Nov
03

Equity and Fairness in Islam

One of the courses I have taught across three continents is ethics. Most textbooks (nearly all) are exclusively eurocentric (other than brief nods to other peoples and traditions existing). An interesting conversation we have in class is engaging with how different ethical theories consider equality and equity. In "Equity and Fairness in Islam" (2005) by Mohammad Hashim Kamali provides a useful (albeit legalistic) perspective from Islamic ethics. A lengthy set of notes for interested students in particular:

"there are basically two types of istihsan namely analogical istihsan and exceptional istihsan. The former consists of a departure from obvious analogy [qiyas jali] to a hidden analogy [qiyas khafi], whereas the latter consists of making an exception to the normal rules of Shari'ah in particular cases. In both eventualities, the jurist relies on his personal opinion [ra'y] and carries out ijtihad on that basis for the purpose of avoiding the rigidity and hardship that are feared from strict conformity to existing law." (p. 76)

"The origins of istihsan can clearly be traced back to the Companions especially the decision of the Caliph 'Umar al-Khatab to postpone the prescribed punishment of theft during the year of famine on the ground that applying the normal rules under such conditions would fail to obtain justice and may even amount to oppression. The Caliph is also on record as having made two different decisions concerning a case of inheritance, known as al-mushtarakah [discussed below], the second of which set aside the normal rules of inheritance and provided a solution that seemed equitable and just under the circumstances. The facts of these decisions leave little doubt as to the historical origins of istihsan." (p. 17)

"Another example is when someone sees a goat that is without its owner and has suffered an injury that is likely to cause its death, and with a view to prevent its loss, the observer slaughters it at his own initiative without the owner's permission. The normal rules would make him liable for consumption by the owner, but not liable under the rules of istihsan based on maslahah." (p. 41)

"The basic intent of istihsan is to ensure harmony between the letter and the spirit of law, but it's application is confined to cases and situations where a conflict arises between the letter and spirit of shariah due mainly to the factual peculiarities and circumstantial anomalies of particular cases" (p. 3-4)

"The juridical meaning of istihsan reflects its literal meaning in that the term refers to juristic preference, exercised by a qualified jurist and mujtahid, consisting of departure from an existing rule or principle of the law in a particular case, in favor of a different ruling that is considerably preferable." (p. 11)

"istihsan has equally strong grounds of identity with the masajid it should, in fact be evident from our discussion of istihsan throughout this presentation that the evidential basis, rational and purpose of istihsan are almost identical with those of masajid al- Shari'ah. Istihsan can thus be seen as an instrument of consolidation that can link up the major themes of the usul and the masajid into an organic unity." (p. 123-124)

"the Hanafi, Maliki and Hanbali jurists have considered istihsan a valid proof, the Shafai, Zahiri and Shi'i 'ulama' have rejected altogether and refused to give it any credibility in their formulation of the legal theory of the 'usul al fiqh'." (p. 5) 

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Apr
13

Ho Chi Minh

Ho Chi Minh (1890-1969), a pseudonym meaning 'he who enlightens', was the leader of the independence struggle in Vietnam and served as the President of North Vietnam (1945-1969). He was a leader of the anti-colonial struggle in Asia, advocating for revolutionary action long before the establishment of the Community Party in 1930. A short book, "The Selected Works of Ho Chi Minh" (2011), presents a chronological ordering of short works (written between 1922 and 1960). Another book, by Walden Bello, put the work in context (to be covered in a future post). Interestingly, Ho worked on a French ship during the 1910s, taking him to ports in Africa and America. He lived in London and then France, and the first contributions in this book were penned while he was in France (until 1923). The next selection of works were penned in Moscow (until 1924), Guangzhou (until 1927), then Brussels, Paris, Thailand, Hong Kong. After 1930, he led the Indochinese Communist Party. The book offers a glimpse into the thoughts, perspectives and ideas of Ho Chi Minh. A few notes:

1922: "The mutual ignorance of the two proletariats gives rise to prejudices. The French workers look upon the native as an inferior and negligible human being, incapable of understanding and still less of taking action. The natives regard all the French as wicked exploiters. Imperialism and capitalism do not fail to take advantage of this mutual suspicion and this artificial racial hierarchy to frustrate propaganda and divide forces which ought to unite." (p. 10)

1922: "While the life of an Annamese is not worth a cent, for a scratch on the arm, M. Inspector General Reinhardt receives 120,000 francs compensation. Equality! Beloved equality!" (p. 26)

1923: "We have racked our yellow brains in vain, yet we cannot succeed in discovering the reason which led the men and women of France to found the remarkable institution called the 'Society for the Prevention of Cruelty to Animals'. First, the reason escapes us because we see that there are still so many unfortunate human beings who appeal without result for a little care." (p. 43)

1924: "The same system of pillage, extermination and destruction prevails in the African regions under Italian, Spanish, British or Portuguese rule. In the Belgian Congo, the population in 1891 was 25 million, but it had fallen to eight and a half million by 1911. The Hereros and Cama tribes in the former German colonies in Africa were completely exterminated. 80,000 were killed under German rule and 15,000 were killed during the 'pacification' period in 1914. The population of the French Congo was 20,000 in 1894. It was only 9,700 in 1911. In one province there were 10,000 inhabitants in 1910. Eight years later there remained only 1,080. In another province with 40,000 black inhabitants, in only two years, 20,000 people were killed, and in the following six- months 6,000 more were killed or disabled." (p. 78)

1945: "All men are created equal. They are endowed by their Creator with certain inalienable rights, among them are Life, Liberty, and the pursuit of Happiness." This immortal statement was made in the Declaration of Independence of the United States of America in 1776. In a broader sense, this means: All the peoples on the earth are equal from birth, all the peoples have a right to live, to be happy and free. The Declaration of the French Revolution made in 1791 on the Rights of Man and the Citizen also states: "All men are born free and with equal rights, and must always remain free and have equal rights." Those are undeniable truths. Nevertheless, for more than eighty years, the French imperialists, abusing the standard of Liberty, Equality, and Fraternity, have violated our Fatherland and oppressed our fellow-citizens. They have acted contrary to the ideals of humanity and justice. In the field of politics, they have deprived our people of every democratic liberty. They have enforced inhuman laws; they have set up three distinct political regimes in the North, the Center and the South of Vietnam in order to wreck our national unity and prevent our people from being united. They have built more prisons than schools. They have mercilessly slain our patriots; they have drowned our uprisings in rivers of blood. They have fettered public opinion; they have practiced obscurantism against our people. To weaken our race they have forced us to use opium and alcohol. In the field of economics, they have fleeced us to the backbone, impoverished our people, and devastated our land. They have robbed us of our rice fields, our mines, our forests, and our raw materials. They have monopolized the issuing of bank-notes and the export trade. They have invented numerous unjustifiable taxes and reduced our people, especially our peasantry, to a state of extreme poverty. They have hampered the prospering of our national bourgeoisie; they have mercilessly exploited our workers." (p. 85)

1956: "We should not stand in one place and wish for another one" (p. 129)

1956: "We are clearly aware that our common enemy's clamours only betray their fear in face of new forces and new victories. Faced with the ever more perfidious schemes of the imperialist reactionary influence, now more than ever, we must strengthen and develop ideological unity, solidarity among communist and workers' parties, and tirelessly struggle to defend the purity of Marxism-Leninism, which is our common treasury; study and apply correctly the theoretical principles of Marxism-Leninism to the realities of each country. We are confident that under the banner of Marxism-Leninism, victory will certainly be ours." (p. 139)

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