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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I Drink Your Milkshake: A Note on Charging for Religious acts

In this Article:
– Categorizing Acts related to Religious Practice
– Demanding a Wage vs. Receiving Compensation
– Where are modern “Islamic Institutes” positioned in this debate?
– I Drink Your Milkshake

In a previous article, I cover the question “Is it OK for an Imam to have a salary?” Here I’d like to follow up on something broader: remuneration for acts connected to religion. When can you charge for religious acts? Is it ever appropriate to take money for an act that is connected to religion in some way? To start, this article is not all inclusive of the proofs and arguments for and against such positions.

Categorizing Acts related to Religious Practice

First, let’s understand what category of acts we’re dealing with here. When discussing remunerated acts, things people do for money, jurists divided them into three broad categories:

  1. Acts unrelated to religious performance, like sewing, construction, etc.
  2. Acts purely related to religious performance, like praying or fasting.
  3. Acts that are connected to both the devotional and the mundane; this is where some discussion is needed.

About the first point above there is consensus that any act that is permissible in and of itself is permissible to be paid for performing; this point doesn’t need much emphasis. There is also agreement among scholars that it is impermissible for to pay someone for praying or fasting.

Where the difficulty lies is in determining how to deal with acts that fall under category three. Jurists made a few distinctions when discussing this category. Some related to the act performed and others about how to characterize the amount paid. These distinctions are connected to several texts, I’ll mention on two here for brevity.

About the Adhan, the Prophet said, “Take a Mua’adhin who does not demand a wage for his Adhan.” [اتَّخِذْ مُؤَذِّنًا لَا يَأْخُذُ عَلَى أَذَانِهِ أَجْرًا] This was narrated by al-Tirmidhi, al-Nasai, and Ahmed. In another hadith he said, “The best wage that one receives is for teaching the Quran.” [إن أحق ما أخذتم عليه أجرا كتاب الله] This was narrated by al-Bukhari in his Sahih.

How were these two apparently contradicting texts reconciled? Here jurists made a distinction between those acts that were done as a function of public good, such as calling the adhan or giving a fatwa, and those acts connected to the performance of a personal good, like teaching someone how to read the Quran, performing Ruqyah, or teaching them the Islamic disciplines.

Demanding a Wage vs. Receiving Compensation

The operational terms here from the two hadith are “demands a wage” versus a “wage one receives.” Islamic law does not allow the sale of things which have no discernible utility to the counterparty. Demanding a wage means that the Adhan, an act of religious devotion, is being bargained for, making it the point of consideration in a contract. Since it is impermissible to sell things that do not have value, this contract is invalid. Allowing such a contract is tantamount to the commercialization of religion, something that is a “public good” and not for individual sale. Receiving a wage, on the other hand, indicates that there was a publicly determined value to remunerate the person who performs the act in lieu of their time.

The second distinction made is dependent of the beneficiary of the act. In the case of the adhan it is the public that benefits from hearing it. In the case of teaching the Quran it is the individual. Additionally, teaching the Quran was not a purely devotional act; learning to read the Quran was preparatory instruction for literacy in general. It goes without saying that there are several positions among medieval scholars on the extent to which this can be analogized, but because of the shared nature of empowering someone through literacy many scholars allowed not only taking payment for teaching the Quran, but also for teaching other religious disciplines.

Where are modern “Islamic Institutes” positioned in this debate?

While it certainly is optimal to disburse an allowance (or honorarium) to teachers of the Quran and Islamic disciplines instead of them demanding a wage, it is important to remember that the idea of religious instruction being a regulated public good means also that government or quasi-governmental organizations are regulating religion, which has its own inherent hazards.

The other solution would be the formation of endowments to facilitate these allowances for its teachers. While this may seem like a nobrainer to some, there are still a number of negatives associated with this approach; control by donors, endless fundraisers to make up for shortfalls (real or contrived), and the creation of other endowments that enter into competition with preexisting ones create the same market conditions that exist when individuals are involved. The laws of supply and demand will take hold, and in the words of Dr. Ian Malcolm “Life, uh, finds a way.”

While taking a wage for teaching religious knowledge might be acceptable at times, it can also impugn the character of the one doing based on how they allow access to that information. For example, scholars of Hadith would disparage narrators and question their moral probity if they charged for the narration of Hadith. However if a person charged for making copies of their Hadith texts, while still allowing all those that wished to attend their Hadith recitals to attend, they were not impugned. In fact, many of the scholars of the past were scribes and copyists, working in the cottage industry that popped up to service Hadith culture.

In my estimate, there is a difference between charging for teaching information with quantifiable educational outcomes (and the replay of that information that carries actual costs) and the infotainment style courses and classes that are more than common in the Muslim community today. Many of them I see as no different than evangelical style tent revivals. These “classes” are more akin to hiring a person for the display of personal piety than they are for actual learning. When coupled with excluding people from the prayer areas of Mosques in which these “courses” are held unless an entrance fee is paid makes this type of exhibition especially abhorrent. The dubious qualifications of many teaching these courses is another topic entirely.

I Drink Your Milkshake

Popularized in the film “There will be Blood” this phrase was first said during a 1924 congressional hearing over the Teapot Dome scandal. In this scandal, Sen. Albert Fall used this phrase to explain oil drainage. “Sir,” Fall is reported to have said “if you have a milkshake and I have a milkshake and my straw reaches across the room, I’ll end up drinking your milkshake,’ Sen. Fall was convicted of accepting bribes for oil-drilling rights to public lands in Wyoming and California. The point? As long as we allow people to over-extend themselves without ethical oversight, we’ll continue to see over-reach in the name of religion.

So where do we go from here? Well for starters, perhaps not using religion as a form of entertainment is a good place to begin. Secondly, supporting institutions that uphold pedagogical and operational standards for religious instruction. Third, employing qualified individuals that – while they may bore us – are teaching communities actionable information pertinent to their religious practice. And last, it is important that we wean ourselves from the teat of edutainment, that charisma infused spiritual opiate that provides us that high we all fiend for, but send us crashing and into spiritual rehab when our dealer cheats us or we realize how bad our addiction is. Without addressing these key issues, we will continue to see these highs and lows.

republished: 2/5/2019

What is Estate Planning?

Estate planning is the act of planning your estate, i.e. what happens to your property after you die and who cares for your loved ones. With an estate plan, you get to say who gets what, when they get it, and who should look after the ones you care for when you are gone.

Having a will is part of an estate plan, but it is not the only part. Don’t think about estate planning as just having a will or a trust in place. Instead, think of it as an overall strategy for fulfilling our duty as Muslims to care for our loved ones after death. You want to do two things with an estate plan: reduce or eliminate tax liability and reduce mismanagement of your estate after your death.

“No one that has anything that can be inherited should sleep for two nights without a will in his possession.” Prophet Muhammad (Bukhari)

Because of this obligation and because people know I specialize in financial issues for Muslims, one of the main questions I constantly get is “How do I get an Islamic Will?”

Continue reading…

Home Financing Seminar – October 29th

What We Will Cover In This Seminar:

  • Finance in the US.
  • Buying a Home.
  • Why you need a financial plan.
  • Major purchases, investments, and debt.
  • The home buying process.
  • Major mistakes to avoid.
  • Your #1 concern about home purchases.

About Your Presenter:

Joe Bradford is an American scholar of Islam, instructor, entrepreneur, and ethical investments advisor. One of the few experts that has studied Islamic finance traditionally and working in the banking/finance sector, he is uniquely qualified to bring you this seminar.

Solomon’s Horses: What are the legal and moral implications for creating Strong AI in Sharia?

A few days ago, Yonatan Zunger released “Artificial Intelligence, Talmud, and Sharia.” After reading this very interesting piece, I decided I’d attempt to add to the conversation specifically in the area of Sharia/Islamic thought.

Before we talk about the problem of creating Strong AI, let’s talk about how Islamic law categorizes rulings. While Yonatan  presents this as an issue of encouragement vs. prohibition, Islamic Law offers a few other choices. Laws falls under one of five categories: Obligatory, Encouraged, Unrestricted, Discouraged, and Forbidden. Creating strong AI may fall under any of these five.

Yonatan  is correct that statues (tamāthīl) appears in the Quran two times. One during the story of Abraham with his people, the other in during the building of Solomon’s temple. An interesting caveat to the story of Abraham is paring the term statues with the terms idols (aṣnām). “What are these statues (tamāthīl) to which you pay devotion?” and after their answer he replies “By God I will plot against these idols (aṣnām) of yours after you turn and leave.” Continue reading…

Explainer: May Muslims Refuse To Bury Terrorists?

May Muslims Refuse To Bury Terrorists? #SaintEtienneDuRouvray murder raises the question again.

Muslims refuse to bury terrorists

On July 26th two nineteen year olds pledging allegiance to ISIS brutally murdered 85 year old Fr. Jacques Hamel during Mass in Saint-Etienne-du-Rouvray, located in northern France. Eyewitnesses say the two young men slit Fr. Hamel’s throat during Mass and while engaging the horrified onlookers in conversation. After one of the nuns attending the service escaped and alerted authorities, police cornered and subsequently killed the attackers as they tried to escape. This act, performed by ISIS pledgees in Europe, met broad condemnation from the international Muslim community as well as the Muslim community in the Normandy suburb of Rouen, where the murder occurred who have refused to bury them. Continue reading…