↑ Return to Islam & Liberty

Islam and Liberty: A Comparative Analysis

Maqasid Al Shariah and Natural Rights

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 guaranteed 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 was appointed Chancellor of Exchequer (equivalent to Secretary of Treasury) 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).”[Sunan at Tirmidhi V 5 pg 656]

These examples all show the high standards set for the behavior and accountability of rulers and leaders in the Islamic tradition. As this spirit was handed down through the generations, it established the spirit of liberty and justice that enabled the Islamic civilization to flourish while Europe was in its transitional “dark” period. The “Golden Age” of Islamic civilization  undeniably played a significant role in providing intellectual and philosophical contributions to the transitional periods of Europe.

Well after the development of the Common Law and Magna Carta, came the enlightenment era in Europe. It was an age that saw the birth of classical liberalism, and an age that laid the foundational basis of what would become the American legal tradition. A scholar of monumental importance and influence during the enlightenment era was John Locke. Locke is the 17th century scholar often hailed as the “father of modern classical liberalism” by philosophers and historians alike. He was a major contributor to the English Bill of Rights. And it was their “rights as Englishmen” that many American colonists accused England of violating. After enduring decades of England violating their rights, the colonists eventually declared their independence. The American constitution that was subsequently drafted, incorporated much of the English Bill of Rights that were being curtailed from them. It was the very same bill of rights that are rooted in the common law and Magna Carta. And it is the very same bill of rights that can be said to have direct and indirect influence from Islamic law and legal traditions.

Life, Liberty, and the pursuit of Happiness” is the idea that defines America. But where do these ideals come from? It is no mystery that Jefferson, Adams, Madison, Washington, and Franklin were all heavily influenced by the political and philosophical theories of John Locke. Locke’s positions on liberty and social contract were the building blocks for the formation of the American Declaration of Independence followed by the constitution. There are expressions in the declaration that are quotations taken practically verbatim from the writings of Locke. One example is the reference to “a long train of abuses”. But the example that is most recognizable is the Lockean quote of “Life, liberty and property”. This quote outlines the natural rights of man that he advocated in his political thought. This quote was also part of the Declaration of Colonial Rights adopted in 1774. And it was Thomas Jefferson who changed the phrase to include “pursuit of happiness” as it appears in the declaration of 1776.

This very same list of natural rights was formalized in the Islamic legal tradition more than five centuries before Locke. Although it was inherently part of Islamic law since the beginning of Islam in the 7th century, the maqasid al-shariah (intentions of Islamic law) were codified into 5 elements by the 12th century scholar Al-Ghazali. Al-Ghazali taught that the preservation of each persons life, religion, intellect, lineage, and property, is the underlying foundation of Islamic law. The maqasid are the intentions or objectives of shariah in creating a secure and just society. The Qur’an says: “Indeed God commands justice, good conduct and giving help to your kin, and He forbids indecency, injustice and oppression. Thus He admonishes you, so that you may be mindful” (Chapter 16, Verse 90).

The first of the 5 elements of the maqasid, is also the first in Locke’s natural rights:

#1) Protection of Life: The maqasid preserves the sanctity of life. No one can harm your ability to live, or your person without due cause or in self defense. No one can take your life unless it is in a life-or-death self defense situation or unless the “state” has been provided with sufficient evidence proving your guilt of a capital offense punishable by the death penalty. The Qur’an says:  “… do not slay any soul, as God has made it sacred, except by way of justice…”  (Chapter 6, Verse 151)

The next in the list of natural rights is “Liberty”. What exactly was intended by this? For Locke, it was preserving ones faculties and freedom of conscience. It can be said that the maqasid splits liberty into three components; Liberty of religion, intellect, and lineage:

#2) Protection of Religious Liberty: Anything that comes between you and the divine must be eliminated. The religious observances of non-Muslims living under Islamic law must also be protected by the Muslim rulers. The Qur’an says: “There is no compulsion in belief. Truth is clearly distinguished from error…” (Chapter 2, Verse 256)

#3) Protection of Intellect: The ability to think and reason for one’s self is paramount. Preservation of intellect is also one of the reasons behind the prohibition of intoxicants. The Qur’an says: “Indeed, the vilest of living creatures, in God’s sight, are the deaf and dumb, those who do not use their intellect” (Chapter 8, Verse 22)

#4) Protection of Lineage: Every person has a right to be born in wedlock thus preserving an individuals claim to lineage and preserving their psychological connection to their ancestors. This is one of the reasons why slavery is forbidden and also one of the reasons why adultery and fornication are forbidden to Muslims under sharia. Lineage cannot be attributed to a child that is the product of illegal sexual intercourse, or to a child lost in slavery.

The last of the natural rights (as mentioned by Locke and then broadened by Jefferson), is the joy of the free marketeer, the protection of property.

#5) Protection of Private Property: No one can damage or take your duly acquired property. The Qur’an says: “Do not consume one another’s property unjustly, except that there be trade amongst you by mutual consent.” (Chapter 4, Verse 29)

This comparative analysis is in no way assuming or implying that there is any direct Islamic influence on American legal theory or on its founding fathers. Jefferson did not pick up a Qur’an or book of Islamic law and start copying what he found. But the influence is there, however indirect and filtered through the generations it has become. This is not an attempt of an apologist looking to find some trace of Islam in everything. But this is an attempt to reintroduce fellow Muslims to their forgotten legacy of liberty. To remind them that they hold a claim as well, to the evolution of freedom across the ages. And that the American experience is as much an expression of their own tradition rooted in Islamic teachings as it is an expression of the evolution of Western legal theory. This presentation is hoped to encourage Muslims to stand up and take their rightful place in the pages of history. To reclaim their place as upholders of liberty and freedom, and to assert this by practicing these values in our communities, mosques, and our own lives.

 

Anything in this that is correct or of benefit it is from Allah (God), and anything that is incorrect is from my own self and shaytan.

 

,

 

13 comments

Skip to comment form

  1. Ibraheem Mohammed

    In addition, It is a mistake to allow people project upon us the false notion that Islam begins with Muhammad. For us,Islam begins with human history, therefore when you look at the laws against murder, God tells us about Cane and Abel, and says in explicit terms, “BECAUSE OF THAT (what happened with Cane and Abel) we legislated upon the children of Israel…” Emphasis on the words > because of that<, before the incident their was no need for a preemptive law. The laws evolved as human societies evolved. We have had Abraham, who abandoned the corrupt societies of Iraq and Egypt precisely because their was no freedom of religion. And God gave him his own two nations in the Levant and in Arabia, through his two sons Ishmael and Isaac. We have had Joseph, three generations later, working in the government of Egypt that his forefather abandoned. Then their was Moses who fled Egypt and the companions of the cave who also abandoned their people without a political fight. And let's not forget the believer among Pharaoh's inner circle, their is no exclusive political system under which a Muslim must live. Our prophet, alaiyhi al salaam, used every method, he wrote the declaration of peace in Madinah with the Jews and pagan tribes. He signed treaties with his enemies, he was patient under their rule of oppression and also ruled over them justly. He sent believers to Abyssinia to live under a just Christian king. So he gave every example of co-existence within different political structures. What more could we ask for in terms of freedom and agency to do good in any society?

  2. Samuel

    Superb website you have here but I was curious if you knew of
    any discussion boards that cover the same topics talked about
    here? I’d really like to be a part of community
    where I can get feed-back from other experienced individuals that share the same interest.

    If you have any suggestions, please let me know.
    Many thanks!

    1. Will

      We’ve actually been discussing creating a forum like that here.

  3. Manny

    Salams,
    I thought you might find this interesting: http://www.youtube.com/watch?v=IQAMUB2PiJA

  4. Richard Anthony

    ” This is one of the reasons why slavery is forbidden ” was your quote , but to say it is forbidden I think isn’t found anywhere in Islam,proper treatment and rights,is,slavery is something that will not ever be abloshed,it can be disguised,and only Islam can maintain it without oppression,

    1. Phillip Slepian

      Point of fact, Richard: Regulations on slavery in the Old Testament, as well as the Talmud, produce a most humane version of slavery. I like to say that had the Southern antebellum U.S. treated their slaves according to Talmudic law, we would still have slavery today. So my point is, while sharia may regulate slavery making it more humane (I have not personally studied this aspect of sharia), it is not alone in doing so.

  5. phil Slepian

    @TheTruth. You made a great point. Whether the punishment of death for apostacy is directly from Muhammed or not, the vast majority of authorities on Sharia law do indeed demand this punishment for apostates. Will and the other folks running M4L have a very unique perspective on Islam and sharia law, a perspective that is not shared by any significant authorities on Islamic jurisprudence. The efforts of M4L to offer a different, new kind of Islam, if genuine and not an example of taqqiya, is admirable, but unlikely to succeed in face of intimidation from the authoritative, powerful leaders of the Islamic world.

  6. TheTruth

    Will,

    When Muhammad advocated that Islamic apostates be punished with death, how do you reconcile this with liberty?

    Thank you sir.

    1. libertarianmuslim

      Simple. He never did.
      You may quote a Hadith, but Hadith /=/ history. It is pure hearsay, including “qudsi”. Sorry Will, you’ve got it jacked up buddy.

  7. Will

    hadeeth qudsi: “Allaah, may He be exalted, said: ‘There are three whose opponent I will be on the Day of Resurrection, and whomever I oppose, I will defeat … A man who sold a free man and consumed his price.’” Narrated by al-Bukhaari (2227).

    “It is not righteousness that ye turn your faces Towards east or West; but it is righteousness to believe in God and the Last Day, and the Angels, and the Book, and the Messengers; to spend of your substance, out of love for Him, for your kin, for orphans, for the needy, for the wayfarer, for those who ask, and for the ransom of slaves; to be steadfast in prayer, and practice regular charity; to fulfil the contracts which ye have made; and to be firm and patient, in pain (or suffering) and adversity, and throughout all periods of panic. Such are the people of truth, the God-fearing.” (baqarah:177)

    “God will not call you to account for what is futile in your oaths, but He will call you to account for your deliberate oaths: for expiation, feed ten indigent persons, on a scale of the average for the food of your families; or clothe them; or give a slave his freedom. If that is beyond your means, fast for three days. That is the expiation for the oaths ye have sworn. But keep to your oaths. Thus doth God make clear to you His signs, that ye may be grateful.” (al ma’iada: 89)

    “Let those who find not the wherewithal for marriage keep themselves chaste, until God gives them means out of His grace. And if any of your slaves ask for a deed in writing (to enable them to earn their freedom for a certain sum), give them such a deed if ye know any good in them: yea, give them something yourselves out of the means which God has given to you. But force not your maids to prostitution when they desire chastity, in order that ye may make a gain in the goods of this life. But if anyone compels them, yet, after such compulsion, is God, Oft-Forgiving, Most Merciful (to them),” (al noor 33)

    Narrated Abu Musa Al-Ash’ari: “The Prophet said, “Give food to the hungry, pay a visit to the sick and release (set free) the one in captivity (by paying his ransom).” (Translation of Sahih Bukhari, Food, Meals, Volume 7, Book 65, Number 286)”

    “Zadhan reported that Ibn Umar called his slave and he found the marks (of beating) upon his back. He said to him: I have caused you pain. He said: No. But he (Ibn Umar) said: You are free. He then took hold of something from the earth and said: There is no reward for me even to the weight equal to it. I heard Allah’s Messenger (may peace be upon him) as saying: He who beats a slave without cognizable offence of his or slaps him, then expiation for it is that he should set him free. (Translation of Sahih Muslim, The Book of Oaths (Kitab Al-Aiman), Book 015, Number 4079)”

  8. Will

    I am Mr Coley and I get paid nothing for my work. I study maliki jurisprudence, particularly those writings of “Golden Age” scholars like al Qaraafi(rA). I am wondering, which scholar of abrogation that you study? As there are many different views on the theory of abrogation. Disagreeing on the number of verses and which verses abrogate which (not to mention the argument against the THEORY of abrogation). Also perhaps you read the writings on this website discussing what you refer to as the “verse of the sword”.

    As for slavery, the freeing of slaves is one of the most righteous actions one can commit. It carries the weight of fasting or prayer and can expiate many sins. The freeing of slaves is highly encouraged. Do you have anything to say to refute the information actually presented here? Or are you self restricted to prepackaged talking points from websites that haven’t equipped you to deal with someone who actually knows what they are talking about?

  9. Kiwi

    Where, exactly, did the prophet advocate the end of slavery? And where exactly, did he forbid it? Mr. Coley does not seem to mention these things which have been a great part of the Islamic economy for centuries.

    And do you not realise that most people are aware that the oft quoted “there is no compulsion in religion” was abrogated by the verse of the sword?

    Who on earth is this Mr. Coley – you must be paying him an awful lot! Or is it that has he never studied Islam but just read the flowery pamphlets written by modern muslims too ashamed to mention what is written (forever) in their religious texts?

    1. ramy

      On many occassions, the Quran and the Prophet (peace be upon him) advocated for the freeing of slaves. Just look at some of the verses in the Qur’an which encourage the freeing of slaves:
      4:92
      58:3
      24:33
      90:13
      The Prophet (pbuh) did advocate for the freeing of slaves, saying that it is a righteous deed that will bring one closer to God, and saying that freeing a slave can be an expiation for ones sins. He (pbuh) strove to build an alternative social order where slavery is eventually abolished. But he did so without fighting and spilling blood over it (unlike some countries). His strategy for ending slavery was by using wisdom and spiritual counseling. And it resulted in the release of many slaves and many people renouncing the role of a slave master. One of his closest companions was Bilal (ra) who was a freed slave. But if some Muslims didnt follow his advice and spiritual counseling then what fault is it of the prophet?? Did you want him to use violence against them??

      And what you say about abrogation is clearly wrong. you have no clue what you’re talking about

Leave a Reply

Your email address will not be published. Required fields are marked *