Launch of the Joe Bradford Podcast on Soundcloud

Many of you have requested a podcast from me for sometime, and after looking at all the technology options Soundcloud seem the best way to integrate this into the myriad things I do.

I’ll be posting twice a week.

Be sure to subscribe, and you can always access the links to these podcasts as well as my youtube and vimeo lectures.

Enjoy 🙂

What Effect does Sin Have On Faith? Suicide in Islamic Thought part 3

Introduction and Recap

In previous entries, we covered the primacy of God’s oneness as a core tenant of Islamic belief inculcates in a believer self-accountability. Our acts, therefore, are not without repercussions. We will be judged for our actions, especially those that we perpetrate against others and ourselves, but also those we perpetrate against God. The fear of God’s punishment is precisely to persuade us to repent and admit responsibility for our actions.

Removed from this is the idea of coercion and mental incapacity. When someone is coerced into an act, or his mental capacity is diminished to a level that he is not cognizant of his actions, in this case the person may not be ethically culpable for the action, even though legally there are consequences for that act.

Killing of any type is a sin, and an offense against God’s right to give and take life. This applies even to taking one’s own life, as we mentioned earlier. However, does the commission of an act of sin necessitate one be sinful in all cases? And when one sins, is that sin unforgivable? In other words, if a person were to die by suicide, does that mean they’ve committed a major sin in all cases? Or that if they did they are not worthy of prayers, forgiveness, and compassion?

What Effect does Sin Have On Faith?

As mentioned previously, the act of suicide is sinful. There is however an important nuance to the idea of sin that must be mentioned. While suicide as an act is considered sinful, the one who dies by suicide may not be considered a sinner. A main precept of Ahl al-Sunna wal-Jama’a is that anyone who commits a sin is relegated to God’s will; their culpability and judgement is in God’s hands alone. Tahawi mentions in his famous creed “And we do not excommunicate someone from the People of the Qibla due to a sin – as long as they do not claim it is permitted. And we do not say that sin does not harm those that do them.”

So if a person commits a sin, then we as Muslims do not label them an unbeliever simply for the commission of that sin. A person can be sinful and a believer in the same instance. As long as the person committing the sin does not make it permissible, in the sense of declaring what is “Haram” as “Halal.” And although a person can be sinful as a believer, this does not mean that committing a sin does not harm their faith. Sins decrease faith, and can have a cumulative effect on the person, drawing them ever nearer to greater sins.

What does this all mean with regards to suicide?

Suicide is a sin. Believers die by suicide. There is no contradiction then in someone dying by suicide and being a believer worthy of paradise. Every sinner is still a believer, bar the greatest sin “Indeed God forgives not that partners are associated with him; He forgives anything less than that for whomever He wills.”

The only groups to differ with this were the Mu’tazila and the Khawārij, the latter holding that sins excommunicated those that committed them; the former consider them in a “station between two stations” in this life (not believers or disbelievers) but ultimately disbelievers in the Afterlife.

Thus the outrage, indignation, and lack of compassion that some show to those who die by suicide and their families is antithetical to orthodox Muslim belief.

“Residing therein eternally”?

One verse that is quoted about killing is from 4:93:

وَمَن يَقْتُلْ مُؤْمِنًا مُّتَعَمِّدًا فَجَزَاؤُهُ جَهَنَّمُ خَالِدًا فِيهَا وَغَضِبَ اللَّـهُ عَلَيْهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذَابًا عَظِيمًا ﴿٩٣

“And whoso slays a believer wilfully, his recompense is Gehenna, therein dwelling forever…”

The phrase khālidan, as been rendered in different ways. Arberry has it as “therein dwelling forever,” Asad has it as “therein to abide,” Hilali & Khan “to abide therein,” Pickthall renders it “his reward is hell for ever.”  Explaining this verse, al-Jalalayn says “This is interpreted to mean the one who permits (makes Halal) for himself killing.” Others have said that the linguistic meaning of خالدا Khālidan is  ماكثا remaining therein under God’s will, not eternalized, as all in Hell are under God’s will. We can see from this that Asad and Hilali & Khan are more approximate to the meaning of the verse’s Arabic phrasing.

This is clarified in similar verses, such as verse 107 of Surat Hud:

خَالِدِينَ فِيهَا مَا دَامَتِ السَّمَاوَاتُ وَالْأَرْضُ إِلَّا مَا شَاءَ رَبُّكَ ۚ إِنَّ رَبَّكَ فَعَّالٌ لِّمَا يُرِيدُ ﴿١٠٧

Abiding there so long as the heavens and the earth endure save for that which thy Lord willeth. Lo! thy Lord is Doer of what He will. (107)

Therefore all who enter hell are under divine will. and since there is a qualifier for their exit from Hell this would take precedence. What are those qualifiers? Repentance, belief, and good deeds after bad:

وَالَّذِينَ لَا يَدْعُونَ مَعَ اللَّـهِ إِلَـٰهًا آخَرَ وَلَا يَقْتُلُونَ النَّفْسَ الَّتِي حَرَّمَ اللَّـهُ إِلَّا بِالْحَقِّ وَلَا يَزْنُونَ ۚ وَمَن يَفْعَلْ ذَٰلِكَ يَلْقَ أَثَامًا ﴿٦٨﴾ يُضَاعَفْ لَهُ الْعَذَابُ يَوْمَ الْقِيَامَةِ وَيَخْلُدْ فِيهِ مُهَانًا ﴿٦٩﴾ إِلَّا مَن تَابَ وَآمَنَ وَعَمِلَ عَمَلًا صَالِحًا فَأُولَـٰئِكَ يُبَدِّلُ اللَّـهُ سَيِّئَاتِهِمْ حَسَنَاتٍ ۗ وَكَانَ اللَّـهُ غَفُورًا رَّحِيمًا ﴿٧٠﴾

“…who call not upon another god with God, nor slay the soul God has forbidden except by right, neither fornicate, for whosoever does that shall meet the price (68) of sin-doubled shall be the chastisement for him on the Resurrection Day, and he shall dwell therein humbled, (69) save him who repents, and believes, and does righteous work — those, God will change their evil deeds into good deeds, for God is ever All-forgiving, All-compassionate; (70)”

Suicide is a Sin, but is it unforgivable?

So while taking any life, even your own, is a sin, a person that takes their own life is:
1- under God’s will
2- judged as by his/her circumstance
3- not excluded from the community of believers in this life or the next

I think points 1 and 3 have been discussed enough, let’s tackle point 2. 

Being judged by one’s circumstances in the Afterlife, as we said, is ultimately up to God. What is the status of suicide in this life? There are a number of texts to cite as proof of unequivocal indication that suicide is not only impermissible, but that the one who commits it is indelibly a major sinner. One such Hadith is that of Abu Hurayra in Bukhari “Whoever kills himself with a knife then it will remain in his hand killing himself in the fire of Hell. Whoever sips poison, he will sip it…” with several other acts mentioned as well.” This and others that are general in their indications are tempered by 1) the even more general precepts we discussed in point one, 2) the context of these acts in the Hadith literature. We’ll delve into these deeper soon.

First let us look at one last verse about killing that indicates an nuance to the motive for such killing. Then in our next installment we’ll discuss this verse and others in light of the Hadith alluded to above.

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَأْكُلُوا أَمْوَالَكُم بَيْنَكُم بِالْبَاطِلِ إِلَّا أَن تَكُونَ تِجَارَةً عَن تَرَاضٍ مِّنكُمْ ۚ وَلَا تَقْتُلُوا أَنفُسَكُمْ ۚ إِنَّ اللَّـهَ كَانَ بِكُمْ رَحِيمًا ﴿٢٩﴾ وَمَن يَفْعَلْ ذَٰلِكَ عُدْوَانًا وَظُلْمًا فَسَوْفَ نُصْلِيهِ نَارًا ۚ وَكَانَ ذَٰلِكَ عَلَى اللَّـهِ يَسِيرًا ﴿٣٠﴾

O believers, consume not your goods between you in vanity, except there be trading, by your agreeing together. And kill not one another. Surely God is compassionate to you. (29) But whosoever does that in transgression and wrongfully, him We shall certainly roast at a Fire; and that for God is an easy matter. (30)

Verse 29 is an oft-cited evidence of the unconditional sin of suicide. When read with verse 30 however, we can see that the act of killing is conditionalized: whoever does so “in transgression and wrongfully” which indicates motive and premeditation, as this verse wouldn’t be applied to one who was killed accidentally. Ibn Kathīr explains this saying, “One who transgresses what God has forbidden, oppressively, knowing it’s prohibition and audacious in contravening it.” This points to the precept of all sinners being under God’s will that I mentioned before. It also takes into consideration intention in performing an act, even an act as heinous as killing, including one’s self.

 

When is an act of killing “Oppressive, Transgressive” and when is it not? How then do we differentiate between killing/suicide done oppressively and transgressing?

We’ll cover this in our next installment.


Article One: Suicide, God’s Oneness, and Theological Precepts related to suicide.

Article Two: God’s Attributes, The Sin of Killing, & Is Suicide a sin?

Article Three: What Effect Does Sin have on Faith? (This Article)

Article Four: Is Every Suicide a Transgression?

Article Five: Summary and Resources (TBD)

Can a donation made without intention, that turned out to be Zakat eligible, count toward Zakat?

My friend Chris Blauvelt over at Launchgood asks a great question on twitter:

” If you made a donation without intending zakat, but later learned it was zakat eligible, can it count toward zakat? @FarazRabbani @hwmaqbul @joewbradford. Guessing Hanafis/Shafis split like do you have wudu if you accidentally fall in a pool without intention.”

Taking a Dip

Let’s preface this with saying: All scholars agreed that all purely devotional acts of worship must be accompanied by an intention.

While there is a variance of opinion as to whether a person who bathes or swims without the intention of Ghusl/Wudu has done enough to fulfill the requirements for those acts, that doesn’t seem to be the case here. First, why did the majority not allow retroactively considering a jump in the pool to be ghusl? Because for them, the act of Ghusl/Wudu/Tayammum is devotional and as such has no mundane/worldly rationale. For them, this rationale is precisely why tayammum is performed with soil and wiping over socks is made on top of the sock, not the bottom. Hanafi scholars viewed wudu/ghusl as an act that while devotional, was also mundane. However, it was closer to being mundane than devotional, therefore an intention was not an obligation for performing it.

Is Zakat the same as Ghusl with regards to Intention?

So was that logic carried over into the payment of Zakat?

Meaning, if I paid $300 with the intention of general charity, then calculated my zakat later on and it turned out I owed $500, could I get away with just paying $200 more for an even $500? For the Majority, Hanbalis, Malikis, Shafiis, even Zahiris, this is not allowed. Zakat is an act of worship, and must be accompanied by or preceded by an intention to give it as an act of worship.

For Hanafis, the same applies. In al-Qadduri it says:
ولا يجوز أداء الزكاة إلا بينة مقارنة للأداء أو مقارنة لعزل مقدار الواجب
“It is not permitted to give Zakat except with an intention accompanying the act of giving or accompanying the exclusion of the obligatory amount.”

So in this case, there seems to be no difference that one MUST have an intention for Zakat when giving, and you can’t clawback or retroactively designate past amounts unintended for Zakat as a fulfillment of your obligation to give.

What if an Orphan Needs My Help Monthly?

That leads to the question: What if I know there is a constant need for support throughout the year? Can I give a little every month? How can I meet the constant needs of the poor and my need to pay Zakat?

Answer: It is permissible to pre-pay Zakat up to two years, as the Prophet permitted his uncle al-Abbas to do so (Bukhari).
So in this situation, let’s say an orphan needs $50 a month. I make the intention that the $50 I am giving counts towards my Zakat for *next* Ramadan, then, I keep tabs of those amounts I gave with the intention of Zakat. I then add them up. 1 year @ $50 = $600 of Zakat already given. In Ramadan I calculate how much I owe for the past year & deduct any pre-paid amounts. If I’m over the overage is Sadaqa.

And Allah knows best.


Addendum: Sh. Salman Younas provided some detail on this issue, where there is one situation when an intention can be retroactive to the act of giving.

Here is my summary of the Arabic*:

If the intention to give it was made evidently, where the person gave the money to a poor person or an agent without any intention and it has not been utilized by them, then it is ok in the Hanafi school to intend in this case that such money is Zakat. (Haskafi, Ibn Abidin).

I’d caution that in order to fulfill this condition, we’d need relative certainly the money had not been utilized, which may not be possible. If you are going to act on this position, perhaps consult w/ a qualified Hanafi mufti who can advise whether or not your situation fits.

* – Relevant Arabic Texts:

  • Haskafi: ( وشرط صحة أدائها نية مقارنة له ) أي للأداء ( ولو ) كانت المقارنة ( حكما ) كما لو دفع بلا نية ثم نوى والمال قائم في يد الفقير ، أو نوى عند الدفع للوكيل ثم دفع الوكيل بلا نية [ ص: 269 ] أو دفعها لذمي ليدفعها لأن المعتبر للفقراء جاز نية الأمر ولذا لو قال هذا تطوع أو عن كفارتي ثم نواه عن الزكاة قبل دفع الوكيل صح
  • Ibn Abidin:  ( قوله : والمال قائم في يد الفقير ) بخلاف ما إذا نوى بعد هلاكه بحر . وظاهره أن المراد بقيامه في يد الفقير بقاؤه [ ص: 269 ] في ملكه لا اليد الحقيقية ، وأن النية تجزيه مادام في ملك الفقير ، ولو بعد أيام

God’s Attributes: Between Mercy and Wrath – Suicide in Islamic Thought – Part 02

God’s Attributes: Between Mercy and Wrath

Classical discussions on the topic of suicide center not just on the act of suicide, but how this act is related to the divine attributes of mercy, punishment, and forgiveness. The texts related to these attributes are multifaceted and their interpretations must be contextualized and tempered through a holistic reading.

God describes himself in sacred texts as having “beautiful names, so call upon him using them.” These names impart divine attributes, qualities and characteristics which He has described Himself by. They inform us of how God himself views our actions and how He will hold us accountable for them. God describes himself as Merciful, Kind, and Loving. He also describes himself as Judge, Wrathful, and Retributing.

How then do we reconcile these seemingly contradictory attributes? How can God be Merciful and Kind, while Wrathful and Severe in punishment? In the Quran 7:156 God states: “My chastisement — I smite with it whom I will; and My mercy embraces all things, and I shall prescribe it for those who are God-fearing and pay the alms, and those who indeed believe in Our signs… (156).” So while God is Merciful and His mercy embraces all things, He still punishes his servants for their transgressions. He exacts justice from wrongdoers on behalf of those who’ve been wronged. This act is done within the embrace of His mercy.  To treat all – sinner and saint – the same, would not be just or merciful.

In a hadith related by al-Bukhari in his Sahih, the Prophet said “When God ordained creation, He wrote with Him above the throne: My mercy outstrips my wrath” In Surat al-Zumar 39:53 God says: “O my servants who have been excessive against themselves, do not despair from God’s mercy. God forgives all sins.” Al-Bukhari (#4810) relates Ibn ‘Abbas as saying that a group of polytheists came to the Prophet, having committed excessive murder and fornication. They said to Muhammad “What you say and call to is good, if you can inform us of an expiation for our actions.” This verse was then revealed “…those who call not upon another god with God, nor slay the soul God has forbidden except by right, neither fornicate, for whosoever does that shall meet the price…(68) ” (al-Furqan 25:68) as well as this verse “O my servants who have been excessive against themselves, do not despair from God’s mercy. God forgives all sins.” (Zumar 39:53)

These as well as other texts indicate that the primary objective of Islamic theology, and thus its law, is the actualization of compassion and grace coupled with necessary penance and penalty. The byproduct of these two being justice in both clemency and correction. Thus, an individual seeks forgiveness and hopes for mercy, while being persuaded to repent and admit responsibility when having committed a wrong. God embraces all in mercy, punishes whom He wills, and relegates by His will those He wishes to reward. Thus a function of God’s mercy and a manifestation of it is His taking those who have committed some wrong to account. Whether they are punished or forgiven however is another issue.

The Sin of Killing

Killing another soul is a deadly sin, likened to killing all of humanity.  “Therefore We prescribed for the Children of Israel that whoso slays a soul not to retaliate for a soul slain, nor for corruption done in the land, shall be as if he had slain mankind altogether; and whoso gives life to a soul, shall be as if he ha given life to mankind altogether. Our Messengers have already come to them with the clear signs; then many of them thereafter commit excesses in the earth.” (Quran 5:32) and His statement, “And slay not the soul God has forbidden, except by right.” (Quran 17:33) as well as “And whoso slays a believer wilfully, his recompense is Hellfire, therein dwelling forever, and God will be wroth with him and will curse him, and prepare for him a mighty chastisement.” (4:93) In Bukhari and Muslim the Prophet said, “Beware of the seven deadly sins… killing a soul God has forbidden except by right.” In another hadith found in al-Nasa’i, “The cessation of this world is easier in God’s sight then the killing of a Muslim person.”

Commenting on these verses, al-Razi says in Mafatih al-Ghayb (20/336), “As for killing, it is a form of eradication after existence… the prohibition of killing then refers back to the prohibition of eliminating life.” While these words may sounds like al-Razi is saying something as obvious as “Water is wet” in reality he’s trying to drill down on the sin of killing. Killing isn’t sinful simply because it was forbidden. Killing is sinful because it destroys life and eliminates it from existence, something that only God has the right to do “and that it is He who makes to die, and that makes to live.” (Quran 53:44)

So if eliminating life is a sin, does this apply to killing one’s self?

Does this Apply to One’s Own Soul?

In Surat al-Nisa, verses 29-30 “And kill not yourselves. Surely God is compassionate to you. But whosoever does that in transgression and wrongfully, him We shall certainly roast at a Fire; and that for God is an easy matter.”

The phrase in the verse “kill not yourselves” and those similar to it in the Quran like “Do not spill your blood…” (Quran 2:84) can be interpreted in one of three ways (al-Zarkashi, al-Bahr al-Muhit, 1/465):

  1. One of you should not kill another, the killer and killed being different.
  2. Do not do things that would obligate your execution, by killing others, committing Zina, or terrorizing the populace,
  3. One of you should not kill himself.

Al-Shatibi says “Stringent warnings have been issued against one that kills himself. Likewise, drinking wine was forbidden due to its effect on one’s mental capacity and how it removes one’s cognizance for a time; how much worse then is someone who removes it outright and permanently?” He then says “Maintaining sanctity of life, mind, and body is a right belonging to God over his servants, not one of theirs. The fact that these things were not left up to their choice is evidence of this. So when God Most High has granted his servant life, mind, and body by which he is able to fulfill that required of him, it is then impermissible for him to eliminate them.” (al-Muwafaqat 3/102)

Therefore killing oneself is an act which is a sin, a major sin at that. However, does the commission of an act of sin necessitate one be sinful in all cases? And when one sins, is that sin unforgivable? In other words, if a person were to die by suicide, does that mean they’ve committed a major sin in all cases? Or that if they did they are not worthy of prayers, forgiveness, and compassion?

These are the questions we’ll explore in part 3.


Article One: Suicide, God’s Oneness, and Theological Precepts related to suicide.

Article Two: God’s Attributes, The Sin of Killing, & Is Suicide a sin? (This Article)

Article Three: What Effect Does Sin have on Faith?

Article Four: Is Every Suicide a Transgression?

Article Five: Summary and Resources (TBD)

Suicide in Islamic Thought – Part 01

New Article Series: Suicide in Islamic Thought.

Through this series of articles, we’ll explore the theology, law, and treatment of suicide ideation. The goals of this article series are stated below, and I’ll be releasing one article a week until the series is finished.

I hope to hear your feedback.


Denial is the worst kind of lie…

It’s been said: “Denial is the worst kind of lie… Because it is the lie you tell yourself.” One of those things that there is summary denial of in many communities, Muslims included, is the occurrence of suicide and suicidal tendencies. Suicide is one of those topics that is paradoxically treated as the ultimate taboo, only spoken of with a hushed voice and bated breath, and yet summarily condemned with the most righteous of indignation. Statistics confirm that suicide is much more prevalent than we would like to admit, and suicidal tendencies and thoughts even more so. Despite the statistics, most are in denial about its occurrence; “that” doesn’t happen to “us”, it is something “those” people have to deal with.

The often dry, distant tone used for sensitive topics like suicide can be quite off-putting. Theological and legal studies can come off as monochromatic in approach, leaving the reader with a feeling of despair or detachment. Let me preface this paper with some empathy. Not only have I studied and researched this topic, but it is one that has and continues to affect my life personally. I find it necessary to state this clearly in the beginning.

Some of what I will mention below may seem dry and legalistic. It may seem monochromatic and flat. I want to ensure those of you that are suicide-loss survivors, that I am very familiar with the emotional toll these issues take, as I am one of you. This article will not deal only with how Muslim theologians and jurists dealt with the topic of suicide, but how community workers and individuals can handle situations ranging from counseling someone with suicidal thoughts to handling the emotional fall-out of a love one performing suicide. Perhaps I will write another article about my personal experiences with this, but for now I will simply be laying out the issues alluded to above.

For those of you that have not been tested with these emotions, please rest assured that my research on this topic began well before I had to experience such a situation myself. Despite having known much of what I will mention below, as a suicide-loss survivor the pain was not deadened in any way and the hardship did not abate any faster when it happened. What I present below is a culmination of my research on this topic, and not an emotionally charged screed informed by my personal experiences. My hope is that those who read this who have not had to go through such an experience will grasp the nuance that surrounds the subject in Islamic thought and benefit from the resources provided at the end to help others. For those of you who have had to deal with it, I want you to know that you are not alone, and that there is always help available.

 

First Order Theological Precepts

God’s Oneness

The first and most important principle of faith is that God is One. He is the ultimate reality, and everything else is dependent upon him for their reality. This principle is certainly reiterated over and over throughout the Quran. Perhaps the most oft-cited verse about the oneness of God is Quran 51:56-58 “I have not created jinn and mankind except to serve Me. (56) I desire of them no provision, neither do I desire that they should feed Me. (57) Surely God is the All-provider, the Possessor of Strength, the Ever-Sure. (58)”

Because God’s oneness (Tawhīd) is so central to Islamic thought it is important to frame any discussion within its parameters. What benefit is there in discussing right and wrong, righteousness and sin, heaven and hell, if these concepts are not related back to some form of accountability? What good is any concept of accountability if not connected to some motive for holding oneself and others accountable? Of being accountable to someone or something? As Muslims then, we believe we are accountable to God for our actions. Both the things we do and those we do not do fall under the rubric of what God has permitted and forbidden, and as such we will be held accountable for our action or inaction in relation to that. If we truly see ourselves as accountable and socially responsible, then there must also be some underlying belief as to why we must be responsible as well. For the believer, this points back to the esteem and reverence held in heart for God’s commands. Ultimately it situates us within God’s creation as those He created to serve Him. Our religious well-being vis-à-vis our belief in God necessitates some amount of social responsibility.


Article One: Suicide, God’s Oneness, and Theological Precepts related to suicide. (This Article)

Article Two: God’s Attributes, The Sin of Killing, & Is Suicide a sin?

Article Three: What Effect Does Sin have on Faith?

Article Four: Is Every Suicide a Transgression?

Article Five: Summary and Resources (TBD)

Question: Can we buy and sell gift cards for more or less than face value?

A questioner writes asking: “What is the Islamic legal characterization (fiqhi takyeef) of a gift card? Do the rulings (Ahkam) of currency exchange apply to a gift card? Ex: Can i sell 100 dollar gift card for 90? Would that be impermissible because of inequality?”


This is a great question.

To understand the answer, we first have to understand that there are different ways in which gift cards were characterized, based on the information available to scholars at the time they were asked. To understand this question as well, I find it necessary to mention that the characterization of gift cards under Islamic law is contingent on the statutes and regulations that dictate how they are issued. Because I am a resident of the United States, my answer and the opinion I hold below is only applicable to the United States. I say that, because other countries and regulatory systems may differ. For more information on the relevant state laws on this topic, see this link:
http://www.ncsl.org/research/financial-services-and-commerce/gift-cards-and-certificates-statutes-and-legis.aspx

The three general characterizations of gift cards:

Below I mention the three general responsa to how gift cards are characterized. One characterizes them as a loan, the second as same-as-cash, and the third characterizes them as either same-as-cash or representative of a good or service, depending on the issuer.

1- First legal characterization: That it is money that you are loaning the issuer. This would mean purchasing a gift card for less than the face value would be impermissible, as that would entail the creditor (in this case the purchaser) benefiting from the difference between his loan ($90) and the face value of the card ($100). This would be haram.

2- Second legal characterization: That a gift card is same as cash, and the amount is simply held for the card holder to use at another date. In this case, selling the value of the card for the same currency that it was issued in would not be allowed, as the rules of currency exhange would apply here.

3- Third legal characterization: Gift cards are of two types:
A- certificates that are honored upon presentation by multiple, unaffiliated sellers for redemption of their cash value. These are generally issued by financial institutions and functions as a electronic payment device for the cash value that, depending on the card that be re-used and re-loaded on a pre-paid basis. These are many times called “General-use prepaid cards” legally even if the marketing material connected to them call them “gift cards.” These cards take the ruling of same as cash, and so should be traded at par value when purchased with the same currency they were bought with.

B- certificates that are honored upon presentation by the single merchant or affiliated group of merchants for goods or services. This purchase of this card creates an obligation on or a promise from a merchant or group of merchants to provide goods or services at a future date. These cards represent the obligation to provide goods and services up to the cash value originally purchased, but are not in themselves same as cash. Merchant(s) who issues these cards are not obligated to redeem them for cash unless they are of negligible amount, usually $10 or less.
This means that such a card represents a good or service provided by the merchant, and therefore is a good in and of itself. Because of that, it is permissible to buy them for less than face value and sell them for more than face value, as they do not represent an electronic means of purchase which is same as cash.

My Opinion on This Matter

It is my opinion that the third approach above is the closest to the reality of how gift cards work. If they are pre-paid and issued by a financial institution then they same-as-cash. This means you cannot buy or sell them for the same currency they represent, $90 USD for a $100 card would not be allowed as this constitutes Riba, which is forbidden. If you purchased a $100 CAD gift card for $90 USD, this would be allowed as long as it is a spot transaction.

If the card is issued by a merchant or merchants for good and services they offer, then it is in of itself a good to be bought or sold, and therefore you can buy it for less than face value ($100 USD card for $90 USD, for example) and less it for more than face value ($100 USD card for $110 USD.)

This differentiation takes into consideration how and why these cards are issued and how they function as well as the relevant Islamic legal principles that guide those realities.

And God knows best.

Rulings on Gift Cards under Islamic Law

Two Men Enter: Arbitration, Reconciliation, and What Can Be Kept Out of Court

In this article we explore two forms of dispute resolution, arbitration and reconciliation, under Islamic law. This is a follow up to two previous articles where we discussed defamation as a case brought to court, as well as how Islamic courts operate. There will be two more followups to this article, inshallah that you can read about at the end.

In this article:
– Where arbitration sits in Islamic legal hierarchy
– Defining Arbitration
– The differences between arbitration and adjudication
– What subject matter is valid for arbitration
– How do you “do” arbitration?
– Two People Enter: Reconciliation as Dispute resolution
– Why this is important?

Where Arbitration Sits in the Islamic Legal Hierarchy

In the previous article we set out that the ultimate authority for resolving disputes rests with the courts. This is due to the function that courts fulfill and the authority by which they derive their power. Courts, and by that in Medieval Islamic law we mean Judges, derive their authority from appointment by the sovereign ruler. This fact is so well documented throughout Islamic legal texts that it is almost an exercise in futility to reference. That groups of citizens cannot band together and appoint their own judges seems to be a no-brainer. Had that been permitted, it would be ultimately result in chaos. Who from amongst would not want his own personal judge that can decide issues the way he desires? For the sake of social harmony and to emphasize the importance of social cohesion and unified political will, appointing a ruling government is a prerequisite to appointing judges. This will be apparent from the various references I mention in the coming paragraphs.

Judges derive their authority from the state and as such have the power to compel action from those called to court, regardless of their agreement to or not. Arbitration on the other hand derives its authority from two sources. Before a ruling is issued by an arbiter, it derives its authority from the private agreement of two sane adults to enter into an arbitration agreement. After a ruling is issued, the authority to enforce that ruling lies with the courts. We’ll talk about this more under arbitration procedure.

 

Defining Arbitration

Perhaps one of the more comprehensive definitions of arbitration occurs in the Mejelle, a 19th century Ottoman civil code that codified Hanafi law: “Arbitration is the taking of an arbiter by the litigants after their agreement for him to decide a dispute between them and answer their complaint.” [1/365] Almost all other definitions of Arbitration fall under this one, with some of them mentioning that the Arbitrator must hold the qualifications of a judge in order to preside over an arbitration hearing.

 

The Differences Between Arbitration and Adjudication

There are several differences between adjudication and arbitration:

  • Judges are state appointed, Arbitrators are appointed by a private contract.
  • Adjudication does not rely on the agreements of the litigants while Arbitration does, until a decision is issued.
  • Courts may cover almost any subject matter presented to it, arbiters may only cover subject matter that relates to private agreements between adults. This will be covered in detail later.
  • Arbitration is a private contract, Adjudication is a public service.
  • A judicial decision is irrevocable, while an Arbitrator’s decision is subject to review and revocation if reviewed by a judge and found to be invalid or illegal. [Ibn al-Simnani, #120]

There are several others, but I’ll suffice with this for now for sake of brevity.

 

What Subject Matter is Valid for Arbitration

Arbitration is a subsidiary of Adjudication, “as it is an appointment made by individuals, branching off of Adjudication, related to financial dealings, not Hudud punishments, Li’an, and Qisas.” [Ibn Farhoun 1/17]

Its important to note here that not all Jurist accepted the validity of Arbitration. In fact, Ibn Hazm of the Zahiri school, implies arbitration in the presence of a court in invalid, as it encroaches on the right of the judge to resolve disputes. [9/435] This is also one opinion in the Shafi’ school [al-Hawi 15/325] This is a minority opinion.

The majority allow arbitration but restrict it to certain subject matter. They usually do this by enumerating what cannot be arbitrated on. For example, the Malikis enumerate seven subjects that may be not be arbitrated: Hudud, Li’an, killing, allegiances, lineage, divorce, and manumission. Dardir comments saying: “Arbitration is not allowed in any one of these seven subjects, as they relate to 3rd party rights other than the two litigants; either a right of God’s or a right of man’s. [The rights of Man are things such] as in Li’an, allegiance, and lineage. As for Hudud, killing, manumission, and divorce, then these are God’s rights. As for Hudud, these deterrents are God’s right. AS for Divorced women, then it is impermissible for her to remain in her husband’s care; and it is impermissible to return a slave to slavery as this is God’s right.” [Al-Sharh al-Kabir, 4/136]

In the Shafi’ school, when explaining Nawawi’s legal text al-Minhaj “If two litigants arbitrate to a man about other than hudud punishments this is permissible…”  al-Shirbeeni says: “Note: ‘litigants’ here is in reference to a dispute, but is unintended, as arbitration applies to marriage. Had he [i.e. al-Nawawi] said ‘two parties’ instead it would have been better. Him saying ‘in other than Hudud punishments’ is a necessary addition to the Muharrar [another Shafi’ legal compendium] as Arbitration is not valid in [Hudud]. Had he said ‘In other than a punishment for God’s sake’ so as to include discretionary punishments it would have been better, as they are like Hudud punishment in this regards.” [Mughni al-Muhtaj 6/267]

While the Hanabilah, in one opinion in the school, did allow crime and punishment to be arbitrated on it is important to note that like the other canonical schools they stipulated that the Arbitrator carry the exact same qualifications as a judge and that the punishment decided on be forwarded to the state to implement. In fact, Ibn Rajab mentioned this qualifier expressly as the opinion of Ibn Aqeel and Ibn Taymiyah. Ibn Rajab explains “His decision is applied after review and concurrence by a judge… and it is appropriate that they [the Arbitrator and the counter-party] testify in court that he [the sentenced party] agreed to this arrangement before the decision was rendered so that he may not deny this later on. If however he rescinds his agreement to the arbitration before this case is presented to the judge, this is permitted.” [al-Mubdi 8/160] Al-Buhuti reiterates these conditions as well in Sharh al-Muntaha.

This opinion in the Hanbali school, namely the applicability of Arbitration to Hudud Punishments, comes with a few caveats. First, it should only be decided by one qualified to be a judge. Second, it is subject to judicial review before application, as personal application of a Hadd punishment is a form of sedition. Third, the parties have the right to rescind their agreement to the arbitration at any time after the arbitration ruling is issued and before the Judge issues his.

This minority opinion, if taken on face value and applied, would lead to sedition and chaos, and sedition is punishable in its own right. [Sharh al-Muntaha 3/337]  It would seem that while jurists of the Hanbali school were trying to reconcile various evidences and broad statements made by their Imam, by doing so they created a legal knot that becomes difficult to untie. In fact, navigating these details seems almost impossible without creating mass inefficiencies and social harm.

This outsourcing of judicial responsibility was unique to the Ḥanbalī school, but is only one opinion within the school. The second opinion agrees with the Majority in part but is more restrictive. According to this second opinion, Arbitration can only be applied to financial disputes. Ibn Rajab comments on this saying, “…this is another narration that is related in al-Furu’ and other works. It is an easier opinion, and therefore should be summarily applied.” This is no doubt the correct opinion on this matter in the Hanbali school and agrees with another opinion in the Shafi’ school. [Ibn al-Simnani, #122 ]

Similar opinions to all the above are found among Hanafis [al-Marghinani 3/108, al-Babarti 7/318, and others].

If we were to summarize the opinions above to present a holistic principle that can be relied on for deciding what can and cannot be arbitrated on we could say: “Arbitration is permissible in all private agreements between consenting adults, to the exclusion of all 3rd party rights whether private or public.” This would effectively make arbitration applicable to subjects like business transactions and marriage, but not to things like divorce, child custody, criminal law (whether hudud or discretionary), and issues of public welfare.

Ibn Farhoun summarizes this logic by saying “Such issues are excluded from this topic as they necessitate the affirmation or negation of a ruling from other than the two parties, third parties who did not agree to the decision of this arbitrator.”  [1/62]

 

How do you “do” Arbitration?

Arbitration procedure is no different than the judicial procedure we mentioned in the last article, with a few procedural additions. The disputing parties must first agree to qualified arbitrator(s) who will preside over their dispute. Like all contracts, it is preferable to be drafted in written form and signed. This allows each party to compel the other to perform, i.e. to do what the arbitration decision spells out, by a judge’s decision in the instance when personal morality and ethics is not strong enough within a person to act as a natural deterrent from repugnant behavior, in this case breach of contract.

 

Reconciliation: Two Enter, Two Leave

Reconciliation is another form of dispute resolution subordinate in status to both arbitration and adjudication. The Prophet expressly permitted reconciliation when he said “Reconciliation is permitted between Muslims, expect for that which permits the forbidden or forbids the permissible.” [Tirmidhi, #1352]

Reconciliation is defined as “a contract that removes disputes by mutual consideration.” [Mejelle #1531] All other legal schools mention a similar definition. What this means is that reconciliation, while it may be supervised by a 3rd party, it does not derive its authority from that 3rd party. Likewise, the decision rendered is not made by the 3rd party. Instead, two people agree to resolve their disputes, documenting that agreement. If and when that agreement is violated, they have the right to pursue other methods of dispute resolution, namely arbitration and adjudication.

One indication of this subordinate status is that Reconciliation is mentioned almost universally under transactions (Buyu’) as it is a private agreement between two people. They may decide to reconcile their dispute after concurring with the issue at hand, called al-Sulh ma’ al-Iqrar or Amicable Reconciliation, and thus amicably end their dispute. They may on the other hand not want to cede to the opposite party that they are correct or have a right over the things they dispute, but agree to end the dispute nonetheless and not revisit the issue. This is known as al-Sulh ma’ al-Inkar or Disputed reconciliation.

This private agreement however is not unrestricted. Jurists gave examples as to what sorts of actions are invalid forms of reconciliation. For example, if a person were to agree to be another’s slave this would be invalid. Likewise, if a man and woman were to have a dispute and she agreed to having been his wife in exchange for a financial award, this too would be invalid. [al-Salman P158-159] Ashhab of the Maliki school gives us a convenient maxim by which we can determine what sorts of subject are valid for reconciliation. He says: “The definition of what reconciliation is not permitted in is: anything in which it is unpermitted to pardon someone of doing such as theft or adultery. Those things in which one may pardon a person are allowed to be reconciled.” [Ibn Farhoun 2/49] Ibn al-Simnani mentions similar when he says: “It is impermissible to reconcile over Hudud punishments as these God’s rights.” [#5172]

Additionally, things that are 3rd party rights, whether public or private, are not valid for reconciliation. “The fundamental principle here being that transacting on a 3rd party right is not permitted; if a man were to take a fornicator, thief, or drunkard and attempt to deliver him to court, and instead this person reconciled with him [the man] to pay him in order to leave him alone the reconciliation would be false.” [alBabarti 8/418]

Note that the stipulations that we discussed in detail under arbitration are almost the same as reconciliation. Things which are personal disputes between consenting adults can be reconciled. Crimes and 3rd party rights may not. More references on this certainly are available, however the point here is to illustrate to you what the boundaries of acceptable reconciliation are.

 

Why is All This Important?

Understand that reconciliation is subordinate to arbitration, and that both are subordinate to court decisions, helps us understand what sort of issue we are allowed to resolve on our own or with the help of an independent 3rd party. It also illustrates for us the sort of issues that are grave enough to necessitate we take them to court, instead of subjecting ourselves and others to unnecessary prolonged disputes that only muddy the already murky waters of unethical acts or criminal behavior.

While other than the courts may be cheaper and faster, it’s important to remember that under Islamic law some disputes cannot be arbitrated or reconciled. They must be taken to court. Take for example if a person is alleging that another party abused them, this is a criminal offense and it cannot go to arbitration or reconciliation. Some Muslims will then say well what am I supposed to do in this situation? I don’t want to go to the courts because I’m afraid, they will not understand the case or that there will be some type of blowback on the community because of this or that I’ll be doing something wrong ethically or morally as a Muslim.

The answer is you are NOT in between a rock and a hard place. It is permissible for you and maybe a moral obligation on you to go to the courts when there is a fear of greater harm from not doing so. There are several precedents under Islamic law to support this position regardless of who the courts are being run by

I will cover these situations in a follow-up article in this series, but first there’s another topic that needs discussing: The differences between crime, sin, unethical behavior, lack of integrity, and things running contrary to custom.

I hope to have these done within the next two weeks.

Two in Hell, One in Heaven: Dispute Resolution in Islamic Law

In this Article:
– Who has the authority to resolve disputes
– A Judge’s Skills and Qualification
– Which Issues does a judge decide?
– What is a court case?
– Evidence and how we identify it
– Conflicts of Interest
– Why this stuff is important

Two in Hell, One in Heaven:

Assuming the position of judge (qadi) was one that many early Muslim jurists would actively avoid. In one Prophetic tradition, Prophet Muhammad is reported to have said:

“Judges are three – two in hell, one in heaven: A man who judges by other than truth knowingly then he is in hell, A judge who is ignorant so he destroys people’s rights then he is in hell, and a judge who rules according to truth then he is in heaven.” [Tirmidhi #1322]

Because of this and other sacred texts like it, an entire genre of work titled “Judicial Protocol” developed to explain how judges are appointed, how they make decisions, and how this topic relates to other forms of dispute resolution.  In a previous article, I discussed a specific type of case, that of defamation. To understand better how cases are resolved, and eventually how they are resolved in non-Islamic courts or through alternative dispute resolution (like arbitration) I’ve decided to write a series of articles to expand on the ideas alluded to in that first article. This is not meant to be an exhaustive survey of all the ideas presented here. My intention is to give the reader enough to pique their interest and show some of the complexity associated with this topic.

Hierarchy and Authority to Resolve Disputes

It is important to understand the hierarchy of authority and power to resolve disputes. Courts are at the top of this hierarchy. They are the absolute highest authority in deciding matters under Islamic law. Appointed by the government for this purpose, their rulings apply to all citizens, even those in positions of power. Subordinate to the courts in power are Arbitration tribunals, who have no power to compel that a ruling they issue be followed; instead they must rely on the courts for that.

Additionally, the subject-matter they can issue decisions on is limited in scope. Reconciliation, the agreement of two people to settle a matter among themselves, is even more limited as we will see. We’ll cover more on that later, and include some notes about Fatwa as well, but for now let’s talk about how a judge’s decisions are made. I’ve tried here to reference the concepts outlined here, and with time will improve upon this write-up.

Courts and Court Authority

The Qāḍī’s basic function is to resolve disputes and allocate rights to litigants.” Unlike the Faqīh or the Muftī, the Qāḍī retains not only the power to interpret and express what the law is, but the authority to order it be applied by the executive authority who appointed him to specific cases that effect the lives of the parties to the case.

In order to be appointed, the candidate for a judicial position had to possess be a free Muslim of legal capacity, be of sound mind, and possess high moral probity (ʿAdāla). Gender was an issue debated as well, with most early jurists making it a condition, while the like of Abu Hanifa, al-Tabari, and Ibn Hazm disagreed. These debates rely heavily on medieval concepts of women’s access to education as well as the population’s overall literacy at that time. In the opinion of this author, the arguments of those in favor of female judges are perhaps stronger and more universal.

If there was one qualification that all jurists spent the most time discussing, it was a judge’s moral probity. Known in Arabic as ʿAdāla, it is a condition of general ethical conduct and virtue both before and after appointment. Any lapses in this area were possibly impeachable offenses and may initiate review and retrial of a judge’s cases. Lastly, a prospective judge must possess certain intellectual qualifications, such as intelligence and sufficient juristic acumen (some stipulating he reach the level of Ijtihād). I have written in more detail about these qualifications elsewhere. [academia.edu]

Additionally, a judge must possess certain vocational skills in order to be successful and maintain the high moral probity and virtue stipulated before. He must comprehend the substantive rulings related to the case at hand. This relates to the intellectual qualifications mentioned previously. Knowledge of Sacred texts, substantive rulings and maxims derived from them, and case law on the topic are all a must in order to issue a decision properly. Likewise, the judge must comprehend legal procedure. Some have said that this skill is the key to just and equitable rulings and is more important than detailed knowledge of the substantive rulings. Sa’id b. al-Musayyib (d.93), student of Ibn ‘Abbas, is reported to have said “Whoever can distinguish the plaintiff from the defendant has understood proper adjudication.” [al-Qarafi, 7/289] Procedure is important simply because without it the process of pursuing one’s rights would be chaotic.

Another skill essential to proficient and just legal proceedings is the Judge’s ability to form his opinion properly based on evidence, rulings, and precedents is of utmost importance. Yet merely understanding legal rulings and rules doesn’t make one a judge. He must be able to comprehend the case before him and its facts, separate those pertinent to issue a ruling from those that are not, and relate those facts back to his ruling. Lastly, the ability to communicate his ruling effectively and draft an opinion that lays all of this out for the parties involved is a must. [Ibn Khunayn, 20] Think of these skills like a chain, when one link is missing nothing will connect.

Judicial Appointment

The appointment of a Qāḍī is considered to be a collective duty on the populace of any particular area, with one caveat: the presence of a legitimate and sovereign Muslim ruler (Imam or Sultan). The right to appoint and dismiss judges is his sole duty.[al-Hawi 7/16] In the absence of a sovereign Muslim ruler, the populace has no choice but to use the courts available to them for disputes, to organize their affairs and self-govern, or to arbitrate those disputes among themselves. [al-Juwaini, 459, 467] If any group of people could appoint a judge for any and all personal disputes, we’d find judges on every street corner all ready to uphold our personal truths. This would lead to chaos and the further breakdown of civic order and public welfare, which are the mainstays of all worldly blessings. [al-Juwaini, 311]

What sort of Issues can a Judge Decide?

The Prophetic tradition states “Evidence is the onus of the plaintiff, and an oath is due from the defendant.”  In the classic period most any complaint or case could be brought to the Qāḍī’s court. The traditional Islamic court is for the most part adversarial, while other administrative courts were inquisitorial. The burden of discovery in classical works is the responsibility of both parties, yet falls primarily on the plaintiff as they are the party initiating a claim based on the hadith above.

For a judge to adjudicate, there must be a reason that merits the case be heard. [Ibn Humam 7/143]

A plaintiff may have reason to claim a specific right in court. This right may be a personal claim, such as property damage, personal injury, or the violation of a contract. A second type of claim, not associated solely with a personal right but are connected to public order and welfare, are those that mandate a Ḥadd punishment or are claims solely for the public welfare, such claims of general malpractice against state officials. Lastly, there are personal claims that are not rights in and of themselves, but confer rights when decided. An example of this is a claim to inheritance. After a probate court discovers cause, it can confer a right to inheritance which prior to discovery and ruling did not exist.

Components of a Complaint

As alluded to in the previous article the nature of a complaint, the claims made, and who they are made to can make or break a case. If a person takes their grievances to the wrong forum, not only can this result in their rights not being secured, but can empower the guilty to escape justice by making counter-claims publicly. This complicates the ability to hear such as case, as it only adds to the amount of information that a judge must sift through in order to ascertain the facts and rule on it.

So what makes up a case under Islamic law? Medieval jurists defined a case in various ways. For example, Hanafi scholars presented a very minimalist definition. They said “A complaint is a statement accepted from a person present in court with the purpose of securing his or who he represents right.” [Badai’ 6/222] Other medieval jurists did not present as clear of a definition of a case as the previous one, but in general there are several components that must be present for the case to be valid. There must be a plaintiff, a defendant, a cause for action, and a demand for relief. Some add that a judge or court be specified, essentially meaning that jurisdiction should be proven for the case to be heard. [alArjani, p.32]

In order for a complaint to be valid in court, there are certain conditions that must be met. The claims made in the complaint must be ascertainable, specific, and enforceable after answered by the defendant, replied to by the plaintiff, and evidenced at trial. [Samarqandi, 3/181, Ibn Farhoun 1/108] There are many other details related to the nature of a complaint presented at court that I’ve left out here for brevity.

What is Evidence and How is it Identified?

If a person claims that X happened, they would be tasked presenting the testimony of an acceptable witness or some other form of evidence that would support their case. Evidence may be direct, corroborating, or circumstantial. In order for evidence (Arabic: bayyina) to be admissible, it must be related to one of the three causes mentioned in “Judicable issues” above. The process of discovery in Islamic courts, where evidence is presented to support the case, begins after the initial complaint in court. The judge will ascertain who the plaintiffs and defendants are, the nature of the claims involved, then request evidence be presented to the court. Although I mentioned that traditional Islamic courts are mostly adversarial in nature, acting as referees between the plaintiff and defendant, they are at times inquisitorial as well. Judges will actively investigate the facts of the case, question plaintiffs, defendant, and witnesses, as well as probe the evidence presented. In that sense, they are more of a hybrid of both types of systems.

The mainstay of direct evidence, as detailed by most scholars of the canonical Madhāhib, is testimony (Shahāda). This is followed by confession (Iqrār), then an oath (Yamīn) taken from one of the two parties. So, for example, a man’s shop was robbed and he produced witnesses that could identify the robbers, this would be admissible and used by the judge to rule against the defendant, if the defendant is unable to mount a convincing defense absolving himself from the accusation or discrediting the witness’ testimony. If the defendant confessed, this would obviously be admissible. If the plaintiff makes a claim but is unable to produce evidence of any type, then the defendant is requested to go on record denying those claims and the case is dismissed. If the defendant refuses to go under oath, then the judge may require the plaintiff to take an oath to the veracity of their claims, and may judge in favor of them in that case or demanding other forms of indirect and corroborating evidence to come to a conclusion. [alArjani, 49]

The admissibility of corroborating evidence is a topic of great discussion amongst jurists. Forensic evidence, DNA tests, expert witness, and similar are all examples of this. If a plaintiff claimed their shop was robbed yet could not produce any direct witnesses to the act, they could still present camera footage, call an expert witness to determine the identity of the people in the footage, or present DNA evidence collected from the scene. This form of evidence plays a prominent role in delineating the meanings and circumstances disputed between the two parties.

While the majority of early scholars limited their discussions of evidence to either direct evidence or corroborating evidence, the 8th century Ḥanbali jurist Ibn al-Qayyim asserted that evidence (al-bayyina) is a wide-ranging term used for anything which uncovers and highlights an underlying right. This is not limited to one, two, or four witnesses, nor to the other types of evidence such as confessions and oaths mentioned previously. Instead, it includes circumstantial evidence (qarina) as well. In our last example of a shop being robbed, a timeline of events could be created to present the plausibility of the plaintiff’s claims.

Ibn al-Qayyim states that to not admit circumstantial evidence would be a travesty of justice. He also reiterates that to rely solely on it would be cause for corruption and transgression. Modern Islamic courts all seem to gravitate towards the broader opinion of Ibn al-Qayyim, allowing circumstantial evidence as long as the inference created by it is not too weak to help decide the case. [al-Turuq al-Hukmiyyah]

Conflicts of Interest

A judge may use his personal knowledge of a case if and when this knowledge is obtained through court proceedings. [Ibn Rushd, 2/470] Personal opinions and information obtained outside of the judicial procedure are considered inadmissible and should be disregarded by the judge, otherwise judges must recuse themselves. If the judge has a personal connection to one of the parties to the case, such as a previous business dealing, friendship, or similar they too must also recuse themselves, as this is a conflict of interest and poses a huge ethical dilemma with regards to the judge’s impartiality and fairness. [Ibn Farhoun 2/245, Ibn Abd’l-Salam 1/37, al-Buhuti 4/197, Illish 4/198]

Why is This Stuff Important?

Why is it important to understand the conditions, qualifications, and skills of a judge under Islamic law? Why study the components of a valid complaint brought to court or the procedure that should be followed? This may not be relevant to the average everyday person. It is important however for community leaders to be familiar with because all the information here relates directly to the qualifications, skills, and procedures for arbitration, mediation, and reconciliation.

 

Next: Arbitration and Arbitrability

To Make A Fair Show In the Flesh: Defamation under Islamic Law & the Dangers of Ambiguity

In this Article:
– The Purpose of Legal Deterrents
– Mandatory vs. Discretionary Penalties
– Slander: Express or Metaphorical
– Defamation of Character and Damage to Reputation
– What constitutes defamation under Islamic law?
– The Burden of Proof and Personal Dignity
– Why ambiguous accusations are counter-productive

“Punishment is now unfashionable… because it creates moral distinctions among men, which, to the democratic mind, are odious. We prefer a meaningless collective guilt to a meaningful individual responsibility.”
~ Thomas Szasz

Penalties and punishments are legislated under Islamic Law for several reasons, one of those being rectifying the human condition. Far from demanding blood-lust, they serve two main purposes. First, they satisfy the desire for justice that is innate to human nature. Second, and more importantly, they instill a sense of individual responsibility for one’s actions in the minds and hearts of responsible, sane adults. Punishments, for those who are not directly affected by a crime and have not committed one, can act as deterrents to crime and immorality as well.

“God deters with the Sultan…”

Within Islamic legal theory, deterrents fall under one of three categories. They may be natural, i.e. things in your conscience that prevent you from doing publicly what is generally known and accepted as immoral or unjust. For example: Fornicating in the middle of the street is an act that is an immoral act in and of itself. People fornicate all the time privately. And while they may feel immense shame afterwards, they generally would never repeat such an act in public. This innate sense of shame is a natural deterrent to immorality and crime.

Another form of deterrent is those measures by which the state dissuades the public from things which harm the common good. “God deters through the Sultan the one that is not deterred by the Quran” Othman b. Affan is reported to have said [al-Mudawwanah]. Included in this are discretionary measures not prescribed by sacred text in number or manner, as well as the procedural methods that the state takes to reduce corruption and other public harms. One example in this can be seen in Umar’s treatment of his governors, who were assigned overseers that reported to Umar the abuses that they incurred towards the public or public wealth. Another example that comes to mind is the Muhammad b. Maslamah’s destruction of Sa’ad b. Abi Waqqas’ palace at the order of Omar after he had refurbished it through unknown sources [al-Turuq al-Hukmiyyah]. A more modern example would be things like parking tickets, restaurant health grades, and announcements about bad business practices. Each of these is meant to deter people from actual harm or call attention to a source of possible harm.

Hudud Punishments, Discretionary Punishments, and Slander

A third type of deterrent is those things which have been legislated by God and His messengers to dissuade people from illicit acts, both public and private in nature. One example of this would be the various warnings of punishment in the afterlife for specific sins or the negation of faith in this life from that person from the person that commits them. One such example is the sin of fraud in business dealings. The Prophet Muhammad said about a person who defrauds others “He is not from me, nor I from him” essentially disassociating himself from this person [Ahmed #11192]. Muslim theologians considered this an indication that such a person has deficient faith and are not following Prophetic guidance in this matter, not that they have disbelieved. [Ikmal al-Mu’lim 1/375]

Another example can be seen in the stoning of an adulterer. This harsh punishment is characterized as an expiation in this life for the sin of illicit sex while married. The conditions that must be met for this punishment to be meted out against an accused person are so stringent that, to my knowledge, there has never been a single person in the history of Islam who has been punished based upon the testimony of four witnesses. With this said punishment would never then be meted out to an adulterer unless he or she confessed; leaving the guilty in the throes of faith. Either he admits to the act and his sin expiated in this life, or awaits the decision of God in the next. Obviously, such an exercise in weighing the consequences of one’s actions will have a profound effect on the individual’s faith. Does he see God’s mercy as greater than His wrath and hope for atonement on the Day of Judgment? Or does he view God’s justice as eternal and instead expedite the punishment in this life, so to not forfeit receiving his mercy for other sins committed? How can one best lessen their load? This sort of moral conundrum is one that, while difficult, can have a profound rehabilitative effect on the mind and soul of a sinner.

Under this third category, there are only seven (7) prescribed punishments. Known as Hudud punishments, they cover infractions like Adultery, public intoxication, theft, highway robbery, brigandry, apostasy, and slander. [Ouda 1/85]

Other than these prescribed punishments, the Shariah does not designate punishments from any other infractions and instead leaves the way a dispute or offense would be rectified up to the judge presiding over the case. This discretionary power, known as ta’zeer, can range from something as simple as advice or the issuance of a warning to the offending party, and escalate up to flogging and/or jail. In rare instances it may reach the level of execution, especially for compound offenses that challenge public safety and terrorize the general populace. These discretionary punishments are not codified, and therefore the judge may apply them as seen fit, with the caveat that his ruling may be appealed.

Slander, Metaphor, and Ambiguous Accusations

One of the Hudud punishments under Islamic law results from a case of Slander (Qadhf). This is narrowly defined as lodging an explicit accusation of fornication against another person, like one saying: “You adulterer, you fornicator, you’ve committed Zina,” etc. This accusation must be accompanied by four witnesses who have witnessed penetration, “…like applicator entering the mascara tube…” as a Prophetic hadith describes it [Abu Dawud #4428], or accompanied by a uncoerced confession made four times by the accused party. Unless these two evidentiary standards are met, the person who slanders another by accusing them of fornication will be flogged for this accusation.

What then of lesser accusations? What if a person says something like: “You bastard” “you lecher” “You womanizer” or “You whore”? This form of accusation was known as “al-Qadhf bil-Kinayah” or Slander by Metaphor. It was not considered a Hadd punishment where the prescribed punishment of flogging could be applied as it was not an express accusation of infidelity. It was however considered vile enough to be left to the discretion of the judge as to how someone making such accusations could be punished.

Defamation of Character and Damage to Reputation

Lesser than this in severity, but still a culpable offense, was defamation. Defamation was the act of negatively affecting someone’s reputation. The precedent for this is found in numerous places in classical works of Islamic law. Perhaps one of the reasons that it was not spelled out in one place in the books of law was the nature of Islamic societies until the 18th century, where social norms and means of communication would prevent defamation from spreading beyond a tight circle of people who could resolve the issue amicably among themselves.

In several prophetic traditions we find precedent for considering personal slights and defamation unsavory and inexcusable. The Prophet reprimanded Umar for accusing Hatib ibn Abi Balta’a of hypocrisy [Bukhari #3007]. When Aisha taunted Safiyya for being short he told her “You’ve said something if mixed with the oceans it would permeate them entirely.” [Tirmidhi #2502] And when Abu Dharr disparaged Bilal by saying “You son of a black woman” the Prophet told him “You are a man that has pre-Islamic ignorance in him.” [Bukhari #30] These narrations indicate that defaming a person for their actions, character, or appearance is inexcusable. The Prophet said: “Cursing a Muslim is iniquitous and fighting him is disbelief.” [Bukhari #48] Based on this, jurists considered curses and personal defamation to be offenses left to the discretion of the Judge.

Take for instance Shihab al-din al-Qalyubi. In his Marginalia in Shafi’i law he says: “Curses less than Slander mandate a discretionary punishment meted out either through jailing, flogging, pardoning, or shaming.” [Hashiyat Qalyubi 4/312] Scholars of the Maliki school considered ridicule to be a similar offense, and used the actions of Omar and Uthman as evidence to the applicability of discretionary sentences to ridicule when vindictive and meant to defame. [al-Istidhkar, 24/127] Al-Kasani, the Hanafi jurist, mentions “When one says to another ‘You sinner, you vile person, you thief’ or similar then the Imam has the option to reprimand them publicly.” [al-Badai’ 7/64] Ibn Humam al-Hanafi said, “When a Muslim is slandered with something other than Zina, such as saying; ‘ You sinner, you kafir, you vile person, you thief’ and similar phrases, seeking to harm him and disparage his name, then a discretionary punishment becomes obligatory.” [Sharh Fath al-Qadir 5/333] The Hanbali school adds to this list of epithets, “You unfaithful, you cheater, you dog, you he-goat, you pimp, you player” and the like [Dalil al-Talib 312].

Similar to this is a ruling related from Imam Malik in the Mudawwanah. Ibn al-Qasim adds “Some people are known for their harm. Because of this it such a person should be dealt a painful punishment. Others may [say such] as a lapse of judgment, while being known for righteousness and virtue. In this case the Imam should investigate. If he cursed him viciously, he should be reprimanded in a manner commensurate to his virtue. If it was only a slight then Malik said: The sultan should overlook lapses that occur from dignified people.” [Mudawwah 493]

Elements of Defamation

If and when a plaintiff would take action against a person who defamed them, here the defendant they would need to meet the standard for defamation found in the various texts above. From these above texts, it is possible to derive a general rule as to what constitutes defamation under Islamic law:

  1. The statement was not an express accusation of adultery/fornication.
  2. The defendant made a statement about the plaintiff to another, publicly or privately.
  3. The statement was injurious to the plaintiff’s reputation.
  4. There was an intention to harm or disparage the plaintiff.
  5. The statement was false or sufficiently ambiguous enough to imply falsehood.
  6. There are no privileges in effect when making such a statement.

The first element excludes cases of Slander (Qadhf). The second excludes intimations that are not recorded or spoke by one party to the other, such as a head nod or wink that could be interpreted in a variety of ways. The injurious nature of the statement excludes those statements made in jest. This relates directly to intent, that the defendant would have to want to purposely bring about a particular consequence that was injurious to the plaintiff. True statements are an absolute defense against defamation. However, as we see in the texts above, the examples given indicate that defamatory statements involve a certain level of ambiguity and interpretation, leading the listener to belief about the plaintiff something that is not true, even if the statement was not expressly a claim of truth against him.

For example, saying “You sinner” could be interpreted to mean they have committed a specific sin in the mind of the defendant or he simply meant “you’re a sinner like everyone else.” Another example would be to say, “She is questionable around children.” This could mean the plaintiff is simply awkward around kids for some reason or another, or that she is abusive or exploitative to children. It goes without saying that yes while truth is an absolute defense, if one is so concerned about plaintiff and their relationship to a potential victim, they should be confident enough in that claim to make an express statement that would be defensible in court. Lastly, a privileged statement of defamation is one that is made under the obligation of the law or a court order. A person asked to repeat a phrase under oath, or a judge reading out choice adjectives for a convicted criminal would not be defamation under Islamic law.

Your lives, your wealth, and your dignity are sacred

Allowing for discretionary cases to be brought against accused parties would naturally bear the burden of evidentiary proof in order to become actionable. One of the five objectives that Islamic law seeks to protect is the honor and dignity of people. During his farewell pilgrimage the Prophet said, “Your lives, your wealth, and your dignity are sacred between you like the sacredness of this day, in this month, in this land.” [Bukhari #67] To disallow bringing such cases in front of the court, despite their not being Hudud cases, would not only be damaging to the individual but to social cohesion and the objectives of Islamic law as a whole. Similarly, to handle these issues through extra-judicial means is equally as damaging, as it preempts the burdens of proof and the procedures for testing and proving intent to harm through such accusations.

In light of public welfare, if and when a case of defamation of character is brought against a person, the elements of defamation must be present. The judge presiding over the case has the discretionary power to sentence the accused as he or she sees fit. While cursing, defamation, and maligning others does not reach the level of Slander under Islamic law, they are no doubt sinful offenses that people should refrain from. If person escapes legal culpability in this life, they can’t escape being morally culpable for such accusations in the next.

To Conclude

Openly defaming people with vague and abstruse statements is to subject them to the court of public opinion. While it may seem like a win to the person that does so, doing this while making unnecessarily ambiguous accusations can point to either insufficient knowledge of true culpability, maliciousness on the part of the accuser, or both. Ambiguous claims may injure a guilty party at first, but they also afford them the privilege of plausible deniability. This allows them the capacity to deflect any criticism, even true criticism, in the future under the guise of persecution and harassment. Wounds meant to crucify become stigmata, signs of martyrdom for the plaintiff accused indirectly and a constant reminder for the victims that their oppressor is still masquerading as a savior.

Joe Bradford
26 Sept 2017

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Followup, 30 Sept 2017: “Two in Hell, One in Heaven: Dispute Resolution in Islamic Law”

A note on Cryptrocurrencies and How Islamic Law Creates Rulings

On this page you’ll find the following:


AMAL workshop on Cryptocurrency , Bitcoin and Islamic Perspective -Bitcoin and How Islamic Law Creates Rulings | Shaykh Joe Bradford


The Article: 

There seems to be much ado these days about Bitcoin and cryptocurrencies as they gain traction in muslim-majority circles and developing nations. The ability of cryptocurrencies to expand markets, going over the heads of regulators due to its decentralized nature makes it an appealing asset to prospective investors. Some may be seeking to free capital from government control, others simply looking for an easy way to transfer money on the dark web.

One question people seem to be asking more these days is “Is Bitcoin permissible?” The motivation for this question however shows a fatal flaw in understanding the epistemological roots of Islamic law and how it comes about. People asking this question about Bitcoin are the flip side of those who ask whether gold and silver are obligatory to use as currency. Both of these approaches posit that there has to be some form of positive legal evidence obligating or permitting the use of anything in order for it to be legitimate under Islamic law. This could not be further from the truth.

 

Everything is Permitted unless evidence shows otherwise

A very well-known principle of Islamic law that “the base ruling for all things is permissibility and allowance” (الأصل في الأشياء الحل والإباحة).

Therefore the question that we should be asking is not “is Bitcoin permissible” but instead “what are the parameters that regulate the use of Bitcoin under Islamic law.” They seem like the same question but in fact they are not. The first assumes that the Sharia must speak to every individual incident directly in order for it to be licit and legitimate for Muslims to use. That type of thinking brings about a form of dogmatism which is very dangerous and which I have touched on and several other articles. The second question comes from the general principle we mentioned before that is based on numerous verses of the Quran and various traditions of the Sunna that state that all has been allowed for us except for those things which God has deemed unlawful.

وَقَدْ فَصَّلَ لَكُمْ مَا حَرَّمَ عَلَيْكُم

Surat Al-An’am 119

“God has delineated in detail for you what is unlawful for you.”

وَأُحِلَّ لَكُمْ مَا وَرَاءَ ذَٰلِكُمْ أَنْ تَبْتَغُوا بِأَمْوَالِكُم

Surat An-Nisa’ 24

“And permitted for you is everything beyond this which you seek with your wealth…”

These are just two of the verses imparting such an indication. You can find the detailed evidences for this principle drawn-out in the books of Usul and Qawā’id.

 

Bitcoin as an Intellectual Property Right?

During a recent conversation the question was posed to me as to whether it was appropriate to say that Bitcoin was permissible to use because it was an intellectual property right.

The claim that it is permissible to transact forward sales (عقد السلم) on bitcoin because it is intellectual property is one that has to be analyzed a little bit further.

Intellectual property does not confer any specific status on anything in its own right. I may own intellectual property of something but that something in and of itself is not sharia-compliant. Secondly we’d have to judge what is the inherent value of the thing which I’m claiming intellectual property over. If it is something which is ubiquitous to the point of not conferring any differentiating characteristics over things that are like it then in reality there is no intellectual property right. For example me claiming intellectual property rights over the phrase “The sky is blue” is invalid, because this phrase is not fixed in a permanent state, is not a unique expression, and is unoriginal.

Likewise me owning a individual unit of Bitcoin cannot be described as an intellectual property stake, as Bitcoin being in a fixed state is something which would seem to contradict its nature of being a distributed Ledger technology. It can also not be said to be a unique expression as there is no expression in the artistic sense through the owning of a commodity or an asset, and in the same vein it is not original as there are millions of Bitcoins.

I personally view this manner of substantiating the permissibility of Bitcoin to be weak and one which does not have much basis from our Islamic legal heritage. As I mentioned at the beginning of this article it is not necessary to substantiate the permissibility of something as long as there are no prohibited factors involved in it or surrounding it.

 

Drilling down on how to characterize Bitcoin under Islamic Law

The question then becomes how do we characterize Bitcoin for the purposes of using it and setting parameters for it’s permissible use.

Is it simply a digital asset? Is it simply a currency? If it is a currency what type of currency is it is it a commodity currency a representative currency or a fiat currency?

We have to differentiate between the substance, characteristics, and function of a given asset. Currency, any currency, at its heart has no substance. It may be an asset, it backed by an asset, and it may not.


The characteristics are those that distinguish between bitcoin the technology and Bitcoin the currency. The technology of storing value and verifying through distributed ledger technology is important, and protected by intellectual property laws. The function is that it is used as a currency in a limited sense meaning that it’s not accepted in all markets and by all vendors. In this sense it is very akin to “weak currency.”

We can see the difference between Bitcoin as a digital asset currency and other digital assets that actually have functional uses beyond the mere transfer & storage of value. Bitcoin is different than say a WordPress plugin that I may purchase digitally own digitally and transfer to another person digitally. The value of that plugin is in its function and its ability to provide me with a certain operation needed for the WordPress system.

 

Applying Islamic law to Crypto-Currency and digital assets.

That doesn’t mean that the rules of currency exchange do not apply, especially when we take the rationale for the prohibition of Riba to that of value (ثمنية). It’s important to note that those Scholars of the past would allow Salam in Fiat Currency (fulus) did so because the rationale for something being Ribawi for them was it’s weight and genus, i.e. the underlying asset value of the commodity which was being used as a fiat currency. Why did they consider the asset value as key because if you are buying previously circulated copper coins you can always melt them down for their asset value even though they have no currency value at the time.

That is markedly different than Bitcoin which has no inherent asset value. Bitcoins exist as a unit of account/measurement of their transactions, in the same way that meters exist as a unit of measure for distance. But a meter does not exist as a standalone object, likewise bitcoin doesn’t exist as a stand-alone either. If it were not for its function as a storage of value and a method for transferring that value it would not exist.

The only inherent value that Bitcoin has is its function. Regardless of all of the blockchain technology and other technological innovations behind the digital asset, it has no intrinsic value of its own.

This strengthens the idea that the rules of Riba apply to Fiat currencies as equally as they do to commodity and representative currencies.

 

Even if it were only a digital asset…

Even if we were to say that Fiat currencies are not dealt with with the same exact stipulations as commodity currencies (ie gold and silver) the rules of loans (قرض) still apply to all fungible items (مثليات). So it is impermissible for me to loan you one cup of sugar and to demand two cups of sugar back. When I do so I am stipulating the extra cup of sugar do to the time value or the imputed interest lost by my loan.

Let’s ask ourselves this question would it be acceptable for me to trade you one Bitcoin for two Bitcoins? If you say yes, you must show how each individual Bitcoin holds a specific value based upon its inherent characteristics beyond those acquired through transfer and trade. Now the common retort is going to be that there’s a difference between “clean” Bitcoins and those which have previously been used in transactions. But remember we are talking here about inherent characteristics, not those which were acquired later on. So if I mine 50 Bitcoins on Monday and I mine 50 Bitcoins on Tuesday and on Wednesday I transfer you 100 Bitcoins, there’s no way of differentiating between them. They’re divisible at the subatomic level, and coins flowing in and out of transactions are mixed.

If Bitcoins are permissible to trade like Commodities simply because there’s a difference between clean and tainted Bitcoins, then dollar bills are permissible to trade as a commodity because there are newly issued dollars as well as old dirty notes. That’s a ridiculous assertion and one that those making the claim about the difference between clean and tainted Bitcoins as not being fungible cannot uphold.

So back to our initial question can I trade one Bitcoin for two Bitcoins? Not only would it be irrational to do so, but it goes against the silent consensus that has been related by Ibn Qudamah in al-Mughni: “Everything in which Riba al-Fadl is forbidden, then Riba al-Nasī’ah is forbidden therein as well; without any difference that we know of.”
كل ما حرم فيه التفاضل حرم فيه النساء بغير خلاف نعلمه.

In conclusion

  • Bitcoin and other Cryptocurrencies are permissible because there is nothing found in them which necessitates they are impermissible.
  • Anything impermissible about cryptocurrencies comes from how they are used, whether that be through sale, purchase, trade, or mining. To mitigate any of the dangers and risks associated with this impermissibility the Islamic laws of currency exchange must be applied.
  • The claim that they are digital assets and are thus exempt from the rules of Riba is a weak claim in my opinion, based on the nature and function of these assets.
  • If one is going to use cryptocurrencies they must follow the rules for currency exchange under Islamic law.
  • As a business decision I personally would not recommend anyone unfamiliar with trading to go into cryptocurrencies. The market can be extremely volatile. Some coins are most likely a bubble that’s going to burst. If you don’t know what you’re doing, play it safe. 
  • These are simply my thoughts on the use of Bitcoin and not a comment on POW (proof of work) or POS (proof of stake) concept which I’m still researching.
  • I will update this article and release others as my research on the topic continues.


Joe Bradford

 


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