Islamic Law: "Abnormal Abuse of Rules Can Neither Legalise The Abusive Practice Nor Render the Authentic Rules Null & Void"

This is an excerpt from The Muslim Conduct of State by Dr. Muhammad Hamidullah

(1)As has aptly been said: "When stable communities whether Tribes, or City-States, or States of a modern type are permanently contiguous, customs hardening in time into law never fail to regulate their intercourse. Ubi societas, ibi jus; wherever developed communities are brought in contact with each other, judicial relations must sooner or later be formed not mainly by agreement, tacit or express, but by the very necessity of the case, and partly from the same cruses as those which working internally create states." 

(8) Law (Fiqh) is variously defined by classical Muslim jurisconsults. "The knowledge of what is for and upon one" is a definition attributed to Abu Hanifah) which in other words may be rendered as "the science of the rights and obligations of man". A late authority, Muhibbullah al-Bihariy, introduces this all-embracing subject in the following words  of his book (compiled 1109 H.) : " The science of ascertaining religious commands (regarding practical affairs of life) by means of their detailed guides." [By guides he means authority or source of information.]


(9) A glance at the contents of works on Fiqh would reveal that they embrace practically all the affairs of human' life, material as well as spiritual. In view of the standard definitions given above and is the face of the contents of works do Fiqh, there remains not the slightest doubt that international law, i.e. the rules of State-conduct in times of war, peace and neutrality, form part of the ordinary law of the land, the Fiqh. These rules of conduct are generally dealt with in books on Fiqh under the heading Siyar i.e. conduct,

(10) Here a brief expose of the origin of law according to Muslim jurists may profitably be added. They say that man must always do what is good, and abstain from what is evil, and take scrupulous care of the intermediary grades of plausible, permissible and disliked. It is, however, not easy to distinguish between good and evil, especially when the matter concerns the subtleties of a complex civilised life beyond the pale of ordinary commonplace things. 


Practical needs would have required the possession of the power to legislate (or lay down definitely grades of good and evil [in] each and every matter) in the hands of Man, either individual, as jurisconsult, or collectively organised, i.e. a State. Yet mere reason, regarded as the touchstone of good and evil, is not without grave difficulties. For it is possible, and also a matter of fact -- so argue Muslim jurists -- that different persons opine differently regarding the same things. 

The belief in Messengers of God is useful even from the point of view of jurisprudence, in so far as the awe and respect due to their persons lead to the acceptance of certain fundamentals without further dispute, wherefrom other and further details may be elaborated. For this reason, the Muslim savants are very thankful to the generosity of God that He gave men along with reason certain chosen human Guldes to help them in the conduct of life. These selected and chosen ones pointed out what God commanded, God the real Sovereign and Lawgiver, regarding good and evil. 


Muhammad has been acknowledged by the Muslims as the Messenger of God; and whatever he gave them in his lifetime, commands as well as injunctions, in the name of his Sender, God, was accepted by the Muslims as indisputably final and most reasonable. 


These Divine Commands, known as the Qur'an and the Hadith - as we shall see later in detail - served practically all the needs of the Muslim community of that time. But human needs multiplied later in such a manner that express provision seemed to be available for some of  the new matters in either the word or deed of the Messenger, who himself had passed away, disconnecting the link whereby Man could receive Commands from his Lord. The consequent result would have been fatal and the fabric of Fiqh would soon have collapsed under the strain, had not there been express provision in the law itself for further elaboration. Credit must also not fail to be given to the Muslim jurists, after the death of the Prophet, who not only discerned this elasticity of the Divine Law, but also utilized it to its fullest extent. In time there emerged a complete system of law which served all the purposes of the Imperial Muslims, even at the height of their widest expansion from the Atlantic to the Pacific Oceans.


(11) Thus law originated from the direct Commands of God; but the power retained by man to interpret and expand Divine Commands, by means of analogical deductions, and other processes, provided all that was required by the Muslims. In this way a dual need was served: that of sanctity to inspire awe in the minds of (hose who were intended to observe it, and that of elasticity or capability of development to meet the needs of times and circumstances.


(12) We have defined international law, first, as a part of the law of the land. The province of the law of the land is therefore, obviously, wider than that of international law; and we have no concern here with the portion of the law of the land which regulates internal affairs of the State or its subjects.


(13) We have also acknowledged customs as contributing to international law. No system of law can positively provide guidance regarding every detail of every matter. Completion of a list of obligatory and prohibited things, along with details of a certain number of permitted matters -- that is all any system of law can achieve Naturally the prevalent customs  general practice, and even innovations hardening in time into prevalent usage eye) regulate the relations in such cases. 


(17) It may be added that, for purposes of illustration, precedents from Orthodox Practice have freely been referred to. These alone are binding. Abnormal and temporary abuse or overlooking of certain rules by a Muslim State can neither legalise the abusive practice nor render the authentic rules null and void. 


http://muslim-canada.org/conduct_1.html This is an excerpt from The Muslim Conduct of State by Dr. Muhammad Hamidullah

Impact of Religion on Economic Growth: USAID Bureau Policy and Program Coordination 2004 Report

Peter Timmer, Development Alternatives, Inc. (DAI Pakistan http://www.dai.com/pakistan/ ) and Center for Global Development

Donald McClelland, U.S. Agency for International Development

The long-standing debate over the impact of religion on economic growth particularly the current debate over the impact of Islamic thought on the economic prospects of Muslim countries—parallels similar debates over the impact of Catholicism, Hinduism, and other religions. These debates have not had much impact on development practice, partly because of their inconclusive nature.

The issue addressed in this paper is whether Islam, as the “religion of practice” in a wide range of countries, poses serious problems for economic growth or whether the undeniably poor economic performance of many Muslim countries stems from sources unrelated to Islamic theology and practice.

Recognizing the tension between progressive and moderate practitioners of Islam and their fundamentalist challengers—a tension that often spills into the political arena—the paper concludes that most Muslim countries face very difficult governance issues that have impeded rapid economic growth

Why do Muslims tend to be relatively poor? The facts are undisputed: Muslims make up 19 percent of the world’s population but earn only 6 percent of its income. The issue is whether there are any causal relationships between religion and economic development. Many scholars suggest that religion is typically not a problem, pointing out that Islamic beliefs and values that appear inimical to growth (e.g., the ban on interest and restrictions on speculation) are routinely circumvented. The corporation is now an acceptable and popular organizational form in most Muslim countries. Insurance contracts are legally enforceable. Banks are integral components in every Muslim country’s economy.

And contracts involving interest payments are commonplace, although payments are sometimes disguised as commissions or fees.

Others believe there are deeper problems. Characterizing an Islamic economic system—

“Islamic economics”— as a middle ground between capitalism and socialism, they cite the Koran’s overriding emphasis on the need for social justice; rejection of severe economic disparities; condemnation of economic exploitation, usury, and dishonesty; call on well-to-do individuals to use part of their wealth to help the poor and support various charitable endeavors; and repeated expressions of concern for those least capable of defending themselves against poverty. Despite the Koran’s emphases, proponents of Islamic economics argue that it can effectively promote both economic development and social welfare in predominantly Muslim countries.

It seems clear that the economic institutions Islamic law prevented—corporate law, banks, stock markets, modern firms, insurance—are all integral parts of most economies of the Muslim world. As a result, economic policy reforms needed to accelerate economic growth in the Muslim world could be adopted without having to confront Islam as a religion.

Although Islam harbors elements inimical to economic productivity and efficiency, these have not formed an absolute barrier to economic growth. In fact, Noland’s recent analysis (2003) of India, Malaysia, and Ghana provides empirical evidence that there is no consistent, systematic relationship between economic growth and the share of a country’s population practicing Islam. He concludes that the impact of Islam on short-run economic performance is as diverse as Islam itself.

The Muslim world is extensive and diverse, comprising 48 countries where at least 50 percent of the population is Muslim. It extends from West Africa (Morocco and Mauritania) to East Asia (Indonesia). The larger Islamic world includes several countries with a significant Muslim minority. India is the most prominent of these countries with a Muslim minority of over 125 million people (12 percent of the population). Others include Kazakhstan, with almost 8 million Muslims (47 percent of the population), and Uganda, with almost 4 million Muslims (16 percent of the population). In France, nearly 6 million people are Muslim (about 10 percent of the French population).

The top five Muslim-country recipients of USAID economic assistance over the five-year period 1997–2001 were Egypt, Jordan, West Bank/Gaza, Indonesia, and Bangladesh. In 2002, Pakistan and Turkey were among the top five recipients; Indonesia and Bangladesh were not, though they were still among the top 10. The top five recipients of USAID assistance per capita in 2002 included Albania, Kyrgyzstan, Egypt, Jordan, and West Bank/Gaza.

Khan (1999) zeros in on the crux of the issue, asking how would one  know what an Islamic economy looks like if there has never been one. He draws a sharp distinction between Islamic countries as political entities, of which there are many, several with very deep historical roots, and Islamic economies, where historical experience is thin. The examples of the latter usually cited—Afghanistan under the Taliban, Iran under the Revolutionary Council of Ayatollah Khomeini, and Sudan under Hassan al-Turabi—certainly give cause for concern that Islamism can be a vehicle for economic growth and improved standards of living. According to MSI (2002), the reason seems deeply rooted in the nature of Islam:

First, economics is, at best, of secondary importance to Islamists. It does not feature prominently in their political agenda, or in the books, articles and pamphlets that emanate from Islamist circles. Islamist thinkers, politicians, and activists are clearly far more concerned with matters of morality, ethics, and piety than with economic questions. Some even express contempt for economics. As Ayatollah Khomeini once remarked when pressed to address economic issues, “the revolution is about Islam, not about the price of melons.” Islamism is driven first by culture (the search for a “moral order,” consistent with God’s will for mankind, as revealed in the Koran) and, second, by politics (the quest for controlling the levers of power that will make it possible to

establish that moral order). Economic concerns are far less central to Islamist thinking and strategizing; they come well after cultural and political objectives.

To understand the impact of Islam on economic growth in Muslim countries, it is necessary to understand this challenge from Islamism and the links between economics and politics (economic governance). Although it is probably fair to say that Islam per se is not a significant impediment to improved economic performance in any Muslim country (Annex 1), it can be a contributing factor.

According to Jabber (2002), poor economic performance in so many of these countries is one of the three basic causes of widespread alienation of the populations of Muslim countries from their governments. This alienation in turn supports fundamental Islamism, which is the main challenge to political authority in Muslim countries. And Islamism’s political challenge— often using violent means—undermines the basic economic environment needed to improve investment returns and to stimulate higher standards of living.

From this perspective, analyses of what went wrong economically in the Muslim world have focused on immediate or proximate causes, rather than deep and fundamental causes. Abed’s review (2003) for the IMF of the Middle East and North Africa region, for example, provides an extensive litany of policy failures and poor governance as the reasons for their “unfulfilled promise.” Islam is not mentioned even once as a factor associated with these problems.

Similarly, a USAID review of lessons learned from USAID and other donor experience in providing economic assistance to selected Islamic countries never mentions Islam as a contributing factor to the success or failure of the ten specific projects reviewed. Moreover, neither the IMF nor the USAID review provides guidance on how to fix poor policies or improve governance, when both may well be held hostage to the political challenge from fundamental Islamists. Specific actions for possible support by USAID are identified at the conclusion of this report.

Read full report: http://www.cgdev.org/doc/commentary/timmer_USAIDw.pdf

PETER TIMMER:  In addition to his faculty positions in three schools at Harvard, Timmer has also held professorships at Cornell and Stanford. In 1992, he received the Bintang Jasa Utama (Highest Merit Star) from the Republic of Indonesia for his contributions to food security. He served as the chief outside advisor to USAID for developing their strategy on growth and agriculture for the Natsios Report (Foreign Assistance in the National Interest), and he was one of the key advisors for the World Development Report 2008: Agriculture for Development. He currently serves as an advisor to the Bill and Melinda Gates Foundation on agricultural development and food security issues.

Some Statistics as Annex in this report: 

Annex 1. Countries in the Muslim World1

Middle East and North Africa (18)

Algeria

Bahrain

Egypt

Iran

Iraq

Jordan

Kuwait

Lebanon

Libya

Morocco

Oman

Qatar

Saudi Arabia

Syria

Tunisia

United Arab Emirates

West Bank/Gaza

Yemen

Europe and

Eurasia (7)

Albania

Azerbaijan

Kyrgyzstan

Tajikistan

Turkey

Turkmenistan

Uzbekistan

South Asia (4)

Afghanistan

Bangladesh

Maldives

Pakistan

East Asia and

the Pacific (3)

Brunei

Indonesia

Malaysia

Africa (16)

Burkina Faso

Comoros

Chad

Djibouti

Eritrea

Ethiopia

Gambia

Guinea

Mali

Mauritania

Niger

Nigeria

Senegal

Sierra Leone

Somalia

Sudan

Agrarian Economies (21)                              Oil Producers (22)                            Neither (9)

Ethiopia                                                               Albania                                                Turkey

Burkina Faso                                                      Algeria                                                 Uzbekistan

Niger                                                                     Azerbaijan                                          Kyrgyzstan

Guinea                                                                  Bahrain                                                Maldives

Mali                                                                       Brunei                                                   West Bank/Gaza

Chad                                                                     Egypt                                                     Lebanon

Tajikistan                                                            Iran                                                       Jordan

The Gambia                                                        Iraq                                                       Morocco

Eritrea                                                                  Kuwait                                                Djibouti

Comoros                                                              Libya

Senegal                                                                 Malaysia

Somalia                                                                Oman

Afghanistan                                                       Qatar

Nigeria                                                                Nigeria

Sudan                                                                   Sudan

Sierra Leone                                                       Saudi Arabia

Bangladesh                                                         Syria

Yemen                                                                 Yemen

Indonesia                                                            Indonesia

Mauritania                                                         Tunisia

Pakistan                                                               Turkmenistan

United Arab Emirates1

1. Member of OPEC (10)

2. Both agrarian and oil producing

Note: Agrarian economies are Muslim countries where at least 50 percent of employment is in the agriculture sector; oil producers are Muslimcountries that are members of OPEC and/or Muslim countries categorized in the exporters of crude oil or oil and petroleum products.

Source: CIA Factbook, 2002.

Agriculture         Industry               Services

Middle East and North Africa

Algeria                                                 8.8                          59.7                        31.5

Bahrain

Egypt                                                    16.7                        33.1                        50.2

Iran                                                        17.7                        33.3                        49.0

Iraq

Jordan                                                   2.2                          24.8                        73.0

Kuwait

Lebanon                                               11.9                        22.0                        66.1

Libya

Morocco                                               13.5                        32.2                        54.3

Oman

Qatar

Saudi Arabia

Syria                                                     22.8                        28.7                        48.5

Tunisia                                                 12.3                        28.8                        58.9

United Arab Emirates

West Bank/Gaza                               7.8                          26.6                        65.6

Yemen                                                  14.6                        48.0                        37.4

Unweighted Average                           12.8                        33.7                        53.4

Europe and Eurasia

Albania                                                50.7                        22.7                        26.5

Azerbaijan                                          17.0                        45.3                        37.7

Kyrgyzstan                                        36.8                        29.2                        34.0

Tajikistan                                            29.5                        29.7                        40.8

Turkey                                                  15.4                        25.3                        59.3

Turkmenistan                                    28.1

Uzbekistan                                         34.4                        23.1                        42.5

Unweighted Average                           30.6                        29.2                        40.1

South Asia

Afghanistan

Bangladesh                                         24.6                        24.4                        51.0

Maldives

Pakistan                                               26.7                        23.1                        50.2

Unweighted Average                           25.6                        23.8                        50.6

Asia and the Pacific

Brunei

Indonesia                                             17.0                        47.1                        35.9

Malaysia                                              8.7                          51.2                        40.1

Unweighted Average                           12.8                        49.2                        38.0

Africa

Burkina Faso                                      39.7                        19.1                        41.2

Comoros                                              40.9                        11.9                        47.2

Chad                                                     39.2                        13.8                        47.0

Djibouti                                                3.7                          14.2                        82.1

Eritrea                                                  15.2                        22.9                        61.9

Ethiopia                                               52.3                        11.1                        36.6

Gambia                                                33.2                        12.3                        54.5

Guinea                                                  23.6                        36.5                        39.9

Mali                                                       41.2                        21.3                        37.5

Mauritania                                         21.3                        29.1                        49.6

Niger                                                     37.8                        17.8                        44.4

Nigeria                                                 29.5                        46.0                        24.5

Senegal                                                 18.1                        26.9                        55.0

Sierra Leone                                       47.3                        33.6                        19.0

Somalia

Sudan                                                   41.1                        18.5                        40.4

Unweighted Average                           32.3                        22.3                        45.4