the words. For example, the term ‘middle ages’ does not appear in English until 1753 and ‘gothic’ was first used pejoratively in the 16th century. How did pre-‐modern peoples conceive of time? In Antiquity, the distinction between old and new was present, but in a different sense. It was largely deployed in the context of a cyclical view of time in which the new was always equated with degeneration and decline rather than progress.3 For example, in his The Great Comedian of the Ancient World, written c. 423 BC, Aristophanes (d. c. 386 BC) describes the ‘new ways of the Athenians’ pejoratively as contrasted with those of the previous generation who had fought at the Battle of Marathon against the Persians in 490 BC. Modernity as a philosophy The first step towards making sense of modernity is to recognize that it is not an event, but a concept and philosophy. It is not defined by a single event or revolution. The Principles of the French Revolution were developed some three centuries before the revolution took place; it just never catalyzed into a physical event until 1789. We must always examine closely the conceptual scheme that sets the scene for an event of that magnitude to occur. In other words, the real question is: what was the conceptual apparatus that made the French Revolution a possibility in people’s minds before it galvanized them to take to the streets? It is imperative that we examine modernity as a philosophical concept. At its core, it is the collapsing of the categories into that of zamān and makān, time and space. It renders everything is subject to, and valued according to zamān and makān, without exception. Another way of describing it is a form of naturalism, comprising the rejection of the sacred into the world. It is the horizontalization of all things and a denial of entry to the Divine. Revelation is no longer the fount of knowledge; it is a theater in which each person applies his or her own individualistic, man-‐made ideas. How modernity creates ‘facts on the ground’ As a conceptual scheme, how should we deal with modernity? On the one hand, we have maintained our religious sciences (‘ulūm) and our scholarly methodologies (manāhij) in which people are trained in particular ways for particular ends. On the other, naturalism has tied itself to the physical sciences, a world economic system and the political ordering of the world so that it can persistently “create facts on the ground”, which is one of the most insidious and effective ways that modernity penetrates any society. 3 See Mirsa Iliyad, The Myth of the Eternal Return (1954). 3 Notes on the Philosophy of Modernity Dr. Karim Lahham Zawiyah Rosales 2014 DRAFT – Please do not circulate The first realm that modernity invades for those societies possessed of an impenetrable intellect, as was the case in the Muslim world, is to penetrate through the built environment. By destroying the ancient town in cities like Cairo and replacing them with modern architecture, the built environment is transformed around people. Modern built entities are forms that have an impact on the souls; a philosophy is naturally imbibed through the mere presence of certain architectural structures, and certain accouterments and styles of dress. These things are speaking to us all the time; there is a dialogue between the forms and our souls at every moment. If we are surrounded by forms that are premised on the denial of all our values and of the transcendent world, our hearts and our societies will be affected. In a similar vein, at the entry of the French into Egypt, the first thing they did was to murder every dog in the city because they thought it was barbaric to have dogs in the city. In reality, the dogs were part of the waste management system and a shared labor system in major cities in the Muslim world. The French created a certain attitude towards animals as superfluous and stupid, which obviated the incentive for sharing of the city space. In İstanbul, it was the Young Turks (CUP), thoroughly Westernized in their worldview, who slaughtered all of the dogs in İstanbul following their 1909 coup. Interestingly, every time a modernist came into power and wanted to undertake massive reform, it was always marked by the destruction of animals in the city. We must be aware that it is not simply a matter of reading books and ensuring that our religious sciences are in tact; we also have to be very jealous of how our built environment, our relationships to the natural environment and our styles of life are transformed around us. The way forward: Re-‐appropriating the classification of the sciences and morally transformative education An informed response to modernity begins with re-‐appropriating the notion of the classification of the sciences and knowledges (tartīb al-‐ʿulūm). What is intended here is not the notion of classification that was advanced in the 19th century by the likes of Edmond Goblot, where the focus is on what sciences are studied and the relationship between them. The classification of the sciences that should interest us is one that informs us about each science; about its subject matter (mawḍūʿ), particular principles, issues and questions (masā’il), questions, demonstrative methodology (manhaj, burhān), and how and why all of these elements relate to each other. One of the interesting things being discovered is how many sciences are closely related to each other and are linked to the realm of logic, including mathematics and speculative theology, because it is in logic that they started thinking and talking about the implicit relationships between the sciences. 4 Notes on the Philosophy of Modernity Dr. Karim Lahham Education Attainment: Good Character and Adab Zawiyah Rosales 2014 DRAFT – Please do not circulate The standard of education attainment has always been linked to good character and adab. The centrality of the figure of the Prophet (peace be upon him) to this civilization has always ensured the centrality of adab to the life and learning that Muslims undertake. It also ensured that the definition of the human being was always ontologically posited. This is to say that there is a recognition that the human being is a contingent creature, but one who is endowed with intellect (‘aql) and he is created in the form of all the Divine names according to the Prophetic ḥadīth, “Indeed God created Adam in His Image” (Inna Allaha khalaqa Ādama ‘alā ṣūratihi). The pronoun here is equivocal and God is referred to as Allah, His name that gathers all of His Attributes (ism al-‐ jāmiʿ). It is by this Divine gift that man was able to take on the trust (amāna) referred to in Surat al-‐ Aḥzāb, which both heavens and the earth refused to bear. The Prophet (God’s peace and blessings be upon him) as the consummate and perfect human being (al-‐insān al-‐kāmil) stated “My Lord educated and reared me (lit.: cultivated my adab) and He perfected my education and rearing” (addabanī Rabbī fa aḥsana ta’dībī). When we look up the word “addaba” in Ibn Manẓūr’s celebrated dictionary Lisān al-‐ʿArab, he equates the verb addaba (to cultivate adab) with ‘allama (to teach), which is a consolidation of the relationship between adab and knowledge embedded in the language itself. Ibn al-‐ʿArabī, in 288 of his Futuḥāt, explains the derivation of the word adab from ma’daba, which is the coming together for a meal; which he says implies that adab is the convivial coming together for the good. He further comments on the above-‐ mentioned ḥadīth, explaining that the Prophet’s (God’s peace and blessings be upon him) statement “Allah cultivated my adab” means that “Allah gathered together in me all the good things (jāmiʿ al-‐ khayrāt)”. This is also one of the names of the Prophet; Allah made him a locus for everything that is beautiful. The conjunction that is important to keep in mind here is that of knowledge = good character = beauty. These are the three conjoined elements that represent the Prophetic way for Muslims to follow. Through love of the truth, knowledge of the good and appreciation of beauty, the human being is liberated from the limitations of his subjectivity to attain true happiness. When we look at the development of learning as a whole, we can see that it is the development of both intellectual and moral virtues. Learning is the development of the ability to arrive at true rather than false historical judgments and to construct intelligible rather than unintelligible ideas. In studying the world around us and appraising intellectual knowledge, the central concern is to recognize that man’s knowing faculties are truth giving and that human beings can attain truth, something that modernity denies. 5 Notes on the Philosophy of Modernity Dr. Karim Lahham The first principles of the sciences Zawiyah Rosales 2014 DRAFT – Please do not circulate If we look at the traditional classification of knowledges (tartīb al-‐ʿulūm), we have to identify the nature of what we term knowledge. It is at its core the certain knowledge of things in terms of its principles and causes. We are helped in this by developing a brief grid. The use of reason by its nature is discursive. To discourse is to link two terms by the means of a third or middle term. A syllogism in logic is an argument that requires a set of at least two declarative sentences or propositions (muqaddimāt) along with another declarative sentence proposition known as a conclusion (natīja). This structure of two premises and a conclusion forms the basis argumentative structure in our logical tradition. The middle term (al-‐awsaṭ) is the cause or the reason why the two objects of thought are connected in the conclusion. The most important part of any science is the set of first principles from which it proceeds. These are the basic middle terms, which it employs to join a subject (mawḍūʿ) and a predicate (maḥmūl) in a conclusion. A middle term is a term that appears as a subject or a predicate, but not in a conclusion of a syllogism. For example, “all men are mortal” is a major premise. “Zayd is a man” is a minor premise. One can therefore conclude: “Zayd is mortal”. In this syllogism, the middle term is ‘man’. To claim certitude, a science has to have first principles that one starts from through which the mind accepts the proposition without fear that a contradictory proposition may be true (qaḍiyya tanāquḍiyya). The first principles referred to here are not like the Principle of Identity (al-‐jamʿ bayn al-‐naqīḍayn) or the Principle of Non-‐contradiction, which are considered self-‐evident and impossible to prove through demonstration. The first principles of a science are different. They are not merely logical, but are also ontological because they are rooted in the subject about which a science seeks to formulate conclusions. They are principles from which everything in that particular science can be derived. First principles are required in every science because without them certainty cannot be achieve. Without a certain starting point, everything following will be uncertain. In mathematics for example, the unit is the first principle from which everything in that science is derived. If one does not take the unit as the first principle, one can never sure that 2+ 2 = 4. These principles are essentially postulates because they are proven by something else; it is taken to be true because it has been proven true elsewhere in a higher science. A first principle is therefore contrasted with a hypothesis (muṣāḍara), which is when you take something to be true but you are not quite sure if it true or not or even whether it is provable at all. It is used in experimenting for the sake of making headway in research. Metaphysics as a speculative science is also known as the science of first principles and may be distinguished from both kalām and logic in some aspects. 6 Notes on the Philosophy of Modernity Dr. Karim Lahham The theoretical and practical sciences and the purpose of education Zawiyah Rosales 2014 DRAFT – Please do not circulate We find a division of the sciences into the theoretical (naẓarī) and practical (ʿamalī) in the Islamic classification scheme, which is also in Aristotle with some modifications. The theoretical sciences are studied for their own end, for the sake of truth, not in order to apply them for a particular purpose. The practical sciences are those studied for the sake of application; for particular end that is practical. The theoretical sciences comprise three sciences, contrasted to the Aristotelian four: (1) Natural philosophy (al-‐‘ilm al-‐ṭabiʿī) which deals with movable beings in the physical and sub-‐lunar world; (2) Mathematics (al-‐‘ilm al-‐riyāḍī), which deals with matters that depend on sensible matter for their existence but not their definition. (3) Metaphysics (al-‐‘ilm al-‐ilāhī), which studies being as being (al-‐wujūd k-‐al-‐wujūd). It is noteworthy that the distinctions are conspicuously hierarchical in the Islamic schema and ontologically posited. In other words, the separation of the sciences is delimited by their particular relationship to their reality. So in the section on metaphysics in the Ibn Sinā’s Shifā for example, Allah is not the subject of metaphysics because God is the principle of the subject. In theology (kalām), Allah is the Subject of the science. So metaphysics may be distinguished from theology by virtue of its subject and by virtue of its principles. Logic studies things that have certain properties inherent in them that are formed in the mind. Propositions, declarative statements, definitions and species are all logical beings. They do not exist outside the mind in that form. To know the real is the first intention of human reason. In its act of knowing, logical forms or relations are brought into existence. This is known as the second intention of the mind (al-‐maʿqūlāt al-‐thaniyya). The practical sciences traditionally comprise, in a hierarchical order: (1) Ethics (akhlāq of the self); (2) Economics (tadbīr al-‐manzil; akhlāq of the family); (3) Politics (siyāsa; akhlāq in the polity). This shows the gradual and ever-‐wider application of akhlāq, which starts with the individual. The practical sciences are concerned with putting order into human conduct so that one may say that the subject of ethics is human conduct. Education is a practical activity that is studied by ethics as a specie of social ethics. So any form of education would need to begin by understanding the definition of the human being, then work from the proximate causes from there as we have the sciences getting wider and wider. It is a natural 7 Notes on the Philosophy of Modernity Dr. Karim Lahham Zawiyah Rosales 2014 DRAFT – Please do not circulate progression. As Muslims, we look at the Prophet (peace be upon him) as the perfect exemplar of the perfected human condition (uswa ḥasana). The Sharī’a as maintained by certain authors in the metaphysical tradition is the instrument of ta’dīb with which Allah provides humanity. The recognition of the end of man here therefore determines the educative process required for a student of knowledge to achieve the requisite result demanded by Allah. All the sciences therefore are predicated on serving that end ultimately. And therefore they can become opportunities or vehicles for spiritual refinement. Islamic Cosmology as an alternative to Naturalism The relationship between learning in an Islamic milieu and the notion of cosmology (ilm al-‐āfāq wa’l-‐anfus) should be emphasized. In relation to the verse 41:53 “Soon will We show them our Signs in the (furthest) regions (of the earth), and in their own souls, until it becomes manifest to them that this is the Truth. Is it not enough that thy Lord doth witness all things?” the Ashʿarī mutakkalim Shams al-‐Dīn al-‐Samarqandī (d. 709/1310) said in his treatise on cosmology that cosmology is the science that examines existence to attain knowledge of Allah. Its subject is existent objects (mawjūdāt) in so far as they manifest or indicate the existence and attributes of Allah. For al-‐ Samarqandī, everything us created as a locus for God (mazhar li’l-‐Ḥaqq), as signs of Allah that lead back to Him. This should serve as the basis for Muslims trying to intelligently develop a philosophy of nature to counter the naturalism that we are facing today. Properly espousing an Islamic cosmology means always seeking to discover the deeper reality of things. As the Prophet (peace be upon him) invoked “God, show me reality as it really is” (Rabbī arinī al-‐ashyā’ kamā hiya). This is the essence of Islamic cosmology, which seeks to discern the ontological nexus between the existent objects and Allah and to acquire true, demonstrative certitude. In a related ḥadīth, the Prophet (peace be upon him) teaches “He who knows himself knows his Lord” (man ‘arafa nafsahu ‘arafa Rabbahu), thereby indicating that knowledge of the self is the purification of the heart so that the knowledge of one’s internal states lead one back to Allah. Conclusion If we classify and approach Islamic sciences in the ways described above, they are be transformed in direction and content by the understanding of the necessary interrelation between them. The inseparability of the theoretical sciences from the practical sciences provides balance, and the understanding that ultimately human conduct depends on the true as a condition for being good. A sound teacher understands and conveys the science of human conduct in which the aim of education and learning is to enlighten human action in a way consistent with the natural end of man. To enlighten, education must be intended for a true end, not an illusory end or goal pragmatically established simply through public policy or for some futile end. Learning is ultimately subordinated to theology, because it is through revelation that we know that there will be a Judgment day and all the Prophets were sent with prescriptive revelation. 8
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