Shariah’s Black Box

[21]  Zakah (sometimes referred to as zakat), which literally means purification, is a form of religious tax for assisting the less fortunate and those that “struggle for Allah.” The amount is between 2.5% and 20%, depending upon the source of the wealth, but it is typically on the lower end (2.5%) of the scale. The amounts also vary based upon which of the four Sunni schools of jurisprudence one follows. Shi’a Muslims also follow their own jurisprudence which also accounts for some of the variation. For a fuller discussion of this religious tax and its use to support those who “struggle for Allah” or fight against non-Muslims in holy war (i.e., Jihad), see John D.G. Waszak, The Obstacles to Suppressing Radical Islamic Terrorist Financing, 37 Case W. Res. J. Int’l L. 673 (2005).

[22] See the extended discussion on purification by a well-known American Shariah authority, in Yusuf Talal DeLorenzo, Shariah Supervision of Islamic Mutual Funds, available at http://www.djindexes.com/mdsidx/downloads/delorenzo.pdf (last visited Jan. 24, 2008).

[23] Yusuf Talal DeLorenzo, Dow Jones Universtiy Questions and Answers, Question 32, available at http://www.central-mosque.com/fiqh/dow.htm (last visited Jan. 24, 2008).

[24] For a thorough discussion from a “moderate” Shariah authority on the full theological and jurisprudential analysis of Shariah, see Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (2003).  For the specific discussion of “abrogration”, which is the juridical view of latter Qur’anic verses which contradict earlier ones, see id. at 202-227. For an analytical and objective analysis of Islamic jurisprudence and its implications for Muslim-non-Muslim relations, see Stephen Collins Coughlin, “To Our Great Detriment”: Ignoring What Extremists Say About Jihad (with appendices) 83-133 (July 2007) (unpublished thesis,NationalDefenseIntelligenceCollege).

[25] Because the original Arabic Qur’an is not formally numbered and there are no periods in classical Arabic setting off one verse from another, Islamic canon typically breaks the 114 suras or chapters into 6,236 ayat or verses, but other counts are also used.

[26] There is also a healthy debate over which verses in the Qur’an are actually legal sources (ayat al-ahkam) such that laws are directly or indirectly derived from them. According to most scholars, the debate centers on the context of the appearance of a verse which has within it a connection to normative or instructional language. Some include all such verses while others only count those verses which are clearly “legal” in that they address authorized or prohibited behavior. See, e.g., Kamali, supra note 24, at 25-27.

[27] Hadith is singular for ‘tradition’. Ahadith is the plural. This memorandum uses Hadith as the collective body of traditions.

[28] The Hadith were not formally collected between 100 to 200 years after the death of Mohammed. See generally The Islamic School of Law: Evolution, Devolution, and Progress viii-xii (Peri Bearman, Rudolph Peters & Frank E. Vogel eds., 2005) ; see also Coughlin, supra note 24, at [page number here] n.90:

Individuals associated with Muhammad in his lifetime were called “companions.” Among the numerous companions, the seven most prolific commentators on his life were Abu Hurrairah ‘Abdur Rahman bin Sakhar Dasi (5,374 Hadith), Abdullah bin Umar bin Khattab (2,630), Anas bin Malik (2,286), Aisha (2,210), Abdullah bin Abbas (1,660), Jabir bin Abdullah Ahsan (1,540), and Sa’ad bin Malik Abu Saeed Khudhri (1,540). The compiled Hadith of these companions did not survive in their original creations but were passed down and collected by numerous Hadith collectors of varying quality and repute. Six scholars stand out among Hadith collectors for the reputed accuracy and authenticity in the selection of Hadith they chose to include as a part of their collections. In precedent order, the six “correct” collections of the Sunni, also called the “Six Canonical Collections” (the Sahih Sittah), are the works of Bukhari, Muslim, Abu Dawud, Tirmidhi, Ibn Maja and Nasa’i. Hence, if a story concerning Muhammad is related through one of the six “correct” collections and it reliably cites one of the seven companions, a presumption emerges, verging on irrebuttable, that the texts cited are accurate for the points being made – as matters of both Islamic theology and law. Because those accounts are presumed reliable, the Sunna arising from them cannot be construed to contradict the Qur’an but rather are to be understood as doctrinally authoritative explanations of the Quranic verses they support: “Whatever the Messenger gives you, then take it and whatever he prohibits you, then stay away from it.” (Qur’an 59:7)

[29] The debate over the role the Hadith should play as the secondary basis for Shariah is in fact the debate between the traditionalists who follow the millennium-old doctrine of the Islamic legal schools versus the progressives, typically in academia. The former account for the “Shariah authorities” and the latter for university professors who wish to distance themselves and Islam from the quite bellicose legal-military doctrines derived from the Hadith. The subject is fascinating and rich with drama but not one this memorandum can take up. The interested reader should begin with Coughlin, supra note 24, at 83 et seq., and then turn to one of the founders of the academic study of Shariah and Islamic jurisprudence, Joseph Schacht. Must reading would be Joseph Schacht, An Introduction to Islamic Law (1982), and Joseph Schacht, Muhammadan Jurisprudence (1950). Revisionists abound and two interesting versions are Wael B. Hallaq, A History of Islamic Legal TheorIes (1997) and Wael B. Hallaq, The Origins and Evolution of Islamic Law (2005) on the one hand; and M. Mustafa Al-Azami, On Schacht’s Origins of Muhammadan Jurisprudence (1996) on the other hand. Useful also would be Kamali, supra note 24.

[30] Shi’a Islam differs from Sunni Islam theologically on who they consider to be legitimate successors to Mohammad’s reign as leader of the Muslim Umma or nation. This has jurisprudential consequences because Shi’a Muslims, who await the return of the Fourth Imam or Caliph following Mohammed, consider their Imams who have followed in the Fourth Imam’s footsteps to be his stand-in until his return and as such they share his infallibility. Thus, the leading contemporary Shi’a Imams are considered by their followers as inerrant and their legal rulings take on the perfection one would expect from inerrant beings. See Coughlin, supra note 24, at [page number here] n.52 and accompanying text.