Two recent articles of mine, "CLASS gender and the political economy of Sharia" and "Class Character of Religious Revival" were an intervention in Islamist discourse aimed at articulating the theoretical basis for a particular approach to implementation of Islamic Law. Since the publication of the articles I have come across a few comments supporting its basic premises (in addition to the expected condemnation from the "fundamentalist" camp).

In an interview he gave the Weekly Trust (published in the April 27-May 3 edition) the former Prime Minister of Sudan, Sadiq Al-Mahdi commented on the implementation of Shariah Penal Laws with the benefit of the experience of the Sudan under Nimeiry as follows:

He then proceeded to show how when he came to power he invited Muslim scholars from all over the world to a seminar which reviewed Nimeiry’s Shariah programme and at the end they concluded that it was "wrong in its substance, conception and application." In the same edition of the paper, Dr Aliyu Tilde’s column titled "Shariah and our Welfare" was essentially an endorsement of my position and reminder that this had always been his view. Similar views had earlier been expressed publicly by Ibrahim El-Zakzaky and Dr Usman Bugaje.

The substance of the argument, to recap, is that the word "thief", like all terms, is an object of discourse to be understood against the totality of parameters that give it classification and difference. The Islamic society, as expounded by Sayyid Qutb in "Social Justice in Islam" is one that has as one of its principal economic hallmarks the eradication of poverty and the provision of basic welfare to all its citizens. The position we take is not the "secularist" position that amputation qua amputation is unjust or barbaric. Rather, it is that amputation is just in an environment of economic justice and unjust in an environment of economic injustice. The arguments for this position, in precedence and theory, were articulated in the two papers referred to above.

The purpose of this intervention is not a repetition of covered ground but an extension of theory into the production of knowledge. The necessity for this should be obvious. The metaphysical, fundamentalist approach to Islamic Law has the luxury of certainty. A thief is a thief and his right hand should be amputated. On the contrary, the position I have identified myself with problematizes this certainty. In so doing it compels its proponents to move beyond the certainty and define, in concrete terms, the new discursive parameters defining the term "thief" and the conditions under which his hand can be amputated. In other words what exactly is meant by economic justice and when precisely is it achieved. To the best of my knowledge no one has tried to extend Islamic jurisprudence in this direction. The matter has remained one between two antithetical certainties-to amputate in all situations (the fundamentalist point) or to stop all amputation because its time is past (the secularist ideal). Yet of necessity those who claim a "third way or interpretation," those who treat Shariah as discourse must extend their Ijtihad to the area of praxis. They must define their own parameters if Shariah is to be applied at all.

This paper is therefore a first step into the origination of that extension with all the attendant risks of breaking into new ground. I should like to break the question into two, for clarity. The first is the determination of economic justice at the micro (or house-hold) level. This helps us define the limits of "the poverty line" in an Islamic state. Fortunately there is substantial literature in Islamic Law on the definition of the poor (faqir) and the needy (miskin). The second, which is the area of originality, is to define economic justice at the macro (or societal) level. Although theoretically Islam aims at the eradication of all poverty, in reality there will always be some people living below poverty line. What percentage of the population needs to be above that line for us to say we have achieved economic justice? 50%? 75%? 90%? I intend to define this fraction with precision and to rely for my "magic fraction" on Islamic jurisprudence.

Dr Yusuf al-Qardhawi in his seminal work Fiqh az-Zakat (p.343-352) reviews the various definitions of the poor and the needy given by Muslim jurists. He concludes that the majority of the Schools of Jurisprudence (the Maliki, Shafii and Hanbali) define the poor and needy in terms of "satisfaction of essential needs". According to their criteria, one who deserves zakat as a poor and needy person may be:

"A person who has no property or income at all;

"A person whose wealth and income only partially satisfy his/her essential needs; or

"A person whose wealth and income satisfy more than half of his essential needs but still fall short of fulfilment of those needs."(p.345)

The Malikis and Hanbalis consider a one-year period of such satisfaction while the Shafiis look to a person’s expected life.

Based on the above we can define a household as having received economic justice if the wealth and income of the family head is sufficient to meet essential needs throughout one year. These essential needs are food, shelter, clothing, health and education, if we define "essential" as not only that which a man needs to live but that which he is compelled by Divine Law to provide (as a husband, a father and/or a son of aged and invalid parents).

Having thus defined economic justice with precision it is possible for every state implementing Shariah to obtain statistics on the cost of basic food, shelter, clothing, medicare and education and compute the poverty line. Where the state provides free and qualitative education, healthcare and shelter for all citizens the numbers should be adjusted to account for that.

In any event any one who can not provide this for himself is defined in Islamic Law as either a faqir or miskin, two terms denoting economic poverty. Even where he is full-bodied he is entitled to funds from the Treasury for welfare unless the following situations obtain:

The existence of available employment which is lawful according to Shariah;

The employment being within the person’s ability;

The employment being suitable for the person, his social status and physical and intellectual ability; and

The employment earning him sufficient income for his personal and family needs. (see ibid. P. 352)

 

We can view the analysis above as defining the "welfare responsibility" of an Islamic State and the threshold for the minimum obligation it owes its citizens. The state must strive either to provide employment on the terms listed above or to pay those who are unemployed or unemployable the minimum to meet essential needs for the year. This is the spirit of Modern Welfare States like Britain, which Muslims disdainfully dismiss as nations of Kuffar (unbelievers) even though they are the ones implementing Islamic principles of economic justice.

Next we move to the problematic question: At what point should the state activate the penalty of amputation for theft in its Criminal Statutes?

When the Prophet visited one of his wealthy companions on his death bed, the companion asked his permission to will his entire wealth to charity after his death. "No", the Prophet said. "It is better that you leave your family in comfort than poor and a liability on others." "How about half of my wealth?" He asked. "No", came the answer. "O Prophet of Allah, how about a third?" he persisted. "A third then", said the Prophet. "And a third is a lot".

This Hadith forms the basis for limiting the fraction of a Muslim’s wealth that can legitimately be willed to non-heirs (there is no will for heirs). But it is more than that. Muslim jurists have used it, in ancient and modern times, as a "magic fraction" defining the upper boundaries of tolerable variance in a variety of cases where measurement is possible. I will give only two examples- one ancient the other modern.

In Maliki jurisprudence a Muslim performing his ritual ablution in readiness for prayer is supposed to rub his wet palms over "the totality of the surface of his head". It is however recognized that in all likelihood people will miss a certain portion of that surface and compliance with this rule in full at all times is virtually impossible. So the jurists ruled that leaving part of it is tolerable so long as the untouched part does not exceed one-third of the surface. And the basis was the above Hadith," A third then. And a third is a lot".

The second example is from contemporary Sudanese Islamic banking. The Sudanese agricultural Bank employs a transaction mode called salam or salaf in financing farmers. It is basically a situation in which the bank purchases from the farmer a specified quantity of a specified grain or crop to be delivered at a specified future date. The farmers take the money at the beginning of planting season and after harvesting they bring to the bank the agreed quantity of the agreed crop. Then a problem arose. Farmers complained that the price at which they sold crops in advance to the bank was far less that the market price on delivery, which was sometimes twice what the bank paid or more. They said they were better off under fixed interest borrowing and the justice of the Islamic system came into question. Enter the jurists. The task was to introduce a clause into the salam contract whose purpose was to "remove exploitation". (This clause was called shart izalat al-ghubn). The jurists reviewed Islamic Law and the various rulings of fuqaha and ruled the maximum loss the farmer can suffer as a result of entering into this contract is a third of the price paid. In other words if the market price exceeded the price paid by the bank by more than 33.3% the bank is bound to "redress the exploitation" by refunding the excess in cash or crops.

Having reviewed the above position I make the following propositions. The States implementing Shariah have the duty to aim for eradication of poverty i.e reducing the percentage of population living below poverty line to zero. However, they will be considered as having substantially achieved this goal when it is established that no more than a third ("and a third is a lot") of the citizenry is living below this line. At that point, it is considered just to introduce amputation into the statutes (or activate it in the court system) subject to the details of individual cases which may reveal necessity or other "shubuhat" (doubts) that may compel setting aside the punishment.

As a reaction to my criticism of the amputation of hands in Zamfara I have received several passionate, almost violent reactions. I have been called an "enemy of Sharia", a "modernist", a "secularist" and a "hypocrite", among other sensational titles. It is said that my object is to stir controversy and introduce doubts or shubuhat into settled matters. I must confess that I have questioned certainties and opened up a discussion on matters presented as settled. In this paper I make the further point that my intervention goes beyond criticizing a particular governor or a particular ruling (even though both were deservedly criticized). On the contrary what I seek is to produce knowledge, or contribute to its production. I hope this article opens up new ground in critical discourse and Ijtihad and I aim to be an agent and a participant in a revolutionary process aimed at the renewal of Muslim thought. Most important, I aim to link theory with praxis and contribute to the education and enlightenment of a poor and oppressed citizenry. In the process those who benefit from the ignorance of people and hide behind propaganda and sensationalism will naturally feel threatened. The existence of oppression has always been a necessary, but not sufficient basis for the demand for change. Change requires education, exposure of oppression through deconstruction of its articulations, analysis of the contradiction between its theoretical claims of morality and the practical manifestation of its immorality and, ultimately, the recognition of the contingency of all human construction and confidence in the ultimate triumph of truth and justice.