Lecture on the Accommodation of Local Customs in Islamic Law

The following are some notes (the audio is at the bottom of this post) from my lecture on ‘Urf/عرف (customary and cultural practices that wish to have legal consideration and or application, but from which there is no precedent in the Qur’an, Sunnah, and no definite dalil is offered), what scholars term as local custom, and its consideration into the decision-making process of not only Muslim jurists (which is what Dr. Adil Qawtah’s book deals with) but also for everyday Muslims. During the 2012 Ella Collins Winter Retreat, the audience fielded a number of really great questions. What was underpinning many of these questions (my guess this yearning may even be unbeknownst to the questioner themselves) was a need to see if and to what extent could accommodations be made for local cultures and customs, to some extent or another.

The text that I used is by Dr. Adil bin ‘Abd al-Qadir Qawtah of King Abdul Aziz University in Saudi Arabia entitled “The Effects of Local Custom Along with Its Modern Applications in Understanding [Islamic] Financial Transactions”/أثر العرف وتطبيقاته المعاصرة في فقه المعاملات المالية. As I explained during the lecture, while my topic is not actually on financial transactions, one will often find in books that the introduction is the most critical part to read. Aside from telling you what the author’s aims and objectives are, in doing so, they frequently give concise and beneficial explanations of heady and difficult concepts. In Dr. Qawtah’s introduction, he defines a number of important fiqh points as it relates to local cultures and customs (hereafter referred to as ‘Urf: see definition above) and in the general sense of usul al-fiqh. I felt such a short and concise primer may prove beneficial in introduction Muslims to the mechanics of how Muslim thought (a.k.a., usul) works. I also hoped it would demonstrate that when American Muslim scholars delve into the very same tradition, texts and sources, and extrapolate from them new meanings for a new context, they will see that this endeavor is not a betrayal of Islam or its intellectual history, but in fact a bold and daring attempt to uphold it. Below are a few takeaways from the Introduction:

أهمية ” العرف ” وحاجة الفقيه إلى اعتباره

Under the heading of “The Importance of ” ‘Urf ” and the Necessity of the Jurist in Considering It”:

يمكن تقسيم أنحاء أهمية العرف وحاجة الفقيه إلى لحظها وإدراكها إلى الإنحاء الأربعة التالية

One can classify the importance of ‘Urf as well as the jurist’s need to consider its application into how it is perceived and recognized, into the following four parts:

  1. حاجة الفقيه إلى العرف في فهم نصوص الشريعة نفسها/The obligation upon the jurist towards ‘Urf to comprehend the texts of al-Shari’ah in and of itself.
  2. حاجة الفقيه إلى العرف حال تعامله مع المدونات و الكتب الفقهية/The obligation upon the jurist towards ‘Urf to be competent with the canon of legal rulings and books of jurisprudence in case the circumstance has been previously dealt with in.
  3. حاجة الفقيه إلى العرف لفهم الواقع وتحقيق المناط وتنزيل الأحكام على الحوادث/The obligation upon the jurist towards ‘Urf to comprehend the situation at hand, to ascertain the objective of the rule (i.e., the point upon which the hukm/ruling is formed from*), and, to phrase it metaphorically, ‘pull the case books off the shelves’ in order to adequately address real circumstances.
  4. حاجة الفقيه إلى العرف لمعرفة الناس/The obligation upon the jurist towards ‘Urf to have an intimate understanding of the people in question.1

ومن معرفة الواقع – المحكوم فيه والمسؤول عنه – الذ يشترط القاضي والمفتي – معرفة الناس: معرفة أحوالهم وأعرافهم وعوائدهم وأنواع تصرفاتهم و سنن معايشهم وطرائق سلوكهم الاجتماعي: من نكاح وعشرة وطلاق

“And regarding having an intimate understanding of circumstance: this relates to the what will receive the judgment as well as its responsible party – which both judge and jurist will then stipulate – is precisely having intimate knowledge of people: their various conditions, customs, habits, modes of conduct, lifestyles, way in which their societies developed, including but not exclusive to: how they marry, form companionship, and divorce.”2

* To illustrate this, the word “manat/مناط” means a frame of reference or reference-point . In the context of usul al-fiqh, it is evoked in matters pertaining to the permissibility of a particular substance or situation. To help illustrate this point, take wine for example. There is total agreement that it is impermissible because of its intoxicating nature. This feature of wine would be known as al-manat in usul. Now, tahqiq al-manat means that when a jurist deals with making a legal ruling/fatwa pertaining to a new kind of drink that is not wine, he is obliged/حاجة الفقيه إلى to make sure that al-manat is fulfilled (the almost literal meaning of “tahqiq”), or this new drink is intoxicating before giving a fatwa. That is to say, the act of making sure (tahqiq) that the new drinks are as intoxicating as wine is the meaning of tahqiq al-manat.

The reason I wanted to do my class on ‘Urf was because we had touched on this during a session on Saturday in which we posed the following scenario: a person wishes to become Muslim but they own a house dog. Most opinions in the Four Schools limit owning animals to outside the home as work dogs. However, there is an opinion in the Maliki school in which a dispensation was given to domesticated dogs versus wild dogs. What the paneled had offered up was in summary: should we debar a person from entering Islam, or at the very least, make it difficult for them, if they happen to own a dog to which they are heavily and emotionally attached, knowing there is a dispensation for this? Or shall we take the harshest and least lenient ruling as means of demonstrating “superior piety”. What Shaykh Abdul Nasir Jangda noted was that while this situation may warrant the taking of an easier way, it should not be mistaken as carte blanche (I love you Imam Suhaib!) to simply “let the dogs out!”. In essence, we should look for ways in which to accommodate circumstance yet be wary of crafting opinions that are at their heart, nothing other than letting people follow their passions blindly.

But perhaps most important here, Dr. Qawtah reminds us of the following:

وذلك أن الفقيه لا يجتهد في فراغ

“The jurist does not operate in a vacuum.”

And God knows best.

Footnotes

1. 21.
2. 24.

I would also encourage reading Dr. ‘Umar Faruq ‘Abd-Allah’s Islam and the Cultural Imperative.

Getting Serious About Our Islam – More Thoughts on Tradition

Over this winter break I had a chance to engage in a number of good dialogs with my wife and friends about what’s going on right now with Muslims, American Muslims in particular (though, as it was recently pointed out, some of this is equally pertinent to Muslims living in Europe). From those talks sprang a reference to the article in which Dr. Umar Faruq Abd-Allah, from the Nawawi Foundation, was interviewed regarding Muslims, tradition, and dress. I read over the article again and thought I’d just point out a few brief points, as I felt they were relevant to the last post.

To be specific, Dr. Abd-Allah’s article highlights the dichotomy that exists between Muslims of so-called “Tradition” and its ever-increasing counterproductive results. Dr. Abd-Allah highlights a key issue facing Muslims, namely that of the burden that Muslim women are currently carrying: Identity. Abd-Allah points out this burden is “way too heavy”, and that it in effect reverses the very objective (Maqāsid al-Shari’ah/مقاسد الشريعة) that the Divine Law is trying to aim us towards:

When a Muslim woman in a scarf is coming out into public and she is totally exposed, the man is now in hijāb. He is in hijāb. She’s not in hijāb. She’s wearing a scarf yes, but if we know what hijāb really is, the man is in hijāb because he’s hidden. You can’t see him, you don’t know if he’s a Muslim or Hindu, you don’t know if he’s an Arab Muslim, an Arab Jew, an Arab Christian or just white. The man is in hijāb. That is what hijāb means – he is hidden from the public eye. She is not. She is the one who is absolutely out there, everybody knows it, so that’s hard for her to bear. Continue reading “Getting Serious About Our Islam – More Thoughts on Tradition”

The Presumption of Privilege

As Islam continues to sputter along in its American context, post-9/11, various Muslim organizations and groups seek to capture the eye of the masses [who are starting to look more and more like glazed donuts by the minute] by inviting them to “return to Tradition”. I have not noted the capitalized “T” without purpose. Tradition, as it is being marketed currently, is a mono-narrative. Moreover, one might even call it a counter-narrative to the one that is equally applied by the West to Islam/Muslims, in any given time or space. But this concept of Tradition is playing out to be more than simply going back to previously forgotten sources or methods. It is also being linked to privilege. A privilege that takes the form in not only in what economic access can provide but a privilege of ideals. A Believers’ country club, if you will. But one of the main issues with this exclusivity is not solely in the gated mental communities that it fosters but the very idea that Tradition is a panacea. That so long as what is being passed along is stamped with the seal of Tradition, it requires no further investigation, contemplation or scrutinization. But is this truly [the?] tradition? And to what point or end is this tradition to accomplish? What avenues is this tradition to navigate for us? Or are we instead being taken for a ride. Islam in America and more directly, Muslims in America are in dire need for a viable, conducive, productive, creative, indigenous Muslim culture. But how do we get to there from the pre-packaged Tradition we’re currently being offered?

As some of you read before, I had been doing a bit of light reading before heading off to ‘Umrah. Upon my return I decided to put aside some of the heavier bits in favor of what’s been published in magazine format. Two articles piqued my interest: the Summer 2008 edition of The American Scholar, with an article by William Deresiewicz entitled, Exhortation: The Disadvantage of an Elite Education, and Great Neighborhoods, by Mark Hinshaw in the January 2008 edition of Planning. American Scholar deals mostly with issues through a social science perspective, while Planning is a journal in the vein of city planning [The magazine of the American Planning Association]. The two articles are not directly linked and yet, after reading both of them, their impact in tandem drew me to consider the current state of contemporary Muslim education and direction in America [again…].

There is a peculiar handshake between the parties of tradition and authority. Those who are seated are or have seated themselves as the key masters and gate keepers of tradition grant themselves a great deal of authority. An authority, that once imbibed by the target audience, is not easy to regurgitate. Its authority rises from the idea that tradition cannot be made but rather found, and more importantly, bestowed. Those that wish to belong can only do so as long as there are invited. It is precisely this type of exclusiveness that many of the traditionalists are offering American Muslims. Ensconced in the robes of this vernacular, calls towards Traditional Islam continue to rise. But we must ask ourselves: to what, for what, and by whom are we being called?

Let me state again for the record that I am not against the idea of tradition. In fact, I have talked, written and in general, worked towards the formation of a viable Muslim culture in America in my own small way. One can simply substitute tradition for culture in this case. Nor am I averse to the intellectual history of Islam. A quick perusal of this blog will vindicate any accusations. Neither am I unique in this clarion call. Notable scholars such as Dr. Umar Faruq Abd-Allah, Dr. Khalid Blankinship and Dr. Sherman Jackson, just to name a few and all potent scholars in their own right, have spoken on this necessity. But one of the caveats of tradition is that it can also take on a self-sanctioning pathology, where in stead of becoming a means to an end, it becomes a means and an end. The pitfalls of this phenomenon can be clearly observed in the so-called Muslim world. But for the sake of this argument, I am not interested in how Muslims articulate their cultures in the historical lands of Muslims but rather the process of transference. In as far as the Traditionalists look at it, America and by proxy all Muslims within it are rendered helpless and incapable of manufacturing and creating a vibrant American Muslim culture – a culture that not only speaks to the histories of those Muslims in America but even more importantly to their present and their future. Taking their point of view, at the very best, culture can be imported from overseas and draped on the shoulders of modern day Muslims but in no way do they recognize American Muslims as possessing any form of agency. With the script pre-written, Muslims in America will have to settle for acting in someone else’s play – never becoming stars in their own right.

In this interplay of tradition and privilege, the Traditionalists often see themselves as an object of desire. That in fact, their own interpretation of culture is fit for all peoples, in all times, and all places. And conversely, anyone who resides outside of their cultural expression do so at their own choice. It is here that I found Hinshaw’s comments pertinent:

I imagine that many people consider their own neighborhood a pretty fine place. After all, people live where they are comfortable with the physical surroundings and the neighborhoods.

Hinshaw precludes that who ever lives in a neighborhood does so at their own discretion. The possibility that people often live where they can and not where they would like to is completely glossed over in Hinshaw’s treament of the topic. And yet, for anyone who has done even the most rudimentary examination of inner city populations will realize that the people that reside within these spaces do so not out of choice but rather from the lack of it. To assume that inner city blacks, for example, “are comfortable with the physcial surroundings and the neighborhoods” in which they live in is woefully ignorant [ironically, I found this magazine at my place of work, the University of Pennsylvania: School of Design, in their City Planning department]. This presumptuous rhetoric smacks of the same song mentality practiced by the Traditionalists. They are just as much out of touch with the times as a city planner that assumes all people are happy with where they live. And yet, one of the claims of tradition is that it is supposed to be grounded. Grounded in some sort of existential, historical narrative. So what, precisely, is the current trend of Traditional Islam grounded in?

The theme of being out of touch is central to my critique of Traditional Islam [not to be confused with the intellectual tradition of Islam]. At least in the way it is marketed and packaged. By disarming its adherents of any means of agency, a homegrown, authentic articulation of Islam, driven by a healthy, grounded American Muslim culture, can never develop. Part of this syndrome is due to the fact that many of the institutions of Traditional Islam are out of touch with the development of such a culture. In fact, it may not even be an agenda point. I was reminded of this current situation by William Deresiewicz’s article in The American Scholar, where Deresiewicz speaks on his inability to communicate with his plumber:

There he was, a short, beefy guy with a goatee and a Red Socks cap, and a thick Boston accent, and I suddenly learned that I didn’t have the slightest idea what to say to someone like him.

Fourteen years of higher education and a handful of Ivy League degrees, and there I was, stiff and stupid, struck dumb by my own dumbness.

Deresiewicz argues that it was his Ivy League education that did not provide him with the social skills to speak with people “below him”?. That because the plumber is assumed to not have the same amount or level of educational [a safe assumption, no doubt, as Deresiewicz has over a decade of Ivy League education], that not only can he not come down to the plumber’s level but the plumber cannot also ascend to Deresiewicz’s. In my many dealings with students and even some teachers of Traditional Islam, there has been a heavy tendency to practice intellectual elitism. And unlike Mr. Deresiewicz’s education, which undoubtedly took many years and lots of hard work, in the Muslim context, it seldom takes having a bit of Arabic under your belt and a few classes with the right scholars. Thus, by crafting a nomenclature around Tradition, those who fail to ascend to its lofty towers will be left to serve as the plumbers of the Muslim world [the fact that the world would suffer tremendous more for a lack of plumbers than a lack of intellectuals but this fact is not explored], at least academically speaking. There has also been the similar tendency of assumption that Muslims of non-preferential backgrounds [especially Blackermican or non-college educated, hence the lack of their numbers in their circles] lack the basic fundamentals of understanding this form of Islam. Indeed, central to the approach is an almost complete absence of the gifting of intellectual ownership of one’s understanding in Islam. To put in summary, if one wishes to understand Traditional Islam, one must keep paying the subscription fees or face having oness service shut off.

One of the key ways in which a viable culture might take roots here in America is that if Muslims in America begin to take intellectual ownership of their religion and their education in the religion. This process is being hampered by the exclusiveness of Traditional Islam as well as the celebrity of Traditional Islam. It’s add-another-fork-to-the-dinner-table mentality will only seek to impede this process. We need less secret handshakes and more psychological spaces opening up, especially given the last decade or so that indigenous Blackamerican community has gone through. Issues such as man/woman relationships, civic engagement, and education, just to name a few, are in dire need of revamping and retooling.

It is one of my supreme hopes that Muslims in America will wake up and realize that they have the tools to create a healthy, vibrant American Muslim culture. For anyone who thinks that having an American Muslim culture is not a major hurdle on the way to arriving in America need only look to our foreign brothers and sisters. For better or worse, it is their culture that allows them to alleviate many of the anxieties of quotidian existence that plagues so many Muslims in America. An anxiety that is rooted from the fact that they can take no solace in not having to consult an imam, shaykh, 15-volume tome of Bukhari or the like, just to simply figure out if you can cross the street, tie their shoes or go see a movie. It is this culture that could allow many of us to simply “be” to a greater degree versus “trying to be”?. And yet, as we work towards the development of this culture, God willing, we must be shrewd of our embrace of it. For as we have seen, it is apt to have a mind of its own. Culture should serve us towards our goals and ambitions, not making us slaves to the rhythm or at the very least, lower our monthly subscription fees.