Refutation of the Doctrinal Positions of the Dawlat ash-Shaytan: Khalifat and Wilayat

This paper has been published in its entirety with Arabic script for the Quranic citation on Academia.edu

One of the central doctrines of the so-called Jihadis, as well as the Dawlat al Shaytan, has been that fighting is prescribed upon the Muslims and that it is Fard al Ayn, an individual religious obligation, similar to the Fard al Ayn of Prayer and Fasting.  While it is true that jihad is a Fard al Ayn, the Jihadis have chosen to ignore evidence from both the Qur’an and the Authentic Sunnah which correctly explains this obligation. 

However, before we begin a discussion of this evidence, we must first address the the nature of religious and secular authority in Islam, as well as evaluate the claims of Abu Bakr al Baghdadi to both forms of authority.  In doing so, we will look at the following:

1.      The Nature of Authority in Islam

2.      Khalifat vs Imamate

a.       Khalifat al Insaniyyah

b.      Khalifah fi al Ard

c.       The Three Forms of Authority

                                                                           i.      Legislative

                                                                         ii.      Executive/Enforcement

                                                                        iii.      Judicial

d.      Khalifat vs Wilayat

e.       Wilayat and Waliyyu l’amr

f.        The Three Approaches to Any Human Endeavor

                                                                           i.      Taqlid

                                                                         ii.      The Deen Geeks and Deen Tech Support

                                                                        iii.      Qualifications of an Alim

1.      Discussion of Adab al Qadi, by Imam Khassaf

2.      Knowledge of Qur’an and Sunnah

3.      Training in how to think like a Muslim – understanding of mantiq, rhetoric, and grammer

4.      A Rational Minhaj of Usul al Fiqh

5.      Direct understanding of the subject upon which he is issuing a ruling

g.       Imamate – Judicial Authority

h.       Amirate – Enforcement Authority

                                                                           i.      Wilayat al Ummah – Political Power

                                                                         ii.      Enforcement Authority

i.         Historical Conceptions of Wilayat

                                                                           i.      Umayyad position on Khalifat

1.      Plato’s Republic and Philosopher Kings

2.      Mu’atazillah doctrine

                                                                         ii.      Abbasi position on Khalifat

                                                                        iii.      Imamate theory on religious authority

1.      Imam Zaid - Zaidi

2.      Imam Ja’afar – Ithna Asharah

                                                                       iv.      Ibn Taymiyya’s position on Khalifat

                                                                         v.      Khomeini’s Wilayat al Faqih

                                                                       vi.      Baqir al Sadr’s Wilayat al Ummah

After considering these issues, we will address the correct response of our Ummah to the threat posed by the Dawlat ash-Shaytan. In doing so, we will address the correct understanding of Jihad.

1.      The Meaning of Jihad/Striving in the Path of Allah

2.      The Hukum Shariah of Jihad:  Fard al Ayn vs Fard al Kifayah

3.      The Hukm Shariah of Qitaal and its Shuruut

4.      The Purposes of Jihad and Qitaal

a. The Maqaasid ash-Shariah

b. Permissible Reasons for Qitaal

c. Permissible Means of Qitaal

Next we will evaluate the claims of Abu Bakr al-Baghdadi to Khalifat by considering the following:

1.      The Khalifat is not authentic Sunnah, and an Amir only has the Power of Enforcement, not Legislative Power or Judicial Power.

2.      He is supposedly Ahl al Bayt, (Husseini), hence under the fiqh of the Sunni Madhahibs, he is not eligible to be Khalif. 

3.      He was not elected by the Ummah or agreed upon by Shura’

4.      He is not eligible to be an Imam, in the Ithna Ashari sense, because he is not the eldest son of Al-Ashkari, and he is not eligible to be a Marja’ because he lacks religious qualifications to be a Alim, Mujtahid, Mufti or Religious Authority.

5.      He may be eligible to be an Imam in the Zaidi sense, because he is supposedly of Ahl al Bayt, and he is willing to lead Jihad. However, he does not have the religious knowledge, and being a Zaidi Imam does not mean he is Imam of all the Ummah, but only Imam for those who choose to follow his leadership.

            Finally, we will address discrete acts of the group known as the Dawlat al-Islamiy, showing that their actions clearly violate Shariah law, and that these acts constitute acts of hirabah, punishable by the Qur’anic Hadd punishments.  Moreover, we will also show that their doctrines and positions take them out of the Deen of Islam, and render then Khawaarij.  Finally, because their actions constitute a clear threat to the Deen of Islam and to Muslims, it becomes a Fard al Ayn to counter their actions with comparable actions, including Qitaal.

The Nature of Authority in Islam

            Power, Dominion and Control. So much human energy has been exhausted over these intangible ideas.  What is power? The ability to bind others to action, to change, to alter, and to compel their behavior… What gives us this power?  How do individuals gain control over the behavior of other individuals? 

            In The Republic, Plato explores the nature of human society. [1] We are individuals, yet we must come together in a society.  Initially, our societies were small, no more than extended families.  But, later these expanded into larger and larger tribes, and finally, we developed agriculture and decided to move into settlements together.  Often the housing compounds within these settlements were arranged by tribe or group identities.  Consider, for instance, the compounds of Giza, Egypt; were the work groups who built the Pyramids lived, prepared food, and planned their daily labors.  [2]

We are each born with a fitrah, an innate sense of right and wrong, which is reinforced by our upbringing.  However, humans require more than just a sense of right and wrong.  Over the years we have discovered that other animals use tools and can even perform complex problem solving tasks. [3] Science is finding less and less ways in which we are special.  But, there is one way in which we are special.  We have free will and the moral responsibility that comes with it.  Morality is not just the understanding of right and wrong.  Morality is complex.  Allah SWT placed Adam and Hawa in the Garden with their fitrah.  Then what happened? 

Allah SWT says in the Qur’an:

[4]

2:30. Behold, thy Lord said to the angels: "I will create
A vicegerent on earth." They said:
"Wilt Thou place therein one who will make
Mischief therein and shed blood?—
Whilst we do celebrate Thy praises
And glorify Thy holy (name)?"
He said: "I know what ye know not."

31. And He taught Adam the nature
Of all things; then He placed them
Before the angels, and said: "Tell Me
The nature of these if ye are right."

32. They said: "Glory to Thee: of knowledge
We have none, save what Thou
Hast taught us: in truth it is Thou
Who art perfect in knowledge and wisdom."

33. He said: "O Adam! tell them
Their natures." When he had told them,
God said: "Did I not tell you
That I know the secrets of heaven
And earth, and I know what ye reveal
And what ye conceal?"

34. And behold, We said to the angels:
"Bow down to Adam: "and they bowed down:
Not so Iblīs: he refused and was haughty:
He was of those who reject Faith.

35. We said: "O Adam! dwell thou
And thy wife in the Garden;
And eat of the bountiful things therein
As (where and when) ye will; but approach not this tree,
Or ye run into harm and transgression."

36. Then did Satan make them slip
From the (Garden), and get them out
Of the state (of felicity) in which
They had been. We said:
"Get ye down, all (ye people),
With enmity between yourselves.
On earth will be your dwelling-place
And your means of livelihood—
For a time."

Here we see that Shaytan was able to present twisted arguments to fool Adam and Hawa into disobedience.  Their sense of right and wrong was overcome.  When confronted with a more complex issue, something that was not bi-polar, black and white, they were unable to determine if it was wrong, and hence should be avoided.  Then they ate the fruit.  The fruit was from the tree of the knowledge of good and evil, the knowledge of morality.  And once they had tasted of this distinction, they felt ashamed.  There is a hadith of Rasulallah that states,  On the authority of Abu Masood Uqbah ibn Aamr Al-Ansaari, may Allah be pleased with him, who said: The Messenger of Allah (peace be upon him) said, ‘From the words of the previous prophets that the people still find are: If you feel no shame, then do as you wish.’” (Recorded in Bukhari).

Shame is a natural response to immorality.  And once Adam and Hawa realized that they felt ashamed because they had disobeyed Allah, they fell down immediately and begged forgiveness – they exhibited tawbah.  And Allah SWT forgave them and told them that He would send down to them words of inspiration – wahy – to guide them in exercising this thing called morality. 

al-Baqara, 2:37. Then learnt Adam from his Lord
Words of inspiration, and his Lord
Turned towards him in repentance; for He
Is Oft-Returning, Most Merciful.

We are individuals, and we are free.  We were given free will by our Creator.  If we lived a solitary existence, we could do what ever we please.  We could gratify every desire without thought to any limitation.  Our only consideration would be the Pleasure of Allah, assuming we believed in Him. However, we live in societies, and thus, we must limit our freedom in such a way to account for the right to freedom of others in that society.  But there are those who overstep limits, whose desires overcome inhibitions against stepping on the rights of others.  For what ever reason, they do not care about the others, and some even enjoy hurting others and usurping their rights.  Hence, we have developed a need to restrain these individuals by spelling out the limits of human behavior and enforcing those limits in some manner. 

Other social animals also have rules and they enforce them.  For example, baboons live in large complex groups.  The young baboons are given some latitude in their behavior, but they learn the social rules by behaving and then observing the response.  “Good” behavior is rewarded with pleasurable company and a satisfying grooming session, and “bad” behavior is met with a cuff to the head, a bite, or even a terrifying chase by the dominant male. [5] However, these rules are black and white.  And enforcement is immediate, without recourse.

On the other hand, humans are moral beings.  And morality, being more complex, requires careful thought before enforcing punishment.  It requires judgment, and justice.

Allah SWT has given us every tool to enable us to make moral decisions.  But, we are also free.  We can choose to act immorally.  This is what the Malaaikah feared when they mentioned that this creature Allah SWT was about to place as Khalifah upon the Earth, could make mischief and shed blood.  Allah SWT responded that He knew that which they did not.  He also gave mankind words of guidance – revelation.  Revelation of Shariah, the Divine Law, and the Criteria – the Furqan and Hikmah – that enable it to be applied are essential to human society.  Certainly, the history of man reveals that human-created laws, while occasionally starting out fairly, too often end in bias, discrimination, and injustice.  What is the cause of this tendency to treat each other unfairly, unequally? 

In the 1970’s, the psychology department at Stanford University conducted an experiment in power.  In the Stanford Prison Project, graduate students were recruited to role play the parts of prisoners and guards.  Guards were given the power to discipline the prisoners by using mild electric shocks.  What the researchers discovered was horrifying.  Ordinary students, the sons and daughters of middle class families, “good” people became sadistic, deriving pleasure and a sense of control and power by torturing their fellow “prisoner” students.  The “prisoners” because depressed and showed signs of extreme stress. The department quickly pulled the plug on the planned two week project after six days.  The experiment proved the adage that power corrupts and absolute power corrupts absolutely.[6]

Certainly, there are those who exceed limits, and so they must be restrained.  Shariah Law is the restraint upon behavior set down by Allah SWT.  However, in order for any law to have teeth, it must be enforced.  Who enforces it?  Allah SWT is capable of enforcing it, of course; but He has also placed enforcement in the hands of those who are the guardians of the Earth, mankind. The power of enforcement is essential for justice. Without the power to enforce, the law would be toothless.

Khalifat al Insaaniyya

Our Earth was created by Allah SWT and he has the ultimate dominion and control over this world. It is His.  In Western belief, the earth belongs to mankind.  We can do with it what we want. But in Islam, Allah makes it clear it is HIS! His is the ultimate authority.

2:255. God! There is no god But He,—the Living,
The Self-subsisting, Eternal.  No slumber can seize Him
Nor sleep. His are all things In the heavens and on earth.
Who is there can intercede In His presence except
As He permitteth? He knoweth What (appeareth to His creatures
As) Before or After Or Behind them.
Nor shall they compass Aught of His knowledge
Except as He willeth. His Throne doth extend
Over the heavens And the earth, and He feeleth
No fatigue in guarding, And preserving them
For He is the Most High, The Supreme (in glory).

Allah (SWT) also says:

2:168. O ye people!
Eat of what is on earth,
Lawful and good;
And do not follow
The footsteps of the Evil One,
For he is to you
An avowed enemy.

Therefore, Allah makes it clear from this ayat, that while we are permitted to take our sustenance from the earth, but we must also observe limits.  We do not have a blank check; we do not have carte blanche.

And lest we forget, we are ourselves created from this very Earth. 

30:20. Among His Signs is this, That He created you
From dust; and then,— Behold, ye are men
Scattered (far and wide)!

With these verses of the Qur’an, Allah informs humanity that He (Allah SWT) is the vested owner of all that is in the heavens and the earth, and all in between and any right or interest a human has in property is contingent upon that ultimate divine ownership. 

The concept of dual ownership [human being-God] is one of the special

features of the Islamic doctrine of economics.  Islam protects and endorses

the personal right to own what one may freely gain, though legitimate

means … . It is a sacred right.  Yet human ownership is tempered by the

understanding that everything, in the last analysis, belongs to God… .

What appears to be ownership is in fact a matter of trusteeship, whereby we

have temporary authority to handle and benefit from property.  [7]

The Islamic concept of property ownership in Islam is therefore quite different from that of English or American Common Law.  Under American law, there are two forms of ownership of land, private ownership and state ownership, and a private owner’s use and enjoyment of the land is only tempered by compelling state interests in the protection of the health and safety of other members of society.  However, in Islam, we find five basic forms; commonage held by all humanity and administered by the state (afraq or metruke), state owned property (hima or miri), charitable trust property (waqf), communally or jointly owned property (shuyuu) and individual private ownership (mulk). 

All of these forms of ownership are tempered by both the rights of others and the rights or huquq of Allah – the ultimate owner.

The point is that mankind may have rights to this earth and all that is upon it, but those rights are not unlimited.  We have to consider the rights of others and the rights of Allah. These rights, Huquq al-Allah and Huquq an-Insaan, have a direct bearing on the nature of the office given to Man by Allah, the Khalifah fi al Ard.

Khalifah fi al Ard

The term khalifah comes from the Arabic root, Kh-L-F, which implies being a successor, coming after another.  But to whom are we the successors?  Certainly not to Allah!  No one can succeed Him, and He has clearly retained His authority and dominion.  So He has no successor.  However, He did charge another being with the care of the Earth, the Malaaikah.  So what was the role of the Malaaikah?  Did they just abide here, or did they have some form of responsibility here or duties they carried out upon the Earth? 

Allah SWT is the ruler of the Heavens and the Earth and all in between. The Malaaikah were not rulers on Earth.  Instead, they acted as agents of Allah SWT, doing His bidding, and serving Him.  They were responsible for carrying out His commands. In short, they were responsible for enforcing His commands.

97:4. Therein descend The Malaaikah and the Ruh By God's permission,
On every command (min kulli amrin)

The Malaaikah did not issue the commands, they enforced them, they carried them out. We, then, were named by Allah SWT to be the successors to the Malaaikah upon the Earth.  

In understanding the nature of Khalifat al Ihsaniyyah, we understand that it was bestowed upon us by Allah.  And while the term khalifah might imply succession, it does not imply succession of Allah’s dominion.  Allah SWT has Qadaa wa Qadar – Dominion and Control.  We are instead, successors to the Malaaikah as the ones responsible for acting as agents of Allah, His servants, and as trustees of Allah’s property, the Earth.  We are successors to the enforcement authority.

7:128. Said Moses to his people:
"Pray for help from God, And (wait) in patience and
constancy: For the earth is God's, To give as a heritage
To such of His servants As He pleaseth; and the end
Is (best) for the righteous.

Three Forms of Sultaniyyah

In any social system there are three forms of authority or Sultaniyyah.  Max Weber “defined authority as occurring when there is a probability that people will obey a specific command. He defined legitimate authority as occurring when people obey the authority because they regarded it as rightful.”[8]  He divides types of authority into traditional, legal/utilitarian, and charismatic.  All of these types depend on power to enforce their authority.  Power is of two types, by dominance, and by influence. [9] Tyrannies rule by dominance through direct and continuous control.  Democracies claim to rule by consent and influence, by indirect control. [10]

In order for a society to be able to control human behavior, the people in that society must know the rules.  They must be afforded an opportunity to follow the rules.  Therefore, any authority must have the ability to make law, what we call legislative authority, and be able to enforce the law, what we call executive authority.  Furthermore, in order to hold people to account for their actions and carry out punishments for infractions of the law, the people must have access to a system for addressing grievances and infractions of the law.  We call this judicial authority.  This tri-partite system of governance of human affairs is referred to Islamically as Wilayat.  

Khalifat vs Wilayat

So is there a difference between the khalifat described in the Qur’an and this concept of wilayat?  In his discussion of the difference between the Islamic economic system and the Capitalist and Communists systems, Sayed Muhammad Baqir al Sadr also notes that khalifat is collective. [11]  It belongs to all Mankind, and is not the province of an individual.  However, his translators at least, and many others seem to equate the term with Waliyyu l’Amr, a term we shall endeavor to define shortly, Inshaa llah. 

As humans, we are individuals, but we are also social.  We require society to survive.  This is born out by science.  Feral children, raised in isolation, if not socialized at the appropriate age, will die.  Moreover, solitary confinement in prisons has been shown to lead to insanity.  The resulting depression and insanity can lead to death.  Anthropologists have a saying, “A lone ape is a dead ape.”  We are by necessity, social.[12]

Islam assumes we are individuals, capable of individual action and responsibility.  Over and over, Allah SWT tells us in the Qur’an we are each, as individuals, responsible for our own souls.  And no one can bear the burden of another.  Moreover, many acts are individually obligatory, the Fard al Ain.  Prayers, fasting, Hajj, etc may have communal components, but each person is obliged to perform these acts of Ibadaah.

However, Islam also recognizes our social collective nature.  We worship in jama’a.  We do all of our acts of Ibadah communally, including Hajj.  Each act of worship in Islam has individual and collective components that speak to the full human being.  Moreover, we have certain duties that are Fard al Kifayyah – collective responsibilities.  Islam does not make each person responsible for these acts, only the whole community, but if no one is performing them, then the responsibility becomes individual, a Fard al Ain.  An example is knowledge of inheritance law. [13] Not everyone needs to know it, but if it were in danger of being lost, everyone would be responsible for it, until such a time as someone came forward and assumed that responsibility.

So is khalifat related to our natural individual aspect or our social aspect?  Are we each individually Khalifah?  Is khalifat Islamically a Fard al Ain?  If so, what would that responsibility be?

If khalifat meant rule or wilayat over the Earth, then we would be the successor to the one who originally ruled and had authority – Allah SWT.  Istaghfirullah.  This is patently false.

7:128. Said Moses to his people:
"Pray for help from God, And (wait) in patience and
constancy: For the earth is God's, To give as a heritage
To such of His servants As He pleaseth; and the end
Is (best) for the righteous.

Moreover, if khalifat was about waliyat or rule, there would be a shariah or law which we, as rulers, would enforce.   However, the laws governing the Earth, the natural laws, are only enforceable and actually enforced by Allah SWT.  We do not enforce gravity, physics, chemistry, geology etc.  We may discover these laws, but we are in no way in authority to enforce them.  We are only subject to them, willingly or unwilling, like every other created thing.

Shariah or Divine Legislation and its human understanding, fiqh, are the only laws enforceable by man.  And these laws only touch human society. 

So the meaning of the term “khalifah” is not rule by humanity over the Earth.  What then, is it?  What were the Malaaikah doing here?  We learned before they were serving Allah SWT unquestioningly.  Allah SWT says, “ I have not created men and jinn except to worship me.”  The Arabic term implies not only worship, but servitude – Uboodiyah.  We were made successors upon this Earth to serve Allah and treat the Earth and its inhabitants as Allah orders us to do so.  In doing so, we are successors of the Malaaikah in carrying out the commands of Allah SWT.  We are charged with enforcement.

Allah SWT tells us we should not waste; we should not hoard or prevent others from obtaining their needs.  This applies to all living things, not just people.  We all know the hadith about the woman who locked her cat in a closet and refused it food, as well as the one about a prostitute who gave water to a thirsty dog.  No matter what your opinion regarding the authenticity of these reports, no one can deny that we have not only reciprocal human responsibility but also responsibility toward all Creation because we are human and the most honored of all creatures by Allah SWT. 

Our khalifat is collective, a Fard al-Kifayyah, to be just to all living things, and even to inanimate creation.  This is borne out by the Surah al Zilzaal.  Mankind will be collectively judged for his treatment of the Earth.

99:4 That day she will relate her chronicles,

5 Because thy Lord inspireth her.

6 That day mankind will issue forth in scattered groups to be shown their deeds.

The true nature of khalifat is not rule and command over Creation, but trusteeship and stewardship of the Earth, as servants of Allah SWT.  We are tasked with carrying out and enforcing Allah’s will upon the Earth.  But what is the nature of that enforcement authority and what “law” are we enforcing?

Wilayat and Waliyyu l’Amr

What then is Waliyyu l’amr?  As we noted above, it is tied to our social aspect.  Command can only be through Law, and since natural laws are enforced by Allah SWT, then for humans, the only law that we have the ability to enforce is social law.  In Islam, our social law is sourced in the revelation provided by Allah SWT.  He is the Divine Legislator and Shariah is the Divine Legislation.  Mankind then, is tasked with understanding that law in Fiqh, and enforcing it in Justice

an-Nisaa,  4:59 O ye who believe! Obey Allah, and obey the messenger and those of you who are in authority; and if ye have a dispute concerning any matter, refer it to Allah and the messenger if ye are (in truth) believers in Allah and the Last Day. That is better and more seemly in the end. 

The Qur’an tells us to obey Allah and His Messenger, and those empowered with Amr from among you.  Those who have been empowered with Waliyyu l’amr are those who are mentioned in Surah al-Imran

Al-Imran 3:104. Let there arise out of you A band of people
Inviting to all that is good, Enjoining what is right,
And forbidding what is wrong: They are the ones To attain felicity.

These people are those who call to the best of behavior and civility.  They command what is good and prohibit what is evil.  They call to not only right and wrong, but to moral and ethical action.  And they are the ones who are successful. 

---

[1] The Republic, Plato, trans. Benjamin Jowett, http://classics.mit.edu/Plato/republic.html, accessed March 23/2015.

[2] “Giza Secret Revealed: How 10,000 Pyramid Builders Got Fed,” Owen Jarus, Live Science Website, 4/23/2013,  http://www.livescience.com/28961-ancient-giza-pyramid-builders-camp-unearthed.html, accessed 3/23/2015.

[3] Jane Goodall discovered tool use by chimpanzees, and studies on crows show they also break off twigs and modify them to perform certain tasks.  See  People of the Forest , a documentary about the chimps of Gombee reserve, and A Murder of Crows, a documentary on crows.

[4] All ayaat of the Qur’an in Arabic are taken from the Hypertext Quran website:  http://www.sacred-texts.com/isl/htq/index.htm.

[5]  See, “Baboon Social Life”, Amboseli Baboon Research Project Website, http://www.princeton.edu/~baboon/social_life.html, accessed 3/23/2015.

[6] The Stanford Prison Experiment Website, http://www.prisonexp.org/, accessed 3/23/2015;  Ðemostrating the Power of Social Situations via a Simulated Prison Experiment,” American Psychology Association Website, http://www.apa.org/research/action/prison.aspx, accessed 3/23/3015. 

[7] Siraj Sait and Hilary Lim, Land, Law and Islam: Property and Human Rights in the Muslim World, (Zed Books, London 2006) 1. (quoting Abdul Rauf 1984:19). See also Sayed Muhammad Baqir Al-Sadr, Iqtisaduna, Vol II, English Trans. Pp. 49-52. 

[8] “Weber’s Three Types of Legitimate Authority,” Power Point Presentation,  Slide 1, http://home.ku.edu.tr/~musomer/Lecture%20Notes/intl204%20State-authority.pdf, accessed 3/24/2015.

[9] Id.

[10] Although democracies claim to rule by agreement, many use propaganda, advertising and brain washing to control people and ingrain obedience. Only Islamic Shura Consensus government and other forms of consensus-based governance, such as Native American governments, truly rule by agreement and consent, and obtain authority through positive, non-coercive influence.

[11] Iqtisaduna, Muhammad Baqir al-Sadr, Vol. II, English Trans. P. 54

[12] See  “The Heartbreaking Case of Genie,” Christina Sterbenz, Business Insider Website, 10/9/2013, http://www.businessinsider.com/critical-period-for-language-acquisition-2013-10, accessed 3/23/2015; See also the following for famous cases of feral children.   “Ten Modern Cases of Feral Children,”  Fritha Keith, List Verse Website, 3/7/2008, http://listverse.com/2008/03/07/10-modern-cases-of-feral-children/, accessed 3/23/2015;  See the following on solitary confinement, “Alone, in “the hole,” Kirsten Weir, American Psychological Association Website, May 2012, vol 43, no. 5, http://www.apa.org/monitor/2012/05/solitary.aspx, accessed 3/23/2015.

[13]  Abu Hurairah narrated that the Prophet SAW said, “O Abu Hurairah, learn faraa’id (inheritance law) and teach it to them.  Indeed it is half of knowledge.”  This has been interpreted to mean that that knowledge of faraa’id is a Fard al-Kifayah, a communal obligation and at least one person in an area must have knowledge of it.  Islam versus Gender Equality: Magaji Chiruma, Umar Suleiman Abbo-Jimeta, Laminu Bukar,  p. 268, EU Journal Website,  http://eujournal.org/index.php/esj/article/viewFile/3801/3617, accessed 3/23/2015. 

Ahl Al Bayt Should Sue Charlie Hebdo

WHY DO WE INSIST ON SLANDERING PROPHETS?

Free speech is a fundamental human right, but freedom of any kind should never be at the expense of another of Allah’s creation.  Plato, in his Republic, was one of the first to explore the tension between individual freedom and the need to restrain that freedom so that others might be free. 

Today, however, we seem to have forgotten that individual freedom of expression has limits.  In Western law, slander and libel are considered serious infringements on the rights of other individuals.  As an attorney and member of the bar in the United States, I have been asked to help clients seek redress for defamatory statements made by individuals and by journalists. 

Slander and libel are both torts, civil harms, under American and European law.  Both are forms of defamation.  Defamation is the publication of untrue and damaging statements.  Defamation that is visible, for example in the print media, or in a letter or other written documents, is called libel.  Defamation that is audible, such as on television, radio, or as part of a speech or lecture, is called slander.

In order to show defamation, a plaintiff to a court case would have to show:

1.      That the person made a false and defamatory statement regarding the plaintiff

2.      That the person made an unprivileged publication to a third party

3.      That the person acted negligently in doing so

4.      That the plaintiff was damaged by the statements

For private individuals, defamation claims can be fairly straight forward.  Typical examples include falsely accusing a person of committing a crime of morale turpitude, or of committing a felony crime, as well as subjecting a person to ridicule, such as impugning a person’s morality, character or integrity.  Statements that might impair a person’s economic or financial well-being or that cause others to refrain from socializing with that person are also defamatory.

While these types of defamatory harms would appear to apply to everyone, public figures have had a harder time pursuing such claims legally.  Public figures are expected to have a thick skin.  Because of their public presences, they are considered to be legitimate targets of investigation in terms of their moral and legal behavior.  We look up to public figures as role models, so we expect them to embody society’s values.  They almost have a fiduciary duty toward society, a duty born of the special treatment we give them.  Fame comes with responsibilities.  We expect famous people to live up to those responsibilities and so we allow them to be subject to more close scrutiny in regards to their characters and behaviors. 

However, how far should we allow this to go?  We are all familiar with tabloid newspapers.  Some exaggerate truth to make things sound more “sexy.”  After all, their goal is to sell a product, their paper or tabloid website or TV program.  The exaggerated claims they make are somewhat like product “puffing,” the type of exaggeration product manufacturers or shop keepers use to sell products.  We have historically allowed exaggerations, but not slander or libel. 

Exaggeration is not the same as lies.  Ethically, it may really be just as immoral, but we have historically tolerated it.  P.T. Barnum said something to the effect that there is a sucker born every minute.  We are adults, we assume that we will know exaggeration when we see it, and take such claims “with a grain of salt.”  However, even here we have set social limits.  We would not tolerate someone who took advantage of a person with cognitive limitations or who defrauded someone based on such puffing and exaggeration.  We call this fraud. 

Slander and libel are like fraud; the claims are false, in fact they are patent lies; and the other person is harmed by it.  Fraud is considered a criminal act, as well as a tort, but slander and libel are only civil claims.

Shariah Law, the Divine Legislation, has taken a different view of defamation.  Islamic Law does not tolerate fraud or false claims.  Gharar is haram under Shariah Law.  Gharar is a term that indicates any form of vague or undisclosed terms or conditions in a contract.  It is a serious crime in Islam.  La Gharar and La Riba are the foundations of Islamic Finance and Economic Law.  Violating these two principles puts one in a state of harb or war with Allah SWT. 

Shariah Law is designed to protect and promote the Maqaasid or Objectives of the Law.  These include protection of faith, of life, of property, of lineage and dignity and of the intellect.  Defamatory statements go to the heart of the Maqaasid in that they attack a person’s dignity, but they can also destroy a person’s economic life, and impact all the other maqaasid as well. 

We may have heard of the term Qadhaf.  Qadhaf is sometimes translated as slander, but it is a particularly insidious form of slander – false accusations of sexual misconduct.  People love to sling mud.  We see it all the time in the media, accusations of sexual promiscuity and misconduct by celebrities.  Because they are public figures, we seem to tolerate it.  We love to think of these proxies for our own dreams as having rich lives, full of all sorts of material pleasures. While this may seem fine to some, in reality it denigrates those individuals and cheapens our whole society.  Role models are expected to elevate us all, not drag us into a cess pit. 

While Western society might tolerate such cheeky innuendos and accusations, Islam does not.  Allah SWT did not tolerate the false accusations of sexual misconductby the Prophet’s wife, Aisha RA, flung around by the loose lips of some.  False accusations of sexual misconduct are punishable by 80 lashes and impugning of any future testimony.  Allah SWT has sent a clear message that He will no tolerate such behavior.  It is nasty, dirty and foolish.  We all may snicker at the innuendos, but in reality, it is a disgusting form of backbiting.  It is sleazy and it makes anyone who touches it sleazy.

Qadhaf, however, only refers to false statements of sexual misconduct.  Other forms of slander and libel are also haram in Islam.  These forms would not be punishable by the Hadd punishment of 80 lashes, but would be punishable as a Ta’zir crime, with punishment at the discretion of the judge, depending on the specific facts of the case.  This includes fines, impugning of any future testimony, and a lesser number of lashes. 

SLANDERING PROPHETS

Human societies all agree that defamation is a serious breach of the social contract.  Living in society means, a Plato mentioned, that we have to balance rights.  We all have rights and we have to consider the rights of others.  Freedom can never be unrestricted; to have it be so would be unjust. 

Speaking of justice, throughout human history, we have had public figures who have spoken out in favor of justice.  Some have died in the struggle for justice in human society.  They have reminded the people of their duties and responsibilities toward one another, and have spoken out against oppression and evil.  Many of these figures we call Prophets.  Ibrahim, Musa, Isa, and Muhammad SAW all spoke out against injustice.  They were champions of the poor and oppressed.  The Pharisees rebuked Isa AS for hanging out with the poor.  So did the elites who rebuked Salih AS, and Muhammad SAW. 

Yes, these men were public figures I suppose, but why do we insist on defaming them?

I understand that those who advocate this so called free speech are using the founders of religions or philosophies as a symbol to speak out against the oppressive and unethical actions of those who claim to be the followers of that founder.  We use Isa AS as a symbol for Christianity as a whole, and any time we want to ridicule or speak out against some aspect of Christianity or some group of its adherents who are acting unethically, we defame Christ instead. 

A picture of Jesus (AS) covered in urine might be a way of expressing the idea that Christianity is not to the liking of the “artist”, and so should be pissed on.  However, is it really necessary? Is it really art?  Yes, I suppose it is an expression of something, but art is quite often so full of itself as to be mere arrogance. 

Admittedly, Islamic culture is not as obsessed with symbols as is Western culture.  The Arabs are a matter-or-fact people, and the Qur’an is Mubeen, clear.  Although it contains the most soaring passages of spiritual insights, it does so in a clear and un-confusing manner. 

So it is natural that Muslims would find symbolic expressions aimed at pointing out unethical behavior by those who claim to be the adherents of Islam, unintelligible.  All we see is hate.  And in reality, despite all the claims of free speech and free artistic expression, what we have seen is nothing but hate. 

Repeatedly insisting on publishing material that is known to offend people is nothing more than hate.  Certainly the reactions of some who claim to be Muslim have been not only unacceptable, but haram and fasaad (criminal) in Islam as well.  The events in France at the Charlie Hebdo publishing firm are criminal under any law, including Shariah Law.  But, the repeated publications of offensive cartoons is also criminal.  It defames a person who came to support the poor, the orphan, girls, women, widows, slaves, debtors, all who are needy and oppressed. 

As a descendent of the daughter of this man of peace and love, I am personally offended by the defamation.  Innuendos of pedophilia, of sexual misconduct, of depravity are the worst forms of slander and libel.  Depictions of my ancestor as a war-monger and killer are equally disgusting.  Lest these advocates of hate speech forget, defamation is a civil cause of action.  Perhaps, we who are descended from the daughter of the Prophet should sue on his behalf, or if the law does not permit to sue on behalf of the deceased, then on our own behalf, for defamation.  We could do so in both France and United States, with any renumerations going to charities. 

THE LOST BOYS

The individuals who perpetrated the crimes in France were misguided, foolish young people, who were easily brainwashed into violence.  Arabs form an underclass in French society, much as Hispanics do in the United States.  Many are poor, have little education, and little prospects of enjoying the material life depicted in the media and advertising.  The young man who took hostages in the Jewish grocery had a criminal history and had spent time in prison for theft.  The two brothers who attached the publishing house had a propensity for violence and no understanding of the religion or the man they claimed to be defending.  Moreover, despite the fact that violent elements in Yemen have claimed association with the attack, it is not likely it was organized by any real group, other than the two criminals who carried it out. 

Al-Qaeda – it means “the leaders.”  It is a Hollywood created name, if there ever was one.  We in America pronounce it “El –Kaydah,” which ironically means “the plot.” 

Innahum yakeedoona kaydan

Waakeedu kaydan

Famahhili alkafireena amhilhum ruwaydan

Al-Tariq  86: 15. As for them, they Are but planning,

16. And I am planning.

17. Therefore grant a delay To the unbelievers:

Give respite to them Gently (for awhile).

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So the young men who attacked Charlie Hebdo claimed to be associated with El Qaeda, and the other man claimed to be associated with ISIS.  Clearly none of these men were really Muslim or really had anything more than criminal intent.  It is a shame they fell through the cracks, and that because of the racism and anti-immigrant sentiment that pervades many Western countries, they were unable to find a more productive and healthy way to use their talents and energies. 

The world is filled with disgruntled young men of every ethnic and religious background.  We have created them.  We have killed their fathers, mothers, brothers, sisters. We have destroyed their societies.  We have railroaded them into poverty.  We open factories in their home countries; then, we hire only women, who are subjected to hideous working conditions and monthly pregnancy tests.  So the men are forced to look for work outside their countries; low paying jobs no one will do – menial, physically draining, back-breaking, demeaning, and most of all, not the glamorous material paradise kind of jobs advertised on TV and the Internet.

These immigrants saddled with tremendous stress.  Their families gave them all their money to go to the West.  They have the expectations of so many riding on their backs.  But it is more expensive here than they thought.  They live in poverty, not the luxury they imagined.  And they expected to send money home.  Some support whole villages.  They are torn between two worlds, not belonging to either.  Homesick and depressed, they feel like failures because they did not get rich.

Now their sons are growing up in this surreal world.  The depression of the parents infects their souls. They begin to hate their parents and their back-home mentalities. They are brainwashed in school, taught about the new culture, the superior culture.  But soon enough, these sons figure out, they are not really included in that new superior culture.  They never will be.  They are brainwashed to crave the tech toys, the wide screen TVs, the I-phones, and they will spend every last dollar or Euro to get them.  But even with all those toys, they will never be accepted.  And the homelands of their fathers won’t accept them either.  They are lost.

The lost boys – children of vampires.  The vampires are the societies that suck their blood dry, suck their spirits dry.  The materialistic societies have sucked the life out of their parents, and now it’s after them too.  No wonder they strike out. 

EXTREMISM

We live in a society that craves extremes.  Extreme sports, extreme partying, extreme games, extreme entertainment, extreme everything.  France has just experiences a clash of extremism.  Charlie Hebdo is an extremist too.  Extreme satire – extreme speech – extreme entertainment.  Why else would they choose to publish the same offensive cartoon on the day they returned to publication?  In such an extremist atmosphere, is it any wonder that the lost boys chose extreme violence as a means for expressing their angst?  Let me ask you, if picture of Jesus AS in piss, and cartoons of the Prophet as a violent and ugly madman are artistic expression protected by freedom of speech, then why is not the expression of these young men not? 

Well, they killed people.   Yes, and under both Western and Shariah law they have committed a crime.  But how many times have Western armies killed?  How many wedding parties have been bombed in Afghanistan?  We apologize….  “Oh, it was a mistake.”

The world is drowning in extreme hate.  No one is innocent.  We all have the blood of innocents on our hands.  When will it stop? 

On the same day as Charlie Hebdo, 2000 people were killed in Nigeria by the Boku Haram. 

“There is a hole in the bottom of the earth, where the blood pours out at the end of the day, when the usual amount of people have died.”  (Desecration). 

What is the solution?  Islam is … if we really follow it.  But most of us don’t.  I pray more of us will.