Dope and Democracy: Case Studies in Arabic and American e-Fatwas

David H. Mailman
Vanderbilt University

For Islam and its viability as a comprehensive approach to life, the twenty-first century has posed an unprecedented set of circumstances. The rate at which ideas diffuse has dramatically increased; internet access has been expanding due to “an exponential growth in the telecommunications sector in some Muslim contexts,” reducing previous issues of prohibitively expensive internet services in many Muslim communities.^[1] Historically, scholarship on Islamic law — and the associated methodology by which fatwas were expounded — tolerated diverse points of view, entertaining varied opinions on how Muslims should conduct their affairs.^[2] In responding to new situations, especially those which arise in minority-Muslim nations, the adaptability of the Shari’a has become clear in the varying answers of jurists situated in those contexts. With a sizeable Muslim minority estimated at 3.45 million in 2017, the United States serves as an intriguing case where rapidly changing ideals precipitated by the Digital Age meet Islamic jurisprudence.^[3] Despite presenting the hallmarks of what could be potentially classified as a distinct ecosystem of Islamic lawmaking with independent roots, the origins of American fatwas (insofar that they originated from the United States) display remarkable similarity to those fatwas originating in the Arabic-speaking world. This indicates more commonality between the two ecosystems than a surface-level analysis of their differences reveals.

As to the fatwa sources selected for this paper, the Assembly of Muslim Jurists of America (A.M.J.A.) and the Fiqh Council of North America (F.C.N.A.) are used as the representatives of American Islamic jurisprudence. Particularly, their fatwas’ primary publication in digital formats firmly ties them into twenty-first century trends of rapidly increasing internet accessibility; digital fatwa resources have become popular, with one Indian fatwa-issuer — a branch of Darul Uloom Deoband — having reported receiving some 30,000 queries annually by 2014, a growth over the decade before.^[4] The Council for Scientific Research and Legal Opinions (C.R.L.O.), a Saudi-sponsored and Salafist institution, will stand for the Arabic-speaking world of fatwas, especially due to its preeminence among Arabic-language sources.^[5] It is similarly intertwined with the internet, with an extensive archive of responsa on various historical theological issues as well as “contemporary issues,” which — to the non-Arabic speaking author’s great fortune — have been translated into English.

Given Islamic law’s traditionally robust system of written reasonings and justifications for fatwas, investigating the jurisprudential underpinnings of both American and Arabic rulings serves to establish some baselines which both spheres of fatwas share. In choosing a contemporary issue that has become relevant to American Muslims, fatwas on cannabis usage — as well as cannabis-derived products — present a facile point of comparison. American fatwas, at first reading, seem to deviate from Islam’s perceived strict prohibition against intoxicating substances in most circumstances. From the sources selected, most American jurists adopted a position best described as “allowance for medical purposes”: a collectively adopted ruling by the F.C.N.A. deferred to medical opinions, opining that “if [cannabis-derived] products do not intoxicate...then they are permissible to use in Islam;”^[6] a set of A.M.J.A. fatwas effectively agree with the F.C.N.A., deferring to the medical value of cannabis.^[7] 

Tension between American and Arabic fatwas on cannabis usage is found when the ruling of the fatwa is separated from the reasoning for the respective ruling. In a rather puritanical fatwa, the C.R.L.O. deems “it is Islamically prohibited to sell, buy or consume hashish [a derivative of cannabis] whether by eating, smoking or chewing,” further citing the Sahih al-Bukhari for a hadith stating “every intoxicant is khamr [alcohol] and every khamr is unlawful;” The fatwa goes on to decry engaging in monetary transaction with a dispenser of hashish — for the petitioner’s case, this is their father — as all gains made are “ill gotten [sic].”^[8] The fatwa itself makes no mention of the possibility for a medical exemption. Although, it is reasonable to suppose that addressing the medicinal value of cannabis was outside the scope of the original question. A separate fatwa, dealing not with cannabis but with khamr more generally, explicitly disallows “treatment by...khamr,” thereby seeming to disallow treatment with cannabis.^[9] Compared to the consensus among some American jurists that cannabis as a medical treatment is Islamically allowable, the C.R.L.O. appears rather conservative.

While the degrees of separation between American and Arabic fatwas on the matter may seem significant, observing the devices which both ecosystems of fatwa use to create their opinions reveals a shared set of roots; if the fatwas themselves are trees, the fruit they yield may taste different, but they originate from the same root system. Returning to the F.C.N.A. fatwa on marijuana, the same hadith used by C.R.L.O. authors to justify cannabis as khamr is referenced; despite a difference in translation, a nearly word-for-word identical quotation is utilized to elaborate that cannabis is — under normal circumstances — an unlawful intoxicant.^[10] Furthermore, A.M.J.A. fatwas (even those written by authors of the aforementioned pro-cannabis fatwas) demonstrate a great deal of skepticism towards marijuana, warning that cannabis (in the form of hashish) is particularly haram,^[11] and that “opiates and the likes [sic]” may be preferable to cannabis.^[12] Ultimately, to return to the analogy of trees, the American and Arabic fatwas on cannabis are from the same root — a root that detests intoxicating substances. To explain the discrepancy between the American “tree” and the Arabic one, the American jurists’ opinions are more an exception to a shared principle than they are the fruit of a tree whose roots are more liberal towards narcotic usage. It is worth noting that Arabic fatwas possess a similar principle of medical khamr being allowable, although it is applied to stricter circumstances; one explicit fatwa involves soldiers being dispensed medication containing ten percent alcohol.^[13] As such, even the concept of a medical exception is shared, but it is simply expressed to different degrees.

The permissibility of cannabis, though, may seem to some scholars as “minor” given that it is a relatively niche problem being addressed by a small subset of fatwas. While such a trivialization of matters is generally dangerous – for what is insignificant to the ivory tower may be critically important to a range of practicing American Muslims — it does beg investigation into whether the concept of “shared roots, different fruits” holds on more encompassing issues. American and Arabic fatwas’ stances on democratic participation provide an opening by which responsa on “grander” issues can be compared. Notably, democratic values in the American Muslim community are highly valued, with sixty-five percent of American Muslims expressing that “Islam and democracy are compatible.”^[14] Whether it be a reflection of community attitudes or conclusions arrived at independently, American jurists tend to share in the American Muslim community’s participatory view of democracy. As a sort of great testament towards the organization’s opinion on the issue, the findings of the A.M.J.A. fourth annual convention recommended that Muslim participation in the American republic is allowable, possibly even rising to the “degree of being obligatory” in grave enough circumstances.^[15] Additionally, numerous other A.M.J.A. fatwas deem it permissible for Muslims to engage in democracy-adjacent activities, including public protest as a means of advocating good;^[16] organizing behind political parties, even of a non-Muslim variety;^[17] and holding administrative post, like that of a governor, in a non-Muslim nation.^[18] The wide breadth of explicit allowances for democratic participation are further bolstered by fatwas implying that democratic governance can be beneficial to Muslim communities within a broader non-Muslim country.^[19] On the whole, American fatwas seem to call for Islamic engagement in democratic systems, even within the context of a secular nation-state.

That a shared system of roots exists between democratic American fatwas and anti-pluralist Arabic fatwas is surprising. C.R.L.O. fatwas contend with most aspects of the A.M.J.A. program on Muslim participation in democracy. In no uncertain terms, C.R.L.O. jurists write that “it is [always] impermissible for Muslims to vote for Kuffar [disbelievers],” elaborating little on the issue besides the inclusion of a hadith deriding the ability of disbelievers to triumph over Muslims.^[20] Additionally, the C.R.L.O. rules that participation in political parties is strictly forbidden, citing hadith in which the Prophet says “do not become Kafirs (disbelievers) after me, striking the necks (cutting the throats) of each other” to bolster their view that factionalism is the activity of the nonbeliever, not the Muslim.^[21] The C.R.L.O is no more forgiving to non-Muslim legal systems, as their fatwas even go so far as to disallow the study of positive law — unless it is to prove its strict inferiority to Islamic law — and prevent Muslims from suing in the courts of governments who utilize man-made law.^[22] While it may not seem so, the wariness towards non-Muslim democracy [and associated institutions] openly expressed in C.R.L.O. fatwas is shared by A.M.J.A. jurists. Rather than growing their tacit permission for Muslim participation in American democracy from an enthusiastic and unique set of roots, the above-mentioned American fatwas all write from a cautious place. Their language advocates for Muslims to exercise their voting privileges as a means of advancing a “Muslim agenda;” the same fatwas which spoke of Muslims backing non-Muslim political parties also warn that doing so requires a careful balance of potential boons and the innate disbelief associated with sectionalism.^[23] Furthermore, other fatwas portray political work as a collective duty, with the needs of the community satisfied if only “some Islamists are involved [politically].”^[24] Once again, despite presenting a distinct outward appearance, the tree that is American fatwas about democracy has roots intertwined with the Arabic world. In this case, the common root is a distaste for secular democratic systems; the difference between them is simply how much democracy can [or must, given context] be tolerated or suffered.

While this paper as a dendrological [the study of trees] investigation of Islamic law illuminates the sometimes obfuscated shared foundation of American and Arabic fatwas, it does only reach just below the surface. Acknowledging commonality between ecosystems of jurisprudence does not imply a judgment as to why these ecosystems are similar in bedrock yet different in results. A possible explanation exists in the pedagogical background of most American and Arabic jurists. Of the six members of the A.M.J.A. Resident Fatwa Committee, all of them obtained “traditionally Islamic” educations at institutions such as Al-Azhar University, perhaps planting their intellectual roots more in Arabia than in America.^[25] Study into a truly indigenous school of American Islamic jurisprudence, on the other hand, could possibly yield a tree with unique roots. Khaled Abou el Fadl, cited earlier in this work, presents an intriguing contrast as a large portion of his education was completed at American institutions and he demonstrates a more energetic, civic-minded embrace of democracy.^[26] Following Abou el Fadl’s mold, future Islamic jurists may be provided the seed from which a truly independent ecosystem of American Islamic law may germinate.
 

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