The Lunacy of Lunar Sightings — A Brief Reply

Jul 20

Shaykh Hamza Yusuf has a short and valuable blog post entitled “The Lunacy of Lunar Sightings” in which he defends a middle position between naked-eye sightings and the use of astronomical calculations to determine the beginning and end of Islamic months.  He argues for the need to establish Islamic dates based  on a combination of the best-available scientific evidence along with naked-eye observation.  I still think, however, it does not make the case for continuing with naked-eye observation rather than simply using calculations to determine the beginning and end of Islamic lunar months.  Here, the decisive question is whether what is required is certainty or probability.  The very fact that in traditional fiqh, the beginning and end of months could be established by the testimony of individual witnesses, and not the kind of corroborated testimony that Shaykh Hamza seems to demand in this essay, shows that certainty is not required in this matter. And, when this is combined with the element of practicality — something Shaykh Hamza dismisses too easily, I believe — it seems that simply using astronomical calculations, regardless of the fact of the naked-eye observation, makes sense.  As far as an official public calendar, sure, that does require certainty, and perhaps there should be a specialized astronomical institute that can maintain an “official” Islamic calendar, but as Shaykh Hamza knows, one of the great disputes in fiqh on this matter is the debate between ikhtlilaf al-matali` and ittihad al-matali’, basically, whether the lunar calendar is the same in all places of the world, or differs according to one’s location on the planet.  I believe that, if the standard is naked-eye observation, we must adopt the principle of ikhtilaf al-matali’, which renders the possibility of a unified Islamic calendar impossible.  But in any case, at least for Muslims in the west, none of this is really relevant because we don’t use the hijri calendar for administrative purposes, only for religious ones, and from that perspective, having a sound basis to believe that the month has started or ended is sufficient.  (There is also another fundamental point of disagreement with respect to how to interpret the Prophetic hadith on this topic: did the Prophet (S) tell his companions either to observe the moon or to count the days because that was a ritual command, or because that was the means that was easily available to his people to calculate the month?  Shaykh Hamza’s position is that the means the Prophet (S) communicated to his companions were themselves a part of the ritual. There is certainly support for that position from the tradition, but why should we reject what seems to me an equally plausible view that it was simply the most convenient means available for them to calculate the month? After all, the Prophet (S) did not tell his companions to fast based upon the government’s declaration that the month has begun, nor did he tell them to cease fasting based upon the government’s declaration that the month has ended, but the jurists all concluded that a judge, based on competent testimony, can declare the beginning and ends of months.  It seems bizarre to then say that we can’t use astronomical calculations to determine the beginning and ends of months because they do not correspond perfectly with naked-eye observation.

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Quick Thoughts on Obergefell

Jul 07

I finally got a chance to read Obergefell.  The majority’s reliance on the due process clause and not equal protection is a bit of surprise to me (indeed, according to the Roberts’ dissent, even the Solicitor General disclaimed the due process argument), but perhaps is justified by what might be the sheer volume of litigation that would have resulted if the majority rested its decision on equal protection grounds rather than due process: had it held on equal protection without also finding a violation of due process, that would mean that each instance of a law according a benefit to an opposite-sex couple would have to be challenged from the perspective of the proper standard of constitutional review, i.e., rational basis — intermediate scrutiny — strict scrutiny.  By simply declaring that the right to marry another person, regardless of that person’s sex, is an inherent part of liberty, there is simply no need now to challenge the rationality of gender-based restrictions found throughout the law to determine whether they satisfy constitutional demands of rationality.  This clean solution to what might otherwise have been a rather large practical problem in implementing a commitment to marriage equality, however, raises problems of conceptual clarity insofar as it seems to recognize a fundamental positive liberty to marry.  I don’t know whether in the case of US constitutional law, there are any other commitments to positive liberty, but there now seems to be a conception of liberty that requires the states to recognize marriage, and since this is now an inalienable kind of liberty, states must organize laws of marriage on a basis that does not discriminate on the basis of gender.  I wonder, however, whether this positive liberty to marry also carries in its wake other positive liberties associated with families, like the right to pass on an estate to heirs?  I also doubt the majority that endorsed a positive liberty to marry is likely to find a positive liberty to economic rights, e.g., a living wage for example.  In  any case, the chance that states could exit the marriage business, as some liberals hope for, seems to be extremely implausible in light of the majority’s language describing marriage as a freedom that is a necessary condition for individuals to obtain a host of goods that are required to live a good life.  It does not seem to contemplate the possibility that a state could simply choose not to recognize the importance of these relationships — whatever called — because it is only by virtue of the public recognition of those relationships that it becomes possible to secure those other goods.  Private ordering, it seems, cannot do the same job in securing these ends, at least according to the majority’s reasoning.

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ISIS’ Appropriation of Classical Islamic International Law

May 08

Brookings’ 2015 US-Islamic World Forum invited me recently to contribute to Will McCants’ series of discussions regarding ISIS’s relationship to the Islamic tradition which he initiated in response to the now (in)famous Atlantic piece by Graeme Wood, “What ISIS Really Wants“. I wrote about ISIS’s appropriation of classical concepts such as dar al-islam and dar al-harb to justify their actions against their enemies, domestic and foreign, while ignoring over 1200 years of the concepts’ evolution, including, in the post-World War II era where leading Muslim jurists have concluded that the distinction is irrelevant in the modern world.

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The Fate of Non-Muslims in the Next Life According to 20th Century Azhari Reformist Theologians

Apr 08

I’m not quite sure who this Islam al-Buhayri fellow is, or why he has suddenly become controversial in Egypt.  His facebook page describes him modestly as a an “A Reforming [lit.: “correcting”, musahhih] Islamic Researcher.” One issue that seems to have stirred the pot is his claim that it is impossible to describe the People of the Book, i.e., Jews  and Christians, as kuffar, i.e., non-Muslims, from the perspective of the Quran.  Here is a link to a very interesting fatwa by Yusuf al-Qaradawi on this question.  Qaradawi’s basic position is that kafir — disbeliever or non-Muslim — has two meanings in Islam.  The first is a legal category, and applies to anyone who has not affirmatively embraced Islam.  The second is a theological category, and applies for purposes of reward and punishment in the next life.  In the second case, a person is only a kafir and subject to divine punishment if the person, despite subjectively recognizing the truth of Islam, refuses to become a Muslim out of obstinacy and spite. As for this life, Muslims and non-Muslims according to him are supposed to cooperate on the basis of justice, not whether they have the same belief.  This view itself grew out of a series of theological debates that took place in the Azhar in the second-half of the twentieth-century.  I have written on this debate in a paper titled, “No Salvation Outside Islam: Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism.”  That paper was one chapter in the larger book. “Between Heaven and Hell: Islam, Salvation and the Fate of Others,” edited by Mohammad Hassan Khalil.

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2015 Noel Coulson Memorial Lecture, SOAS School of Law

Mar 26

It was my distinct honor to have been invited to give the 2015 Noel Coulson Memorial Lecture at the SOAS School of Law.  Noel Coulson was one of the most prominent British scholars of Islamic law in the 20th century, and he was a canonical author for those of us who studied Islamic law in the west.  As I mentioned in the introduction to my lecture, much of my own work in Islamic law — despite my numerous differences with Coulson in specifics — is motivated by similar concerns: how to reconcile fidelity to revealed law with the legitimate needs of human society, without giving in to either utopian textualism or secular absolutism.  The topic of my talk was “Islamic Reform: Democracy or Reinterpretation?

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Majnun Layla’s (Qays b. Mulawwih) Lesson in Patriotism for Egypt

Mar 14

Qays b. Mulawwih was an early Islamic Arab poet who gained fame for his absolute, unqualified, and all-consuming love for Layla.  So complete was his obsession with her that people assumed he was mad, thus earning him the sobriquet in the poetic literature of Majnun (the madman) of Layla (Majnun Layla).

Two of Majnun’s more famous lines about his love for Layla go like this:

أمر على الديــــــار ديار ليـلى … أقبل ذا الـــــــجدار وذا الجـدارا
وما حب الديار شـــــغفن قلبي … ولكن حب من ســـــــكن الديارا

“I pass through the lands of Laila, kissing this wall and that one;
it is not the love of the land that has filled my heart, but love for the one who dwelt there.”

Many people in Egypt today speak of patriotism, but it is a false patriotism, a patriotism not devoted to the love of the people of Egypt, with all their virtues, and vices, but for an abstract idea of Egypt that is little more than a reflection of their own fantasies, nightmares, or both. The great president Sisi, for example, recently accused the Muslim Brotherhood of wanting to empty Egypt of its Pharaonic heritage by destroying the pyramids and destroying ancient temples. Aside from the sheer absurdity of the statement, this is from the spokesman of a regime that has, from a practical perspective, been a complete failure in preserving Egypt’s cultural heritage, even allowing the Great Pyramids, through years of neglect, to turn into an urban slum.

Like Qays b. Mulawwih, we Egyptians should reject the false patriotism which is based on love of an abstract place — perhaps best exemplified in the absurd plans announced yesterday for the construction of a new capital — for the complete, absolute and unconditional love of the people, embracing them completely, even with their faults. That is what democracy is about: letting the people govern themselves, knowing that in the long run, they will get things right. This kind of patriotic love for the people — not the contempt for them which is the only thing that unites Egypt’s elites — might lead us out of this dark tunnel. But, for many reasons, I doubt any one will listen to Qays b. Mulawwih. After all, he was crazy.

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Fight Bill C-51! It’s About You!

Feb 19

Fight Bill C-51! It’s about you, not terrorism!

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Establishment of the Council of Wise Muslims

Sep 26

One of the interesting fall outs of the Arab Spring has been a renaissance of traditional Sunni quietism and support of authoritarianism as the proper response to political conflict.  As reported by CNN Arabic Service, the UAE (who else?) is now patronizing a group of Sunni scholars under the not so modest name of “The Council of Wise Muslims (Majlis Hukama’ al-Muslimin).” One of its goals, according to this article, is to revive basic doctrines of Sunnism, including, “obedience to the ruler” (ta’at uli’l-amr). The article also states that the wise ones are cautioning Muslims that democracy is not a good desired for itself, but rather, justice and stability are the aims, and these can be achieved, apparently, without democracy.  Indeed, if democracy is pursued in circumstances that are not appropriate, e.g., the Arab world, it will only lead to civil war.  What the wise ones have failed to explain, however, is why oligarchical rulers would be interested in pursuing, among other things, distributive justice.  Just sayin’.

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Salaita Breaks His Silence

Sep 10

Steven Salaita has broken his silence. Here is his statement regarding what has happened to him, professionally and personally, as a result of the University of Illinois’ decision to terminate him from his tenured position.  It appears that even thought the University of Illinois is prepared to settle with him financially, Salaita will accept nothing other than reinstatement.  That is certainly the right call from the perspective of the academic community, but litigation, if pursued, will extract a high personal and financial tool on Salaita and his family, and will require substantial support from his fellow academics to succeed. This could be a landmark case on academic freedom, and the extent to which private donors will be permitted to set the agenda for speech on the university, the university’s hiring decisions and methods of teaching used by faculty.

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Write a Letter to the Trustees of the University of Illinois in Support of Steven Salaita

Sep 04

Despite the vast amounts of negative publicity the University of Illinois has received, and continues to receive as a result of its decision to terminate Professor Steven Salaita, it has yet to reverse its decision.  Its Board of  Trustees will be meeting on September 11, and they should be made aware directly of the consequences their decision will have on the University, both in terms of the law and its academic reputation.  Please take some time and write an e-mail to the trustees expressing your opposition to the decision to terminate Professor Salaita and demand his reinstatement.  The names and the e-mails of the trustees are set out below:

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