veiled4allah

the ijaza system: control of intellectual property in early Islam

Awhile ago, I posted about copyright and Islamic law. In response to this, Jonathan Edelstein posted about copyright and Jewish law. For some reason I decided to go off on a tangent in his comments section and started talking about something called the ijaza. Ijaza is a general Arabic word meaning "diploma" or "certificate". Historically, it had a more specific definition. My main resource for this is Studies in Early Hadith Literature, by M.M. Azami, which contains a wealth of information about the preservation and transmission of Islamic knowledge in the first couple of centuries after the death of the Prophet Muhammad (sAas). Back in the days before the printing press, books were copied by hand. Obviously, it would be extremely expensive and time-consuming to "mass-produce" any book and this was rarely done. More often, someone who wished to obtain a copy of a book would go to someone who already had a copy of the book and he would learn the book from that person while making his copy. Azami reports, Since in those days there was no system of copyright, material from any book could be utilized in composing a book or imparting hadiths, but it was againt the literary custom of the period. Every student, before utilizing any verbal or written material, had to obtain it through the proper channel, otherwise it was thought to be forgery or theft of material (p. 204). That is, in order to make use of the copied material in any public way, whether to cite it in your own work or to teach it, you had to learn it from someone who was authorized to give it to you. This authorization was a chain of authorities from the original author to the present individual. The original author gave certain people permission to copy and teach his work, and these people subsequently gave other people permission to copy and teach it. The paper that recorded this chain of authorities was the ijaza. When a student went to learn a book from someone, he would want to see their ijaza. If the ijaza didn't check out properly, there was no guarantee that the copy of the book in this person's possession was an accurate and faithful copy of the original. As Jonathan and I agreed, the ijaza system is not exactly a copyright system but it's not entirely different from one either (the main difference being the lack of royalties, as Jonathan noted in his comments thread, and this seems to be the main way that historians distinguish modern copyright law). It was a way of controlling who could make copies of your work and what uses they could put it to. If you didn't display the proper permission from the original author (by way of the chain of authorities on the ijaza) people would regard you as a forger or thief. To be precise, the ijaza is a license (another translation of the word), similar to the Creative Commons Licenses in that way, that gives people a permission to copy and transmit that they would not otherwise have. The default is that there is no permission to copy and transmit publicly; the permission must be granted for it to exist. This ban on copying without proper permission may not have had the force of law as modern copyright does, but it had a strong social force behind it and a scholar would not be taken seriously if he didn't follow the rules. Azami's book goes into great detail about this. It is also interesting to note that according to Azami, the ijaza system had begun developing by about 750 C.E.

copyright law and Islam

Here are some links about copyright law and Islam: Intellectual Property Rights and Copying Computer Programs. Both of these are by Saudi scholar Shaykh Muhammad al-Munajjid. Regarding Copyright Laws and Income from Royalty and Further Exchange on Copyright Laws. These are by modernist Pakistani scholar Moiz Amjad. Is There Copyright Law in Islam? This is by American Muslim scholar Muzammil Siddiqui. These fatwas (religious rulings) all really deal with the question of whether Muslims should abide by copyrights and similar intellectual property rights and all of them give the same answer, YES, because Muslims are required to abide by the contracts that they enter into and the agreements that they make with others, whether Muslim or non-Muslim. There is also the question of whether a Muslim should choose to put a copyright on his or her own works, but that isn't really addressed by these fatwas. A lot of Muslims make their works free to copy as long as attribution is given, or for purposes of propagating Islam. That's the policy I follow at muhajabah.com. I don't mind if people make use of my work as long as they give me proper credit as the author. What I don't like is if somebody tries to pass my work off as their own. This has actually happened a couple of times, unfortunately.

more Islamic law links

A few more articles about Islamic jurisprudence, these probably of interest only to lawyers. Appellate review in Islamic law and Development and use of legal maxims (PDF) both by Mohammad Hashim Kamali.

excellent resource for learning about Islamic law

The Fiqh.org - This site contains many scholarly essays on different aspects of Islamic law including family law, criminal law, business law, and jurisprudence (general science of law). Many of the essays are quite long and/or technical so it certainly isn't light reading by any means. However, I highly recommend it to those who are interested in learning what Muslim scholars have actually said about the issues of Islamic law.

hajj without a mahram?

In response to a question raised in Cindy's Blog comments: The following is taken from Islam Online Fatwa: Woman Traveling to Hajj Without a Mahram by Shaykh Yusuf al-Qaradawi: QUESTION: A woman who is obligated to perform hajj is in good health and has enough money, but she does not have a husband or a mahram that can go with her. Is it permissible for her to perform hajj along with groups of Muslim males or females, keeping in mind that today the streets are safe and that traveling isn't such a risk as it were before? Or is it obligatory upon her to delay hajj until she gets a mahram? ANSWER by Sheikh Qaradawi: The principle in Sharia is that a woman is not to travel by herself; rather, it is obligatory upon her to have as her companion her husband or a mahram. This ruling is founded on what was reported by Al-Bukhari and others from Ibn Abbas (may Allah be pleased with him) that Allah's Messenger (pbuh) said: 'A woman is not to travel except with a mahram and a man is not to enter upon her except if she has a mahram.' And it is narrated by way of Abu Hurairah that: 'It is not permissible for a woman who believes in Allah and the Last Day to travel a distance for one day and one night without a mahram with her.' Abu Saeed narrated that the Prophet (pbuh) said: 'A woman is not to travel a distance for two days without her husband or mahram with her.' And Ibn Umar narrated that: 'She is not to travel for three nights, except if she has a mahram.' Apparently the differences in narrations are because of the different petitioners and questions in which answers were given to them. Abu Hanifah preferred the last Hadeeth of Ibn Umar and was of the opinion that a mahram is not needed except in travels in which prayers are shortened (also reported by Ahmad). These hadith include all types of travel, whether or not it is necessary, like visiting, trading, seeking knowledge, or anything else. The basis for this ruling is not an evil assumption about the woman and her manners, as some people unreasonably think, but it is to take care of her reputation and dignity. It is to protect her from the desires of those who have diseased hearts, from the assault of a rapist or a thief. And this is even more so in places that the traveler must pass through, like deadly deserts, in a time when there is no sense of security, and where the places are unpopulated. But what is the ruling on a woman, who does not find a mahram to accompany her in a legitimate travel, whether obligatory, preferred or permitted? And there is within her reach a group of protective men, or trustworthy faithful woman, and the streets are safe? The jurists have researched this topic whenever they discussed the obligation of hajj upon women, and they kept in mind the Messenger's (pbuh) prohibition of a woman traveling without a mahram. Their thoughtful opinions include the following: 1. Among them are those who hold on to what is apparent from the mentioned hadith, they prohibit traveling without a mahram, even for the obligation of hajj. And there is no exception to this rule. 2. There are those who make an exception for older woman with no desire, as has been transmitted from AI-Qaady Bin AI-Waleed Al-Yaajee, from the Maliki madhab. It is especially for women in general if we look at the meaning as was said by Ibn Daqeeq AI-Eid. 3. Some of them make the exception that as long as the woman is with trustworthy and faithful women, then the travel is permissible. Furthermore, some conclude that it is enough for just one free trustworthy and faithful Muslim woman. 4. And some concluded that the roadway must be safe. This is the opinion that was chosen by Sheikh ul-Islam Ibn Taymiyyah. He mentioned that Ibn Muflih in Al-Faroo' said: 'Every woman can perform hajj without a mahram as long as she will be safe.' And he said: 'This is directed towards every travel in obedience... Al-Karabeesee transmitted this from Ash-Shafi'i pertaining to the supererogatory hajj. And some of his companions also said this about supererogatory hajj and about every travel that is not obligatory, like visiting and trading.' Al-Artham transmitted from Imam Ahmad: 'A mahram is not a condition in the obligatory hajj.' His justification for this is his saying: 'Because she goes out with women, and with all those whom she is safe with.' Ibn Sireen even said: 'With a Muslim it is okay.' Al-Awzaee said: 'With a just people.' Malik said: 'With a group of women.' Ash-Shafi'i said: 'With a trustworthy faithful Muslim woman.' And his companions said: 'By herself if there is safety.' AI-Haafidh Ibn Hajar said: 'What is well-known with the Shafi'is is that it is conditional that there be a husband, mahram, or trustworthy faithful women.' And in another saying: 'It is enough for just one trustworthy faithful woman.' In a saying transmitted by Al-Karabeesee, authenticated in Al-Muhadhab, is that she can travel by herself if the streets are safe. If this is what was said about traveling for hajj and umrah, then this ruling should be uniform concerning all types of travel, as some scholars have agreed. The purpose here is to safeguard the woman and protect her, which is fulfilled by knowing that the roadway is safe and that trustworthy faithful men and women are present. The proof of the permissibility of a woman traveling without a mahram is incumbent upon there being security and the presence of trustworthy faithful people. What was reported by Al-Bukhari is that during the final hajj of Umar Bin Al-Khattab (may Allah be pleased with him), he gave permission to the wives of the Prophet (pbuh) to perform hajj. So he sent with them Uthman Bin Affan and Abdul Rahman. Umar, Uthman, Abdul-Rahman Bin Awf and the wives of the Prophet (pbuh) all agreed to this. None of the other companions rejected what they did and therefore this is considered to be consensus. Second is what was reported by AI-Bukhari and Muslim from the Hadeeth of Ada Bin Haatim is that the Prophet (pbuh) told him about the future of Islam, it's spreading, and its light going throughout the earth. Among what he mentioned is: 'The day is near when a young woman will travel from AI-Hira (a city in Iraq), going to the Sacred House with no husband accompanying her. She will fear none but Allah.' This information does not only prove that this will happen it, but proves its permissibility, because it was mentioned in a phrase praising the spread of Islam along with its sense of security. Here I will state two additionally important precepts. The first is that the basis of rulings on acts of dealings is to focus on their meanings and purposes. This is the opposite of rulings on acts of worship. This is because the basis of acts of worship is just to worship and obey, before focusing in on their meanings and purposes, as was firmly established by Imam Ash-Shatiby, who clarified this and verified it with proofs. The second is that prohibited things are not permitted except if there is a dire need. And things that are prohibited so that they can be an obstruction to evil are permitted during times of need. And there is no doubt that the prohibition of a woman traveling without a mahram is prohibited so that it can be an obstruction to evil. It is incumbent upon us to look at traveling in our time. It is not like how traveling was in the past. It is not filled with the dangers of the waterless deserts, encounters with thieves, highway robbers, etc. Now traveling is by various modes of transportation that usually gather large amounts of people at a time, like ships, airplanes, buses or cars that travel in caravans. Thus, this provides plenty of confidence and reliability, removing feelings of fear for the woman, because she will not be by herself in any place. This is why there is no objection for the woman to perform hajj within this safe environment, which will provide all the necessary security and contentment. And with Allah is the success. COMMENT: This is an especially important question for revert sisters, who do not have mahram relatives who are Muslims, but their relatives are non-Muslims.

madhhabs

This one can be another controversial topic among Muslims. I often feel while reading various things on the issue that people are talking past each other. Sometimes the issue is presented as if there are only two possibilities, the two extremes: either you adhere completely to a madhhab and never depart from any of its rulings, or you (allegedly) derive rulings from the Quran and Sunna yourself. But in fact there's a lot of room between those two. An ordinary Muslim doesn't have the time to study the Quran and Sunna for themselves and derive rulings, or to develop the expertise necessary to do so. Obviously, therefore, ordinary Muslims need to turn to scholars for guidance. The question then comes in, how do you determine which scholar is best to follow? My personal belief is that Muslims should examine what the range of opinions is on a given issue. If all the scholars are agreed, then there's no need to worry further, go ahead and implement that ruling as best you are able. But if there's a difference of opinion, Muslims should examine the dalils presented for each side and then go with what they believe is most sound. It is our responsibility, to Allah SWT and to ourselves, to do what we believe and understand to be best in each circumstance. Yes, we are tempted by our nafs to take the easiest course, but we can't let that be an excuse. Our whole jihad in life is to overcome the nafs and obey Allah SWT. If we have examined all the evidence, and have checked our own motivations and we still believe that a scholar other than the one we usually follow is correct in a particular instance, and the scholar that we usually follow is wrong, then I believe that we should go with the other scholar. Over time, most Muslims will find a scholar or group of scholars or school that consistently gives rulings they believe are sound. But I don't think that Muslims should be expected to keep following that scholar, group of scholars, or school if the scholar is wrong in a particular instance. Instead, we should follow the scholar whom we sincerely believe has the correct ruling, the one that is most sound, and best represents the Quran and Sunna.