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« on: Aug 28, 2012 03:00 AM »


Islam and Liberty: A Comparative Analysis
 
The following is an adaptation of a lecture frequently given by William Coley, Director of  Muslims for Liberty. The name of the lecture is “Islam and Liberty”. In it, he explores the historical roots of the “essential rights” (also known as the “natural rights of man”), and how they have striking similarities with maqasid al-shariah (“the intentions of Islamic law”). What follows is his interpretation of these commonalities, and how they can help Muslims rediscover their claim to these noble principles . On a practical level, one should keep in mind that modern “Muslim” governments fail to embody these commonalities. One should also keep in mind that there are historical instances of Muslim communities or governments which have not followed the guidelines of Islamic law and were instead involved in spreading corruption and oppression.
 
Bismillah ar Rahman ir Raheem
Islam and Liberty
By William Coley, Director of Muslims4Liberty
Edited by Ramy Osman
www.muslims4liberty.org
 “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…”, quoted from the American Declaration of Independence of July 4, 1776.
In the time of the American founding fathers, these were radical and extreme ideas. Though they may have been “self evident”‘ to people like Thomas Jefferson and John Adams, they were not self evident to King George of England, or to most of Europe for that matter. What the founders were suggesting was a radical restructuring of the social hierarchy. In a world of lords and kings, these men dared suggest that all men, even a king, were created on equal footing. That all men are given the same rights, and are held accountable in the same way. These inalienable rights are granted not by monarchs or parliaments, but by God the Creator. The founders thus thought to call on a higher authority, the Creator Himself, as their claim to legitimacy in making their declaration.
This was not the first time in history that such a radical restructuring of society was attempted based on these principles. More than 1000 years prior, one person single-handedly attempted to restructure the society he lived in based on the belief in “One God”, and based upon the concept of peoples “God-given rights”. Throughout his life, the Prophet Muhammad (peace be upon him) advocated for rights similar to what the founding fathers were calling for. But his advocacy went beyond that of the founders (being that the founders were mainly advocating for the rights of males of European descent). The prophet Muhammad strove to ensure the rights of women, orphans and the poor. He also sternly advocated for the end of slavery. The prophet Muhammad’s advocacy is beautifully summarized in a quote from his final sermon, and for centuries his true followers struggled (and continue to struggle) to uphold these rights:
“All mankind is from Adam and Eve.  An Arab has no superiority over a non-Arab, nor does a non-Arab have any superiority over an Arab; white has no superiority over black, nor does a black have any superiority over white; [none have superiority over another] except by piety and good action.”
In what follows, we will explore the concept of God-given rights as laid out by the founders. We will also explore how these rights have their roots in the Islamic legal tradition. To begin with, it is a historical fact that over the centuries, the western and Islamic legal traditions have often come into contact with one another. The result of this interaction has at times resulted in more concepts of liberty finding its way into the historical development of the western tradition. One could venture to say that the height of Islamic civilization was characterized by the preservation of individual liberty. There are examples of Jewish and Christian peoples seeking refuge and protection in Islamic countries due to their being persecuted in Christian Europe. They sought refuge under Islamic law which preserved their liberties. There are also examples of Jewish and Christian communities thriving in Muslim territories, where these communities were granted semi-autonomy by maintaining their own religious and traditional court systems separate from the ruling Islamic court system.
The preservation of liberty in Islamic history is a vast topic beyond the scope of this analysis. But suffice it to say that these liberties were guarantee by the teachings of the Islamic religion itself. This is in stark contrast to how the concept of liberty and freedom developed in western civilization. There, these concepts stemmed from a struggle against the ruling Church which actively suppressed peoples liberty and free thought. Once the west was free from the shackles of the Church, were they then able to achieve political and scientific freedom. Interestingly enough, where western civilization found their liberty directly related to freedom from the Church, Islamic civilization found their liberty directly related to reliance upon Islamic law.
From the 12th century onward, some of the legal concepts expressed in the common law system can be traced as having been influenced and even derived from Islamic sources. There are legal concepts that did not appear in the English legal tradition until after exposure to the Islamic courts and its legal system. Professor John A Makdisi (Professor of Law, B.A., Harvard College, M.A., St. Vincent de Paul Seminary, J.D., University of Pennsylvania, S.J.D., Harvard Law School) writes in his ” Islamic Origins of the Common Law”(1999):
“The Islamic legal system was far superior to the primitive legal system of England before the birth of the common law. It was natural for the more primitive system to look to the more sophisticated one as it developed three institutions that played a major role in creating the common law. The action of debt (Aq’d), the assize of novel disseisin (Istihqaq), and trial by jury (lafif) introduced mechanisms for a more rational, sophisticated legal process that existed only in Islamic law at that time.”
Thomas Brown (known in Arabic as Qaid Brun) is often credited with a good portion of this influence. Brown worked as a Qaid of the royal Diwan throughout the reign of Roger II of Muslim occupied Sicily. After the succession of William I in 1154, Brown left Sicily and worked as royal exchequer for Henry II of England during the formulation of the Common Law. Professor Makdisi asserts that concepts like the presumption of innocence, precedent/precept law, equity before the law, and the right to a trial were all reinforced into the common law by way of Brown and other scholars like Simon of Apalia.
Another foundational basis for what is often mistakenly considered as uniquely western freedoms, is the document of the Magna Carta. This document was chartered in an attempt to force the English king to be subject to the common law the same way everyone else is subject under the law. Libertarian philosopher and historian Rose Wilder Lane discusses in her 1943 book ” The Discovery of Freedom”, that the crusaders were exposed to Islamic legal theories when in Palestine and subsequently brought some of these ideas home with them. They saw that the leader of the Muslims, Salahuddin (Saladin) al Ayubi, was not a “king” in the sense that they knew. But rather he was a Muslim among Muslims, and was held accountable before the law the same as any other man. When the crusaders returned home, this idea spread among the population until the people demanded the same of their own king and government. The fact is, accountability of rulers is rooted in Islamic history and teachings. You can find examples in the Qur’an, the sunnah (prophetic traditions), and the courts of the Rashidun Caliphate.
An example in the Qur’an is the following verse:   “O you who believe! Stand out firmly for justice, as witnesses to God, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for God can best protect both. Follow not the lusts (of your hearts), lest you swerve, and if you distort justice or decline to do justice, verily God is well-acquainted with all that you do.” (Chapter 4:Verse 135)
An example from the traditions of the prophet Muhammad (pbuh) is the following:    On the day of Badr, the Messenger of God (pbuh) straightened the ranks of his companions using an arrow that was in his hand. As he walked by Sawad ibn Ghaziya, who was standing out of line, he pricked him with the arrow in his belly saying, “Sawad, stand in line”. Sawad responded by complaining, “You hurt me, Messenger of God. God has sent you with truth and justice, so let me retaliate”. The Messenger then uncovered his belly and said, “Go ahead, take your retaliation”. Sawad then embraced the Messenger with a hug, and kissed his belly.  (source: Ibn Is-haq, “The Life of Muhammad”)
And an example from the Rashidun Caliphate is the following:
The Qadi (Judge) Shurayh said: When ‘Ali was setting out to Siffin (‘Ali was the cousin of the prophet, and he had just been appointed as Caliph), he found that he was missing a coat of armor of his. When the war was over and he returned to Kufa, he came across the armor in the hands of a Christian. He said to the Christian, “This armor is mine, I have not sold it or given it away. The Christian said, ‘It is my armor and it is in my hand”. He said, “Let us go to the Qadi (judge)”.
‘Ali went first, sat beside the Qadi Suhyayh, where the Qadi said, “Speak O Leader of the Faithful”. ‘Ali said “Yes this armor which this man has is my armor; I did not sell it nor did I give it away.” Shurayh said to the Christian, “What do you have to say?”. He said, “It is my armor and it is in my possession. But I do not call the Leader of the Faithful a liar.”  Shurayh said to ‘Ali, “Do you have any evidence, Leader of the Faithful?”. He said, “Yes. Qanbar and al Hassan (the son of ‘Ali) will bear witness the armor is mine”. Shurayh replied, “A son’s testimony is not acceptable on behalf of his father”, and so the Qadi ruled in favor of the Christian. (sources: Al-Bidaya wal-Nihaya, Volume 8  page 5, see also Tareekhul Khulafaa, page 193)
Another example from the Rashidun Caliphate:
A man from the Copts came to Umar ibn al-Khattab in Al-Madinah and said: “O Leader of the Faithful! I seek refuge in you from oppression” Umar replied: “You have sought refuge where it should be sought.” The Copt said: “I was racing the son of ‘Amr ibn al-A’as, and I defeated him. Then he began to beat me with a whip saying: I am the Son of Nobles!”
As a result, Umar wrote to ‘Amr commanding him to come with his son. When they came to Umar he inquired: “Where is the Copt?” And then said: “the Copt has to take the whip and beat your son Amr!” Consequently, the Coptic began actually to beat the son of ‘Amr with the whip while ‘Umar says to him: “Beat the Son of Nobles!”
Anas said, “So he beat him. I swear by Allah, as he was beating him, we all pitied his wailing. He did not desist until we stopped him.” Then Umar said to the Copt: “Now beat the whip upon ‘Amr’s bald head!” He replied: “O Commander of the Faithful! It was his son who beat me, and I have evened the score with him.”
Upon this Umar said to ‘Amr, “Since when do you enslave the people when their mothers bore them as free men?” He said, “O Commander of the Faithful! I was unaware of this, and he did not come to me (for justice).http://www.muslims4liberty.org/islam-liberty/islam-and-liberty/
 
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