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IOS Minaret Vol-1, No.1 (March 2007)
Vol. 10    Issue 22   01-15 April 2016


Professor A. R. MOMIN

Dr. Taha Jabir al-Alwani, a prominent Islamic scholar, thinker, jurist and author of over two dozen books, passed away on March 4, 2016. He was 81.

Shaykh Al-Alwani was born in Iraq in 1935. He received his early education in his native land and thereafter travelled to Cairo, where he graduated from the College of Shariah and Law at Al-Azhar University in 1959. After completing the Masters course in Usul al-fiqh at Al-Azhar in 1968, he returned to Baghdad. He embarked on a teaching career at the College of Islamic Studies in Baghdad, where he taught for six years.

In the 1960s Iraq and Syria witnessed a bitter contestation and conflict between the secular-nationalist political and intellectual elite who supported the ruling B’ath party, and Islamically-inspired individuals and organisations that were opposed to the ideology of the ruling dispensation. The Arab Socialist B’ath Party was founded in Syria in the early 1940s by Michel Aflaq and Salah al-Din Baytar. Though the B’ath party was predominantly based on the ideology of secular Arab nationalism and Pan-Arabism, it also drew on German and Italian fascism. Al-Alwani, who belonged to the Islamic group, was highly critical of the B’athist ideology, and this ultimately led to his expulsion from Iraq.

Shaykh Al-Alwani returned to his alma mater Al-Azhar and enrolled for the doctoral programme. He completed his doctorate in Usul al-fiqh in 1973. An invitation for a teaching assignment took him to Riyadh, where he taught at Imam Muhammad Ibn Saud University from 1975 to 1985. He them migrated to the United States and settled in North Virginia.

Shaykh Al-Alwani had a deep knowledge and understanding of Islamic law, particularly of the fundamental principles of Islamic jurisprudence (usul al-fiqh) and the higher intents and purposes of Islamic law (maqasid al-Shariah). Muslim scholars draw a distinction between the fundamental principles of Islamic law (usul), which are universal and applicable to all societies and in all ages, and legal rulings (furu’), which are embedded in specific historical and social contexts and situations. Islamic law possesses, on the one hand, a remarkable dynamism and vitality and, on the other, sufficient flexibility to deal with unforeseen situations and circumstances.

Muslim scholars and jurists, such as Al-Ghazali, Abu Islaq al-Shatibi, Ibn al-Qayyim and Izz al-Din ibn Abd al-Salam, have dwelt at length on the guiding principles and higher intents of Shariah (maqasid al-Shariah). They emphasize that the principles and provisions of Islamic law are essentially aimed at ensuring and enhancing human well-being. Ibn al-Qayyim (d. 1350) says: "The basis of the Islamic Shariah is wisdom and welfare of the people in this world and in the Hereafter. This welfare lies in complete justice, mercy, well-being and wisdom. Anything that replaces justice with oppression, mercy with harshness, welfare with misery and wisdom with folly, has nothing to do with the Shariah." Al-Shatibi (1194) says that the primary objective of Shariah is the attainment, protection and perpetuation of the well-being of human beings in this world and the Hereafter. He focuses on the concept of the common good (maslaha) and argues that this principle provides the basis of the universality and rationality of Islamic law as well as its flexibility in regard to changing circumstance.

Shaykh Al-Alwani was first and foremost a legal scholar and jurist. He wrote nearly 30 books in Arabic and English. He published a critical edition, with notes and annotations, of Fakhr al-Din al-Razi’s book Al-Mahsul fil ilm usul al-fiqh. His most important works in English are Islamic Thought: An Approach to Reform (2006), Source Methodology in Islamic Jurisprudence (2003), The Ethics of Disagreement in Islam (2011), The Quran and the Sunnah: The Time-space Factor (1991) and An Introduction to the Structure of Discourse in Islamic Thought (2007).

A distinctive feature of Shaykh Al-Alwani’s writings is that they highlight the relevance of the legal and intellectual legacy of Islamic civilization to the contemporary context and emphasize the need for the reinterpretation of Islamic legal principles through the principle of creative reinterpretation (ijtihad) and in terms of the contemporary legal discourse. Shaykh Al-Alwani was among the few Muslim scholars of present times who emphasized that we need to take cognizance of spatio-temporal factors in the analysis and interpretation of Islamic legal principles. His approach was influenced by the view of Ibn al-Qayyim, who stated in his book I’lam al-muwaqqi’in: “Whoever issues rulings to the people merely based on what is transmitted in the compendia despite differences in their customs, usages, times, conditions and the special circumstances of their situations has gone astray and leads others astray. His crime against the religion is greater than the crime of a physician who gives people medical prescriptions without regard to the differences of their climes, norms, the times they live in, and their physical conditions but merely in accordance with what he finds written down in some medical book about people with similar anatomies. Such is an ignorant physician; the other is an ignorant jurist-consult but more detrimental.”

Shaykh Al-Alwani was not an ivory tower or armchair scholar. His writings clearly reflect an enduring engagement with society, a deep awareness and understanding of the challenges and problems confronting the contemporary Muslim ummah and an anguished concern with the intellectual and moral decline and degeneration of Muslims in the world. A long sojourn in the United States and a first-hand knowledge of the economic, social and political conditions of Muslims in the US reinforced his conviction that scholarship and societal engagement should go together and that law and society were inextricably intertwined. Al-Alwani was among the founding members of the International Institute of Islamic Thought, Washington DC. He served as a President of the Fiqh Council of North America and was a member of the Organisation of Islamic Cooperation’s Islamic Fiqh Academy in Jeddah. He was also President of Cordoba University in Ashburn, Virginia.

Disagreement in Islamic Legal Discourse

One of Shaykh Al-Alwani’s books أدب الإختلاف في الإسلام (The Ethics of Disagreement in Islam) addresses the issue of legal pluralism in Islamic jurisprudence and the tolerance and accommodation of differences of opinion in Islamic legal discourse.

The Prophet's Companions (Sahabah), the Followers (Tabiun) and the early generations of jurists had certain differences in respect of religious rituals, customs and dietary practices. Imam Shafi’i considered frogs, crabs and tortoises impermissible for consumption while some other jurists did not prohibit their eating. Imam Abu Hanifah was of the opinion that the quantum of blood money for a non-Muslim citizen of the Islamic state was the same as that for a Muslim. Imam Malik and Imam Ahmad ibn Hanbal, on the other hand, held that it should be half of that of a Muslim, while Imam Shafi’i opined that it should be one-third.

What is note-worthy is that, by and large, jurists, scholars and men of piety in the early centuries of the Islamic era viewed legal differences in terms of convenience and ease for the common people. They never allowed differences in legal matters to affect inter-personal relationships and viewed the legal differences among their predecessors and contemporaries not as a bane but as a blessing in disguise. Sufyan al-Thawri, for example, used to say: "Do not say that the Ulama have differed in such and such matter; say, instead, that they have provided convenience and ease for the people (by their difference of opinion)." Abu Yusuf and Muhammad ibn Hasan al-Shaybani, the distinguished followers of Imam Abu Hanifa, had certain differences in matters of jurisprudence and legal pronouncements with their mentor. Yet, their opinions were incorporated in the corpus of Hanafi jurisprudence. Hanafi scholars and jurists have maintained that there is nothing objectionable if Hanafi scholars and jurists reach a consensus in respect of an extraordinary case in an extraordinary situation, in which they give a legal opinion in accordance with the principles and tenets of the Maliki school of jurisprudence, rather than with those of their own Hanafi school. Thus, Hanafi scholars and jurists in the pre-independence India gave a ruling, based on juristic consensus, in regard to the dissolution of a Muslim woman's marriage whose husband had left her with no trace of his whereabouts for several years.

In the early Islamic period, some rulers sought to bring about uniformity and homogenization in legal matters under the auspices of the state. However, they were dissuaded by eminent scholars and jurists from doing so. During the caliphate of Umar ibn Abd al Aziz, it was suggested that he should bring about uniformity and consensus in respect of legal rulings, to which he replied: "I would not have been very happy if Muslim scholars had not had any differences in legal matters. The companions of the Prophet had certain differences in legal matters. Therefore, anyone who follows the precepts of any of the companions is on the right path". He then circulated an order throughout the Islamic territories to the effect that the people of every region should abide by the ruling over which the local scholars and jurists had reached a consensus. Once the Abbasid caliph al-Mansur told Imam Malik that he proposed to circulate copies of his books in every city and town, with the instruction that people should follow only those books. Imam Malik dissuaded the caliph from doing anything of the kind. He told him that people in different cities were following the rulings of local scholars and jurists and that it was advisable to allow this situation to continue. Likewise, caliph Harun al-Rashid told Imam Malik that he wished to have the latter's celebrated work Al-Muwatta to be hung in the Ka'bah, so that the Muslim masses could follow it in a uniform manner. Imam Malik advised him not to do so.

Apostasy in Islam

Shaykh Al-Alwani made an exceptionally intrepid attempt at the reinterpretation of Islamic legal principles in the light of maqasid al-Shariah and in the context of present times in his controversial book Apostasy in Islam: A Historical and Scriptural Analysis (2011). In mainstream Islamic legal discourse, apostasy (al-riddah) is considered a sinful act and an apostate, who refuses to recant, is considered liable to capital punishment. Al-Alwani begins by asking a pertinent question: How is the punishment of capital punishment for apostasy compatible with the fundamental principle of religious tolerance and freedom of belief and conscience as enshrined in the Quran (Quran 2:256)? Al-Alwani points out that the issue is frequently invoked by the critics and detractors of Islam who accuse it of violating the fundamental tenet of freedom of belief, conscience and expression.

Making a departure from the conventional legal opinion in respect of capital punishment for apostasy and adducing substantial legal and historical evidence against it, he argues that the Prophet never put an apostate to death. He says that the Quran and the Prophet’s Sunnah do not endorse capital punishment for apostasy per se and that as long as apostasy is not accompanied by an act that may be construed as reason or a grave crime that poses a serious threat to public order or national security, apostasy remains a matter between man and God and does not invite capital punishment.

Jurisprudence for Muslim Minorities

About three-fourths of the world’s Muslim population is concentrated in 49 Muslim-majority nations. The remaining one-fourth live as minorities in more than a hundred non-Muslim countries around the world. There is a dearth of systematic studies of Muslim minorities based on reliable and updated information.

It is difficult to provide a reliable and accurate estimate of the size of Muslim minorities and their proportion in the global Muslim population due to legal restrictions on the enumeration of groups on the basis of religion in some countries. Since the current global Muslim population is estimated at around 1.85 billion, the number of Muslim minorities worldwide is approximately 450 million. About three quarters of Muslim minorities world-wide live in five countries: India (171 million), Ethiopia (38 million), China (22 million), Russia (20 million) and Tanzania (13 million).

The idea of a jurisprudence for Muslim minorities (fiqh al-aqalliyyat) was introduced in the early 1990s by two distinguished Muslim scholars and jurists, Shaykh Al-Alwani and Shaykh Yusuf al-Qaradawi, in the context of the growing presence and visibility of Muslims in Western countries. They maintained that there was a pressing need for a distinctive legal discipline to address the specific religious, social, cultural and political problems and needs of Muslims who are living as minorities in Western countries and in other parts of the world. They argued that issues and problems related to laws governing marriage and divorce, education, banking transactions, food, dress, relations with non-Muslims and participation in the political process needed to be examined in terms of certain specific Islamic legal principles such as convenience, common good, expediency, necessity, customary practices and the prevention of harm. Al-Alwani, who has coined the term ‘Islamic jurisprudence for Muslim minorities’ (fiqh al-aqalliyat al-muslimin), argues that while Muslims living in Muslim-majority countries are obliged to uphold Islamic law, Muslim minorities in the US and other secular non-Muslim countries are not required by Islamic law to uphold Islamic principles or symbols. He says that ‘Islamic jurisprudence for Muslim minorities’ constitutes an autonomous sphere or body of jurisprudence based on the Islamic legal principle of the relevance and applicability of the rules of Shariah to specific conditions and circumstances related to particular Muslim groups or communities.

Denunciation of Violence and Terrorism

In the past few years there has been an alarming rise in intolerance, extremism and militancy in a section of Muslim youth, who are on the fringes of Muslim societies. This is manifested in the proliferation of global terrorist networks aimed at carrying out acts of violence and destruction, in the repressive and misguided policies of the Taliban in Afghanistan, in the violence perpetrated by Al Qaeda in the Arabian peninsula, and in the increasingly violent methods adopted by al-Shabab in Somalia, Ansar Deine in Mali, Boko Haram in Nigeria and the Islamic State in Iraq and Syria. This extremism is also in evidence in the growing sectarian intolerance, in the tendency to denounce sections of Muslims as falling outside the fold of Islam and in the desecration of Sufi shrines in some parts of the Muslim world.

A large majority of the victims of terrorism and violence carried out by Muslim youth are innocent Muslim civilians, including women and children. According to the 2015 report of the Global Terrorism Index, of the 10 countries most affected by violence and terrorism in 2014, 7 were Muslim-majority nations. Between 2004 and 2013 almost half of all terrorist attacks and 60 per cent of fatalities due to terrorist attacks worldwide took place in Iraq, Afghanistan and Pakistan, where the victims were overwhelmingly Muslim. The horrendous acts of violence and wanton killing by a small group of extremist and hardliner Muslims have widened the gulf between Muslims and the rest of the world and fuelled Islamophobic sentiments. Suicide attacks carried out by misguided youths in many parts of the world, in which innocent civilians, including women and children are killed, have heightened the atmosphere of fear and insecurity around the world.

Shaykh Al-Alwani, Shaykh Yusuf al-Qaradawi and several prominent Muslim scholars, jurists and intellectuals have unequivocally denounced acts of reckless violence and destruction carried out by Muslim youth in many parts of the world. Shaykh Al-Alwani has pointed out that the justification of such acts in the name of jihad is absolutely unwarranted and is in fact a gross distortion and misrepresentation of Islamic principles.

Al-Alwani’s legacy

Shaykh Al-Alwani has indeed left a magnificent legacy. His far-sighted emphasis on the reinterpretation of Islamic legal principles in the light of maqasid al-Shariah and in the framework of ijtihad and in the social, political and economic context of present times is immensely relevant today and will remain relevant in the years to come.

Shaykh Al-Alwani rightly pointed out that an ostrich-like and complacent view of the past and the present is likely to be self-defeating, that the Muslim ummah needs to understand and acknowledge the morass of intellectual decline and degeneration in which it finds itself and that there is a pressing need to identify the causes of the decline. This is a necessary prerequisite for a programme of regeneration and revitalization. He espoused a holistic approach to Islamic revival through a synthesis of traditional Islamic learning and modern education, exploration of an alternative methodology and educational restructuring and reform.

Shaykh Al-Alwani’s emphasis on tolerance and accommodation of different legal opinions is particularly relevant in the context of present times, which are fraught with growing ideological and sectarian conflicts and intolerance and which are largely caused by a misguided interpretation of Islamic principles, narrow-mindedness and excessive ideological self-righteousness.

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