the journal of islamic lawislamic law addressing issues of law, religion and culture volume 3 number...

THE JOURNAL OF

ISLAMIC LAW

Addressing Issues of Law, Religion and Culture

Volume 3 ● Number 2 ● Fall/Winter 1998

ARTICLES

The Role of the Muslim Lawyer in Establishing Islamic Community Life

Irshad Abdal-Haqq

Model National Muslim Bar Association

ESSAYS

The Essence of Islamic Law Robert D. Crane, Esq.

Fiqh and The Fiqh Council of North America

Yusuf Talal DeLorenzo

The Muslim Invocation on Capitol Hill: Revisiting the Legality of Prayer in Congress

Irshad Abdal-Haqq

RESEARCH TOOL

Islamic & Muslim Websites

THE JOURNAL OF

ISLAMIC LAW Addressing Issues of Law, Religion and Culture


CONTENTS

Articles The Role of the Muslim Lawyer in Establishing Islamic Community Life by Irshad Abdal-Haqq............................................................105 Model National Muslim Bar Association .....................151

Essays The Essence of Islamic Law by Robert D. Crane, Esq. .......................................................185 Fiqh and The Fiqh Council of North America by Yusuf Talal DeLorenzo .....................................................193 The Muslim Invocation on Capitol Hill: Revisiting the Legality of Prayer in Congress by Irshad Abdal-Haqq............................................................197 Research Tool Islamic & Muslim Websites ..............................................205

THE JOURNAL OF

ISLAMIC LAW Addressing Issues of Law, Religion and Culture


Editorial and Advisory Board

Aminah B. McCloud, Ph.D. Associate Professor of Islamic Studies

DePaul University, Chicago, IL

Sulayman S. Nyang, Ph.D. Professor of African Studies

Howard University, Washington, DC

Ra’ouf M. Abdullah, Esq. New Madinah Society

Washington, D.C.

Patricia Abdullah, Esq. Washington, D.C.

Kenneth R.A. Rasheed, Esq.

Atlanta, GA

Wanda B. Rasheed Certified Lawyer Assistant

Atlanta, GA

Irshad Abdal-Haqq Managing Editor

©1998 by the Institute for Intercultural Relations, Inc. All rights reserved. No part of the Journal may be reproduced without the prior written permission of the Institute for Intercultural Relations, Inc., which may be contacted through the Journal’s mailing address. The opinions expressed in the Journal are those of the authors and should not be attributed to the Institute for Intercultural Relations.

Subscribe to the

THE JOURNAL OF ISLAMIC LAW You can be an important part of this exciting new publication ● become an annual subscriber

● give gift subscriptions -- remember the

Journal is not just for law professionals

● become a supporter of the Journal by giving

a special tax exempt donation above

the subscription price

● write an article or an opinion piece

● help spread the word -- we are new and need your enthusiastic support

Photocopy the form below and submit it with your check or money order. Law firms and businesses may call or write for display advertising guidelines and prices. (Phone: 202-882-7364) --------------------------------------------------------------------------------- Make checks payable to: The Journal of Islamic Law P.O. Box 5368 Takoma Park, MD 20913 I would like ___ subscription(s) at $45 each for domestic subscriptions, $60 for foreign subscriptions. My check or money order is enclosed. I also would like to make the following donation: $__________________. [DC subscribers add 6% tax; MD subscribers add 5% tax unless exempt] Name: __________________________________Tel: _______________ Address: ___________________________________________________ __________________________________________________________ City, State, Country _____________________________ Zip _________

The Journal of Islamic Law (ISSN 1085-7141) is published semiannually (spring/summer & fall/winter) by the Institute for Intercultural Relations, a 501(c)(3) nonprofit research organization. The primary purpose of the Journal is to foster a deeper understanding of Islamic law and culture in America’s legal, religious, and Muslim communities through scholarship and dialog. Mailing address: Journal of Islamic Law, P.O. Box 5368, Takoma Park, Maryland 20913, U.S.A. Address all correspondence to the Editor. Electronic mail: [email protected] Fax: 202-882-0563. Telephone: 202-882-7364. Prices: The subscription rate is $45 per year for U.S. subscribers and $60 for foreign subscribers. Single issues are $22.50 per copy. Subscriptions and single issue orders must be prepaid by check or money order made payable to the Journal of Islamic Law. Please include your mailing address and a daytime telephone number with your request. The Journal invites the submission of unsolicited manuscripts from the legal and non-legal communities; from Muslim and non-Muslim writers. The editors are particularly interested in articles treating issues relating to Islam and Muslims in the United States, and comparative topics addressing Islam and other religious or cultural traditions. Articles must be submitted on 3½" diskette formatted in a standard U.S. word processing software program (preferably WordPerfect 6.1 or earlier), along with two hardcopies. In rare cases, the Journal will consider just a hardcopy manuscript that is typed, double spaced and on 8½" x 11" white paper. When feasible, footnotes should conform substantially to the 15th edition of The Bluebook: A Uniform System of Citation, available at law bookstores. The Journal is a refereed publication. Submissions are judged by peer referees, including, but not limited to, members of our Advisory Board. The referee process is double-blind. The identities of neither authors nor referees are disclosed during the evaluation process. While the Journal’s editorial staff makes the final decision regarding publication, the referees’ comments usually are controlling. The Journal cannot succeed without your support. Send us your own work, and encourage your friends to send theirs. Also encourage your organizational library to subscribe. Alert us of symposia and conference materials that you believe we should consider publishing. Irshad Abdal-Haqq Managing Editor

The spine of this issue should read as follows: The Journal of Islamic Law • Vol. 3 • No. 2 • Fall/Winter 1998

Announcement

William S. Hein & Company, Inc. has acquired the entire back stock, reprint and microform (CD-ROM, microfiche, and other electronic format) rights to the:

The Journal of

Islamic Law

Complete sets to date are now available. HEIN also can furnish single volumes and issues.

WILLIAM S. HEIN & COMPANY, INC.

1285 Main Street Buffalo, New York 14209-1987

1-800-828-7571 716-882-2600

Need a single copy

of a particular article or other item appearing in this

Journal?

UnCover

Can provide copies of the Journal item you need.

UnCover

3801 E. Florida, Suite 200 Denver, Colorado 80210

1-800-787-7979 303-758-3030

The Role of the Muslim Lawyer

in Establishing

Islamic Community Life

by Irshad Abdal-Haqq, Esq.* Contents I. Introduction ..............................................................................106 II. The Role of Law and Lawyers in American society..............108 III. The Relevance of Legal Training for American Muslims ....110 IV. Profile of the Emerging American Muslim Legal Community .................................................................111 V. Implementing Shariʻah through Alternative Dispute Resolution (ADR)...................................131 VI. Cooperation between Muslim Social Scientists and Muslim Lawyers ............................................................149 VII. Conclusion...........................................................................150

* Georgetown University, Juris Doctor. Antioch University, Master of Arts in Legal Education. Amherst College, Bachelor of Arts. Managing editor of the Journal of Islamic Law. This article formed the basis of a presentation made at a workshop on Shari’ah and American Law at the 27th Annual Convention of the Association of Muslim Social Scientists in Chicago, IL, October 31, 1998. 105

106 The Journal of Islamic Law [Vol 3:105

I. Introduction Lawyers and other legal professionals, including judges, political office holders, paralegals, and law students, represent a rapidly growing segment of the American Muslim professional class. The sum total of legal expertise possessed by this group spans the entire spectrum of American jurisprudence. Given the paramount importance that the American social order places on its legal system, the Muslim legal community harbors the potential for providing critical support in planning and implementing key American Muslim community development strategies. These strategies might range from designing economic and financial planning programs, to building planned communities for Muslims, or implementing extra-judicial dispute resolution programs. Regardless of the activity, in America legal considerations always are important, and in many instances, controlling. Given this reality, none other than Muslim lawyers should assist the ummah in development of viable community life. In fact, Almighty Allah, highly glorified is He, commands us in the Qur’an at surah 3, ayat 28 and surah 5, ayat 51, to manage our own vital concerns. The emerging Muslim legal community, while well-schooled in American law and jurisprudence, generally is not erudite in Islamic legal concepts and principles. The very essence of Muslim community identity, however, requires institutions and systems that conform to Islamic principles and standards, regardless of how they might be interpreted or formulated. For this reason, Islamic law is likely to become the intellectual focus in the American Muslim community as it synthesizes and matures, for it was a high regard for the law that produced the disciplined and united civilization of Islam’s Golden Era.1 The all-encompassing law of Islam, emanating from the Qur’an itself, embraces every aspect of human activity,

1 ISMAIL R. al FARUQI & LOIS L. al FARUQI, THE CULTURAL ATLAS OF ISLAM 279 (1986).

Fall/Winter 1998] Role of the Muslim Lawyer 107

defines Islamic values, and dictates standards of behavior.2 Therefore, it must command the attention of any Muslim community seeking to preserve and assert itself. The question then is not whether Islamic law will become the intellectual focus of American Muslims, but rather when will it become the focus and how Islamic legal principles will be implemented.3 Consequently, the expertise of at least two broad-based bodies of knowledge, American law and Islamic law, are necessary for securing Islamic community life in the United States. The former in order to provide government sanctioned protections embodied in American jurisprudence, and the latter to assure the integrity of our system of religious values. While the American Muslim legal community is capable of providing competent legal services, it needs to and must work closely with the community of learned Islamic scholars when addressing issues and working on projects that involve the establishment or defense of Islamic institutions. Conversely, Muslim leaders and Islamic scholars should seek out the services of Muslim lawyers when planning and implementing projects. Likewise, the vast array of Muslim social scientists of every discipline should seek out and cooperate with those of other disciplines, including law, as we struggle to define, plan and implement sound Islamic-oriented institutions. For we are admonished in the Qur’an to: “help ye one another in righteousness and piety, but help ye not one another in sin and rancour.” (Surah 5, ayah 2). Thus the righteous way, the religion of Allah, requires us to assist and cooperate with each other. This paper attempts to provide a preliminary profile of the emerging Muslim legal community in the United States. It reveals 2 FRANCIS ROBINSON, ATLAS OF THE ISLAMIC WORLD SINCE 1500, 30 (1982). 3 Muslims actually have no choice in this matter, for we are informed in the very last revelation that the perfected way of life is the way we have embraced: “This day have I perfected your religion for you, completed My favor upon you, and have chosen for you Islam as your religion.” Surah 5, ayah 3. To properly follow the straight way, the way of Islam, we must give paramount importance to Allah’s guidance rather than the guidance of other philosophical systems: “Then We put thee on the (right) Way of Religion: so follow thou that (Way), and follow not the desires of those who know not.” Surah 45, ayah 18.


the concerns, expectations, aspirations and interests of Muslim lawyers, as well as the areas of legal expertise of its members. Suggestions are made as to how social scientists of non-legal disciplines might cooperate with Muslim lawyers, and a vehicle for resolving disputes between Muslims, outside of the American court system, also is discussed. II. The Role of Law and Lawyers in American society. Contrary to popular media portrayals, the overwhelming majority of American lawyers are not courtroom practitioners (litigators). Most are transactional lawyers who draft and assist in the negotiation of agreements and other legal instruments. Others provide legal guidance to businesses, individuals, or government agencies in matters relating to a vast array of human activity including taxes, investments & securities, real estate transfers, decedent estates, wills and trusts, business organization, and requirements for meeting regulatory standards. Still others are educators, political advisors, or writer-researchers. The substantial percentage of lawyers who do engage in litigation provide legal representation for parties who are unable to settle their differences, usually after protracted settlement attempts. The American legal system is noted for the aggressive, adversarial spirit of its litigators. It is this spirit of oftentimes confrontational belligerence that the general public finds entertaining through television and movies. The media generated courtroom drama often provides a backdrop for a kind of modern day battle between gladiators or hired gun fighters, albeit in an intellectual capacity. Many people believe the adversarial system of litigation is responsible for the proliferation in lawsuits that now clog our court systems. Lawyers are most often blamed for this phenomenon, although the business community and general population must share the blame because they retain lawyers for the very purpose of pursuing litigation as a means of resolving disagreements. All laws in the United States are made either by federal, state, or local lawmaking bodies, or they are made by judges through court decisions. Under American jurisprudence laws are defined, executed and interpreted by guiding principles, of which there are great many. The fundamental principles of early American law


can be traced to pre-colonial England, France and Spain, depending on subject area and geographic location. The principles of more recent laws and legal concepts are found in American court decisions or in the legislative history of the lawmaking body that issued a particular law. Supposedly, American law is based and rooted in a non-religious, secular system of ethics because government sponsored religion is proscribed under the U.S. Constitution. Although the American legal system of ethics can be traced back to Christian or Judeo-Christian traditions, reference to the Torah or Bible as a basis for legal reasoning and the principles of law has been eliminated in the American system. Thus, to the extent that the American government, as an entity, follows any “religion,” it might be described as the secular law and its principles that dictates what is right or wrong, moral or immoral. Where under Islamic law, Muslims see Islam as the deen ul fitr (natural way), deen ul haqqi (religion of truth), deen ul qayeem (the straight & standard way), indeed, the deen ullahi (the religion of Allah), the America jurisprudential system does not formally recognize any religion as its guiding light. An important difference between a dialectical materialist approach toward law and society, such as under communism, or a purely secular humanist approach, is that in America the vast majority of legal practitioners identify with a religious-based ethics system. So, while the doctors of American law, define, change, and interpret what American law “is,” within a secular framework, morally (and perhaps even subconsciously) they are guided by revelation from Allah as taught by the church or synagogue. Another important difference between the American system and materialism is that under the U.S. Constitution, the free practice of religion is protected and therefore at least indirectly encouraged. Since freedom of religion is protected under American law, Muslims are free to devise mechanisms for operating within this secular society that will facilitate the practice of the deen ul fitr, or natural way. To do so, Muslims must understand how American law can be used to establish, protect and expand institutions that are necessary for our vital interests. No one is truly qualified to protect the vital interest of Muslims, except the Muslim community itself.


Thus, Muslim lawyers are vital to the well being of the Musilm community, the ummah, but only if they also understand the principles of the religion. Consequently, Muslims versed in Islamic law must work with those versed in American law, and vice versa in order to secure the ummah. To secure it, we must practice the religion. To practice it comprehensively, we need mechanisms, facilities, and institutions that will facilitate that practice. These include economic and community development tools, financial institutions, all types of business entities, and all the things by which a viable society defines itself. The first step is to commit to doing it – that is forming alliances and providing mutual support. The second step is to conceptualize solutions for unmet concerns and disseminating them throughout the ummah. The third step is to execute those concepts in a manner that provides for mutual consultation (shura) with the general population of Muslims. III. The Relevance of Legal Training for American Muslims. Every seasoned attorney is familiar with the wretched client who arrives at his or her office with a hopeless, tangled web of legal problems for which there appears to be no solution, but all of which could have been avoided through preventive legal review. To be sure, sometimes legal problems cannot be prevented. Most often, however, many legal problems are avoidable in a similar way that many health problems are avoidable through regular medical checkups. Whether one is seeking preventative (proactive) counseling, or assistance and representation to resolve a preexisting problem, the advice of an attorney may prove valuable. An exhaustive list of all the areas of law for which legal advice might be sought is not feasible, but some areas of particular relevance to American Muslims are: (1) Incorporation of organizations, (2) Complex trust instruments, (3) Commercial agreements (for financing, purchasing, sales, consignment, real estate transfers, etc.), (4) Establishing charities, (5) Patent protection, (6) Legislative drafting, (7) Meeting licensing requirements for commercial aviation, import-export operations, trading securities, and acquisition of tax exempt status, (8) Criminal defense,


(9) Civil litigation, (10) Immigration, (11) Incorporating or chartering a city or town, and (12) General review of agreements and other preventive legal counseling. IV. Profile of the Emerging American Muslim Legal Community. A. Kamran Memon’s Survey of Muslims in the Legal Profession No serious examination of the American Muslim legal community would be complete without reference to Kamran Memon’s landmark study. Several years ago, Memon, who was then a law student and is now a Chicago-based civil rights attorney, conducted a survey of Muslims lawyers and students. His findings were published in the Fall/Winter 1997 issue of The Journal of Islamic Law in an article entitled, A Survey of Muslims in the Legal Profession, [Vol. 2, No. 1]. The data grids and discussion presented in the following subsections (A-1 through A-4), including footnotes 4 through 6, are excerpted from Memon’s article and findings. It should prove helpful to anyone interested in gaining an understanding of Muslim lawyers and law students, and their involvement in the legal profession. To review the raw data from Memon’s survey, which includes revealing narrative expressions by individual survey participants, consult the full original article. A-1. INTRODUCTION Religious identity is a factor in the professional lives of the majority of Muslim lawyers and law students who responded to this survey. The majority say they have been influenced by their religious identity in their decisions to become lawyers, in the type of law they have chosen to practice, in the way they practice law, and in the waythey perceive the practice of law. These findings are presented in detail below.4

4 To the best of my knowledge, this is the first survey of Muslims in the


The purpose of this survey was to understand what role the Muslim identity plays in the American legal profession; it was not intended to prove or disprove any hypothesis. Such research becomes more important as the number of Muslims in the legal profession grows. It is hoped that the results of this survey will: (1) help those Muslims currently in the profession understand what type of people make up the Muslim legal community, what level of consensus exists on various matters, and how much potential there is for working together; (2) help young Muslims considering a career in law to make more informed decisions; (3) help the Muslim community understand what role the Muslim legal community is willing and/or able to play within the community as a whole; and (4) help non-Muslim lawyers and law students understand their Muslim colleagues. A-2. METHODOLOGY A survey questionnaire was used to conduct this study on the intersection between the Muslim identity and the legal profession. I distributed surveys and cover letters by mail,5 by e-mail, and in person to the more than two hundred (200) self-identified Muslim lawyers and law students in the United States whom I was able to contact.6 (I am unable to determine what percentage of the Muslim American legal profession to generate a reasonable amount of data. However, there was at least one prior attempt. After sending out my survey, I learned that a Muslim law student at UCLA had attempted to conduct a similar survey by phone a few months earlier. He told me that he had called one hundred (100) Muslim lawyers as part of his survey, and nine (9) of them had granted interviews. As a result of the poor response rate, he changed the focus of his project, and he produced a theoretical paper rather than an empirical study. 5 My thanks to the American Muslim Council, whose 1995-1996 Muslim Legal Directory provided the bulk of postal addresses I used. That directory lists Muslim lawyers and law students whom AMC knows about and who have agreed to be listed. It is assumed that most mailed surveys reached their destinations, because very few were returned by the postal service with address changes. In those few cases, surveys were sent to those new addresses. 6 Among the recipients of the survey were representatives of some organizations I have come across: the Muslim American Bar Association (based in Washington, D.C.), Muslim Women Lawyers for Human Rights (based in


legal community this represents, because it is unknown how many Muslim lawyers and law students there are in the United States.) Some of those people passed the survey onto others as well, as I had requested in my cover letter. As a result, I do not know exactly how many lawyers and law students ultimately received the survey. Survey responses were slow in coming in. It took almost a year to reach forty-six (46) total responses -- from twenty-three (23) lawyers and twenty-three (23) law students from around the country. I believe this represents a response rate of over ten (10) percent. (Again, I do not know what the actual response rate is, because I do not know the exact sample size, since some of those whom I gave the survey to passed it on to others as well.) There were seven questions in the survey. Questions 1-4 asked for a “yes” or a “no” response along with an explanation. The answers were coded in the following manner: ● “Yes” means a clear and definite positive position or

response. (Sometimes the “yes” was extrapolated from the explanation.)

● “No” means a clear and definite negative position or

response. (Sometimes the “no” was extrapolated from the explanation.)

● “Unclear/No Answer” means there was no clear and

definite position or response. Questions 5 and 6 asked respondents to judge the importance of certain activities and to provide an explanation. The answers were coded in the following manner:

Virginia), and Islamic Shura [Consultation] Law Center (based in Georgia). None of the representatives of these organizations responded to the survey. The Muslim American Bar Association is currently inactive. Muslim Women Lawyers for Human rights is just becoming active; that group arranged for Justice Scalia to speak to the Muslim community in December 1996. I have been unable to determine whether the Islamic Shura Law Center is currently active, because a representative does not return my calls.


● “Very important” or “important” mean a clear and

definite positive position or response. (Sometimes the “very important” or “important” was extrapolated from the explanation.)

● “Not important” means a clear and definite negative

position or response. (Sometimes the “not important” was extrapolated from the explanation.)

● “Unclear/No Answer” means no clear and definite

position or response. Question 7 asked respondents to make a selection between two explicit choices and to provide an explanation. 1. Did being a Muslim influence your decision to become a lawyer? Explain. 2. Did being a Muslim influence your decision about the type of law you have chosen to practice? Explain. 3. Does being a Muslim affect the way you practice law? Explain. 4. As a Muslim in the legal profession, is there anything about the practice of law that makes you uncomfortable? Explain. 5. How important is it for Muslims in the legal profession to “fight for social justice” and “help the little guy”? Explain. 6. How important is it for Muslims in the legal profession to network with one another? Explain. 7. Would you describe yourself as a “Muslim who happens to be a lawyer” or a “lawyer who happens to be a Muslim”? Explain.


A-3. FINDINGS An analysis of the survey results is presented on the following pages. Each question is presented and then followed by numerical results and a brief qualitative analysis of the responses received. (1) Did being a Muslim influence your decision to become a lawyer? Explain. A small majority said that being Muslim did influence their decisions to become lawyers.

Lawyers Law Students Total Percentage (approximate)

Yes

10 14 24 51

No

12 9 21 47

Unclear/ No Answer

1 0 1 2

Total

23 23 46 100

This question produced the most evenly divided responses. Those whose religious identity did influence their decisions explained that they decided to become lawyers in order to: ● protect the civil rights of Muslims;

● serve the general legal needs of Muslims;

● better understand Islamic law by having something to

compare and contrast it with;

● be in a position to influence government policy and

public opinion;

● promote justice and reform in society at large;


● promote Islamic reform of the legal system;

● get involved in politics and government;

● increase Muslim representation/participation in the

legal arena;

● promote Muslim interests here and abroad;

● develop valuable skills; and

● teach and research Islamic law.

Those whose religious identity did not influence their decisions explained that they decided to become lawyers in order to: ● counter ethnic discrimination;

● utilize personal strengths, such as verbal skills;

● be part of a respectable profession;

● satisfy an interest in the law; and

● earn a living.

(2) Did being a Muslim influence your decision about the type of law you have chosen to practice? Explain. A majority said that being Muslims did influence their decisions about the type of law they have chosen to practice.


Yes

14 12 26 56

No

7 4 11 24

Unclear/ No Answer

2 7 9 20

Total

23 23 46 100


Those whose religious identities did influence their decision provided a varied (sometimes contradictory) list of the types of law they have chosen to practice because they are Muslim: ● immigration law;

● civil law (rather than criminal law);

● tort law, representing the “little guy;”

● international and corporate law, focusing on Muslim countries;

● human rights;

● child advocacy;

● political;

● public interest;

● criminal defense; and

● employment law.

In addition, of those respondents whose religious identity did influence their decision, some did not mention a specific area of law but instead listed interests they wanted to serve (ordinary people; Arab American; Muslim American; social justice; and the poor and underprivileged) and interests they refused to represent (companies dealing in alcohol, gambling, cigarettes, pork, and usury; large institutions fighting the little guy; and criminal defendants). Those whose choice about type of law was not influenced by their religious identity explained that they made decisions based on: ● personal interests and

● financial potential.

(3) Does being a Muslim affect the way you practice law? Explain.


A clear majority said that being a Muslim affects the way they practice law. Lawyers Law Students Total Percentage

(approximate) Yes

19 13 32 69

No

2 1 3 7

Unclear/ No Answer

2 9 11 24

Total

23 23 46 100

Those whose religious identity does influence the way they practice law explained that they feel an obligation to: ● be ethical;

● try to work legal conflicts out;

● take their work seriously;

● participate in the legal system only to the extent that it is

compatible with Islamic principles;

● keep Islamic law in mind when they make legal decisions;

● prevent the practice of law from taking over their lives;

● serve clients with competence and compassion;

● avoid wining and dining clients (because of the alcohol

involved);

● be fair with adversaries;

● take Islamically acceptable positions on legal issues; and

● take Islamically appropriate pro bono cases.

Those whose religious identity does not influence the way they practice law explained that they were ethical lawyers because they were:


● human;

● open-minded;

● fair; and

● compassionate.

(4) As a Muslim in the legal profession, is there anything about the practice of law that makes you uncomfortable? Explain. A clear majority said that, as Muslims, something about the practice of law made them uncomfortable.


Yes

19 13 32 69

No

4 5 9 20

Unclear/ No Answer

0 5 5 11

Total

23

23

46

100

Those who felt discomfort explained that, as Muslims, they do not like ● the adversarial system;

● criminal law practice;

● collections;

● the lack of ethics and morality;

● the legal system designed to serve primarily those who can

pay for it;

● serving clients whose cause one does not believe in;

● socializing involving alcohol;


● the emphasis on advocacy over finding the truth;

● the legal community’s rejection of morality-based

reasoning;

● the idea that the state rather than God is the final authority;

● racism in the criminal justice system;

● overzealous representation;

● billing practices;

● the amount of time spent at the office;

● the lack of Muslim role models in the profession;

● the legal community’s rejection of religion-based reasoning;

● losing track of the mission to reform and instead simply

going with the flow; and

● the law's focus on reaching the right outcome in general, but not necessarily in individual cases.

Those who, as Muslims, did not feel any discomfort explained that there is no reason to be uncomfortable if one can select clients and avoid pressure to do anything immoral. (5) How important is it for Muslims in the legal profession to “fight for social justice” and “help the little guy”? Explain. A clear majority said that it is “very important” or “important” for Muslims in the legal profession to “fight for social justice” and “help the little guy.” Interestingly, while most respondents understood the question to be a general one asking whether Muslims in the legal profession should help anyone who needs help, a few respondents understood the question as referring to “social justice for Muslims” and to the “Muslim little guy.”



Very important to fight for and help anyone who needs help

8

10

18

38

Very important to fight for and help primarily Muslims

5

1

6

13

Important to fight for and help anyone who needs help

6

7

13

29

Important to fight for and help primarily Muslims

1

1

2

4

Not important to fight for social justice and help

0

2

2

4

Unclear/ No Answer

3

2

5

11

Total

23

23

46

100

(6) How important is it for Muslims in the legal profession to network with one another? Explain. A clear majority said it is “very important” or “important” for Muslims in the legal profession to network with one another.


Lawyers

Law Students

Total

Percentage

(approximate) Very important 12 15 27 58 Important 7 8 15 33 Not important 2 0 2 4 Unclear/ No Answer

2 0 2 4

Total

23

23

46

100

Those who said it is “very important” or “important” explained

that networking will allow Muslims in the legal profession to:

● promote Islamic changes in the legal system, including more just laws overall, and the introduction of Islamic family law applicable to the Muslim community and recognized by

the courts; ● refer clients to one another;

● educate the Muslim community about its legal rights;

● serve as role models and provide guidance and career development assistance to Muslims in law school

and Muslims considering a legal career;

● share research on matters of concern to Muslims;

● provide each other with a sense of community and with emotional, spiritual, moral, intellectual, and professional support;

● provide legal services for the poor;

● solve legal problems within the Muslim community through mediation;

● organize a Muslim Bar Association;

● work together on issues of concern to the Muslim community, such as countering discrimination and harassment;


● help each other in job searches;

● share ideas;

● work together on legal cases involving the Muslim community;

● produce a directory of Muslims in the legal profession;

● develop an Islamic legal agenda;

● develop a Muslim perspective on American law; and

● educate the American legal community about Muslims.

Those who said it is not important for Muslims in the legal profession to network did not explain. (7) Would you describe yourself as a “Muslim who happens to be a lawyer” or a “lawyer who happens to be a Muslim”? Explain. A clear majority described themselves as being “Muslims who happen to be lawyers.”


Muslim who happens to be a lawyer

16

10

26

56

Lawyer who happens to be a Muslim

2

3

5

11

Unclear/ No Answer

5

10

15

33

Total

23

23

46

100


A-4. Memon’s Conclusions. While these responses (a) indicate that religious identity is a factor in the professional lives of the respondents, and (b) give me a sense of the various perspectives out there in the Muslim legal community, I am still left with a big question mark about those who did not respond to the survey. I have no idea whether or not their answers would have been significantly different from those I have received. Therefore, I do not know how representative my survey results are of Muslims in the legal profession. The following possible reasons come to mind as an explanation for the lack of responses from many of those who were approached:

1. The survey may have gotten lost, either before or after it reached non-respondents;

2. Non-respondents may simply have been too busy to respond;

3. Non-respondents may not have taken a survey by a law student as seriously as they would have taken a survey by a lawyer or an organization that could be expected to take some action based on the survey results;

4. Non-respondents may be frustrated by earlier unsuccessful efforts to organize the Muslim community and may not have wanted to invest time in another useless effort; and/or

5. Non-respondents may not be interested in the relationship between Islam and the legal profession, or in the development of the Muslim legal community.

Depending on the actual reasons for non-responses, the survey results are either more or less representative of the Muslim legal community. For example, while the respondents overwhelmingly said that networking with Muslims in the legal profession is “very important” or “important,” if a large number of people did not


answer because they are not interested in the development of the Muslim legal community, they might consider such networking unimportant. That would make the survey results unrepresentative on that issue. On the other hand, if they did not reply because they misplaced the survey, the survey results may accurately reflect the views of non-respondents on the importance of networking. At the very least, even if the survey data is not numerically representative, the wide range of answers is fairly representative of the various views out there in the Muslim legal community. Something can be learned from that. B. Areas of Practice and Community Concerns of Muslim Lawyers In 1997, The Journal of Islamic Law conducted an informal survey of Muslim attorneys in support of Asifa Qureishi’s Muslim Legal Directory published in the Journal’s Spring/Summer 1997 issue. Survey forms were sent to over 300 lawyers and students of which 52 responded. The material is this subsection was extracted from this second survey. The numbers associated with each item listed represent the percentage of responses associated with that item. Total percentages for practice and interest categories exceed one hundred percent because many individuals indicated multiple areas of practice or interest. B-1. Current Areas of Legal Practice Area of Practice Percentage of Survey Respondents Alternative Dispute Resolution 2

Antitrust 2

Aviation 2

Banking 2

Bankruptcy 8

Business 23

Civil (General) 27


Area of Practice Percentage of Survey Respondents

Civil Rights 2

Commercial Transactions 6

Economic Development 2

Computer-related 2

Constitutional 2

Consumer 2

Contracts 2

Corporate 8

Criminal 25

Death Penalty 2

Discrimination 4

Education 4

Employment 2

Employment Discrimination 6

Estate Planning 6

Family 15

Government Relations 6

Grant Law 2

Habeas Corpus 2

Health 2

Immigration 27

Intellectual Property 6

International 8

Islamic Law 4


Area of Practice Percentage of Survey Respondents

Judiciary (Legislation) 2

Juvenile Justice 4

Landlord-Tenant 2

Litigation 15

Medical Malpractice 4

Municipal 2

Patent & Trademark 2

Personal Injury 17

Probate 2

Professional Liability 2

Real Estate 4

Sexual Harassment 2

Torts 2

B-2. Areas of Special Interest to Muslim Lawyers Areas of Special Interest Percentage of Respondents Alternative Dispute Resolution 4

Career & Employment Bulletin 44

Client Referral Service 66

Law Newsletter 50

Lobbying 2

Marketing 2

Mentoring 56


Areas of Special Interest Percentage of Respondents

Muslim Bar Association 69

Muslim Civil Liberties 2

Pro-Bono Legal Services 37

Public Interest Law for Muslims 2

Public Relations 2

Trade Missions 46

Training Programs 2

B-3. Survey Conclusions Based upon the percentages apparent in the survey results, it may be concluded that a sizable number of Muslim lawyers have a strong interest in several areas of law including immigration, general civil, criminal, and business & commercial. Approximately 15 percent are or desire to become litigation lawyers. An encouragingly high percentage of Muslim lawyers, 37 percent, are interested in providing pro-bono legal services in their communities, while more than two-thirds are interested in working closely with other Muslim lawyers on a professional basis through a bar association or mutual business cooperation, such as client referrals. Over half of all Muslim lawyers, an extraordinarily high percentage, are interested in mentoring others in the profession. Similar to Memon’s conclusions, however, the relatively small number of respondents, precludes the adoption of sweeping generalizations about Muslim lawyers in general. On the other hand, it may be reasonable to conclude that those lawyers and law students who are supportive of Islamic activities such as the Memon project and the Journal of Islamic Law survey are a special breed of American attorneys who are dedicated to community service and mutual cooperation.


C. Profile of a Muslim Bar Association Within the past two years, Muslim attorneys have been expressing a renewed interest in establishing professional legal associations, as are prevalent among non-Muslim law professionals. At present, Chicagoland attorneys appear to be most actively pursuing this goal. Washington, D.C.-area lawyers also have been struggling to launch such an organization. The Washington organization has been incorporated as the American Muslim Bar Association (AMBA). The preliminary goals, purposes and planned activities of AMBA, listed in this subsection, appear to reflect many of the concerns and aspirations of Muslim attorneys across the country, and presumably would be incorporated in the organizational documents of other bar associations. The materials presented are an abbreviated expression of AMBA concerns. A full model bar association based on AMBA’s materials appear elsewhere in this issue. Notice should be given to the prevalent reference to cooperation between lawyers and Islamic scholars, and the desire to provide community services. C-1. Purposes of the American Muslim Bar Association (AMBA) 1. Increase the awareness of the Muslim Community to the laws of the United States and Shari’ah, and promote the understanding of the laws as they apply to Muslim life in the United States. 2. Increase access to legal representation for the Muslim community. 3. Promote business development opportunities for Muslim lawyers through client referrals, trade missions, career opportunities, etc. 4. Represent and advocate the legal interests of Muslims on a national level. 5. Promote legislation to serve the interests of the Muslim


community, and society at-large. 6. Provide a national communications network for Muslim attorneys and the legal community. 7. Enhance the reputation and exposure of Muslim attorneys by encouraging the development of publications, speaking opportunities and expertise on legal issues of national importance. 8. Develop a national research bank and participate in amicus briefs on issues of national concern to the Muslim community. 9. Enhance opportunities for Muslim law students. 10. Cooperate with other organizations in furthering the purposes of Muslim lawyers. C-2. Action Plan for Accomplishing Purposes 1. Increase awareness of Muslim community to the laws of the United States and Shari’ah, and promote the understanding of the laws as they apply to the Muslim life in the U.S. 2. Further Muslim Bar Association’s Interest in Justice by Increasing Access to Legal Representation in the Muslim Community.

3. Promote Business Development Opportunities for Its Members through Client Referrals, Trade Missions, Career Opportunities, etc. 4. Represent and Advocate the Legal Interests of Muslims on a National Level. 5. Promote Legislation to Serve the Interest of the Muslim Community and Society At-Large. 6. Serve as a National Communications Network for Muslim Attorneys and the Legal Community. 7. Enhance the Reputation and Exposure of Muslim Attorneys by Encouraging the Development of Publications, Speaking Opportunities and Expertise on Legal Issues of National Importance.


8. Develop a national research bank and participate in amicus briefs on issues of national concern to the Muslim community.

9. Enhance opportunities for Muslim law students. 10. Cooperating with Other Organizations in Furthering the Purposes of the Muslim Bar. V. Implementing Shariʻah through Alternative Dispute Resolution (ADR) As the Muslim population in North America continues to grow, there reasonably can be expected an increase in the number of disputes involving Islamic-related legal issues. Unless concrete steps are taken to establish acceptable standards and institutions to address Islamic concerns, there is a strong possibility that they will not receive proper consideration in accordance with Islamic values. It, therefore, is incumbent upon those Muslims with the knowledge, experience, influence, ability, and material resources to convene for the purpose of addressing the needs of the Muslim community (ummah) respecting the observance and enforcement of Shariʻah standards. National representatives grounded in Shariʻah, fiqh, education, and American law, in the very near future, should begin a series of symposia specifically to address this concern. Islamic law emanates from the very core of our faith permeating every aspect of our lives. In the past Islamic law was supplanted by force. We now have an opportunity to establish it in a free and open environment. We must not be content to cling to the predominate legal system, as it continues to slowly lapse deeper into semi-paralysis, choking on its own obstructive litigiousness. The same kind of stagnation that transmuted a glorious and vibrant system of Islamic law into one of atrophying blind conformity could overtake the American legal system if it fails to change. Persistent calls for legal and court reform hail from all segments of society, including the White House, Congress, and law organizations. In ever-increasing numbers, the general population continues to seek justice outside of the halls of justice


through the use of alternative dispute resolution (ADR) methods. ADR methods include mediation and arbitration -- concepts that are compatible with Islamic notions of fairness, justice, and peace. Through mediation and arbitration, the Muslim community may be able to design and implement a modified system of justice that would be responsive to its concern and that might evolve into a more comprehensive one in the future. Deliberate consideration of fiqh policy and quasi-judicial methods for practicing Islamic law and developing a legal system should begin now. The Muslim leadership of the U.S. and Canada might begin the process by convening for the purpose of planning the first of a series of symposia on Islamic law. Such symposia would include the adoption of short and long range plans, perhaps five and twenty years respectively, the assignment of research and organizational duties, and to plan follow-up meetings and activities. The ultimate goal, of course, would be to reach a consensus on the form and content of a method for providing timely, inexpensive resolution of disputes and problems involving Muslims and Islamic organizations. This section describes the characteristics of arbitration and mediation and discusses the benefits that the ummah could realize through use of community-based dispute resolution methods. It concludes by highlighting key areas of consideration, with related open-ended questions, that should be resolved by a national shura and/or its specially appointed ADR study and planning commission. A. Lawyers and Dispute Resolution There is inconsistency from one jurisdiction to another as to the appropriate role of attorneys engaged in mediation. Some state bars equate mediation with representation and prohibit it. Others permit it under prescribed circumstances. During an arbitration hearing in which a lawyer represents one of the parties, there is no question that he or she is engaged in providing legal counsel. But is legal representation being provided where the lawyer’s participation is more informal? What are the implications of serving as an arbitrator? Answers to these questions are not always clear and will vary from state to state. Lawyers, therefore,


are cautioned to obtain a written determination from the local bar as to limits and appropriateness of participating in arbitration and mediation, before getting involved in either activity. Be sure to indicate to the bar counsel that you are interested in participating in community-based ADR administered by organizations that may not be sanctioned by the local court system as a recognized ADR forum.7 If your bar association restricts or prohibits your participation in Islamic-based ADR, then you may want to consider attempting to get the bar association to change its rules. B. Community-based Dispute Resolution The American judicial system obviously provides a forum for resolving disputes. The chief concern that many Muslims have with it is its inability to address Islamic issues and concerns for reasons ranging from hostility and ignorance to jurisprudential and constitutional restraints. It is for this reason that the question of a separate system even arises. In considering whether to establish a separate Islamic judicial forum through ADR or otherwise a threshold question is whether it should be community-based or more remote like the most current court systems that are managed and controlled by professional jurists and administrators. While professional jurists certainly are capable of setting up and running a separate justice system, the likelihood of popular, community support of such a system is tenuous at best. There is mounting and widespread dissatisfaction of the ummah with both the professionally administered American system, as is discussed later in this article, and the stagnation and near petrification that 7 See, JACQULINE M. NOLEY-HALEY, ALTERNATIVE DISPUTE RESOLUTION 87 (1992). Attorneys are advised to check with their liability insurance carrier to determine whether there are restrictions on coverage for ADR activities, even if the organization sponsoring the ADR forum provides separate liability coverage (which, of course, could lapse) or the ADR agreement with the disputants confer immunity on the mediator or arbitrator (which, of course, a party might try to repudiate). In all instances, get the determination of the bar counsel and insurance carrier in writing and save it indefinitely.


the Islamicjustice system fell victim to and continues to suffer at the hands of scholars and politicians.8 On the other hand, community-based ADR offers a number of benefits that are worth serious consideration. A model that integrates professional knowledge, skill and experience with local community control of policy decisions and resource management might result in a system that educates and empowers the common people while sensitizing professionals and scholars to practical community concerns. A system whose mission is to educate the common people, giving them the opportunity to participate and express their voices in resolving disputes and community problems would prevent professional-domination of the ummah, but assure access to professional expertise and specialized knowledge essential for sound decision making. A community-based program also would require the people in the community to acknowledge their civic responsibility and obligation to make difficult decisions that impact on their lives and the lives of those upon they depend and share mutual values. C. Benefits of Community-based Dispute Resolution Listed below is a summary of the chief effects and benefits of a community-based dispute resolution system:

� Secures the authority of the local, common people in the formulation and application of Islamic law as opposed to a remote, centralized authority dominated by professional jurists and scholars.

� Provides a forum for clarifying and establishing Islamic values.

� Provides a justice forum that teaches individual and collective responsibility.

8 See, for example, THE SHARIA: A GLOBAL MUSLIM DEMAND, INQUIRY MAGAZINE OF EVENTS AND IDEAS (Jan. 1987). The entire issue is devoted to articles on reestablishing the supremacy of Islamic law throughout the Muslim world.


� Provides skills training in analytical thinking and

leadership that generally is not available elsewhere. � Provides participants a sense of accomplishment.

� Facilitates communication between individuals, families, businesses and groups.

� Provides a new vehicle for solving disputes that appears fair, just, and right in the light of the Qur’an and Sunnah.

� Develops local leadership among common people.

� Builds understanding of and respect for different interest groups.

� Allows important local issues and resources to be identified by those people for whom they are most important.

� Develops informal social controls and provides a formal method for checking and addressing instances of deviant and other improper behavior.

� Gives the community a sense of control and the

common people actual control.

� Builds sense of togetherness and unity in the community.

� Where reform is needed, community-based ADR may provide an impetus for action.

� Reduces community sense of weakness and fear of being victimized by others inside and outside the ummah.

� Provides forum for intercultural resolution of disputes as between Muslims and others.

� Reduces feelings of isolation and alienation of new members and those who are otherwise alone.


D. Trends in Islamic-Oriented Arbitration Interest in establishing formal, organized arbitration and mediation panels for the purpose of resolving disputes between Muslims has grown dramatically in North America during the past decade. In 1988, Muslims representatives met in Newark to plan, for perhaps the first time in history, the establishment of a national network of Islamic arbitration boards in major cities across the continent that would address family law issues.9 To date, the plan has not been implemented, but the sentiment has endured. In 1994, the community in Montreal established a short-lived Shari’ah Council that ceased operations after one year because it lacked the perceived and/or actual support of the community and local government.10 More recently, the Virginia-based Fiqh Council of North America has expressed its dedication to supporting efforts to resolve disputes between Muslim organizations through arbitration. Among its platform of objectives are the following two ADR-related items:11

� To assist local and national organizations in the resolution of conflicts.

� To advise in the appointment of arbiters, and review

arbitration proceedings and decisions for their consistency with Islamic legal principles.

The imperative for Muslims to settle disputes through arbitration and mediation is established in the Qur’an and, perhaps, this is why the community continues to seek alternatives to litigation to resolve disputes. Consider the following verses from the Qur’an on the subject of dispute resolution:

9 Irshad Abdal-Haqq, Islamic Law: An Overview of Its Origin and Elements, 1 J. ISLAMIC L. 1, at 57 (1996). 10 Id. at 58. 11 Yusuf T. DeLorenzo, Fiqh and the Fiqh Council of North America, MUSLIM LEGAL DIRECTORY & GUIDE TO YOUR LEGAL RIGHTS 1995-1996 at 60 (Kareema Altomare ed., 1995). Reprinted at page 193 of this issue.


Arbitration

Hast thou not turned thy vision to those who have been given a portion of the Book? They are invited to the Book of Allah to settle their dispute, but a party of them turn back and decline (the arbitration).12

Arbitration and Reconciliation

If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers. If they wish for peace, Allah will cause their reconciliation; for Allah hath full knowledge, and is acquainted with all things.13

Reconciliation

Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah hath created in their wombs, if they have faith in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation.14

The recompense for an injury is an injury equal thereto (in degree), but if a person forgives and makes reconciliation, his reward is due from Allah: for Allah loveth not those who do wrong.15

12 Holy Qur’an, Surah 3, Ayat 23 (A. YUSEF ALI, THE HOLY QUR’AN, TEXT, TRANSLATION AND COMMENTARY 1359) (Amana Corp. 1983) (1934). 13 Id. at Surah 4, Ayat 35. 14 Id. at Surah 2, Ayat 228. 15 Id. at Surah 42, Ayat 40.


The believers are but a single brotherhood, so make peace nd reconciliation between your two (contending) brothers; and fear Allah, that ye may receive mercy.16

Permissibility of Secrecy in Dispute Resolution

In most of their secret talks there is no good; but if one exhorts to a deed of charity or justice or conciliation between men, (secrecy is permissible) -- To him who does this, seeking the good pleasure of Allah, We shall soon give a reward of the highest (value).17

Amicable Settlement of Domestic Disputes

If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best, even though men’s souls are swayed by greed. But if ye do good and practice self-restraint, Allah is well-acquainted with all that ye do.18

Thus, the question is not whether arbitration boards or panels will be established for the purpose of resolving disputes as between Muslims, Muslims and non-Muslims, Muslims and government, Muslims and the media, etc. No, the real questions are: who will influence and be involved in conceptualizing, establishing, developing and operating such tribunals? Will they be centralized or community-based? 16 Id. at Surah 49, Ayat 10. 17 Id. at Surah 4, Ayat 114. 18 Id. at Surah 4, Ayat 128.


E. National Shura to Address the Question of Dispute Resolution. While there is a clear mandate that Muslims arbitrate, mediate and attempt to reconcile matters of dispute between one another, there certainly is no requirement that such activity be uniformly implemented over wide geographic regions. Should there be a single set of standards applied at every ADR forum across the continent, or should the standards be considered, adopted and implemented on the local community level? If it is decided that self-determination of ADR practice and mission should be community-based, are there recommended minimum standards of education, training, experience, and quality of character for persons involved in ADR? If so, what are those standards? And the ultimate question -- what fiqh applies in North America and how can fiqh differences be reconciled? No individual or small group of individuals can answer these questions with any degree of authority. And even if they could, there is no way of implementing such broad policy without the cooperation of the leadership of the ummah and the people who support them. The proper method for addressing and deciding broad questions of policy is through shura, mutual consultation. One or more organizations must take the initiative to identify and survey the leaders19 of the North American Muslim community on the following questions and determine who among them are interested, willing and available to consult on the following concerns:20

1. Do you think the Muslim community should give serious consideration to formalizing dispute resolution

19 Of course leaders is a term open to interpretation, somewhat. It might include active, reputable imams, scholars, lawmakers, jurists, and the heads of major organizations. As part of the survey, a question might be asked on the first round, “who else besides the persons and organizations listed, do you recommend for participation in this shura, if it is held?” 20 These are suggested questions and concerns. Readers may be aware of others that should be included in a survey and addressed in shura.


methods, e.g. organized arbitration boards or councils, on a national or local community level?

2. Is there a genuine need for developing uniform recommended standards for our ADR activities?

3. If you believe formalization of dispute resolution should be considered and/or that uniform recommended standards should be developed, are you or representatives of your organization willing to meet to discuss the first two questions and the following additional matters:

(a) Whether ADR should be locally or nationally based and administered?

(b) The question of fiqh and how to reconcile fiqh differences.

(c) Whether to appoint a special commission to develop a model ADR program?

(d) To actually appoint and finance a special commission with a clearly stated mission, objectives, time lines and dissolution date. Should a special commission be established to study ADR issues in detail, the shura council must take the responsibility for providing oversight and supervision of the commission.

The process of identifying and resolving the broad (global) policy questions that must be answered and establishing a special commission to develop a proposed ADR model and guide will be time consuming, labor intensive and cannot be done without investment. Financial resources will have to be allocated for this special purpose. If the ummah does decide to establish Shariʻah here, the lead time may be a number of years to provide adequate training and preparation to interested and qualified candidates


to serve as arbitrators and mediators, and to prepare local communities to take on operational responsibility. F. Special Commission on ADR The many details attendant in developing a model ADR proposal such as specialized research and administrative matters cannot and should not be a function of the shura council. Neither time nor practical circumstances would permit the entire council to address such matters in an efficient manner. Rather, the council should focus on setting general policy and appointing a committee, a special commission, to implement the policy and report back with findings and a proposed plan of action. The commission should be representative of the shura council and directly answerable to it. An important duty of the council is making certain that goal-oriented, responsible individuals with a record of accomplishment are appointed to the commission. An ineffectual commission locked in hairsplitting and posturing would most certainly kill any chance of successfully studying the various ADR issues raised by the council. The primary purpose of the special commission would be to conduct an in-depth study of ADR issues and concerns as directed by the council, and after communication with wide segments of the Muslim community, members of government, law professionals, etc., propose model ADR development and training plans for adoption by the shura council. After reviewing and approving the commission’s plans (which might be revised based on shura council comments), the council would make arrangements for printing and disseminating guidance materials to all Islamic organizations interested in Islamic-oriented ADR. The commission’s assigned tasks would include, among other things, the following:

� To organize itself under the leadership of an executive committee whose members are named by the shura council.

� To address any remaining questions of fiqh

assigned to it by the council.


� To study and outline proposed ADR organizational & management structures.

� To set proposed minimum training and qualifi-

cation standards for Arbitrators and Mediators.

� To address legal and legislative concerns.

� To write and disseminate a preliminary proposal for future action that might include a number of alternative plans for developing ADR programs and training prospective ADR managers and arbitrators.

� To solicit, organize, share and react to comments on

the preliminary proposal with member of the shura.

� To issue a final proposal. Once the special commission issues its final proposal, the shura council must confer again and decide whether or not to accept it, and what future action to take regarding the publication and distribution of guidance materials to the ummah. The commission should be allowed to operate without close supervision by the full council. Nonetheless, however, the shura council should appoint from among itself a standing executive committee with whom the commission may communicate in case of problems or if important questions arise. This shura executive committee also make sure that the commission is progressing in accordance with prescribed time lines and operating within its mandated budget limits. G. Organization & Management Elements No single group of individuals on the special commission will be able to address all of the scores of issues and questions that must be resolved. For each of the tasks highlighted in the previous section, the commission might assign a task force, whose job it would be to address certain types of issues or to recruit assistance in getting them addressed. For example, if it turns out that there is a need for substantial work on fiqh issues after the shura council


meets, then a task force might be assigned just to work on and report back on those fiqh issues. Likewise, ADR organizational and management elements must be addressed by the commission in its report. This article cannot resolve, let alone dictate, how a commission should answer questions related to this area of development. At a minimum, however, the following areas of operation and open-ended questions must be considered: 1. Governance of the ADR process and organization. To what degree should professionals, such as lawyers and business managers, control the ADR entity and its operations? How can the influence of special interest groups within a masjid, for example, be limited? Will the organization accept outside funding? How can a community insulate itself from undue outside influence if it accepts outside funding and benefits? 2. Program Management. Who will run the day to day operation of the ADR program? If the program is successful and popular, it may be necessary to hire full-time staff, including an executive director, scheduling & record keeping clerks, interviewers, and receptionists. What type of qualifications and job descriptions would be needed for the positions that must be filled? 3. Budget and Financial Management. Each ADR program will need a budget and a financial management policy and system. How should budgets be formulated? What line items should a budget include? What are the elements of a sound financial management system? Will there be a charge for ADR services? Will arbitrators and mediators be paid for serving? Will costs incurred in volunteering for an ADR organization be paid? What are some of the ways that an ADR program can be financed? 4. Record Keeping and Privacy Issues. To what degree should an ADR program keep records on the individuals who come in for service? Will any fatwa be used in future cases or in books of fiqh? How should they be preserved and managed? How will the privacy of the individuals who are the subjects of those decisions be protected? What if an outside funder demands statistical data on the cases and subjects of ADR proceedings -- will they be provided?


5. Forms. Model forms should be devised and provided to any community interested in hosting an ADR program. What types of forms will be needed for an ADR program? Among others, most programs require intake forms, record of decision forms, survey forms, biographical data forms, job application forms, volunteer worker forms, arbitrator and mediator application forms, program evaluation and assessment forms, and indemnification forms executed by disputants. 6. Types of services. What areas of Islamic law and other areas of activity would be appropriate for an ADR program? Many non-Muslim programs do not provide consumer and divorce services because consumer cases require the cooperation of merchants, which is sometimes difficult to get, and divorce cases require the cooperation of the other spouse, and where child custody and real estate are issues, specialized knowledge and expert legal help are required. Should community-based programs provide mediation as well as arbitration services? 7. Case Selection Criteria and Client eligibility. Which cases and applicants should be given priority? Are there any case situations that should not be accepted, such as one that already pending in a court of law? What about cases where one of the disputants is uncooperative or constantly late or otherwise difficult to work with -- how should such cases be handled? 8. Operational Materials, Space and Equipment. What type of space and location are best for ADR proceedings? What furnishings and equipment will be required? What types of orientation and work materials, manuals, information packets, parking, food, and other facilities are necessary to run a viable program? 9. Recruitment and Screening of Arbitrators and Mediators. Should only trained professionals such as qadis, muftis, and attorneys be allowed to serve in the ADR process? What minimum qualities of character, community service, knowledge, training, availability and competence should we look for in arbitrators and mediators? How does an organization go about screening out inappropriate people? 10. Supervision and Evaluation of Arbitrators and Mediators. How will arbitrators and mediators be supervised and evaluated? How does an organization get rid of well-meaning,


volunteer assistance that is incompetent or inadequate? What questions should be asked in evaluating, not only the people in a program, but the program operations itself? What standards of behavior, demeanor, and practice should be established for arbitrator and mediators? 11. The Arbitration Hearing and Mediation Meeting. Will the parties be allowed to have representatives present? What will be the rules of procedure and evidence? How should witnesses be handled, sworn in, and questioned? Who cannot serve as a witness? Is there a way for devising a list of expert witnesses in fiqh, American law, and special topics that ADR programs can have access to? Will written decisions be issued to the parties and their representatives? What can be done to prevent parties from going to another ADR program in a nearby city in an effort to obtain a different fatwa? Should award information be shared with other Islamic ADR programs? 12. Community Outreach. What efforts can or should be made to let the general community know about an Islamic ADR program? Is it desirable to let other masajid, judges, family agencies, children's services, senior services, crisis intervention programs, domestic abuse projects police, school guidance counselors, and hospitals know about our programs? Should Islamic ADR programs get involved in resolving the disputes of non-Muslims? Many organizations with established ADR programs have asked and answered many of the questions raised above. (Obviously, they would not have addressed those that specifically germane to Islamic concerns.) The authors do not propose answers because there are too many considerations requiring discussion and research that must be weighed before sincere answers can be formulated. The task may seem formidable, but after a year or two working out answers to these questions, the ummah should be infinitely stronger and capable of sustaining itself on a local, regional and national basis. H. Training and Qualification Standards for Arbitrators and Mediators. Professional and specialized training and knowledge are not


required to resolve many disputes. Disagreements over the payment of bills, use of disrespectful language, misuse of someone else’s property, domestic disputes short of divorce, children misbehaving in the masjid or school and a host of other routine matters can be resolved using common sense and a basic understanding of the religion by many people who possess solid Islamic characters. On the other hand, a great many disputes require a thorough knowledge of Qur’an and Hadith, sometimes fiqh methodology, Arabic, and other subject areas. The commission’s task force on training standards should determine whether and when specialized training and knowledge are required and what the minimum recommended qualifications should be for arbitrators and mediators overseeing certain types of cases. A process for providing support to Islamic ADR programs in the form of identifying qualified individuals meeting recommended standards should be considered. Likewise, a proposal to establish a training facility and comprehensive curriculum that incorporates the following should be considered: Quranic sciences; Hadith sciences; fiqh; Arabic; dispute resolution techniques; professional writing; and computer training (including basic use of word processing programs, e-mail programs and how to conduct research on the internet). It may be feasible to incorporate a training program into a pre-existing Islamic educational program.21 In addition to basic training, advanced, continuing education, and youth training and mentoring courses may be desirable components in the task force’s proposed plan. An ideal resource that would both train and support those involved in the ADR process would be on-line access to Islamic legal information from a centralized library source, such as the ADR training center. Along the same lines, an integrated computer network providing e-mail and other communication capability would help to keep smaller communities or those in remote areas in touch with the larger community. Regular mailings (via e-mail or physically) also might prove to be beneficial. With the advent of CD-ROM, the internet, e-mail, teleconferencing, and the ability to design special software programs, communication and training in the 21 See, for example, the training program offered by the School of Islamic and Social Sciences in Herndon, VA, which includes most of the suggested topics.


Muslim community can be accomplished as if we were all together in a single location. I. Legal and Legislative Concerns A legal task force would be charged with determining what legal impediments stand in the way of establishing an Islamic ADR program in each state. ADR methods are recognized under federal and most state law. For each state, however, restrictions on the use of ADR differ, not only for laypersons, but for lawyers as well. Additionally, state law regarding substantive areas of law such as inheritance, divorce, marriage, adoption, business, and torts differ. The special commission’s task force on law also would have the responsibility of surveying state law in all these matters and cross indexing them against Islamic legal principles and the needs of the American Muslim community. Where conflicts between American and Islamic law can be resolved through the use of private agreements or contracts, the legal task force would so state. It may be possible for this task force to provide sample contract clauses for use in marriage, business, divorce and other agreements that would require binding Islamic arbitration and mediation instead of or before going to court. The legal task might also be charged with determining whether Islamic ADR programs should incorporate as nonprofit organizations or adopt some other organizational structure. It would have to explain all of the ramifications of adopting one structure over another, and how an entity would proceed in setting itself up. Legislative action and draft legislative language will be required to change laws that are incompatible or hostile to an Islamic ADR program in any state. The legal task force would be charged with explaining how laws are changed and which law must be changed in particular states. This team might also assist in developing model legislative language for laws that are the same in more than one state. Oftentimes, ADR organizations are sued by disgruntled clients, employees, or volunteers. The legal team should be asked to explain how an organization might limit the liability of its staff,


and arbitrators and mediators. Many federal and state laws provide limited immunity to such persons for certain types of action, but the legal task force would need to study the issue thoroughly to protect the ummah from unscrupulous forces that would seek to impede its development. Therefore, legal instruments, insurance plans, and precautionary procedures that could protect our ADR program should be explored and reported on by the legal task force. J. ADR Conclusion For hundreds of years now, American Jews have operated Jewish, Beth Din, divorce courts successfully.22 So there is no question of as to whether the ummah can establish religious-oriented tribunals here. The question is whether we want to pursue the possibility in an organized, comprehensive manner. Even if the leadership believes it is worth pursuing, it will not succeed unless there is a large enough group of community people who really want it to happen. Probably no one in a given community will oppose it, but to be successful broad-based, passionate attachment to the idea is instrumental.23 To be successful then, the common people must desire success for these programs wherever they are established. Unless the Muslim leadership educates itself, decides unequivocally that such programs are beneficial to the people, and then begin the time-consuming task of sharing the objectives and purpose of the ADR shura council, the common people probably will not desire success for these programs and they will be doomed to failure. As it stands, development and implementation of a viable ADR model to serve the legal needs of the Muslim community appears to be years away. It will take even longer to produce a cadre of educated, morally upright young leaders capable of refining and

22 See, for example, How Couples ‘Get’ A Religious Divorce, THE NATIONAL LAW JOURNAL, Aug. 15, 1988, at 8, describing the operation of a Beth Din and why a religious divorce, get, is important in orthodox Judaism. 23 See, generally, JENNIFER E. BEER, PEACEMAKING IN YOUR NEIGHBORHOOD: REFLECTIONS ON AN EXPERIMENT IN COMMUNITY MEDIATION 166-171 (1986), citing the principle attributes of a successful community-based ADR program based on empirical data.


managing any type of alternative Islamic judicial system. There is no question that the task is a formidable one. However, nothing will ever be attempted, if all possible objections must be first overcome. The time to begin conceptualizing our social and judicial institutions is now. VI. Cooperation between Muslim Social Scientists and Lawyers A. Establish and Maintain Contact with Muslim Lawyers & Organizations. To develop a viable system of mutual support between Muslim social scientists, Islamic scholars and Muslim lawyers, the parties must establish and keep the channels of communication open. This can be accomplished through trans-organizational committees and/or cross organizational membership eligibility. The cross-fertilization process might be further advanced through collaborative writings (articles and books), and through co-sponsored workshops and special projects. The following subsection lists but a few of the subject areas that are worthy of consideration for publication or workshop discussion. B. Suggested Topics for Mutual Review by Social Scientists, Islamic Scholars and Lawyers The following are examples of the types of subjects that could and should be written about, and examined by the legal community and between the legal community and those of other disciplines. 1. Organizing Islamic Credit Unions 2. Islamic Banking in the United States 3. Funeral Law 4. Economic Development Law & Models 5. Takaful & Insurance Law 6. Cooperative/Collective Purchasing Program & Law 7. Medicine: Organ donation; transplants; invitro fertilization; etc. 8. Islamic Criminal Law 9. Islam, Democracy & Constitutional law


10. International Trade Law with Muslim Nations 11. Islam, torts law & the settlement of tort claims 12. Model Business Agreements for American Muslims 13. Law of Changing Names for Muslims 14. Legal aspects of establishing a Masjid 15. Legal aspects of establishing a Muslim school 16. The Islamic Foundation:Formation, Substance & Management 17. Incorporating a Municipality: Real Property; City Management 18. Civil Rights 19. Religious Freedom 20. Immigration VII. Conclusion The emerging Muslim legal community represents an invaluable resource for the ummah. In this short paper, I have tried to provide insight into the meaning of law in this society and why it is important for Muslims to know it and use it. I also have attempted to describe the make up and interests of the Muslim legal community. It is a rapidly growing community whose Islamic-oriented membership offers a powerful tool for community development. It is clear that the Muslim lawyer is interested professionally and personally in providing voluntary services to the community, while also hoping, perhaps even expecting, the community to support him or her in the business of law. If the ummah does not tap into this vital resource, our growth as an advanced community will be delayed and we may be relegated to a rudimentary and fragmented condition for a long time to come. The key to effective application of the community’s legal expertise rests upon proactive cooperation between the legal, scholar, and business segments of the ummah. Regularly scheduled outreach efforts between these various interest groups should result, insha’Allah, in noteworthy and rapid progress.

Model National

Muslim Bar Association

I. INTRODUCTION .........................................................................152

II. ARTICLES OF INCORPORATION ................................................152

III. BY-LAWS OF THE AMERICAN MUSLIM BAR ASSOCIATION (AMBA).....................................................155

IV. ACTION PLAN FOR ACCOMPLISHING AMBA’S PURPOSES 171

1. Increase Awareness of Muslim Community to the Laws

of the United States and Shari’ah ................................................171

2. Further AMBA's Interest in Justice by Increasing Access

to Legal Representation in the Muslim Community.....................172

3. Promote Business Development Opportunities for its

Members ............................................................................174

4. Represent and Advocate the Legal Interests of Muslims

on a National Level .....................................................................175

5. Promoting Legislation to Serve the Interest of the Muslim

Community and Society at-Large ...............................................176

6. Serve as a National Communications Network for

Muslim Attorneys and the Legal Community...............................179

7. Enhance the Reputation and Exposure of Muslim

Attorneys ...........................................................................179

8. Develop a National Research Bank and Participate in

Amicus Briefs ..............................................................................180

9. Enhance Opportunities for Muslim Law Students ...................181

10. Cooperate with Other Organizations ....................................183

151


I. INTRODUCTION Approximate two years ago, a committee of Washington, D.C.-area Muslim lawyers began meeting for the purpose of conceptualizing and establishing a national Muslim bar association. In late 1997, an organization was incorporated as the American Muslim Bar Association (AMBA), and is now endeavoring to implement its program. The articles of incorporation, preliminary by-laws and tentative goals, purposes and planned activities of AMBA, are presented in this paper (with selected editorial changes) as one model that might be considered by other attorneys across the country as they too endeavor to organize local and perhaps even national organizations. Notice should be given to the prevalent reference to cooperation between lawyers and Islamic scholars, and the desire to provide community services. II. ARTICLES OF INCORPORATION OF THE AMERICAN MUSLIM BAR ASSOCIATION. We the undersigned natural persons of the age of twenty-one or more, acting as incorporators of a corporation under the Non Profit Corporation Act (D.C. Code, 1981 edition, title 29, Chapter 5), adopt the following Articles of Corporation: First: The name of the corporation is the American Muslim Bar Association (hereinafter “AMBA”) Second: AMBA is a non-profit corporation organized under Section 501(c)(6) of the Internal Revenue Code of 1986 as amended (the “Code”) for the purpose of conducting activities that will further the interests of American Muslim attorneys and the Muslim communities which they serve, as follows: 1. Increase the awareness of the Muslim community to the laws of the United States and Shari’ah, and promote the understanding of the laws as they apply to Muslim life in the United States.

Fall/Winter 1998] Model Muslim Bar Association 153

2. Further AMBA’s interest in justice by increasing access to legal representation in the Muslim community. 3. Promote business development opportunities for its members through client referrals, trade missions, career opportunities, etc. 4. Represent and advocate the legal interests of Muslims on a national level. 5. Promote legislation to serve the interest of the Muslim community, and society at large. 6. Serve as a national communications network for Muslim attorneys and legal community. 7. Enhance the reputation and exposure of Muslim attorneys by encouraging the development of publications, speaking opportunities and expertise on legal issues of national importance. 8. Develop a national research bank and participate in amicus briefs on issues of national concern to the Muslim community. 9. Enhance opportunities for Muslim law students. 10. Cooperate with other organizations in furthering the purposes of this organization. As a means of accomplishing the foregoing, AMBA shall have the power to do any and all acts as are necessary, useful or desirable for the furtherance, accomplishment or attainment of any of the purposes herein set forth, to the same extent and as fully as any natural person might or could do. AMBA shall be authorized to solicit, obtain, receive and administer funds, property or services, received in the form of membership dues or otherwise, and to establish a separate fund within its organization, or affiliate with a separate entity, that shall


qualify for an exemption from the United States Federal income taxation under Section 501(c)(3) of the Code. Third: The period of duration of this corporation is perpetual Fourth: The corporation shall have three (3) classes of members whose rights and privileges shall be set forth in the bylaws: 1. Attorney members. Attorney members shall include judges and attorneys admitted to practice law in any state or district in the United States or its territories. 2. Student members. Student members shall include law students enrolled in an ABA accredited law school in the United States, Canada or territories of the United States. 3. Associate members. Associate members shall include law graduates, attorneys and judges not admitted to practice in any state or district in the United States. Fifth: No part of the corporation’s net earnings will inure to the benefit of any private shareholder or individual, and it is not organized for profit or to engage in any activity ordinarily carried on for profit. Sixth: The directors shall be elected by the members in the manner provided in the bylaws. Seventh: The affairs of the corporation shall be guided by principles of Islamic Shari’ah and fiqh. Upon the dissolution or final liquidation, the assets of AMBA shall be distributed to an Islamic non profit organization in accordance with the decision of the Board of Directors. Notwithstanding the foregoing, in the event that at the time of dissolution or final liquidation AMBA has established a separate fund that qualifies for exemption from the United States Federal


income taxation under Section 501(c)(3) of the Code, the Board of Directors shall transfer and distribute all of the net assets of such funds to one or more organizations exempt for United States Federal income taxation purposes under Section 501(c)(3) of the Code or the corresponding provision of any subsequent United States internal revenue law. Eighth: The address of the initial registered office is [insert address and zip code]. The name of the initial registered agent is [insert name and address of agent]. Ninth: The initial board of directors shall be three (3) members: [insert names and addresses of directors] Each initial director shall serve until the 1st annual meeting or until a successor to such director has been elected and qualified. Signed: [each director must sign and date document] Date: [Many states require notary clause, signature, and seal] III. BY-LAWS OF THE AMERICAN MUSLIM BAR ASSOCIATION (AMBA) Article I - Purpose The American Muslim Bar Association (hereinafter "AMBA") is organized and shall be operated exclusively for such purposes that qualify it as an organization described in section 501(c)(6) of the Internal Revenue Code of 1986, as amended from time to time (hereinafter referred to as the "Code") and exempt it from federal income tax under section 5 0 1 (a) of the Code (or the


corresponding provision of any future United States internal revenue law). These purposes include, but are not limited to 1. Increasing awareness of the Muslim community to the laws of the United States and Shari’ah, and promote the understanding of the laws as they apply to the Muslim life in the United States. 2. Furthering AMBA's interest in justice by increasing access to legal representation in the Muslim community 3. Promoting business development opportunities for its members through client referrals, trade missions, career opportunities, etc. 4. Representing and advocating the legal interests of Muslims on a national level. 5. Promoting legislation to serve the interest of the Muslim community, and society at large. 6. Serving as a national communications network for Muslim attorneys and legal community. 7. Enhancing the reputation and exposure of Muslim attorneys by encouraging the development of publications, speaking opportunities and expertise on legal issues of national importance. 8. Developing a national research bank and participate in amicus briefs on issues of national concern to the Muslim Community 9. Enhancing opportunities for Muslim law students. 10. Cooperating with other organizations in furthering the purposes of this organization. As a means of accomplishing the foregoing AMBA shall have the power to do any and all acts as are necessary, useful or desirable for the furtherance, accomplishment or attainment of any of the purposes herein set forth, to the same extent and as fully as any natural person might or could do. Article II - Members A. Classes

The corporation shall have three (3) classes of members: 1 . Attorney members. Attorney members shall include all judges and attorneys admitted to practice law in any state or district in the United States and its territories. Attorney members shall be entitled to vote for "Attorney" representatives to the board of directors, and all other matters requiring membership voting.


2. Student members. Student members shall include any law student enrolled in an ABA accredited law school in the United States, Canada or territories of the United States. Student members shall be entitled to vote for "Student" representatives to the board of directors, and all other matters requiring membership voting, 3. Associate members. Associate members shall include law graduates, attorneys and judges not admitted to practice in any state or district in the United States or Canada. Associate members shall be entitled to vote for "Associate" representatives to the board of directors, and all other matters requiring membership voting. B. Meetings 1. Annual Meeting. The annual meeting of AMBA members shall be held at a time and place designed by the Board of Directors, for the purpose of selecting directors and for the transaction of such other business as may come before the meeting. 2. Special Meetings. Special meetings of the members, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the directors, and shall be called by the president at the request of 30 percent of all members entitled to vote. 3. Place of Meeting. The directors may designate any place, either within or without the District of Columbia, unless otherwise prescribed by statute, as the place of meeting for any annual meeting or for any special meeting called by the directors. A waiver of notice signed by all members entitled to vote at a meeting may designate any place, either within or without the District unless otherwise prescribed by statute, as the place for holding such meeting. If no designation is made, or if a special meeting is otherwise called, the place of


meeting shall be the principal office of AMBA. 4. Notice of Meeting. Written, printed or electronically transmitted notice stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for, which the meeting is called, shall be delivered not less than 15 nor more than 40 days before the date of the meeting, either personally, electronically or by mail, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each member of record entitled to vote at such meeting. If electronically transmitted such notice shall be deemed delivered when an acknowledgment of receipt has been received. If mailed, three days shall be added to the time for giving notice. Such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the member at his address, with postage thereon prepaid. 5. Quorum At any meeting of members, fifteen percent (15%) of the regular members represented in person or by proxy shall constitute a quorum at a meeting of members. The action taken by the majority of those voting when a quorum is present shall be the action of the membership. 6. Proxies. At all meetings of members, a member may vote by proxy executed in writing by the member or by his or her duly authorized attorney in fact. Such proxy shall be filed with the Secretary of AMBA before or at the time of the meeting. 7. Voting. Each member entitled to vote in accordance with the terms and provisions of these bylaws shall be entitled to one vote, in person or by proxy. Upon the demand of any member, the vote for


directors and upon any questions before the meeting shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the laws of the District of Columbia. 8. Informal Action by Members. Unless otherwise provided by law, any action which may be taken at a meeting of members may be taken without a meeting after proper notice of such action is given to all members as provided in section 4 (above), if a consent in writing, setting forth the action so taken, shall be signed by a majority of members, entitled to vote with respect to the subject matter thereof. C. Membership Fee. 1. The board of Directors shall authorize the annual membership dues for all classes of members.

2. The due's year shall be established by the Board of Directors.

3. No person shall be qualified to exercise any right or privilege of membership or be a member of the board of directors who is delinquent in membership dues. Article III - Board of Directors A. General Powers. The business and affairs of AMBA shall be managed by its board of directors, which shall operate as a shura body. The directors shall in all cases act as a board, and they may adopt such rules and regulations of the conduct of their meeting and the management of the AMBA as they may deem proper, consistent with Shari’ah, the Articles of Incorporation, these by-laws and the laws of the District of Columbia.


B. Number, Tenure and Qualifications. The number of directors of the corporation shall be an odd number of at least nine (9), of which a majority shall always be composed of "Attorney" members, and an equal number of the remaining members shall be "Student" and "Associate" members. Each director shall hold office until the next annual meeting of members and/or until his or her successor shall have been elected and qualified. Directors appointed by the board to fill the unexpired term of a director shall serve until the next annual meeting or special meeting called for the purpose of filling the unexpired ten-n, whichever occurs first. C. Regular Meetings. A regular annual meeting of the directors shall be held after, the annual meeting of members. The directors may provide, by resolution, the time and place for the holding additional regular meetings without other notice than such resolution. D. Special meetings. Special meetings of the directors may be called by or at the request of the president or any three directors. The person or persons calling the special meeting of the directors may fix the place for holding any special meetings of the directors called by them. E. Electronic communications. Any or all directors may participate in a meeting of the board of directors or a committee of the board by means of conference telephone or by any manner of communication by which all persons participating in the meeting are able to hear one another, and such participation shall constitute presence in person at the meeting. F. Notice Notice of any special meeting shall be given at least five days


previously thereto by written notice delivered personally, electronically, or mailed to each director at his or her business address. If electronically transmitted such notice shall be deemed delivered when an acknowledgment of receipt has been received. If mailed, three days shall be added to the time for giving notice, and such notice shall be deemed to be delivered when deposited in the United States mails so addressed, with postage thereon prepaid. The attendance of the director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. G. Quorum. At any meeting of the directors a majority shall constitute a quorum for the transaction of business, but if less than a majority is present at a meeting at a majority of the directors present may take action subject to the unanimous written consent of the remaining directors not then in attendance, and may adjourn the meeting from time to time without further notice. H. Manner of Acting. The board of directors shall make every effort to act by consensus in the conduct of its business; however, if consensus cannot be achieved, the act of the majority of the directors present at a meeting at which at a quorum is present shall be the act of the directors. The affairs of the corporation shall be guided by Shari’ah and principles of fiqh (the process of deducing and applying Shari’ah), including ijma (consensus), qiyas (analogy), istihsan (the public interest), istihab (presumption of continuity) ijtihad (individual reasoning) and urf (local custom) derived through shura (mutual consultation). I. Newly Created Directorships and Vacancies. The board of directors may vote to increase the number of directors on the board subject to ratification by the members at the


next annual meeting or specially called meeting. Provided, that "Attorney" members shall remain a majority at all times. Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the board for any reason except the removal of directors without cause may be filled by at a vote of at a majority of the directors then in office, although less than at a quorum exists. Vacancies occurring by reason of the removal of directors without cause shall be filled by vote of the members. A director elected to fill at a vacancy caused by resignation, death or removal shall be elected to hold office for the unexpired term of his or her predecessor. J. Removal of Directors. Any or all of the directors may be removed for cause by vote of the members or by action of the board. Directors may be removed without cause only by vote of the members. K. Resignation. A director may resign at any time by giving written notice to the board, the president or the secretary of AMBA. Unless otherwise specified in the notice, the resignation shall take effect upon receipt thereof by the board or such officer, and the acceptance of the resignation shall not be necessary to make it effective. L. Presumption of Assent. A director of AMBA who is present at a meeting of the directors at which action or any corporate matter is taken shall be presumed to have assented to the action taken unless his or her dissent shall be entered in the minutes of the meeting or unless he or she shall forward such dissent electronically or by mail with proof of receipt to the secretary of AMBA immediately after the adjournment of the meeting. Such right to dissent shall not apply to at a director who voted in favor of such action.


M. Executive and Other Committees. The board, by resolution, may designate from among its members an executive committee which shall have the authority to act on behalf of the board of directors between meetings of the board of directors, and such other committees, as it may deem necessary consisting of at least one director. Each such committee shall serve at the pleasure of the board. N. Contracts with Directors and Officers. No director or officer of AMBA shall be financially involved, directly or indirectly, in any contract relating to the operations conducted by AMBA, nor in any contract for furnishing services or supplies to AMBA, unless such contract shall be authorized by the AMBA Board and unless the fact of such involvement shall have been disclosed or known to the AMBA Board at the meeting at which such contract is so authorized. Article IV - Officers A. Number The officers of AMBA shall be at a president, vice president, secretary and treasurer, each of whom shall be elected by the directors. Such other officers and assistant officers as may be deemed necessary may be elected or appointed by the directors. B. Election and Term of Office. The officers of AMBA to be elected by the directors shall be elected annually at the first meeting of the directors held after each annual meeting of the members. Each officer shall hold office for one year unless re-elected or until lie or she shall resign or shall have been removed in the manner hereinafter provided.


C. Removal. Any officer or agent elected or appointed by the directors may be removed by the directors, with or without cause, whenever in their judgment the best interest of AMBA would be served thereby. D. Vacancies, A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the directors for the unexpired portion of the term. E. President. The president shall be the convener and chairperson of the AMBA board of directors and subject to the control of the directors. The president shall in consultation with the board of directors supervise the business and affairs of AMBA. He or she shall, when present, convene and chair all meetings for the members and the board of directors. He or she may sign, with the secretary or any other proper officer of AMBA thereunto authorized by the directors, any contracts, or other instruments which the directors have authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the directors or by these by-laws to some other office or agent of AMBA, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the directors from time to time. F. Vice President. In the absence of the president or in the event of his death, inability or refusal to act, the vice president shall perform the duties of the president. The vice-president shall perform such other duties as from time to time may be assigned to him by the President or by the directors.


G. Secretary. The secretary shall keep the minutes of the members and of the directors meetings in one or more books provided for that purpose, see that all notices arc duly given in accordance with the provisions of these by-laws or as required, be custodian of AMBA records and keep a register of the post office address of each member which shall be furnished to the secretary by each member, and in general perform all duties incident to the office of secretary and such other duties from time to time may be assigned to him by the president or by the directors. H. Treasurer. If required by the directors, the treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the directors shall determine. He shall have charge and custody of and be responsible for all funds and securities of AMBA; receive and give receipts for moneys due and payable to AMBA from any source whatsoever, and deposit all such moneys in the name of AMBA in such banks, trust companies or other depositories as shall be selected in accordance with these by-laws and in general perform all of the duties incident to the office of treasurer and such other duties as from time to time may be assigned to him b the president or by the directors. Article V - Liability and Indemnification of Directors and Officers A. Non-liability of directors and officers. The liability of directors and officers of AMBA for damages is eliminated with respect to any proceeding brought by or in the right of AMBA, except that such liability shall not be eliminated if the director or officer engaged in willful misconduct or a knowing violation of the criminal law.


B. Indemnification of directors and officers. AMBA shall indemnify each director and officer who is made or is threatened to be made a party to a suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in he right of AMBA) by reason of the fact that he or she is or was a director or officer of AMBA, or is or was serving as a director or officer of AMBA, or is or was serving at the request of AMBA as a director or officer of an AMBA partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees'), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of AMBA, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon plea of nolo contenders or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interest of AMBA, and with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. C. Indemnification in Actions by or in the Right of AMBA. AMBA shall indemnify each director and officer who is made party or is threatened to be made a party to a suit or action by or in the right of AMBA to procure a judgment in its favor by reason of the fact that he or she is or was a director or officer of AMBA or is or was serving at the request of AMBA as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of AMBA and, except that no indemnification shall be made in respect of any claim, issue or


matter as to which such director officer shall have been adjudged to be liable for negligence or misconduct in the performance of his or her duty to AMBA unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite that adjudication of liability but in view of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. D. Indemnification in Actions by or in the Right of AMBA as a Fiduciary. AMBA shall indemnify each director and officer who is held to be a fiduciary under any employee pension or welfare plan or trust of AMBA or any of its divisions and who is made party or is threatened to be made a party to a suit or proceeding, whether civil, criminal, administrative or investigative (other than by or in the right of AMBA) by reason of the fact that he or she is or was a fiduciary and was serving as such at the request of AMBA, against expenses (including attorneys fees), judgments, Fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding for any breach of any of the responsibilities, obligations or duties imposed upon fiduciaries by the Employee Retirement Income Security Act of 1974 and any amendments thereto, if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of such plan or trust, and with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon plea of nolo contenders or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interest of such plan or trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. The provisions of all of the following paragraphs of this Article relating to directors, officers, employees or agents shall apply also to directors, officers or employees held to be fiduciaries under this


section, specifically including the power of AMBA to purchase and maintain insurance on behalf of such fiduciaries. E. Determination of Conduct. Any indemnification under sections B, C and D of this Article (unless ordered by a court) shall be made by AMBA only as authorized in the specific case upon a determination that indemnification of the director or office is proper in the circumstances because such person has met the applicable standard of conduct set forth in those sections. Such determination shall be made: I by the AMBA board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or 2 if such a quorum is not obtainable, or, even if obtainable by a quorum of disinterested directors so directs, by independent legal counsel in a written opinion. F. Indemnification Not Exclusive. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which a director or officer seeking indemnification may be entitled under any statute, provision in AMBA's articles of incorporation, by-laws, agreement, vote of disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director officer and shall inure to the benefit of the heirs, executors and administrators of such a person. G. Insurance. AMBA shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of AMBA, or is or was serving at the request of AMBA as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not AMBA would have the power to indemnify


such person against such liability under the provisions of this Article. Article VI - Contracts, Loans, Checks and Deposits A. Contracts The Board of Directors may authorize any officer(s) or agent(s) to enter into any contract or execute and deliver any instrument in the name of and on behalf of AMBA, and such authority may be general or confined to specific instances. B. Loans. No loans shall be contracted on behalf of AMBA and no evidence of indebtedness shall be issued in its name unless authorized by a resolution of the directors. Such authority may be general or confined to specific instances. C. Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, notes or other evidences issued in the name of AMBA, shall be signed by such officer(s) or agent(s) of AMBA in such manner as shall be determined from time to time by resolution of the Board of Directors. D. Deposits All funds of AMBA not otherwise employed shall be deposited from time to time to the credit of AMBA in such banks, trust companies or other depositories as the directors may select. Article VII - Fiscal Year The fiscal year of AMBA shall begin on a date set certain by the Board of Directors.


Article VIII - Seal The directors shall provide a corporate seal which shall be circular in form and shall have inscribed thereon the name of the corporation, the state or jurisdiction of incorporation, year of incorporation and the words "Corporate Seal". Article IX - Waiver of Notice Unless otherwise provided by law, whenever any notice is required to be given to any member or director of AMBA under the provisions of these by-laws or under the provisions of the articles of incorporation or by law, a waiver thereof in writing signed by the person(s) entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Article X - Miscellaneous Provisions A. Severability. If any provision of these By-laws, or any section, sentence, clause, phrase, or word, or the application thereof in any circumstances, is held invalid, void or unenforceable, the validity of the remainder of these By-laws shall be affected thereby, and to this end the provisions hereof are declared to be severable. B. Captions. The captions contained in these By-laws are for reference only, are not a part of these By-laws and are not intended in any way to limit or enlarge the terms and provisions of these By-laws. C. Governing Jurisdiction. These By-laws and their interpretation shall be governed by the laws of the District of Columbia.


Article XI - Amendments These by-laws may be amended by a two-thirds (2/3rds) vote of members present at a duly convened meeting of members at which a quorum is present. Amendments to the by-laws shall go into effect and become law immediately upon the adjournment of the meeting at which they are adopted. Adopted: [signatures of authorized officers & witnesses with dates] IV. ACTION PLAN FOR ACCOMPLISHING AMBA’S PURPOSES The AMBA organizing committee identified 10 action areas through which its fundamental purposes might be accomplished. The following outline reflects suggested activity plans through which the committee believed AMBA goals and objectives, as expressed in its organizational documents, could be achieved and realized. 1. Increase Awareness of Muslim Community to the Laws of the United States and Shari’ah and Promote the Understanding of the Laws as they Apply to Muslim Life in the U.S. A. Conferences/Forums 1. Tasks necessary to accomplish objective: a. Establish conference task team (committee) b. Identify subject matter (agenda topics) c. Develop mailing lists, develop & distribute promotional

literature d. Obtain acceptances from presenters & participants e. Reserve facilities, accommodations & catering services f. Acquire supplies, materials, and security details

2. Expenses necessary to accomplish objective a. Printing (copying) & postage/stationery b.Communications (long distance telephone/fax costs) c. Direct implementation costs related to each conference


3. Time to accomplish: short term (1 year) B. Series of articles on specific topics targeted to community newspapers 1. Tasks necessary to accomplish objective a. Identify and survey possible writers b. Recruit specific writers for specific topics c. Collect, edit and distribute articles 2. Expenses necessary to accomplish objective

a. Minimal (cost of mailing/delivering articles to media) 3. Time to accomplish: short term (3 months) C. TV/radio presentations on Muslim media 1 Tasks necessary to accomplish objective a. Identify & analyze Muslim media b. Determine appropriate topics for presentation c. Develop list of attorneys interested & available for

presentations 2. Expenses necessary to accomplish objective a. Minimal (postage & telephone calls to media) 3. Time to accomplish: short term (3 months) 2. Further AMBA'S Interest in Justice by Increasing Access to Legal Representation in the Muslim Community. A. Provide an Attorney Referral Network 1. Tasks necessary to accomplish objective

a. Develop a listing of attorneys by geographic and practice areas

b. Establish guidelines for attorney participation and client referral

c. Employ/engage a coordinator


2. Expenses necessary to accomplish objective a. 800 telephone number w/ ext. b. Publication and reproduction of legal directory (optional) c. Dissemination of legal directory d. Personnel to administer referral service 3. Time to accomplish short term (1 year) B. Develop a Listing of Legal Resources 1. Tasks necessary to accomplish objective a. Research & development of a listing of legal resources

by geographic areas (e.g. public defender, legal aid society, ACLU, EEOC and human rights agencies, bar association attorney referral programs, etc.,

advocacy groups) b. Employ/engage a coordinator 2. Expenses necessary to accomplish objective a. 800 telephone number w/ ext. b. Publication and reproduction of directory (optional) c. Dissemination of directory d. Personnel to administer service 3. Time to accomplish: short term (2 years) C. Provide Seminars and Workshops 1. Tasks necessary to accomplish objective a. Develop a listing of attorneys by geographic and practice

areas with expertise on various subjects b. Establish guidelines for attorney participation and referral c. Employ/engage a coordinator 2. Expenses necessary to accomplish objective a. 900 telephone number w/ ext. b. Publication and reproduction of directory (optional) c. Dissemination of legal directory (optional)


d. Personnel to administer service 3. Time to accomplish: short term (2 years) 3. Promote Business Development Opportunities for Its Members through Client Referrals, Trade Missions, Career Opportunities, etc. A. Create a data bank 1. Tasks necessary to accomplish objective a. Develop a listing of all member attorneys by practice and geographic area. b. Persuade attorneys to advertise all their employment needs

in the AMBA's data bank. c. Persuade Attorney members to give hiring preferences to qualified Muslim attorneys and other legal personnel. d. Place in the data bank the name and address of the members

of the Muslim legal community who are searching for employment.

e. Make the data bank accessible on the Internet. f. Persuade member attorneys to refer job seekers to known potential employers.

g. Persuade member attorneys to give preferences to AMBA members when it comes to client referrals. h. Inform AMBA members that the AMBA will act as a referral service and actively refer persons to AMBA members.

2. Expense necessary to accomplish objective. a. Communications via mail. Postage and stationary. b. Communications: long distance telephone/fax. c. Computer to create data bank.

d. A site on the web to publish the contents of data bank. 3. Time to accomplish: Time is based on the gradual implementation of all other aspects of the AMBA. Example, the


more members we have, the more comprehensive our data bank will be. Also, the sooner we have a web site and a computer the sooner we can create and publish the data bank. 4. Represent and Advocate the Legal Interests of Muslims on a National Level A. Develop a Speakers/Writers Bureau 1 Tasks necessary to accomplish objective a. Develop a listing of attorneys by geographic and practice

areas with expertise on various subjects b. Establish guidelines for attorney participation and referral c. Employ/engage a coordinator d. Monitor and review status of program 2. Expenses necessary to accomplish objective a. 800 telephone number w/ ext. b. Publication and reproduction of directory (optional) c. Dissemination of legal directory (optional) d. Personnel to administer service 3. Time to accomplish: short term (2 years) B. Establish a Legislative Committee 1. Tasks necessary to accomplish objective a. Board of Directors to establish a Committee b. Develop a listing of attorneys by geographic and practice

areas with expertise on various subjects interested in participating

c. Develop a legislative agenda in coordination with other Muslim organizations d. Research religious rights and privileges afforded other religious groups e. Meet on a regular basis to review and revise agenda f. Monitor and coordinate activities with board of directors


2. Expenses necessary to accomplish objective a. Travel and accommodations for meetings. b. Long distance telephone meetings c. Reproduction costs d. Postage e. Personnel to coordinate committee meetings 3. Time to accomplish: short term (I -3 years) C. Develop a Legal Defense Fund 1. Tasks necessary to accomplish objective a. Establish separate entity with interlocking directorate b. Develop a budget for operation of program. c. Employ director, staff attorneys and support personnel d. Raise funds to operate program 2. Expenses necessary to accomplish objective a. Staff b. Office c. Travel d. Equipment & Furnishings e. Supplies 3. Time to accomplish: mid-long term (5-10 years) 5. Promoting Legislation to Serve the Interest of the Muslim Community and Society at-Large.

A. Prepare Legislative Agenda. 1. Tasks necessary to accomplish objective a. Establish Legislation Committee or Legislative Council b. Review current legislation for endorsement or opposition. c. Determine own legislative agenda for action. 2. Expenses necessary to accomplish objective a. Communications (phone, fax etc.)


b. Postage c. Meeting Space and Related Costs 3. Time to accomplish-. Short Term (I year) B. Establish Subject Related Legal Commissions or Committees (i.e. Family Law, Mental Health, Privacy etc.) 1. Tasks necessary to accomplish objective a. Identify Subjects from partial survey b. Identify those with specialty or interest in Subjects. c. Ascertain Interest in Serving on Commission, d. Appoint Members. 2. Expenses necessary to accomplish objective a. Communications (phone, fax etc.) b. Postage c. Meeting Space and Related Costs 3. Time to accomplish a. Partial Survey: 45 days b. Identify specialist: 7 days c. Interest in Serving: 7 days d. Appointment of Commission: 7 days C. Monitor Congress, State Houses, and Municipal Governments for legislative initiatives of interest to Muslim community. 1. Tasks necessary to accomplish objective a. Monitor Federal & State Legislative Activities using

Internet Services. b. Get information from other Muslim organizations i.e.,

AMC, CAIR, etc. c. Get information from local Muslim lawyers and concerned citizens. 2. Expenses necessary to accomplish objective a. Internet Service Fee.


b. Phone Line 3. Time to accomplish (short term 14 days) D. Write and Prepare Legislation (bills & amendments) to be Submitted to the Congress and State Houses Around the Country. 1. Tasks necessary to accomplish objective a. Work of members of Legislation Committee 2. Expenses necessary to accomplish objective

a. Communications (phone, fax etc.) b. Postage 3. Time to accomplish (project by project) E. Prepare and Assist Communities in Developing Political Action Plans. 1. Tasks necessary to accomplish objective a. Legislation or Political Action Committee must develop check list or "boiler plate" lobbying plan. b. Hold Constituent Skills Workshops (1) Legislative Process (2) Effective Communication (3) Legislative Updates 2. Expenses necessary to accomplish objective a. Communications (phone, fax etc.) b. Postage c. Meeting Space and Related Costs d. Printing. 3. Time to accomplish (long term: 18 months)


F. Provide Authoritative Research and Commentary on Islamic Legal Positions. 1. Tasks necessary to accomplish objective a. Establish research and consultative agreements with current American Fiqh councils.

b.Establish AMBA Fiqh Committee. 2. Expenses necessary to accomplish objective a. Communications (phone, fax etc.) b. Postage c. Meeting Space and Related Costs d. Printing 3. Time to accomplish (long term: 2 Years) 6. Serve as a National Communications Network for Muslim Attorneys and the Legal Community. A. Use National Data Bank as Foundation for a National Communications Network. B. Publish Communications on an AMBA Web Site. C. Create an AMBA Periodic Publication. D. Annual National Convention. 7. Enhance the Reputation and Exposure of Muslim Attorneys by Encouraging the Development of Publications, Speaking Opportunities and Expertise on Legal Issues of National Importance. A. Encourage AMBA Members to Regularly Write and Publish Legal Articles. Make the Article Accessible on the AMBA Web Site and Store in Data Bank.


1. Tasks Necessary to Accomplish Objectives 2. Expense necessary to accomplish objective. 3. Time necessary to accomplish objective. B. Create an AMBA Law Review. 1. Tasks Necessary to Accomplish Objectives 2. Expense necessary to accomplish objective. 3. Time necessary to accomplish objective. C. Place in the Data Bank the Name of AMBA Members Who are Experts in Areas of Law or Other Issues of National Importance. Refer Members of the Media or Institutions to AMBA Members With Expertise in Relevant Areas. 1. Tasks Necessary to Accomplish Objectives 2. Expense necessary to accomplish objective. 3. Time necessary to accomplish objective. 8. Develop a National Research Bank and Participate in Amicus Briefs on Issues of Concern to the Muslim Community. A. Think Tank that Develops and Disseminates Issue Papers & Briefs. 1. Tasks necessary to accomplish objective a. Organize committee to verify need for program through survey of Muslim organizations, scholars and individuals b. Develop comprehensive program design & mission statement c. Develop budget and Identify funding sources


2. Expenses necessary to accomplish objective a. Fund raising expenses b. Operating expenses 3. Time to accomplish: short term (5 years) B. Community Legal Office Along Lines of Shura Law Center Model. 1. Tasks necessary to accomplish objective a. Organize committee to verify need for program through survey of Muslim organizations, scholars and individuals b. Develop comprehensive program design & mission statement c. Develop budget and Identify funding sources 2. Expenses necessary to accomplish objective a. Fund raising expenses b. Operating expenses 3. Time to accomplish: short term (5-7 years) 9. Enhance Opportunities for Muslim Law Students A. Establish A Mentoring Program 1. Tasks necessary to accomplish objective a. Develop list of mentors & mentees b. Guidelines on mentoring c. Pair mentors & students d. Devise monitoring mechanisms e. Disseminate report on program 2. Expenses necessary to accomplish objective a. Postage/stationery and monitoring-related costs 3. Time to accomplish: short term (4 months)


B. Internship Opportunity Network 1. Tasks necessary to accomplish objective a. Solicit & list internships offered by Muslim lawyers or their organizations b. Identify other possible internships through research c. Distribute internship information to students, media, and organizations d. Gather information about internships from participants during and after participation for subsequent students. 2. Expenses necessary to accomplish objective a. Postage/stationery 3. Time to accomplish: short term (3 months) C. Establish Scholarship Program 1. Tasks necessary to accomplish objective a. Develop scholarship purpose & selection criteria b. Organize selection and administration instrument c. Disseminate scholarship information through media and mailings d. Devise tracking system of award recipients e. Make awards 2. Expenses necessary to accomplish objective a. Fund raising b. Administrative costs 3. Time to accomplish: short term (2 years) D. Student Emergency Fund to Assist Students Through Short Term Interest-free Loans and Grants. 1. Tasks necessary to accomplish objective a. Develop loan fund eligibility criteria and rules.

b. Devise an implementation plan and time schedule


c. Disseminate information about the fund's existence 2. Expenses necessary to accomplish objective a. Postage/stationery to inform students about fund b. Fund raising to cover cost of establishing the fund 3. Time to accomplish: short term (I year) E. Establish a Rotating "Hotline" for Questions, Concerns, Problems. 1. Tasks necessary to accomplish objective a. Survey of students to determine level of support and need. b. If students support it, then hotline number & location(s) must be set up c. Administrative rules, which may limit AMBA's scope of assistance must be adopted and administered. d. Devise privacy policy regarding discussion of student problems. 2. Expenses necessary to accomplish objective a. Telephone service; postage/stationery for survey 3. Time to accomplish: short term (I year) 10. Cooperating with Other Organizations in Furthering the Purposes of This Organization A. Invite Leaders of Islamic Organizations to Meetings and Forums. 1. Tasks necessary to accomplish objective a. Establish Education & Public Affairs Committee b. Collect and compile list of leaders of Islamic Organizations in North America. c. Create list of appropriate speaking topics. d. Invite them to speak at various AMBA functions.


2. Expenses necessary to accomplish objective a. Communications (phone, fax etc.); postage; transportation. 3. Time to accomplish (short term: 1 year) B. Advertise in Islamic Publications 1. Tasks necessary to accomplish objective a. Establish Education & Public Affairs Committee b. Collect and compile list of Islamic Publications in the U.S. c. Determine Ad copy. 2. Expenses necessary to accomplish objective a. Ad design & copy; printing 3. Time to accomplish (short term: 90 days) C. Participate in Islamic Organizations Conventions 1. Tasks necessary to accomplish objective a. Compile list of organizations and convention dates. b. Establish Booth at selected conventions. c. Place ads in Convention journals. d. Sit on panels where legal opinions are critical. 2. Expenses necessary to accomplish objective a. Cost of Booths and ads 3. Time to accomplish ( short term-. 1 year) D. Provide Legal Assistance to Islamic Organizations 1. Tasks necessary to accomplish objective a. Maintain roster of American Muslim lawyers inside and outside of AMBA. b. Establish Legal Referral System for pro-bono and paid assistance. c. Take on selected Projects as determined by Board.

The Essence of Islamic Law by Robert D. Crane, Esq.* I. THE NATURE OF ISLAMIC LAW Islamic law, known as the Shari’ah, is the framework of ultimate reality and the ethical guidance that Muslim scholars have derived from the direct Revelation of Allah to man. Although Allah reveals the pattern of ultimate truth indirectly through the workings of the physical universe and in the observable nature of man, the ultimate source of knowledge about both physical and metaphysical reality – and therefore the ultimate source of the shari’ah – is the Qur’an. This divine text was revealed directly in human language to the Prophet Muhammad (saws), and is exemplified in the sunnah, which reports the Prophet’s understanding of this Final Revelation as shown through his words and deeds. All Revelation to the Jewish Prophets (saws) and to Jesus (saws) is binding on Muslims unless specifically abrogated in the Qur’an. The Shari’ah is a specific form of the shar’ or path to God which the Qur’an states was revealed to all the prophets of the Abrahamic succession. Since the major purpose of Islamic law is to guide man’s search for truth, shari’ah touches on both transcendent and material experience. All aspects of every person’s spiritual understandings and undertakings, which come under the rubric of purification, or tazki’yah, should be consciously subject to the reality-check of Islamic law. This deeply spiritual nature of the shari’ah provides the perspective of understanding and acting in accordance with the ethical or moral standards that the creator has provided to guide every person’s and community’s relations with other humans and with the rest of Creation. The shari’ah therefore provides the ultimate criteria for judgment on every aspect of one’s individual and social life.

* Former legal counsel to the American Muslim Council (AMC). This essay was first published in the AMC’s 1995-96 Muslim Legal directory. The Journal gratefully acknowledges the permission of AMC to republish this work. 185

186 The Journal of Islamic Law [Vol. 3:185

II. THE METHODOLOGY OF ISLAMIC LAW The process of gaining knowledge of Islam through jurisprudence, and the body of legal advisements so derived, is known as fiqh. The Shari’ah consists both of specific rules and regulations, known as ahkam, which are the subject of istifta, or fiqh analysis, and of general principles induced by scholars over many centuries from study of the Qur’an, sunnah, and their application in everyday life. The specific directives in the Qur’an focus primarily on the elements of formal worship known as the five pillars of Islam, because man cannot reason to this knowledge alone. There elements consist of the profession of faith, including the ‘aqidah or articles of faith common to all Abrahamic religions; and the rules for the five daily prayers, charity, fasting and pilgrimage. The general principles of Islamic law, also know as universals (kulliyat), essentials (dururiyat), and goals (maqasid), are derived by a system of reasoning known as istislah, which focuses on the common good of mankind. This system of thought, in turn, is part of the broader field of study known as usul al fiqh, or study of the sources of fiqh. Analysis of the general principles of Islamic law through the use of intellectual effort, known as ijtihad, gives meaning to the specific directives and also provides guidance on all aspects of Muslim life in the variable contexts of time and place. Islamic law thereby gives living expression to an elaborate science and art of interpreting and applying the injunctions of the Qur’an and the guidance of the Prophet Muhammad (saws). The development of an integrated and adaptable legal system which focuses on what is best for mankind as a whole is one of the most outstanding achievements of Muslim jurists. The methodology of Islamic jurisprudence asserts that any ruling in the fiqh has meaning only to the extent that we can understand its rationale or higher purpose. III. HUMAN RESPONSIBILITIES The dignity of man derives from his acceptance, before the Creator of the Universe, of the responsibility to know right from wrong and to be steward of the universe charged with caring for it

Fall/Winter 1998] The Essence of Islamic Law 187

and guiding it in accordance with the Divine Will. No beings in either the physical or metaphysical worlds have such a sublime responsibility. The rights of the human person and community derive from this responsibility, because every person and community must be free to carry out this stewardship. Every man and every woman, every Arab and every Jew, and every rich person and every poor person are equal in their responsibility to Allah and therefore in their dignity and in their human rights. Islamic law focuses on human responsibility, because a focus on human rights can devolve into the selfishness of seeking to maximize one’s own freedom to do whatever one wants at the expense of others. If everyone would fulfill all of his or her responsibilities, individually and collectively, then everyone would be accorded the full range of human rights. The scholars of Islam, have identified a half dozen overarching responsibilities, though some scholars will condense these to five or expand the number by elevating a secondary responsibility to the level of the universal or essential. The first three concern the essentials of life itself, whereas the next three concern the quality of life. The first three essential areas of responsibility or duty in Islamic law are: A. Respect for Life Respect for life, or “the right to life” known as haqq al haya. This requires not merely respect for the unborn after the spirit or ruh has been breathed into the fetus, but also such social duties as respect for non-belligerents in war and the use of dispute settling mechanisms whenever possible to avoid violence that might threaten the lives of oneself or others. Respect for life requires most basically an understanding that lasting peace can result only from justice, and that therefore stability should be sought as the by-product of sound foreign policy rather than as its direct aim. Similarly, crime should be combated primarily by addressing the causes rather than the results of the criminal mentality.


B. Respect for Community Respect for community, or right to one’s identity as a member of a family, community, or nation, known as haqq al nasl. This focus on the family, and more broadly on expanding circles of community to include mankind and even all sentient beings in the universe, is unique to Islamic law, because it implies that sovereignty lies not in the extent of a country’s or a government’s power, as it does in Euro-American international law, but in the inherent dignity of the human person in community. This acknowledgment of the inherent right of the person to live in a series of legally recognized communities permits several levels of sovereignty, all subject to the highest sovereignty of God, and contrasts with the concept of exclusive sovereignty found in the so-called “nation-state” of the mid-twentieth century. C. Respect for Free, Private Enterprise Respect for free, private enterprise, with broad capital ownership, known as haqq al mal. The principle of freedom for individual persons to own the means of production has been basic in all Islamic scholarship until the twentieth century. Unfortunately, the principle of equal opportunities to own capital or the tools of production has been largely ignored for over a thousand years because various “rulers” understood that concentrated political power requires concentrated property ownership. Denial of access to capital ownership in a capital-intensive economy can amount to the denial of the right to life itself. Therefore all institutions that work in practice to concentrate ownership, including the financing of economic growth through the use of interest rather than by risk-sharing in joint ownership, are “illegal,” that is, morally illegitimate, in Islamic law. D. Political Self-Determination Political self-determination, or haqq al hurriyah. This is usually known as “the right to political freedom.” Islamically, however, this term emphasizes the responsibility of both the ruled


and the rulers to establish permanent institutions designed to facilitate broad-based political participation by every member of a polity in its governance so that they can help determine their own immediate well-being and long-run destiny. This universal, like each of the other five, contains a second-order level of responsibilities that serve to elucidate and carry out the primary responsibility. In the context of political self-determination, this next lower level of responsibility, known as hajjiyat, consists of ijma, which is the duty of the governed to reach consensus on critical issues, and shurah, which is the duty of the ruler to be responsive to this consensus. In a complex society, this might be accomplished best by using a concept of a hierarchy of assemblies that culminate in a national parliament. The third necessary element in the system of government prescribed in Islamic law, in addition to the executive and legislative, is an independent judiciary charged with applying the principles of Islamic law, especially as they are spelled out in a formal constitution covering the organs, methods, and principles of governance chose by the legislature. The judicial area of government is designed to limit both the ruled and the ruler so that the ultimate sovereign, both in theory and in fact, will be Allah. E. Dignity Dignity, known as haqq al karama. The duty to respect human dignity is at the core of all Islamic law, because the essential purpose of the shari’ah is to help persons acknowledge and deepen their relationship to Allah and express this higher level of being especially in their relationships with each other. There are two major parts of this fifth universal principle of Islamic law. The most important aspect of the principle of dignity is the duty to respect each person’s need to seek and worship God in his or her own way. This is known in Western thought as “freedom of religion.” In both traditional Islamic and traditional American thought, this most essential element of the dignity of man requires that the government avoid any sectarian bias in carrying out its duty to facilitate freedom of religion in public affairs. Another aspect of this principle of dignity, which is second in importance only because it is so often ignored, is “gender


equality.” Whereas the Prophet Muhammad (saws) and the Islamic teachings of the prophetic period were breathtakingly revolutionary in recognizing the divinely ordained rights and responsibilities of women in society, the practice of later Muslims degenerated to the level of their neighbors and has largely remained at this level while the rest of the world has begun to understand and share the sophistication of the original Islamic heritage. Islamic law recognizes a greater responsibility of wife and mother to care for the home and children, and a greater responsibility of the husband and father to support the family. The family, however, is a mutual support group, whereby all responsibilities are held in common through the principle of collective responsibility, or fard kifaya. It follows from this that if any duty is not being adequately met, each member has a personal responsibility, or fard ‘ain, to do whatever is required to fulfill that duty, whether it be the husband washing dishes or the wife working outside the home. Similarly, to the extent that home duties and the work of financial support for the family have been satisfactorily accomplished, both husband and wife have equal responsibility to participate in social and political leadership when needed for the good of the community and even to accept the highest judicial, legislative, executive, or entrepreneurial position in the land if it is offered. There the criterion for judgment is not women’s rights or men’s rights, but individual responsibility. Gender is irrelevant when the issue is personal responsibility to meet the needs of society in accordance with the requirements of Islamic law. F. Knowledge Knowledge, or haqq al ‘ilm. A key to success in every aspect of private and public life is the duty to pursue knowledge. Since the highest purpose of every person is spiritual understanding, freedom to pursue the path of spiritual knowledge is paramount. We were created, however, as humans not as angels, so we have a duty to pursue whatever knowledge is useful to us individually and collectively in carrying out our responsibilities: to help the marginalized in society, to promote justice among people and


nations, to multiply the material bounties of Allah, to work constructively in the political process, to participate with people of other faiths in addressing all the problems in society, and otherwise fulfilling all the requirements placed upon us by Islamic law. The duty to respect knowledge goes beyond the negative task of protecting freedom of thought and expression, limited only by the duties to respect human dignity, and extends to the positive obligation of every person to learn as much as one can throughout one’s life in order to fulfill the purpose for which one was created. The nature and specific obligations inherent in Islamic law make it not only unique among mankind’s legal systems but the best suited as the paradigm of thought within which all religions and all peoples can cooperate in building a better world.


Hadith Qudsi* On the authority of Abu Hurayah (may Allah be pleased with him), who said that the Messenger of Allah (may the blessings and peace of Allah be upon him) said: “Allah (mighty and sublime is He) said”:

Whoever shows enmity to someone devoted to Me, I shall be at war with him. My servant draws not near to Me with anything more loved by Me than the religious duties I have enjoined upon him, and My servant continues to draw near to Me with supererogatory works so that I shall love him. When I love him I am his hearing with which he hears, his seeing with which he sees, his hand with which he strikes and his foot with which he walks. Were he to ask [something] of Me, I would surely give it to him, and were he to ask Me for refuge, I would surely grant him it. I do not hesitate about anything as much as I hesitate about [seizing] the soul of My faithful servant: he hates death and I hate hurting him.

It was related by al-Bukhari. _____________________________ * Hadith Qudsi or Sacred Hadith, are those sayings of Prophet Muhammad which Muslims believe were divinely communicated to him, though the actual wording need not necessarily be that of Allah. Forty such hadith were compiled and translated by Ezzendin Ibrahim and Denys Johnson-Davies, as published in their 1980 work entitled FORTY HADITH QUDSI.

Fiqh and The Fiqh Council of North America

by Yusuf Talal DeLorenzo* As the Muslim community in North America grows to include more ethnically and culturally diverse elements, the process of istifta’ (in which consultation takes place between qualified experts on religious law and people for whom adherence to that law is an essential part of their faith) and the phenomenon of the “imported” mufti become more problematic. Immigrant and indigenous American Muslims of whatever ethnic or cultural background have often been disappointed by the lack of appreciation for local conditions and circumstances on the part of such “imported” muftis. Likewise, community leaders and members alike have come to realize that the legal responum or fatawa obtained through the mail, so to speak, from muftis in Muslim majority countries often fail to address the crux of the issues presented to them for consideration. Quite often, their responses raise more problems than they settle. Certainly, this is only natural. For unless there is a clear understanding of the context of a legal question, there is little likelihood that the solution offered will be an adequate one. From here, the idea seems to have taken hold among American Muslims that the institution of istifta’ or fiqh consultation is one that is best supported by those who fully understand and appreciate the special characteristics of the North American Muslim community and the circumstances in which it strives to develop. Over the past twenty years, the community has turned increasingly to local experts for the solutions to their fiqh related problems. The experts consulted have not always had the sort of

* Secretary of the Fiqh Council of North America. This essay was first published in the AMC’s 1995-96 Muslim Legal directory along with several others. The Journal gratefully acknowledges the permission of AMC to republish this work. 193

194 Journal of Islamic Law [Vol. 3:193

fiqh qualifications traditionally required of mufits, but their understanding of local conditions, coupled with backgrounds in Arabic or Islamic studies have placed them in the position of being called upon to give opinions on sensitive issues. With the rise of interest in Islamic studies in American academia, however, a number of Muslim scholars with fiqh credentials have come to American universities for graduate studies, post graduate work, or to fill teaching posts in new or expanding departments. At the same time, American Muslims, especially converts and second generation converts (the children of converts), have sought in increasing numbers to obtain advanced fiqh training abroad at Islamic universities and traditional Islamic institutions. All of these developments have made it possible for the community to draw upon a wider range of fiqh expertise and experience. In recent years, national organizations like the Islamic Society of North America, the Islamic Circle of North America and the Ministry of Warith Deen Mohammed have seen the need to form committees of scholars to advise on matters related to fiqh and the community. Out of one such committee grew the Fiqh Council of North America, an independent body of fiqh counselors organized in view of the increasing need on the part of the growing Muslim community in North America for considered Shari’ah-based advice and counsel. Its functioning extends to the needs of individuals and organizations within the community and to those with whom they interact, Muslim and non-Muslim alike. By way of example, over the past year the Council has dealt with questions submitted by individual Muslims, by local and national Muslim organizations, by the Departments of Justice and Defense, by Muslim and non-Muslim trail lawyers, immigration lawyers, and journalists with interests as varied as biological engineering and third world politics. The Fiqh Council of North America aims at participating, through its academic expertise, in the process of facilitating the Islamic way of life in the secular, non-Muslim environment of North America; and the way it intends to do this is by providing institutions and individuals with jointly considered legal opinions and advice that are based on the Qur’an and the Sunnah. The Council’s primary objectives, as outlined in its bylaws are:

Fall/Winter 1998] The Fiqh Council 195

1. To consider, from a Shariʻah perspective, and offer advice on specific undertakings, transactions, contracts, projects, or proposals, guaranteeing thereby that the dealings of American Muslims fall within the parameters of what is permitted by the Shariʻah. 2. To consider issues of relevance to the community and give, from a Shariʻah perspective, advice and guidelines for policy, procedure, and practice. Such advice may take the form of position papers, fatawa, research papers, sample forms for legal agreements, or whatever else is deemed effective. 3. To consult, on issues requiring specialized knowledge and experience, with professionals or subject specialists. 4. To establish and maintain working relationships with Shariʻah experts worldwide, including muftis, university professors, researchers, Shariʻah court justices, and members of national and international Fiqh councils and academies.

5. To assist local and national organizations in the resolution of conflicts.

6. To advise in the appointment of arbiters, and review arbitration proceedings and decisions for their consistency with Islamic legal principles. 7. To commission research on relevant Islamic legal issues. 8. To maintain a comprehensive Shari’ah library.

9. To anticipate and serve the particular needs of minority groups within the community; youth, women, prisoners, recent convert, etc. 10. To develop a fiqh for Muslims living in non-Muslim societies.

In terms of its philosophy, the Council’s bylaws state that it will make its decisions jointly, and base them on evidence derived from the two most reliable sources of revelation: the Qur’an and


authentic Sunnah. In doing so it will employ the principles and methodologies of usul al fiqh and consider, where relevant, the various opinions of earlier Muslim jurists. All legal schools will be considered equally as intellectual resources to be drawn from in the process of giving contemporary interpretations to the texts of revelation. In other words, the issue of madhhab or affiliation to one legal school of thought or another is one which the Council considers valid only in regard to questions of worship or ‘ibadat. Yet, even with that restricted area, new developments have brought about questions that the traditional imams never considered. Among the most important approaches of the Council in its treatment of new issues and questions that apply particularly to the Muslim communities of North America is its policy of giving additional consideration, in the light of higher purposes or maqasid of the Shari’ah, to the circumstances imposed upon Muslims by the non-Islamic environment that surrounds them. In classical terms these circumstances are called the ahwal al mahkum ‘alayhi, and are mentioned only briefly, if at all, in the major works of usal. While decisions made by the Council are the result of collective scholarship and consideration, members do have the right to write dissenting opinions. As a part of the process of istifta, the mustafti or questioner has the right to accept whichever opinion he feels is the more valid. And this is partly a function of his knowing better what his particular circumstances or ahwal might be. Another matter for the consideration of the fiqh councilor in North America is that since the traditional fiqh of Islam is essentially the fiqh of the historical Muslim state and its Muslim majority, it pays little or no heed to the fiqh of Muslim minorities except in the form of nawzil issued at times of crisis, such as during the Mongol invasions, or the crusades, or in the Moriscan period of Andalusian history. The fiqh of these periods, however, was never developed or analyzed as it was considered to have come about under adversity and therefore fell under the category of legal exception by virtue of necessity. It is therefore essential that the councilor strive to interpret the teachings of Islam in a way that is consistent both with the higher principles of the Shari’ah and with the circumstances of Muslims living in predominately non-Muslim societies. Such fiqh might be known as the fiqh of Muslims in non-Muslim environments, and its applications in today’s world are probably without limit.

The Muslim Invocation on Capitol Hill:

Revisiting the Legality of Prayer in Congress

by Irshad Abdal-Haqq*

Imam Siraj Wahaj of New York was the first Muslim to formally conduct an invocation on Capitol Hill. His prayer was delivered in the House of Representatives on Tuesday, June 25, 1991. The following year Imam W. Deen Mohammed, as guest chaplain in the U.S. Senate, conducted the first Muslim led invocation there on February 6, 1992. Both events were widely celebrated in the American Muslim community. Since that time, ‘eid celebrations have been hosted by the White House, iftar (breaking of the fast) activities have occurred in House reception rooms, and Muslims working on Capitol Hill have established weekly Jumah prayer meetings. This short essay examines the constitutionality of conducting such official religious activity as invocations within the halls of Congress as well as in state government legislatures. The prayers delivered by the imams and remarks about them made by their respective sponsoring congressmen are reproduced at the end of this discussion. The practice of opening sessions of Congress with prayer has continued without interruption ever since the First Congress drafted the First Amendment to the U.S. Constitution over 200 years ago. A principal clause of the First Amendment, commonly known as the “Establishment Clause,” embodies the doctrine of the separation of church and state. It prohibits Congress from passing laws that establishes one religion over another or interfere with the free exercise of religion. Many people believe that the First Amendment therefore prohibits the Congress from sanctioning any

* Managing editor of the Journal.

197


type of religious activity, including daily House and Senate invocations. While activities such as the invocation might appear to violate the Establishment Clause at first glance, the U.S. Supreme Court has ruled just the opposite. In a 1983 landmark decision, Marsh v.Chambers, 463 U.S. 783, the U.S. Supreme Court analyzed the constitutionality of a government legislature beginning its sessions with prayer conducted by an official government-paid chaplain. Although the principals of the case involved the Nebraska legislature and a citizen of that state, the Court’s thorough treatment of the issues made clear how it might decide a parallel question of prayer in the U.S. Congress. In fact, the historical practice of opening sessions of the U.S. Congress by paid, official chaplains figured prominently in the Court’s decision. The invocation, or appeal to the Supreme Being for protection and guidance, dates back to the Continental Congress when on September 6, 1774, Samuel Adams proposed to open the session to prayer. After heated debate on the question, Adams’ motion carried and Reverend Jacob Dushe of Philadelphia conducted the first invocation and was soon after appointed the first chaplain of that body. More that ten years later, Benjamin Franklin, a reputed deist, surprised many of his colleagues when he implored those men who had gathered in Philadelphia in 1787 to draft the Constitution, to also open their session with prayer. He believed that the delegates were in dire need of divine guidance and protection because they seemed to groping in the dark in search of political truth. Franklin’s motion was adopted and he and his 16 colleagues eventually drafted the Constitution. Subsequent to adoption of the Constitution, the U.S. Senate elected its first chaplain on April 25, 1789 in New York City. The Court in Marsh noted that on September 25, 1789, three days after congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights, which included the First Amendment. Given this fact, the Court reasoned that the men who wrote the First Amendment religion clauses did not view paid chaplains and opening prayers as violations of that amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early

Fall/Winter 1998] Muslim Prayer in Congress 199

session of congress. The practice has been since adopted by most state legislatures. The Court accorded great weight to the fact that the framers of the Constitution wholeheartedly adopted the practice of prayer contemporaneously with the First Amendment, thereby providing convincing evidence that the framers saw no real threat to the Establishment Clause arising from legislative prayer. In short, the Court relied not only on the black letter of the law in formulating its opinion; it also looked closely at the traditions of the “Founding Fathers” for guidance as to how the Constitution should be interpreted. In delivering the opinion of the Court former Chief Justice Warren E. Burger explained that historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees. Burger argued that in the case of legislative opening prayer, however, historical evidence sheds light on what the drafters of the First Amendment intended the Establishment Clause to mean and on how they thought the clause applied to that practice. Burger went on to write that “[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making laws is not, in these circumstances, an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.” Justice William J. Brennan, Jr., joined by Justice Thurgood Marshall, strongly dissented. Brennan contended that the practice of an official invocation violates the principles of neutrality and separation that are imbedded within the Establishment Clause. He argued that the Court was being influenced by sentimentality and had adopted an overly narrow view of the historical context of the First Amendment. Brennan’s purist view was not adopted and so legislative opening prayer and the paid office of chaplain remain as constitutional congressional activities. The Chaplain of the Senate is an official position to which an individual is elected by the members of the Senate. A counterpart position exists in the House of Representatives. Two guest


chaplains are allowed each month and are usually suggested by the members of the House or Senate, who, in effect, sponsor the guests. The first woman minister was invited as guest chaplain in 1971. Since that time a nun and the first American Indian holy man, an eighty-three old Sioux who brought his peace pipe, have also delivered the invocation. The duties of the chaplain include making the opening prayer for each day congress is in session. Chaplains also conducts funeral services, weddings, and provide spiritual counseling to those members who request it. Following are the invocations of Imam Siraj and Imam Mohammed, with accompanying remarks, as excerpted from the Congressional Record. A. Imam Wahaj Siraj The House met at 12 noon. Imam Siraj Wahaj, member, American Muslim Council, Washington, DC, offered the following prayer: In the name of God, Most Gracious, Most Merciful: Praise belongs to Thee alone, Oh God, Lord, and Creator of all the worlds; Praise belongs to Thee who shaped us and colored us in the wombs of our mothers; colored us black and white, brown, red, and yellow; Praise belongs to Thee, who created us from males and females and made us into nations and tribes that we may know each other; Most gracious, most merciful, all knowing, all wise, just God; Master of the day of judgment, Thee alone do we worship and from Thee alone do we seek help; Guide the leaders of this Nation, who have been given a great responsibility in worldly affairs, guide them and grant them righteousness and wisdom; Guide them and us on the straight path, the path of those whom Thou hast bestowed Thy favors, the path of Your inspired servants, the path of Noah, Abraham, Moses, Jesus, and Muhammad;


Guide them and us not on the path of the disobedient ones who have earned Your wrath and displeasure. Amen. [137 Cong. Rec. H 4947, June 25, 1991] A-1. Remarks regarding Imam Wahaj Siraj. Representative Nick J. Rahall (D. W.VA) Mr. Rahall: “Mr. Speaker, it is an honor for me to welcome to the House Chamber as guest chaplain, the Imam of Masjid al-Taqwa, Siraj Wahaj, of Brooklyn, NY. He is the first Muslim leader to work in cooperation with the New York City Police Department, and he is nationally known for his leadership in establishing a drug-free zone in his drug-laden neighborhood of Bedford-Stuyvesant in Brooklyn. Siraj Wahaj works well within the community in which he was born, and where he has lived for 41 years. “Siraj Wahaj's leadership extends far beyond his local community. In addition to being a member of the Masjid al-Shura, the consultative committee of New York City, he serves on the advisory board of the Islamic Society of North America, and is a member of the board of directors of the American Muslim Council in Washington, DC. “Siraj Wahaj was one of the first Muslims to address Christians from the pulpit. His weekly radio program on WWRL-AM is popular with non-Muslims as well as with Muslims. “As he prayed for the Members of this body today, and the people we represent, I know his words entered the minds and will remain in the hearts of all those within the sound of his voice and the reading of his words.” [137 Cong. Rec. H 4947, June 25, 1991] B. Imam W. D. Mohammed The Senate met at 8:45 a.m., on the expiration of the recess, and was called to order by the Honorable Alan J. Dixon, a Senator from the State of Illinois.


The Presiding Officer: The prayer this morning will be offered by our guest chaplain, the Imam Wallace D. Mohammed, Muslim American Spokesman, Calumet City, IL. The Imam Wallace D. Mohammed, Calumet City, IL, offered the following prayer: Our Creator, the Merciful Benefactor, the Merciful Redeemer who opens for all people a way to have good conscience and a good life: Grant to this Nation that Americans continue to live as a prosperous nation of “many in one” and as a people of faith taking pride in human decency, industry, and service. Let us pray that this great Nation’s two centuries of national life may inspire other nations to move toward social and economic justice for all. Grant that her big heart for charity, compassion, repentance, and mercy continue to beat strongly within all of us. Grant that Americans always have more hope than troubles and ever grow in goodness and in wisdom. Bless Americans to always cherish our freedom and the noble essence of the American people.. Grant that we Americans understand better our brothers and sisters around the world and reject unsuitable national pride for a global community of brotherhood and peace. Bring all citizens and Government together, those of great means and small means, to appreciate more our Nation’s solemn pledge of liberty, peace, and justice for all. Bless our homes and our schools. Bless the parents, our troubled youth, our burdened inner cities to never be without hope or direction. Bless Americans to cherish more the pride of industry. Bless the efforts of the President and all other efforts in progress for more jobs and more opportunity to be in this great society for more of us. Bless matrimony and families here and in all the world. Increase for the President of the United States, for every Member of the Senate, and for every Member of the House of


Representatives, the excellence of the intellect of the statesmen so that they may build a better America for us all. Amen. [138 Cong. Rec. S1103, February 6, 1992.] B-1. Remarks about Imam W. D. Mohammed by Senators. Senator Paul M. Simon (D. IL) Mr. Simon: “Mr. President, history was made in a small way this morning. We had an invocation by Imam Mohammed, the first Muslim to offer an invocation here in the U.S. Senate. “I think it is important that we reach out to one another, whether we are Christians, Jews, Muslims, Buddhists, whatever our belief or lack of belief. This morning's Washington Post has a story about Muslims fleeing persecution from what we have generally called Burma in the past. “The intolerance that is around the world in too many places is a cause for grief and is a cause for bloodshed and tragedy. What has happened this morning is the Imam Mohammed, who is known in the Chicago area and around the Nation for reaching out to people of other beliefs and for preaching tolerance and understanding – his presence here today is, first of all, a tribute to him. I was pleased to join my colleagues, Senator Dixon and Senator Hatch, in co-hosting his presence here today. “But it is a reminder to all of us, whatever our beliefs; yes, be firm in your beliefs, but also do not let excessive pride cause disruptions in our society, whether it is on the basis of religion, race, national background, or what it is. I hope today is one more small step in creating a nation and a world where there is more understanding.” Senator Alan J. Dixon (D. IL) Mr. Dixon: “Mr. President, I thank my distinguished colleague and friend from Illinois, Senator Paul Simon, for those remarks. “Today is a historic day, Mr. President, in the life of the U.S. Senate and in the country at large. For the first time in the Senate's


history, the invocation has been given by an individual of the Muslim faith. I am proud that one of my constituents, the leader of African-American Muslims in the United States, the Imam Wallace D. Mohammed, was the first Muslim leader to deliver an invocation in the U.S. Senate. “Mr. President, he is an outstanding leader in interfaith development, believing that unity amongst peoples makes us stronger as a great nation. He is correct, Mr. President, and I applaud his efforts to date, and I urge his continued good works in the future. “I would like to thank my colleagues, Senator Paul Simon and Senator Orrin Hatch, as well as the Chaplain of the Senate for their assistance in making this historic day possible. I thank my colleagues.” Senator Orrin G. Hatch (R. UT)

Mr. Hatch: “Mr. President, I would like to join in the remarks of my distinguished and great colleagues from Illinois. This is a great day for the U.S. Senate and for our country in having Imam Wallace Mohammed with us today, the first Muslim to pray in the U.S. Senate. We could not have made a better choice. There is not a better man in America or better religious leader who is trying to do what is right for his people in the inner cities, in jobs, in teachings of morality and decency, and in so many ways that help those who need help, to lend a helping hand. “Mohammed is a great man. He is a kind man. He is a compassionate man. He is a decent man. And it is an honor for us to have him in the Senate this day. I think it is fair to note that some of his greatest friends are sitting in the gallery today, some of whom are known by people all over the world, people of all faiths, of all religions. So we have made great strides today in the Senate, and I think the Senate is honored to have this great religious leader with us. I look forward to continuing an association and friendship with him and with his people for many years to come in the future. “I want to thank the distinguished Senators from Illinois and others who have worked hard to have Imam Mohammed with us today. “Thank you, Mr. President. I yield the floor.”

[138 Cong. Rec. S1103-1104, Thursday, February 6, 1992.]

Islamic & Muslim Websites The following list of websites was substantially compiled by Islamic Times, a Muslim student oriented magazine based in New York City. www.islamictimes.org www.worldforum.com/islam.htm www.amermuslim.org www.karamah.org www.irshad.org www.ummah.org.uk www.siss.edu www.cybercom.net/~cib www.rpi.edu/dept/union/muslim/ www.alrisala.org www.kashmiri-cc.ca www.sakhr.com www.sakhrsoft.comm www.al-islam.com www.alazhar.org www.masjid.net www.irw.org www.koranusa.org www.isna.net www.qss.org/cgi-bin/bookstore.cgi www.astrolabepictures.com www.islsoftware.com www.gcol.com/khatoons www.iiu.edu.my/recoff/ttc/ www.cair-net.org www.rahima.org www.benevolence.org www.islamicplaza.com/thepath www.ummah.org/icc www.messageofislam.com www.urdutimes.com 205


www.pakistancalling.com www.jana.org www.muslimnews.co.uk www.cybercom.net/~cib www.justiceforall.org www.itsibts.com www.sharaaz.com www.arabicteacher.com www.pearlpublishing.com www.cwpd.com/mabrur www.ebrahimlunat.com www.siss.edu www.lotusart.com www.muslimmag.org www.mirahmadi.com www.sunnah.org www.amahelp.com www.icbh.org www.dar-us-salam.com www.uiuc.edu/ro/msa www.qucis.queensu.ca/home/fevens/ www.muslimcenter.org www.islam.org www.islamicmultimedia.com www.iiasa.org/ www.soundvision.com www.amermuslim.org www.albany.edu/~ha4934/dhul.html www.saveiraq.com www.twf.org www.saturna.com/amana/amana.html www.geocities.com/eureka/plaza/7288 www.islamic-foundation.org.uk/islamfound www.gwis2.circ.gwu.edu/~mohameds/ www.muslimedia.com

the journal of islamic lawislamic law addressing issues of law, religion and culture volume 3 number...

Documents